THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL NO.729 OF 2005 JUDGMENT: The acquittal of both the accused in C.C.No.127 of 2000 on the file of the Judicial Magistrate of First Class, Kollapur, by the judgment dated 12.01.2005, led the complainant to file the present appeal. The appellant filed the complaint against his brother, the second accused, and his son, the first accused, alleging that the dispute about the partition of the properties between them was settled in a document dated 04.04.1999, under which the second accused had to pay Rs.3,96,967/- to the complainant towards which the first accused issued three post-dated cheques on 05.04.1999. Out of the three cheques issued at the instance of the second accused under an agreement executed by both the accused, the first two cheques for Rs.35,000/- and Rs.1,00,000/- respectively were honoured and encashed, but the third cheque bearing No.813761 for Rs.2,61,967/- dated 01.05.2000 was dishonoured stating that the account was closed. Immediately, the complainant got a statutory notice issued to both the accused, which was served on the second accused on 27.05.2000 and refused by the first accused on 29.05.2000. After the expiry of the statutory period, as the accused failed to pay the amount, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) and under Section 420 of the Indian Penal Code. The sworn statement of the complainant was recorded and the case was taken on file against both the accused only for the offence under Section 138 of the Act. The accused were examined under Section 251 of the Code of Criminal Procedure, stating the accusation levelled against them, and they pleaded not guilty. P.Ws.1 and 2 were examined during the trial and Exs.P1 to P8 were marked and the accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure. The accused gave their own version and also examined D.Ws.1 to 3 and marked Exs.D1 to D4 on behalf of the defence. The trial Court rendered the impugned judgment referring to the case of the complainant and the defence of the accused and the accused were noted to have pleaded that O.S.No.8 of 1997 on the file of the Sub-Court, Nagarkurnool was already pending at the instance of the second accused by the date of the alleged partition deed and it was Sri Mohan Rao, the then Circle Inspector of Police, Kollapur, who obtained the partition deed by force and under coercion. The defence of the accused that cheques were also issued under such threats and coercion but not towards any legally enforceable debt or other liability, was also noted. The trial Court also noted that the second accused did not issue any cheque to the complainant for payment of any amount from an account maintained by him and consequently, he cannot be brought within the scope of Section 138 of the Act. The trial Court also did not place reliance on the claim of the first accused issuing the subject cheque towards any legally enforceable debt or other liability of his father, the second accused, in the light of the evidence of D.W.2 about the agreement, Ex.P1, being written by him on the instructions given by the Circle Inspector and Sub-Inspector of Police. The trial Court also relied on the inconsistencies and improbabilities in the evidence of P.W.2 and other circumstances extracted by it in detail in its judgment to consider that the presumption under Section 139 of the Act stood rebutted by the evidence on record. Refusing to act solely on the encashment of the other two cheques, the trial Court concluded that the cheque in question issued under coercion and under threat of the police was not towards any legally enforceable debt or other liability between the parties and consequently, the trial Court acquitted both the accused. The complainant challenges the said conclusions in this appeal contending that the burden of proof being on the accused, in view of the admitted issuance of the cheque, should have been concluded to have not been discharged. When the first two cheques were honoured as per the agreement and partition deed and the third cheque was dishonoured, the truth of the complainant’s claims should have been acted upon, more so when the accused did not even reply to the legal notice issued by the complainant. The complainant contended that the alleged coercion or threats were not probablised or proved by the evidence on record and hence, he sought for reversal of the impugned judgment and conviction of the accused. Sri J.Suresh Babu, learned counsel for the appellant, and Sri K.Venkatesh Gupta, learned counsel for the respondents, are heard and Sri J.Suresh Babu relied on two decisions of this Court in Anil Dagwale v. K.Raju and another[1] and G.Venkataramanaiah v. Sillakollu Venkateswarlu and another[2]. The point for consideration is whether the appellant proved the guilt of either or both the accused for an offence punishable under Section 138 of the Act beyond reasonable doubt? The appellant, as P.W.1, reiterated the contentions in the complaint and he admitted that though Ex.P1 agreement was relating to five brothers, only the accused signed on the agreement and not the other brothers. Though he denied O.S.No.15 of 2000 being filed, prior to the complaint filed by him, for return of the cheques in question, Ex.D1, certified copy of the plaint in O.S.No.15 of 2000, shows the suit to be dated 01.05.2000 while the complaint was filed only on 16.06.2000. The only witness examined on behalf of the complainant was P.W.2, who claimed to be an attestor of Ex.P1, agreement. He spoke about three post-dated cheques being issued by the first accused towards the amount of Rs.3,97,000/- settled to be paid under the partition and he also stated that Ex.P2, cheque, was issued by the first accused to P.W.1 on that day. While the evidence of P.W.1 did not specify the place of execution of Ex.P1, P.W.2 claimed it to be at the Registrar’s Office at Kollapur and his claim that Ex.P1, agreement, related to the disputes concerning houses, shops and lands did not tally with the contents of Ex.P1. P.W.2 was ignorant of any suit pending before the Senior Civil Judge, Nagarkurnool between the brothers and he is also unaware of O.S.No.15 of 2000. As opposed to this evidence for the complainant, the accused examined themselves as D.Ws. 1 and 3 and reiterated their claims about the documents being obtained at the police station. Their claims were corroborated by the scribe of Ex.P1, agreement, as D.W.2. D.W.2 specified that Ex.P1 was written at the police station on the instructions of the Circle Inspector and Sub-Inspector of Police and the scribe was unaware of any settlement between the parties prior to Ex.P1. He also stated that the signatures in Ex.P1 were not taken before him and that he was also the scribe of the partition deed between the complainant, the accused and the three other brothers. He of course again stated that both the accused signed on Exs.P1 and P8. D.W.2 was not suggested to be having any reason or motive to resort to falsehood to help the accused. Ex.P1, agreement, was only in respect of three cheques and absolutely there is no reference to any partition of the properties or towards which liability the cheques were issued and agreement was entered into. Ex.P2, cheque, was issued only by the first accused and the second accused was not shown to be in any way connected with the account of the first accused. Even Ex.P5, notice, was issued by the Advocate for the complainant only to the first accused and the second accused was only requested to see that the amount was paid. Ex.P8, partition deed, itself referred to the settlement being in the presence of the Circle Inspector of Police, Kollapur who decided about a committee of elders to settle the partition. While it is true that the second accused as D.W.3 stated about his thinking to pay the amount covered by the subject cheque by selling shop No.10-22, the same is no admission of the claims of the complainant in view of the specific defence taken during cross-examination of P.Ws. 1 and 2 and the evidence and examination of both the accused. The first accused had, in fact, stated that he proved the shop to be his separate property in a case before Mahabubnagar Court. The contents of O.S.No.15 of 2000, as seen from Ex.D1, are similar to the defence raised in this case and all the circumstances were considered in depth by the trial Court. Anil Dagwale (1 supra) was a case where the accused conceded his liability to pay the amount and undertook to issue new cheques in a letter marked in evidence, but the cheques in question therein were dishonoured due to the account being closed. The learned Judge, therefore, concluded that a cheque issued towards subsisting liability being dishonoured makes the drawer of the cheque liable notwithstanding any instructions to stop payment or the closure of the account. In the present case, there had been no concession of the liability to pay the amount and in the light of the evidence of D.W.2 and the positive defence taken, the existence of a legally enforceable liability ought to have been proved by the complainant, which cannot be considered to have been so proved. Similarly, G.Venkataramanaiah (2 supra) was also a case of the cheque being returned due to closure of the account, but there appeared no denial of the subsisting liability leading to the issuance of the cheque by the accused in that case. The only question under consideration therein was whether the closure of the account leading to dishonour of the cheque would still be brought within the scope of Section 138 of the Act. In the present case, the acquittal is brought on record not on the ground that the cheque was dishonoured due to closure of the account, but on the ground that any subsisting liability itself has not been probablised. While the issuance of the subject cheque was admittedly only by the first accused, the second accused, in any view, could not be made liable for an offence under Section 138 of the Act as it was only drawer of the cheque that can be made so liable as observed by the trial Court. Concerning the first accused, in the light of the circumstances referred to by the trial Court and also herein earlier, more particularly in the light of the evidence of D.W.2, which cannot be considered to have been contradicted with equal credibility by P.W.2, the complainant cannot be considered to have proved beyond reasonable doubt that the subject cheque was issued towards the discharge of any legally enforceable debt or other liability. Under such circumstances, the conclusions of the trial Court about entitlement of both the accused to be acquitted cannot be found fault with and the appeal has to fail. Accordingly, the Criminal Appeal is dismissed. ______________________ G.BHAVANI PRASAD, J Dated 9th November, 2009 vrn [1] 2003 (1) ALD (Crl.) 276 (AP) [2] 1999 CRI.L.J.1219