Karri Sridhar Reddy Vs Kolli Antarvedhi & the State of A.P.

THE HON’BLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL APPEAL No.934 of 2008

JUDGMENT:

This Criminal Appeal is preferred by the complainant against the Judgment dated 30.04.2008 passed in CC No.7 of 2007 (old CC No.612 of 2006) by the learned Judicial Magistrate of First Class, Special Mobile Court, Eluru, whereby and whereunder respondent No.1 herein /Accused was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short „the NI Act‟), accordingly, he was acquitted of the said offence.

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Case of the complainant, briefly, is as follows.

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i) The accused borrowed a sum of Rs.1,25,000/- on 12.12.2004 from the complainant to meet his family expenses, for lorry business and for running mess, agreeing to repay the same with interest @ 24% p.a. by executing a promissory note. Thereafter, he failed to repay the same as promised. On repeated demands by the complainant, the accused gave cheque bearing No.609811, dated 27.10.2005, drawn on Lakshmi Vilas Bank, Eluru, for an amount of Rs.1,17,000/- towards part

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satisfaction of the debt. When the complainant presented the said cheque in his bank account in Andhra Bank, it was returned dishonoured as “funds insufficient”. Then, a legal notice dated 18.11.2005 was caused on the accused informing him about the dishonor of cheque and calling upon him to make payment. Having received the said notice, the accused did not come forward to give any reply notice nor make any repayment. As such, the present complaint has been filed.

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Originally, the said complaint was taken on file by the learned II Additional Judicial Magistrate of First Class, Eluru, and numbered as CC No.612 of 2006. Subsequently, the said case was transferred to the Court of the Judicial Magistrate of First Class, Special Mobile Court, Eluru and renumbered as CC No.7 of 2007.

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On appearance of the accused, after furnishing copies of documents as contemplated under Section 207 Cr.P.C., he was examined under Section 251 Cr.P.C. He denied the allegations, when read over and explained to him in Telugu, pleaded not guilty of the offence and claimed to be tried.

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On behalf of the complainant, PWs.1 and 2 were examined and got marked Exs.P1 to P6.

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After closure of the complainant‟s evidence, the accused was examined under Section 313 Cr.P.C., explaining the incriminating material found against him in the evidence of complainant‟s witnesses, for which he denied and reported no defence evidence on his behalf.

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The learned Magistrate, on appreciation of entire oral and documentary evidence on record, found the accused not guilty of the offence under Section 138 of the NI Act and, accordingly, acquitted him, vide impugned judgment dated 30.04.2008 on the grounds that the complainant failed to establish his initial burden of proving the debt and that the cheque Ex.P2 was not issued towards discharge of the debt covered by the promissory note. Aggrieved by the said judgment passed by the learned Magistrate, the complainant has preferred the present Criminal Appeal.

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The matter was being adjourned from time to time i.e. for the past two years, for service of notice on respondent

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No.1/accused. Today, when the matter came up for hearing, learned counsel appearing on behalf of the appellant/complainant submitted that he is not in a position to secure the whereabouts of respondent No.1/accused and serve notice on him.

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In that view of the matter, this Court is proceeding to dispose of the Criminal Appeal basing on the evidence available on record.

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This is an appeal against an Order of acquittal. There is a presumption available under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with the order of acquittal because presumption available under law is further strengthened by the order of acquittal. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given any perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been

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taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same.

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On this aspect, it is pertinent to refer to a decision in Harbans Singh & another v. the State of Punjab¹ , wherein it was held as follows: (para 8)

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“The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on „compelling and substantial reasons‟ and has expressed the view that unless such reasons are present in an Appeal, Court should not interfere with an order of acquittal (Vide Suraj Pal Singh v. The State, 1952 SCR 193: (AIR 1952 SC 52); Ajmer Singh v. State of Punjab, 1953 SCR 418: (AIR 1953 SC 459). The use of the words, „compelling reasons‟ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had, meant by the words

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1 AIR 1962 SC 439

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„compelling reasons‟. In later years the Court has often avoided emphasis on „compelling reasons‟ but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.”

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Case of the appellant/complainant (PW.1) is that the accused borrowed a sum of Rs.1,25,000/- from him on 12.12.2004 by executing a promissory note marked as Ex.P1 agreeing to repay the same with interest on demand and thereafter, the accused failed to repay the same. His further case is that on repeated demands made by him, the accused gave Ex.P2 cheque for an amount of Rs.1,17,000/-. When he presented the said cheque for collection in Andhra Bank, the same was returned dishonoured along with bank return memo Ex.P3 as “funds insufficient”. He issued a legal notice Ex.P4 and in spite of receipt of said notice, the accused did not give any reply nor repaid the amount.

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It is the contention of the learned counsel for the appellant/ complainant that the evidence adduced on behalf of the complainant clinchingly establishes that the respondent No.1/ accused borrowed the amount from the complainant and executed the promissory note, and gave the subject cheque for discharge of part of the liability under the subject promissory note, and the trial Court did not consider the evidence on record in right perspective and erred in acquitting the accused.

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Contention of the accused is that he executed the promissory note Ex.P1 in connection with the amount fell due by his son to the petrol bunk owner of Hanuman Junction, while getting diesel on credit basis, and the complainant, who is having acquaintance with the said petrol bunk owner, made use of the said promissory note in this false case with a view to establish that it was executed in connection with the alleged money borrowed from the complainant. It is not the case of the accused that the promissory note was executed and scribed by him and it is his case that he gave two blank signed promotes to the petrol bunk owner at Hanuman Junction. PW.1 in his cross-examination stated that the accused gave cheque for an amount of

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Rs.1,17,000/- on the ground that he has got only that much money in his bank balance and that the cheque was issued to him at the petrol bunk and that the accused in his presence signed in Telugu, once on the pronote and another signature on the cheque. But, as seen from the cheque marked as Ex.P2, the signature of the accused is in English and not in Telugu. Therefore, there is some force in the contention of the accused that the promissory note Ex.P1 was not the one executed in favour of the complainant towards any such borrowed money.

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The next contention of the accused is that he gave some signed blank cheques towards installments to one Sri Rama Finance Company, which had financed for purchasing lorry by his son, and that the complainant had somehow managed to get into possession of one such blank signed cheque mentioning only the figure as Rs.17,000/- and later fabricated the same by filling up all the other columns and altering the figure from Rs.17,000/- to Rs.1,17,000/- by prefixing „1‟ to the figure ‟17,000/-„ and mentioning the amount in words as one lakh seventeen thousand, and that the date on the cheque was also altered.

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The said contention when viewed with the contents of the cheque, it appears to the naked eye that the date portion in the cheque has been altered and the figure „1‟ seems to be prefixed to the figure ‟17,000/-„. Moreover, PW.1 said that the accused signed the cheque in Telugu, but the cheque marked as Ex.P2 shows that the signature of the accused is in English. In the circumstances, the complainant failed to establish his initial burden of proving the debt and it can also be inferred that the cheque Ex.P2 was not issued towards discharge of the debt covered by the promissory note.

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In view of the aforesaid facts and circumstances of the case, this Court is of the opinion that the complainant failed to prove the guilt of the accused beyond all reasonable doubt. The impugned judgment passed by the learned Magistrate is on correct lines and there are no compelling or substantial reasons to interfere with the Order of acquittal passed by the trial Court. The Criminal Appeal is devoid of merit and the same is liable to be dismissed.

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