THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1542 of 2004 JUDGMENT: This appeal is directed against the acquittal of the accused in C.C.No. 306 of 2004, by the VII-Additional Munsif Magistrate, Guntur, on 08.04.2004. The appellant herein is the complainant and he filed a complaint under Section 138 of Negotiable Instruments Act (for short, the NI Act), alleging that the father of the accused borrowed an amount of Rs.90,000/- on 21.03.2001 and Rs.70,000/- and Rs.60,000/- on 01.04.2001, and executed three promissory notes and subsequently his father died and, on the demand made by the complainant, the accused issued a cheque for Rs.2,00,000/- on 01.08.2003 towards repayment of the amounts due under the said promissory notes and, when the said cheque was presented on 04.08.2003, the same was dishonoured, and after complying with the provisions of Section 138 of the NI Act, he filed the complaint. The accused denied commission of offence under Section 138 of the NI Act, when he was examined under Section 251 Cr.P.C. The complainant got examined PWs.1 to 3 and got marked Exs.P1 to P8. The lower Court, by taking into consideration the said oral and documentary evidence, found the accused not guilty of the offence under Section 138 of the NI Act, and thereby, acquitted him. Aggrieved by the acquittal, the complainant filed the present appeal. The lower Court has observed that the complainant has failed to prove the execution of Exs.P1 to P3- promissory notes by the father of the accused, as the accused has denied about execution of the same by his father. The lower Court has also made an observation that, on careful scrutiny of Exs.P1 to P3-promissory notes, with naked eye one can say that the signatures on Exs.P1 and P2 are of one person and the signature on Ex.P3 is of different person. The lower Court has also found that, as on the date of issuance of the said cheque by the accused, his bank account was closed on 30.08.2002 itself, as stated by the bank manager-PW2. The learned counsel for the appellant has pleaded that as the accused has not disputed about the signature on Ex.P4-cheque, and the burden is on the accused to establish that the said cheque was not issued in discharge of legally enforceable debt. Since the complainant is pleading that the cheque was issued in discharge of legally enforceable debt caused by the father of the accused, and as the accused has denied about the said debt by his father, the burden is on the complainant to establish the debt of the father of the accused by producing necessary evidence. As per the evidence available on record, the complainant could not establish the execution of Exs.P1 to P3-promissory notes, by the father of the accused. Thus, the complainant could not establish the existence of a legally enforceable debt of the father and the accused. The lower Court unnecessarily examined the signatures on Exs.P1 to P3 and made an observation that signatures on Exs.P1 and P2 are of one person and the signature on Ex.P3 is of a different person. Such an observation made by the lower Court is unwarranted in the facts and circumstances of the case. Moreover, from the evidence of PW2-bank manager, it is evident that the accused has closed his bank account by the date of issuance of the cheque. Therefore, as on the date of issuance of the cheque, the accused is not having any account in the bank, and as the complainant has failed to establish the pre-existing debt as on the date of issuance of cheque, as rightly observed by the lower Court, the complainant has failed to prove the offence under Section 138 of the NI Act against the accused beyond reasonable doubt. The said finding does not warrant any interference by this Court in the appeal. However, the observation made with regard to the signatures on the Exs.P1 to P3 as referred above is liable to be set aside. In the result, the appeal is dismissed, setting aside the observation made by the lower Court with regard to the signatures on Exs.P1 to P3. ___________________________ JUSTICE P. DURGA PRASAD 29th October, 2011 KSM