IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.51 of 2008 DATE:07.02.2011 Between: B.Ranga Rao …… Appellant And P.Bhaskar Rao and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.51 of 2008 JUDGMENT : This is the complainant’s appeal against acquittal of the accused/respondent recorded by the IX Additional Chief Metropolitan Magistrate, Hyderabad in C.C. No.922 of 2002. In the complaint filed by the complainant alleging offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act), it is alleged that on 07.06.2000 the accused borrowed Rs.73,000/- from the complainant and executed pronote of the even date and that when the accused failed to repay the said debt and when the complainant demanded for repayment, the accused issued cheque dated 11.07.2002 for Rs.73,000/- which was dishonoured on the ground of insufficient funds by the banker. After complying with the statutory notice, the complainant launched prosecution of the accused in the lower Court. On the other hand, it is contention of the accused in Ex.P-7 reply notice that previously when he borrowed Rs.10,000/- from a financier through the complainant in the year 1994, the complainant obtained 10 blank signed cheques bearing Nos.431411 to 431420 and also 10 blank pronotes and that the complainant used one of those cheques and filed this false case even though the accused did not borrow any amount of Rs.73,000/- from the complainant. During trial in the lower Court, the accused examined himself as D.W-1 to speak to the contents of Ex.P-7 reply notice. Since the accused examined himself as D.W-1 and denied the transactions covered by Exs.P- 1 and P-2 pronotes and Ex.P-3 cheque, the presumption under Section 139 of the Act remained rebutted; and in that view of the matter N.Narsingarao V. Srinivasa Chary[1] of this Court has no application to facts of the present case. In view of rebuttal of the presumption under Section 139 of the Act, the arena is left open and is free for both the parties to fill up the arena with evidence on each side. 2. The lower Court pointed out discrepancy between the complainant’s case in Ex.P-6 notice as well as in the complaint with regard to documentary evidence covered by Exs.P-1 to P- 3. As per averments in Ex.P-6 notice and in the complaint, the accused borrowed Rs.73,000/- from the complainant in June, 2000. The date is absent as 07.06.2000 in Ex.P-6 notice. Whereas during trial, the complainant filed Exs.P-1 and P-2 pronotes dated 07.06.2000 for Rs.25,000/- and Rs.48,000/- respectively. Existence of two pronotes for total amount of Rs.73,000/- was not disclosed by the complainant either in Ex.P- 6 notice or in the complaint. It is contended by the appellant’s counsel that by mistake plural number of pronotes is missing in Ex.P-6 notice and it was carried out while copying the same in the complaint. Absence of ‘s’ in Ex.P-6 and in the complaint cannot be by mistake. Total reading of Ex.P-6 reply notice as well as the complaint reveals that intention of the complaint was not to plead plurality of pronotes, but it was only a pleading of a singular pronote. 3. Previously the complainant got issued Ex.D-1 notice dated 23.09.1998 when cheque bearing No.431414, dated 15.09.1998 for Rs.48,000/- was dishonoured. For Ex.D-1 notice, the accused did not give any reply nor the complainant filed any criminal case in pursuance of Ex.D-1 notice. It is not the complainant’s case that the accused paid the amount of Rs.48,000/- covered by Ex.D-1 notice after dishonour of cheque bearing No.431414. When Ex.D-1 was confronted to the complainant as P.W-1, he expressed his lack of remembrance by stating that he does not remember whether he gave Ex.D-1 notice to the accused in the year 1998. According to D.W-1, after receiving Ex.D-1 notice, he approached the complainant and questioned him for giving the said notice and the complainant promised not to take any action thereon. It is further evidence of D.W-1 that when he demanded return of other blank cheques and blank pronotes obtained by the complainant from him, the complainant stated that they were misplaced. The cheque Ex.P-3 in the present case is bearing No.431415 which is the next number of the cheque covered by Ex.D-1 notice and it is in the same series as per the evidence of D.W-1. Therefore, the lower Court found it to be probable that Ex.P-3 is one in the series as pleaded by the accused as D.W-1 and also as stated by him in Ex.P-7 reply notice. 4. In the light of the above discussion and reasoning given by the lower Court, it cannot be said that finding of not guilty recorded by the lower Court is not based on any evidence or that it is a perverse finding. In that view of the matter, I find that there are no legal and valid grounds to reverse the finding of acquittal recorded by the lower Court. 5. In the result, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J February 07, 2011 ksh [1] 2010(2) ALD (Crl) 651 (AP)