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HIGH COURT FOR STATE OF TELANGANA
G.SRI DEVI, J
M/S. CITIWIDE FINANCIAL SERVICES LTD. – Appellant
Versus
MRS.K.ELIJA DEVI AND THE STATE OF A.P. – Respondent
CRLRC/678/2008
In a prosecution for dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881, the complainant bears the burden of proving the existence of a legally enforceable debt on the date of the cheque, and the court has the discretion to appreciate the evidence and determine whether the defence of discharge of liability has been established.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - DISHONOUR OF CHEQUE - ESSENTIAL INGREDIENTS - BURDEN OF PROOF - DEFENCE OF DISCHARGE OF LIABILITY - APPRECIATION OF EVIDENCE - COURT'S DISCRETION
Fact of the Case:
The petitioner, a financial services company, filed a complaint against the respondent, alleging that she had availed a personal loan and issued a cheque for the outstanding amount, which was dishonoured due to insufficient funds. The respondent claimed that she had already repaid the loan amount in cash and that the cheque was not issued in discharge of any legally enforceable debt.
Finding of the Court:
The trial court acquitted the respondent, holding that the complainant had failed to prove the existence of a legally enforceable debt on the date of the cheque and that the respondent had provided sufficient evidence to support her defence of discharge of liability.
Issues: 1. Whether the complainant had discharged the burden of proving the existence of a legally enforceable debt on the date of the cheque?2. Whether the respondent had provided sufficient evidence to support her defence of discharge of liability?
Ratio Decidendi: 1. The burden of proving the existence of a legally enforceable debt on the date of the cheque lies on the complainant.2. The court has the discretion to appreciate the evidence and determine whether the defence of discharge of liability has been established.
Final Decision: The court dismissed the revision petition, upholding the trial court's acquittal of the respondent.
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD MONDAY ,THE THIRD DAY OF JANUARY TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE JUSTICE G SRI DEVI CRIMINAL REVISION CASE NO: 678 OF 2008 Criminal Revision case under Section 397 & 401 of CrPC prayingn against the Judegement, dated 11.03.2008, C.C.No. 1075/05 on the file of the Court of the Xl Addl. Chief Metropolitan Magistrate, Secunderabad.
Between:
1 M/s. Citiwide Financial Services Ltd., Having its Resistere office at 207, Diamond Tower, SD Road, Secunderabad, Rep. by its Lega Officer S.Murali Mohan Rao, I S/o Late S.Subrahmanyam, ...Petitioner/
Complainant AND .
'1 Mrs.K.Elija Devi W/o Late K.Arjun Rao, aged 48 years, Occ:Senior Accountant, o/o The Director of Accounts, Postal Dak Sadan, Abids. F/o EWS 1241 , KPHB Colony,Kukatpally, Hyderabad.
... RespondenUAccused
2. The State of A.P.,, rep. by the Public Prosecu{or, High Court of A.P. Hyderabad.
...Respondent This Petition coming on fopr hearing, upon persuing the Memorandumn of Grounds of Criminal Revision Case and upon hearing the arguments of SRI S. SRINIVAS, Advr the Petitioner and of the Public Prosecutor (TG) on behalf of the Respondent No.2 and none appeared for the Respondent No.1. The Court made the following: ORDER HONOURABLE JUSTICE G.SRI DEVI * CRIMINAL REVISION CASE No. 678 of 2008 JUDGMENT:
The present Criminal Revision Case is filed under Sections I
397 and 4O1 Cr.p.C., assailing the judgment dated 1.03.2008
1 passed in C.C. No. 1075 of 2005. By the said judgment, the learned XI Additional Chief Metropolitan Magistrate at Secunderabad found the accused not guilty of the offence under Section 38 of Negotiable Instruments Act, l gg 1 (tbr short, the Act)
and accordingly acquitted her of the said charge.
The petitioner, M/ s. CiBr.vide Financial Services Limited, filed the complaint under Section 200 Cr.p.C. alleging that the accused, respondent No. t herein, a'vailed personal loan of Rs.6,O0O/- on 12.0g.2OO2 repayable in five monthly instailments @
Rs. 1,200/- per month and issued cheques. The accused was irreguiar in paying the installments and as on 01.07.2004, the outstanding loan amount payable by the accused was Rs.S,100/_.
On O9.O7.2OO4, the accused issued Ex.p 16 cheque bearing No.
81 1555 for the said amount drawn on UTI Bank Limited, Begumpet branch.
When the said cheque was presented for realization, it was returned unpaid for want of funds. Therefore, the complainant had issued a legal notice to the accused on 21.O8.2OO4, which was returned on 06.09.2004 as the same was rntentionally unclaimed by the accused. Hence, the present complaint against the accused lor the oflence under Section 13g of the Act The learned Trial Court, after appreciating the evidence brought on record i.e., PW. 1 and Exs.p. 1 to p.25, found the --
accused not guilty of the oflence and accordingly acquitted her of the said charge.
None appears on behalf of the petitioner-complainant and the respondent No. 1. Heard the iearned Pubiic prosecutor. Since the matter pertains to 2008, this Court is constrained to dispose of the revision based on the material available on record.
While recording the order of acquittal, the learned Trial Court, at para No. 8, categorically observed as under:-
"8. In this case, the accused has not specifically produced any oral or doanmentory euidence in suppon of the defence raised. But from the cross-examinatiort of PW.1, seueral benefi.cial points haue been elicited bg the accused, uthich are amplg substantiating her cose. PWl admitted in the crossexamination in categoical terms tltat the first installment cheque u)as honoured and the complainant receiued Rs.1200/ -. Euen it is the ca.se of the complainant that tte acansed's son also issued a cheque for Rs,4000/- draun on ICICI Bank and tlre same was di^slwnoured. After ttte dbLnnour of the said cfaque i,ssued bg *e son of *E acarsed, tLe complainant also receiued case of Rs.400O/- and in total the complainant also receiued cash of Rs.6,400/- from the ac
