P.Ramalaxmi Devr \Ai1o' v. P Vi j aya L : k s h r

Sri T PradYumna Kumar ReddY,SeniorCou nsel Counsel for the Respondent No'1 in both CRLRCs : Sri S A Kalanr Riyaz' Counsel for the Resoondent No'2 in both CRLRCs: Ms' S Madhavi' Assistant Public Prosecutor The Court deliv'-'!-ed the following: Common Judgment I I I j I THE HON'BLE SRI WSTICE E.V.VENUGOPAL CRIMINAL APPEAL Nos.282 of 2Ol7 and283 of2Ol7 COMMON JUDGMEITT: These Criminal Appeals are frled under Section 378(4) of Cr.p.C., by the appellants/complainants ,ggrieved by the common judgment dated 31.01.2O17 passed in Criminal Appeal No.845 of 2Ot6 (filed by the lst respondent/accused) with Criminal Revision petition No.227 of 20 16 (filed by the appellant/complainant in CC No.683 of 2O13) and Criminal Appeal No.846 of 2OL6 (frled by the lst respondent/ accused) u-ith Criminal Revision Petition No.226 of 2016 (hled by rhe appellant/complainant in CC No.684 of 2O 13) all on the f rle of the learned VIII Additional Metropolitan Sessions Judge, Hyderabad u.he rcin and where under the findings of conviction and sentence imposed against the lst respondent/acci-rsed vide judgments dated

07.09.2016 passed in CC Nos.684 of 2Ot3 and 683 oI 2Ol3 by the lcarned XXV Special Magistrate at Hyderabad were set aside and the pra_r'cr of the appellants/complainants to grant compensation under Sectir.rn 357(3) of Cr.P.C. was rejected.

2. In both the appeals, ttris Court heard Sri T. Prad_vumna Kumar Recid_l'. learned senior counsel for the appellants, Sri SA Kalam Riyaz, learned counsel for the lst respondent and Mrs.S.Madhavi, learned Assistant Public Prosecutor, representing the 2"d responden t / S tate. I)agc No. 2

3. Since the parties to both these criminal appeals are orre and the same, these crimir:11 appeals are disposed of by this common iudgment' 4. The facts thlt lead to the present litigation concisely are that the complainants in tnth the cases are wife and husband and employees workinginthisHighCourt.Theaccusedisanex-employeetlfthisHigh Court. Furtht:r, L e ing colleagues the complainants in both the cases and the accused erre having acquaintance with each other and out of such acquatl-rtance the accused approached the complainants and obtained a hand 'oan of Rs 6'50'00O/- on 05'08'2013 zrnrl in partial discharge o[ the ;ame, the accused issued cheque bearing Nos'0708O0 dated O3.09.2O11 1or Rs.SO'OOO/- and 035484 dated O6't)9'2O13 for Rs.3,O0,OOO7 - lrc'th drawn on the erstwhile State Bank of Hyderabad' High Court p:rerni:;es branch, Ghansi Bazar ' Hydetabad' Fr':rther' upon presentation, bo h the cheques were returned dishonoured for want of suff-rcient fun'ls ' dc return memos dated O6'O9'2O 13' Accr:rrdingly' the comPlainzrnt s g')i ISSued legal notice dated L6.O9 -2ctLil intimattng said chcques and demanding the accused to pav the dishonour of tllr t hcrein. ln spite of receipt of legal notice' the accused amount cor'':rcd failed either to rePav the amount or to give an)- reply' Hence' the Section 138 of Negotiable complainants irl tiirted proceedings under Instrumenl r; Ac1 :lgainst lhe accused'

5. To subst'rIllrate their case, the respective complainants got zrs PWI and cxhibited documents under Ex Pl to themselvcs cxirtnitlcd ,! I I Page No. 3 PlO in both the cases. In CC No.683 of 2013 Ex.Cl and in CC No.684 of 2073 Exs.Cl arrd C2, being the service report of Charminar police Station and summons served to the accused were also marked as Court documents.

6. The accused denied the allegations levelled against her mainly contending that since the accused was promoted to the post of Deputy Sectron Ofhcer by overlooking the seniorit5r of complainant in CC No.6g3 ol 2O 13, who is the wife of complainant in CC No.684 of 2013, rhe complainants bore grudge and implicated her in the present case and that she was in Bhimavaram between the period Ol.Og.2Ol3 and

18.O9.2O 13 and stayed with her sister since the accused became ill during that time and hence, issualce of subject cheques on 05.Og_2O I3 at Hyderabad by her to the complainants does not arise and that at rhat time her son was pursuing MS in USA with the aid of US Governmenr and hence, there lr,as no necessit5r for her to avail hand loan from the complainanl, She also contended that the complainanrs have ncr flnancial capacity to lend such huge amount. To substantiate hcr case, thc accused apart from examining herself as DW l, also examined DWs.2 ancl 3. In CC No.683 of 2013 she got marked Exs.DI ro D4 and in CC No,684 of 2013 the accused exhibited Exs.Dl to Dl3_

7. Upon hcaring both sides and evaluating the entire evidence zrvzrilable on record, the trial Court found the accused in both the cases guilty fbr the offence under Section 138 of NI Act, convicred and I I I I Pagc No. 4 sentenced her to s'uffer rigorous imprisonment for one year a:ld to pay a hne of Rs.S,CrOO/ in default to suffer simple imprisonrrterrt for three months in each case holding that the defence of the accusecl cannot be believed in ,zierv of inconsistent stands taken b1' her u'ithout any corroboratior or proof and that the complainants could able to discharge th':ir i litial burden of proving their case and on the other hand, the accr-rsel failed to rebut the same'

8. Aggrieved ihereby, the accused preferred Criminal Appeal Nos.845 of 1)016 and 846 of 2016 seeking to set aside the impugned judgments of th( trial Court passed in CC Nos'683 of 2C lli arrd 684 of 2O13 mainll cor tending that the trial Court committed serious error in not only deeLling 'xlth the case during the course of trial bltt also while passing the judgment without referring to the written arguments and citations furnis| t:d by her. The complainants, havjng ncrt t;atisfied with the findings; o[ the tnal Court in CC Nos'683 and 68'1 t:rf 2O13 with regard to n:n-au'ardrng o[ compensation' hled CrI RP Nos 226 ol 2016 and 227 of 2Ol5 on the file o[ the learned Special Judg'e lbr Economic Offences-ctLm-!ltlAdditionalMetropolitanSessionsJudgeat Hyderabad. The rlppellatc Court, holding that the act o1' the r:ornplainants in 9. accepting cheqrrss for Rs 3,5O,000/- as against the total lc'an amount of Rs.6,5O,OO0/- lreates a rcasonablc doubt as to -rhe prlssession of the subject chr:qucs since the accused used to run chit-fund business and I 1 I I I ! I I I Page No. 5 was in the habit of issuing cheques as securit5r and hence, ttrere is a possibility of an assuErption that the subject cheques are also issued as security to the complainants and in that view of the matter, the complainants tailed to establish that the subject cheques were issued towards discharge of a legally enforceable debt or liability and furthermore, receipt of legar notice by the accused is doubtful in view of suspicion surrounded on the signature of recipient in postal acknowledgment, allowed crr.A.Nos.g45 of 2016 and g46 of 2016 filed by the accused and set aside the judgments in cc Nos.6g3 of 2o13 and 684 of 2O l3 and drsmissed Crl.Rp Nos.226 of 2016 aod 22T of 2016 filed by the complainan ts.

10. Aggrieved by the findings of the appellate Court in dismissing Crl.RP Nos.226 of 20t6 and 22T ot 2016 and allowing Crl.A.Nos.845 of 2O16 and 846 ot 2016, the complainants/appellants herein preferred the present criminal appeals mainly contending that the rrndings of the appellate court are contrary to law, weight of evidence and probabilities of the case and are made on an erroneous consideration of the facts and law with regard ro the subsistence of legally enforceable debt. Further, the learned District Judge of the appellate court failed to see that when the signature in chcque ',r,as admitted by the accused, a reasonable prcsumption can be drawn in favour of the complainants under Sections 118 and 1-39 ol NI Act that the said cheque was issued tou,ards .,.--. dischargc of a lcg:rll' errflorceable debt and the accused has to reLrur tr.re l Page No. 6 same but in the present case, the accused failed to do the same' appellate Court though observed that learned District Judge of the acknowledgment are dispr-rted by the when the (lont(rlts of Postal accused, it is h :r duty to get the same tested with the ex pert but she failed to do the :;ame, acquitted the accused erroneously' The

11. In sr-tppor'' of the case of the appellants'/ complainants' their relied upon the decisions rendcred in sripati singh learned corlfls€. (Since deceased) through his son Gaurav Singh Vs' State of Jharkhand. anrl anotherl, Sampelly Satyanarayana Rao Vs' Indian Renewable Energy Development Agency Limited2' Tedhi Singh Vs' l{arayan Dass Mahants, orders dated 24 'Ci6 '2Cl24 of High Court of Karnataka in Criminal Revision Petition No'814 of 2O2l between C.NiranjarL Yadav Vs.D'Ravi Kumar' CC Alavi Haji Vs' Palapetty Muhammed and atrother4 and Vishwabandhu Vs' Sri Krishna and anothers. [,e arned counsel lor the appellants also re iied upon the proceedinS;s of this Court vide Order RDtr(Hcu) No 48/2O13' Establishn:ent dated 09 04 20 I 5 and tried to enliqhterr ttris Court with regard to the suspension of the l't respondent/ accu sed from the services b;rsin1; on the complaint lodged b1' the Commissioner of Police' Cyberabacl at riachibowli due to irer cloing chit furrd busir:ess' ' 2o2l scc onl.ine ;(l 1002 '?12016; l0 Supreme (lourt Cases '158 r (2022) 6 Supreme (lourt Cases 715 " (ZoOl) tl Supreme Court Cases 750 5 2o2l scc oll.ine i'--'828 I I I Page No- 7 L2. The main cn.rx of the decisions relied upon by learned counsel for the appellants is that the question of linancia-l capacity of the complainants has to be questioned by way of reply notice and that the compl€iinant need not lead evidence in this regard and that the burden of proving service of notice by the complainants ends when the notice is addressed to the correct address of the accused as denoted under section 27 of tt,e General clauses Act and that if the subject cheque is issued as securiqr, it cannot disown the responsibility of the accused under Section 138 of NI Act on its dishonour.

13. The learned counsel for the appellants contended that as per Ex.Plo certihed copy of attendance particulars of the accused, issued by the Joint Registrar cum-Drawing Officer, High Court, during the period from 01.08.2013 ro 14.08.2013 the accused attended the offrce situated at Hyderabad and hence, her version that during the period from 01.08.20 l3 ro 18.09.2013 she stayed with her sister at Bhimavaram due to hcr ill-health appears to be not correct and it is only a blatant lie to escape from her liability in view of dishonour of the subject cheques issued by her Lorvards discharge of a legally enforceable debt. No document such as leave letter or leave permission or any medical record are filed by thc accused to substantiate her contention that she fell ill during the said period and stayed at Bhimavaram. DW2, who deposed that he dropped the accused at MGBS on 01.0g.2013 facilitating the accuscd ro get:r bus to Bhimavaram, scheduled at Og.O0 Page No. E .\\ accused on p.m., admitted in his cross-examination that he did not see the accused There is a contradictron in between the getting down at Bhimavaram since DW2 stated tl-Iat he 'lropped the 08.O0 P.m. evidence of DW2l and DW3 accused at MGIIS on O1 O8'2O13 to facilitate her to catcl' bus for Bhimavzrram but DW3 stated that he met tl-re 01.08.2013 at Ilhimavaram Basing on the above' Iearnerl counsel for of th,: dist airce between the appelltrnts contended that in view evidence o[ DW2 that he Hyderabad anc Bhimavaram, when the dropped ht:r at MGBS to facilitate her to catch 08 0O p- m bus on 01.08.2013 is t,rken into consideration' rt is not possibLc [r:r a person to be present on C1.08.2013 at both Hyderabad ancl Bhim'rvaram The accused in trx.l'8, copy of Crl P'No 14614 of 2014' trlcrl b! the accused' admitted that r';he was in Hyderabad on 18 09 20 13. tn IIx Pg copy of petition in Cr1"l::'P.No .2104 of2015 the accuseci stated thlt the subject cheques u',:re taken in the month o[ September afler hcr i rrest but fact remains is that the subject cheques were dishortoureii lnuch prior to her arrest. Hence, the said fact shou's that the accr'.isc(l s not denying her signatures on those cheques'

14. l,earned counsel for the appellants furthr: r con tc tlded that the case of thr: ac<:r'rsed/ 1"t respondent is verv confusing since at one point of time stLe states that the subject cheques \t'e rrl m isLls(ld' zrt another point she stat(:sr that said cheques $'ere stolcn alld at l:'n(rther point she denies he:: sign.atures on the cheques and al an()thcr pc'int she denies i l I I I I I I I I t ! j i .)' /./ Page No- 9 the bank account. The accused was dismissed from service vide proceedings in RDC (H.c.s.) No.48l2013- l3-Estt., dated o9.o4.2015. When the signatures on the cheque and issuance of the same is proved, and the dishonour of the same is established, there is no nec€ssity any corroborative evidence and the burden lies on the accused to rebut the same. The accused is 15 years senior to the complainant in service and hence, in the event of promotion of accused, complainants boring grudge again5t her does not arise.

15. while reiterating her defence put-forth before the trail court as well as the appellate Court, the l.r respondent/accused denied the contentions advanced on behatf of the appellants mainly contending that one of the cardinal principles that a person arraigned as arr accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence to prove his g, t. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itserf ol that burden, the courts cannot record a finding of the guilt of the accused. If some material is brought on tJle record consistent wirh the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be cntitled to acquitral. The Court may not insist upon the accused to disprove the exisrence of consideration by leading direct evidence as the existence ol negative evidence is neither possible nor contemplatca! and evcn if lcad, is to be seen with a doubt. -1" Page No. l0 \ i Something vrhiclL is probable has to be brought on record [or getting the benefit of shiftrr p1 the onus of proving to the complainant Further' if the accused is rrble to raise a probable defence w-hich crt:ates doubts about the exis 'ence of a legally enforceable dcbt o r liabiiity' the prosecution can fail. While contending above' the learnerl counsel for 1.t responrlr:nt/ accused relied upon the decisiorLs rendered in M.S.Naraya.na Menon Alias Mani Vs' State of Kerala and another6' Rangappa Vs. Sri MohanT, ANSS Rajashekar Vs'Augustus Jeba Anantht and BasalingaPPa vs'Mudibasappae'

16. Keeping irL mind the above propositions of lau' lzrrd down in the decisions relied upon by both sides and the obsen'atrons and findings made in the irr pugned orders, this Court evaluate cl thc errtire evidence adduced on either side' lT.Theg,ifeandhusband,whoarethecomlllainant.;inboththe czrlendar cases, have been examined as PWI in thcrr l'(-spci tivc cases' filed against tle accused ald their chief examirr:rttr;tL ir; nothing but reiteration of t-reir complaint averments narra[ing tirt tlli rgs transpired leading to the present litigation ' When the signa ture on the cheque is admitted by thLe accused presumption under Scction 39 ct NI Act comcs to plal in favour of the complainant thitt tl.lc slmc is issued tor.r,ards disch trge of a legally enforceable debt arC thc s ame has to be '(l(106) 6 Suorcme (ilurt Cases 39 (:010) I I Supreme (lourt Cases 441 't:O:Ot t: surrenre Court Cases 348 '\lA\L'SCir0ll)9 i i I I I j i Page No. I I rebutted by the accused. To rebut the said presumption tJle accused contended that she was not in the city on the dates of cheques and she was in Bhimavaram and ttrere she became ill. To substantiate the same she relied upon the evidence of DW2 and DW3. DW2 stated that he dropped the accused at MGBS on O1.08.2013 to facilitate her to catch a bus for Bhimavaram. DW3 stated that he met the accused at Bhimavaram.

18. The accused further contended that she was running a chit fund business and that the complainant in CC No.684 of 2013 was a member in the said chit and she used to issue cheques as security to the bidders and by misusing the same, the complainants got her implicated in the present cases. She questioned the financial capacity of the complainants to lend such huge amount. Admittedly, the complainants did not adduce a-ny evidence to prove their financial capacity or source of income to lend such money to the accused. The said fact casts a reasonable doubt on the genuineness of the transaction.

19. When the decision of the appel[ate Court in reversing the decision of the trial Court is tested with the abovc discussed lactual matrix, this Court frnds no error as the case of the complainants in accepting cheques for Rs.3,5O,OOO/- as against the total loan amount of Rs.6,5O,O00/- creates a reasonable doubt as to the possession of the subject cheques since admittedly the accused used to run chit-fund business and was in the habit of issuing chequcs as securiry. Further, ! t I Page No. 12 t Ex.D2 FIR in ()rim: No.381 of 2013, registered basing on ttre .:omplaint lodged by PV/ 1, r:veals that the accused was nlnnin;q ':hit fund business and useri to give cheques towards security for repiryment to the subscribers. I{ecitals of Ex.D 1 complaint reveals that th e accused by collecting chit amounts, absconded without making anv rellayments' Further, there is ro recital either in the complaint or anvv"hcre with regard to the ratic in which, the complainalts have contribtltcd in the total amount of Ils.6,5O,0OO/ - or the specific sum whrcl-r they have contributed indivLrlually. When the above facts are t;rkcn into considcration, ther,: is a possibility of an assumption lhat trc subject cheques were also issued as security to the complainzLnl s but not tou,ards discharge of any legally enforceable debt or tiabilitl' The saicl facr dehnitelr u.etkens the case of the complainant rcgarding their possession o- sublect cheques and on the other hanC' thc same strengthens the ( ontention of the accused that the subie':t <:lieques \.{.e rc n()t issu,:d ic$'ards discharge of any legally enforceablc <[ebt'

20. Further, thr:re is no evidence to prove that the accusrld r-r:ceived the Lcgal nolice ir;sued by the complainants. Recitais of Et P6 postal acknorvledgnrcnt lo not show the accused as the recipicnt :lf the legal notice and it t:ont rined a short form of signature. Frlrthcr" I'W I clunng cross-examin atirtr' admitted that the signatures on Ex l c heclue and trx.P6 postal ackr ou'ledgement are not one and the same. FWI lutrLher aclmitted in :'os; that Ex.P6 does not contain the sigiral urc o[ the i I I i Page No. 13 accused. The accusecl denied her signature on Exp.6 and alleged that the postman was managed to show that the said notice was received by the accused. The complainants failed to prove that the nodce was received by the accused by duly signing on the postal acknowledgment. They even failed to examine the concerned postal authorities or personnel to establish that the accused hers the regar notice. when the accused is disputing ,a. _:"::,r^:..:rved recerpt of the legal notice and also her signahlas on the postal acknowledgment and alleged that the postman was managed' it is the bounden dug of the comprainants to estabiish the fact that the accused hersetlf had received the legal notice. Though the learned counsel for the appellants tried to rely upon the proposition of Iaw laid down in the decis.rons sited supra shting that when the legal notice is sent to the correct address of the accused, it is deemed to be service of nodce, lack of knovvleclge of the accused regarding the contents of the notice cannot bc rulecl out since the signature appearing on the postal acknowledgment dcfers lrom that of the signature appearing on Ex.pl cheque. Further, the dismissal of accused from service cannot be a tool to establish the case of the complainant since both are different aspects. One of the cardinal principles that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence to prove his guilt. But the tacts of the case on hand, give suspicion regarding issuance of rhe subjecr cheques bv the accused for discharge of a legally enforceable debt. t l + I !r Page No. 14

21. When the aLbove facts are meticulously scnrtinizr:d it can be safely held tl-rat thre accused could able to put-forth a proLrzrble defence creating dotrtlt rrbout the existence of a legally enforcea'ole debt or liability and thal the subject cheques might have been give:r in another transaction. Th: lar'r' is well settled that if some materia1 i:l brought on the record cons istent with the innocence of the accus'ed u'hich may reasonably be t:rre , even though it is not positively prove':l to be true ' the accusc<l q.o u ld be entitled to acquittal' When the fact s of the case on hand are tc:;1ed on the touchstone of the above discussed facts and Iaw laid cllu,n the findings of the appellate Court i n :eversing |he judgment of th: lrial Court cannot be found fault with an':l in that view o[ the malter he tnterference of this Court cannot be' v'arranted ln vieu' o[ t 1c r.ilme, the present criminal appeals are 1iable to be dism issed

22. Accorcltr gllr , the criminal appeals are dismissed Misce llaneous applicatic,,.rs p,:r-rciing ii any shall also stand dismissed SD/-I.NAGALAKSHMI DEP1JTY REGISTRAR //TRUE COPY// \ =-=.-=--' I btcrtoru oFFlcER To, ? 4 5 'i,L rhe sF ecia rirdqe for Economrc offences-cum-Vlil Additicrnal it/etropo/itan Sessro rs.,r cjge Hyderabad lhe Il\ 5r t,c. rr t.,ia3isiiate Hyderabad P'rbrrc Prosecutor High court for the star,3 c r reransana at = I'g::::Ti:llt Reddv Advocale rop,rc:l "|,i,#;:l',i]i ff: 33 i3 S: TvioCD,j.i,.i "'-'u^ /lrvocateloPUCl l,\ i 4q^A' HIGH COURT DATED:28 rc212}25 COMMON JUDGMENT CRLA.Nos.2tt2 and 283 of 201 <, .i=:--. Jc, (N \ 7' i. ,,at ,.( .: 11 \ \ i: .l i; \,; t'.. t1 *51,' ,- . ; ' '.l==.:. DISMISSING THE BOTH GRLAs 9r. It{1