Telangana High Court
Sameena Zulkhadar Baig, Somajiguda, ... vs Mrs. Tasneem Fatima, Amberpet, ... on 14 June, 2023
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1558 OF 2010
JUDGMENT:
1. The appellant/complainant is aggrieved by the judgment dated 28.06.2010 of the learned IV Additional Chief Metropolitan Magistrate, Hyderabad, acquitting the 1st respondent/accused for the offence under Section 138 of the Negotiable Instruments Act.
2. Briefly, the case of the appellant is that she filed complaint stating that the 1st respondent/accused and her daughter assured her and her husband that they would arrange visa to USA within a period of three months. Appellant and her family members gave an amount of Rs.7.00 lakhs to the accused towards Visa fees, processing charges and also other expenses. An amount of Rs.3.50 lakhs was paid by way of transfer. No visas were arranged as promised and after waiting for a five years, the appellant and her husband asked the accused to return the amount. Ultimately, in June, 2008, the accused issued cheque for Rs.4.00 lakhs. The said cheque when presented for clearance was returned unpaid for the reason of 'insufficient funds'. Though legal notice was issued, no payment was made, as such, complaint was filed. 2
3. The complainant examined herself and her husband as P.Ws.1 and 2 and marked Exs.P1 to P6. The accused did not examine any witness in defence.
4. Learned Magistrate has recorded acquittal on the ground that; i) the alleged amount was given in the year 2002 and cheque was issued nearly six years later i.e., in the year 2008. Since the period is beyond limitation of three years, no suit for recovery can be filed and consequently no enforceable debt; ii) As per the Bank statement, cheques were given to the daughter of the accused, as such, the accused cannot be mulcted with criminal liability; iii)The statutory notice issued by P.W.1 was signed by one Nousheen and the accused was out of the country on pilgrimage to Haj when the notice was sent.
5. Learned Magistrate relied on the judgment of Hon'ble Supreme Court in the case of M.D.Thomas v. P.S.Jaleel and another1, wherein the Hon'ble Supreme Court held that service of notice to a family member cannot be deemed as service to the person to whom the notice is sent.
1 (2010)1 Supreme Court Cases (Cri) 1387 3
6. Learned counsel appearing for the appellant would submit that the learned Magistrate has committed an error in acquitting the appellant when presumption is raised under Section 139 of the Negotiable Instruments Act and the accused has failed to discharge her burden. Since the cheque in question was not disputed, the appeal has to be allowed by convicting the accused.
7. Admittedly, the amount allegedly given as cash to an extent of Rs.3.50 lakhs, there is no documentary evidence except the oral testimony. With regard to the remaining Rs.3.50 lakhs, the amounts were not paid to the accused. As stated by the learned Magistrate, the complainant has failed to prove that there is any legally enforceable debt on the cheque which was issued nearly six years after the alleged payment of money by the complainant and her family members. There cannot be any civil liability that can be enforced by the complainant.
8. In Ravi Sharma v. State (Government of NCT of Delhi) and another2, the Hon'ble Supreme Court held that while dealing with an appeal against acquittal, the appellate court has to consider whether the trial Court's view can be termed as a possible one, particularly when 2 (2022) 8 Supreme Court Cases 536 4 evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal.
9. In view of above facts and circumstances, I do not find any infirmity or illegality with the orders of the learned Magistrate.
10. In the result, the Criminal Appeal is dismissed. Consequently, miscellaneous petitions, if any, pending, shall stands closed.
__________________ K.SURENDER, J Date: 14.06.2023 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1558 of 2010 Date: 14.06.2022.
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