Telangana High Court
G. Prakash Reddy vs The State Of A.P. And Another on 27 March, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1620 OF 2009
JUDGMENT:
1. The appellant has preferred the present appeal questioning
the judgment of acquittal dated 31.07.2009 in C.C.No.152 of 2009,
passed by the learned XV Additional Judge-cum-Additional XIX
Additional Chief Metropolitan Magistrate, Hyderabad.
2. Heard learned counsel for the appellant, learned counsel for
the respondents and perused the record.
3. The complainant filed criminal complaint against the
respondent/accused stating that the complainant is acquainted
with her and her husband, who are practising advocates.
4. The accused approached the complainant in the month of
December, 2004 and requested to arrange hand loan of
Rs.20,00,000/- to meet her urgent business necessities only for a
period of one month. Accordingly, the complainant who was
examined as PW1 mobilized amounts from his friends, relatives
and gave the amount hand loan on 26.12.2004. The stamp receipt
was executed vide Ex.P.2. After one month Pw.1 approached and
asked her for repayment of the loan amount. Ex.P3 cheque was
issued on 04.04.2005 towards repayment. The said cheque when
presented for clearance was returned unpaid on the ground of
"insufficient funds". Accordingly, a legal notice was issued and
since the accused failed to pay the amount covered by the cheque,
the complaint was filed.
5. During the course of trial, the complainant examined himself
as Pw.1 and got marked Exs.P1 to P11. The accused entered into
the witness box and examined herself as Dw.1 and got marked
Exs.D1 to D4.
6. The defence taken by the accused is that she was a
subscriber to the 'chit fund' being run by one Saroja Reddy, who is
the relative of the complainant. When she got the prize amount in
the chit, which was paid by way of cheque in the year 2003, blank
cheques and blank promissory notes were given to her towards
security. The said cheques and blank promissory note were
handed over by said Saroja Reddy and misused by the accused to
make a false claim of advancing Rs.20,00,000/- to the accused.
7. The learned Magistrate, having considered the evidence on
record, acquitted and allowed on the following grounds.
i) The complainant failed to provide any proof of
possessing Rs.20,00,000/-. Though he stated that he
collected the amounts from his friends, no one was
examined.
ii) The bio-data of the accused which is Ex.P-11 was filed.
The said fact also creates any amount of doubt
regarding the loan being given, because, in a loan
transaction to a known person, the question of
receiving bio-data would not arise.
iii) Having taken a defence that the cheque was misused,
Exs.D1 and D2, which are the statements of account of
the accused were filed by the accused. In the said
statement of account, the cheques which are prior to
the cheque in question bearing Nos.581429 dated
04.04.2005 (cheque in question), the subsequent
cheques were encashed one year prior to the cheques
in question, which are Exs.D3 and D4 bearing
Nos.581433, 581434,.
8. According to the learned Magistrate, it is highly in probable
that a previous cheque would be retained for almost two years to
be given to the complainant when all the prior cheques were
already encashed and reflected in the statement of account.
9. Further, the accused had discharged her burden by
providing proof that the promissory note and the cheque were
given in blank to one Saroja Reddy. Pw.1 himself admitted that the
writings on the receipt and promissory note are that of his brother,
namely Madhusudan Reddy. On the said grounds, the trial Judge
found that the accused had discharged her burden to show that
there was no liability and the cheque and blank promissory note
were misused.
10. Learned counsel appearing for the appellant would submit
that the signature on the cheque is not disputed nor the signature
on the promissory note. It does not make a difference if the
writings belong to some other person when the signatures are
admitted. Further, if the cheques and promissory note were given
to one Saroja Reddy, the accused ought to have summoned the
said Saroja Reddy to the Court and examine her.
11. On the other hand, learned counsel appearing on behalf of
the accused supported the findings of the Court below.
12. In a case filed under Section 138 of NI Act, the initial burden
is always on the complainant to prove that there is a legally
enforceable debt and an outstanding that had to be paid by the
accused to the complainant. Unless such initial burden is
discharged, the question of raising presumption and shifting the
burden on to the accused would not arise. In the event of the
burden being shifted on to the accused, the same can be
discharged by preponderance of probability and not beyond
reasonable doubt.
13. The specific defence of the accused right from issuing
Ex.P-9/ reply notice, immediately after receiving notice from
complainant is that the cheque in question was not issued to the
complainant, but was issued to one Saroja Reddy, who was
running a chit, having received the prize amount. The said defence
was taken at the earliest point of time and in support of the
defence Exs.D1 to D4 were also filed.
14. The probabilities as discussed by the learned Magistrate
regarding the subsequent cheques being encashed reflected in the
account of the accused and also admission by the complainant that
the promissory note and receipt were filled up by his brother,
collectively support the version of the accused cannot be found
fault with. Having taken a specific defence by issuing reply notice
under Ex.P9, the said defence was proved before the Court below
by the accused.
15. In cases of acquittal, unless there are compelling reasons or
circumstances, which are pointed out, the judgment of acquittal
cannot be reversed. As found by the learned trial Judge, the
complainant had initially not proved that the loan amount of
Rs.20,00,000/- was, in fact, provided by him. However, having
taken the defense that the cheque in question and promissory note
were issued in blank to one Saroja Reddy, the accused proved her
defense by supporting documents. In the said circumstances, I do
not find any reasons to set aside the findings of the trial Court.
16. Accordingly, the Criminal Appeal is dismissed.
Miscellaneous applications pending, if any, shall stand
closed.
_________________
K.SURENDER, J
Date: 27.03.2024
mmrs
