Telangana High Court
Veerapally Venkata Laxmi, vs Thota Sampath Kumar And Another, on 30 July, 2024
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THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL REVISION CASE No.583 OF 2010
JUDGMENT:
This Criminal Revision Case is filed by the petitioner/accused aggrieved by the judgment dated 13.11.2009 in C.C.No.250 of 2008, on the file of Judicial Magistrate of I Class (Special Mobile Court) at Nalgonda, acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881.
2. Heard the learned counsel for revision petitioner and the learned Assistant Public Prosecutor appearing for respondent-State.
3. Briefly, the case of the petitioner/complainant is that the accused approached her on 11.08.2007 for advancing an amount of Rs.2,50,000/-. The said amount was given and the accused agreed to repay the amount within 15 days. Since the complainant was having close acquaintance with the accused, no documents were sought to be executed. Two weeks thereafter, when the complainant asked to repay the said amount, Rs.60,000/- was paid. For remaining amount, cheque/Ex.P.1 was issued. The said cheque when 2 presented for clearance, returned un-served with an endorsement 'account closed'. After intimation from the bank, notice was issued to the accused by registered post and the said notice was served and accordingly, the complaint was filed, since the amount covered by the cheque was not paid.
4. Learned Magistrate acquitted the accused on the following grounds:-
1. P.W.1 stated that she knows the accused through her husband. However, she did give the details of the properties of the accused.
2. P.W.1 had lend the amount without knowing the financial capacity of the accused, there is no possibility in such circumstances.
3. No documents like promissory note were executed when the amount was given.
4. The specific defence of the accused was that blank cheque was given to P.W.2, however, the said cheque was misused by handing it over to the complainant.
5. Admittedly, the signatures on Ex.P.6/postal acknowledgment was not signed by the same person, as such, service of notice is doubtful.3
6. The cheque was deposited four months after it was allegedly issued, which again creates any amount of doubt.
5. Learned counsel appearing for the revision petitioner would submit that burden is on the accused to show as to how the cheque was in possession of the complainant. When the signature on the cheque is that of the accused, the complainant had discharged her burden. Further, the Court cannot come to a conclusion regarding service of notice by comparing signature on acknowledgment card and the cheque. Counsel finally argued that not taking promissory note, it cannot be said that the transaction did not take place. It was clearly explained since accused was well known to the husband of the complainant, the amount was provided.
6. Having gone through the record, the reasons given by the learned Magistrate are on the basis of record and probable.
7. In cases of acquittal, the Hon'ble Supreme Court in Ravi Sharma v. State (Government of NCT of Delhi) and 4 another 1, held that while dealing with an appeal against acquittal, the appellate court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal.
8. In Ghurey Lal v. State of Uttar Pradesh 2 the Hon'ble Supreme Court after referring to several Judgments regarding the settled principles of law and the powers of appellate Court in reversing the order of acquittal, held at para 70, as follows:
"70. In the light of the above, the High Court and other appellate Courts should follow the well-settled principles crystallized by number of Judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
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(2022) 8 Supreme Court Cases 536 2 (2008) 10 Supreme Court Cases 450 5
i) The trial court's conclusion with regard to the facts is palpably wrong:
ii) The trial court's decision was based on an erroneous view of law;
iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration o the findings of the trial court.
3. If two reasonable views can be reached__ one that leads to acquittal, the other to conviction __the High Courts/appellate courts must rule in favour of the accused."
9. As argued by the learned counsel that there was no explanation regarding cheque being in possession of P.W.1 is incorrect. It is the case of the accused that cheque was issued to P.W.2 who has misused the said cheque and handed it over to the complainant for filing a complaint. P.W.2 is also friend of husband of the complainant. When the accused is acquainted with the husband of the complainant, there is no reason why the husband of the complainant was not examined. It is clear from the cross- examination of P.W.1 that she did not have the details of properties of the accused nor was in a position to give any 6 personal details. The doubt expressed by the Court below has basis regarding amount being given by the complainant.
10. Counsel also argued that it is for the accused to enter into witness box to discharge his burden. The said argument is un-acceptable. The initial burden lies on the complainant when the amount was lend and there was outstanding on the cheque that was issued. The accused not entering into witness box, it cannot be held that adverse inference had to be drawn.
11. Criminal Revision Case is filed by the complainant. This Court under Section 401(3) of Cr.P.C. is barred from reversing an order of acquittal to one of conviction. When the reasons given by the Magistrate are reasonable and based on record, there are no grounds to remand the case back to the trial Court.
12. Accordingly, the Criminal Revision Case fails and the same is dismissed. Miscellaneous applications pending, if any, shall stand closed.
_________________ K.SURENDER, J Date: 30.07.2024 dv