IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.04.2024 CORAM THE HONOURABLE MR.JUSTICE M.DHANDAPANI Crl.O.P.No.9466 of 2024 in Crl.A.SR.No.14980 of 2024 S.Jawahar ... Petitioner Vs.

D.Moorthy S/o.Devaraj ... Respondent PRAYER :

Criminal Miscellaneous Petition filed under Section 378(4) of Cr.P.C, to grant leave to file the appeal against the judgment dated 13.02.2024 passed in S.T.C.No.283 of 2021 on the file of the learned Judicial Magistrate, Udhagamandalam, Nilgiris.

Criminal Appeal filed under Section 378 of Cr.P.C, to set aside the judgment of acquittal dated 13.02.2024 passed in S.T.C.No.283 of 2021 on the file of the learned Judicial Magistrate, Udhagamandalam, Nilgiris and consequently, allow the appeal and convict the respondent.

For Petitioner : Mr.J.Bharathi Raja

O R D E R

Assailing the order of acquittal dated 13.02.2024 passed in S.T.C.No.283 of 2021 by the learned Judicial Magistrate, Udhagamandalam, Nilgiris, the present petition has been filed by the petitioner seeking leave to file appeal.

2. It is the case of the petitioner that the respondent approached the petitioner for loan of Rs.4,50,000/- for personal expenses and on 05.01.2020, the petitioner gave the loan to the respondent, which the respondent promised to repay the same along with 12% interest. On demand to repay the same, the respondent issued cheque No.000016 dated 09.03.2020 for a sum of Rs.4,50,000/- to discharge the said liability. However, the said cheque, upon deposit was returned by the petitioner’s bankers on 11.03.2020 on the ground of insufficient funds. Therefore, the petitioner caused a legal notice to the respondent on 24.03.2020 and the same was returned as "unclaimed". Hence, the service of notice was completed upon the respondent. Therefore, the petitioner was constrained to file the complaint.

3. Upon issuance of summons, the respondent appeared and was served with the copies of the documents and as the respondent pleaded not guilty, the Court below proceeded with the trial of the case. At the time of trial, on the side of the petitioner, P.W.1 was examined and Exs.P1 to P4 were marked. Neither any oral evidence nor any documents were marked by the respondent. On the basis of oral and documentary evidence, the Court below found the respondent not guilty of the offence and, accordingly, acquitted the respondent, aggrieved by which, the present petition has been filed seeking leave to appeal.

4. The learned counsel appearing for the petitioner submitted that the presumption u/s 139 falls heavily on the respondent and the respondent having not rebutted the presumption by placing any material to show the reason as to why the cheque was given, necessarily it has to be held against the respondent. However, without properly appreciating the above, the Court below has acquitted the respondent, which deserves interference at the hands of this Court.

5. This Court gave its anxious consideration to the submission advanced by the learned counsel for the petitioner and perused the materials available on record.

6. It is the consistent ratio of the Courts that grant of leave is not a matter of right; rather it is the edifice, on which the liberty of the person, who has been accused of a crime rests and where a person, who had been accused of a crime had been acquitted by the Court below, a presumption follows the golden rule that a person is presumed innocent until proven guilty and on that basis, the second presumption on the basis of the acquittal necessitates the appellate Court to scrutinize the materials more carefully. Further, grant of leave to prosecute should not be as a matter of routine, but should be on just and equitable basis, when materials reveal that the Court below has not appreciated the materials in proper perspective.

7. Grant leave provided for u/s 378 (4) is not an empty formality, but has been brought into the statute only to safeguard the interests of the persons accused of a crime, who have since been acquitted, as otherwise