THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 2546 of 2004 Date: 14th September, 2011 Between: Nagubandi Nageswara Rao … Appellant/Complainant And: Sundarasanam and Suvarnala Suniyam And another … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 2546 of 2004 JUDGMENT: The complainant/appellant filed this appeal questioning acquittal of the accused/respondent by the lower Court of the offence under Section 138 of the Negotiable Instruments Act (in short, the Act). It is the complainant’s case as well as his evidence as PW1 that the accused borrowed Rs.20,000/- on 12.12.2002 and Rs.20,000/- on 22.12.2002 and executed Exs.P1 and P2 promissory notes respectively for the said amounts and that the said amounts were not repaid by the accused in spite of demands and that the accused had drawn Ex.P3-Cheque dated 12.09.2003 for Rs.40,000/- towards discharge of the debts covered by Exs.P1 and P2. The complainant presented the Cheque for collection on 09.02.2004 and it was dishonoured for want of sufficient funds as per Exs.P4 and P5-dishonour memos. Thereupon, PW1 got issued Ex.P6-notice to the accused on 13.02.2004. After receiving the same, the accused got issued Ex.P8-reply notice. In Ex.P8, the accused pleaded that he borrowed only Rs.30,000/- from PW1 and at that time PW1 obtained two blank signed promissory notes and two blank signed cheques from her and that the interest was 8% per month and that she made several part payments to PW1 and that the balance payable was only Rs.10,000/-. The accused did not examine herself as witness and did not lead any evidence on her behalf in support of her pleas in Ex.P8-reply notice. The lower Court, after trial, recorded acquittal of the accused on the ground that PW1 obtained Ex.P3-cheque from the accused even though he was apprised of the fact of the accused not having sufficient balance in her account and that PW1 did not take consent of the accused for presenting the cheque for collection. The lower Court pointed out that PW1 in his cross examination admitted that at the time of issuance of cheque, the accused stated that there is no amount in the bank account, and that PW1 admitted that after issuance of Ex.P3-cheque, the accused requested him to present the cheque on her information. It is contended by the appellant’s counsel that in Ex.P6- notice, PW1 stated that after furnishing information to the accused, he presented Ex.P3-cheque for collection, and that the said fact was not denied by the accused in Ex.P8-reply notice. In Ex.P6-notice in Para 3 it is stated by the complainant that he presented the cheque for collection on 09.02.2004 at request of the accused. The lower Court disbelieved the said allegation of PW1 in the notice because the accused would not have requested PW1 to present the cheque on 09.02.2004 when she had no funds in her account. The said reasoning of the lower Court is neither perverse nor unjust. Placing reliance on K.N.BEENA v. MUNIYAPPAN AND ANOTHER[1] of the Supreme Court, it is contended by the appellant’s counsel that it is for the accused/respondent to prove by leading cogent evidence that Ex.P3-cheque was not supported by liability or debt. This is not a case where the lower Court dismissed the complaint on the ground of there being no legally enforceable liability or debt for Ex.P3-cheque. The lower Court based its conclusion on the circumstances under which PW1 admittedly obtained Ex.P3-Cheque, in spite of there being no amount to the credit of the accused in her bank account and in spite of appraisal of the said fact by the accused to PW1. It is evident that the complainant/appellant/PW1 obtained Ex.P3- cheque from the accused in terrorem i.e. with a view to threaten or coerce the accused to repay the debts covered by Exs.P1 and P2 promissory notes. When the accused knew that she had no amount to the credit of her account in the bank, she would not have drawn Ex.P3-cheque in favour of the accused towards discharge of the debts covered by Exs.P1 and P2. Since obtaining of Ex.P3-cheque by the complainant from the accused was not bona fide and was vitiated by threats and coercion, the transaction covered by Ex.P3 is itself void. Therefore, the lower Court rightly came to the conclusion that the accused is not liable under Section 138 of the Act, even though such a cheque like Ex.P3 was dishonoured. There are no grounds in this appeal to come to a different conclusion. In the result, the appeal is dismissed. ___________________________________ SAMUDRALA GOVINDARAJULU, J 14th September, 2011 KSM [1] 2001(2) ALT (Crl.) 382 (SC)