Smt. K.Lalitha vs G.Chandraiah The State Of A.P.
2021 Latest Caselaw 3986 Tel

        THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER


              CRIMINAL APPEAL No.755 of 2008

JUDGMENT:

This Criminal Appeal, under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the

appellant/complainant, challenging the judgment, dated

28.02.2008, passed in C.C.No.735 of 2006 by the Additional

Judicial Magistrate of First Class at Sangareddy, whereby, the

Court below acquitted the respondent No.1/accused under Section

255(1) of Cr.P.C., for the offence punishable under Section 138 of

Negotiable Instruments Act, 1881 (for short, 'N.I.Act').

2. Heard the learned counsel for the appellant/complainant and

perused the record.

3. Learned counsel for the appellant/complainant would submit

that the respondent No.1/accused has borrowed an amount of

Rs.70,000/- towards hand loan for his personal, family and legal

necessities from the complainant on 07.12.2005 and promised to

repay the said amount within three months. However, the accused

dodged the payment on one ground or the other and finally issued

Exs.P.1 and P.2 cheques towards discharge of the hand loan. Both

the cheques were dishonoured when presented for payment.

There is valid legal notice, dated 20.06.2006. In spite of the same,

the amount was not paid by the accused, which constituted cause

of action against him. Though there is clear and cogent evidence

on record, the Court below erroneously acquitted the accused and

ultimately prayed to allow the appeal as prayed for.

Dr.SA J Crl.A.No.755 of 2008

4. In view of the above submissions, the points that arise for

determination in this appeal are as follows:

1. Whether there is legally enforceable debt as alleged by the appellant/complainant?

2. Whether Exs.P.1 and P.2 cheques were issued by the respondent No.1/accused towards discharge of legally enforceable debt?

3. Whether the judgment, dated 28.02.2008, passed in C.C.No.735 of 2006 by the Additional Judicial Magistrate of First Class at Sangareddy is liable to be set aside, consequently, whether the respondent No.1/accused is liable to be convicted for the offence punishable under Section 138 of N.I.Act?

POINTS:-

5. The case of the appellant/complainant, as averred in the

subject private complaint, is that the accused was working as

conductor in APSRTC. The husband of the complainant and the

accused are known to each other. The accused, out of friendship,

approached the complainant through her husband and requested to

advance Rs.70,000/- as hand loan for personal, family and legal

necessities in the month of December, 2005, promising to repay

the same within three months. Accordingly, the complainant

advanced hand loan of Rs.70,000/- to the accused on 07.12.2005.

The accused, however, failed to keep up his promise. When the

complainant demanded the accused to return the amount, he

issued Exs.P.1 and P.2 cheques bearing Nos.616096 and 616097

for Rs.35,000/- each, in favour of the complainant. When the said

cheques were presented for payment, they got dishonoured due to

insufficiency of funds. When the complainant orally informed the

accused about the same, the accused requested her to present the

Dr.SA J Crl.A.No.755 of 2008

subject cheques once again in the second week of May, 2006.

When the complainant again presented the subject cheques, they

were again dishonoured due to insufficiency of funds. Thereafter,

the complainant got issued legal notice, dated 20.06.2006 to the

accused. The accused received the said notice on 29.06.2006, but

neither replied to the same nor made repayment of amount.

Therefore, the complainant filed the subject private complaint

before the Court below against the accused for the offence

punishable under Section 138 of N.I.Act.

6. In support of her case, the complainant herself got examined

as P.W.1 besides P.Ws.2 and 3 and got marked Exs.P.1 to P.10.

P.W.2 is Deputy Manager of SBH, Sangareddy Branch. P.W.3 is

the husband of P.W.1. Ex.P.1 and P.2 are the cheques of even

date, dated 15.03.2006, for Rs.35,000/- each. Exs.P.3 to P.5 are

Cheque Return Memos, dated 28.03.2006, 28.03.2006 and

18.05.2006 respectively, issued by the bank. Ex.P.6 is the office

copy of legal notice, dated 20.06.2006. Ex.P.7 is postal

acknowledgement card, Ex.P.8 is postal receipt, No.2328, Ex.P.9 is

the statement of account bearing No.5212720454 for the period

from 01.03.2006 to 18.05.2006 and Ex.P.10 is attested copy of

specimen signature of the accused.

7. As per the averments of the subject private complaint, the

accused approached the complainant through her husband and

requested for hand loan of Rs.70,000/-, whereas P.W.1 deposed in

her evidence that the accused and his wife approached her on

07.12.2005 and requested hand loan of Rs.70,000/-. Further,

P.W.1 stated in her evidence that her husband has no friendship

Dr.SA J Crl.A.No.755 of 2008

with the accused, whereas, as per the subject complaint, her

husband has got friendship with the accused. P.W.1 further stated

in her evidence that one week prior to loan transaction, the wife of

the accused requested for hand loan and that the accused has not

issued any receipt in proof of payment of Rs.70,000/- and that she

herself wrote her name on Exs.P.1 and P.2 cheques. There is

inconsistency in the pleadings of the subject private complaint as

well as oral evidence of P.W.1 (complainant) with regard to the

acquaintance between the parties. Further, the evidence of P.W.1

is not corroborating with the contents of the subject private

complaint. Under these circumstances, the Court below rightly

held that the acts of the complainant create a doubt with regard to

the genuineness of Exs.P.1 and P.2 cheques. Further, there is no

receipt or any document to substantiate that an amount of

Rs.70,000/- was lent to the accused on 07.12.2005 as hand loan

for his personal, family and legal necessities. There is no evidence

on record to show that the accused borrowed an amount of

Rs.70,000/- and issued Exs.P.1 and P.2 cheques in favour of the

complainant. Further, P.W.3, husband of the complainant, has

categorically stated in his cross-examination that the accused did

not request him for loan. There are inconsistencies in the evidence

of P.W.1 and P.W.3. All these inconsistencies create a doubt as

regards to the existence of legally enforceable debt. All these

aspects have been elaborately dealt with by the trial Court and

answered against the complainant in view of cogent and convincing

evidence on record. The conclusions reached by the trial Court are

based on evidence on record. There is nothing to take a different

view. The accusations against the accused under Section 138 of

Dr.SA J Crl.A.No.755 of 2008

N.I.Act are not proved beyond reasonable doubt. The contentions

raised on behalf of the complainant do not merit consideration.

The Criminal Appeal is devoid of merit and is liable to be dismissed.

8. In the result, the Criminal Appeal is dismissed, confirming

the judgment, dated 28.02.2008, passed in C.C.No.735 of 2006 by

the Additional Judicial Magistrate of First Class at Sangareddy.

Miscellaneous petitions, if any, pending in this Criminal

Appeal, shall stand closed.

__________________ Dr. SHAMEEM AKTHER, J

30th November, 2021 Bvv