HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1608 OF 2009
JUDGMENT:
1. The complainant/appellant aggrieved by the acquittal of the respondent/accused vide judgment dated 08.04.2009 in CC No.989 of 2007 filed under Section 138 of the Negotiable Instruments Act, the present appeal is filed.
2. The case of the complainant is that it is registered firm and during the course of business transactions, delivered electronic items on credit basis to the accused firm. In the process of said business transactions, the accused was due an amount of Rs.5,71,086/-. Calculating the interest as agreed, according to the complainant, the total amount due was Rs.6,68,155/-. Towards payment of the said outstanding, the cheques Exs.P1, P4, P7 and P10 were given by the accused. When presented, the said cheques were returned on different dates for want of 'sufficient funds' on 28.05.2007 vide Exs.P2 and P3, Exs.P5 and P6 dated 02.06.2007, Exs.P8 and P9, dated 07.06.2007 and Exs.P11 and P12 dated 09.06.2007. Aggrieved by the return of cheques presented for clearance, 2 the complainant issued legal notice, whose office copy is marked as Ex.P14. Though the notice was received by the accused, the amount covered under the said cheques was not paid, for which reason, the complaint was filed.
3. The complainant examined P.W.1 and marked Exs.P1 to P19.
4. The learned Magistrate basing on the oral and documentary evidence, found that; i) the outstanding was Rs.5,71,086/-. However, the cheques were given for an amount of Rs.6,68,155/- and there is no agreement of any interest that should be paid on the said outstanding, which is placed before the Court; ii) All the cheques, according to P.W.1 were given towards the said repayment. However, the said cheques were in different ink and in different writings as such, the same was not explained as to how the said different writings on the cheques when they were issued at the same time; iii) The cheques which were issued towards security were in fact misused, though there was no legally enforceable 3 debt; iv) The amount, which is reflected in account statements Exs.P17 to P19 did not tally with the outstanding amount;
5. Learned counsel for the complainant submits that though the amount was less than the total of the four cheques in question, the amount was arrived at after including the interest. The said aspect was clearly mentioned in the complaint at the earliest point of time about interest. For the said reason, the finding of the learned Magistrate is incorrect and liable to be set aside.
6. The finding of the learned Magistrate is based upon the sequence of facts narrated by the witness in the chief and cross-examination. Admittedly, the cheques were given at one instance to P.W.1 for repayment. In the said circumstances, the cheques ought to have contained same writings and as to how four different cheques contained four different writings is not explained by P.W.1. In the normal course, if a person had taken undertaking to make payments in installments, the said cheques would have contained the amounts written by the drawer of the cheque. In the said circumstances, on the facts 4 of the case, the finding of the learned Magistrate that the cheques were given towards security and later filed by the complainant without there being any corroboration for the amount that was given by P.W.1 is probable.
7. The finding of the learned Magistrate is based upon the evidence on record. The trial Court has the benefit of looking at the witnesses during trial and asses. There are no compelling reasons to interfere with the well reasoned findings of the trial court.
8. 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 1 (2013) 11 supreme court Cases 688 5 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. Following the directions of the Hon'ble Supreme Court in dealing with cases of appeals against acquittals, I find no grounds to interfere with the well reasoned order of acquittal.
10. Accordingly, the Criminal Appeal is dismissed.
_________________ K.SURENDER, J Date:15.09.2022 kvs 6 THE HON'BLE SRI JUSTICE K.SURENDER Crl.A.No.1608 of 2009 Dated:15.09.2022 kvs 7