THE COMMISSIONER OF INCOME TAX(CENTRAL) vs. OIL COUNTRY TUBULAR LTD

HIGH COURT FOR THE STATE OF TI:I-ANGANA AT IIYDERABAD TUESDAY, THE NIN I'H DAY OF ]ULY TWO THOUSAND AND-TWENTY FOUR PI{l1SF.N'f THE HONOURABLE SRI TUSTICE E.V. VENUCOPAL Criminal Appeal No.213 of 2018 Criminai Appeal under Section 378 (4) Cr.l'].C. against the iudgment dated 06.12.2017 passed in Crl.A.No.163 of 2016 on the file of the II Additional District & sessions ludge (FTC) Mancherial preferrecl against the iudgment dated 16.71.201,6 passed in C.C.No.4/2016 (New) [C.C.No .34212015 (old)] on the file of the Principal Judicial Magistrate of First Class, Manche'rial. Counsel for the Appellant: Sri Mand.r ,\tl.ttrr Counsel for the Respondent No-1: Sri C.l lari I'rceth. Counsel for the Respondent No.2: T[rt' I'tr['lir I'rosecrttor The Court made the following: JUDC\ltr\ I ! Between: Md. Nayeem, S/o. Yaseen, aged about 65 vt'ars, Occ-Business, R/o' Iqbal Ahmed Nagar, Mancherial. ... A ppcl larrt(Cornpainant/ Respondent No.1) AND 1. Kuchadi Sunil Rao, S/o. Jagan Rao, asetl at'ottt 47 ycars, Occ-bsuiness, R/o' Flat No.36,II Floor, Brock-No.3, Asian ros't'rs. *,,:t:,f,::{;Xli.ili;lla7eppu,".ty 2. The State of Telangana, Rep., by its l)ulrlic [)rttsecutttr, ] Iigh Co-urt, Hyderabad' Responclent (Respondent No.2.)

I I i l .. I l THE ON'BLE S JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.213 OF 201g JUDGMENT: 1 The.complainant in C.C.No.4 of 2016 on the file of the Court of the Principal Judicial Magistrate of First Class, Mancherial filed the present criminal appeal questioning the legality and validity of the judgment dated 06.12.2017 passed in Criminal Appeal No.163 of 2016 on the file of the Couft of the III Additional District & Sessions Judge, Asifabad, wherein aM whereby the learned Additional District Judge set aside the conviction and sentence imposed by the trial Court in C.C.No.4 of 2016 against the first respondent herein and acquitted him of the offence punishable under Section 138 of Negotiable Instruments Act. 2 For the sake of convenience, the pafties to this criminal appeal will, hereinafter, be referred to as they were arrayed before the trial Court. 2 The case of the complainant as culled out from the complaint filed under Section 200 Cr.P.C. was that on 10.12.2014 the accused borrowed"an amount of Rs.3.00 lakhs from the complainant agreeing 7

2 to repay the said amount together with interest @24o/o p.a. On demand made by the complainant, the accused issued a cheque bearing No.630436 dated 16.3.3015 for Rs.3.00 lakhs drawn on Deccan Grameena Bank, Mancherial branch and on presentation of the same, it was dishonoured due to the reason 'funds insufficient', vide cheque return memo dated 06.5.2015. On the assurance given by the accused, the complainant again presented the cheque into the bank which was returned with the same endorsement on 05.6.2015. Thereupon, the complainant got issued a statutory demand notice to the accused on 15.6.2015 to pay the amount covered under the cheque. However, the accused refused to receive the said notice and he had also not paid any amount. Hence the complaint. 3 During the course of inquiry, apart from the complainant being examined as P.W.l, two more witnesses were examined on his behalf as P.Ws.2 and 3 and Exs.P.1 to P.5 were marked. On behalf of the accused no oral ordocumentary evidence was adduced. 4 The trial Court, upon considering the evidence available on record, found the accused guilty of the offence punishable under

3 Section 138 of N.I.Act, and accordingly convicted and sentenced him to rigorous imprisonment for a period of six months and shall also pay compensation of Rs.3.00 lakhs to the complainant, vide judgment dated 16.11.2016 5 Aggrieved by the said conviction and sentence, the accused preferred Criminal Appeal No.163 of 2016 on the file of the Court of the III Additional District & Sessions Judge, Asifabad. The learned Additional District Judge, after re-appreciating the entire evidence available on record, set aside the conviction and sentence imposed upon the accused by the trial Couft and acquitted him of the said offence. As stated supra, aggrieved by the said judgment of the appellate court, the complainant before the trial Court preferred this criminal appeal. 6 Heard Sri Manda Adam, learned counsel for the appellant/ complainant and Sri C.Hari Preeth, learned counsel for the accused/first respondent. 7 The contention of the learned counsel for the complainant is that the complainant has established the legally enforceable debt by il ii il 1l

4 examining P.Ws.2 and 3 and Exs.P.l to P'5. He further submitted that the accused did not adduce any evidence to rebut the presumption in the absence of which the lower appellate Court erred in acquitting the accused. 8 Now the point for consideration is whether there are any legal flaws in the impugned judgment, if so, whether the complainant is entitled to the relieP 9 It is to be seen from the record that no documentary evidence is filed on record to show that the accused borrowed Rs.3.00 lakhs from the complainant either in the form of a promissory note or any legally admissible bond. The complainant did not put forth any plausible explanation as to why he did not obtain any such paper from the accused. Though the cornplainant got examined P'Ws.2 and 3 before the Couft, he did not mention in the notice Ex.P.3 their names styling them as witnesses for the transactions. But for the first tlme he got examined them before the Court. The complainant admitted that he did not hnd money to others and he was not doing money lending business. So in such circumstances it is difficult to

5 draw a presumption that the complainant was having capacity to lend such an amount to the accused. However, to justifo the same, he stated that he had shown the amount in his Income Tax returns. But he did not file the same before the Court. 10 As seen from the cross examination of the complainant himself, he admitted that ten months before the date of lending the amount to the accused, there was an agreement between him and the accused in a land transaction and in that connection the complainant and others gave Rs.40.00 lakhs to the accused and subsequently when the said agreement was cancelled, the accused issued another cheque for an amount of Rs.5.00 lakhs and that was honoured. The suggestion given by the accused that because of the agreement with regard to the land transac.ons was cancelled, the complainant bore grudge and foisted a false case. p.W.2 also corroborated the cancellation of the agreement with regard to the land transaction between the complainant and the accused. The cross examination of P'W'2 shows that in connection with the canceration of the said agreement the accused had to pay Rs.5.00 lakhs to the complainant. ! I \ 1

6 11 All the above circumstances go to show that there is no legally enforceable debt in favour of the complainant and due from the accused. There is no convincing explanation put forth by the complainant that why the accused had given the cheque for only Rs.3.00 lakhs when there was an agreement that he would pay back the amount together with interest @ 24o/o Q'a' Therefore' the complainant failed to discharge the initial burden lies upon him' Therefore, the lower appellate Court has rightly come to the conclusion that the complainant failed to establish hls case by letting cogent and convincing documentary evidence' Hence' there is no ground much less valid ground to intefere with the well considered judgment of the lower appellate Couft and this appeal is liable to be dismissed. tZ In the result, the criminal appeal is dismissed' Miscellaneous petitions, if any, pending in this criminal aPPeal shall also stand dismissed. I //TRUECOPY// sd/-ti s\l\.\\.\lllt DEI'U lY Iil ('l\ I li.\R sE('l l()\ ()l:l'l( l:t< t. The tl r\cklitiorral District & Sessions Judge (FTC) Mat-rcherial 2. Thc l'rirrcil-ral juilicial Magistrate of First Class' Mancherial' l. C)nc CC to' Sri N'lancla Adam, Advocate [OPUCI' {. Onc CC to Sri C.Hari Preeth, Advocate [OPUCI' 5 One CC to thc Pul,lic Prosecutor, High court Buildirri"s, Flvtlt'r'aba,-l [c)U I I (r. Tr,vo CD Copics. JCK/DL g - I I Io,

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