IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.04.2024 CORAM:

THE HONOURABLE MR. JUSTICE M.DHANDAPANI Crl.A.No.210 of 2021 D.Ayiram ... Appellant Vs.

1. Maharaja Royal Garden

2. Y.Daulat Khan ... Respondents Prayer: Criminal Appeal filed under Section 378 of Cr.P.C, to call for the records in connection with STC. No.49 of 2016 on the file of the learned Judicial Magistrate, Fast Track Court, (Magisterial Level) Ambattur, Chennai and set aside the judgment dated 15.03.2021.

For Appellant : Mr.E.Kannadasan For Respondent : No appearance

JUDGMENT

The appeal has been filed seeking to quash the acquittal order in STC.

No.49 of 2016 on the file of the learned Judicial Magistrate, Fast Track Court, (Magisterial Level) Ambattur, Chennai, dated 15.03.2021.

2. The facts of the case are as follows:

It is the case of the complainant that the appellant is the proprietor of M/s.Sri Vinayaga Enterprises and he is also doing real estate business. The second respondent has approached him representing as a partner of the first respondent viz., M/s.Maharaja Royal Garden and sought financial assistance by way of loan to develop business of M/s.Maharaja Royal Garden situated at Ayapakkam and Guindy and to expand and facilitate members of his company. The respondents approached the appellant and availed loan for a sum of Rs.1,30,00,000/- from the appellant. At the end of December 2012, an amount of Rs.70,00,000/- was arrived as outstanding and payable by the respondents to the appellant and executed the promissory note on 28.12.2012 for the said amount of Rs.70,00,000/-.

3. It is the further case of the appellant that during the year 2013, the second respondent borrowed a sum of Rs.60,00,000/- on various dates from the appellant, in which, the second respondent has repaid a sum of Rs.10,75,000/- to the appellant and after adjusting Rs.10,75,000/- towards principal amount and leaving a outstanding liability Rs.1,19,75,000/- . After repeated request and demand made by the appellant, the second respondent issued two cheques in favour of the appellant vide cheque No.570853 dated 01.10.2015 for a sum of Rs.70,00,000/- and cheque No.570854 dated 01.10.2015 for a sum of Rs.49,75,000/- towards principal loan amount. Towards the discharge of the said loan amount, it is the case of the complainant that Since the second respondent did not repay the loan amount, the complainant presented the cheque before the Bank for encashment of the amount on 16.10.2015. However, the said cheque was returned on 20.10.2015 with an endorsement ''funds insufficient''. Hence, the appellant gave a statutory notice to the respondents/accused on 05.11.2015 seeking for repayment of the loan amount. The respondents have received the statutory notice. Since no amount was forthcoming, the appellant has filed a complaint before the learned Judicial Magistrate, FTC, Ambattur, Chennai under Section 138 of NI Act which was taken on file in STC. No.49 of 2016.

4. In order to prove the case, before the trial Court, the appellant has examined PW1 to PW4 and marked 12 documents viz., Ex.P1 to P12. On the side of the respondents, no witness was examined and no documents were marked. After ful-fledged trial, the learned Judge dismissed the case and acquitted the respondents. Aggrieved by the said acquittal judgment, the complainant/appellant has preferred this appeal.

5. The learned counsel appearing for the appellant vehemently argued that admittedly, the second respondent on behalf of the first respondent had borrowed the amount for their business purpose. The trial Judge ought not to have disbelieved the case of the complainant. The complainant has produced all materials records and his oral evidence is crystal clear as to the borrowing of the loan by the respondent and non repayment of the same. The respondent has agreed that he would repay the entire loan amount within a very short period. However, the respondent did not repay either the principle amount or interest thereof. Therefore, the compl