The High Court · 2025

Counsel for the Appellant: Sri Chindam Anjaneyulu Counsel for the Respondent No.1: Sri G. Sundaresan Counsel for the Respondent No.2: Sri E. Ganesh, Assistant Public Prosecutor The Court delivered the following: JUDGMENT I L I 1 , ). 1 THE HONOURABLE SRI JTISTICE E.V.VEIIUGOPAL CRIMINAL APPEAL No.35 OF 2O15 JUDGMENT: This appeal is preferred by the appellants/accused against the judgment dated 27.OL.2OLS passed in Crl.A.No.\17 of 2OL3 on the file of the learned XI Additional District and Sessions Judge (F"tC), L.B.Nagar, Ranga Reddy District (for short, the appellant Court) wherein and whereunder the learned appellate Court convicted the accused arrd sentenced him to undergo simple imprisonment for 1 year and paJ.ment of compensation of Rs.2,50,000/- by reversing the judgment dated O7.Ol.2Ol3 passed by the learned IX Special Magistrate, Hasthinapuram, Ranga Reddy District (for short, 'the trial CourtJ in C.C.No.2 of 20t1.

2. For the sake of convenience, the parties hereinafter referred as arrayed in C.C.

3. The brief facts of the case are that the accused is a good friend of complaina-nt, and he used to take hand loans from complainant occasionally. Due to the existed cordialitSr, considering ttre request of accused to meet his personal needs, upon his promising to repay within three months, the 2 \ complainant lent Rs. 1,65,OOO/- to the accused in the first week of April, 2006. In the first week of July, 2OO6 the complainant demanded repa)rynent. At that time, the accused requested the complainant to grant three months for repa5rment. Therefore, in the first week of October, 20O6 when he demanded repalrment the accused gave him two cheques bearing Nos.963010, dated 14-lI.2006 and 653767, dated 27.11.2006 drawn on Canara Bank, Vanasthalipuram Branch and Andhra Bank, Dilsukhnagar Branch for Rs.55,O0O/- and Rs. 1,1O,OOO/-, for total due of Rs.1,65,000/-. When the complainalt presented the said cheques for encashment, they were dishonoured on the ground that "Insufficient Funds'. In spite of the complainant bringing it to the notice of accused, the accused left a deaf ear. Therefore, the complainant got issued statutory legal notice on 19.L2.2OO6 demanding paJment of cheque amounts, and it was served on I accused on 23.12.2006 and for this the accused gave reply with false pleas only to avoid his liability and therefore, the accused committed an offence under Section 138 of the Negotiable Instruments Act.

4. The learned III Metropolitan Magistrate Court, Cyberabad at L.B.Nagar took the complaint on file after recording the sworn I I I . / -1 statement of complainant against the accuSed and issued summons after registering it as C.C.No. 140 of 2OO7. Subsequently, the case was transferred and renumbered as C.C.No.2 of 2O 1 1.

5. The complainant deposed himself as PW. I and got marked Exs.Pl to P8. On behalf of defence, the accused himself has deposed as DW.l and relied on the evidence of DW.2 and got marked Ex.Dl to D3.

6. After hearing the parties on both sides and considering the evidence on record, the trial Court found the accused not guilty for the offence punishable under Section 138 of the N.l. Act and acquitted for the said offence under Section 255 (1) of Cr.P.C. Aggrieved by the same, the complainant preferred Crl.A.No.117 of 2O 13 before the learned appellate Court.

7. Upon hearing the oral and documentar5r evidence on record, the appellate Court has allowed the appeal under Section 386 b (i) Cr.P.C, reversing the judgment dated 07.Ol.2Ol3 passed by the learned trail Court in C.C.No.2 of 2011. The relevant portion reads as under: " 18. The case on lnnd there i.s no euid.ene to show that by tle 1,1 week of Apnl, 2O06, acansed and his wife either committed 4 \ \ r 'i\. default in pagment of any amount or theg utere proued. to be not in the sound position. Except prouing that they owed. about Rs.6,00,000/- to the complainant bg then, there is no euidene of act of default or act of insoluencg ammitted bg tle accused bg that date. In vieu of the aquaintance uith accused sine not less than 2 years tte complainant might haue hod confidence on acased. So it cannot be said that tle claim of complainant to tnue lent maneg to the acansed is not belieuable. As such the aforesaid decision does not applA to tte fact of tle case on hnnd. TTe euidene on reard dinchinglg establi.slrcs thot aeused i.ssued Ex.Pl and P2 cleques for dbchnrge of debt due to @mplainant and failed to paA tle same inspite of notice of dishounour. Ex.Dl has nothilg to do utith tle transaction auered bg ExPl and P2 and. tLe leam.ed magistrate was totallg utrong in holding that aqtsed rebutted tlrc presumption that was auailable in fauour of tLe amplainon\ in uieu of categorical admi.ssion bg tle autsed to haue bsued cheqtes. As such fue finding of tle lower Court about tlrc guilt of ttte acansed has to be reuersed and amtsed is liable to be conuicted for offence under Section 138 of N-1. Act'.

8. Challenging the sarne, the accused filed the present criminal appeal.

9. Heard learned counsel appearing for the appellant/accused and learned counsel appearing for respondent No. I and perused the record.

10. l,earned counsel appearing for the appellant would submit that the dates indicated on Ex.Pl and Ex.P2 were put by complainant himself to suit his case. To believe advancing of loan in the lst week of April,2006 there is no believable cordialit5r in between accused and the complainant. The complainant JJ.d 5 \ himself is not clear as to on what exact date he lent amount and accused gave him Exs.Pl and P2. F\:rttter, the evidence of the complainant is shaky on the aspect whether the amount of Rs. 1,65,000/- was lent at a time as claimed in ttre complaint and legal notice, or in piece-meal as stated by him before the Court. Further Ex.D3 pass book is evidencing that, Ex.P2 pertains to the year 2OO4. The unmarked F.S.L report is giving scope for sayrng that, the dates indicated on Ex.Pl and F2 were put by the complainant himself. 1 1. Learned counsel further submitted that upon examining the facts and evidence before it on proper perspective, the trial Court has rightly acquitted the petitioner. But the appellate Court based on assumptions and presumptions and on imaginar5r grounds has reversed the trial Court judgment. The appellate Court did not consider the report of hand writing Expert for comparison with admitted hand writing of Ex.D1 with Exs.P1 and P2. Hence, seeks indulgence of this Court to allow the present criminal appeal.

12. Learned counsel appearing for respondent No.l would submit that the appellate Court upon appreciating the oral and documentar5r evidence available on record in right perspective 6 has passed the judgment and interference of this Court at this stage is unwarranted. Hence, seeks to dismiss the present Criminal Appeal.

13. To support his case, learned counsel also relied upon the judgment passed by the Hon'b1e Apex Court in the case of M/s. Celestlum financial os. A.Gnanaseka,rant. The relevant portion reads as under: "8. Tfte righf b prefer an appeal i.s no doubt @ statutory right and the ight to prefer an appeal bg an accused against a conuiction is not merelg a stahiory righl but can also be construed to be a fundam.ental right under Artides 14 and 21 of th.e Constitution. If tlnt is so, th.en tle right of a uictim of an offence to prefer oru appeal cannot be eEtated uith the right of the State or the complainant to prefer an appeal. Hence, tLre statutory rigours for ftling of an oppeal bg tLe State or bg a comploinant against an order of aquittal cannot be read into ttre prouiso to Section 372 of the Cr.P.C so as fo restict the right o a uictim to file on oppeal on the grounds mentioned tlerein, uhen none exi.sts.

9. In tLe ciranmstanes, u.te find that Section 138 of the Act being in the nahre of a penal proubion-by a deeming fiction against an acansed who is said to hnue committed an offene under the said prouisiory if aquitted, can be proceeded against bg a uictim of tte said offene, namelg, the person uho b entitbd to tle proceeds of a cteEte which has been di.sLnnoured, in terms of the prouiso to Section 372 of tle Cr.P.C, a.s a uictim. As alrea.dg noted, a uictim of an offence could also be a complainant. In such a cose, an appeal can be prefered either under the prouiso to Section 372 or under *ction 378 by such a uictim. In the absence of the prouiso to Section 372, a uictim of an offence could not haue filed an appeal as suclq unless he u.tas also a complainant, in u.hich euent he auld maintain an appeal if special leaue to appeal ' 2025 LiveLaw (SC) 666 7- lt- 7 I had been granted by tle High Court and if no stch spectal leaue was granted tLen his appeal uould not be maintairyable at all. On the other hand, if the uictim of an offence, u.tlw mag or mag not be the complainant, proceeds under the proui-so to kction 372 of tle Cr.P.C, then in our uieu.t, such a uictim need not seek srycial leaue to appeal from the High Court. In other uords, tle vbtim of an offence u.tould haue tle ighf to prefer on appeal inter alia, against on order of acquittal in terms of the prouiso to Section 372 without seeking any special leaue to appeal from th.e High Court only on the grounds mentioned ttterein. A person LaLD is a amplainant under Section 20O of the Cr.P.C uln complains about the offence committed bg a person wlw is charged as an amtsed under Sectton 138 of the Act, tfuts tlr;.s the t@ht to prefer an appeal as a uictim under the proviso to Section 372 of the Cr.P.C."

14. Having regard to the submissions made by both the learned counsel, perllsing the judgments passed by both the trial Court and the appellate Court and upon considering the judgments relied upon by respondent No.1, this Court is of the opinion that the appellate Court failed in looking into cross examination of respondent No. l, wherein he categorically admits that he is running money lending business without there being any money lending license. It has also not considered the report of hand writing expert for comparison with admitted hand writing of Ex.Dl with the Bxs.Pl and P2. It also failed in obserring that there is no legallv enforceable debt for the cheques issued by the accused. In the instant case, the said aspect has not been challenged. 8

15. Accordingly, this appeal is allowed by setting aside ttre judgment dated 21.01.2015 passed in Crl.A.No. 117 of 2013 on the file of the learned XI Additional District ald Sessions Judge (FTC), Ranga Reddy District. The bail bonds, if any shall stand cancelled. Miscellaleous Petitions, if any, pending shall stand closed. SD/. R.KARTHIKEYAN JOINT REGISTRAR //TRUE COPY// CTION OFFICER To,

1. The Xl Additional District & Sessions Judge, (FTC) Ranga Reddy District. (with records, if any)

2. The lX Special Magistrate, L.B.Nagar at Hasthinapuram, Ranga Reddy District.

3. The Superintendent, Central Prison, Cherlapally, Ranga Reddy District. 4. Two CCs to the Public Prosecutor, High Court for the State of Telangana at Hyderabad. [OUT]

5. One CC to Sri Chindam Anjaneyulu, Advocate [OPUC] 6. One CC to Sri G. Sundaresan, Advocate [OPUC] 7. Two CD Copies Kam,/PSL Yv HIGH COURT DATED:3010712025 SIA ( 3 ?{JAN2tl26 * -'/ JUDGMENT CRLA.No.35 of 2015 ALLOWING THE CRIMINAL APPEAL \o .tPd ,r(- -i(fl,