IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.330 of 2008 DATE:25.01.2011 Between: B.Vishnu Murty …… Appellant And Ashok Ravi and 2 others …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.330 of 2008 JUDGMENT: Unsuccessful complainant who filed case against the respondents 1 and 2/A-1 and A-2 alleging offence under Section 138 of the Negotiable Instruments Act is the appellant. A-1 and A-2 are partners of Siddhartha Transport Company and they are signatories of Exs.P-1 to P-3 cheques. According to the complainant, the accused took lorry of the complainant on hire for carrying goods in the 1st week of January, 2001 and that towards hire charges, the accused gave Exs.P-1 to P-3 cheques dated 08.01.2002 for Rs.50,000/-, Rs.60,000/- and Rs.50,000/- respectively. When those cheques were presented by the complainant for encashment, they were dishonoured as per Ex.P-4 return memo as the accused gave instructions to stop payment. After giving Ex.P-5 legal notice, the complainant instituted the complaint in C.C. No.544 of 2002 in II Metropolitan Magistrate Court, Cyberabad against A-1 and A-2. Subsequent to institution of the complaint, the accused got issued Ex.D-1 reply notice to the complainant. It is the defence version that one transport broker by name Vittal Reddy obtained Exs.P-1 to P-3 from the complainant for getting them discounted in a bank and that the said Vittal Reddy colluded with the complainant and got Exs.P-1 to P-3 presented in the name of the complainant and that there is no legally enforceable liability for Exs.P-1 to P-3 cheques. 2. During trial in the lower Court, the complainant examined himself as P.W-1 to speak to the allegations in the complaint. On behalf of the accused, D.W-1 was examined. D.W-1 is having transport business opposite to the complainant’s transport company at Lal Bahadur Nagar. It is D.W-1’s evidence that the accused did not owe any amount to the complainant and that Vittal Reddy obtained three post dated cheques forcibly for a total sum of Rs.1,60,000/- from A-1 in his presence for getting the same discounted and that Vittal Reddy instead of getting the cheques discounted, had misused the same for collusion with the complainant. Thus, D.W-1 spoke to the contents of Ex.D-1 reply notice in support of the accused. In view of the evidence of D.W-1, presumption under law with regard to the cheques drawn being supported by legally enforceable liability, becomes rebutted. Therefore, it is for the complainant to prove by independent evidence that Exs.P-1 to P-3 cheques are supported by legally enforceable liability. The complainant did not file any weigh bills or invoices to show that services of the complainant or his vehicle were obtained by the accused for their purpose incurring liability of Rs.1,60,000/-. In the absence of any such evidence proving legally enforceable liability, the complainant is not going to succeed on proof of mere dishonour of Exs.P-1 to P-3 cheques. There was no reason why three cheques were given on the same date for different amounts. If really there was any liability to the extent of Rs.1,60,000/-, issue of one cheque for the said amount in total would have been sufficient. The complainant in the absence of proof of legally enforceable liability, cannot succeed in his complaint under Section 138 of the Negotiable Instruments Act. The order of acquittal recorded by the lower Court is proper and legal. 3. In the result, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J January 25, 2011 ksh