THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.35 OF 2015

JUDGMENT:

This appeal is preferred by the appellants/accused against the judgment dated 21.01.2015 passed in Crl.A.No.117 of 2013 on the file of the learned XI Additional District and Sessions Judge (FTC), L.B.Nagar, Ranga Reddy District (for short, the appellant Court’) wherein and whereunder the learned appellate Court convicted the accused and sentenced him to undergo simple imprisonment for 1 year and payment of compensation of Rs.2,50,000/- by reversing the judgment dated 07.01.2013 passed by the learned IX Special Magistrate, Hasthinapuram, Ranga Reddy District (for short, ‘the trial Court’) in C.C.No.2 of

2011.

2. For the sake of convenience, the parties hereinafter referred as arrayed in C.C.

3. The brief facts of the case are that the accused is a good friend of complainant, and he used to take hand loans from complainant occasionally. Due to the existed cordiality, considering the request of accused to meet his personal needs, upon his promising to repay within three months, the complainant lent Rs.1,65,000/- to the accused in the first week of April, 2006. In the first week of July, 2006 the complainant demanded repayment. At that time, the accused requested the complainant to grant three months for repayment. Therefore, in the first week of October, 2006 when he demanded repayment the accused gave him two cheques bearing Nos.963010, dated 14.11.2006 and 653767, dated 27.11.2006 drawn on Canara Bank, Vanasthalipuram Branch and Andhra Bank, Dilsukhnagar Branch for Rs.55,000/- and Rs.1,10,000/-, for total due of Rs.1,65,000/-. When the complainant presented the said cheques for encashment, they were dishonoured on the ground that “Insufficient Funds”. In spite of the complainant bringing it to the notice of accused, the accused left a deaf ear. Therefore, the complainant got issued statutory legal notice on 19.12.2006 demanding payment of cheque amounts, and it was served on accused on 23.12.2006 and for this the accused gave reply with false pleas only to avoid his liability and therefore, the accused committed an offence under Section 138 of the Negotiable Instruments Act.

4. The learned III Metropolitan Magistrate Court, Cyberabad at L.B.Nagar took the complaint on file after recording the sworn statement of complainant against the accused and issued summons after registering it as C.C.No.140 of 2007. Subsequently, the case was transferred and renumbered as C.C.No.2 of 2011.

5. The complainant deposed himself as PW.1 and got marked Exs.P1 to P8. On behalf of defence, the accused himself has deposed as DW.1 and relied on the evidence of DW.2 and got marked Ex.D1 to D3.

6. After hearing the parties on both sides and considering the evidence on record, the trial Court found the accused not guilty for the offence punishable under Section 138 of the N.I. Act and acquitted for the said offence under Section 255 (1) of Cr.P.C. Aggrieved by the same, the complainant preferred Crl.A.No.117 of

2013 before the learned appellate Court.

7. Upon hearing the oral and documentary evidence on record, the appellate Court has allowed the appeal under Section 386 b (i) Cr.P.C, reversing the judgment dated 07.01.2013 passed by the learned trail Court in C.C.No.2 of 2011. The relevant portion reads as under:

“18. The case on hand there is no evidence to show that by the 1^st week of April, 2006, accused and his wife either committed default in payment of any amount or they were proved to be not in the sound position. Except proving that they owed about Rs.6,00,000/- to the complainant by then, there is no evidence of act of default or act of insolvency committed by the accused by that date. In view of the acquaintance with accused since not less than 2 years the complainant might have had confidence on accused. So it cannot be said that the claim of complainant to have lent money to the accused is not believable. As such the aforesaid decision does not apply to the fact of t