Crl.A.No.756 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 12.01.2026

PRONOUNCED ON : 07.04.2026

CORAM

THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

Crl.A.No.756 of 2022

G.Dorairaj ... Appellant

Vs.

J.Janabai ... Respondent

PRAYER: Criminal Appeal is filed under Section 378 of Code of Criminal

Procedure, to set aside the order of acquittal dated 26.10.2021 passed in

C.A.No.22/2019 on the file of the XX Additional Sessions Judge, Chennain in

reversing the order passed in C.C.No.5846 of 2016 on the file of the Fast Track

Court Magisterial Level Egmore (FTC-I) at Allikulam, Chennai-3, dated

11.12.2018 and allow this Criminal Appeal.

For Appellant: Mr.J.R.K.Bhavanantham

For Respondent: Mr.N.Bhaskaran

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JUDGMENT

The respondent convicted by judgment dated 11.12.2018 in

C.C.No.5846 of 2016 passed by the learned Metropolitan Magistrate, Fast

Track Court-I, Egmore, Chennai (trial Court) and sentenced to undergo six

months Simple Imprisonment and to pay the compensation of Rs.3,30,000/- to

the appellant in default to undergo two months Simple Imprisonment.

Challenging the same, the respondent preferred an appeal before the learned

XX Additional Sessions Judge, Chennai (lower appellate Court) in

Crl.A.No.22 of 2019 and the same was allowed on 26.10.2021 setting aside the

judgment of conviction of the trial Court. Against the same, the present

Criminal Appeal is filed by the appellant/complainant.

2.Gist of the case is that the appellant and the respondent known to each

other for the past several years and both working in Kilpauk Medical College

and Hospital, Chennai, having good acquaintance the respondent approached

the appellant and availed hand loan to meet urgent binding necessities. The

appellant gave hand loan to the respondent believing that the respondent

owned a house property situated at Perumbakkam, Guru Devi Colony, 1

st

Floor

B Block No.1/909, Chennai. Subsequently, the respondent executed a

promissory note (Ex.P1) on 10.11.2014 for Rs.3,30,000/- and agreed to pay

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interest @ 2% P.M. which is also due to the sum of Rs.85,800/-. The

respondent assured to return the amount due on the promissory note (Ex.P1)

and promised to repay the same on 16.01.2016. In discharge of the liability,

the respondent issued a cheque dated 16.01.2016 (Ex.P2) bearing No.505630

drawn on Oriental Bank of Commerce, Kilpauk, Chennai for a sum of

Rs.3,30,000/-. As per the instruction given by the respondent, the appellant

deposited the said cheque for collection on 28.03.2016 in Indian Bank, Chetpet

Branch, the same returned for the reason “Funds Insufficient”. Thereafter, the

appellant caused statutory notice dated 30.03.2016 (Ex.P4) to the respondent,

but the respondent neither paid the cheque amount nor sent any reply.

Following the procedures, the complaint filed before the trial Court for offence

under Section 138 of Negotiable Instruments Act, 1881. During trial, on the

side of the appellant/complainant, he examined himself as PW1 and marked

Exs.P1 to P6. On the side of the defence, no witness examined and no

document marked. On conclusion of trial, the trial Court convicted the

respondent, but the lower appellate Court set aside the trial Court conviction.

3.Learned counsel for the appellant submitted that the lower appellate

Court magnified a typographical error made in the complaint referring to the

promissory note (Ex.P1). In the complaint, it is mentioned that the promissory

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note (Ex.P1) is dated 10.11.2014 and the amount is Rs.3,30,000/-, instead of

the date of promissory note as 21.11.2014 and the principal amount as

Rs.3,20,200/-. This typographical error corrected by the appellant by filing

additional proof affidavit on 20.06.2017 and the affidavit copy was served on

the respondent on 19.03.2018. Thereafter, a petition under Section 311 Cr.P.C.

filed in Crl.M.P.No.1566 of 2018 to recall the appellant to correct the

typographical mistake which is purely technical. Mr.A.Manimaran, learned

counsel for the respondent in the trial Court received the affidavit copy, raised

no objection. Thereafter, further chief examination recorded on 19.03.2018

and the typographical mistake was explained. But the lower appellate Court

not considered the same and gave a finding as though the technical error is a

vital contradiction, thereby, giving benefit of doubt to the respondent.

4.He further submitted that the respondent took two contradictory stands

in this case. The first stand is that on the date of issuance of cheque (Ex.P2)

she was not in Chennai due to her employment, hence, the cheque (Ex.P2)

could not have been issued by the respondent. The second stand is that on the

date of execution of mortgage deed in document No.1014 of 2009, the

appellant stealthily removed the cheque book which was kept in her bag and

misused it and filed the 138 complaint. To mark the attendance register

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maintained in the Government Hospital, Vellore and to produce additional

document of mortgage deed in document No.1014 of 2009 dated 10.11.2009

and to summon the Manager of Oriental Bank of Commerce, Kilpauk to

produce the respondent’s statement of account from 02.11.2008 to 30.03.2016,

the respondent filed a petition under Section 391 Cr.P.C. in Crl.M.P.No.12968

of 2019 which was allowed on 07.03.2020, against which, the appellant filed a

revision before this Court in Crl.R.C.No.673 of 2020 and this Court by order

dated 14.09.2020 set aside the order of the lower appellate Court and held that

as regards the plea of alibi that the accused was working in the Government

Vellore Hospital on 16.01.2016, it is seen that in the cross examination, it was

suggested to the complainant that the accused was working in Villupuram,

which suggestion the complainant has denied. Further held that when the

respondent examined under Section 313 Cr.P.C. no explanation given about the

entire circumstances which the accused attempted to project in 391 Cr.P.C.

petition. Further held that the document which she intended to mark was very

much available during the trial. Considering that the complaint was filed in

2016, the appellant was cross examined by the respondent on 11.01.2018, the

judgment was delivered by the trial Court on 11.12.2018 and finding that

during appeal filing 391 Cr.P.C. petition in cavalier manner cannot be

entertained and set aside the order dated 07.03.2020.

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5.Learned counsel further submitted that the lower appellate Court failed

to note that both appellant and the respondent employed in the Kilpauk

Medical College and Hospital, Chennai. The lower appellate Court finding is

that Ex.P1 could not be treated as promissory note since it was written in a

notebook page. The lower appellate Court failed to see the fact that the

respondent gave acknowledgment signing in the stamp paper admitting that

she received an amount of Rs.3,20,200/- on 21.11.2014 and Ex.P1 is attested

by V.Yuvaraj, son of the respondent. The respondent not denied her signature

in Ex.P1. Further, promissory note (Ex.P1) does not have any prescribed

format, the only requirement is that it should be stamped and signed,

acknowledging the receipt of money. He further submitted that the lower

appellate Court in drawing adverse inference invoking Section 114(g) of

Indian Evidence Act by referring to the typographical error in the complaint

with the promissory note, is not proper since the error got rectified by filing of

additional affidavit.

6.Learned counsel further submitted that the mortgage deed is of the

year 2009, at that time, the cheque was stealthy removed by the appellant is the

specific condition, but the cheque is of the year 2016. No steps taken by the

respondent either to inform the bank, call upon the appellant to return the

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cheque or lodge any Police complaint during this period. Added to it, after

receipt of the statutory notice (Ex.P4), the respondent not disputed the same,

and no such defence raised at that time. Hence, the respondent’s explanation

regarding the cheque appears to be an afterthought for the purposes of the

present case. He further submitted that the lower appellate Court, after hearing

the arguments of both the appellant and the respondent, reserved the case for

judgment on 05.10.2021. However, five days thereafter, the respondent filed

additional written statement. There is no record to show when the respondent

was re-heard. Hence, the consideration of additional written statement by the

lower appellate Court is not proper. The lower appellate Court giving undue

importance with regard to giving of loan in four installments which does not

find place in the complaint and proof affidavit, is not proper. In the evidence,

the appellant deposed that a total sum was paid to the respondent in four

instalments, namely Rs.90,000/- on two occasions, Rs.80,000/- on one

occasion, and Rs.60,200/- on the last occasion. This was not disputed by the

respondent. But the learned lower appellate Court considered the same as a

contradiction.

7.He further submitted that the appellant to prove the case marked

Exs.P1 to P6 and examined himself as PW1. Though elaborate cross

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examination made, the respondent could not dent the evidence of complainant.

In this case, the issuance of cheque (Ex.P1) and the signature not disputed,

hence, statutory presumption under Sections 118 & 139 of N.I. Act comes into

play. On proper reading of evidence and materials, the trial Court rightly

convicted the respondent, but the lower appellate Court on extraneous

consideration not only doubted Ex.P1 and also gave undue importance to the

typographical error which was rectified earlier and came to an erroneous

conclusion that the appellant failed to prove that the cheque was issued by the

respondent for legally enforceable debt. Further the lower appellate Court, in

the absence of any supporting evidence, erroneously held that the defence of

the respondent that the cheque had been misused by the appellant may be true

and the appellant not came with clean hands and allowed the appeal. In

support of his submissions, learned counsel for the appellant relied on the

following decisions:

(i)Relied on the decision of the Hon’ble Apex Court in A.V.Murthy v.

B.S.Nagabasavanna reported in (2002) 2 SCC 642 for the point that Section

118 of Negotiable Instruments Act, 1881, it is to be presumed that cheque was

drawn for the consideration if the amount borrowed by the drawee of the

cheque is shown by acknowledgment, then the Creditor have a fresh period of

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limitation from the date on which the acknowledgment is made. In this case,

the cheque Ex.P1 is dated 16.01.2016 and Ex.P2 is dated 21.11.2014, hence, it

is within the period of limitation.

(ii)Further placed reliance on the decision of this Court in J.Magdalene

Rejula v. K.Ramesh reported in 2022 SCC OnLine Mad 9892 for the point

that by filing amendment petition to correct the discrepancy in the notice and

in the complaint can be rectified which is in conformity to the decision of the

Hon’ble Apex Court in the cases of S.R.Kumar v. Sunaad Raghuram reported

in (2015) 9 SCC 609 and Kunapareddy alias Nookala Shanka Balaji v.

Kunapareddy Swarna Kumari reported in (2016) 11 SCC 774.

(iii)Further placed reliance on the decision in Uttam Ram v. Devinder

Singh Hudan reported in 2019 (3) MWN (Cr.) DCC 116 (SC) for the point

that it is required to be presumed that the cheques in question were drawn for

consideration and the holder of the cheques i.e., the complainant received the

same in discharge of an existing debt. The onus, therefore, shifts on the

accused-appellant to establish a probable defence so as to rebut such a

presumption. In this case, the onus has not been discharged by the accused.

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(iv)Placed reliance on the decision of the Hon’ble Apex Court in the

case of Bhupesh Rathod v. Dayashankar Prasad Chaurasia and another

reported in (2022) 2 SCC 355 for the point that the signature of the cheques

were not denied. Neither it was explained by way of alternative story as to

why duly signed cheques were handed over and further there was no plea of

any fraud or misrepresentation. The only attempt made by the respondent in

this case is to take a technical plea arising out from the format of the complaint

solely with a view to evade liability.

(v)In Bansal Milk Chilling Centre v. Rana Milk Food Private Ltd.,

and another reported in 2025 SCC OnLine SC 1509 the Hon’ble Apex Court

following the dictum in the case of U.P Pollution Control Board v. Modi

Distillery and others reported in (1987) 3 SCC 684 held that the infirmity is

one which can be removed by making formal application to correct the

technical flaw is permissible and it is not incurable defect and also held that in

criminal cases governed by the Code, Court is not powerless and may allow

amendments in appropriate cases. In this case, the Amendment/Correction has

been rightly carried out that to after giving notice to the respondent.

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8.Making the above submissions and relying upon the above decision,

learned counsel for the appellant prays for allowing the appeal and setting

aside the judgment of lower appellate Court.

9.Learned counsel for the respondent strongly opposed the appellant’s

submissions and submitted that the appellant has not come with clean hands

and suppressed the true facts. The appellant admits that there was an earlier

transaction between the parties wherein the respondent received a sum of

Rs.3,00,000/- and subsequently repaid the same, at that point of time security

cheque collected and now misused, the appellant claims that the respondent

executed a promissory note (Ex.P1) and issued a cheque (Ex.P2) in his favour.

The specific defence of the respondent is that earlier loan of Rs.3,00,000/-,

which was taken, was repaid, at that time, the appellant collected the cheque

(Ex.P2) and misused the same in the present case. Further there are vital

contradictions with regard to the date and amount mentioned in the promissory

note (Ex.P1) and the lower appellate Court rightly held that Ex.P1 is not a

valid promissory note. The trial Court without proper appreciation of evidence

mechanically held that since the cheque (Ex.P2) and her signature is not

denied, statutory presumption under Sections 118 & 139 comes into play and

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convicted the respondent, which is not proper. The specific case of the

respondent is that the cheque, which was given for earlier transaction, misused

by the appellant. Before the trial Court, the Advocate mistakenly gave no

objection for filing additional affidavit and also to recall and mark the same.

By filing additional affidavit such mistake committed cannot be rectified. The

mistake is not only made in Ex.P1, but also in the statutory notice (Ex.P4).

10.He further submitted that right from the beginning, the consistent

case of the appellant is that Ex.P1 was dated 10.11.2014 for a sum of

Rs.3,30,000/-, on the other hand, in reality in Ex.P1 the date mentioned as

21.11.2014 for a sum of Rs.3,20,200/-. Thus, the foundational facts of the case

gets snapped. The respondent to further probablize the defence filed a petition

under Section 391 Cr.P.C. during appeal. On 07.03.2020, the lower appellate

Court considered the same and allowed the respondent to mark the attendance

register to show on the date of alleged loan, the respondent was not in Chennai

due to her employment and further to mark the mortgage deed to confirm that

in the year 2009, the appellant stealthily removed the cheque from her and

misused the same in the present case. But in the revision in Crl.R.C.No.673 of

2020, this Court by order dated 18.09.2020 had set aside the lower appellate

Court order, hence, the respondent handicapped and unable to produce the

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evidence which is already available. From the above, it is clear that the

appellant had not come with clean hands. The learned lower appellate Court

rightly drew adverse inference finding that the respondent probablized the

defence and that the appellant failed to prove the case and allowed the appeal.

In support of his submission, learned counsel for the respondent relied on the

decision of the Hon’ble Apex Court in K.Prakashan v. P.K.Surenderan

reported in (2008) 1 SCC 258 for the point that if two views are possible, the

appellate Court shall not reverse the judgment of acquittal only because

another view is possible to be taken. The appellate Court jurisdiction to

interfere in case of the appeal against acquittal is limited. Hence, the judgment

of acquittal rendered by the lower appellate Court is not to be disturbed.

11.Considering the submissions and on perusal of the materials, it is

seen that the appellant and the respondent both working in Kilpauk Medical

College and Hospital, Chennai. The respondent availed loan from the

appellant for her urgent need, in discharge of the same, she handed over the

cheque (Ex.P2) dated 16.10.2016 and promissory note (Ex.P1). In this case,

the defence taken is on two fold viz., one is plea of Alibi to show that on the

date of issuance of cheque, the respondent was not in Chennai due to her

employment and she never handed over the cheque to the appellant. To prove

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the same, she wanted to summon the attendance register of the hospital. The

second defence is that the respondent mortgaged a property with the appellant

for Rs.3,00,000/- on 10.11.2009, at that time, the appellant stealthily removed

some cheques from the respondent, filled up the same and filed the complaint

and mortgage deed, denied by the appellant. Hence, it was required to produce

the mortgage deed document No.7014 of 2009. To probabilise his defence in

the appeal, a petition under Section 391 Cr.P.C. filed in Crl.M.P.No.12965 of

2020. The lower appellate Court allowed the same on 07.03.2020, but this

Court in Crl.R.C.No.673 of 2020 set aside the lower appellate Court order on

the ground that a suggestion for alibi raised during cross examination and that

during questioning under Section 313 Cr.P.C. no explanation given by the

respondent. Likewise the mortgage deed was very much available with the

respondent and the respondent had sufficient time and opportunity to mark the

same during trial. Hence, the petition under Section 391 Cr.P.C., cannot be

allowed in a cavalier fashion and dismissed the same.

12.In this case, the respondent not denied the issuance of cheque (Ex.P2)

and her signature. Hence, Sections 118 and 139 of Negotiable Instruments

Act, 1881 comes into play. Admittedly, the respondent neither examined any

witness nor marked any document to probablize her defence and to prove that

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the appellant has not come with clean hands. On the other hand, by taking

prevaricate stand, the respondent further exposed the hollowness in the

defence. The trial Court considering all these aspects rightly convicted the

respondent by a well reasoned judgment. On the other hand, the lower

appellate Court by misreading the evidence and materials came to the

conclusion that the cheque should have been issued. The period of limitation

for legally enforceable debt is from the date of borrowing or from the date of

acknowledgment of the debt subject to the three year limitation period. In this

case, the cheque (Ex.P2) is dated 16.10.2016 and the promissory note is dated

21.11.2014. The respondent’s specific stand is that the cheque could not have

been issued on 16.01.2016 since she was not in Chennai due to her

employment. In any event, from the date of the loan to date of issuance of the

cheque, all within a period of three years, hence, the debt is not a time barred

one. Thus, the lower appellate Court having misread the evidence and the

proposition of law, allowed the appeal which is perverse and unsustainable.

13.In view of the above, this Court finds that the appellant proved the

case beyond all reasonable doubt and the respondent failed to probabilise that

the cheque (Ex.P2) was not issued for legally enforceable debt or liability.

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14.In the result, this Criminal Appeal stands allowed. The judgment

dated 26.10.2021 in Crl.A.No.22 of 2019 passed by the learned XX Additional

Sessions Judge, Chennai is set aside and the judgment dated 11.12.2018 in

C.C.No.5846 of 2016 passed by the learned Metropolitan Magistrate, Fast

Track Court-I, Egmore, Chenai is restored and confirmed.

15.The trial Court is directed to secure the respondent for sufferance of

sentence. In the event the respondent comes forward to return the cheque

amount and to compound the offence, the same can be entertained by the trial

Court and the case can be compounded.

07.04.2026

Speaking order/Non-speaking order

Index: Yes/No

Neutral Citation: Yes/No

vv2

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To

1.The XX Additional Sessions Judge,

Chennai.

2.The Metropolitan Magistrate,

Fast Track Court-I, Egmore, Chennai.

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M.NIRMAL KUMAR, J.

vv2

PRE-DELIVERY JUDGMENT IN

Crl.A.No.756 of 2022

07.04.2026

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