Telangana High Court
Nalla Sai Reddy, vs Kotha Sanjeeva Reddy, And Another, on 26 February, 2024
1
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL NO.155 OF 2010
ORDER:
1. This Criminal Appeal is filed against the judgment of acquittal dated 31.08.2009 in C.C.No.23 of 2006 on the file of the Special Judicial Magistrate of First Class for PCR Cases at Warangal, for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act').
2. Heard the learned counsel for the appellant and the learned Public Prosecutor for respondent-State. Perused the record.
3. The case of the appellant is that on 01.04.2004, accused requested to advance an amount of Rs.3,50,000/- and promised to repay the same within three or four days. However, on 05.04.2004, a cheque bearing No.994854 for Rs.3,50,000/- was given towards discharge of loan amount. The said cheque when presented for clearance was returned unpaid on 06.04.2004. Aggrieved by the said cheque being returned without payment, notice was issued. On receipt of 2 said notice, since the accused to failed to pay the amount covered by the cheque, complaint was filed.
4. The complainant examined himself as P.W.1 and three other witnesses who are witnesses to the transactions. The accused entered into witness box and examined himself as D.W.1 and another person as D.W.2.
5. The defence of the accused is that during the course of business, blank cheques were being issued by him, since the accused was Sub-Contractor who was executing the contract works of the complainant. Further, when Ex.P.1/cheque bearing No.994854 was issued, at the same time nearly 40 cheques leaves upto cheque bearing No.00994898 were encashed till the month of April 2002 itself. In proof of the said cheques being sent to the bank for clearance, accused filed Exs.D.4 to D.10 which are counter foil of the cheque leaves and statement of accounts given by the bank.
6. Learned Magistrate held that it is highly improbable in the present case to believe the evidence of the complainant 3 that there was legally enforceable debt, accordingly, acquitted the accused.
7. Learned counsel appearing for the appellant/complainant would submit that once the signature on the cheque is accepted and even issuance of cheque is accepted, the Court cannot come to a conclusion that there was no legally enforceable debt without any basis. Apart from cheques being filed, the accused has not taken any steps to show that there is no legally enforceable debt. Even assuming, subsequent cheques were encashed in the bank that does not mean that there was no enforceable debt on the cheque which was previously issued.
8. On the other hand, learned counsel appearing for the appellant had supported the findings of the learned Magistrate.
9. As seen from the record, the accused has produced bank statements and also cheque counter foils to show nearly 40 cheques, after cheque in question were encashed upto April, 2002 itself. According to the case of the complainant, cheque was issued on 01.04.2004 i.e., nearly 4 two years thereafter. It is not the case of complainant that the cheque in question was issued earlier and later the accused asked to present the cheque. Firstly, it is not disputed that accused was working as Sub-Contractor to the complainant and secondly, there is no logical reasoning as to why the subsequent 40 cheques to the present cheque in question were encashed even two years prior to transaction in question. Collectively, in the facts of the case, the defence taken by the accused can be believed. The accused has produced documents in support of his version. Though there is presumption that arises under Section 139 of the Act that the cheque was issued towards legally enforceable debt, the burden is one of preponderance probability that casts upon the accused to disprove the case of the complainant.
10. The accused entered into the witness box and probabilised his version regarding misuse of cheque by the complainant by oral and documentary evidence.
11. For the reasons mentioned above, the finding of the Magistrate that the there was no legally enforceable debt 5 and the cheque in question was misued by the complainant is probable and reasonable.
12. Accordingly, the Appeal fails and dismissed. Consequent to the orders passed, I.A.No.1 of 2019 for recalling non-bailable warrants issued by this Court is allowed. Other miscellaneous applications, pending if any, shall stand closed.
_________________ K.SURENDER, J Date: 26.02.2024 dv