THE HON’BLE SRI JUSTICE K. SREENIVASA REDDY Criminal Appeal No.1269 of 2008 JUDGMENT: This Criminal Appeal is preferred by the complainant against the Judgment dated 27.06.2008 passed in Criminal Appeal No.81 of 2008 by the learned IV Additional District and Sessions Judge, Visakhapatnam, whereby and whereunder the conviction and sentence recorded against respondent No.1 herein/Accused for the offence punishable under Section 138 of the Negotiable Instruments Act by the learned II Metropolitan Magistrate for Railways, Visakhpatnam in CC No.299 of 2004, dated 01.07.2006, was set aside and respondent No.1 herein/Accused was acquitted of the said offence. 2. Case of the complainant, briefly, is as follows. The accused borrowed an amount of Rs.4,00,000/- from the complainant in the months of October and November, 2001 respectively in connection with the business of her husband being conducted in the name and style of “Suhasini Bar and Restaurant”. The accused and her husband promised the complainant to give partnership in the said Bar and Restaurant. 2 SRK, J Crl.A.No.1269 of 2008 The said amount was advanced by the complainant at the time of opening of the Bar on 04.11.2001. The husband of the accused did not give any partnership in his business to the complainant. As such, the complainant demanded the accused and her husband to repay the entire amount with interest at the rate of 12% p.a., from 04.11.2001. The accused agreed on behalf of her husband to pay an amount of Rs.4,50,000/- against the amount of Rs.4,96,000/-. The accused issued a cheque bearing No.NSTI 680427 for an amount of Rs.4,50,000/- drawn on Canara Bank, Kancharapalem branch, Visakhapatnam. When the complainant presented the cheque with his banker UTI Bank, Lions Club Extension Counter, Visakhapatnam on 25.11.2002, the said cheque was returned with an endorsement „funds insufficient‟. Immediately the complainant intimated the fact of return of cheque to the accused and her husband. They requested the complainant to present the same once again by 24.12.2002, as they would arrange the funds. Accordingly, the complainant presented the cheque on 24.12.2002, but the same was returned on 27.12.2002 with an endorsement „funds insufficient‟. The complainant got issued a legal notice on 05.01.2003 demanding the accused to pay the amount due under the cheque, but the 3 SRK, J Crl.A.No.1269 of 2008 accused refused to receive the said notice. Hence, the present complaint. 3. The said complaint was taken on file by the learned II Metropolitan Magistrate for Railways, Visakhapatnam, and numbered as CC No.299 of 2004. 4. On appearance of the accused, after furnishing copies of documents as contemplated under Section 207 Cr.P.C., she was examined under Section 251 Cr.P.C. She denied the allegations, when read over and explained to her in Telugu, pleaded not guilty of the offence and claimed to be tried. 5. On behalf of the complainant, PWs.1 to 3 were examined and got marked Exs.P1 to P9. 6. After closure of the complainant‟s evidence, the accused was examined under Section 313 Cr.P.C., explaining the incriminating material found against her in the evidence of complainant‟s witnesses, for which she denied. 7. On behalf of the defence, the accused was examined herself as DW.1 and no documents were marked on her behalf. 4 SRK, J Crl.A.No.1269 of 2008 8. The learned Magistrate, on appreciation of evidence on record, found the accused guilty of the offence under Section 138 of the NI Act and, accordingly, convicted and sentenced her to suffer rigorous imprisonment for a period of six (6) months and also to pay compensation of Rs.4,50,000/-, which is equivalent to the amount covered under Ex.P1 cheque, to the complainant under Section 357(3) Cr.P.C.. 9. Aggrieved by the said conviction and sentence, respondent No.1 herein/accused preferred an appeal bearing Crl.A.No.81 of 2006 before the learned IV Additional District and Sessions Judge, Visakhapatnam, and the appellate Court, on re- appreciation of entire oral and documentary evidence on record, allowed the said appeal by setting aside the conviction and sentence recorded against the accused and acquitted her of the said offence, vide the impugned judgment dated 27.06.2008. Aggrieved by the said judgment passed by the appellate Court, the complainant preferred the present Criminal Appeal. 10. Heard. Perused the record. 5 SRK, J Crl.A.No.1269 of 2008 11. This is an appeal against an 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 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 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. 6 SRK, J Crl.A.No.1269 of 2008 12. On this aspect, it is pertinent to refer to a decision in Harbans Singh & another v. the State of Punjab1, 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 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.” 13. According to the appellant/complainant, the accused borrowed an amount of Rs.4,00,000/- from him in October and November, 2001 for the purpose of business of her husband, who was conducting business in the name and style of „Suhasini Bar 1 AIR 1962 SC 439 7 SRK, J Crl.A.No.1269 of 2008 and Restaurant‟ and that the accused and her husband promised to give partnership in the said business and on their failure to fulfil the promise and on the demand of the complainant, the accused agreed on behalf of her husband to pay an amount of Rs.4,50,000/- as against the amount of Rs.4,96,000/- calculated with interest at 12% p.a. and issued the present dishonoured cheque of Rs.4,50,000/-. 14. It is settled law that mere dishonor of every cheque issued is not an offence. It is only a dishonor of cheque issued towards full or partial payment of legally enforceable debt that constitutes an offence punishable under Section 138 of the Act. Therefore, the essential element is existence of legally enforceable liability in support of the cheque in question. Section 139 of the Act provides a presumption of law in favour of the complainant about the existence of legally enforceable debt, but the same can be rebutted by the accused. 15. In the instant case, the signature on the subject cheque was not denied by the accused, but the accused denied the receipt of amount from the complainant under the said cheque and the issuance of said cheque by her to the complainant for 8 SRK, J Crl.A.No.1269 of 2008 discharge of any legally enforceable debt or liability, and her contention is that there is no legally enforceable liability between her and the complainant. The contention of the accused is that the cheque was kept blank in her shop and the same was taken away by PW.1 and made use of it for his profit. In the cross- examination of PW.1, a suggestion was given by the accused to PW.1 that originally a blank cheque was given to one Vasu who obtained it from the accused and the same was obtained by PW.1 through Vasu and the contents were filled-in subsequently. Of course, the said suggestion was denied by PW.1. The accused, who examined herself as DW.1, admitted that Vasu was their employee. It is pertinent to refer the suggestion given by the complainant to DW.1 in her cross-examination as “it is not true to suggest that one Vasu took the cheque and handed over the cheque to Prasad”. It implies that the complainant admitted the fact that Vasu took the cheque from the accused and handed over the cheque to PW.1. Another relevant suggestion given to this witness by the complainant is that she had asked Prasad (PW.1) about the cheque and he had made apology. Of course, DW.1 denied the suggestion, but one thing is clear that the cheque was not issued by DW.1 to PW.1, but was passed on by Vasu and the 9 SRK, J Crl.A.No.1269 of 2008 same was questioned by DW.1 even according to the complainant. DW.1 stated in her cross-examination that she used to go to Kurnool District regularly leaving one or two signed cheques in her cupboard in Visakhapatnam and that she had not made any enquiry about the missing cheque nor did she give any complaint to the Police about the missing of cheque in her house. 16. It is settled that the question of existence of liability must be examined independently, irrespective of failure of accused to prove the defence about the circumstances in which the cheque reached the hands of the complainant. The contention of the complainant is that he gave Rs.4,00,000/- to the accused for the purpose of business of her husband. If such huge amount of Rs.4,00,000/- is paid to any person, no one would keep silent without obtaining any evidence, more so, when there is no close relationship between them to trust completely. According to PW.1, his association with the husband of the accused is through his uncle only. They are neither friends nor classmates. He could not bring evidence as to how and wherefrom he brought such huge amount. It is not reflected anywhere in his documents, registers or Income Tax returns. The amount is not paid in the 10 SRK, J Crl.A.No.1269 of 2008 presence of some independent trustworthy person known to both parties. PW.1 states that the amount was paid in the presence of his mother, but she was not examined. Even according to PW.1, when he could not get a share, though demanded several times. No document was obtained in proof of payment of such huge amount. No attempt was ever made to secure any such document at least through some known person or elder person. No person would keep silent without raising such issue before some person or the other to solve the problem and no such steps have been taken by the complainant. In view of the aforesaid facts and circumstances of the case, it can safely be inferred that the cheque was not supported by any subsisting legally enforceable liability. Mere dishonor of cheque is not enough to find the accused guilty of the offence punishable under Section 138 of the Act. 17. The appellate Court, on re-appreciation of entire oral and documentary evidence on record, rightly found the accused not guilty of the offence punishable under Section 138 of the NI Act and accordingly set aside the conviction and sentence recorded against the accused by the learned Magistrate and acquitted her 11 SRK, J Crl.A.No.1269 of 2008 of the said offence. The impugned judgment passed by the appellate Court is on correct lines and there are no compelling or substantial reasons to interfere with the same by this Court. The Criminal Appeal is devoid of merit and the same is liable to be dismissed. 18. Accordingly, the Criminal Appeal is dismissed, confirming the Judgment dated 27.06.2008 passed in Crl.A.No.81 of 2006 by the learned IV Additional District and Sessions Judge, Visakhapatnam. As a sequel thereto, the miscellaneous petitions, if any, pending in this Criminal Appeal, shall stand closed. _____________________________ JUSTICE K. SREENIVASA REDDY Dated:01.05.2025. Nsr 12 SRK, J Crl.A.No.1269 of 2008 THE HON’BLE SRI JUSTICE K. SREENIVASA REDDY Criminal Appeal No.1269 of 2008 Dated:01.05.2025 Nsr