HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1558 OF 2007
JUDGMENT:
1. The appellant is questioning the correctness of the judgment of the learned II Additional Chief Metropolitan Magistrate, Hyderabad in CC No.355 of 2002 dated 17.07.2007 acquitting the 1st respondent/accused for the offence under Section 138 of the Negotiable Instruments Act.
2. The parties hereinafter will be referred to as arrayed before the trial Court. The case of the prosecution is that the complainant is a company which is stockiest/dealer for sale and distribution of plant protection pesticides. The complainant supplied goods to the accused on credit basis from time to time and to discharge the said payment due towards supply of pesticides by the complainant, Ex.P3 cheque was issued by the accused. The said cheque when presented for clearance was returned unpaid with an endorsement "funds insufficient". For the reason of non payment of the said amount covered by the said cheque though legal notice was issued, a complaint was filed stating 2 that the accused is liable for punishment under Section 138 of the Negotiable Instruments Act.
3. After examining the representative of the company as P.W.1 and marking Exs.P1 to P13 and examining the accused as D.W.1 and another D.W.2, the learned Magistrate found that the cheque in question was issued towards security and the company failed to prove that there was any legally enforceable debt.
4. Learned Magistrate further found that the writings on the cheque column and signature were with one ink and the writings in the rupees column in words and figures are different and that shows that the column of rupees was not written at the time of issuing Ex.P3 cheque. In the event of the cheque being issued at one go, all the contents of the cheque would have been written with one pen.
5. Learned counsel for the complainant submits that since the issuance of cheque is admitted, a presumption has to be drawn and the learned Magistrate has erred in acquitting the accused for the offence under Section 138 of the NI Act. In 3 support of his contention, he relied on the judgment of the Hon'ble Supreme Court in the case Sripati Singh (since deceased) through his son Gaurav Singh v. State of Jhakhand1, wherein it is held as follows:
" 22. In the above circumstance, the cheque though issued as security at the point when the loan was advanced, it was issued as an assurance to repay the amount after the debt becomes due for repayment. The loan was in subsistence when the cheque was issued and had become repayable during June/July 2015 and the cheque issued towards repayment was agreed to be presented thereafter. If the amount was not paid in any other mode before June/July 2015, it was incumbent on the respondent No.2 to arrange sufficient balance in the account to honour the cheque which was to be presented subsequent to June/July 2015.
23. These aspects would primafacie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent No.2 was presented. On such cheque being dishonoured, cause of action had arisen for issuing a notice and presenting the criminal complaint under Section 138 of N.I. Act on the payment not being made. The further defence as to whether the loan had been discharged as agreed by respondent No.2 and in that circumstance the cheque which had been issued as security had not remained live for payment subsequent thereto etc. at best can be a defence for the respondent No.2 to be put forth and to be established in the trial. In any event, it was not a case for the Court to either refuse to take cognizance or to discharge the respondent No.2 in the manner it has been done by the High Court. Therefore, though a criminal complaint under Section 420 IPC was not sustainable in the facts and circumstances of the instant case, the complaint under section 138 of the N.I Act was maintainable and all contentions and the defence were to be considered during the course of the trial."
6. The learned counsel for the complainant, after going through the entire facts of the aforesaid judgment submits that the said facts are applicable to the facts of the present case. He submits that once the issuance of cheque is admitted, presumption has to be drawn and the acquittal recorded by the learned Magistrate has to be reversed. 1 2021 SCC OnLine SC 1002 4
7. As seen from the evidence on record, the complainant filed Ex.P2, account copy, which is the statement maintained with the complainant company. Except filing of the account copy of M/s.Sri Krishna Fertilizers, there is no other evidence to show that this respondent, who is prosecuted in his individual capacity, is liable to pay the outstanding. The name of the complainant N.Venugopala Rao does not figure in the said statement of account. Though the accused examined himself as D.W.1 and stated that the cheque was issued in blank, since outstanding as shown by the complainant is that of M/s.Sri Krishna Fertilizers, the prosecution of the accused in his individual capacity is also not maintainable.
8. The Hon'ble Supreme Court in the case of Radhakrishna Nagesh v. State of Andhra Pradesh2 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. 2 (2013) 11 supreme court Cases 688 5 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.
9. For both the reasons of the complainant failing to prove that there was legally enforceable debt and also for the reason of not prosecuting M/s. Sri Krishna Fertilizers, who according to the complaint, there was an outstanding as per Ex.P2.
10. For the aforementioned reasons, the appeal fails and the same is liable to be dismissed.
11. Accordingly, Criminal Appeal is dismissed.
__________________ K.SURENDER, J Date: 06.09.2022 kvs 6 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1558 OF 2007 Date: 06.09.2022.
kvs 7