HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1140 OF 2009
JUDGMENT:
1. This Criminal Appeal is filed by the Appellant/Complainant aggrieved by the acquittal recorded by the XIV Additional Judge-cum-XVIII Additional Chief Metropolitan Magistrate at Hyderabad, in C.C.No.3 of 2008, dated 09.03.2009, acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. Heard learned counsel for the appellant, Sri R.K.G.Bhatia for 1st respondent/accused and Sri S.Sudershan, learned Additional Public Prosecutor for 2nd respondent-State and perused the record.
3. The case of the appellant/complainant is that he had advanced an amount of Rs.2,95,000/- on different dates in the year 2004-2005 and also obtained Promissory Notes. The Accused has given two cheques towards discharge of the entire amount, however, the said cheques were unpaid for the reason of insufficient funds in the account of the Accused. The said fact was intimated by sending legal notice which was 2 received by the accused. For the reason of failure to make good, the amounts covered by the cheques, after the notice was issued, the present complaint was filed.
4. Learned Magistrate examined PW1-complainant and marked Exs.P1 to 15; and in defence the accused examined two witnesses i.e. DW1 and himself examined as DW2 and also marked Exs.D1 to D14.
5. Learned Magistrate after considering the evidence produced by the complainant and the accused, found that letters Exs.P13 and P14 which were allegedly issued by the accused were in fact not proved by the complainant and appears to have been fabricated. Further, the learned Magistrate found that the appellant had no licence to give the amounts. He has failed to prove that the amounts were paid to the accused and also did not file any Income-tax returns, which was submitted for the relevant years.
6. Learned Counsel for the appellant submits that in fact when the signatures on the cheques are admitted, there is a presumption which is attracted under Section 139 of the Negotiable Instruments Act. Since the accused failed to rebut 3 the presumption even by preponderance of probability, the finding of the learned Magistrate has to be reversed and the accused has to be convicted.
7. On the other hand learned counsel for 1st respondent/Accused submits that cheques were also given as security and amounts have been discharged; and that for the reason of not returning the cheques, false claims were made by the complainant.
8. Learned Magistrate having gone through the entire evidence on record and also the defence documents filed on behalf of accused, found that there were transactions in between the appellant and the accused, however, the complainant has neither filed any civil suit for recovery of amounts nor provided any proof to the Court that he was in fact having licence to advance money by way of loans. There was a finding that Exs.P13 and P14 were also fabricated and the learned Magistrate found that they are doubtful and not trust-worthy.
9. In cases of appeals against acquittal, the appellate Court while deciding an appeal cannot interfere with the order of 4 acquittal unless there are cogent and convincing reasons to say that the finding of the learned Magistrate while recording the acquittal are contrary to the record and improbable.
10. As seen from the evidence adduced, the pro-notes were old and they are barred by limitation. In fact, blank cheques, even according to the Magistrate, were filled up subsequently to prosecute the accused. There are several inconsistencies in the evidence of PW1 and he contradicted himself regarding his statements made in the chief-examination, during the course of his cross-examination. Collectively, the basis on which the learned Magistrate has recorded the order of acquittal are reasonable, for which I do not find any ground to interfere with the order of acquittal recorded by the trial Court.
11. Accordingly, the Criminal Appeal is dismissed.
As a sequel thereto, miscellaneous applications, if any, shall stand closed.
_________________ K.SURENDER, J Date:31.10.2022 tk 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1140 OF 2009 Dated: 31.10.2022 tk