HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.885 of 2008
JUDGMENT:
1. This Criminal Appeal is filed aggrieved by the judgment of the learned II Additional Metropolitan Sessions Judge in Crl.A.No.420 of 2007, dated 18.02.2008 reversing the judgment of conviction passed in CC No.226 of 2003 by the IX Additional Chief Metropolitan Magistrate at Hyderabad convicting the appellant for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.3,000/-, in default, to suffer simple imprisonment for one month under Section 138 of the Negotiable Instruments Act.
2. For the sake of convenience, the parties herein after will be referred to as arrayed in the trial court. The case of the complainant is that the accused borrowed an amount of Rs.1,50,000/-from the complainant on 22.04.2000 under Ex.P1 promissory note. Thereafter, in discharge of her debt, a cheque for Rs.1,50,000/- was given vide Ex.P2 dated 2 05.08.2002. The said cheque when presented for clearance was returned unpaid on 07.08.2002. Accordingly, legal notice was issued. Since the accused failed to pay the said amount covered by the cheque, after issuance of legal notice, private complaint was filed.
3. The complainant examined himself as P.W.1 and also examined the sister of the accused as PW.2 and marked Exs.P1 to P7. The accused examined herself as D.W.1.
4. The learned Magistrate found that the accused was guilty of the offence under Section 138 of the Negotiable Instruments Act and sentenced her to imprisonment as stated supra. The said conviction was questioned before the learned Sessions Judge, wherein the learned Sessions Judge reversed the judgment of the learned Magistrate on the following grounds:
i) Ex.P1 pronote did not contain the address particulars of the complainant and also the particulars of the accused. The column regarding the rate of interest is blank and the column regarding the security is also kept blank. If the 3 pronote Ex.P1 was executed, the complainant ought not to have allowed Ex.P1 pronote to be incomplete.
ii) The presence of P.W.2 is doubtful as her presence was not mentioned in the complaint or in the chief examination of PW1 or in Ex.P5 notice. It was suggested to the accused that at the time of borrowing and execution of Ex.P1 pronote, P.W.2 received the said amount from the complainant and handed over to the accused. However, P.W.2 did not state that she had taken money and handed over to the accused.
iii) There is variation regarding the date of borrowing in between P.Ws.1 and 2. The contrary versions and not mentioning details in the pronote were enough to rebut presumption.
iv) The complainant also failed to prove that there was service of notice as required under law.
5. Learned counsel for the complainant submits that the learned Sessions Judge has erred in reversing the finding of conviction by the learned Magistrate Court. The learned 4 Magistrate has correctly convicted the accused finding that the notice was served on the accused and also Ex.P1 pronote substantiates the claim of the complainant that the amount was received by the accused. He further argued that since the signatures on pronote and the cheque were admitted, presumption has to be drawn.
6. As seen from the record, the learned Sessions Judge has reversed the judgment on the ground that there is no proof of service of the statutory notice on the accused. Though Ex.P6 is the letter addressed to the Post Master General dated 11.09.2002 and Ex.P7 letter was issued by the Postal authorities dated 18.09.2002 in reply to Ex.P6. However the documents do not confirm that the address mentioned in Ex.P5 legal notice is that of the accused. The learned Sessions Judge has rightly found that, there is no explanation as to why the postal receipts were not produced. Further, the postal authorities who issued Ex.P7 was also not examined, for which reason, no sanctity can be attached to ExP7 and 5 learned Sessions Judge found that there was no service of notice.
7. The finding of the learned Sessions Judge regarding the contrary statements of P.Ws.1 and 2 as to giving of Rs.1.50 lakhs to the accused and also for the reason of the complainant failing to prove that the notice was in fact served on the accused, the said finding is probable and reasonable.
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 accused and in some cases, it may even indicate a false 1 (2013) 11 supreme court Cases 688 6 implication. But then, this has to be established on record of the Court.
9. The finding of the learned Sessions cannot be said to be unreasonable, warranting interference by this Court in appeal.
10. Accordingly, the Criminal Appeal is dismissed.
_________________ K.SURENDER, J Date:16.09.2022 kvs 7 THE HON'BLE SRI JUSTICE K.SURENDER Crl.A.No.885 of 2008 Dated:16.09.2022 kvs 8