THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1429 OF 2005 Dated:15.12.2009 Between: M/s. Nirdosh Enterprises situated at H.No.6-2-1011, Nirdosh Bhavan, Opp: Institute of Engineers, Khairathabad, Hyderabad, rep., by its Manager, Sri Prathap Narayan Jaiswal, S/o.Dwaraka Prasad, Aged: 57 years, H.No.19-2-625, Doodbowli, Hyderabad .. Appellant/Complainant And A.Srinivasa Rao and another .. Respondent JUDGMENT: The complainant in C.C.No.312 of 1998 on the file of the IV Metropolitan Magistrate, Hyderabad, filed this appeal against the judgment dated 26.07.2005, by which the accused therein was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. The complainant approached the trial Court with his complaint alleging that he was doing finance business and chit fund business and advanced an amount of Rs.1,25,000/- on various dates under a loan account to the accused, who promised to repay the same with interest within one year. After repeated demands, the accused was claimed to have issued a cheque for Rs.2,31,415/- dated 23.01.1998, which, when presented, was dishonoured by the bank due to insufficiency of funds. The complainant served a statutory notice on the accused on 04.02.1998, but the accused was stated to have not responded. Hence, the complaint. After the offence was taken cognizance on recording the sworn statement of the complainant and after the accused entered appearance, received copies of documents, was examined under Section 251 of the Code of Criminal Procedure and denied the offence, the complainant examined himself as PW.1 and marked Exs.P1 to P6 during trial and the accused examined himself as DW.1 and marked Exs.D1 to D3 in defence after he denied all the incriminating circumstances in the evidence against him when he was examined under Section 313 of the Code of Criminal Procedure. The trial Court rendered the impugned judgment referring to the contention of the complainant about advancing the loan and receiving the subject cheque, which was dishonoured, towards part payment of the debt and the plea of the accused about the complainant obtaining a blank signed cheque as security in 1995 when he took a loan which he pressed into service belatedly to foist a false case. The trial Court referred to the circumstance that the complainant did not file any document to show the borrowal of Rs.1,25,000/- by the accused or his liability to pay the amount covered by the subject cheque. The trial Court took adverse notice of the absence of any details about the rate of interest agreed or calculated which could have made the principal sum of Rs.1,25,000/- carry an interest of more than Rs.1,05,000/- within three years. In spite of the availability of complete record of loan account according to PW.1, the same was not produced and the ledger extract said to have been filed was not marked as an exhibit. The trial Court also found that the ledger extract which was not marked did not tally with the claim of the complainant about the amount due and the trial Court also took adverse note of the non-production of loan account of the accused, which PW.1 promised to produce but did not produce. Therefore, a doubt was entertained as to the existence of any legal liability and the issuance of Ex.P3 cheque towards discharge of any such existing legal liability. The trial Court preferred to place reliance on the evidence of DW.1 about the payment of interest on the loan amount and refused to draw any presumptions in favour of the complainant under Sections 118 and 139 of the Negotiable Instruments Act. Consequently, the trial Court gave the benefit of reasonable doubt to the accused notwithstanding proof of dishonour of the cheque due to insufficiency of funds and it also took into account that the due service of the statutory notice was also not proved by the complainant. The acquittal of the accused on such grounds led the complainant to challenge the impugned judgment contending that the judgment based on assumptions and presumptions notwithstanding the admitted issuance and dishonour of subject cheque cannot be sustained and the copy of the ledger which was filed into Court containing the signatures of the accused was unjustly ignored. The complainant, holding the money lending licence, advances loans only for interest and the total amount due was arrived at between the parties only for which the cheque was issued. The complainant reiterated the contentions in the complaint and evidence of PW.1 to plead that all its claims should have been accepted to find the accused guilty. Heard the learned counsel for the parties. The point for consideration is whether the complainant has proved the guilt of the accused for an offence punishable under Section 138 of the Negotiable Instruments Act? POINT:- The issuance of Ex.P3 cheque by the accused and its dishonour due to insufficiency of funds in the account of the accused are not in dispute. But, whether the issuance of the cheque and its dishonour can be brought within the scope of Section 138 of Negotiable Instruments Act is the question. The Manager of the complainant as PW.1 while speaking about the loan advanced to the accused in April, 1995, to a tune of Rs.1,25,000/- and the issuance of the subject cheque after a number of demands, did not exhibit any document maintained by the complainant relating to the loan of the accused to show the then existing legal liability to be to the extent of or beyond the amount mentioned in Ex.P3. PW.1 could not say on which dates the complainant firm had advanced the loan amount and admitted that the loan application forms of the accused were not filed. In spite of claiming the copy of the ledger book to have been filed which was not confronted in his evidence and as commented upon by the trial Court, the complete record of the loan account was not placed before the Court through evidence and alleged acknowledgments of the accused in the loan account were not confronted even to the accused examined as DW.1. The accused taking other gold loans from the complainant was also admitted and the defence of the accused was only about the admitted gold loans but not the alleged loan towards which Ex.P3 cheque was issued. Though PW.1 stated that he can produce the gold loan account of the accused, he could not file it and he did not specify as to what was the rate calculated for arriving at the figure covered by Ex.P3. The suggestion of the accused that whatever was due from the accused was already realized by selling his gold, therefore, cannot be said to have been rebutted by PW.1, and when the criminal liability created by Section 138 of the Negotiable Instruments Act is absolute, equally absolute proof of the allegations of the complainant will be necessary in the interests of justice. The accused stated on oath as DW.1 about a blank cheque being issued in 1995 in connection with the gold loan and he denied being liable to an extent Rs.2,30,415/- to the complainant at any time much less by the date of Ex.P3. Thus, it is a case of oath against oath by PW.1 and DW.1 and in the absence of relevant documentary evidence, the trial Court cannot be considered to have gone wrong in giving the benefit of reasonable doubt to the accused. Even regarding the statutory notice, the accused as DW.1 specifically denied the signature on Ex.P6 - postal acknowledgement and stated that the signature neither belonged to himself nor any member of his family and therefore, the conclusion of the trial Court about the absence of proof of statutory notice also does not appear susceptible to any interference. Under the circumstances, the acquittal of the accused, on merits, by the trial Court cannot be interfered with in this appeal and the appeal has to fail. The Criminal Appeal is accordingly dismissed. ___________________ G. BHAVANI PRASAD, J 15th December 2009 KH