Madras High Court
K.Murali vs K.Santhanam on 6 November, 2017
Author: P.N. Prakash
Bench: P.N. Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :06.11.2017 CORAM : THE HONOURABLE MR. JUSTICE P.N. PRAKASH Crl.O.P.No.16498 of 2017 in Crl.A.Sr.No.33657 of 2017 K.Murali .. Petitioner/Complainant .. Vs .. 1.K.Santhanam 2.S.Booma .. Respondents/Accused Criminal Original Petition filed under Section 378(4) of the Code of Criminal Procedure to grant leave to file the Appeal against the Judgment of the learned XV Additional Sessions Judge, City Civil Court, Chennai dated 15.12.2016 made in C.A.No.245 of 2015 setting aside the Judgment of the learned Metropolitan Magistrate, Fast Track court No.III, Chennai dated 27.11.2015, made in C.C.No.6674 of 2010. For Petitioner : Mr.V.Viswanathan - - - - - O R D E R
There was no representation for the petitioner on 02.11.2017 and therefore, the matter was posted under the caption 'For Dismissal' today (06.11.2017). Today also, there is no representation for the petitioner and therefore, this Court perused the complaint, evidence, the judgment of the trial Court and the First Appellate Court and passes the following order.
2. For the sake of convenience, the petitioner and the respondents will be referred to as the complainant and the accused.
3. It is the case of the complainant that the first accused borrowed a sum of Rs.44,00,000/- and in order to discharge the said debt, the first accused issued a cheque dated 06.01.2010, for Rs.20,00,000/- and the second accused, who is the wife of the first accused, gave a cheque dated 06.01.2010 for Rs.24,00,000/-. The complainant presented the cheques and both the cheques were returned unpaid on the ground that the accounts were closed. The complainant issued a statutory notice under Section 138 of the Negotiable Instruments Act on 20.01.2010, for which, the accused issued a reply notice dated 03.02.2010, denying the allegations.
4. The complainant initiated a prosecution in C.C.No.6674 of 2010, under Section 138 of the Negotiable Instruments Act before the Metropolitan Magistrate, Saidapet, Fast Track Court No.III, Chennai. On receipt of summons, both the accused appeared before the trial Court and they denied the substance of accusation against them. In order to prove the offence, four witnesses were examined on behalf of the complainant and twelve exhibits were marked. When the accused were questioned under Section 313 Cr.P.C., about the incriminating circumstances appearing against them, they denied the same. On behalf of the accused, two exhibits were marked.
5. The trial court, after considering the evidence adduced by the complainant, convicted the accused under Section 138 of the Negotiable Instruments Act and sentenced them to undergo six months imprisonment and also to pay the cheque amounts as compensation, to the complainant. Aggrieved by the conviction and sentence, the accused filed criminal appeal in Crl.A.No.245 of 2015, which was heard by the learned XV Additional and Sessions Judge, City Civil Court, Chennai, who acquitted the accused by order dated 15.12.2016, aggrieved by which, the complainant is before this Court.
6. Before going into the merits of the case, it may be necessary to state that in an appeal against acquittal, granting of special leave is not automatic and this Court can grant special leave only if it is satisfied that there has been mis-appreciation of evidence by the Court below and that the order of acquittal is perverse.
7. It may be necessary to extract the following passage from the judgment of the Honourable Supreme Court in Arulvelu & another vs. State rep. by the Public Prosecutor and another [2009 (10) SCC 206]:
"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."
8. Bearing in mind the above said law laid down by Supreme Court, if the evidence adduced by the complainant is viewed analytically, it is seen that even in the complaint, the complainant has not stated as to when the sum of Rs.44,00,000/-was given as loan to the accused. The complainant has merely stated that he gave a loan of Rs. 44,00,000/- to the accused and in discharge of said loan, the accused has given the impugned cheques. The complainant has not produced even a shred of documentary evidence like promissory note or any other document to show that there was a loan transaction between the complainant and accused. In fact, the accused had sent a reply notice dated 03.02.2010, in which, he has completely denied the very loan transaction alleged by the complainant.
9. In such view of the matter, it was incumbent on the complainant to state in the complaint as to the date or dates on which the huge loan of Rs.44,00,000/- was given to the accused. That apart, in the cross-examination of the complainant, he has admitted that his yearly income is Rs.1,60,000 to Rs.2,00,000/-. He has further admitted that he gave Rs.44,00,000/- by cash, though he knew that any payment over and above Rs.20,000/- should be paid by cheque. That apart, the accused has satisfactorily established that the two bank accounts were closed by them way back in the year 2003 itself and that the cheques according to the complainant, were issued on 06.01.2010. In the cross-examination of the complainant, the accused have taken a stand that the complainant was a close relative and that he used to come to their home frequently and thereby, taken away the two impugned cheques and then, he had initiated the present prosecution. When the complainant was asked in the cross-examination as to how he raised Rs.44,00,000/-, he has stated that he took money from seven or eight persons on different dates in order to give such a huge loan to the accused. All these aspects have weighed in the mind of the First Appellate Court, while acquitting the accused. Thus, this Court does not find any perversity, much less any serious infirmity or mis- appreciation of evidence by the First Appellate Court.
10. When there are two views possible, one in favour of the accused and the other in favour of the complainant, the view favouring the accused should be considered in an appeal against acquittal. Hence, this is not a fit case to grant special leave.
Accordingly, this petition is dismissed. Connected Crl.A.Sr.No.33657 of 2017 is closed.
06.11.2017 Index : Yes/No Internet : Yes To
1. The XV Additional Sessions Judge, City Civil Court, Chennai.
2. The Metropolitan Magistrate, Fast Track Court No. III, Chennai.
P.N. PRAKASH, J.
smi Crl.O.P.No.16498 of 2017 06.11.2017