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TMI Blog2021 (5) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the learned Counsel for the complainant are not applicable to the facts of the present case - Appeal dismissed. - Criminal Appeal No. 2852 of 2018 - - - Dated:- 28-4-2021 - G. Sri Devi, J. For the Appellant : Kiran Palakurthi For the Respondents : N.B. Sudarshan JUDGMENT G. Sri Devi, J. 1. The complainant preferred the present Criminal appeal under Section 378 (4) Cr.P.C. questioning the judgment, dated 12.09.2018, passed in C.C. No. 87 of 2017 on the file of the Special Magistrate, Cyberabad at Hayathnagar, wherein the 1st respondent/accused was acquitted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act ). 2. For the sake of convenience, the parties will hereinafter be referred to as arrayed in the C.C. 3. The facts, in brief, are as under: The appellant/complainant filed a private complaint against the accused for an offence punishable under Section 138 of the Act. The allegations in the complaint would disclose that in pursuance of the compromise and settlement, both the complainant and the accused entered into a settlement agreement, dated 15.10.2016, wherein the accused had agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds discharge of legally enforceable debt. He further submits that it is also established that the said cheques were returned, unpaid. Subsequently, the accused failed to repay the cheque amount through the demand made by the complainant. He also submits that since it is proved that Exs. P1 and P2 cheques have been signed and issued by the accused to the complainant, the trial Court shall raise a presumption to the effect that the said cheques have been issued towards discharge of legally enforceable debt. He further submits that in Rangappa v. Sri Mohan (2010) 11 SCC 441 the Apex Court held that presumption under Section 139 of the Negotiable Instruments Act, extends towards the existence of legally enforceable debt, which means (1) the cheques are issued towards the discharge of debts owed by the accused to the complainant and the said debt is also a legally enforceable one. In Anil Sachar and another v. Shree Nath Spinners Private Limited and others AIR 2011 SC 2751 the Apex Court mentioned certain circumstances, wherein the accused could not be able to rebut the presumption under Section 139 of the N.I. Act. He also submits that the above two decisions are squarely applicable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shan Rao v. Shankar Gouda (2018) 3 SCC (Cri) 455; T.P. Murugan (dead) through L.Rs. v. Bojan (2018) 3 SCC (Cri) 585 and Rohitbhai Jivanlal Patel v. State of Gujrat. 10. Learned Counsel for the 1st respondent/accused would submit that the learned trial Court has rightly acquitted the accused on the ground that she had creditably rebutted the presumption and established her defense that the impugned cheques were issued for the purpose of security only, which can be evident from the terms and conditions stipulated in Ex. P6. He further submits that the trial Court has rightly observed that no document has been filed to show that the appellant had incurred an expenditure of ₹ 3,00,00,000/- towards identifying and procuring the site for the Petrol Pump and despite being an income tax payee, the appellant had failed to file any income tax returns to show that he had incurred the said expenditure. He also submits that the trial Court rightly observed that there is no mention with regard to the cheque numbers and dates in Ex. P6 and that the appellant had filled up the same and deliberately presented the cheques despite knowing very well that the cheques contained the caption of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused on 27.09.2016 asking her to come forward by issuing necessary cheques for petroleum loads. Thereafter, on the intervention of elders, the matter was compromised. 13. Pursuant to the compromise and as per the terms and conditions of Ex. P6, the accused had issued the cheques towards discharge of legally enforceable debt. In the cross-examination, P.W.1 had admitted that he has not filed any document to show that he has incurred ₹ 3.00 Crores for identifying the land for petroleum bunk and also admitted that he has not filed any bank statement to show that he has such huge amount in his bank account. Since P.W.1 failed to file any document, the learned trial Court has rightly observed that the appellant has failed to establish that he is sound in finance and he has bank deposit of ₹ 3.00 Crores and spent it for the purpose of installation of petrol bunk by identifying the land. 14. Further, though PW.1 admits that he was an income tax assessee, but he has not shown the amount spent for installation of Petroleum bunk ₹ 3.00 Crores in his tax returns during that period. Therefore, a doubt arises whether the complainant was financially capable of spending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Whereas, the dispute were arisen between the first and second party in running petrol bunk by name M/s. Adidas Guru Petros at Sheriguda, Ibrahimpatnam, R.R. District and the same is settled before the elders of both the parties and as per settlement, the first party herein had agreed to pay an amount of ₹ 70,00,000/- (Rupees Seventy Lakhs only) as total settlement amount for which the second party had agreed to receive the same. The second party had agreed to handover the said Petrol Bunk to the first party today itself and the second party had agreed he shall not interfere in the schedule premises of the said petrol bunk from today onwards and agreed not interfere in the affairs of the business and day to day affairs. The first party had paid an amount of ₹ 50,000/- as advance out of total amount. The first party had agreed to pay the balance amount of ₹ 69,50,000/- on or before 01.11.2016, for which the first party had handed over the cheques (No. 2) drawn on S.B.H. to the second party for an amount of ₹ 69,50,000/- as security for the amount. Both the parties here to put their hands on to this indenture with free will and consent without any coerc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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