IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.421 of 2006 DATE:11.03.2011 Between: Chikatimarla Satya Sai …… Petitioner And Chikatimarla Naga Vivekananda Hanuman Gupta And another ...Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.421 of 2006 JUDGMENT : This appeal is filed by the complainant against acquittal of the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act (in short, the act). It is the complainant’s case that the accused had drawn Ex.P-1 cheque in favour of the complainant/P.W-1 for Rs.3,20,000/- towards part payment of promissory note debt covered by Ex.P-6 and that the said cheque was dishonoured as per Ex.P-2 memo when presented for encashment. After issuing Ex.P-3 notice to the accused who received the same as per Ex.P-4 postal acknowledgement, the complainant instituted the case in the lower Court. During trial, the complainant examined herself as P.W-1 and examined the attestors in Ex.P-6 pronote as P.Ws-2 and 3. Though P.Ws 2 and 3 supported the complainant’s case in their examination-in-chief, during cross-examination which took place on a subsequent date did not support the complainant’s case. The lower Court discarded evidence of P.Ws 2 and 3 on the said ground. Having signed in Ex.P-6 pronote as attestors and having deposed to the accused borrowing Rs.3,50,000/- thereunder and marking the said pronote, P.Ws 2 and 3 turned hostile to the complainant during cross-examination done on a subsequent date as the accused managed them in the meanwhile. If really Ex.P-6 is not supported by consideration and was not executed by the accused, P.Ws 2 and 3 would not have figured therein as attestors and would not have deposed in proof thereof in their respective examinations-in-chief. The lower Court erred in not placing reliance of their examination-in-chief and in discarding their evidence basing on subsequent cross-examination after they were tampered with by the accused. P.W-4 is the scribe of Ex.P-6 pronote and he supported execution of Ex.P-6 pronote by the accused after receiving the amount mentioned thereunder. 2) The lower Court placed reliance on Ex.D-1 ‘OPPUDALA PATRAM’ dated 08.05.2003 said to have been executed by the complainant to the effect that no action will be taken on the basis of the cheque and pronote. D.Ws 2 to 4 are the attestors and scribe in Ex.D-1. Ex.D-1 could not have been pleaded in the reply notice because reply notice is earlier in point of time to Ex.D-1, reply notice being dated 24.04.2003 and Ex.D-1 being dated 08.05.2003. Ex.D-1 is subsequent to filing of the private complaint in the lower Court. P.W-1 in cross-examination denied having executed Ex.D-1. If really the complainant executed Ex.D-1, the complainant would have filed a memo before the lower Court in May, 2003 itself not pressing the complaint or withdrawing the complaint. The fact that P.W-1 pursued the complaint in the lower Court even subsequent to the date of Ex.D-1, suggests that Ex.D-1 was brought into existence by the accused with a subsequent date. 3) The lower Court held that Ex.P-3 notice is not in accordance with Section 138 of the act, in the sense that no specific amount was demanded by the complainant from the accused therein. In Ex.P-3 notice the complainant demanded the accused ‘to pay the amount under dishonoured cheque within 15 days of receipt of the notice and also to pay the remaining balance amount under the pronote. The lower Court came to the conclusion that no definite amount is demanded thereunder. In the notice, the complainant categorically stated that the accused borrowed Rs.3,50,000/- and executed the promissory note dated 07.01.2001 and that the accused had drawn the cheque towards partial discharge of the pronote amount in favour of the complainant and that the said cheque was dishonoured when presented for encashment. In the notice, the complainant gave cheque number as well as its date and name of the bank on which it was drawn. 4) In K.R.Indira V. Dr.G.Adinarayana[1], the Supreme Court came to the conclusion that the notice therein was imperfect not because it had any further or additional claims as well, but it did not specifically contain any demand for the payment of the cheque amount, the non-compliance with such a demand only being the incriminating circumstance which exposes the drawer for being proceeded against under Section 138 of the Act. The Supreme Court referred to an earlier decision in Suman Sethi V. Ajay K.Churiwal[2] wherein the notice was upheld where there was specific demand in respect of the amount covered by the cheque and also contained an additional demand incidental to it in the form of expenses incurred for clearance and notice charges. In E.Madhu V. State of A.P[3] this Court held that it cannot be said that there is defect in the notice issued under Section 138 of the Act on the ground that the amount covered by the cheque was not mentioned in the notice, particularly when the date and number of cheque are given therein. In that view of the matter, this Court is of the opinion that reasons given by the lower Court for acquitting the accused are not sustainable in law. The accused could not rebut the presumption of pre-existing debt or liability contained in Section 139 of the Act. Thus, finding of acquittal recorded by the lower Court is not based on evidence on record and it is manifestly unjust. 5. After filing of this appeal, both the parties filed memo before this Court to the effect that the accused/respondent paid Rs.1,00,000/- to the complainant/appellant and that the accused would pay the balance of amount of Rs.2,75,000/- settled between the parties on or before 28.04.2011. 6. In the result, the memo filed by both the parties is recorded; and in case the amount of Rs.2,75,000/- is not paid on or before 28.04.2011, then this appeal shall stand allowed and the respondent/accused stands convicted for the offence under Section 138 of the Negotiable Instruments act and shall be sentenced to simple imprisonment for six months. _______________________________ SAMUDRALA GOVINDARAJULU, J March 11, 2011 ksh [1] 2004(1) ALD (Crl.) 31 (SC) [2] 2000(2) SCC 380 [3] 2002(1) ALD(Crl.) 197 (AP)