HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1544 of 2009
JUDGMENT:
1. The appellant/complainant is questioning the acquittal of the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act vide judgment in CC No.1043 of 2003 dated 31.12.2007 passed by the III Additional Chief Metropolitan Magistrate, Hyderabad.
2. The case of the complainant is that out of acquaintance, the accused borrowed an amount of Rs.1,50,000/- loan and executed promissory note on 25.05.2002 agreeing to repay the said amount with interest at 24%. However, on repeated requests, the cheque dated 10.03.2003 was given to discharge her outstanding. The said cheque when presented for clearance was returned on 18.07.2003. Legal notice was issued on 22.07.2003. However, having received the said notice, accused sent reply notice on 28.07.2003 denying the outstanding. Aggrieved by non-payment of the amount covered by the cheque, complaint was filed.
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3. During the course of trial, complainant examined herself as P.W.1 and another witness P.W.2 and marked Exs.P1 to P9.
4. In defence, the accused examined herself as D.W.1 and also LIC Housing Finance Area Manager as D.W.2 and Exs.D1 to D9 were also brought on record by the accused.
5. Learned Magistrate acquitted the accused on the following grounds; i) The version of P.W.1 in chief examination and cross- examination regarding the amount outstanding are totally contrary and inconsistent; ii) though in chef examination, she stated that Rs.1,50,000/- was given in cash, whereas in cross-examination, PW.1 stated that the amount was given to builders and financiers;
iii) Though, promissory note was executed, the same was not filed in the Court and an adverse inference can be drawn; iv) On the basis of Exs.P6 to P9, it is evident that the complainant used to collect blank pronotes and documents.
6. Learned counsel for the complainant would submit that since the signatures on the cheque are admitted, presumption is attracted and the accused failed to rebut the presumption. The version given by the accused is highly improbable and the learned 3 Magistrate has erred in concluding that the complainant failed to substantiate that there was outstanding covered by the cheque in question. For the reason of incorrect conclusions drawn by the learned Magistrate, the judgment of acquittal has to be reversed.
7. The case of the accused is that the complainant had helped in providing finance through Lakshmi Finance, Vasu Finance and loan amount to the said financiers was discharged. In the process of obtaining loans from others, the complainant and her husband used to obtain signatures on promissory notes and loans were arranged from LIC also. The said cheques which were given towards security were not returned by the complainant and misused to file the present complaint. For the reason of the documents being held with the complainant, an altercation ensued, for which, the husband of P.W.1 and her son also abused and threatened the accused, for which reason, accused lodged complaints. The accused also executed receipts Exs.D1 and D2 and also complaint was filed with LIC. Since the husband of P.W.1 and her son manhandled the accused, complaint was also filed before the SCs & STs Commission, which is marked as Ex.D6.
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8. The burden which shifts on to the accused under Section 139 of the Negotiable Instrument Act can be discharged by preponderance of probability. It is not for the accused to deny and prove each and every statement made by the complainant, however, on the basis of the documents filed by the accused and also other circumstances, the accused can discharge his or her burden.
9. Having considered all the documents, it is apparent that the accused had obtained loans from various financiers and also aggrieved by the conduct of P.W.1 and her husband, she lodged complaint with SC & ST Commission. At the earliest point of time, when notice was sent by P.W.1 regarding the return of cheque, immediately the accused replied by narrating her defence that there was no outstanding covered by the cheque and said cheque was misused. During the course of trial, the accused entered into witness box and produced documents to substantiate her version that the cheques which were given towards security to other financiers were misused.
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10. 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.
11. Though two views are possible when the view taken by the learned Magistrate is also probable, only for the reason of the Court being able to arrive at a different conclusion, the appellate Court while dealing with the case of acquittal, cannot interfere with such acquittal on the ground that another view and conclusions are possible. As stated supra, the conclusions of the learned Magistrate are based on record, reasonable and probable. The 1 (2013) 11 supreme court Cases 688 6 appellate court cannot interfere to reverse the judgment of acquittal.
12. For the aforementioned reasons, the appellant failed to make out a case for reversing the judgment of acquittal.
13. Accordingly, the Criminal Appeal is dismissed.
__________________ K.SURENDER, J Date: 27.10.2022 kvs 7 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1544 of 2009 Date: 27.10.2022.
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