HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.854 of 2010
JUDGMENT:
1. The appellant/complainant is questioning the correctness of dismissal of complaint filed under Section 138 of the Negotiable Instruments Act filed against the respondent/accused vide judgment in CC No.551 of 2009 dated 24.04.2010 passed by the XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad.
2. The case of the complainant is that she is acquainted with the accused over a period of five years and the accused borrowed an amount of Rs.6,60,000/- as hand loan. The said hand loan was given in the presence of two witnesses namely K. Hanumanth Rao and P. Rama Rao, who acknowledged in the promissory note as witnesses. To repay the said amount, four cheques were issued for an amount of Rs.6,60,000/- on different dates. All the said cheques when presented for clearance, the same were returned on 29.04.2008 with an endorsement 'insufficient funds'. Aggrieved by the dishonour of the cheques, the complainant issued legal notice dated 2 17.05.2008 under Ex.P10, which is office copy of legal notice. Reply was also given by the accused which is marked as Ex.P15.
3. Learned Magistrate, having examined the complainant as P.W.1 and marking Exs.P1 to P15 found that the accused was not guilty of the offence under Section 138 of the Negotiable Instruments Act for the following reasons; i) Though complainant stated that the accused was a family friend for five years, during the course of cross-examination she admitted that she met the accused for the first time only in January, 2007, as such, the very claim of the complainant that Rs.6,60,000/- was advanced within a span of one month of acquaintance cannot be believed; ii) Though two witnesses to the alleged transaction and signatories to Ex.P1 promissory note, the complainant failed to examine any one of them; iii) The defence taken by the accused that her brother, to harass the accused, misused the cheques which were in his possession and has taken the services of the complainant/P.W.1 to file false complaint appears to be 3 correct; iv) though the accused was living in a different district, which is Guntur and the complainant was living in Hyderabad, the very transaction of lending money in the back ground of admissions made during cross-examination discredits the evidence of the complainant.
4. Learned counsel for the appellant submits that since signatures on the cheques are admitted, the learned Magistrate erred in acquitting the 1st respondent on the basis of her defence, which is highly improbable. Once the signatures on the cheques are admitted, the presumption is attracted for the offence under Section 139 of the Negotiable Instruments Act and the accused failed to rebut the said presumption, for which reason, the acquittal recorded has to be reversed.
5. Having perused the record, there is no evidence with respect to the financial condition of the appellant. No document is filed to show that the appellant had the capacity to advance such huge amount. Admittedly, appellant met the 1st respondent for the first time in the month of January, 2007 4 and it is highly improbable that P.W.1 would have advanced an amount of Rs.6,60,000/- to the 2nd respondent, who was resident of Guntur. The claim of P.W.1 in the complaint and chief examination that she knew the 1st respondent for five years, for which reason, the amount was given as hand loan is belied by her own admission in the cross-examination. Apparently, the appellant has made false claims of acquaintance with the 1st respondent to say that the said amount was advanced.
6. The burden which lies on the 1st respondent is one of the preponderance of probability and the same can be discharged on the basis of oral and documentary evidence produced by the complainant. The 1st respondent need not enter into the witness box to state her defence. On the face of the record, the very genesis of the complaint appears to be made up and false. The fact that P.W.1 was a disciple of brother of the 1st respondent with whom she had differences was not specifically denied by P.W.1. When there were good relations in between the 1st respondent and her brother to run her business, 5 cheques were handed over to her brother, according to the defence of the 1st respondent. The said defence taken by the 1st respondent probablises in the back ground of the false claim made by P.W.1 regarding acquaintance and also non examination of any of the independent witnesses to the promissory notes. Though it is not required to examine independent witnesses and only on the basis of the dishonoring of cheques, presumption can be maintained, however, in the present facts of the case, when P.W.1's version appears to be false. The said version of P.W.1 needed corroboration.
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 1 (2013) 11 supreme court Cases 688 6 accused has a judgment of acquittal in his favour. A judgment of acquittal enhances the presumption of innocence of the accused and in some cases, it may even indicate a false implication. But then, this has to be established on record of the Court.
8. The findings of the learned Magistrate cannot be interfered with as the same are based on record and reasonable conclusions. In a case of acquittal, the question of interference would arise only when the findings of the trial court are not based upon the evidence and unreasonable. This Court does not find any such unreasonableness in the findings of the learned Magistrate. In view of the above facts and circumstances, the appeal deserves to be dismissed.
9. Accordingly, the Criminal Appeal is dismissed.
__________________ K.SURENDER, J Date: 20.10.2022 kvs 7 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.854 of 2010 Date: 20.10.2022.
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