THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.450 of 2006 DATED: 14.02.2011 BETWEEEN: B.Bhoopal Reddy, S/o.Sri Mohan Reddy … Appellant/complainant AND 1. B.Srinivasa Reddy, S/o. Ram Reddy … Respondent/Accused 2. The State of A.P. rep. by the Public Prosecutor …Respondents HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.450 of 2006 JUDGMENT: The complainant is the appellant. CC.No.645 of 1998 filed by him in the Court of IV Additional Chief Metropolitan Magistrate, Hyderabad ended in acquittal of the accused/respondent by judgment dated 30.12.2005 for offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act). The case is based on dishonour of Ex.P1, cheque drawn by the accused in favour of the complainant for Rs.1,20,000/- as per Ex.P3, cheque return memo, dated 12.08.1998. After issuing statutory notice dated 24.08.1998, for which the accused gave reply as per Ex.P7 dated 05.09.1998, the complainant filed the private complaint in the lower Court. The accused pleaded in the lower Court that the complainant and others joined in the business along with him and subsequently, because of their miss-management, they were asked to go away from the business and that while going away, the complainant and others committed theft of blank signed cheques and blank signed promissory notes of the accused. 2. According to the complainant, he lent Rs.1,00,000/- to the accused, for which the accused gave Ex.P1, post dated cheque dated 06.08.1998 for Rs.1,20,000/- towards discharge of the debt borrowed by the accused. It was the accused, who issued notice for the first time to the complainant as per Ex.D2, dated 31.07.1998 even before the complainant presenting Ex.P1, cheque for encashment. For the said notice, the complainant gave Ex.D3 reply, dated 12.08.1998. The said reply covered by Ex.D3, is subsequent to presentation of Ex.P1, cheque for encashment. Meanwhile, the accused gave notice of stop payment to the bank and accordingly, Ex.P1 cheque was not passed for encashment by the banker. 3. The lower Court pointed out that neither in Ex.P5 statutory notice, nor in the complaint, the complainant disclosed date of borrowing of Rs.1,00,000/- by the accused from him, nor execution of any pro-note or receipt or any other documents evidencing the lending, was disclosed therein. Even, when the complainant examined himself as PW1 and gave evidence by way of examination-in-chief as well as cross examination during the years 2002-2003, the complainant did not disclose any evidentiary proof by way of document for the alleged lending. For the first time, the complainant disclosed about existence of Ex.P8 promissory note, dated 01.10.1997 and Ex.P9, receipt attached to the said promissory note, when he filed Crl.M.P.No.6863 of 2005 in the lower Court to recall him for further examination-in-chief. This is a case where the complainant failed to disclose existence of Exs.P8 and P9 from the date of Ex.P5 statutory notice till the year 2005, when he was recalled for his examination in the lower Court. Exs.P8 and P9 were produced in the lower Court for the first time in the year 2005 with an explanation that they could not be traced previously. It is pointed out by the appellant’s counsel that, in Ex.D3 reply notice dated 12.08.1998, the complainant disclosed about the accused executing a promissory note at the time of borrowing of Rs.1,00,000/- from him. The explanation of the complainant that, Exs.P8 and P9 could not be disclosed prior to the year 2005, as they could not be traced, is inconsistent with the plea of the complainant in Ex.D3 reply notice, wherein, execution of a promissory note by the accused was mentioned. In those circumstances, the lower Court was right in observing that there is something fishy in non-disclosure of Exs.P8 and P9 in the complaint and physical production of Exs.P8 and P9 for the first time in the year 2005 in the lower Court. 4. The lower Court further commented that, when the alleged borrowing was Rs.1,00,000/-, it could not be reconciled as to why Ex.P1 cheque was issued for Rs.1,20,000/- by the accused, particularly, when there is no stipulation for payment of interest even as per the complaint. Further, the lower Court felt it improbable that, if really the complainant lent huge amount of Rs.1,00,000/- to the accused, he would not have failed to file a suit for recovery of the said amount from him. The appellant’s counsel contended that since Exs.P8 and P9 could not be traced in time, within three years thereof, the complainant could not file the suit basing upon them. If Exs.P8 and P9 are not traced, then the complainant could have filed Civil Suit for recovery of money on the basis of lost pro-note. 5. On the basis of Ex.D5 report given to the police, Crime No.283 of 1998 was registered for theft of signed cheques and blank signed pro-notes and blank signed non-judicial stamp papers. It is stated by the appellant’s counsel that, subsequently, the Police filed criminal case against the complainant and others in that crime, and that the said criminal case ended in acquittal. The said circumstance of registration of a crime may not be relevant herein. 6. When both the parties examined themselves as witnesses in support of each person’s case and let in evidence and produced documents in support of their respective contentions, the presumption under Section 139(a) of the Act becomes insignificant and it is for the Court to assess the evidence let in by both sides and to come to some conclusion of such assessment of evidence. The lower Court on assessment of evidence let in by both the parties, in my opinion, came to the right conclusion that the complainant had failed to prove existence of legally enforceable debt for Ex.P1 cheque. I do not find any legal or valid reasons to come to a different conclusion in this appeal. 7. In the result, the appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 14.02.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.450 of 2006 DATED: 14.02.2011 ysk