HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.568 OF 2010
JUDGMENT:
1. The appellant is the complainant who is aggrieved by the judgment of acquittal recorded by the II Additional Metropolitan Sessions Judge vide judgment in Criminal Appeal No.202 of 2009 dated 12.11.2009 reversing the judgment of conviction recorded by the XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad in CC No.72 of 2008 dated 30.06.2009 for the offence under Section 138 of the Negotiable Instruments Act.
2. Briefly, the case of the complainant is that the complainant and accused are friends and out of said acquaintance, an amount of Rs.50,000/- was given as loan to the accused. At the time of taking loan, promissory note was also executed. In discharge of the said liability, cheque for Rs.50,000/- was issued to the complainant on 13.01.2004. The said cheque, on presentation, was returned with an endorsement "insufficient funds" on 14.01.2004. A notice was issued on 07.02.2004 and for the reason of failure to pay the amount covered by the cheque after receiving notice, complaint was filed. 2
3. Learned Magistrate, recorded the evidence of P.W.1/complainant and marked Exs.P1 to P10. On behalf of the accused, accused entered into the witness box and was examined as D.W.1. Learned Magistrate found the accused guilty of the offence and convicted him.
4. On appeal, the learned Sessions Judge acquitted the accused on the following grounds: i) The complainant has taken blank signatures on three cheques and promissory note and two blank papers. Taking advantage of the said blank documents, the case was filed; ii) A civil suit was filed by the complainant and also sought attachment of the benefits of the accused received through voluntary retirement. On receiving the said amount, the civil Court closed the Interlocutory Application; iii) The alleged promissory note, which was executed was not brought on record and there is no explanation; iv) The finding that the cheque and promissory note were received in blank can be ascertained from the fact that there are different writings in the cheque.
5. The learned Sessions Judge by giving the above reasons found the accused not guilty of the offence under Section 138 of the Negotiable Instruments Act.
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6. The learned Sessions Judge was right in holding that the complainant failed to prove the outstanding and that there was a legally enforceable debt on the subject matter of the cheque. There are no other outstanding even according to the complainant and once the complainant has approached the civil court and sought an attachment from the voluntary retirement benefits of the accused, it is highly doubtful that there existed any debt on the cheque in question.
7. The findings of the learned Sessions Judge are on the basis of record and this Court does not find any illegality or infirmity in the findings of the learned Sessions Judge in reversing the judgment of conviction of the learned Magistrate.
8. The Hon'ble Supreme Court in the case of Radhakrishna Nagesh v. State of Andhra Pradesh [(2013) 11 Supreme Court Cases 688) held that under the Indian criminal jurisprudence, the accused has two fundamental protections available to him in a criminal trial or investigation. Firstly, he is presumed to be innocent till proved guilty and secondly that he is entitled to a fair trial and investigation. Both these facets attain even greater significance where the accused has a judgment of acquittal in his favour. A judgment of acquittal enhances the presumption of 4 innocence of the accused and in some cases, it may even indicate a false implication. But then, this has to be established on record of the Court.
9. In case of appeal against acquittal, the Courts cannot reverse the order of acquittal unless there are clear inconsistencies or the findings are not based on record. For the said reason, when the finding of the learned Sessions Judge are reasonable and probable, the question of interference by this Court does not arise.
10. In the result, there are no merits in the appeal and accordingly, the same is liable to be dismissed.
11. Accordingly, the Criminal Appeal is dismissed.
__________________ K.SURENDER, J Date:08.11.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.568 of 2010 Date: 08.11.2022.
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