IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.683 OF 2004 Between: Katturi Srinivas ..... Complainant/Respondent No.2/Appellant AND 1. T. Deva Reddy ..... Accused/Appellant/Respondent 2. The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent No.1/Respondent The Court made the following: JUDGMENT: The Criminal Appeal, under Section 378 (4) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the Judgment, dated 31.10.2003, in Crl.A.No.82 of 2001, on the file of the learned II Additional Sessions Judge, Adilabad, whereunder and whereby the conviction and sentence recorded against the first respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”), in C.C.No.30 of 1999, on the file of the learned Judicial Magistrate of I Class, Adilabad, were set aside. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: It is the case of the complainant that he is the Proprietor of Swapna Agencies. The first respondent/accused used to purchase pesticides for his agricultural use on credit basis. During the course of the said business transactions, the first respondent/accused fell due to a tune of Rs.3,52,093/- to the complainant. After several demands made by the complainant, the accused issued a cheque bearing No.541348, dated 24.12.1998, for Rs.3,52,093/- of State Bank of India, Adilabad Branch, which is marked as Ex.P1. When the complainant presented the cheque on 13.05.1997, it was dishonoured and returned with an endorsement “Account is closed”. Then the complainant got issued a legal notice, but the accused refused to receive the same. Thereafter, the complaint is filed. 3. When the accused was examined under Section 251 Cr.P.C., he denied the accusation made and claimed to be tried. 4. To substantiate his case, the complainant examined P.Ws.1 & 2 and got marked Exs.P1 to P22. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating evidence appearing against him in the prosecution evidence. He denied the same. On behalf of the accused, no evidence either oral or documentary was adduced. 6. The trial Court, upon considering the evidence on record, came to the conclusion that the accused committed the offence punishable under Section 138 of the Act and accordingly, he was convicted and sentenced to undergo Simple Imprisonment for a period of one year and to pay a fine of Rs.5,000/-, in default to suffer Simple Imprisonment for a period of three months and twice to the amount of cheque i.e., Rs.7,00,000/- is awarded as compensation to the complainant payable by the accused. On appeal, the said conviction and sentence including compensation, were set aside by the Appellate Court. Hence, the Present Criminal Appeal. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt and whether the judgment of the Appellate Court is correct, legal and proper? 8. The learned counsel appearing for the appellant/complainant contended that issuance of Ex.P1-cheque, dated 24.12.1998, was not denied or disputed; that the accused is the Proprietor of Raghavendra Traders, Adilabad; that the cheque bearing No.541348, dated 24.12.1998, for Rs.3,52,093/-, was issued for clearing the debt, i.e., for purchasing of pesticides on credit basis by the accused; that the Appellate Court gave a perverse finding; that the trial Court, after elaborate consideration of evidence on record, rightly acquitted the accused; that therefore, there are no grounds to interfere with the same; and hence, he prays to set aside the same. 9. On the other hand, the learned counsel appearing for the first respondent/accused contended that there is no pleading that the accused is the Proprietor of M/s.Raghavendra Traders; that all the documents filed in support of the case of the complainant stand in the name of Raghavendra Traders; that the cheque was given for security purpose; that the initial burden which lies on the complainant has not been discharged; and so, the Appellate Court rightly acquitted the accused; that the order of acquittal under challenge does not suffer from any infirmities so as to call for interference by this Court, and therefore, there are no grounds to interfere with the same. 10. To constitute an offence incorporated in the main enacting clause of Section 138 of the Act, the following ingredients have to be established: “a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.” 11. There cannot be any dispute that the initial burden always lies on the complainant to establish that the cheque in question was issued for discharge of legally enforceable debt or liability. When once the initial burden is discharged by the complainant, the burden shifts to the accused to rebut the same in view of presumption under Section 139 of the Act. 12. The presumption under Section 139 of the Act which reads as follows: “It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” Though Section 139 of the Act is rebuttable presumption, but the words “unless contrary is proved” would mean that there must be a pleading and evidence to substantiate the same and mere explanation is not sufficient. 13. On this aspect, the learned counsel appearing for the first respondent/accused relied upon a decision reported in Krishna Janardhan Bhat vs. Dattatraya G. Hegde,[1] wherein it is held thus: “The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.” 14. There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, the Appellate Court has got full power to reappreciate the evidence available on record, but it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt and that presumption of innocence is further strengthened by an order of acquittal. Unless the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 15. It is not in dispute that the complainant is the Proprietor of Swapna Agencies. Though it is argued by the learned counsel appearing for the complainant that as a Proprietor of Swapna Agencies, the complainant in his individual capacity can lodge the complaint, that aspect of the case has not been denied or disputed by the learned counsel appearing for the first respondent/accused. 16. The evidence of P.W.1 would go to show that he supplied pesticides worth about Rs.3,99,682/- on credit basis in the year 1995-96. His further evidence would go to show that the accused paid Rs.47,589/- in the year 1996. Therefore, an amount of Rs.3,52,093/- was due. To discharge the said debt, the present cheque, Ex.P1, was given. The specific case of P.W.1 is that the accused is running a pesticide business in the name and style of "Raghavendra Traders". 17. On the other hand, it is specifically denied by the accused that he has nothing to do with Raghavendra Traders. Admittedly, there is no allegation in the complaint that the accused was doing business in the name and style of “Raghavendra Traders”. Similarly, P.W.1 has not mentioned that the accused purchased pesticides on credit basis during the year 1995-96. Whereas in the complaint, it is stated that the accused purchased the pesticides on credit basis for agricultural use. The documents, Exs.P14 to P19, are the relevant entries in the original Day Book, which are marked as Ex.P13, which stand in the name of Raghavendra Traders. Admittedly, the cheque was not issued on behalf of Raghavendra Traders. The initial burden, which stands on the complainant has not been established beyond all reasonable doubt to show that the cheque in question was issued for legally enforceable debt. 18. There is absolutely no evidence to show that the accused was the Proprietor of Raghavendra Traders. On behalf of Raghavendra Traders, the accused allegedly purchased pesticides from the complainant Agency on credit basis from time to time. None of the documents filed by the complainant is signed by the accused on behalf of Raghavendra Traders. Admittedly, P.W.1 has not filed any bills to show that the accused purchased pesticides from his shop on credit basis. When the accused said to have purchased the pesticides, the complainant ought to have issued the credit details. No such bills have been produced by the complainant. No explanation is given as to why such bills have not been issued. It is not the case of the complainant that he has not issued any such credit bills to the accused at the time of supplying the pesticides. Therefore, the initial burden which stands on the complainant has not been discharged beyond all reasonable doubt. Consequently, the question of drawing presumption under Section 139 of the Act does not arise. Therefore, the Appellate Court rightly acquitted the accused. None of the findings of the Appellate Court is shown to be perverse or contrary to law. The said order does not call for any interference by this Court. There are no compelling or substantial reasons to interfere with the judgment under challenge. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 19. Accordingly, the Criminal Appeal is dismissed confirming the Judgment, dated 31.10.2003, in Crl.A.No.82 of 2001, on the file of the learned II Additional Sessions Judge, Adilabad. _____________ (K.C.BHANU, J) Date: 10th November, 2009. KL [1] (2008) 4 Supreme Court Cases 54