Madras High Court
T.Karthick vs P.Rajkumar on 29 July, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.RC.No.1192 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.07.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.No.1192 of 2023
and
Crl.M.P.No.9333 & 9334 of 2023
T.Karthick ..... Petitioner
Vs
P.Rajkumar
rep. by his power agent
P.Saravanan ..... Respondent
Prayer: Criminal Revision is filed under Section 438 r/w 442 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, to set aside the order dated 28.08.2018 passed
by the Sessions (Fast Track Mahila) Judge, Namakkal in Criminal Appeal
No.11 of 2018, reversing the order, dated 18.08.2018, passed by the learned
Judicial Magistrate (Fast Track Court), Tiruchengode, in STC No.87 of 2017.
For Petitioner : Mr.S.P.Chockalingam
For Respondent : Mr.M.Mohamed Riyaz
for Mr.D.Gopal
ORDER
This Criminal Revision Case has been filed challenging the Judgment dated 28.08.2018 passed in C.A.No.11 of 2018 by the learned Sessions Judge (Fast Track Court), Mahila Court, Namakkal, thereby reversing the order of acquittal dated 18.08.2018 passed in STC No.87 of 2017 on the file Page 1 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 of the Judicial Magistrate, Fast Track Court, Tiruchengode, for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. The petitioner is the accused in the complaint lodged by the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. The case of the respondent is that he is carrying on a transport business and the petitioner is also engaged in a transport business and therefore, both became acquainted with each other. While being so, on 19.06.2015, the petitioner borrowed a sum of Rs.30 Lakhs from the respondent. In order to repay the said loan amount, the petitioner issued a cheque for the said amount on 23.06.2016. When the said cheque was presented for collection, it was returned dishonoured with the endorsement “Payment Stopped by Drawer”. After causing a statutory notice, the respondent lodged a complaint, which was taken cognizance by the Trial Court.
3. On the side of the respondent, P.W.1 was examined and Exs.P1 to P8 were marked. On the side of the petitioner, no witnesses were examined and no documents were marked. On a perusal of the oral and documentary evidence, the Trial Court found the petitioner not guilty of the Page 2 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 offence punishable under Section 138 of the Negotiable Instruments Act and accordingly dismissed the complaint filed by the respondent. Aggrieved by the same, the respondent preferred an appeal, which was allowed and the petitioner was convicted and sentenced to undergo simple imprisonment for a period of one year and was also directed to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a further period of three months. Aggrieved by the conviction and sentence, the present Criminal Revision has been filed.
4. The learned counsel appearing for the petitioner submitted that though the petitioner did not send any reply to the statutory notice, he had categorically rebutted the presumption by cross examining P.W.1. In fact, the respondent lodged a complaint through his Power of Attorney, who had no knowledge about the transaction between the petitioner and his principal. Therefore, the Trial Court rightly acquitted the petitioner. However, the Appellate Court convicted the petitioner only on the ground that the petitioner did not adduce any evidence and he did not mark any documents to disprove the case of the respondent. Once the petitioner had rebutted the presumption through cross examination, the burden shifted upon the respondent to prove that the cheque was issued for legally enforceable debt, but the respondent Page 3 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 failed to do so.
5. The learned counsel further submitted that the specific defence of the petitioner was that the petitioner's father had borrowed a sum of Rs.30 Lakhs from the respondent's grandfather. Though certain documents and cheques were obtained only for security purposes, they were required by the petitioner's grandfather and therefore, three cheques were handed over by the petitioner to the respondent's grandfather as security. The entire loan amount was subsequently repaid by the petitioner's father and even then, the respondent's grandfather failed to return the cheques, which had been obtained as security. Thereafter, the respondent misused one of the cheques and initiated the proceedings under Section 138 of the Negotiable Instruments Act. In order to misuse the cheque, the respondent filled up the signed cheque, which was issued as security and presented for collection. A comparison would reveal that the signature of the petitioner and the other writings on the cheque were in different inks, which clearly establishes that the cheque was not issued for any legally enforceable debt, since the petitioner had never borrowed any amount from the respondent.
6. Even according to the respondent, a sum of Rs.25 Lakhs was Page 4 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 borrowed as a hand loan on 19.06.2015, for which the petitioner issued a cheque only on 23.06.2016. At the time of the alleged borrowal, no documents were obtained by the respondent as security. It shows that the cheque was not issued for any legally enforceable debt. The learned counsel further submitted that the Appellate Court allowed the appeal without affording an opportunity of hearing to the petitioner. Though the counsel for the appellant was not present before the Appellate Court, the Appellate Court ought not to have allowed the appeal without hearing the respondent therein. He further submitted that on receipt of the statutory notice, the petitioner had issue a reply notice, which was marked as Ex.P6, wherein he categorically denied the borrowal and also stated that the cheque had been issued only as security, that too in respect of a loan obtained by his father from the respondent's grandfather. Therefore, the Trial Court rightly acquitted the petitioner. Unfortunately, the Appellate Court convicted the petitioner only on the ground that the petitioner failed to enter the witness box, examine any witnesses or produce any documents. In support of his contention, he relied upon several judgments of the Hon'ble Supreme Court of India.
7. Per contra, the learned counsel appearing for the respondent Page 5 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 submitted that the Appellate Court, without affording an opportunity of hearing to the petitioner herein, allowed the appeal and therefore, the matter may be remitted back to the Appellate Court for fresh disposal. He further submitted that the petitioner has not disputed either the signature found on the cheque or the issuance of the cheque. It was also categorically admitted by the petitioner that his father had borrowed a sum of Rs.30 Lakhs. Therefore, the cheque was issued only towards a legally enforceable debt. Though the petitioner had taken a specific defence that the respondent's grandfather had lent a sum of Rs.30 Lakhs as loan to the petitioner's father, the same was subsequently repaid to him. However, the petitioner failed to adduce any evidence in support of such a defence. There is no proof to show that his father borrowed a sum of Rs.30 Lakhs as loan and it was repaid by him. In the absence of such proof, the defence raised by the petitioner cannot be accepted. Therefore, the Trial Court rightly convicted the petitioner and that such conviction does not warrant any interference of this Court.
8. Heard the learned counsel appearing on either side and perused the materials available on record.
9. The case of the respondent was that the petitioner had borrowed Page 6 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 a sum of Rs.25 Lakhs on 19.06.2015 by cash and in order to repay the said amount, he issued a cheque for a sum of Rs.25 Laksh on 23.06.2016. Even according to the respondent, on the date of the alleged borrowal of such huge amount, no document was obtained as security. No prudent person would lend such a huge amount as loan that too by way of cash without demanding any security documents. On the date of alleged borrowal, no document was executed as security. In order to repay the said loan, only on 23.06.2016, the petitioner issued cheque.
10. On receipt of the statutory notice, the petitioner sent a reply notice, which was marked as Ex.P6. A perusal of the reply notice reveals as follows:
“cz;ikapy; vkJ fl;rpfhuhpd; jfg;gdhh;
jkHpurh vd;gth; jkJ fl;rpf;fhuhpd; jhj;jhthd
A.C.Kj;Jrhkp j-bg/rpd;dhf;ft[z;lh; vd;gthplk;
fle;j 02-07-2012 njjpapy; U:/30.00.000-- (U:gha;
Kg;gJ yl;rk; kl;Lk;) g[[nuhnehl; fld;
bgw;wpUe;jhh;/ mjw;fhf vdJ fl;rpf;fhuhpd;
jfg;gdhh; jkHpurh ifbahg;gk; bra;ag;gl;l rpy
btw;W g[nuhnehl;LfSk; gj;Jf;Fk; nkw;gl;l g{h;j;jp
bra;ag;glhj fhnrhiyfSk; g{h;j;jp bra;ag;glhj
gj;jpuj;jhs; kw;Wk; gr;irj;jhs; Mfpaitfs;
Page 7 of 16
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm )
Crl.RC.No.1192 of 2023
mthplk; bfhLj;Js;shh;/ gpd;dpl;L ,d;Dk; Mjut[
ntz;Lk; vd;W nkw;go A.C.Kj;Jrhkp vkJ
fl;rpf;fhuhpd; jfg;gdhhplk; nfl;Ls;shh;/ mjd;
mog;gilapy; nkw;go fld; bjhiff;F Mjuthf
vkJ fl;rpf;fhuh; nkw;go 02.07.2012 njjpapy;
yl;Rkp tpyh!; t';fp jpUr;br';nfhL fpis
fhnrhiy vz;fs; 026766. 026767. 044974 Mfpa
ifbahg;gk; kl;Lk; bra;j g{h;j;jp bra;ag;glhj
fhnrhiyfisa[k;. ifbahg;gk; kl;Lk; bra;j
btw;W gj;jpuk; kw;Wk; gr;irj;jhs; Mfpaitfis
jkJ fl;rpf;fhuhpd; jhj;jh Kj;Jrhkpaplk;
bfhLj;Js;shh;/ ekJ fl;rpf;fhuhpd; jfg;gdhh;
jkHpurh mth;fs; Kj;Jrhkpaplk; th';fpa
g[nuhnehl; fld; KGtija[k; fl;o jPh;j;Jtpl;lhh;/
nkw;go vkJ fl;rpf;;fhuhpd; Mtz';fs; kw;Wk;
vkJ fl;rpf;fhuhpd; jfg;gdhh; Mtz';fs;
midj;Jk; jpUk;g bgwhky; mthplnk ,Ue;J
te;jJ/ ,e;j epiyapy; nkw;go Kj;Jrhkpapd;
ikj;Jdh; kfd; gp/utp vd;gth; vkJ fl;rpfhuhpd;
jfg;gdhh; jkHpurh vd;gth; nkw;go utp
vd;gthplk; U:/23.00.000-- fld; bgw;wjhft[k;
mjw;fhd fhnrhiy bfhLj;jjhf Twp bgha;ahd
mwptpg;g[ bfhLj;Js;shh;/”
11. Therefore, the petitioner issued a stop payment letter to his Page 8 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 banker since the blank signed cheques had been handed over only as security to the respondent's grandfather. It is also evident that while the signature in the cheque is in one ink, the remaining writings are in different ink, which indicates that the cheque had been subsequently filled up by the respondent and presented for collection. Even if a security cheque is filled up and presented for collection, it can be enforced only if there exists a legally enforceable debt as on the date of its presentation. In the present case, the petitioner has categorically rebutted the initial presumption and even then the respondent failed to prove that the cheque was issued for any legally enforceable debt.
12. The learned counsel for the respondent vehemently contented that the petitioner failed to adduce any oral or documentary evidence to prove that his father borrowed a sum of Rs.30 Lakhs from the respondent's grandfather and that the said amount was subsequently repaid. Therefore, according to him, the petitioner had failed to rebut the presumption. The respondent's power of attorney holder was examined as P.W.1. However, a perusal of the cross examination of P.W.1 reveals that the respondent did not even know the address of the petitioner and the location of the petitioner's residence. Further, the respondent also wrongly mentioned the petitioner's Page 9 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 name as T.Karthik instead of R.T.Karthik. Further, he also admitted that non-CTS cheques were not considered valid in the year 2016. From the year 2012 onwards, as per the guidelines of the Reserve Bank of India, only Cheque Truncation System (hereinafter referred to as “CTS”) compliant cheques are being considered valid for all banking purposes. Thus, it is evident that the cheque in question must have been issued prior to the year 2012 as a security, and the same was misused in the year 2016 to initiate the proceedings under Section 138 of the Negotiable Instruments Act.
13. The cheque was marked as Ex.P1 dated 23.03.2016. On perusal of the Ex.P1, it is revealed that it is a Non-CTS . As per the guidelines issued by the Reserve Bank of India, CTS has been implemented with effect from 24.09.2011 at Chennai. After migration of the entire cheque volume to CTS, the traditional mechanisms of cheque clearing have been discontinued across the country. Further, banks have been advised to ensure that all branches are connected to CTS, since this method was introduced for the following purposes : (i) In CTS, the presenting bank (or its branch) captures the data (on the MICR band) and the images of a cheque using their Capture System (comprising of a scanner, core banking or other application) which is internal to Page 10 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 them and meeting the specification and standards prescribed for data and images under CTS. (ii) To ensure security, safety and non-repudiation of data/images, end-to-end Public Key Infrastructure has been implemented in CTS. As part of the requirement, the collecting bank send the data and captured images, duly signed digitally and encrypted, to the central processing location for onward transmission to the paying bank.
14. Further, under CTS, cheque processing locations in India have been consolidated into the three grids in Chennai, Mumbai and New Delhi. Each grid provides processing and clearing services to all the banks under its respective jurisdictions. Therefore, Ex.P1, being a non-CTS cheque, indicates that it must have been issued prior to 24.09.2011. The Appellate Court reversed the findings of the Trial Court on the ground that the petitioner failed to adduce any evidence or produce any documents in order to rebut the presumption. In this regard, the learned counsel for the petitioner relied upon the Judgment of the Hon'ble Supreme Court of India reported in (2019) 5 SCC 418 in the case of Basalingappa Vs. Mudibasappa, wherein the Hon'ble Supreme Court of India held as follows :
23. We having noticed the ratio laid down by this Court in above cases on Sections 118(1) and 139, we now Page 11 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 summarise the principles enumerated by this Court in following manner :
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
15. Thus, it is clear that the petitioner is not required to enter the witness box in order to support his defence. Further, it is not necessary for the Page 12 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 petitioner to produce any documentary evidence to raise probable defence. He can very well rely on the evidence adduced by the respondent and the materials produced by the respondent to raise a probable defence. An inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. In the present case, the respondent, by way of reply notice as well as cross examination of P.W.1, raised a probable defence to rebut the presumption under Section 139 of the Negotiable Instruments Act and in the present case, such presumption stood effectively rebutted.
16. In order to prove the charge under Section 138 of the Negotiable Instruments Act, it must be proved that there exists a legally enforceable debt and that the cheque was drawn from the bank account of the drawer for the purpose of discharging, in whole or part of any debt or other liability. The issuance of the cheque presupposes the existence of a legally enforceable debt and the cheque must have been returned dishonoured due to insufficiency of funds. Therefore, the respondent must prove the guilt of the accused beyond all reasonable doubt. In contrast, the standard of proof so as to prove a defence on the part of the accused is the preponderance of probabilities, Page 13 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 which creates doubts about the extent of legally enforceable debt or liability. Hence, the Trial Court rightly acquitted the petitioner. However, the Appellate Court convicted the petitioner for the offences punishable under Section 138 of the Negotiable Instruments Act.
17. It is well settled that when two views are possible, the Appellate Court, while exercising its power against a judgment of acquitttal, should not interfere with the findings recorded by the Court below. The settled principles of law is if the evidence permits more than one interpretation, the benefit of doubt must go to the accused. Therefore, in the present case, where the Trial Court had recorded an acquittal based on a possible view of the evidence, the Appellate Court ought not to have interfered with the same.
18. In view of the foregoing discussions, the Judgment dated 28.08.2018 passed in C.A.No.11 of 2018 by the learned Sessions Judge (Fast Track Court), Mahila Court, Namakkal cannot be sustained and is liable to be set aside. Accordingly, the same is hereby set aside and the order of acquittal dated 18.08.2018 passed in STC No.87 of 2017 on the file of the Judicial Magistrate, Fast Track Court, Tiruchengode, is hereby restored. Page 14 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023
19. In the result, this Criminal Revision Case stands allowed. Consequently, connected miscellaneous petitions are closed.
29.07.2025 Index : Yes/No Internet : Yes/No Speaking/Non Speaking order Lpp To
1. The Sessions Judge (Fast Track Court), Mahila Court, Namakkal.
2. The Judicial Magistrate, Fast Track Court, Tiruchengode.
G.K.ILANTHIRAIYAN. J, Lpp Page 15 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm ) Crl.RC.No.1192 of 2023 Crl.R.C.No.1192 of 2023 29.07.2025 Page 16 of 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:40 pm )