Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 3375 (MAD)

. v. .

2014-09-16

M.VENUGOPAL

body2014
Judgment : M. Venugopal, J. 1. The Petitioner/Appellant/Complainant, has filed the instant Criminal Original Petition, as against the judgment of acquittal dated 28.03.2014 in S.T.C.No.293 of 2012, passed by the Learned Judicial Magistrate / Fast Track Court No.II (Judicial Magistrate Level), Erode. 2. The Learned Judicial Magistrate / Fast Track Court No.II (Judicial Magistrate Level), Erode, while passing the impugned judgment in S.T.C.No.293 of 2012 dated 28.03.2014, in Paragraph No.17, had interalia observed that “... as per Section 20 of the Negotiable Instruments Act, holder of the cheque alone is authorised to fill up the blanks, but here, the accused has disputed that she did not issue cheque in favour of the complainant, so the initial burden is on the complainant to show that the cheque was issued by the accused for discharging her legally enforceable debt, except the evidence of PW1, the complainant no other witness was examined to prove that PW1 has lent a sum of Rs.3,50,000/- to the accused on 23.02.2012 and to discharge the same, the accused has issued a post dated cheque, dated 23.03.2012, on perusal of cheque it reveals that the signature was in tamil and other details were in english, and there was difference in colour of ink also, as already stated that once cheque has been issued to the complainant for discharging the legally enforceable debt, she is authorised to fill up the endorsement, but there was no evidence to show that Ex.P1, cheque has been issued to the complainant with due authorisation to fill up the blanks in the cheque, hence, this Court is of the view, that the complainant is not entitled to invoke section 20 of Negotiable Instruments Act.” 3. Also, in Paragraph No.18, the Learned Judicial Magistrate / Fast Track Court No.II (Judicial Magistrate Level), Erode had proceeded to observe among other things that “....Thus, the accused has shifted the onus of proof back to the complainant to prove the case beyond reasonable doubt. But the complainant has not adduced any further evidence regarding the existence of legally enforceable debt and the cheque was issued by the accused to the complainant to discharge the legally enforceable debt. In a criminal jurisprudence, the complainant must prove the guilt of the charges levelled against the accused beyond all reasonable doubt, the accused has probabilised her defence and she need not prove the same by beyond all reasonable doubt. In a criminal jurisprudence, the complainant must prove the guilt of the charges levelled against the accused beyond all reasonable doubt, the accused has probabilised her defence and she need not prove the same by beyond all reasonable doubt. Hence, the complainant has failed to prove the case beyond all reasonable doubts and the point is answered accordingly...”, and resultantly acquitted the Respondent/Accused under Section 255(1) of Code of Criminal Procedure, 1973, holding that the complainant had failed to prove sufficiently that the respondent had committed an offence as contemplated under Section 138 of the Negotiable Instruments Act, 1881. 4. The Learned Counsel for the Petitioner/Appellant/Complainant submits that the trial Court went wrong in expecting the Petitioner/Appellant/Complainant to prove the case pleaded by the Respondent/Accused, when in effect, the onus is on the Respondent/Accused to prove his case. 5. The Learned Counsel for the Petitioner/Appellant urges before this Court that the presumption is in favour of the Petitioner/Appellant/Complainant under Section 138 of the Negotiable Instruments Act and this particular fact was not appreciated by the trial Court in proper and real perspective which has resulted in the serious miscarriage of justice. 6. Advancing his arguments, the Learned Counsel for the Petitioner/Appellant/Complainant proceeds to project an argument that the trial Court on an erroneous view had rejected the case of the Petitioner/Appellant/Complainant because of the fact that the transaction in issue was not reflected in her Income Tax returns and further the trial Court had failed to appreciate that individual tax returns would not reflect each and every transaction of the account holder and only in the books of accounts maintained by firms, such type is followed. 7. In effect, the submission of the Learned Counsel for the Petitioner/Appellant/Complainant is that the Petitioner/Appellant/ Complainant has a fair chance of success in the appeal and has been advised so in this regard. 8. On behalf of Respondent/Accused, no counter is filed and there is no objection on her side for this Court in allowing the present petition. 9. It is to be borne in mind that the provision seeking 'Leave to Appeal' is meant to ensure that no frivolous appeal is projected before a Court of Law against the 'Judgment of Acquittal' as a matter of routine or as a matter of course. 10. 9. It is to be borne in mind that the provision seeking 'Leave to Appeal' is meant to ensure that no frivolous appeal is projected before a Court of Law against the 'Judgment of Acquittal' as a matter of routine or as a matter of course. 10. It cannot be brushed aside that the Hon'ble High Court shall not dismiss a 'Leave to Appeal Petition' in limini without assigning proper and necessary reasons therefor. Moreover, in an appeal against the acquittal, the Hon'ble High Court shall not refuse leave application without ascertaining reasons and without giving reasons in accordance with law. 11. Inasmuch as the petitioner in the present Criminal Original Petition is seeking leave to prefer an appeal, this Court with a view to ascertain/examine the conclusion arrived at by the trial Court in acquitting the Respondent/Accused, by exercising its judicial discretion, allows the present Criminal Original Petition in the subject matter in issue in the interest of justice.