In Bir Singh v. Mukesh Kumarl, it was held that

Kollipara Srinivasa Rao S/o Koteshwar Rao, Aged.1,[ years, Occ: Business, R/o. flot No. 105, Rajeshwaramma Residency, Varagadarshi colony Kothapet, Hyderabad. ...APPEL,LANT/COM PLAINANT AND 1 2 State of T:langana, Rep by its Public Prosecutor, Higlr Sourt at Hyderabad. .,.RESPONDENT Maddu Ni:rmada Reddy W/o tvl. Ram Reddy, Aged :iB years, Occ: Saree Business, Rio Flat No 102, Sai Kiran Residehcy ',,rinay Nagar Colony, Saidabad, H yderabad. ...2Nd RESiF'ONDENT/ACCUSED Counsel for the Appellant: Sri S. Someshwar Rao Counsel for the Respondent No. 1: Public Prosecutor Counsel for the Respondent No. 2: Sri Thakur Roopa Singgh The Court delive.red the following: COMMON JUDGMENT w THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL Nos.S4O & 549 of 2O18 COMMON JUDGMENT: Cr1.A.No.540 of 2018 is filed by the appellarrt challenging the judgment dated 18.04.20 17 passed in C.C.No.1B3 of 2015 by the learned XXIII Special Magistrate at Erramanzil, Hyderabad (Old C.C.No.l42 of 2018) on the file of the learned XXII Special Magistrate, Hyderabad acquitting the respondent No.2 - accused for the offence under Section 138 of the Negotiable Instruments Act (for short " NI" Act)

2. Cr1.A.No.549 of 2O18 is filed by the appellant challenging the judgment dated 18.04.2017 passed in C.C.No.184 of 2015 on the file of the learned XXIII Special Magistrate at Erramanzil, Hyderabad (Old C.C.No.143 of 2018) on the file of the learned XXII Special Magistrate, Hyderabad acquitting the respondent No.2 - accused for the offence punishable under Section 138 of the NI Act

3. The facts of the case in brief are that the complainant is doing rea-l estate business arrd had acquaintance with the accused for the past hve years. The accused and her husband used to avajl hand loans from the complainant on various dates and amounts. In purslrance of the same, the accused approached the complainant on 2 %iE 1,:1 ,,| O2.O7.2014 & 2t).O7.2014 requesting the complairr:Lnt for advance of Rs.50,00O/ an<l Rs.5,0O,OO0/- respectively tor.rrLrds hancl loan to meet her urgent business ald domestic requiremer ts ald promised to repay the same ..i'ithin ts'o mor-rths. On her requc:it, the complainant advanced the r,:spective amounts on the rcquc st.ed dates. After completion of requested period of two months. the complainart approached the accused i.e. on O2.O9.2O14 ancl .1.0.09.2014. The accused issued cheques beanng Nos.013938, datr:d 05.09.2014 & OO4777, dzrted 25.O9.2O14 for Rs.5O,OOO/- and Rs.S,0O,0OO/ respectively. Th,: accused assured that the cheqr: e s u,i1l be honored on presentation arrd there are sufficient funds in her accourrt. The complainant presented both the cheques in her acr:r>unt at ICicl Bank, Chaitanyapuri Bralch for encashment on 29.10.2O t.l, bttt the cheque for Rs.50,0O0/- s,as dishonored under cheque return memo uid-e endorsement "fu.ds insufficient" on the same day zurd the cheque for Rs.5,00,00O/- \i.as dishonored under cheque .eturn memo on 3l.lO.2Ol4 uide endorsement ,,account closed,,. .mmediately, the complainant contacted the acclrsed to pay the amc,unt, but she gave evasive reply' As such, the compiainant got issued lega1 notice dated 18.ll.2ol4 demanding the accused to pay the amoullts cover.d under the above cheques within 15 days lrom the date of ;-eceipt of the legal notice. The samr: u.as received by the accused o, ,10. Il.2Ol4. But the complainant did not receive anlr 26funela,ledgnr _-r-rt nor any reply . 3 from the accused. As such, the complainant filed a complainalt against the accused for committing a,, offence under Section 13g of NI Act ald prayed for award of compensation under Section 357 of Cr.P.C

4. The learned XXIII Special Magistrate, Hyderabad took cognizance of the case against the accused for the offence under section 13g of NI Act ald u,as examined under Section 251 Cr.p.C.

5. The complainant himseif examined as pW. 1. Exs.pl to p6 are marked on his behalf. trxs.Pl are the cheques issued by the accused in favor of the complainant. Exs.P2 are the cheque return memos, Ex.P3 is the copy of the legal notice, dated 18.11.2OI4, trx.p4 is the receipt dated 19.11.2014. No witnesses are examined on beha_lf of the accused. trx.D1, a copy of plaint filed by the complainalt and his u,ife, marked in cross-exarnination of PW. 1.

6. The tria-l court, upon considering the evidence acquitted the accused mainly on the grounds that (a) The cheque was filled up by the complainant ald not by the accused. (b) Acknowledgment of service of notice (Ex.P3) was not filed and therefore service of notice was not proved, and (c) Existence of prior disputes between the parties created doubt about advancing of loan amounts. 4

7. Learned counsel for the appellant / complarnalt submits that the trial court has committed a manifest error in law ald facts. The trial court failed to appreciate that once the signature of the accused on the cheque is admitted, the statutorv presumptiL,n under Sections 118 and 139 of the NI Act arises in favor of the conLplainant that the cheque rvas issued towards discharge of a legallr' enforceable debt. The burden shifts on the accused to rebut the presrLrnptron, which has not been discharged. Further, the service of staturoly notice has been proved by production of postal acknou,ledgment ([):r.P5,r Ex.P6), and in any event, presumption under Section 27 of the General Clauses Act and Section 114 of the Evidence Act stands ir: favor of service The prior disputes betrveen the parties cannot, b1 themselves, nullify the existence of clebt or liability. Hence, the finding of the trial court is unsustainabie.

8. On the other hand, learned counsel for the resrp,ondent - accused supports the judgment of the trial court contendir-r13 that there were subsisting disputes between the parties, and the complainant had admitted that he hrmself had filled up the cheque. It is contended that such circumstances create serious doubts about the complainant's case-

9. This Court has carefully considered the rivat submissions and perused. The folLorving aspects are evident: :Y:i-.- I I i ! I I i 1 5 (i) The accused has not denied his signature on the cheque in question. Once execution of the cheque is admitted, statutory presumption under Sections 118 and 139 of the NI Act comes into operation that the cheque was issued for consideration and in discharge of a legally enforceable debt. (ii) The plea that the complainant filldd up the cheque does not, in law, absolve the accused of liability once signature is admitted, as held by the Hon'ble Apex Court: In Bir Singh v. Mukesh Kumarl, it was held that: "if a signed blank cheque is voluntarily handed over to a payee, towards some payment, the payee may fill up the amount ald other particulars. This by itself would not invalidate the cheque". In Kalamani Tex v. P.Balasubramanian2, on the aspect that once the accused admits signature on the cheque, the statutory presumption under Sections 118 & 139 of NI Act must follou, and filling up of the cheque by the complainant does not rebut the presumption. (iii) The complainant has produced postal acknowledgment (Ex.PS / Ex.P6), which establishes service of statutory notice. Even otherwise, presumption of service under Section 27 of th.e General Clauses Act applies. The finding of the trial court that service was not complete is unsustainable. *- -" (iv) The existence of civil disputes or pendency of civil suits between the parties is not a ground to disbelieve the '(2or9l 4 scc r97 ' (2o2ll s scc 283 6 F statutory presumption under NI Act, rrriless the accused discharges the burden by producing cogent evidence, which not been done in the present case .

10. In view of the above, this Court finds that thr,. learned trial court misdirected itsell-ir-r 1a*'and facts, and the acquitta:1 is contran, to the evidence on record. The complainant has proverl lhe ingredients of Section 138 of NI Act beyond reasonable doubt.

11. In the result, both the Criminat Appeals are arllc,wecl setting aside the judgments ol' the learned XXIII Special Magistr.r:te, Ijvderabad in C.C.Nos. 183 & 184 of 2015 (Old C.C.Nos.t42 & 141 ,.,f 20 l5 on the file of the learned XXII Specia] Magistrate, Hyderabad) r.rr1 the accused is found guilty and is accordingly convicted lor the o ffence punishable under Section 138 of the NI Act, 188 1. Relying upr;n the decision of the Hon'ble Apex Court in R.Vijayan v. Babys, the a<:cused shall pay a fine of Rs.5,50,000/-. Out of the said fine errnounr, a sum of Rs.5,45,000/- shall be paid to the complainanr as compensation under Section 357(3) Cr.P.C. and the remaining Ils.5,0OO/- sha_ll be credited to the State. In default of payment of fllc u,ithin tu.o (O2) months from the date of receipt of a copy of this r,r'der. the accused shall undergo simple imprisonment for a period of si < (06) months. ' (2ot2) t scc 260 ;i t I {i : tt,,] t I i I l i i i i 7 As a sequel, miscellaneous applications pending in these appeats, if any, shali stand closed. Sdi- C.V. MALLIKARJUNA VARMA JOINT REGISTRAR //TRUE COPY// 6- SECTION OFFICER To 1 The Metropolitan Sessions Judge, Hyderabad (With A request to transmrt the copy of the order along with rec6rds, if any to the court coricerned) (By special Itilessenger) Two ccs to the Pubric prosecutor, High court for the State of rerangana at Hyderabad.[OUT] 2

4. One CC to Sri S. Someshwar Rao, Advocate [OpUC] One CC to Sri Thakur Roopa Singh, Advocate [OpUC] Two CD Copies VTYPR HIGH COURT DATED: 0610812025 COMMON JUDGMENT CRLA.No.540 & 549 of 2018 / t;, ', ri \ ALLOWING BOTH THE APPEALS g ..-.-.\\ -,--i\ :L i; ./n .rr r)' \:. ' '\ )' tl ,; 5 i,it 70[5 \:: -_/'