P.Mahalakshmi vs The State Of A.P. Another
2022 Latest Caselaw 5373 Tel

              HON'BLE SRI JUSTICE K.SURENDER

              CRIMINAL APPEAL No.1544 of 2009
JUDGMENT:

1. The appellant/complainant is questioning the acquittal of the

respondent/accused for the offence under Section 138 of the

Negotiable Instruments Act vide judgment in CC No.1043 of 2003

dated 31.12.2007 passed by the III Additional Chief Metropolitan

Magistrate, Hyderabad.

2. The case of the complainant is that out of acquaintance, the

accused borrowed an amount of Rs.1,50,000/- loan and executed

promissory note on 25.05.2002 agreeing to repay the said amount

with interest at 24%. However, on repeated requests, the cheque

dated 10.03.2003 was given to discharge her outstanding. The said

cheque when presented for clearance was returned on 18.07.2003.

Legal notice was issued on 22.07.2003. However, having received

the said notice, accused sent reply notice on 28.07.2003 denying

the outstanding. Aggrieved by non-payment of the amount covered

by the cheque, complaint was filed.

3. During the course of trial, complainant examined herself as

P.W.1 and another witness P.W.2 and marked Exs.P1 to P9.

4. In defence, the accused examined herself as D.W.1 and also

LIC Housing Finance Area Manager as D.W.2 and Exs.D1 to D9

were also brought on record by the accused.

5. Learned Magistrate acquitted the accused on the following

grounds; i) The version of P.W.1 in chief examination and cross-

examination regarding the amount outstanding are totally contrary

and inconsistent; ii) though in chef examination, she stated that

Rs.1,50,000/- was given in cash, whereas in cross-examination,

PW.1 stated that the amount was given to builders and financiers;

iii) Though, promissory note was executed, the same was not filed

in the Court and an adverse inference can be drawn; iv) On the

basis of Exs.P6 to P9, it is evident that the complainant used to

collect blank pronotes and documents.

6. Learned counsel for the complainant would submit that since

the signatures on the cheque are admitted, presumption is

attracted and the accused failed to rebut the presumption. The

version given by the accused is highly improbable and the learned

Magistrate has erred in concluding that the complainant failed to

substantiate that there was outstanding covered by the cheque in

question. For the reason of incorrect conclusions drawn by the

learned Magistrate, the judgment of acquittal has to be reversed.

7. The case of the accused is that the complainant had helped in

providing finance through Lakshmi Finance, Vasu Finance and loan

amount to the said financiers was discharged. In the process of

obtaining loans from others, the complainant and her husband

used to obtain signatures on promissory notes and loans were

arranged from LIC also. The said cheques which were given towards

security were not returned by the complainant and misused to file

the present complaint. For the reason of the documents being held

with the complainant, an altercation ensued, for which, the

husband of P.W.1 and her son also abused and threatened the

accused, for which reason, accused lodged complaints. The accused

also executed receipts Exs.D1 and D2 and also complaint was filed

with LIC. Since the husband of P.W.1 and her son manhandled the

accused, complaint was also filed before the SCs & STs

Commission, which is marked as Ex.D6.

8. The burden which shifts on to the accused under Section 139

of the Negotiable Instrument Act can be discharged by

preponderance of probability. It is not for the accused to deny and

prove each and every statement made by the complainant, however,

on the basis of the documents filed by the accused and also other

circumstances, the accused can discharge his or her burden.

9. Having considered all the documents, it is apparent that the

accused had obtained loans from various financiers and also

aggrieved by the conduct of P.W.1 and her husband, she lodged

complaint with SC & ST Commission. At the earliest point of time,

when notice was sent by P.W.1 regarding the return of cheque,

immediately the accused replied by narrating her defence that

there was no outstanding covered by the cheque and said cheque

was misused. During the course of trial, the accused entered into

witness box and produced documents to substantiate her version

that the cheques which were given towards security to other

financiers were misused.

10. 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.

11. Though two views are possible when the view taken by the

learned Magistrate is also probable, only for the reason of the Court

being able to arrive at a different conclusion, the appellate Court

while dealing with the case of acquittal, cannot interfere with such

acquittal on the ground that another view and conclusions are

possible. As stated supra, the conclusions of the learned

Magistrate are based on record, reasonable and probable. The

(2013) 11 supreme court Cases 688

appellate court cannot interfere to reverse the judgment of

acquittal.

12. For the aforementioned reasons, the appellant failed to make

out a case for reversing the judgment of acquittal.

13. Accordingly, the Criminal Appeal is dismissed.

__________________ K.SURENDER, J Date: 27.10.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1544 of 2009

Date: 27.10.2022.

kvs