Madras High Court
J.Suresh vs K.Singarayan on 29 November, 2018
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.11.2018
CORAM:
THE HONOURABLE MR. JUSTICE RMT.TEEKA RAMAN
Crl.A.(MD)No.261 of 2009
J.Suresh : Appellant / Complainant
Vs.
K.Singarayan : Respondent/Accused
PRAYER: Criminal Appeal is filed under Section 378 of Criminal Procedure
Code, to call for the records from the lower Court and set aside the
judgment of the lower Court passed by the learned Principal District Munsif
cum Judicial Magistrate, Eraniel, Kanyakumari District in S.T.C.No.3065 of
2004 dated 09.04.2008 by allowing this appeal.
For Appellant : Mr.C.K.M.Appaji
For Respondent : Mr.V.M.Balumohan Thambi
ORDER
This Criminal Appeal has been filed against the order of the learned Principal District Munsif cum Judicial Magistrate, Eraniel, Kanyakumari District, dated 09.04.2008 made in S.T.C.No.3065 of 2004.
2.The brief facts of the case is as follows:-
http://www.judis.nic.in The appellant / complainant preferred the complaint before the learned Principal District Munsif cum Judicial Magistrate, Eraniel, 2 Kanyakumari District in S.T.C.No.3065 of 2004 alleging that the respondent / accused has borrowed a sum of Rs.4,00,000/- from the appellant / complainant on 20.05.2004. To discharge the said liability the respondent / accused has issued a cheque [Ex.P1] dated 20.07.2004 to the complainant. When the complainant presented the said cheque for collection, it was returned with an endorsement 'insufficient fund'. After issuing statutory notice, the complainant has chosen to file the present private complaint before the learned Principal District Munsif Cum Judicial Magistrate, Eraniel, Kanyakumari District. However, the trial Court disbelieved the evidence of the appellant and dismissed the complaint and acquitted the respondent / accused and hence, the present appeal has been filed.
2.The learned counsel for the appellant / complainant would submit that the accused has not taken any effort to rebut the statutory presumption for taking inconsistent view and the trial Court, without any evidence so as to ascertain eventual circumstances of the complaint, merely relying on the chief examination of the witnesses, has wrongly come to the conclusion that the private complainant is not a man of means and not capable of lending a huge loan of Rs.4,00,000/-. It is the specific case of P.W.1 that he has given a hand loan to the accused from the settlement made by his business partner one Krishnadoss of Rs.4,50,000/-
3.The learned counsel for the respondent / accused submitted that http://www.judis.nic.in the said partner has not been examined to corroborate such evidence of the 3 appellant. D.Ws.1 to 4 are the neighbours, who have categorically stated that the private complainant herein is the Assistant of a Teacher one Christopher, with whom the respondent had earlier money transaction to the tune of Rs.1,00,000/- and he has repaid the said amount.
4.Heard the learned counsel on either side and perused the materials placed on record.
5.After going through the oral and documentary evidence placed before this Court, no doubt, the accused has not denied the signature.
Therefore, the appellant / private complainant is entitled for his statutory presumption.
6.Further, the accused has come forward with this specific defence case that he never had any business transaction with the appellant. He had borrowed a sum of Rs.1,00,000/- based upon a pro-note from one Christopher, who was working as a Teacher. In fact, he has repaid the said sum also. However, a sum of Rs.12,000/- alone remains unpaid representing interest. The signed cheques were given to the said Christopher as a collateral security as redemption for a sum of Rs.1,00,000/-. The same has been misused at the instance of the John Christopher and the present case also has been filed. In order to probabalise the suggestive case, he has examined D.W.1 to D.W.4, who are the neighbours of the private complainant, who have clearly supported the http://www.judis.nic.in case of the respondent to the extent that the financial status of the 4 complainant is not sound as much as to lend loan for a sum of Rs.4,00,000/- and he is working as an Assistant to Christopher, Teacher.
8.Now the point needs to be considered is:-
(i) whether the evidence of D.W.1 to D.W.4 are to the extent of probablising the suggestive case.
9.After going through the evidence of D.Ws.1 to 4, the cross examination done on behalf of the private complainant does not suggest that their evidence has to be disregarded. Further more, their evidence is clear and cogent about the nature of the relationship between the appellant / private complainant with the Teacher, Christopher and his financial status. Accordingly, the trial Court has righlty come to the conclusion that the evidence of D.W.2 is clear and cogent and passed the test of reliability nature and accordingly held that he has proved the alleged transaction with the said John Christopher to the level of preponderance of probabilities and thereby held that there is no pre-existing legally enforceable debt between the parties and dismissed the complaint.
10.After re-appreciating the evidence on record and also taking note of the fact that though the appellant states that he has financial capacity in view of the settlement that he has received from one Christopher, his erstwhile business partner, the specific suggestion has to be put to him http://www.judis.nic.in about the non examination of such person. When that be so, the non 5 examination of the said Christopher, who alleged to have given a sum of Rs.4,50,000/- has been fatal to the case of the private complainant as held by the trial Magistrate.
11.Further more, in view of the specific evidence of D.Ws.1 to 4, this Court is of the considered view that the respondent has proved the defence case probabalising the suggestive case and similarly the finding of the trial Magistrate does not warrant any interference from this Court.
12.Accordingly, this criminal revision case is dismissed.
29.11.2018 Index:Yes/No Internet:Yes/No To
1.Principal District Munsif cum Judicial Magistrate, Eraniel, Kanyakumari District
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 6 RMT.TEEKA RAMAN,J.
ta Crl.A.(MD)No.261 of 2009 29.11.2018 http://www.judis.nic.in