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.THE Complainant Filed THE Complaint Against THE Accused Alleging That THE Complainant, A Construction Businessman, And THE Accused Running A Printing Press Are Friends And THE Accused Approached THE Complainant On 08-09-1999 For Financial Assistance For Four Months For Running THE Printing Press And THE Complainant Gave Rs.7,50,000/- On THE Same Day. THE Accused Did Not Repay In Spite Of Demands But He Executed A Promissory Note And A Cheque No.075458 For Rs.7,50,000/- On 07-02-2000. When THE Cheque Was Presented Through THE Complainants Bank, It Was Returned Dishonoured With An Endorsement Exceeds Arrangement. A Second Presentation On 7-3-2000 Resulted In An Identical Endorsement On 9-3-2000 And THE Complainant Issued A Legal Notice Dated 21-03-2000 Demanding THE Accused To Pay Within 15 Days From THE Receipt Of Notice. THEre Was No Reply, But THE Accused Gave A False Complaint To THE Bank That He Lost THE Cheque Book To Avoid Payment Of THE Debt. Hence, THE Complaint In Respect Of An Offence Punishable Under Section 138 Of THE Negotiable Instruments Act (For Short THE Act).

(3.) IN Appeal, The Impugned Judgment Was Rendered Again Referring To The Factual Background And Considering The Points About The Existence Of A Legally Enforceable Debt Or Liability, The Issuance Of Ex.P.1-Cheque Towards The Same, The Correctness, Legality And Sustainability Of The Conviction And Sentence And The Relief To Which The Accused Is Entitled. The Appellate Court Referred To The Principles Laid Down By The Apex Court And Considered Whether The Accused Was Able To Rebut The Statutory Presumptions. The Contention Of The Accused That He Does Not Know The Complainant And Never Borrowed The Amount Was Noted And The Non-Production Of Any Bank Statement Or Other Evidence By PW.1 An INcome Tax Assessee Was Taken Adverse Note Of. The Admission By PW.1 That The Advancement Of The Amount Did Not Find Place IN His INcome Tax Return Was Also Noted Apart From Non-Production Of Any Books Or Statements Of Account. Ex.P.4-Promissory Note Not Filed Along With The Complaint Had Revenue Stamp Affixed On The Alleged Signatures Of The Accused. Ex.P.5 Notice Was Noted To Have Alleged The Promissory Note To Have Been Executed On 8-9-1999 Itself Contrary To The Evidence Of Pws.1 To 3 And The Recitals Of Ex.P.4 That It Was Executed On 7-2-2000. PW.1 Claimed The Same To Be A Mistake And Ex.P.5 Also States The Loan Amount To Have Been Taken On 7-2-2000 And The Claim Was, Hence, Considered Improbable And Suspicious. PW.2 And Exs.D.1 To D.4 Were Observed To Be Showing The Absence Of Any Cordial Relationship Between The Accused And PW.2 And PW.3 Noted To Be The Junior Of The Advocate Who Dealt With Another Criminal Case INvolving The Accused. Pws.2 And 3 Were Considered To Be INimical Towards The Accused And To Be INterested Witnesses And The Preponderance Of Probabilities Was Held To Be Favouring The Accused, Who Claimed To Have Never Borrowed Any Amount From The Complainant. DW.1 And Ex.D.7-Certificate Were Opined To Show The Lodging Of A Complaint By The Accused On 27-08-1999 About The Missing Of The Hand Bag On 25-08-1999 INcluding The Cheque Book. The Particulars Of The Cheques Not Being Mentioned IN Ex.D.5 Was Also Noted But The Particulars Of The Cheques Stated IN Ex.D.7 Were Opined To Have Been Possibly Obtained During INvestigation. The Claims Of DW.1 About The Signed Cheques And Promissory Notes For Obtaining Finance Were Considered Probable And Natural And It Was Noted That DW.1 Claimed To Have Addressed Ex.D.6-Letter On 14-02-2000 And INformed Orally Earlier The Bank About The Missing Of Cheques. The Endorsement On Ex.P.1-Cheque On 10-02-2000 About The Loss Of The Cheque Book Supports The INformation By The Accused To The Bank Even Earlier To Ex.D.6. The Endorsement Made By Red INk Across Ex.P.1 Cheque By Andhra Bank That Cheque Reported Lost Advised To Take Utmost Precaution Referred To IN Ex.P.5 Notice Was Noted To Have Been Subsequently Changed By The Complainant IN The Complaint And Evidence. The Concerned Bank Authorities Were Considered To Be Material Witnesses To Testify About The Reasons For Dishonour And When The Dishonour Was Not Due To INsufficiency Of Funds And There Was A Valid Cause IN Sending INstructions To The Bank Authorities To Stop Payment, The Accused Was Considered To Have Established That There Was No Existing Debt Or Liability And He Did Not Issue Ex.P.1-Cheque IN Discharge Of Any Such Debt. The Accused Could Not Have Known As To How Ex.P.1 Came INto The Hands Of The Complainant And Consequently, The Conviction And Sentence Were Set Aside And The Accused Was Acquitted.