Addanki Rama Rao, vs The State Of A.P., Rep By Pp., And ...
2022 Latest Caselaw 5093 Tel

             HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.665 of 2010
JUDGMENT:

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

the judgment of the learned I Additional Sessions Judge at

Khammam in Criminal Appeal No.114 of 2007, dated

07.07.2009 acquitting the 2nd respondent/accused for the

offence under Section 138 of the Negotiable Instruments Act

by reversing the judgment of the II Additional Judicial

Magistrate of First Class, Khammam vide judgment in CC

No.1 of 2004 dated 13.08.2007 convicting the 2nd

respondent/accused.

2. The case of the appellant is that out of acquaintance

with the 2nd respondent, he provided an amount of

Rs.95,000/-on 01.12.2002. On the day of taking the

amount, the 2nd respondent executed a promissory note

towards collateral security and agreeing to repay the same

with interest at the rate of 24% per annum. Towards

repayment, the 2nd respondent issued cheque Ex.P1 for an

amount of Rs.95,000/-. The said cheque when presented

for clearance, was returned for the reason of 'insufficient

funds' on 28.11.2003. The appellant issued a registered

legal notice calling upon the 2nd respondent to repay the

cheque amount. However, the present complaint was filed

as the 2nd respondent failed to pay the amount covered

under Ex.P1 cheque within 15 days of receipt of the notice.

3. The appellant examined himself and another as P.Ws.1

and 2 respectively and marked Exs.P1 to P5. The 2nd

respondent examined himself as D.W.1. The learned

Magistrate found that (i) the signature on the cheque Ex.P1

was tallied with the specimen signature of the 2nd

respondent in the Bank, (ii) non production of the

promissory note before the Court is not fatal to the

complainant's case, (iii) the 2nd respondent admitted that

the address mentioned on the returned postal cover was the

correct address and he was residing in the said address.

4. On appeal, the learned Sessions Judge reversed the

judgment of conviction on the following grounds; i) the 2nd

respondent/accused himself examined as D.W.1 entered

into the witness box and stated that he did not take any

money and did not execute ay promissory note; ii) Except

the evidence of appellant, there is no other evidence on

record regarding borrowing of the amount; iii) Though

complainant claimed that promissory note was executed, no

explanation is offered by the appellant as to why he did not

file the promissory note.

5. On the basis of the above, the learned Sessions Judge

reversed the order of conviction and acquitted the 2nd

respondent/accused.

6. The signatures on the cheque are admitted. It is not

the case of the 2nd respondent that the cheque was

subjected to theft or that the signatures are not that of his.

Merely denying the borrowing of money would not repel the

presumption that is attracted under Section 139 of the

Negotiable Instruments Act when the signatures on the

cheque are admitted. It is not mandatory that the

promissory note has to be filed before the Court. The

issuance of cheque in itself would be sufficient to attract the

presumption under Section 139 of the Act and for the

reason of either not filing the promissory note or not giving

explanation regarding the promissory note alleged to have

been executed by the 2nd respondent is not sufficient to

rebut the presumption.

7. The findings of the learned Magistrate regarding the

outstanding of the amount and liability are restored. The

finding of the learned Sessions Judge in Criminal Appeal

No.114 of 2007 is set aside. However, since the transaction

is of the year 2002, this Court deems it appropriate to

convict the 2nd respondent/accused for the offence under

Section 138 of the Negotiable Instruments Act and impose

fine of Rs.1,30,000/- out of which, the 2nd

respondent/accused is directed to pay Rs.1,25,000/- to the

appellant/complainant within a period of three months from

the date of receipt of a copy of this order, failing which, the

2nd respondent/accused shall undergo simple imprisonment

for a period of six months.

8. Accordingly, the Criminal Appeal is allowed.

__________________ K.SURENDER, J Date: 13.10.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.665 of 2010

Date: 13.10.2022.

kvs