HONOURABLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No.1653 of 2004 Dated 26-12-2011 Between: K.Ramanaiah @ Ramana. …Petitioner. And: M.Krishna Rao and another. …Respondents. HONOURABLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No.1653 of 2004 JUDGMENT: This appeal is directed against the acquittal of the accused in C.C.No.1155 of 2001 by the XV Metropolitan Magistrate, Hyderabad on 16-6-2004. The appellant herein is the complainant and he filed the complaint under Section 138 of the Negotiable Instruments Act pleading that he is the Managing Partner of M/s, Reliance Engineering Company and the accused is the Managing Partner of M/s. Sai Enterprises and both the firms are registered contractors with AP TRANSCO and the accused had pending contracts for supply of AB switches to AP TRANSCO and the accused requested the complainant to invest money and execute the orders stating that he was not having sufficient money to execute the orders. It is agreed that after execution of the contracts by the complainant, the accused shall retain 10% of the amounts realized by AP TRANSCO pertaining to the contract works along with amount towards taxes applicable thereto and the remaining amounts shall be paid to the complainant. Accordingly, the complainant executed pending contracts worth of Rs.8,45,600/- and Rs.5,32,770/- and the accused after deducting taxes and 10% of amount as promised paid the amount due to the complainant, but again the accused requested the complainant to execute pending contracts because he has no sufficient money to execute them and accordingly, the complainant spent huge amounts to execute the pending contracts of the accused and the accused issued letters of authorization dated 1-4-1999 addressed to all the Chief Engineers appointing and authorizing the complainant for following up orders, supply of materials, submission of bills obtaining payments pertaining to the firm of accused but the accused misappropriated the amounts to the tune of Rs.40,28,572/- which cleared by the AP TRANSCO towards works executed by the complainant on behalf of the accused. In the month of May, 1999 the accused secured rural water scheme works and requested the complainant to be financier partner for execution of said works and promised him to pay interest @ 30% per annum in addition to a fixed share of profit equalent to 12.5% of total turn over and accordingly, the accused executed Memorandum of Understanding dated 14-9-1999 and further stating that the works will be completed within 120 days and in case of failure, the interest on capital amount shall be 36% per annum. In pursuance of the said agreement, the accused took huge amounts towards capital from the complainant between April, 99 and September, 99 for the execution of said rural water scheme, but the contract was not completed within time and therefore, the accused further executed another agreement dated 30-1-2001 undertaking to repay the total amount due to the complainant within four months and but not paid the amount even after the accused got payment for the completion of said rural and water scheme. After repeated requests and reminders, the accused settled the account due to the complainant as on 30-6- 2001 as Rs.95,91,000/- and issued two postdated cheques bearing Nos.328205 and 328206 for Rs.55,85,000/-and Rs.40,06,000/- respectively both dated 30-6-2001 in favour of the complainants but both of them were bounced due to insufficient funds and after the accused banker intimated the said fact on 14- 8-2001, the complainant got issued legal notice dated 20-8-2001 calling upon the accused to pay the cheques, but the accused not paid the amount but got issued a false and baseless reply dated 3-9-2001 denying the claim of the complainant. Hence, the complainant has filed the complaint under Section 138 of the Negotiable Instruments Act. The accused has denied the said offence under Section 138 of Negotiable Instruments Act when he was examined under Section 251 Cr.P.C. by the lower Court. In order to establish the said offence, the plaintiff examined himself as P.W.1 and got marked Exs.P.1 to P.27. In defence, the accused examined D.Ws.1 and 2 and C.W.1 and got marked Exs.D.1 to D.16 and Exs.X.1 and X.2. After taking into consideration of the both oral and documentary evidence, the lower Court held that the complainant has failed to establish the offence under Section 138 of the Negotiable Instruments Act and thereby acquitted the accused. Aggrieved by the said acquittal, the complainant therein filed the present appeal. Heard the Senior Counsel Sri V.Venkataramana for the appellant and Senior Counsel Sri C.Padmanabha Reddy for the respondent. Now the point that arises for consideration is whether the complainant could able to establish the offence under Section 138 of the Negotiable Instruments Act against the accused beyond reasonable doubt? The specific case of the complainant is that there was understanding between the complainant and the accused with regard to execution of the works of AP TRANSCO and the complainant agreed to finance for the execution of the said contract works and accused after receiving payment agreed to pay entire amount after deducting taxes and 10% of amount towards switches for some time, he has paid the amount, thereafter, he has failed to pay the amount in spite of the payments received from AP TRANSCO and finally the accused agreed and settled the amount due to the complainant as on 30-6- 2001 at Rs.95,91,000/- and issued posted dated cheques for an amount of Rs.55,85,000/- Rs.40,06,000/- respectively on 30-6-2001 and the said cheques were bounced for want of insufficient funds. The accused has not denied his signature on the said cheque but according to him, the signed cheques were kept in his office for the purpose of drawing the amount by their Manager as he will be out of station frequently and the said cheques were misplaced and the accused has taken away the said cheques and presented in spite of the fact that the accused has intimated to the bankers to stop payment of the cheques on the ground that they were misplaced. Since the accused has not denied the signature on the said cheques, the complainant is entitled to draw the presumption under Section 139 of the Negotiable Instruments Act as he is in possession of the cheques signed by the accused and the burden is on to the accused to rebut the said presumption. In support of his contention and to rebutt the presumption, the accused examined C.W.1, D.Ws.1 and 2 and got marked Exs.D.1 to D.16 and Exs.X.1 and X.2. D.W.1 is the Manager of M/s. Sai Enterprize, and according to him, the accused used to sign on the blank cheques and keep them with the Manager for office purpose and when the said cheques were missing, the accused intimated to the bank to stop payment of the said cheques but he is not aware whether the said cheques were committed theft by the complainant. The cheques which were dishonoured were marked as Exs.P.22 and P.23. In order to establish the factum of missing the cheques intimation to the bank authorities to stop the payment of the said cheques, Deputy Manager of the State Bank of Hyderabad, Tank Bund branch who worked in the year 2002 was examined as C.W.1. According to him, the accused is holding the account in their branch in the name of Sai Enterprises. Ex.X-1 is the statement of account in respect of Sai Enterprises. Ex.X-2 is the print out regarding stop payment instructions noted in the computer. The stop payment instructions were noted as 5-8-2000. The payment was asked to be stopped on the ground that the cheques were misplaced. The cheques in question are specified in Ex.X-2. Ex.D.15 is the statement of account given to the accused as on 5-8- 2000. Ex.D-16 is another statement of account as on 2-4- 2004. As per Ex.D.16, the said account was not operated from 10-9-99. He admitted that if the drawer of the cheque intended to draw the cheque through his clerk or agent, he has to sign on the reverse of the cheque. On the reverse of Exs.P.22 and 23, the drawer has signed. He admitted that the drawer of the cheque stopped the payment by giving instructions and if the cheque subsequently presented, the bank will make endorsement that the payment was stopped. Exs.P.22 and P.23 were presented on 13-8-2001 but they were returned on the ground of insufficient funds even though stop payment instructions were given by the account holder on 5-8- 2000. Therefore, from the evidence of D.W.1, it is evident that the accused used to keep the signed cheques in the office for office purpose and when the said cheques were misplaced they have addressed a letter to the Bank to stop the payment. Ex.D.14 is the copy of letter dated 5-8- 2000 addressed by the accused to the State Bank of Hyderabad, Tank Bund Branch, wherein he has given instructions to the authorities to stop payment of cheques bearing Nos. Nos.328205 and 328206 (Exs.P.22 and P.23) as the said cheques were misplaced and the stop payment instructions were noted by the bank authorities as per Ex.X.2. Therefore, it is evident that the accused has given instructions to the bank authorities to stop payment. The said cheques Exs.P.22 and P.23 were presented by the complainant on 13-8-2001 and the Bank authorities have returned the said cheques for want of sufficient funds. As admitted by C.W.1 both Exs.P.22 and 23 were signed by the drawer on the reverse side of the said cheques as such the said cheques were intended to be withdrawn through agent. Admittedly, Exs.P.22 and 23 cheques were in the name of the complainant. If the said cheques were issued in the name of the complainant, there is no necessity for the accused to sign on the reverse side of the cheques. Thus, it is evident that the accused has not issued the said cheques to the complainant for repayment of any amount due by him. Thus, the accused could able to rebutt the presumption available under Section 139 of the Negotiable Instruments Act. Now the burden shifts on to the complainant to establish that the cheques in question i.e., Exs.P.22 and P.23 were issued by the accused in discharge of a legally enforceable debt. There is no dispute that there are transactions between the complainant and the accused with regard to the supply of material to the A.P.TRANSCO and admittedly, the accused has paid the amount to the complainant on the previous occasion. It is the specific case of the complainant that after some time, the accused has not paid the amount invested by him and finally, arrived at settlement on 30-6-2001 and arrived at due amount as Rs.95,91,000/- as on 30-6-2001 and in discharge of the said amount, the accused has issued Exs.P.22 and 23 cheques for Rs.55,85,000/- and Rs.40,06,000/- respectively. P.W.1 who is the complainant admitted that he entered into an agreement under Ex.P.1 with the accused and it is in the name of M/s. R.K.Engineering Works. As per Ex.P.1, the memorandum of understanding was entered into between the complainant and the accused and whereby the complainant agreed to provide required finance for execution of works and the maximum limit is Rs.15.00 lakhs. The capital shall carry interest at 30% p.a., wherever the funds are raised from outside parties. The promissory note and cheque with joint signature of both the first and second parts shall be provided to the financier. He also agreed to share the profit which is equal to 12.5% of the total turnover i.e., value of the bills submitted to the S.E., R.W.S., Kurnool which is approximately Rs.60.00 lakhs. The second part hereby undertakes that 90% of the work will be completed within 120 days from the date of commencement of the work. He also commits to the effect that, in case of failure to get the work completed within said 120 days, the capital will carry interest at 36% p.a., instead of 30% p.a., But P.W.1 has admitted that Ex.P.1 has not acted upon by both parties. The complainant has relied upon Ex.P.27 the statement of account showing the amount due by the accused to the complainant. Ex.P.27 shows the details of the amount advanced to the accused and payment received from A.P. Transco, during the financial year 98-99, 99-2000 and 2000-2001, the amount is shown as Rs.68,28,557/- and another statement showing the amount advanced to Mr. M.Krishna Rao towards RWS works Kurnool as per the MOU dated 14-9- 99 and the amount was shown as Rs.22,52,282/- and total amount comes to Rs.90,80,839/-. But whereas the amount said to have settled between the parties on 30-6-2001 is Rs.95,91,000/-. Therefore, the statement of account Ex.P.21 is not tallying with the amount said to have settled between the parties on 30-6- 2001. Moreover as admitted by P.W.1, he has no document to show the settlement between parties and arriving at the said amount as due as on 30-6-2001. According to the complainant, he has filed a civil suit in O.S.No.77 of 2002 on the file of the II Additional District Judge, Ranga Reddy District for recovery of amount due from the accused and it was decreed as exparte. The copy of the said judgment and decree were not filed before the lower Court to show that the said decree was passed basing on the cheques Exs.P.22 and P.23. When it is the specific case of the complainant that the said cheques Exs.P.22 and 23 were issued for the amount settled on 30-6-2001, he has to produce the necessary evidence with regard to the said settlement and arriving at the said amount as due as on 30-6-2001 but no evidence was produced in that regard. Moreover, according to the complaint, the said cheques were issued postdated but the said cheques Exs.P.22 and 23 were issued on 30-6-2001 on the alleged date of arriving the amount due. Thus, the complainant has failed to establish that there is outstanding amount of Rs.95,91,000/- as due and payable by the accused to the complainant as on the date of the cheques Exs.P.22 and P.23. Thus, the lower Court has rightly came to the conclusion that the complainant has failed to establish that the said cheques Exs.P.22 and 23 cheques were issued towards outstanding amount pending payable by him to the complainant and thereby acquitted the accused. The said finding recorded by Court below does not warrant interference in this appeal. In the result, the appeal is dismissed. _______________________ JUSTICE P.DURGA PRASAD Dated 26-12-2011. Dvs HONOURABLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No.1653 of 2004 Dated 26-12-2011