IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIFTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.654 of 2009 Between: S. Mahalakshmi, W/o. Gnaneswara Rao ..... APPELLANT AND Volleti Subrahmanya Vara Prasad and another ....RESPONDENTS Counsel for the Appellant : Counsel for the Respondents : The Court delivered the following Judgment: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.654 OF 2009 JUDGMENT: This appeal under Section 378 (4) of Cr.P.C., 1973, is directed against the order of the acquittal, dated 09-07-2007, passed in C.C.No.594 of 2006, on the file of Special Judicial First Class Magistrate (Prohibition & Excise), Visakhapatnam, whereunder and whereby the accused was found not guilty of the offence punishable under Section 138 of Negotiable Instrumentation Act, 1881 (for short, “the Act”). 2. The brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: It is alleged that the accused borrowed an amount of Rs.1,20,000/- from the complainant on 16-07-2004 for his family expenses and executed a promissory note, Ex.P-1, agreeing to repay the same with interest @ 24% per annum. Since the amount was not paid, the complainant got issued a legal notice, Ex.P-2, on 27-12-2004 to the accused, demanding the accused to pay the borrowed amount. After receipt of the notice, the accused is said to have issued a cheque bearing No.187444 for an amount of Rs.1,20,000/- on 02-01-2005, drawn on Vijaya Bank, Visakhapatnam. When the cheque was presented, it was dishonoured for the reason of insufficient funds. Thereafter, the accused had taken back the dishonoured cheque and issued another cheque on 25-02-2005, bearing No.439687. When it was presented, it was returned with an endorsement ‘Exceeding arrangements’. Thereafter, the complainant got issued a legal notice to the accused to repay the cheque amount. After receipt of the legal notice, the accused failed to pay the cheque amount within the stipulated period. Hence the complaint. 3. When the accused was examined under Section 251 Cr.P.C. for the offence punishable under Section 138 of the Act, he denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate the case, the complainant examined PWs.1 and 2 and got marked Exs.P-1 to P-9. 5. After closure of the complainant evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of complainant witnesses. He denied the same. No evidence either oral or documentary was adduced on behalf of the accused. 6. The trial Court after considering the evidence on record, came to the conclusion on point Nos.1 and 2, that the initial burden placed on the complainant, has been discharged by adducing evidence to show that the accused borrowed Rs.1,20,000/- under Ex.P-1 - promissory note, on 16-07-2004 and, to discharge the legally enforceable debt, the accused issued cheque, Ex.P-3. Point Nos. 1 and 2, were held in favour of the complainant holding that there exists legally enforceable debt as on the date of Ex.P-3 – cheque, and accused issued Ex.P- 3-cheque towards payment of the borrowed amount. On the third point, the trial Court came to the conclusion that no notice as required under Section 138 (b) of the Act was issued, calling upon the accused to pay the amount, when the cheque in question was dishonoured with the endorsement of ‘exceeding arrangement’ and accordingly, acquitted the accused. 7. Heard the learned counsel for the appellant. Inspite of service, none appeared for the respondent. 8. Now the point for consideration is whether the complainant proved its case against the accused beyond all reasonable doubt of the offence under Section 138 of the Act? 9. There cannot be any dispute that the accused is presumed to be innocent, unless the contrary is proved. That presumption is further strengthened by an order of acquittal. Unless a perverse finding is given by the trial Court or misreading the evidence on record or the findings are not based upon proper appreciation of evidence on record, normally, this Court will not interfere with the order of acquittal. 10. Learned counsel for the appellant contended that the chief affidavit of the complainant, would clearly go to show that the statutory legal notice got issued by the complainant, calling upon the accused to pay the amount, has been received and the original acknowledgment in token of receipt of the statutory legal notice has been marked, but, the finding of the trial Court is not based upon the chief affidavit of the complainant and the evidence of PW.1, and therefore, it is a perverse finding. 11. As seen form the certified copy of the chief affidavit filed by the learned counsel for the appellant, it is clear that a statutory legal notice as required under Section 138 (b) of the Act has been issued on 22.03.2005 and the same was acknowledged by the accused on 23.03.2005, which is marked as Ex.P-9. Though these documents have been marked, the trial Court came to an erroneous conclusion that no notice under Section 138 (b) of the Act has been issued to the accused. Hence, the finding is perverse. 12. Therefore, the Judgment dated 09-07-2007, passed in C.C.No.594 of 2006, on the file of Special Judicial First Class Magistrate (Prohibition & Excise), Visakhapatnam, is set aside and the matter is remanded to the trial Court to consider the case afresh, basing on the evidence available on record. 13. Accordingly, the Criminal Appeal is allowed. _______________ K.C.BHANU, J October 5, 2009 MD