Crl.A.(MD)No.664 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 06.11.2025

Pronounced on : 05.01.2026

CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

Crl.A.(MD)No.664 of 2022

S.Premachandran ... Appellant/

Complainant

Vs.

1.Venkatesh Babu

2.S.Sumathi Venkatesh Babu ... Respondents/

Accused

Prayer : This Criminal Appeal filed to take the appeal on file call for the

records from the lower Court, hear the appeal and allow the appeal as

prayed for.

For Appellant: Mr.V.Balaji

For Respondents: Mr.R.Anand

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JUDGMENT

The Criminal Appeal is directed against the judgment made in

S.T.C.No.128 of 2016 dated 26.02.2019 on the file of the Court of the

Judicial Magistrate No.4, Tirunelveli, in acquitting the respondents /

accused 1 and 2 for the offence under Section 138 of the Negotiable

Instruments (hereinafter referred as 'NI') Act.

2. The appellant, who is the complainant, filed a complaint under

Section 200 Cr.P.C. against the respondents / accused 1 and 2 for the

alleged offence under Section 138 r/w 142 of the NI Act.

3. For the sake of convenience and brevity, the parties herein after

will be referred to as per their status / ranking in the trial Court.

4. The case of the complainant is that the complainant and the

accused are medical practitioners at Tirunelveli and are well known to

each other. The accused jointly borrowed a sum of Rs.45 lakhs on several

occasions during the period between December-2013 and August-2014 for

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development of their hospital and agreed to repay the said amount within a

short time. Since the accused failed to repay the said amount, the

complainant demanded the accused to repay the amount immediately.

Hence, the accused on 01.01.2015 gave a post dated cheque dated

10.06.2015 drawn on State Bank of India, Tirunelveli Branch for Rs.45

lakhs in favour of the complainant to discharge their liability, requesting

the complainant to present the cheque on 10.06.2015 or subsequently and

encash the same. Believing the words of the accused, the complainant

presented the cheque for collection on 10.06.2015 through State Bank of

India, Tirunelveli Branch but the same was returned dishonored for the

reason payment stopped by the drawer. The complainant immediately

informed about the dishonor of the cheque to the accused, who in turn

requested the complainant to re-present the cheque again after four weeks

and they would make necessary arrangements for encashment. The

complainant, believing the same, presented the cheque again for collection

on 13.07.2015 through State Bank of India, Tirunelveli Branch but the

cheque was again returned dishonored as payment was stopped by the

drawer, through banker's memo on 13.07.2015. Hence, the complainant

sent a legal notice dated 10.08.2015 to the accused demanding them to pay

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the amount covered by the cheque. The first accused received the said

notice on 11.08.2015 but the second accused managed to return as

unclaimed. The first accused sent a reply notice dated 20.08.2015 with

false and frivolous allegations. Since the accused have not paid the cheque

amount within the stipulated time, the complainant was constrained to file

the above complaint for the offence under Section 138 of the NI Act.

5. The learned Judicial Magistrate, upon receiving the complaint,

recorded the sworn statement of the complainant and on perusing the

records, upon satisfied that there existed a prima facie case took the case

on file in S.T.C.No.128 of 2016 and ordered for issuance of summons to

the accused. After appearance of the accused, copies of the records were

furnished to them under Section 207 Cr.P.C. When the accused were

questioned about the offence alleged against them, they denied the

commission of offence and pleaded not guilty.

6. During trial, the complainant examined himself as P.W.1 and

exhibited 7 documents as Ex.P.1 to Ex.P.7.

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7. After closure of the complainant's side evidence, the accused

were examined under Section 313(1)(b) Cr.P.C. with regard to the

incriminating aspects found against them and the accused denied the same

as false and further stated that a false case has been foisted against them.

8. The defence examined the first accused as D.W.1 and exhibited

12 documents as Ex.D.1 to Ex.D.12. Thereafter, the complainant

summoned the Bank Manager of State Bank of India, Sripuram Branch

and examined Thiru.Chellappa as C.W.1 and the said witness produced the

copy of the bank statement of the accused under Ex.C.1.

9. The learned Judicial Magistrate, upon considering the evidence

both oral and documentary and on hearing the arguments of both the sides,

passed the impugned judgment dated 26.02.2019 holding that the

complainant has not proved the offence under Section 138 of the NI Act

against the accused beyond reasonable doubt, acquitted both the accused

under Section 255(1) Cr.P.C. Aggrieved by the impugned judgment of

acquittal, the complainant has filed the present appeal.

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10. Whether the impugned judgment of acquittal passed in

S.T.C.No.128 of 2016 dated 26.02.2019 on the file of the Judicial

Magistrate No.4, Tirunelveli, is liable to be set aside? is the point for

consideration.

11. Before entering into further discussion, it is necessary to refer

Sections 118(a) and 139 of the Negotiable Instruments Act, which deal

with statutory presumptions,

“Section 118 : Presumptions as to negotiable instruments,

- Until the contrary is proved, the following presumptions

shall be made:-

(a) of consideration – that every negotiable instrument

was made or drawn for consideration, and that every such

instrument, when it has been accepted, indorsed,

negotiated or transferred, was accepted, indorsed,

negotiated or transferred for consideration;”

“Section 139 : Presumption in favour of holder. - It shall

be presumed, unless the contrary is proved, that the holder

of a cheque received the cheque of the nature referred to

in Section 138 for the discharge, in whole or in part, of

any debt or other liability.”

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12. It is the admitted case of both the parties that the complainant as

well as the accused are practising Doctors at Tirunelveli, that the second

accused is the wife of the first accused and that the complainant and the

accused were holding the post of President, Secretary and Joint Secretary

of Indian Medical Association, Tirunelveli Branch from 2012 for a period

of three years.

13. It is the specific case of the complainant that the accused having

good acquaintance with the complainant borrowed Rs.45 lakhs on several

occasions during the period between December-2013 and August-2014 for

the development of their hospital promising to repay the amount within a

short time, that since the accused failed to repay the amount as agreed, the

complainant demanded the accused to repay the amount immediately, that

the accused on 01.01.2015 issued a post dated cheque dated 10.06.2015

drawn on State Bank of India, Tirunelveli Branch for Rs.45 lakhs in

favour of the complainant under Ex.P.1, that the complainant presented the

cheque for collection on 10.06.2015 through State Bank of India,

Tirunelveli Branch but the same was returned dishonored as payment

stopped by the drawer vide banker's memo dated 10.06.2015 under Ex.P.2

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series, that the complainant informed about the dishonor of the cheque to

the accused immediately and the accused requested the complainant to

present the cheque again after four weeks promising to honor the cheque,

that the complainant, believing the words of the accused, presented the

cheque again on 13.07.2015 but the same was again returned dishonored

as payment was stopped by the drawer through banker's memo dated

13.07.2015 under Ex.P.2 series, that the complainant sent a legal notice

dated 10.08.2015 under Ex.P.3 to the accused directing them to pay the

amount covered by the cheque, that the first accused received the notice

on 17.08.2015 as evident from Ex.P.4 and the second accused managed to

return as unclaimed under Ex.P.5 (returned postal cover), that the first

accused sent a reply notice dated 20.08.2015 under Ex.P.6 with false and

untenable allegations and that since the accused failed to pay the cheque

amount within the stipulated time, the complainant was forced to file the

above complaint.

14. The defence of the accused, as evident from Ex.P.6 (reply

notice), cross-examination evidence of P.W.1 and the evidence of D.W.1

(first accused), is that the complainant and the accused being office

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bearers of Indian Medical Association and as per the aspiration of its

members for buying an own building for Indian Medical Association, they

proposed to purchase a building in an apartment under Mayan IMA

Residence from one Mr.Ramesh Raja of Mayan Builders for a sum of

Rs.44 lakhs, that they have also decided to inaugurate Indian Medical

Association, Tirunelveli office in the new building along with State

Council meeting of Indian Medical Association Tamil Nadu on

15.06.2014, that since the entire sale consideration was not paid and the

inauguration date was nearing, the complainant asked the accused to give

an empty cheque so that he would fill and give it to Mayan Builders as

security in order to obtain the possession of the building and believing the

words of the complainant, the accused gave a blank signed cheque, that

thereafter they conducted the inauguration function in the said apartment

on 15.06.2014 and subsequently, settled the entire balance sale price with

the support of other members of their Association, that the accused, after

coming to know that the cheque issued by them was not utilized,

approached the complainant and requested him to return the cheque but

the complainant informed them that the said cheque was misplaced and he

was trying to find out the same and hence, the accused apprehending that

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the cheque may go to wrong hands, gave intimation to their bank for stop

payment on 20.08.2014 after informing the complainant, that due to

election of new office bearers for Indian Medical Association, Tirunelveli

Branch, the relationship between the complainant and the accused got

strained in March-2015 and the complainant fraudulently misused the

blank cheque issued to him, as if, the accused borrowed a sum of Rs.45

lakhs and handed over the cheque on 01.01.2015 and that the accused

neither borrowed any amount from the complainant nor issued any cheque

in his favour.

15. The accused have also taken a stand that the complainant and

the accused have jointly purchased a house building bearing Door No.178,

7

th

Street, Main Road, Perumalpuram in a public auction conducted by

Bank of Baroda under SARFAESI Act on 20.03.2013 and sale certificate

was issued by the Bank on 16.05.2013, that total sale consideration of

Rs.1,05,05,000/- and the registration charges and other expenses of Rs.15

lakhs were contributed by the accused through their bank account, that the

complainant had taken more than one year to pay his share of sale price

through cash and cheques and that subsequently the accused purchased the

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complainant's 1/3

rd

share in the house property for valid consideration vide

sale deed dated 30.07.2014 under Ex.D.6.

16. As rightly contended by the learned counsel appearing for the

complainant, it is evident from the reply notice and the evidence adduced

by the accused that they have specifically admitted that Ex.P.1 (cheque)

was belonging to them and also the signatures found therein. But

according to the accused, the said cheque was given to the complainant for

giving it to Mayan Builders as a security for permitting to inaugurate the

building without settling the entire sale price.

17. It is pertinent to mention that the complainant as P.W.1 gave

evidence reiterating the complaint contentions and deposed about the

liability of the accused, issuance of cheque therefor, dishonor of cheque,

issuance of statutory notice and the failure of the accused to pay the

amount within the stipulated time. On considering the evidence of P.W.1

and also the admission of the accused with regard to Ex.P.1 (cheque) and

the signatures found therein, the learned Judicial Magistrate has rightly

drawn a presumption under Section 139 of the NI Act in favour of the

complainant.

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18. The learned counsel appearing for the complainant would rely

on a decision of the Hon'ble Supreme Court in Bir Singh Vs. Mukesh

Kumar reported in (2019) 4 SCC 197, wherein, the Hon'ble Apex Court

has specifically held that the onus to rebut the presumption under Section

139 that the cheque has been issued in discharge of a debt or liability is on

the accused and the fact that the cheque might be post dated does not

absolve the drawer of a cheque of the penal consequences of Section 138

of the NI Act and the relevant passages are extracted hereunder:

“37. A meaningful reading of the provisions of the

Negotiable Instruments Act including, in particular,

Sections 20, 87 and 139, makes it amply clear that a

person who signs a cheque and makes it over to the payee

remains liable unless he adduces evidence to rebut the

presumption that the cheque had been issued for payment

of a debt or in discharge of a liability. It is immaterial that

the cheque may have been filled in by any person other

than the drawer, if the cheque is duly signed by the drawer.

If the cheque is otherwise valid, the penal provisions of

Section 138 would be attracted.

38. If a signed blank cheque is voluntarily presented

to a payee, towards some payment, the payee may fill up

the amount and other particulars. This in itself would not

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invalidate the cheque. The onus would still be on the

accused to prove that the cheque was not in discharge of a

debt or liability by adducing evidence.

....

40. Even a blank cheque leaf, voluntarily signed and

handed over by the accused, which is towards some

payment, would attract presumption under Section 139 of

the Negotiable Instruments Act, in the absence of any

cogent evidence to show that the cheque was not issued in

discharge of a debt.

.....

42. In the absence of any finding that the cheque in

question was not signed by the respondent-accused or not

voluntarily made over to the payee and in the absence of

any evidence with regard to the circumstances in which a

blank signed cheque had been given to the appellant-

complainant, it may reasonably be presumed that the

cheque was filled in by the appellant-complainant being

the payee in the presence of the respondent-accused being

the drawer, at his request and/or with his acquiescence.

The subsequent filling in of an unfilled signed cheque is

not an alteration. There was no change in the amount of

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the cheque, its date or the name of the payee. The High

Court ought not to have acquitted the respondent-accused

of the charge under Section 138 of the Negotiable

Instruments Act.”

19. The learned counsel appearing for the complainant would also

rely on a decision of the Hon'ble Supreme Court in M/s.Kalamani Tex

and another Vs. P.Balasubramanian reported in (2021) 2 SCC (Cri) 555

and the relevant passage is extracted hereunder:

“14. Adverting to the case in hand, we find on a

plain reading of its judgment that the trial Court

completely overlooked the provisions and failed to

appreciate the statutory presumption drawn under Section

118 and Section 139 of NIA. The Statute mandates that

once the signature(s) of an accused on the

cheque/negotiable instrument are established, then these

‘reverse onus’ clauses become operative. In such a

situation, the obligation shifts upon the accused to

discharge the presumption imposed upon him. This point

of law has been crystalized by this Court in Rohitbhai

Jivanlal Patel vs. State of Gujarat, (2019) 18 SCC 106 in

the following words:

“In the case at hand, even after purportedly drawing

the presumption under Section 139 of the NI Act, the

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trial court proceeded to question the want of evidence

on the part of the complainant as regards the source

of funds for advancing loan to the accused and want

of examination of relevant witnesses who allegedly

extended him money for advancing it to the accused.

This approach of the trial court had been at variance

with the principles of presumption in law. After such

presumption, the onus shifted to the accused and

unless the accused had discharged the onus by

bringing on record such facts and circumstances as to

show the preponderance of probabilities tilting in his

favour, any doubt on the complainant's case could not

have been raised for want of evidence regarding the

source of funds for advancing loan to the appellant-

accused…..””

20. The learned counsel appearing for the accused would rely on a

decision of the Hon'ble Supreme Court in N.Vijay Kumar Vs. Vishwanath

Rao N reported in 2025 SCC OnLine SC 873, wherein, the decision of the

Hon'ble Supreme Court in Rajesh Jain Vs. Ajay Singh reported in (2023)

10 SCC 148 was referred and the Hon'ble Apex Court has dealt with the

standard of proof required to rebut the presumption and the relevant

passages are extracted hereunder:

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“39. The standard of proof to discharge this

evidential burden is not as heavy as that usually seen

in situations where the prosecution is required to prove

the guilt of an accused. The accused is not expected to

prove the non-existence of the presumed fact beyond

reasonable doubt. The accused must meet the standard

of ‘preponderance of probabilities’, similar to a

defendant in a civil proceeding. [Rangappa vs. Mohan

(AIR 2010 SC 1898)]

40. In order to rebut the presumption and prove

to the contrary, it is open to the accused to raise a

probable defence wherein the existence of a legally

enforceable debt or liability can be contested. The

words ‘until the contrary is proved’ occurring in

Section 139 do not mean that accused must necessarily

prove the negative that the instrument is not issued in

discharge of any debt/liability but the accused has the

option to ask the Court to consider the non-existence of

debt/liability so probable that a prudent man ought,

under the circumstances of the case, to act upon the

supposition that debt/liability did not exist.

[Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983)

See also Kumar Exports Vs. Sharma Carpets (2009) 2

SCC 513

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41. In other words, the accused is left with two

options. The first option-of proving that the

debt/liability does not exist-is to lead defence evidence

and conclusively establish with certainty that the

cheque was not issued in discharge of a debt/liability.

The second option is to prove the non-existence of

debt/liability by a preponderance of probabilities by

referring to the particular circumstances of the case.

The preponderance of probability in favour of the

accused's case may be even fifty one to forty nine and

arising out of the entire circumstances of the case,

which includes: the complainant's version in the

original complaint, the case in the legal/demand

notice, complainant's case at the trial, as also the plea

of the accused in the reply notice, his 313 statement or

at the trial as to the circumstances under which the

promissory note/cheque was executed. All of them can

raise a preponderance of probabilities justifying a

finding that there was ‘no debt/liability’. [Kumar

Exports and Sharma Carpets, (2009) 2 SCC 513]

42. The nature of evidence required to shift the

evidential burden need not necessarily be direct

evidence i.e., oral or documentary evidence or

admissions made by the opposite party; it may

comprise circumstantial evidence or presumption of

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law or fact.

43. The accused may adduce direct evidence to

prove that the instrument was not issued in discharge

of a debt/liability and, if he adduces acceptable

evidence, the burden again shifts to the complainant.

At the same time, the accused may also rely upon

circumstantial evidence and, if the circumstances so

relied upon are compelling the burden may likewise

shift to the complainant. It is open for him to also rely

upon presumptions of fact, for instance those

mentioned in Section 114 and other sections of the

Evidence Act. .....

44. Therefore, in fine, it can be said that once the

accused adduces evidence to the satisfaction of the

Court that on a preponderance of probabilities there

exists no debt/liability in the manner pleaded in the

complaint or the demand notice or the affidavit-

evidence, the burden shifts to the complainant and the

presumption 'disappears' and does not haunt the

accused any longer. The onus having now shifted to the

complainant, he will be obliged to prove the existence

of a debt/liability as a matter of fact and his failure to

prove would result in dismissal of his complaint case.

Thereafter, the presumption under Section 139 does not

again come to the complainant's rescue. Once both

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parties have adduced evidence, the Court has to

consider the same and the burden of proof loses all its

importance. [Basalingappa vs. Mudibasappa, AIR

2019 SC 1983; See also, Rangappa vs. Sri Mohan

(2010) 11 SCC 441]”

21. At this juncture, it is also necessary to refer the decision of the

Hon'ble Supreme Court in Rangappa Vs. Sri Mohan reported in (2011) 11

SCC 441,

“27. Section 139 of the Act is an example of a

reverse onus clause that has been included in furtherance

of the legislative objective of improving the credibility of

negotiable instruments. While Section 138 of the Act

specifies a strong criminal remedy in relation to the

dishonour of cheques, the rebuttable presumption under

Section 139 is a device to prevent undue delay in the

course of litigation. However, it must be remembered that

the offence made punishable by Section 138 can be better

described as a regulatory offence since the bouncing of a

cheque is largely in the nature of a civil wrong whose

impact is usually confined to the private parties involved

in commercial transactions. In such a scenario, the test of

proportionality should guide the construction and

interpretation of reverse onus clauses and the

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accused/defendant cannot be expected to discharge an

unduly high standard or proof.

28. In the absence of compelling justifications,

reverse onus clauses usually impose an evidentiary

burden and not a persuasive burden. Keeping this in view,

it is a settled position that when an accused has to rebut

the presumption under Section 139, the standard of proof

for doing so is that of `preponderance of probabilities'.

Therefore, if the accused is able to raise a probable

defence which creates doubts about the existence of a

legally enforceable debt or liability, the prosecution can

fail. As clarified in the citations, the accused can rely on

the materials submitted by the complainant in order to

raise such a defence and it is conceivable that in some

cases the accused may not need to adduce evidence of

his/her own.

22. The Hon'ble Supreme Court, in Tedhi Singh Vs. Narayan Dass

Mahant reported in (2022) 6 SCC 738, has observed that the accused is

not expected to discharge an unduly high standard of proof and the

principle has developed that all which the accused needs to establish is a

probable defence and as to whether a probable defence has been

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established is a matter to be decided on the facts of each case on the

conspectus of evidence and circumstances that exist and the relevant

portion is extracted hereunder:

“It is also open to him to establish the very same

aspect by pointing to the materials produced by the

complainant himself. He can further, more importantly,

achieve this result through the cross examination of the

witnesses of the complainant. Ultimately, it becomes the

duty of the Courts to consider carefully and appreciate the

totality of the evidence and then come to a conclusion

whether in the given case, the accused has shown that the

case of the complainant is in peril for the reason that the

accused has established a probable defence..”

23. No doubt, the presumption available under Sections 118 and 139

of the NI Act are rebuttable in nature. It is settled law that the accused, in

order to rebut the presumption drawn in favour of the complainant under

Sections 118 and 139 of the NI Act, is not required to adduce any evidence

and he can very well prove his probable defence through the evidence

adduced by the complainant and that the standard of proof required is of

preponderance of probabilities.

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24. The only point to be decided is as to whether the accused

through the cross-examination evidence of P.W.1 and the evidence

produced on either side have specifically shown a probable defence and

thereby rebutted the presumption drawn under Sections 118 and 139 of the

NI Act.

25. It is admitted by both the parties that the complainant and the

accused have jointly purchased a property bearing Door No.178, 7

th

street,

Main Road, Perumalpuram in a public auction conducted by Bank of

Baroda under SARFAESI Act on 20.03.2013 and that sale certificate was

issued by the Bank on 16.05.2013 under Ex.D.5. It is also not in dispute

that the complainant subsequently sold his undivided 1/3

rd

share in the

property purchased at Perumalpuram in favour of the accused vide sale

deed dated 30.07.2014 under Ex.D.6. But at the same time, the

complainant as well as the accused gave different version with regard to

the contribution of part of the sale price by the complainant and the

subsequent payment of sale price by the accused for Ex.D.6 sale to the

complainant.

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26. The learned counsel appearing for the complainant would

submit that conveyance and re-conveyance of Perumalpuram property

under Ex.D.5 and Ex.D.6 are totally distinct and different transactions

among the parties to the present proceedings and the said sales had no

nexus with the present cheque transaction, that the accused gave

weightage to the sale transactions only to cause misconception and

confusion in the mind of the trial Court to consider it as a rebuttal

evidence as against its statutory presumption in favour of the complainant

under Section 139 of the NI Act and that the trial Court misconceived the

transactions under Ex.D.5 dated 16.05.2013 and Ex.D.6 dated 30.07.2014.

27. It is the case of the accused that the entire sale consideration,

registration charges and other expenses for the purchase of property at

Perumalpuram through public auction were provided by the accused and

that though the complainant was liable to pay his share of Rs.40 lakhs, he

did not pay at the time of purchase but paid subsequently in piece-meal

during one year period. But according to the complainant, since the

accused were holding the amount of Rs.65 lakhs given by the complainant

as loans to the accused, the accused informed the complainant not to give

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any amount for purchase of the property and they would give the

complainant's share also and that therefore, the complainant did not pay

any amount for purchasing the said property. It is the further case of the

complainant that since the complainant did not pay any amount for the

purchase, while selling his share of the property to the accused he

executed the sale deed under Ex.D.6 without receiving any sale

consideration and that is why, it was recited in Ex.D.6 sale deed that sale

consideration was already paid. But according to the accused, since the

complainant did not want to retain any share in Perumalpuram property,

the accused have paid the sale consideration and after settling the entire

sale price, Ex.D.6 was executed by the complainant. To put it in short,

according to the complainant, he did not receive any sale consideration for

Ex.D.6 sale but on the other hand, according to the accused, they have

paid the sale consideration to the complainant.

28. As rightly contended by the learned counsel appearing for the

accused, even according to the complainant, the accused were liable to pay

Rs.65 lakhs to the complainant. The contention of the complainant that he

executed Ex.D.6 sale deed without receiving any sale price, is very hard to

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believe. Even assuming for argument's sake that the complainant did not

contribute his share of sale price at the time of purchasing the property in a

public auction, as rightly observed by the learned trial Judge, no prudent

person would execute a sale deed without receiving the sale price of Rs.40

lakhs when a sum of Rs.65 lakhs was due to him from the sellers /

accused. As rightly contended by the learned counsel appearing for the

accused, the complainant has not offered any acceptable reason or

explanation for executing Ex.D.6 sale deed without receiving any sale

price, particularly, when Rs.65 lakhs was due by the accused to him at that

time.

29. As rightly pointed out by the learned counsel appearing for the

accused, the complainant, in his pre-complaint notice under Ex.P.3 as well

as in his complaint and in his chief examination, has stated that the

accused jointly borrowed a sum of Rs.45 lakhs on several occasions

during the period between December-2013 and August-2014 for the

development of their hospital and promised that they would repay the said

amount within a short time but not elaborated anything further.

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30. The complainant has not furnished particulars about the dates

and amounts lent, but in cross-examination, P.W.1 would admit that he

advanced loans on seven occasions between December-2013 and

August-2014, of which, three transactions were shown in his account and

two loans were paid through cheques. As rightly pointed out by the

learned counsel appearing for the accused, even during cross-examination,

P.W.1 did not furnish the dates of cash payments, cheque payments or the

loan amounts.

31. It is the specific case of the complainant that apart from lending

Rs.45 lakhs on several occasions from December-2013 to August-2014, he

gave two other loans through cheques one to the first accused for Rs.15

lakhs and another to the second accused for Rs.5 lakhs to meet out the

educational expenses of their sons. It is not in dispute that the complainant

filed a civil suit in O.S.No.113 of 2015 for recovery of the said amount of

Rs.20 lakhs from the accused and was pending on the file of the III

Additional District Judge, Tirunelveli.

32. The learned counsel appearing for the complainant would

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Crl.A.(MD)No.664 of 2022

submit that the suit in O.S.No.113 of 2015 was decreed in his favour on

14.10.2019 and the appeal filed by the accused is pending in A.S.(MD)No.

41 of 2020 before this Court.

33. According to the complainant, the above two cheque

transactions covered under the judgment and decree in O.S.No.113 of

2015 for recovery of money is totally different and distinct money

transactions between the complainant and the accused and the same cannot

be taken as a defence in the present proceedings. But according to the

defence, the said two cheque payments were made by the complainant

towards his share of sale consideration for Perumalpuram property to the

accused, as the entire sale consideration and other expenses were paid by

the accused earlier. According to the complainant, the said two cheques

were dated 18.07.2013. But as rightly pointed out by the learned counsel

appearing for the accused, P.W.1, in his cross examination, would admit

that he did not advance any loan to the accused prior to December-2013

and the relevant portion is extracted hereunder:

“vjphpfSf;F 2013 brk;gh; khjj;jpy;jhd; Kjd;

Kjypy; fld; nfhLj;Njd;. mjw;F Kd; vjphpfSf;F

fld; nfhLj;Njdh vd;why; ,y;iy. mth;fs; Nfl;fTk;

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Crl.A.(MD)No.664 of 2022

,y;iy. .... Kjd; Kjypy; vjphpfSf;F vt;tsT

gzk; fld; nfhLj;Njd; vd;why; Ie;J yl;rk; gzk;

nfhLj;Njd;. vg;NghJ gzk; fld; nfhLj;Njd; vd;why;

2013 etk;gh; khjk; nfhLj;Njd;. Njjp jw;NghJ

Qhgfk; ,y;iy. Mdhy; Fwpj;J itj;Js;Nsd;. ve;j

ve;j fhy fl;lj;jpy; vt;tsT njhiffis

vjphpfSf;F nfhLj;Njd; vd;W vd;dhy; jw;NghJ

nrhy;y KbAkh vd;why; vjphpfSf;F nfhLj;j

njhiffis Fwpj;J itj;Js;Nsd;. vdJ

fzf;Ffis ghh;j;jhy; njhpAk;. ehd; Fwpj;J

itj;Js;s vjphpfSf;F fldhf nfhLj;j njhiffs;

Mbl; nra;ag;gl;l vdJ fzf;Ffspy; Jyq;Fkh

vd;why; Jyq;Fk;.”

34. As already pointed out, P.W.1 would admit that he gave three

loans which were shown in the audits but he gave money on some

occasions which were not shown in accounts. He would say,

“Mbl; ,y;yhky; rpy Kiw gzk; fldhf

nfhLj;Js;Nsd;. Mbl; nra;j fzf;fpy; %d;W Kiw

gzk; fldhf nfhLj;Js;Nsd;. vjphpfSf;F vj;jid

Kiw gzk; fldhf nfhLj;Njd; vd;why; Rkhh; 7

Kiw gzk; fldhf nfhLj;Njd;. .... vjphpfSf;F

fld; nfhLj;j nkhj;j njhifahd 45>00>000 /-

j;ijAk; ehd; gzkhf nfhLj;Njdh vd;why; ,uz;L

Kiw fhNrhiy %yk; nfhLj;Njd;. me;j fhNrhiy

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Crl.A.(MD)No.664 of 2022

%ykhf nfhLj;j fld; njhifia ve;j tq;fp

fhNrhiy %yk; nfhLj;Njd; vd;why; ];Nll;nkd;il

ghh;j;Jjhd; nrhy;y ,aYk;. xt;nthU Kiw

vjphpfSf;F fld; nfhLf;Fk; NghJk; mij Fwpj;Jf;

nfhz;L vjphpfsplk; ifnaOj;J thq;Fk; gof;fk;

cz;lh vd;why; ,y;iy. vdJ ilhpapy; Fwpj;Jf;

nfhs;Ntd;. vd;Dila ilhpia ghh;j;jhy; vd;d vd;d

Njjpfspy; vjphpfSf;F fldhf nfhLj;Njd; vd;W

njhpAk; vd;why; Mkhk;. tof;fwpQh; mwptpg;G mDg;Gk;

NghJ me;j ilhpia fhl;b ve;j ve;j Njjpfspy;

gzk; fld; nfhLj;Njd; vd;W mwptpg;Gfspy;

Fwpg;gpl;L nrhy;ytpy;iy vd;why; rhpjhd;.”

35. As rightly contended by the learned counsel appearing for the

accused, though the complainant has specifically admitted that he is

having accounts to show the loans advanced to the accused, he has not

chosen to produce the same. Moreover, P.W.1 would admit in his cross-

examination that he advanced two loans through cheques (allegedly

covered under the civil suit) during the period in which Rs.45 lakhs was

given.

“,e;j ehw;gj;ije;J yl;rk; jtpu vjphpfSf;Fk;

vdf;Fk; NtW VjhtJ fld; njhif cs;sjh

vd;why; &.4500000/- fldhf nfhLj;j fhy fl;lj;jpy;

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Crl.A.(MD)No.664 of 2022

1k; vjphpf;F jdJ gps;isfspd; gbg;G nrytpw;fhf 1k;

vjphpapd; ngaUf;F 15 yl;rKk;> 2k; vjphp ngaUf;F 5

yl;rKk; nrf; %yk; fld; nfhLj;Njd;. 1 kw;Wk; 2k;

vjphpfSf;F ,e;j tof;F fhNrhiy njhifahd

&gha; ehw;gj;ije;J yl;rj;ij gbg;gbahf fldhf

vjphpfSf;F nfhLj;j fhyj;jpy;jhd; NkNy nrhd;d 15

yl;rj;ij 1k; vjphpf;Fk; &gha; Ie;J yl;rj;ij 2k;

vjphpf;Fk; fhNrhiy %yk; fldhf nfhLj;Njd;. ,e;j

tof;F fhNrhiy njhifahd 4500000 /- j;ij

vjphpfSf;F nfhQ;rk; nfhQ;rkhf nfhLj;Jf;

nfhz;bUe;j fhy fl;lj;jpy; ,Wjp fl;lj;jpy;jhd; 1k;

vjphpf;F 15yl;rKk; 2k; vjphpf;F &gha; Ie;J yl;rKk;

fldhf nfhLj;Njdh vd;why; Mkhk;. Mf nkhj;jk; 1

kw;Wk; 2 vjphpfs; vdf;F 65>00>000/- fldhf nfhLf;f

Ntz;b ,Ue;jJ vd;why; rhpjhd;.”

36. As already pointed out, according to the complainant, he gave

the said two cheques on 18.07.2013 to the accused but as per the pre-

complaint notice, complaint and evidence, he had no loan transaction prior

to December-2013 but in cross-examination, he would admit that he lent

first loan of Rs.5 lakhs in November-2013 and two cheque transactions

were at the end of period during which Rs.45 lakhs was paid piece-meal.

As rightly pointed out by the learned counsel appearing for the accused,

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Crl.A.(MD)No.664 of 2022

P.W.1 would admit that the loan transactions can be viewed in his bank

statement. He would say,

“vjphpfSf;F nfhLj;j fld; njhif rk;ge;jkhf

tq;fp ghyd;]; \Pl;Lfis vd;dhy; jhf;fy; nra;a

KbAkh vd;why; KbAk;. vdJ tUkhd thp

fzf;Ffs; kw;Wk; Mbl; hpg;Nghh;l; Mfpatw;iw

ePjpkd;wj;jpy; jhf;fy; nra;a KbAkh vd;why; KbAk;.

me;j fzf;F tof;Ffis ghh;j;jhy; ehd; vjphpfSf;F

ve;j ve;j fhy fl;lj;jpy; fldhf gzk; nfhLj;Njd;

vd;W njhpAk; vd;why; rhpjhd;.”

37. But admittedly, the complainant has not chosen to produce the

bank statement or Income Tax Returns to prove the alleged loan

transaction, since the same were specifically disputed by the accused.

38. As rightly contended by the learned counsel appearing for the

accused, the complainant, in his evidence, would admit that he did not

take any loan documents from the accused while advancing Rs.65 lakhs

except Ex.P.1 cheque and the relevant portion is extracted hereunder:

“Nkw;gb vjphpfs; nfhLf;f Ntz;ba

mWgj;ije;J yl;rj;jpw;F vjphpfsplk; ,Ue;J MjuT

vJTk; vOjp thq;ftpy;iy vd;why; me;j njhiff;F

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Crl.A.(MD)No.664 of 2022

Mjuthf ,e;j tof;F fhNrhiyia kl;Lk;

thq;fpNdd;. .... ehd; vjphpfSf;F nfhLj;j

mWgj;ije;J yl;rj;jpw;F tl;b thq;fpNddh vd;why;

ez;gh;fs; vd;gjhy; tl;b thq;ftpy;iy. fhNrhiyia

vjphpfs; ve;j Njjpapy; nfhLj;jhh;fs; vd;why; 1.1.15

md;W nfhLj;jhh;fs;. vjphpfSf;F gzk; fldhf

nfhLj;j fhy fl;lj;jpy; mjw;fhf ehd; ve;j MjuTk;

thq;ftpy;iy vd;why; rhpjhd;. .... 1.1.15k; md;W

mtru Njitf;fhf vjphpfsplk; gzk; Nfl;Nldh

vd;why; ehd; ehw;gj;ije;J yl;rk; &gha; gzk;

nfhLj;jpUe;jjhy; mjw;F MjuT VjhtJ Ntz;Lk;

vd;W tPl;by; Nfl;ljhy; ehd; vjphpfsplk; MjuT

Nfl;Nld;.”

39. The learned counsel appearing for the accused would submit

that on the basis of the complaint given by the complainant, FIR came to

be registered under Ex.D.2 against the accused in Crime No.6 of 2016 on

09.02.2016 under Sections 406, 420 and 120B IPC and in the said

complaint, the complainant had taken a totally contradictory stand with

regard to the loan transaction. He would further submit that the accused

were forced to file a petition in Crl.O.P.(MD)No.3368 of 2016 under

Section 482 Cr.P.C. to quash the FIR in Crime No.6 of 2016 and this Court

vide order dated 11.03.2019 considering the complaint averments and also

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Crl.A.(MD)No.664 of 2022

taking note of the judgment of acquittal made in S.T.C.No.128 of 2016

quashed the FIR.

40. As rightly pointed out by the learned counsel appearing for the

accused, in Ex.D.2 (FIR), it was stated,

“.... Nrtpah; fhydpapy; Gjpjhf kUj;Jtkid

fl;Ltjw;fhfTk; igadpd; kUj;Jt gbg;G

Nrh;f;iff;fhfTk; vd;dplk; gy jtizahf &.65>00>000

(&gha; mWgj;ije;J ,yl;rk;) fldhf ngw;Wf;

nfhz;lhh;fs;. ,jw;F mth;fs; nrf;Fk;> mth;fs; ,UtUk;

Nrh;e;J ifnaOj;jpl;l gpuhkrhp Nehl;L vd;dplk;

nfhLj;jpUe;jhh;fs;. 11.06.2015 md;W me;j gpuhkrhp

Nehl;by; rpy khw;wk; nra;tjhf $wp ,UtUk; vd;dplk;

thq;fpr; nrd;whh;fs;. ... ,d;W tiu me;j gpuhkrhp Nehl;il

vd;dplk; jpUg;gp jutpy;iy. nrf;if tq;fpapy; Nghl;ljpy;

gzk; ,y;iynad;W jpUk;gp te;Jtpl;lJ.”

41. But as rightly pointed out by the learned counsel appearing for

the accused, P.W.1, in his evidence, would say that he approached the

accused on 01.01.2015 for repayment of the loan amount and they have

issued Ex.P.1 cheque requesting him to present the cheque on 10.06.2015

and accordingly, he presented the cheque on 10.06.2015, but the

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complainant, in his pre-complaint notice or in the complaint, has nowhere

whispered about the execution of promissory note and more importantly,

taking back the promissory note by the accused on 11.06.2015. P.W.1, in

his cross-examination, would say,

“vjphpfs; vd; fz; Kd;dhy; fhNrhiyia epug;gp

ifnahg;gk; Nghl;Lf; nfhLj;jhh;fsh vd;why; tUk; NghNj

epug;gp ifnahg;gk; Nghl;Lf; nfhz;L te;jpUe;jdh;.

fhNrhiyapy; epug;gg;gl;Ls;s vOj;Jf;fs; 1k;

vjphpapDilaJ. vjphpfs; fhNrhiyia Njjp Nghlhky;

je;jhh;fs;. 13.6.15k; Njjp fhNrhiyia t#Yf;F

NghLq;fs; gzk; ,Uf;Fk; vd;whh;fs;. mjdhy;

fhNrhiyia 13.6.15 vd;W ehd; epug;gpNdd; vd;why; Mkhk;.

vjphpfs; fhNrhiyia nfhLj;j NghJ Njjpia epug;gp

nfhLf;f nrhy;yp ehd; Nfl;Nldh vd;why; gj;Jehs; Kd;Nd

gpd;Nd MFk; vd;gjhy; ehd; mt;thW Nfl;ftpy;iy.”

42. But according to the accused, they have sent a intimation to their

bank on 20.08.2014 directing them not to honor the cheque in dispute.

43. As already pointed out, it is the specific case of the complainant

that after the return of the cheque on 10.06.2015, he approached the

accused and informed about the dishonor but the accused requested him to

present the cheque again after four weeks and accordingly, he presented

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Crl.A.(MD)No.664 of 2022

the cheque again on 13.07.2015 but the same was dishonored again as

payment was stopped by the drawer.

44. Considering the entire evidence available on record and more

particularly, the admission of P.W.1 in his evidence before the trial Court,

the learned trial Judge has rightly held that the accused have successfully

rebutted the presumption drawn in favour of the complainant under

Sections 118 and 139 of the NI Act and as such, the burden gets shifted to

the complainant to prove that the disputed cheque was issued for

discharging the lawful amount due by the accused to him. As already

pointed out, the complainant has not produced any other evidence to show

that Ex.P.1 cheque was issued for discharging the legally enforceable debt

or liability. Hence, this Court has no hesitation in holding that the

complainant miserably failed to prove the liability of the accused and the

issuance of the cheque in dispute therefor. Consequently, this Court

concludes that the judgment of acquittal passed by the learned Judicial

Magistrate is perfectly legal and the same cannot be found fault with and

that therefore, the Criminal Appeal, which is devoid of merits, is liable to

be dismissed.

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Crl.A.(MD)No.664 of 2022

45. In the result, this Criminal Appeal is dismissed confirming the

judgment made in S.T.C.No.128 of 2016, dated 26.02.2019, on the file of

the Court of the Judicial Magistrate No.4, Tirunelveli in acquitting the

respondents under Section 138 of the Negotiable Instruments Act.

05.01.2026

NCC :yes/No

Index :yes/No

Internet:yes/No

csm

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Crl.A.(MD)No.664 of 2022

K.MURALI SHANKAR ,J.

csm

To

1. The Judicial Magistrate No.4,

Tirunelveli.

2.The Section Officer,

Criminal Section (Records),

Madurai Bench of Madras High Court,

Madurai.

Pre-Delivery Judgment made in

Crl.A.(MD)No.664 of 2022

Dated : 05.01.2026

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