In a Section 138 NI Act case, the complainant must prove the existence of a legally enforceable debt; failure to do so results in acquittal.

JUDGMENT:

This Criminal Appeal is preferred by the complainant against the Judgment dated 30.04.2008 passed in CC No.7 of 2007 (old CC No.612 of 2006) by the learned Judicial Magistrate of First Class, Special Mobile Court, Eluru, whereby and whereunder respondent No.1 herein /Accused was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the NI Act‟), accordingly, he was acquitted of the said offence.

2. Case of the complainant, briefly, is as follows.

i) The accused borrowed a sum of Rs.1,25,000/- on 12.12.2004 from the complainant to meet his family expenses, for lorry business and for running mess, agreeing to repay the same with interest @ 24% p.a. by executing a promissory note. Thereafter, he failed to repay the same as promised. On repeated demands by the complainant, the accused gave cheque bearing No.609811, dated 27.10.2005, drawn on Lakshmi Vilas Bank, Eluru, for an amount of Rs.1,17,000/- towards part satisfaction of the debt. When the complainant presented the said cheque in his bank account in Andhra Bank, it was returned dishonoured as “funds insufficient”. Then, a legal notice dated 18.11.2005 was caused on the accused informing him about the dishonor of cheque and calling upon him to make payment. Having received the said notice, the accused did not come forward to give any reply notice nor make any repayment. As such, the present complaint has been filed.

3. Originally, the said complaint was taken on file by the learned II Additional Judicial Magistrate of First Class, Eluru, and numbered as CC No.612 of 2006. Subsequently, the said case was transferred to the Court of the Judicial Magistrate of First Class, Special Mobile Court, Eluru and renumbered as CC No.7 of 2007.

4. On appearance of the accused, after furnishing copies of documents as contemplated under Section 207 Cr.P.C., he was examined under Section 251 Cr.P.C. He denied the allegations, when read over and explained to him in Telugu, pleaded not guilty of the offence and claimed to be tried.

5. On behalf of the complainant, PWs.1 and 2 were examined and got marked Exs.P1 to P6.

6. After closure of the complainant's evidence, the accused was examined under Section 313 Cr.P.C., explaining the incriminating material found against him in the evidence of complainant's witnesses, for which he denied and reported no defence evidence on his behalf.

7. The learned Magistrate, on appreciation of entire oral and documentary evidence on record, found the accused not guilty of the offence under Section 138 of the NI Act and, accordingly, acquitted him, vide impugned judgment dated 30.04.2008 on the grounds that the complainant failed to establish his initial burden of proving the debt and that the cheque Ex.P2 was not issued towards discharge of the debt covered by the promissory note. Aggrieved by the said judgment passed by the learned Magistrate, the complainant has preferred the present Criminal Appeal.

8. The matter was being adjourned from time to time i.e. for the past two years, for service of notice on respondent No.1/accused. Today, when the matter came up for hearing, learned counsel appearing on behalf of the appellant/complainant submitted that he is not in a position to secure the whereabouts of respondent No.1/accused and serve notice on him.

9. In that view of the matter, this Court is proceeding to dispose of the Criminal Appeal basing on the evidence available on record.

10. This is an appeal against an Order of acquittal. There is a presumption available under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with the order of acquittal because presumption available under law is further strengthened by th