IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTIETH DAY OF NOVEN/BER TWO THOUSAND AND TWENTY ONE PRESENT THE HONOURABLE DT. JUSTICE SHAMEEM AKTHER CRIMINAL APPEAL No. 430 OF 2008 Crl.Appeal Under Section 378 (4) of Cr.P.C. against the Judgment in CC No' 250 of 2003 dated 31-12-2007 on the file of the Court of the Judicial Magistrate of First Class at Madhira Between: '1 . Yenigandla Venakateswr Rao, ( died ) S/o Appaiah, Business, Fl/o Wyra Village & Mandal. ( Since died Appellants 2 to 5 are brought on record on !R qs Apqqllant No. I vide bourt Order dated 5-2-201 0 in Crl.M.P. No. '18 of 2010 in Crl.Appeal.) 2. Y. Anil Kumar S/o. Late Y. Venkateswararao ( Son) 3. Y.Sunil Kumar S/o. Late Y. Venkateswara Rao ( Son) 4. Y. IVani W/o. Late Y. Venkateswara Rao ( Wife) 5. Y. Varamma W/o. Appaiah ( Mother ) ..Petitioner / Complainant /Appellant Counsel for the Appellant: Smt. D. SANGEETHA REDDY Counsel for the Respondent No.1: SRI MUMMANENI SRINIVASA RAO Counsel for the Respondent No.2: THE PUBLIC PROSECUTOR (TG) The Court delivered the following: JUDGMENT AND '1 . Gurram Shiva Prasad, S/o Ramaiah, Business, Gowri Shankar Traders, Dendukuru Village, Madhira Mandal, Khammam Dist. .. Accused 2. The State of Andhra Pradesh, rep. by its Public Prosecutor, High Court of A.P., at Hyderabad. ...Respodents/ Accused i / THE H.)N,BLE DT. ]USTICE SHAMEEM AKTHER ! RIMINAL APPEAL No.43O of 2OO8 JUDGMENT: This Crim nal Appeal, under Section 378(4) of the Code of Criminal Procec ure, 1973 (for short, 'Cr'P'C')' is filed bY the challenging the judgm(:nt, dated C.C.No.250 of 2003 bY the ludicial appellant/comPl )inant, 3L.12.2007, Pi ssed in Magistrate of F rst Class at Madhira, whereby' the Court below acquitted the r,'spondent No'1/accused under Section 255(1) of Cr.P.C., for the ,ffence punishable under Section 138 of Negotiable Instruments Act 1BB1 (for short,'N I'Act')' 2 Heard the leaned counsel for the appellant/comDlainant' the learned Additio ral Public Prosecutor appearing for respondent No.z/State and erused the record 3. It is evider t from the record that that during the pendency of this appeal/ ti,e appellant/complainant died and the Legal representatives rf the appellant/complainant filed Crl'M'P'No'18 of 2010seekingleeveofthisCourttocontinuethisappeal.Vide order, dated 05. )2.2010, this Court granted leave and as such' the legal representa ives of the appellanvcomplainant are brought on record as aPPelli nt Nos'2 to 5' 4. Learned c< unsel for the a ppella nt/complaina nt would submit that the resp( ndent No'1/accused borrowed an amount of Rs.1,00,000/- ftlm the complainant on 17'05'2002 promising to repay the lEFfle with interest @ 24o/o per annum and executed a promissory note In spite of repeated demands' the accused failed cill.rio.43O of 2Ooa to repay the said amount and issued a cheque for Rs'1'25'000/- towards discharge of legally enforceable debt' When the said cheqUe was presented for payment, the same got dishonoured stating the reason as'exceeds arrangement'. There is a valid legal notice, dated 05.07.2003. In spite of the same, the amount was not paid by the accused, which constituted cause of action against him. Though there is clear and cogent evidence on record, the Court below erroneously acquitted the accused. Further, the Court below erred in holding that the complainant is not possessing valid license to do money lending business. In the cross-examination of P.W.1, it is elicited that the money was advanced to the accused personally. There is legally enforceable debt. The trial Court also erred in holding that Ex.P.1 cheque was given as collateral security. It further erred in holding that a complaint under Section 138 of N.I.Act cannot be filed in respect of an unenforceable debt and ultimately prayed to allow the appeal as prayed for. 5, On the other hand, the learned Additional Public Prosecutor would contend that the categorical admissions of the complainant in his evidence clearly establishes that he was doing money lending business withorlt license. The circumstances of the case reveal that Ex.P.1 cheque as not issued by the accused in discharge of legally enforceable debt. The Court below, after analyzing the entire evidence on record and referring to various precedents, rightly acquitted the accused of the offence under Section 13g of N.I.Act, There are no circumstances to interfere with the same and ultimately prayed to dismiss the Criminal Appeal. \ 3 Crl.rl lo.43O ot2OOa 6 In view c' the above submissions' the points that arise for determination ir this appeal are as follows: 1. Whether here is legally enforceable debt as alleged bY the aP tella nt/ com Plai na nt? 2.whether:x'P.lchequewasissuedbytherespondent No'l/accr rsed towards discharge of legally enforceat le debt? 3. whether :he iudgment' dated 3Lj22Oo7 ' passed in C.C'No.25oof2oo3bytheJudicialMagistrateofFirst Class at Madhira' is liable to be set aside' conseque ltly' whether the respondent No'1/accused is liable o be convicted for the offence punishable under Ser tion 138 of N'I'Act? 7. The case of the appellant/complainant' as al'erred in the subject private somplaint' is that the accused borrowed an amount comPlainant on 77 .05,2OOZ and In spite of rePeated clemands' the accused did no repay the said amount and finally issued a cheque bearing No.17;327 for Rs.1,25,000/- drawn on Andhra Bank, Madhira Branc r, towards discharge of legallY enforceable debt' When the said cheque was presented in bank for pavment' it was dishonoured s ating the reason 'exceeds arrangement'' The Po N s of Rs.1,00,00( /- from the executed a prc rlissory note' complainant g( t issued legal no the accused to PaY the amount' tice, dated 05 07'2003 demanding In spite of receiving the said legal same ncr repaid the the subject Private notice, the amount. ac:used neither rePlied to the He 1ce, the comPlainant filed complaint to te <e action against the accused' 8. In suPPo t of his case, the complainant himself got examined Exs.P.1 to P'7 as P.WJlbesi les P'Ws'2 and 3 and got marked C!I.A.No.a3o o(2ooe P.W.2 and P.W.3 are the Branch Managers of Andhra Bank' Ex'P'1 is the cheque bearing No'175327 for Rs'1,20,000/-, dated 17.06.2003. Ex.P.2 is Memo issued by Andhra Bank, dated 25.06.2003. Ex.P.3 is the Memo issued by SBH, Madhira Branch, dated 26.06.2003. Ex.P.4 is the Memo issued by SBH, Wyra Branch, dated 03.07.2003. Ex.P.5 is the office copy of Legal Notice, dated 05.07.2003. Ex.P.6 is the postal acknowledgement and Ex.P.7 is the certified copy Promissory note, dated 17.05.2002. 9. P.W.1 deposed in his cross-examination that he was doing chit fund business and also money lending business since 7 to B years in the name and style of 'Mithra Employees Finance,and 'Wyra Chit Fund and Finance (pvt) Limited, Wyra; he had acquaintance with the accused since 7 to B years during chit transactions; the accused is one of the subscribers in chit No.LTWA 22/17 and LfWA 22/12, during June, 2001 and the accused was the successful bidder for both the chits and prized amount was paid to the accused, who in turn, produced sureties. The case of the accused is that there is no regary enforceabre debt as a,eged and that the blank cheque was not given towards discharge of any legally enforceable debt, but for collateral purpose with regard to chit transaction and that the complainant, in order to gain wrongfully, concocted a story that the subject cheque was given towards discharge of iegally enforceable debt. p. W. 1 stated in his cross-examination that the accused came to his house, handed over the subject cheque, which was already drafted. He further deposed that he do not know whether the writing on the subject cheque was that of the accused and where it was drafted. Further cd-a. o.a3o ol2oO8 the subjec. cheque, dated 17'05'2002 was for Rs1'20'000/' Underthecircumstances,thetrialCourtrightlyheldthatthe cheque was not drafted by the accused and that the accused is not a rustic ma I or an illiterate and that if at all the accused issued the subject chelue towards discharge of legally enforceable debt' it should be or Rs'1,24,000/- since the interest on the amount alleged to be borrowed was 24o/o per annunr and that the circumstanc rs reveal that Ex'P'1 cheque was not issued by the accused tow irds legally enforceable debt' Further' the admissions of the compl rinant in his evidence as P'W'1 clearly reveals that the complainant is doing money lending business without license in Telangana a ea' He did not file a single document to show that he was having i valid license to do money lending business Further' he admitted in his evidence that he filed 20 suits for recovery of money and 12 cases for dishonour of cheques before various courts. In he given circumstances, the court below, rerying on Krishnam F aiu Finance' Hyderabad Vs' Abida Sultana and another t2( 04 Volume I ALD (Crl) 546) wherein it was held that since the ap.l )ellant therein had no money lending business license' it cannot bt said that there was a legally enforceable liability' rightly concl lded that there is no legally enforceable debt to be discharged b/ the accused' 10. The E) planation to Section 138 of N'I Act clearly states that the dishonot red cheque shall relate to a legally en{orceable debt or liability. In the instant case' since the complainant had no valid money lendirg business' he cannot legally enforce such a debt of liability. L nder these circumstances' the Court below rightly 6 Crl.A,Io.43O ol2OOg concluded that the complainant is not entitled to prosecute the accused for the offence under Section 138 of N'I.Act and therefore, the accused is entitled for acquittal. The conclusions reached by the trial Court are based on evidence on record. There is nothing to take a different view. The accusations against the accused under Section 138 of N.I.Act are not proved beyond reasonable doubt. The contentions raised on behalf of the complainant do not merit consideration. The Criminal Appeal is devoid of merit and is liable to be dismissed. 11. In the result, the Criminal Appeal is dismissed, confirming the judgment, dated 3t.LZ.2OO7, passed in C.C.No.250 of 2003 by the Judicial Magistrate of First Class at Madhira. Miscellaneous petiUons, if Appeal, shall stand closed. any, pending in this Criminal SD/- C,V.MALLIJKARJUNA VARMA //TRUE COPY// DEPUW REGISTRAR ('l,:. SECTION OFFICER To 1. 2. The_Judicial lvlagistrate of First class at Madhira, Khammam Dist. (with records, rt any) Two CCs to Public Prosecutor, High Courl at Hyderabad for the State of Telangana (OUT) 9n" 99 !o 9rn1 P Sangeetha Reddy, Advocate tOpUCl One CC to Sri lMummaneni Srinivasa Rao, Advoiate tOirUCl Two CD Copies One Spare Copy 4 5 6 KVL GJ \. {, HIGH COURT DATED:301111"t021 ORDER CRLA.No'430 of 2008 DISMISSING THE GRIMINAL APPEAL ]r- / ,..- 1l -':t' if!,_- ( or, 2 J,qtl 2022 9 #6*'