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2016 DIGILAW 715 (AP)

N. Narsamma v. Chinna Mukkiranna

2016-12-19

SURESH KUMAR KAIT

body2016
JUDGMENT : 1. Vide the present appeal, the appellant/complainant has assailed the judgment dated 05.10.2016 passed in C.C No.71 of 2011 on the file of the Judicial First Class Magistrate at Gadwal, Mahabubnagar District. 2. Learned counsel appearing on behalf of the appellant/ complainant submits that the respondent/accused has never denied the signature on Ex.P1. But in spite of that, the learned Magistrate has passed the impugned order, thereby acquitted the accused. All the statutory ingredients to attract the offence under Section 138 of Negotiable Instrument Act (N.I. Act) are complied with in the present case. Such as, drawing the cheque in favour of the complainant towards legally enforceable debt, dis-honour of the cheque, issuing of the demand notice and failure the respondent/accused to pay the cheque amount within the period of 15 days from the date of notice. But without considering the same, the Court below acquitted the respondent/accused. 3. Learned counsel submits that the respondent/accused has taken a defence that appellant/complainant is a stranger to him and he denied to have obtained any loan from her. He further submits that in fact the respondent/accused has issued the subject cheque for Rs.5,000/- to one civil contractor by name Shedrick in the year 2008 and the same is misused by the husband of the appellant/complainant herein and filed the present case. The same has been relied by the Magistrate without examining the said contractor. 4. The facts of the case are that on the request of the respondent/accused, the appellant advanced an amount of Rs.1,50,000/- towards loan to the respondent/accused on 18.09.2009. To that effect, the respondent/accused executed a promissory note in favour of the appellant/complainant agreeing to pay interest @ 24% per annum. On repeated demands made by the appellant/complainant, the accused issued a cheque bearing No.659746, dated 20.09.2010. The appellant presented the same for collection. However, it was returned on the ground of “Funds insufficient”. 5. After completion of rituals, the appellant/complainant filed a complaint under Section 200 Cr.P.C for the offence under Section 138 of N.I.Act before the Court below. Therein, one witness is examined and 7 documents are marked on behalf of the appellant/complainant. However, on behalf of the respondent/accused, no witnesses is examined and no documents are marked. 6. In order to prove the case of the appellant/complainant, the appellant has to prove the following essential ingredients of Section 138 of N.I.Act. Therein, one witness is examined and 7 documents are marked on behalf of the appellant/complainant. However, on behalf of the respondent/accused, no witnesses is examined and no documents are marked. 6. In order to prove the case of the appellant/complainant, the appellant has to prove the following essential ingredients of Section 138 of N.I.Act. (1) Whether Ex.P1 cheque bearing No.659746 for Rs.1,50,000/- has been given by the accused to the PW.1 for legally enforceable debt or other liability? 7. On perusal of the oral and documentary evidence, the Court below has opined that the respondent/accused had denied the contention of the appellant/complainant stating that he issued a cheque to one civil contractor Shedrick in the year 2008 for Rs.5,000/- and the same was misplaced by the said person and the husband of the appellant/complainant misused it by filing false complaint against the respondent/ accused. 8. It is not in dispute that the appellant/complainant has not examined any bank officer, to prove Ex.P4 bank return memo dated 23.12.2011 issued by the State Bank of Hyderabad, Gadwal branch. In order to prove this aspect, even the respondent/accused got issued second reply notice to PW.1 vide Ex.P7 by taking the same defence that of in the first reply notice. Ex.P3 and Ex.P7 reply notices and the cross examination of PW.1 establish that the accused did not give Ex.P1 reply directly to PW.1. On the other hand, the respondent/accused denied that he borrowed Rs.1,50,000/- from appellant/complainant at any point of time. 9. It cannot be disputed that the penal provisions should be construed strictly and the emphasis on the words “such person”, it is manifest from the expression of the words used in Section 138 of N.I.Act that “such person shall be deemed to have committed the offence” relate to the person who has drawn the cheque in favour of the payee and if the said cheque is returned unpaid on account of the conditions mentioned under Section 138 of N.I.Act, such person alone is liable but not others except in the contingencies mentioned under Section 141 of the Act. Under these circumstances, how the liability be fixed on the accused, when the complainant failed to prove his case. Under these circumstances, how the liability be fixed on the accused, when the complainant failed to prove his case. It is not the case of the appellant/complainant that PW.1 and the respondent/ accused are having good acquaintance, out of such acquaintance, the appellant/complainant advanced an amount of Rs.1,50,000/- towards legally enforceable debt or other liability. 10. Moreover, the appellant/complainant did not mention in the complaint about the direct relationship with the respondent/accused. The appellant/PW1 herself not in a position to know what kind of relationship between her and the accused about advancing the amount to PW.1. However, the complainant failed to prove a fact even after reply notice is given by the respondent/accused, when the accused requested the appellant/complainant to present the cheque once again for collection. 11. It is settled principle of law that once the accused takes the plea that cheque was not issued for discharge of a legally enforceable debt or liability, then the complainant is bound to prove the circumstances under which the cheque was given in her favour and the same is issued in discharge of legally enforceable debt. Unless the initial burden is discharged by the complainant the presumption available under Section 139 of N.I Act cannot be made against the accused. 12. As per Section 138 of N.I.Act, there must be a money transaction between the accused and the complainant and the alleged cheques should be concerned to discharge the debts or other liability. In the case in hand, there is no piece of paper that the complainant advanced the amount to the accused and the accused indebted to complainant for the alleged amount. According to the complaint allegations, the accused executed a promissory note on 18.09.2009 for Rs.1,50,000/- at the rate of 24% interest per annum. But, the appellant/complainant did not file the said promissory note to prove her contention. Mere issuance of a cheque is not an offence under Section 138 of N.I. Act. 13. In view of the above discussion, I find no merit in the instant appeal and the same is accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed.