G.Shyamlal vs D.Narsimhulu And Another
2023 Latest Caselaw 1598 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

              CRIMINAL APPEAL No.1147 of 2018

JUDGMENT :

This appeal is filed by the complainant, challenging the

judgment dated 30.06.2017 in C.C.No.40 of 2014 on the file of IX

Special Magistrate, Hyderabad, whereby, the accused/respondent

No.1 has been acquitted of the charge for the offence under Section

138 of the Negotiable Instruments Act.

2. Heard learned counsel for the appellant. None appeared for

respondent No.1.

3. It is the contention of the learned counsel for appellant that

the appellant/complainant got acquaintance with the accused/

respondent No.1 through a common friend by name, Sandeep Lal.

Out of the said acquaintance, on 23.01.2014, the appellant has

advanced hand-loan of Rs.3,00,000/- to the accused, who has

agreed to repay the same within six months and executed a

promissory note to that effect. Since the amount was not repaid

even after six months, on demand by the appellant, the accused

issued a cheque bearing No.957144, dated 13.08.2014 for

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Rs.3,00,000/-, drawn on State Bank of India, Gowliguda branch in

discharge of the legally enforceable debt. When the appellant

presented the said cheque in his bank, the same was dishonored

with an endorsement, "Funds Insufficient" along with the cheque

return Memo dated 16.08.2014.

4. It is the contention of the learned counsel for appellant that

the appellant had personally visited the office of the accused to

intimate about dishonor of the cheque and also issued legal notice

dated 08.09.2014 through registered post and also through courier,

demanding him to repay the amount, but the said postal covers

were returned with an endorsement "Not claimed". On

17.09.2014, the notice sent through courier was served on the

accused, for which, he issued reply notice denying all the

allegations about issuing cheque to the complainant or executing

promissory note. It was the specific plea of the accused that he

issued a cheque as a guarantor for the amount borrowed by one

O.P.V.N.V.Prasad Rao and that he had no acquaintance with the

complainant and had never seen him.

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5. Before the trial Court, PWs.1 and 2 were examined on behalf

of complainant and Exs.P-1 to P-10 were got marked. No evidence

was adduced on behalf of the accused.

6. The trial Court, after considering the entire material on

record, has come to the conclusion that the complainant has no

financial capacity to advance loan of Rs.3,00,000/- and accordingly

dismissed the complaint acquitting the accused for the offence

punishable under Section 138 of the Negotiable Instruments Act.

7. It is the contention of the learned counsel for the

appellant/complainant that the complainant has proved that he has

advanced loan of Rs.3,00,000/- to the accused under

Ex.P-1/promissory note and Ex.P-2/cheque, which was duly signed

by the accused and given by him. Inspite of receiving the notice,

the accused did not repay the amount, therefore, the presumption

under Section 139 of Negotiable Instruments Act is to be taken into

account.

8. On considering the entire record, it is evident that the

complainant has pleaded before the Court that he is running a

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software Company. But no document is filed to prove the same.

Furthermore, no document was filed before the Court to show that

he had financial capacity to advance hand-loan of Rs.3,00,000/- to

the accused. The initial burden is always on the complainant to

prove that he had financial capacity to advance the hand-loan and

has to satisfy the Court with oral and documentary evidence on the

said aspect, the onus shifts on to the accused to prove himself as

innocent and did not issue the cheque. Section 101 of the Indian

Evidence Act envisages that burden of proof is on the person who

ascertains a particular fact. In the present case, though the pronote

was filed before the Court which duly contains the names and

signatures of attestors and the scribe, the complainant/appellant has

not made any attempt to examine the said persons to prove that

there is legally enforceable debt which has to be discharged by the

accused. Further, it is the specific case of the complainant that the

accused was introduced to him through a common friend by name

Sandeep Lal. But the complainant has failed to examine even the

said Sandeep Lal through whom, the amount was allegedly

advanced to the accused. Therefore, this Court is of the considered

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view that the trial Court has not committed any error or irregularity

in acquitting the accused and therefore, there are no grounds to

interfere with the judgment of the trial Court.

9. The appeal is accordingly dismissed. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 12.04.2023

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