Telangana High Court
M.A.Saleem , vs Miss Cherukuri Durga And Another, on 23 August, 2022
Bench: K.Surender
Crl.Appeal No.1523 of 2009
1
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1523 OF 2009
JUDGMENT:
The complainant in C.C.No.900 of 2006 on the file of II
Additional Chief Metropolitan Magistrate at Hyderabad is the appellant
herein, preferred the present appeal under Section 378 of the Code of
Criminal Procedure, challenging the judgment dated 05.08.2008
passed in the above C.C wherein the respondent/accused in the said
case was acquitted for an offence punishable under Section 138 of the
Negotiable Instruments Act (for short, the NI Act).
2. The facts case of the case are that the complainant/appellant
was given an amount of Rs.1,50,000/- as a hand loan to the
respondent/accused and to discharge the said debt, he has issued the
cheque in question Ex.P1. When the said cheque was presented in
State Bank of Hyderabad, Gruhakalpa Branch, Hyderabad for
clearance, the same was returned unpaid for the reason of insufficient
funds vide Ex.P2.
Crl.Appeal No.1523 of 2009
3. After recording the sworn statement, the said case was taken on
file and after the appearance of the accused, he was examined under
Section 251 Cr.P.C. He denied the offence and pleaded not guilty and
claimed to be tried. In support of his case, the complainant was
examined as P.W.1 and marked Exs.P-1 to P-9. After closure of
prosecution evidence, the accused was examined under Section 313
Cr.P.C. The incriminating evidence found against the accused was
read over and explained but the same was denied by him. On behalf
of the defence, the accused herself examined as DW1 and one Sunitha
was examined as DW2 and marked Exs.D1 to D6.
4. After considering the oral and documentary evidence available
on record, the learned Magistrate found that the amount was
discharged, for which reason the respondent/Accused was found not
guilty for the said offence on the basis of the evidence of DWs 1 and 2
and relying upon Exs.D5 and D6 which are receipts issued by the
appellant/complainant dated 13.04.2004 and 18.01.2006 respectively.
Learned Magistrate further found that the evidence of DWs 1 and 2
and in view of Exs.D1 to D6, the accused probabilised her case before
the Court to establish that there is no liability under Ex.P1. Aggrieved
by the same, the present Appeal is preferred.
Crl.Appeal No.1523 of 2009
5. Learned counsel appearing for the appellant/complainant would
submit that since the issuance of cheque is admitted, the presumption
has to be drawn under Section 138 of NI Act and the Accused has
failed to discharge her burden by preponderance of probabilities, for
which reason the acquittal has to be reversed.
6. As seen from the evidence on record, the Respondent/Accused
has though admitted the issuance of cheque has produced the receipts
which are Exs.D5 and D6 bearing signatures of the
appellant/complainant.
7. The Hon'ble Supreme Court in case of Radhakrishna Nagesh
v. State of Andhra Pradesh1 held that under the Indian criminal
jurisprudence, the accused has two fundamental protections available
to him in a criminal trial or investigation. Firstly, he is presumed to be
innocent till proved guilty and secondly that he is entitled to a fair trial
and investigation. Both these facets attain even greater significance
where the accused has a judgment of acquittal in his favour. A
judgment of acquittal enhances the presumption of innocence of the
accused and in some cases, it may even indicate a false implication.
But then, this has to be established on record of the Court.
(2013) 11 SCC 688
Crl.Appeal No.1523 of 2009
8. In the light of the above discussion, there are no grounds to
interfere with the findings of the trial Court in C.C.No.900 of 2006 and
for the aforesaid reasons, this Court is of the view that the appeal is
devoid of merits and the same is liable to be dismissed.
9. Accordingly, the Criminal Appeal is dismissed.
As a sequel to it, miscellaneous petitions pending if any in this
criminal appeal, shall stand closed.
_____________
K.SURENDER, J
Date: 23.08.2022
ns
