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2020 DIGILAW 469 (TS)

B. Ravinder v. State Of A. P.

2020-06-12

K.LAKSHMAN

body2020
JUDGMENT: Feeling aggrieved by the judgment, dated 28.08.2007, passed by the II Additional Chief Metropolitan Magistrate, Hyderabad in Calendar Case No.2 of 2005, the appellant - complainant preferred the present appeal. 2. Vide the aforesaid judgment, the trial Court found the respondent-accused not guilty of the charge punishable under Section 138 of the Negotiable Instruments Act, 1881 and, accordingly, acquitted him. 3. The facts germane to file the present appeal are as follows: (i) The respondent - accused approached the appellant - complainant on 01.10.2002 with a request to advance a sum of Rs.3,00,000/- (Rupees three lakhs only) as hand-loan to meet his family necessities. The respondent is a beneficiary of H.E.H. Nizam’s Trust. The appellant believed him and advanced the said amount of Rs.3.00 lakhs on 01.10.2002 to the respondent. The respondent has executed a promissory note dated 04.06.2002 and also passed a receipt to the said loan with a promise to repay the same within one year. (ii) According to the appellant, despite the said promise, the respondent did not repay the same. The appellant demanded several times to repay the said amount, but there was no response from the respondent. (iii) According to the appellant, he has demanded the respondent finally on 03.05.2004, and on such demand, the respondent has issued a cheque bearing No.281205, dated 05.06.2004, drawn on State Bank of Hyderabad, Gunfoundry, Hyderabad for the said amount. (iv) It is the further case of the appellant that he has presented the said cheque for realization with his Banker, Central Bank of Hyderabad, Fateh Maidan Branch, Hyderabad, and the said cheque was returned dishonoured for the reason ‘Account Closed’ vide bank return memo dated 16.09.2004. Thereafter, the appellant got issued a legal notice on 14.10.2004 demanding the said payment of Rs.3.00 lakhs and the respondent despite receiving the same on 16.10.2004, did not pay the said amount and, on the other hand, he got issued a reply dated 27.10.2004 with baseless allegations. (v) Therefore, according to the appellant, since the respondent did not pay the said amount of Rs.3.00 lakhs within the stipulated time in the legal notice dated 14.10.2004, and thereby committed the offence under Section 138 of the Negotiable Instruments Act, 1881, he filed the complaint under Section 200 of Cr.P.C. for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘Act, 1881’). 4. 4. The respondent denied the charge leveled against him and, therefore, the trial Court conducted trial. 5. During trial, the appellant examined himself as PW.1 and marked the documents as Exs.P1 to P6. The respondent examined himself as DW.1 and did not file any documents on his behalf. 6. The trial Court on consideration of the entire evidence, both oral and documentary, acquitted the respondent vide the impugned judgment dated 28.08.2007 in C.C. No.2 of 2005. 7. Feeling aggrieved by the said judgment, the appellant-complainant preferred the present appeal. 8. It is relevant to note that when the matter was listed on 05.12.2019, there was no representation on either side and, therefore, the matter was directed to list on 20.12.2019 under the caption ‘for dismissal’. On 20.12.2019, since there was no representation on behalf of the appellant, the appeal was dismissed for non-prosecution. Since it is a criminal appeal and it was dismissed for non-prosecution, this Court, on 26.12.2019, directed the Registry to list the matter under the caption ‘for being mentioned’ on 27.12.2019. Accordingly, the matter was listed on 27.12.2019, and this Court recalled the earlier order dated 20.12.2019 passed by this Court dismissing the appeal for non-prosecution and since on the said date there was no representation on either side, the matter was directed to be listed on 30.12.2019 under the caption ‘for orders’. However, the matter was listed on 03.01.2020 and the same was adjourned to 10.01.2020 at the request of the learned counsel for the appellant and from 10.01.2020 to 31.01.2020. But, the matter was listed on 04.02.2020 on which date since there was no representation on behalf of the appellant, the matter was directed to be posted on 07.02.2020. Even on 07.02.2020, since there was no representation on both sides, the matter was reserved for orders. 9. In view of the above, this Court disposed of the present appeal on merits basing on the entire record available since the appeal is of the year 2007. 10. It is the specific contention of the appellant that he has advanced an amount of Rs.3.00 lakhs as hand loan to the respondent to meet his family necessities on 01.10.2002 , believing him bona fidely since the respondent is a beneficiary of H.E.H. Nizam’s Trust. 10. It is the specific contention of the appellant that he has advanced an amount of Rs.3.00 lakhs as hand loan to the respondent to meet his family necessities on 01.10.2002 , believing him bona fidely since the respondent is a beneficiary of H.E.H. Nizam’s Trust. According to the appellant, the respondent has executed a pro-note on 04.06.2002 and also passed a receipt for the said amount with a promise to repay the same within one year. It is also the specific contention of the appellant that the respondent did not repay the said amount within one year as promised by him and also despite several demands. However, finally on 03.05.2004, when the appellant demanded the respondent for the said amount, he has issued a cheque bearing No.281205, dated 05.06.2004 for the said amount of Rs.3.00 lakhs drawn on State Bank of Hyderabad, Gunfoundry, Hyderabad. The appellant has presented the said cheque with his Banker viz., Central Bank of Hyderabad, Fateh Maidan Branch, Hyderabad for realization of the amount, but the same was returned dishonoured vide bank return memo dated 16.09.2004 for the reason ‘Account Closed’. Thereafter, the appellant got issued a legal notice on 14.10.2004 demanding the respondent to pay the said amount and the same was received by the respondent on 16.10.2004. Despite receipt of the said legal notice, the respondent did not pay the said amount and on the other hand, got issued a reply on 27.10.2004 with all false and baseless allegations. In the said circumstances, according to the appellant, he has filed the complaint under Section 200 of Cr.P.C. against the respondent for the offence under Section 138 of Act, 1881. 11. To prove that the respondent has issued the cheque towards legally enforceable debt, the appellant himself examined as PW.1 and got marked the documents as Exs.P1 to P6. To disprove the same, respondent No.2 examined himself as DW.1. 12. In Ex.P6, reply notice, dated 28.10.2004, respondent No.2 has categorically informed the appellant that he has not issued the said cheque to the appellant and that it was issued to one Sadasiva Rao in blank form as respondent No.2 was taking small hand loans from the said Sadasiva Rao and on the insistence by the said Sadasiva Rao for blank cheques, promissory notes, respondent No.2 gave the subject cheque to him. According to respondent No.2, he has repaid the major amounts to Mr. According to respondent No.2, he has repaid the major amounts to Mr. Sadasiva Rao and that he never taken the said amount of Rs.3.00 lakhs from the appellant at any point of time. It is also specifically stated by respondent No.2 in Ex.P6 reply notice that the appellant in collision with the said Sadasiva Rao, misused the blank cheque and blank promissory note given by him to Sadasiva Rao and filed a false complaint against him. 13. In view of the above said rival contentions, initial burden lies on the appellant - complainant to prove that respondent No.2 has issued the subject cheque towards discharge of legally enforceable debt. To prove the same and discharge the said burden, the appellant himself examined as PW.1 and marked the documents as Exs.P1 to P6, which are original cheque for Rs.3,00,000/-, cheque return memo dated 16.09.2004, office copy of legal notice, original post receipt, postal acknowledgment card, reply notice and demand promissory note respectively. 14. On perusal of the entire evidence, both oral and documentary, it is an admitted fact that the signature on Ex.P1 cheque belongs to respondent No.2 - accused since the same was not disputed by him. It is also not in dispute that the appellant has submitted the said cheque for realization and the same was dishonoured and as such, he has got issued a legal notice vide original of Ex.P3 demanding for payment of the amount covered under the said cheque. On receipt of Ex.P3, respondent No.2 got issued a reply vide Ex.P6 disputing the issuance of very cheque and liability to the appellant. His specific contention as per Ex.P6 is that he has issued the said cheque to one Sadasiva Rao and also a blank promissory note. 15. During cross-examination, PW.1 i.e., the appellant has categorically admitted that he knows the said Sadasiva Rao, who is his friend since 15 years. He has further admitted that the said Sadasiva Rao is also coming to the Court on each and every adjournment of the case. Even then, the appellant did not examine the said Sadisiva Rao in the present case which is fatal to his case. He has further admitted that he is having photo studio and he has not filed any income tax returns to show that he is having capacity to pay the said amount of Rs.3.00 lakhs towards hand loan to respondent No.2. He has further admitted that he is having photo studio and he has not filed any income tax returns to show that he is having capacity to pay the said amount of Rs.3.00 lakhs towards hand loan to respondent No.2. PW.1 has also categorically admitted during cross-examination that he has given Rs.3.00 lakhs to respondent No.2 again though respondent No.2 did not pay the amount of Rs.3.00 lakhs given earlier without any interest. PW.1 further admitted that presentation of Ex.P1 cheque was on 16.09.2004. He has further admitted that he got issued statutory legal notice through one Someshwar Rao, Advocate, but perusal of Ex.P3 legal notice, it was issued by one Rami Reddy, Advocate. However, PW.1 also admitted during cross-examination that he does not know who is Rami Reddy. He has further admitted that he did not know the contents of Ex.P6 reply notice and that his lawyer knows the same. He further admits that he does not clearly mention whether he lent the loan to respondent No.2. 16. As stated above, initial burden lies on the appellant that respondent No.2 has issued the subject cheque towards repayment of legally enforceable debt. The appellant has not filed any documents to show that he is having capacity to lend the said amount of Rs.3.00 lakhs to respondent No.2 as hand loan. 17. One more importance circumstance is that the appellant has admitted during cross-examination that he has presented Ex.P1 cheque on 16.09.2004, whereas the cheque was returned on 16.09.2004 vide cheque return memo. It is also relevant to note that PW.1 has also admitted that he got issued Ex.P3 legal notice through one Someshwar Rao, Advocate, but on perusal of it, the same was issued by one Mr. Rami Reddy, Advocate. It is also relevant to note that PW.1 does not know the said Rami Reddy, Advocate as well as contents of reply notice Ex.P6. 18. The above said admissions of PW.1 and the circumstances clearly reveal that the appellant has no acquaintance with respondent No.2 - Accused. 19. It is also relevant to note that according to the appellant, he lent the amount to respondent No.2 on 01.10.2002 and that respondent No.2 executed promissory note on 04.06.2002 and in pursuance of the same, respondent No.2 had issued the subject cheque on 05.06.2004, whereas Ex.P7 demand promissory note was on 01.10.2004 i.e., after lapse of four months. 19. It is also relevant to note that according to the appellant, he lent the amount to respondent No.2 on 01.10.2002 and that respondent No.2 executed promissory note on 04.06.2002 and in pursuance of the same, respondent No.2 had issued the subject cheque on 05.06.2004, whereas Ex.P7 demand promissory note was on 01.10.2004 i.e., after lapse of four months. There is no explanation by the appellant with regard to the said delay. The appellant has also failed to explain the source of his income to lend the said amount of Rs.6.00 lakhs. The appellant during his crossexamination has categorically admitted that respondent No.2 did not repay the amount of Rs.3.00 lakhs given by him earlier in October, 2002 without any interest and even then he has extended another sum of Rs.3.00 lakhs which is covered by the subject transactions. In view of the same, the appellant did not explain his source of income and financial status to extend such huge amount of Rs.6.00 lakhs to respondent No.2 towards hand loan. 20. As stated above, there is no explanation by the complainant with regard to the delay of four months from the date of issuance of subject cheque till the date of execution of Ex.P7 promissory note. The appellant failed to give the details of witnesses who signed Ex.P7. 21. In view of the above said discussion and admissions of PW.1 and also the circumstances referred supra, the contention of the appellant that he has extended the said hand loan of Rs.3.00 lakhs to respondent No.2 and that in connection with the said transaction, respondent No.2 has issued the subject cheque towards repayment of the said loan amount cannot be believed and the deposition of PW.1 is not trustworthy. Thus, respondent No.2 has rebutted the presumption under Section 139 of the Act, 1881. 22. It is relevant to note that the trial Court on the analysis of the entire evidence, more particularly, the admissions of PW.1 during crossexamination and also the dates of Ex.P1, Ex.P2 and Ex.P7, acquitted respondent No.2. The trial Court has given specific reasons, more particularly, the circumstances in the present case. This Court is satisfied with the reasons given by the trial Court in the impugned judgment. Therefore, there is no circumstance or reason warranting interference by this Court in the present appeal. Thus, the appeal fails and accordingly the same is liable to be dismissed. 23. This Court is satisfied with the reasons given by the trial Court in the impugned judgment. Therefore, there is no circumstance or reason warranting interference by this Court in the present appeal. Thus, the appeal fails and accordingly the same is liable to be dismissed. 23. In the result, the appeal is dismissed confirming the judgment, dated 28.08.2007, passed by the trial Court in C.C. No.2 of 2005. As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.