HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1135 of 2010
JUDGMENT:
1. Dismissal of the complaint by the learned XVI Additional Judge-cum-XX Additional Chief Metropolitan Magistrate, Hyderabad vide judgment in CC NO.93 of 2008 dated 29.12.2009 is questioned by the complainant in this appeal.
2. According to the complainant, he was acquainted with the accused and on 21.04.2003, an amount of Rs.2.00 lakhs was given as hand loan. After repeatedly asking to repay the said amount, cheque dated 28.04.2004 for Rs.2.00 lakhs was given. The said cheque, when presented for clearance on 30.04.2004 was returned unpaid with an endorsement 'account closed'. A legal notice was issued on 06.05.2004, which was received by the accused on 07.05.2004. Since the amount covered by the cheque was not paid, having received notice, complaint was filed under Section 138 of the Negotiable Instruments Act.
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3. Complainant examined himself and another as P.Ws.1 and 2 and marked Exs.P1 to P7. In defence, the accused entered into witness box and also marked Exs.D1 to D17.
4. Having considered the rival contentions of the complainant and the accused, the learned Magistrate found that the accused was not guilty of the offence under Section 138 of the Negotiable Instruments Act on the following grounds; i) execution of the promissory note Ex.P1 dated 21.04.2003 is doubtful as the address mentioned in Ex.P1 would be P & T Colony, Gandhinagar area and not Chikkadpally.(ii) Ex.P1 was fabricated after the complainant shifted his residence to Chikkadapally. (iii) The accused filed police complaint against one Jyothi Chowdary under Exs.P14 and P15 before the Musheerabad Police Station for the offence of cheating, breach of trust and extortion. The relevancy is that both the complainant and the accused purchased tailoring units from Jyothi Chowdhary, who sold 50% of her share in her tailoring unit to the accused initially and the other 50% to the complainant.
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5. Learned Magistrate further found that it is also admitted that subsequently accused purchased 50% share of the complainant also in the tailoring unit and paid his share amount to him. Since the complainant had friendly terms with Jyothi Chowdary, handed over some cheques given by the Fantoosh India to Jyothi Chowdary and he admitted the job work cards containing his signatures which are marked as Exs.D1 to D11 which were given by Fantoosh India and admitted that Ex.D1 to D11 pertains to the work done by Jyothi Chowdary and stated that he used to help Jyothi Chowdary and used to accompany her and used to go to Fantoosh on her behalf. It is also admitted that both Exs.P1 promissory note dated 21.04.2003 and Ex.P2, cheque contain the signature of the accused, but mere admission of signature is not amounting to admission of execution. It is also an admitted fact that by the date of Ex.P1, the complainant was residing in P & T Colony, but not in Chikkadapally. It is also admitted that the complainant submitted Ex.D12 application to BSNL authorities for shifting of telephone to Chikkadapally address from P & T Colony I the month of August, 2003. 4
6. From the transactions, it is apparent that the learned Magistrate found that there was no hand loan as claimed by the complainant and the accused has discharged her burden by entering into the witness box and also producing the documents.
7. Learned counsel for the complainant relied upon the judgment of the Hon'ble Supreme Court in the case of Rangappa v. Mohan1 and argued that the observations made by the learned Magistrate in Krishna Janardhan Bhat v. Dattatraya G.Hegde2 may not be correct. The Hon'ble Supreme court in Rangappa's case did not overrule the judgment in Krishna Janardhan Bhat v. Dattatraya G.Hegde. However, the Hon'ble Supreme Court held that if the accused is able to raise the probable defence, which creates doubts about a legally existing debt or liability, the prosecution can fail. As discussed above, the accused has discharged her burden by preponderance of probabilities. 1 2011(1) SCC (Cri) 184 2 2008 (1) ALD Crl.485 5
8. In Jafarudheen and others v. State of Kerala3 and Rajesh Prasad v. State of Bihar and another4, the Hon'ble Supreme Court held that in case of acquittal, presumption is in favour of the accused. Unless there are glaring mistakes or any erroneous view of law is taken, the appellate Courts cannot interfere with the judgment of the acquittal. The Hon'ble Supreme Court further held that it has to be shown that there was miscarriage of justice and while dealing with the evidence, the Court committed an error and improperly considered and adjudicated the case.
9. In the case of Section 138 of Negotiable Instruments Act, the initial burden is always on the complainant. Once the complainant discharges his burden, the burden shifts on to the accused and in the present case, the accused has discharged her burden by producing documentary evidence in support of her defence. The conclusions drawn regarding fabrication of Ex.P1 promissory note and also the reasons for 3 (2022) 8 SCC 440 4 (2022) 3 SCC 471 6 false implications are on the basis of evidence adduced during the course of trial and it cannot be said that the findings are unreasonable or erroneous. For the said reasons, this Court does not find any reason to interfere with the well reasoned judgment of the learned Magistrate.
10. For the reasons discussed in the preceding paras, the appeal fails and the same is accordingly dismissed.
__________________ K.SURENDER, J Date: 17.11.2022 kvs 7 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1135 of 2009 Date: 17.11.2022.
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