HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.283 of 2005 DATED: 20.08.2009 BETWEEN: Padarthi Satyanarayana .. Appellant And 1.Pendyala Venkateswarlu 2. The State of A.P. .. Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.283 of 2005 JUDGMENT: This criminal appeal is directed against the judgment dated 18.11.2004 in C.C.No. 164 of 2004 on the file of the Judicial Magistrate of the First Class for Excise, Guntur, wherein the 1st respondent herein, accused, was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and was acquitted thereof under Section 255(1) Cr.P.C. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent No.1-accused. Perused the records. 3. The appellant herein filed a complaint against respondent No.1 alleging that the accused borrowed a sum of Rs.3,90,000/- from the complainant on 15.09.2000 to meet the expenses of business and executed a pronote – Ex.P.1 on 15.09.2000 agreeing to repay the same with interest at 18% per annum and after repeated demands the accused issued a cheque dated 03.10.2002 – Ex.P.2 drawn on Allahabad Bank, Guntur for Rs.5,33,715/- towards full and final settlement of the debt and when the cheque was presented for collection in UTI Bank Limited, Guntur, the same was returned with a memo dated 03.10.2002 – Ex.P.4 on the ground of ‘insufficient funds and stop payment by the drawer’. The complainant got issued a registered notice on 11.10.2002 – Ex.P.5 demanding payment of money and the accused received the same under Ex.P.6 – acknowledgment dated 16.10.2002 and issued a reply dated 26.10.2002 – Ex.P.7 with false allegations. 4. The accused appeared before the trial Court and denied the offence and claimed to be tried. 5. In support of his case, the complainant examined himself as PW.1 and also examined PW.2, Manager of the UTI Bank, PW.3 – Manager of the Allahabad Bank, Guntur and marked Exs.P.1 to P.7. The accused examined himself as DW1 and marked Exs.D1 and D2, Exs.C1 to C3 were produced by PW.3. 6. On a consideration of the material available on record, the learned Magistrate held that the accused has not given Ex.P.2 – cheque to PW.1 towards discharge of debt under Ex.P.1 – promissory note and thereby the presumption under Section 139 of the Negotiable Instruments Act stood rebutted. Accordingly, the accused was found not guilty of the offence under Section 138 of the Negotiable Instruments Act and was acquitted thereof. Aggrieved by the same, the complainant filed the present appeal. 7. PW.1 testified in support of his contention with reference to Exs.P.1 to P.7. In view of the said evidence, the trial Court opined that PW.1 discharged the initial burden by showing that there was legally enforceable debt due under Ex.P.1. The accused did not deny the signature on Ex.P.1 – pronote or on the cheque – Ex.P.2. But, according to the accused, PW.1 was doing chit business and the accused joined as member of chit for Rs.10,00,000/- and he paid subscription at the rate of Rs.25,000/- per month for 30 months and he was unable to pay the remaining 10 instalments on account of loss in his business due to fire accident and by way of security for the balance amount due, the complainant obtained signatures on blank promissory note and cheque. PW.1 categorically denied the suggestions to the above effect and testified that the accused borrowed the amount of Rs.3,90,000/- under pronote – Ex.P.1 and in discharge of the loan together with interest he issued a cheque – Ex.P.2 for a sum of Rs.5,33,715/- towards full and final settlement. In view of the said evidence, the trial Court held that the presumption contained under Section 139 of the Negotiable Instruments Act operates in favour of the complainant to the effect that the holder of the cheque i.e. complainant received the same in respect of the debt and the burden, therefore, shifts on to the accused to rebut the said presumption. 8. In support of his contention, the accused examined himself as DW1 and deposed that he was having four concerns all of which had cash credit facility in Allahabad Bank, Guntur and on 06.06.2002 he parked his car in front of the Allahabad Bank leaving the bag containing cheque books in the car and some body committed theft of the bag, which contained the signed blank cheques of all his concerns, including Ex.P.2 and on the same day he informed his bank about the theft of cheque books and obtained acknowledgment - Ex.D.1 from the bank. Subsequently, he also issued a public notice in Eenadu daily on 02.09.2003 under Ex.D.2. Exs.D1 and D2, prima facie show that the accused lost his bag containing signed blank cheques and he immediately informed the same to the bank and also issued a public notice in the newspaper. The cheque – Ex.P.2 is shown to be one among the cheques lost on 06.06.2002. and its number tally with the one mentioned in Ex.D.1. PW.3 produced the original of Ex.D.1, which is Ex.C.1. He also produced Ex.C.2 computer copy of ‘stop payment’ register wherein also it was noted that on 14.06.2002 at 10.07 hours there were instructions to stop payment pertaining to Ex.P.2 – cheque which was noted in the computer. Ex.P.2 – cheque is dated 03.10.2002, but as per Ex.C.3 certified copy of the account of the accused produced by PW.3 there were no transactions subsequent to 23.11.2000, by which date the balance amount is Rs.1,129.69 ps. When the cheque Ex.P.2 was lost on 06.06.2002 on account of theft and the same was also intimated to the bank on the same day and the bank had duly noted the stop payment instructions on 14.06.2002, it is highly improbable and hard to believe that Ex.P.2 – cheque came to be issued on 03.10.2002. Though it was suggested to the complainant that DW1 and Manager of the bank brought Ex.D.1 into existence, there is absolutely no reason as to why the bank officials, who were strangers and independent functionaries, should oblige DW1 and accommodate him to the extent of fabricating the bank records. 9. It is to be noted that the cheque was returned not only on account of stop payment instructions given by the accused, but also on account of ‘insufficient funds’. PW.2 – Manager of UTI bank deposed that generally if a stop payment letter is received, they need not mention about the funds in the account. PW.3 the Manager of the Allahabad Bank also deposed that basing on the computer information to stop payment of the cheque, which was mentioned in Ex.P.4, generally it is immaterial regarding the funds in the account when the cheque was returned on the ground of stop payment by the drawer. According to him, the clerk after verifying with the computer noted down on the memo – Ex.P.4 regarding the stop payment instructions and sent it to the officer for signature and the officer added the clause of ‘funds insufficient’ mistakenly. Admittedly, as on the date of presentation of Ex.P.2 – cheque there is a balance of Rs.1,129-69 ps. The cheque – Ex.P.2 was returned primarily because of the stop payment instructions issued by the accused as per the evidence of PWs.2 and 3. Once it is shown that the cheque – Ex.P.2 was lost on account of theft and the same was also immediately intimated to the bank advising the bank not to honour the same, the fact that there are no sufficient funds in the bank on the date of presentation of the cheque is immaterial for the reason that even if sufficient funds were available, the cheque – Ex.P.2 would not have been honoured on account of stop payment instructions issued by the accused. Ex.P.2 – cheque was presented for collection about four months after issuing stop payment instructions on Ex.C.1 – letter. The evidence on record, therefore, probabilise the contention of the accused that he lost the cheque book including Ex.P.2 – cheque and the complainant having got hold of the same and filled the contents of the cheque and presented the same for collection about four months after the cheque was lost. The above inference is fortified by the fact that the contents of cheque – Ex.P.2 and the contents of the counter folio - Ex.P.3 bear the same handwriting. As rightly observed by the learned Magistrate, there is a striking resemblance in the writing on Ex.P.2 and Ex.P.3 suggesting that they were written by the same hand. If really the accused had issued the cheque – Ex.P.2 filling the contents with his own hand on 03.10.2002, the date on the cheque, the question of his presenting the cheque duly filling the contents of the counter folio- Ex.P.3 does not arise as the cheque once handed over to the complainant would be presented by the complainant through someone on his behalf, but not by the accused. This indicates that the contents of Ex.P.2 cheque was also got written by the complainant through someone by whom cheque was presented on his behalf. There is no prohibition against the contents of cheque being filled by someone other than the drawer provided the contents are written with the consent of the drawer of the cheque. In the present case, there is no such plea or evidence on behalf of the complainant that the contents were filled by his representative with the consent of the accused. According to the complainant, the cheque, duly filled in, was issued by the accused. The evidence on record does not support the said plea in view of the difference in the ink between the signature and the contents of Ex.P.2 – cheque and the striking similarity between the writings on Exs.P.2 and P.3. The trial Court had, therefore, on proper appreciation of the evidence available on record, held that Ex.P.2 – cheque had not been issued by the accused in the manner alleged by the complainant. When that is so, the presumption contained under Section 139 of the Negotiable Instruments Act stands successfully rebutted by the accused. 10. The trial Court had, therefore, rightly held that the accused is not guilty of the offence under Section 138 of the Negotiable Instruments Act. 11. It is well settled that the scope of interference with an order of acquittal in an appeal is limited. In ‘Vimal Singh v. Khuman Singh & anr.[1]’, the apex Court held as follows: “…..Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been over looked. These are the instances where the High Court would be justified in interfering with the order of acquittal.” 12. In ‘C.Antony V. K.G.Raghavan Nair[2]’ while dealing with an order of acquittal, the power of High Court to interfere with the same, the Apex Court held thus: “Unless the findings of trial Court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its findings merely because another contrary opinion was possible on the basis of material on record.” 13. In ‘State of Goa vs. Sanjay Thakran[3]’, the Apex Court held as follows: “While exercising the powers in an appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality land the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decisions is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view, which would upset the judgment, delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law land ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to fine out whether any of the accused is connected with the commission of the crime he is charged with. 14. In view of the principles laid down in the above decisions and the facts and circumstances of the case and for the reasons stated supra, it is held that the order of acquittal passed by the learned Magistrate on proper appreciation of the evidence available on record is not liable to be interfered with. There are no merits in the appeal. 15. In the result, the criminal appeal is dismissed. _______________________ G.V.SEETHAPATHY, J Date: 20-08-2009. kvrm [1] 1998 (8) Supreme l [2] 2003(1) SCC 1 [3] (2007) 2 SCC (Crl.)162