Telangana High Court
G.Alwal Reddy vs The State Of Telangana And Another on 1 May, 2024
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No.256 of 2018
JUDGMENT:
1 This criminal appeal arises out of the judgment dated
21.07.2017 passed in C.C.No.152 of 2016 on the file of the Court of
the V Special Magistrate, at L.B.Nagar, Hasthinapuram, Ranga Reddy
District, wherein and whereby the learned Magistrate acquitted the
second respondent herein for the offence punishable under Section
138 of Negotiable Instruments Act, 1881.
2 The brief facts of the case that led to the filing of all these
criminal appeals, succinctly, are as follows:
3 The appellant and the second respondent are acquainted with
each other for a long time and in view of the said acquaintance, the
second respondent borrowed an amount of Rs.4.00 lakhs from the
appellant for her family necessities, as a hand loan. The second
respondent executed a promissory note on 30.9.2013. However, in
spite of repeated demands made by the appellant, the second
respondent did not pay back the amount lent by the appellant,
instead, issued a post dated cheque bearing No.057429 dated
27.01.2014, drawn on Central Bank of India, Batasingaram Branch,
towards discharge of the debt. The appellant presented the said
cheque in his bank i.e. State Bank of Hyderabad, Alkapuri Branch,
Hyderabad for encashment on 27.01.2014, but the same was
dishonoured vide cheque return memo dated 30.01.2014 as
"payment stopped by drawer". The appellant got issued a legal
notice on 21.02.2014 to the second respondent demanding her to
pay the amount covered under the dishonoured cheque and the said
notice was served on the second respondent on 15.03.2014. But the
second respondent, in spite of receipt of the said notice, did not pay
the amount covered under the cheque nor did she give any reply to
it. Hence the appellant filed a complaint before the trial Court against
the second respondent for the offence punishable under Section 138
of N.I. Act, which was numbered as C.C.No.152 of 2016.
4 During the course of inquiry, on behalf of the complainant /
appellant got himself examined as P.W.1 and he also got examined
one another witness by name M.Krishna Reddy as P.W.2 and Exs.P.1
to P.8 were marked on behalf of the complainant. On behalf of the
second respondent her husband Srinivas Goud was examined as
D.W.1 and she also got examined one another witness by name
Vijayalaxmi as D.W.2 and Exs.D.1 to D.10 were marked on her
behalf.
5 The trial Court, after examining the oral and documentary
evidence available on record, found that the appellant / complainant
failed to prove his case beyond reasonable doubt against the second
respondent for the offence under Section 138 of N.I. Act and
accordingly acquitted the second respondent. Hence the present
criminal appeal by the appellant / complainant.
6 Mrs.Swathi Menon, learned counsel representing Sri G.Kalyan
Chakravarthy, learned counsel for the appellant / complainant,
submitted that the trial Court came to an erroneous conclusion that
the appellant has to prove his case and also failed to consider that
the legal presumption is in favour of the holder of the cheque in the
eye of law. It is his further contention that the burden always lies on
the accused to rebut the presumption by sufficient proof of evidence.
He further submitted that the Court has to take into consideration
whether the ingredients of Section 138 (a) (b) and (c) are complied
with or not by the complainant. Once it is complied with by the
complainant, then the burden shifts on to the accused to prove that
there is no legally enforceable debt between the complainant and the
accused. In support of his contentions, the learned counsel for the
appellant relied on the judgment of the Karnataka High Court dated
09.11.2023 in Crl.A.No.2000 of 2022.
7 On the other hand, Sri T.Chandra Sekhar, learned counsel for
the second respondent submitted that the trial Court, having
appreciated the entire evidence on record in right perspective, had
come to a just conclusion that the appellant failed to discharge the
onus that heavily lies on him beyond reasonable doubt and that the
second respondent had rebutted the presumption and accordingly
acquitted the second respondent, which judgment, in the eye of law
does not require any further scrutiny and hence prayed to dismiss
this criminal appeal.
8 The factum of acquaintance between the appellant and the
second respondent, the signatures of the second respondent on
Ex.P.2 promissory note and on Ex.P.1 cheque are not in dispute. But
the complainant failed to plead and prove specifically when he lent
the amount of Rs.4.00 lakhs to the second respondent, but stated
that the second respondent executed promissory note on 30.9.2013.
The evidence of P.W.2 also goes to show that the second respondent
executed the promissory note in favour of the appellant on 30.9.2013
but he did not say that the appellant lent the amount to the second
respondent on the even day or on a specific day. Mere admission of
signatures on the cheque and promissory note by the second
respondent cannot be taken into consideration to state that the
complainant proved his case inasmuch he failed to specifically say the
date on which he lent the amount to the second respondent. On the
other hand, it is the specific case of the second respondent that
when her husband was asking the appellant for the chit amounts, the
appellant misused the cheque and promissory note which were taken
by the appellant at the time when the husband of the second
respondent lifted amount in the first chit as security.
9 As seen from the record, the appellant failed to prove through
legally admissible evidence that he has financial capacity to lend such
huge amounts to the second respondent. So in order to draw
presumption under Section 118 r/w 139 of N.I. Act, the burden was
heavily on the complainant to show that he had required funds to
advance the amounts to the accused and that the issuance of the
cheque is in support of the said payment.
10 Moreover, as seen from Ex.P.2 promissory note, the receipt
attached to it does not contain the signature of the second
respondent though all the other columns therein were filled. Hence a
presumption can be drawn that the second respondent issued blank
promissory note can be accepted that the promissory note is not
supported by consideration.
11 Therefore, the material available on record probablizes the
defence of the second respondent that her husband joined as
subscriber in the private chit run by the appellant in the year 2008
and after lifting the chit the appellant obtained signed blank cheque
and signed promissory note from the second respondent towards
security and that there is no consideration under Ex.P.2 note and that
issuance of Ex.P.1 is not towards discharge of legally enforceable
debt. The finding of the learned trial Court is based on sound
reasoning, which, in my considered view does not call for
interference. The facts of the case in the judgment of the Karnataka
High Court, relied upon by the appellant, have no application to the
facts of the present case.
12 Hence the criminal appeal is dismissed confirming the judgment
dated 21.07.2017 passed in C.C.No.152 of 2016 on the file of the
Court of the V Special Magistrate, at L.B.Nagar, Hasthinapuram,
Ranga Reddy District.
13 Miscellaneous petitions if any pending in this criminal appeal
shall also stand dismissed.
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E.V.VENUGOPAL, J.
Date:01.05.2024
Kvsn
