HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.665 of 2010
JUDGMENT:
1. The appellant is the complainant. He is aggrieved by the judgment of the learned I Additional Sessions Judge at Khammam in Criminal Appeal No.114 of 2007, dated 07.07.2009 acquitting the 2nd respondent/accused for the offence under Section 138 of the Negotiable Instruments Act by reversing the judgment of the II Additional Judicial Magistrate of First Class, Khammam vide judgment in CC No.1 of 2004 dated 13.08.2007 convicting the 2nd respondent/accused.
2. The case of the appellant is that out of acquaintance with the 2nd respondent, he provided an amount of Rs.95,000/-on 01.12.2002. On the day of taking the amount, the 2nd respondent executed a promissory note towards collateral security and agreeing to repay the same with interest at the rate of 24% per annum. Towards repayment, the 2nd respondent issued cheque Ex.P1 for an amount of Rs.95,000/-. The said cheque when presented for clearance, was returned for the reason of 'insufficient 2 funds' on 28.11.2003. The appellant issued a registered legal notice calling upon the 2nd respondent to repay the cheque amount. However, the present complaint was filed as the 2nd respondent failed to pay the amount covered under Ex.P1 cheque within 15 days of receipt of the notice.
3. The appellant examined himself and another as P.Ws.1 and 2 respectively and marked Exs.P1 to P5. The 2nd respondent examined himself as D.W.1. The learned Magistrate found that (i) the signature on the cheque Ex.P1 was tallied with the specimen signature of the 2nd respondent in the Bank, (ii) non production of the promissory note before the Court is not fatal to the complainant's case, (iii) the 2nd respondent admitted that the address mentioned on the returned postal cover was the correct address and he was residing in the said address.
4. On appeal, the learned Sessions Judge reversed the judgment of conviction on the following grounds; i) the 2nd respondent/accused himself examined as D.W.1 entered into the witness box and stated that he did not take any money and did not execute ay promissory note; ii) Except the evidence of appellant, there is no other evidence on 3 record regarding borrowing of the amount; iii) Though complainant claimed that promissory note was executed, no explanation is offered by the appellant as to why he did not file the promissory note.
5. On the basis of the above, the learned Sessions Judge reversed the order of conviction and acquitted the 2nd respondent/accused.
6. The signatures on the cheque are admitted. It is not the case of the 2nd respondent that the cheque was subjected to theft or that the signatures are not that of his. Merely denying the borrowing of money would not repel the presumption that is attracted under Section 139 of the Negotiable Instruments Act when the signatures on the cheque are admitted. It is not mandatory that the promissory note has to be filed before the Court. The issuance of cheque in itself would be sufficient to attract the presumption under Section 139 of the Act and for the reason of either not filing the promissory note or not giving explanation regarding the promissory note alleged to have been executed by the 2nd respondent is not sufficient to rebut the presumption.
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7. The findings of the learned Magistrate regarding the outstanding of the amount and liability are restored. The finding of the learned Sessions Judge in Criminal Appeal No.114 of 2007 is set aside. However, since the transaction is of the year 2002, this Court deems it appropriate to convict the 2nd respondent/accused for the offence under Section 138 of the Negotiable Instruments Act and impose fine of Rs.1,30,000/- out of which, the 2nd respondent/accused is directed to pay Rs.1,25,000/- to the appellant/complainant within a period of three months from the date of receipt of a copy of this order, failing which, the 2nd respondent/accused shall undergo simple imprisonment for a period of six months.
8. Accordingly, the Criminal Appeal is allowed.
__________________ K.SURENDER, J Date: 13.10.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.665 of 2010 Date: 13.10.2022.
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