IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.04.2024 CORAM:

THE HON'BLE MR.JUSTICE M.DHANDAPANI Crl.O.P.No.7719 of 2024 in Crl.A.SR.No.17330 of 2024 M.Arvind Bagrecha ...Petitioner Vs.

K.Ahamed Basha ...Respondent Petition filed under Section 378(4) of Code of Criminal Procedure to grant special leave to file this appeal against impugned judgment passed by the learned XIX Metropolitan Magistrate, Egmore, Chennai in C.C.No.8326 of 2018 dated 24.01.2024.

For Petitioner : Mr.P.N.Vignesh

ORDER

This Criminal origninal petition has been filed seeking to grant special leave to the petitioner to file appeal against the impugned judgment passed by the XIX Metropolitan Magistrate, Egmore, Chennai in C.C.No.8326 of 2018 dated 24.01.2024.

2. The case of the petitioner is that, in the year 2016, the respondent approached the petitioner and requested a loan of Rs.3,50,000/- for his personal need and the petitioner had also arranged and gave it to the respondent and it was also agreed by the respondent to pay an interest at the rate of 18% per annum and he also gave a promisory note to that effect. However, except a sum of Rs.46,000/- towars interest, no payment was made by the respondent to repay the principal. Whileso, after repeated request made by the petitioner, the respondent issued a cheque dated 11.07.2018 for a sum of Rs.4,30,000/-, towards discharge of the above liability. When the said cheque was presented for collection on 11.07.2018, the same was returned with endorsement 'Insufficient funds' on 12.07.2018. Therefore, the petitioner sent a legal notice dated 23.07.2018, despite receiving the same, the respondent failed to repay the loan amount. Thereby, the petitioner made a complaint under Section 138 of the Negotiable Instruments Act and the same was dismissed, vide present impugned order dated 24.01.2024. Challenging the same, the petitioner has preferred this petition seeking to grant special leave to prefer appeal against the said order dated 24.01.2024.

3. Learned counsel for the petitioner submitted that, when the accused himself admitted the signature, name and the amount mentioned in the cheque, the presumption to prove that the cheque was not given to discharge any debt lies with the accused and he has to rebut the presumption, when the petitioner has clearly established that there was a legally enforceable debt. In the present case, without rebutting the presumption, on vague grounds, the petitioner's complaint under Section 138 of the NI Act was dismissed, which is not sustainable. He further submitted that, there are arguable points available to the petitioner and thereby, he prayed for allowing this petition seeking grant leave.

4. Grant of leave is not an empty formality and this Court has to consider whether grant of leave is necessary with regard to an order of acquittal, since the accused is enjoying double presumption.

5. In the present case, the petitioner claims that he advanced a loan amount of of Rs.3,50,000/- in favour of the respondent for his personal need and it was also agreed by the respondent to pay an interest at the rate of 18% per annum and he also gave a promisory note to that effect. However, as no payment was made by the respondent and also as the cheque dated 11.07.2018 issued by the responent towards discharge of the above liability was returned with endorsement 'Insufficient funds', the petitioner made a complaint under Section 138 of Cr.P.C.

6. However, it is pertinent to note that the accused examined himself as DW1 and he clearly deposed that, it is one Manimaran/DW2, who borrowed money from the complainant, for which the accused and other three persons stood as security and have issued two cheques and promisory notes on behalf of DW2, the said Manimaran, in favour of the petitioner.

7. When the above said facts were properly established before the trial court by examining DW1 and DW2, it is clear that the accused had rebutted the presumption and it is for the petitioner to establish before