Madras High Court
P.Manivel vs T.Seenivasan on 4 January, 2018
Author: P.N.Prakash
Bench: P.N.Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.01.2018
CORAM
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
Crl.O.P.(MD) No.17597 of 2017
in
Crl.A.(MD) No.SR36298 of 2017
and
Crl.A.(MD) No.SR36298 of 2017
P.Manivel ... Petitioner / Complainant
vs.
T.Seenivasan ... Respondent / Accused
PRAYER (Crl.O.P.(MD) No.17597 of 2017): Criminal original petition filed
under Section 378(3) Cr.P.C., to grant special leave to file this appeal
against the order of acquittal passed by the learned Additional Sessions
Judge, Palani, in C.A.No.61 of 2013, on 06.09.2017, before this Court.
PRAYER (Crl.A.(MD) No.SR36298 of 2017): Criminal appeal filed under Section
372 Cr.P.C., to set aside the order of acquittal passed by the learned
Additional Sessions Judge, Palani, in C.A.No.61 of 2013, on 06.09.2017,
against the order of conviction and sentence passed by the Fast Track Court /
Judicial Magistrate Court, in S.T.C.No.68 of 2013, on 23.09.2013.
!For Petitioner : Mr.C.Pandarasamy
^For Respondent:
:ORDER
For the sake of convenience, the petitioner and the respondent herein are referred to as ?the complainant? and ?the accused? respectively in this order.
2. It is the case of the complainant that the accused is his close friend and that on 27.01.2013, the accused borrowed a hand loan of Rs.2,30,000/- from the complainant and for which, the accused gave a cheque bearing No.325743, dated 07.02.2013, drawn on Canara Bank, Palani Branch, to the complainant. When the complainant presented the cheque with his Banker for encashment, it was returned with an endorsement ?Insufficient Funds?. Thereafter, the complainant issued a statutory notice, dated 26.02.2013, to the accused and on receipt of the said notice, the accused sent a reply notice, dated 11.03.2013, to the complainant denying the debt. Therefore, the complainant initiated prosecution, in S.T.C.No.68 of 2013, under Section 138 of the Negotiable Instruments Act (hereinafter, it may be referred to as ?the N.I.Act?), before the Fast Track Court, Magisterial Level, Palani, against the accused.
3. On the appearance of the accused, he was furnished with the copy of the complaint and when he was questioned about the substance of accusation, he denied the accusation. To prove his case, the complainant examined himself as P.W.1 and marked Exs.P1 to P6. When the accused was questioned about the incriminating circumstances appearing against him under Section 313 Cr.P.C., he denied the same. To prove his case, the accused examined himself as D.W.1 and marked Exs.D1 and D2.
4. After considering the oral and documentary evidence, the Trial Court, by Judgment dated 23.09.2013, found the accused guilty under Section 138 N.I.Act., and convicted and sentenced him to undergo two months simple imprisonment and pay the cheque amount of Rs.2,30,000/- towards compensation under Section 357(3) Cr.P.C., to the complainant.
5. Challenging the said conviction and sentence, the accused preferred an appeal in C.A.No.61 of 2013, before the learned Additional District and Sessions Judge, Palani, who by Judgment, dated 06.09.2017, allowed the appeal and set aside the conviction and sentence imposed by the Trial Court. Challenging the acquittal of the accused, the complainant has filed the present appeal along with special leave application.
6. Heard Mr.C.Pandarasamy, learned counsel for the complainant and perused the materials filed in the form of typed set.
7. It is a trite that special leave to appeal cannot be automatically granted and only if there are prima facie materials to show that the acquittal of the accused was of perverse reasoning or mis-appreciation of evidence, special leave can be granted.
8. Mr.C.Pandrasamy, learned counsel for the complainant submitted that the presumption under Section 139 N.I.Act will cover the debt also and therefore, the finding of the Appellate Court that the complainant had failed to prove the debt is unsustainable, especially in view of the law laid down by the Honourable Supreme Court in Rangappa vs. Srimohan, reported in 2010 (4) CTC
118.
9. This Court gave its anxious consideration to the submissions made by the learned counsel for the complainant.
10. It is true that if the accused accepts the issuance of the cheque, the presumption under Section 139 N.I.Act would extend to the debt also. However, in this case, the accused has been taking a consistent stand that he does not know the complainant at all and that he knew the complainant's father Patchaimuthu, who is doing finance business; that the accused had borrowed Rs.1,50,000/- from Patchaimuthu, who runs Saravana Auto Finance; that the accused had given a signed promissory note and a blank but signed cheque to Patchaimuthu; that the accused has been paying the interest and principle to Patchaimuthu; that the accused had to pay only Rs.27,000/- to Patchaimuthu, but whereas Patchaimuthu has handed over the cheque to his son / complainant herein, who is claiming Rs.2,30,000/-.
11. Even Rangappa's case (cited supra), the Honourable Supreme Court has held that the accused can discharge the presumption under Section 139 N.I.Act by preponderance of probability. In this case, the complainant has not filed any document like promissory note or receipt to show that he had given a huge loan of Rs.2,30,000/- to the accused on 27.01.2013. Of course, in every case, it is not necessary for the complainant to obtain promissory note or any other collateral document evidencing the debt, because prosecution under Section 138 N.I.Act can be launched based on a hand loan also. But, in this case, when the accused had taken a clear stand right from the beginning i.e., from the date of issuance of the reply notice / Ex.P6 that he has no business transaction with the complainant at all, the burden shifts upon the complainant to satisfactorily show that there was a subsisting debt. That apart, in this case, in the cross-examination of the complainant, he has admitted that ehDk; vd; kidtp kl;Lk; jdpahf nUf;fpBwhk;. vd;dplk; vjphp &.2,00,000/- bjhif bfhLj;j md;W jhd; fhBrhiy bfhLj;jhh; vd;why; Mkhk;.
12. The accused waived his right of silence under Section 315 Cr.P.C., and got into the witness box and gave evidence that he had borrowed money from the complainant's father Patchaimuthu and that he had to pay Rs.27,000/- to Patchaimuthu, for which he gave a blank, but signed cheque and promissory note to Patchaimuthu and Patchaimuthu has set up his son to initiate the present prosecution. In the cross-examination of the accused, the complainant was not able to make any substantial dent in the evidence. Thus, in this case, the accused has satisfactorily discharged the burden under Section 139 N.I.Act. Thus, when there are two views possible, the view in favour of the accused would merit consideration as held by the Honourable Supreme Court in Arulvelu and another vs. State rep.by the Public Prosecutor and another, reported in (2009) 10 SCC 206. In such view of the matter, this Court is of the view that this is not a fit case to grant special leave to to the complainant to file appeal against the acquittal of the accused.
13. In the result, the special leave petition is devoid of merits and it is dismissed and consequently, Crl.A.(MD) No.SR36298 of 2017 is rejected.
To:
1.The Additional Sessions Judge, Palani.
2.The Judicial Magistrate, Fast Track Court, Palani.
.