A BHOOSANRAO Vs. PURUSHOTHAMDAS PANTANI

JUDGEMENT

(1.) Aggrieved by the order of acquittal in CC No. 24 of 1992, the complainant preferred this appeal. The learned Magistrate by his order dated 11-7-1995 in CC. No. 24 of 1992 acquitted the accused for an offence punishable under Section 138 of Negotiable Instruments Act (for short 'the Act'). The appellant before this Court strenuously contended that in the light of the decree obtained by him in O.S.No. 1204 of 1991 on the file of the V Additional Judge, City Civil Court, Hyderabad and in the light of admission of the accused in the affidavit filed in support of the petition in the lower Court seeking permission to defend the case wherein he categorically admitted that he discharged the amount in three instalments under the receipts issued by the appellant herein dated 17-4-1992, 15-5-1992 and 20-6-1992, but at the same time the accused failed to produce these receipts in the Criminal Court. Hence the view taken by the Magistrate in acquitting the accused is erroneous one and the same needs interference by this Court.

(2.) Adverting to the contention of the appellant, the counsel for the respondent submitted that it is the specific case of the complainant that the amount was lent by way of a cheque and it is his further case that on the next day he sent post-dated cheque along with a letter. But in the witness box he categorically submitted that he paid the amount from his salaries and he is not maintaining any account and he is not an income-tax assessee. Though he does Real Estate business and earns lakhs of rupees every year, he is not filing income-tax returns. When the very fact of giving amount was denied in the reply notice sent to the legal notice given by him dated 21-3-1991, th appellant did not choose to summon the cheque from the Bank or filed the counter-foil or the said cheque book from which he had given the cheque. Further he has suppressed the reply notice sent by the accused wherein he has categorically disputed the liability on his part. To bring home the guilt of the accused under Section 138 of the Act, the complainant is bound to discharge the initial burden cast upon him that the cheque was given by the accused in discharge of a legally enforceable liability. If the accused failed to produce the receipts in criminal proceedings, the prosecution has to succeed or fail on its own case depending upon the oral and documentary evidence on record. In this case, as the complainant failed to prove satisfactorily that he has sufficient capacity to lend the amount of Rs. 1,25,000.00 and more so, by way of cheque and his failure to prove that the amount was actually drawn by the accused, the accused cannot be punished for an offence under Section 138 of the Act.

(3.) Further I have seen Ex.P. 2 where in the entire body of the letter was typed but only the sum of Rs. 1,25,000.00 was written both in figures and words in ink. The appellant failed to offer any satisfactory explanation for showing the sum of Rs. 1,25,000.00 both in figures and words in ink when the entire body of the letter is in typing. For all these reasons, I am of the opinion that the Magistrate rightly acquitted the accused and the Judgment do not call for any interference by this Court.