Commissioner of Income Tax-1, vs. Agricultural Market Committee

[ 32sl ] IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY ,THE TENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL NO: 83 OF 2011 ^^ ^_ Appeat filed under Section ^378(4) of Cr p.C., against the Judgment dated 2306.2010 passed in c.c.No. 46 ot'2:.oog on the fir6 of tne cturt"oiin" ivr Aoor.onat . Judge - cum _ XX Additional Chief Niletropolitan f\ilagistrate, at Hyderabad. Between: !fo.h.!..!oy9uf Khan, S/o Mohd. Nawaz Khan, Age: 24 yearc, H.No.19-3_ 294167 lD, Vattenpally, Fatima Nagar, Hyderabad. ...Appella nUCom plaina nt lf,q*1.^1^5T1fl-C-Fldr, S/o. Mohantat, Ase: 35 years, H No 1_B-7o1tl , vroyanagar, Hy0erabad. The State of Andhra Pradesh,, Represented by its public prosecutor, High Court of Andhra Pradesh, Hydeiabab. ... Res pon de n ts/Acc u s ed AND Counsel for the Appellant : Sri Ch. Siddaiah Counsel for Respondent No.2 : public prosecutor Counsel for Respondent No.1 : None appeared The Court delivered the foltowing: JUDGMENT 1 2

THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.83 Ot'2O11 JUDGMENT: The appellant is the complainant before the Court belolr,. He was unsuccessful in the prosecution launched against the accused for the offence under Section 138 of the Negotiable Instruments Act. Aggrieved by the said dismissal of the complaint by the trial Court, present appeal is fited 2. The appellant/complainant's case is that the he is acquainted rvith the accused and due to the friend ship, at the request of the accused, Rs.50,O0O/- was given as loan to the accused for the purpose of purchasing shares. Accused agreed that the said amount would be repaid within 2 months, free of interest. Tou,ards the said repayment, cheque in question for Rs.50,0OO/- dated 08.O5.2O08 was handed over to the complainant. fne said cheque when presented for clearance was returned unpard on the ground of insufficient funds. Notice was issued on 24 .O5.2O08 under both registered and certilicate of posting. Since tl-re notice was sent to correct address and the amount was not paid having received the notice, complaint vvas filed.

2 3. Before the Court below, complainant was examined himself as PW.1 and Exs.Pl to p5 were marked. The accused entered into witness box and examined himself as DW. 1. 4. The contention of the accused is that the complainant is a total stranger. In fact, he has seeing him for the first time in the court after summons were issued. In reply to the notice that was sent, Ex.Dl-reply dated 31.05.2009 was issued. Ex.D2 is the office copy of Ex.D1-reply dated 31.OS.2OO8. Ex.D3_office copy of legal notice dated 30.04.200g issued to one Rajkawar Asawa which was placed on record. According to the complainant,s version, the cheque in question ald two other cheques were in fact issued to the said Rajkawar Asawa and her two sons. The income-tax returns Exs.D4 and D5 were also filed. Further, the accused a_lso filed the copy of the charge sheet that was filed in CC.No.35/2009 against the brother and brother,s wife of the accused. He deposed in the Court that the cheque in question along with 4 other cheques were given to the said Rajkawar Asawa along with Promissory Notes and bond paper in blank towards security. One of tJle cheques were fabricated and it was liled through the complainant. In fact, the said cheques and promissory notes were given to the said Rajkawar Asawa who is the wife of the counsel for the complainant and who used to run

3 chits illegally. In connection u,ith the said chit transaction, the cheques in question were issued. 5. The learned trial Court found that the acquaintance of the accused with the counsel for the complainant u,as evident. However, Exs.D4 and D5 which were income tax returns filed would not prove that they were prepared by counsel for the complainant. The said version given by DW1-accused was believed and the Court found that the complainalt who was aged around 24 years did not have any source of income and he was also not competent to advarce the said amount. In fact, on the basis of Exs.D 1 to D3 and D6, the learned Magistrate found that the version given by the accused was convincing and accordingly recorded acquittal 6. Learned Counsel appearing for the complainalt would submit that once the issuance of the cheque was admitted, presumption arises that it was issued towards legally enforceable debt. The accused had weaved a story which cannot be believed. Further, he did not prove that the wife of the complainant's counsel nameh' Raj kawar Asava was running a chit fund business. In the absence of such proof, it cannot be said that

4 cheques arrd promissory notes were issued to the said Rajkawar Asava and not the complainant. 7. The specific case of the accused from the beginning of the notice being sent is that the complainant,s counsel wife was running chit fund business. In the said chits run by the wife of the complainant's counsel, the cheques in question were given. The said defence was taken in both Exs.Dl and D2 which are the office copies of the reply notices given to the complainant. Ex.D3 is legal notice that was addressed to Rajkawar Asawa and her SONS. 8. It is not the case of the accused that the cheque in question was issued to the complainant towards any securit5z. The specilic case is that the cheque in question along with other cheques was handed over to the said Rajkawar Asava. He has placed on record the disputes in between the accused and the said Rajkawar Asawa by filing the notice and also the complaint filed against the brother and sister-in-law of the accused. The initial burden on the complainant in the case under Section 138 of the Negotiable Instruments Act has not been discharged. Even assuming that presumption arises under Section 139 of the Negotiable Instruments Act, the burden is one_ of preponderance of

5 probability. The accused has taken steps to examine himself and also produced records to substantiate his defence that was tal<en at the earliest point of time while sending Ex.D 1-notice. On the other hand, thc complainant except stating that he has was given loan of Rs.50,00O/ , he has not placed on record his source of income nor stated that as to how he secured the amount of Rs.50,000/- and handed over it to the accused. The complainant was aged 24 years when the complaint was filed. Having gone through the versions given by the accused and explained by him during the course of trial, version of accused is convincing. On the other hand, thc complainant has not proved his case. The trial Court has rightly dismissed the complaint by acquitting the accused. 9. In Ravi Sharma v. State lGovernment of NCT of Delhif and anotherl, the Hon'ble Supreme Court held that u,hile 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 when evidence on record has been analysed. The rerason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the 'lZOZZle Supreme Coun Cases 5i6

-w 6 appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. 10. In Ghureg Lal t State of tlttar Pradesh' the Hon'ble Supreme Court aJter referring to several Judgments regarding the settled principles of law and the powers of appellate Court in reversing the order of acquittal, held at paraTO, as follows: "7O. In the light of the aboue, the High Court and other appellate Courts should follout the uell-settled pinciples crystallized by number of Judgments if it is going to ouemtle or otherutise disturb the tial court's acquittal: 1 . The oppellate court maA onlg ouemtle or othenuise disturb the tial court's acquittal if it has "uery substantial ond compelling reasons" for doing so- A number of instances arise in u-thich the appellate court uould haue "uery substantial and compelling reo.sons" to discard the trial court's decision- "Very substantial and compelling reasons" eist when:i) TLe tnal court's conclusion uith regard to the facts is palpablg wrong: ii) The trial court's decision was based on an erroneous uiew of lau; iii) The fial court's judgment i.s likelg to result in "graue mis carriag e of justice " ; tu) TLrc entire approach of the tiol aurt in dealing uith the euidence uas patentlg illegal; u) The trial court's judgment LUas manifestlg unjust and unreasonable; ui) The trial court trc,s ignored the euidence or misread the mateial euidence or hr"s ignored mateial documents like dying declaration-s/ report of the bolli.stic expert, etc. uii)This list is intended to be illustratiue, not exLnustiue. 2. The appellate court must aluags giue proper u.teight and considerotion o the find.ings of the tial court. 3- If tulo reasonable uieu-ts can be reacled.- one that leads to acquittal, the other to conuiction _the High Courts/ appellate courts must rule in fauour of the accused." I I I i i '1zoot) to Supreme Court Cases 450

7 11. In view of the law laid down by the Honourable Supreme Court in the aforesaid Judgments and in the facts and circumstances. unless compelling reasons and suffrcient grounds or strong circumstarices are shown, the appellate Court in an appeal against acquitta-l shall not interfere with the hndings ol the trial Court, though a differenl. view can be taken. It is further held that the Honourable Supreme Court has cautioned interference in appeal against acquittal when the conclusions of the tria,l Court are reasonable. 12. Accordingly, Criminal Appeal is dismissed. //TRUE COPY// Sd/- M. MANJULA DEPUTY REGISTRAR SECTION OFFICER To, 'l . The XVI Additionar Judge - cum - xx Additionar chief Metroporitan ^ IMagis-lrate at Hyderabad. lwith records) 2. Two ccs to the pubric prcisecutor, Hign court for the state of rerangana at Hyderabad. (OUT) 3. One CC to Sn Ch Siddaiah, Advocate tOpUCl 4 Two CD Copies NJB/DLw

HIGH COURT DATED:1010912024 (o 'ir "t" .Z--:\ , (HE S r4;--\\ \ _ trr.\\ /i'\ +-'\ rlui 2t24 ia.r JUDGMENT CRLA.No.83 of 2011 DISMISSING THE CRIMINAL APPEAL i I ,{odo} 'X&'{ 2)\'