HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.1147 of 2018
JUDGMENT :
This appeal is filed by the complainant, challenging the judgment dated 30.06.2017 in C.C.No.40 of 2014 on the file of IX Special Magistrate, Hyderabad, whereby, the accused/respondent No.1 has been acquitted of the charge for the offence under Section 138 of the Negotiable Instruments Act.
2. Heard learned counsel for the appellant. None appeared for respondent No.1.
3. It is the contention of the learned counsel for appellant that the appellant/complainant got acquaintance with the accused/ respondent No.1 through a common friend by name, Sandeep Lal. Out of the said acquaintance, on 23.01.2014, the appellant has advanced hand-loan of Rs.3,00,000/- to the accused, who has agreed to repay the same within six months and executed a promissory note to that effect. Since the amount was not repaid even after six months, on demand by the appellant, the accused issued a cheque bearing No.957144, dated 13.08.2014 for 2 GAC, J Crl.A.No.1147 of 2018 Rs.3,00,000/-, drawn on State Bank of India, Gowliguda branch in discharge of the legally enforceable debt. When the appellant presented the said cheque in his bank, the same was dishonored with an endorsement, "Funds Insufficient" along with the cheque return Memo dated 16.08.2014.
4. It is the contention of the learned counsel for appellant that the appellant had personally visited the office of the accused to intimate about dishonor of the cheque and also issued legal notice dated 08.09.2014 through registered post and also through courier, demanding him to repay the amount, but the said postal covers were returned with an endorsement "Not claimed". On 17.09.2014, the notice sent through courier was served on the accused, for which, he issued reply notice denying all the allegations about issuing cheque to the complainant or executing promissory note. It was the specific plea of the accused that he issued a cheque as a guarantor for the amount borrowed by one O.P.V.N.V.Prasad Rao and that he had no acquaintance with the complainant and had never seen him.
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5. Before the trial Court, PWs.1 and 2 were examined on behalf of complainant and Exs.P-1 to P-10 were got marked. No evidence was adduced on behalf of the accused.
6. The trial Court, after considering the entire material on record, has come to the conclusion that the complainant has no financial capacity to advance loan of Rs.3,00,000/- and accordingly dismissed the complaint acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
7. It is the contention of the learned counsel for the appellant/complainant that the complainant has proved that he has advanced loan of Rs.3,00,000/- to the accused under Ex.P-1/promissory note and Ex.P-2/cheque, which was duly signed by the accused and given by him. Inspite of receiving the notice, the accused did not repay the amount, therefore, the presumption under Section 139 of Negotiable Instruments Act is to be taken into account.
8. On considering the entire record, it is evident that the complainant has pleaded before the Court that he is running a 4 GAC, J Crl.A.No.1147 of 2018 software Company. But no document is filed to prove the same. Furthermore, no document was filed before the Court to show that he had financial capacity to advance hand-loan of Rs.3,00,000/- to the accused. The initial burden is always on the complainant to prove that he had financial capacity to advance the hand-loan and has to satisfy the Court with oral and documentary evidence on the said aspect, the onus shifts on to the accused to prove himself as innocent and did not issue the cheque. Section 101 of the Indian Evidence Act envisages that burden of proof is on the person who ascertains a particular fact. In the present case, though the pronote was filed before the Court which duly contains the names and signatures of attestors and the scribe, the complainant/appellant has not made any attempt to examine the said persons to prove that there is legally enforceable debt which has to be discharged by the accused. Further, it is the specific case of the complainant that the accused was introduced to him through a common friend by name Sandeep Lal. But the complainant has failed to examine even the said Sandeep Lal through whom, the amount was allegedly advanced to the accused. Therefore, this Court is of the considered 5 GAC, J Crl.A.No.1147 of 2018 view that the trial Court has not committed any error or irregularity in acquitting the accused and therefore, there are no grounds to interfere with the judgment of the trial Court.
9. The appeal is accordingly dismissed. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 12.04.2023 ajr