Dismissed

Sameena Zulkhadar Baig, Somajiguda, Hyderabad v. Mrs. Tasneem Fatima, Amberpet, Hyderabad and Anr, Rep.by Pp.

Telangana HC14 Jun 2023CRLA/1558/2010

Case brief

AI extract

What is this about?

In this criminal appeal against acquittal under Section 138 of the Negotiable Instruments Act, the High Court of Telangana upheld the trial Magistrate's decision to acquit the accused. The court held that the appellant failed to prove an enforceable debt as the cheque was issued six years after the alleged cash transaction. Consequently, the appeal was dismissed.

What did the court decide?

The criminal appeal is dismissed, and the order of acquittal is upheld.

Sameena Zulkhadar Baig, Somajiguda, Hyderabad Vs Mrs… — Cheque Dishonour | Telangana HC (2023)

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HIGH COURT FOR THE^{STATEOF TELANGANA AT HYDERABAD}

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WEDNESDAY ,THE FOURTEENTH^{DAY OF JUNE} TWO THOUSAND AND TWENTY^THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER

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CRIMINAL APPEAL NO: 1558 OF 20't0

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Appeal under Section 378 (4) of Criminal Procedure Code against the Judgment dated 28.06.2010^passed in C.C.No.⁴¹⁷ of²⁰¹⁰ on the^file of the Courtof the lV Additional Chief Metropolitan Magistrate, Hyderabad.

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Between:

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Sameena Zulkhadar Baig, W/o. Mirza Zulkhadar Baig Household R/o. Flat No. 310, Metro Residency, Raj Bhavan Road, Somajiguda, Hyderabad.

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...ApellanUComplainant.

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AND

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Mrs. Tasneem Fatima, W/o. KabirAhmed , Occ:Business Rt/o. H.No. 2-318/16, Street No. 6, Tulsinagar Colony, Golnaka, Amberpet, Hyderabad. (Accused)

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The State of Telangana, Rep. by its Public Prosecutor, High Court of A.P.,Hyderabad.

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...Respodents

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Counsel for the Appellant:Sri. O Kailashnath Reddy

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Counsel for the Respondent No.1: The Public Prosecutor (TG)

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Counset for the Respondent No.2: Parsa Ananth Nageswar Rao

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The Court made the following: Judgment:

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HON'BLE SRI JUSTICE K.SURENDER CRIMIN{_L APPEAL No 1558 0F 2010

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JUDGMENT:

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l The appellan t / co rn plai nant IS aggrieved by rhe judgment dated 2i1.0(r,20 l0 ol rhc it:arned IV Additional Chief Metropolitan Magistrate, Flyderabad, acquitting the lsr respondent/accused for the offence under Section l38 of the Negotiable Instruments Act.

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Briefly, rhe case of' r he appellant is that she fiied complaint stating that the lsrrespontlenr/accused and her daughter assured her and her hlrsband lhat thcl.rvould arrange visa to USA within a period of three months. Appellant and her family members gave an amount of Rs.7.00 lakhs to the accused towards Visa fees, processing charges ald also orher expenses. An amount of Rs.3.50 lakhs was paid by way of transfer. No visas were arranged as promised and alter waiting for. a five years, the appellant and her husband asked lhe accused to return the amount. Ultimately, in June, 2008, the itccused issuecl cheque for Rs.4.00 lakhs. The said cheque when pr<_.sented for clearance was returned unpaid for the reason of^{,insufh<;ient} funds,. Though legal notice was issued, no payment was made, as such, complaint was filed.

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\re
\J

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exarnined^{herseif and her husbandas} 3. The^compiainant to P6.^{The accused did not} P.Ws.l^{and 2 and markedExs'Pl} examine^{anY witness in defence'}

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Learned^{Magistratehas recorded acquitta-l on the ground} that;^{i) the alleged amountwas given in the year 2OO2 ar,.d cheque} was issued^{nearly six years iater i.e., in the year 200g. Since the} period is^{beyondlimitationof threeyears' no suit for recovery can} be filed^{and consequently no enforceabledebt; ii) As per the Bank} statement,^{chequeswere given to the daughter of the accused'as} such,^{the accused cannotbe mulctedwith criminalliability; iii)The} statutory^{notice issued by P'W'1 was signed by one Nousheenand} the accused^{was out of the country on Pilgrimageto Haj whenthe} notice^{was sent'}

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Learned^{Magistrate relied onthe judgment ofHon'ble} Supreme^{Court in the case of M'D'Thomas v'P'S'Jaleel and} anotherr,^{whereinthe Hon'bleSupremeCourt held that service of} notice^{to a family membercannot be deemed as serviceto ' the} person^{to whom the noticeis sent'}

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' 120to1t^{supreme courtcases(cri)1387}

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Learnc'cl c()unsel appe'ering^{lor the appelleurtrvould submit} that the lcanted Magistrate^{has committed an error in acquitting} the erppellant s^{hen presumptlorris raised under Section 139 of the} Negotiable InstrLimellts,\ct^{aud the accused has failed to discharge} her burden. Sinr:e the^{chequc-in questionwas not disputed,tbe} appeal has to be^{i,tlloq'ed b1'corlvictingthe accused'}

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ndmlttedh'. the amount^{ailegcdlygiven as cash to an cxtent of} Rs.3.5O lakhs,^{there is no clocumentaryevidenceexcept tl-re oral} testimonv. Witl-r regarcl^{tothe remainingRs'3 50lakhs'the} arrroLlnts^$ ere nol^{paid to the zrccused.As stated by the learned} N4agistrate, the^{compiainant has lailed to provethat there is any} legally enforccable^{debt on the chequewhichwas issued nearlyslx} 1,ears^{alter the alleged pa.vmentof money by the complalnantand} her family- members.^{Therc calnotbe any civil liabilitythat canbe} cnforced by the comPlainanr.

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In Ravi Sharma v. State^{(Governmentof NCT of Delhi)and} anothel, the^{l-{on'trleSupremc Courtheld that while dealing with an} appeal against acquLttal,^{lhe appcllatc court has to consider rvhcther thc} trial Courl's vie',r, c:tn^{be termed as a possibleone, particuiarlywhen}

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' (2022) 8 5upreme CoLrt C.sc ) 535

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evidence on rccord has been analvsecl The rcason is that an order of acquittal adds up to the presumption o[ innocence in favour of the accused. Thus, thc appellate court has to be relatively slow in rcversing thc order of the trial court rendcring acquittal.

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