IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI THURSDAY, THE FIRST DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA CRIMINAL APPEAL NO: 918 OF 2008 REDDY Appeal under Section 378 of Cr.P.C 1973 dated 07.01.2008 in C.C.No.330 of 2006 Junior Civil Judge, Repalle, Guntur District. against the Judgment on the file of the II Additional Between: Shaik Inthiyas, S/o Sk.Mohammad Business, R/o 27th Ward, Thamalapakulavari Mandal, Guntur District. Yusuf, Aged about 33 years. Street, Repalle, Repalle ■■■Appellant/Complainant AND 1. Yalavarthi Srikishan, S/o Samba ‘ about 35 years. Business R/o Pedaravuru, Chavalavari Street, 9*^ Ward, Repalle. Sada Sivalinga Vara Prasad aged Tenali, Presently residing at ...Respondent/Accused rep. by the Public Prosecutor, High Court of A.P. 2. The State of A.P. Hyderabad. —Respondent/Respondent Counsel for the Appellant: Sri G Elisha Counsel for the Respondent No.1: Sri Kedareswar Katari Counsel for the Respondent No.2: Public Prosecutor The Court made the following: THE HON’BLE SRI JUSTICE K. SREENIVASA REDDY Criminal Appeal No.918 of 2008 JUDGMENT: This Criminal Appeal is preferred by the complainant against the Judgment dated 07.01.2008 passed in CC No.330 of 2006 by the learned II Additional Munsif Magistrate, Repalle, whereby and whereunder respondent No.1 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.2,00,000/- from the complainant on 11.02.2005 for his business purpose agreeing to repay the same with interest at 12% p.a. He also executed a promissory note on the same day to that effect. On several requests made by the complainant, the accused issued a cheque bearing No.532771, dated 15.03.2006 drawn on Canara Bank, Tenali, for Rs.2,00,000/- in favour of the complainant as a part payment. When the complainant presented the said cheque for collection in Andhra Bank, Repalle branch on 17.08.2006, the / 2 SRK, J Crl.A.No.918 of 2008 same was returned on 23.08.2006 with an endorsement “Account Then the complainant got issued a legal notice on 27.09.2006 demanding the accused to pay the cheque amount of Rs.2,00,000/-, but he did not repay the complaint. closed”. Hence, the same. 3. The said complaint was taken on file by the learned II Additional Munsif Magistrate, Repalle, and numbered No.330 of 2006. as CC 4. On appearance of the accused, after furnishing copies of documents as contemplated under Section 207 Cr.P.C., he was examined under Section 251 Cr.P.C. He denied the allegations, when read over and explained to him in Telugu, pleaded not guilty of the offence and claimed to be tried. 5. On behalf of the complainant, he himself was examined PW.1 and got marked Exs.P1 to P9. as 6. After closure of the complainant’s evidence, the accused was examined under Section 313 Cr.P.C., explaining the incriminating material found against him in the evidence of 3 SRK, J Crl.A.No.918 of 2008 complainant, for which he denied and evidence on his behalf. reported no defence 7. The learned Magistrate, on 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 bring home the guilt of the accused of the offence under Section 138 of the Nl Act beyond all reasonable doubt. Aggrieved by the said judgment passed by the learned Magistrate, the complainant Criminal Appeal. preferred the present 8. Sri Y.K. Reddy, learned counsel G. Elisha, learned appearing on behalf of Sri counsel for the appellant/complainant, submitted that the appellant/complainant is in jaii in connection with other case and he requests to close the present appeal. 9. This Court would not close the Criminal Appeal filed against conviction or acquittal without disposing the same on merits. Accordingly, this Court is proceeding to dispose of the matter based on the evidence available either on record. 4 SRK, J Crl.A.No.918 of 2008 10. There is no representation on behalf of 1"* respondent/ accused. 11. Heard learned Additional Public Prosecutor behalf of 2^'^ respondent/State and perused the appearing on record. 12. 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 appeals against though this Court has full 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 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 5 SRK, J Crl.A.No.918of2008 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 13. 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.918of2008 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.” 14. PW.1, in his examination-in-chief, stated that the accused borrowed an amount of Rs.2,00,000/- from him and also executed a promissory note to that effect on 11.02.2005. Subsequently, at his instance, the accused issued cheque Ex.P2 for an amount of Rs.2,00,000/- on 15.03.2006. On presentation of the said cheque for encashment, the same was returned dishonoured with an endorsement “account closed”, by Andhra Bank, Repalle branch on 28.08.2006, under Ex.P4-cheque return memo. He further stated that he got issued a statutory notice on 27.09.2006 to the accused to pay the amount covered under Ex.P2-cheque. Even though the notice was served on the accused, he did not choose to repay the amount, and hence, he resorted to file the present complaint against the accused. 15. There cannot be any dispute that the accused can safely rebut the presumption available in favour of the complainant 7 SRK, J Crl.A.No.918of2008 under Sections 118 and 139 of the Act, by cross-examination of It is the specific defence of the accused that there is no P.W.1. legally enforceable debt between the complainant and the accused for the reason that the amount was already paid by the accused to the complainant, but the complainant, with a mala fide intention and to get unlawful gain, presented the cheque which was issued as a security to the complainant, suggested to P.W.1 in his cross-examination. The same is Coming to the documents filed on behalf of the complainant, Ex.P1 is the certified copy of the promissory note and Ex.P2 is the subject cheque, “rondu”, whereas in Ex.P2, it was written as “rendu”. Therefore, there is different hand writing on Exs.P1 and P2. More over, a perusal of the evidence on record discloses that the subject cheque Ex.P2 was presented for encashment after five months of drawing the cheque. Admittedly, there is no explanation from the complainant as to why the cheque could not be presented at the earliest point of time i.e. immediately after it is drawn. No cogent reasons were given for presenting the cheque at a belated stage. It is in this back ground, the learned Magistrate came to a 16. In Ex.P1, it was written as 8 SRK, J Crl.A.No.918 of 2008 conclusion that there appears to be some suspicion cast over the drawing of cheque by the accused on 15.03.2006. Basing principle that the accused on the can rebut the presumption under Sections 139 and 118 of the Nl Act by relying on the documents submitted by the complainant and the accused has rebutted the presumption available under Sections 139 and the Nl Act by showing the different handwritings on Exs.P1 and P2 and also presentation of cheque with a delay of more than five months for encashment, the learned Magistrate rightly conclusion that there is 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. successfully 118 of came to a The IS on 17. Accordingly, the Criminal Appeal is dismissed, confirming the Judgment dated 07.01.2008 passed in CC No.330 of 2006 by the learned II Additional Munsif Magistrate, Repalle. 9 SRK, J Crl.A.No.918 of 2008 As a sequel thereto, the miscellaneous petitions pending in this Criminal Appeal, shall stand closed. if any. SdZ-VDIWAKAR DEPUTY REGISTRAR SECTION OFFICER Repalle, Guntur District. 2. The II Additional Munisif Magistrate, Repalle, Guntur District. 3. One CC to Sri. G Elisha, Advocate [OPUC] 4. One CC to Sri Kedareswar Katari, Advocate [OPUC] 5. Two CCS to The Public Prosecutor, High Court of Andhra Pradesh Amaravati [OUT], 6. The Section Officer, Criminal Section Amaravati. 7. Three CD Copies //TRUE COPY// To, 1- The II Additional Civil Judge (Junior Division) at High Court of Andhra Pradesh at SAM sree HIGH COURT DATED:01/05/2025 JUDGMENT CRLA.No.918 of 2008 djOCTJIW g ^ Current Section DISMISSING THE CRIMINAL APPEAL