Macherla Sreeram Murthy, vs The State Of Ap Rep By Its Pp Hyd., ...
2022 Latest Caselaw 9782 AP

                                1




     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

            CRIMINAL APPEAL NO.1173 OF 2010

JUDGMENT:-

      This Criminal Appeal is filed by the appellant, who was the

complainant in C.C.No.197 of 2009, on the file of Judicial

Magistrate of First Class, Mobile Court, Srikakulam, challenging

the judgment, dated 27.10.2009, whereunder the learned

Judicial Magistrate of First Class, Mobile Court, Srikakulam,

acquitted the 2nd respondent herein, under Section 138 of

Negotiable Instruments Act.

2) The parties to this appeal will hereinafter be referred

as described before the learned Magistrate, for the sake of

convenience.

3) The case of the complainant, in brief, according to

the averments in the complaint, is that accused borrowed a sum

of Rs.80,000/- from him on 08.04.2007 for the purpose of

discharging his sundry debts and executed a promissory note on

the same day, agreeing to repay the amount with interest @

24% per annum on demand. Later, on repeated demands made

by the complainant, accused issued a cheque bearing

No.202573, for a sum of Rs.80,000/-, drawn on Karur Vysya

Bank, Srikakulam, towards the principal amount. When the

complainant got presented it before Canara Bank, Srikakulam,

for collection, it was dishonoured as "insufficient funds". Bank

returned it on 17.06.2008. Complainant intimated to the

accused about the dishonour and issued a registered legal notice

on 30.06.2008 demanding him to repay the amount. Accused

did not repay the amount or did not give any reply. Hence, the

complaint.

4) The learned Judicial Magistrate of First Class, Mobile

Court, Srikakulam, took the complaint on file under Section 138

r/w 142 of Negotiable Instruments Act. Accused was examined

under Section 251 of the Code of Criminal Procedure ("Cr.P.C."

for short) as to the contents of the complaint, for which he

denied the same, pleaded not guilty and claimed to be tried.

5) The complainant, during the course of trial,

examined himself as P.W.1 and got marked Exs.P.1 to P.4.

After the closure of the evidence of complainant, accused was

examined under Section 313 of Cr.P.C. about the incriminating

circumstances in the evidence, for which he denied the same

and reported no defence evidence, but, put-forth a contention

that P.W.1 took agency from Hindustan Lever Company Limited,

in which he (accused) joined, and in connection with taking

delivery of certain products, complainant as security obtained

four cheques and later he filed false case.

6) The learned Judicial Magistrate of First Class, Mobile

Court, Srikakulam, on hearing both sides and on considering the

oral as well as documentary evidence, found the accused not

guilty of the offence under Section 138 of Negotiable

Instruments Act and acquitted him under Section 255(1) of

Cr.P.C. Aggrieved by the same, the unsuccessful complainant

filed the present appeal, challenging the judgment of acquittal.

7) Now, in deciding this Criminal Appeal, the points

that arise for consideration are that:

(1) Whether the complainant before the trial Court proved that the accused issued the subject matter of the cheque towards discharge of a legally enforceable debt?

(2) Whether the complainant proved the offence under Section 138 of Negotiable Instruments Act against the accused beyond reasonable doubt?

Points: 1 and 2:

8) P.W.1 is no other than the complainant before the

trial Court, who got filed his chief examination affidavit

reiterating the averments in the complaint. Through his

examination, Exs.P.1 to P.4 are marked. Ex.P.1 is the original

cheque in question. Ex.P.2 is the cheque return memo. Ex.P.3

is the office copy of the legal notice, dated 30.06.2008 issued to

the accused. Ex.P.4 is the postal acknowledgement.

9) Sri Aravala Rama Rao, learned counsel appearing for

the appellant would contend that though the learned Magistrate

opined that the evidence of P.W.1 and Exs.P.1 to P.4 clearly

supports the case of the complainant, but failed to say that

Ex.P.1 was issued towards discharge of legally enforceable debt.

The trial Court failed to look into that the complainant proved

the factum of borrowal of the amount by the accused and that

he issued Ex.P.1 towards discharge of legally enforceable debt.

Accused did not give any reply to the legal notice. The trial

Court did not look into that the complainant filed a suit for

recovery of the amount due basing on the promissory note

which is pending. Accused admitted his signature on Ex.P.1.

There is a presumption in support of the case of the

complainant. Hence, the judgment of the trial Court is liable to

be set aside.

10) No arguments are advanced on behalf of the 2nd

respondent.

11) Firstly, this Court would like to decide as to whether

the learned Magistrate gave any finding in the judgment that the

evidence of P.W.1 coupled with Exs.P.1 to P.4 proves the case of

the complainant. As evident from the judgment of the trial

Court, the learned Magistrate never gave such finding. What is

mentioned in para No.10 of the judgment is that he referred the

contentions of both the counsel with reference to Ex.P.1 coupled

with Ex.P.4 and made a mention that the defacto-complainant

mentioned in the complaint and the chief affidavit of P.W.1

about the execution of the promissory note by the accused.

There are no such findings as canvassed by the learned counsel

for the appellant in the grounds of appeal.

12) Apart from this, the mere fact that the accused did

not give any reply having received a legal notice does not ipso

facto leads to the conclusion that the contention of the

complainant is true. Even there is nothing in the evidence of

P.W.1 explaining that he filed any suit for recovery of money

and it is said to be pending. So, when that is the situation, the

contention of the appellant that the trial Court failed to look into

that the complainant filed a suit for recovery of money which is

pending is not tenable. It is categorically deposed by P.W.1 in

cross examination that he did not file the promissory note

relating to the amount of Rs.80,000/- borrowed by the accused

from him. He denied that he did not file any money suit basing

on the promissory note. So, it is crystal clear that P.W.1 did not

explain anything as to the suit number which he claimed to have

filed for recovery of money. On the other hand, when the

accused contended before P.W.1 that he did not file any money

suit basing on the promissory note, he simply denied a

suggestion and did not clarify anything further.

13) Now, admittedly, there is no dispute about the

signature of the accused on Ex.P.1. The contention of the

appellant is that as accused admitted his signature on Ex.P.1, a

presumption under Section 118 of Negotiable Instruments Act is

to be drawn. It is to be noticed that during cross examination,

accused got suggested to P.W.1 that accused did not borrow any

amount from him and he did not execute any promissory note

and did not issue any cheque towards discharge of the amount.

He further got suggested to P.W.1 that at the time of entrusting

the products to him as an agent, he obtained blank cheques and

later misused. P.W.1 denied those suggestions. Apart from

this, P.W.1 during cross examination admitted that on behalf of

his mother-in-law, he used to look after the entire affairs

relating to agency of Hindustan Lever Net Works business. He

used to entrust the products to its agents. He admitted that

accused is one of the agents under his mother-in-law relating to

Hindustan Lever Net Works. He admitted that for a period

2006-07 he was the sole dealer for that product in Srikakulam.

He denied that at the time of taking the products from his

mother-in-law by the accused, as an agent, they obtained 3 to 4

empty cheques towards collateral security. He admitted that he

did not file the promissory note relating to the amount of

Rs.80,000/-.

14) So, it is crystal clear that accused was able to

probablise a theory that P.W.1 used to do the agency in the

name of his mother-in-law i.e., Hindustan Lever Net Works and

accused was one of the agents for the products. The standard

of proof with which the accused was supposed to probablise his

defence is only preponderance of probabilities and the standard

of proof with which the complainant is supposed to prove the

case is beyond reasonable doubt. Though accused denied the

execution of the so-called promissory note, it had not seen in

the light of the day during the course of trial. So, in my

considered view, the presumption, if any, under Section 138 of

Negotiable Instruments Act, shall stand rebutted. Complainant

did not explain any reason as to why he did not file the original

promissory note or authenticated copy thereof before the trial

Court, especially, when the accused denied its execution. So,

complainant miserably failed to connect Ex.P.1 with that of the

alleged promissory note transaction. In the absence of proving

a legally enforceable debt, the presumption is not available to

the complainant in the light of peculiar facts and circumstances.

15) The learned Judicial Magistrate of First Class, Mobile

Court, Srikakulam, rightly looked into all these aspects and

rightly appreciated the evidence on record and gave findings

against the complainant.

16) Under the circumstances, I see no reason to

interfere with the judgment of acquittal.

17) In the result, the Criminal Appeal is dismissed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 21.12.2022.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.1173 OF 2010

Date: 21.12.2022

PGR