- (1.) THE Criminal Appeal Is Directed Against THE Acquittal Of THE Accused For An Offence Punishable Under Section 138 Of THE Negotiable Instruments Act, 1881 By Setting Aside THE Conviction And Sentence Imposed By XIV Additional Chief Metropolitan Magistrate, Hyderabad, By THE Judgment Dated 28-12-2006 In C.C.No.343 Of 2000, By THE Judgment Dated 08-05-2007 In Criminal Appeal No.21 Of 2007 On THE File Of III Additional Chief Metropolitan Sessions Judge, Hyderabad.
(2.) THE Parties Are Referred To Herein As THEy Are Arrayed Before THE Trial Court.THE Complainant Filed THE Complaint Against THE Accused Alleging That THE Complainant, A Construction Businessman, And THE Accused Running A Printing Press Are Friends And THE Accused Approached THE Complainant On 08-09-1999 For Financial Assistance For Four Months For Running THE Printing Press And THE Complainant Gave Rs.7,50,000/- On THE Same Day. THE Accused Did Not Repay In Spite Of Demands But He Executed A Promissory Note And A Cheque No.075458 For Rs.7,50,000/- On 07-02-2000. When THE Cheque Was Presented Through THE Complainants Bank, It Was Returned Dishonoured With An Endorsement Exceeds Arrangement. A Second Presentation On 7-3-2000 Resulted In An Identical Endorsement On 9-3-2000 And THE Complainant Issued A Legal Notice Dated 21-03-2000 Demanding THE Accused To Pay Within 15 Days From THE Receipt Of Notice. THEre Was No Reply, But THE Accused Gave A False Complaint To THE Bank That He Lost THE Cheque Book To Avoid Payment Of THE Debt. Hence, THE Complaint In Respect Of An Offence Punishable Under Section 138 Of THE Negotiable Instruments Act (For Short THE Act). On The Offence Being Taken Cognizance After Recording The Sworn Statement Of The Complainant, Copies Of Documents Were Furnished To The Accused On His Entering Appearance. He Denied The Offence When He Was Examined Under Section 251 Of The Code Of Criminal Procedure And During Trial, Pws.1 To 3 Were Examined And Exs.P.1 To P.7 Were Marked. The Accused Denied The Incriminating Circumstances Appearing In The Evidence When He Was Examined Under Section 313 Of The Code Of Criminal Procedure And Examined Himself As DW.1 And Marked Exs.D.1 To D.10 In Defence. The Trial Court Rendered Its Judgment Referring To The Precedents Cited Before It And Opining That Once The Signature On The Dishonoured Cheque Is Admitted, The Presumption Under Sections 118 And 139 Of The Act Arises Placing The Burden Of Proof On The Accused To Rebut The Same. The Accused Claimed Herein That He Lost His Handbag With A Calculator, Visiting Card, Signed Blank Cheque Nos.075458 To 075475 Of Current Account No.2045 Of Andhra Bank, Sanathnagar And Blank Signed Promissory Notes On 28-08-1999 While Going On His Motorcycle To Obtain A Loan From Concord Motors Auto Financier. The Signatures On Ex.P.1-Cheque And Ex.P.4-Promissory Note Were Thus Admitted And PW.2 Was Noted To Be Litigating Against The Accused In O.S.No.825 Of 2002 And E.P.No.148 Of 2003, While There Was No Documentary Evidence In Proof Of The Alleged Approach To The Auto Financier For A Loan. The Trial Court Also Noted That Ex.D.5-Complaint From The Accused To The Police Did Not Disclose The Details Of The Promissory Notes Or Cheques Or Their Number, While Ex.D.7-Certificate From The Police Had Given Such Details Without Disclosing How Such Details Were Secured By The Police Officer. The Number Of Promissory Notes Lost Was Not Specified Or Known And No Prudent Person Would Have Carried Such A Number Of Blank Signed Cheques And Blank Signed Promissory Notes To Obtain A Loan From A Financier. Even To Cover Monthly Instalments, Post Dated Cheques Of Such A Number Would Not Have Been Naturally Carried And The Suggestion To PW.1 To The Contrary By The Counsel For The Accused Was That PW.1 Obtained A Blank Signed Cheque. Similar Was The Version Of The Accused About B. Srinivas And The Trial Court, Hence, Concluded That The Accused Failed To Rebut The Statutory Presumptions, The Preponderance Of Broad Human Probabilities Being Against His Defence. PW.3, A Junior Advocate In The Office Of The Advocate For The Complainant, Was Considered Independent And The Evidence Of Pws.1 To 3 Was Found To Have No Material Contradictions. The Signing Of A Receipt By One K. Ashok Kumar As Security Was Not Stated By The Accused And Hence, The Issuance Of Subject Cheque Towards Payment Of A Legally Enforceable Debt By The Accused To The Complainant Was Considered Proved. The Bouncing Of The Cheque On The First Occasion Was Noted To Have Not Been Followed By Any Written Demand Notice, But The Second Dishonour Was Considered To Provide Cause Of Action And The Endorsement By The Bank Officials About The Lost Cheque On The First Occasion Was Considered To Have No Effect. The Residential Particulars Mentioned On The Statutory Notice Being Not Claimed To Be Incorrect And Admitted By DW.1, A Presumption Under Section 27 Of The General Clauses Act Was Drawn About The Service Of Notice Is Not Through Registered Post Acknowledgement Due, Which Was Returned, While The Notice Sent Under Certificate Of Posting Was Not Returned. The Statutory Notice Was Not Complied With Within 15 Days From The Date Of Deemed Service Or Later, And Hence, The Trial Court Considered The Offence To Have Been Proved. When Questioned About The Sentence, The Accused Pleaded For Mercy As He Has To Look After His Widowed Mother, Wife And Two Children. While Not Invoking The Provisions Of The Probation Of Offenders Act, The Accused Was Sentenced To Undergo Rigorous Imprisonment For One Year And Pay A Fine Of Rs.5,000/- With A Default Sentence Of 30 Days.
(3.) IN Appeal, The Impugned Judgment Was Rendered Again Referring To The Factual Background And Considering The Points About The Existence Of A Legally Enforceable Debt Or Liability, The Issuance Of Ex.P.1-Cheque Towards The Same, The Correctness, Legality And Sustainability Of The Conviction And Sentence And The Relief To Which The Accused Is Entitled. The Appellate Court Referred To The Principles Laid Down By The Apex Court And Considered Whether The Accused Was Able To Rebut The Statutory Presumptions. The Contention Of The Accused That He Does Not Know The Complainant And Never Borrowed The Amount Was Noted And The Non-Production Of Any Bank Statement Or Other Evidence By PW.1 An INcome Tax Assessee Was Taken Adverse Note Of. The Admission By PW.1 That The Advancement Of The Amount Did Not Find Place IN His INcome Tax Return Was Also Noted Apart From Non-Production Of Any Books Or Statements Of Account. Ex.P.4-Promissory Note Not Filed Along With The Complaint Had Revenue Stamp Affixed On The Alleged Signatures Of The Accused. Ex.P.5 Notice Was Noted To Have Alleged The Promissory Note To Have Been Executed On 8-9-1999 Itself Contrary To The Evidence Of Pws.1 To 3 And The Recitals Of Ex.P.4 That It Was Executed On 7-2-2000. PW.1 Claimed The Same To Be A Mistake And Ex.P.5 Also States The Loan Amount To Have Been Taken On 7-2-2000 And The Claim Was, Hence, Considered Improbable And Suspicious. PW.2 And Exs.D.1 To D.4 Were Observed To Be Showing The Absence Of Any Cordial Relationship Between The Accused And PW.2 And PW.3 Noted To Be The Junior Of The Advocate Who Dealt With Another Criminal Case INvolving The Accused. Pws.2 And 3 Were Considered To Be INimical Towards The Accused And To Be INterested Witnesses And The Preponderance Of Probabilities Was Held To Be Favouring The Accused, Who Claimed To Have Never Borrowed Any Amount From The Complainant. DW.1 And Ex.D.7-Certificate Were Opined To Show The Lodging Of A Complaint By The Accused On 27-08-1999 About The Missing Of The Hand Bag On 25-08-1999 INcluding The Cheque Book. The Particulars Of The Cheques Not Being Mentioned IN Ex.D.5 Was Also Noted But The Particulars Of The Cheques Stated IN Ex.D.7 Were Opined To Have Been Possibly Obtained During INvestigation. The Claims Of DW.1 About The Signed Cheques And Promissory Notes For Obtaining Finance Were Considered Probable And Natural And It Was Noted That DW.1 Claimed To Have Addressed Ex.D.6-Letter On 14-02-2000 And INformed Orally Earlier The Bank About The Missing Of Cheques. The Endorsement On Ex.P.1-Cheque On 10-02-2000 About The Loss Of The Cheque Book Supports The INformation By The Accused To The Bank Even Earlier To Ex.D.6. The Endorsement Made By Red INk Across Ex.P.1 Cheque By Andhra Bank That Cheque Reported Lost Advised To Take Utmost Precaution Referred To IN Ex.P.5 Notice Was Noted To Have Been Subsequently Changed By The Complainant IN The Complaint And Evidence. The Concerned Bank Authorities Were Considered To Be Material Witnesses To Testify About The Reasons For Dishonour And When The Dishonour Was Not Due To INsufficiency Of Funds And There Was A Valid Cause IN Sending INstructions To The Bank Authorities To Stop Payment, The Accused Was Considered To Have Established That There Was No Existing Debt Or Liability And He Did Not Issue Ex.P.1-Cheque IN Discharge Of Any Such Debt. The Accused Could Not Have Known As To How Ex.P.1 Came INto The Hands Of The Complainant And Consequently, The Conviction And Sentence Were Set Aside And The Accused Was Acquitted. The Complainant Filed The Present Appeal Contending That The Presumptions Under Sections 118 And 139 Of The Act Have To Be Rebutted By The Accused Once The Signature On The Cheque Is Admitted And There Was No Cogent Evidence For The Accused To Prove His Denial Of The Complainants Case. The Non-Existence Of Any Debt Or Liability Has To Be Proved And The Farfetched Story Of The Accused About The Loss Of Hand Bag Without Any Evidence Should Have Been Rejected, More So, When The Complaint Was Not Lodged In Time And No Reason Was Given For Carrying The Signed Cheques. The Certificate Allegedly Issued By The Station House Officer, Bowenpally Was Not Proved By Examining Any Witnesses And The Letter To The Bank Was After Six Months From The Date Of The Alleged Loss Of Hand Bag, Which Allegedly Happened After Execution Of Exs.P.1 And P.4. The Conclusions Of The Appellate Court Were Criticized To Be Wrong And Even If The Memo Was Issued Stating That The Cheque Was Lost, The Accused Has To Prove Beyond Doubt That It Was Not Issued Towards Any Legally Enforceable Debt And That There Were Sufficient Funds In His Account. Hence, The Appellant Desired The Appellate Acquittal To Be Reversed And The Conviction And Sentence Imposed By The Trial Court To Be Restored.Heard The Learned Counsel For Both Parties.;