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2005(2) Bankmann 455
ANDHRA PRADESH HIGH COURT
Dr. G. Yethirajulu, J.
Gorantia Venkateswara Rao — Petitioner
versus
Kolla Veera Raghava Rao
and another — Respondents
Criminal Appeal No. 1581 of 1999
Crminal Revision No. 312 of 1999
Decided on 7-10-205
(ii) Negotiable Instruments act, 1881—Section 138—Dishonour of cheque—Complaint—Legally enforceable debt—Non-filing of civil suit for recovery—Effect—Mere non-fling of suit by itself not a circumstance leading to a conclusion that there was no legally enforceable debt.
Facts of the case :
(A)Present appeal is preferred by the complainant against the order of acquittal of the accused. The accused alleged to have borrowed Rs. 60,000/- from the complainant and thereby executed a promissory note in favour of the complainant. The accused failed to repay the amount to the complainant. Therefore, the complainant got issued a legal notice upon which the accused issued a cheque. On presentation the said cheque was returned with an endorsement ‘account closed’. A complaint was filed after fulfilling the required formalities under the N.I. Act. The trial Court allowed the complaint. However on appeal, the conviction of the accused was set-aside.
(B) The accused concentrated on the issue that there was no legally enforceable debt that he did not issue Ex-P1, cheque for discharge of the debt that the promissory note as well as the cheque were obtained blank as security for the amount of Rs. 5,000/- by him from ‘S F C G’ which was managed by the complainant and the com-plainant is a professional money lender.
(C)The accused did not explain whether there was any practice of the complainant obtaining blank signed promissory notes, blank signed cheques and blank signed papers on the earlier transactions also and what were the compelling circumstances, which made him to sign so many blank papers. The accused did not elicit any information from the prosecution witnesses to prove on what date he discharged the debt and in whose presence he paid the amount to the complainant. In absence of any proof, it cannot be said that accused is not liable to pay the amount due under demand pronote. The plea raised in respect type-written cheque is untenable. The body of the cheque need not necessarily be written by the accused and it can be in the handwritting
of anybody else or typed, so
long as the accused do not dispute the genuineness of the cheque. Impugned order of Sessions Court is liable to bet set-aside.
Result: Appellant allowed.
Dr. G. Yethirajulu, J.—The complainant and the accused are same in both the cases. Both the cases relate to the transactions of a cheque, therefore, the appeal as well as the revision petition are clubbed and this common Judgment is delivered.
Crl. Appeal No. 1581 of 1999
2. Criminal Appeal No. 1581 of 1999 is preferred by the complainant in C.C. No. 1 of 1995 on the file of the V Additional Munsif Magistrate, Guntur. The appellant filed a private complaint against the first respondent (accused) for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) The learned Magistrate after consideration the evidence adduced by the complainant found the accused guilty of the offence, convicted and sentenced him to undergo rigorous imprisonment for one year for the offence under Section 138 of the Act, through Judgment dated 9-1-1997. The accused, being aggrieved by the conviction and the sentence imposed by the learned Magistrate, preferred Criminal Appeal No. 12 of 1997 on the file of the 1 Additional Sessions Judge, Guntur. The learned Sessions Judge, through Judgment dated 23-7-1999, set aside the conviction and the sentence imposed by the learned Magistrate for the offence under Section 138 read with 142 of the Act and allowed the appeal. The complainant, being aggrieved by the Judgment of the learned Sessions Judge, preferred this appeal challenging its validity and legality.
3. The case of prosecution leading to the complainant preferring this appeal is briefly as follows.
4. On 5-6-1992 the accused borrowed Rs. 60,000/- from the complainant for purchase of a house site and executed a demand promissory note in his favour agreeing to repay the same with interest at the rate of 24% per annum either to him or his Order on demand. The accused failed to repay the amount to the complainant despite repeated demands and also failed to give reply to the legal notice dated 17-5-1994. Subsequenlty, the accused gave a crossed cheque for Rs. 90,000/- on 10-11-1994. in favour of the complainant drawn on Vysya Bank Limited, Arundelpet, Guntur, towards part payment of the debt. The complainant presented the said cheques to Vysya Bank Limited, Arundelpet, Guntur, through his Banker, State Bank of Hyderabad, Kothapet Branch, Guntur, and it was returned with an endorsement ‘account closed’. The complainant issued a notice to the ‘accused on 24-11-1994 intimating the dishonour of cheques and demanding payment of the amount due to him. The accused having received the notice gave a false reply. The accused without keeping the funds in his account issued Ex. P-1 cheque in favour of the complainant and cheated him, therefore, the accused is liable for punishment under Section 138 of the Act.
5. The accused took a defence that he borrowed Rs. 5,000/- only from Southern Finance Company, Guntur in the year 1991. The said company being managed by the complainant obtained his signatures on blank promissory notes, blank papers and two blank cheques as collateral security for payment of the amount of Rs. 5,000/- and kept them in the custody of the complainant. The said amount of Rs. 5,000/- was paid by the complainant to him after getting the cheque for an amount of Rs. 12,000/- encashed from the banker of the complainant and took away the balance amount of Rs. 7,000/- to give an impression that the accused drew Rs.
12,000/- by way of cheque. The accused repaid the entire amount due to the said Southern Finance Company, Guntur, together with interest, as agreed and demanded for return of the blank promissory notes, one blank paper and two blank cheques. Though the complainant promised to return, failed to do so. The complainant taking advantage of the possession of the blank promissory notes, blank paper and two blank cheques, created Ex. P-1 cheque bearing No. 0697889 and managed to get an endorsement ‘account closed’ and filed a complaint with a view to cause wrongful loss to the accused and to have wrongful g
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