K KRISHNA REDDY Vs. K RAJENDER

JUDGEMENT

(1.) THE Criminal Appeal is directed against the acquittal of the accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 by setting aside the conviction and sentence imposed by XIV Additional Chief Metropolitan Magistrate, Hyderabad, by the judgment dated 28-12-2006 in C.C.No.343 of 2000, by the judgment dated 08-05-2007 in Criminal Appeal No.21 of 2007 on the file of III Additional Chief Metropolitan Sessions Judge, Hyderabad.

(2.) THE parties are referred to herein as they are arrayed before the trial Court.

(3.) THE trial Court rendered its judgment referring to the precedents cited before it and opining that once the signature on the dishonoured cheque is admitted, the presumption under Sections 118 and 139 of the Act arises placing the burden of proof on the accused to rebut the same. THE accused claimed herein that he lost his handbag with a calculator, visiting card, signed blank cheque Nos.075458 to 075475 of current account No.2045 of Andhra Bank, Sanathnagar and blank signed promissory notes on 28-08-1999 while going on his motorcycle to obtain a loan from Concord Motors Auto Financier. THE signatures on Ex.P.1-cheque and Ex.P.4-promissory note were thus admitted and PW.2 was noted to be litigating against the accused in O.S.No.825 of 2002 and E.P.No.148 of 2003, while there was no documentary evidence in proof of the alleged approach to the Auto Financier for a loan. THE trial Court also noted that Ex.D.5-complaint from the accused to the police did not disclose the details of the promissory notes or cheques or their number, while Ex.D.7-certificate from the police had given such details without disclosing how such details were secured by the police officer. THE number of promissory notes lost was not specified or known and no prudent person would have carried such a number of blank signed cheques and blank signed promissory notes to obtain a loan from a financier. Even to cover monthly instalments, post dated cheques of such a number would not have been naturally carried and the suggestion to PW.1 to the contrary by the counsel for the accused was that PW.1 obtained a blank signed cheque. Similar was the version of the accused about B. Srinivas and the trial Court, hence, concluded that the accused failed to rebut the statutory presumptions, the preponderance of broad human probabilities being against his defence. PW.3, a Junior Advocate in the office of the advocate for the complainant, was considered independent and the evidence of PWs.1 to 3 was found to have no material contradictions. THE signing of a receipt by one K. Ashok Kumar as security was not stated by the accused and hence, the issuance of subject cheque towards payment of a legally enforceable debt by the accused to the complainant was considered proved. THE bouncing of the cheque on the first occasion was noted to have not been followed by any written demand notice, but the second dishonour was considered to provide cause of action and the endorsement by the bank officials about the lost cheque on the first occasion was considered to have no effect. THE residential particulars mentioned on the statutory notice being not claimed to be incorrect and admitted by DW.1, a presumption under Section 27 of the General Clauses Act was drawn about the service of notice is not through registered post acknowledgement due, which was returned, white the notice sent under certificate of posting was not returned. THE statutory notice was not complied with within 15 days from the date of deemed service or later, and hence, the trial Court considered the offence to have been proved. When questioned about the sentence, the accused pleaded for mercy as he has to look after his widowed mother, wife and two children. While not invoking the provisions of the Probation of Offenders Act, the accused was sentenced to undergo Rigorous imprisonment for one year and pay a fine of Rs. 5,000/- with a default sentence of 30 days.