P.Srinivas, vs B.Mukhalingam,
2022 Latest Caselaw 5704 Tel

             HON'BLE SRI JUSTICE K.SURENDER

                CRIMINAL APPEAL No.568 OF 2010
JUDGMENT:

1. The appellant is the complainant who is aggrieved by the

judgment of acquittal recorded by the II Additional Metropolitan

Sessions Judge vide judgment in Criminal Appeal No.202 of 2009

dated 12.11.2009 reversing the judgment of conviction recorded

by the XV Additional Judge-cum-XIX Additional Chief

Metropolitan Magistrate, Hyderabad in CC No.72 of 2008 dated

30.06.2009 for the offence under Section 138 of the Negotiable

Instruments Act.

2. Briefly, the case of the complainant is that the complainant

and accused are friends and out of said acquaintance, an

amount of Rs.50,000/- was given as loan to the accused. At the

time of taking loan, promissory note was also executed. In

discharge of the said liability, cheque for Rs.50,000/- was issued

to the complainant on 13.01.2004. The said cheque, on

presentation, was returned with an endorsement "insufficient

funds" on 14.01.2004. A notice was issued on 07.02.2004 and

for the reason of failure to pay the amount covered by the cheque

after receiving notice, complaint was filed.

3. Learned Magistrate, recorded the evidence of

P.W.1/complainant and marked Exs.P1 to P10. On behalf of the

accused, accused entered into the witness box and was examined

as D.W.1. Learned Magistrate found the accused guilty of the

offence and convicted him.

4. On appeal, the learned Sessions Judge acquitted the

accused on the following grounds: i) The complainant has taken

blank signatures on three cheques and promissory note and two

blank papers. Taking advantage of the said blank documents,

the case was filed; ii) A civil suit was filed by the complainant and

also sought attachment of the benefits of the accused received

through voluntary retirement. On receiving the said amount, the

civil Court closed the Interlocutory Application; iii) The alleged

promissory note, which was executed was not brought on record

and there is no explanation; iv) The finding that the cheque and

promissory note were received in blank can be ascertained from

the fact that there are different writings in the cheque.

5. The learned Sessions Judge by giving the above reasons

found the accused not guilty of the offence under Section 138 of

the Negotiable Instruments Act.

6. The learned Sessions Judge was right in holding that the

complainant failed to prove the outstanding and that there was a

legally enforceable debt on the subject matter of the cheque.

There are no other outstanding even according to the

complainant and once the complainant has approached the civil

court and sought an attachment from the voluntary retirement

benefits of the accused, it is highly doubtful that there existed

any debt on the cheque in question.

7. The findings of the learned Sessions Judge are on the basis

of record and this Court does not find any illegality or infirmity in

the findings of the learned Sessions Judge in reversing the

judgment of conviction of the learned Magistrate.

8. The Hon'ble Supreme Court in the case of Radhakrishna

Nagesh v. State of Andhra Pradesh [(2013) 11 Supreme Court

Cases 688) 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.

9. In case of appeal against acquittal, the Courts cannot

reverse the order of acquittal unless there are clear

inconsistencies or the findings are not based on record. For the

said reason, when the finding of the learned Sessions Judge are

reasonable and probable, the question of interference by this

Court does not arise.

10. In the result, there are no merits in the appeal and

accordingly, the same is liable to be dismissed.

11. Accordingly, the Criminal Appeal is dismissed.

__________________ K.SURENDER, J Date:08.11.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.568 of 2010

Date: 08.11.2022.

kvs