THE HON'BLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.1302 OF 2018

JUDGMENT:

This Criminal Appeal is filed by the defacto complainant assailing the judgment in C.C.No.91 of 2015 dated 15.06.2015 passed by the Special Magistrate, Cyberabad at Kukatpally acquitting the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act (for brevity ‘the Act’).

2. For the sake of convenience, the parties hereinafter will be referred to as arrayed in the trial Court.

3. Briefly, the case of the defacto complainant is that he has filed complaint under Section 138 of the Act against the accused alleging that he got acquaintance with the accused. Out of such acquaintance, the accused requested to advance hand loan of Rs.5.00 lakhs to meet his domestic needs. The defacto complainant paid the said amount in cash and the accused executed promissory note dated 11.12.2013 for Rs.5,00,000/- and assured to repay the same with interest at 2% per month. The accused also acknowledged the receipt of the amount on the said date. When the defacto complainant demanded to repay the said amount, the accused issued cheque bearing No.614548 dated 04.11.2014 for Rs.5.00 lakhs drawn on SBI, Balanagar Branch, Hyderabad, in favour of the defacto complainant towards part payment of legally enforceable debt. When the defacto complainant presented the said cheque on 08.11.2014 for clearance in Andhra Bank,, the same was returned with an endorsement ‘INSUFFICIENT FUNDS’. Therefter, defacto complainant issued legal notice dated 05.12.2014 to the accused, but the same was unclaimed by the defacto complainant, as such, the present complaint has been filed for the offence under Section 138 of the Act.

4. In order to prove his case, the defacto complainant examined himself as P.W.1 and got marked Exs.P1 to P6. On behalf of the defence, the accused examined himself as D.W.1 and also examined D.Ws.2 to 6 and got marked Exs.D1 to D16.

5. The learned trial Court, after considering both oral and documentary evidence adduced on either side, acquitted the accused for the offence under Section 138 of the Act vide judgment in C.C.No.91 of 2015 dated 15.06.2015 on the following grounds:

i) Disbelief of P.W.1’s Evidence by the trial Court– Alibi of Accused:

a) P.W.1/defacto complainant claims that he paid Rs.

5.00 lakhs to the accused on 11.12.2013, and the accused executed Ex.P1: Promissory note and Ex.P2: Cheque bearing No.614548 dated 04.11.2014.

b) The trial court disbelieved this evidence due to the alibi presented by the accused (D.W.1), who claimed he was on a Sabarimala pilgrimage from 08.11.2013 to 17.12.2013. This alibi was corroborated by D.Ws.2 to 6, lending credence to the defense that the accused could not have executed any documents or received any loan on

11.12.2013.

ii) Prior Settlement Acknowledged – No New Legally Enforceable Debt:

The defacto complainant admitted that the accused had already repaid Rs. 10.00 lakhs with interest as a full and final settlement of a 2008 loan of Rs. 5.00 lakhs. The complainant failed to prove that the alleged Rs. 5.00 lakhs loan in 2013 was actually lent and supported by a legally enforceable debt, as required under the Negotiable Instruments Act, 1881 (Section 138).

iii) Strong Alibi and Video Evidence (Ex.D14): Ex.D14 (a CD video recording) and evidence of D.W.6 confirm the accused’s participation in the Ayyappa Padayatra, reinforcing the claim that the accused was not present in Hyderabad on 11.12.2013, when the alleged transaction took place.

iv) Failure to Establish Legally Enforceable Debt:

a) Under Section 138 of the Negotiable Instruments

Act, prosecution must prove that the cheque was issued in

discharge of a legally enforceable debt.

b) Since the alleged loan on 11.12.2013 is not proved, and the earlier loan was already settled, the core element of Section 138 is not satisfied.

v) Credibility of Defense and Alibi:

a. The accused’s alibi is convincingly established with both oral and documentary evidence.

b. The