Telangana High Court
Maloth Ram Koti, Singareni M, Khammam ... vs Ajmeera Pool Singh, Singareni M, ... on 6 February, 2019
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL APPEAL No.1102 OF 2009
JUDGMENT:
This Criminal Appeal, under Section 378 (4) of the Code of Criminal Procedure, 1973, is filed by the appellant/complainant aggrieved by the judgment, dated 16.03.2009, rendered in C.C.No.134 of 2007 on the file of the Judicial Magistrate of First Class, Yellandu, whereby and whereunder, the respondent/ accused was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act'), and accordingly, he was acquitted.
2. Heard learned counsel for the appellant/complainant and the learned Additional Public Prosecutor representing the respondent/State and perused the record.
3. There is no representation on behalf of the respondent/ accused.
4. Learned counsel for the appellant/complainant would contend that the respondent/accused borrowed an amount of Rs.50,000/- from the appellant/complainant under a Promissory Note and issued cheques, marked as Exs.P1 and P2, to discharge the amount borrowed; that the cheques, when presented in the bank, they were returned for want of sufficient funds in the account of the respondent/accused; that there is no rebuttal evidence with regard to issuance of cheques by the respondent/accused; that merely because the Promissory Note was not filed before the trial Court, the trial Court disbelieved that there was a legally enforceable debt between the parties to the 2 Dr.SA,J Crl.A.No.1102 of 2009 litigation and held that no offence is made out under Section 138 of the N.I. Act against the respondent/accused, which is erroneous; that when cheques were given by the respondent/accused to repay the amount borrowed and when the same are dishonoured and a statutory notice is issued, complying the provisions under Section 138 of the N.I. Act, the trial Court ought to have convicted and sentenced the respondent/accused for the offence punishable under Section 138 of the N.I. Act and ultimately, prayed to set aside the impugned judgment and to convict and sentence the respondent/accused for the offence punishable under Section 138 of the N.I. Act.
5. In view of the submissions made, the following points have come up for determination:
"1. Whether there was any legally enforceable debt between the parties to the litigation?
2. Whether the impugned judgment is liable to be set aside and the complaint is to be allowed as prayed for?"
6. Admittedly, no Promissory Note is filed to substantiate that the respondent/accused borrowed an amount of Rs.50,000/- from the appellant/complainant. Even, the appellant/complainant, who was examined as PW.1, in his evidence, did not state the date of borrowing of the amount by the respondent/accused. He simply stated that about two years back, the respondent/accused borrowed the amount. Furthermore, no other witness was examined on behalf of the appellant/complainant to substantiate the borrowing made by the respondent/accused. When there is a Promissory Note said to have been executed by the 3 Dr.SA,J Crl.A.No.1102 of 2009 respondent/accused, the production and marking of the same before the trial Court is the best evidence to substantiate that there was a legally enforceable debt between the parties to the litigation. However, the respondent/accused, who deposed as DW.1, denied the case of the appellant/complainant with regard to borrowing etc. The trial Court, to find out whether there was any legally enforceable debt between the parties to the litigation, had analyzed the entire evidence and the documents on record and held that there was no legally enforceable debt between the parties to the litigation. The findings of the trial Court are supported by the evidence on record. When there is no legally enforceable debt between the parties to the litigation, issuing of cheques is of no consequence against the respondent/accused. Therefore, the requirements under Section 138 of the N.I. Act have not been proved by the appellant/complainant to convict and sentence the respondent/accused for the offence punishable under Section 138 read with 142 of the N.I. Act. The appeal is devoid of merit and is liable to be dismissed.
7. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 16.03.2009, rendered in C.C.No.134 of 2007 on the file of the Judicial Magistrate of First Class, Yellandu.
Miscellaneous Petitions, if any, pending in this Criminal Appeal shall stand closed.
____________________________ Dr. SHAMEEM AKTHER, J February 06, 2019.
MD