Telangana High Court
Mohd Mansoor Ali Nizami vs Mohd Ibrahim And Another on 5 July, 2022
Bench: A.Santhosh Reddy
HON'BLE SRI JUSTICE A.SANTHOSH REDDY
CRL.A.No.513 OF 2018
JUDGMENT:
This appeal is directed against the judgment,
dated 27.06.2017, in C.C.No.240 of 2016, on the file of the First
Special Magistrate, wherein the first respondent herein was found
not guilty of the offence under Section 138 of the Negotiable
Instruments Act, 1881 (for short 'the Act') and was acquitted under
Section 255(1) Cr.P.C.
2. Heard the learned counsel for the appellant/complainant and
the learned counsel for the first respondent/accused. Perused the
material on record.
3. The appellant herein filed complaint against the first
respondent herein alleging, in brief, as follows:
The complainant and the accused are known to each other.
Out of the acquaintance the accused took hand loan of Rs.6.20
lakhs from the complainant on 18.09.2014 and agreed to repay the
same with interest @ 24% per annum within one month. Inspite of
several requests, the accused failed to repay the same and issued a
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cheque bearing No.444055, dated 02.11.2014 drawn on Canara
Bank, Ahmad Nagar Branch, Hyderabad for a sum of Rs.6,30,000/-
which includes interest. When the cheque was presented for
collection in Axis Bank, Hyderabad, it was dishonoured on the
ground that "payment stopped by drawer"and issued cheque return
memo, dated 11.11.2014. The complainant got issued a legal
notice dated 21.11.2014 calling upon the accused to pay the
amount. The accused received the same and got issued reply
notice dated 08.12.2014. Hence, this complaint is filed under
Section 138 of the Act against the accused.
4. The accused denied the offence and pleaded not guilty.
In support of his case, the complainant examined himself as P.W.1
and marked Exs.P-1 to P-6. The accused examined himself as
D.W.1 and marked Exs.D-1 to D-4.
5. On a consideration of the evidence available on record, the
learned Magistrate held that the complainant had also failed to
discharge the initial burden showing that there was subsisting
liability by the accused towards the complainant and, therefore, the
ingredients of the offence under Section 138 of the Act are not
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made out and further held that accused successfully rebutted the
presumption under Section 139 of the Act and accordingly, the
accused was acquitted.
6. Feeling aggrieved and dissatisfied with the order of acquittal
passed by learned trial Court acquitting the accused, the
complainant preferred the appeal before the learned VIII
Additional Metropolitan Sessions Judge, Hyderabad and learned
VIII Additional Metropolitan Sessions Judge, Hyderabad returned
the appeal. Thereafter, the complainant preferred the present
appeal.
7. Learned counsel for the appellant/complainant submitted
that the appellant has established the essential ingredients of
offence under Section 138 of the Act. The learned trial Court failed
to believe that there is existing liability and in discharge of the
same, cheque has been issued by the accused. It is submitted that
in view of the presumption under Section 138 of the Act, the
learned trial Court ought to have convicted the accused. But the
learned trial Court without properly appreciating the oral and
documentary evidence dismissed the complaint. Therefore, learned
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counsel submitted to set aside the judgment of the learned trial
Court.
8. Learned counsel for the first respondent/accused submits that
the complainant failed to prove that the alleged cheque under
Ex.P.1 was issued by the accused towards discharge of legally
enforceable debt and as such, the learned trial Court has rightly
dismissed the complaint.
9, Thus, the point that would arise for determination in this
appeal is whether the acquittal of the accused for the offence
punishable under Section 138 of the Negotiable Instruments Act,
1888 calls for an interference?
10. According to the complainant/P.W.1, the accused out of the
acquaintance borrowed a hand loan of Rs.6.20 lakhs from the
complainant on 18.09.2014 and agreed to repay the same with
interest @ 24% per annum within one month. Inspite of several
requests, the accused failed to repay the same and issued Ex.P.1
cheque drawn on Canara Bank, Ahmad Nagar Branch, Hyderabad
for a sum of Rs.6,30,000/- which includes interest and when the
same was presented for collection in Axis Bank, Hyderabad, it was
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dishonoured on the ground that "payment stopped by drawer" and
issued Ex.P.2 cheque return memo. Thereafter, the complainant
got issued Ex.P.3 legal notice calling upon the accused to pay the
amount. The accused received the same and got issued Ex.P.6
reply notice.
11. The accused, as D.W.1, testified that one
Mohd.Faheemuddin used to visit his workshop frequently and he
has stolen some blank signed papers and unused cheques of the
year,2008 and earlier together with some work orders, said
Faheemuddin in collusion with complainant started misusing the
cheques so stolen. The accused has instructed his banker to stop
payment of the unused cheques. He also filed a private complaint
against Mohd.Faheemuddin and against the complainant, which
was registered in Crime No.499 of 2014 on 22.12.2014. After
completion of investigation, charge sheet was filed and the same
was numbered as C.C.No.980 of 2015 for the offences under
Sections 420, 406, 448, 379 and 506 IPC. In order to prove the
same, the accused filed Ex.D.1 certified copy of F.I.R. and Ex.D.2
copy of charge sheet and Ex.D.3 and Ex.D.4 letters addressed by
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him to stop payment. The accused has taken a plea that he did not
vow any amount to the complainant and he has adduced oral and
documentary evidence to show that a criminal case was registered
against theft of cheques and the police filed case against the
complainant and Mr.Mohd.Faheem. Therefore, he has addressed
letter to the bank authorities to stop payment against Ex.P.1 cheque
under Ex.D.3 and Ex.D.4.
12. In G.B.LINGAM v. VITTA MURALI KRISHNA
MURTHY AND ANOTHER1, it was held as follows:
"It is evident that when once the respondent takes the
plea that the cheque was not issued for discharge of a
legally enforceable debt or liability then the
complainant is bound to prove the circumstances
under which the cheque was given in his favour and
that the same is issued in discharge of legally
enforceable debt. Unless this initial burden is
discharged by the complainant, the presumption
available under Section 139 cannot be made use of
against the respondent."
13. It is well settled that the initial burden that the cheque was
given and that it was issued in discharge of a legally enforceable
debt has to be discharged before the presumption can be invoked.
1 1997(1) ALD (Crl.) 940 (AP)
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When the complainant fails to discharge the initial burden of
showing that there was, in fact, a legally enforceable debt or
liability due to him by the accused, the question of presumption
under Section 139 of the Act in favour of the complainant, does not
simply arise.
14. The evidence of PW.1 reveals that he has not adduced any
oral or documentary evidence to show that Ex.P.1 cheque was
issued against legally enforceable debt. According to the
complainant, he has paid the money by way of cash to the accused
and against discharge of debt, he issued the cheque Ex.P.1 dated
02.11.2014. Accused in his evidence stated that he issued stop
payment instructions letters in Ex.D.3 and D.4 which show that
stop payment instructions were given (45) days earlier to the date
of Ex.P.1 cheque. He also admitted that said Mohd.Faheemuddin
filed complaint against him and his brother Sathar and the same
was registered as F.I.R.No.499 of 2014 and the same is pending.
Further the complainant discharges his burden that there was oral
transaction and pursuant to the same, the accused borrowed
Rs.6.20 lakhs from him and agreed to repay the same with 24% per
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annum and issued Ex.P.1 cheque for Rs.6,30,000/- including the
interest. The presumption contained under Section 139 of the Act
arises only, when the initial burden lying on the complainant to
show existence of legally enforceable debt or liability, is
discharged. However, the accused by adducing oral evidence and
filed Ex.D.1 to D.4 documentary evidence rebutted the
presumption under Section 139 of the Act. Since the accused
rebutted the presumption whatever arisen, by adducing oral and
documentary evidence, the onus shifts again on the complainant to
prove his financial capacity by adducing oral evidence, more
particularly, when it is the case of giving loan by cash.
15. In the present case, the complainant has miserably failed to
discharge the burden cast on him and there is no cogent evidence to
believe that the accused had, in fact, issued the alleged cheque
in favour of the complainant towards discharge of legally
enforceable debt.
16. In view of the above, after considering the submissions and
material on record, I am of the view that the learned trial Court has
rightly concluded that the complainant failed to prove the essential
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ingredient of the offence that the alleged cheque under Ex.P.1 for
Rs.6,30,000/- was issued by the accused against discharge of
legally enforceable debt, as such, rightly dismissed the complaint
and acquitted the accused under Section 255(1) Cr.P.C. for the
offence under Section 138 of the Negotiable Instruments Act,
1881. Accordingly, the criminal appeal fails and this Court hereby
confirms the judgment and order of acquittal passed by the learned
trial Court.
17. In the result, the criminal appeal is dismissed. As a sequel
thereto, Miscellaneous petitions, if any, pending shall stand closed.
________________________
A.SANTHOSH REDDY, J
05.07.2022
Nvl
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Subsequent to the filing of appeal O.S.No.902 of 2015 filed by the
complainant against the accused was dismissed vide order dated
21.12.2017 by IV Senior Civil Judge, City Civil Court, Hyderabad
for recovery of amount under Ex.P.1 in the above case on the
ground that the complainant failed to prove obtaining of loan and
issuance of the cheque.
