Madras High Court
K.Sivakumar vs M/S.Jisha Fruits on 16 July, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
Crl.O.P.No.16434 of 2024
In Crl.A.SR.No.33078 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.07.2024
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Crl.O.P.No.16434 of 2024
In
Crl.A.SR.No.33078 of 2024
K.Sivakumar
Rep. by his Power Agent
Mr.K.P.Aravindakshan ... Petitioner
Vs.
1.M/s.Jisha Fruits
Represented by its Partner
Mr.Saji Vargees
2.Mr.Saji Vargees ... Respondents
Prayer:
Criminal Original Petition filed under Section 419(4) of BNSS Act,
2023 seeking to grant leave to the petitioner/ appellant/ complainant
to file the above criminal appeal under Section 378(4) Cr.P.C. against
the order of acquittal dated 25.04.2024 passed by the learned Fast
Track Judge Magistrate Level - V, Chennai in C.C.No.548 of 2017.
For Petitioner : Mr.M.Fazulul Haq
for M/s.Juris and Justia
1/8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.16434 of 2024
In Crl.A.SR.No.33078 of 2024
ORDER
The criminal original petition has been filed seeking to grant leave to file criminal appeal against the judgment dated 25.04.2024 passed by the learned Metropolitan Magistrate, Fast Track Court at Magistrate Level – V, Saidapet, Chennai in C.C.No.548 of 2017.
2.The petitioner is the complainant in C.C.No.548 of 2017, on the file of the learned Metropolitan Magistrate, Fast Track Court at Magistrate Level – V, Saidapet, Chennai and he filed complaint under Section 138 of the Negotiable Instruments Act as against the respondents and after adjudication, the trial Court acquitted the accused/ respondent. Aggrieved by the same, the petitioner has filed this petition seeking leave to file appeal.
3.The learned counsel appearing for the petitioner submitted that the second respondent being the partner of the first respondent availed a loan of Rs.10 Lakhs on 21.02.2009, a further sum of Rs.10 Lakhs on 12.09.2009 and another sum of Rs.10 Lakhs on 25.11.2009 totalling a sum of Rs.30 Lakhs from the petitioner for the business 2/8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.16434 of 2024 In Crl.A.SR.No.33078 of 2024 purpose of the first respondent and promised to repay the same within six months together with accrued interest, however, the second respondent repaid only a sum of Rs.11,40,500/-. Till 17.08.2016 the respondents are due and liable to pay a sum of Rs.50,07,785/- including interest accrued on the said date, for which, the first respondent issued cheque bearing no.841372 dated 20.08.2016 drawn on State Bank of India, Koyambedu Branch duly signed by the second respondent under the capacity of partner of the first respondent. The said cheque when presented for collection on 20.08.2016 was returned for the reason 'no such account' on 20.08.2016. Thereafter, the petitioner issued legal notice dated 06.09.2016 to the respondents and the same was served on 12.09.2016 and on 27.09.2016 but the respondents neither gave any reply nor repaid the amount. Hence, the petitioner lodged the complaint under Section 138 of the Negotiable Instruments Act as against the respondents.
4.The learned counsel appearing for the petitioner further submitted that the petitioner was represented through his power agent and in order to prove the case, the power agent was examined as P.W.1 and exhibits Ex.P1 to Ex.P6 were marked. The respondent 3/8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.16434 of 2024 In Crl.A.SR.No.33078 of 2024 neither examined any witness nor marked any exhibit. The learned counsel further submitted that the respondent did not deny the signature and the issuance of the instrument and further submitted that when the signature is not denied by the respondent, presumption lies in favour of the petitioner. Hence, it is the duty cast upon the respondent to rebut the presumption.
5.The learned counsel appearing for the petitioner further submitted that the respondent issued non CTS cheque prior to 2012 and further submitted that when the respondent cunningly issued non CTS cheque, the trial Court ought to have drawn adverse inference as against the respondent, however, the trial Court acquitted the respondent, which is not sustainable one.
6.Heard the learned counsel appearing for the petitioner and perused the materials available on record.
7.It is the consistent ratio of the Courts that grant of leave is not a matter of right; rather it is the edifice on which the liberty of the person, who has been accused of a crime rests and where a person, 4/8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.16434 of 2024 In Crl.A.SR.No.33078 of 2024 who had been accused of a crime had been acquitted by the Court below, a presumption follows the golden rule that a person is presumed innocent until proven guilty and on that basis the second presumption on the basis of the acquittal necessitates the Appellate Court to scrutinize the materials more carefully. Further, grant of leave to prosecute should not be as a matter of routine, but should be on just and equitable basis, when materials reveal that the Court below has not appreciated the materials in proper perspective.
8.Grant leave provided for under Section 378 (4) of Cr.P.C. is not an empty formality, but has been brought into the statute only to safeguard the interests of the persons accused of a crime, who have since been acquitted, as otherwise, they would be put through the rigours of continuous litigation even after their innocence has been accepted by the Courts below.
9.In the present case, the petitioner claim that the second respondent being the partner of the first respondent availed loan of Rs.10 Lakhs on 21.02.2009, another Rs.10 Lakhs on 12.09.2009 and another Rs.10 Lakhs on 25.11.2009 totalling a sum of Rs.30 Lakhs 5/8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.16434 of 2024 In Crl.A.SR.No.33078 of 2024 from the petitioner for the business purpose of the first respondent and promised to repay the same within six months together with accrued interest, however, the second respondent repaid only a sum of Rs.11,40,500/-. Till 17.08.2016, the respondents are due and liable to pay a sum of Rs.50,07,785/- including interest accrued on the said date, for which, the first respondent issued cheque bearing no.841372 dated 20.08.2016 drawn on State Bank of India, Koyambedu Branch duly signed by the second respondent under the capacity of partner of the first respondent. The said cheque when presented for collection on 20.08.2016 was returned for the reason 'no such account' on 20.08.2016.
10.Perusal of records reveal that the petitioner is doing money lending business. If the petitioner does money lending business, necessarily he has to maintain accounts and statement for the loan advanced by him. In the present case, it is alleged that the petitioner lent a sum of Rs.30 Lakhs to the respondents during the year 2009, however, no record was produced before the trial Court to substantiate that the petitioner lent money to the respondents. 6/8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.16434 of 2024 In Crl.A.SR.No.33078 of 2024
11.Further, the petitioner admits that the respondent issued non CTS cheque prior to 2012, however, the petitioner presented the said cheque for collection during the year 2016. This itself shows that the petitioner has not approached the trial Court with clean hands. The trial Court after elaborately discussing all the factual aspects, acquitted the accused, which warrants no interference.
12.As stated above, to grant leave, a case should be made out which bristles with infirmities which strikes at the root of the findings recorded. However, in the case on hand, the petitioner has not made out a case, where the findings are so very perverse that there has been miscarriage of justice warranting this Court to grant leave to set right the wrong that has been committed by the Court below.
13.No infirmities or other materials are placed which necessitates relook into the findings recorded by the Court below and granting leave to appeal would be nothing but a travesty of justice insofar as the respondent is concerned, who has been acquitted through a well considered judgment passed by the Court below. 7/8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.16434 of 2024 In Crl.A.SR.No.33078 of 2024
14.In view of the above, the petitioner is not entitled for grant of M.DHANDAPANI,J.
pri leave to file appeal against the order passed by the trial Court. The criminal original petition is dismissed. Consequently, the criminal appeal is rejected at the SR stage itself.
16.07.2024 pri Index: Yes/ No Speaking Order: Yes/ No NCC: Yes/ No To
1.The Metropolitan Magistrate, Fast Track Court at Magistrate Level – V, Saidapet, Chennai.
Crl.O.P.No.16434 of 2024
In Crl.A.SR.No.33078 of 2024 16.07.2024 8/8 https://www.mhc.tn.gov.in/judis