G.Venkat Ramulu vs C.Rama Murthy The State Of A.P.
2022 Latest Caselaw 3571 Tel

              HON'BLE SRI JUSTICE K.SURENDER

              CRIMINAL APPEAL No.1021 OF 2005
JUDGMENT:

1. The appellant/complainant filed the present appeal

questioning the acquittal recorded by the Additional Judicial

First class Magistrate (East & North), R.R.District (for short

'the Magistrate') vide judgment in C.C.No.28 of 2002 dated

18.06.2004, acquitting the 1st respondent for the offence

under Section 138 of Negotiable Instruments Act.

2. The appellant/complainant filed a private complaint

for the offence under Section 138 of the Negotiable

Instruments Act against the 1st respondent stating that he

had advanced a loan of Rs.50,000/- to meet the family

expenses of 1st respondent. When demanded, the 1st

respondent issued a cheque for Rs.68,000/- which was

towards principal and interest and the said amount was

towards discharge of the debt, which is outstanding and

liable to be paid by the 1st respondent. The

appellant/complainant also filed a pronote in support of the

loan being given. The said Ex.P2 when presented for

clearance, the same was returned for the reason of 'account

closed'.

3. The accused in the trial court had taken a stand that

the appellant/complainant who was an Advocate started

private chits and the 1st respondent/accused was member

of the chit. Appellant having taken the prize amount of the

chit, issued pronote and three blank cheques towards

collateral security to complainant/appellant. Misusing the

said cheques, false complaint was filed. The accused further

examined D.W.1 who is an independent witness to state

that the appellant/complainant had obtained three cheques

and pronote from the accused towards collateral security.

4. The learned Magistrate vide impugned judgment,

acquitted the 1st respondent/accused on the following

grounds; i) D.W.1 who is an independent witness was in fact

signatory to the pronote EXP1 and also for handing over of

blank cheques to the appellant/complainant; ii) D.W.1 also

stated that the 1st respondent/accused was highest bidder,

for which reason, the complainant/appellant obtained blank

pronote and three cheques; iii) the said defence of the

accused was not seriously opposed; iv) D.W.1 being an

independent witness, his evidence cannot be brushed aside;

v) The complainant/appellant failed to discharge his burden

that there was any amount was due by the 1st

respondent/accused.

5. Learned counsel for the appellant/complainant

submits that initial burden which was on P.W.1 was

discharged by producing the cheque and also it is an

admitted fact that the 1st respondent/accused had collected

the chit amount. In the said circumstances, the burden

shifts on to the 1st respondent/accused under Section 139

of the Negotiable Instruments Act and the 1st

respondent/accused failed to rebut the evidence, for which

reason, finding of the trial Court has to be reversed. In

support of his contention, he relied on the judgment

reported in the case of T.Vasanthakumar v. Vijayakumari1

and argued that under similar circumstances, the Hon'ble

Supreme Court had reversed the finding of both the trial

Court and High Court and found that once issuance of

AIR 2015 Supreme Court 2240

cheque and signature are proved, the burden shifts on to

the accused to discharge his liability.

6. It is no doubt settled law that once issuance of cheue

is admitted, though without filling up the details other than

the signature, a presumption can be drawn that it was

issued towards debt or liability. In the present case, D.W.1

who is a witness to the pronote was examined to state that

the said cheque in question was and two other cheques

were given towards security to P.W.1. Further all the

installments of the chit were paid. During the course of

cross-examination, except suggesting that D.W.1 was

deposing false to help the 1st respondent/accused, no other

evidence was placed to discredit the evidence of D.W.1.

7. It is not the case of the appellant/complainant that

D.W.1 was only introduced to speak in favour of the 1st

respondent/accused. The signature of D.W.1 as a witness

on the pronote is also not disputed. The Appellant also

failed to explain as to how he could collect interest and how

the interest component was arrived at.

8. The trial Court had the opportunity of observing and

assessing the witnesses during the course of trial. The

finding of the trial Court that the evidence of D.W.1 could be

believed to ascertain that no amount was outstanding with

P.W.1, cannot be found fault with. Further the

appellant/complainant/ P.W.1 did not dispute regarding the

running of chits. As seen from the cross-examination, it is

not even suggested to D.W.1 that P.W.1 was not

undertaking business of chits and the amount of

Rs.50,000/- was given to the appellant/complainant by way

of hand loan. In the said circumstances, the judgment

relied upon by the learned counsel for the appellant is not

applicable to the facts of the present case on hand.

6. For the foregoing discussion, the findings of the

learned Magistrate cannot be interfered with.

7. Accordingly, the Criminal Appeal is dismissed.

Miscellaneous petitions, if any, pending, shall stand closed.

__________________ K.SURENDER, J Date: 08.07.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1021 OF 2005

Date: 08.07.2022.

kvs