Back
IN THE HIGH COURT OF JUDICATURE AT MADRAS
SATHI KUMAR SUKUMARA KURUP, J.
K.B. Raju - Appellant
Versus
K. Asokan - Respondent
Criminal Appeal No. 653 of 2012
Decided On : 18-03-2025
Based on the provided legal document, here are the key points:
JUDGMENT :
1. This Criminal Appeal has been filed to set aside the Judgment dated 30.07.2012 passed in C.C. No.765 of 2011 on the file of the learned Judicial Magistrate (Fast Track Court), Vellore, by which the Respondent/Accused was acquitted of the offence under Section 138 to 142 of The Negotiable Instruments Act.
2. The complaint under Section 138 to 142 of The Negotiable Instruments Act, in C.C. No. 765 of 2011 was filed by the Appellant/Complainant complaining that the Respondent/Accused had borrowed Rs.2 lakhs from him and also executed a promissory note along with one Mohan, Kandipedu Village. The Respondent/Accused promised to repay the loan amount with interest at the rate of 36% per annum. On demand the Accused had issued a cheque dated 08.11.2011 for Rs.4 lakhs and on its presentation, the cheque was dishonoured by his bankers – The Tamil Nadu Mercantile Bank Limited, Vellore. The complainant issued a legal notice dated 11.11.2011 calling upon the Respondent/Accused to repay the cheque amount. On receipt of the notice dated 11.11.2011, the Respondent/Accused sent a reply dated 19.11.2011 repudiating the averments contained in the notice dated 11.11.2011. Thereafter, the complainant has filed the complaint complaining that the Respondent/Accused issued the cheque for a legally enforceable debt and liability but it was dishonoured on it's presentation.
3. Before the trial Court, the Appellant/Complainant examined himself as P.W-1 and Ex.P-1 to Ex.P-9 were marked. The Respondent/Accused has neither examined any witness nor marked any document. The trial Court, on appreciation of the deposition of P.W-1/ Complainant and on perusal of the oral and documentary evidence, held that the amount said to have been borrowed by the Respondent/Accused is Rs.2 lakhs, but the cheque was said to have been issued for Rs.4 lakhs. When the cheque is more than the borrowed amount, the provisions under Section 138 of The Negotiable Instruments Act are not attracted. Accordingly, the trial Court acquitted the Respondent/Accused by the judgment dated 30.07.2012.
4. Aggrieved by the judgment of acquittal dated 30.07.2012 passed in C.C. No. 765 of 2011, the instant Criminal Appeal is filed by the Appellant/Complainant.
5. When this Criminal Appeal No. 653 of 2012 was listed for hearing, this Court, by Judgment dated 18.01.2018, on the basis of the judgment of the Full Bench of this Court in the case of Shanmuga Sundaram vs. S. Mani, (2017) 3 MLJ (Crl.) 591 transferred this Appeal to the concerned Court of Principal District and Sessions Judge and directed the Registry to transmit the entire case records to the concerned Principal Sessions Court. Subsequently, the case was once again re-transferred to this Court and accordingly, it was taken up for hearing.
6. The learned Counsel for the Appellant/Complainant submitted that the Respondent/Accused has not denied that a promissory note was executed for Rs.2 lakhs towards the amount borrowed by him. The Respondent/Accused promised to pay interest at the rate of 36% per annum as the transaction is commercial in nature. As the Respondent/Accused failed to pay the interest amount for a long time, the Appellant/Complainant demanded the amount together with interest. The interest alone works out to Rs.2,04,000/- and therefore, towards principal and interest, a cheque for a sum of Rs.4 lakhs was issued by the Respondent/Accused. The learned Judicial Magistrate made an observation that the Appellant/Complainant failed to maintain accounts for receipt of interest. Even assuming that the Appellant/Complainant did not maintain any such record, it will not be a ground for the Court below to pass the judgment of acquittal. The Respondent/Accused did not deny the issuance of the cheque. The Respondent/Accused did not step into the witness box to prove the contrary. While so, the trial Court ought to have allowed the complaint filed by the Appellant/Complainant. The judgment of acquittal is therefore perverse and
The cheque amount exceeding the borrowed amount negates the applicability of Section 138 of the Negotiable Instruments Act, requiring the Complainant to establish a legally enforceable debt.
The burden of proof, legal presumptions, and the accused's admission of debt in the issuance of the cheque are crucial in determining liability under the Negotiable Instrument Act.
Point of law : Accused has succeeded in rebutting presumption, it is for complainant to prove existence of a debt in discharge of which subject cheque was issued
The burden of proof under Section 138 of the Negotiable Instruments Act lies on the accused to show that the cheque was not issued in discharge of any debt or liability.
Dishonour of cheque – Where accused has succeeded in rebutting statutory presumption under Section 139 of Negotiable Instruments Act, he has to be acquitted.
In an appeal against acquittal, the appellate court may only interfere if the trial court's decision is perverse or illegal, reinforcing the presumption of innocence.
The presumption of consideration under Sections 118 and 139 of the Negotiable Instruments Act applies unless disproven by the accused, and the burden cannot shift excessively onto the complainant.
The presumption of issuance of a cheque in discharge of a legally enforceable debt under Section 139 of the N.I. Act cannot be disregarded, and the burden to rebut this presumption lies with the accu....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
