Kundiri Mahalakshmi, vs The State Of A.P., Rep By Pp And ...
2022 Latest Caselaw 8693 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

               CRIMINAL APPAL No.364 OF 2008

ORDER:

This Criminal Appeal is filed on behalf of the appellant,

under Section 378(4) of the Code of Criminal Procedure, 1972 (for

short, 'the Cr.P.C'), against the acquittal of the accused/second

respondent questioning the judgment, dated 13.06.2007 in C.C.

No.690 of 2006 on the file of the Court of II Additional Chief

Metropolitan Magistrate, Visakhapatnam (for short, 'the learned

Magistrate'). The present appellant is the complainant on the

allegations of dishonour of cheque before the trial Court.

2. The case of the prosecution, in brief, before the trial Court,

as per the complaint filed by the complainant under Section 190

Cr.P.C., is as follows:

The complainant and the accused are known to each other

since long time. Accused took a hand loan of Rs.70,000/- from the

complainant to incur her family expenses prior to 10.12.2005 and

she issued a cheque for Rs.70,000/- in favour of the complainant

towards payment of the debt amount. The cheque was dated

10.12.2005 drawn on State Bank of India, Maharanipeta Branch,

Visakhapatnam. The complainant presented the cheque thrice on

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10.12.2005, 18.02.2006 and 27.04.2006. In all those occasions, it

was returned as 'funds insufficient' and lastly 'payment stopped by

drawer'. Therefore, the complainant got issued a notice on

29.04.2006 demanding the cheque amount and the accused got

issued a reply with false allegations. Hence, the complaint.

3. The Court below took the case on file under Section 138 of

the Negotiable Instruments Act, 1881 (for short, 'the NI Act'). On

appearance of the accused before the Court below, copies of case

documents were furnished as required and further the accused

was examined under Section 251 Cr.P.C. for which she denied the

allegations, pleaded not guilty and claimed to be tried.

4. During course of trial on behalf of the complainant PW.1

was examined and Exs.P-1 to P-7 were marked. After closure of

the evidence of the complainant, accused was examined under

Section 313 Cr.P.C. with regard to incriminating circumstances

against her in the evidence and she denied the same. She

examined herself as DW.1 and one Ch. Durga Rao as DW.2 and

got marked Exs.D-1 to D-7.

5. The learned Magistrate, on hearing both sides and on

considering the oral as well as documentary evidence on record,

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found the accused not guilty of the offence under Section 138 of

the NI Act and acquitted her under Section 255(1) Cr.P.C.

6. Aggrieved by the same, the unsuccessful complainant in

C.C. No.690 of 2006 before the Court below filed the present

Appeal challenging the judgment of the trial Court.

7. Now, in deciding this Appeal, against the acquittal, the

points that arise for consideration are:

1) Whether the complainant was able to prove before

the learned Magistrate that Ex.P-1-cheque was

issued to discharge the legally enforceable debt

that was existing between the complainant and the

accused and whether such complainant proved the

offence alleged for the offence under Section 138 of

the NI Act against the accused beyond reasonable

doubt?

2) Whether the judgment of acquittal in C.C. No.690

of 2006, dated 13.06.2007, by the learned II

Additional Chief Metropolitan Magistrate,

Visakhapatnam is sustainable under law and facts

in the circumstances?

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8. Learned counsel appearing for the appellant would contend

that the Court below passed a lengthy judgment without proper

reasons. There was no dispute about the signature of the accused

on the cheque and in such a case it was for the accused to explain

as to how she issued a cheque. The accused did not at all explain

and there was a presumption under Section 118 of the NI Act that

it was supported by consideration. The trial Court did not look

into the deposition of accused properly, where she admitted that

she took hand loan several times from the wife of the complainant

and admitted the issuance of a cheque and promissory note. The

trial Court did not consider all these aspects erroneously. The trial

Court instead of saying that the accused issued a cheque to the

complainant, acquitted the accused. The trial Court ought to have

held that if the document was fabricated, accused would have sent

it for expert opinion. The observations made by the trial Court that

the complainant did not proceed in instituting the suit and except

filing the complaint is not sustainable under law. The trial Court

made erroneous observations as if the accused is working in a

Nationalized Bank etc., Learned counsel for the appellant would

rely upon a decision of the Hon'ble Supreme Court in Triyambak

S Hegde v. Sripad1.

1 2022 (1) SCC 742

AVRB,J Crl.A No.364/2008

9. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, appearing for the first respondent,

would submit that he is only a formal party.

10. It is brought to the notice of the Court that though notice

was served to the second respondent/accused, neither she did

choose to appear nor anybody made appearance on her behalf.

11. POINT Nos.1 & 2: To prove the case against the accused,

the complainant got himself examined as PW.1 and Exs.P-1 to P-7

were marked. The accused got examined herself as DW.1 and

further examined DW.2 and got marked Exs.D-1 to D-7. The

substance of the chief-examination affidavit filed by PW.1 before

the trial Court was that the accused had taken a hand loan of

Rs.70,000/- from him prior to 10.12.2005 for her family expenses.

She agreed to repay the entire loan amount but did not do so.

Ultimately, on several demands, the accused issued a cheque for

Rs.70,000/- towards full settlement of the debt amount under

cheque No.619560, dated 10.12.2005. On the same day, he

presented it for collection in State Bank of India, Maharanipeta

Branch, Visakhapatnam, which was returned as 'funds

insufficient'. Again he presented it on 18.02.2006. Again, he

presented it on 27.04.2006 which was returned. Then he got

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issued a legal notice to the accused on 29.04.2006 demanding to

pay the amount under the bounced cheque for which accused got

issued reply notice on 06.05.2006 with false allegations. Hence, he

filed complaint. According to PW.1, Ex.P-1 is the cheque, dated

10.12.2005. Ex.P-2 is the cheque return memo dated 12.12.2005.

Ex.P-3 is the cheque return memo dated 20.02.2006. Ex.P-4 is the

cheque return memo dated 07.04.2006, Ex.P-5 is the office copy of

legal notice dated 29.04.2006. Ex.P-6 is the reply notice dated

06.05.2006 and Ex.P-7 is the postal acknowledgment.

12. Turning to the evidence of DW.1, who is no other than the

accused, her deposition in substance is that she did not borrow

Rs.70,000/- prior to 10.12.2005 from the complainant and did not

issue any cheque on the said date. She borrowed Rs.5,000/- from

Pydithallamma, the complainant's wife. She again borrowed

Rs.2,000/- and again borrowed Rs.3,000/- and so issued a

cheque for Rs.10,000/-. She borrowed the said three amounts

within a period of one week. Wife of complainant obtained

promissory note which was blank and it is Ex.D-1, which was

returned. She paid Rs.13,000/- in total towards discharge of the

debt and the wife of the complainant did not return the cheque

but only returned the blank promissory note. Ex.D-2 is the

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endorsement. Ex.D-3 is the office copy of legal notice dated

02.03.2006 issued by her. She also issued a notice to the

complainant on 29.04.2006, which is Ex.D-4. Postal

acknowledgment is Ex.D-5. Returned registered envelope is

Ex.D-6. She also issued a notice to Chittiboina Durgarao and the

acknowledgment is marked as Ex.D-7. So, she never borrowed the

amount as stated by the complainant.

13. DW.2 deposed that he was present when the wife of the

complainant returned the blank promissory note to the accused

on paying the amount of Rs.13,000/-.

14. Now, this Court would like to scrutinize the case of the

complainant and the evidence adduced to ascertain as to whether

evidence on record proved the offence alleged. At the outset, this

Court would like to make it clear that the case of the complainant

is so specific that he did not furnish the date of borrowing of

Rs.70,000/- by the accused prior to 10.12.2005. According to him,

accused borrowed the said amount as hand loan prior to

10.12.2005. In the light of the language employed in proviso to

Section 138 of the NI Act, the complainant should be able to prove

that the cheque is issued for enforcement of legally enforceable

debt. It is the bounden duty of the complainant to plead and prove

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the date of lending of Rs.70,000/- by him to the accused. So, the

pleadings are bereft of necessary details. This aspect assumes

importance for the reason that when the complainant pleaded that

accused borrowed Rs.70,000/- prior to 10.12.2005, there is no

hard and fast rule that the accused borrowed the amount within

three years only prior to 10.12.2005. Suppose, if the borrowing of

the said amount was more than three years prior to 10.12.2005,

the above borrowing of debt is not legally enforceable on account

of the provisions under the Limitation Act, 1963. So, in view of the

above, the complainant was supposed to state the lending of

Rs.70,000/- by him to the accused, for which there was no

foundation laid in the complaint. Now, turning to the cross-

examination part of PW.1, the complainant had destroyed his own

case to any extent throwing inherent improbabilities in his case.

During the course of cross-examination, he deposed that accused

borrowed Rs.70,000/- from him on 10.12.2005. Accused brought

a cheque to his house, signed it and borrowed money. The accused

and her husband Kakkala Mahalakshmi together came to his

house. He does not know whether the accused got issued notice to

his wife Pytithallamma. He denied that he received Rs.10,000/-

towards principal and Rs.3,000/- towards interest from the

accused on 24.08.2005 in respect of the amount borrowed from

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his wife by the accused. By virtue of the answers spoken by PW.1,

during cross-examination, the case setup by the complainant that

the accused borrowed Rs.70,000/- from him prior to 10.12.2005

was totally negatived. So, it is clear that the answers spoken by

PW.1, during the course of cross-examination, does not reconcile

with his chief-examination affidavit in which he deposed that the

accused borrowed Rs.70,000/- prior to 10.12.2005 and further

does not tally with the averments in the complaint. The averments

in the chief-affidavit and complaint are consistent but answers

spoken by PW.1 during his cross-examination destroyed the case

of the complainant.

15. In the light of the answers spoken by PW.1, during cross-

examination, another improbability which is necessarily to be

pointed out here at this juncture is that it is his case that on

10.12.2005 itself he presented the cheque in the bank. So when

his evidence in cross-examination is that on 10.12.2005 accused

borrowed Rs.70,000/- and issued a cheque it is rather an

improbable act on the part of the complainant to present the

cheque on the same day. It is not a post dated cheque. So, the

answers spoken by PW.1 in his cross-examination are nothing but

improbable and incredible. So, for obvious reasons, complainant,

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contrary to the averments in the complaint deposed, destroyed his

case to any extent.

16. Turning to the contention of learned counsel for the

appellant that the burden is on the accused to rebut the

presumption under Section 138 of the NI Act, as accused admitted

her signature on Ex.P-1, this Court would like to make it clear

that, literally, there is no such admission appearing from the

record. The defence of the accused, at the time of cross-

examination of PW.1, is that accused got issued a notice under

Ex.D-3 to the wife of the complainant alleging that she borrowed

Rs.10,000/- from the wife of the complainant, who took blank

signed promissory note and cheque bearing No.625910 and

accused repaid the entire amount on 24.08.2005 with interest and

wife of the complainant returned only the blank promissory note

and she did not return the cheque informing that it was misplaced

and the Manager of State Bank of India informed the accused that

one cheque bearing No.625160 came for encashment and it was

drawn on the accused account. With the said allegations accused

sent a notice under Ex.D-3. It is to be noticed that, according to

the complainant, he presented Ex.P-1 before the bank on three

occasions and it was dishonoured. The dates were 10.12.2005,

AVRB,J Crl.A No.364/2008

18.02.2006 and 27.04.2006. As seen from the said notice, what

the accused admitted is that the cheque bearing No.625910 bears

her signature. Further, accused came to know that another

cheque bearing No.625160 was also presented in the bank. Those

two cheques have nothing to do with Ex.P-1. So, accused admitted

her signatures only on the cheques bearing No.625910 and

619560. So, Ex.D-3 notice issued by the accused never shown the

admissions made by the accused as regards the cheque in

question. Even otherwise, when the complainant had knowledge

that on 10.12.2005 and 18.02.2006 the cheque issued by the

accused was dishonoured and when the wife of the complainant

was residing with the complainant, who received Ex.D-3 with

serious allegations, definitely he would have advised his wife to

issue a proper reply. The knowledge of Ex.D-3 can be attributed to

the complainant. So, it is a case where the complainant or his wife

could not respond by issuing a suitable reply to the accused when

they received Ex.D-3. On the other hand, when the complainant

issued legal notice after the alleged dishonour under the cover of

Ex.P-5, accused got issued Ex.P-6 legal notice referring about the

issuance of Ex.D-3 also. Apart from this, accused also issued a

notice under Ex.D-4 reiterating the contents in Ex.D-3. So, insofar

as the contents of Ex.D-3 are concerned, accused did not admit

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her signature on Ex.P-1. However, it is a fact that during the

course of cross-examination of PW.1, accused did not deny the

signature on Ex.P-1 by impeaching his testimony in any way. Now,

this Court has to see whether non-denial of the signature of the

accused at the time of cross-examination of PW.1 would enable the

complainant to claim presumption under Section 118 of the NI

Act.

17. This Court would like to make it clear that, as pointed out,

the complainant destroyed his own case by stating in cross-

examination that he lent the amount to the complainant on

10.12.2005. So, the case of the complainant that accused

borrowed the said amount from him prior to 10.12.2005 shall

stand collapsed. The answers spoken by PW.1, during the cross-

examination, are inherently improbable. So the accused could

displace the presumption under Section 118 of the NI Act by virtue

of the preponderance of probabilities.

18. This Court has looked into the decision of the Hon'ble

Supreme Court in Triyambak Hegde (supra). It is a case where

the Hon'ble Supreme Court, having regard to the facts and

circumstances, held that when the signature on the cheque was

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admitted a presumption shall be raised under Section 139 of the

NI Act that the cheque was issued to discharge of debt or liability.

19. Now, coming to the present case on hand, the complainant

did not explain that lending of Rs.70,000/-by him prior to

10.12.2005 was for a legally enforceable debt and as such debt

was within three years prior to 10.12.2005 and on the other hand

complainant destroyed his case by stating that he lent the amount

on 10.12.2005 to the accused for which she issued Ex.P-1. Ex.P-1

is not a post dated cheque. The claim of the complainant is that,

on 10.12.2005, he presented the cheque for collection. Such an

act on the part of the complainant is inherently improbable. One

cannot lend any amount to others, take a cheque and present the

same in the bank on the very same day. So, virtually the

complainant cannot claim that his case is strengthened by Section

118 of the NI Act, in this case, in the light of the peculiar facts and

circumstances and such presumption is not at all there in favour

of the complainant as it is displaced by virtue of his pleadings as

well as answers spoken in his cross-examination.

20. Though, the accused was not able to establish her defence

that Ex.D-1, the blank promissory note was returned by the wife

of the complainant after she repaid Rs.13,000/- and though the

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evidence of DW.2 as if he was present at that time is not

convincing but in a prosecution under Section 138 of the NI Act,

complainant should stand on its own legs. Viewing from any angle,

I am of the considered view that complainant miserably failed

before the trial Court to prove that accused borrowed a sum of

Rs.70,000/- from him prior to 10.12.2005 and issued the cheque

towards legally enforceable debt as such the complainant failed to

prove the offence under Section 138 of the NI Act. Learned

Magistrate rightly appreciated the evidence on record and recorded

sound reasons. Absolutely the Appeal filed by the

appellant/complainant is devoid of merits as such it is fit to be

dismissed.

21. In the result, the Criminal Appeal is dismissed.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date : 14.11.2022 DSH