IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.280 of 2008 Between: Penkey Venkata Satyanarayana Murthy .. Appellant AND Ayyala Lakshmana Rao & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.280 of 2008 JUDGMENT: The criminal appeal is directed against the acquittal of the accused in C.C.No.381 of 2004, on the file of the III Additional Judicial Magistrate of First Class, at Kakinada, by the judgment, dated 03.12.2007. 2. The factual background for the appeal is that the appellant filed the complaint against the first respondent alleging that he is the owner of 43 square yards of undivided and unspecified share purchased from Jonnalagadda Venkata Bhaskara Ram Murthy on 14.10.1998 and though he paid Rs.2,50,000/- to a builder under an agreement, dated 14.10.1998, for construction of a double bed room flat in the first floor, the builder, without completing the construction, fled away. The first respondent was claimed to have been entrusted with the task of building the flats to whom the appellant paid Rs.65,000/- through cash and cheque. The first respondent was claimed to have agreed to provide an additional bed room also at a cost of Rs.2,50,000/-, but the unfinished flat was learnt to have been sold to third parties without information to the appellant. When the appellant raised a dispute and was attempting to give a complaint to the police, the accused gave a cheque for Rs.3,50,000/-, dated 30.06.2004, which was presented by the appellant to his banker for collection. The cheque was returned with an endorsement of insufficiency of funds on 16.07.2004 and after receipt of the return memo, the appellant gave statutory notice to the first respondent for which there was no response. Therefore, the appellant filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”). 3. After the Court took cognizance of the offence and the accused appeared, copies of the documents were furnished to him and he pleaded not guilty when he was examined under Section 251 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”). P.Ws.1 and 2 were examined and Exs.P-1 to P-12 were marked on behalf of the appellant and the accused denied the incriminating circumstances appearing in the evidence against him when he was examined under Section 313 Cr.P.C. The accused examined himself as D.W.1 and also examined D.Ws.2 and 3 and marked Exs.D-1 to D-6 in defence. 4. The trial Court rendered the impugned judgment noting the admitted facts about purchase of 43 square yards by the appellant under Ex.P-1-Sale Deed, dated 14.10.1998, his entering into Ex.P-2-Agreement, dated 14.10.1998, with another builder paying Rs.2,50,000/- under Ex.P-3-bunch of receipts and the appellant entering into Ex.P-4-Khararnama on 07.02.2001 with the first respondent. The trial Court also noted that the appellant has to pay 50% before commencement of construction, 30% during the progress of construction and 20% at the finishing stage out of the total cost of construction of Rs.2,50,000/- and that the appellant paid Rs.50,000/- under Ex.P-5-Two Receipts, dated 20.12.2001, and another Rs.15,000/- by cash on 27.04.2002. Similar agreements were noted to have been entered into with the first respondent by the other purchasers and respective flats were noted to have been delivered to the purchasers except the appellant. The trial Court noted that after coming to know about the first respondent selling away his flat to a third party under Ex.P-6-Agreement, he raised a dispute on which the first respondent executed Ex.P-7-Agreement, dated 03.06.2004, agreeing to pay Rs.3,50,000/- towards cost of the flat towards which Ex.P-8-Cheque was issued on 03.06.2004. Exs.P-9 and P- 10 are the dishonour memos on which he got issued Ex.P-11- Statutory Notice, dated 21.07.2004, received under Ex.P-12-Postal Acknowledgment by the first respondent, but no payment was made. The trial Court was of the opinion that Ex.P-8-Cheque, dated 30.06.3004, was obtained by the appellant as a security for a future contingency though there was no existing legally enforceable debt or liability by that date. The trial Court also felt that when the appellant paid only Rs.65,000/-, Ex.P-7-Agreement, dated 03.06.2004, for payment of Rs.3,50,000/- was by use of force of the police as stated by D.W.3, an attestor of Ex.P-7- Khararnama, dated 03.06.2004, who admitted making the attestation on the directions of the police at the Police Station. The trial Court also referred to the complaint itself where Ex.P-7- Settlement, dated 03.06.2004, was stated to have been made when the appellant was about to approach the police and P.W.2 is a Head Constable in Police Vigilance Department at Kakinada lending further credence to the defence version. The trial Court also observed that the first respondent could not complete the construction only due to non-payment of consideration by the appellant and Ex.D-1-Reciept, dated 13.09.2005, for Rs.2,00,000/- issued by the counsel for the appellant was referred to, apart from the first respondent obtaining two demand drafts for Rs.3,50,000/- under Exs.D-5 and D-6 as showing the probability of the defence claim that the appellant was trying to recover the amount lost by him to the other builder in the transaction from the first respondent. The trial Court also noted that the appellant had already filed a civil suit for delivery of the flat in which his right over the claim will be decided, while his rights over the undivided and unspecified extent of land were no way projected by the transactions. The non-filing of any sale deed in favour of Boyinapalli Venu Gopal to whom the first respondent was stated to have sold the flat was also taken adverse notice of and taking an over all view of all the circumstances, the trial Court was of the opinion that Ex.P-8-Cheque, dated 30.06.2004, was obtained as security if the first respondent failed to perform his part of the contract and while the appellant can always sue for damages, Ex.P-8 cannot be considered to be towards a legally enforceable debt due from the first respondent. The trial Court also referred to the precedents cited before it and while distinguishing the decisions cited on behalf of the appellant, it followed LAXMINIVAS AGARWAL VS. ANDHRA SEMI CONDUCTORS PVT. LTD., HYDERABAD AND OTHERS [2006 (1) ALT (Crl.) 423 (A.P.)] and SRI NAND KISHORE RATHO, SECUNDERABAD VS. M/S. DEEPAK BROTHERS AND ANOTHER [1997 (1) ALT (Crl.) 371 (A.P.)] to find the first respondent not guilty of the offence and to acquit him. 5. The appellant contended herein that all the ingredients of the offence under Section 138 of the Act have been made out and Ex.P-8-Cheque, dated 30.06.2004, was not shown to be only towards security when Ex.P-7-Khararnama was entered into on 03.06.2004 and the complaint was filed only in September, 2004. The first respondent never complained in the meanwhile about Ex.P-7-Khararnama being obtained by force. The obtaining of Exs.P-5 and P-6 for Rs.3,50,000/- itself showed the existence of a debt and the trial Court was criticized to be incorrect in holding Ex.P-7 to be vitiated by threat and coercion and Ex.P-8 to be not in respect of a legally enforceable debt. 6. Sri Dantu Srinivas, learned counsel for the appellant, Sri C. Praveen Kumar, learned counsel for the first respondent and Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor/the second respondent are heard. 7. The point for consideration is whether the acquittal of the first respondent for an offence punishable under Section 138 of the Act is liable to be reversed in appeal. 8. The complainant/appellant as P.W.1, while reiterating the allegations made in the complaint, admitted that he has to pay Rs.1,25,000/- to the accused/the first respondent at the time of starting of construction, but could not do so when the accused started construction in January, 2002, as he was not having funds and the loan sought for from ICICI Bank was not yet disbursed to him. He admitted that he did not perform his obligation as per Ex.P-4-Khararnama between him and the first respondent and if so, any term or condition of Ex.P-4-Khararnama being capable of construction as giving rise to any legally enforceable liability is open to doubt. P.W.1 further admitted that after giving cash of Rs.65,000/- to the accused, if the land owner failed to pay the balance amount, the accused was entitled to recover the same with interest. He was not in the know of issuance of two demand drafts by the accused drawn on Syndicate Bank, Gandhi Nagar Branch, Kakinada, in his name for Rs.3,50,000/- which were delivered to his counsel. 9. P.W.2, a Head Constable in the Vigilance Department of Police, in his evidence, deposed about Ex.P-7-Khararnama, dated 03.06.2004, after the first respondent agreed to return Rs.3,50,000/- to P.W.1 allegedly admitting that he sold away the flat to some other person. Ex.P-8-Cheque, dated 30.06.2004, was also stated by him to have been issued then and P.W.2 does not know the terms and conditions agreed between the parties regarding the transactions. He also does not know whether P.W.1 has to pay 50% of the agreed amount even at the time of commencement of the construction and his statement that P.W.1 agreed to execute the sale deed in favour of the accused after negotiating the cheque, but he still did not ask the accused about the dishonour of the cheque on intimation by P.W.1, may not suggest the credibility of the knowledge of P.W.2 about the various details of the transactions between the parties as stated by him earlier. If he were so much involved as to know all the earlier details, he could not have failed later also. 10. The accused who examined himself as D.W.1 alleged that P.W.1 failed to pay the balance of Rs.60,000/- payable at the time of the commencement of construction and that his signatures were obtained by force and coercion on Ex.P-7-Khararnama, dated 03.06.2004, and Ex.P-8-Cheque, dated 30.06.2004. He reiterated the defence version about not selling the flat to anybody and not being concerned with the amount of Rs.2,50,000/- paid by P.W.1 to the earlier builder and he produced Ex.D-1-Receipt, dated 13.09.2005, issued by the former counsel for P.W.1 for Rs.2,00,000/- paid by him and Exs.D-5 and D-6-Demand Drafts, dated 26.12.2005 and 15.12.2005, for Rs.3,50,000/- and the copies of the notices exchanged between them in support of his contentions. The Branch Manager of Syndicate Bank, Gandhi Nagar Branch, Kakinada, was examined as D.W.2 to show the accused obtaining Exs.D-5 and D-6-Demand Drafts in the name of P.W.1 for a total of Rs.3,50,000/- which were later cancelled. He also examined the other attestor of Ex.P-7 as D.W.3 who positively stated that his signatures on Ex.P-7 were obtained at the II Town Police Station, Kakinada, under the directions of the Sub-Inspector of Police. D.W.3 was not shown to be in any way interested in the accused to such an extent as to resort to falsehood to help him and the absence of any steps being taken by D.W.3 regarding signatures being obtained on Ex.P-7 by force cannot be construed to be an unnatural conduct. 11. The accused, even in his examination under Section 313 Cr.P.C, was basically claiming that he could not complete the flat of P.W.1 as he did not pay the balance after initially paying Rs.65,000/- and the very manner in which the notices were exchanged, the fresh agreement was obtained, the demand drafts were taken, the payment was claimed to have been made to the former counsel for P.W.1, etc., may show the parties being in controversy about the rights and liabilities arising out of the transactions between them concerning the construction of the flat by the first respondent for the benefit of the appellant. Clause 10 of Ex.P-4-Khararnama specifying the terms and conditions of payment to be made to the first respondent by the appellant being admitted, the further admission by the complainant of not being able to comply with the same may not show the defence version to be bound to rejection even at face value and under the circumstances, if the trial Court had opined the appellant to have not proved the guilt of the first respondent for an offence punishable under Section 138 of the Act, the same cannot be considered to be totally divorced from the probabilities arising out of the evidence on record. If the trial Court entertained a genuine doubt about the proof of existence of any legally enforceable debt or liability at the time of issuance of Ex.P-8-Cheque, dated 30.06.2004, and its dishonour, the same cannot be considered to be susceptible to interference in this appeal, as it is well settled that if two views are possible on a given set of evidence and if the trial Court has taken one view, it requires very strong and positive grounds for an Appellate Court to interfere against an order of acquittal. A tight ropewalk in disposing of this appeal is all the more necessary in view of the statement of the learned counsel for both parties that the subject matter of this dispute is pending adjudication before the competent civil Court in a suit between the parties. As any expression of further opinion is likely to prejudice the rights and contentions of the parties in the civil suit, it is suffice to conclude that the judgment of acquittal cannot be reversed when the view taken by the trial Court cannot be considered to be beyond the facts and circumstances disclosed by the evidence on record. 12. Hence, the Criminal Appeal is dismissed. It is needless to clarify that any observations made in this judgment are confined purely to the consideration of the merits of the appeal without casting any shadow on the determination of the civil dispute by the civil Court on its own merits. ___________________ G. BHAVANI PRASAD, J Date: 14th November, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.280 of 2008 Date: 14th November, 2011 KL