IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1369 of 2005 Between: Thota Kamalamma .. Appellant/complainant AND 1. Pullagura Nagamani 2. The State of A.P. rep. by its Public Prosecutor .. Respondents Appeal against the judgment in C.C. No.471 of 2000 on the file of the II Additional Judicial Magistrate of First Class, Madanapalle, dated 27-03-2003. The appeal coming on for hearing, upon perusing the grounds filed in support thereof and upon hearing the arguments of Sri D. Kodandarami Reddy, Advocate for the appellant and of the Public Prosecutor for the 2nd respondent, the Court made the following: JUDGMENT: The acquittal of the accused in C.C. No.471 of 2000 on the file of the II Additional Judicial Magistrate of First Class, Madanapalle by the judgment, dated 27-03-2003, led the complainant to file the present appeal. The complainant in her complaint alleged that the accused borrowed Rs.60,000/- from her on 29-03-1998 under a promissory note agreeing to repay the same with interest at 24 per cent per annum and subsequently, on demands the accused issued a cheque for Rs.90,000/- on 13-05-2000. The cheque was presented by the complainant on 16-05-2000 for collection and it was returned, as the payment was stopped by the drawer. The complainant did not get any response when she approached the accused again and hence, she issued statutory notice on 19-05- 2000, for which the accused gave a reply seeking copies of documents. The documents were also sent by the complainant by registered post to the accused and the accused did not pay the amount covered by the cheque and hence, she committed an offence punishable under Section 138 of the Negotiable Instruments Act. The sworn statement of the complainant was recorded and after the offence was taken cognizance, the accused was examined under Section 251 of the Code of Criminal Procedure after copies of documents were furnished to her on her appearance. The accused denied the offence and during the trial, P.Ws.1 and 2 were examined and Exs.P.1 to P.9 were marked. The accused, who denied all the incriminating circumstances in the evidence when she was examined under Section 313 of the Code of Criminal Procedure, examined herself as D.W.1 and marked Exs.D.1 to D.13 and C.1. The trial Court rendered the impugned judgment referring to the evidence on record. The trial Court noted that the accused did not deny her signatures in the pronote or the cheque, but only claimed that they were given to one Prakash with whom she had financial transactions. The trial Court also noted that the same was the version of the accused right from the earliest point of time when notices were exchanged with the accused claiming the absence of any transactions between her and the complainant. The trial Court also noted that the replies of the accused were not filed into Court by the complainant and the trial Court also referred to the criminal cases registered against Prakash before Magistrate’s Court, due to which, the said Prakash got the case filed by the complainant. If the interest agreed was 24 per cent per annum, the trial Court opined that the cheque for Rs.90,000/- was for a lesser amount than the principal and interest due and referring to a decision of the Apex Court, wherein it was laid down that a possible defence probablised by the evidence on record has to be appreciated, the trial Court considered that the consistent version of the accused, who was fair enough to admit her signatures on the cheque and pronote, has to be relied on. While the stop payment instructions by the accused were also referred to, the trial Court felt that the said instructions given much before the cheque was presented for collection, were not challenged by the complainant and the complainant did not even file any suit for recovery of any amounts due to her. Under the circumstances, the trial Court considered the claims of the complainant to be suspicious and doubtful and the accused has to be given the benefit of reasonable doubt. Consequently, the trial Court acquitted the accused. The complainant contended that the evidence of P.Ws.1 and 2 and Exs.P.1 to P.9 positively proved the guilt of the accused under Section 138 of the Negotiable Instruments Act and the trial Court ignored even the statutory presumptions that have to be mandatorily drawn in favour of the complainant, which the accused failed to rebut. Sri D. Kodandarami Reddy, learned counsel for the appellant and Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor are heard, while none appeared for the accused in spite of service of notice of the appeal. The point for consideration is whether the complainant has proved the guilt of the accused for the offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act beyond reasonable doubt ? Point: The complainant as P.W.1, while reiterating about the debt due under Ex.P.1 pronote, for which Ex.P.2 cheque was issued by the accused and the subsequent dishonour of Ex.P.2 cheque, had to admit that her husband was agent of Sriram Chits and Sudarshan Chits and that the accused and her two sisters subscribed to a chit of Sriram Chits and that she stood as a surety for the accused who stood as prized subscriber at the instance of her sister Vanaja who was her colleague. She was admittedly ignorant of any chit to which the accused subscribed with Prakash and she conveniently claimed ignorance about the friendship between the said Prakash and her husband. She was also unaware as to whether the accused instructed the bank to stop payment even in March, 2000, while the subject cheque was dated 13-05-2000. If the connection between the complainant and the accused was only through the accused’s sister and if the transactions of the accused were in respect of the chits, with the running of which the complainant’s husband is connected, the defence of the accused about one Prakash giving the benefit of the pronote and cheque signed by her being in his possession, to the complainant, may not be ruled out. P.W.2, the bank manager, spoke about the stop payment instructions and stated that the accused gave a requisition by way of a letter even on 20-03-2000 to stop payment of four cheques and the number of the subject cheque was admittedly covered by the stop payment letter. While the complainant stated the cheque to have been issued in May, 2000, the accused giving instructions to stop payment even in March, 2000 in respect of four cheques including this cheque, adds further credibility to the claims of the accused about Ex.P.2 not having been issued in the name of the complainant. The accused as D.W.1 stated about the complainant standing as surety for her in respect of a chit transaction and she also claimed that she paid Rs.35,000/- to P.W.1’s husband in connection with arranging sureties and making her the prized subscriber under a chit. The accused positively stated that the cheques were given to Prakash including Ex.P.2 and she claimed to have merely signed on Ex.P.2 cheque and Ex.P.1 pronote. She also referred to the case registered against Prakash in connection with the attempt of her elder sister to commit suicide, at the instance of the police and also on a private complaint. She denied borrowing any amount from P.W.1 and issuing Exs.P.1 and P.2 in her favour. The fact that she did not obtain any receipt for Rs.35,000/- given to P.W.1’s husband, is but natural and the accused also claimed that she gave a notice to Prakash for return of blank cheques and pronotes. The claims of the accused as noted by the trial Court were consistent throughout right from the notices exchanged and under the circumstances, the existence of any legally enforceable debt, towards the discharge of which, the subject cheque would have been issued, is a matter of doubt and the trial Court, which had the benefit of observing the demeanour of the witnesses in flesh and blood, preferred to place reliance on D.W.1 rather than P.W.1. The conclusions of the trial Court about the unacceptability of P.W.1 and the preferability of D.W.1 cannot, therefore, be interfered with in the appeal. Sri Kodandarami Reddy, learned counsel for the appellant referred to Goa Plast (P) Ltd. v. Chico Ursula D’Souza[1] and Goaplast (P) Ltd. v. Chico Ursula D’Souza and another[2] to emphasize that mere stop payment instructions will not bring out a case from the purview of Section 138 of the Negotiable Instruments Act, which proposition cannot be in dispute, but the stop payment instructions herein being about two months earlier to the alleged issuance of the cheque, make the defence version more credible and that credibility making the existence of a legally enforceable debt and issuance of subject cheque towards its discharge doubtful, entitles the accused to the benefit of reasonable doubt. Consequently, the impugned judgment cannot be interfered with and the appeal has to fail. Accordingly, the appeal is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 17-12-2009 Svv [1] (2004) 2 Supreme Court Cases 235 [2] (2003) 3 Supreme Court Cases 232