Advocates:
['m/s s thiruvengadam', '', 'D ARUNA', 'B MANOHARAN AMICUS CURIAE', '', 'VIDE ORDER DATE']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 26.03.2019

Coram::

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

Criminal Appeal No.66 of 2014

K.Balachandran,

S/o.C.Kannan,

No.1, 5^th Cross Street,

Sabari Nagar, Porur,

Chennai-600 116.

... Appellant/Complainant

/versus/

S.Murugan,

S/o.Sambandha Moorthy,

No.8,Thiru.Vi.Ka.Street,

Ethiraj Nagar, West Mambalam,

Chennai-600 033.

... Respondent/Accused

Prayer:- Criminal Appeal is filed under Section 378(4) of

Cr.P.C, to set aside the order of the XV Additional Sessions

Court (previously I Fast Track Court), Chennai dated 18.11.2013

passed in C.A.No.188 of 2012 in reversing the Judgment passed in

C.C.No.847 of 2009 by the 7^th Metropolitan Magistrate, George

Town, Chennai dated 17.09.2012.

For Appellant : Mr.S.Thiruvengadam

For Respondent : Mr.B.Manoharan

Amicus Curiae

J U D G M E N T

This Appeal is directed against the acquittal of the

accused by the Lower Appellate Court in the case arising out of

under Section 138 of Negotiable Instrument Act.

2. The brief facts as found in the complaint before the

Magistrate is that the appellant herein is a retired employee in

the Hero Motors. After his retirement he wanted to carry

Travels business hence, he took a premises at Shop No.1, 1^st

Floor, 391-A Dr.Lakshmanasamy Road, K.K.Nagar, Chennai and

permitted the accused to manage and run the said business in the

name and style of “Guest Cabs”. It is alleged that after

https://hcservices.ecourts.gov.in/hcservices/

gaining confidence of the complainant, the accused approached

him for a loan to purchase a house at Valasaravakkam. Believing

the words of the accused, the complainant gave Rs.7,30,000/- in

two instalments first on 06.12.2006 and second on 15.12.2006.

After receiving the money, the accused executed a pro-note on

15.12.2006. He agreed to re-pay the loan promptly. On

30.09.2008, the accused gave a cheque for Rs.7,00,000/- to

discharge the loan. When the cheque was presented in the ICICI

Bank, Ashok Nagar Branch, it was returned with memo dated

04.10.2008 indicating “funds insufficient”. The statutory

notice envisaged under Section 138 of Negotiable Instrument Act

was issued on 28.10.2008, calling upon the accused to pay the

cheque amount of Rs.7,00,000/- within 15 days from the date of

receipt of the notice. The said notice was duly received by the

accused on 05.11.2008. The accused neither paid the cheque

amount nor replied to the legal notice. Hence, the complaint

was presented before the Magistrate on 21.11.2008. It was taken

on file subsequently and summon was issued to the accused.

3. The complainant has examined himself as PW.1. Marked 5

Exhibits.

Ex.P.1 is the alleged promissory note dated

04.12.2006 executed by the accused in favour of the complainant.

Ex.P.2 is the subject cheque dated 30.09.2008 for Rs.7,00,000/-

issued in favour of Balachandran by the accused, Ex.P.3 is the

Return memo, Ex.P.4 is the Legal Notice, Ex.P.5 is the

acknowledgement card indicating that the notice was received by

the addressee on 01.11.2008.

4. The trial Court, after considering the evidence has

held that the cheque has been issued by the accused to discharge

his debt, under the Pro-note Ex.P.1. Therefore, liable to be

punishable for offence under Section 138 of Negotiable

Instrument Act. Drawing the presumption under Section 139 of

Negotiable Instrument Act and the failure of the accused to

rebut the presumption, the Court held him guilt of offence under

Section 138 of Negotiable Instrument Act. As a result, the

trial Court sentenced the accused to undergo 6 months S.I and

directed to pay compensation of Rs.7,00,000/- to the

complainant, within a period of one month.

5. On appeal, the Lower Appellate Court after re-

appreciating the evidence reversed the finding of the trial

Court on the ground that