THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2574 of 2004 BETWEEEN: Kandimalla Subba Rao, S/o.Nagaiah … Appellant AND 1. Mr. Doutala Krishna Murthy. S/o.Chendraiah & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2574 of 2004 JUDGMENT: The unsuccessful complainant in a case under Section 138 of the Negotiable Instruments Act (in short, the Act) is the appellant. The accused/respondent was acquitted by the lower Court on the ground that the complainant has failed to prove existence of debt or liability for Ex.P4-dishonoured cheque. 2. It is the complainant’s case that the accused had drawn Ex.P4-cheque dated 20.02.2000 in his favour towards settlement of his previous debts with the complainant. After Ex.P4 cheque was dishonoured as per Exs.P5 and P6, the complainant got issued Ex.P7- notice under Section 138(2)(b) of the Act to the accused. After receiving the said notice as per Ex.P8- postal acknowledgment, the accused got issued Ex.P9- reply, disputing the facts contained in Ex.P7- notice. It is the defence version that the accused did not know the complainant and that the accused did not issue Ex.P4- cheque in favour of the complainant. During trial in the lower Court, the accused reiterated the said aspects in his evidence as DW1. In view of Ex.P9 and evidence of DW1, the initial burden on the accused to rebut the presumption under Section 139 of the Act is discharged. So, it is for the complainant to prove that Ex.P4- dishonoured cheque was supported by liability or debt. For the said purpose, the complainant/PW1 filed Exs. P1 to P3 into the Court. It is evidence of the complainant as PW1 that originally, the accused borrowed Rs.2,50,000/- from the complainant on 01.11.1998 and had drawn Ex.P1 cheque in his favour and that the said cheque was presented along with Ex.P2- slip in the complainant’s bank and that the complainant’s bank informed him by Ex.P3- intimation that Ex.P1 cheque was dishonoured and that in that connection, the accused had drawn Ex.P4- cheque as a post-dated cheque with date of 20.02.2000 to cover the principal amount of Rs.2,50,000/- and future interest of Rs.50,000/- totaling of Rs.3,00,000/-. The lower Court did not accept the said evidence of PW1 on the ground that the said facts were not disclosed by the complainant in the complaint originally. It is contended by the appellant’s counsel that Section 138(2)(b) contemplates issuing of Ex.P7- notice informing the accused about the factum of dishonour and calling upon him to pay the dishonoured cheque amount and that there is no other obligation on the part of the complainant to disclose nature and source of consideration in either the notice or the complaint. The lower Court did not point out the said fact as a legal defect under Section 138(2)(b) of the Act, but took the said circumstance as one of the probabilities against the complainant’s case. Except filing the alleged previous cheque- Ex.P1, the complainant did not make any endeavour to prove that Ex.P1 cheque is supported by liability or debt to the extent of Rs.2,50,000/-. A pre-existing dishonoured cheque is no answer for proof of existence of debt or liability for the present dishonoured cheque– Ex.P4. 3. It is contended by the appellant’s counsel that there are several infirmities in the defence case and the evidence and that the lower Court brushed aside the said infirmities. There is no dispute that Exs.P1 and P4 cheques belong to the accused and they relate to his bank account. It is also pointed out that though DW1 denied his signature in Ex.P4, his banker did not return or dishonour the cheque for not tallying signature of the accused, but it was dishonoured for want of sufficient funds. It is further pointed out that the accused did not give any report to the Police on the alleged loss of his cheques previously. In my opinion, the said circumstances or infirmities in the defence version cannot be a substitute for proof of existence of liability or debt for Ex.P4. According to the accused, the complainant’s brother is his colleague and he might be behind Ex.P4 cheque. When the complainant was allegedly lending either Rs.3,00,000/- or Rs.2,50,000/- to a stranger like the accused, the lower Court pointed out that it is highly improbable to believe that the amounts were lent without obtaining any document from the accused in proof of the said lending. Except filing Ex.P4- cheque and also Ex.P1- previous cheque, the complainant/PW1 has no proof of lending such a huge amount to the accused, except his self-serving testimony as PW1. In the circumstances, the lower Court rightly did not place reliance on evidence of PW1. I am of the opinion that reasoning as well as conclusion of the lower Court are legal and proper. There are no grounds to interfere with the finding of acquittal recorded by the lower Court, in this appeal. 4. In the result, the Criminal Appeal is dismissed. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:21.09.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2574 of 2004 Dt:21.09.2011 ysk