IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2425 of 2004 DATE:12.08.2011 Between: Jakkam Laxman …… Appellant And Sandya Rani and another ...Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2425 of 2004 JUDGMENT : The complainant/appellant filed the complaint before the Judicial Magistrate of the First Class, Bodhan against the accused/respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act). After trial, the trial Court convicted the accused of the said offence and sentenced him to rigorous imprisonment for three months and fine of Rs.500/-. Questioning the same, the accused filed appeal befire the VII Additional Sessions Judge (Fast Track Court), Nizamabad at Bodhan. The lower appellate Court by the impugned judgment reversed decision of the trial Court and acquitted the accused finding him not guilty of the offence. Questioning the same, the complainant filed this appeal before this Court. 2) It is the complainant’s case that the accused borrowed Rs.1,50,000/- from him in February, 1999 for development of her business in gas agency and towards discharge of the said debt, the accused gave Ex.P-1 cheque for the said amount in his favour. When Ex.P-1 cheque was presented for encashment, banker of the accused dishonoured the said cheque by issuing Ex.P-2 memo to the effect that the account was closed. Thereupon the complainant got issued Ex.P-3 notice to the accused and despatched the same as per Ex.P-4 postal receipt. The said notice cover Ex.P-5 was returned as refused by the addressee. In support of the complainant’s case, the complainant examined himself as P.W-1 and examined his brother-in-law as P.W-2. On the other hand, it is version of the accused that she is not guilty of the offence and that she left some signed cheques in her gas agency being looked after by one Rama Krishna, Manager and Prasad, Assistant Manager and that in collusion with them, the complainant obtained Ex.P-1 and got filled up cheque and presented the same to the Bank. She disputes borrowing of any amount from the complainant and drawing Ex.P-1 cheque in favour of the complainant. The trial Court mainly basing on admission and signature in Ex.P-1 cheque of the accused, concluded that the said cheque was issued by the accused to the complainant and that there is statutory presumption in favour of the complainant under Section 139 of the Act. The lower appellate Court did not find favour with the said contention of the complainant. 3) The accused/D.W-2 was given gas agency at Nizamabad as ‘Srilankan War Widow’ of Indian Army. She is a resident of Vizakhapatnam. According to D.W-2, she was managing her gas agency at Nizamabad through her Manager and Assistant Manager. D.W-1 was working as clerk in the gas agency. Now, D.W-1 is D.W-2’s manager in gas agency. It is evidence of D.Ws 1 and 2 that D.W-2 was leaving some blank signed cheques in gas agency office for using the same by the Managers in her absence for running the agency. D.W-2 stated that she did not borrow Rs.1,50,000/- from the complainant/P.W- 1. 4) On the other hand, the complainant as P.W-1 deposed that he lent Rs.1,50,000/- to the accused in February, 1999 and that when he was pressing for discharge of the said debt, the accused gave him Ex.P-1 post dated cheque in April, 1999. The complainant has no proof to show that he lent any amount to the accused muchless to the extent of Rs.1,50,000/-. For that reason, the complainant intends to rely upon the presumption under Section 139 of the Act to the effect that Ex.P-1 cheque is supported by liability or debt to the above extent. But, the presumption under Section 139 of the Act is rebuttable presumption. The accused rebutted the said presumption by examining D.W-1 and also herself as D.W-2. Therefore, in the absence of presumption under Section 139 of the Act, the matter is at large before the Court and evidence of both the parties has to be assessed without reference to any presumption. 5) P.W-1 is a resident of Bodhan. He could not make out any prior communication or contacts for him with the accused. In spite of it, he is stated to have not obtained any documentary proof for the alleged lending of Rs.1,50,000/- by him to the accused. P.W-1 in cross-examination admitted that he is in the habit of obtaining documentary proof from the borrowers at the time of lending. There is no reason why such habit was not repeated in this case. Except ipse dixit, the complainant as P.W- 1, there is no other evidence on his behalf to show that he lent any amount to the accused. Even though P.W-2 stated that the accused issued Ex.P-1 cheque in his favour, his brother-in-law P.W-2 deposed that the accused gave Ex.P-1 cheque to him. The lower Court considered the said discrepancy and rightly found that the complainant has failed to prove that Ex.P-1 cheque was issued by the accused in his favour. The lower Court also noted that signature in Ex.P-1 and other columns in Ex.P-1 were in two different inks and came to the conclusion that Ex.P-1 cheque was filled up on a blank signed cheque. The complainant could not prove that Ex.P-1 cheque is supported by any debt or liability which is legally enforceable. In the absence of reliable evidence with regard to lending of Rs.1,50,000/- by P.W-1 to D.W-2, the lower Court rightly came to the conclusion that Ex.P-1 cheque is not supported by any debt or liability. There are no grounds in law or on facts to come to a different conclusion in this appeal. I find that acquittal recorded by the lower appellate Court is proper and legal. 6) In the result, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J August 12, 2011 ksh