Telangana High Court
Rajendra Paper And Boards vs The State Of Telangna And Another on 31 January, 2025
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.587 and 590 OF 2018
COMMON JUDGMENT:
Crl.A.No.587 of 2018 is filed questioning the acquittal of the accused under Section 138 of the Negotiable Instruments Act vide Judgment dt.13.07.2017 in CC.No.23 of 2015 by the Special Magistrate-V, Hyderabad.
2. Crl.A.No.590 of 2018 is filed questioning the acquittal of the accused under Section 138 of the Negotiable Instruments Act vide Judgment dt.13.07.2017 in CC.No.22 of 2015 by the Special Magistrate-V, Hyderabad.
3. Since the complainant and the accused are one and the same in both the cases and the transactions inter se are the same, both the appeals are disposed off by way of this common Judgment.
4. The complainant firm was doing business in Bill Boards, Cali Cloth etc. The accused used to purchase the products of the complainant firm and was maintaining a running account. The accused purchased material worth Rs.26,33,000/-. After payment of Rs.6,60,000/- by way of RTGS, for the balance amount of 2 Rs.19,73,000/-, two cheques were issued by the accused. Cheque bearing No.962447 dated 17.06.2014 was issued for an amount of Rs.8,42,000/- (subject matter of CC.No.23/2015 and Crl.A.No.587/2018); Cheque bearing No.962445, dated 21.04.2014 was issued for an amount of Rs.11,31,000/- (subject matter of CC.No.22/2015 and Crl.A.No.590/2018).
5. The cheque No.962445 for Rs.11,31,000/- was dishonoured due to alterations and corrections on 10.06.2014. The other cheque No.962447 for Rs.8,42,000/- when presented for clearance was returned unpaid on the ground of insufficient funds on 04.07.2014. Though notices were issued, since the amount was not paid by the accused, complaint was filed.
6. In both the cases, tax invoices were filed by the complainant as Exs.P1 to P3, along with the returned cheque, postal acknowledgment and also one attested copy of IT returns for the year 2014-2015.
7. The accused examined himself as DW.1 and Exs.D1 to D12 were marked in CC.No.22/2015 and Exs.D1 and D2 were marked in CC.No.23/2015.
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8. In CC.No.22/2015, Ex.D1 is the voter ID of Durga Prasad; Ex.D2-part of document showing payment and issuance of blank cheques; Exs.D3 to D11 are payment receipts and Ex.D12 is the copy of application dated 03.07.2014 given to the CTO, Ferozdu Circle, Nampally, Hyderabad, intimating shutting down the business.
9. In CC.No.23/2015, Ex.D1 is the receipt dated 18.04.2013 passed by the complainant in favour of accused for Rs.50,000/- and Ex.D2 is the voucher dated 21.08.2013 containing complainant's signature.
10. The defence of the accused is that there is no outstanding and all dues were cleared. The cheques which were initially given towards security were misused by the complainant and false cases were filed.
11. Learned Magistrate passed Judgment in both the cases on 13.07.2017 and acquitted the accused in both the cases on the following grounds;
i) The complainant has not filed any documentary evidence to show his day-to-day business transactions. Further separate accounts of the business maintained by him in between the complainant and the 4 accused were also not filed, though he claimed to have maintained separate accounts for each of his customers.
ii) There is no proof that the complainant delivered goods in terms of invoices marked as Exs.P1 to P3.
iii) PW.1 in his cross-examination admitted that the accused used to pay by way of cash at shop, however, PW.1 never used to issue receipt for the payment received by way of cash, which supports the defence of the accused that the entire amount was paid.
iv) The said admission of receiving money in cash is contrary to the statement of PW.1 that he received RTGS payment for Rs.6,60,000/- and for the remaining amount, cheques were issued.
v) The complainant has not filed any delivery challans with the signatures of the accused as token of receiving material in terms of invoices.
vi) For not filing the relevant documents, an adverse inference has to be drawn under Section 114 (g) of the Evidence Act.
vii) The complainant has failed to prove that there was any legally enforceable debt.
12. Learned Counsel appearing for the appellant would submit that when the case of the accused who examined himself as DW1 is that 5 the entire amounts were repaid, the learned Magistrate committed an error in finding that the complainant has not filed proof of delivery of goods. Once the issuance of cheques are admitted, presumption has to be drawn under Section 139 of the Negotiable Instruments act. The accused has failed to rebut the presumption even by preponderance of probability.
13. Having gone through the evidence on record, the defence of the accused is that the two cheques were given by way of security on 15.04.2013. Ex.D4 is the acknowledgment of receiving the cheques in question in both the cases, on 15.04.2013. Exs.P1 and P3 are the tax invoices dated 22.06.2013 and 17.06.2014 respectively, issued subsequent to the cheques being issued. Ex.P2 is tax invoice dated 07.02.2013 which is prior in time to the issuance of cheques. The accused gave evidence that goods were taken and accordingly payments were also made. Ex.D12 (marked in CC.No.22/2015) is an application seeking cancellation of the business of the accused, which was handed over to the area CTO on 03.07.2014. Exs.D3 to D11 are the payment receipts. Though it is alleged by the complainant that the payment receipts were fabricated, however, no steps were taken to either lodge a complaint before the competent 6 forum or in any manner prove that the signatories in the payment receipts who admittedly are related to the complainant's firm were examined to say that the documents were fabricated.
14. The complainant though filed Exs.P1 to P3 which are tax invoices, the signature of the accused is not appearing on the tax invoices. It was admitted by PW.1 that signatures would be taken on the tax invoices ones goods are supplied. No explanation is given by the complainant as to why the signatures are not appearing on the tax invoices, Exs.P1 to P3.
15. The complainant stated that after the payment of RTGS for Rs.6,60,000/- , for the balance amount of Rs.19,73,000/-, the two subject cheques were issued. According to the complaint, the total amount of Rs.6,60,000/- was paid through RTGS in between 17.09.2013 and 24.03.2014. According to the complainant, the cheques in question were issued after 24.03.2014. However, the said claim of the complainant is falsified by Ex.D4 which reflects cheques being issued on 15.04.2013.
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16. The burden on the accused in a prosecution under section 138 of the Negotiable Instruments Act to explain his case, is by preponderance of probability. As already discussed:
i) the tax invoices do not have the signatures of the accused.
ii) The complainant has falsely stated that the cheques in question were issued after 24.03.2014.
iii) Except denying the receipts filed to prove payment by the accused, the complainant has not taken any steps to disprove the receipts.
iv) The claim of the accused that cheques were issued towards security is substantiated by Ex.D4.
17. The complainant has not come to the Court with clean hands and suppressed the facts, which is evident from the documents filed by the accused and admissions made by complainant during trial.
18. In Ravi Sharma v. State (Government of NCT of Delhi) and another 1, the Hon'ble Supreme Court 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 1 (2022) 8 Supreme Court Cases 536 8 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.
19. 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:
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 Ex.Pert, etc. 2 (2008) 10 Supreme Court Cases 450 9
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."
20. There are no reasons which are compelling in nature to interfere with the finding of the learned Special Magistrate in acquitting the accused.
21. Accordingly, both the appeals are dismissed.
___________________ K.SURENDER, J Date: 31.01.2025 tk