Smt. Vaishali Devidas Swamy, ... vs Smt. K. Seetha Maha Lakshmi, ...
2022 Latest Caselaw 5223 Tel

            HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.854 of 2010
JUDGMENT:

1. The appellant/complainant is questioning the

correctness of dismissal of complaint filed under Section 138

of the Negotiable Instruments Act filed against the

respondent/accused vide judgment in CC No.551 of 2009

dated 24.04.2010 passed by the XV Additional Judge-cum-XIX

Additional Chief Metropolitan Magistrate, Hyderabad.

2. The case of the complainant is that she is acquainted

with the accused over a period of five years and the accused

borrowed an amount of Rs.6,60,000/- as hand loan. The said

hand loan was given in the presence of two witnesses namely

K. Hanumanth Rao and P. Rama Rao, who acknowledged in

the promissory note as witnesses. To repay the said amount,

four cheques were issued for an amount of Rs.6,60,000/- on

different dates. All the said cheques when presented for

clearance, the same were returned on 29.04.2008 with an

endorsement 'insufficient funds'. Aggrieved by the dishonour

of the cheques, the complainant issued legal notice dated

17.05.2008 under Ex.P10, which is office copy of legal notice.

Reply was also given by the accused which is marked as

Ex.P15.

3. Learned Magistrate, having examined the complainant as

P.W.1 and marking Exs.P1 to P15 found that the accused was

not guilty of the offence under Section 138 of the Negotiable

Instruments Act for the following reasons; i) Though

complainant stated that the accused was a family friend for

five years, during the course of cross-examination she

admitted that she met the accused for the first time only in

January, 2007, as such, the very claim of the complainant

that Rs.6,60,000/- was advanced within a span of one month

of acquaintance cannot be believed; ii) Though two witnesses

to the alleged transaction and signatories to Ex.P1 promissory

note, the complainant failed to examine any one of them; iii)

The defence taken by the accused that her brother, to harass

the accused, misused the cheques which were in his

possession and has taken the services of the

complainant/P.W.1 to file false complaint appears to be

correct; iv) though the accused was living in a different

district, which is Guntur and the complainant was living in

Hyderabad, the very transaction of lending money in the back

ground of admissions made during cross-examination

discredits the evidence of the complainant.

4. Learned counsel for the appellant submits that since

signatures on the cheques are admitted, the learned

Magistrate erred in acquitting the 1st respondent on the basis

of her defence, which is highly improbable. Once the

signatures on the cheques are admitted, the presumption is

attracted for the offence under Section 139 of the Negotiable

Instruments Act and the accused failed to rebut the said

presumption, for which reason, the acquittal recorded has to

be reversed.

5. Having perused the record, there is no evidence with

respect to the financial condition of the appellant. No

document is filed to show that the appellant had the capacity

to advance such huge amount. Admittedly, appellant met the

1st respondent for the first time in the month of January, 2007

and it is highly improbable that P.W.1 would have advanced

an amount of Rs.6,60,000/- to the 2nd respondent, who was

resident of Guntur. The claim of P.W.1 in the complaint and

chief examination that she knew the 1st respondent for five

years, for which reason, the amount was given as hand loan is

belied by her own admission in the cross-examination.

Apparently, the appellant has made false claims of

acquaintance with the 1st respondent to say that the said

amount was advanced.

6. The burden which lies on the 1st respondent is one of the

preponderance of probability and the same can be discharged

on the basis of oral and documentary evidence produced by

the complainant. The 1st respondent need not enter into the

witness box to state her defence. On the face of the record,

the very genesis of the complaint appears to be made up and

false. The fact that P.W.1 was a disciple of brother of the 1st

respondent with whom she had differences was not specifically

denied by P.W.1. When there were good relations in between

the 1st respondent and her brother to run her business,

cheques were handed over to her brother, according to the

defence of the 1st respondent. The said defence taken by the

1st respondent probablises in the back ground of the false

claim made by P.W.1 regarding acquaintance and also non

examination of any of the independent witnesses to the

promissory notes. Though it is not required to examine

independent witnesses and only on the basis of the

dishonoring of cheques, presumption can be maintained,

however, in the present facts of the case, when P.W.1's version

appears to be false. The said version of P.W.1 needed

corroboration.

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

Nagesh v. State of Andhra Pradesh1 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

(2013) 11 supreme court Cases 688

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.

8. The findings of the learned Magistrate cannot be

interfered with as the same are based on record and

reasonable conclusions. In a case of acquittal, the question of

interference would arise only when the findings of the trial

court are not based upon the evidence and unreasonable. This

Court does not find any such unreasonableness in the

findings of the learned Magistrate. In view of the above facts

and circumstances, the appeal deserves to be dismissed.

9. Accordingly, the Criminal Appeal is dismissed.

__________________ K.SURENDER, J Date: 20.10.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.854 of 2010

Date: 20.10.2022.

kvs