In Ravi Sharma v. State

Rajendra Paper Eloards, Rep. by its Proprietor, [\/r. Rarresh Chand Jain, S/o. Late Sri Kishore Chand Mutha, having its Office at 558, Srikrupa Market, Malkpaet, Hyderabad and branch office at 15-2-41 , Gowliguda Chaman, Near Telephone Exchange, tlyderabad. ...Petitioner/Complainant AND .1 . State Of Telangana Rep by its Public Prosecutor High Court at Hyderabad 2. M/s Devaja offset Printers, Rep. by its Proprietor, Sri Devr Prasad @ Durga Prasad, having its Office at 5-'182-1-A, Alwyn Society, F,ateh Nagal Hyderabad ... Res po n d enUAcc u sed Counsel for the Appellant in both cases : Sri, Damodar Mundra Counsel for the Respondent No. 1 in both cases: Public Prosecutor Counsel for the Respondent No. 2 in both cases: Sri M. Appa Reddy The Court delivered the following: THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL Nos.587 and 59O OF 2018 COMMON JUDGMENT: Crl.A.No.S87 of 2018 is filed questioning the acquittal of the accuqed under Section 138 of the Negotiable Instruments Act vide in CC.No.23 of 2015 bY the SPecial Judgment dt.l3.O7.2o17 Magistrate-V, Hyderabad.

2. Cr1.A.No.590 of 2018 is filed questioning the acquittal of the accused under Section 138 of the Negotiable Instruments Act vide Judgment dt. 13.07.2017 in. CC.No.22 of 2015 by the Special Magistrate-V, Hyderabad.

3. Since the complainant and the accused are one and the same in both the cases and the transactions inter se are the same, both the appeals are disposed off by way of this common Judgment.

4. The complainant ltrm was doing business in'Bill Boards, Cali Cloth etc. The accused used to purchase the products of the complainant firm and was maintaining a running account. The accused purchased material worth Rs.26,33,000/-. After payment of Rs.6,60,000/- by way of RTGS, for the balance amount of : 2 Rs.19,73,000/ ., two cheques were issued by the accused. Cheque bearing No.96244'l clate d 17.06.2O14 was issued for an amount of Rs.B,42,OO0/ lsubject matter of CC.No.23/2015 and Crl.A.No.587/ 201ti); Cheque bearing No.962445, dated 21.04.2O14 was issued for an alnount of Rs. 1 1,31,000/ - (subject matter of CC.No.22 l20 I 5 and Crl.A.No.590 /2018\.

5. The che.lue No.962445 for Rs.11,31,000/- was dishonoured due to alterations ancl corrections on 10.O6.20 I zl. The other cheque No.962447 lor Rs.i1,42,000/ when presentecl for clearance was returned unp:,icl on the ground of insufficient f:nds on 04.O7.2014 Though notic( s wcre issued, since the amount rvas not paid by the accused, complaint was filed

6. In botl-r llre cases, tax invoices were hled by the complainant as Exs.P1 to P3, along with the returnecl cheque, postal acknowledgmt nt and also one attested copy of I'[ returns for the year 20t4 2015

7. The accrrst-d examined himself as DW. 1 zLnd Exs.D1 to D12 were marked in CC.No.22/2015 and Exs.D1 anrl D2 were marked in CC.No.23l201 s 3 In CC.No.22 l2ol5, Ex.Dl is the voter ID of Durga Prasad; 8. Ex.D2-part of document showing payment and issuance of blank cheques; Exs.D3 to D11 are payment receipts and Ex D12 is the copy of application dated 03.07.2O14 glen to the CTO, Ferozdu CirclJ, Nampally, Hyderabad, intimating shutting down the business' g. In CC.No.23 l2Ol5, Ex.Dl is the receipt dated 18'O4'2013 passecl by the complainant in favour of accused for Rs'50,000 l- and Ex.D2isthevoucherdated2l.08.2013containingcomplainant's signature

10. The defence of the accused is that there is no outstanding and all dues were cleared. The cheques which were initially given towards security were misused by the gomplainant and false cases were filed. 1 1 . Learned Magistrate passed Judgment in both the cases on 13.07 .2017 and acquitted the accused in both the cases on the following grounds; i) The complainant has not frled any documentary evidence to show his day-to-day business transactions. Further separate accounts of the business maintained by him in between the complainant and the 4 accused were also not filed, though he claime<l to have maintained separate acco'-rnts for each of his customers. ii) There is no proof that the complainant delivered goods in terms of invoices marl<cd as Exs.P1 to P3. iii) PW 1 in his cross-examination admitted that- the accused used to pay by wav of cash at shop, however, PW. 1 never used to issue receipt for thr payment received by way of cash, which supports the defence of the accused that the entire amount was paid. iv) The said adnLission of receiving money in ceLsh is contrary to the statement of I']W.1 that he received RTGS payment for Rs.6,60,0O0/- and for the rerrzrining amount, cheques were isstred. v) The compJainant has not liled any deliverl. challans with the signatures of the accused as token of receiving materiai in terms of rnvolces. vi) For not fili-rg the reievant documents, an adverse inference has to be drawn under Section 1 14 (g) of the Evidence Act vii) The complainant has faiied to prove that lhere was any legally enforceable dr:bt

72. Learned Counsel appearing for the appellar:Lt would submit that when the case of the accused who examined himself as DWl is that the entire amounts were repaid, the learned Magistrate committed an error in Iinding that the complainant has not hled proof of delivery of goods. Once the issuance of cheques are admitted, presumption has to be drawn under Section 139 of the Negotiable Instiuments act. The accused has failecl to rebut the presumption even by preponderance of probability.

13. Having gone through the evidence on record, the defence of the accused is that the two cheques were given by way of security on

15.04.2013. trx.D4 is the acknowledgment of receiving the cheques in question in both the cases, on 15.04.2013. Exs.P1 and P3 are the tax invoices dated 22.06.2O13 and 17.06.2014 respectively, issued subsequent to the cheques being issued. Ex.P2 is tax invoice dated O7.O2.2O13 which is prior in time to the issuance of cheques. The accused gave evidence that goods were taken and accordingly payments were also made. Ex.D12 (marked in CC.No.22l2O15) is an application seeking cancellation of the business of the accused, which was handed over to the area CTO on O3.O7.2OI4. Exs.D3 to D 1 1 are the payment receipts. Though it is alleged by the complainant that the payment receipts were fabricated, however, no steps were taken to either lodge a complaint before the competent 6 ,/' forum or in any manner prove that the signatcries in the payment receipts who z dmittedly are related to the complainant's firm were examined to se y that the documents were fabriceLted.

14. .The complainant thodgh liled Exs.Pl tc P3 which are tax invoices, the s,ignature of the accused is not appearing on the tax invoices. It rva; admitted by PW.1 that signatures would be taken on the tax invoice s ones goods are supplied. No expianation is given by the complainant as to why the signatures are not appearing on the tax invoices, Exs.P1 to P3 1 5. The com pl;rinant stated that after the prllgment of RTGS for Rs.6,60,O0O/- , for the balance amount of Rs. 9,73,OOO/-, the two subject chequ:s u.ere issued. According to the complaint, the total amount of Rs.6,60,000/- was paid through RTGS in between

17.O9.2O13 and 24.03.2014. According to tlrr: complainant, the cheques in qu:stion rvere issued after 24.O3.201rl. F{owever, the said claim of the complainant is falsified by trx.D4 which reflects cheques being issuecl on 1 5.04.2 0 13. l

16. The burden on the accused in a prosecution under section 138 of the Negotiable Instruments Act to explain his case, is by preponderance of probability. As already discussed: the tax invoices do not have the signatures of the accused' i) ii)' The complai.t^.tt t ^" falsely stated that the cheques in question were issued after 24.O3.2014' iii) Except denying the receipls filed to prove payment by lhe accused, the complainant has not taken any steps to disprove the receiPts. iv) The claim of the accused that cheques were issued towards security is substantiated by Ex.D4.

17. The complainant has not come to the Court with clean hands and suppressed the facts, which is evident from the documents Iiled by the accused and admissions made by complainant during trial'

18. In Ravi Sharma v. State (Government of NCT of Delhif and another', 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 I 12022; 8 Supreme Court Cases 536 8 when evidence on record has been analysed. Th': reason is that an order of acquiltal adds up to the presumption ol rnnocence in favour of the accusecl. l'hus, the appellate court has to be relatively slow in reversing the t- rder of the trial court rendering acrquittal. tg. In Ghureg Lal u. State of tlttor Pradesh' the Hon'ble Supreme Cou-t after referring to several Judgments regarding the settled principles of 1aw and the powers of appellate Court in reversing the c,rder of acquittal, held at paraTO, as follows: "70. ht the light of th.e aboue, the lligh Court and other appellate Courts shot'ld follotr the uteLl-settled pinciples crgstt,l.lized by number of Judgments i.f it is goilg to ouerrule or othetuise disitb the tial court's acquittal:

1. Tht appellate court may only ouemtle or olLtenuise disturb the tiol court's aiquittal if it h.as "uery substantial and compelling reasons"' for doing so. A nunrber of iftstonces aise in uhich the aptrtellate court uould haue "uertt sllbstontial and compelling reasons" tt> discard the tial court's decj;ion. "Verg substantial and compelling r€rriiorlS" eist uhen: i) The tial coud's conclusion utith regard to the facts is patpably ii) TLtr tial court's decision tLtas based on an erroneous uieu of iii) Tht fial court's judgment is likelg to result in "graue miscariage wrong: law; of justice"; iu) The entire approach of the tial couft in deahng uith the euidence tu as p atent' 11 il l.e g al; u) Th<' tictl court's judgment wc.s mctn'f'zstlg ut1-just and unreasotml'le; ui) Tht tnal court has ignored the euidence or nisread tlrc material euidence or has ignored moteial docunu:nts like dging declaration;/ report of tlrc ball[stic Ex.Pert, etc. '12008.; l0 Sup."n,e (lourt Clases 450 9 uii)This list is intended to be illustratiue, not exhaustiue. 2. 'I'he appellate court m.ust alLuags giue proper ueight and consideration o the findings of the tial court.

3. If ttuo reasonable uiews can be reached_ one that leads to acquitta| the other to conuiction _the High Courts/ oppellate courts must n e in fauour of the accused-"

20. There are no reasons which are compelling in nature to interfere with the finding of the learned Special Magistrate tn acquitting the accused. 2L. Accordingly, both the appeals are dismissed //TRUE COPY// Sd/- M. RAMANA K ISHNA DEPUTY RE STRAR SECTION OFFICER To, 1 2 4_ t The Special tVlagistrate-V at Hyderabad (With records) Two CCs to Public Prosecutor, High Court for the State of Telangana at Hyderabad. (OUT) One CC to Sri Damodar lVlundra, Advocate [OPUC] One CC to Sri M. Appa Reddy, Advocate [OPUC] Two CD Copies DL/ghw /i 1 J j -'S 1, ,i a' it't( \.." ,:,., ,.^, t --' HIGH COURT DATED:3'llil12025 COMMON JUDGMENT CRLA.Nos.587 and 590 ot 2018 DISMISSING THE CRIMINAL APPEALS u{*e/t ?) kt*