Dismissed

N. Prem Chander, Hyd v. Myakala Shiva Prakash, Sec-Bad and Anr.

Telangana HC13 Aug 2024CRLA/789/2014

Case brief

AI extract

What is this about?

Complainant appealed against acquittal in a cheque dishonour case under Section 138 NI Act, contending the trial court misappreciated evidence. The High Court held acquittals should not be disturbed absent perversity or manifest illegality, found no grounds for interference, and dismissed the appeal confirming the acquittal.

What the court decided

AI extract

N. Prem Chander, Hyd Vs Myakala Shiva Prakash, Sec-Bad… — Cheque Dishonour | Telangana HC (2024)

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[³²⁹⁹ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND TWENW FOUR

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PRESENT

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THE HON'BLE SRI JUSTICE E.V. VENUGOPAL

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CRIMINAL APPEAL No: 789 of 2O14

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Criminal Appeal under Section 378 (1) of Cr.P.C aggrieved by the Judgment dated 1 3-06-2014 in C.C.No.391 of 2012 on the file of the Court of the VIll Special Magistrate, Hyderabad.

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Between:

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M. Prem Chander, S/o. Ravindra Nath, Age: 34 years, Occ: Business^Fl/o. H.No 1 -B-5OG122, Prakash Nagar, Begumpet, Hyderabad.

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...APPELLANT/COM PLAINANT

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ANO

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Myakala Shiva Prakash, S/o. M. Mallaiah, Age. 55^years, Occ:^Govt. Employee R/o. H.No.3-39-51, Plot No. 44B, Sarva Sukhi Colony,^West Maredipally, Secunderabad. ...RESPONDENT/ACCUSED

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The State of Telangana, Represented by Public Prosecutor High Court^at Hyderabad.

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..RESPONDENT

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Counsel for the Appellant: SRI A. BHUVAN SUNDER REDDY

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Counsel for the Respondent No.1: None Appeared

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Counsel for the Respondent No.2: Ms. S. MADHAVI,

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ASSISTANT PUBLIC PROSECUTOR

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The Court delivered the following: JUDGMENT

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THE HONOURABLE^{SRI WSTICE E.V. VENUGOPAL}

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CRIMINAL APPEAL^{No. 7A9 0F 20L4}

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JUDGMENT:

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This Oriminal Appeal^{is preferred by the appellant} against the^{judgment dated 13'06.2014in C.C.No'39Iof} 2O 12 passt:d by the^{learned VIII Special Metropolitan} Magistrate, Hyderabad^{(for short, "the trial Court") wherein} and wher:under the^{learned Magistrateacquitted} 1"t responrient/ accused^{for the offence punishable under} Section 138 of the^{Negotiable InstrumentsAct} (for short, "r he NI Act").

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Heard learned counsel for the^{appellant and Ms' S.} Madhavi, learned Assistant^{Public Prosecutor appearing for} respondent No.2-State.^{Perusedthe record.}

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The brief facts of the^{case are thatthe} appellant/complainant and^{respondent No. 1/accused were} acquainted u'ith each other.^{The accused approached} complainan t and requested for a^{hand loan. On such} request, th,r complainant lent an amount of^{Rs.2,25,0O0/-} by u,a_l- o '- cash - and in turn the accused executed

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EW,J C|LA.No.7A9 o! 2014

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Promissory Note in favour of the complainant on ll.Ol.2Ol2. The Complainant has demanded the accused to return the above said loan amount, for which the accused issued a cheque bearing No.O17906, dated 05.O5.2012, for Rs.2;25,OOO/-, drawn on SBH Bank, Lalaguda Branch, Hyderabad towards discharge of the said hand loan. On presentation of the said cheque for realization, the same was returned dishonoured with an endorsement 'Funds lnsufficient' along with cheque return memo dated 07.O5.2O12. Therefore, complainant got issued legal notice dated 15.05.2O12 and the same was served on the accused on 19.O5.2012, but the accused did not repay the^cheque amount. After recording the sworn statement of the complainant, the learned trial Court numbered the same as C.C.No.39 1 of 2Ol2 on the file of VIII Special Magistrate at Hyderabad.

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The trial Court vide impugrred^{judgmentfound} respondent No.1/accused not Cuilty for the offence punishable under Section 138 of the NI Act and acquitted

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EW,J C"LA.No.7a9^{oJ 2014}

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I I!t I I I E I II I i ! i :,

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the apPellant Preferred^the him. Aggrieved^{bY the same,}

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present Criminal^APPeal'

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Learned^{counselfor the appellant contendedthat the} trial Courl^{failed to appreciate the evidenceavailableon} record in^{proper perspectiveand rendered the impugned} judgment. Therefore,^{he seeks to set aside the impugned} judgment..

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lrarred Assistant^{PublicProsecutor contended that} the trial^{Court upon carefulscrutiny of the material} available^{onrecord, acquitted theaccused and} interferen,:e^{of this Court is unwarranted' Therefore' learned} Assistant^{Public Prosecutor seeks to dismissthe criminal} appeal.

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On beha-lf^{of the complainant, the complainantgot} himself examined^{as PWI and got marked Exs'Pl to P6'} On .beha f^{of theaccusecl, none were examinedand no} docuftren:s^{u'ere markedUponcarefulscrutinyof the oral} and docttmentary^{evidence and placing relianceon the} decisions^{rendered inNaglsettgNaga:iah us Stateo:f}

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EW,J CiLA.No.7a9 of 2014

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i j i !

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Andhra Pradesh and dnotherr, K. Kt'lshna Reddg as RaJendra 6t Anotherz, M/s Kanahiga Lal Chamqndt Lal Vs Subhrrsh3, and D. Achgutha Reddg Vs State of Andhra Pradesh and anothera, the trial Court rightly passed the impugned judgment dated 13.O6.2014 in C.C.No.39 1 of 2Ol2 holding that the complainant failed to prove the legally enforceable debt due by the accused to the complainant and failed to prove that the Cheque under Ex.Pl was issued by the accused towards discharge of legally enforceable debt or liability and thereby acquitted the accused for the offence punishable under Section 138 of NI Act. In the absence of oral and documentar5r evidence, the amount mentioned in the cheque is not deemed to be a legally enforceable debt. Therefore, as there were lapses and defects, the trial Court observed that the complainant failed to prove the case against the accused and acquitted the accused for the offence under Section 138 of the NI Act.

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'^{2oo.r c.r lJq toz(,{p)} t zo r z (r ) at,o (c'rl q:rl (npl

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' 20l:] (l)Crxnes 275 (RalastharJ

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' zo rolL 1 e.lo 1c.t) s+.149

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EW,J C"LA.No.7a9^{of 2014}

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i I

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It is^{well settled law that} in an^aPPeal against 1S circumscribed by the acquittal,^{the appellatecourt} limitation^{that no interferencehas to be made} v/ith the order unless^{the approach made by the trial Court to the} consideration^{of evidenceisvitiated by somemanifest} illegality^c r^{the conclusion recorded by it is suc'h' which} couldnothavebeenpossiblyarrivedatbyanyCourtacting reasonabllr^{and judiciouslyand is'therefore' tobe} characterizedaSperverse.Thereisnoembargoonthe appellate^{Court in reviewingthe evidencebasing on which} an order,lf^{acquittal can be passed' Genera-lly' the order of} acquittal^{shall not beinterferedwithbecilusethe} presumption^{ofinnocence of the accused isfurther} strengthened^{by acquittalThe golden thread which runs} through^{the web of administrationof justice in criminal} cases is^{that, iftwo views are possibleon the evidence} adducerlinthecase,onepointingtotheguiltoftheaccused and the^{other to his tnnocence' the vieu' n'hich is favourable} to the ac:used^{should be adoPted'}

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EW,J CrLA-No.78g of 2014

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9. In Mrinal Das Vs. State of Trlpuras, the Apex Court

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held as under:

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"It is clear that in an appeal against acquittal in the absence of perversit5r in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conciusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court

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t (zot t) q scc +rg

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EryJ C.LA.Na.789 ol20t4

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carr also review the conclusion arrived at by' the trial Court with respect to both facts and law. Whik' dealing with the appeal against acqlrittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered u,ith only when there are "compelling and substantial reasons" for doing so. If the order is "ck:arly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying decla.r-ation/report of ballistic experrs erc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."

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In Maloth SomaraJu Vs. State of Andhra pradesh6,

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the Apex Court held that there can be no tu.o opinions that merely because the acquittal is found to be u.rong and another vierv can be taken, the judgment of acquittal cannot be upset. The appellate Court has more and serious responsibiliSr while dealing with the judgment of acquittal

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u 12or ry 8 scc 63r;

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EW,J CrLA.No.7E9 oJ 2014

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and unless the acquittal is found to be perverse or not at a,ll supportable and where the appellate Court comes to the conclusion that conviction is a must, the judgment of acquittal czrnnot be upset. The appellate Court has to examine as to whether the trial Court, while upsetting the acquittal, has taken such a care.

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In view of the Judgments referred to above and for the aforesaid reasons, I am of the view that there are no merits in the appeal and the same is liable to be dismissed.

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L2. Accordingly, this Criminal Appeal IS dismissed, confirming the judgment dated 13.06.2014 in C.C.No.391 of 2012 passed by the learned VIII Special Metropolitan Magistrate, Hyderabad

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As a sequel thereto, miscellaneous petitions, if any,

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pending shall stand ciosed

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sd,- i. SRINIVAS DEPUl$:crsrRAR

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//TRUE^COPY//

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SECTION^OFFTCER

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To,