Dismissed

Mr. P.Raghunadh, v. State of a.P., Rep by P., and Another

Andhra Pradesh HC18 Feb 2020CRLRC/784/2008

Case brief

AI extract

What is this about?

In this revision under Sections 397 and 401 Cr.P.C., the petitioner challenged the acquittal of the accused in a cheque dishonour case under Section 138 of the Negotiable Instruments Act. The bench found the prosecution evidence unreliable, noting irregularities in witness testimony and lack of proof regarding legally enforceable debt, rejecting appeals for interference.

What did the court decide?

Criminal Revision Case dismissed; judgment of acquittal affirmed.

Mr. P.Raghunadh, Vs State of a.P., Rep by P., and… — Cheque Dishonour | Andhra Pradesh HC (2020)

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HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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Criminal Revision Case No. 784 of 2008

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ORDER:

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The petitioner herein, who is informant and examined as P.W.1 in C.C. No.168 of 2000 filed the present Revision under Sections 397 and 401 Cr.P.C. against the judgment of acquittal in the above C.C.

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The facts in issue are as under :

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The accused, who is a resident of Secunderabad was doing business at M.C.H. Commercial Complex, Rashtrapathi Road, Secunderabad, in the name and style of Leo Electronic Industries and Leo Electronics Organization. He fell in due to various persons, including P.W.1, who is agriculturist having landed properties at Gundupalem and other villages. The accused is related to P.W.1, who used to lend money to the accused whenever there was a need. While things stood thus, on 30.1.1999 the accused approached P.W.1 and requested him for a hand loan of Rs.17,00,000/- promising to repay the same with interest at 18% per annum within six months. Believing the said words, P.W.1 lent the amount in two installments in the presence of P.W.2 and one Tata Arjuna Rao and obtained receipts for the same. But, after due date, the accused failed to re-pay the same and was dragging the matter on one pretext or the other. Later, the accused came to Machilipatnam on 16.8.1999 and issued five cheques and the present case is limited to issuing of three

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cheques, which, on presentation, returned with the endorsement “insufficient funds”.

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On receipt of intimation about the dishonour by a memo dated 15.9.1999, the complainant got issued a notice and thereafter filed a private complaint under Section 420 I.P.C. and Section 138 of Negotiable Instruments Act, which was forwarded to Inguduru Police for investigation. Accordingly, a case in crime No.186 of 1999 came to be registered for the offence punishable under Section 420 I.P.C. and Section 138 of Negotiable Instruments Act.

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After completing the investigation, a charge-sheet came to be field. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., came to be furnished and accused was examined under Section 239 Cr.P.C., wherein he denied the offence and claimed to be tried. During the course of trial, the prosecution examined P.Ws.1 to 4 and got marked Exs.P1 to P11. After closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against the accused in the evidence of the prosecution witnesses, to which he denied and examined D.W.1 and C.W.1 and got marked Exs.D1 to D10. Relying on the evidence adduced on behalf of accused, the trial court acquitted the accused. Challenging the same, the present revision is filed.

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It is to be noted here that in a revision filed against acquittal, the scope of interference by the High Court is narrow

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and even if court finds any perversity or grave irregularity or illegality in the order, the only option left is to remand the matter back to the trial court for re-trial. Keeping that in view, I shall proceed to deal with the matter.

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The transaction with regard to borrowing of money has taken place in the house of P.W.1 at 5 AM. P.Ws.2 and 3 were examined by the complainant to prove the same. But, their evidence show that P.Ws.2 and 3 are residing at a distance of 3 or 4 K.Ms. from the house of P.W.1. It is highly improper to believe that they would have been present in the natural course in the house of P.W.1 at that point of time. Except denying the suggestion that the accused put his signature on blank leaves of the cheque book and handed them over to him along with letter heads with his signature to enable him to transact the business on his behalf and on behalf of the Leo Exports Organization Private Limited, he has admitted everything in his evidence. The case of the accused appears more probable and nearer to the truth and the accused, by the preponderance of probabilities, from the answers elicited in the cross-examination of P.W.1 as well as the surrounding circumstances, was able to prove that he did not issue the cheques towards any legally enforceable debt or other liability.

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Coming to the evidence of P.W.2, it must be stated that at the outset, the very identity of P.W.2 itself is in question. Originally, the statement of one Sayana Krishna was recorded by the Police under Section 161 Cr.P.C. Later on a memo was filed

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stating that the surname has been wrongly mentioned and it was corrected as Sunkara Venkata Ramana. On the date of his deposition he is a resident of Eedupugallu of Kankipadu and working as Panchayat Secretary of Gollagudem. According to him, at the relevant point of time, he was having prawn ponds, adjacent to the tanks of P.W.1. Though the evidence of P.W.1 is silent about he informing P.W.2 that the accused asked him for money, P.W.2 states that he came to know through P.W.1 that accused asked him for money on 30.1.1999. While it is the evidence of P.W.1 that the accused issued one receipt on 1.2.1999 for Rs.16,00,000/- and consolidated receipt for Rs.17,00,000/- on 5.2.1999 when he again borrowed Rs.1,00,000/- from him, it is the evidence of P.W.2 in his chief examination itself that the accused issued two receipts, one for Rs.16,00,000/- on 1.2.1999 and another for Rs.1,00,000/- on 5.2.1999. Even in his evidence he spoke about P.W.1 going to Hyderabad for getting bail to the accused; the accused promising to repay the same within six months, about the demand of money by P.W.1 and issuance of cheques by the accused and lastly the accused coming to Machilipatnam on 16.8.1999 and issuing five cheques etc., Whenever any question with regard to the avocation of P.W.1 were put to him, he pleaded ignorance. According to him, he does not also know the job of the accused, and whether P.W.1 worked under him as a Manager etc., Though in his Chief Examination he stated that he owns prawn pond adjacent to the ponds of P.W.1, he admitted in his cross-examination that he has no prawn ponds in his name and that he took the said prawn ponds on lease from

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one Jakie. He cannot say the survey number of the said prawn tanks. According to him, there are prawn tanks of one Mohana Rao on the east of his prawn tanks. But he cannot say whose tanks are situate on the southern and northern side of his leased land. Therefore, his evidence show that he does not know whether any prawn tanks are there in the name of P.W.1.

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Though the evidence of P.W.1 is silent about the presence of P.W.2 on previous occasions when the accused borrowed money from him, P.W.2 went to the extent of stating that he was also present when the accused borrowed Rs.2,00,000/- from P.W.1 in January, 1998. Though he stated before the police that the accused executed a promissory notes after borrowing the amount, he denied to have stated so, which is marked as Ex.D9. The evidence of P.W.2 before the Court is an improved over his earlier statement made before the police and therefore, it is unbelievable and rather it is unsafe to rely upon his testimony. He does not know what P.W.1 was doing in the year 1992-93. Though P.W.1 stated that he acted as an agent for Nandyala Aqua Sea feeds of Gundupalem Village, P.W.2 stated that P.W.1 never acted as an agent for Nandyala Aqua Feeds. The totality of his evidence goes to show that he does not know anything about the case and he appears to be a planted witness for the purpose of this case.

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P.W.3 is the then Bank Manager of Central Bank of India, Chilakalapudi, Machilipatnam. He spoke about the presentation of the cheques by P.W.1 and their subsequent dishonour due to insufficient funds. It was elicited in his cross-examination that

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the account was opened on 24.8.1999. It is clear from the above circumstances that he opened the account only for the purpose of presentation of the cheques and not for any other purpose. P.W.3 was not able to say the balance in the account of P.W.1 on the date of opening of the account without verifying the records.

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P.W.4 is the Investigating Officer in this case. He has been elaborately cross-examined by the learned counsel for the accused. He admitted in the cross-examination that according to their investigation, the address particulars of L.W.2 (Seeina Ramana) are correct. But in the next breath, he denied the suggestion whether Sunkara Ramana and Seeina Ramana are one and the same or not. Though he claimed to have examined Tata Arguna Rao on 15.9.1999, when confronted with the statements, he admits that the date was put as 1.2.1999. According to him, it is a typographical mistake. It is also elicited in the crossexamination of P.W.4 that no investigation was done with regard to the properties owned by P.W.1 or his father, nor any documents were recovered from them. The evidence of P.W.4 does not in any way incriminate the accused with the offence in question.

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In order to constitute an offence under Section 138 of the Negotiable Instruments Act, admittedly, the registered notice Ex.P8 was booked at Machilipatnam on 22.9.1999 to the office address of the accused at Secunderabad. It is stated that it reached Secunderabad on 23.9.1999 on the next day and it contains an initial on the acknowledgment. The accused denied having received any such notice. Admittedly the initial on Ex.P9 is

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not the signature of the accused when compared with other admitted contemporaneous signatures of the accused. For a registered letter to reach Hyderabad from Machilipatnam it takes at least 3 days. For successful launching of the prosecution under Section 138 of the Negotiable Instruments Act, the complainant must prove that there is service of notice on the accused. Having regard to the fact that P.W.1 worked as Manager on behalf of the accused for some time and was having blank signed letters and cheques, it is doubtful whether the signature on Ex.P9 was also fabricated or manufactured by P.W.1. Even on this ground the case of the prosecution fails. A perusal of Exs.P1 to P3 cheques shows that the accused signed on the overleaf of the cheques also. If, as contended by P.W.1, the accused issued the cheques to him in discharge of the debt contracted by him, there is no necessity for the accused to sign on the overleaf of the cheques. The fact that cheques contain signatures of the accused on overleaf, makes it clear that the cheque is intended for self-drawing. This is also a circumstance, which goes against P.W.1 and in favour of accused. The preponderance of probabilities and the other surrounding circumstances and the evidence of P.W.1 clearly go to show that P.W.1 has misused the cheques which came into his possession while he was working as Manager under the accused and made use of the same to have wrongful gain. The complainant has utterly failed to prove that the accused has issued the cheques towards legally enforceable debt or other liability. The accused is therefore entitled to be acquitted.

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From the findings referred to above it is very clear that the prosecution was not able to bring home the guilt of the accused beyond reasonable doubt.

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Having regard to the circumstances, I see no ground to interfere with the judgment of acquittal dated 27.2.2008 passed in C.C. No.168 of 2000 on the file of the II Additional Judicial First Class Magistrate, Machilipatnam.

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Accordingly, the Criminal Revision Case is dismissed.

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Consequently, miscellaneous petitions pending, if any, shall stand closed.

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________________________ C. PRAVEEN KUMAR, J. Date: 18.2.2020

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skmr

Mr. P.Raghunadh, v. State of a.P., Rep by P., and Another

Case brief

What is this about?

What did the court decide?

Mr. P.Raghunadh, v. State of a.P., Rep by P., and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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