Telangana High Court
A.N.Reddy vs Smt. B.Sumithra The State Of A.P. on 16 September, 2022
Bench: K.Surender
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.885 of 2008
JUDGMENT:
1. This Criminal Appeal is filed aggrieved by the judgment of
the learned II Additional Metropolitan Sessions Judge in
Crl.A.No.420 of 2007, dated 18.02.2008 reversing the
judgment of conviction passed in CC No.226 of 2003 by the IX
Additional Chief Metropolitan Magistrate at Hyderabad
convicting the appellant for the offence under Section 138 of
the Negotiable Instruments Act and sentenced to undergo
rigorous imprisonment for a period of six months and to pay
fine of Rs.3,000/-, in default, to suffer simple imprisonment
for one month under Section 138 of the Negotiable
Instruments Act.
2. For the sake of convenience, the parties herein after will
be referred to as arrayed in the trial court. The case of the
complainant is that the accused borrowed an amount of
Rs.1,50,000/-from the complainant on 22.04.2000 under
Ex.P1 promissory note. Thereafter, in discharge of her debt, a
cheque for Rs.1,50,000/- was given vide Ex.P2 dated
05.08.2002. The said cheque when presented for clearance
was returned unpaid on 07.08.2002. Accordingly, legal notice
was issued. Since the accused failed to pay the said amount
covered by the cheque, after issuance of legal notice, private
complaint was filed.
3. The complainant examined himself as P.W.1 and also
examined the sister of the accused as PW.2 and marked
Exs.P1 to P7. The accused examined herself as D.W.1.
4. The learned Magistrate found that the accused was guilty
of the offence under Section 138 of the Negotiable Instruments
Act and sentenced her to imprisonment as stated supra. The
said conviction was questioned before the learned Sessions
Judge, wherein the learned Sessions Judge reversed the
judgment of the learned Magistrate on the following grounds:
i) Ex.P1 pronote did not contain the address particulars
of the complainant and also the particulars of the accused.
The column regarding the rate of interest is blank and the
column regarding the security is also kept blank. If the
pronote Ex.P1 was executed, the complainant ought not to
have allowed Ex.P1 pronote to be incomplete.
ii) The presence of P.W.2 is doubtful as her presence was
not mentioned in the complaint or in the chief examination of
PW1 or in Ex.P5 notice. It was suggested to the accused that
at the time of borrowing and execution of Ex.P1 pronote, P.W.2
received the said amount from the complainant and handed
over to the accused. However, P.W.2 did not state that she
had taken money and handed over to the accused.
iii) There is variation regarding the date of borrowing in
between P.Ws.1 and 2. The contrary versions and not
mentioning details in the pronote were enough to rebut
presumption.
iv) The complainant also failed to prove that there was
service of notice as required under law.
5. Learned counsel for the complainant submits that the
learned Sessions Judge has erred in reversing the finding of
conviction by the learned Magistrate Court. The learned
Magistrate has correctly convicted the accused finding that
the notice was served on the accused and also Ex.P1 pronote
substantiates the claim of the complainant that the amount
was received by the accused. He further argued that since the
signatures on pronote and the cheque were admitted,
presumption has to be drawn.
6. As seen from the record, the learned Sessions Judge has
reversed the judgment on the ground that there is no proof of
service of the statutory notice on the accused. Though Ex.P6
is the letter addressed to the Post Master General dated
11.09.2002 and Ex.P7 letter was issued by the Postal
authorities dated 18.09.2002 in reply to Ex.P6. However the
documents do not confirm that the address mentioned in
Ex.P5 legal notice is that of the accused. The learned Sessions
Judge has rightly found that, there is no explanation as to
why the postal receipts were not produced. Further, the postal
authorities who issued Ex.P7 was also not examined, for
which reason, no sanctity can be attached to ExP7 and
learned Sessions Judge found that there was no service of
notice.
7. The finding of the learned Sessions Judge regarding the
contrary statements of P.Ws.1 and 2 as to giving of Rs.1.50
lakhs to the accused and also for the reason of the
complainant failing to prove that the notice was in fact served
on the accused, the said finding is probable and reasonable.
8. 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
(2013) 11 supreme court Cases 688
implication. But then, this has to be established on record of
the Court.
9. The finding of the learned Sessions cannot be said to be
unreasonable, warranting interference by this Court in appeal.
10. Accordingly, the Criminal Appeal is dismissed.
_________________
K.SURENDER, J
Date:16.09.2022
kvs
THE HON'BLE SRI JUSTICE K.SURENDER
Crl.A.No.885 of 2008
Dated:16.09.2022
kvs
