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2021 DIGILAW 2493 (MAD)

S. P. Alagappan v. P. Kannan

2021-09-22

T.KRISHNAVALLI

body2021
JUDGMENT : (Prayer: Criminal Original Petition filed under section 378(4) of the Criminal Procedure Code, to grant special leave to the petitioner to file the above appeal as against the judgment and order of acquittal passed by the Judicial Magistrate (Fast Track), Karaikudi, dated 31.01.2019 in C.C No.102 of 2018 acquitting the respondent for the offence under section 138 of Negotiable Instruments Act.) 1. This petition is filed to grant special leave to the petitioner to file the above appeal as against the judgment and order of acquittal passed by the Judicial Magistrate (Fast Track), Karaikudi, dated 31.01.2019 in C.C No.102 of 2018, acquitting the respondent for the offence under section 138 of Negotiable Instruments Act. 2. The learned counsel for the petitioner seeks permission to grant leave. It was opposed on the side of the respondent stating that the petitioner herein has filed the complaint under section 138 of N.I Act against the respondent before the Court below for recovery of amount due under the cheque No.000023, dated 20/01/2018 for Rs.10,00,000/- and it is further alleged in the complaint that a sum of Rs.1,50,000/- has been repaid on various occasions and the respondent disputed the entire case of the complainant and also the allegations that there was no liability by the respondent to the petitioner and even according to the case of the complainant, the liability is not the extent of the amount covered under the cheque in dispute and in the said circumstances, the offence under section 138 of N.I Act is not attracted, based on the decision reported in 2011(3)MWN(Cr.) DCC 93 (R.B.Ramakrishnan Vs. A.Meena), CDJ-1997-APHC-083 (Girdhari Lal Rathi Vs. P.T.V.Ramanujachari & another), CDJ 2008 MHC 768 (M/s.Emirates Finance (P) Ltd Vs. V.Harikrishnan) and 2020(3) MWN(Cr.) DCC 82 (Mad.) (Heer A.Rajani Vs. M.M.Syed Sikkander) and the trial court and first appellate court correctly dismissed the complaint filed under section 138 of the Negotiable Instruments Act and prays that grant leave petition is not maintainable. 3. This court has carefully perused the materials available on record. 4. The petitioner herein filed the petition under section 138 of the Negotiable Instruments Act. In the prayer column, it was stated as follows:- “TAMIL” 5. Hence, from the above averment, it is clear that the complainant filed the case only for Rs.8,50,000/- and not for Rs. 10,00,000/-. 3. This court has carefully perused the materials available on record. 4. The petitioner herein filed the petition under section 138 of the Negotiable Instruments Act. In the prayer column, it was stated as follows:- “TAMIL” 5. Hence, from the above averment, it is clear that the complainant filed the case only for Rs.8,50,000/- and not for Rs. 10,00,000/-. Hence, the ruling reported in 2020(3) MWN (Cr.) DCC 82 (Mad.) is not applicable to this case. Hence, the argument put forth on the learned counsel appearing for the respondent stating that the petitioner herein filed the case for Rs.10,00000/- and hence, the petition under section 138 of Negotiable Instrument Act is not maintainable, is not at all acceptable. 6. The reasons stated in this petition are acceptable. Hence, in the interest of justice, the petition is allowed and accordingly, special leave is granted.