HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1493 of 2009
JUDGMENT:
1. The complaint filed under Section 138 of the Negotiable Instruments Act was dismissed vide judgment in CC No.99 of 2009 dated 17.07.2009 by the VIII Additional Chief Metropolitan Magistrate, Hyderabad. Aggrieved by the same, present appeal is filed.
2. It is the case of the complainant that a loan of Rs.75,000/- was advanced to the accused on 12.06.2006 for purchase of some property. The accused promised to repay the loan with nominal interest of Rs.5,000/- and accordingly, a promissory note was also executed. To repay the said amount, two cheques for Rs.75,000/- and Rs.5,000/- which are dated 12.12.2006 were issued. When the said cheques were presented for clearance, they were returned unpaid for the reason of 'funds insufficient' on 16.04.2007. A notice dated 25.04.2007 was issued calling upon the accused to pay the amount covered by the cheque. Since the accused failed to pay said amount, complaint was filed.
3. Learned Magistrate, having examined P.W.1, who is the wife and Special Power of Attorney of the complainant and having 2 marked Exs.P1 to P10 found that the accused was not guilty of the offence for the following reasons:
i) The principal lender was not examined before the Court;
ii) Admittedly, money lending business was being carried out by collecting interest without a valid licence; Under the said circumstances, the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Limited1 held that money lending business without a licence, the liability cannot be enforced.
4. No reasons are given as to why the principal was not examined before the Court. Admittedly, the accused is the friend of M.Ramachander Rao, who is the husband of the appellant. Two cheques were received on 12.12.2006, which is again doubtful. When a cheque can be issued for Rs.80,000/-, no reason as to why two cheques were received, according to the learned Magistrate. The reasons given by the learned Magistrate are probable and cannot be said that they are not borne out by record or legally unsustainable.
1 2005(3) ALD 43 (SC) 3
5. In Jafarudheen and others v. State of Kerala2 and Rajesh Prasad v. State of Bihar and another3, 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 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.
6. For the said reasons, when there are no infirmities in the finding, this Court does not find any reason to interfere with the well reasoned judgment of the learned Magistrate.
7. Accordingly, the Criminal Appeal is dismissed.
Miscellaneous applications, if any, pending shall stand closed.
__________________ K.SURENDER, J Date: 22.11.2022 kvs 2 (2022) 8 SCC 440 3 (2022) 3 SCC 471 4 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1493 of 2009 Date: 22.11.2022.
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