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ANDHRA PRADESH HIGH COURT
R. Kantha Rao, J.
G. Ashok Kumar Goud —Appellant
versus
P. Anjili Bai and Anr. —Respondents
Cri A. No. 162 of 2006
Decided on 23.1.2012
Counsel for the Parties:
For the Appellant:Mr. N. Vasudeva Reddy, Advocate.
For the Respondent No. 1:Mr. B. Vijaysen Reddy, Advocate.
For the Respondent No.2.: Public Prosecutor.
IMPORTANT POINT
Presumption under Section 139 of the NI Act in favour of complainant needed not be rebutted by accused by adducing positive evidence and standard of proof required at that of preponderance of probability.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 139—Dishonour of cheque—Appeal against judgment of acquittal—Respondent No.1 who alleged to have issued cheque in discharge of loan of Rs.4,00,000 taken by her husband from complainant—Trial Court found that appellant failed to discharge his initial burden as to existence of legally enforceable debt and respondent had rebutted the presumption—Complaint averments were that cheque was issued by respondent as a guarantor of loan obtained by her husband but in cross-examination he stated that cheque was issued as security for loan—Complainant failed to produce promissory note—Respondent had specifically denied the loan in question—Presumption under Section 139 of the Act could be rebutted only by preponderance of probabilities—Acquittal was not liable to be interfered.
Result: Appeal dismissed.
JUDGMENT
R. Kantha Rao, J.—This criminal appeal is preferred against the judgment dated 18.1.2006 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. 4,00,000 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 dishonoured ‘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 PW1 and examined the Branch Manager of State Bank of Hyderabad, Tandur Branch as PW2 and marked Exs. P1 to P7. The first respondent/accused Smt. P. Anjalibai examined herself as DW1 and marked Exs. D1 and D2. 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.D2 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 attesters 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.P1 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, th
