T. Narayana Rao vs S. Sujatha
2022 Latest Caselaw 5371 Tel

             HON'BLE SRI JUSTICE K.SURENDER

              CRIMINAL APPEAL No.1158 of 2009
JUDGMENT:

1. The appellant aggrieved by the acquittal of the

respondent/accused for the offence under Section 138 of the

Negotiable Instruments Act vide judgment in CC No.41 of 2005

dated 13.02.2009 passed by the XI Additional Chief Metropolitan

Magistrate, Secunderabad, filed the present appeal.

2. The case of the complainant is that he has given hand loan

of Rs.50,000/- to the accused on 06.05.2004. Ultimately on

10.09.2004, a cheque for Rs.50,000/- was given towards

repayment of the debt to the complainant. When the said cheque

was presented for clearance, the same was returned unpaid for

the reason of 'funds insufficient' on 08.10.2004. A registered legal

notice was sent on 25.10.2004 and having received the said

notice, the accused gave reply notice on 01.11.2004.

3. Learned Magistrate having examined the evidence produced

by the complainant, who examined himself as P.W.1 and marked

Exs.P1 to P5 and the evidence of accused who entered into the

witness box and examined herself as D.W.1 and also examined

another witness PW2 in support of the defence of the accused,

found that the accused not guilty of the offence under Section

138 of the Negotiable Instruments Act on the following grounds;

i) Except the oral evidence of P.W.1, there is no other

evidence to corroborate the handing over of loan amount to the

accused in the back ground of the defence of the accused of

denying totally the outstanding amount, the complainant ought

to have produced evidence in support of his claim;

ii) No proof is filed by the complainant that he was having

Rs.50,000/- at his disposal.

5. The defence of the accused was that the cheque was given

to one Tara Kumari and misused by the complainant to file a

false case. The said Tara Kumari is the friend of the wife of the

complainant. In the back ground of the complainant failing to

prove that the loan amount was advanced to the accused, the

finding of the learned Magistrate that the accused had issued the

cheque to one Tara Kumari and not to the complainant can be

accepted in the back ground of the facts and circumstances of

the present case. The trial Court had the opportunity of

examining the witnesses and also assessing the witnesses. The

learned Magistrate having conducted trial found that the

statement made by the complainant that an amount of

Rs.50,000/- being given, was found to be false. The said finding

appears to be probable, for which reason, the appeal cannot be

sustained.

6. 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 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.

7. Only for the reason of there being another view which can

be taken in the facts, the appellate Court in appeal cannot

interfere with the order of acquittal. Unless the reasons given by

the trial Court are found to be not based on record or

(2013) 11 supreme court Cases 688

improbable, the appellate Court in appeal against acquittal can

show indulgence and reverse the order of acquittal. However, in

the present case, when the reasons given by the learned

Magistrate are reasonable, this Court while adjudicating the

appeal against appeal cannot reverse the said order of acquittal

only for the reason of there being another view which can be

taken to convict the accused.

8. For the said reasons, this Court is of the view that the

findings of the learned Magistrate cannot be interfered with to set

aside the order of acquittal.

9. Accordingly, the Criminal Appeal is dismissed.

__________________ K.SURENDER, J Date: 27.10.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1158 of 2009

Date: 27.10.2022.

kvs