J.Seshagiri Rao vs G.Mohan Rao
2022 Latest Caselaw 5972 Tel

             HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.1623 of 2009
JUDGMENT:

1. The appellant is the complainant questioning the

correctness of the judgment of the V Additional District &

Sessions Judge (FTC), Ranga Reddy District in Criminal

Appeal No.29 of 2005, dated 13.05.2009 in reversing the

judgment of conviction in CC No.164 of 2005 dated

23.03.2005 passed by the III Metropolitan Magistrate,

Cyberabad for the offence under Section 138 of the Negotiable

Instruments Act.

2. Briefly, the facts of the case are that the accused

borrowed an amount of Rs.5.00 lakhs on different dates. The

said amount was paid by way of a pay order on 16.03.2000,

11.01.2001 and 09.02.2001. On insistence, two cheques were

issued to clear the said outstanding. When the said cheques

were presented, they were returned unpaid for the reason of

'funds insufficient'. A legal notice was issued, which was sent

to the accused on 07.06.2001 and the accused gave reply on

09.06.2001 denying his liability. Since the amount covered by

the cheque was not paid within 15 days of the receipt of the

notice, complaint was filed.

3. Since two cheques for Rs.2.50 lakhs each were issued,

two separate complaints were filed. Both the complaints in CC

Nos.163 and 164 of 2005 were disposed off by the learned

Magistrate convicting the accused for the offence under

Section 138 of the Negotiable Instruments Act vide two

separate judgments dated 23.03.2005.

4. On appeal, learned Sessions Judge reversed the findings

of the learned Magistrate believing the defence taken by the

accused.

5. The defence of the accused is that he was not present on

the dates when the cheque in question was issued and he was

at Visakhapatnam. The accused stated that two persons

namely K.Y.Sridhar and Ramakrishna created a false liability

and took the services of the complainant to file a false

complaint. The reason cited by the accused was that he was

the Managing Director of the company in which the said

Udaya Bhaskar and K.Y.Sridhar were associates in the said

company.

6. Due to differences, the accused left the company and

went to Visakhapatnam. However, both the persons misused

the cheques which were kept for usage during the course of

business while running the company to create false liability.

For the reason of such criminal acts, the accused gave a

complaint dated 01.04.2002 to the Director of Vigilance and

Enforcement, which was pending before the Court in

Visakhapatnam.

7. The accused entered into the witness box and produced

the relevant document Exs.D1 to D21.

8. On the basis of the defence taken by the accused, the

learned Magistrate found that since there were pay-in slips

which are Exs.P1 to P3, the accused was liable to pay the

outstanding.

9. Learned Sessions Judge, on the other hand had gone into

the details of the defence taken by the accused and found the

version of the accused was probable and the accused had

discharged his burden by preponderance of probability by

producing the evidence in respect of his defence.

10. A reading of the judgment, the learned Magistrate ought

to have considered the correctness or otherwise of the defence

taken by the accused in the back ground of the documents

produced by the accused. Except narrating the defence of the

accused, the learned Magistrate found that the accused being

a Managing Director, would not have given signed cheues to

the said Udaya Bhasker and Sridhar during course of

business.

11. In the course of running a business, it is for the sake of

convenience that the authorized signatories sign cheques and

entrust to the other persons running the company. In the

present case, two days after the receipt of the legal notice from

the complainant, the accused has given a reply clearly stating

his defence regarding misuse of cheques and also about the

said persons i.e., Sridhar and Udaya Bhasker being

prosecuted by him in the criminal court. Having taken the

defence at the earliest point of time i.e., within two days after

receiving the notice, the entire circumstances that led to the

complaint was brought on record by the accused during the

course of trial by entering into the witness box and also by

producing the relevant documents. Learned Magistrate

concluded that no prudent person would issue signed cheques

during running of a company, has convicted the accused,

which was correctly reversed by the learned Sessions Judge

giving reasons on the basis of documents and circumstances.

12. In Jafarudheen and others v. State of Kerala1 and

Rajesh Prasad v. State of Bihar and another2, 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

(2022) 8 SCC 440

(2022) 3 SCC 471

the evidence, the Court committed an error and improperly

considered and adjudicated the case.

13. I do not find any compelling reasons to reverse the well

reasoned judgment of the learned Sessions Judge whereby the

entire defence of the accused borne out by the record was

discussed and considered, contrary to the finding of the

learned Magistrate, whereby the learned Magistrate, without

considering the documentary evidence, brushed aside the

defence of the accused only on the ground that issuance of

signed cheques to the other persons in the company in the

course of business could not be believed. There are no

reasons to interfere with the reasoning given by the learned

Sessions Judge in reversing the order of conviction.

14. 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.1623 of 2009

Date: 17.11.2022.

kvs