IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SECOND DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl.A.No. 50 OF 2008 Between: Challapalli Rama Rao …..Petitioner/Complainant And Kolli Ramaiah …..Accused State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad …..Respondent THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl.A.No. 50 OF 2008 ORDER This is an appeal against acquittal recorded by the Special Mobile Judicial Magistrate of the First Class, Guntur in C.C.No.140 of 2007 by judgment dated 24.9.2007 for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, the Act). The complainant/appellant/P.W.1 filed the complaint in the lower Court against the accused alleging that on 20.10.2005, the accused borrowed Rs.4,50,000/- by handing over original title deed-Ex.P.4 of his wife for assurance of repayment of the debt and that the accused promised to pay interest @ 24% per annum on the amount and that in spite of demands, the accused did not repay the amount and finally the accused issued Ex.P.1-cheque for Rs.4,90,000/- drawn on I.C.I.C.I. Bank, Hyderabad Branch, dated 1.3.2006 towards full and final settlement of the debt. When the cheque was presented for encashment, it was returned by the bank as per Ex.P.2- dishonour memo and Ex.P.3-debit advice on the ground that funds were insufficient. Thereupon, the complainant got issued Ex.P.5-notice as per law to the accused, who received the same as per Ex.P.6-postal acknowledgment. The accused got issued Ex.D.1-reply notice. During trial in the lower Court, the complainant examined himself as P.W.1 and the accused examined himself as D.W.1. Apart from the parties, C.W.1-Audit Officer in the office of the Accountant General, Hyderabad was also examined. Considering the evidence on record, the lower Court found that the accused is not guilty of the offence under Section 138 of the Act; and accordingly acquitted the accused. In this appeal, it is contended by the appellant’s counsel that in view of the presumption as to existence of legally enforceable debt or liability under Section 139 of the Act, the lower Court should have found the accused guilty, particularly when the accused was not able to rebut the said presumption and when evidence of D.W.1 with regard to Ex.P.1 is highly inconsistent. The respondent’s counsel placing reliance on Krishna Janardhan Bhatt Vs. Dattatreya G.Hegda[1] a n d Kumar Exports Vs. Sharma Carpets[2] of the Supreme Court contended that the accused has right to maintain silence in a criminal case and that failure to examine the accused as defense witness is immaterial and that the accused is entitled to rebut the presumption under Section 139 of the Act even from cross- examination of the complainant, who was examined as P.W.1. But, in the case on hand, the accused had chosen to present himself before the lower Court as D.W.1 and has broken his right to maintain silence and opened his mouth and came before the Court with a definite version. Therefore, the Court has to not only assess P.W.1’s cross-examination, but also has to consider evidence of D.W.1 and other documents and oral evidence let in by all the parties. The lower Court based its conclusions mainly on two aspects namely that there is inconsistency in the stand of P.W.1 between his examination-in-chief and cross-examination; and that as per evidence of D.W.1, C.W.1 and Ex.C1, the accused was on tour duty in Khammam District on 20.10.2005 when the alleged borrowing of Rs.4,50,000/- was alleged. It is contended by the appellant’s counsel that even though the accused was on tour duty between 7.10.2005 and 27.11.2005 as per Ex.C1 tour programme and evidence of C.W.1, there is every possibility of the accused going over to Pedakakani village which is P.W.1’s place and to borrow the amount from P.W.1 at Pedakakani village of Guntur District. As per Ex.C.1, the accused was attending to work in Gram panchayat, Eknoor of Khammam District on 20.10.2005 and 21.10.2005. After his duty hours on 20.10.2005 and before beginning of duty hours on 21.10.2005, assuming that D.W.1 was on duty upto the end of duty hours on 20.10.2005 and attended to duty at the beginning of duty hours on 21.10.2005, the accused could have reached Pedakakani village from Khammam District and could have completed the loan transaction, particularly having regard to transport facilities available now-a-days. The distance between Khammam and Pedakakani, is about 150 kilometres. Therefore, it cannot be ruled out that on 20.10.2005, the accused had reached Pedakakani to borrow the amount from P.W.1. No doubt, it is the complainant’s case in the complaint as well as in his examination-in-chief as P.W.1 that borrowing of amount of Rs.4,50,000/- was on 20.10.2005 and giving of Ex.P.1 cheque was on a subsequent date. But, in cross- examination, P.W.1 deposed that borrowing of Rs.4,50,000/- and handing over of Ex.P.1 cheque were simultaneous in point of time. This inconsistency is only in respect of the time when Ex.P.1 was handed over by the accused to P.W.1. There is no inconsistency either in lending the amount or handing over of the cheque for Rs.4,90,000/- except with regard to point of time when he handed over cheque to P.W.1. On the other hand, in Ex.D.1-reply notice given by the accused for Ex.P.5-statutory notice given by the complainant after dishonour of the cheque, the accused while denying the allegations of borrowing Rs.4,50,000/- and giving Ex.P.1- cheque for Rs.4,90,000/- to the complainant stated that one G.Suresh Babu, who is doing money lending business and who is neighbour of the accused was responsible for the notice. It is specifically averred in Ex.D.1 that the accused borrowed Rs.50,000/- from G.Suresh Babu at exorbitant rate of interest of 60% per annum in August, 2005 and that G.Suresh Babu obtained cheque for Rs.50,000/- without date and that the accused filled the column of figures of amount and signed the cheque and that the accused was paying interest to G.Suresh Babu and that finally, there was quarrel between wife of the accused and wife of G.Suresh Babu and that since then G.Suresh Babu was planning to harass the accused. There is absolutely no explanation in Ex.D.1-reply notice for Ex.P.1- cheque or for Ex.P.4-title deed standing in the name of wife of the accused. At this stage, there is no dispute of the fact that Ex.P.1-cheque contains signature of the accused. The banker also did not dispute signature of the accused on Ex.P.1- cheque. Contrary to allegation contained in Ex.D.1-reply notice, the accused as D.W.1 in his examination-in-chief stated that G.Suresh Babu obtained blank signed cheque of accused from one Md.Rafi and handed over the same to P.W.1, who pressed the same into service and filed this criminal case. For the said contention put forward by D.W.1, there is no basis in Ex.D.1- reply notice. Knowing about fallacy of his contention contained in Ex.D.1 reply notice, the accused changed his version as D.W.1 and came forward with a blank signed cheque theory, which has no basis. No circumstances are pleaded by D.W.1 as to why he had handed over a blank signed cheque to Md.Rafi. In view of the above glaring inconsistent and baseless stand as well as evidence of D.W.1, it cannot be said that the accused was able to rebut the presumption as to existence of legally enforceable debt or liability contained in Section 139 of the Act. The lower Court thoroughly erred in placing reliance on the inconsistency in P.W.1’s evidence with regard to the point of time of handing over of Ex.P.1-cheque and in totally brushing aside the above inconsistent and baseless evidence of D.W.1. The said grossly erroneous appreciation of evidence landed the complainant in grave injustice. In the circumstances of the case, this Court is of the opinion that the accused could not rebut the presumption as to existence of legally enforceable debt for Ex.P.1-cheque, which was dishonoured. It is contended by the respondent’s counsel that the complainant has no capacity to lend huge amount of Rs.4,50,000/-. According to P.W.1., he pooled up the amount by way of collecting the money from others to whom he lent previously and the amount which he was having in his house and paid the same to the accused. In view of the presumption under Section 139 of the Act, this Court need not to go into capacity of the complainant to lend the amount to the accused. The accused also has no explanation to offer as to how his wife’s title deed Ex.P.4 came to be in possession of the complainant. No doubt, for borrowing of money by the husband, the husband cannot give third party’s title deed as security. But, with a view to assure repayment of the money, the accused, as per evidence of P.W.1., handed over Ex.P.4- title deed of his wife to the complainant. This is an additional circumstance in favour of the complainant and it reinforces the complainant’s case that he lent Rs.4,50,000/- to the accused, in discharge of which he gave Ex.P.1-cheque, which was later dishonoured. In view of the above discussion of evidence on record, this Court has no hesitation to hold that finding of not guilty arrived at by the lower Court is not only erroneous, but is also perverse; and this Court has no hesitation to hold that the accused is guilty of the offence punishable under Section 138 of the Act. Accordingly, the appeal is allowed, convicting the respondent/accused for the offence under Section 138 of the Act and sentencing him to simple imprisonment for one year and fine of Rs.5,000/- and in default to suffer simple imprisonment for one month. ________________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt: 02.02.2011 Tjmr/Rkk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl. A.NO. 50 OF 2008 DATE: 02.02.2011 [1] 2008(1) ALD (Crl.) 485 (SC) 2 2009(1) ALD (Crl.) 468 (SC)