THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.120 OF 2002 Dt.17.08.2009 Between: G.D.N.Sarma ……………… Petitioner Vs. Kuchipudi Babu Rao and another ………… Respondents COUNSEL FOR THE PETITIONER: Sri V.V.PRABHAKAR RAO COUNSEL FOR THE RESPONDENTS:SRI CH.NAGA MEHAR BABA The court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.120 OF 2002 JUDGMENT: 1) The appeal filed under Section 378 (4) Cr.P.C., 1973 is directed against the judgment, dated 20.12.1999 made in C.C.No.195 of 1998 on the file of II Additional First Class Magistrate, Bhimavaram, West Godavari District, whereunder and whereby, the sole accused was found not guilty of the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘the Act’) and thereby acquitted him under Section 255 (1) of Cr.P.C. 2) The brief facts that are necessary for the disposal of the present appeal may be stated as follows: On 14.07.1995 the first respondent/accused borrowed an amount of Rs.25,000/- from the complainant, for his family necessities and executed a promissory note in favour of the complainant, agreeing to repay the same with interest at the rate of 24% per annum. When the complainant demanded the accused to repay the same, the accused issued a cheque for Rs.16,000/-, dated 14.09.1995. When the cheque was presented in the Bank, it was returned with an endorsement “insufficient Funds”. When the complainant again requested the accused to pay the said money, he gave a cheque for Rs.10,000/- on 01.03.1998, and when the cheque was presented in the Bank, it was also returned with an endorsement “payment stopped by the drawer”. After giving a statutory legal notice, the complaint was lodged against the accused. 3) When the accused was examined under Section 251 Cr.P.C., for the offence under Section 138 of the Act, he denied the offence pleaded not guilty and claimed to be tried. 4) To substantiate its case, the complainant examined PWs.1 to 3 and got marked Exs.P-1 to P-3. On behalf of the defence, no witnesses were examined and no documents were marked. 5) The trial court after considering the evidence placed on record, came to the conclusion that the initial burden placed on the complainant has not been discharged and accordingly, acquitted the accused. Challenging the same, the present criminal appeal is filed. 6) Now the point that arises for consideration is whether the judgment of the trial court is proper, legal and correct? 7) The learned counsel appearing for the /complainant contended that the evidence of PW-1 coupled with Ex.P1-cheque would clearly go to show that the accused issued a cheque for legally enforceable debt; that when once the burden placed on the appellant/complainant is discharged, the burden shifts to the accused to show that Ex.P-1 cheque was not given for legally enforceable debt or liability and that therefore, he prays to set aside the judgment of the court below. 8) On the other hand, the learned counsel appearing for the respondent/accused submitted that the initial burden placed on the appellant/complainant has not been discharged to show that Ex.P-1 was not given for legally enforceable debt or liability; the trial court after considering the evidence on record, rightly acquitted the accused and that as the ingredients of Section 138 of the Act have not been proved, he prays to dismiss the appeal. 9) There cannot be any dispute that the accused is presumed to be innocent, unless contrary is proved by the complainant. The presumption of innocence is further strengthened by an order of acquittal. Therefore, in dealing with the appeal against the order of acquittal, the appellate court has to see whether the findings are not based upon any admissible evidence; or in-admissible evidence has been taken into consideration’ or perverse finding has been given. 1) When a finding is not based upon any admissible evidence; 2) or in-admissible evidence has been taken into consideration; 3) or perverse finding has been given. 10) There cannot be any dispute that for the offence under Section 138 of the Act, the initial burden is always on the complainant to show that the cheque in question was given for legally enforceable debt or liability. Unless that initial burden is discharged, the presumption under Section 139 of the Act cannot be drawn. After discharging the initial burden of proving that Ex.P-1 was issued for legally enforceable debt, then only, the presumption under Section 139 of the Act can be drawn. On the ground that initial burden placed on the complainant has not been discharged, the trial court acquitted the accused. 11) The complainant, who was working as Sub-Manager in Andhra Bank, examined himself as PW-1 and admitted that on 14.07.1995, he lent an amount of Rs.25,000/- to the accused for his family necessities. On the same day i.e., on 14.07.1995, the accused executed a promissory note, agreeing to repay the same with interest at 24% per annum. He admitted that every year he has to show the assets and liability statement to the Bank. He admitted that the transaction of lending Rs.25,000/- to the accused on 14.07.1995 has not been shown in the assets and liability statement to the Bank. Similarly, the complainant has not filed the copy of the promissory note, whereunder, the accused borroweded an amount of Rs.25,000/- and no suit is filed for recovery of the said amount. 12) It is not in dispute that one P.Ch.Moses was an employee of the complainant and he used to take monies from the complainant and repay the same, but the complainant denied that Ex.P-1 was given as collateral security for the said P.Ch.Moses. Therefore, the initial burden placed on the complainant has not been discharged. Except the oral statement of PW-1, there is no other evidence placed on record to show that the accused executed a promissory note on 14.07.1995 and to discharge the said debt, the accused issued Ex.P-1- cheque. 13) Considering these aspects, the trial court found the first respondent/accused not guilty of the offene under Section 138 of the Act. The findings are based upon proper appreciation of evidence on record. None of the findings is shown to be perverse or contrary to law. In the absence of any illegal findings, no interference is warranted by this court. Hence, the appeal is devoid of merit and is liable to be dismissed.. 14) Accordingly, the appeal is dismissed, confirming the judgment, dt. 20.12.1999 made in C.C.No.195 of 1998 on the file of II Additional First Class Magistrate, Bhimavaram, West Godavari District. ____________ K.C.BHANU J., Dt.17.08.2009 tjs