IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FOURTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.133 of 2008 Between: Puli Suresh Babu .. Appellant AND Gajulla Ratna Bhaskar & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.133 of 2008 JUDGMENT: This appeal is directed against the judgment in C.C.No.27 of 2003, on the file of the Judicial Magistrate of First Class, Bantumilli, dated 31.05.2007, by which the sole accused was acquitted of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’). 2. The appellant’s case is that the accused/the first respondent herein borrowed Rs.1,20,000/- from him on 10.01.2003 and when demanded to repay, he issued a cheque No.776924 for Rs.1,20,000/- in favour of Andhra Bank, Bantumilli on 15.02.2003. On presentation of the cheque through the State Bank of India, Chinapandraka on 31.03.2003, it was returned with an endorsement about the account of the accused being already closed. The appellant issued a legal notice on 22.04.2003 which was intentionally avoided by the accused being absent from his house and, hence, the complaint. 3. Copies of the documents were furnished to the first respondent on his appearance before the trial Court and he pleaded not guilty when examined under Section 251 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). 4. During trial, P.W.1 was examined and Exs.P-1 to P-6 were marked on behalf of the complainant and the accused denied the incriminating circumstances appearing in the evidence against him, when examined under Section 313 Cr.P.C. and he had no defence evidence. 5. The trial Court rendered the impugned judgment with reference to the evidence of the complainant as P.W.1 and documents Ex.P-1-Cheque, Ex.P-2-Counter foil, Ex.P-3-Return Memo of the Andhra Bank, Bantumilli, Ex.P-4-Memo of the State Bank of India, Chinapandraka, Ex.P-5-Copy of the Legal Notice and Ex.P-6-Returned Courier cover. The trial Court, referring to the various precedents cited before it, firstly noted that this Court in Crl.P.No.1055 of 2006 in C.C.No.94 of 2003 quashed the proceedings in C.C.No.94 of 2003 against the appellant herein on the allegations of committal of theft of the subject cheque. However, the trial Court was of the opinion that the Legal Notice- Ex.P-5 was not proved to have been served on the accused by examining the person who attempted to serve the notice, while Ex.P-6-Returned Courier cover itself did not contain either the signature or the initial of the serving Officer. The trial Court also noted that apart from the absence of any door number or any indication of the identity of the residence of the accused, the endorsement of return due to the door being locked cannot be considered to have been proved beyond doubt to draw any presumption under Section 114 (e) of the Indian Evidence Act, 1872. The trial Court also felt that the complainant is neither a friend nor a relative of the accused and it is difficult to believe and unnatural that such a huge amount would have been lent without any document. The trial Court also relied on the admission of P.W.1 about the absence of any document to show the complainant being possessed of such an amount on that day. The trial Court also went into the question of the loan being in the personal capacity of the accused and the cheque being issued by him as Managing Partner of a company. On the various grounds in defence, the trial Court concluded that the complainant failed to prove the cheque in question to have been issued in discharge of a legally enforceable debt or a notice to have been duly served on the accused demanding the same. 6. The consequent acquittal of the accused is the subject of challenge in this appeal in which it was contended that the plea of the accused about the theft of the signed cheques was found to be false by this Court in Crl.P.No.1055 of 2006 on 31.07.2006 and that the notice sent to the accused to the same address through Court was served in the complaint case on the accused. A person, who issued a cheque on an account which was closed and who initiated a false case against the complainant, could not have been relied on when the signature on the cheque is not in dispute and the manner in which and the amount for which the cheque is issued is not concern of the complainant. Hence, the complainant desired the judgment and the acquittal to be reversed. 7. Sri C. Praveen Kumar, learned counsel for the appellant, Sri P. Krishna Prakash, learned counsel for the accused/first respondent and Sri Rudresh Deshpande, learned counsel representing the learned public prosecutor/the second respondent are heard. 8. The point for consideration is whether the acquittal of the first respondent deserves to be reversed on merits. 9. It is true that in Crl.P.No.1055 of 2006, this Court by an order, dated 31.07.2006, found that the alleged theft of the cheque in question by the complainant herein is false and C.C.No.94 of 2003 initiated against him was quashed in exercise of the inherent powers of this Court. However, the order is no expression of opinion on the existence of any legally enforceable debt or liability payable by the first respondent herein in favour of the appellant herein and the issuance of the subject cheque in connection with any such debt or liability. The observation of this Court about the first respondent herein not giving a reply to the statutory notice was without examining the question of due service of statutory notice or not, which question, of course, did not arise in that criminal petition. 10. Coming to the evidence on record in this case, it was the interested and self-serving evidence of the complainant alone that was before the trial Court contradicted by the equally interested and self-serving denials of the accused during his examinations by the trial Court. However, it is seen from Ex.P-6-Returned Cover sent through ANL Parcel Service to the accused that the endorsement that the door was locked and that the addressee was out of station with the date 28.04.2003 underneath the same was not signed or initialled by any person and there is no identification of the person who attempted to serve the notice through courier on that day. The evidence of any person connected with ANL Parcel Service at the place of service was not placed before the trial Court and the evidence of P.W.1 who obviously could not have had personal knowledge of the reason for non-service of the notice at Bantumilli on the first respondent cannot be considered sufficient proof or probablisation of due service of the notice on the accused. 11. That apart, the cheque in question was issued by the accused for M/s. Sri Venkata Sai Auto Consultancy as Managing Partner and the debt was alleged and stated to be a personal debt of the accused and not the debt from the firm. If P.W.1, the complainant, had admitted that he could not file any document showing payment of Rs.1,20,000/- to the accused on 10.01.2003 and if he had not stated about being connected with the accused by relationship or friendship or acquaintance in any other manner, the trial Court in refusing to act upon his statement as proof of any legally enforceable debt cannot be considered to be unreasonable or unjust. The claim of the complainant in the complaint or evidence did not state about the presence of any other person at the time of advancement of the loan and in the absence of allegation or proof of any connection between the complainant and the accused for any reason, the advancement of the loan by a person residing in a different village than the village of the accused without any document could not have inspired confidence in a judicial mind. The complainant admitted in his evidence as P.W.1 that he has no record to show that he was having Rs.1,20,000/- on 10.01.2003 and, hence, the trial Court, taking the existence of a legally enforceable debt or liability as not being proved also cannot be considered unreasonable. The trial Court, which had the benefit of observing P.W.1 physically, while examining him and his demeanour, has refused to place reliance on his uncorroborated statements, for interference with which, very strong grounds are required. 12. Sri C. Praveen Kumar, learned counsel for the appellant referred to Dr. YALAMANCHILI NAGARAJA RAO VS. NALGONDA DISTRICT CO-OPERATIVE CENTRAL BANK, MIRYALGUDA BRANCH AND ANOTHER[1], in which a learned Judge of this Court had considered the effect of the return of a notice served by notice sent by registered post to the opposite party, but that was a case where the request for quashing the proceedings on the ground of non-receipt of notice of demand after dishonour of the cheque was negatived as the matter has to be a matter of appreciation after evidence of the parties is placed before the Court. The learned Judge was specific that as to whether the accused was really out of station during that relevant period, whether the notice was sent to his address and whether a false endorsement of his absence was made are matters to be decided after parties adduce evidence. Such a contingency does not arise herein and there is no need for any inferences as the evidence of the parties is before the Court and as there was no positive evidence of proof of service or valid tender of the notice on the accused. 13. Irrespective of the other grounds, which were also referred to by the learned Magistrate for acquitting the accused, on the grounds of want of proof of legally enforceable debt or liability and want of proof of valid service or valid tender of the statutory notice, which is a prerequisite for a successful prosecution under Section 138 of the Act, the acquittal of the accused cannot be interfered with and the criminal appeal fails and is, accordingly, dismissed. ___________________ G. BHAVANI PRASAD, J Date: 24th October, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.133 of 2008 Date: 24th October, 2011 KL [1] 2002 (1) ALD (Crl.) 615 (AP)