Nallathambi v. Shanmugam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.06.2024
CORAM:
THE HONOURABLE MR. JUSTICE M.DHANDAPANI Crl.O.P.No.10997 of 2024 in Crl.A.SR.No.6513 of 2024 Nallathambi ...Petitioner Vs.
Shanmugam ...Respondent Prayer in Crl.O.P.No.10997 of 2034: Criminal Original Petition filed under Section 378(4) Cr.P.C. to grant leave to the petitioner to prefer appeal against the impugned judgment of acquittal passed in C.C.No.55 of 2019 on the file of the Judicial Magistrate, Fast Track Court, Kallakurichi. Prayer in Crl.A.SR.No.6513 of 2024 :
Criminal Appeal filed under Section 378(4) Cr.P.C. to set aside the judgment of acquittal passed in C.C.No.55 of 2019 dated 21.09.2023 on the file of Judicial Magistrate, Fast Track Court, Kallakurichi by acquitting the respondent under Section 138 of the Negotiable Instrument Act 1881 and convict the respondent in accordance with law. For Petitioner : Mr.M.Vinoth Page No:1/10
ORDER
This Criminal Original Petition has been filed to grant leave to the petitioner to file the above appeal against the judgment of acquittal passed in C.C.No.55 of 2019 dated 21.09.2023 on the file of the learned Judicial Magistrate, Fast Track Court, Kallakurichi.
2. The case of the petitioner is that, the respondent approached the petitioner on 27.01.2013 and borrowed a sum of Rs.9,00,000/- for his urgent expenses from the petitioner. To discharge the said liability, the respondent issued a post dated cheque bearing No.833914 drawn on Indian Bank, Tiruppur Branch dated 27.02.2013 for a sum of Rs.9,00,000/-. As per the instructions of the respondent, the petitioner presented the aforesaid cheque for collection through his banker on 04.03.2013 and the cheque was unpaid for the reason " Payment stopped" vide return memo dated 23.03.2013. Thereby, the petitioner sent a legal notice to the respondent on 22.04.2013 and the same was received and returned by the respondent on 27.04.2013. Further the respondent did not pay any amount nor any reply and failed to make payments. Therefore, left with no other alternative, the complaint was filed by the petitioner for an offence u/s 138 of the Page No:2/10
NI Act before the trial court in STC.No.456 of 2013. 2.1 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, P.W.2 and P.W.3 were examined and Exs.P1 to P9 were marked. On the side of the respondent, D.W.1 and D.W.2 were were examined and Exs.D-1 to D-5 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 to prefer an appeal against the said order.
3. Learned counsel appearing for the petitioner submitted that the Trial Court has failed to consider the evidence of the respondent herein, he had stated that the petitioner and the respondent were doing business together and were in touch till the year 2017 and they had also jointly purchased a property in the year 2012 and there was a difference of opinion in selling the property, they stopped communication between them in the year 2017. Moreover, the trial Judge had erroneously relied on Limitation Act, thereby, considering it as a time barred debt when there was existing and continuous transaction between the petitioner and the Page No:3/10
respondent. Without going into the merits of the complaint and corroborative evidence and without following the procedures as contemplated under law, the learned Trial Judge had acquitted the respondent, which is wholly unsustainable and therefore, interference is warranted with the findings recorded by the court below.
4. This Court gave its anxious consideration to the submission advanced by the learned counsel for the petitioner and perused the materials available on record.
5. It is the consistent ratio laid down that grant of leave is not a matter of right; rather it is the edifice on which the liberty of the person, who has seen 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 the prosecution 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 Page No:4/10
proper prospective.
6. 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 litigation even after their innocence has been accepted by the trial court.
7. It is the case of dishonour of cheque given by the accused to the complainant towards discharge of legally enforceable debt due and payable by the accused for which the complaint was filed under Section 138 of Negotiable Instruments Act which came to be dismissed.
8. It is not in dispute that the dishonoured cheque belongs to the accused. A perusal of the documents placed on record particularly the impugned judgment reveals that, the version of the respondent that the cheque in dispute was given to one Kumarasamy and the same was misused by the petitioner. Further, the petitioner has no source to lend the loan amount Rs.9,00,000/- was not at all established except by the mere oral evidence of D.W1 and it does not inspire confidence and the same is rejected. When the respondent had raised a serious Page No:5/10
doubt in respect of the version of the petitioner by way of cross examination, then the burden of proof would shift back upon the petitioner to explain the facts and circumstances in which he had parted such a hug amount directly, without getting any supportive documents. Therefore, the petitioner has failed to prove that the received money for what purpose and whether the cheques were given for legally enforceable debt or liability. Hence, the petitioner failed to prove that the cheque was issued for legally enforceable debt or liability.
The learned Trial Judge had rightly held that the inherent weakness in the case of the petitioner and which goes to the root of the case and the respondent is liable to raise a probable defence and had created a serious doubts with regard to the very maintainability of the case by the petitioner and that the cheque in dispute was not supported by any legally enforceable debt in respect of the petitioner and therefore, the respondent is not legally enforceable. Accordingly, the respondent created valid doubt and rebutted the presumption in favour of the petitioner and the petitioner has miserably failed to establish his case.
9. Further, there is no material to show the payment made to the Page No:6/10
accused so as to claim that the cheques were issued which stood dishonoured and, therefore, there is a legally enforceable debt which subsists. Thus, the trial court, on appreciating the materials available on record, had rightly dismissed the petitioner's complaint as he failed to establish that there was a legally enforceable debt for which the dishonoured cheque was issued by the accused and therefore, the said finding of the trial court cannot be interfered with.
10. In order to grant leave, a case should be made out, but the present case bristles with infirmities which strikes at the root of the findings recorded. Further, in the case on hand, the petitioner, has not made out a case, where the findings are so very perverse that there has been miscarriage of justice warranting this Court to grant leave to set right the wrong that has been committed by the court below.
11. No infirmities or other materials are placed which necessitates relook into the findings recorded by the court below and granting leave to appeal would be nothing but a travesty of justice insofar as the respondent are concerned, who had been acquitted through a well considered judgement passed by the court below.
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12. In the aforestated circumstances, no case is made out by the petitioner for grant of leave and accordingly, this Criminal Original Petition stands dismissed. Consequently, the Criminal Appeal is rejected at the SR stage itself.
10.06.2024 msv Index : Yes/No Speaking Order : Yes/No NCC : Yes/No Page No:8/10
M.DHANDAPANI , J.
msv Crl.O.P.No.10997 of 2024 in Crl.A.SR.No.6513 of 2024 Page No:9/10
10.06.2024 Page No:10/10