Dontha Sree Ramulu, vs Mohd. Mahaboob Basha, Another,
2022 Latest Caselaw 4104 Tel

           THE HON'BLE SRI JUSTICE K.SURENDER

              CRIMINAL APPEAL No.454 OF 2008

JUDGMENT:

1. This Criminal Appeal is filed by the appellant/complainant

aggrieved by the acquittal recorded by the Judicial Magistrate of

First Class, Special Mobile Court, Sangareddy, in C.C.No.300 of

2006 dated 24.12.2007, for the offence punishable under Section

138 of the Negotiable Instruments Act.

2. The case of the appellant/complainant in the trial Court was

that the appellant was running auto workshop and also selling

spare parts. The accused offered to let out shop and the

complainant agreed to take it on lease. Accordingly, a lease deed

was executed between them. In terms of the lease agreement the

complainant paid an amount of Rs.1 lakh through cheque and

further an amount of Rs.1 lakh was given as refundable deposit.

Subsequently, the accused requested to advance a sum of

Rs.50,000/-as hand loan which was given by the complainant on

25.03.2004. The complainant's son established a spare parts shop,

however, after two months since the business was not running,

they wanted to close the shop and the lease deed was terminated.

The accused issued a cheque of Rs.2,50,000/- which included the

refundable deposit of Rs.2 lakhs and the loan amount of

Rs.50,000/-. However, the said cheque when presented for

clearance was returned unpaid. Aggrieved by the same,

complainant issued notice. Since the accused failed to pay the

amount after receiving the notice, a complaint was lodged before

the Court.

3. The learned Magistrate having examined witnesses PWs.1 to 4

and marking Exs.P1 to P8 found the respondent not guilty for the

offence under Section 138 of Negotiable Instruments Act on the

following grounds.

a) There was no legally enforceable liability on the respondent.

b) Presumption cannot be raised for the reason of the complainant

failing to discharge his initial burden of proving that the cheque

was issued towards debt.

c) The complainant failed to prove that an amount of Rs.50,000/-

was given to the respondent/accused.

d) The transaction regarding the shop was in between the son of the complainant and the respondent/accused for which reason there cannot be any liability in favour of the complainant.

4. Learned Counsel for the appellant/complainant submits that

the witnesses PWs.1 to 4 proved their case that the

respondent/accused was due an amount of Rs.2,50,000/- and the

trial Court erred in concluding that there was no contract between

the appellant/complainant and the accused. He relied on the

Judgment of Honourable Supreme Court in Rangappa v. Mohan1

wherein it was held that once the cheque relates to the account of

the accused and signature is admitted, the initial burden has been

discharged and the presumption is attracted. The burden shifts on

to the accused to discharge his burden. Counsel submits that in

the said circumstances, when the cheque and the signature are

admitted by the accused, the Magistrate erred in finding that there

was no legally enforceable debt.

5. The complainant's case is that the shop was taken on lease

by the son of the complainant. Ex.P1 was executed by the accused

in favour of the son the complainant. In the said circumstances, it

is for the appellant/complainant to explain as to how the amount

due if any is liable to be paid complainant. The finding of the

learned Magistrate that the complainant failed to prove that there

(2010) 11 SCC 441

was no legally enforceable debt and also that the amount of

Rs.50,000/- was also not proved, it cannot be said that the said

findings are contrary to the evidence produced by the complainant.

6. The Honourable Supreme Court in cases of acquittal held

that unless there are glaring inconsistencies and reasons which

would prompt appellate Court to set aside the orders of acquittal,

there shall be no interference. The view taken by the trial Court is

reasonable on the basis of which acquittal is recorded.

7. In the said circumstances, the appeal fails and accordingly,

the Criminal Appeal is dismissed.

As a sequel thereto, miscellaneous petitions, if any, pending,

shall stand closed.

_________________ K.SURENDER, J Date: 10.08.2022 tk

THE HON'BLE SRI JUSTICE K.SURENDER

Crl.A.No.454 of 2008

Dated: 10.08.2022

tk