A. SEKAR, S/O.AMARSINGH vs KARTHIKEYAN, S/O.RAJARAM,
- Court
- Madras High Court
CRL RC(MD) No. 410 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27-10-2026
CORAM
THE HON'BLE MRS.JUSTICE M.D.SUMATHI
CRL RC(MD) No. 410 of 2019
CNR:{HCMD010390432019}
A. Sekar ..Petitioner
Vs
Karthikeyan ..Respondent
Prayer: Criminal Revision Case filed under Sections 397 r/w 401 of
Criminal Procedure Code, to call for the records pertaining to the
judgement dated 07.06.2018 in C.A.No.94 of 2017on the file of the
I-Additional District and Sessions Judge (PCR), Tiruchirappalli
confirming the acquittal order passed in S.T.C.No.3189 of 2016 on the
file of the Judicial Magistrate, Manapparai, dated 21.08.2017 and set
aside the same.
For Petitioner: Mr.N.Ananda Kumar
For Respondent: Mr.D.Rameshkumar
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ORDER
This Criminal Revision Case has been filed under Sections 397
read with 401 of the Code of Criminal Procedure, challenging the
judgment dated 07.06.2018 passed by the learned I Additional District
and Sessions Judge (PCR), Tiruchirappalli, in C.A. No.94 of 2017,
whereby the appellate Court confirmed the judgment dated 21.08.2017
passed by the learned Judicial Magistrate, Manapparai, in S.T.C. No.3189
of 2016, acquitting the respondent of the offence under Section 138 of the
Negotiable Instruments Act, 1881.
2. The specific case of the complainant before the trial Court was
that the respondent/accused had borrowed a sum of Rs.8,00,000/- on
17.05.2016 and a further sum of Rs.9,00,000/- on 25.05.2016, totalling
Rs.17,00,000/-, and had executed a promissory note dated 25.05.2016 in
respect of the amount borrowed. According to the complainant, when
repayment was demanded, the respondent issued cheque No.036421 for
Rs.8,00,000/- dated 17.07.2016 and cheque No.036420 for Rs.9,00,000/-
dated 25.07.2016 towards discharge of the said liability. The cheques
were presented for collection on 05.10.2016 and were returned unpaid on
13.10.2016 for insufficiency of funds. The complainant further stated that
the respondent had lodged a complaint before the Manapparai Police
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Station on 05.10.2016 alleging misconduct on the part of the
complainant, but the complaint was closed by the police. Thereafter, the
respondent issued a legal notice dated 12.10.2016 containing allegations
against the complainant, to which the complainant sent a reply dated
18.10.2016 demanding repayment of the cheque amounts. As the
respondent failed to pay the amounts within the statutory period, the
complaint under Section 138 of the Negotiable Instruments Act was
instituted.
3. The complainant examined himself as P.W.1 and marked Ex.P1
and Ex.P2, the two disputed cheques; Ex.P3, the return memo; Ex.P4, the
legal notice issued on behalf of the respondent; Ex.P5, the reply notice
issued by the complainant; Ex.P6 and Ex.P7, the postal acknowledgment
cards; and Ex.P8, the counterfoils evidencing deposit of the cheques. The
complainant maintained that the amounts had been advanced to the
respondent and that the cheques were issued towards repayment. During
cross-examination, however, the complainant admitted that he had
advanced the sum of Rs.17,00,000/- without charging interest and that he
was maintaining an overdraft account with his bank. The financial
capacity of the complainant and the probability of advancing such a
substantial amount without interest, while himself availing banking
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facilities on which interest was payable, consequently became material
issues in the case.
4. The respondent denied having borrowed any amount from the
complainant and disputed the execution of the alleged promissory note
and the issuance of the cheques towards any liability owed to the
complainant. The respondent examined himself as D.W.1 and contended
that he had substantial financial liabilities, including a loan of
approximately Rs.1.64 crores and a pending suit for recovery of Rs.66.5
lakhs, and that he had no financial means to borrow money from the
complainant in the manner alleged. His specific defence was that he had
approached one Jeyaraman, examined as D.W.2, seeking a loan of
Rs.20,00,000/- for his business requirements. According to the
respondent, Jeyaraman took him to one Lourduraj, examined as D.W.3,
who allegedly advanced Rs.17,00,000/- after obtaining two signed,
unfilled cheques bearing Nos.036420 and 036421 and a signed, unfilled
promissory note. The respondent further claimed that he had agreed to
pay interest of Rs.34,000/- per month and that he repaid Rs.10,00,000/-
on 25.05.2015 and the balance sum of Rs.7,00,000/- on 13.09.2016 in the
presence of Jeyaraman. According to him, when he demanded the return
of the cheques and promissory note, the complainant stated that the
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documents were with Lourduraj and that he would retrieve and return
them. The respondent thus maintained that the disputed cheques had not
been issued towards any legally enforceable debt due to the complainant.
5. In support of the above defence, Jeyaraman was examined as
D.W.2. He stated that the respondent had approached him for a loan of
Rs.20,00,000/- and that he had taken the respondent to the complainant,
who doesn't have money at that time, in turn, took them to Lourduraj,
from whom the respondent allegedly received Rs.17,00,000/- against
signed cheques and a promissory note. D.W.2 also spoke about the
alleged repayments of Rs.10,00,000/- and Rs.7,00,000/- to the
complainant. However, during cross-examination, it was elicited that
D.W.2 and his brother had business dealings with the complainant and
that there were pending proceedings concerning financial liabilities,
including a recovery suit relating to an educational loan for his brother's
son. The trial Court considered these circumstances while assessing the
reliability of D.W.2's testimony and the possibility of disputes between
the witness and the complainant - Lourduraj, examined as D.W.3, did not
support the respondent's version. He categorically denied having lent any
money to the respondent and stated that, although he had money
transactions with the complainant, he had not advanced any amount to the
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respondent. The trial Court therefore found that the respondent's specific
theory that the loan had been obtained from Lourduraj through Jeyaraman
was not substantiated by the evidence of D.W.3. Nevertheless, the trial
Court proceeded to assess the respondent's defence in the context of the
entire evidence, including the complainant's financial position, the bank
records, the non-production of the alleged promissory note and the
circumstances surrounding the disputed cheques.
6. The Assistant Bank Manager of the complainant's bank was
examined as D.W.4. His evidence disclosed that the complainant was
maintaining an overdraft facility with a limit of Rs.90,00,000/-, that
properties had been mortgaged to obtain banking facilities and that four
loans had been availed, of which two had been discharged. Ex.D8, the
statement relating to the complainant's overdraft account, and Ex.D10,
the statements relating to the complainant's savings accounts, were relied
upon in assessing the complainant's financial transactions and capacity.
The appellate Court particularly noted that the account statements did not
disclose a cash withdrawal corresponding to the alleged advancement of
Rs.17,00,000/-. The respondent relied upon this circumstance to contend
that the complainant had not established the source from which the
alleged loan had been advanced. The Branch Manager of the respondent's
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bank was examined as D.W.5. His evidence disclosed that cheque
Nos.036419 and 036422 had been honoured in the year 2013. However,
he also clarified that there was no rule requiring cheque leaves to be
issued or used strictly in serial order, as the drawer could issue cheque
leaves at his discretion. Consequently, the mere fact that other cheque
numbers had been honoured earlier did not, by itself, establish that the
disputed cheques could not have been issued in the manner alleged by the
complainant.
7. Upon considering the oral and documentary evidence, the
learned Judicial Magistrate, Manapparai, held that the respondent was
entitled to be acquitted under Section 255(1) of the Code of Criminal
Procedure. The trial Court considered the statutory presumptions under
Sections 118 and 139 of the Negotiable Instruments Act and recognised
that the execution and issuance of a cheque attract a presumption which
may be rebutted by the accused. Though the evidence of D.W.3 did not
support the respondent's particular theory of borrowing from Lourduraj,
the trial Court examined the complainant's own financial circumstances
and the other evidence relating to the alleged transaction. It noted that the
complainant was maintaining an overdraft facility and paying interest to
the bank, whereas he claimed to have advanced Rs.17,00,000/- to the
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respondent without interest. The trial Court also considered the absence
of the alleged promissory note from the complainant's evidence and the
lack of a corresponding cash withdrawal supporting the alleged
advancement. On an overall assessment, the trial Court concluded that the
respondent had rebutted the statutory presumption on the standard of
preponderance of probabilities and that the complainant had not
established the alleged legally enforceable liability to the requisite
criminal standard.
8. Aggrieved by the acquittal, the complainant preferred
C.A.No.94 of 2017 before the learned I Additional District and Sessions
Judge (PCR), Tiruchirappalli. The appellate Court examined the rival
submissions, the evidence of P.W.1 and D.Ws.1 to 5, and the
documentary exhibits marked on either side. The appellate Court noted
that, although D.W.3 had not supported the respondent's theory of
borrowing, the central question was whether the complainant had
established the alleged advancement of Rs.17,00,000/- and the existence
of a legally enforceable debt. The appellate Court considered the
complainant's overdraft facility, the payment of interest on the bank
borrowings and the absence of a corresponding withdrawal in the account
statements. It found that the explanation that the complainant had
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borrowed money on interest from the bank and had, in turn, advanced a
substantial amount to the respondent without interest was not supported
by sufficient evidentiary material. It further held that, once the respondent
had raised a probable defence and rebutted the statutory presumption, the
burden shifted back to the complainant to establish that the cheques had
been issued in discharge of a legally enforceable debt. Finding no
sufficient reason to displace the trial Court's assessment of the evidence,
the appellate Court dismissed the appeal on 07.06.2018 and confirmed
the acquittal.
9. In the present revision petition, the petitioner contends that the
judgments of the Courts below are contrary to law, the weight of
evidence and the balance of probabilities; that the appellate Court failed
to appreciate the evidence of the witnesses and relied upon presumptions
and surmises; and that, despite finding that the respondent had failed to
substantiate his theory of borrowing from D.W.3, the appellate Court
erroneously sustained the acquittal. The petitioner further contends that
the Courts below failed to give due effect to the statutory presumptions
under Sections 118 and 139 of the Negotiable Instruments Act,
particularly in view of the respondent's alleged admission of borrowing
Rs.17,00,000/- and entrusting cheques to the lender. It is also argued that
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the Courts below failed to consider the relationship between the parties,
the short-term nature of the alleged loan, the explanation for not charging
interest and the fact that the promissory note was allegedly obtained only
when the second instalment was advanced. The petitioner therefore seeks
to set aside the appellate judgment and the original order of acquittal.
10. This Court, while exercising jurisdiction under Sections 397
read with 401 of the Code of Criminal Procedure, is required to examine
whether the judgment under challenge suffers from any material
illegality, jurisdictional error, perversity, any imperative misappreciation
of evidence or other infirmity resulting in a miscarriage of justice. The
revisional jurisdiction is not equivalent to the ordinary appellate
jurisdiction and does not ordinarily permit a wholesale re-appreciation of
the evidence merely to substitute a different view for a view reasonably
taken by the Courts below. This limitation assumes particular
significance where the revision petitioner challenges an order of acquittal
which has already been affirmed by the appellate Court. The revisional
Court may interfere where the findings are manifestly unreasonable,
material evidence has been ignored or misread, or the decision is
otherwise vitiated by a serious legal or procedural error; it cannot,
however, interfere merely because another interpretation of the evidence
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is possible. In the present case, this Court must therefore examine
whether the concurrent findings regarding the alleged loan transaction,
the complainant's financial capacity, the bank records and the rebuttal of
the statutory presumption are legally sustainable and supported by the
evidence on record, and not merely whether this Court might have
reached a different conclusion upon a fresh assessment of the evidence.
Unless a ground warranting such exceptional interference is established,
the concurrent acquittal cannot be disturbed in the exercise of revisional
jurisdiction.
11. This Court has carefully considered the submissions made on
either side and the findings recorded by the Courts below.
12. The principal question that arises for consideration is whether
the respondent had raised a probable defence sufficient to rebut the
statutory presumption in favour of the complainant and, if so, whether the
concurrent findings of the Courts below disclose any ground warranting
interference in the exercise of revisional jurisdiction.
13. It is settled that the presumptions under Sections 118 and 139
of the Negotiable Instruments Act operate in favour of the holder of the
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cheque, subject to the statutory requirements being satisfied. However,
the presumption is rebuttable. In Basalingappa v. Mudibasappa, (2019)
5 SCC 418 , the Hon'ble Supreme Court explained that the accused is
required to raise a probable defence on the standard of preponderance of
probabilities and may rely not only on evidence adduced by the defence
but also on the materials brought on record by the complainant. The
accused is not required to establish the defence beyond reasonable doubt,
14. The decision in Basalingappa v. Mudibasappa further
explains the manner in which the evidential burden operates in a
prosecution under Section 138 of the Negotiable Instruments Act.
Initially, the statutory presumption operates in favour of the complainant.
The accused may rebut that presumption by establishing circumstances
which render the non-existence of the alleged debt or liability reasonably
probable. Once such a probable defence is raised, the evidential burden
shifts back to the complainant to establish the alleged transaction and the
legally enforceable liability in the light of the evidence on record. The
accused is required to establish the probable defence only on the standard
of preponderance of probabilities, whereas the complainant must
establish the ingredients of the offence, including the legally enforceable
debt or liability, to the criminal standard of proof beyond reasonable
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doubt when the presumption stands rebutted. Thus, the burden shifts
according to the evidence and circumstances established by the parties;
the complaint also must prove the case beyond reasonable doubt.
15. In the present case, the appellate Court examined the evidence
concerning the alleged advancement of Rs.17,00,000/- and the
complainant's financial capacity to lend such a substantial amount. The
complainant asserted that he had advanced the amount to the respondent
without charging any interest. However, the evidence also indicated that
the complainant himself was maintaining an overdraft facility and
incurring interest on the amount availed from the bank. The bank
statement relied upon by the complainant did not disclose a
corresponding withdrawal of Rs.17,00,000/- supporting the alleged
advancement.
16. In the ordinary course of commercial and financial dealings, a
prudent person would ordinarily be expected to consider the financial
implications of borrowing money from a bank on interest and then
advancing a substantial amount to another person without interest. Such a
transaction is not impossible, and the mere fact that a person maintains an
overdraft facility does not, by itself, disprove the advancement of a loan.
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Nevertheless, when the complainant claims to have advanced
Rs.17,00,000/- without interest while himself incurring interest on an
overdraft, the absence of supporting financial records assumes relevance.
In the absence of a satisfactory explanation supported by the evidence on
record, this circumstance may reasonably be considered while assessing
the probability of the alleged transaction.
17. The appellate Court also considered the defence evidence,
including the fact that D.W.3 did not support the particular source
suggested by the respondent. However, the failure of D.W.3 to support
that particular version would not, by itself, establish that the complainant
had advanced the alleged loan. The complainant's case must be assessed
on the basis of the entire evidence and the statutory presumptions
applicable to the transaction. The Courts below considered the
complainant's version, the bank records and the defence evidence
cumulatively and concluded that the respondent had raised a probable
defence regarding the alleged loan and the existence of the legally
enforceable liability.
18. Applying the principles laid down in Basalingappa v.
Mudibasappa, this Court finds that the respondent was not required to
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disprove the alleged transaction beyond reasonable doubt. It was
sufficient for the respondent to bring on record circumstances which
made the defence reasonably probable on the standard of preponderance
of probabilities. The financial circumstances surrounding the alleged
loan, including the complainant's claim of lending a substantial amount
without interest while maintaining an interest-bearing overdraft and the
absence of a corresponding withdrawal in the bank statement, were
matters which the Courts below were entitled to consider. Once these
circumstances were found sufficient to raise a probable defence, the
complainant was required to establish the alleged transaction in the light
of the evidence on record. The statutory presumption could not, by itself,
relieve the complainant of that evidential burden after it had been
rebutted.
19. This Court is conscious that the absence of a corresponding
bank withdrawal, or the fact that the complainant maintained an
overdraft, cannot independently and conclusively establish that no loan
was advanced. The issue is whether the evidence, viewed as a whole,
supports the findings of the Courts below. On a consideration of the
material referred to in the impugned judgments, this Court finds that the
Courts below have assessed the competing versions and grasped a
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conclusion that the respondent had rebutted the statutory presumption by
raising a probable defence. The petitioner has not demonstrated that the
said conclusion is perverse, contrary to the evidence on record or vitiated
by a material error warranting revisional interference. This Court finds no
sufficient ground to interrupt the judgments of the Courts below.
20. In the result, this Criminal Revision Case is dismissed. The
judgment dated 07.06.2018 passed in C.A.No.94 of 2017 by the learned
I-Additional District and Sessions Judge (PCR), Tiruchirappalli,
confirming the acquittal of the respondent in S.T.C. No.3189 of 2016 by
the learned Judicial Magistrate, Manapparai, dated 21.08.2017, is hereby
confirmed. No costs.
13-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
PJL
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CRL RC(MD) No. 410 of 2019
To
1.The I-Additional District and Sessions Judge (PCR),
Tiruchirappalli.
2.The Judicial Magistrate,
Manapparai.
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CRL RC(MD) No. 410 of 2019
M.D.SUMATHI, J.
PJL
CRL RC(MD) No. 410 of 2019
27.10.2026
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