HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.867 of 2010
JUDGMENT:
1. The appellant, who is the complainant aggrieved by the judgment in C.C No.267 of 2008 dated 07.05.2010 passed by the XVI Additional Judge-cum-XX Additional Chief Metropolitan Magistrate, Hyderabad, acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act, filed the present appeal.
2. The complainant filed a private complaint against the accused alleging that he has lent an amount of Rs.2,75,000/- for developing his establishment M/s.Alekhya Visions on 03.03.2004. However, when requested, a cheque for Rs.50,000/- dated 31.01.2005 towards part payment was issued. When the same was presented for clearance, it was returned for the reason of 'account closed.' A legal notice was issued on 20.07.2005, which was received by the accused, but failed to repay the amount, as such, complaint was filed.
3. The complainant examined himself as P.W.1 and marked Exs.P1 to P15. The accused entered into witness box and 2 examined himself as D.W.1 and also another witness as D.W.2.
4. Learned Magistrate having considered the evidence on record, found that the accused was not guilty for the following reasons; i) The accused filed Ex.D1, which is an amount of Rs.50,000/- paid by way of banker's cheque to the complainant, which is to discharge the cheque amount; ii) there is a sale transaction in between the complainant and the accused in the year 1998 and it is not believable that payment of Rs.50,000/- was made in the year 2006 towards the said property transaction of the year 1998, as stated during the complainant's examination in the court.
5. Learned counsel for the complainant submits that the Magistrate had committed an error in acquitting the accused when the cheque in question was admitted. In order to prove that there was an outstanding of Rs.2,75,000/- the four other cheques issued by accused were also marked as Exs.P6 to P9, given on different dates, that itself would go to show 3 that there was an outstanding. In the said circumstances, acquittal has to be reversed.
6. As seen from the evidence, there was a bankers cheque, which was dated 25.02.2006, which was given to the complainant. Except stating that the said amount was towards some other transaction, the complainant failed to prove what was the transaction, for which the said amount was taken. If at all the said Rs.50,000/- was towards sale transaction of the year 1998, the said explanation given by the complainant is not believable. For the reason of the complainant failing to prove that the amount of Rs.50,000/- which was paid on 25.02.2006 nearly 25 days after the cheque was issued under Ex.P1 was for any other purpose, the logical conclusion is that the payment was to discharge the amount covered by the cheque Ex.P1, which is dated 31.01.2005. It is not understandable as to why the four other cheques were filed in the present case, without sending them for clearance. 4
7. The Hon'ble Supreme Court in the case of Radhakrishna Nagesh v. State of Andhra Pradesh1 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.
8. There are no grounds to interfere with the judgment of the learned Magistrate. For the reasons discussed in the preceding paras, the appeal fails and the same is dismissed.
__________________ K.SURENDER, J Date: 11.11.2022 kvs 1 (2013) 11 supreme court Cases 688 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.867 of 2010 Date: 11.11.2022.
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