BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.04.2025 CORAM:

THE HONOURABLE MR.JUSTICE B.PUGALENDHI Crl.A.(MD)No.236 of 2025 C.P.Sathish ... Appellant versus G.Thiruselvam ... Respondent Criminal Appeal filed under Section 378(4) of Cr.P.C. / under Section

419 of BNSS 2023, to call for the records and set aside teh Judgment of acquittal passed by the learned Judicial Magistrate No.I, Fast Track Court at Magistrate Level, Madurai, in S.T.C.No.284 of 2015 dated 28.11.2024 and convict the accused for the offence under Section 138 of the Negotiable Instruments Act.

For Appellant : Mr.R.Senthil Kumar

JUDGMENT

The appellant herein lodged a complaint before the learned Judicial Magistrate No.I, Fast Track Court at Magisterial Level, Madurai in S.T.C.No.284 of 2015 as against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. After the trial, the trial Court, by its Judgment dated 28.11.2024, rejected the complaint and acquitted the respondent from the charge. As against the Judgment of acquittal, the complainant has preferred this appeal under Section 378(4)

Cr.P.C.

2. The learned counsel appearing for the appellant submits that the issuance of cheque (Ex.P1) was admitted by the respondent and his signature found in the cheque (Ex.P1) was also admitted by the respondent. According to the learned counsel, the cheque issued by the respondent was presented for collection on 20.03.2013 and the same was returned by the respondent's Banker on 22.03.2013 with an endorsement as “insufficient funds” and therefore, the appellant issued a legal notice as required under Section 138 of the Negotiable Instruments Act. Even after the receipt of the legal notice dated 04.04.2013, the accused has not paid the amount. Therefore, an offence under Section 138 of the Negotiable Instruments Act has been made out. Since the offence has been proved by the complainant, a presumption is made out as against the respondent, as per Section 139 of the Negotiable Instruments Act. However, the trial Court has erroneously rejected the complaint of the appellant that the cheque has been given as collateral security for a chit transaction. The trial Court has failed to consider that apart from the chit transaction, the respondent has also borrowed money on 06.11.2012. Therefore, according to the learned counsel, this transanction is a separate transaction, wherein, the accused has borrowed money for the medical treatment to his wife. Without considering the same, the trial Court has rejected the complaint that there is no legally enforceable debt.

3. The learned counsel for the appellant further submits that the respondent has borrowed this amount for the medical expenses of his wife on 06.11.2012 and only after several remainders by the complainant, the cheque was issued by the respondent on 12.03.2013 as post-dated cheque, i.e. on 20.03.2013. The issuance of cheque has been admitted by the respondent and the signature found in the cheque has not been disputed by the respondent. Therefore, it has to be treated that the cheque has been given to discharge the private loan which has been borrowed on 06.11.2012.

4. This Court considered the submissions made by the learned counsel for the appellant and also perused the Judgment of the trial Court passed in S.T.C.No.284 of 2015.

5. Since this appeal is filed as against the Judgment of acquittal, it is necessary to bear in mind the principles governing the appeal against acquittal, as laid down by the Hon'ble Supreme Court in V.Sejappa v. State [(2016) 12 SCC 150], wherein, the Hon'ble Supreme Court has followed its own decision in Muralidhar v. State of Karnataka [(2014) 5 SCC 730]. The guidelines issued in the said decision are extracted hereunder:

“23. ... ... (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;

(ii) The accused person is entitled to the bene