M.A.Saleem , v. Miss Cherukuri Durga And Another,

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAI) TUESDAY ,THE TWENTY THIRD DAY OF AUGUST TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SRI JUSTICE K.SURENDER CRIMIN AL APPEAL NO: 1523 OF 2009 Petition under Section 378 of Cr.P.C aggrieved by the Judgment dated' 05.08.2008 passed in cc.No. 900 of 2006 on the file of the court of the ll Additional Chief lVetropolitan lVlagistrate at Hyderabad . Between:

Itrl.A.Saleem, S/o. IV.A Rasheed,aged about 42 years,Occ: Business, RJo. H No' 2-3-47 4l 41 I A6, Akashnagar, Amberpet, ...APELLANT/COMPLAINANT AND

1. Miss Cherukuri Durga , D/o.'Ch- Venkateshwar Rao,aged about 42.years, Occ: Principal Nightingale School of Nursingh, Hyderabad,. Rl/o. H.No. 1 27 1311, Vijayanagar Colony, Hyderabad.

2. State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad' ...RESPONDENTS/Accused Counsel for the Appellant :SRl. MIRZA SAFIULLA BAIG Counsel for the Respondent No.1 : SRl. B.V.V.S. MURTHY Counsel for the Respondent No.2: PUBLIC PROSECUTOR The Court made the following: ORDER

crl.Appeal No.152l of 2009 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No,1523 OF 2OO9 I JUDGMENT:

The complainant in C.C.No.900 of 2006 on the file of II Additional Chief Metropolitan Magistrate at Hyderabad is the appellant herein, preferred the present appeal under Section 378 of the Code of Criminal Procedure, challenging the judgment dated 05.08.2008 passed in the above C.C wherein the respondent/accused in the said case was acquitted for an offence punishable under Section 138 of the Negotiable Instruments Act (for short, the NI Act). 2.

The facts case of the case are that the complainant/appellant was given an amount of Rs.1,50,000/- as a hand loan to the respondent/accused and to discharge the said debt. he has issued the cheque in question Ex.Pl. When the said cheque was presented in State Bank of Hyderabad, Gruhakalpa Branch, Hyderabad for clearance, the same was returned unpaid for the reason of insufficient funds vide Ex.P2.

Crl.Appeal No.1523 of 2009 3.

After recording the sworn statement, the said case was taken on file and after the appearance of the accused, he was examined under Section 251 Cr.P.C. He denied the offence and pleaded not guilty and claimed to be tried. In support of his case, the complainant was examined as P.W.1 and marked Exs.P-l to P-9. After closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C. The incriminating evidence found against the accused was read over and explained but the same was denied by him. On behalf of the defence, the accused herself examined as DW1 and one Sunitha was examined as DW2 and marked Exs.D1 to D6.

4.

After considering the oral and documentary evidence available on record, the learned Magistrate found that the amount was discharged, for which reason the respondent/Accused was found not guilty for the said offence on the basis of the evidence of DWs 1 and 2 and relying upon Exs.DS and D6 which are receipts issued by the appellant/complainant dated 13.04.2004 and 18'01.2006 respectively. Learned Magistrate further found that the evidence of DWs 1 and 2 and in view of Exs.D1 to D6, the accused probabilised her case before the Court to establish that there is no liability under Ex.P1. Aggrieved by the same, the present Appeal is preferred'

Crl.Appe.l No.1523 of 2009 5.

Learned counsel appearing for the appellant/complainant would submit that since the issuance of cheque is admitted, the presumption has to be drawn under Section 138 of NI Act and the Accused has failed to discharge her burden by preponderance of probabilities, for which reason the acquittal has to be reversed. 6.

As seen from the evidence on record, the Respondent/Accused has though admitted the issuance of cheque has produced the receipts which are Exs.D5 and D6 bearing signatures of the appellant/complainant.

I t 7.

The Hon'ble Supreme Court in case of Radhakrishna Nagesh v. State of Andhra Pradeshl held that under the indian criminal jurisprudence, the accused has two fundamental protections available to him in a criminal trial or investigation. Firstly, he is presumed to be innocent till proved guilty and secondly that he is entitled to a fair trial and investigation. Both these facets attain even greater significance where the accused has a judgment of acquittal in his favour. A judgment of acquittal enhances the presumption of innocence of the accused and in some cases, it may even indicate a false implication. But then, this has to be established on record of the Court. I I ' 1zora1 rr scc oaa t I

Crl.Appeal No.1523 of 2009

8. In the light of the above discussion, there are no grounds to interfere with the findings of the trial Court in C'C.No.900 of 2006 and for the aforesaid reasons, this Court is of the view that the appeal is devoid of merits and the same is liable to be dismissed. 9.

Accordingly, the Criminal Appeal is dismissed. As a sequel to it, miscellaneous petitions pending if any in this criminal appeal, shall stand closed.

SDIK.SRIN AS RAO JOINT ISTRAR //TRUE COPY/i SECT N OFFICER To,

1. The llAdditional Chief [Vetropolitan l\4agistrate at Hyderabad .

2. Two CCs to Public Prosecutor, High Court for the State of Telangana, at Hyderabad.(OUT)

3. One CC to SRl. MIRZA SAFIULLA BAIG Advocate [OPUC]

4. One CC to SRl. B.V.V.S. MURTHY Advocate [OPUC]

5. Two CD Copies

6. One Spare Copy \.P CDL

HIGH COURT DATED:2310812022

JUDGMENT

CRL.A.No .1523 of 2009 ,dE ST4 14, et + '-) 11 lr0\l 202 ui'

DISMISSING THE CRIMINAL APPEAI-.

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