L. Vijaya Bhaskar Reddy vs Mohd. Afzal And 1 Other
2022 Latest Caselaw 5511 Tel

               HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.1140 OF 2009
JUDGMENT:

1. This Criminal Appeal is filed by the

Appellant/Complainant aggrieved by the acquittal recorded

by the XIV Additional Judge-cum-XVIII Additional Chief

Metropolitan Magistrate at Hyderabad, in C.C.No.3 of 2008,

dated 09.03.2009, acquitting the accused for the offence

punishable under Section 138 of the Negotiable Instruments

Act.

2. Heard learned counsel for the appellant, Sri

R.K.G.Bhatia for 1st respondent/accused and Sri

S.Sudershan, learned Additional Public Prosecutor for 2nd

respondent-State and perused the record.

3. The case of the appellant/complainant is that he had

advanced an amount of Rs.2,95,000/- on different dates in

the year 2004-2005 and also obtained Promissory Notes. The

Accused has given two cheques towards discharge of the

entire amount, however, the said cheques were unpaid for the

reason of insufficient funds in the account of the Accused.

The said fact was intimated by sending legal notice which was

received by the accused. For the reason of failure to make

good, the amounts covered by the cheques, after the notice

was issued, the present complaint was filed.

4. Learned Magistrate examined PW1-complainant and

marked Exs.P1 to 15; and in defence the accused examined

two witnesses i.e. DW1 and himself examined as DW2 and

also marked Exs.D1 to D14.

5. Learned Magistrate after considering the evidence

produced by the complainant and the accused, found that

letters Exs.P13 and P14 which were allegedly issued by the

accused were in fact not proved by the complainant and

appears to have been fabricated. Further, the learned

Magistrate found that the appellant had no licence to give the

amounts. He has failed to prove that the amounts were paid

to the accused and also did not file any Income-tax returns,

which was submitted for the relevant years.

6. Learned Counsel for the appellant submits that in fact

when the signatures on the cheques are admitted, there is a

presumption which is attracted under Section 139 of the

Negotiable Instruments Act. Since the accused failed to rebut

the presumption even by preponderance of probability, the

finding of the learned Magistrate has to be reversed and the

accused has to be convicted.

7. On the other hand learned counsel for 1st

respondent/Accused submits that cheques were also given as

security and amounts have been discharged; and that for the

reason of not returning the cheques, false claims were made

by the complainant.

8. Learned Magistrate having gone through the entire

evidence on record and also the defence documents filed on

behalf of accused, found that there were transactions in

between the appellant and the accused, however, the

complainant has neither filed any civil suit for recovery of

amounts nor provided any proof to the Court that he was in

fact having licence to advance money by way of loans. There

was a finding that Exs.P13 and P14 were also fabricated and

the learned Magistrate found that they are doubtful and not

trust-worthy.

9. In cases of appeals against acquittal, the appellate Court

while deciding an appeal cannot interfere with the order of

acquittal unless there are cogent and convincing reasons to

say that the finding of the learned Magistrate while recording

the acquittal are contrary to the record and improbable.

10. As seen from the evidence adduced, the pro-notes were

old and they are barred by limitation. In fact, blank cheques,

even according to the Magistrate, were filled up subsequently

to prosecute the accused. There are several inconsistencies in

the evidence of PW1 and he contradicted himself regarding

his statements made in the chief-examination, during the

course of his cross-examination. Collectively, the basis on

which the learned Magistrate has recorded the order of

acquittal are reasonable, for which I do not find any ground

to interfere with the order of acquittal recorded by the trial

Court.

11. Accordingly, the Criminal Appeal is dismissed.

As a sequel thereto, miscellaneous applications, if any,

shall stand closed.

_________________ K.SURENDER, J Date:31.10.2022 tk

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1140 OF 2009

Dated: 31.10.2022

tk