IN THE HIGH COURT OF ANDHRA PRADESH AT WEDNESDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT honourable SRI JUSTICE K. SREENIVASA CRIMINAL APPEAL NO: 725 OF 9nn« AMARAVA REDDY Appeal under Section 378(4) of Cr.P.C 07-01-2008 passed in CC.No.241 of 2005 Chief Metropolitan Magistrate, Vijayawada. Between: Ch.Koteswara Rao Vijayawada. against the Judgment dated on the file of the Court of the S/o.Subbaiah, aged 51 years, R/o.Bhavanipuram ■..Complainant/Appellant AND 1- The State of A.P, through its Public Amaravati. 2. Attaluri Harinadha Babu @ Bujji, R/o.D.No.5-210, Ayyanki Village District. Prosecutor, High Court of A.P. at S/o.Seetharamaiah, aged 45 and Post, Movva Mandal, Krishna years. ...Respondent/Accused Counsel for the Appellant; Sri V.Subrahmanyam Counsel for Respondent No.1 Counsel for Respondent No.2 The Court made the following Assistant Public Prosecutor Sri Gopala Rao ChllakalapudI THE HON’BLE SRI JUSTICE K. SREENIVASA REDDY 1 Criminal Appeal No.725 of 2008 JUDGMENT: This Criminal Appeal is preferred by the complainant against the Judgment dated 07.01.2008 passed in CC No.241 of 2005 by the learned Chief Metropolitan Magistrate, Vijayawada whereby and whereunder respondent No.2 herein/Accused was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Nl Act’), accordingly, he was acquitted of the said offence. 2. Case of the complainant, briefly, is as follows. The accused borrowed an amount of Rs.2,50,000/- from the complainant for his necessities and executed a promissory note in his favour agreeing to repay the same with interest @ 24% per annum. After repeated demands, the accused issued a cheque No.808988 dated 08.01.2005 drawn on Andhra Bank, Pamarru branch, Krishna district, for Rs.2,00,000/- towards part payment of the debt due under the aforesaid promissory note. When the said cheque as presented for collection through Andhra Bank, Special Agricultural Finance Branch, Vijayawada, the same 2 SRK J CrlANo.725 of 2008 was returned unpaid with endorsement 'funds insufficient' 15.01.2005, After issuing the statutory notice, as the accused did not pay the amount covered under the dishonoured on cheque, the complaint was lodged by the appellant/complainant. 3. The said complaint was taken on file 2005 by the learned Chief Metropolitan for the offence punishable under Section as C.C.No.241 of Magistrate, Vijayawada 138 of the Nl Act. 4. On appearance of the documents as contemplated under Section examined under Section 251 Cr.P.C. when read over and explained to him i of the offence and claimed to be tried. accused, after furnishing copies of 207 Cr.P.C., he was He denied the allegations, in Telugu, pleaded not guilty 5. On behalf of the complainant, he himself PW.1 and Exs.P1 to P7 were got marked. was examined as 6. After closure of the complainant’s evidence, the accused was examined under Section 313 CrPC incriminating material found complainant, for which he denied. D.W.1 was examined and Exs.DI to D3 explaining the against him in the evidence of On behalf of the accused were got marked. r 3 SRK, J Crl.A.No.725 of 2008 The learned Magistrate, upon appreciation of entire oral and documentary evidence on record, found the accused not guilty of the offence under Section 138 of the Nl Act and, accordingly, acquitted him, vide impugned judgment dated 07.01.2008 on the ground that the complainant failed to prove the legally enforceable debt under Exs.P1 and P2. Aggrieved by the said judgment passed by the learned Magistrate, the complainant preferred the present Criminal Appeal. 7. 8. Learned counsel for the appellant contended that from the oral evidence of P.W.1, coupled with the documents filed Exs.P1 to P7, the complainant established the legally enforceable debt payable by the accused, and the accused failed to rebut the presumptions, as such, the trial Court erred in acquitting the accused of the offence under Section 138 of the Nl Act. Hence, he prays to set aside the impugned judgment and convict the accused of the said offence. 9. On the other hand, learned counsel for respondent No.2/ accused contended that the accused successfully rebutted the presumption and is able to establish that there is no legally enforceable debt or liability, by eliciting the same from cross- 4 SRK, J Crl.A.No.725 of 2008 examination of P.W.1 that P.W.1 filled Ex.P2-cheque consent of the accused, and acquitted the accused and there the impugned judgment. without as such, the trial Court rightly are no grounds to interfere with 10. This is an appeal against an Order of acquittal. There i presumption available under law that IS a an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the though this Court has full appeals against acquittal, power to re-appreciate the evidence, at the same time, it would be slow in interfering with the order of acquittal because presumption available under law is further strengthened by the order of acquittal. Unless there substantial or compelling are reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given any perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then taken into consideration 5 SRK, J Crl.A.No.725 of 2008 also it can be said to be a compelling reason to interfere with the same. 11. On this aspect, it is pertinent to refer to a decision in Harbans Singh & another v. the State of Punjab\ wherein it was held as follows: (para 8) “The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on ‘compelling and substantial reasons’ and has expressed the view that unless such reasons are present in an Appeal, Court should not interfere with an order of acquittal (Vide Suraj Pal Singh v. The State, 1952 SCR 193: (AIR 1952 SC 52); Ajmer Singh v. State of Punjab, 1953 SCR 418: (AIR 1953 SC 459). The use of the words, ‘compelling reasons’ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had, meant by the words ‘compelling reasons’. In later years the Court has often avoided emphasis on ‘compelling reasons’ but nonetheless adhered to the view expressed earlier that AIR 1962 SC 439 6 SRK, J Crl.A.No.725 of 2008 before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. 12. It is the case of the appellant/complainant that the issued Ex.P2-cheque for discharge of the accused amount borrowed by promissory note, and when the said cheque him under Ex.P1- was presented. it was dishonoued with endorsement ‘funds insufficient', and after issuing statutory notice, as the accused failed to pay the amount covered under the dishonoured cheque. It is the defence of the the present complaint was lodged, accused that he neither borrowed any amount nor executed Ex. PI-promissory note nor issued Ex.P2-cheque complainant, and there in favour of the are material alterations in the subject cheque and that the cheque book, from which Ex.P2-cheque leaf was issued, was not in operation since 2002 and as such there is no legally enforceable debt or liability. P.W.1, in his evidence 13. reiterated the averments in the complaint. In cross-examination of P.W.1 no suggestion has 7 SRK, J Crl,A.No.725 of 2008 been put to him that the accused did not issue Ex.P2-cheque for discharge of debt under Ex.P1. Therefore, the presumption under Section 118 of the Nl Act can be drawn in favour of the appellant/complainant. However, it is a rebuttable presumption. The accused can rebut the presumption either by eliciting the same in cross-examination of P.W.1 or by adducing independent evidence. The accused examined D.W.1-Branch Manager of Andhra Bank, Pamarru branch, on his behalf. From the evidence of D.W.1, it is clear that the accused is an account holder of the said bank and when the subject cheque was presented, it was dishonoured. 14. It is the contention of the learned counsel for the accused that the writing on the subject cheque does not belong to the accused and a blank cheque was obtained by the complainant and thereafter it was filled up by the complainant to suit his convenience without the consent of the accused, and that a blank cheque cannot be enforced even in respect of a legally enforceable debt or liability. In support of his contention, he relied on a decision in Avon Organics Limited v. Poineer Products 8 SRK, J Crl,A.No.725 of 2008 Limited & others, 2003 (2) ALD (CRL ) 219 (AP), wherein it is held thus: “Whenever blank cheques are filled up and presented, a presumption can be drawn under Section 139 of the Act. It a rebuttable presumption. The question is whether the accused is able to rebut the considered view that he has rebutted the IS presumption. I am of the presumption in this case as he has not given consent to fill up the cheque for a particular amount in figures and words and the date It constitutes alteration of the cheque. It cannot be done portion. without the consent of the party who issued the cheque. I also state that it was issued for the legally enforceable liability, namely, towards the amount due under the invoices. But the instrument issued without mentioning the figures and words and date portion in the cheque do not amount a cheque or a bill of exchange at the time of its issuing. Subsequently, it can be altered only with the consent of the party, who has issued the cheque. Otherwise, it amounts to material alteration. When it does not constitute a cheque and the same is filled up and presented to the bank, it cannot be said that the accused has committed an offence. No doubt, morally the accused is not justified in issuing the cheque, when he is not having sufficient funds in the bank. But, the legality has to be judged in this case. The person who accepts the blank cheque certainly has to take it along with the risks to be faced under law. It is not open to him to complain subsequently when the amount has not been realised, etc. I am of considered view that the cheque issued without mentioning the amount for which it is drawn is not a 9 SRK, J Crl.A.No.725 of 2008 cheque at all. It is not a bill of exchange at all as it is not drawn for a certain amount. When such is the thing, the question of invoking Section 138 of the Act does not arise. May be there is lacuna in Section 138 of the Act. It cannot be said that it covers invalid cheques also. Such interpretation cannot be put on to it. It is for the Legislature to look at the lacuna found. The lower court has elaborately discussed and ultimately come to the conclusion that the complainant failed to establish the relevant ingredients that are to be established under Section 138 of the Act. The relevant ingredients that have to be established have an already been mentioned by the Supreme Court in the decision in Kusum Ingots and Alloys Ltd. V. Pennar Peterson Securities Ltd. If the facts are judged, I am of the considered view that the learned magistrate has rightly come to the conclusion that the ingredients under Section 138 of the Act are not established. In that view of the matter, there is no perversity in the judgment under appeal. The judgment rendered by the learned magistrate in C. C. No. 858 of 1997 is liable to be confirmed and it is, accordingly, confirmed. 10. The criminal appeal is, accordingly, dismissed. 15. It is evident from the evidence of P.W.1 that he admitted in cross-examination that writing in Ex.P2 does not belong to the accused. Ex.P2 contains different writings and different ink was used therefor. Since Ex.P2 is in possession of P.W.1, it is for him to explain reason therefor. No explanation is offered by P.W.1 as 10 SRK, J Crl.A.No.725 of 2008 to for what purpose Ex.P2 cheque was filled up without consent of the accused. In the absence of the said explanation and in the light of admission of P.W.1 that writing in Ex.P2 does not belong to the accused, it can be inferred that PW.1 obtained blank cheque and thereafter filled up contents thereof without consent or knowledge of the accused. In view of the above, it can be held that the accused rebutted the presumption under Section 118 of the Nl Act, as he did not give consent to fill up the cheque for a particular amount in figures and words and also the date portion. Therefore, the learned Magistrate rightly conclusion that there is came to a no legally enforceable debt and accordingly acquitted the accused of the aforesaid offence, impugned judgment passed by the learned Magistrate i correct lines and there are no compelling or substantial reasons to interfere with the Order of acquittal passed by the trial Court. The Criminal Appeal is devoid of merit and the same is liable to be dismissed. The IS on 16. Accordingly, the Criminal Appeal is dismissed, confirming the Judgment dated 07.01.2008 passed in CC No.241 of 2005 by the learned Chief Metropolitan Magistrate, Vijayawada. 11 SRK, J Crl.A.No.725 of 2008 As a sequel thereto, the pending in this Criminal Appeai, shail misceilaneous petitions, if Stand closed. any, Sd/- S.V.S.R.IVIURTHY JOINT REGISTRAR //TRUE COPY// To, SEctr OFFICER 1- The Chief Metropolitan Magistrate records) 2. One CC to Sri V.Subrahmanyam 3. One CC to Sri Gopala Rao 4. Two CC's to the Public Amaravati [OUT] 5. The Section Officer, Criminal Amaravati 6. Three CD Copies Vijayawada, Krishna District. (With Advocate [OPUCJ Chilakalapudi, Advocate [OPUC] Prosecutor, High Court of Andhra Pradesh at Section, High Court of Andhra Pradesh at BSV sree HIGH COURT DATED:30/04/2025 JUDGMENT CRLA.No.725 of 2008 ANDBg: i 11JUN 202$ o ml Oili DISMISSING THE CRIMINAL APPEAL