HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.933 OF 2008
JUDGMENT:
1. The appellant/complainant aggrieved by the acquittal of the respondent for the offence under Section 138 of the Negotiable Instruments Act, which acquittal was recorded by IV Additional Metropolitan Sessions, Hyderabad in Crl.Appeal No.511 of 2008 by reversing the judgment of IV Additional Chief Metropolitan Magistrate Court, Hyderabad in CC No.1171 of 2003 dated 04.12.2007, filed the present appeal.
2. For the sake of convenience, the parties hereinafter will be referred to as arrayed in the trial court. The case of the complainant is that the accused was running chits and finance business and the complainant was the subscriber of the chits.
3. The complainant was successful bidder in one of the chits and received an amount of Rs.1,38,600/-. The accused sustained losses in finance business and requested the complainant to pay the said amount towards hand loan and believing the same the said amount was given to the accused, after executing the pronotes. However, in discharge of his liability, the accused issued a cheque for the said amount and when the same was presented for clearance, was returned with an endorsement 'insufficient funds'. A legal notice was sent 2 asking appellant to pay the amount covered by the cheque. However, the accused failed to repay the same, for which reason, complaint was filed.
4. Learned Magistrate found the accused guilty and convicted the accused. However, in appeal filed by the accused, the learned Sessions Judge found that P.W.1 admitted that he has received the amount of Rs.96,000/- under Ex.P6, which is towards the payment of the chit bearing No.SVL 25 SV 16 for an amount of Rs.1.00 lakh. Further, the complainant also subscribed to second chit bearing No.SVL 6 LP 6 for an amount of Rs.1.00 lakh payable in 40 installments. Exs.D2 to D7 support the said running of chit. Learned Sessions Judge further found that P.w.1 admitted that he was not having financial status to advance the amount as he was working as a welder in a company on the salary of Rs.8,000/- and further he was also not an income tax assessee. For the said reasons, the accused has discharged his burden under Section 139 of the N.I.Act to show that there was no outstanding amount.
5. The other ground on which the learned Sessions Judge found that the accused was not guilty is that the statutory notice was not received by the accused. The acknowledgment card bears the name of one J.Madhavi and though the notice was 3 sent to the office address, the accused did not receive the said notice, but the same was received by one J.Madhavi, for which reason the Sessions court found that the there is no service of statutory notice. Though the learned counsel appearing for the appellant tried to convince that the notice was sent to the correct address and there is a presumption under section 27 of General Clauses Act that the notice was served. Since this Court is not finding any infirmity in the finding of the Sessions Judge that the appellant had no capacity to lend the amount, there is no necessity to delve into the fact of service of notice.
6. The appellant has not made out any grounds to suggest that the findings of the learned Sessions Judge are unreasonable or that was not based on record. I do not find any grounds to interfere with the judgment of 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 1 (2013) 11 supreme court Cases 688 4 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.
7. Accordingly, Criminal Appeal is dismissed.
_________________ K.SURENDER, J Date: 22.09.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.933 of 2008 Date: 22.09.2022.
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