G.Prabhakaran, Aged 31 Years, v. N.Jayaraj, Aged 35 Years,

O R D E R This Criminal Appeal had been filed to set aside the judgment of acquittal dated 23.03.2018 made in C.A.No.314 of 2017 on the file of the learned II Additional District and Sessions Judge, Erode, reversing the order dated 16.09.2017 made in STC.No.176 of 2015 on the file of the learned Judicial Magistrate (Fast Track Court No.II), Erode.

¶2The learned Counsel for the Appellant submitted that the Complaint had been filed by the Complainant before the learned Judicial Magistrate, Fast Track Court No.2, Erode. The learned Judicial Magistrate, Fast Track Court No.2, Erode by Judgment dated 16.09.2017 convicted the Accused to undergo the imprisonment of one year and to pay a fine of Rs.5,000/-. Aggrieved by the same, the Accused had preferred the Appeal before the learned II Additional District and Sessions Judge, Erode in C.A.No.314 of 2017. After hearing the arguments, the learned II Additional District and Sessions Judge, Erode by Judgment dated 23.03.2018 reversed the finding of guilt recorded by the learned Judicial Magistrate, Fast Track Court No.II, Erode in STC.No.176 of 2015. Aggrieved by the same, the Complainant before the learned Judicial Magistrate, Fast Track Court No.II, Erode, had approached this Court by filing this Appeal.

¶3The learned Counsel appearing for the Appellant invited the attention of this Court to the stand taken by the Accused before the trial Court that the Complainant had issued statutory notice. The Accused having received the statutory notice, had offered an explanation as though he had received only a cover containing the address of the Counsel for the Complainant and the address of the Accused. On opening the cover, the notice was not found. The learned Judicial Magistrate, Fast Track Court No.II, Erode, had discussed the evidence of the Complainant as well as the Accused who was examined as D.W-2 had clearly stated that the Accused had not given any notice calling upon the Complainant that the notice alleged to have been sent was not received. It was only an empty cover and also the learned trial Judge had discussed the evidence. The defence of the Accused that the cheques were surreptitiously taken away by the Complainant for which, the Accused had not given any Complaint against the Complainant. The learned Counsel appearing for the Appellant invited the attention of this Court to the evidence of the Complainant/P.W-1 as well as the evidence of the Accused/D.W-2 before the trial Court which reads as follows: Evidence of P.W-1: "vjpup vdf;F vt;thW gHf;fk; vd;W nfl;lhy; vjpup vd;Dila K:j;j rnfhjuUld; ntiy bra;J bfhz;oUe;jhd;/ mjd;gpwF vd;Dila filf;F tUthu;/ mjd;K:yk; vjpup vdf;F tHf;fk;/ ehd; vd;d fil itj;Js;nsd; vd;W nfl;lhy; K:fhk;gpif bkof;fy; Vb$d;rP!; vd;w bgaupy; kUe;J fil itj;Js;nsd;/ nkw;go filia ve;j Kftupapy; vt;tst[ ehl;fshf elj;jptUfpnwd; vd;W nfl;lhy; bek;gu; 14. vk;/nf/rp nuhL. <nuhL vd;w Kftupapy; fle;j 4 tUl';fshf elj;jp tUfpnwd;/ vd;Dila K:j;j rnfhjuupd; bgau; cwupfud;/ fle;j 10 tUl';fSf;F Kd;g[ vd;Dila K:j;j rnfhjuu; upiyad;!; fk;a{dpnfrd;!; epWtdj;jpy; ntiy bra;J bfhz;oUe;jhu;/ mg;nghJ vjpupa[k; mnj epWtdj;jpy; vd;Dila K:j;j rnfhjuUld; CRL.A.No.456oofo2018 ntiy ghu;j;Jf; bfhzo; Ue;jhu;/ vjpup nkw;go epWtdjj; py; vdd; gjtpapy; ntiy ghuj; ;jhu; vd;W nfll; hy; mJgww; p vdfF; j; bjupahJ/ vjpup nkwg; o epWtdj;jpy; n$hdy; nkd$uhf ntiy braJ; bfhzo; Ue;jhu; vd;W brhd;dhy; mJgww; p vdfF; j; bjupahJ/ mjdg; pwF vjpup v';F ntiy braj; hu; vd;W nfll; hy; mjd;gpwF vjpup v'F; ntiy bra;jhu; vd;w tpguk; vdf;Fj; bjupahJ////////////////////////////////// /////////////////////// vdf;Fk; vjpupf;Fk; ,ilna ntW VjhtJ tut[ bryt[ css; jh vdW; nfll; hy; ehDk; vjpupak[ ; nkYk; vjpupapd; ez;gu;fs; Kd: ;W ngUk; xd;whf nru;e;J igdhd;!; epWtdk; Mukg; pff; yhk; vd;W vdi; d vjpup miHjj; pUe;jhu;/ mjw;fhf css; Mtz';fspy; ifbaGjJ; nghlr; brhdd; hu;/ Mdhy; igdhd;!; epWtdk; VJk; Mukg; pf;ftpy;iy/ ve;j njjpapy; nkw;go igdhd;!; epWtdk; Muk;gpf;f ifbahg;gk; bra;njd; vd;W nfll; hy; njjp epidtpy;iy/ Rkhu; 2 my;yJ 2\ tUl';fSf;F Kdd; jhf xU Moll; upd; Kdd; piyapy; rpy Mtz';fspy; ifbahg;gk; nghl;nld;/ mtt; hW Mtz';fspy; ifbahg;gk; braj; gpwF vdd; ele;jJ vdW; nfll; hy; mjdg; pwF igdhd;!; epWtdk; VJk; bjhl';ftpyi; y ntW VJk; eilbgwtpy;iy/ mjdg; pwF vjpupiag; ghu;j;J mJgww; p ehd; nfl;nldh vd;W nfll; hy; mijg;gww; p vjpupia nfll; nghJ mjw;fhf gzk; ahUk; bfhLf;fhjjhy; mijg; gw;wp ehd; nky ; tptu';fis nflL; j ; bjupeJ; bfhss; tpyi; y/" EvidenceoofoD.W-2: thlif xg;ge;jk; nghll; gpd; ahu; ahu; vtt; st[ KjyPL nghl ntzL; k; vd;W vGjpf; bfhz;nlhk;/ mJ gpughfudplk; css; J/ mjd; efy; vdd; plk; ,y;iy/ mJ gjpt[ bra;agg; ltpy;iy/ me;j xgg; e;jk; 16/09/13y; fhug; d; ngg;gupy; vGjg;gll; J/ mjpy; rhlr; pfs; ahUk; ifbahg;gk; ,ltpy;iy/ bjhHpy; bjhl';Ftjwf; hd flo; lk; fll; Mukg; pj;jnghJ flo; lk; fll; mDkjp khefuhl;rpaplk; bgw;nwhkh vd;why; khefuhlr; papy; mDkjp bgw;nwhkh vdw; hy; ,y;iy/ thlif xgg; e;jj;jpy; vtt; st[ ,lj;jpwF; flo; lk; fll; ntzL; k; vdw; tptuk; vGjg;gltpyi; y vdw; hy; rupjhd;/ eh';fs; ,UtUk; ,ize;J Tll; hf ve;j t';fpapy; fzfF; Mukg; pj;njhk; vdw; hy; epWtdj;jpd; gzp Jtf;fg;gltpy;iy Mjyhy; fzfF; Jt';ftpyi; y/ epWtdk; Jtf;fg;glhjjhy; Tll; hf t'f; p fzfF; Jtf;fg;gltpy;iy/ ehd; flo; lk; flo; aJ MWKfk; vdw; nk!;jpupia itj;J flo; ndd;/ me;j fl;olk; fl;Ltjw;fhd gpy;fs;. urPJfs/ tut[ bryt[ fzf;Ffs; css; dth vd;why; cz;L. mit gpughfudplk; cs;sd/ nk!;jpup MWKfj;ij vdf;Fk; bjhpa[k;. thjpf;Fk; bjupa[k;/ ehd; fhnrhyia fhzhky; nghdJ Fwpj;J tpsk;guk;. bghJ mwptpg;g[ bfhLj;njdh vd;why; ,y;iy/ gpughfud; fhnrhiyia fhzhky; ,lk; khwp tpl;ljhy; t';fpapy; kl;Lk; brd;W !;lhg; ngkz;l; bfhLj;jpUe;njd;/ t';fpapy ehd; fhnrhiy bjhiye;Jtpl;ljhf TwpapUe;njd;/ t';fpapy; fhnrhiy vz; nghl;L bfhLj;Js;nsd; vd;why; rhpjhd;/ v/k/rh/M/2 Mtzk;jhd; ehd; t';fpapy; bfhLj;j fojk; vd;why; rupjhd;/ vd;d fhuzj;jpw;fhf fhnrhiyfSf;F !;lhg; ngkz;l; bfhLf;fg;gl;l tptuk; mjpy; Fwpg;gplg;gltpy;iy vd;why; rupjhd;/ Mdhy; tHf;Ff;F te;j gpd;jhd; tHf;F fhnrhiy fhzhky; nghd tptuk; bjupe;jJ/ th/rh/M/1 tHf;F fhnrhiy vd;DilaJjhd;/ tHf;fwp"u; mwptpg;g[ te;j gpd; ehd; vd;d eltof;if vLj;njd; vd;why; vdf;F tHf;fwp"u; mwptpg;g[ tutpy;iy/ me;j ftupy; vd;Dila bgaUk; tHf;fwp"u; bgaUk; Fwpg;gpl;oUe;jJ/ tHf;fwp"uplkpUe;J btWk; ftu; te;jjhf Twk; ehd; mjd; tptuk; nfl;L tHf;fwp"Uf;F fojk; mDg;gpnddh vd;why; ,y;iy/ btWk; ftu; te;jjhf TWk; ehd; mtu; cs;Su; Kftup vd;gjhy; mtiu re;jpj;J tpsf;fk; nfl;nldh vd;why; ,y;iy/ !;lhg; ngnkz;l; bfhLj;j kw;w 3 fhnrhiyfs; kPJ vd;d eltof;if vLj;njd; vd;why; eltof;if vLf;ftpy;iy/ tHf;F Koe;jgpd; eltof;if vLf;fyhk; vd ,Ue;njd;/ ehd; gy egu;fsplk; gzk; th';fp fhnrhiy bfhLj;Js;nsd; vd;why; rupay;y/

¶4Therefore, the learned Counsel for the Appellant submits that the Judgment of acquittal recorded by the learned II Additional District and Sessions Judge, Erode is perverse in the light of the materials available before the trial Court. The Complainant had discharged the burden of proof as per the Indian Evidence Act.

¶5As per the Provisions of Section 138 of the Negotiable Instruments Act, 1881, the burden is shifted on the Accused who had to let in rebuttal evidence. Here, the Accused was examined as D.W-2. There are sufficient materials in the cross examination of D.W-2 to arrive at a conclusion that the finding of guilt recorded by the learned Judicial Magistrate, Fast Track Court No.II, Erode is a well reasoned order. Instead the learned Appellate Judge had reversed the finding on the ground that the Complainant does not have the sufficient resources to advance such an amount. The said finding is not supported by evidence. The Complainant as P.W-1 had furnished all relevant documents regarding the defence of the Accused that the Complainant does not have the resources. Further, the learned Counsel for the Appellant submits that the Accused is in the habit of entering into new ventures of business and inviting the partners on the strength of those business seeking loans from the Banks and issuing cheques. Subsequently, issuing notice to the Banks requesting the Bank to stop payment of cheques issued by him. This portion of the evidence of the Complainant is available through the cross examination of D.W-2. Therefore, the learned Counsel for the Appellant seeking to set aside the Judgment of the acquittal recorded by the learned II Additional District and Sessions Judge, Erode in C.A.No.314 of 2017 and to restore the Judgment and conviction recorded by the learned Judicial Magistrate, Fast Track Court No.II, Erode in STC.No.176 of 2015, dated

16.09.2017.

¶6In support of his contention, the learned Counsel for the Appellant had relied on the following rulings:

(i) In (2022) 6 SCC 735 in the case of Tedhi Singh Vs. Narayan Dass Mahant the Hon'ble Supreme Court had held as follows: "The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. 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."

(ii) In (2022) 1 SCC 742 in the case of Triyambak S.Hegde Vs. Sripad the Hon'ble Supreme Court had held as follows: "From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exhibits P-6 and P-2 is not disputed. Exhibit P-2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the N.I. Act reads as hereunder: "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."

¶7The learned Counsel for the Respondent submitted that the learned Judicial Magistrate, Fast Track Court – II, Erode had convicted the Accused in STC.No.176 of 2015 for the offence under Section 138 of the Negotiable Instruments Act, 1881. On Appeal by the Accused in C.A.No.314 of 2017, the learned II Additional District and Sessions Judge, Erode by Judgment dated 23.03.2018 dismissed the Complaint and set aside the Judgment of Conviction recorded by the learned Judicial Magistrate, Fast Track Court – II, Erode in STC. No. 176 of 2015. Aggrieved by the same, the Complainant before the learned Judicial Magistrate and the Respondent in C.A.No.314 of 2017 had preferred this Criminal Appeal.

¶8The cheque was presented on 20.02.2015. On the same date, it was returned as "insufficient funds". The Respondent received the notice on

19.03.2015. It is the contention of the Complainant that the Accused had not complied with the condition insisted in the notice. It is the defence of the Accused that the notice was received in registered cover. The registered cover did not contain the notice. Therefore, the Accused was unable to understand the contents of the alleged notice. Only if the contents were there, he had the chance to send a reply. When the Accused was unable to respond to the notice, the cause of action itself had not arisen.

¶9If the statutory notice for bouncing of cheque under Section 138 of the Negotiable Instruments Act, 1881, is issued, the person who issued a cheque after receipt of notice shall be granted sufficient time either to pay the amount or to reply. Only after 15 days time after the receipt of notice, if the person who had issued the cheque, has not sent any reply, then, the Complainant has the cause to lodge a Complaint within 30 days. Here, the cause of action had not arisen. Therefore, the Complaint itself is not maintainable.

¶10The second defence of the Accused is that he had not received any amount from the Complainant. The cheque is to be supported with the prior liability. Here, there was no enforceable prior liability for the Accused to issue the cheque as stated by the Complainant. It is the further defence of the Accused that the Complainant does not have the resources to extend the loan for Rs.2,30,000/-. Based on the assessment of evidence, the learned Judicial Magistrate had convicted the Accused. The learned Sessions Judge had reversed the finding of guilt recorded by the learned Judicial Magistrate, Fast Track Court – II, Erode. It is the case of the Accused that the Complainant and the Accused are childhood friends. The Complainant who stealthy removed the cheque of the Accused from his house and filed this Complaint. Since the Accused found out the three blank cheque leaves duly signed were missing, he had issued notice calling upon the Bank not to honour the cheque (Stop payment). The Appellant and the Accused planned to set up a departmental store. For this, Appellant is alleged to have given three cheques. The trial Court convicted the Accused on the ground of borrowal and defence of the Accused had not been probablised. Therefore, the presumption is available to the Complainant. The presumption is available to the Complainant cannot be proved in a manner known to law. No document was obtained by the Respondent in support of the Bank transaction. The learned Sessions Judge reversed the finding. The learned Sessions Judge held that there is no evidence to arrive at a conclusion that the Appellant had wherewithal to extend the loan amount of Rs.2,30,000/-. Ex.P-8 was marked in support of the Complainant which is an Income Tax returns which was accepted by the trial Court. It was not accepted by the Appellate Court on the ground that it came into existence after lodging of the Complaint. Therefore, it was created for the purpose of the case. Therefore, it cannot be accepted. There is no proof of sufficient means on the part of the Complainant to extend the loan of Rs.2,30,000/- to the Accused. The Income Tax returns for the previous years only would show that he had income between Rs.2,00,000/- and Rs.2,50,000/- in previous years. When that be the case, the claim of the Complainant that he had extended the loan of Rs.2,30,000/- to the Accused is unbelieved. Therefore, the learned II Additional District and Sessions Judge, Erode, had reversed the finding recorded by the learned Judicial Magistrate, Fast Track Court – II, Erode. The Judgment of the learned II Additional District and Sessions Judge, Erode is a well reasoned Order. It does not warrant any interference of this Court exercising the power of Appeal. The evidence of the Accused had probablised the defence of the Accused. In support of his contention, the learned Counsel for the Respondent had relied on the ruling reported in CDJ 2005 SC 752 in the case of G.Pankajakshi Amma & Others Vs. Mathai Mathew (D) Thr. Lrs. & Another. Point for consideration: Whether the Judgment of the learned II Additional District and Sessions Judge, Erode in C.A.No.314 of 2017 dated

23.03.2018 is perverse and is to be set aside?

¶11Heard the learned Counsel for the Appellant and the learned Counsel for the Respondent. Perused the deposition of the Complainant as P.W-1 and the deposition of the Manager of State Bank of India, Moolapalayam Branch, who was examined as P.W-2, who states that both the Complainant and the Respondent have their accounts in Moolapalayam Branch. Perused the documents under Ex.P-1 to Ex.P-8 and the evidence of D.W-1 to D.W-3 and documents under Ex.D-1 to Ex.D-10. Also, perused the Judgment of the learned Judicial Magistrate, Fast Track Court – II, Erode and the Judgment of the learned II Additional District and Sessions Judge, Erode.

¶12On perusal of the records, it is found that the Judgment of the learned Judicial Magistrate, Fast Track Court – II, Erode is found proper on assessment of evidence. The reason stated by the Accused that he had not received the notice and only the cover was received. Therefore he was unable to send a reply. Therefore, the cause of action does not arise was also rejected by the learned Judicial Magistrate, Fast Track Court – II, Erode, on the ground that if that had been so, what prevented the Accused from seeking a copy of the notice and informing the Complainant that he received only cover without notice. Further, regarding the defence of the Accused that the cheque was removed surreptitiously, the learned Judicial Magistrate had observed that no Police Complaint was ginve against the missing of the cheque leaves. The learned Judicial Magistrate also observed that the cheque for which the stop payment was given did not contain the Cheque Number in the hands of the Complainant. Therefore, the case of the Complainant in whose favour the presumption under Sections 139 and 118 of the Negotiable Instruments Act is available was considered favourably in favour of the Complainant.

¶13The defence of the Accused probablising the case of the Accused that the Complainant did not have sufficient means to advance a loan of Rs.2,30,000/- was also rejected on the ground that when the Accused was cross-examined the Complainant regarding the resources of the Complainant, the Complainant had marked Ex.P-8-Income Tax returns. That shows he had enough resources. Therefore, the learned Judicial Magistrate, Fast Track Court –II, Erode on the basis of the reported rulings in (i) AIR 2000 SC 954 in the case of Kusam Ingots and Alloys Ltd., Vs. M/s.Pennar petitioner Securities Ltd and others, (ii) (2010) 3 MLJ (Crl.) 547 (SC) in the case of Rengappa Vs. Srimohan and (iii) 2015 2 MLJ Crl. 605 SC in the case of T. Vasanthakumar Vs. Vijayakumari, held that the case of the Complainant to be bona fide. The learned Judicial Magistrate had on the basis of assessment of evidence found that the case of the Complainant was acceptable and had thereby convicted the Accused for the offence under Section 138 of the Negotiable Instruments Act, 1881.

¶14The learned II Additional District and Sessions Judge, Erode, on Appeal revered the finding of the learned Judicial Magistrate, Fast Track Court – II, Erode on the ground that Ex.P-8 regarding Income Tax returns of the Complainant was marked only after institution of the Complaint. Therefore, it is unacceptable and thereby rejected the claim of the Complainant. Further, the learned II Additional District and Sessions Judge, Erode, had observed that from the Income Tax returns filed in the previous years, the income of the Complainant is between Rs.1,00,000/- to Rs.2,00,000/-. Therefore, the case of the Complainant that he had advanced the amount of Rs.2,30,000/- to the Accused is found unacceptable. The learned II Additional District and Sessions Judge, Erode, had failed to consider the fact that the Accused had stated that only he had received registered cover without the copy of the notice. If that be so, it is for the Accused to address the Complainant seeking for copy of the notice. Also the Accused had stated three or four cheques signed by him were surreptitiously removed and therefore, he made a request to the Bank for stop payment, but the particulars of cheques were not mentioned in the stop payment notice sent by the Accused to his Bank. Also, he had not given a Police Complaint regarding missing of cheque leaves. Till date of examination of the Accused as D.W-2, he had accepted the suggestion of the Complainant that he had not preferred Complaint regarding missing of cheque leaves with the Police. Under those circumstances, the presumption is available to the Complainant as per the reported ruling in Tedhi Singh's case and Triyambak's case. The ruling relied on by the learned Counsel for the Respondent in Pankajakshi Amma's case will not support the case of the Accused. The strong presumption is available in favour of the Complainant till this Appeal. The probability created suspicion only and not sufficient proof as per the reported ruling of Pankajakshi Amma's case. It is for the respective trial Judges either to accept or reject the defence of the Accused in the facts and circumstances of the individual case regarding the probability of the defence of the Accused. Here, except the fact that the learned II Additional District and Sessions Judge, Erode, had rejected Ex.P-8 filed by the Complainant regarding the payment of Income Tax by the Complainant regularly. Therefore, filing of Ex.P-8 only after the institution of the private Complaint is not acceptable. Therefore, rejected the claim of the Complainant is found unacceptable and perverse. The main ground raised by the Accused that he did not receive the copy of the statutory notice sent by the Complainant is found unacceptable from the point of view of an ordinary prudent man. If it is received as empty cover, it is for the Accused to seek details from the sender of the registered notice. Also, the learned Judicial Magistrate that he had not summoned the staff of the Postal Department who registered the postal cover regarding the weight of the cover and whether it contained any letter, notice or it was a minimum stamp for an empty cover. Therefore, the learned Judicial Magistrate had properly appreciated the evidence in the light of the provisions of the Indian Evidence Act and the Negotiable Instruments Act, 1881 and also the rulings relied by both the parties and rejected the arguments of the learned Counsel for the defence before the trial Court and accepted the ruling cited by the learned Counsel for the Complainant regarding the statutory notice and time for the response of the Accused within 15 days which creates a cause of action. Therefore, the cause of action was accepted by the learned Judicial Magistrate. In the light of the inaction on the part of the Accused who had received the registered cover and acknowledged receipt of registered cover but had not responded to the statutory notice, even otherwise under Section 114 of the Indian Evidence Act regarding presumption has to be drawn the registered post contained notice. It is for the Accused to prove his contention. When he remained silent, it gives presumption. He received the cover and acknowledged the registered cover, he has to prove his burden on him that he had not received statutory notice. When that be the case, he should have acted on it but he remained silent. The adverse inference is drawn on the conduct of the Accused. From the point of view of an ordinary prudent man, the rejection of Ex.P-8 by the learned II Additional District and Sessions Judge is found unwarranted. Only during the evidence, to probablise the case of the Accused, he raised the question regarding the wherewithal of the Complainant. Therefore, the Complainant was forced to let in additional evidence. Under those circumstances, the ruling cited by the learned Counsel for the Appellant in Tedhi Singh's case is found acceptable to the facts of this case.

¶15In the light of the above discussion, the point for consideration is answered in favour of the Appellant/Complainant and against the Respondent/Accused. The Judgment of conviction recorded by the learned Judicial Magistrate -II, Fast Track Court in STC No.176 of 2015, dated

16.09.2017 is to be restored. The Judgment dated 23.03.2018 passed in C.A.No.314 of 2017 by the learned II Additional District and Sessions Judge, Erode is to be set aside as perverse. In the result, this Criminal Appeal is allowed. The Judgment dated

23.03.2018 passed in C.A.No.314 of 2017 by the learned II Additional District and Sessions Judge, Erode is set aside. The Judgment of conviction recorded by the learned Judicial Magistrate, Fast Track Court – II, Erode, is restored. The learned Judicial Magistrate, Fast Track Court – II, Erode, is directed to issue warrant through the jurisdictional Police to secure the Accused in continuation of the Judgment to undergo the sentence of imprisonment. If the Accused is not secured, the Complainant is within his power to approach the learned Judicial Magistrate, Fast Track Court-II, Erode, to proclaim the Accused as absconding Accused. The learned Judicial Magistrate may pass appropriate Orders against absconding Accused as Proclaimed Offender so that the properties both movable and immovable in the name of the absconding Accused may be attached and brought to sale by public auction. The Respondent is directed to surrender before the learned Judicial Magistrate, Fast Track Court – II, Erode within a month from the date of receipt of a copy of this order.

02.08.2024 Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking order dh To

1.The Judicial Magistrate, Fast Track Court – II, Erode.

¶2The II Additional District and Sessions Judge, Erode.

¶3The Public Prosecutor, High Court, Madras.

¶4The Section Officer, Criminal Section, High Court Madras.

SATHI KUMAR SUKUMARA KURUP, J. dh

02.08.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.08.2024 CORAM THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP Criminal Appeal No.456 of 2018 G.Prabhakaran : Appellant/Respondent/Complainant Versus N.Jayaraaj : Respondent/Appellant/Accused Criminal Appeal filed under Section 378 of Criminal Procedure Code, to set aside the judgment of acquittal dated 23.03.2018 made in C.A.No.314 of 2017 on the file of the learned II Additional District and Sessions Judge, Erode reversing the order dated 16.09.2017 made in STC.No.176 of 2015 on the file of the learned Judicial Magistrate, Fast Track Court No.II, Erode. For Appellant : Mrs.R.Vigneshwari for Mr.M.Guruprasad For Respondent : Mr.K.M.Subramaniam ***