V. Mahender Reddy, vs R.Sujatha And Another,
2022 Latest Caselaw 5971 Tel

           HON'BLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No.1135 of 2010
JUDGMENT:

1. Dismissal of the complaint by the learned XVI Additional

Judge-cum-XX Additional Chief Metropolitan Magistrate,

Hyderabad vide judgment in CC NO.93 of 2008 dated

29.12.2009 is questioned by the complainant in this appeal.

2. According to the complainant, he was acquainted with

the accused and on 21.04.2003, an amount of Rs.2.00 lakhs

was given as hand loan. After repeatedly asking to repay the

said amount, cheque dated 28.04.2004 for Rs.2.00 lakhs was

given. The said cheque, when presented for clearance on

30.04.2004 was returned unpaid with an endorsement

'account closed'. A legal notice was issued on 06.05.2004,

which was received by the accused on 07.05.2004. Since the

amount covered by the cheque was not paid, having received

notice, complaint was filed under Section 138 of the Negotiable

Instruments Act.

3. Complainant examined himself and another as P.Ws.1

and 2 and marked Exs.P1 to P7. In defence, the accused

entered into witness box and also marked Exs.D1 to D17.

4. Having considered the rival contentions of the

complainant and the accused, the learned Magistrate found

that the accused was not guilty of the offence under Section

138 of the Negotiable Instruments Act on the following

grounds; i) execution of the promissory note Ex.P1 dated

21.04.2003 is doubtful as the address mentioned in Ex.P1

would be P & T Colony, Gandhinagar area and not

Chikkadpally.(ii) Ex.P1 was fabricated after the complainant

shifted his residence to Chikkadapally. (iii) The accused filed

police complaint against one Jyothi Chowdary under Exs.P14

and P15 before the Musheerabad Police Station for the offence

of cheating, breach of trust and extortion. The relevancy is

that both the complainant and the accused purchased

tailoring units from Jyothi Chowdhary, who sold 50% of her

share in her tailoring unit to the accused initially and the

other 50% to the complainant.

5. Learned Magistrate further found that it is also admitted

that subsequently accused purchased 50% share of the

complainant also in the tailoring unit and paid his share

amount to him. Since the complainant had friendly terms with

Jyothi Chowdary, handed over some cheques given by the

Fantoosh India to Jyothi Chowdary and he admitted the job

work cards containing his signatures which are marked as

Exs.D1 to D11 which were given by Fantoosh India and

admitted that Ex.D1 to D11 pertains to the work done by

Jyothi Chowdary and stated that he used to help Jyothi

Chowdary and used to accompany her and used to go to

Fantoosh on her behalf. It is also admitted that both Exs.P1

promissory note dated 21.04.2003 and Ex.P2, cheque contain

the signature of the accused, but mere admission of signature

is not amounting to admission of execution. It is also an

admitted fact that by the date of Ex.P1, the complainant was

residing in P & T Colony, but not in Chikkadapally. It is also

admitted that the complainant submitted Ex.D12 application

to BSNL authorities for shifting of telephone to Chikkadapally

address from P & T Colony I the month of August, 2003.

6. From the transactions, it is apparent that the learned

Magistrate found that there was no hand loan as claimed by

the complainant and the accused has discharged her burden

by entering into the witness box and also producing the

documents.

7. Learned counsel for the complainant relied upon the

judgment of the Hon'ble Supreme Court in the case of

Rangappa v. Mohan1 and argued that the observations made by

the learned Magistrate in Krishna Janardhan Bhat v. Dattatraya

G.Hegde2 may not be correct. The Hon'ble Supreme court in

Rangappa's case did not overrule the judgment in Krishna

Janardhan Bhat v. Dattatraya G.Hegde. However, the Hon'ble

Supreme Court held that if the accused is able to raise the probable

defence, which creates doubts about a legally existing debt or

liability, the prosecution can fail. As discussed above, the accused

has discharged her burden by preponderance of probabilities.

2011(1) SCC (Cri) 184

2008 (1) ALD Crl.485

8. In Jafarudheen and others v. State of Kerala3 and

Rajesh Prasad v. State of Bihar and another4, the Hon'ble

Supreme Court held that in case of acquittal, presumption is

in favour of the accused. Unless there are glaring mistakes or

any erroneous view of law is taken, the appellate Courts

cannot interfere with the judgment of the acquittal. The

Hon'ble Supreme Court further held that it has to be shown

that there was miscarriage of justice and while dealing with

the evidence, the Court committed an error and improperly

considered and adjudicated the case.

9. In the case of Section 138 of Negotiable Instruments Act,

the initial burden is always on the complainant. Once the

complainant discharges his burden, the burden shifts on to

the accused and in the present case, the accused has

discharged her burden by producing documentary evidence in

support of her defence. The conclusions drawn regarding

fabrication of Ex.P1 promissory note and also the reasons for

(2022) 8 SCC 440

(2022) 3 SCC 471

false implications are on the basis of evidence adduced during

the course of trial and it cannot be said that the findings are

unreasonable or erroneous. For the said reasons, this Court

does not find any reason to interfere with the well reasoned

judgment of the learned Magistrate.

10. For the reasons discussed in the preceding paras, the

appeal fails and the same is accordingly dismissed.

__________________ K.SURENDER, J Date: 17.11.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1135 of 2009

Date: 17.11.2022.

kvs