HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.263 OF 2007 DATE:21.07.2010 Between: Chinam Raja Gopal …… Petitioner. And: Sri T. V. Brahmanandam and another …..Respondents. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.263 OF 2007 JUDGMENT: 1. Unsuccessful complainant in C.C.No.98 of 2005 on the file of III Metropolitan Magistrate, Vijayawada is the appellant. The lower court by judgment dated 09.11.2006 acquitted the accused/1st respondent finding him not guilty of offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act). 2. It is the complainant’s case that the accused borrowed Rs.90,000/- from him on 04.01.2000 through cheque drawn on UCO bank, Venkateswarapuram, Vijayawada on the same day and executed a letter in favour of the complainant agreeing to repay the same along with interest at 18% p.a and that after demands the accused issued cheque for Rs.70,000/- drawn on Andhra Bank, Viajayawada-12 on 13.08.2001 in favour of the complainant as part payment of the debt. There is no dispute that the said cheque Ex.P-2 was dishonoured as per Ex.P-3 dishonour memo. After issuing statutory notice Ex.P-4, the complainant filed the complaint in the lower court. The complainant as P.W.1 spoke to the allegations in the complaint. No doubt, the accused did not examine himself as witness during trail in the lower court. But, he examined D.Ws.1 to 4 on his behalf. D.W.1 is Sales Representative- cum-Office in-charge in Sri Kalki Industries, Vidyadharapuram, Vijayawada. It is his evidence that on the instructions of P.W.1, on 13.08.2001, he filled up Ex.P-1 letter by typing the same as if it was receipt given by the accused stating that he received Rs.90,000/- by way of cheque on 04.01.2000. He further says that he filled up Ex.P-2 blank cheque in his own hand writing by putting the amount as Rs.70,000/- and date as 13.08.2001 in it. According to D.W.1, he filled up Exs.P-1 and P- 2 on the documents which were already containing signatures of the accused, as per instructions of P.W.1. D.W.3 he is one of the partners in Sri Kalki Industries. In fact, both the complainant and the accused were partners in Sri Kalki Industries. According to D.W.3, the accused retired from the firm as Partner on 31.03.2001 after receiving Rs.80,000/- under a release deed. D.W.4 is another employee of Kalki Industries. He says that he filled up entire columns of the cheque on 07.01.2000 already containing signatures of the accused and it was deposited in Andhra Bank. D.W.2 is Bank Officer. He speaks to deposit of Ex.P-2 cheque by the complainant for encashment and returning of the same upon instructions of ‘stop payment’ by the drawer. At this stage, it may be noted that Ex.D-5 is another cheque relating to Rs.90,000/- drawn by the accused in favour of the complainant. There is no dispute that Ex.D- 5 cheque was encashed by the complainant. According to the accused, the complainant by paying Rs.90,000/- to him on 04.01.2000 by way of cheque drawn on UCO bank, after three days, took back the said amount of Rs.90,000/- by presenting Ex.D-5 cheque containing signature of the accused for the same amount. Thus, the accused pleads that there is no legally enforceable debt supporting Ex.P-2 cheque because the amount paid by the complainant on 04.01.2000 was repaid three days thereafter under Ex.D-5 cheque. The accused further contends that taking aid of blank signed cheque with the complainant, the complainant has prepared Ex.P-2 cheque and Ex.P-1 letter and filed false case in the lower court. The lower court on assessment of evidence on record, found favour with the accused resulting in his acquittal. 3. It is contended by the appellant’s counsel that there is presumption as to legally enforceable debt under Section 139 of the Act and that since the accused did not go into witness box and did not choose to examine himself as witness, the said presumption under Section 139 of the Act stood un-rebutted. He placed reliance on reported decisions of the Supreme Court and this Court. In K.N.Beena v. Muniyappan[1] of the Supreme Court, the accused did not examine himself nor examined any witnesses, but relied upon his contentions and suggestions to witnesses. In those circumstances, the Supreme Court held that the presumption under Section 139 of the Act is not rebutted. Similarly in Goa Plast (P) Limited v Chico Ursula D’ Souza[2] of the Supreme Court, neither the complainant examined himself nor examined any witnesses on his behalf. In J. Subba Rao v. T. Bucha Reddy[3], this Court held that when the accused has not chosen to enter into the box and rebut the presumption under Section 139 of the Act, it cannot be said that the presumption stood un-rebutted. Examination of the accused as witness is not the only method of rebuttal of presumption under Section 139 of the Act. At the same time, the accused is expected to lead some positive evidence rebutting the presumption under Section 139 of the Act; and the accused cannot satisfy himself by putting certain contentions and suggestions to the prosecution witnesses. In the case on hand, though the accused did not chose to examine himself as witness, he had let in positive evidence of D.Ws.1 to 4 to prove that there is no legally enforceable debt for Ex.P-2 cheque, inasmuch as the amount of Rs.90,000/- said to have been lent by the complainant to the accused on 04.01.2000 was promptly repaid by the accused on 07.01.2000 by way of Ex.D-5 cheque. Secondly, the accused was able to prove that Ex.P-2 cheque was pressed into service when a cheque leaf containing his signature was available with the complainant. D.W.1 filled all the entries including date and amount in Ex.P-2 cheque. D.W.1 had typed Ex.P-1 letter on a blank letterhead containing signature of the accused. The lower court rightly found that in view of evidence of D.Ws.1 to 4, the accused was able to not only rebut presumption under Section 139 of the Act but also positively proved that there is no legally enforceable debt backing Ex.P-2 cheque. I do not find any valid or legal reasons to come to a different conclusion in this appeal. The order of acquittal passed by the lower court suffers from no infirmity. 4. Hence, the criminal appeal is dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:21.07.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.263 OF 2007 Date:21.07.2010 Gk. [1] AIR 2001 Supreme Court 2895 [2] 2004 (1) ALD (Cri) 309 SC [3] 2002 (2) ALT (Cri) 195,