K.Narsimha Rao, vs V.Mallesham,
2022 Latest Caselaw 3836 Tel

       THE HON'BLE SRI JUSTICE K.SURENDER

         CRIMINAL APPEAL No.1290 OF 2008
JUDGMENT:

1. Aggrieved by the acquittal recorded by the II

Additional Chief Metropolitan Magistrate at Hyderabad in

C.C.No.484 of 2005, dated 08.07.2008, acquitting the

respondents for the offences punishable under Section 138

of Negotiable Instruments Act, present appeal is preferred

by the appellant/complainant.

2. The case of the complainant is that the respondents

entered into an agreement with the appellant/complainant

for getting sale deeds from purchasers. Accordingly, the

complainant handed over all the documents and the

accused on behalf of two persons issued Ex.P1-cheque

dated 29.09.2004 for Rs.11,93,750/-. The said cheque

when presented for clearance was returned with an

endorsement "refer to drawer" on 27.01.2005 under Ex.P2.

A copy of the legal notice Ex.P4 was sent on 01.03.2005.

The accused gave reply notice on 14.03.2005 under Ex.P5.

Since the accused failed to make payment covered under

the cheque, the appellant filed complaint before Magistrate

Court. The learned Magistrate examined PWs.1 and 2 and

marked Exs.P1 to P9 on behalf of the

appellant/complainant. During examination of DW1,

Exs.D1 to D3 were marked.

3. The respondents/accused defended their case in the

trial Court stating that Ex.P1-cheque was given in relation

to agreement that is a civil transaction and it would not

come within the purview of section 138 of the Negotiable

Instruments Act. Further, after receiving the legal notice-

Ex.P4, they have issued reply notice Ex.P5 stating that the

said amount was paid in cash to the complainant under

Ex.D1 and D2-receipts dt.29.04.2004. Ex.D3 is the FSL

report which confirms the signature of appellant/complaint

on Ex.D1 & D2.

4. Learned Magistrate acquitted the

respondents/accused on the following grounds;

i) Ex.P5-reply notice was given and also Ex.P7-a rejoinder

to Ex.P5 in which it was stated that the amounts covered

under Ex.P1-cheque were already returned.

ii) Exs.D1 & D2 were marked through DW1 who is an

independent witness who stated that the amounts were

returned.

iii) D1 and D2 were sent to FSL and under Ex.D3, FSL

confirms that the signature on Exs.D1 and D2 is that of

PW1.

5. Learned Counsel for the appellant/complainant

submitted that the Magistrate erred in relying upon Exs.D1

& D2 which are fabricated documents. Once the issuance

of cheque is admitted by the accused, it raises

presumption and the burden shifts on to the

respondents/accused to prove that there is no enforceable

debt and the accused failed to discharge the said burden.

The evidence of DW1 who is a friend of the accused cannot

be believed and Exs.D1 and D2 were created for the

purpose of this case.

6. As seen from the record, Exs.D1 and D2-receipts

which were executed by PW1/complainant and the

signatures on Exs.D1 and D2 were sent to the FSL. The

FSL after examination has given an opinion that the

signatures on Exs.D1 and D2 are that of

PW1/complainant.

7. In the said circumstances, mere denial of execution of

Exs.D1 and D2 will not in any manner affect the case of

the defence. When the signatures on Exs.D1 and D2 are

found to be that of PW1, it is for PW1 to explain under

what circumstances his signatures were appended on

Exs.D1 & D2-receipts. Except denying the signatures on

Exs.D1 & D2 by stating that they were fabricated by the

respondents/accused, there is no other reasoning or

explanation given by the appellant with regard to Exs.D1 &

D2.

8. In the said circumstances, when the Judgment of the

learned Magistrate is based upon logical reasoning and

cogent evidence, there cannot be any interference in the

Judgment of acquittal unless it is shown that there is any

glaring defect in the findings of the learned Magistrate.

9. The Hon'ble Supreme Court in the case of

Ramakrishna 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.

10. When two views are possible, the view which is

favourable to the accused has to be considered and more

so, in a case of acquittal, when there are no glaring

(2013) 11 SCC 688

infirmities in the finding of the trial court, the order of

acquittal cannot be interfered with.

11. In view of the above discussion, there are no grounds

to interfere with the order of the acquittal of the trial Court.

12. Accordingly, the criminal appeal is dismissed. As a

sequel thereto, miscellaneous applications, if any, shall

stand closed.

_________________ K.SURENDER, J Date: 22.07.2022 tk

HON'BLE SRI JUSTICE K.SURENDER

Crl.A.No.1290 of 2008

Dated:22.07.2022

tk