M.V.Reddy, vs Valanakatti Srinivas And ...
2022 Latest Caselaw 5374 Tel

                   HON'BLE SRI JUSTICE K.SURENDER

                   CRIMINAL APPEAL No.850 of 2010
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.79 of 2009

dated 01.08.2009 passed by the XIV Additional Judge-cum-XVIII

Additional Chief Metropolitan Magistrate, Hyderabad, the present

appeal is filed.

2. The case of the complainant is that the accused approached

him for hand loan of Rs.3.00 lakhs. The complainant on an

undertaking given by the accused, lent the said amount as he

promised that he would repay the said amount with 2% interest.

The said amount was given as hand loan on two different dates in

November 2003. Accused executed two promissory notes and issued

two post dated cheques. When requested, the accused asked the

cheques to be presented in the month of December 2003.

Accordingly, the said cheques were presented and they were

returned unpaid for the reason of 'funds insufficient'. The

complainant issued a legal notice and the said notice was received

by the wife of the accused. Since the accused failed to pay the

amount covered by the cheques, a complaint under Section 138 of

the Act was filed.

3. Learned Magistrate, having considered the evidence of the

complainant, who examined himself as P.W.1 and marked Exs.P1 to

P9 found the accused not guilty for the following reasons;

i) P.W.1 admitted that the accused used to visit Prabhanjan

Finance where P.W.1 was working as Accounts Officer and also

admitted that the accused was obtaining loans from the said

finance company;

ii) During the course of taking loans as per the defence of the

accused, pronotes and cheques were given, which were taken by the

complainant and misused to file the present complaint;

iii) Admittedly, the writings in every document, Exs.P1 and P2

pronotes and on the cheques Exs.P3 and P4, were in different hand

writings made by more than one person in each of the document,

which is not explained;

iv) Alleged attestors to pronotes were not examined.

4. Learned counsel for the complainant would submit that when

the signatures on the cheques are admitted, learned Magistrate

erred in recording acquittal on untenable grounds. Further when

the signatures on cheques are admitted, presumption under

Section 139 of the Act is attracted and the accused miserably failed

to discharge his burden. The finding of the learned Magistrate that

the complainant has not taken steps to examine the wife of the

accused, who signed Ex.P9 acknowledgment card is totally

erroneous and based on such erroneous findings, the accused was

acquitted. Accordingly, learned counsel for the complainant prayed

for reversal of the judgment of the learned Magistrate and convict

the accused.

5. The defence of the accused is that the said cheques and

pronotes in blank were given in Prabhanjan Finance, which was

situated at S.R.Nagar and admittedly, P.W.1 was working as an

Accounts Officer in the said finance company. The said relation

was suppressed in the complaint and also in the notice that was

issued. The cheques are old cheques which were drawn on Global

Trust Bank Limited and the said Bank later merged with Oriental

Bank of Commerce. On the said basis also, the ground taken by the

accused that cheques which were given to Prabhanjan Finance

being misused, cannot be totally brushed aside.

6. In respect of other circumstances regarding non-examination

of the attesters to the pronotes gain significance in the back ground

of the defence taken by the accused. In the event of examining the

witnesses, who have signed on the pronotes, would lend credibility

to the version of P.W.1/complainant. Admittedly, the writings in

Ex.P1 pronote Ex.P2 and also the cheques are in different hand

writings. The said factors also lend credibility to the defence of the

accused. The burden, which shifts on to the accused, can be

discharged by preponderance of probability. Collectively when all

the circumstances are viewed, the burden that is on the accused is

discharged as the defence taken by the accused is probable and

based on evidence both oral and documentary.

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

(2013) 11 supreme court Cases 688

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.

8. Only for the reason of there being another view, which is

possible on 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 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 is possible to convict the accused.

9. 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.

10. Accordingly, the Criminal Appeal is dismissed.

__________________ K.SURENDER, J Date: 27.10.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.850 of 2010

Date: 27.10.2022.

kvs