Back
2012 Supreme(AP) 64
High Court of Andhra Pradesh
R. KANTHA RAO
G. Ashok Kumar Goud
Versus
Smt.P.Anjali Bai & Another
Crl.A.No. 162 of 2006
Decided On : 23-01-2012
For the Appellant:N. Vasudeva Reddy, Advocate.
For the Respondents: R1, M/s. G. Madhusudan Reddy, B. Vijaysen Reddy, R2, Public Prosecutor.
Headnote:
Negotiable Instruments Act - Section 138 – Criminal appeal – Dishonour of Cheque - Appeal against the judgment of acquittal passed by the – Offence - Under Section 138 of the Negotiable Instruments Act - Court have heard learned counsel appearing for the appellant, learned counsel appearing for the first respondent and the learned Additional Public Prosecutor representing the State. Appellant filed a complaint against the first respondent under Section 138 of the Negotiable Instruments Act alleging that the husband of the first respondent borrowed an amount of Rs.4 lakh from him under a promissory note, the first respondent in discharge of the said loan, borrowed by her husband issued a cheque said cheque was presented by the appellant in the bank for collection and it was dis-honoured on the ground of insufficient funds in the account of the first respondent. Thereafter, appellant issued notice under Section 138 of the Negotiable Instruments Act calling upon the first respondent to pay the cheque amount, but the first respondent neither paid the amount nor did she give any reply appellant then filed a case under Section 138 of the Act –Held, ratio laid down by the Supreme Court in the two judgments above referred, it is therefore obvious that a presumption which has to be raised by Courts, as required under Section 139 of the Act in favour of the complainant need not be rebutted by the accused by adducing any positive evidence. It is enough on his part to show the circumstances in his favour from the material available on record and the standard of proof required is that of the preponderance of probabilities. Therefore contention advanced on behalf of the complainant that there is no positive evidence adduced by the first respondent/accused to disprove the case of the complainant has no foundation in law. In the instant case, the first respondent/accused came up with a specific case that her husband never borrowed an amount of Rs.4 lakhs under a promissory note from the appellant. Whereas contention of the appellant is that there is a promissory note executed by the first respondent husband in his favour under which he borrowed an amount of Rs.4 lakhs. He named the attest of the promissory note in the complaint petition but he did not examine them. He did not even produce the promissory note. At one time, he states that the first respondent is one of the guarantors under the promissory note and gave inconsistent version in the cross-examination to the effect that the promissory note was executed by the first respondent as security for the loan borrowed by her husband – Criminal appeal is dismissed.
1. This criminal appeal is preferred against the judgment dated 18.01.2006 in C.C.No.621 of 2003 passed by the Judicial Magistrate of First Class, Tandur, Ranga Reddy District.
2. The appellant/complainant filed the appeal against the judgment of acquittal passed by the learned Magistrate acquitting the first respondent/accused for the offence under Section 138 of the Negotiable Instruments Act.
3. I have heard Sri N.Vasudeva Reddy, learned counsel appearing for the appellant, Sri B.Vijaysen Reddy, learned counsel appearing for the first respondent and the learned Additional Public Prosecutor representing the State.
4. The appellant filed a complaint against the first respondent under Section 138 of the Negotiable Instruments Act alleging that the husband of the first respondent borrowed an amount of Rs.4 lakhs from him under a promissory note, the first respondent in discharge of the said loan, borrowed by her husband issued a cheque on 30.10.2003, the said cheque was presented by the appellant in the bank for collection on 18.11.2003 and it was dis-honoured on the ground of insufficient funds in the account of the first respondent. Thereafter, the appellant issued notice under Section 138 of the Negotiable Instruments Act calling upon the first respondent to pay the cheque amount, but the first respondent neither paid the amount nor did she give any reply. The appellant then filed a case under Section 138 of the Act.
5. In the course of the trial before the learned Magistrate, the appellant/complainant examined himself as PW-1 and examined the Branch Manager of State Bank of Hyderabad, Tandur Branch as PW-2 and marked Exs:P-1 to P-7. The first respondent/accused Smt.P.Anjalibai examined herself as DW-1 and marked Exs:D-1 and D-2. The learned trial Court held that the appellant failed to discharge his initial burden as to the existence of legally enforceable debt or liability and also that the first respondent could be able to rebut the presumption if any in favour of the appellant under Section 139 of the Act, acquitted her of the offence under Section 138 of the Negotiable Instruments Act.
6. Challenging the said order of acquittal, the present appeal is filed by the appellant/complainant.
7. For recording the acquittal, the learned Magistrate took into consideration the following facts and circumstances viz. that even though allegedly the husband of the first respondent borrowed an amount of Rs.4 lakhs under promissory note, the appellant failed to produce the said promissory note and also failed to produce the books of account showing the existence of the said debt, the appellant was not specific as to whether the cheque was issued by the first respondent as a guarantor for the loan borrowed by her husband or whether the cheque was issued as security for the loan obtained by her husband and also that the first respondent issued Ex.D-2 notice to the appellant through the authorities of her bank calling upon the appellant to return the blank cheque which was obtained by him as security for the loan and not to present the said cheque for collection and further that the attestors of the said promissory note were also not examined by the appellant.
8. The crucial aspect requires to be noticed is that in the prayer portion of the complaint-petition the appellant stated that the cheque was issued by the first respondent as a guarantor of the loan obtained by her husband, whereas in the cross-examination she admitted that the cheque Ex.P-1 was issued as security for the loan obtained by her husband. Thus, there are two contradictory versions of the appellant/complainant. If really, the cheque was issued as a security for the loan borrowed by her husband, she cannot certainly be prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. Whereas, if as a guarantor under the promissory note, she issued a cheque, she can be prosecuted for the said offence. Admittedly, the cheque was presented
