THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2120 of 2004 AND CRIMINAL APPEAL No.2151 of 2004 BETWEEEN: Sai Santosh Trading Company … Appellant AND D.Prabhakar Rao & 2 others … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2120 of 2004 AND CRIMINAL APPEAL No.2151 of 2004 COMMON JUDGMENT: These two appeals are filed by the complainant against orders of acquittal recorded by the lower Court of A1 and A2/respondents 1 and 2 of the offences under Section 138 of the Negotiable Instruments Act, 1881 (in short, the Act). The complainant is a dealer selling agricultural products. A2 is wife of A1. A1 and A2 were running poultry farm. It is alleged that A1 and A2 purchased maize from the complainant towards poultry feed for total sum of Rs.96,000/- and paid Rs.20,000/- and gave two cheques for Rs.30,000/- and Rs.50,000/- respectively in discharge of the said liability. It is the complainant’s case that purchase of maize by the accused was on 04.09.2000 and 19.09.2000 and that the two cheques were issued as post dated cheques with dates as 20.06.2001 and 13.09.2001 respectively. After deducting cash payment of Rs.20,000/-, the liability was Rs.76,000/- out of total sum of Rs.96,000/-. Since the two cheques were said to have been issued with post dates after one year, it appears that a sum of Rs.4,000/- was added to the sum due to cover interest during that period. When the two cheques were presented for payment, those two cheques were dishonoured by banker of the accused. After issuing statutory notices, the complainant instituted two private complaints in the lower Court against both the accused. It is contention of the accused in the lower Court that they did not purchase any maize from the complainant and that they purchased maize from one Satyanarayana and that the said Satyanarayana obtained two blank cheques from the accused and that there is no debt or liability payable by the accused to the complainant. 2. On behalf of the complainant, PW1 was examined. At one stage, PW1 claims that the complainant is a Company incorporated under the Companies Act and at another stage, he says that it is his proprietary concern. PW1 did not file any document to show his capacity or position in the complainant company. Even as per the complainant’s case in the complaint as well as in evidence, maize was said to have been supplied through Satyanarayana to the accused. PW1 in cross- examination deposed that he knows the accused only through Satyanarayana. A1 examined himself as DW1 and it is his evidence that he does not know PW1 at all nor the complainant and that he purchased maize from Satyanarayana only and that Satyanarayana obtained two blank signed cheques from the accused. The lower Court commented that the complainant did not examine Satyanarayana. It is contended by the appellant’s counsel that it is not for the complainant to examine Satyanarayana and it is for the accused to examine Satyanarayana and that failure to examine Satyanarayana is fatal to the respondent’s case. Name of Satyanarayana is found in the complaint itself. The lower Court analyzed that even as per PW1’s case, he supplied maize to the accused through Satyanarayana and that PW1 sent copy of legal notice to Satyanarayana for information. According to the complainant, Satyanarayana is a broker. It is for the complainant to show that he sold maize to the accused. The complainant relies upon presumption under Section 139 of the Act to the effect that the cheques were drawn by the accused towards discharge of a debt or liability. The presumption under Section 139 of the Act is a rebuttable presumption. When A1 examined himself as DW1 and deposed that he had nothing to do with the complainant and that he did not make purchase of any maize from the complainant and that he purchased maize from Satyanarayana only, the presumption under Section 139 of the Act stands dissolved. In those circumstances, it is for the complainant to prove existence of debt or liability by leading evidence in support of it. (See K.N.Beena Vs. Muniyappan[1] of the Supreme Court). The complainant except examining PW1, did not examine any person and did not file any documents to prove the original transaction relating to sale of maize by the complainant. When according to the complainant, maize was sold to the accused through Satyanarayana, it is for the complainant to show that the bill was raised in the name of the accused and not in the name of Satyanarayana. It is for the complainant to examine Satyanarayana to show in what manner the transaction took place, whether the bill was raised in the name of the accused or Satyanarayana. Since Satyanarayana is the crucial person in the transaction, the complainant thought it fit to mark copies of the statutory notices to Satyanarayana also for favour of information. In those circumstances, in order to discharge the burden of proof that there was debt or liability, it is for the complainant to examine Satyanarayana. The complainant cannot expect the accused to examine Satyanarayana. The lower Court rightly commented that the complainant did not examine Satyanarayana in this case. The lower Court further rightly commented that the complainant did not file any document to show that he supplied maize to the accused directly. In the absence of proof of existence of debt or liability between the parties and in the absence of proof of drawing of the two dishonoured cheques by the accused in favour of the complainant towards discharge of such debt or liability, it is the complainant who should fail. Accordingly, the lower Court rightly came to the conclusion that the complainant failed to prove its case beyond reasonable doubt. I do not find any reasons to come to a different conclusion in this appeal. 3. In the result, both the Criminal Appeals are dismissed. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:21.12.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2120 of 2004 AND CRIMINAL APPEAL No.2151 of 2004 Dated:21.12.2011 CRIMINAL APPEAL No.2123 of 2004 Dt:21.12.2011 ysk [1] AIR 2001 SUPREME COURT 2895