IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF SEPTEMBER, TWO THOUSAND NINE Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.793 of 2005 Between: M. Sambasivarao … Appellant/complainant And: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.793 of 2005 JUDGMENT: This criminal appeal is directed against the judgment dated 16.09.2004 in CC No.312 of 2004 on the file of the Judicial Magistrate of I Class for Excise, Guntur, wherein, the 2nd respondent herein- accused was found not guilty for the offence under Section 138 of the Negotiable Instruments Act 1881 [for short ‘the Act’] and acquitted thereof. 2. Heard the learned counsel for the appellant-complainant and the learned counsel for the 2nd respondent-accused. Perused the record. 3. The appellant herein filed a complaint against the 2nd respondent, alleging in brief as follows: The accused borrowed a sum of Rs.1,50,000/- from the complainant for the purpose of business on 26.01.2003 and executed a pronote agreeing to repay the same with interest at 24% per annum. Subsequently, after repeated demands, the accused issued a cheque for Rs.1,50,000/- on 07.10.2003 drawn on City Union Bank Ltd., Guntur and when the same was presented for encashment, it was returned with an endorsement ‘account closed’ and it was intimated to the complainant on 09.10.2003. The complainant got issued a notice on 20.10.2003 to the accused demanding repayment of the money duly informing the dishonour of the cheque. The accused received the notice but did not give any reply nor paid the amount. 4. The accused denied the offence and claimed to be tried. According to him, he was a subscriber of a chit run by one Mr. Ramesh and became a successful bidder and in that connection, he issued a blank cheque to the said Ramesh by way of security and the said Ramesh subsequently left the town cheating various subscribers and his whereabouts are not known and the complainant some how secured the said cheque Ex.P.2 and filled up the contents thereafter and filed the present complaint. The accused denied that he borrowed any amount from the complainant or executed any pronote Ex.P.1 and in discharge of the said debt issued Ex.P.2. According to him, he does not know the complainant at all and he is seeing him for the first time when the complainant came to the Court to give evidence. 5. In support of his case, the complainant examined himself as PW.1 and the bank officials as PWs.2 and 3 and marked Ex.P.1 Pronote, Ex.P.2 cheque, Ex.P.3 counter-foil for presentation of the cheque, Ex.P.4 memo issued by the bank while dishonouring the cheque, Ex.P.5 debit advice, Ex.P.6 copy of legal notice, Ex.P.7 postal acknowledgment of the accused and Ex.P.8 reply given by the accused. Accused examined himself as DW.1 and marked Exs.D.1 to D.6 on his side. 6. On a consideration of the evidence available on record, the learned Magistrate held that the complainant failed to prove that Ex.P.2 cheque was issued by the accused towards discharge of the debt under Ex.P.1 and therefore, the ingredients of the offence under Section 138 of the Act are not applicable. Accordingly, the accused was not found guilty of the offence and acquitted thereof. Aggrieved by the same, the present appeal is filed by the complainant. 7. The case of the appellant-complainant is that the accused borrowed Rs.1,50,000/- from him on 26.01.2003 and executed pronote Ex.P.1 and in discharge of the said debt, accused issued a cheque Ex.P.2 dated 07.10.2003 and when the said cheque was presented for encashment, the same was disnoured vide memo Ex.P.4 and thereafter the complainant gave a notice Ex.P.6 which was served on the accused under Ex.P.7 acknowledgment, for which the accused gave reply Ex.P.8. The accused totally denies any acquaintance with PW.1 or entering into any sort of monetary transaction with PW.1. He, however, admitted his signatures on Exs.P.1 & P.2. According to him, he was a subscriber of a chit with one Ramesh and in that connection he signed blank pronote and also issued a cheque to the said Ramesh as a security for the amount due by him. Though he paid the subscriptions, the said Ramesh did not return pronote and cheque and left the town cheating number of subscribers. The complainant would contend that as the signatures on Exs.P.1 and P.2 are admitted by the accused, presumption contained under Section 139 of the Act comes into operation and in the absence of any rebuttal, the offence under Section 138 of the Act stands established, as the procedural requirements have been complied with, before filing the complaint. 8. The accused on the other hand would contend that he never admitted the execution of pronote or issuance of a cheque in favour of PW.1 and initial burden remains on PW.1 to establish that there was a legally enforceable debt due by the accused and in discharge of the same, cheque Ex.P.2 was issued by the accused. No doubt, as contended by the complainant, it was not stated in the reply notice Ex.P.8 by the accused that the cheque was issued in connection with chit transaction between the accused and one Ramesh and the said cheque some how found its way into the hands of the complainant. However, while denying the transaction in toto, the accused did state in Ex.P.8 that he never saw the face of the complainant and never even heard the name of the complainant and he had no acquaintance with the complainant. The complainant has not examined any witnesses to show that the accused borrowed Rs.1,50,000/- from him for the purpose of business and executed pronote Ex.P.1. In the evidence, PW.1 claimed that he knew the accused since ten years as the accused was doing paints business at Patnam Bazar, Guntur, but he does not know the name of the shop. It is not as though there were dealings between PW.1 and the accused on any regular basis. Even according to PW.1 except this transaction, there was no other financial transaction between himself and the accused. PW.1 also admitted that he is not income tax assessee and he was doing milk business at home and earning Rs.15,000/- to Rs.16,000/- per month. According to him, he was keeping his amount in the bank. There is nothing on record to show that on the date of Ex.P.1, PW.1 has withdrawn the amount of Rs.1,50,000/- from any bank and lent the same to the accused. Though, PW.1 denied the suggestion that Ex.P.2 was issued in connection with the cheque transaction between the accused and Ramesh, the evidence on record adduced by PW.1 does snot establish the claim of PW.1 that the accused borrowed the amount of Rs.1,50,000/- and executed pronote Ex.P.1. It is not the case where the accused admitted execution of the pronote, but sought to explain it away but it is a case where the accused has specifically denied not only borrowal of any amount but also execution of pronote as such. It is only when the existence of debt or liability on the part of the accused towards PW.1 is initially established, the question of issuing cheque Ex.P.2 in discharge of such liability arises for consideration. The existence of any debt or liability by the accused in favour of PW.1 itself is not established. Even otherwise, there is nothing on record to show that Ex.P.2 cheque was issued in discharge of any such debt or liability. Ex.P.2 was issued on 07.10.2003. The evidence of PW.2 Manager of the Union Bank of India would show that PW.1 presented the cheque for collection on 08.10.2003 under Ex.P.3 and it was returned by City Union Bank Ltd., Guntur along with a memo Ex.P.4 stating that the account was closed. The testimony of PW.3 Assistant Manager, City Union Bank Ltd., Guntur would show that the accused closed the account on 28.08.2003. The evidence of PW.3 would therefore corroborate the version of DW.1 that the account was closed in August 2003 itself. It is not the case of the complainant that the accused issued cheque Ex.P.2 with full knowledge that the account was closed with a view to cheat PW.1. The cheque bears No.491243. It is in the evidence of PW.3 that as per passbook Ex.D.1 issued to the accused cheque bearing subsequent numbers are all encashed prior to 1996-1997. Ex.D.3 is certified copy of account of the accused. PW.3 also testified that Ex.P.2 cheque was from the chequebook given to the accused when the account was opened. It is in the evidence of DW.2 that after first cheque book was exhausted he has taken the second cheque book, which was in operation as on the date of closure of the account. When all the cheques contained in the cheque book issued to the accused at the time of opening the account in the year 1996 were utilized in the same year and in 1997, it is inconceivable that the cheque Ex.P.2 alone was remaining unutilized by the accused for a period of more than six years till he issued the cheque in favour of PW.1 in the year 2003. According to the accused, the said cheque Ex.P.2 was also utilized in the year 1996 itself by giving a blank cheque to Ramesh as a security for the amount due by him in connection with the chit transaction. The evidence on record particularly the evidence of PW.3 coupled with Exs.D.1 to D.3 would support the contention of the accused that the cheque Ex.P.2 was not issued in 2003 as alleged by the complainant but was issued in 1996 itself. No doubt, the said Ramesh is not examined. The very plea of the accused is that the said Ramesh left the town cheating the subscribers and his whereabouts are not known. The failure on the part of the accused to examine the said Ramesh is not fatal for his defence, especially when other evidence available on record is suffice to rebut the presumption by relying upon the admission contained in the testimony of the witnesses examined by the complainant and also other circumstances having a bearing over the issue and probabilities which throw reasonable doubt over the complainant’s case. It is not necessary that the accused shall always lead the evidence of his own to rebut the presumption under Section 139 of the Act. The evidence on record discussed supra would render the version of the complainant highly doubtful as it is inconceivable that one of the leaves of the cheque book of the year 1996 would have been left un- utilized till 2003 when the rest of entire cheque book was completely utilized in that year itself. In the circumstances, the learned Magistrate has on proper appreciation of the evidence available on record, rightly held that the complainant failed to discharge the burden of showing that Ex.P.2 was issued in discharge of legally enforceable debt. The presumption contained under Section 139 of the Act cannot therefore be invoked in favour of the complainant, especially in the light of the fact that the evidence on record renders the version of the accused probable. 9. It is well settled that order of acquittal recorded by the trial Court cannot be easily interfered with in appeal in the absence of any compelling grounds or strong reasons. The scope of intervention in an appeal with an order of acquittal is very limited. 10. In STATE OF RAJASTHAN V. RAJARAM[1], the Apex Court held that the principle to be followed by Appellate Court while considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. 11. In AYODHYA SINGH V. STATE OF BIHAR AND OTHERS[2], the Apex Court held as under: “It is well settled that if on the same evidence two views are reasonably possible, where the Court below takes a view in favour of the accused, the Appellate Court will not set aside the order of acquittal unless it finds the findings to be perverse, highly unreasonable, based on no evidence on record or made in ignorance of relevant evidence on record or for other such reasons.” 12. I n C.ANTONY V. K.G.RAGHAVAN NAIR[3] while dealing with an order of acquittal for an offence under Section 138 of the Act and the power of High Court to interfere with the same, the Apex Court held thus: “Unless the findings of trial Court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its findings merely because another contrary opinion was possible on the basis of material on record.” 13. In the present case also, there are no such strong reasons or compelling circumstances warranting interference with the order of acquittal passed by the trial court. Hence, the order of acquittal passed by the trial Court is held not liable to be interfered with. 14. In the result, the criminal appeal is dismissed. ______________________ G.V.SEETHAPATHY, J Date: 24.09.2009 bss [1] 2003 AIR SCW 4097 [2] 2005(2) ALT (Crl.) 92 [3] 2003(1) SCC 1