IN THE HIGH COURT OF ANDHRA PRADESH:

AT AMARAVATI

***

Criminal Appeal No.937 of 2017

Between:

Varre Veera Raghavamma, W/o. Nagesh, Hindu, aged about 49 years,

Occupation business, R/o.D.No.1 -380, Besides CTC Church,

Rayudupalem, Kakinada Rural Mandal, Eas t Godavari District.

…. Appellant/Respondent/Complainant

And

1) Devara Surya Satya Ananda Rao, S/o. Narasannarao, Hindu, aged

about 64 years, Occ: Retd. ARSI, R/o. Behind CTC Church,

Teacher’s Colony, Rayudupalem, Kakinada, East Godavari District.

2) Devara Hemavathi, W/o. Surya Satya Ananda Rao, Hindu, aged

about 61 years, Occ: House Wife, R/o. Behind CTC Church,

Teacher’s Colony, Rayudupalem, Kakinada, East Godavari District.

…Respondents/Appellants/Accused

3) The State of Andhra Pradesh, represented through Public

Prosecutor, High Court of Judicature at Hyderabad.

….Respondent

Date of Judgment pronounced on : 14.08.2023.

THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO

1. Whether Reporters of Local newspapers : Yes/No

may be allowed to see the judgments?

2. Whether the copies of judgment may be marked : Yes/No

to Law Reporters/Journals:

3. Whether the Lordship wishes to see the fair copy : Yes/No

of the Judgment?

___________________________________

JUSTICE T. MALLIKARJUNA RAO

2

TMR, J

Crl.A.No.937 of 2017

* THE HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

+ Criminal Appeal No.937 of 2017

% 14.08.2023

# Varre Veera Raghavamma, W/o. Nagesh, Hindu, aged about 49

years, Occupation business, R/o.D.No.1-380, Besides CTC Church,

Rayudupalem, Kakinada Rural Mandal, East Godavari District.

…. Appellant/Respondent/Complainant

And

$1) Devara Surya Satya Ananda Rao, S/o. Narasannarao, Hindu, aged

about 64 years, Occ: Retd. ARSI, R/o. Behind CTC Church,

Teacher’s Colony, Rayudupalem, Kakinada, East Godavari

District.

2) Devara Hemavathi, W/o. Surya Satya Ananda Rao, Hindu, aged

about 61 years, Occ: House Wife, R/o. Behind CTC Church,

Teacher’s Colony, Rayudupalem, Kakinada, East Godavari

District.

…Respondents/Appellants/Accused

3)The State of Andhra Pradesh, represented through Public

Prosecutor, High Court of Judicature at Hyderabad.

….Respondent

! Counsel for the Appellant : Sri A.K. Suresh Reddy.

Counsel for the Respondents/: 1) Sri M.V. Suresh.

Accused 1 & 2 2) Addl. Public Prosecutor

for Respondent No.3.

<Gist :

>Head Note:

? Cases referred:

1) AIR 2000 SC 1833

2) 2008(10) SCC 450

3) A.I.R. 1999 SC 1008

4) 2017(2) ALD Criminal 958 SC

5) 2021 (15) SCALE 184

6) 2022 Latest Caselaw 3827 Guj

3

TMR, J

Crl.A.No.937 of 2017

THE HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

CRIMINAL APPEAL NO.937 OF 2017

JUDGMENT :-

1. This Criminal Appeal is filed by the appellant, who was the

respondent/complainant in Criminal Appeal No.310 of 2015, on the

file of IV Additional Sessions Judge, East Godavari District, Kakinada

(for short, “Additional Sessions Judge”), challenging the Judgment,

dated 17.07.2017, whereunder the learned Additional Sessions Judge

allowed the Criminal Appeal filed by the respondents/accused,

setting aside the conviction judgment dated 05.06.2015 in

C.C.No.262 of 2014, on the file of V Additional Judicial First Class

Magistrate (for short, “the trial Court”), Kakinada, under Section 138

of Negotiable Instruments Act, 1881 (for short, “N.I. Act”).

2. The parties to this Criminal Appeal will hereinafter be referred

to as described before the trial Court for the sake of convenience.

3. The appellant herein, in the capacity of the complainant before

the trial Court filed a complaint under Section 138 of N.I. Act.

4. The case of the complainant is that A.1 and A.2 borrowed

Rs.3,00,000/- each from the complainant on 27.03.2011, agreeing to

repay the same with interest at 18% per annum, and they executed

Ex.P1 and Ex.P2 Promissory notes respectively. On 03.02.2013, A.1

and A.2 issued Ex.P3-Cheque bearing No.401701 for Rs.6,00,000/-

towards part payment, drawn on Axis Bank Limited, Kakinada, in

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Crl.A.No.937 of 2017

favour of the complainant. On being presented with the Cheque by

the complainant, the same was dishonoured and returned with Ex.P4

cheque return memo with an endorsement "payment stopped by the

drawer". Later, on 04.03.2013, the complainant got issued Ex.P5

legal notice to the accused, for which the accused gave a reply on

14.03.2013 under Ex.P6, but the accused did not pay any amount

and kept quiet. Hence, the complainant filed a complaint against the

accused.

5. The learned V Additional Judicial First Class Magistrate at

Kakinada took cognizance under Section 138 of N.I. Act. After the

appearance of the accused and after furnishing copies of documents

under Section 207 of Cr.P.C., they were examined under Section 251

of Cr.P.C. concerning the allegations in the complainant case, for

which they denied the allegations, pleaded not guilty and claimed to

be tried.

6. During the trial on behalf of the complainant, the complainant

himself was examined as P.W.1 and marked Exs.P1 to P6. After the

closure of complainant’s evidence, the accused were examined under

Section 313 of Cr.P.C. concerning the incriminating circumstances

appearing in the evidence, for which they denied the same and

reported defence evidence. A.1 himself was examined as D.W.1 and

got marked Exs.D1 to D4 documents to prove their case.

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Crl.A.No.937 of 2017

7. The learned V Additional Judicial First Class Magistrate,

Kakinada, convicted the accused 1 and 2 under Section 255(2)

Cr.P.C. for the offence under Section 138 of N.I. Act, and they are

sentenced to suffer Simple Imprisonment for six months and shall

also pay a fine of Rs.10,000/- each, in default, to suffer Simple

Imprisonment for one month. Aggrieved by the Judgment, accused 1

and 2 preferred an appeal vide Criminal Appeal No.310 of 2015

before the learned IV Additional Sessions Judge, East Godavari,

Kakinada, which was allowed by setting aside the trial Court

judgment. Felt aggrieved, the unsuccessful complainant filed the

present Criminal Appeal.

8. Sri A.K. Kishore Reddy, learned counsel representing the

appellant, would contend that the learned Additional Sessions Judge

ought to have considered that the accused had admitted to a

financial transaction with the appellant. Therefore, the learned Judge

ought not to have acquitted the accused solely based on the letter

sent to the bank to stop payment. He further asserts that the

Additional Sessions Judge ought to have taken into account that

once the borrowed amount had been repaid by the accused, he

should not have had to wait for the return of the promissory notes

and cheques from the appellant. As a result, sending a letter to the

bank to stop the payment and then issuing a Cheque afterwards

indicates malicious intent on the part of the accused. The

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Crl.A.No.937 of 2017

observations made by the learned Additional Sessions Judge that the

appellant had obtained the promissory notes and the disputed

Cheque on the same day are flawed, and acquitting the accused

solely on the basis is unlawful.

9. Per contra, Sri M.V. Suresh, learned counsel appearing for the

respondents/accused 1 & 2 , would contend that the learned

Additional Sessions Judge correctly acquitted the accused 1 and 2 for

the offence under Section 138 of N.I. Act. The reasons given by the

learned Judge require no interference.

10. Now, the point that arises for determination is:

Did the learned Additional Sessions Judge commit

any error in acquitting the accused 1 and 2 for the

offence punishable under section 138 of the N.I Act?

POINT:

11. The scope of interference in an appeal against Acquittal has

been gone into by the Hon'ble Supreme Court in Jaswant Singh v.

State of Haryana

1

, wherein it was observed as under:-

"21. The principle to be followed by appellate courts considering an

appeal against an order of Acquittal is to interfere only when there are

compelling and substantial reasons for doing so. If the order is

unreasonable, it is a compelling reason for interference (see Shivaji

Sahabrao Bobade v. State of Maharashtra 1973CriLJ 1783). The

principle was elucidated in Ramesh Babulal Doshi v.State of Gujarat

1996CriLJ2867: While sitting in Judgment over an acquittal, the

1

AIR 2000 SC 1833

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Crl.A.No.937 of 2017

appellate Court is first required to seek an answer to the question

whether the findings of the trial court are palpably wrong, manifestly

erroneous or demonstrably unsustainable. If the appellate Court

answers the above question in the negative, the order of Acquittal is

not to be disturbed. Conversely, if the appellate Court holds, for

reasons to be recorded, that the order of Acquittal cannot be sustained

given any of the above infirmities, it can then and then only reappraise

the evidence to arrive at its own conclusions."

12. The Hon’ble Supreme Court, in Ghurey Lal vs State of U.P.

2

,

while referring to the case of Sheo Swarup v. King Emperor [AIR

1934 PC 227(2)] discussed the ambit and scope of the powers of the

appellate Court in dealing with an appeal against Acquittal and

observed as under:

"..the High Court should and will always give proper weight and

consideration to such matters as (1) the views of the trial Judge as to

the credibility of the witnesses, (2) the presumption of innocence in

favour of the accused, a presumption certainly not weakened by the

fact that he has been acquitted at his trial, (3) the right of the accused

to the benefit of any doubt, and (4) the slowness of an appellate court

in disturbing a finding of fact arrived at by a Judge who had the

advantage of seeing the witnesses.."

The law succinctly crystallized, in this case, has been consistently

followed by this Court. On proper analysis of the ratio and findings of

this case, it is revealed that the trial court findings are based on the

fundamental principles of criminal jurisprudence. The presumption of

innocence in favour of the accused is further reinforced and

strengthened by the trial court's Acquittal. The appellate Court

undoubtedly has wide powers of re-appreciating and re-evaluating

the entire evidence. Still, it would be justified to interfere with the

2

2008(10) SCC 450

8

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Crl.A.No.937 of 2017

Judgment of Acquittal only when the trial court judgment is palpably

wrong, totally ill-founded or wholly misconceived, based on erroneous

analysis of evidence and non -existent material, demonstrably

unsustainable or perverse.”

13. In light of the settled above legal position, I now consider the

facts of the present case. Section 138 of the N.I. Act provides that a

drawer of a cheque is deemed to have committed the offence if the

following ingredients are fulfilled:

(i) A cheque drawn for the payment of any amount of money to

another person;

(ii) The Cheque is drawn to discharge the "whole or part" of any

debt or other liability. "Debt or other liability" means legally

enforceable debt or other liability; and

(iii) The Cheque is returned by the bank unpaid because of

insufficient funds.

However, unless the stipulations in the proviso are fulfilled, the

offence is not deemed to be committed. The conditions in the

provision are as follows:

(i) The Cheque must be presented in the bank within three months

from the date on which it was drawn or within the period of its

validity;

(ii) The holder of the Cheque must make a demand for the payment

of the "said amount of money" by giving a notice in writing to

the drawer of the Cheque within thirty days from the receipt of

the notice from the bank that the Cheque was returned

dishonoured; and

(iii) The holder of the Cheque fails to make the payment of the "said

amount of money" within fifteen days from the receipt of the

notice.

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Crl.A.No.937 of 2017

14. The complainant was examined as P.W.1 and got marked

Exs.P1 to P6 documents. It is the case of the complainant that A.1

borrowed Rs.3,00,000/- from the complainant and executed Ex.P1-

Promissory Note, dated 27.03.2011 and A.2 also borrowed

Rs.3,00,000/- from her and executed Ex.P2-Promissory Note.

15. The 1

st

appellant/A.1 was examined as D.W.1. It is not disputed

that A.1 was retired as Assistant Reserve Sub-Inspector. According to

his evidence, he and his wife jointly borrowed Rs.50,000/- from the

complainant in April 2010 at the interest rate of Rs.10/ - per

Rs.100/- per month. At the time of the loan transaction, the

complainant obtained two blank promissory notes, i.e. one from his

wife and another from him and one blank Axis Bank cheque from

them, and the said Cheque bearing number is 401701. In the chief

examination itself, he deposed that the signatures on Exs.P1, P2, and

P3-cheque belong to them. According to D.W.1, Exs.P1 to P3 were

obtained by P.W.1 in the blank State from them in April 2010, at the

time of the loan transaction, and the complainant filed this complaint

by fabricating the said blank promissory notes and a blank cheque.

D.W.1 also admitted that P.W.1 got issued a statutory legal notice

dated 14.03.2013 [Ex.P5]. After receipt of the legal notice, they got

issued Ex.P6-Reply notice dated 14.03.2013. According to the version

of D.W.1 that he never issued Ex.P3 cheque to the complainant

towards the discharge of legally enforceable debt.

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Crl.A.No.937 of 2017

16. Thus, it is not in dispute that the complainant complied with

the presentation of the Cheque in the bank for its encashment, the

issuance of statutory notice to the accused and the filing of the

complaint within the period of limitation.

17. Once the accused have admitted their signatures on the Cheque

and handed it over, it means that the person signing it has given

implied authority to the holder of the Cheque to fill up the blanks

which they have left. Even when issuing a blank cheque, there

cannot be an excuse for liability if the other requirements of Section

138 of N.I. Act are proved.

18. In Bharat Barrel and Drum Manufacturing Company Vs

Ameen Chand Pyarelel

3

, wherein it is observed that:

"Upon consideration of various judgments as noted herein above,

the position of law which emerges is that once execution of the

promissory note is admitted, the presumption u/Sec.118-A would

arise that it is supported by consideration. Such a presumption is

rebuttable.

It is further held that the burden upon the defendant of proving

the non-existence of consideration can be either direct or by bringing

on record the preponderance of probability by reference to the

circumstances upon which he relies.

It is further held that the bare denial of the passing of

consideration apparently does not appear to be any defence.

Something which is probable has to be brought on record for getting

the benefit of shifting the onus of proving to the plaintiff.

3

A.I.R. 1999 SC 1008

11

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Crl.A.No.937 of 2017

It is further held that it is true that the plaintiff had produced

evidence, and the evidence was, in fact, the evidence in rebuttal of

the evidence produced by the defendant in the case. Even though it

is true that the plaintiff's evidence was not believed yet, the same

could not be made the basis for rejecting the claim because the

obligation upon the plaintiff to lead evidence to prove his case could

not have been insisted upon because the defendant has prima-facie

or initially in not discharge his onus of proof by showing directly or

probabalizing the existence of non-consideration".

19. It is not in dispute that Ex.P3-Cheque contains the signature of

the accused, and the said Cheque was generated from the account of

the accused. When once the accused admitted the signatures and on

the request made by the accused, the payments were stopped, a

presumption would arise that the Cheque was drawn for consideration

on the day on which the cheque bore and the Court had to presume

that the holder of the Cheque received it, for discharge of any debt or

liability.

20. In light of well-settled legal principles, the burden lies on the

accused to prove the non-existence of consideration by bringing on

record such facts and circumstances, which would lead the Court to

believe the non-existence of the consideration. If the accused

discharges the onus of proof showing that the existence of

consideration was improbable or doubtful and the execution of the

promissory note, the onus would be shifted to the complainant. Then

he will be obliged to prove the existence of the consideration.

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Crl.A.No.937 of 2017

21. In Meters and Instruments Private Limited and others vs

Kancham Mehta

4

, wherein it is observed that:

“18. From the above discussion following aspects emerge:

(i) An offence under Section 138 of the Act is primarily a civil

wrong. The burden of proof is on the accused in view of

presumption under Section 139, but the standard of such

proof is "preponderance of probabilities".

22. P.W.1/Complainant testified that on 03.02.2013, despite her

repeated requests, both accused issued a Cheque with No.401701

amounting to Rs.6,00,000/- in her name. The said Cheque was drawn

from their joint account at Axis Bank Limited, Kakinada, towards part

satisfaction of the amount due covered under Exs.P1 and P2

promissory notes. As already observed, it is not in dispute that Ex.P3-

Cheque was issued by the accused. According to the accused’s case,

they provided the Cheque in April 2010 when they borrowed

Rs.50,000/-. To discharge their burden that they hadn’t issued a

cheque, as the complainant alleges the accused relied on Ex.D4, a

Letter from Axis Bank in Kakinada. It is the accused’s contention that

on their request only, the payments were stopped long back, and the

date on Cheque is two years after the stoppage. Ex.D4, the letter from

the bank authorities confirms that they accepted the accused’s

request to stop payment for the Cheque bearing number 401701 on

30.07.2011 itself. Considering this evidence, it becomes highly

4

2017(2) ALD Criminal 958 SC

13

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Crl.A.No.937 of 2017

unlikely to accept the complainant’s statement that the accused

issued the disputed Cheque, i.e. Ex.P3, on 03.02.2013.

23. D.W.1 had provided a clear account of the circumstances that

led him to make the request to the bank. According to his testimony,

he regularly paid interest to the complainant based on the

transactions vide Exs.P1 and P2. On 11.02.2011, he received

retirement benefits totalling Rs.10,00,000/- and more. Out of the

retirement benefits, he settled the loan amount owed to the

complainant. To substantiate the defence, the accused referred to

Ex.D1, an entry dated 11.02.2011 found in the joint passbook of the

accused. This entry indicates that Rs.10,06,929/- was available in

their bank account. Additionally, Ex.D2, an Entry dated 25.02.2011,

shows an amount of Rs.1,00,000/- available in the said joint

passbook. Furthermore, Ex.D3, an account copy provided by the

Branch Manager, outlines the account details of the accused from

30.04.2010 to 03.02.2015.

24. As per D.W.1’s version, he retired from the service on

30.06.2010. Ex.D3 indicates that at the time of transactions detailed

in Exs.P1 and P2, Rs.7,83,960/- was available in the bank account.

Given this balance, it becomes difficult to accept the complainant's

assertion that the accused borrowed Rs.6,00,000/ - from her.

According to the accused’s version mentioned in the reply notice and

supported by DW.1’s testimony, DW.1 retired from service on

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TMR, J

Crl.A.No.937 of 2017

30.06.2010 and received Rs.9,00,000/- from the Government in

November 2011. They repaid the borrowed amount of Rs.50,000/-

along with the interest that they had taken in April 2010. Subsequent

to settling the amounts, the accused requested the complainant to

return the promissory notes and a blank cheque. However, she

informed them that these documents were misplaced. This led the

accused to suspect the complainant's intention and the possibility of

these empty documents being misused. Consequently, in July 2011,

they informed Axis Bank officials to stop payment on Cheque with

number 401701 . It's unlikely that the accused's intention in

addressing the bank in July 2011 was to issue a cheque in 2013. This

makes the complainant's claim that the accused issued the Ex.P3

cheque on 03.02.2013, two years after the execution of Exs.P1 and

P2, less plausible. The primary issue raised by the complainant is

that the accused didn't provide her with a notice in 2011 when they

informed the bank. It's true that no such notice was given to the

complainant. The Court's perspective is that if the accused had

provided this information to the complainant, the possibility of filling

out the blank Cheque in line with the notice's content couldn't be

ruled out. The evidence on record firmly establishes that the

complainant's account regarding the issuance of the Cheque by the

accused on 03.02.2013 is inaccurate.

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Crl.A.No.937 of 2017

25. The complainant's position is not centered on the notion that

the accused provided her with a signed blank cheque for her to fill in

the details as needed. Instead, she asserts that on 03.02.2013, she

received a signed cheque for Rs. 6,00,000/- from the accused. The

evidence on record unequivocally demonstrates that two years before

the purported issuance of the Cheque, the accused had contacted the

bank authorities to halt payment. In contrast, the accused's central

argument is that the complainant lacks the capacity to lend

Rs.6,00,000/-, and moreover, they have no motive to borrow such an

amount around the time of Exs.P1 and P2. As previously noted, the

available evidence indicates that the accused held more than

Rs.7,00,000/- in their account at the time of the promissory note

transactions. Ex.D3's account entries reveal that starting from

18.10.2010, an amount exceeding Rs. 7,00,000/- was present in the

Savings Bank account of the accused individuals until 03.02.2015.

Commonly, Savings Bank accounts offer interest rates ranging from

5% to 6%. It becomes difficult to accept the complainant's argument

that in 2011, the accused borrowed Rs. 6,00,000/- from her with an

agreement to repay at an interest rate of 18% per annum. In reality, if

the accused needed funds, they could have withdrawn the necessary

amount from their Savings account to fulfill their needs. It would be

unusual for them to resort to borrowing with the stipulation of paying

18% interest per annum.

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Crl.A.No.937 of 2017

26. Regarding P.W.1's financial capacity, she mentioned during her

cross-examination that they do not possess any house or properties in

Kakinada. She currently resides in a rented house. Additionally, she

acknowledged that she did not file any suit based on Exs.P1 and P2,

the promissory notes. Interestingly, she didn't provide a reason for not

filing a suit. She also admitted that the accused individuals had

issued stop-payment letters to their bank before 03.02.2013. Notably,

during the cross-examination of D.W.1, there was no suggestion made

attributing motives for addressing the bank with a stop -payment

letter two years before the alleged issuance of the Cheque. This

omission indicates that no motives were being assigned to the

accused in connection with this action. Given that no such motives

were suggested or implied, and there was no cross-examination of

D.W.1 in this regard, the Court agrees that the Additional Sessions

Judge's observation is valid. This observation holds that the accused's

version of events is more credible and plausible.

27. In the cross-examination of P.W.1 also stated that she does not

know whether A.1 was retired from service on 30.06.2010 or not. This

Court views that when P.W.1 really lent such a huge amount to the

accused, she should have made enquiries as to whether the 1

st

appellant/A.1 was continuing in the service or not. P.W.1 also stated

that there is no documentary evidence with her to say that she had an

amount of Rs.6,00,000/- on the date of the alleged loan transactions.

17

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Crl.A.No.937 of 2017

She denied the suggestion that A.1 retired from service in the year

2010, he got retirement benefits in the month of January 2011, and

he repaid the loan amount in the month of February 2011. Even

P.W.1 did not say in her evidence with regard to the date of retirement

of A.1. The bank account shows that the accused received more than

Rs.7,00,000/- during that period, as contended by him.

28. Upon a thorough examination of P.W.1's evidence, this Court

observes that she has not presented either oral or documentary proof

to substantiate her ability to lend Rs. 6,00,000/- at the time of the

Exs.P1 and P2 transactions. It's notable that if she indeed had lent

such an amount under the promissory notes, she would have taken

legal action to recover the owed sum. However, there is no explanation

provided by the complainant for her decision not to file a suit for the

recovery of the amounts from the accused persons. In light of these

circumstances, it seems more plausible that since the accused had

settled the debt owed to her, she chose not to pursue legal remedies

against them in the Civil Court. This interpretation gains credibility

given the lack of evidence regarding her lending capacity and the

absence of an explanation for not filing a recovery suit.

29. The evidence of P.W.1 shows that A.1 and A.2 are not relatives,

they do not belong to her caste, and she does not know when A.1

retired from the service. In the facts of the case, it is difficult to believe

the lending of huge amounts to the accused.

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Crl.A.No.937 of 2017

30. The available evidence clearly indicates that the accused had no

compelling need to borrow the specified amount, considering that they

possessed Rs. 7,00,000/- in their bank account at the time of the

Exs.P1 and P2 promissory note transactions. The complainant has

not provided a satisfactory explanation or demonstrated the source of

her income that would enable her to lend such a substantial sum to

the accused. The accused have presented substantial evidence before

the Court, and based on this, the complainant's assertion that they

issued a cheque on 03.02.2013 is proven to be inaccurate. The

evidence adduced supports the view that the accused's version is

more likely and credible in this context.

31. It is a cardinal principle of criminal jurisprudence that in an

acquittal appeal, if another view is possible, then also the appellate

Court cannot substitute its view by reversing the Acquittal into

conviction unless the findings of the trial Court are perverse, contrary

to the material on record, palpably wrong, manifestly erroneous or

demonstrably unsustainable.

32. In a decision reported in Mohan @ Srinivas @ Seena @ Tailor

Seena vs. State of Karnataka

5

, the Hon'ble Apex Court has

observed the scope of section 378 of the Criminal Procedure Code as

under:-

“Section 378 Cr.P.C. enables the State to prefer an appeal against

an order of Acquittal. Section 384 Cr.P.C. speaks of the powers that

5

2021 (15) SCALE 184

19

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Crl.A.No.937 of 2017

can be exercised by the Appellate Court. When the trial Court

renders its decision by acquitting the accused, the presumption of

innocence gathers strength before the Appellate Court.

Consequently, the onus on the prosecution becomes more

burdensome as there is a double presumption of innocence.

Certainly, the Court of the first instance has its advantages in

delivering its verdict, which is to see the witnesses in person while

they depose. The Appellate Court is expected to involve itself in a

deeper, studied scrutiny of not only the evidence before it. Still, it is

duty bound to satisfy itself whether the decision of the trial Court is

both a possible and plausible view. When two views are possible,

the one taken by the trial court in a case of Acquittal is to be

followed on the touchstone of liberty and the advantage of having

seen the witnesses.”

33. In a decision reported in State of Gujarat vs Thanabhai

Ganeshbhai Rajput

6

, it is held that

“It may be noted that as per the settled legal position when two

views are possible, the Judgment and order of the Acquittal passed

by the trial Court should not be interfered with by the Appellate

Court unless for special reasons. The decision of the Supreme Court

in the case of the State of Rajasthan Vs. Ram Niwas [reported

(2010) 15 SCC 463] can be relied on in this regard.

34. The accused has successfully discharged the initial burden by

providing plausible evidence of the issuance of a cheque in the month

of April 2010.

35. In the instant case, the appellant has yet to be able to point out

how the findings recorded by the learned Additional Sessions Judge

6

2022 Latest Caselaw 3827 Guj

20

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Crl.A.No.937 of 2017

are perverse, contrary to material on record, palpably wrong,

manifestly erroneous or demonstrably unsustainable.

36. Based on the settled legal position and careful examination of

the Judgment of the learned Additional Sessions Judge, this Court

concurs with the conclusion reached by the appellate Court.

Therefore, this Court agrees with the Appellate Court's finding that the

disputed Cheque was not given by the accused to discharge any

legally enforceable debt due by them.

37. In light of the analysis, the trial Court's conclusion was found to

be erroneous, and the appellate Court’s Judgment aligns with the

settled legal position. The point is accordingly answered in favour of

the accused and against the complainant. The finding of the learned

Additional Sessions Judge warrants no interference, and the appeal is

liable to be dismissed.

38. As a result, the Criminal Appeal is dismissed by confirming the

Judgment dated 17.07.2017 in Crl.A.No.310 of 2015 passed by the

learned IV Additional Sessions Judge, Kakinada.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

__________________________________

JUSTICE T. MALLIKARJUNA RAO

Dt. 14.08.2023.

MS

Note: LR copy to be marked.

B/o. MS

21

TMR, J

Crl.A.No.937 of 2017

THE HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

CRIMINAL APPEAL NO.937 OF 2017

Date:14.08.2023

MS