The High Court · 2022

Counsel for the Appellant :SRl. C SHARAN REDDY Counsel for the Respondent No.1 : None appeared Counsel for the Respondent No.2 : PUBLIC PROSECUTOR (TG) The Court made the following: ORDER HONO( RABLE SRI JUSTICE K.SfIRlf I\]:}EF. CRI I\4INAL APPEAL No. 719 oI 2r)lti JUDGMENT: 1. The appel ant filed complaint under Sectkrn lll8 of the - Negotiable Ins'ruments Act, 1881 (for short 'the NI Act') against the res:ondent which was numbered ;ls C.O.No.S71 of 2OO2 on tl re file of IX Additional Chicf Mel'opolitan l I Magistrate, Hy, l.erabad.

2. The learn:d Magistrate, after examinirrg the itppellant as P.W. 1 and marking Exs.Pl to P10 on trehaf of the complainant r rnd Ex.D I reply notice, fcrrurc[ ,hat the respondent/ac :used was guilty of the offenc,: rrnder Section 138 of the NI ,\ct and sentenced to RI for c)rr() ye€r and to pay fine of Rs.. i,OOO/-.

3. Aggrievec by the said conviction, l-tLt: re spondent herein filed C. iminal Appeal No.222 of 2OO7 ltefo:e the III Additional Mel ropolitan Sessions Judge.

4. The app::llant herein hled Crimina-l Fle.risiorL Petition No.92 of 2007 questioning the inadequate;x:ntent:e passed by the learned Magistrate. 2

5. The learned Sessions Judge disposed off both the Crimir-ral Appeal No.222 o{ 2OO7 filed by the lespondent herein and Cr1.R.P.No.92 of 2OO7 filed by the appellant herein by way of Common Judgtnent dated 22.O2.2OO8 setting aside the conviction imposed on respondent/accused. As a consequence, the revision a petition filed by the compiainant was dismissed. Aggrieved by the acquittal recorded by the learned Sessions Judge, the present appeal is filed.

6. The case of the complainant is that the respondent approached him with proposal to develop the property of the complainant at Narayanaguda, along with one Mr.Shantilal Gandhi. The compiainant paid an amount of Rs.4,00,000/- for development of the said property. The development was not undertaken and for the reason of misusing of Rs.4,00,OOO f - given, a complaint was filed to the police. The respondent agreed to repay the amount and issued two cheques under Exs.P3 and P4. Prior to that, the respondent/ accused a-lso executed two promotes under Exs.Pl and P2. The said cheques when sent for clearance were returned for the reason of payment stopped by the 3 drawer under :heque return memo under E)>..[)(j. 'lhe legal notice Ex.PB vi,r.s issued, for which reply uncLe I I:)x. )9 notice was sent by th : respondent. The learned Millj r;l-ra.e having I found that tl e respondent was liable to llay the said amount, convi'ted the respondent as stated rsrl[)r'a.

7. The defe: rce of the respondent was that the amounts were given to I 'tr.Shantilal Gandhi, who rece,.ve d th ,: amount from P.W.1 an 1 not the respondent/accused

8. The learr,ed Sessions Judge acquitted 1lrer re spondent on the follow ng grounds; i) P.W. 1 complurLant admitted that the arnol nt of Rs.4,00,000/- was paid u> Mr Shantilal Gandhi throu ;tr the respondent and exe<:utio.: of Bxs.P1 to P4 was by wr y of security given by the ac,ctLs:d; ii) P.W. 1 also admitted that the respondent stooci as sir.tre.y for the amount paid r:o the said Mr.Shantilal Gandhj; iii It is not mentioned ei her in the complaint or the el:;,rm nation in chief that E;s.P3 and P4 cheques were isrs;ued by the respondent f rr the discharge of any enf<lrct:rlb1: debt or liability; iv) I.W. 1 admitted that he receivecl Ex p5 notice *t\eln the espondent contended that p.V/,1 hrLs forcibly I 4 taken trxs.P1 to P4. Ex.D1 is the office copy of notice dated

07.O5.2OO2 issued by the respondent was addressed by the complainant; v) Ex.P8 notice issued by P.W. 1 is invalid for the reason of demanding payment within seven days from the date of receipt ol notice and also demanding amount towards interest and legal expenses. I

9. The learned counsel for the appeilant would submit that the surety can also be prosecuted if the principal failed to pay the money and the order of the learned Sessions Judge has to be reversed.

10. As seen from the evidence on record, the amount of Rs.4,00,000/- was directly paid by P.W. 1 to Shantilal Gandhi for which reason, it cannot be said that the respondent is liable only for the reason ol vouching for the said Shantilal Gandhi. The conclusions arrived at by the learned Sessions Judge are cogent ald convincing for which reason, there cannot be any interference with the well reasoned judgment of the learned Sessions Judge 1n acquitting the respondent/ accused. 5 1 1. The Hor ble Supreme Court in th r: (:ase ol Radhakrishna I agesh v. State of Andhra Praril::;hi I eid that under the Indi ur criminal jurisprudence, the zri;cused has two fundamenl rl protections available to hir:r .n a criminal trial or investip r.tion. Firstly, he is presumed 1c l.re.nnocent till proved guil y and secondly that he is enti. r,:d :o a fair tria-l and invest gation. Both these facets atte.i-r everr greater significance wt ,3r:e the accused has a judgm(lt1t rf ;rcquittal in his favour. A judgment of acquittal ,: . rira-r ces the presumption ol innocence of the accused and ir r:;onre cases, it may even in r.icate a false implication. But -lrr:r-r, this has to be establish, d on record of the Court.

12. Accordin6 ly, the Criminal Appeal is disnris..;r:d. lpon;r rrP-*rn'i arcl 48 //TRUE COPY// To, s tr,-!(.srilNtvASA RAO ,.IOITIT REGISTRAR 4_E*-t-- f;ECTION OFFICER

1. The lll Adr itional Metropolitan Sessions Judgr-., irt Hytlerabad . 2. The lX Adr rtional Chief Metropolitan Magistrate , HyCerabad . 3. Two CCs k Public Prosecutor, High Court for the Stale r)1 Telrngana, at Hyderabad'OUT)

4. One CC tc SRl. C SHARAN REDDY Advocate [OPU(] 5. Two CD Cr pies 6. One Spare Copy cor4f----.. HIGH COURT DATED:2610712022 I I ORDER CRLA.No.719 of 2008 , l AfE oF r 'l I t\ \\\ lstt i (i cl. .(( ls'l n o',,11' DISMISSING THE CRIMINAL APPEAL. q d I