Back
2019 Supreme(Mad) 875
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SURESH KUMAR, J.
A.E. Sivaprakasam – Appellant
Versus
G.T. Sairam – Respondent
Crl. A. No. 605 of 2014
Decided On : 10-04-2019
Subject
Criminal Law - Appeal Against Acquittal
Act Referred
NEGOTIABLE INSTRUMENTS ACT : S.138
Headnote
Criminal Procedure Code, 1973 – Section 2, 256, 378, 372 – Repayment of principal amount- Post cheque drawn - Complainant pressed for repayment of principal amount with interest accused had paid two months interest of complainant accused also had issued a post cheque drawn on Karnataka Bank bearing Cheque for a sum and had assured to complainant that on presentation of cheque it would be honoured – Complainant presented the cheque for collection through his bank – Arcot Co-operative Urban Bank same was returned by Bank as unpaid SX reasons "Funds insufficient – Held, Learned respective single Judges and also submissions made by counsels appearing for appellants this Court is inclined to dispose of all these appeals in the following terms criminal appeals are disposed of, along with connected original petitions and miscellaneous petitions by transferring same to respective Principal Sessions Courts transferred cases, it is for Sessions Court to take up and dispose appeals or make over same to Additional Sessions Court for disposal in accordance with law – Before taking up appeal by Sessions Court concerned due notices be served entertained after getting leave in this regard in at that time – Full Bench Judgment of referred to above was not available said Judgment of the Full Bench was issued number of appeals including present appeal have been entertained by this Court remains that if pursuant to the said order passed by Full Bench in the authoritative Judgment of this Court number of appeals were transferred from this Court to first appellate Court – Appeal disposed.
For the Appellant : L. Rajasekar.
For the Respondent: D.A. Sugumar.
R. SURESH KUMAR, J.
1. This Criminal Appeal has been preferred against the order passed in C.A. No. 7 of 2013, by order, dated 25.07.2014 on the file of the Principal District and Sessions Judge, Vellore, which was directed against the Judgment and acquittal made in C.C. No. 64 of 2011, dated 21.12.2012 by the Judicial Magistrate No. V, Vellore.
2. The necessary facts which are to be noticed for disposal of this appeal are as follows:
(i) That the appellant is the complainant before the trial Court and the respondent herein is the accused. Hence for the sake of convenience, they are termed as complainant and accused respectively.
(ii) The accused borrowed a sum of Rs. 1 lakh from the complainant on 05.05.2010 for his family urgent expenses and business purposes and the accused agreed to repay the same to the complainant on demand with interest of 24% p.a. This transaction was witnessed by persons who were present on that occasion.
(iii) While so, when the complainant pressed for repayment of the principal amount with interest, the accused had paid two months interest of Rs. 4,000/- to the complainant on 10.01.2011 and the accused also had issued a post-dated cheque on 10.01.2011, dated 04.02.2011 drawn on Karnataka Bank, Sathuvachari Branch, bearing Cheque No. 320193 for a sum of Rs. 1 lakh and had assured to the complainant that, on presentation of the cheque, it would be honoured. Accordingly, the complainant presented the cheque for collection through his bank, namely Arcot Co-operative Urban Bank on 30.03.2011, however the same was returned by the Bank as unpaid on 05.04.2011 for the reasons "Funds insufficient." Thereafter the complainant issued legal notice under Section 138 of the NI Act (herein after referred to as "the NI Act") on 23.04.2011, which was received by the accused on 25.04.2011. However the accused has not come forward to pay the cheque amount, nor he has chosen to give any reply to the said notice.
(iv) This actions on the part of the accused triggered the complainant to prefer private complaint before the trial Court, i.e. Judicial Magistrate No. V, Vellore by invoking Section 138 of the NI Act.
(v) The said complaint was taken on file as C.C. No. 64 of 2011. After issuing summons, on appearance, copies were given to the accused and thereafter trial was commenced. During the trial, on the side of the complainant, two witnesses were examined, i.e. PW-1 and PW-2 and five documents were marked, i.e. Ex.P.1 to Ex.P.5. On the side of the complainant, three witnesses were examined, i.e. DW-1 to DW-3 and one document was marked, i.e. Ex.D.1.
(vi) The trial Court after having considered the merits of the case projected by both sides, i.e. complainant as well as the accused, ultimately found the accused not guilty and accordingly, the learned Judge of the trial Court dismissed the complaint and the accused was acquitted from the offence punishable under Section 138 of the NI Act in terms of Section 256(1) of the Cr.P.C. The said Judgment was made on 21.12.2012.
(vii) As against the said Judgment of acquittal made by the trial Court on 21.12.2012 in C.C. No. 64 of 2011, the complainant preferred appeal in C.A. No. 7 of 2013 before the Principal District and Sessions Judge, Vellore. During the pendency of the appeal, a miscellaneous petition in Crl. M.P. No. 730 of 2013 was filed by the accused seeking the indulgence of the appellate Court to dismiss the appeal on the ground that, appeal against the acquittal by the complainant in private complaint should have been filed only under Section 378(4) of the Cr.P.C. after obtaining leave from the High Court and without resorting to such a procedure, since the complainant has preferred the appeal, i.e. C.A. No. 7 of 2013 before the Sessions Court, the same should be dismissed for want of jurisdiction.
(viii) The said petition filed by the accused as against the appeal preferred by the complainant before the Sessions Court was refuted and on behalf of both sides, i.e. for
