A.Narasimha Reddy, vs A. Gunavardhan Reddy,
2022 Latest Caselaw 4491 Tel

             HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.1190 OF 2010
JUDGMENT:

1. The appellant/complainant is questioning the

correctness of the judgment in CC NO.351 of 2008 dated

09.07.2010 passed by the XV Additional Judge-cum-XIX

Additional Chief Metropolitan Magistrate, Hyderabad

acquitting the respondent/accused for the offence under

Section 138 of the Negotiable Instruments Act.

2. The case of the appellant is that the respondent was a

contractor doing cable works for telephone department in the

name of Sri Venkata Sai Constructions. While undertaking the

work of laying underground cable in Nizamabad and other

areas, the respondent invited appellant for execution of the

work and entered into partnership deed on 18.04.2001 and

agreed to share the profits. After completion of the work, when

the accounts were settled, the respondent fell due an amount

of Rs.43,94,616/- for which, the cheque in question Ex.P1 was

issued. However, when the appellant sent the cheque for

clearance, the same was returned on 09.11.2004 under Ex.P2.

The office copy of the legal notice dated 24.11.2004 is Ex.P3.

After receiving the said notice, the respondent gave reply

notice dated 09.12.2004 which is Ex.P4. The appellant also

marked the partnership deed in between the appellant and the

respondent, which is Ex.P5. Ex.P6 is the letter dated

19.04.2001 given by the respondent to the appellant. Ex.P7 is

the final settlement of account/ understanding in between the

appellant and the respondent.

3. The appellant examined himself as P.W.1 and two others.

The respondent/accused examined himself as D.W.3 and also

two other witnesses, D.Ws.1 and 2 and marked Exs.D1 to D29

in support of his defence.

4. Learned Magistrate found the respondent not guilty of

the offence under Section 138 of the Negotiable Instruments

Act on the following grounds;

i) The appellant had completed the contract work under

Ex.P5 partnership deed prior to 13.11.2003 and there was no

question of any kind of settlement on 13.11.2003.

ii) Ex.D1 is the settlement that was in between the

appellant and the respondent, which is dated 13.11.2003 in

which P.W.1 accepted that full and final settlement of the

accounts and they have received Rs.17.00 lakhs towards the

said final settlement, Ex.D1 was admitted by the appellant.

iii) When Ex.D1 is accepted, the issuance of Ex.P1

becomes doubtful.

iv) After settlement on 13.11.2003, it cannot be believed

that a cheque was given and appellant waited till 15.05.2004

for presenting the cheque for Rs.43,94,616/-.

v) The cheque in question bearing No.58227 is dated

15.05.2004, however the next cheques in the booklet bearing

Nos.058228 to 058247 were encashed in between 10.12.2002

and 10.07.2004, as such, it cannot be believed that the

subsequent cheque No.058228 was issued on 10.12.2002 and

the prior cheque which Ex.P1 bearing No.058227 was issued

on 15.05.2004.

vi) The defence of the respondent that the cheque was

misused by the appellant is probable and the respondent has

discharged his burden under Section 139 of the Act.

5. The learned counsel for the appellant submits that the

trial Court committed error in accepting the defence that was

placed by the respondent. When the signatures on the cheque

was accepted by the respondent, the Court has to draw

presumption and it cannot be said that the respondent has

discharged his burden even by preponderance of probability.

The appellant relied upon the judgment of the Hon'ble

Supreme Court in Criminal Appeal Nos.1233 to 1235 of 2022

in the case of P.Rasiya v. Abdul Nazer.

6. Having gone through the record and evidence in support

of the appellant and the respondent, the findings of the

learned Special Magistrate cannot be found fault with it. The

respondent has discharged his burden by producing both oral

and documentary evidence and in the facts and circumstances

of the present case, the appellant has failed to prove that the

amount covered by the cheque is an outstanding or debt that

has to be paid by the respondent. As the findings of the

learned Magistrate which are stated above are reasonable and

based on record there can be no interference in the appeal

against acquittal.

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

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.

(2013) 11 supreme court Cases 688

8. For the foregoing reasons, the appellant failed to convince

this Court to interfere the well reasoned judgment of the trial

court.

9. Accordingly, Criminal Appeal fails and the same is

dismissed.

__________________ K.SURENDER, J Date: 08.09.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1190 OF 2010

Date: 08.09.2022.

kvs