Telangana High Court
Peguda Dhanunjaya, Warangal ... vs Estaboina Kumaraswamy, Warangal ... on 26 August, 2022
Bench: K.Surender
HON'BLE SRI JUSTICE K.SURENDER
Criminal Appeal No.1589 of 2009
1. The appeal is filed by the complainant/appellant
questioning the acquittal of the respondent/accused for the
offence under Section 138 of the Negotiable Instruments Act
vide judgment in CC No.601 of 2003 dated 28.04.2009 passed
by the Judicial Magistrate of First Class, Parkal.
2. For the sake of convenience, the parties hereinafter will
be referred to as arrayed in the Calendar Case. The case of the
complainant is that out of acquaintance with the accused, an
amount of Rs.15,000/- was given as a hand loan on
22.06.2001, which the accused promised to repay with
interest. However, on persistent demand, the accused issued a
cheque for Rs.15,000/- on 28.04.2003 vide cheque
No.502084. The said cheque when presented for clearance was
returned with an endorsement 'funds insufficient'. Though
notice was given, the accused failed to pay the said amount
covered by the cheque, for which reason, complaint was filed.
3. Learned Magistrate after recording the evidence,
acquitted the accused for the reason of Ex.P4 legal notice not
mentioning the correct cheque number. The cheque number
is 185273, however, the cheque number in Ex.P4 was
mentioned as 502084. Further, the learned Magistrate found
that it is the bounden duty of the complainant to mention
exact cheque number in the legal notice. In the chief affidavit
of P.W.1, also the cheque number was wrongly mentioned. No
steps were taken to rectify the cheque number.
4. Learned counsel for the appellant submits that when the
details regarding the amounts are correct and the issuance of
cheque is not disputed, wrong mentioning of cheque number
is of no consequence. He further submits that once the
issuance of cheque is accepted, presumption has to be drawn
against the accused, which the accused failed to explain even
by preponderance of probability, for which reason, the
acquittal has to be reversed.
5. Section 138 of the Negotiable Instruments reads as
follows:
"138 Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any
cheque drawn by a person on an account maintained by him with a banker for payment of
any amount of money to another person from out of that account for the discharge, in
whole or in part, of any debt or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be paid from that account by
an agreement made with that bank, such person shall be deemed to have committed an
offence and shall, without prejudice to any other provisions of this Act, be punished with
imprisonment for [a term which may be extended to two years], or with fine which
may extend to twice the amount of the cheque, or with both: Provided that nothing
contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date
on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a
demand for the payment of the said amount of money by giving a notice in writing, to the
drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the
bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to
the payee or, as the case may be, to the holder in due course of the cheque, within fifteen
days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally
enforceable debt or other liability.]
6. As seen from the chief affidavit and also legal notice,
cheque number was wrongly written. D.W.1, who was the
then Branch Manager, State Bank of Hyderabad mentioned
that the cheque number is 185273 and the said cheque
number is not mentioned in the legal notice Ex.P4 nor rectified
during the course of trial by stating in the chief examination of
P.W.1.
7. The Hon'ble Supreme Court in the 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.
8. When the description of the cheque was not correctly
intimated to the accused, requirements under Section 138 of
Negotiable Instruments Act, 1881 is not met. For the said
reasons, the acquittal recorded by the learned Magistrate
cannot be interfered with.
(2013) 11 supreme court Cases 688
9. Accordingly, the Criminal Appeal is dismissed. As a
sequel thereto, miscellaneous applications, if any, pending
shall stand closed.
__________________
K.SURENDER, J
Date: 26.08.2022
kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1589 OF 2009
Date: 26.08.2022
kvs
