Telangana High Court
Nalla Sai Reddy, vs Kotha Sanjeeva Reddy, And Another, on 26 February, 2024
1
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL NO.155 OF 2010
ORDER:
1. This Criminal Appeal is filed against the judgment of
acquittal dated 31.08.2009 in C.C.No.23 of 2006 on the file
of the Special Judicial Magistrate of First Class for PCR
Cases at Warangal, for the offence under Section 138 of the
Negotiable Instruments Act, 1881 (for short 'the Act').
2. Heard the learned counsel for the appellant and the
learned Public Prosecutor for respondent-State. Perused the
record.
3. The case of the appellant is that on 01.04.2004,
accused requested to advance an amount of Rs.3,50,000/-
and promised to repay the same within three or four days.
However, on 05.04.2004, a cheque bearing No.994854 for
Rs.3,50,000/- was given towards discharge of loan amount.
The said cheque when presented for clearance was returned
unpaid on 06.04.2004. Aggrieved by the said cheque being
returned without payment, notice was issued. On receipt of
said notice, since the accused to failed to pay the amount
covered by the cheque, complaint was filed.
4. The complainant examined himself as P.W.1 and three
other witnesses who are witnesses to the transactions. The
accused entered into witness box and examined himself as
D.W.1 and another person as D.W.2.
5. The defence of the accused is that during the course of
business, blank cheques were being issued by him, since
the accused was Sub-Contractor who was executing the
contract works of the complainant. Further, when
Ex.P.1/cheque bearing No.994854 was issued, at the same
time nearly 40 cheques leaves upto cheque bearing
No.00994898 were encashed till the month of April 2002
itself. In proof of the said cheques being sent to the bank
for clearance, accused filed Exs.D.4 to D.10 which are
counter foil of the cheque leaves and statement of accounts
given by the bank.
6. Learned Magistrate held that it is highly improbable in
the present case to believe the evidence of the complainant
that there was legally enforceable debt, accordingly,
acquitted the accused.
7. Learned counsel appearing for the
appellant/complainant would submit that once the
signature on the cheque is accepted and even issuance of
cheque is accepted, the Court cannot come to a conclusion
that there was no legally enforceable debt without any basis.
Apart from cheques being filed, the accused has not taken
any steps to show that there is no legally enforceable debt.
Even assuming, subsequent cheques were encashed in the
bank that does not mean that there was no enforceable debt
on the cheque which was previously issued.
8. On the other hand, learned counsel appearing for the
appellant had supported the findings of the learned
Magistrate.
9. As seen from the record, the accused has produced
bank statements and also cheque counter foils to show
nearly 40 cheques, after cheque in question were encashed
upto April, 2002 itself. According to the case of the
complainant, cheque was issued on 01.04.2004 i.e., nearly
two years thereafter. It is not the case of complainant that
the cheque in question was issued earlier and later the
accused asked to present the cheque. Firstly, it is not
disputed that accused was working as Sub-Contractor to
the complainant and secondly, there is no logical reasoning
as to why the subsequent 40 cheques to the present cheque
in question were encashed even two years prior to
transaction in question. Collectively, in the facts of the
case, the defence taken by the accused can be believed. The
accused has produced documents in support of his version.
Though there is presumption that arises under Section 139
of the Act that the cheque was issued towards legally
enforceable debt, the burden is one of preponderance
probability that casts upon the accused to disprove the case
of the complainant.
10. The accused entered into the witness box and
probabilised his version regarding misuse of cheque by the
complainant by oral and documentary evidence.
11. For the reasons mentioned above, the finding of the
Magistrate that the there was no legally enforceable debt
and the cheque in question was misued by the complainant
is probable and reasonable.
12. Accordingly, the Appeal fails and dismissed.
Consequent to the orders passed, I.A.No.1 of 2019 for
recalling non-bailable warrants issued by this Court is
allowed. Other miscellaneous applications, pending if any,
shall stand closed.
_________________
K.SURENDER, J
Date: 26.02.2024
dv
