THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL Nos.540 & 549 of 2018

COMMON JUDGMENT:

Crl.A.No.540 of 2018 is filed by the appellant challenging the judgment dated 18.04.2017 passed in C.C.No.183 of 2015 by the learned XXIII Special Magistrate at Erramanzil, Hyderabad (Old C.C.No.142 of 2018) on the file of the learned XXII Special Magistrate, Hyderabad acquitting the respondent No.2 - accused for the offence under Section 138 of the Negotiable Instruments Act (for short "NI"

Act).

2. Crl.A.No.549 of 2018 is filed by the appellant challenging the judgment dated 18.04.2017 passed in C.C.No.184 of 2015 on the file of the learned XXIII Special Magistrate at Erramanzil, Hyderabad (Old C.C.No.143 of 2018) on the file of the learned XXII Special Magistrate, Hyderabad acquitting the respondent No.2 - accused for the offence punishable under Section 138 of the NI Act.

3. The facts of the case in brief are that the complainant is doing real estate business and had acquaintance with the accused for the past five years. The accused and her husband used to avail hand loans from the complainant on various dates and amounts. In pursuance of the same, the accused approached the complainant on

02.07.2014 & 20.07.2014 requesting the complainant for advance of Rs.50,000/- and Rs.5,00,000/- respectively towards hand loan to meet her urgent business and domestic requirements and promised to repay the same within two months. On her request, the complainant advanced the respective amounts on the requested dates. After completion of requested period of two months, the complainant approached the accused i.e. on 02.09.2014 and 20.09.2014. The accused issued cheques bearing Nos.013938, dated 05.09.2014 & 004777, dated 25.09.2014 for Rs.50,000/- and Rs.5,00,000/- respectively. The accused assured that the cheques will be honored on presentation and there are sufficient funds in her account. The complainant presented both the cheques in her account at ICICI Bank, Chaitanyapuri Branch for encashment on 29.10.2014, but the cheque for Rs.50,000/- was dishonored under cheque return memo vide endorsement “funds insufficient” on the same day and the cheque for Rs.5,00,000/- was dishonored under cheque return memo on 31.10.2014 vide endorsement “account closed”. Immediately, the complainant contacted the accused to pay the amount, but she gave evasive reply. As such, the complainant got issued legal notice dated 18.11.2014 demanding the accused to pay the amounts covered under the above cheques within 15 days from the date of receipt of the legal notice. The same was received by the accused on 20.11.2014. But the complainant did not receive any acknowledgment nor any reply from the accused. As such, the complainant filed a complainant against the accused for committing an offence under Section 138 of NI Act and prayed for award of compensation under Section 357 of Cr.P.C.

4. The learned XXIII Special Magistrate, Hyderabad took cognizance of the case against the accused for the offence under Section 138 of NI Act and was examined under Section 251 Cr.P.C.

5. The complainant himself examined as PW.1. Exs.P1 to P6 are marked on his behalf. Exs.P1 are the cheques issued by the accused in favor of the complainant. Exs.P2 are the cheque return memos, Ex.P3 is the copy of the legal notice, dated 18.11.2014, Ex.P4 is the receipt dated 19.11.2014. No witnesses are examined on behalf of the accused. Ex.D1, a copy of plaint filed by the complainant and his wife, marked in cross-examination of PW.1.

6. The trial court, upon considering the evidence acquitted the accused mainly on the grounds that:

(a) The cheque was filled up by the complainant and not by the accused.

(b) Acknowledgment of service of notice (Ex.P3) was not filed and therefore service of notice was not proved, and (c) Existence of prior disputes between the parties created doubt about advancing of loan amounts.

7. Learned counsel for the appellant / complainant submits that the trial court has committed a