HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1158 of 2009
JUDGMENT:
1. The appellant aggrieved by the acquittal of the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act vide judgment in CC No.41 of 2005 dated 13.02.2009 passed by the XI Additional Chief Metropolitan Magistrate, Secunderabad, filed the present appeal.
2. The case of the complainant is that he has given hand loan of Rs.50,000/- to the accused on 06.05.2004. Ultimately on 10.09.2004, a cheque for Rs.50,000/- was given towards repayment of the debt to the complainant. When the said cheque was presented for clearance, the same was returned unpaid for the reason of 'funds insufficient' on 08.10.2004. A registered legal notice was sent on 25.10.2004 and having received the said notice, the accused gave reply notice on 01.11.2004.
3. Learned Magistrate having examined the evidence produced by the complainant, who examined himself as P.W.1 and marked Exs.P1 to P5 and the evidence of accused who entered into the witness box and examined herself as D.W.1 and also examined another witness PW2 in support of the defence of the accused, 2 found that the accused not guilty of the offence under Section 138 of the Negotiable Instruments Act on the following grounds;
i) Except the oral evidence of P.W.1, there is no other evidence to corroborate the handing over of loan amount to the accused in the back ground of the defence of the accused of denying totally the outstanding amount, the complainant ought to have produced evidence in support of his claim;
ii) No proof is filed by the complainant that he was having Rs.50,000/- at his disposal.
5. The defence of the accused was that the cheque was given to one Tara Kumari and misused by the complainant to file a false case. The said Tara Kumari is the friend of the wife of the complainant. In the back ground of the complainant failing to prove that the loan amount was advanced to the accused, the finding of the learned Magistrate that the accused had issued the cheque to one Tara Kumari and not to the complainant can be accepted in the back ground of the facts and circumstances of the present case. The trial Court had the opportunity of examining the witnesses and also assessing the witnesses. The learned Magistrate having conducted trial found that the 3 statement made by the complainant that an amount of Rs.50,000/- being given, was found to be false. The said finding appears to be probable, for which reason, the appeal cannot be sustained.
6. 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 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.
7. Only for the reason of there being another view which can be taken in the facts, the appellate Court in appeal cannot interfere with the order of acquittal. Unless the reasons given by the trial Court are found to be not based on record or 1 (2013) 11 supreme court Cases 688 4 improbable, the appellate Court in appeal against acquittal can show indulgence and reverse the order of acquittal. However, in the present case, when the reasons given by the learned Magistrate are reasonable, this Court while adjudicating the appeal against appeal cannot reverse the said order of acquittal only for the reason of there being another view which can be taken to convict the accused.
8. For the said reasons, this Court is of the view that the findings of the learned Magistrate cannot be interfered with to set aside the order of acquittal.
9. Accordingly, the Criminal Appeal is dismissed.
__________________ K.SURENDER, J Date: 27.10.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1158 of 2009 Date: 27.10.2022.
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