HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1241 of 2010
JUDGMENT:
1. The appellant, who is the complainant aggrieved by the judgment in Crl.A.No.138 of 2008 dated 02.08.2010 passed by the II Additional Sessions Judge, Nalgonda, reversing the order of conviction passed in CC No.29 of 2005 dated 29.08.2008 by the Judicial Magistrate of First Class at Kodad and acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act, filed the present appeal.
2. Briefly, the case of the complainant is that the accused has borrowed an amount of Rs.50,000/- and executed promissory note on 10.01.2002. On the insistence of the complaint a cheque for Rs.84,000/- was issued on 10.08.2004, which according to the complainant is the outstanding collected with interest. The said cheque, when presented for clearance was returned unpaid with an endorsement 'account closed'. Having issued legal notice intimating return of the cheque and due to the failure of the accused to pay the amount covered by the cheque, complaint 2 was filed under Section 138 of the Negotiable Instruments Act. Learned Magistrate convicted the accused for the offence under Section 138 of the Negotiable Instruments Act.
3. The accused preferred appeal and the learned Sessions Judge reversed the judgment of conviction on the ground that statutory notice was not served on the accused and the complainant failed to prove that the accused was residing in the address mentioned in Ex.P6.
4. Learned counsel for the appellant would submit that a certified copy of the petition in IP No.2 of 2005 is filed by the accused in the trial court, which reflects the very same address as mentioned in Ex.P6.
5. The finding of the learned Sessions Judge is that it was specifically mentioned by the postman that the addressee was absent in the said address. It is the specific case of the accused that due to pressure of the debtors, he fled the village. He also entered into the witness box and stated that he had filed the Insolvency Petition and unable to bear the pressure 3 from the debtors, he was not living in Mogalaikota village, which is to the knowledge of the complainant.
6. The contention of the accused that he was not residing in the said address is probablised by the endorsement on the postal cover that the accused was absent. Though, there is a presumption that if the notice is sent to the correct address, it shall be deemed to have been served, however, it is to the knowledge of the complainant that the accused had fled the village due to the pressure from the debtors.
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 1 (2013) 11 supreme court Cases 688 4 accused and in some cases, it may even indicate a false implication. But then, this has to be established on record of the Court.
08. There are no grounds to interfere with the judgment of the learned Sessions Judge reversing the order of conviction and acquitting the 2nd respondent/accused.
09. For the reasons discussed in the preceding paras, the appeal fails and the same is dismissed.
__________________ K.SURENDER, J Date: 11.11.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1241 of 2010 Date: 11.11.2022.
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