Advocates:
['I ABRAR MOHAMED ABDULLAH', '', 'C GUNASEKARAN', 'S SARAVANAKUMAR', 'ADDL TYPED SET FILED']

Crl.A.No.1009 of 2022

0IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 07.09.2022

CORAM:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN

Crl.A.No.1009 of 2022

T.V.Mayilsamy

...Appellant

Vs.

Soundharajan

...Respondent

Criminal Appeal Case filed under Sections 378 of Cr.P.C. to set aside

the judgment made in C.C.No.250 of 2017 dated 22.11.2018 on the file of the

Judicial Magistrate, Fast Track Court II, Coimbatore, by allowing the

criminal appeal.

For Appellant

: Mr.I.Abrar Mohamed Abdullah

For Respondent

:

*******

JUDGMENT

The criminal appeal has been filed against the judgment of

acquittal passed by the learned Judicial Magistrate, Fast Track Court

No.II,Coimbatore,in C.C.No.250 of 2017, dated 22.11.2018.

2

The appellant is a complainant and the respondent is an accused.

The appellant filed a private complaint under Section 200 of Cr.P.C. against

the respondent for the offence under Section 138 of Negotiable Instruments

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Crl.A.No.1009 of 2022

Act (in short “the NI Act”) and the same was taken on file in C.C.No.250 of

2017 by the learned Judicial Magistrate, Fast Track Court No.II, Coimbatore.

To prove the case of the appellant/complainant, he examined himself as

P.W.1 and marked six documents as Exs.P1 to P6. On the side of the

defence, the respondent examined himself as D.W.1 and marked 18

documents as Exs.D1 to D18. The learned Magistrate, after trial, found that

the appellant/complainant has failed to prove his lending capacity and also he

has not proved that the disputed cheque was issued only to discharge the

legally enforcible debt and hence by judgment dated 22.11.2018, acquitted

the respondent.

3

Aggrieved over the finding of the trial Court and the judgment of

acquittal, the complainant is now before this Court with the present criminal

appeal.

4

The learned Counsel for the appellant/complainant would submit

that respondent has not denied his signature found on the cheque and

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Crl.A.No.1009 of 2022

execution of the cheque. Therefore once signature and execution of the

cheque is admitted, onus of initial burden has been proved by the complainant

and the statutory presumption under Section 139 of NI Act would come into

play and it is for the accused to rebut the presumption in the manner known

to law. In this case the respondent/accused has failed to rebut the

presumption in the manner known to law. The trial Court has failed to

appreciate the evidence in a proper manner and wrongly acquitted the

respondent/accused, which warrants interference of this Court.

5

Heard the learned counsel appearing for the appellant and

carefully perused the materials placed on record.

6

According to the appellant, the respondent borrowed a sum of

Rs.5,33,500/- on 08.07.2005 and executed promissory note and on

01.07.2006 he also executed a cheque to discharge the debt for a sum of

Rs.5,33,500/- bearing No.137591 dated 01.07.2006 drawn at Tiruppur

Catholic Syrian Bank. When the appellant presented the cheque on the same

day, it was returned on 03.07.2006 with an endorsement “insufficient fund”.

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Crl.A.No.1009 of 2022

Hence the appellant issued statutory notice on 18.07.2006, the respondent

refused to receive the same. Therefore he filed the complaint against the

respondent and the learned Magistrate has wrongly come to the conclusion

that the appellant has not proved his case and acquitted the respondent.

7

It is the case of the respondent/accused that the father-in-law of

the respondent was doing business at Tiruppur and he has three daughters

and the respondent married one of his daughters. The respondent's father-in-

law and his three daughters were jointly running a partnership firms and in

one of the firms the respondent was also a sleeping partner. The said business

were actively runn