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2002 Supreme(AP) 465
Andhra Pradesh High Court
Judges : ELIPE DHARMA RAO
J.Subba Rao (Complainant) - Appellant
Versus
T.Bucha Reddy - Respondent
Decided On : 04-01-02
Headnote:
Criminal Procedure Code ,1908 - Section 357 - Negotiable Instruments Act - Section 138 - Promissory note - Legally enforceable debt - No documentary evidence - Appeal against conviction - Criminal Appeal is directed against Judgment of the learned II Additional metropolitan Sessions Judge, dated in Crl. Appeal No. acquitting the 1st respondent-accused by reversing Judgment of learned xvii Metropolitan Magistrate, in dated under which 1st respondent-accused was convicted and sentenced to pay - Appellant-complainant is that on 1st respondent-accused took a sum of as hand loan from his and he gave a cheque dated for in discharge of said loan and on presentation of said cheque, it was bounced on for insufficiency of funds in account of accused - Appellant-complainant then gave a notice dated to accused calling upon him to pay the amount - Learned Magistrate upon consideration of entire evidence on record came to the conclusion that 1st respondent-accused issued cheque for in discharge of the legally enforceable debt in favour of the appellant- Complainant and accordingly convicted and sentenced him for the said offence as aforesaid - Aggrieved by the said conviction and sentence, 1st respondent-accused preferred an appeal before II Metropolitan sessions Judge, and learned sessions Judge by his judgment incrl. Appeal no dated found the 1st respondent-accused not guilty of the offence under Section 138 of Negotiable instruments Act and acquitted him of the said offence –Held, Appellant relied on a judgment of Supreme Court in wherein it was held that it is obligatory on the court to presume liability of the drawer for amount of cheque in every case where factualbasis for such presumption is established and such a presumption can be rebutted by the drawer by proving on evidence that holder of the cheque had not received the same towards the discharge of any legally enforceable liability and such rebuttal does not have to be conclusively established - Debt is time-barred and he has not issued Ex. P-1 cheque for a legally enforceable debt - But 1st respondent-accused has not chosen to enter into box to rebut such a presumption - Therefore, it must be held that 1st respondent-accused has issued ex. P-1 cheque in favour of complainant in discharge of legally enforceable debt - But learned Sessions Judge without considering matter in a proper perspective has held that the debt is time- barred and wrongly passed the order of acquittal - Judgment of the supreme Court and in view of facts and circumstances of the case, order of acquittal passed by the learned Sessions judge in Crlappeal No dated is liable to be set aside and it is accordingly set aside - In addition to that Court deem it appropriate to direct 1st respondent-accused to pay a sum to appellant-complaint towards compensation - Criminal Appeal is accordingly allowed.
( 1 ) THIS Criminal Appeal is directed against the Judgment of the learned II Additional metropolitan Sessions Judge, Hyderabad dated 24-11-1995 in Crl. Appeal No. 409 of 1994 acquitting the 1st respondent-accused by reversing the Judgment of the learned xvii Metropolitan Magistrate, Hyderabad in CC No. 413 of 1993 dated 30-8-1994 under which the 1st respondent-accused was convicted and sentenced to pay a fine of rs. 500/- in default to undergo S. I. for one month for the offence under Section 138 of the Negotiable Instruments Act.
( 2 ) THE case of the appellant-complainant is that on 8-2-1989 the 1st respondent-accused took a sum of Rs. 25,000/- as hand loan from his and he gave a cheque dated 31-1-1993 for rs. 20. 000/- in discharge of the said loan and on presentation of the said cheque, it was bounced on 26-61993 for insufficiency of funds in the account of the accused. The appellant-complainant then gave a notice dated 5-7-1993 to the accused calling upon him to pay the amount. The accused received the said notice on 6-7-1993 and gave a reply dated 30-8-1993 requesting for time. Since the 1st respondent-accused did not pay the amount, he filed the complaint.
( 3 ) BEFORE the trial court to prove his case the complainant got examined one witness as P. W. 1 and got marked Ex. P-1 to Ex. P-6. D. W. 1 was examined on behalf of the 1st respondent-accused. No documentary evidence was adduced on behalf of the 1st respondent-accused.
( 4 ) THE learned Magistrate upon consideration of the entire evidence on record came to the conclusion that the 1st respondent-accused issued the cheque for rs. 20,000/- in discharge of the legally enforceable debt in favour of the appellant- complainant and accordingly convicted and sentenced him for the said offence as aforesaid. Aggrieved by the said conviction and sentence, the 1st respondent-accused preferred an appeal before the II Metropolitan sessions Judge, Hyderabad and the learned sessions Judge by his judgment incrl. Appeal no. 409 of 1994 dated 24-11-1995 found the 1st respondent-accused not guilty of the offence under Section 138 of the Negotiable instruments Act and acquitted him of the said offence. Aggrieved by the said order of acquittal, the present appeal has been filed by the complainant.
( 5 ) THE contention of the learned counsel for the appellant is that Ex. P-1 cheque was admitted by the 1st respondent-accused and this fact was also mentioned in Ex. P-5 notice in which the 1st respondent-accused requested to give further time to pay the amount and therefore, it cannot be said that the debt is time-barred. But the learned sessions Judge, without considering the evidence available on record has wrongly acquitted the accused. He therefore, contends that the order of the learned sections Judge is liable to be set aside.
( 6 ) ON the other hand, the learned counsel for the 1st respondent-accused supported the judgment of the court below.
( 7 ) 1 have gone through the entire evidence available on record and the judgments of both the courts below. The evidence on record shows that the 1st respondent-accused took a loan of Rs. 25,000/- from the appellant- complainant by executing a Promissory Note on 8-2-1989 for which he gave Ex. P-1 cheque dated 31-1-1993 for Rs. 20/000/- in part payment of the debt. After executing the promissory note the 1st respondent-accused paid Rs. 1,000/- and got endorsed on the reverse of the promissory note before expiring the 3 years period and later the 1st respondent-accused issued Ex. P-1 cheque in discharge of his legally enforceable debt. Therefore, the contention of the learned counsel for the 1st respondent-accused that the promissory note is dated 8-2-1989 and ex. P-1 is dated 31-1-1993 and therefore, the debt is time-barred cannot be sustained. The debt is within the time for the above reasons.
( 8 ) IN support of his contention, the learned counsel for the appellant relied on a judgment of the Supreme Court in Hiten P. Dala
