Emmadi Rajanna vs Akula Narayana The State Of A.P.
2022 Latest Caselaw 5707 Tel

              HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.662 OF 2010
JUDGMENT:

1. The appellant aggrieved by the dismissal of the complaint

under Section 138 of the Negotiable Instruments Act vide judgment

in CC No.682 of 2007 dated 17.06.2009 passed by the Additional

Judicial Magistrate of First Class, Karimnagar, filed the present

appeal.

2. The case of the complainant is that he has lent an amount of

Rs.8.00 lakhs to the accused by handing over a cheque and amount

withdrawn from the account of complainant's wife. The accused

received the amount and executed promissory note in favour of his

wife. Towards repayment, issued the cheque in question in the

name of the complainant for an amount of Rs.6.00 lakhs and when

the same was presented for clearance, it was returned unpaid with

an endorsement 'insufficient funds'. Legal notice was issued. Having

received the notice, the accused failed to pay the amount covered by

the cheque, as such complaint under section 138 NI Act was filed.

3. Learned Magistrate recorded the statements of P.Ws.1 to 4 and

marked Exs.P1 to P10 on behalf of complainant. The accused

entered into the witness box and he was examined as D.W.1.

Having considered the oral and documentary evidence, the learned

Magistrate acquitted the respondent/accused on the following

grounds; i) The very basis of handing over of Rs.8.00 lakhs from the

account of the wife of the complainant cannot be believed as the

Branch Manager/P.W.2 stated that an amount over Rs.5.00 lakhs

will not be paid in cash; ii) The alleged amount was given by his

wife and also the promissory note was executed in favour of the

wife, for which reason, if any outstanding, it would be payable to

the wife and not the husband/complainant; iii) the husband cannot

file complaint on behalf of his wife since there is no legally

enforceable debt between the complainant and the accused.

4. Learned counsel for the complainant would submit that

signature on the cheque is not disputed, for which reason, the

presumption under Section 139 of the Negotiable Instruments Act

is attracted and the accused failed to discharge his burden.

Further, the Magistrate has erred in recording that there is no

outstanding payable to the husband/complainant when it is the

specific case of the complainant/husband that he has given loan to

the accused. However, amount was paid from his wife's account. It

is immaterial from where the money is brought when the

complainant has handed over the loan amount to the accused. In

the said circumstances, the finding of the learned Magistrate has to

be interfered with and same has to be reversed. When once the

signature on the cheque is admitted, presumption arises and the

Court has no other option but to convict the accused. He argued

that the learned Magistrate could not have declined to entertain the

complaint on the ground that the husband was not entitled to file

the complaint as held by the Hon'ble Supreme Court in the case of

Vishwa Mitter of M/s.Vijay Bharat Cigarette Stores, Dalhousie Road,

Pathankot v. O.P.Poddar [(1983) 4 Supreme Court Cases 701]. He

also relied on the judgments in the case of Sunil Todi and others

v. State of Gujarat and another [2022 (1) ALT (CRI.)(SC) 102

(D.B)], Greaves Limited, Hyderabad v. Leo Electronics Organization,

Hyderabad [2006(2) ALD (Crl.) 977(AP).

5. On the other hand, Sri G.Koteshwar Rao, learned counsel for

the respondent/accused submits that the finding of the learned

Magistrate cannot be interfered with as they are based on record.

He relied on the judgments reported in the cases of; i) Rangappa v.

Mohan [2010(2) ALD (Crl.) 734 (SC); ii) G.Ashok Kumar Goud v.

P.Anjili Bai [2012(2) ALD (Crl.) 126 (AP).

6. It is admitted by P.W.2 that the Bank would not have

permitted withdrawal of Rs.8.00 lakhs when the limit is only

Rs.5.00 lakhs. The very claim made by the complainant regarding

withdrawal of Rs.8.00 lakhs becomes doubtful. Secondly, P.W.1

during cross-examination stated that the amount was taken directly

from his wife and promissory note executed in her favour.

Admittedly, the transaction is in between the wife of the appellant

and the accused. In the peculiar facts and circumstances of the

present case, the finding of the learned Magistrate cannot be found

fault with.

7. The complainant coming into possession of the cheque was

also discussed by the learned Magistrate stating that on account of

running finance business privately, signed cheques came into

possession of the complainant. However, when the entire

transactions and handing over of money and execution of

promissory note was in favour of the wife of the complainant, the

question of there being any outstanding as far as the complainant

is concerned is unacceptable. There is no legally enforceable debt to

attract an offence under Section 138 of the Negotiable Instruments

Act against the accused.

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. For the aforementioned reasons, there are no grounds to

interfere with the judgment of the trial Court.

10. Accordingly, the Criminal Appeal is dismissed. As a sequel

thereto, miscellaneous petitions, if any, pending, shall stands

closed.

__________________ K.SURENDER, J Date: 08.11.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.662 OF 2010

Date: 08.11.2022.

kvs