Telangana High Court
Balina Rama Rao vs The State Of A.P. And Another on 21 February, 2024
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THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL APPEAL No.918 OF 2012
O R D E R:
The present Criminal Appeal is filed aggrieved by the judgment dated 09.05.2012 in Criminal Appeal No.98 of 2011 on the file of the learned Sessions Judge, at Nizamabad (for short, "the appellate Court") in confirming the judgment dated 07.12.2011 in C.C.No.257 of 2009 on the file of the learned Judicial Magistrate of First Class, Special Mobile, Nizamabad (for short, "the trial Court").
2. Heard Mr. D. Bhasker Reddy, learned counsel for the appellant and Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.1 State.
3. The brief facts of the case are that appellant/complainant and respondent No.2/accused were known to each other. Out of such acquaintance, the complainant advanced a hand loan amount of Rs.2,00,000/- in the presence of witnesses namely Ravula Srinivas and P. Prabhakar Rao. Pursuant thereto, the accused executed four separate promissory notes for Rs.50,000/- each, in favour of the complainant, agreeing to repay the same along with interest. On repeated demands, the accused issued 2 post dated cheque bearing No.619095 drawn on State Bank of Hyderabad, Vinayaknagar Branch, Nizamabad for an amount of Rs.3,00,000/- towards part payment of the hand loan amount with interest. On presentation, the said cheque was dishonoured for the reason "funds insufficient".
4. On intimation about the said dishonour, the accused requested the complainant to present the same after a month and assured that he would maintain sufficient amounts in his account to honour the cheque. Upon such a request, the accused presented the said cheque once again after some time. But the said cheque was again returned as "account closed". The complainant issued legal notice to the accused calling upon him to pay the cheque amount within stipulated time. But the accused failed repay the amount due. Hence, the accused was alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short, "NI Act").
5. The trial Court vide judgment dated 07.12.2011 in C.C.No.257 of 2009 found the accused guilty for the offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for a period of one year and pay fine of Rs.10,000/-, in default of payment of fine, to undergo 3 simple imprisonment for a period of three months. Aggrieved thereby, the accused preferred an appeal.
6. The appellate Court vide judgment dated 09.05.2012 in Criminal Appeal No.98 of 2011 set aside the judgment passed by the trial Court and acquitted the accused for the alleged offence. Assailing the same, the present Appeal.
7. Learned counsel for the appellant contended that the appellate Court failed to appreciate the evidence available on record in proper perspective and erred in acquitting respondent No.2 for the alleged offence. He relied upon the decisions passed by the Hon'ble Supreme Court in Kalamani Tex and another Vs. P. Balasubramanian 1, Bir Singh Vs. Mukesh Kumar 2 and Oriental Bank of Commerce Vs. Prabodh Kumar Tewari 3 and sought to set aside the impugned judgment.
8. Learned Assistant Public Prosecutor submitted that the appellate Court after careful scrutiny of the oral and documentary evidence rightly passed the impugned judgment and the interference of this Court is unwarranted. Therefore, he seeks to dismiss the appeal.
1 (2021) 5 Supreme Court Cases 283 2 (2019) 4 Supreme Court Cases 197 3 2022 SCC OnLine SC 1089 4
9. On behalf of the prosecution, the trial Court examined PWs.1 and 2 and marked Exs.P1 to P6. On behalf of the defence, DWs.1 and 2 were examined and Exs.D1 and D2 were marked. Upon careful scrutiny of the oral and documentary evidence, the trial Court observed that as per the evidence of the accused, the bank officials closed his account acting upon the complaint of the accused that he lost his cheque book containing blank signed cheques and unsigned cheques. But no such copy of complaint was produced by him before the Court to substantiate his contention. Hence, relying upon the decision passed by the erstwhile High Court of Andhra Pradesh in G. Venkata Ramaiah Vs. Cillakolu Venkateshwarlu 4 wherein it was held that when the cheque was returned by the banker due to closure of account, it would mean that there are insufficient funds in the account of the drawer and an offence punishable under Section 138 of NI Act would be attributable to the accused, the trial Court found the accused guilty of the alleged offence and thereby convicted him vide judgment cited supra.
10. Upon an appeal being preferred, the appellate Court found that it was the specific plea of the complainant that Ex P1 cheque was allegedly issued in discharge of the legally enforceable debt 4 2000-JIC-1-365 5 under four promissory notes executed by him. But it was clear from Ex D2 that the alleged four promissory notes were not executed by the accused himself and the suit filed by the complainant herein seeking recovery of amount of Rs.3,43,342/- was dismissed on 02.06.2011 vide O.S.No.202 of 2006 on the file of the learned Senior Civil Judge, Nizamabad after adjudication at length. Therefore, upon taking into consideration the fact that the judgment dated 02.06.2011 in O.S.No.202 of 2006 passed by the competent civil Court has binding effect on the criminal proceedings, the appellate Court rightly dismissed the appeal reversing the findings given by the trial Court.
11. In the present case on hand, the appellate Court held that the accused was not guilty of the offence under Section.138 of NI Act, which finding, in my considered view, does not call for interference, in exercise of revisional jurisdiction under Section 397 Cr.P.C.
12. There are no grounds much less valid grounds to interfere with the well considered judgment of the appellate Court and accordingly, this Revision is liable to be dismissed.
13. Accordingly, the Criminal Appeal is dismissed. 6
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ E.V. VENUGOPAL, J Date: 21.02.2024 ESP