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2024 DIGILAW 922 (AP)

V. Ramakrishna v. State of AP

2024-08-01

VENKATA JYOTHIRMAI PRATAPA

body2024
JUDGMENT : (Venkata Jyothirmai Pratapa, J.) 1. Impugning the Judgment of acquittal passed in C.C.No.182 of 2004 on the file of the Court of Junior Civil Judge, Madakasira, Anantapur District dated 25.04.2008, the complainant preferred the present appeal challenging the validity and correctness of the Judgment. 2. Appellant herein was the Complainant, Respondent No.2 herein was the accused before the trial Court and the State was shown as Respondent No.1. 3. When this matter is taken up for hearing, none represented for the Appellant. Notice which was sent to the accused returned as unserved. Despite the matter being listed for the fourth time, none represented for the Appellant. It is a Criminal Appeal of 2008 and this Court would like to dispose of the same on merits. 4. As can be seen from the record, the case of the Complainant is that accused borrowed an amount of Rs.1,00,000/- from the Complainant and in discharge of the said debt issued a cheque for Rs.1,00,000/- on 13.06.2004. The cheque was dishonoured with an endorsement 'account closed' on 11.08.2004. Thereafter, the Complainant got issued a legal notice, which was served on the father of the accused, a reply has been issued by the accused on 03.07.2006. As the accused did not choose to discharge the debt amount due, the Complainant preferred a private complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881,[for short 'N.I.Act']. 5. Trial went on, during the course of trial the Complainant himself was examined as P.W.1, the Bank Manager of complainant's Bank was examined as P.W.2, the Bank Manager of the accused Bank was examined as P.W.3, Exs.P1 to P5 were the documents marked. In defence, the accused was examined as D.W.1. 6. After hearing both sides and on appreciation of the evidence of record, the learned trial Judge found the accused not guilty for the offence punishable under Section 138 of the N.I.Act. Accordingly, acquitted him from the said charge. 7. Feeling aggrieved and dissatisfied with the impugned Judgment, the Complainant preferred the present appeal on the ground that the learned Judge failed to appreciate the evidence in right perspective, burden of proving that cheque had not been issued for any debt or liability is on the accused. The evidence of P.Ws.1 to 3 is clinching to the fact that the accused has committed the offence under Section 138 of the N.I.Act. The evidence of P.Ws.1 to 3 is clinching to the fact that the accused has committed the offence under Section 138 of the N.I.Act. The learned Judge should have drawn a presumption in favour of the Complainant, simply because account books were not placed. The Learned Judge erroneously held that the Complainant had no means to lend the amount except formal denial. There is no specific denial of the signature of the accused on the cheque. Arguments Advanced at the Bar 8. Ms. V. Disha Chowdary, learned Assistant Government Pleader submitted the arguments on behalf of the Complainant/Appellant. This Court has taken the assistance of Ms. Majji Venkata Divya Haritha, as Amicus Curiae on behalf of the accused. 9. Learned Counsel representing the Complainant would submit that there is no mandate to show the amount which was lent to the accused in the income tax returns, and the complainant not obtaining promissory note or anything as security is not a ground for dismissal of the complaint. The complainant in categorical terms stated before the Court that he secured an amount of Rs.1,00,000/- from his father-in-law, the complainant has successfully proved the case against the accused. On the other hand, accused failed to rebut the presumption which is in favour of the complainant under Section 139 of the N.I. Act. Learned Counsel finally submits that appeal may be allowed by setting aside the impugned Judgment. 10. Contrasting the same, learned Amicus Curiae would submit that accused is a Chartered Accountant, by virtue of his profession the story of the complainant that he was doing real estate business at the relative point of time cannot be believed. The evidence on record would show that accused is neither friend nor relative to the complainant. Such being the case, without obtaining any security simply lending huge amount of Rs.1,00,000/- to the accused is rightly disbelieved by the trial Court. Learned Amicus Curiae further submits that P.W.3, the Bank Manager of the accused Bank stated that account of the accused was closed even in the year 2002, the subject cheque is of the year 2004. The complainant failed to establish his capacity to lend Rs.1,00,000/- to the accused that too without obtaining any security. Learned trial Judge rightly dismissed the complaint. Learned counsel finally submits that there are no grounds to interfere in the impugned Judgment in the appeal. Point for Determination 11. The complainant failed to establish his capacity to lend Rs.1,00,000/- to the accused that too without obtaining any security. Learned trial Judge rightly dismissed the complaint. Learned counsel finally submits that there are no grounds to interfere in the impugned Judgment in the appeal. Point for Determination 11. Having heard the submissions of learned counsel on both sides and perusal of material on record, the point that would emerge for determination is: "Whether the impugned Judgment of acquittal, passed in favour of the accused by the learned trial Judge is sustainable on facts of law or any interference is warranted in appeal?" 12. Before going to discuss the point framed supra, it is beneficial to refer the Judgment of Hon'ble Apex Court to understand the scope of this Court to appreciate the evidence on record while scrutinizing the material in a case of appeal against the acquittal. 13. This appeal being an appeal against the acquittal of the accused, the Court must keep in mind the presumption of innocence is doubled in favour of the accused. The appellant Court has to examine the validity and correctness of the Judgment in the lines of identifying perversity, if any. The Hon'ble Apex Court in Mallappa & Ors. v. State of Karnataka, [2024] 2 S.C.R. 288, chalked out this view as follows; "24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal. 25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re- appreciate or re-visit the evidence on record. 25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re- appreciate or re-visit the evidence on record. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity." (emphasis supplied) 14. Coming to the facts of the present case, the complainant has approached the Court saying that he has lent an amount of Rs.1,00,000/- to the accused. Admittedly, the said statement of the complainant is bereft of any details as to the date on which the accused borrowed such amount, date on which the complainant secured that amount. P.W.1 stated that he secured that amount from his father-in-law. Admittedly, the father-in-law of the complainant from whom the complainant alleged to have secured that amount was not examined. The complaint is also silent in whose presence the said transaction of borrowing has taken place. It is stated that in discharge of the said borrowing of Rs.1,00,000/-, the accused issued a cheque on 13.06.2004, which was returned as 'account closed'. Coming to the evidence of P.W.3, the Bank account of the accused has been closed in the year 2002. The subject cheque is of the year 2004. It is the evidence of P.W.3 that whenever any customer closes their account they have to return of unused cheques. Be that as it may, the evidence of P.W.3 would suggest that the date which is mentioned on the cheque is not correct. Admittedly, there is no prior acquaintance between the complainant and the accused. According to the Complainant, the accused is a Chartered Accountant and also does real estate business. Be that as it may, the evidence of P.W.3 would suggest that the date which is mentioned on the cheque is not correct. Admittedly, there is no prior acquaintance between the complainant and the accused. According to the Complainant, the accused is a Chartered Accountant and also does real estate business. In that connection the complainant wanted to purchase a property and gave an amount of Rs.1,00,000/- to the accused. The said transaction was not materialized but accused failed to return the said amount. Hence, the story projected by the complainant that the accused borrowed the amount as a loan falsifies the contention that complainant himself has given Rs.1,00,000/- to the accused in connection with real estate transaction. No iota of evidence is placed before the Court in proof of that real estate transaction. In absence of any prior acquaintance with the accused lending Rs.1,00,000/- without any security also probabilize the version of the defence. The evidence of P.W.1 is that his annual income in the year 2005 was Rs.20,000/-. That being the case, in absence of any proof regarding the source of income to P.W.1 to lend such huge amount to the accused. 15. Needless to say that to raise a presumption under Section 139 of the N.I.Act the complainant has to establish the foundational facts for the said presumption is a rebuttable one, accused need not examine himself as a witness to revert such presumption. It is enough if he could bring some material before the Court to probabilize his defence by cross examining the complainant and his witness. In the present case, the accused testified before the Court as D.W.1 and flatly denied the case of the complainant. In the light of the discussion referred supra, this Court does not find any merit in the appeal. There are no grounds emanating from the record warranting the interference of this Court. 16. In the result, the Criminal Appeal is dismissed. Pending Miscellaneous Petitions, if any, shall stand closed.