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TELANGANA HIGH COURT
G. Sri Devi, J.
R. Narender – Appellant
versus
Yakamma Keloth or Kalyan and Ors. – Respondents
Criminal Appeal No.2852 of 2018
Decided on 28.4.2021
Negotiable Instruments Act, 1881 – Sections 138 and 139 – Criminal Procedure Code, 1973 – Section 378(4) – Dishonour of cheque – Appeal against acquittal – Pursuant to compromise and as per terms and conditions of compromise, accused had issued cheques towards discharge of legally enforceable debt – Appellant has failed to establish that he is sound in finance and he has bank deposit of Rs.3.00 Crores and spent it for the purpose of installation of petrol bunk by identifying land – Though complainant admits that he was an income tax assessee, but he has not shown amount spent for installation of Petroleum bunk Rs.3.00 Crores in his tax returns during that period – Doubt arises whether complainant was financially capable of spending such huge amount – In absence of any corroborative evidence, version of complainant cannot be accepted at its face value – Amount spent by complainant was not shown in his income tax returns – As such, trial Court had rightly held that it creates a doubt regarding financial position of appellant and if he really spent that much amount, there must be record for him for withdrawal of amount from his bank account and spending the same – Accused was successful to rebut presumption available to her under Section 139 of Negotiable Instruments Act – Trial Court was perfectly justified in acquitting 1st respondent/ accused – Criminal Appeal dismissed. (Paras 14, 15, 17, 19 to 22)
Result: Criminal Appeal dismissed.
JUDGMENT
G. Sri Devi, J.—The complainant preferred the present Criminal appeal under Section 378 (4) Cr.P.C. questioning the judgment, dated 12.09.2018, passed in C.C.No.87 of 2017 on the file of the Special Magistrate, Cyberabad at Hayathnagar, wherein the 1st respondent/accused was acquitted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”).
2. For the sake of convenience, the parties will hereinafter be referred to as arrayed in the C.C.
3. The facts, in brief, are as under:
4. The appellant/complainant filed a private complaint against the accused for an offence punishable under Section 138 of the Act. The allegations in the complaint would disclose that in pursuance of the compromise and settlement, both the complainant and the accused entered into a settlement agreement, dated 15.10.2016, wherein the accused had agreed to pay an amount of Rs.70.00 lakhs to the complainant towards full and final settlement and out of which the accused has paid an amount of Rs.50,000/- to the complainant towards advance and further agreed to pay the remaining amount of Rs.69,50,000/- to the complainant on or before 1st November, 2016 and that the accused had issued two cheques, both dated 01.11.2016, bearing Nos.627842 for Rs.34,50,000/- and 627844 for Rs.35,00,000/- drawn on State Bank of Hyderabad, Collectorate Complex, Nalgonda Town and District, for discharge of her legal liability to the complainant and a document was executed on 31.10.2016 in favour of the complainant requesting the complainant to present the said two cheques in the first week of November, 2016 for encashment. When the said cheques were presented by the complainant in his banker i.e., Andhra Bank, Thurkayamjal Branch, the same were dishonoured for the reason that “Payment stopped by the drawer”, vide cheque return memo dated 05.11.2016. A notice, dated 15.11.2016 came to be issued to the accused which was served on the accused on 18.11.2016. Though the accused received notice, she has not paid the cheque amount nor given any reply. Hence, the complainant filed the present complaint.
5. After recording the sworn statement of the complainant, the case was taken on file, and the summons were issued to the accused. Pursuant there to the accused appeared before the Court and was examined under Section 251 Cr.P.C., for which she denied the offence and claimed to be tried.
6. In support of his case, the complainant examined P.Ws.1 to 3 and got marked Exs.P1 to P11.
7. After closure of the complainant’s evidence, the accused was examined under Section 313 Cr.P.C. explaining the incriminating material available on record, but the same was denied by the accused. In order to prove her defence, the accused herself was examined as D.W.1 and got marked Exs.D1 to D15.
8. After analyzing the evidence available on record, the trial Court acquitted the accused. Challenging the same, the present Criminal Appeal is filed by the complainant.
9. Heard and perused the record.
10. Learned Counsel for the appellant would submit that as per the evidence of P.W.1 coupled with Exs.P1 to P6, it is evident that the cheques have been issued by the accused for an amount of Rs.69,50,000/- towards discharge of legally enforceable debt. He further submits that it is also established that the said cheques were returned, unpaid. Subsequently, the accused failed to repay the cheque amount through the demand made by the complainant. He also submits that since it is proved that Exs.P1 and P2 cheques have been signed and issued by the accused to the complainant, the trial Court shall raise a presumption to the effect that the said cheques have been issued towards discharge of legally enforceable debt. He further submits that in Rangappa v. Sri Mohan, (2010) 11 SCC 441, the Apex Court held that presumption under Section 139 of the Negotiable Instruments Act, extends towards the existence of legally enforceable debt, which means (1) the cheque
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