Cheque Dishonour Accused Can Probabilise Defence Without Entering Witness Box — Through Cross-Examination And Marked Documents Alone: Madras High Court

"As per Section 145 of the Evidence Act, prior statements can be used for contradiction or corroboration in any trial", Madras High Court has upheld the acquittal of an accused in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, holding that the accused had successfully probabilised his defence entirely through cross-examination and marked documents — without stepping into the witness box himself.

Justice M. Nirmal Kumar, dismissing the complainant's appeal against acquittal, affirmed that the Trial Court was right in finding that the complainant had not come with clean hands, having suppressed vital facts and given materially contradictory evidence at trial.

The complainant, C. Umapathi, alleged that the respondent S. Senthilkumar borrowed Rs. 5,00,000/- in cash on 11.02.2015, executed a demand promissory note, and subsequently issued a cheque for Rs. 5,50,000/- — covering principal and interest — dated 11.12.2015. The cheque was dishonoured for insufficient funds. Statutory notice was refused by the respondent. The complainant filed a complaint before the Judicial Magistrate, Fast Track Court, Thiruthuraipoondi.

The Trial Court dismissed the complaint by judgment dated 29.03.2021, finding material contradictions in the complainant's evidence and holding that the respondent had probabilised his defence through cross-examination and documents marked as Ex.D1 and Ex.D2. The complainant approached the High Court in appeal.

The core questions before the Court were: whether the accused, having admitted the cheque and signature, could still probabilise his defence without examining himself as a witness; whether a prior deposition of the complainant in another case could be marked and used as a contradicting document under Section 145 of the Indian Evidence Act; and whether the statutory presumption under Sections 118 and 139 of the NI Act was conclusively rebutted.

On Statutory Presumption and Burden of Proof

The Court noted that the respondent admitted the cheque and his signature on it, which triggered the statutory presumption under Sections 118 and 139 of the Negotiable Instruments Act. The complainant's counsel argued that once the presumption arose, there was no further burden on the complainant to prove every detail of the underlying transaction. The Court did not dispute this legal position but found that the presumption had been adequately rebutted.

The accused had not entered the witness box. Yet, the Court held that this alone did not disqualify him from probabilising his defence. Through rigorous cross-examination of the complainant and by marking two critical documents, the respondent had raised sufficient doubt about the complainant's case. "The respondent though not examined himself but probabilised his defence by cross examination and marking Ex.D1 and Ex.D2."

On the Admissibility of Ex.D2 — Prior Deposition in Another Case

The complainant strenuously objected to the marking of Ex.D2 — her deposition as PW8 in C.C. No. 108 of 2017, a cheating and misappropriation case — citing Sections 33, 40 and 51 of the Indian Evidence Act and contending that evidence recorded in one case cannot be imported into another.

The Court rejected this objection squarely. It held that Section 145 of the Indian Evidence Act is clear and unambiguous in its operation. "Section 145 of the Evidence Act is clear that any prior statement can be used for contradiction or corroboration in any trial." The document was rightly admitted and used to contradict the complainant's testimony.

On Material Contradictions — The Suicide Incident

The most devastating blow to the complainant's case came from the contents of Ex.D2 itself. The complainant had deposed before the Trial Court that on 11.12.2015 — the very date of the cheque — she was in Chennai and returned only 25 days later, claiming ignorance of the respondent's suicide attempt.

However, Ex.D2, her own prior deposition in another case, told an entirely different story. In that deposition, she had admitted that on 11.12.2015, she had gone to the respondent's shop, demanded repayment of the loan, engaged in a heated argument, and that the respondent thereafter consumed poison and attempted suicide — leading to her being called for enquiry by Thalaignayiru Police.

The Court found this contradiction fatal to the complainant's credibility. "The complainant suppressed the fact of respondent attempting suicide and her examination as a witness in that case." The Trial Court's finding that the appellant had not come with clean hands was affirmed.

On the Complainant's Financial Capacity to Lend

The Court also examined the complainant's claimed capacity to lend Rs. 5,00,000/- in cash. The complainant had initially described herself as a housewife without any income, subsequently attempting to improve her testimony by claiming agricultural income. The Court found this improvisation unconvincing.

She had also failed to produce the demand promissory note, which she claimed was in her possession. The Court found it highly improbable that a person of uncertain financial means would advance a fresh loan of Rs. 5,00,000/- in 2015 when an earlier loan of Rs. 3,00,000/- extended to the respondent between 2010 and 2011 remained unrepaid. "Giving further loan of Rs. 5,00,000/- is highly doubtful."

The Court also found it irrational that the cheque, issued ten months after the alleged loan date of 11.02.2015, carried interest of only Rs. 50,000/- — when the agreed rate was one rupee per hundred rupees per month — without any satisfactory explanation from the complainant.

Surveying the entire record, the High Court concluded that the Trial Court had delivered a well-reasoned judgment correctly weighing the contradictions in the complainant's evidence and the defence documents. The Court found no ground to interfere. "The Trial Court finding that the evidence of the complainant is with contradictions as to Ex.D2 and as per Section 145 of the Evidence Act, Ex.D2 can be considered for the purpose of contradictions and corroborations and by a well reasoned judgment, dismissed the complaint."

The Criminal Appeal was dismissed. The acquittal recorded by the Trial Court was affirmed in its entirety.

Date of Decision: 10.04.2026