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2002 DIGILAW 482 (AP)

J. Subba Rao (Complainant) v. T. Bucha Reddy

2002-04-01

ELIPE DHARMA RAO

body2002
ELIPE DHARMA RAO, J. ( 1 ) THIS Criminal Appeal is directed against the Judgment of the learned II Additional metropolitan Sessions Judge, Hyderabad dated 24-11-1995 in Crl. Appeal No. 409 of 1994 acquitting the 1st respondent-accused by reversing the Judgment of the learned xvii Metropolitan Magistrate, Hyderabad in CC No. 413 of 1993 dated 30-8-1994 under which the 1st respondent-accused was convicted and sentenced to pay a fine of rs. 500/- in default to undergo S. I. for one month for the offence under Section 138 of the Negotiable Instruments Act. ( 2 ) THE case of the appellant-complainant is that on 8-2-1989 the 1st respondent-accused took a sum of Rs. 25,000/- as hand loan from his and he gave a cheque dated 31-1-1993 for rs. 20. 000/- in discharge of the said loan and on presentation of the said cheque, it was bounced on 26-61993 for insufficiency of funds in the account of the accused. The appellant-complainant then gave a notice dated 5-7-1993 to the accused calling upon him to pay the amount. The accused received the said notice on 6-7-1993 and gave a reply dated 30-8-1993 requesting for time. Since the 1st respondent-accused did not pay the amount, he filed the complaint. ( 3 ) BEFORE the trial court to prove his case the complainant got examined one witness as P. W. 1 and got marked Ex. P-1 to Ex. P-6. D. W. 1 was examined on behalf of the 1st respondent-accused. No documentary evidence was adduced on behalf of the 1st respondent-accused. ( 4 ) THE learned Magistrate upon consideration of the entire evidence on record came to the conclusion that the 1st respondent-accused issued the cheque for rs. 20,000/- in discharge of the legally enforceable debt in favour of the appellant- complainant and accordingly convicted and sentenced him for the said offence as aforesaid. Aggrieved by the said conviction and sentence, the 1st respondent-accused preferred an appeal before the II Metropolitan sessions Judge, Hyderabad and the learned sessions Judge by his judgment incrl. Appeal no. 409 of 1994 dated 24-11-1995 found the 1st respondent-accused not guilty of the offence under Section 138 of the Negotiable instruments Act and acquitted him of the said offence. Aggrieved by the said order of acquittal, the present appeal has been filed by the complainant. ( 5 ) THE contention of the learned counsel for the appellant is that Ex. 409 of 1994 dated 24-11-1995 found the 1st respondent-accused not guilty of the offence under Section 138 of the Negotiable instruments Act and acquitted him of the said offence. Aggrieved by the said order of acquittal, the present appeal has been filed by the complainant. ( 5 ) THE contention of the learned counsel for the appellant is that Ex. P-1 cheque was admitted by the 1st respondent-accused and this fact was also mentioned in Ex. P-5 notice in which the 1st respondent-accused requested to give further time to pay the amount and therefore, it cannot be said that the debt is time-barred. But the learned sessions Judge, without considering the evidence available on record has wrongly acquitted the accused. He therefore, contends that the order of the learned sections Judge is liable to be set aside. ( 6 ) ON the other hand, the learned counsel for the 1st respondent-accused supported the judgment of the court below. ( 7 ) 1 have gone through the entire evidence available on record and the judgments of both the courts below. The evidence on record shows that the 1st respondent-accused took a loan of Rs. 25,000/- from the appellant- complainant by executing a Promissory Note on 8-2-1989 for which he gave Ex. P-1 cheque dated 31-1-1993 for Rs. 20/000/- in part payment of the debt. After executing the promissory note the 1st respondent-accused paid Rs. 1,000/- and got endorsed on the reverse of the promissory note before expiring the 3 years period and later the 1st respondent-accused issued Ex. P-1 cheque in discharge of his legally enforceable debt. Therefore, the contention of the learned counsel for the 1st respondent-accused that the promissory note is dated 8-2-1989 and ex. P-1 is dated 31-1-1993 and therefore, the debt is time-barred cannot be sustained. The debt is within the time for the above reasons. P-1 cheque in discharge of his legally enforceable debt. Therefore, the contention of the learned counsel for the 1st respondent-accused that the promissory note is dated 8-2-1989 and ex. P-1 is dated 31-1-1993 and therefore, the debt is time-barred cannot be sustained. The debt is within the time for the above reasons. ( 8 ) IN support of his contention, the learned counsel for the appellant relied on a judgment of the Supreme Court in Hiten P. Dalai v. Bratindranath Banerjee ( (2001) 6 SCC 16 ) wherein it was held that it is obligatory on the court to presume the liability of the drawer for the amount of the cheque in every case where the factualbasis for such presumption is established and such a presumption can be rebutted by the drawer by proving on evidence that the holder of the cheque had not received the same towards the discharge of any legally enforceable liability and such rebuttal does not have to be conclusively established - The court must either believe the defence to exist or consider its existence to be reasonably probable. But mere explanation given by the drawer, although plausible would not be sufficient. ( 9 ) IN the present case on hand, it is for the 1st respondent-accused to enter into the box to rebut that presumption that the debt is time-barred and he has not issued Ex. P-1 cheque for a legally enforceable debt. But the 1st respondent-accused has not chosen to enter into the box to rebut such a presumption. Therefore, it must be held that the 1st respondent-accused has issued ex. P-1 cheque in favour of the complainant in discharge of the legally enforceable debt. But the learned Sessions Judge without considering the matter in a proper perspective has held that the debt is time- barred and wrongly passed the order of acquittal. ( 10 ) IN the light of the judgment of the supreme Court and in view of the facts and circumstances of the case, the order of acquittal passed by the learned Sessions judge in Crlappeal No. 409 of 1994 dated 24-11-1995 is liable to be set aside and it is accordingly set aside. In addition to that I deem it appropriate to direct the 1st respondent-accused to pay a sum of Rs. 25. 000/- to the appellant-complaint towards compensation under Section 357 Cr. In addition to that I deem it appropriate to direct the 1st respondent-accused to pay a sum of Rs. 25. 000/- to the appellant-complaint towards compensation under Section 357 Cr. P. C. ( 11 ) THE Criminal Appeal is accordingly allowed and the order of acquittal passed by the learned II Additional Metropolitan sessions Judge dated 24-11-1995 in crlappeal No. 409 of 1994 is hereby set- aside and the matter is remanded to the learned XVII Metropolitan Magistrate, hyderabad for imposing the sentence as per the provisions of Section 138 of the Act after giving notice to both the parties. In addition to the sentence to be passed by the learned magistrate, the 1st respondent-accused shall pay an amount of Rs. 25,000/- to the complainant towards compensation under section 357 Cr. P. C.