HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1190 OF 2010
JUDGMENT:
1. The appellant/complainant is questioning the correctness of the judgment in CC NO.351 of 2008 dated 09.07.2010 passed by the XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad acquitting the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act.
2. The case of the appellant is that the respondent was a contractor doing cable works for telephone department in the name of Sri Venkata Sai Constructions. While undertaking the work of laying underground cable in Nizamabad and other areas, the respondent invited appellant for execution of the work and entered into partnership deed on 18.04.2001 and agreed to share the profits. After completion of the work, when the accounts were settled, the respondent fell due an amount of Rs.43,94,616/- for which, the cheque in question Ex.P1 was issued. However, when the appellant sent the cheque for clearance, the same was returned on 09.11.2004 under Ex.P2. 2 The office copy of the legal notice dated 24.11.2004 is Ex.P3. After receiving the said notice, the respondent gave reply notice dated 09.12.2004 which is Ex.P4. The appellant also marked the partnership deed in between the appellant and the respondent, which is Ex.P5. Ex.P6 is the letter dated 19.04.2001 given by the respondent to the appellant. Ex.P7 is the final settlement of account/ understanding in between the appellant and the respondent.
3. The appellant examined himself as P.W.1 and two others. The respondent/accused examined himself as D.W.3 and also two other witnesses, D.Ws.1 and 2 and marked Exs.D1 to D29 in support of his defence.
4. Learned Magistrate found the respondent not guilty of the offence under Section 138 of the Negotiable Instruments Act on the following grounds;
i) The appellant had completed the contract work under Ex.P5 partnership deed prior to 13.11.2003 and there was no question of any kind of settlement on 13.11.2003. 3
ii) Ex.D1 is the settlement that was in between the appellant and the respondent, which is dated 13.11.2003 in which P.W.1 accepted that full and final settlement of the accounts and they have received Rs.17.00 lakhs towards the said final settlement, Ex.D1 was admitted by the appellant.
iii) When Ex.D1 is accepted, the issuance of Ex.P1 becomes doubtful.
iv) After settlement on 13.11.2003, it cannot be believed that a cheque was given and appellant waited till 15.05.2004 for presenting the cheque for Rs.43,94,616/-.
v) The cheque in question bearing No.58227 is dated 15.05.2004, however the next cheques in the booklet bearing Nos.058228 to 058247 were encashed in between 10.12.2002 and 10.07.2004, as such, it cannot be believed that the subsequent cheque No.058228 was issued on 10.12.2002 and the prior cheque which Ex.P1 bearing No.058227 was issued on 15.05.2004.
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vi) The defence of the respondent that the cheque was misused by the appellant is probable and the respondent has discharged his burden under Section 139 of the Act.
5. The learned counsel for the appellant submits that the trial Court committed error in accepting the defence that was placed by the respondent. When the signatures on the cheque was accepted by the respondent, the Court has to draw presumption and it cannot be said that the respondent has discharged his burden even by preponderance of probability. The appellant relied upon the judgment of the Hon'ble Supreme Court in Criminal Appeal Nos.1233 to 1235 of 2022 in the case of P.Rasiya v. Abdul Nazer.
6. Having gone through the record and evidence in support of the appellant and the respondent, the findings of the learned Special Magistrate cannot be found fault with it. The respondent has discharged his burden by producing both oral and documentary evidence and in the facts and circumstances of the present case, the appellant has failed to prove that the amount covered by the cheque is an outstanding or debt that 5 has to be paid by the respondent. As the findings of the learned Magistrate which are stated above are reasonable and based on record there can be no interference in the appeal against acquittal.
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 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.
1 (2013) 11 supreme court Cases 688 6
8. For the foregoing reasons, the appellant failed to convince this Court to interfere the well reasoned judgment of the trial court.
9. Accordingly, Criminal Appeal fails and the same is dismissed.
__________________ K.SURENDER, J Date: 08.09.2022 kvs 7 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1190 OF 2010 Date: 08.09.2022.
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