Complainant's appeal against acquittal in a cheque dishonour case under Section 138 NI Act. The High Court found the complainant failed to establish the offence, noting part payment of Rs.20,000 and rebuttal of the statutory presumption. Appeal was dismissed and the acquittal confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
f. 5 I
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
WEDNESDAY ,THE SIXTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR PRESENT
THE HON’BLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL APPEAL NO: 1384 OF 2nnfi
Between:
Anaparthi Sashikiran, S/o Narasinga Rao, Business, D.No. 8-23-1/1, BETA Veedhi, Vizianagaram.
...APPELLANT AND 1. Amarasarva Devullu, S/o Venkataraju, Business C/o A.Gupta, Korada Veedhi, Vizianagaram.
...RESPODENTS
Appeal under Section 378(4) of Cr.P.C praying that the High Court may be pleased to prefer this Memorandum of CrI.A., against the order of acquittal dt. 04-07-2006 made in CC.No. 274 of 2005 on the file of Addl. J.F.C.M., Vizianagaram.
Counsel for the Appellant: SRI. K SRINIVASA RAO
Counsel for the Respondents: PUBLIC PROSECUTOR
The Court made the following: JUDGMENT
■i.,-n I
r I
APHC010413282006
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3396] (Special Original Jurisdiction)
WEDNESDAY ,THE SIXTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL APPEAL NO: 1384/2006
Between:
Anaparthi Sashikiran
...APELLANT
AND
Amarasarva Devullu and Others Counsel for the Apellant:
...RESPODENT(S)
1.K SRINIVASA RAO
Counsel for the Respodent(S):
The Court made the following:
JUDGMENT:
Impugning the judgment passed in C.C.No.274 of 2005, dated 04.07.2006 on the file of the Court of Additional JudicialMagistrateofFirst Class, Vizianagaram, the unsuccessful Complainant carried the matter in appeal challenging the validity and correctness ofthesaidjudgment.
2
I
matter. This appeal is of the year 2006. Learned counselfurthersubmitsthat because, in the cause list, his name is reflected showing his computer code he has argued the matter. Since it is a Criminal Appeal of the year 2006, this Court has to dispose of the appeal on merits. Hence,SriK.SrinivasaRao, learned counsel is requested to act as Amicus CurietoassisttheCourtfor disposal of the appeal.
for short ‘N.I.Act’
3
b. Accused undertook to discharge the debt and in thatprocessissuedtwo post dated cheques vide Ex.P.2,
c. Ex P.2 itself shows that there is a legally enforceabledebtbetweenthe parties,
d. There is a presumption in favour of the ComplainantunderSection118 of N.I.Act and under Section 114 of the Evidence Act. e. The principle of equity is not applicable in criminalcases, f. Accused is liable to pay the amount due under thecheque,whenthere is an agreement to discharge the debt of the thirdparty, g. The trial court judgment is based on surmises andconjectures
per the contents of Ex.P.2, since there is a clause forreturnofthechequeon payment of the amount.
I
4
the Complainant must have to return the cheques. It is stated that when the Accused failed to repay the debt, he is entitled to present cheque for encashment. Hence, it cannot be said that the cheques were issued only as a security but not in connection with the legally enforceable debt. Learned counsel would further submit that, even for a moment assuming that P.W.1 received Rs.20,000/- after issuance of the notice, it is not the case of the Accused that he has issued a fresh cheque for Rs.20,000/i.e., for the remaining amount to enable the Complainant to present it for encashment. Such being the case, he can file a complaint on the cheque which was issued for Rs.40,000/-. It is submitted that the judgment of the trial Court which went on discussing about the discharge of the debt relating to Rs.50,000/- i.e., for supply of the goods, is not correct since the Complainant never presented the cheque for Rs.50,000/as the first cheque which was presented for encashment i.e., the present cheque, was returned for ‘Account Closed”, The complaint is very clear as to why the Complainant did not present the cheque worth Rs.50,000/-. Learned counsel accordingly prays to set aside the impugned judgment by allowing the Appeal. 8. Contrasting the same, learned counsel for Respondent No. 1/Accused would submit that the Complainant has failed to establish that there were business transactions between P.W.1 and the Accused relating to supply of goods. It is stated that Accused need not adduce any evidence to demolish the case of the Complainant, because, the Accused can place his evidence by way of cross examination. In the evidence of P.W.1 it was put to him that
5
Accused is only a guarantor. There is a relationshipbetweenthebrotherof the Accused with P.W.1 in connection to which he hadissuedchequesas security. Learned counsel further submits that theComplainantwouldhave mentioned in the complaint and endorse the part payment made after the cross examination of issuance of the cheque which was accepted in P.W.1. Learned counsel finally states that there arenogroundstointerferein the impugned judgment on facts and law.
Whether the impugned judgment is sustainable on factsandlaworany interference is warranted in appeal?
1
6
endorsement on the rear side of the letter dated 11 10.2004, but he presented the cheque for Rs.40,000/ - with a view to get wrongful gain. 12. The fact remains i IS that, the Accused admitted the issuance of cheque to the Complainant. According to him, it is not relating to discharge of his debt but it is relating to the discharge of the debt of his brother Gupta. As rightly put by the learned counsel for the Appellant/ Complainant that. as per Section 20 of N.I.Act when a cheque has been i issued, drawer has to oblige for his encashment. 13. Coming to the peculiarity of the present case, in the cross examination, P W.1 admitted about receipt of cash of Rs.20,000/- from the Accused. That being so, he presented the cheque for Rs •40,000/- and also filed the complaint for Rs.40,000/-. As rightly observed by the learned trial Judge, Complainant did not choose to present the cheque for encashment relating to Rs.50,000/or adduce any evidence relating to the said transaction,, sisince the account is closed. When the Accused admits about issuancei of the cheques, the presumption under Section 139 of N.I.Act would come to the rescue of the Complainant, subject to the Complainant to establish the foundational facts. Issuance of the cheque to the Complainant I IS established in the present case. Hence, it can be construed that the cheques have been issued for the discharge of legally enforceable debt, Still the presumption under Section 139 of N.I. Act is a rebuttable presumption. The burden iies on the Accused to place any evidence or cross examine the Complainant or his witnesses to demolish their case. It is a settled principle of law that the standard of proof
r
7
for rebutting the presumption is that of preponderanceofprobabilitiesand it is in the cross an evidentiary burden. When once the presumption is rebutted examination of the Complainant, then it would disappearandthepresumption cannot come back to the Complainant to establish hiscase.
r
8
Accused under invoices. This Court is dealing with an Appeal against the acquittal wherein the Accused got double presumption of innocence.
As a sequel thereto, miscellaneous petitions, pending if any, shall
stand closed.
//TRUE COPY//
fShr" SECTION OFFICER
To,
1- TheAdditionalJudicial
vna
HIGH COURT
1
DATED:06/03/2024
ORDER
CRLA.No.1384 of 2006
DISMISSING THE CRLA
I 3 n AUG f|
^ . Current Section
m
1 issue framed by the court
Whether the trial court's judgment acquitting the accused under Section 138 NI Act was sustainable on facts and law or warranted interference in appeal?
5 provisions across 2 enactments
Anaparthi Sashikiran
Amarasarva Devullu
The State of Andhra Pradesh, rep. by its Public Prosecutor
Venkata Jyothirmai Pratapa
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
