THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 531 OF 2010
JUDGMENT:
This Criminal Appeal is filed by the Appellant/defacto complainant aggrieved by the acquittal recorded by the VII Additional Chief Metropolitan Magistrate, Hyderabad, dt.27.08.2008, in C.C.No.541 of 2005, acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. Heard both sides and perused the record.
3. The case of the complainant is that Rs.1,70,000/- was taken by the accused in the month of June, 2004 and the complainant issued a receipt for the said transaction. The accused also issued a cheque for Rs.1,70,000/- on 25.05.2005, which was returned unpaid for the reason of 'account closed'. Notice was sent by the complainant and for the reason of failure of the accused to pay the amount covered by the cheque, complaint was filed.
4. Learned Magistrate having examined PW1-complainant and DWs.1 and 2 who are common friends of accused and complainant, found that there was no outstanding of Rs.1,70,000/-. The learned Magistrate further found that an 2 amount of Rs.1,50,000/- was taken and PW1 failed to prove that there was an outstanding of Rs.1,70,000/- which is the amount mentioned in cheque.
5. Learned counsel for the appellant would submit that the claim of the accused paying the amount was through cheques and cash. The learned Magistrate erred in acquitting the accused only for the reason of finding that an amount of Rs.1,50,000/- was paid to the complainant. Though the learned Magistrate failed to accept the defence of the accused that the amount of Rs.1,50,000/- was paid in the presence of DW2, ought to have convicted the accused.
6. As seen from the evidence, the issuance of cheque and the signature thereon was not disputed by the accused. In the event of acceptance of signature and issuance of cheque, burden shifts on to the accused to prove his case by preponderance of probability. The accused has examined DW2 to show that he had withdrawn an amount of Rs.1,90,000/- on 20.02.2005 and in his presence, the amount was paid back to the complainant. The learned Magistrate did not accept the said version of the accused for the reason of not suggesting the said defense to PW1 when he was cross-examined.
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7. Admittedly, the accused failed to discharge his burden of there being no liability even according to the learned Magistrate. The learned Magistrate erred in recording acquittal having disbelieved the defence of the accused.
8. Only for the reason of finding that an amount of Rs.1,50,000/- was taken from PW1, the learned Magistrate ought to have found that there is a presumption under Section 139 of the Negotiable Instruments Act, which the accused failed to rebut. Further, as discussed above, the learned Magistrate did not believe the version of repayment.
9. In the absence of the accused failure to discharge his burden to show that there was no outstanding on the cheque-Ex.P1, this Court finds that the learned Magistrate's order of acquittal is erroneous.
10. For the said reason, the Judgment of learned VII Additional chief Metropolitan Magistrate, dt.27.08.2008 in C.C.No.541 of 2005, is set aside and the 2nd respondent/accused is found guilty for the offence under Section 138 of the Negotiable Instruments Act.
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11. In view of the said finding, the accused is directed to pay compensation of Rs.1,70,000/- to the appellant/complainant, within one month from the date of receipt of a copy of this order, failing which, the accused shall undergo simple imprisonment of one month.
12. Accordingly, the Criminal Appeal is allowed.
Miscellaneous applications pending, if any, shall stand closed.
__________________ K.SURENDER, J Dt.:03.11.2022 tk 5 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No. 531 OF 2010 Dt. 03.11.2022 tk