Sri Parmesh Kumar Gupta, vs The State Of Ap Rep By Its Hyd., ...
2022 Latest Caselaw 3878 Tel

             HON'BLE SRI JUSTICE K.SURENDER

              CRIMINAL APPEAL No.327 OF 2008
JUDGMENT:

1. The appellant is the complainant in the lower Court who

filed a private complaint under Section 138 of the Negotiable

Instruments Act against the 2nd respondent/accused. Aggrieved

by the acquittal of the accused vide judgment dated 30.08.2007

in C.C.No.1152 of 2004 passed by the IV Metropolitan

Magistrate, the present appeal is filed.

2. The case of the appellant is that on 02.04.2003, the accused

approached him for hand loan of Rs.50,000/- and after receiving

the same, executed promissory note and also passed on a receipt.

Later towards the repayment of the said amount, a cheque for

Rs.20,000/- under Ex.P3 dated 28.12.2003 was given. When the

said cheque was sent for clearance, the same was returned with

an endorsement "FUNDS INSUFFICIENT". For the said reason,

aggrieved by not paying the amount, after issuing legal notice,

complaint was filed.

3. The complainant examined himself as P.W.1 and marked

Exs.P1 to P7, the accused examined herself as D.W.1 and

marked Ex.D1, bank pass book.

4. The evidence of D.W.1 is that she in fact had taken amount

of Rs.50,000/- from the complainant. However, she repaid the

said loan vide cheque No.776399. The said amount was taken by

the complainant on 30.01.2004 and in proof of the same, the

accused filed bank statement. Regarding the cheque in question,

she stated that prior to taking the amount of Rs 50,000/- she

has issued said cheque for the purpose of security and the

complainant has misused the same by filling up the cheque and

filed the present complaint.

5. The learned Magistrate after conclusion of trial and after

examining the witnesses found that the accused had discharged

her burden by producing evidence. Ex.D1 clearly establishes

encashment of the cheque bearing No.776399. The said cheque

was also mentioned in the reply notice under Ex.P6. There is no

explanation to the claim of the accused made under reply notice

dated 24.07.2004 and also the complainant failed to mention

regarding receiving Ex.P6 in the complaint and also in the chief

affidavit.

6. The learned counsel for the appellant submits that there

were earlier transactions and even assuming that Rs.50,000/-

was received as mentioned in Ex.D1, it does not reflect that it is

towards the very same transaction. Since the issuance of cheque

is accepted, the court has committed error in acquitting the

accused.

7. It is the specific case of the complainant that loan amount

of Rs.50,000/- was received by the accused and thereafter issued

a cheque for an amount of Rs.20,000/-under Ex.P1. For the said

reason of admitting issuance of cheque, the acquittal recorded by

the learned Magistrate has to be reversed.

8. The accused entered into the witness box and examined

herself as D.W.1. She clearly stated that she had taken an

amount of Rs.50,000/- towards which a cheque bearing

No.776399, drawn on Punjab National Bank dated 30.01.2004

was given towards repayment and the same was encashed. Reply

under EXP6 was also given stating that the cheque in question

Ex.P1 was given as a security and later, the amount was repaid.

On the basis of cross-examination of D.W.1, it is apparent that

the case of complainant is that no police compliant was given nor

any instructions to stop payment were made as such the two

transactions are different and cannot be treated as one and the

same. Further a suggestion was made that Ex.D1 pass book

does not pertain to the particular transaction but an earlier

transaction. When it is specifically stated that Rs.50,000/- was

taken, it is for the complainant to explain as to why Rs.20,000/-

was given and also regarding Rs.50,000/- that was taken on

30.01.2004. Except stating that there was no police complaint to

return the cheque Ex.P1 and that stop payment was not given,

will not in any manner substantiate the case of the complainant

that there is an outstanding on the cheque in question.

9. The accused has discharged her burden by preponderance

of probability by proving that there was no liability on Ex.P1

cheque, for which reason, I do not find any infirmity in the

finding of the learned Magistrate.

10. Accordingly, the appeal filed by the complainant is

dismissed. As a sequel thereto, miscellaneous applications, if

any pending, shall stand closed.

__________________ K.SURENDER, J Date: 26.07.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.327 of 2008

Date: 26.07.2022.

kvs