THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.32 OF 2002. DATED: 12-10-2009. Between: M/S Ian Exchange Finance Ltd., Rep. By its Personal Officer … Appellant/Complainant and 1.A.P.State rep. By its Public Prosecutor and three others …Respondents/Accused THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.32 OF 2002. JUDGMENT: This Criminal Appeal by the complainant is directed against the judgment, dated 02-11-2001, in C.C.No.29 of 1998, on the file of the XV Metropolitan Magistrate, Hyderabad, in acquitting the respondents 2 to 4-A1 to A3 of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’). 2. The accused approached the complainant for bill discount facility up to a limit of Rs.25 lakhs. Accordingly, the accused submitted the bills for discounting and after deducting its commission, the complainant paid the amount on 30-07-1996 and the accused pledged 1,60,000 numbers of TMT (I) Ltd., shares with the complainant as security. On the due date, the accused requested the complainant to convert the Bill Discounting Facility into Inter Corporate Deposit agreeing to pay interest for the delayed period. To clear the Inter Corporate Deposit, the accused gave a cheque bearing No.234942, dated 20-04-1997, for Rs.25 lakhs drawn on State Bank of Hyderabad, Overseas Branch, Somajiguda. Hyderabad. Thereafter, the accused paid R.50,000/- through Demand draft and directed the complainant to sell the shares pledged by them. Accordingly, some of the shares were sold and the sale proceeds were credited to their account. As per the directions of the accused, the complainant presented the cheque for encashment, but it was dishonoured with an endorsement ‘exceeds arrangement’. After giving statutory legal notice, the complaint was lodged. 3. When the accused were examined under Section 251 Cr.P.C. for the offence punishable under Section 138 of the Act, they denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate the case, the complainant examined P.W.1 and got marked Exs.P1 to P16. On behalf of the accused, D.W.1 was examined and Exs.D1 to D5 were marked. 5. The trial Court after considering the evidence on record, came to the conclusion that there is no evidence to show that the cheque in question was given for Bill Discounting Facility as per the agreement and a blank cheque was given for Bill Discounting Facility as provided in the agreement, dated 30-07-1996 and accordingly, acquitted the accused. 6. Now the point for determination is whether the complainant proved its case against the accused beyond all reasonable doubt of the offence punishable under Section 138 of the Act? 7. Learned counsel appearing for the appellant contended that Ex.P6 is the continuation of Ex.P2-Bill Discounting Facility and Ex.P8 was given for the purpose of agreement with regard to transaction, dated 28-03-1997, which is in continuation of Ex.P2 agreement and therefore, acquittal of the accused is unsustainable. 8. None appears for the respondents 2 and 3. The appeal against respondent No.4 was dismissed as no steps have been taken. 9. There cannot be any dispute that dealing with an order of acquittal, the appellate Court is slow in interfering with the same. Though the appellate Court has got full powers to re-appreciate the evidence, at the same time, it may not do so unless a perverse finding is given or for compelling or substantial reasons, it can do so. Issuance of cheque is not in dispute. When the cheque was presented in the bank, it was returned with an endorsement ‘insufficient funds’ is also not in dispute. It is also not in dispute that a blank cheque was given at the time of Ex.P2 agreement. 10. To constitute an offence incorporated in the main enacting clause of Section 138 of the Negotiable Instruments Act, the following three conditions have to be established: “ a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.” The initial burden is on the complainant to establish that the cheque in question was given for legally enforceable debt or liability. Thereafter, the burden shifts to the accused. If the accused fails to establish that the cheque in question was not given for legally enforceable debt or liability, presumption under Section 139 of the Act can be drawn. If it is drawn, it shall be presumed that the cheque was given for legally enforceable debt or liability. 11. The evidence of P.W.1 would go to show that Bill Discounting Facility availed by the accused under Ex.P2 agreement was converted into Inter Corporate Deposit in pursuance of the agreement, dated 28-03-1997 as per Ex.P6. The contents in Ex.P6 do not disclose that earlier Discounting Facility amounting to Rs.25 lakhs was converted into Inter Corporate Deposit. The supplemental first schedule of Ex.P6 would go to show that an amount of Rs.25 lakhs was disbursed on 28-03- 1997. Therefore, the amount covered under Ex.P2 was disbursed to the accused company on 28-03-1997 as per Ex.P6. Similarly, Bill Discounting Facility was converted into Inter Corporate Deposit, which is evident from Ex.P5. As per Ex.D1, the subject matter of the cheque was given to the complainant company for the first transaction under Ex.P2, dated 30-07-1996. The complainant company pressed the cheque for usage of the same for the purpose of realizing the amount under Ex.P6. Therefore, the evidence would clearly disclose that the cheque in question was given for the purpose of availing Bill Discounting Facility as per Ex.P2. The complainant cannot present the cheque so as to cover the transaction under Ex.P6. It is also admitted by P.W.1 that the company received post-dated cheque from the accused for the purpose of Bill Discounting Facility. So as seen from the evidence, the cheque in question was not given for the purpose for which it was mentioned. Hence, prima facie complainant failed to establish that the cheque in question was given for legally enforceable debt or liability. The trial Court after considering the evidence on record, rightly acquitted the accused and absolutely, there are no grounds to interfere with the same. 12. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 02-11-2001, in C.C.No.29 of 1998, on the file of the XV Metropolitan Magistrate, Hyderabad. --------------------- K.C.BHANU, J DATED:12-10-2009 Hsd