IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE TWELVETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 1585 OF 2006 Between: Syed Moinuddin …. Appellant-Complainant V/s. Mohd. Dastagir & Anr. … Respondents-Accused Counsel for the Appellant : None appeared Counsel for the Respondent No.1 : Sri V.Hariharan Counsel for the Respondent No.2 : Addl.Public Prosecutor The Court made the following : (Judgment follows next page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 1585 OF 2006 JUDGMENT : Heard the learned counsel appearing for the respondent No.1 and the learned Additional Public Prosecutor representing the State. There was no representation on behalf of the appellant-complainant to argue the appeal and the appellant is absent without making any alternative arrangement to argue the case, this Court can proceed to dispose of the appeal on merits. Therefore, I have decided to dispose of the appeal on merits. 2. This criminal appeal is filed against the judgment dated 05-10- 2004 passed by the X-Metropolitan Magistrate, Secunderabad in CC.No. 606 of 2003. 3. The appellant-complainant filed a complaint under section 138 of the Negotiable Instruments Act against the respondent No.1-accused alleging that the respondent No.1-accused borrowed from him a sum of Rs.2,50,000=00 on a promissory note on 10-08-2002 and subsequently in discharge of the above debt, he issued a cheque bearing No. 779739 for Rs.2,50,000=00 and thereafter when the cheque was presented for collection, it was dishonoured on the ground of insufficient funds. The appellant issued statutory notice under section 138 of the Negotiable Instruments Act and then filed a complaint within the time prescribed by the statute. 4. In order to prove his case, the complainant himself was examined as PW-1 and marked Exs.P-1 to P-7. The first respondent-accused himself was examined as DW-1 and marked Exs.D-1 to D-6. 5. The crucial question, which arose before the trial court was as to whether the cheque was infact, issued towards discharge of any legally enforceable debt or liability. 6. While adverting to the said question, the learned trial Court recorded the following findings: i) It is not only born out from the evidence on record but also admitted by the appellant-complainant before the learned trial Court that he used to run chits without any registration and the appellant used to subscribe through cheques. ii) Exs.D-1 and D-2 passbook produced by the respondent shows that the respondent was subscribing to the chits conducted by the appellant and the chits passbook contain the signatures of the appellant. iii) Ex.P-1 original statement and the blank original cheque and the pronote were filled up in different inks. iv) More importantly that prior to the filing of the complaint by the appellant, the first respondent issued Ex.D- 3 notice stating that at the time of lifting the chit fund amount the appellant obtained some blank documents containing his signatures and in the said notice the respondent demanded the appellant to return those documents, for which Ex.D-6 reply notice was issued by the advocate. v) The appellant took the plea that Ex.D-3 notice was not issued to him by the respondent and Ex.D-3 reply notice was not issued in response to Ex.D-6 on his instructions. This plea was considered to be ex-facie false by the learned trial Court. 7. According to the appellant, the first respondent borrowed from him an amount of Rs.2,50,000-00 agreeing to repay the same together with interest @ 36% p.a. but the cheque was issued for an amount of Rs.2,50,000=00, against the loan amount which was borrowed agreeing to repay the same together with interest. Normally as per the view expressed by the learned trial Court the cheque amount shall also include the amount borrowed and interest accrued thereon. 8. From Ex.D-6 reply notice, it is made out that the version of the appellant is that in the month of July 2002 the first respondent borrowed an amount of Rs.50,000=00 from him and he approached the respondent for repayment in the month of January 2003 but the version in the complaint is that the respondent borrowed an amount of Rs.2,50,000=00 on 10-08-2002 under Ex.P2 promissory note. The trial court expressed the view that an amount of Rs.50,000=00 became due from the first respondent to the appellant till January 2002. The contention put forth by the appellant in the complaint that the respondent borrowed an amount of Rs.50,000=00 from him and issued a cheque towards repayment is therefore inconsistent. 9. Though there is a presumption in favour of the complaint under section 139 of the Negotiable Instruments Act to the effect that the cheque issued by the first respondent is towards satisfaction of the legally enforceable debt, the presumption is rebuttal presumption. The first respondent could be able to successfully rebut the presumption by examining himself as DW-1 and by stating the circumstances under which the complaint came to be filed. 10. In RANGAPPA V/s. MOHAN[1], the Hon’ble Supreme Court held as follows : “that the presumption envisaged under section 139 of the Negotiable Instruments Act is in the nature of rebuttal presumption and it is open for the accused to raise the defence wherein the existence of a legally enforceable debt or liability can be contested. Though initially presumption under section 139 of the Act is in favour of the complainant and it is in the nature of reverse onus clause which has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. It must be remembered that the offence made punishable under section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transaction. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge in unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view it is settled position that when the accused has to rebut the presumption under section 139, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence, which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fall.” 11. In this case, the first respondent could be able to demonstrate before the learned trial court that the plea taken by the complainant is not proved. There existed a chit transaction between the parties in connection with the said transaction some blank papers have been obtained by the appellant from him at the time of lifting the chit amount. In the light of the circumstances, brought on record by the respondent, the appellant- complainant ought to have examined one of the attestors of the promissory note to show that the amount of Rs.2,50,000=00 was infact borrowed by the first respondent from him. But he did not examine the attestors or any other witness to prove the said fact. The learned trial court upon thoroughly examining and analyzing the evidence rightly arrived at the conclusion that the appellant-complainant failed to establish that the cheque which was dishonoured was issued towards discharge of legally enforceable debt or liability. The trial Court rightly acquitted the accused and the order of acquittal does not call for any interference in this criminal appeal. 12. The appeal against acquittal preferred by the appellant is dismissed, confirming the order passed by the learned trial Court. ----------------------------------- JUSTICE R. KANTHA RAO 12-11-2011 I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 1585 OF 2006 CIRCULATION No 55 Date:12-10-2011 Court Master: I s L Computer No.43 [1] ) AIR 2010 SUPREME COURT-1898