← Library
Madras High CourtCRL OP/2813/2017dismissed

R.Senthilkumar, 46 Years v. R.Ananda Gnanasekaran

2017-07-25Honourable Mr Justice N. Authinathan7 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 25.07.2017

CORAM

THE HONOURABLE MR. JUSTICE N.AUTHINATHAN Crl.O.P.Nos.2813 and 2814 of 2017 R.Senthilkumar ... Petitioner in both Crl.O.Ps.

Vs R.Ananda Gnanasekaran S/o.Rajesh, C/o.Sheela, Proprietor, PSR Exports, Rajaiah Illak, 211, Nochi Nagar, 46, Pudur (Post), Erode.

... Respondent in both Crl.O.Ps.

Criminal Original Petitions are filed under Section 378(4) of Cr.P.C. to grant leave to the petitioner to file Criminal Appeal against the Judgment dated 08.12.2016 passed in STC No.146 of 2016 and 204 of 2015 by the Judicial Magistrate, Fast Track Court No.I, Erode. For Petitioner :

Mr.P.Rathanavel For Respondent :

Mr.I.C.Vasudevan

O R D E R

The petitioner is the complainant in S.T.C.Nos.146 of 2016 and 204 of 2015, and he has filed complaints under Section 138 of Negotiable Instrument Act. According to the complainant, the

respondent herein borrowed Rs.3,00,000/- from him on 25.03.2014 and for the discharge of the said loan, he had issued two cheques. The cheque bearing No.185373 dated 25.04.2014 is for Rs.1,00,000/-. The cheque bearing No.185386 dated 30.06.2014 is for Rs.2,00,000/-. The cheques when presented for encashment. They were dishonoured by the Bank citing ''payment was stopped by the drawer''. Thereafter he lodged the complaints after issuing legal notices. In support of his case, the petitioner examined himself as PW1. The respondent marked Exs.D1 to D3.

2. The case of the respondent is that the petitioner was his former employee and the respondent borrowed Rs.3,00,000/-in the year 2010 and at the time of taking the loan, he handed over two signed cheques and they were misused by the complainant and the present complaints were filed using those cheques.

3. The trial court after considering the materials made available before it, held that the petitioner has failed to prove the case beyond reasonable doubt.

4. Aggrieved by the judgments, the complainant is likely to

prefer appeal, he filed the present petitions seeking special leave.

5. The learned counsel for the petitioner would submit that the trial court wrongly placed the burden on the complainant that the trial court ignored the reliable evidence adduced by the petitioner/complainant. According to him, the findings recorded by the trial court are perverse and liable to be set aside.

6. The learned counsel for the respondent would submit that the trial court has correctly considered the entire material made available before it, and reached just conclusion and the same does not warrant any interference.

7. It is not in dispute that the cheques in question belong to the respondent and they bear his signature. Therefore, in terms of Section 139 of the Negotiable Instruments Act, it has to be presumed that the cheques were issued for the discharge of lawful liability. The trial court regarded a finding to the effect that the presumption was rebutted by the respondent by adducing sufficient evidence. It is seen from the judgment of the trial court that the petitioner/complainant received payments from the respondent through Bank. Ex.D3 is the statement

of accounts of the respondent issued by Axis Bank. On 26.06.2014, the complainant received Rs.1,20,000/- from the petitioner by way of cheque and the receipt of this amount was admitted by the complainant.

8. It is the definite case of the respondent that he borrowed some amount from the complainant in the year 2010 and received the cheques. He has proved his defence by producing the statement of accounts to show that he has made payment. As per Ex.D3 payment was made on 26.06.2014, but the cheques in question dated 25.04.2014 and 30.06.2014.

9. It has not been shown by the complainant that the payment made on 26.06.2014 relates to some other transactions. In the light of the evidence adduced by the respondent, it can be concluded that the respondent has discharged his onus to rebut the presumption under Sections 118 and 139 of Negotiable Instruments Act. Once the petitioner rebutted the presumption, it is for the complaint to prove that he has in fact lent Rs.3,00,000/- on 25.03.2014, except the oral testimony of the complainant, there is no other reliable materials to show that he has lent Rs.3,00,000/-.

10. The trial court after a analysis of the entire materials held that the respondent has discharged his burden and the onus shifted to the complainant and he failed to prove his case that he lent Rs.3,00,000/-. A careful reading of the judgment of the trial court would not indicate that it has omitted to consider any evidence made available before it. Therefore, the findings, in my considered view, cannot be said to be perverse. The trial court has taken a possible view on the basis of the evidence on record.

11. Therefore, I hold that it is not a fit case to grant leave and the petitions are liable to be dismissed. Accordingly, both the criminal original petitions are dismissed.

25.07.2017 Index:Yes/No Internet:Yes/No ssn

N.AUTHINATHAN, J., ssn To

1. The Judicial Magistrate, Fast Track Court No.I, Erode.

2. The Public Prosecutor, High Court, Chennai.

Crl.O.P.Nos.2813 and 2814 of of 2017

25.07.2017