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2004 (4) Crimes 295
Andhra Pradesh High Court
K.C. Bhanu, J.
Rotakonda Raghu Naidu —Appellant
versus
Kolla S. Prasad —Respondent
Criminal Appeal No. 52 of 2000
Decided on 14-8-2003
Important Point
Section 139 Negotiable Instruments Act incorporates a rule of presumption that until contrary is proved the holder of cheques received the cheque for discharge in whole or in part of any debt or liability.
Headnote:Negotiable Instruments Act, 1881 — Sections 138 and 139 — Respondent-accused issued a cheque for Rs. 1 lakh towards repayment of loan taken from complainant and cheque bounced — Prosecution — Acquittal by trial Court holding that complainant did not possess money lending licence and amount lent was not a legally recoverable debt and that two other cheques and promissory notes with cheque in question and promissory note were in one hand writing — Appeal — Rule of presumption — It was for accused to rebut presumption of cheque issued against consideration — Accused failed to discharge the onus — Isolated transaction of money lending would not attract definition of money lending — Accused was liable to be convicted — Prayer for lenient view as financial capacity of accused was not good — Sentence of fine of Rs. 5,000/- in default to undergo six months imprisonment would meet ends of justice. (Paras 5, 10, 13 to 16)
Result: Appeal allowed.
JUDGMENT
K.C. Bhanu, J.— The de facto complainant in C.C. No. 546/1998 on the file of XXIII Metropolitan Magistrate, Hyderabad, filed this appeal, aggrieved by the judgment, dated 10.11.1999, of acquittal of 1st respondent-accused.
2. The appellant filed a private complaint under Sections 138, 141 and 142 of the Negotiable Instruments Act (for short, ‘the Act’) alleging that he got acquaintance with the accused through Mr. Satish Kumar. The accused approached him for a loan of Rs. 1,00,000/- for his business needs with a promise to repay the amount on demand within six months. Accordingly, he paid Rs. 1 lakh on 12.1.1997 with interest at 18% per annum. The accused duly executed a promissory note and issued a cheque bearing No. 204675, dated 25.9.1997 drawn on State Bank of India, Yellareddyguda Branch, Hyderabad, for Rs. 1,00,000/-. When the appellant presented the cheque in the Bank, it was returned, unpaid with an endorsement “funds insufficient”. Therefore, he got issued a legal notice, dated 25.10.1997. Though the accused received it he did not pay the amount nor given any reply. Therefore the complainant flied the complaint. On behalf of the complainant, P.Ws 1 and 2 were examined and Exs. P1 to P7 were marked. The accused examined D.W.1 besides examining himself as D.W.2. The Trial Court after hearing both sides and considering the evidence on record came to the conclusion that the complainant did not possess money-lending business and, therefore, the amount lent by him to the accused was not a legally recoverable debt. The Trial Court also held that the promissory notes and cheques, for the dishonour of which two more complaints were filed against the accused, and the promissory note and the cheque in this case were all written by one and the same person and the attesting witnesses in all the three cases were also one and the same, and thus blank cheques and the promissory notes were issued at one time. The Trial Court inter alia on this ground acquitted the accused by its judgment, dated 10.11.1999, challenging the legality and correctness whereof the complainant filed the present appeal.
3. Learned Counsel for the appellant contended that the accused admitted that he had issued the cheque in question and, therefore, the burden is on him to show that it was not issued for any legally enforceable debt or liability, that the appellant lent the money through Satish Kumar, that the appellant is not doing money lending business and so the Hyderabad Money Lending Act has no application to him, and that D.W.1 did not say that the cheque and the promissory note were not given to the appellant, and so the Trial Court committed a serious illegality in acquitting the accused. On the other hand, learned Counsel for the accused contended that the appellant is the employee of Surendra with whom the accused was having “Badla” transactions in which connection the accused had to pay certain amount to Surendra, that in order to discharge that debt, the accused gave blank promissory notes and cheques to Surendra as security, that the appellant making use of those promissory notes and cheques filed the present complaint though there was no legally enforceable debt or liability insofar as the accused and the appellant is concerned, that the attestors of all the promissory notes were the same, that there is no evidence on record to show that the appellant was capable of lending such huge amount to the accused, and that the alleged transaction amounts to money lending within the meaning of Hyderabad Money Lending Act and the appellant did not possess money lending licence, and so the appeal should be dismissed.
4. The complaint is filed under Section 138 of the Act. To constitute an offence incorporated in the main enacting clause of that section, three conditions have to be satisfied. They are-(1) the cheque has been presented to the Bank within a period of six months from the date on which it was drawn or within the period of its val
