Telangana High Court
P.Rama Rao vs The State Of A.P. Another on 3 November, 2022
Bench: K.Surender
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 531 OF 2010
JUDGMENT:
This Criminal Appeal is filed by the Appellant/defacto
complainant aggrieved by the acquittal recorded by the VII
Additional Chief Metropolitan Magistrate, Hyderabad,
dt.27.08.2008, in C.C.No.541 of 2005, acquitting the accused for
the offence punishable under Section 138 of the Negotiable
Instruments Act, 1881.
2. Heard both sides and perused the record.
3. The case of the complainant is that Rs.1,70,000/- was taken
by the accused in the month of June, 2004 and the complainant
issued a receipt for the said transaction. The accused also issued
a cheque for Rs.1,70,000/- on 25.05.2005, which was returned
unpaid for the reason of 'account closed'. Notice was sent by the
complainant and for the reason of failure of the accused to pay the
amount covered by the cheque, complaint was filed.
4. Learned Magistrate having examined PW1-complainant and
DWs.1 and 2 who are common friends of accused and
complainant, found that there was no outstanding of
Rs.1,70,000/-. The learned Magistrate further found that an
amount of Rs.1,50,000/- was taken and PW1 failed to prove that
there was an outstanding of Rs.1,70,000/- which is the amount
mentioned in cheque.
5. Learned counsel for the appellant would submit that the
claim of the accused paying the amount was through cheques and
cash. The learned Magistrate erred in acquitting the accused only
for the reason of finding that an amount of Rs.1,50,000/- was
paid to the complainant. Though the learned Magistrate failed to
accept the defence of the accused that the amount of
Rs.1,50,000/- was paid in the presence of DW2, ought to have
convicted the accused.
6. As seen from the evidence, the issuance of cheque and the
signature thereon was not disputed by the accused. In the event of
acceptance of signature and issuance of cheque, burden shifts on
to the accused to prove his case by preponderance of probability.
The accused has examined DW2 to show that he had withdrawn
an amount of Rs.1,90,000/- on 20.02.2005 and in his presence,
the amount was paid back to the complainant. The learned
Magistrate did not accept the said version of the accused for the
reason of not suggesting the said defense to PW1 when he was
cross-examined.
7. Admittedly, the accused failed to discharge his burden of
there being no liability even according to the learned Magistrate.
The learned Magistrate erred in recording acquittal having
disbelieved the defence of the accused.
8. Only for the reason of finding that an amount of
Rs.1,50,000/- was taken from PW1, the learned Magistrate ought
to have found that there is a presumption under Section 139 of
the Negotiable Instruments Act, which the accused failed to rebut.
Further, as discussed above, the learned Magistrate did not
believe the version of repayment.
9. In the absence of the accused failure to discharge his burden
to show that there was no outstanding on the cheque-Ex.P1, this
Court finds that the learned Magistrate's order of acquittal is
erroneous.
10. For the said reason, the Judgment of learned VII Additional
chief Metropolitan Magistrate, dt.27.08.2008 in C.C.No.541 of
2005, is set aside and the 2nd respondent/accused is found guilty
for the offence under Section 138 of the Negotiable Instruments
Act.
11. In view of the said finding, the accused is directed to pay
compensation of Rs.1,70,000/- to the appellant/complainant,
within one month from the date of receipt of a copy of this order,
failing which, the accused shall undergo simple imprisonment of
one month.
12. Accordingly, the Criminal Appeal is allowed.
Miscellaneous applications pending, if any, shall stand
closed.
__________________
K.SURENDER, J
Dt.:03.11.2022
tk
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 531 OF 2010
Dt. 03.11.2022
tk
