HONOURABLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.744 OF 2004 Date: 11-04-2011 Between: Addanki Ramachandra Rao. ..Appellant And: Vutukuri Sravan Kumar and others. …Respondents HONOURABLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.744 OF 2004 JUDGMENT: Respondent-accused Nos.1 and 2 in C.C.No.181 of 2002 on the file of the learned II Additional Judicial Magistrate of First Class, Machilipatnam were acquitted by the said court for the offence under Section 138 of the Negotiable Instruments Act by its order dated 8-1-2004. Aggrieved by the said order of acquittal, the defacto complainant-P.W.1 preferred this appeal inter-alia on the following grounds: a) The trial Court failed to appreciate the evidence and other material available on record. b) The trial court ought to have seen that the respondents-accused 1 and 2 had issued Ex.P.1 cheque dated 25-2-2002 for Rs.2,25,000/- towards part payment of the debt under Ex.D.5 pronote and the same was returned for want of sufficient funds. c) The trial Court failed to draw presumption under Section 139 of the Negotiable Instruments Act. d) The Court below should have seen that Exs.D.3 and D.4 were pressed into service as an after thought with the assistance of D.W.2-A.S.I. of Police, Station House Officer of Chilakalapudi Police station. e) The trial Court should have seen from the evidence of D.W.2-A.S.I. of Chilakalapudi Police station that the original complaint preferred by A.2 was lost and ExD.3 entry in General Diary was not made by him. f) The trial Court should have seen that issuance of cheque and Pass Book and dishonour thereof is sufficient to launch prosecution under Section 138 of the Negotiable Instruments Act. 2. The facts of the case in brief are as follows: On 24-3-2001, the 1st respondent-accused borrowed an amount of Rs.2,25,000/- from the appellant-defacto complainant under Ex.D.5 pronote. In spite of repeated demands, the amount was not paid. Ultimately, on 25-2-2002, both the respondents-accused (wife and husband respectively) had issued Ex.P.1 cheque for Rs.2,25,000/- drawn on Vysya Bank, Machilipatnam Branch. On 26-2-2002, it was presented and returned with an endorsement of “insufficiency of funds” under Ex.P.2 Memo. On 4-3-2002, legal notice was issued to the respondents-accused. On 18-3-2002, reply notice was sent by both the respondents-accused under Ex.P.7 denying the averments of legal notice. Thereafter, the appellant-defacto complainant filed a private complaint in C.C.No.181 of 2002 before the Court of II Additional Judicial Magistrate of First Class, Machilipatnam under Section 138 of the Negotiable Instruments Act against both the respondents-accused. 3. On their pleading not guilty to the charge, both the respondents-accused were prosecuted and tried for the offence under Section 138 of the Negotiable Instruments Act. 4. The appellant-defacto complainant got himself examined as P.W.1 besides examining the Branch Manager, Vysya Bank, Machilipatnam Branch as P.W.2 and got marked Exs.P.1 to P.8, on his behalf, whereas 2nd respondent-accused got herself examined as D.W.1 besides examining A.S.I. of Chilakalapudi Police Station as D.W.2 and got marked Exs.D.1 to D.5, on behalf of herself and her husband. 5. The trial Court, taking into consideration, the evidence as well as the other material on record, came to a conclusion that both the respondents-accused were not found guilty for the offence under Section 138 of the Negotiable Instruments Act and consequently, they were acquitted therefor. 6. It is the case of the appellant-defacto complainant that both the respondents-accused had borrowed an amount of Rs.2,25,000/- from him under Ex.D.5 pronote and that the cheque that was issued by them towards discharge of the said amount was dishonoured by Vysya Bank, Machilipatnam with an endorsement of “insufficient funds” and as such, he was constrained to file legal proceedings against them in the Court of the learned II Additional Judicial Magistrate of First Class, Machilipatnam for the offence under Section 138 of the Negotiable Instruments Act. In this context, it is contended that the evidence of P.Ws.1 and 2 is to the same effect as it reiterates the averments as contained in the complaint. 7. It is his further case that D.W.1 falsely deposed in her evidence that neither she nor her husband ever issued any cheque to the appellant-defacto complainant in discharge of any debt. The incident of accident on 18-12-2001, wherein she is stated to have lost her purse containing cash, cheque book and pass book, is nothing but ‘cock and bull story’ invented for the purpose of the case and that her reporting the matter to the police and the bank goes to show that both the accused have done it in a pre-planned manner. 8. It is his further case that D.W.1 has admitted in her evidence that Ex.P.1 cheque contained their signatures but the contents thereof were not filled by them, as such, it is contended that once the signatures on the cheque are admitted, it has got to be presumed under Section 139 of the Negotiable Instruments Act that Ex.P.1 cheque was issued in favour of the appellant-defacto complainant towards discharge of legally unenforceable debt. Therefore, it is contended that the impugned order of acquittal passed by the trial Court is perverse and without any legal basis and the same is liable to be set aside. 9. On the other hand, the case of the respondent-A.1 is that there was no existing legally enforceable debt in favour of the appellant-complainant and as such, Ex.D.5 pronote has no legal basis. 10. It is his further case that on 18-12-2001, he along with his wife met with an accident while going on their two wheeler wherein his wife lost her diary containing cash, cheque book and pass book. They preferred a police complaint to the Chilakalapudi Police Station and also presented a report to the bank on the same day. Further D.W.2-A.S.I. of Chilakalapudi Police Station has deposed as to the complaint given by D.W.1 to that effect. Even the evidence of P.W.2 Branch Manager, Vysya Bank, Machilipatnam Branch has testified in clear terms that on 18-12- 2001 D.W.1 preferred a complaint before him stating that she had lost her cheque book and pass book and instructed countermand payments and that accordingly he instructed his subordinates to stop payments of the said amount. Therefore, it is submitted that the evidence of respondent No.2/D.W.1 (wife) and the evidence of D.W.2-A.S.I. of Chilakalapudi Police station and the evidence of P.W.2-Branch Manager of Vysya Bank, Machilipatnam Branch goes to show that on 18-12-2001, both the respondents-accused had met with an accident while they were proceeding on their scooter wherein D.W.1 lost her purse containing cash, cheque book and pass book and she preferred a police complaint to that effect and also reported the matter to the bank countermanding the payment. 11. It is his further case that Ex.P.7 reply notice was also to the same effect that the cheque book was lost in an accident and they did not issue Ex.P.1 cheque in favour of the appellant-complainant and therefore, they are not liable. 12. It is his further case that though Ex.D.5 pronote is stated to have been issued in favour of the wife of the appellant- complainant, she was not examined and the same is fatal to the case of the appellant-complainant. Had she been examined, perhaps truth would have seen the light of the day. 13. It is his further case that when the sworn statement of the appellant-complainant was recorded by the trial Court, he has stated therein that the respondent-A.1 had borrowed Rs.2,25,000/- from him by executing a promissory note in his name. He has again during the course of his examination as P.W.1, reiterated the same. However, Ex.D.5-Pronote on the face of it reveals that it was not executed in the name of the appellant-complainant but it was executed in the name of his wife Adilakshmi whom the appellant-complainant did not choose to examine as a witness before the trial Court in support of his case. Therefore, it cannot be said that Ex.D.5 pronote was executed in favour of the appellant-complainant and as such, he cannot have cause of action against the respondents-accused under Section 138 of the Negotiable Instruments Act. 14. It is pertinent to note that it was in the context that the trial Court entertained a doubt as to the issuance of Ex.P.1 cheque by the respondents-accused in favour of the appellant-complainant since the cheque book was lost in an accident on 18-12-2001 whereas Ex.P.1 cheque bears the date as 25-2-2002. Therefore, it is submitted that the impugned judgment and order of acquittal as passed by the trial Court is not liable to be interfered with by this Court. 15. By way of reply, it is contended that the appellant- complaint had in clear terms stated that in Ex.P.4 legal notice that respondents-accused borrowed an amount of Rs.2,25,000/ from his wife Adilakshmi and executed Ex.D.5 pronote in her favour and that the same is reiterated in the complaint before the trial Court as well as in his evidence. However, by mistake, it has been stated in his sworn statement before the trial Court after filing the complaint that Ex.D.5 was executed in his favour. It is not fatal to his case. 16. It is further contended that the cheque was returned by the bank with an endorsement “insufficiency of funds” and not on the ground that the cheque book was lost. It is further contended that the evidence of D.W.2-A.S.I. of Chilakalapudi Police Station reveals that the report preferred by the respondents-accused on 18-12-2001 was lost beyond recovery. The respondents-accused also failed to produce the receipt/acknowledgement issued by the police and further, the banker of the respondents-accused did not give any receipt in token of report that the pass book and cheque book were lost in a two wheeler accident on 18-12-2001 and moreover, Ex.D.4 G.D. entry which did not contain either seal or stamp, was not made by D.W.2. Therefore, it is contended that D.W.2 was not competent to appear as a witness before the trial Court. 17. Having regard to the evidence placed on record and the submissions made by both sides, it is to be seen that on 18.12.2001, the respondents met with an accident while going on two wheeler and DW.1 lost her diary containing cash, cheque book and pass book. They preferred a police complaint to the Police, Chilakalapudi and also gave a report to the bank to that effect. Further the evidence of DW.2-A.S.I. indicates that the respondents preferred a complaint to that effect. Even the evidence of PW.2 – branch manager indicates that the respondents had met with an accident and DW.1 lost her purse containing cash, cheque book and pass book. Ex.D.5-Pronote is said to be executed in favour of the wife of the appellant, but she was not examined. In the circumstances and a perusal of the impugned judgment, it cannot be said that the trial court has committed error in acquitting the accused and as such the impugned judgment does not suffer from any infirmity warranting interference from this court. 18. In the result, the Criminal Appeal is dismissed. ___________________________ Justice B.N.RAO NALLA Date:11-04-2011. Dvs/Stp HONOURABLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.744 OF 2004 Date:11-04-2011