Telangana High Court
Rajendra Paper And Boards vs The State Of Telangna And Another on 31 January, 2025
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.587 and 590 OF 2018
COMMON JUDGMENT:
Crl.A.No.587 of 2018 is filed questioning the acquittal of the
accused under Section 138 of the Negotiable Instruments Act vide
Judgment dt.13.07.2017 in CC.No.23 of 2015 by the Special
Magistrate-V, Hyderabad.
2. Crl.A.No.590 of 2018 is filed questioning the acquittal of the
accused under Section 138 of the Negotiable Instruments Act vide
Judgment dt.13.07.2017 in CC.No.22 of 2015 by the Special
Magistrate-V, Hyderabad.
3. Since the complainant and the accused are one and the same
in both the cases and the transactions inter se are the same, both
the appeals are disposed off by way of this common Judgment.
4. The complainant firm was doing business in Bill Boards, Cali
Cloth etc. The accused used to purchase the products of the
complainant firm and was maintaining a running account. The
accused purchased material worth Rs.26,33,000/-. After payment of
Rs.6,60,000/- by way of RTGS, for the balance amount of
Rs.19,73,000/-, two cheques were issued by the accused. Cheque
bearing No.962447 dated 17.06.2014 was issued for an amount of
Rs.8,42,000/- (subject matter of CC.No.23/2015 and
Crl.A.No.587/2018); Cheque bearing No.962445, dated 21.04.2014
was issued for an amount of Rs.11,31,000/- (subject matter of
CC.No.22/2015 and Crl.A.No.590/2018).
5. The cheque No.962445 for Rs.11,31,000/- was dishonoured
due to alterations and corrections on 10.06.2014. The other cheque
No.962447 for Rs.8,42,000/- when presented for clearance was
returned unpaid on the ground of insufficient funds on 04.07.2014.
Though notices were issued, since the amount was not paid by the
accused, complaint was filed.
6. In both the cases, tax invoices were filed by the complainant as
Exs.P1 to P3, along with the returned cheque, postal
acknowledgment and also one attested copy of IT returns for the year
2014-2015.
7. The accused examined himself as DW.1 and Exs.D1 to D12
were marked in CC.No.22/2015 and Exs.D1 and D2 were marked in
CC.No.23/2015.
8. In CC.No.22/2015, Ex.D1 is the voter ID of Durga Prasad;
Ex.D2-part of document showing payment and issuance of blank
cheques; Exs.D3 to D11 are payment receipts and Ex.D12 is the
copy of application dated 03.07.2014 given to the CTO, Ferozdu
Circle, Nampally, Hyderabad, intimating shutting down the business.
9. In CC.No.23/2015, Ex.D1 is the receipt dated 18.04.2013
passed by the complainant in favour of accused for Rs.50,000/- and
Ex.D2 is the voucher dated 21.08.2013 containing complainant's
signature.
10. The defence of the accused is that there is no outstanding and
all dues were cleared. The cheques which were initially given towards
security were misused by the complainant and false cases were filed.
11. Learned Magistrate passed Judgment in both the cases on
13.07.2017 and acquitted the accused in both the cases on the
following grounds;
i) The complainant has not filed any documentary evidence to show
his day-to-day business transactions. Further separate accounts of
the business maintained by him in between the complainant and the
accused were also not filed, though he claimed to have maintained
separate accounts for each of his customers.
ii) There is no proof that the complainant delivered goods in terms of
invoices marked as Exs.P1 to P3.
iii) PW.1 in his cross-examination admitted that the accused used to
pay by way of cash at shop, however, PW.1 never used to issue
receipt for the payment received by way of cash, which supports the
defence of the accused that the entire amount was paid.
iv) The said admission of receiving money in cash is contrary to the
statement of PW.1 that he received RTGS payment for Rs.6,60,000/-
and for the remaining amount, cheques were issued.
v) The complainant has not filed any delivery challans with the
signatures of the accused as token of receiving material in terms of
invoices.
vi) For not filing the relevant documents, an adverse inference has to
be drawn under Section 114 (g) of the Evidence Act.
vii) The complainant has failed to prove that there was any legally
enforceable debt.
12. Learned Counsel appearing for the appellant would submit that
when the case of the accused who examined himself as DW1 is that
the entire amounts were repaid, the learned Magistrate committed
an error in finding that the complainant has not filed proof of
delivery of goods. Once the issuance of cheques are admitted,
presumption has to be drawn under Section 139 of the Negotiable
Instruments act. The accused has failed to rebut the presumption
even by preponderance of probability.
13. Having gone through the evidence on record, the defence of the
accused is that the two cheques were given by way of security on
15.04.2013. Ex.D4 is the acknowledgment of receiving the cheques
in question in both the cases, on 15.04.2013. Exs.P1 and P3 are the
tax invoices dated 22.06.2013 and 17.06.2014 respectively, issued
subsequent to the cheques being issued. Ex.P2 is tax invoice dated
07.02.2013 which is prior in time to the issuance of cheques. The
accused gave evidence that goods were taken and accordingly
payments were also made. Ex.D12 (marked in CC.No.22/2015) is an
application seeking cancellation of the business of the accused,
which was handed over to the area CTO on 03.07.2014. Exs.D3 to
D11 are the payment receipts. Though it is alleged by the
complainant that the payment receipts were fabricated, however, no
steps were taken to either lodge a complaint before the competent
forum or in any manner prove that the signatories in the payment
receipts who admittedly are related to the complainant's firm were
examined to say that the documents were fabricated.
14. The complainant though filed Exs.P1 to P3 which are tax
invoices, the signature of the accused is not appearing on the tax
invoices. It was admitted by PW.1 that signatures would be taken on
the tax invoices ones goods are supplied. No explanation is given by
the complainant as to why the signatures are not appearing on the
tax invoices, Exs.P1 to P3.
15. The complainant stated that after the payment of RTGS for
Rs.6,60,000/- , for the balance amount of Rs.19,73,000/-, the two
subject cheques were issued. According to the complaint, the total
amount of Rs.6,60,000/- was paid through RTGS in between
17.09.2013 and 24.03.2014. According to the complainant, the
cheques in question were issued after 24.03.2014. However, the said
claim of the complainant is falsified by Ex.D4 which reflects cheques
being issued on 15.04.2013.
16. The burden on the accused in a prosecution under section 138
of the Negotiable Instruments Act to explain his case, is by
preponderance of probability. As already discussed:
i) the tax invoices do not have the signatures of the accused.
ii) The complainant has falsely stated that the cheques in
question were issued after 24.03.2014.
iii) Except denying the receipts filed to prove payment by the
accused, the complainant has not taken any steps to
disprove the receipts.
iv) The claim of the accused that cheques were issued towards
security is substantiated by Ex.D4.
17. The complainant has not come to the Court with clean hands
and suppressed the facts, which is evident from the documents filed
by the accused and admissions made by complainant during trial.
18. In Ravi Sharma v. State (Government of NCT of Delhi) and
another 1, the Hon'ble Supreme Court held that while dealing with an
appeal against acquittal, the appellate court has to consider whether
the trial Court's view can be termed as a possible one, particularly
(2022) 8 Supreme Court Cases 536
when evidence on record has been analysed. The reason is that an
order of acquittal adds up to the presumption of innocence in favour
of the accused. Thus, the appellate court has to be relatively slow in
reversing the order of the trial court rendering acquittal.
19. In Ghurey Lal v. State of Uttar Pradesh 2 the Hon'ble
Supreme Court after referring to several Judgments regarding the
settled principles of law and the powers of appellate Court in
reversing the order of acquittal, held at para 70, as follows:
"70. In the light of the above, the High Court and other appellate
Courts should follow the well-settled principles crystallized by number of
Judgments if it is going to overrule or otherwise disturb the trial court's
acquittal:
1. The appellate court may only overrule or otherwise disturb the
trial court's acquittal if it has "very substantial and compelling reasons"
for doing so.
A number of instances arise in which the appellate court would
have "very substantial and compelling reasons" to discard the trial
court's decision. "Very substantial and compelling reasons" exist when:
i) The trial court's conclusion with regard to the facts is palpably
wrong:
ii) The trial court's decision was based on an erroneous view of
law;
iii) The trial court's judgment is likely to result in "grave miscarriage
of justice";
iv) The entire approach of the trial court in dealing with the evidence
was patently illegal;
v) The trial court's judgment was manifestly unjust and
unreasonable;
vi) The trial court has ignored the evidence or misread the material
evidence or has ignored material documents like dying
declarations/report of the ballistic Ex.Pert, etc.
(2008) 10 Supreme Court Cases 450
vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and
consideration o the findings of the trial court.
3. If two reasonable views can be reached__ one that leads to
acquittal, the other to conviction __the High Courts/appellate courts must
rule in favour of the accused."
20. There are no reasons which are compelling in nature to
interfere with the finding of the learned Special Magistrate in
acquitting the accused.
21. Accordingly, both the appeals are dismissed.
___________________
K.SURENDER, J
Date: 31.01.2025
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