THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL NO.85 OF 2007 JUDGMENT: 1 Complainant is the appellant herein and he preferred this appeal against the judgment dated 20.11.2006 passed by the leaned Judicial Magistrate of I Class-cum-Special Mobile Court at Khammam in C.C.No.178 of 2005 whereby the respondent herein who is the accused therein was acquitted for the offence punishable under section 138 of N.I. Act. 2 Brief facts are that on 15.06.1999 the respondent borrowed a sum of Rs.2 lakhs form the appellant and executed a promissory note in favour of the appellant agreeing to repay the said amount on demand with interest @ 24% p.a. and on the repeated demands made by the appellant, the accused issued a cheque for Rs.2,50,000/- on 29.10.1999 towards part payment in favour of the appellant drawn on State Bank of Hyderabad, Z.P. Branch, Khammam and when the appellant presented the said cheque for collection on 12.11.1999, the same was returned due to insufficiency of funds in the account of the respondent. On 13.11.1999 the complainant got issued a legal notice to the respondent and the same was returned with an endorsement “continuously 7 days absent” and even after issuance of the legal notice as the respondent did not pay the cheque amount the appellant filed the complaint. 3 During the course of trial, the appellant was examined as P.W.1 and another witness was examined as P.W.2 and Exs.P.1 to P.6 were marked on his behalf. The respondent was examined as D.W.1 and Exs.D.1 and D.2 were marked on his behalf. Having analysed the said oral and documentary evidence, the trial court acquitted the respondent of the offence punishable under section 138 of the Act. As stated supra, the same is challenged in this appeal. 4 The main contention of the learned counsel for the appellant is that the appellant filed a suit in O.S.No.129 of 1999 on the foot of a promissory note against the respondent and the said suit was dismissed. As against the said judgment, the appellant preferred appeal A.S.No.2282 of 2002 and the same is pending in this court. He further contended that the court below, solely taking into consideration the dismissal of the suit, dismissed the complaint and acquitted the respondent. 5 Per contra, the learned counsel for the respondent contended that the court below had considered the entire evidence in holding that the respondent is not guilty of the said offence. 6 Having considered the said submissions, and also perusing the judgment impugned in this appeal this court is of the view that the court below did not dismiss the complaint and acquitted the respondent on the sole ground of dismissal of the civil suit filed by the appellant against the respondent. In fact, at para No.13 of the judgment, the court below had discussed as to whether the said amount is in lieu of a legally enforceable debt or not and came to the conclusion that the complainant i.e. appellant herein failed to establish that there is a legally enforceable debt. Of course, the trial court had also taken note of the judgment in O.S.No.129 of 1999 but that was not the only ground on which the said acquittal was recorded. As stated supra, the court below had taken every aspect into consideration in coming to the conclusion that there is no legally enforceable debt. May be it is true that the appeal against the judgment in O.S.No.129 of 1999 is pending but that cannot be a ground to hold that the charge against the respondent is proved. 7 Accordingly I see no merits in this appeal and hence the same is dismissed. However, any observations made by this court in this appeal shall not in any manner prejudice the court while deciding the said appeal i.e. A.S.No.2282 of 2002. -------------- 03.06.2010 kvsn