THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2451 of 2004 JUDGMENT: 1 This appeal is filed by the complainant against acquittal of the respondent / accused of the offence punishable under section 138 of the Negotiable Instruments Act (in short ‘the Act’). The complainant filed the complaint in the lower Court alleging that the accused obtained goods worth Rs.10,07,731/- on credit basis from the complainant and paid only Rs.5,34,210/- and that for the balance amount of Rs.4,73,521/- the accused issued Ex.P.1 postdated cheque. When the said cheque was presented for collection, banker of the accused dishonoured the same with endorsement of ‘insufficient funds’ in the account. Ex.P.2 is cheque return memo and Ex.P.3 is debit advice. Thereupon the complainant issued Ex.P.4 notice to the accused demanding payment of dishonoured cheque amount. Ex.P.5 is postal receipt therefor. After receiving the said notice, the accused got issued Ex.P.6 reply denying his liability and putting forward his contentions on Ex.P1 cheque. 2 During trial in the lower Court, P.W.1 was examined on behalf of the complainant; and the accused, who is proprietor of his concern, examined himself as D.W.1. It is the contention of the accused that at the time of opening of the account with the complainant, the complainant obtained Ex.P.1 blank signed cheque from him as security for the transaction and that after the year 1996 there were no transactions between them and that he is not liable to pay any amount under the account to the complainant and that taking advantage of blank signed cheque with him, the complainant gave false notice and filed false complaint against him. 3 There is no dispute about the accused purchasing oil from the complainant by opening account with the complainant. The complainant as well as the accused are proprietary concerns. The dispute between the parties is with regard to existence of debt or liability in support of Ex.P.1 cheque. Though the complainant in the complaint stated that the accused had transactions with the complainant during the years 1995 to 1997, P.W.1 in cross examination admitted that after April 1996, the accused had no transactions with the complainant. 4 Since the accused examined himself as D.W.1 and denied existence of any debt or liability to the complainant, the initial presumption under Section 139 of the Act recedes to the background. It is for the complainant to prove that there was liability or debt on the part of the accused to the complainant, in discharge of which liability or debt the accused issued Ex.P.1 cheque in favour of the complainant. To prove existence of liability or debt supporting Ex.P.1, the complainant has filed its balance sheet Ex.P.9 and income tax assessment order Ex.P.8. The lower Court did not place any reliance on Exs.P.8 and P.9 as they were documents, which came into existence during pendency of the criminal case in the trial court. The lower Court also did not place any reliance on Ex.P.10 statement of account prepared by the complainant, because the complainant did not file any account books in support of the said statement. A statement of account like Ex.P.10 is not a legal piece of evidence at all. It is only under the provisions of The Bankers' Books Evidence Act, 1891 a banking company is given facility to file statement of account of the customer after appending proper certification thereto. Such facility is not available to any other person to whom the said Act is not applicable. Ex.P.10 has no relevance under the Evidence Act. The complainant did not file the account books maintained by him in regular course of business. The complainant also did not file bills or vouchers in support of the entries contained in Ex.P.10 statement of account. In the absence of filing of account books maintained by the complainant in regular course of business and in the absence of filing bills or vouchers containing signatures of the accused in support of the said account, the lower Court is justified in holding that the complainant has failed to prove existence of any legally enforceable debt or liability for Ex.P.1 cheque. 5 On the other hand, the accused produced his original ledger accounts for the year 1995-96 as Ex.D.2 and marked relevant entries therein as Ex.D.2 A. Similarly he also produced Ex.D.3 original ledger account book for the year 1996-97 and marked Ex.D.3A entry therein. He also filed Ex.D.4 final assessment order passed by Deputy Commercial Tax Officer on his turnover during the relevant year. As per the said assessment order, turnover of the accused for the year 1995-96 was Rs.9,12,599/-. It falsifies the complainant’s contention that the accused had transactions worth Rs.10,07,731/- with the complainant. The accused also filed Ex.D.1 receipt dated 01.04.1996 issued by the complainant in its favour. The transaction covered by Ex.D.1 finds place in Ex.D.3 account of the accused. The lower Court noticed that there is no corresponding entry for Ex.D.1 payment in Ex.P.10 statement of account filed by the complainant. In those circumstances, the lower Court is justified in holding that the complainant has failed to prove existence of legally enforceable debt or liability for Ex.P.1 cheque to the extent of Rs. Rs.4,73,521/-. It led the lower Court to believe the defence version that Ex.P.1 cheque was issued by the accused as a blank cheque as security for the transactions between the parties. I find no reasons to come to a different conclusion in this appeal. The lower Court was right in acquitting the accused. 6 In the result, the appeal is dismissed. -------------------------------------------- SAMUDRALA GOVINDARAJULU, J. Date:12.08.2011 Kvsn