TaxTMI 
TaxTMI 
2023 (2) TMI 1226
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.... 4. The aggrieved accused preferred Criminal Appeal No. 235 of 2005. After due hearing, the learned VIII-Additional District and Sessions Judge (Fast Track Court), Vijayawada vide judgment dated 23.01.2007 found the accused not guilty and acquitted him by setting aside the judgment of the trial Court. 5. Against such judgment of acquittal this criminal revision is filed by the complainant. 6. Facts leading to the present revision are required to be noticed now:- Two trading partnership firms have been in business transactions concerning pesticides. The complainant was selling pesticides on cash basis as well as credit basis and the accused used to purchase pesticides on credit basis. Complainant, in his books of accounts maintained the relevant account for these transactions. The business commenced in the year 1999 and the business transactions stopped between the parties somewhere in the year 2000. By then as per the accounting calculations of the complainant there was outstanding due recoverable from the accused. The assertion of the complainant is that, it is entitled to claim interest 24% p.a. on the overdue amount going by the agreement, usage and law between th....
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.... Court, it seems, thought it un-necessary to have that copy of notice for the purpose of case at hand. It then recorded an observation that, after several demands accused had given Ex.P1 cheque for Rs. 2,60,000/-to the complainant and banker returned it as evidenced by Exs.P2 and P3 on the ground that funds in the account of accused were insufficient. Thereafter the original of Ex.P4 notice was sent by complainant and Ex.P5 postal receipt indicates its dispatch by way of registered post and Ex.P6 indicated dispatch of it under certificate of posting. Since within 15 days' time granted accused failed to repay the cheque amount it found the accused guilty for the offence under Section 138 of N.I.Act. 7. Main defence of the accused at the trial Court was that Ex.P1 cheque bears his signatures but the remaining columns were blank and that Ex.P1 along with two other accompanying signed but blank cheque leaves were given by the accused to the complainant at the beginning of the business transaction in the year 1999 and this complainant got filled up the columns of Ex.P1 and filed this false case. 8. For accused it was argued that Ex.P1 cheque was given by way of security, but n....
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....he accused during his cross-examination. The accused did not argue about difference in ink in filling up of the cheque and the first appellate Court ignored to read the entire evidence available on record and failed in considering the facts and circumstances and rendered its judgment against the facts and law and in fact there was no basis to surmise that Ex.P1 cheque was given in blank. For these reasons, the revision shall be allowed and the accused shall be convicted by restoring the judgment of the learned trial Court. 12. For Respondent No. 1/accused appearance was made through his learned counsel and when the matter was coming up for hearing on several earlier occasions time was prayed for arguments and the same was granted on all the earlier occasions and when the matter was posted for final arguments on 06.02.2023 as well as on 07.02.2023, the learned counsel for accused did not choose to appear and argue thereby indicating that there was no arguments on behalf of the accused. For Respondent No. 2 learned Special Assistant Public Prosecutor submits that this Court may take a decision in accordance with law. 13. In the context of the above facts and circumstances, the ....
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....ant through Ex.P8 statement of account. Dw.1 during his cross examination verified it and admitted the truth of its contents. Thus as per Ex.P8 and the oral evidence on both sides the amount that was finally arrived it in Ex.P8 was the amount that was overdue from the accused to the complainant. Showing that, this amount was repaid no evidence was brought on record by the accused. He merely stated that he repaid it. He did not furnish the date of payment, mode of payment and place of payment. He did not produce his books of accounts to show that he had paid it and closed the account. Therefore, the fact that he failed to pay is the only conclusion that was possible and in fact trial Court rightly arrived at such conclusions. The learned first appellate Court did not disturb that finding. 17. Ex.P1 cheque as is available on record bears the date 03.01.2003. Since the date is specifically given and is available on the negotiable instrument by the time it came to be considered by the Courts below there was mandate of the law in Section 118(b) of the Negotiable Instruments Act, 1881 to the affect that the Court shall presume, until contrary is proved, that every negotiable instrumen....
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....'ble Supreme Court of India held that, handing over of the cheque by way of security per se would not extricate the accused from the discharge of liability arising from such cheques. In Sripati Singh vs State of Jharkhand 2021 SCC online SC 1002. In this case their Lordships of Supreme Court of India held that security given for a loan is something given as a pledge of payment. It is given to make certain fulfilment of an obligation to which the parties to the transaction are bound. In the absence of prior discharge of liability and if the liability is subsisting, cheque given as security will bring all the penal and legal consequences. 19. In the light of above legal principles and the evidence available on record, one has to concur with the findings of the learned trial Court that Ex.P1 cheque was given by the accused on the date it was mentioned on the cheque and it was given towards discharge of the subsisting liability shall be accepted. Learned first appellate Court without eliciting any experts opinion and without anybody's invitation and without considering all that relevant and material evidence and the law simply rushed to a conclusion that in its opinion there....