No plea to condone a late complaint: Madras HC upholds acquittal in Rs 1.2 lakh cheque case
Justice S. Karthikeyan at the Madurai Bench dismissed a complainant appeal against the acquittal of a nurse, holding that the Section 138 complaint came after the limit with no application to condone delay and that her defence had rebutted the presumption.
The cheque was for Rs 1,20,000 and the signature was admitted. On 11 November 2026 the Madurai Bench of the Madras High Court still refused to restore a conviction, because the complaint was filed after the deadline and nobody had asked the Magistrate to excuse the delay.
Justice S. Karthikeyan dismissed an appeal by the complainant, Soundararajan, and confirmed the acquittal of Saraswathi. The sessions court had set aside her one-year sentence and compensation order in 2018.
Cash loan, cheque, notice
Soundararajan filed a private complaint under Section 138 of the Negotiable Instruments Act, 1881, registered as C.C.No.102 of 2007 before the Judicial Magistrate at Vedasandur. He said Saraswathi borrowed Rs 1,20,000 in cash on 20 December 2006, promised repayment within 50 days and gave cheque no. 234980 drawn on Indian Overseas Bank, Coimbatore.
He presented the cheque through his own bank on 7 March 2007 and it came back for insufficient funds. A lawyer's notice went out on 9 April 2007. The cover was returned on 12 April 2007 marked “intimation delivered, unclaimed”, and no reply was sent.
The Magistrate convicted her on 4 May 2012. He sentenced her to one year of simple imprisonment and ordered Rs 1,20,000 as compensation, with three months more in default.
The sessions court acquits
Saraswathi appealed as C.A.No.50 of 2012. The Additional Sessions Judge, Dindigul, allowed it on 31 July 2018. He accepted that her husband had given the cheque to KPS Finance, a partnership in which Soundararajan had been a partner, and found no legally enforceable debt.
Soundararajan then appealed to the High Court under Section 372 of the Code of Criminal Procedure. The court framed one point:
“Whether the acquittal passed by the first Appellate Court is sustainable?” (para 7)
A night shift four hours away
Mr S. Gokul Raj, for the complainant, argued that her admitted signature raised the presumptions under Sections 118 and 139 and that she had not rebutted them. She had sent no reply to the notice, he said, and alibi is the weakest of pleas.
He said the cheque was given in her own capacity, and the partnership deed of 26 April 2002 showed Soundararajan had left KPS Finance. He relied on Rajesh Jain v. Ajay Singh and three Madras decisions.
Mr M. Sheik Abdullah, for Saraswathi, relied on the alibi. She was a nurse at a Coimbatore hospital, and the attendance register showed her on night duty from 7 pm to 7 am on 20 December 2006.
The complainant admitted in cross-examination that he lent the money at about 5 pm. The road journey from his village to Coimbatore, the defence said, takes about four hours.
The defence also said her husband had borrowed Rs 35,000 from KPS Finance and left a cheque signed by his wife as security. The complainant, it said, used that cheque for a loan he never made.
Mr Abdullah raised other defects too. The notice said the cheque was dishonoured for insufficient funds, he argued, while the bank memo said the account was closed. The complaint did not say she had deliberately refused the notice, and it did not say when the notice was served.
The complainant, he said, had no proof of a debt between two people who did not know each other. He argued that the presumption under Section 139 had shifted back, and that the burden to prove the loan lay on the complainant.
The deadline that was missed
The judge took limitation first. Relying on K. Bhaskaran v. Sankaran Vaidhyan Balan, he held that a notice returned unclaimed starts the 15-day period on the date of return. Here that was 12 April 2007, so the period ended on 27 April 2007.
The complaint, he found, ought to have been filed on or before 24 May 2007. It was filed on 31 May 2007, and no application to condone the delay was made under the proviso to Section 142(1).
He also relied on S. Nagesh v. Shobha S. Aradhya, decided by the Supreme Court in 2026. As summarised in the judgment, condonation must come before cognizance, and a Magistrate who takes cognizance first errs. He concluded:
“on this short ground alone, the present complaint ought to have failed” (para 18)
A probable defence, a silent complainant
The court went on to the merits. It said the defence had raised a probable case that the cheque was given only to secure the husband’s loan, and that the presumption under Section 139 stood rebutted.
It noted that the complainant’s own witness, PW-2, said the husband had given his own cheques to secure the loan, yet those cheques were never produced. The court called this curious.
The burden then fell on the complainant to prove the Rs 1,20,000 loan of 20 December 2006. The court said no evidence of the mode of payment or the source of the money came from his side.
The judge added that an acquittal should be disturbed only if the appellate finding is perverse, and that where two views are possible the one favouring the accused is taken. He cited Rajendran v. N. Radhakrishnan for that, and found no scope for interference.
Order
The criminal appeal was dismissed. The judgment of the Additional Sessions Judge, Dindigul, in Criminal Appeal No.50 of 2012 dated 31 July 2018 was confirmed. That order had reversed the conviction and sentence of 4 May 2012 in C.C.No.102 of 2007.
The court recorded that both sides had filed written submissions, and it called for the trial court and first appellate court records. It was heard on 28 September 2026 and the judgment was delivered on 11 November 2026.