THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.130 OF 2006 JUDGMENT: This criminal Appeal is filed by the complainant against the judgment dated 11.11.2005 in C.C.No.242 of 2005 on the file of the Judicial First Class Magistrate, Special Mobile Court, West Godavari at Eluru, whereby and whereunder the accused was acquitted of the offence punishable under Section 138 of Negotiable Instruments Act (for short ‘the Act’). 2. The brief facts of the complaint are as follows: The accused borrowed a sum of Rs.2,50,000/- from the complainant on 13.5.2002 for the purpose of development of family business and to discharge the sundry debts and she executed Ex.P.1-pronote on the same day agreeing to repay the same with interest at 24% per annum with yearly rests. When the complainant demanded for repayment, the accused has given a cheque for Rs.2,00,000/- dated 17.11.2003 towards part payment of the said debt and it was presented for collection on 27.11.2003 through the banker of the complainant and it sent to the accused’s bank but it was returned with a memo dated 1.12.2003 stating “funds insufficient”. Then the complainant got issued a legal notice to the accused on 12.12.2003 calling upon her to pay the cheque amount and the said notice was returned by her though she was intimated on 16.12.2003. 3. During the course of trial, the complainant and two others were examined as PWs 1 to 3 and Exs.P.1 to P.6 were marked, whereas accused herself was examined as DW.1 and Exs.D.1 and D.2 were marked. 4. The trial court after taking into consideration the evidence brought on record and the facts and circumstances of the case, found the accused not guilty of the offence punishable under Section 138 of the Act. Challenging the order of the acquittal, the present appeal is preferred by the complainant. 5. Heard the learned counsel on either side and perused the record. 6. It is seen that PW.1’s son and the accused’s husband are sub-dealers of Hero Honda Motor Cycles at Palakol and Narsapur respectively and one Nani is the common dealer for both of them. 7. The case of the accused is that she never borrowed money from PW.1’s son under Ex.P.1-pronote and never gave Ex.P.2-cheque towards part payment; that the common dealer Mr.Nani obtained her blank signed cheques from her husband as he is indebted to him; that Mr.Nani got original of Ex.D.1-mortgage deed dated 13.5.2002 executed by her in favour of PW.1’s son and subsequently she sold the property and discharged the debts of both PW.1’s son and Mr.Nani but, Mr.Nani did not return the cheques and that PW.1 is brought in to picture by Mr.Nani. 8. Her evidence as DW.1 is that she was not present at the house of PW.1 on 13.05.2002 at Eluru and she did not execute Ex.P.1-pronote and on that day, she was at Sub Registrar’s Office, Narsapur where she was executing Ex.D1- mortgage deed. PW.1 during his cross- examination stated that he lent money under Ex.P.1-pronote at his house when the accused came along with her husband at about 10 am or 11 a.m on 13.05.20002. He admitted that Narsapur is at distance of 80 Kilometers from Eluru. He stated that he did not know whether accused has mortgaged her property at Narsapur for Rs.4,00,000/- in favour of his son Ramakrishna under a registered mortgage deed on 13.5.2002 between 11 a.m. and 12 noon. DW.1 stated that she borrowed Rs.4,00,000/- from PW.1’s son Sanka Ramakrishna by mortgaging her property in Narsapur under Ex.D.1-mortgage deed dated 13.5.2002 and that she subsequently sold the said property under Ex.D.2-sale deed dated 21.12.2002 and discharged the debt. Ex.D.1 indicates that she was present in the Sub-Registrar’s office between 11 a.m. and 12 noon on 13.5.2002 at Narsapur. PW.1 stated that he lent money to the accused between 10 a.m or 11 a.m. on the date of Ex.P.1-pronote i.e. on 13.5.2002. Further, PW.1 admitted that he has no documentary evidence to show that he had Rs.2,50,000/- on 13.5.2002 in any bank. As observed by the court below, it is difficult for the accused to take money at Eluru even at 10 a.m and go to Narsapur by 11 a.m. on the same day for executing Ex.D.1- mortgage deed. In the circumstances, it can be said that the alleged transaction is not genuine and there is no legally enforceable debt. 9. In view of the evidence brought on record and the facts and circumstances of the case, this court is of the view that the trial court has not committed any error in acquitting the accused of the offence under Section 138 of the Act. 10. Hence, the Criminal Appeal fails and the same is dismissed. ______________ NALLA, J -07-2010 Stp