IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.127 of 2006 DATE: 28.10.2011 Between: T.M.Zaveed Ahmed …… Appellant And P.G.Venugopal and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.127 of 2006 JUDGMENT : This is an appeal against acquittal of the accused recorded by the lower Court under Section 138 of the Negotiable Instruments Act (in short, the Act). The complainant filed the complaint in the lower Court on the ground that Exs.P-1 to P-4 cheques drawn by the accused in his favour for Rs.17,000/-, Rs.20,000/-, Rs.15,000/- and Rs.15,000/- were dishonoured by the banker when presented for encashment vide Exs.P-7 to P-10 memos. After issuing Ex.P-5 statutory notice and receiving Ex.P-6 reply therefor, the complainant filed the complaint. It is the complainant’s case that he took premisis of the accused on lease by paying Rs.2,00,000/- as advance and it was vacated in about a year and that at the time of vacating the premisis, out of refundable amount of Rs.2,00,000/- a sum of Rs.1,33,000/- was repaid by the accused in cash and he gave Exs.P-1 to P-4 cheques for the total balance of Rs.67,000/- repaying the refundable advance under the agreement. Though the accused contended in the lower Court that he did not draw the said cheques in favour of the complainant, the accused did not go into the witness box during trial in the lower Court, to deny the said fact. Banker of the accused also did not dishonour the cheques on the ground of signatures not tallying. 2) It is further contended by the accused that Ex.P-1 to P-4 cheques were not supported by any debt or liability. To prove existence of debt or liability for Exs.P-1 to P-4 cheques, the complainant examined himself as P.W-1, examined the mediator as P.W-2 and marked Ex.P-11 agreement dated 17.04.2000 together with cancellation endorsement dated 11.07.2001 thereon. Evidence of P.Ws 1 and 2 and Ex.P-11 agreement with cancellation endorsement showed payment of refundable advance of Rs.2,00,000/- by the complainant to the accused under the said agreement out of which a sum of Rs.1,33,000/- was repaid by the accused to the complainant under the cancellation endorsement. The cancellation endorsement further reads that Exs.P-1 to P-4 cheques were issued by the accused to the complainant towards balance amount of Rs.67,000/- to be refunded from out of the advance amount. If this is all the material placed by the complainant before the lower Court, the complainant would have succeeded in his attempt to prosecute the accused. 3) But, in cross-examination P.W-1 admitted execution of Ex.D-1 agreement of the same date 17.04.2000 with cancellation endorsement dated 11.07.2011 thereon. Ex.D- 1 reads that an amount of Rs.1,00,000/- was paid as refundable advance thereunder; and cancellation endorsement on Ex.D-1 further reads that the said refundable advance of Rs.1,00,000/- was repaid by the accused to the complainant on that date. P.W-1 could not explain connection between Ex.P-11 and Ex.D-1. Added to this confusion, the complainant in his sworn statement recorded by the Magistrate categorically stated that he deposited an advance of Rs.1,00,000/- with the accused. He did not state in the sworn statement that he deposited advance of Rs.2,00,000/- with the accused. If the advance amount is Rs.1,00,000/-, then it is in accordance with Ex.D-1 agreement. The cancellation endorsement on Ex.D-1 shows that the said advance of Rs.1,00,000/- was repaid by the accused to the complainant. In the light of the above evidence, the accused contended that Ex.P-11 agreement was not acted upon and it was only Ex.D-1 agreement which was acted upon by the parties. P.W-1 did not explain as to why two agreements were executed between the parties on the same date with different advances and different rents. In this state of affairs, the lower Court gave benefit of doubt in favour of the accused and acquitted him. In the light of the above evidence, this Court is of the opinion that the lower Court rightly came to the conclusion that Ex.P- 11 was not acted upon and that the advance amount of Rs.1,00,000/- paid on the date of Ex.D-1 was refunded by the accused on the date of its cancellation. Therefore, there is no material to substantiate that Exs.P-1 to P-4 cheques were supported by any debt or liability. Thus, there are no grounds either in law or on facts to interfere with finding of acquittal recorded by the lower Court. 4) In the result, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J October 27, 2011 ksh