CRL A/490/2017 of C.SURENDARAMOORTHY,AGED 43 YRS Vs K.VENKATACHALAPATHI, AVED 49 on 28 December 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

CORAM

THE HONOURABLE MR.JUSTICE R. SURESH KUMAR

Crl.A.No.490 of 2017

C.Surendaramoorthy ... Appellant / Complainant Vs K.Venkatachalapathi

... Respondent / Accused

Criminal Appeal filed under Section 378(4) of the CriminalProcedure Code against the order and Judgment of acquittal,dated 23.01.2017 on the file of the Principal Sessions Judge,Krishnagiri in Crl.A.No.22 of 2016 setting aside the sentenceand Judgment of conviction, dated 15.03.2016 on the file of theJudicial Magistrate No.II, Krishnagiri in S.T.C.No.366 of 2014.

For Appellant : Mr.S.Satish

For Respondent : Mr.N.Elayaraja

This Appeal has been preferred against the order andJudgment made by the Principal Sessions Court, Krishnagiri inCrl.A.No.22 of 2016 by Judgment, dated 23.01.2017 by and underwhich the first appellate Court has reversed and set aside theJudgment and conviction made by the Judicial Magistrate No.II,Krishnagiri in S.T.C.No.366 of 2014, dated 15.03.2016.

2. The complainant is the appellant herein and the accusedis the respondent and they would be called as complainant andaccused respectively for the sake of convenience.

3. The case of the complainant is that, the accusedapproached the complainant requesting for loan for urgent needfrom the complainant for a sum of Rs.12 lakhs. Accordingly, thecomplainant gave Rs.12 lakhs by cash to the accused on05.02.2012 and on the same date, the accused had executed a pro-

note (Ex.P.5), whereby he agreed to repay the said loan ondemand with interest at the rate of 24% p.a (2% per month).

4. It is the further case of the complainant that, as agreedor assured, since the accused did not come forward to repay thesaid loan amount to the complainant, in spite of the repeateddemand in this regard, the complainant issued a legal notice,dated 09.03.2013 (Ex.P.6) calling upon the accused to repay theloan amount together with the agreed interest within 10 daysfrom the date of receipt of the said notice.

5. On receipt of the said notice by the accused on12.03.2013 (Acknowledgement card Ex.P.7), he did not immediatelycome forward to return the amount. However on 15.02.2014, theaccused had issued a cheque for a sum of Rs.8,50,000/- drawn inCanara Bank, Krishnagiri branch with Cheque No.153392 as a partpayment stating that, since the accused was having only thatmuch amount, i.e., Rs.8,50,000/- in his bank account, he hadissued the cheque for part payment.

6. Believing the words of the accused, it is the case of thecomplainant that, he deposited the said cheque on 17.03.2014 athis bank, namely Bank of India, Alapatty Branch. However thesaid cheque was returned on 21.03.2014 by his Bank with theendorsement that the "Funds Insufficient".

7. Since the cheque was returned for want of sufficientfunds, the complainant had chosen to issue statutory noticeunder Section 138(b) of the Negotiable Instruments Act (In short"NI Act") on 27.03.2014 (Ex.P.3) calling upon the accused torepay the said sum of Rs.8,50,000/- (being the cheque amount)within 15 days from the date of receipt of the notice.

8. Having receipt of the said notice on 29.03.2014(Acknowledgment (Ex.P.4) by the accused, he did not come forwardto pay the cheque amount or has not even chosen to issue anyreply notice.

9. Therefore the case of the complainant was that, theaccused deliberately had issued the cheque knowing well that hisaccount did not have enough money to honour the cheque issued byhim and even after the statutory notice was given under Section138(b) of NI Act, since the accused did not come forward tosettle the amount, the presumption is that, the accused hascommitted the offence punishable under Section138 of the NI Act,accordingly a complaint was filed under Section 138 of the NIAct by the complainant before the trial Court, which was takenon file in S.T.C.No.366 of 2014.

10. Before the trial Court, two witnesses were examined bythe side of the complainant, i.e., P.W.1 and P.W.2 and 7documents, i.e., Ex.P.1 to Ex.P.7 were marked. On the side ofthe defence, i.e., accused, 7 witnesses were examined, i.e.,D.W.1 to D.W.7 and 3 Exhibits were marked, i.e., Ex.D.1 toEx.D.3.

11. The trial Court, after having completed the trial hasgiven its Judgment and conviction on 15.03.2016 whereunder thetrial Court found the accused guilty for the offence punishableunder Section 138 of the NI Act and accordingly, convicted andsentenced him to undergo 12 months S.I.

12. As against the said conviction and Judgment made by thetrial court, the accused preferred appeal in Crl.A.No.22 of 2016before the Principal Sessions Judge, Krishnagiri. The SessionsCourt, i.e., the first appellate court, after having heard theappeal, decided the same by its Judgment, dated 23.01.2017whereby the first appellate Court has set aside the Judgment andconviction made by the trial Court and set the accused free fromthe guilt of the alleged offence punishable under Section 138 ofthe NI Act. As against the said Judgment made by the firstappellate Court, the present appeal has been filed by thecomplainant.

13. It is the definite case of the complainant that, theaccused borrowed a sum of Rs.12 lakhs by way of cash on05.02.2012 and on the same date, the accused executed the pro-note, i.e., Ex.P.5, whereby he agreed to repay the same withinterest at the rate of 2% per month. Since the said amount wasnot returned by the accused despite several demands made in thisregard, ofcourse orally, the complainant issued a legal noticeon 09.03.2013 (Ex.P.6) and the same was received andacknowledged by the accused on 12.03.2013, i.e., Ex.P.7. Howeverhe did not immediately come forward to settle the amount,ofcourse belatedly he issued the cheque in question on15.02.2014 for a part sum, i.e., for Rs.8,50,000/- and the saidcheque was presented in his bank account by the complainant on17.03.2014, the same was returned on 21.03.2014 for the reason"Funds Insufficient".

14. It is also the definite case of the complainant that,subsequently the complainant had issued statutory notice underSection 138(b) of the NI Act on 27.03.2014. However the accusedneither has come forward to pay back the cheque amount nor hadcome forward even to issue any reply to the said notice, therebyhe has committed the offence punishable under Section 138 of theNI Act. Accordingly the complaint was filed and after trial, the

trial Court found him guilty and sentenced him to undergo 12months Simple Imprisonment.

15. In this context, the complainant, who was examined asP.W.1, in his cross-examination stated that, he was having anagricultural land of 4 3/4 acres, out of which he is gettingconstant income per year to the extent of Rs.2 to 3 lakhs. Thatapart, he was also running a milk vending business, by which hewas able to earn Rs.20,000/- per month and since he has smallfamily having wife and two children who are only school going,he was able to save considerable amount from the income heearned from the said sources. The complainant's further case, ashe deposed before the trial Court was that, he was havingaccount in three Banks including the bank where the cheque inquestion was deposited. On 05.02.2012, he had given the loan ofRs.12 lakhs, by way of cash to the accused, as against which theaccused executed the pro-note. He further deposed that, out ofthe Rs.12 lakhs, Rs.10 lakhs amount, the complainant was able tomobilise from his savings, which he had kept in house and theremaining Rs.2 laksh, he mobilised by pledging his jewel,thereby he was able to mobilise Rs.12 lakhs and the same waspaid in cash to the accused.

16. In this context, it is to be noted that, the accused wasexamined as D.W.1, who has deposed in his chief examinationthat, he did not receive any money from the complainant. He didnot also execute any pro-note in favour of him and the signaturefound in Ex.P.5, pro-note was not belong to him. Instead, theD.W.1, i.e., the accused has come out with a defence theorystating that, there had been land dispute between the accusedand one Veeramani and Kathiravan, who are D.W.2 and D.W.3 and inthis regard, in order to get amount of Rs.7 lakhs, which wasrequired at that time to the accused, he approached the saidVeeramani through one of his friend Eswaramoorthy, D.W.4 and atwhose instance, the property of the accused was given power ofattorney to D.W.2 and in order to give security for the amountpaid by that D.W.2, three number of cheques were issuedincluding the cheque in question.

17. In fact the theory projected by the accused side hasbeen supported by D.W.4, Eswaramoothy, who, according to theaccused, acted as a middle man-cum-common friend between D.W.1accused, D.W.2 and D.W.3. In this context, the deposition ofD.W.4, Eswaramoorthy both in his chief examination as well ascross-examination are extracted here under :

"K/tp/ ehd; brd;idapy;. Rg;igah efh;. Kj;jypghf;fk; vd;wKfthpapy; FoapUe;J tUfpnwd;/ ehd; rutzh buz;l; v fhh;vd;w thliff;F tpLk; gzpbra;J tUfpnwd;/ vdf;F

bt';flhrygjp vd;gtiu 5 tUl';fshft[k;. tPukzp vd;gtiu 6tUl';fshf bjhpa[k;/ fjputz; vd;gtiu 3 tUl';fshf bjhpa[k;/ tPukzp vd;gth; vdJ ez;gh; K:ykhf vdf;FmwpKfkhdhh;/ fjputd; vd;gth; tPukzpapd; mf;fh kfd; vd;wKiwapy; vdf;F gHf;fkhdhh;/ bt';flhrygjp vd;gth; mthpd;brhj;ij mlkhdk; itj;J U:/7.00.000 gzk; ntz;Lk; vd;dplk;nfl;lhh;/ ehd; tPukzp vd;gtiu mQqfp mtUf;F fld;bfhLf;fyhkh vd;W nfl;nld;/ ehd; tPukzpaplk; Vw;fdnt Ie;Jyl;rk; fld; th';fpapUe;njd;/ tPukzp ,lj;ij ghh;j;J kjpg;g[ nghl;L fld; bfhLg;gjhf brhy;yp vd;dplk; xU epge;jidtpjpj;jhh;/ ehd; tPukzpaplk; gzk; fld; th';fp vd;dhy; 2 21-2 tUl';fshf bfhLf;f Koatpy;iy/ vdnt me;jbt';flhrygjpapd; ,lj;ij tPukzpapd; bgaUf;F mlkhdkhfitf;Fk;go bt';flhryk; tPukzpf;F gth; gj;jpuk;vGjpf;bfhLj;jhy; 12.00.000 gzk; jUtjhft[k;. mjpy; VGyl;rj;ij bt';flhryj;jpw;F bfhLj;Jtpl;L ehd; tPukzpf;FbfhLf;f ntz;oa Ie;J yl;rj;ij fHpj;JtpLtjhft[k; tPukzpbrhd;dhh;/ mjd;W bt';flhryKk; xj;Jf; bfhz;lhh;/ vdntehd; vd;Dila 812647. 812649 vd;w rpl;o a{dpad; t';fpu';fuh$g[uk; fhnrhiy ,uz;il btw;W fhnrhiyahfbt';flhryj;jplk; bfhLj;Jtpl;nld;/ bt';flhryk; mthpd; 3fhnrhiyfis tPukzpf;F brf;a{hpl;oahf btw;W fhnrhiyahfbfhLj;jhh;/ me;j fhnrhiyfspd; vz;fs; 153391. 153392. 153393MFk;/ bt';flhrygjp tPukzpf;F vGjpf;bfhLj;jjpy; ehd; rhl;rpifbahg;gk; nghl;Ls;nsd;/ mjd; mog;gilapy; tPukzp fjputd;vd;gtUf;F gpwg;gpj;J bfhLj;j fpua xg;ge;j Mtzj;jpy; ehd;rhl;rpahf ifbahg;gk; nghl;Ls;nsd;/ 25/7/12 me;j njjpapy;bfhLj;njd;/ mnj njjpapy; jhd; ehd; vdJ ,U fhnrhiyfisbt';flhryj;jpw;Fk;. bt';flhryk; mthpd; 3 fhnrhiyfistPukzpaplk; bfhLj;j njjp MFk;/ F/tp/ ,e;j tHf;fpy; vdf;F rhl;rp brhy;y miH;ghiz te;jjhvd;why; ehd; btspa{hpy; ,Ue;jjhy; bgwtpy;iy/ me;j jftiybt';flhryk; bfhLj;jhh;/ bt';flhryk; nfl;Lf;bfhz;ljpd;nghpy; ehd; rhl;rp brhy;y te;njdh vd;why; rk;kd;te;Js;sjhf brhd;djhy; te;njd;/ me;j gth; gj;jpukhdJgjpt[ bra;ag;gl;l Mtzk; vd;why; rhpjhd;/ me;j gth;gj;jpukhdJ fld; th';Ftjw;fhf gpwg;gpf;fg;gl;L mJ brf;a{hpofhf bfhLf;fg;gl;lJ MFk;/ me;j gth; gj;jpuj;jpy; Rkhh;gj;J yl;rk; vd;W Fwpg;gpog;gl;oUe;jjhf vdf;F "hgfk;/ me;jgj;J yl;rj;jp rpy;yiuia ahh; ahUf;F bfhLf;f ntz;Lk;vd;W ,Ue;jJ vd;why; tPukzp bt';flhrykpUe;J gzk;th';fhjjhy; bt';flhrygjpapd; g{h;j;jp bra;ahj fhnrhiyiath';f ntz;oa mtrpak; ,y;iy vd;why; rhpay;y/bt';flhrygjp tPukzpf;F bfhLj;jjhf ehd; brhy;Yk;

19. Whereas the D.W.2 one Veeramani, in whose name evenpower was executed by the accused, has stated the following inhis cross-examination :

"vdf;F brd;idia nrh;e;j <!;tuK:h;j;jp vd;gth; K:yk;vjphpia bjhpa[k;/ vd;dplk; <!;tuK:h;j;jp vd;gth; ifkhw;Wfld; th';fpa[s;shh;/ bt';flhrygjp ifkhw;Wfld; th';fptpl;LjpUg;gp bfhLj;Jtpl;lhh;/ cj;njrkhf U:/60000 tiu bt';flhryk;fld; th';fpapUf;fyhk;/ mt;thW fld; th';Fk;nghJ vjphpve;jtpj Mtz';fSk; vdf;F vGjpf;bfhLf;ftpy;iy/nkw;brhd;d fld; jtpu ntW vd;d Kiwapy; vjphp vd;dplk;bjhlh;g[ bfhz;oUe;jhh; vd;why; vjphpapd; epyj;ij tpw;Wf;bfhLf;f brhy;yp <!;tuK:h;j;jp K:yk; vd;id mQqfp vjphpvdf;F gfu mjpfhu gj;jpuk; bfhLj;jhh;/ me;j gfu mjpfhugj;jpuk; gpwg;gpj;J bfhLj;j njjpapnyna fjputd; vd;gtUf;Fehd; fpua xg;ge;j gj;jpuj;ij gpwg;gpj;J bfhLj;njd;/ me;jfjputd; vdf;F khkh kfd; Mthh;/ ehd; me;j gfu mjpfhugj;jpuj;ij gad;gLj;jp fjputd; vd;gtUf;F bt';flhrygjpapd;brhj;ij fpuakhf bfhLj;njd;/"

20. So according to the accused, the defence theory wasthat, the accused was in need of money and therefore, he,through D.W.4, Eswaramoorthy approached the D.W.2, Veeramani,who already claimed to have paid a sum of Rs.5 lakhs as loan toD.W.4, Eswaramoorthy and when the Eswaramoorthy, D.W.4approached D.W.2, Veeramani requesting Rs.7 lakhs for theaccused D.W.1, D.W.2 wanted some landed security and thereforepower was executed by the accused for his land towards D.W.2,who in turn had sold the property by using the power to and infavour of D.W.3, who is none other than the nephew of D.W.2.

21. According to the defence theory, which has been fullysupported by D.W.4 that, the arrangement was that, in lieu ofthe land for which power was executed by the accused, apart fromthe payment of Rs.7 lakhs to the accused, the D.W.2 Veeramaniwanted to set off Rs.5 lakhs loan payable by D.W.4,Eswaramoorthy. Therefore the total amount of Rs.12 lakhs wasthus transacted.

22. It is the further theory of the defence that, during thesaid transaction of getting money as against the power executedby the accused as security, the D.W.1 accused claimed to haveissued three cheque leaves and empty pro-note. The three chequenumbers were 153391, 153392 and 153393. Those cheques accordingto D.W.4 were issued on 25.07.2012. Among the three chequeleaves, the number of cheque in question, i.e., 153392 is alsoincluded.

23. Therefore the said cheque had been misused by thecomplainant as the D.W.2 and the complainant were friends andrelatives. Therefore according to the defence theory, there hadbeen no money transaction between the complainant and theaccused, as the accused never sought for any monetary help fromthe complainant and there was no occasion to get any money fromthe complainant.

24. The further theory projected by the defence side beforethe trial Court was that, since it was claimed by thecomplainant that the entire money, i.e., Rs.12 lakhs were paidby way of cash, the complainant should have explained as to howand from which source, he was able to mobilise the money. Inthis regard, even though it was claimed by the complainant that,he was having agricultural landed property in his village, outof which he would be earning Rs.2 to 3 lakhs per year and alsohe was having milk vending business, out of which he was able toearn Rs.20,000/- per month, there had been no proof to thateffect filed before the Court and therefore according to thedefence side, nothing had been proved in this regard. Thereforethe accused side raised the point before the trial Court that,the complainant since was not able to establish that, he washaving the means to mobilise such huge amount and to pay by wayof cash, the claim of the complainant that, he had paid themoney which is an enforceable debt, cannot be accepted.

25. With these facts, both the trial Court as well as theappellate Court have decided the issue. The trial Court in facthas taken into account all these aspects projected by both thecomplainant side as well as the accused side.

26. The trial Court has found contradiction between thedeposition of D.W.1 and D.W.4. In this context, it has given thefollowing finding :

"vrh1. ,uz;L fhnrhiyfis vrh3lk; bfhLj;jjhft[k;. mjpy;xU fhnrhiyia gad;gLj;jpjhd; ,e;j tHf;F jhf;fy;bra;ag;gl;Ls;sJ vd;W vrh1 brhy;ypa[s;s epiyapy;. vrh4 ,t;tHf;F fhnrhiyiaa[k; kw;WkpU fhnrhiyfSkhf bkhj;jk; 3fhnrhiyfis vrh1. vrh2lk; bfhLj;jjhf mspj;Js;s rhl;rpak;Kuz;gl;l tpjj;jpy; cs;sJ vd;W ,e;ePjpkd;wk;jPh;khdpf;fpwJ/"

27. The trial Court also found fault with the accused fornot having responded when the legal notice was issued even priorto the alleged issuance of the cheque by way of notice, dated09.03.2013. i.e., Ex.P.6 and in this regard, the finding of thetrial Court reads thus:

"krhM5y; fz;l bjhifia ntz;o KiwaPl;lhsh; jug;gpy;

29. The trial Court also has proceeded with, on the footingthat the signature of the accused in Ex.P.1, Cheque was notdenied by him, as he had claimed that Ex.P.1 was given to D.W.3by way of empty cheque and in this regard, the evidence of D.W.3was taken into account and based on which, the learned Judge ofthe trial Court has given the following findings : "krhM1y; cs;s ifbahg;gkhdJ vjphp jug;gpy; kWf;fg;gltpy;iy/

Mdhy;. krhM1 MdJ vjphpahy; vrh3 vd;gtUf;F btw;Wf;fhnrhiyahf bfhLf;fg;gl;lJ vd;W vjphp jug;gpy; mtuJrhl;rpaj;jpy; brhy;yg;gl;Ls;sJ/ vrh3. btw;Wf;fhnrhiyahfbfhLf;fg;gl;l krhM1I KiwaPl;lhshplk; bfhLj;J. KiwaPl;lhsh;mjid epug;gp vrh3f;fhf ,e;ePjpkd;wj;jpy; ,e;j tHf;ifjhf;fy; bra;Js;sjhf vjphp jug;gpy; thjplg;gl;lJ/ vjphp jug;gpy;vrh3 ,t;tHf;fpy; rhl;rpahf tprhhpf;fg;gl;Ls;shh;/ vrh3d;Kjy; tprhuiz rhl;rpaj;jpy;. "vjphp fpiua xg;ge;jk; xd;iwgpwg;gpj;J bfhLj;jnghJ vdf;F bjhpa[k;/ bt';flhrygjp kw;Wk;vrh1 ,UtUk; vdf;F fpiua xg;ge;jk; gpwg;gpj;Jf; bfhLj;jdh;/me;j fpiua xg;ge;j gj;jpuk; gpwg;gpj;J bfhLj;j gpwF 6.7khj';fs; fHpj;J vdf;F fpiuak; bra;J bfhLf;fg;gl;lJ/mt;thW vdf;F fpiuak; Md gpwF epyj;ij vdf;F tplkWf;fpwhh;fs; vd;W fhty; epiyaj;jpy; VJk; g[fhh;bfhLf;ftpy;iy/ ehd; bt';flhrygjp vd;gthpd; kPJ mtuJmz;zhh; epyj;jpy; kPJ bry;yf;TlhJ vd;W jLj;jjhy; jhd;g[fhh; bfhLj;njd;/ me;j g[fhhpd; mog;gilapy; nghyPrhh;vd;id tprhhpj;jhh;fs;/ me;j g[fhhpd; mog;gilapy; Kot[ vJt[k; vLf;fg;gl;ljhf vdf;F bjhpatpy;iy/ g[fhhpd; Kotpy;vjphpaplk; 12 yl;rk; gzk; th';fpf; bfhz;L eh';fs; tpl;Lf;bfhLf;fg;gl;lJ vd;W igry; bra;ag;gl;lJ vd;w vjphpbrhd;dhy; jtwhFk;/ nknyfz;lthW. KobtLj;J ehd; fhty;epiyaj;jpy; ifbaGj;J nghl;nld; vd;why; jtwhFk;/ thjpvdf;F 4.5 khj';fshf bjhpa[k;/ vdJ khkh K:yk; vdf;FgHf;fk;. bt';flhrygjp. <!;tuK:h;j;jpaplk; vrh2k; fld;th';fpajhf vjphp brhd;dhy; <!;tuK:h;j;jp th';fpa[s;shh;/Mdhy;. vjphp th';fpajhf vdf;F bjhpatpy;iy vd;W brhy;ypa[s;shh;/"

30. Based on these findings, the trial Court has come to theconclusion that, the accused was found guilty, therefore theCourt has convicted him.

31. However the appellate Court, while re-appreciating theevidence and also having gone through the findings given bytrial Court has mainly proceeded on the footing that, whetherthe complainant was able to prove that, he was having the sourceto make the payment of Rs.12 lakhs by way of cash.

32. In this context, the following findings have been givenby the first appellate Court, which reads thus :

34. The first appellate Court also have gone into the factthat, in order to establish that the complainant was having thelanded property, out of which he was able to get the revenue, the complainant even though produced the bank passbook of thecomplainant before the first appellate Court, it was factuallyfound by the first appellate Court that, for the period from06.07.2011 to 04.08.2011, the account was having the maximumbalance of Rs.1,64,000/- only and after 2011, the account didnot have any amount. However it was claimed by the complainantthat, he had taken the money from the Bank. In this context, thefindings of the first appellate Court reads thus :

mtu; jd; ifapy; U:/10.00.000 nrkpj;J itj;jpUe;jjhf mijvLj;Jf; bfhLj;jjhf Twg;gl;Ls;sJ/ thjpf;F brhj;Jf;fnshtUkhd';fnsh ,y;yhj epiyapy; t';fpapYk; ve;j gzKk; ,y;yhj epiyapy; 5/2/2012 md;W g[fhu;jhuUf;F U:/12.00.000 fld;bfhLg;gjw;F ve;j trjpa[k; ,y;iy vd;gJ thjp jug;g[ rhl;rpaj;jpypUe;Jk; vjpup jug;g[ rhl;rpaj;jpypUe;Jk;bjspthfpwJ/"

35. By giving all these findings, the first appellate Courthas come to the conclusion that, the complainant has not provedhis means for making the payment to the accused and therebythere is no enforceable debt between the complainant and theaccused and on that score, the Court had come to the conclusionthat, the complainant had not proved that the cheque in questionhad been issued by the accused for the purpose of clearing theenforceable debt towards the complainant and thereby decided toset aside the Judgment and conviction made by the trial Court.

36. After having analysed the evidence adduced before thetrial Court, it is to be pointed out that, the case of thecomplainant that, a sum of Rs.12 lakhs was paid as the loan tothe accused. It is also the case of the complainant that, theloan carried interest payable by the accused at the rate of 2%per month, i.e., 24% per year. It is also the case of thecomplainant that, since the accused did not pay back the money,despite several request, the complainant had chosen to issue anotice on 09.03.2013 in Ex.P.6. Only pursuant to the saidnotice, the accused had given the cheque in question on15.02.2014.

37. In this regard, it is to be noted that, in the notice,dated 09.03.2013, the complainant called upon the accused to payback the money within a period of 10 days, otherwise appropriatelegal action both under civil law as well as criminal law wouldbe initiated against the accused.

38. However in spite of the notice having been received bythe accused on 12.03.2013, the accused did not come forwardeither to pay the amount or had issued any guarantee or chequeimmediately. Nearly after one year, i.e., on 15.02.2014, it isclaimed by the complainant that, the accused had given thecheque in question.

39. Even though the amount claimed to have been borrowed bythe accused was a huge sum of Rs.12 lakhs and the same was givenfor interest at the rate of 24% p.a., no prudent man could havebeen silent for years together without taking any steps torecover the money.

40. Moreover even though the cheque was given on 15.02.2014,the same was deposited at the complainant's bank only on17.03.2014, i.e., after one month. From the side of thecomplainant, no plausible explanation had been given, as to whyno action was initiated against the accused for one year period,even after the 09.03.2013 notice, i.e., Ex.P.6 was received bythe accused. Also there has been no explanation as to why thecomplainant kept the cheque in question ideally withoutdepositing the same for one month.

41. That apart, as has been rightly pointed out by the firstappellate Court, even though the bank statement had beenproduced by the complainant, the maximum amount during therelevant period, i.e., from 06.07.2011 and 04.08.2011 at theaccount of the complainant was only Rs.1,64,000/-. It is alsothe finding of the appellate Court that, after 2011, there wasno money in the account of the complainant. It is also thefinding of the first appellate Court that, during the year 2015and 2016 there are endorsements in the accounts, stating that 20sovereigns of gold jewels had been pledged, where as no suchendorsement available to show that the complainant pledged thejewels in the year 2012.

42. In this context, it can be easily presumed that, eventhough it was claimed by the complainant that, he mobilised thefund of Rs.12 lakhs by way of savings and also by way of theloan obtained by pledging the jewels from the bank, absolutelythere is no proof to show that, such a mobilisation had beenundertaken by the complainant, to arrive at a conclusion that,at relevant point of time, he was having the cash of Rs.12 lakhsto give it to the accused.

43. That apart, at least, the D.W.4 has clearly deposedthat, only through him, on behalf of the accused, the D.W.2 wasapproached to make a request for a sum of Rs.7 lakhs for hisneeds as a loan. Even prior to that, he borrowed a sum of Rs.5lakhs from D.W.2 and therefore an arrangement seems to have beenmade under which the accused had executed a power in favour ofD.W.2, who in turn executed the sale in favour of D.W.3, who isnone other than his nephew and the further arrangement betweenthe parties of D.W.2 and the accused as well as D.W.4 was that,Rs.7 lakhs would be given to D.W.2 by the accused and Rs.5 lakhsalready advanced to D.W.4 would be adjusted, all together Rs.12lakhs was made in the credit of the accused by D.W.2 and in lieuof that, the land of the accused by using the power was settledin favour of the D.W.3, who is none other than the nephew ofD.W.2

44. In order to substantiate these defence theory, theD.W.4's evidence was very cogent and believable, which hasalready been extracted herein above. Even though somediscrepancies were there in the evidence of D.W.1 and D.W.3,however it can also be noted that D.W.3 also has specificallystated that, only from D.W.2, the D.W.4 obtained loan and theaccused did not receive any loan.

45. Like that, D.W.2 also in cross-examination had statedthat he never met the complainant. He also denied the suggestionmade on the side of the defence that, the two empty cheques andone power document was given by the accused to the D.W.2.

46. Though these deposition of D.W.2 and D.W.3 to someextent, contra to the evidence of D.W.4, the cogency andbelievability established by the evidence of D.W.4, in theopinion of this Court, can be taken into account.

47. Further, as has been exhaustively described by the firstappellate Court, the complainant has not at all proved, even tothe extent of the decree of preponderance of probability, thathe had enough means to mobilise the funds to pay the amount tothe extent of Rs.12 lakhs.

48. It is further to be noted that, even according to thecomplainant, out of the 12 lakhs Rupees, the cheque was issuedonly for Rs.8.5 lakhs. Therefore the remaining principal wasRs.3.5 lakhs and the agreed interest since was 2% per month,i.e., 24% p.a and the interest payable by the accused, accordingto the complainant has to be from 05.02.2012, the date ofalleged payment of loan till 15.02.2014, i.e., the date ofalleged issuance of cheque itself would come aboutRs.5,76,000/-.ThereforetheremainingprincipalofRs.3,50,000/- and the interest of Rs.5,76,000/- put togetherwould make a grand total of Rs.9,26,000/- still due to bepayable by the accused even at the time of issuance of thealleged cheque in question. However, no attempt was made by thecomplainant to recover the said amount of Rs.9,26,000/-, whichwas a due according to the complainant, by filing any Civil Suitin this regard.

49. No notice has been given subsequent to the 138proceedings initiated by the complainant stating that, apartfrom the said amount of Rs.8,50,000/- covering under the chequein question, the remaining balance principal as well as theinterest comes about Rs.9,26,000/- should be paid by the accusedand for the said amount, certainly action could have beeninitiated.

50. But the fact remains that, no attempt was made by thecomplainant to recover the said money, that is the remainingprincipal and the interest, which is not a small amount as itcomes about Rs.9,26,000/-.

51. It is further to be noted that, in this context, eventhough the complainant received back the original pro-note, i.e,Ex.P.5 on the ground that the original pro-note was necessary tofile a Civil Suit against the accused for recovery of theamount, admittedly the complainant did not make any attempt toinitiate any civil proceedings for the recovery of the moneyfrom the accused.

52. All these aspects would go to show that, even though tosome extent, there are some evidences against the accused andalso based on the admission of the signature of the cheque inquestion, there is initial statutory presumption in favour ofthe complainant in this case, the same has been successfullyrebutted by the accused side by bringing a believable defencetheory as has been discussed above.

53. Law is well settled in this regard that, in case ofacquittal made by the lower Court and even though there arepossibility of two views, i.e., one in favour of the complainantand another one in favour of the accused, the Court must veryslow in interfering with the acquittal given by the Court belowand the decision shall be taken by the higher forum only infavour of the accused and not in favour of the complainant. Thislegal proposition has been given in number of decisions.

54. In this context, I had an occasion to consider theprinciple as underlined above in a similar NegotiableInstruments case, in the matter of N.Lakshmi v. P.Damodarasamy,reported in 2018 (3) MWN (Cr.) DCC 117 (Mad), wherein afterfollowing the decision in M.S.Narayana Menon @ Mani v. State ofKerala reported in (2006) 6 SCC 39, I have held as follows : "33.Since the proceedings under Section 138of the Negotiable Instruments Act, ispunitive in nature and once the Court hascome to the conclusion that the accused isguilty, such conclusion has to be supportedby clear evidence. In this regard, the Lawlaid down by the Hon'ble Apex Court in M.S.Narayana Menon @ Mani v. State of Kerala andanother reported in 2006 6 SCC 39, can betaken as a precedent. The Hon'ble Apex Courtin the said Judgment cited supra has statedthat the presumption under Sections 118 and 139 shall be with the standard of proof ofpreponderance of probability only. Therelevant portions of the said Judgment areextracted hereunder:

“12. Upon consideration of various judgmentsas noted herein above, the position of lawwhich emerges is that once execution of thepromissory note is admitted, the presumptionunder Section 118(a) would arise that it issupported by a consideration. Such apresumption is rebuttable. The defendant canprove the non-existence of a consideration byraising a probable defence. If the defendantis proved to have discharged the initial onusof proof showing that the existence ofconsideration was improbable or doubtful orthe same was illegal, the onus would shift tothe plaintiff who will be obliged to prove itas a matter of fact and upon its failure toprove would disentitle him to the grant ofrelief on the basis of the negotiableinstrument. The burden upon the defendant ofprovingthenon-existenceoftheconsideration can be either direct or bybringing on record the preponderance ofprobabilitiesbyreferencetothecircumstances upon which he relies. In suchan event, the plaintiff is entitled under lawto rely upon all the evidence led in the caseincluding that of the plaintiff as well. Incase, where the defendant fails to dischargethe initial onus of proof by showing the non-existence of the consideration, the plaint 28would invariably be held entitled to thebenefit of presumption arising under Section118(a) in his favour. The court may notinsist upon the defendant to disprove theexistence of consideration by leading directevidence as the existence of negativeevidence is neither possible nor contemplatedand even if led, is to be seen with a doubt.”This Court, therefore, clearly opined that itis not necessary for the defendant todisprove the existence of consideration byway of direct evidence. 32. The standard of proof evidently ispreponderance of probabilities. Inference ofpreponderance of probabilities can be drawnnot only from the materials on record butalso by reference to the circumstances uponwhich he relies. 34.If the above said principles of the ApexCourt in both Judgments cited above, areapplied to the present case, the statutory

Analysis

findings of the Court below. If this goldenprinciple as enunciated in the Judgment citedsupra, is applied in this case, this Courthas no hesitation to hold that, there isabsolutely no scope for interference in theJudgment of the Lower Appellate Court, whereafter analyzing the material evidence indetail, the learned Judge has given Judgmentby setting aside the trial Court Judgment andsuch finding of the Lower Appellate Court asimpugned herein is neither perverse norunacceptable."

55. If the aforesaid principle is applied to the presentfacts of the case, this Court except to accept the view taken bythe first appellate Court in favour of the accused, cannot takea view in favour of the complainant, merely because the accusedadmitted the signature in the cheque in question. Since thedefence theory was given as to how the cheque were given by theaccused, which was supported clearly and cogently by D.W.4, themere acceptance of the signature cannot constitute the offencepunishable under Section 138 of the NI Act. Therefore this Courtis of the view that, the approach of the trial Court in notappreciating these aspects is erroneous. However it has beenconsidered in detail by the first appellate Court in properperspective and it has given reasoning to reach such aconclusion in favour of the accused. Therefore the said findinggiven by the first appellate Court neither be considered asperverse nor arbitrary, hence, this Court do not think that,there are grounds to interfere with the Judgment of the firstappellate Court. Hence, this Court has no hesitation to holdthat, the Judgment of the first appellate Court, which isappealed herein, is to be sustained and this appeal deserves tobe dismissed.

In the result, this Criminal Appeal is dismissed, confirmingthe Judgment, dated 23.01.2017 made by the Principal SessionsCourt, Krishnagiri in Crl.A.No.22 of 2016.

Sd/- Assistant Registrar(CCC)

//True Copy//

Sub Assistant Registrar

tsvn

To1. The Principal Sessions Judge, Krishnagiri.2. The Judicial Magistrate No.II, Krishnagiri.3. The Public ProsecutorHigh Court of Madras, Chennai. Copy to The Section Officer,Criminal Section, High Court, Madras.+1cc to Mr.S.Sathish, Advocate Sr.140Crl.A.No.490 of 2017ss[co]srg 25/01/2019