HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1551 of 2009
JUDGMENT:
1. The appellant is the complainant questioning the correctness of the judgment of the V Additional District & Sessions Judge (FTC), Ranga Reddy District in Criminal Appeal No.28 of 2005, dated 13.05.2009 in reversing the judgment of conviction in CC No.163 of 2005 dated 23.03.2005 passed by the III Metropolitan Magistrate, Cyberabad for the offence under Section 138 of the Negotiable Instruments Act.
2. Briefly, the facts of the case are that the accused borrowed an amount of Rs.5.00 lakhs on different dates. The said amount was paid by way of a pay order on 16.03.2000, 11.01.2001 and 09.02.2001. On insistence, two cheques were issued to clear the said outstanding. When the said cheques were presented, they were returned unpaid for the reason of 'funds insufficient'. A legal notice was issued, which was sent to the accused on 07.06.2001 and the accused gave reply on 09.06.2001 denying his liability. Since the amount covered by 2 the cheque was not paid within 15 days of the receipt of the notice, complaint was filed.
3. Since two cheques for Rs.2.50 lakhs each were issued, two separate complaints were filed. Both the complaints in CC Nos.163 and 164 of 2005 were disposed off by the learned Magistrate convicting the accused for the offence under Section 138 of the Negotiable Instruments Act vide two separate judgments dated 23.03.2005.
4. On appeal, learned Sessions Judge reversed the findings of the learned Magistrate believing the defence taken by the accused.
5. The defence of the accused is that he was not present on the dates when the cheque in question was issued and he was at Visakhapatnam. The accused stated that two persons namely K.Y.Sridhar and Ramakrishna created a false liability and took the services of the complainant to file a false complaint. The reason cited by the accused was that he was the Managing Director of the company in which the said 3 Udaya Bhaskar and K.Y.Sridhar were associates in the said company.
6. Due to differences, the accused left the company and went to Visakhapatnam. However, both the persons misused the cheques which were kept for usage during the course of business while running the company to create false liability. For the reason of such criminal acts, the accused gave a complaint dated 01.04.2002 to the Director of Vigilance and Enforcement, which was pending before the Court in Visakhapatnam.
7. The accused entered into the witness box and produced the relevant document Exs.D1 to D21.
8. On the basis of the defence taken by the accused, the learned Magistrate found that since there were pay-in slips which are Exs.P1 to P3, the accused was liable to pay the outstanding.
9. Learned Sessions Judge, on the other hand had gone into the details of the defence taken by the accused and found the 4 version of the accused was probable and the accused had discharged his burden by preponderance of probability by producing the evidence in respect of his defence.
10. A reading of the judgment, the learned Magistrate ought to have considered the correctness or otherwise of the defence taken by the accused in the back ground of the documents produced by the accused. Except narrating the defence of the accused, the learned Magistrate found that the accused being a Managing Director, would not have given signed cheues to the said Udaya Bhasker and Sridhar during course of business.
11. In the course of running a business, it is for the sake of convenience that the authorized signatories sign cheques and entrust to the other persons running the company. In the present case, two days after the receipt of the legal notice from the complainant, the accused has given a reply clearly stating his defence regarding misuse of cheques and also about the said persons i.e., Sridhar and Udaya Bhasker being prosecuted by him in the criminal court. Having taken the 5 defence at the earliest point of time i.e., within two days after receiving the notice, the entire circumstances that led to the complaint was brought on record by the accused during the course of trial by entering into the witness box and also by producing the relevant documents. Learned Magistrate concluded that no prudent person would issue signed cheques during running of a company, has convicted the accused, which was correctly reversed by the learned Sessions Judge giving reasons on the basis of documents and circumstances.
12. In Jafarudheen and others v. State of Kerala1 and Rajesh Prasad v. State of Bihar and another2, 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 1 (2022) 8 SCC 440 2 (2022) 3 SCC 471 6 the evidence, the Court committed an error and improperly considered and adjudicated the case.
13. I do not find any compelling reasons to reverse the well reasoned judgment of the learned Sessions Judge whereby the entire defence of the accused borne out by the record was discussed and considered, contrary to the finding of the learned Magistrate, whereby the learned Magistrate, without considering the documentary evidence, brushed aside the defence of the accused only on the ground that issuance of signed cheques to the other persons in the company in the course of business could not be believed. There are no reasons to interfere with the reasoning given by the learned Sessions Judge in reversing the order of conviction.
14. 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.1551 of 2009 Date: 17.11.2022.
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