HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.662 OF 2010
JUDGMENT:
1. The appellant aggrieved by the dismissal of the complaint under Section 138 of the Negotiable Instruments Act vide judgment in CC No.682 of 2007 dated 17.06.2009 passed by the Additional Judicial Magistrate of First Class, Karimnagar, filed the present appeal.
2. The case of the complainant is that he has lent an amount of Rs.8.00 lakhs to the accused by handing over a cheque and amount withdrawn from the account of complainant's wife. The accused received the amount and executed promissory note in favour of his wife. Towards repayment, issued the cheque in question in the name of the complainant for an amount of Rs.6.00 lakhs and when the same was presented for clearance, it was returned unpaid with an endorsement 'insufficient funds'. Legal notice was issued. Having received the notice, the accused failed to pay the amount covered by the cheque, as such complaint under section 138 NI Act was filed.
3. Learned Magistrate recorded the statements of P.Ws.1 to 4 and marked Exs.P1 to P10 on behalf of complainant. The accused 2 entered into the witness box and he was examined as D.W.1. Having considered the oral and documentary evidence, the learned Magistrate acquitted the respondent/accused on the following grounds; i) The very basis of handing over of Rs.8.00 lakhs from the account of the wife of the complainant cannot be believed as the Branch Manager/P.W.2 stated that an amount over Rs.5.00 lakhs will not be paid in cash; ii) The alleged amount was given by his wife and also the promissory note was executed in favour of the wife, for which reason, if any outstanding, it would be payable to the wife and not the husband/complainant; iii) the husband cannot file complaint on behalf of his wife since there is no legally enforceable debt between the complainant and the accused.
4. Learned counsel for the complainant would submit that signature on the cheque is not disputed, for which reason, the presumption under Section 139 of the Negotiable Instruments Act is attracted and the accused failed to discharge his burden. Further, the Magistrate has erred in recording that there is no outstanding payable to the husband/complainant when it is the specific case of the complainant/husband that he has given loan to 3 the accused. However, amount was paid from his wife's account. It is immaterial from where the money is brought when the complainant has handed over the loan amount to the accused. In the said circumstances, the finding of the learned Magistrate has to be interfered with and same has to be reversed. When once the signature on the cheque is admitted, presumption arises and the Court has no other option but to convict the accused. He argued that the learned Magistrate could not have declined to entertain the complaint on the ground that the husband was not entitled to file the complaint as held by the Hon'ble Supreme Court in the case of Vishwa Mitter of M/s.Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot v. O.P.Poddar [(1983) 4 Supreme Court Cases 701]. He also relied on the judgments in the case of Sunil Todi and others v. State of Gujarat and another [2022 (1) ALT (CRI.)(SC) 102 (D.B)], Greaves Limited, Hyderabad v. Leo Electronics Organization, Hyderabad [2006(2) ALD (Crl.) 977(AP).
5. On the other hand, Sri G.Koteshwar Rao, learned counsel for the respondent/accused submits that the finding of the learned Magistrate cannot be interfered with as they are based on record. 4 He relied on the judgments reported in the cases of; i) Rangappa v. Mohan [2010(2) ALD (Crl.) 734 (SC); ii) G.Ashok Kumar Goud v. P.Anjili Bai [2012(2) ALD (Crl.) 126 (AP).
6. It is admitted by P.W.2 that the Bank would not have permitted withdrawal of Rs.8.00 lakhs when the limit is only Rs.5.00 lakhs. The very claim made by the complainant regarding withdrawal of Rs.8.00 lakhs becomes doubtful. Secondly, P.W.1 during cross-examination stated that the amount was taken directly from his wife and promissory note executed in her favour. Admittedly, the transaction is in between the wife of the appellant and the accused. In the peculiar facts and circumstances of the present case, the finding of the learned Magistrate cannot be found fault with.
7. The complainant coming into possession of the cheque was also discussed by the learned Magistrate stating that on account of running finance business privately, signed cheques came into possession of the complainant. However, when the entire transactions and handing over of money and execution of promissory note was in favour of the wife of the complainant, the 5 question of there being any outstanding as far as the complainant is concerned is unacceptable. There is no legally enforceable debt to attract an offence under Section 138 of the Negotiable Instruments Act against the accused.
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 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. For the aforementioned reasons, there are no grounds to interfere with the judgment of the trial Court. 6
10. Accordingly, the Criminal Appeal is dismissed. As a sequel thereto, miscellaneous petitions, if any, pending, shall stands closed.
__________________ K.SURENDER, J Date: 08.11.2022 kvs 7 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.662 OF 2010 Date: 08.11.2022.
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