HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2186 of 2004 Date:27.01.2011 Between: V. Shiv Kumar ….Appellant And: M. Veer Kumar and another .…. Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2186 of 2004 JUDGMENT: This appeal is filed against the acquittal of the respondent No.1 herein for an offence under Section 138 of the Negotiable Instruments Act (for short, the Act) by the IV Metropolitan Magistrate, Hyderabad in C.C.No.514 of 2003 on 22.7.2004. The appellant herein is the complainant and he has filed the complaint under Section 138 of the Act against the respondent/accused alleging that he approached him on 10.2.2003 with a request to advance the loan amount of Rs.40,000/- for development of his business and he paid the said amount of Rs.40,000/- to the accused but he failed to repay the said amount within the stipulated period and he has issued a cheque dated 19.4.2003 for the said amount drawn on State Bank of Hyderabad, Jammikunta Branch, Karimnagar District. The said cheque was dishonoured for insufficient funds. Thereafter, the complainant issued legal notice but the accused refused to receive the same. The lower court taken the cognizance of the offence under Section 138 of the Act against the accused and the accused pleaded not guilty for the said offence when he was examined under Section 251 Cr.P.C. The complainant examined himself as P.W.1 and got marked Exs.P.1 to 7. The lower court by taking into consideration of both oral and documentary evidence found the accused not guilty of the offence under Section 138 of the Act and he is acquitted under Section 251 Cr.P.C. Aggrieved by the said acquittal, the present appeal is filed by the appellant/complainant. When the matter is coming up for hearing on 25.1.2011, no representation was made on behalf of the appellant, but heard the learned counsel for the respondent No.1 and the matter was ordered to be posted to today for judgment. But, even today also there is no representation on behalf of the appellant. Hence, the appeal is being disposed of basing on the material available on record. The point for consideration is whether the appellant could able to establish the offence under Section 138 of the Act against the accused beyond reasonable doubt? According to the complainant, the accused obtained loan of Rs.40,000/- from him and failed to pay the same and issued a cheque under Ex.P-1 dated 19.3.2003 and when the said cheque was presented for collection, the same was dishonoured as per Exs.P-2 and P-3. Thereafter he issued a legal notice to the accused for repayment of the said amount under Ex.P-4 but the same was refused by the accused. The learned counsel for the respondent, on the other hand, has pleaded that the said cheque Ex.P-1 was given by the accused to one S.Kishan Rao for providing a loan from bank in the year 1997 and the said cheque was given in blank and the same was misused by the complainant and filed the present complaint. P.W.1 in his cross-examination admitted that one S. Kishna Rao was the partner of his partnership firm earlier and the accused is the brother-in-law of the said partner S. Kishana Rao. But, he denied that the cheque Ex.P-1 was issued by the accused S. Kishan Rao and it was misused by him. P.W.1 has further admitted that he is doing finance business and according to him it is a registered one but he has not produced any certificate and he has also not produced any licence for doing money lending business. Moreover even though P.W.1 has lent an amount of Rs.40,000/- to the accused, he has not obtained any pronote or receipt from him for the said amount. According to him he has obtained the said cheque after two months of advancement of the loan. P.W.1 also did not produce any account to show the amount due by the accused to him. Since the complainant is running a finance business he has to maintain the account by obtaining necessary permission and licence. When he is not producing any registration certificate or licence for doing the finance business, it has to be presumed that he is doing the business without proper licence and authority. According to the respondent No.1-accused the said cheque was issued blank to his brother-in-law for obtaining a loan and the same was misused by the complainant. Admittedly, the said S. Kishan Rao to whom the accused has issued the cheque is one of the partner of the complainant in the business. Therefore, it can be presumed that the said cheque was taken by the complainant and he has filed the present complaint by filling up the same. Since the complainant has failed to establish about the outstanding amount due by the accused even though the said cheque was signed by the accused, it cannot be said that the said cheque was issued towards the outstanding debt payable by him to the complainant. Hence, the complainant has failed to establish the offence under Section 138 of the Act against the accused. As such, the lower court has rightly found the accused not guilty for the offence under Section 138 of the Act. Hence, the findings of the lower court does not warrant interference by this court. Hence, the appeal is dismissed. _____________________ P.DURGA PRASADJ. Date:27.01.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2186 of 2004 Date:27.01.2011 Gk.