THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARA CRIMINAL APPEAL No.2142 of 2004 BETWEEEN: Polisetti Venkata Subba Rao … Appellant AND 1. Ayitham Venkateswara Rao & another … Respondents THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJ CRIMINAL APPEAL No.2142 of 2004 JUDGMENT: The complainant filed this appeal against acquittal of the accused/respondent by the lower Court of the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, the Act). The complaint was filed for dishonour of Ex.P1 cheque as per Exs.P2 and P3 dishonoured memos. Prior to filing of the complaint, the complainant fulfilled the statutory requirement of giving notice by way of Ex.P4 to the accused who received the same as per Ex.P5. No reply was given by the accused. The cheque was for Rs.2,16,520/-. It is alleged that the accused purchased prawn seeds from the complainant who is agent of Omni Care Pharmaceuticals Private Limited, Bhimavaram, from time to time and became liable to pay the above amount for which the accused had drawn the cheque in favour of the complainant. 2. During trial in the lower Court, the complainant examined himself as PW1 and the accused examined himself as DW1. It is contended by the appellant’s counsel that there is statutory presumption under Section 139 of the Act in favour of the complainant and that the accused who failed to give even reply notice, came forward and put forward several defences without any basis. It is contention of the accused that the complainant is a total stranger to him and that the accused had dealings with Omni Care Pharmaceuticals Private Limited in connection with which he gave blank signed cheques as security to the said company and that one of the signed blank cheques was pressed into service in the name of the complainant as Ex.P1. When the accused examined himself as DW1 and spoke to the said defences, the accused prima facie discharged the burden on him resulting in rebutting presumption under Section 139 of the Act (See K.N.Beena Vs. Muniyappan[1] of the supreme Court). Apart from examining himself as DW1, the accused filed Photostat copies of blank signed cheques and blank signed promissory notes given by him as Exs. D1 to D5. Out of the said blank signed documents, Ex.D4 is blank signed cheque bearing No.559111 which corresponds to Ex.P1 cheque with No.559111. The accused also filed Exs.D6 to D14 gate passes, delivery challans, way bills relating to supply of material by Omni Care Pharmaceuticals Private Limited to the accused. Exs. D6 to D14 revealed that the accused had direct dealings with the said company. There is no evidence produced by the complainant to the effect that he was agent of Omni Care Pharmaceuticals Private Limited and that it was he who supplied prawn seeds to the accused. Except filing Ex.P1 dishonoured cheque, the complainant did not lead any oral or documentary evidence to show that he had any dealings with the accused in connection with which the accused became liable to pay money to him. In the absence of any evidence on behalf of the complainant in that regard and on the other hand, because of production of voluminous evidence by the accused to show that he had direct dealings with Omni Care Pharmaceuticals Private Limited, the lower Court rightly came to the conclusion that Ex.P1 cheque was given by the accused to the company as blank signed cheque towards security and that the there was no debt or liability in favour of the complainant owed by the accused towards discharge of which the accused gave Ex.P1 cheque. There are no circumstances and evidence to come to a different conclusion from that of the lower Court in this appeal. 3. Hence, the Criminal Appeal is dismissed. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt: 23.12.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2142 of 2004 Dt:23.12.2011 ysk [1] AIR 2001 SUPREME COURT 2895