THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL APPEAL No.755 of 2008
JUDGMENT:
This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the appellant/complainant, challenging the judgment, dated 28.02.2008, passed in C.C.No.735 of 2006 by the Additional Judicial Magistrate of First Class at Sangareddy, whereby, the Court below acquitted the respondent No.1/accused under Section 255(1) of Cr.P.C., for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, 'N.I.Act').
2. Heard the learned counsel for the appellant/complainant and perused the record.
3. Learned counsel for the appellant/complainant would submit that the respondent No.1/accused has borrowed an amount of Rs.70,000/- towards hand loan for his personal, family and legal necessities from the complainant on 07.12.2005 and promised to repay the said amount within three months. However, the accused dodged the payment on one ground or the other and finally issued Exs.P.1 and P.2 cheques towards discharge of the hand loan. Both the cheques were dishonoured when presented for payment. There is valid legal notice, dated 20.06.2006. In spite of the same, the amount was not paid by the accused, which constituted cause of action against him. Though there is clear and cogent evidence on record, the Court below erroneously acquitted the accused and ultimately prayed to allow the appeal as prayed for. 2
Dr.SA J Crl.A.No.755 of 2008
4. In view of the above submissions, the points that arise for determination in this appeal are as follows:
1. Whether there is legally enforceable debt as alleged by the appellant/complainant?
2. Whether Exs.P.1 and P.2 cheques were issued by the respondent No.1/accused towards discharge of legally enforceable debt?
3. Whether the judgment, dated 28.02.2008, passed in C.C.No.735 of 2006 by the Additional Judicial Magistrate of First Class at Sangareddy is liable to be set aside, consequently, whether the respondent No.1/accused is liable to be convicted for the offence punishable under Section 138 of N.I.Act?
POINTS:-
5. The case of the appellant/complainant, as averred in the subject private complaint, is that the accused was working as conductor in APSRTC. The husband of the complainant and the accused are known to each other. The accused, out of friendship, approached the complainant through her husband and requested to advance Rs.70,000/- as hand loan for personal, family and legal necessities in the month of December, 2005, promising to repay the same within three months. Accordingly, the complainant advanced hand loan of Rs.70,000/- to the accused on 07.12.2005. The accused, however, failed to keep up his promise. When the complainant demanded the accused to return the amount, he issued Exs.P.1 and P.2 cheques bearing Nos.616096 and 616097 for Rs.35,000/- each, in favour of the complainant. When the said cheques were presented for payment, they got dishonoured due to insufficiency of funds. When the complainant orally informed the accused about the same, the accused requested her to present the 3 Dr.SA J Crl.A.No.755 of 2008 subject cheques once again in the second week of May, 2006. When the complainant again presented the subject cheques, they were again dishonoured due to insufficiency of funds. Thereafter, the complainant got issued legal notice, dated 20.06.2006 to the accused. The accused received the said notice on 29.06.2006, but neither replied to the same nor made repayment of amount. Therefore, the complainant filed the subject private complaint before the Court below against the accused for the offence punishable under Section 138 of N.I.Act.
6. In support of her case, the complainant herself got examined as P.W.1 besides P.Ws.2 and 3 and got marked Exs.P.1 to P.10. P.W.2 is Deputy Manager of SBH, Sangareddy Branch. P.W.3 is the husband of P.W.1. Ex.P.1 and P.2 are the cheques of even date, dated 15.03.2006, for Rs.35,000/- each. Exs.P.3 to P.5 are Cheque Return Memos, dated 28.03.2006, 28.03.2006 and 18.05.2006 respectively, issued by the bank. Ex.P.6 is the office copy of legal notice, dated 20.06.2006. Ex.P.7 is postal acknowledgement card, Ex.P.8 is postal receipt, No.2328, Ex.P.9 is the statement of account bearing No.5212720454 for the period from 01.03.2006 to 18.05.2006 and Ex.P.10 is attested copy of specimen signature of the accused.
7. As per the averments of the subject private complaint, the accused approached the complainant through her husband and requested for hand loan of Rs.70,000/-, whereas P.W.1 deposed in her evidence that the accused and his wife approached her on 07.12.2005 and requested hand loan of Rs.70,000/-. Further, P.W.1 stated in her evidence that her husband has no friendship 4 Dr.SA J Crl.A.No.755 of 2008 with the accused, whereas, as per the subject complaint, her husband has got friendship with the accused. P.W.1 further stated in her evidence that one week prior to loan transaction, the wife of the accused requested for hand loan and that the accused has not issued any receipt in proof of payment of Rs.70,000/- and that she herself wrote her name on Exs.P.1 and P.2 cheques. There is inconsistency in the pleadings of the subject private complaint as well as oral evidence of P.W.1 (complainant) with regard to the acquaintance between the parties. Further, the evidence of P.W.1 is not corroborating with the contents of the subject private complaint. Under these circumstances, the Court below rightly held that the acts of the complainant create a doubt with regard to the genuineness of Exs.P.1 and P.2 cheques. Further, there is no receipt or any document to substantiate that an amount of Rs.70,000/- was lent to the accused on 07.12.2005 as hand loan for his personal, family and legal necessities. There is no evidence on record to show that the accused borrowed an amount of Rs.70,000/- and issued Exs.P.1 and P.2 cheques in favour of the complainant. Further, P.W.3, husband of the complainant, has categorically stated in his cross-examination that the accused did not request him for loan. There are inconsistencies in the evidence of P.W.1 and P.W.3. All these inconsistencies create a doubt as regards to the existence of legally enforceable debt. All these aspects have been elaborately dealt with by the trial Court and answered against the complainant in view of cogent and convincing evidence on record. The conclusions reached by the trial Court are based on evidence on record. There is nothing to take a different view. The accusations against the accused under Section 138 of 5 Dr.SA J Crl.A.No.755 of 2008 N.I.Act are not proved beyond reasonable doubt. The contentions raised on behalf of the complainant do not merit consideration. The Criminal Appeal is devoid of merit and is liable to be dismissed.
8. In the result, the Criminal Appeal is dismissed, confirming the judgment, dated 28.02.2008, passed in C.C.No.735 of 2006 by the Additional Judicial Magistrate of First Class at Sangareddy.
Miscellaneous petitions, if any, pending in this Criminal Appeal, shall stand closed.
__________________ Dr. SHAMEEM AKTHER, J 30th November, 2021 Bvv