HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.252 OF 2009
JUDGMENT:
1. The appellant/complainant is questioning the correctness of the judgment in CC No.1544 of 1997 dated 28.06.2007 passed by the XI Additional Chief Metropolitan Magistrate at Secunderabad acquitting the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act.
2. The case of the complainant is that the respondent was running a hospital and the complainant gave an amount of Rs.1.00 lakh as hand loan on 06.05.1997 and Ex.P1 receipt was executed. Towards repayment of the said hand loan, a post dated cheque Ex.P2 was issued by the accused. The said cheque when presented for clearance, was returned vide Ex.P3 return memo dated 20.06.1997 with an endorsement 'account closed'. A copy of legal notice Ex.P4 was sent to the accused on 03.07.1997. Reply notice Ex.P5 was sent on 29.07.1997. Since the accused failed to make good the amount covered by 2 the cheque, complainant filed private compliant under Section 138 of the Negotiable Instruments Act.
3. Learned Magistrate having examined P.Ws.1 and 2 and marking Exs.P1 to P7 on behalf of the complainant and also examined D.W.1-accused and D.W.2 who is the wife of the accused and marked Exs.D1 to D9.
4. The learned Magistrate found the accused not guilty of the offence under Section 138 of the N.I.Act, for the following reasons; i) There was no legally enforceable debt subsisting between the parties and Ex.P2 cheque was not issued in discharge of any debt; ii) The receipt Ex.P1 is doubtful document as it is not in the handwriting of the accused, who is a Doctor and it was filled up by a third person; iii) The writings in the cheque were also not written by one person; iv) two cases are filed against the accused herein one by the complainant and the other, who is complainant in CC No.1559 of 1997, (which is the subject matter of Criminal Appeal No.607 of 2009) both are filed at the instance of Ch.Devender ;
v). D.W.2, who is the wife of the accused filed complaint 3 against said Ch.Devender on 02.05.1997 stating that said Ch.Devender and his associates have demanded Rs.15.00 lakhs and also have taken signed blank cheques and other documents, which was registered as FIR in Cr.No.381 of 1997;
vi) The complainant in the present case filed O.S.No.1353 of 1995 claiming himself to be proprietor of Nagarjuna Health Care Centre against Dr.P.V.Sudhakar Raju, who is partner of the accused herein, which was dismissed; vii) There are several disputes in between the accused, his partner and the said Devender and complainant herein. In the background of the said disputes, the question of giving loan when such disputes were pending is not at all probable and possible.
5. As seen from the record, both oral and documentary, there are strained relations in between the accused and the said Devender, appellant in Crl.A.No.607 of 2009. The complainant in the present case also filed a suit against partner of the accused, which was dismissed. There are strained relations between the parties relating to filing of police complaint, as such, the question of accused approaching the 4 complainant and taking loan when such disputes were pending, cannot be believed.
6. The accused has entered into the witness box and examined himself as D.W.1 and marked certified copies of the complaints Exs.D1 dated 02.05.1997 and D2 dated 10.07.1997. The certified copies of the interim injunction and also dismissal copy in OS NO.1353 of 1995 are filed. The complaint that cheques were forcibly taken and also some documents on 02.05.1997, was filed.
7. In the said circumstances, the question of giving loan on 06.05.1997 and the cheque dated 18.06.1997 becomes doubtful. The reasons given by the learned Magistrate cannot be interfered with as they are borne out by record and probable. There are no compelling circumstances to interfere with the order and well reasoned judgment 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 1 (2013) 11 supreme court Cases 688 5 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.
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.252 of 2009 Dated:15.09.2022 kvs