HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.247 of 2005 DATED: 20.08.2009 BETWEEN: P.Ravindra Reddy .. Appellant And S.Thulasi Eswar Reddy and another .. Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.247 of 2005 JUDGMENT: This criminal appeal is directed against the judgment dated 31.12.2004 in Cr.A.No.193 of 2004, on the file of the I Additional District and Sessions Judge, Chittoor, wherein the appeal filed by the 1st respondent herein, was allowed setting aside the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentence of rigorous imprisonment for six months and a direction to pay compensation of Rs.85,000/- to the complainant as recorded by the learned V Additional Judicial First Class Magistrate, Chittoor in C.C.No.264 of 2002 by his judgment dated 27.07.2004. 2. Heard the learned counsel for the appellant and learned counsel for respondent No.1-accused. Perused the records. 3. The appellant herein filed a complaint against respondent No.1 alleging offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.264 of 2002. According to him, on 10.10.2001, the accused borrowed a sum of Rs.85,000/- from him promising to repay the same within a month and issued Ex.P.1 - cheque bearing No.059323, dated 10.11.2001 for the said amount on Andhra Bank, Chittoor. On 06.05.2002, when the complainant presented the same for encashment, it was returned with a memo- Ex.P.2 on 07.05.2002 with an endorsement “funds insufficient.” The complainant got issued a registered notice- Ex.P.3 dated 17.05.2002 to the accused intimating him about the dishonour of cheque and demanding payment of the amount within 15 days. The accused received the notice and did not pay the amount and sent a reply- Ex.P.6, dated 01.06.2002 with false allegations. The accused appeared before the trial court and denied the offence. 4. In support of his case, the complainant examined himself as PW.1 and marked Exs.P.1 to P.6. The accused examined himself as DW1 and no documents were marked on his behalf. 5. On a consideration of the material available on record, the learned Magistrate found the accused guilty and convicted him for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed sentence of rigorous imprisonment for six months and also directed to pay Rs.85,000/- as compensation to the complainant. Aggrieved by the same, the accused preferred Crl.A.No.193 of 2004 before the learned I-Additional District and Sessions Judge, Chittoor. The said appeal was allowed and the judgment of the trial Court was reversed and conviction and sentence was set aside. Hence, the present appeal is filed by the complainant. 6. It is not disputed that the complainant was working as Police Constable and the accused was practising as an advocate at Chittoor and both of them were closely associated with each other and were friends. According to the complainant, the accused borrowed Rs.85,000/- from him as hand loan on 10.10.2001 and one month thereafter, on 10.11.2001, the accused issued a cheque – Ex.P.1 in discharge of the debt. The accused categorically denied that he has borrowed any such amount of Rs.85,000/-. According to him, he borrowed only Rs.56,000/- from the complainant, that too by way of installments and discharged the same by making daily payments and that by way of security for the said loan, the complainant obtained promissory note and also three blank cheques signed by the accused by way of additional security. He further pleaded that he discharged debt of Rs.56,000/- and the complainant has not returned the cheques and filed the false complaint. Thus, the signatures on the cheque- Ex.P.1 is admitted by the accused. The issuance of the cheque i.e. for the amount of Rs.85,000/- is totally denied by the accused. 7. The learned counsel appearing for the complainant would submit that the accused having admitted the signatures on the cheque – Ex.P.1 the burden squarely lies on him to establish that the cheque was not issued in discharge of any legally enforceable liability. 8. The learned counsel for the accused, on the other hand, would submit that the accused never admitted issuance of any cheque for Rs.85,000/- in favour of the complainant and therefore, no part of the burden shifts on to the accused. It is to be noted that though the accused admitted his signature on Ex.P.1–cheque he never admitted that he issued a cheque for Rs.85,000/-, that too in discharge of the debt as alleged by the complainant. The specific plea of the accused is that at the time of borrowal of Rs.56,000/-, the complainant obtained three signed blank cheques by way of additional security and even after discharge of debt, the complainant has not returned the said cheques. Even in the reply notice–Ex.P.6 dated 01.06.2002 issued at the earliest point of time the accused had raised the same plea. When the accused had totally denied to have borrowed the amount of Rs.85,000/- and further denied to have issued a cheque in discharge of the said amount one month later, the burden initially lies on the complainant to show that the cheque – Ex.P.1 was, in fact, issued by the accused. It is only when the initial burden is discharged by the complainant, the presumption under Section 139 of the Negotiable Instruments Act comes into operation. As the said presumption is rebutable, it is always open to the accused to prove contra. 9. In G.B.LINGAM v VITTA MURALI KRISHNA MURTHY AND ANOTHER[1] this Court held that when the accused takes the plea that the cheque was not issued for discharge of legally enforceable debt or liability the burden lies on the complainant to prove the circumstance under which the cheque was given and that it was issued in discharge of legally enforceable debt and only when the initial burden is discharged, the presumption under Section 139 of the Act can be made use of against the accused. 10. The accused can rebut the said presumption not only by adducing evidence on his own, but also by taking advantage of the admissions, if any, made by the complainant in his evidence and other circumstancial evidence which thoroughly improbabilise the contention of the complainant. A perusal of the cheque–Ex.P.1 would show that the contents were not written contemporaneously when the cheque was signed. The name of the drawer and the amount written in words are in capital letters, contrary to usual practice. 11. The accused being a practising advocate and the complainant also a law graduate, it is improbable that the contents of the cheque–Ex.P.1 would have been written in capital letters, contrary to usual practice. PW.1 goes to the extent of saying in the cross examination that he does not know that the accused is a practising advocate, though he admits that the accused was his senior in law college. The learned Sessions Judge had rightly observed that the manner in which the contents of Ex.P.1–cheque were written creates a reasonable doubt in the mind of the Court regarding the genuineness of the contents, as it would be difficult to compare the handwriting when the matter is written in capital letters. In the circumstances, it was held to be improbabilising the claim of the complainant and his capacity to lend huge amount of Rs.85,000/-. Even according to PW.1, he was working as constable and his salary is Rs.7,000/- per month. Admittedly, he has no other assets or sources of income. When that is so, it is not disclosed as to from where he could procure such a huge amount of Rs.85,000/- to lend to the accused. 12. The learned counsel for the complainant would point out that even according to the accused he borrowed a sum of Rs.56,000/- from the complainant and when the complainant had admittedly capacity to lend Rs.56,000/- it could not be that difficult for him to lend Rs.85,000/- . The plea of the accused is that he borrowed a sum of Rs.56,000/- from the complainant from time to time by way of installments. It is not the case of the accused that he borrowed the said amount of Rs.56,000/- from the complainant in lumpsum. The accused never admitted that the complainant had any capacity to lend such huge amount. This circumstance assumes significance in view of the fact that admittedly the alleged borrowal is not evidenced by pronote or any other document. The evidence on record does not therefore, establish that the complainant had any capacity to lend huge amount of Rs.85,000/-. These circumstances give rise to reasonable suspicion in the mind of the Court over the claim of the complainant and his conduct in presenting the cheque for encashment, almost six months after its issuance. 13. According to the complainant, the accused borrowed the amount of Rs.85,000/- on 10.10.2001 and within one month thereafter, on 10.11.2001 the accused discharged the debt by issuing cheque – Ex.P.1. The cheque was, however, presented for encashment on 06.05.2002 just before the expiry of six months period. There is no explanation from the complainant as to why he had to wait for almost six months in presenting the cheque, which conduct is contrary to the natural course of human conduct, especially when according to the complainant, the transaction was only a hand loan carrying no interest. If really the cheque was issued on 10.11.2001, as claimed by the complainant, he would have presented the same immediately thereafter for encashment and would not have waited for almost six months and thereby forego the interest during that period. Except, the ipsi dixit of PW.1 that he lent the amount of Rs.85,000/-, there is absolutely no evidence to prove the said transaction, in the light of the total denial of the same by the accused. Again there is no evidence on record to show that the accused issued the cheque - Ex.P.1 for the amount of Rs.85,000/- and that too in discharge of legally enforceable liability. When the factum of alleged borrowal itself is not duly established by the complainant and the factum of issuing the cheque as such for the said amount is also not established by the complainant, it cannot be said that the complainant received Ex.P.1–cheque in discharge of the debt or any other liability. 14. Simply because the signature on Ex.P.1–cheque was admitted, the same does not in any way enure to the benefit of the complainant so long as the initial burden lying on the complainant remains undischarged. Placing heavy reliance on the presumption contained in Section 139 of the Negotiable Instruments Act, the learned Magistrate found the accused guilty. The learned Sessions Judge, on a reappraisal of the evidence available on record by a detailed and reasoned order, had rightly held that the presumption contained in Section 139 of the Negotiable Instruments Act is not attracted as there was no issuance of cheque at all. It is only when the issuance of cheque as such is proved, then the statutory presumption under Section 139 of the Negotiable Instruments Act arises. 15. Further, it is well settled that the order of acquittal is not to be easily interfered with by the appellate Court, unless there are substantial grounds and compelling reasons to do so. Even if two views are possible from the same evidence, the order of acquittal is not to be disturbed on the ground that the Court below ought to have preferred the other view than the one that was taken into consideration. 16. In AYODHYA SINGH V. STATE OF BIHAR AND OTHERS[2], the Apex Court held as under: “It is well settled that if on the same evidence two views are reasonably possible, where the Court below takes a view in favour of the accused, the Appellate Court will not set aside the order of acquittal unless it finds the findings to be perverse, highly unreasonable, based on no evidence on record or made in ignorance of relevant evidence on record or for other such reasons.” 17. 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.[3]’, 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.” 18. In ‘C.Antony V. K.G.Raghavan Nair[4]’ 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.” 19. In ‘State of Goa vs. Sanjay Thakran[5]’, 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. 20. 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 Sessions Judge on proper appreciation of the evidence available on record is not liable to be interfered with. There are no merits in the appeal. 21. In the result, the criminal appeal is dismissed. _______________________ G.V.SEETHAPATHY, J Date:20-08-2009 kvrm HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.247 of 2005 DATED: -08-2009 [1] 1997(1)ALD (Crl) 940 [2] 2005(2) ALT (Crl.) 92 [3] 1998 (8) Supreme l [4] 2003(1) SCC 1 [5] (2007) 2 SCC (Crl.)162