HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1489 OF 2006 DATED: 22.09.2011 BETWEEN: K.Praveen Kumar .. Appellant/Complainant And K.Srinivas Goud and another .. Respondents HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1489 OF 2006 JUDGMENT: This criminal appeal is filed against the judgment dated 28.08.2006 passed by the Judicial Magistrate of First Class, Wanaparthy in C.C.No.342 of 2002 acquitting the respondent No.1/accused. 2. I have heard Sri A.Sudershan Reddy, learned counsel appearing for the appellant and Sri V.Narasimha Rao, learned counsel appearing for the Respondent No.1 and learned Additional Public Prosecutor representing the State. 3. The appellant filed a complaint under Section 138 of the Negotiable Instruments Act against the first respondent/accused. After trying the said offence, the learned trial Court acquitted the first respondent of the offence under Section 138 of the Negotiable Instruments Act. Feeling aggrieved, the complainant filed the present appeal. 4. It was the case of the appellant that he and the first respondent are the partners of Medicate Medical Agencies, Bandargar, Wanaparthy. The first respondent having borrowed personal loan of Rs.55,000/- from the complainant, issued a cheque on 15.09.2002 towards discharge of the said loan. Subsequently, when the cheque was presented for collection of the amount, it was dishonoured on 18.09.2002 on the ground that the first respondent instructed his banker to stop payment. Subsequently, after issuing statutory notice under Negotiable Instruments Act, the appellant filed a complaint under Section 138 of the Negotiable Instruments Act against the first respondent. 5. Before the learned trial Court, PWs.1 to 3 were examined on behalf of the prosecution and Exs.P.1 to P.7 were marked, whereas, the first respondent was examined as DW1 and examined another witness as DW2 on his behalf and marked Exs.D.1 to D.4. 6. The learned Magistrate upon considering the entire evidence on record, acquitted the accused holding that the cheque was not issued towards satisfaction of any legally enforceable debt or liability. 7. Now the point for determination in this appeal is whether there are any valid grounds to interfere with the order of acquittal passed by the learned Magistrate? 8. The learned Magistrate further took into consideration that there were two rival groups in the village, the prosecution party belongs to one group, whereas the first respondent party belongs to another group and there was every possibility of falsely implicating the first respondent due to political rivalry. 9. The defence version before the leaned Magistrate was that at the time when the firm in which the appellant and the respondent No.1 were partners was to be closed, the respondent No.1 gave three cheques and executed one agreement as a good-will, but he never borrowed any amount from the appellant. The specific version of the first respondent is that he gave three cheques for total amount of Rs.1,66,000/- on 06.07.2002 and also one agreement. When the agreement which was marked as Ex.P.3 is confronted to the appellant, he denied the signature on the agreement. Subsequently, at the instance of the first respondent, the learned trial Court sent the admitted handwriting and signatures along with the disputed signatures of the appellant on Ex.D.3 to the handwriting expert for opinion. The handwriting expert was examined as DW.3 and his evidence disclosed that the signatures on both the admitted and disputed documents are that of the appellant. The learned trial Court also recorded a finding that perusal of Ex.P.1-cheque dated 15.09.2002 revealed that it was issued to the complainant on 06.07.2002. Thus, the first respondent could able to demonstrate before the learned trial Court that he gave three cheques under Ex.D.3-agreement on 06.07.2002 in a different context, but he never borrowed any amount from the appellant. He could be further able to demonstrate that from the evidence of PW.3, the Manager of his bank that between 06.07.2002 to 30.08.2002 there was an amount of Rs.93,000/- in the account of the first respondent and as rightly viewed by the learned trial Court absolutely there was no necessity for the first respondent to borrow a sum of Rs.55,000/-. Further it was also found that the cheque bearing No.931734, which was subsequent to Ex.P.1, cheque was released on 09.07.2002 itself. When it is made out from the evidence that Ex.P.1, cheque was issued along with the remaining cheques on 06.07.2002, the question of the first respondent borrowing an amount of Rs.55,000/- from the appellant on 20.08.2002 does not arise. 10. Thus, considering all these aspects, the learned trial Court held that the first respondent rebutted the presumption available to the appellant under Section 139 of the Negotiable Instruments Act and accordingly recorded a finding that the impugned cheque Ex.P.1 was not issued towards discharge of any legally enforceable debt or liability. 11. For the aforementioned reasons, the order of acquittal passed by the learned trial Court does not call for any interference in this appeal, the appeal fails and accordingly, the same is dismissed confirming the judgment dated 28.08.2006 passed by the Judicial Magistrate of I Class, Wanaparthy in C.C.No.342 of 2002. __________________ Date: 22.09.2011 R. KANTHA RAO, J Kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1489 OF 2006 DATE: 22.09.2011