Telangana High Court
G. Prakash Reddy vs The State Of A.P. And Another on 27 March, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1620 OF 2009
JUDGMENT:
1. The appellant has preferred the present appeal questioning the judgment of acquittal dated 31.07.2009 in C.C.No.152 of 2009, passed by the learned XV Additional Judge-cum-Additional XIX Additional Chief Metropolitan Magistrate, Hyderabad.
2. Heard learned counsel for the appellant, learned counsel for the respondents and perused the record.
3. The complainant filed criminal complaint against the respondent/accused stating that the complainant is acquainted with her and her husband, who are practising advocates.
4. The accused approached the complainant in the month of December, 2004 and requested to arrange hand loan of Rs.20,00,000/- to meet her urgent business necessities only for a period of one month. Accordingly, the complainant who was examined as PW1 mobilized amounts from his friends, relatives and gave the amount hand loan on 26.12.2004. The stamp receipt was executed vide Ex.P.2. After one month Pw.1 approached and asked her for repayment of the loan amount. Ex.P3 cheque was issued on 04.04.2005 towards repayment. The said cheque when presented for clearance was returned unpaid on the ground of "insufficient funds". Accordingly, a legal notice was issued and since the accused failed to pay the amount covered by the cheque, the complaint was filed.
5. During the course of trial, the complainant examined himself as Pw.1 and got marked Exs.P1 to P11. The accused entered into the witness box and examined herself as Dw.1 and got marked Exs.D1 to D4.
6. The defence taken by the accused is that she was a subscriber to the 'chit fund' being run by one Saroja Reddy, who is the relative of the complainant. When she got the prize amount in the chit, which was paid by way of cheque in the year 2003, blank cheques and blank promissory notes were given to her towards security. The said cheques and blank promissory note were handed over by said Saroja Reddy and misused by the accused to make a false claim of advancing Rs.20,00,000/- to the accused.
7. The learned Magistrate, having considered the evidence on record, acquitted and allowed on the following grounds.
i) The complainant failed to provide any proof of possessing Rs.20,00,000/-. Though he stated that he collected the amounts from his friends, no one was examined.
ii) The bio-data of the accused which is Ex.P-11 was filed.
The said fact also creates any amount of doubt regarding the loan being given, because, in a loan transaction to a known person, the question of receiving bio-data would not arise.
iii) Having taken a defence that the cheque was misused, Exs.D1 and D2, which are the statements of account of the accused were filed by the accused. In the said statement of account, the cheques which are prior to the cheque in question bearing Nos.581429 dated 04.04.2005 (cheque in question), the subsequent cheques were encashed one year prior to the cheques in question, which are Exs.D3 and D4 bearing Nos.581433, 581434,.
8. According to the learned Magistrate, it is highly in probable that a previous cheque would be retained for almost two years to be given to the complainant when all the prior cheques were already encashed and reflected in the statement of account.
9. Further, the accused had discharged her burden by providing proof that the promissory note and the cheque were given in blank to one Saroja Reddy. Pw.1 himself admitted that the writings on the receipt and promissory note are that of his brother, namely Madhusudan Reddy. On the said grounds, the trial Judge found that the accused had discharged her burden to show that there was no liability and the cheque and blank promissory note were misused.
10. Learned counsel appearing for the appellant would submit that the signature on the cheque is not disputed nor the signature on the promissory note. It does not make a difference if the writings belong to some other person when the signatures are admitted. Further, if the cheques and promissory note were given to one Saroja Reddy, the accused ought to have summoned the said Saroja Reddy to the Court and examine her.
11. On the other hand, learned counsel appearing on behalf of the accused supported the findings of the Court below.
12. In a case filed under Section 138 of NI Act, the initial burden is always on the complainant to prove that there is a legally enforceable debt and an outstanding that had to be paid by the accused to the complainant. Unless such initial burden is discharged, the question of raising presumption and shifting the burden on to the accused would not arise. In the event of the burden being shifted on to the accused, the same can be discharged by preponderance of probability and not beyond reasonable doubt.
13. The specific defence of the accused right from issuing Ex.P-9/ reply notice, immediately after receiving notice from complainant is that the cheque in question was not issued to the complainant, but was issued to one Saroja Reddy, who was running a chit, having received the prize amount. The said defence was taken at the earliest point of time and in support of the defence Exs.D1 to D4 were also filed.
14. The probabilities as discussed by the learned Magistrate regarding the subsequent cheques being encashed reflected in the account of the accused and also admission by the complainant that the promissory note and receipt were filled up by his brother, collectively support the version of the accused cannot be found fault with. Having taken a specific defence by issuing reply notice under Ex.P9, the said defence was proved before the Court below by the accused.
15. In cases of acquittal, unless there are compelling reasons or circumstances, which are pointed out, the judgment of acquittal cannot be reversed. As found by the learned trial Judge, the complainant had initially not proved that the loan amount of Rs.20,00,000/- was, in fact, provided by him. However, having taken the defense that the cheque in question and promissory note were issued in blank to one Saroja Reddy, the accused proved her defense by supporting documents. In the said circumstances, I do not find any reasons to set aside the findings of the trial Court.
16. Accordingly, the Criminal Appeal is dismissed.
Miscellaneous applications pending, if any, shall stand closed.
_________________ K.SURENDER, J Date: 27.03.2024 mmrs