IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI THURSDAY, THE TENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT |o honourable SRI JUSTICE K SREENIVASA RED^^ CRIMINAL APPEAL NO- 101 OF ?nn« Appeal under Section 378(4) and (5) of Cr.P.C, being aggrieved by the Judgment dated 31-07-2007, made in STC No. 517 of 2004 on the file of the Court of the I Additional Chief Metropolitan Magistrate Between: Palaparthi Srinivas, S/o late Jagannadham, D.No. 61-7-16. Balaji Nagar, Krishna Lanka,Vijayawada V'- O . Vijayawada. aged 42 Years, Properties, R/o ...COMPLAINANT / APELLANT AND 1. The State of Andhra Pradesh A.P., Amaravati rep. by its Public Prosecutor, High Court of 2. Sri Mannem Lokanadh @ Lokanadha Rao, about 47 years.Occ: Private Service S/o Narsaiah, Hindu, aged R/o D.No 17-4-5, Vijayawada. ...RESPODENT/ACCUSED Counsel for the Appellant; SRI V.SUBRAHMANYAM Counsel for the Respondent No.1: The Court made the following: PUBLIC PROSECUTOR (AP) APHC010420372008 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THURSDAY, THE TENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE [3327] Bp PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 101/2nnfi Between: Palaparthi Srinivasa ...APPELLANT A N D The State of AP Rep By Its PP Hyd. and Others Counsel for the Appellant: 1.VSUBRAHMANYAM Counsel for the Respondent(S): 1. PUBLIC PROSECUTOR;(AP) The Court made the following: ...RESPONDENT(S) 2 SRK,J Crl,A.No.101of 2008 JUDGMENT This Criminal Appeal is pr^fprred by the complainant against the Judgment dated 31.07.2007 passed in S.T.C.No.517 of 2004 by the learned I Additional Chief Metropolitan Magistrate, Vijayawada (hereinafter referred to, as ‘the learned Magistrate’), 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’), and accordingly, he was acquitted of the said offence in terms of Section 255 (1) of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’). 2. Parties are hereinafter referred to, as they were referred before the trial Court. 3. Case of the complainant, briefly, is as follows. (a) The accused borrowed a sum of Rs. 1,50,000/- on 11.02.2004 from the complainant to meet his family expenses, and executed promissory note as collateral security, agreeing to repay the same with interest at the rate of 24% per annum as and when demanded either to complainant, or to his order, on demand. Thereafter, the accused failed to repay the same as promised. On repeated demands made by the complainant, the accused issued a 3 SRK,J Crl.A.No.101 of 2008 cheque for a sum of Rs. 1,50,000/- on 26.07.2004, drawn on Canar Bank, Gandhinagar, Vijayawada towards part payment of the amount of the debt. When the complainant presented the said cheque in his bank account for collection, it was returned dishonoured vide Memo, dated 28.07.2004 as “Account Closed”. Then, a legal notice dated 31.07.2004 was caused on the accused informing him about the dishonor of cheque and calling upon him to make payment. The accused evaded the notice sent through registered post and thereby, it was returned on 17.08.2004 as not claimed. The accused neither repaid the amount due under the promissory note nor gave reply to the unclaimed registered legal notice. Hence, the Complaint On appearance of the accused, after furnishing copies of documents as contemplated under Section 207 CrPC, he was examined under Section 251 CrPC. He denied the allegations, when 4. read over and explained to him in Telugu language, pleaded not guilty of the offence and claimed to be tried. On behalf of the complainant, the complainant 5. examined himself as P.W1 and got examined the attesting witness to Ex.P1-promissory note, as P.W2 and got exhibited Exs.P1 to P7. 4 SRK J Crl.A,No.101 of 2008 After closure of the complainant’s evidence, the accused was examined under Section 313 CrPC, explaining the incriminating evidence brought on record against him, for which he denied the same and he examined himself as D.W1 and got examined D.Ws.2 to 4, who are third-parties to the complaint proceedings, and got exhibited Exs.DI to D3 6. The learned Magistrate, on appreciation of entire oral and documentary evidence adduced by both parties 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 31.07.2007 on the grounds that the complainant failed to establish his initial burden of proving the debt and that the cheque Ex.P2 was not issued towards discharge of the debt covered by the promissory note. Aggrieved by the said judgment passed by the learned Magistrate, the complainant preferred the present Criminal Appeal. 7. Learned counsel for the appellant/complainant would contend that the burden is on the accused to prove that there no consideration under the cheque in question, and when such burden is not rebutted by the accused, the presumption is that the cheque was issued for consideration and it is for the accused to 8. was 5 SRK,J Crl.A.No,101of 2008 prove that the cheque was not issued towards a debt or liability. The accused did not lead any credible evidence for rebuttal of this presumption, except mere denial. Learned counsel for the appellant/ complainant would further contend that the appellant/complainant issued notice to the respondent No.2/accused with correct address, and it was returned as unclaimed but not as refused, which is another face of evasion. Therefore, the principle underlying in Section 27 of the General Clauses Act, 1897, is made applicable, as the notice is deemed to have been served on the accused and as such, the presumption that the cheque was issued for valid consideration under Section 118 of the Nl Act can be raised. The finding of the learned Magistrate that there is no part payment endorsement on Ex.P1-promissory note about the issuance of Ex.P2-cheque, no way affects the case of the appellant/complaina nt. Hence, it is prayed to allow the Criminal Appeal by setting-aside the Judgment, dated 31.07.2007 passed in S.T.C.No.517 of 2004 by the learned Magistrate and convict the accused. 9. A perusal of the proceedings goes to show that on 03.03.2008, this Court admitted the Criminal Appeal and ordered to issue notice to the respondent No.2/accused. Again, when the matter has come up before this Court on 04.08.2023, this Court 6 SRK,J Crl.A.No.101 of 2008 ordered to issue fresh notice to the respondent No.2/accused. But, it that the respondent No.2/accused neither engaged counsel appears on his behalf nor appeared befqre the Court for submitting his arguments. Therefore, this Court h^s proceeded further to dispose of the Criminal Appeal basing on the e\fidence available on record. Now the point that arise for determination: Whether the complainant is able to bring home the guilt of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, beyond all reasonable doubt? 10. This is a Criminal Appeal against the order of acquittal. There is a presumption available under law that 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 appeals against acquittal, though this Court has full 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 are substantial or compelling reasons, this Court would not ordinarily disturb the findings of the trial Court. If the trial Court has given any 11. 7 SRK, J Crl.A.No.101 of 2008 perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same. 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: (paragraph No.8) 12. “The question as regards the correct principles to be applied by a Court hearing an appear 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 AIR 1962 sc 439. 8 SRK,J Crl.A.No.101of 2008 3' ,v that before interfering in appeaf 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. ” It is the case of the ■ appellant/complainant (P.W1) that 13. the accused borrowed a sum ? of Rs.1,50,000/- from him on 11.02.2004 by executing Ex.PI-Promissory Note agreeing to repay the same with interest at 24% per annum on demand and thereafter, the accused failed to repay the same. It is the further case of P.W1 that on repeated demands made by him, the accused issued Ex.P2 cheque for an amount of Rs.1,50,000/- towards part-payment of the amount due under Ex.PI-promissory note and when P.W1 presented the Ex.P2-cheque for collection, the same was returned dishonoured along with bank return memo Ex.P3 with an endorsement ‘Account Closed’. Consequently, P.W1 got issued Ex.P4-legal notice on 31.07.2004 and it was returned on 17.08.2004 as not claimed. 14. it is the contention of the learned counsel for the appellant/complainant that the evidence adduced on behalf of the complainant clinchingly proves that the respondent No.2/accused 9 SRK,J Crl.A.No.101 of 2008 borrowed Rs.1,50,000/- from P.W1 and executed Ex.P1-promissory note, and subsequently issued Ex.P2-cheque for discharge of part of the liability under Ex.P1-promissory note and such transaction was corroborated with the evidence of RWs.1 and 2. But the trial Court did not consider the evidence on record in right perspective and erred in acquitting the accused. It is the case of the accused that himself, one Sairam, 15. who is friend of P.W1, did film distribution business, jointly, in the year 2003 and during such joint business period, said Sairam and P.W1 got access of his cheque book, in which, they removed one cheque leaf and presented the same by forging his signature and fabricated the contents. It is the further contention of the accused that Ex.P2-cheque is not issued by accused to discharge the debt alleged to be due under Ex.P1-promissory note and it is forged and fabricated by the complainant to have wrongful gain. A perusal of the evidence shows that, P.W1 in his evidence deposed that the accused borrowed an amount of Rs.1,50,000/- from him and executed Ex.P1-promissory note. It is his further evidence that on subsequent demands made by P.W1, the accused issued Ex.P2-checiue towards part payment. Besides the evidence of P.W1, P.W2, who was said to have acted as an 16. ^ . 10 SRK,J Crl.A.No.101 of 2008 attestor to the transaction occurred under Ex. P1-promissory note executed by the accused in favour of P.W1, deposed in his evidence that he was present on the date of execution of Ex. P1-promissory note and the consideration was passed in favour of accused. On the other hand, it is the case of the accused that no consideration was passed to him under Ex.P1-promissory note and there is no legally enforceable debt due under Ex.P2-cheque contended by the complainant. It is further contended that Ex.P2- cheque came into light as he, along with one Sairam, who is friend of complainant, jointly run film distribution business in the year 2003 and at that time, the said Sairam and the complainant fraudulently removed the cheque from his cheque book and fabricated the and forged the signature of the accused on Ex.P2 and got presented the same for collection. 17. as same 18. A perusal of evidence of P.W1 goes to show that Ex.P1- promissory note was got examined on 11.02.2004 and Ex.P2- cheque was said to have been issued on 26.07.2004 i.e. within five months from the date of Ex.P1-promissory note, Ex.P2-cheque issued in favour of the complainant. Generally, if any part payment i: made by a borrower to the lender in the form of cash, towards the debt due under a promissory note, the part payment endorsement was IS ! 11 SRK,J Crl.A.No.101of 2008 would be made on the backside of the promissory note. But, if the part payment for the debt due under the promissory note, is made by the borrower to the lender by way of issuing a cheque, until and unless the said cheque is honoured, it cannot be expected that the part payment endorsement would be made on the backside of promissory note on the date of its issuance. Therefore, mere absence of endorsement on the backside of Ex.P1-promissory note is not fatal to the case of the complainant. In fact, the aspect that has to be given credence here is, the complainant did not file the civil suit against the accused for recovery of the debt due under Ex.P1- promissory note. For the reason that, when within five months from the date of execution of Ex. P1-promissory note, the accused issued Ex.P2-cheque in favour of complainant, what prevented the complainant to file a civil suit against the accused for recovery of debt due under Ex.P1-promissory note? The onus of proof of existence of debt under Ex.P1-promissory note is on the complainant, as he being the creditor. Therefore, the evidence spoken by P.W1 in regard to passing of consideration under Ex.P1- promissory note and issuance of Ex.P2-cheque by accused is not convincing and does not inspire confidence. 12 SRK,J Crl.A.No.101of 2008 19. It is the contention of learned counsel for the complainant that subsequent to dishonour of Ex.P2-cheque, he got issued Ex.P4-legal notice to the accused, but it was returned with an endorsement ‘Enquiry and absent’. Therefore, an inference can be drawn that the accused in order to evade the payment due under Ex.PI-promissory note and Ex.P2-cheque, unclaimed the Ex.P4- legal notice. 20. On the other hand, the accused denied the correcthess of the address to which Ex.P4-legal notice was got issued by the complainant and contended that the complainant got managed the postal authorities to get endorsement from them that the accused was absent for seven days and there is no proof that there was service of Ex.P4-legal notice to the accused. A perusal of the evidence of P;W1 goes to show that accused was residing in the address to which Ex.P4-legal notice was issued and he got managed the postal authorities to get endorsement from them that the accused was absent for seven 21. days. Indeed, to raise presumption of deemed service of notice, it has to be averred in the complaint that the accused evaded service of notice and in the absence of such averment, no presumption can be raised. The burden is on the complaint to prove that Ex.P4-legal 13 SRK,J Crl.A.No.101 of 2008 notice was issued to correct address and that, there is evasion of service of notice on the part of the accused. Further, a perusal of Ex.P4-legal notice coupled with the 22. evidence of P.W1, it was issued to the address bearing ‘Door No.17- 4-5, Purnanandampet, Vijayawada’. But, a further perusal of Exs.DI to D3, which are Savings Bank Pass Book, Household Card and Certificate of Residence issued by the Mandal Revenue Officer, of the accused, goes to show that the accused resident of Nehrunagar, Guntur Town. Even as per the case of accused, while he along with one Sairam, who is friend of complainant did film distribution business jointly in the year 2004, he shifted his family and residence to Guntur and it was not disputed by the complainant. Furthermore, this Court on 03.03.2008 admitted the 23. appeal and ordered to issue notice to the accused and the address of the accused was mentioned as ‘Door No.17-4-5, Vijayawada’. Admittedly, the said notice was returned unserved along with the report of one Sri Ch.Suresh, PC No.2831 of Satyanarayanapuram Police Station, Vijayawada city stating that the inhabitants of the said locality informed that the accused sold aw'ay his house and left the town and his whereabouts are not known. Again, when fresh notice was ordered by this Court, it was also returned unserved along with ’V 14 SRK,J Crl.A.No.101 of 2008 P.C.No.378 of the report of one Sri V.V.Krishna Rao, Satyanarayanapuram Police Station, that the notice could not be served to the accused, as the surrounding people of the aforesaid door number informed that the accused was not residing therein. An inference can be drawn that the accused was not 24. residing in the address, to which Ex.P4-legal notice was issued by the complainant and he was residing in the address as per the documents exhibited in Exs.DI to 03. Admittedly, the accused made his appearance before the trial Court subsequent to invoking provision under Section 27 of the General Clauses Act, 1897 by the complainant. Therefore, presumption as to service of notice disappears when the accused deposed on oath that no notice was served on him and admittedly, such testimony is not challenged by the complainant during his cross-examination. Having regard to the entire facts and circumstances of 25. the case, the complainant miserably failed to prove the issuance of Ex.P2-cheque by accused to discharge the debt and it can also be inferred that Ex.P2-cheque was not issued towards discharge of the debt covered under Ex.P1-promissory note. In view of the aforesaid discussion, this Court is of the opinion that the complainant failed to prove the guilt of the accused beyond all reasonable doubt. The 15 SRK,J Crl.A.No.101 of 2008 impugned judgment passed by the learned Magistrate is on 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. 26. Accordingly, the Criminal Appeal is dismissed, confirming the Judgment dated 31.07.2007 passed in S.T.C.No.517 of 2004 by the learned I Additional Chief Metropolitan Magistrate, Vijayawada. As a sequel thereto, the miscellaneous petitions, if any. pending in this Criminal Appeal, shall stand closed. SD/- E KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The I Additional Chief Metropolitan Magistrate, Vijayawada, Krishna District (with records if any) 2. One CC to Sri V. Subrahmanyam, Advocate [OPUC] 3. Two CCs to the Public Prosecutor, High Court of Andhra Pradesh at Amaravathi [OUT] 4. The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravati 5. Three CD Copies MV HIGH COURT MV DATED: 10/04/2025 JUDGMENT CRLA.No.101 of 2008 g( 2 5 SEP 2025 IrsV /«o/ V»S«ag<nt Sgctjap^y DISMISSING THE CRLA