IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.06.2024 CORAM THE HONOURABLE MR.JUSTICE M.DHANDAPANI Crl.O.P.No.14491 of 2024 in Crl.A.SR.No.15282 of 2024 Thangamuthu S/o.Palanichamy Gounder ... Petitioner Vs.

Shanmugasundaram S/o.Rengasamy Gounder ... Respondent PRAYER :

Criminal Miscellaneous Petition filed under Section 379(4) of Cr.P.C, to grant leave to file the appeal against the judgment dated 06.11.2023 passed in S.T.C.No.48 of 2018 on the file of the Judicial Magistrate, Kangeyam.

Criminal Appeal filed under Section 378 of Cr.P.C, to set aside the judgment of acquittal dated 06.11.2023 passed in S.T.C.No.48 of 2018 on the file of the Judicial Magistrate, Kangeyam.

For Petitioner : Mr.C.S.Saravanan

O R D E R

Assailing the order of acquittal dated 06.11.2023 passed in S.T.C.No.48 of 2018 by the learned Judicial Magistrate, Kangeyam, the present petition has been filed by the petitioner seeking leave to file appeal.

2. It is the case of the petitioner that the petitioner / complainant initiated proceedings under Section 138 of the Negotiable Instruments Act in S.T.C.No.48 of 2018 before the learned Judicial Magistrate, Kangeyam against the respondent / accused stating that the accused borrowed a sum of Rs.9,00,000/- on 14.12.2017 for his urgent needs and agreed to repay the same and the accused also issued post-dated cheque bearing No.000809 dated 14.01.2018 for a sum of Rs.9,00,000/-. When it was presented on 17.03.2018 for collection, the same was returned on 19.03.2018 as "account closed". Thereby, the complainant issued legal notice to the accused on 22.03.2018 and the same was received by the accused on 26.03.2018, however, the accused neither gave any reply nor repaid the amount. Hence, the above 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 P5 were marked. On the side of the respondent, D.W.1 to D.W.3 were examined and Exs.D1 to D4 were marked. 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, they would be put through the rigours of continuous li