IN THE COURT OF THE HON’BLE METROPOLITAN SESSIONS

JUDGE, CYBERABAD

AT: L.B. NAGAR

Crl. M.P. No.: of 2019

IN

Crl. Appeal No: of 2019

Against

(Judgment Dated 22nd February 2019 passed in CC. No: 2 of 2017 on the File of the Hon’ble
II Special Magistrate, Hastinapuram, R.R. District)

Between:

Nayab Rasool Sheik S/o Shaik Haji Rahamatulla,

Aged about 45 years, Occ: Railway Employee,
R/o H.No.20-80, S.H.R.Mansion, Dayanandnagar,
Behind Electric Substation, Malkajgiri, Hyderabad-47.
…Petitioner/Appellant/Accused

And

1. The State of Telangana,

(Through P.S. L.B.Nagar)
Represented by its Public Prosecutor
2. G.Bhanu Srikanth S/o G. Subhash,
Aged about 38 years, Occ: Business,
R/o Flat No.505, PNR Castle, Telephone Colony,
R.K. Puram, Saroornagar, Cyberabad

…Respondents/Respondent No.2 / Complainant

PETITION FILED UNDER SECTION 389 (1) Cr.P.C.

May it be humbly submitted to this Hon’ble Court the following :

1. It is humbly submitted that, the Appellant/Accused is convicted by the Judgment passed

by the learned Hon’ble II Special Magistrate, Hastinapuram in CC. No: 2 of 2017 vide

Judgment dated 22nd Day of February 2019, whereby the Hon’ble II Special Magistrate

convicted the Appellant/Accused U/s 255(2) Cr.P.C and U/s. 138 N.I. Act to undergo

One (1) Simple imprisonment and further Appellant/Accused was ordered to pay fine of

Rs.90,00, 000.00 (Rupees Ninety Lakhs Only) as Compensation to the Respondent No.2 /

Complainant U/s. 357(3) Cr.P.C.

2. It is further humbly submitted that the lower Court has suspended the operation of the

sentence till 20-03-2019 on furnishing of two sureties for Rs.10,000/- (Rupees Ten
 Thousand Only) each. On 22nd February 2019 itself, the Appellant/Accused furnished two

sureties for Rs.10,000/- (Rupees Ten Thousand Only) each and the Judgment dated 22-

02-2019 was suspended.

3. It is further humbly submit that, the Memorandum of Grounds of Criminal Appeal may

be read as part and parcel of the present Petition.

4. It is humbly submitted that, the Court below grossly erred in not appreciating the

evidence of DW1 and DW2 in entirety but followed a pick and choose method. The

Learned Judge instead of reading the entire Chief Examination and Cross Examination of

DW1 chose to read only the parts favouring the Respondent No.2/Complainant which

shows bias and is against the Principles of Interpretation. Hence the impugned Judgment

is liable to be set aside.

5. It is further humbly submitted that, the Court below grossly erred in holding that though

the money given by the Respondent No.2/Complainant in cash is against the provision of

the Income Tax Act, however ironically the Court below held that the said violation is to

be looked into by the Income Tax Authorities. As per Para No.1 of the Complaint, Para

No.2 of the Chief Examination Affidavit of PW1, 11 th line of the Cross-examination of

PW1 it is stated that, Rs. 25, 00,000/- (Rupees Twenty Five Lakhs Only) has been given

by way of cash as a hand loan to the Appellant/Accused. As per the judgment of the

Hon’ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde it is held:

“The appellate court took an identical stand. It proceeded on the premise that the

statement of Appellant/Accused under Section 313 of the Code of Criminal Procedure

regarding misuse of blank cheque by the Respondent No.2 / Complainant and filling

up Rs. 1,50,000/- instead of Rs. 1500/- is contradictory to his own admission in the

reply to the notice issued to him.

On what basis the said opinion was formed is not known. The appellate court refused

to enter into the question as to whether the prosecution case is wholly unreliable, as the

Respondent No.2 / Complainant had not been able to show his source of income so as

to enable him to advance a huge loan of Rs. 1,50,000/-, holding:

Now as far as the financial ability of the Respondent No.2/Complainant to issue

cheque for such huge amount to the Appellant/Accused is not a matter to be considered
by the trial court or by me also since issue of Ex.P.1 and its dishonour is proved by the

Respondent No.2/Complainant beyond reasonable doubt.

The courts below failed to notice that ordinarily in terms of Section 269SS of

the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000/-

was to be made by way of an account payee cheque only.

Section 27ID of the Income Tax Act reads as under:

27ID. Penalty for failure to comply with the provisions of Section 269SS. (1) If a

person takes or accepts any loan or deposit in contravention of the provisions of

Section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount

of the loan or deposit so taken or accepted. (2) Any penalty imposable under Sub-

section (1) shall be imposed by the Joint Commissioner.

Indisputably, a mandatory presumption is required to be raised in terms of Section

118(b) and Section 139 of the Act. Section 13(1) of the Act defines 'negotiable

instrument' to mean "a promissory note, bill of exchange or cheque payable either to

order or to bearer".

Section 138 of the Act has three ingredients, viz.:

(i) that there is a legally enforceable debt;

(ii) that the cheque was drawn from the account of bank for discharge in whole or in

part of any debt or other liability which presupposes a legally enforceable debt; and

(iii) that the cheque so issued had been returned due to insufficiency of funds.

An Appellant/Accused for discharging the burden of proof placed upon him under a

statute need not examine himself. He may discharge his burden on the basis of the

materials already brought on records. Standard of proof on part of an

Appellant/Accused and that of the prosecution in a criminal case is different.

From the aforementioned it can be seen that, no money above Rs.20, 000/-(Rupees

Twenty Thousand Only) can be given in cash. Incase if money is given in cash against

the Provision of Law then, the said money lent would be nothing but illegal money.

Furthermore, from the statements as mentioned in the Complaint, Chief Examination

Affidavit of PW1 and Cross Examination Statement of PW1, it can be seen that, more

than Rs.20, 000/-(Rupees Twenty Thousand Only) was given in cash. However, despite

the written letter of the Law and the Judgment of the Hon’ble Supreme Court, the Court
 below gravely erred in holding that the said money lent in cash against the letter of the

Law would attract penalty and the same would not render the transaction as an illegal

transaction. Section 269SS of the Income Tax Act categorically states that any advance

taken by way of any loan of more than Rs.20,000/- (Rupees Twenty Thousand Only) was

to be made by way of an Account Payee Cheque only. However, the Learned Judge

ironically holds that incase the said Provision is violated then, the Respondent No.2 /

Complainant will be liable to pay penalty. But the Learned Judge went on to hold that

though the transaction is in contravention of S.269SS of the Income Tax Act, the money

received is not illegal money. The Learned Judge completely ignored to look into the

aspect that only when the Penalty is paid will the transaction become a legal transaction.

In absence of payment of penalty the alleged transaction is still an illegal transaction for

which no recourse by way of the Negotiable Instruments Act can be resorted to as the Act

only applies to legally enforceable debts. The said reasoning used by the Learned Judge

is completely illogical, irrational, unreasonable, arbitrary and based on flawed reasoning.

Hence the impugned Judgment is liable to be set aside and this Hon’ble Court may be

pleased to acquit the Appellant/Accused.

6. It is humbly submitted that, the Court below is grossly erred in ignoring that, the

Respondent No.2 / Complainant did not file any document to show that the amount of

Rs.50, 00,000/- (Rupees Fifty Lakhs Only) allegedly given to the Appellant/Accused was

reflected in the Income Tax Returns of the Respondent No.2 / Complainant. Furthermore,

from the statements as mentioned in the Complaint, Chief Examination Affidavit of PW1

and Cross Examination Statement of PW1, it can be seen that, more than Rs.20, 000/-

(Rupees Twenty Thousand Only) was given in cash. PW1 during the Cross Examination,

on Pg. No.: 3, 8th line from the bottom categorically admitted that, he did not show the

amount of Rs.50, 00,000/- (Rupees Fifty Lakhs Only) in his Income Tax Returns, thereby

making the said transaction to be nothing but illegal, so for such illegal money, it cannot

be treated as legal money. Illegal money cannot be treated as legal money. Therefore the

Court below was obligated to acquit the Appellant/Accused as the alleged transaction is

an illegal transaction.

7. It is further humbly submitted that, the Court below chose to formulate few essential

ingredients inorder to convict the Appellant/Accused which are completely ignorant and
 not related to the facts of the case at hand. One of the ingredient to prove the guilt of the

Appellant/Accused at Para No. 7 of the impugned judgment was that, “That the cheque

is returned by the bank unpaid, either because of the amount of money existing to

the credit of the account is insufficient to honour the cheque or that it exceeds the

amount arranged to be paid from the account by an agreement made with the

bank.”

From the aforementioned it can be categorically seen that, the Court below was not even

aware of the fact that the impugned cheques marked as Exs. P2 & P3 were not returned

by the bank of the Respondent No.2/Complainant for the reasons “FUNDS

INSUFFICIENT” but the said cheques were returned for the reasons “PAYMENT

STOPPED BY DRAWER” which goes to show that the Court below framed the

essential ingredients to prove the guilt of the Appellant/Accused without being aware of

the true facts of the case. That being the case, the Appellant/Accused is liable to be

acquitted and the impugned judgment is liable to be set aside.

8. It is humbly submitted that, the Court below grossly erred in not reading the evidence of

DW1 in entirety which was corroborated by DW2 which categorically stated that the

alleged transaction was for the purpose of depositing the money in the account of the

Managing Director of M/s. Jupiter Bio Sciences Ltd. However, the Court below chose to

read the admissions in isolation without completely understanding the stand taken by the

Appellant/Accused.

9. It is respectfully submitted that, the Court Below failed to consider the defense raised by

the Appellant/Accused that the impugned cheques were given to the Respondent

No.2/Complainant as a security for depositing the Cheque amount into the account of Mr.

K. Venkata Ramana who is the Managing Director of M/s Jupiter Bio Sciences Ltd. The

Court below chose to not consider the specific admission made by PW1 during Cross

Examination that PW1 knows the owner of M/s Jupiter Bio Science Ltd. & further that

PW1 admitted to have deposited an amount of Rs.23,00,000/- (Rupees Twenty Three

Lakhs Only) into the account of M/s Jupiter Bio Science Ltd. Despite these specific

admissions by the Respondent No.2/Complainant which clearly shows that there is some

nexus between Respondent No.2/Complainant & M/s Jupiter Bio Science Ltd. The said

nexus goes to prove the defense raised by the Appellant/Accused that the alleged amount
 given to Appellant/Accused was for the purpose of depositing into the account of M/s

Jupiter Bio Science Ltd. & not for any hand loan as claimed by Respondent

No.2/Complainant. On a bare perusal of the entire testimony of PW1, it can be seen that,

the statements of PW1 are based on assumptions, surmises, conjectures, speculations and

the same have no place in Criminal Law Jurisprudence. The statements of PW1 are

nothing but false and untruth filled statements which this Hon’ble Court maybe pleased

not to consider. PW1 admitted during Cross Examination that a Civil Suit has been filed

and numbered as OS No.: 1257/2013 on the file on XIV Addl. District Judge, RR Dist.

LB Nagar against Appellant/Accused and PW3. PW3 is Defendant No.2 in the said suit

chose to remain absent and was set ex parte which goes to prove that, PW1 and PW3 who

is Defendant No.2 in the said suit OS.No.1257/2013 herein are sailing together and

colluding to harass and extort illegal money from the Appellant/Accused through misuse

of law which cannot be permitted and this illegal acts amount to Cheating U/s420 IPC.

10. It is humbly submitted that, the Court below completely ignored to consider the fact that,

neither the Complaint, notice, Chief Examination Affidavit of PW1 are all silent on the

fact that, PW2 & PW3 were present at the alleged place of transaction on 16-08-2011.

Nothing prevented the Respondent No.2/Complainant to mention the said fact atleast in

his Chief Examination Affidavit. This goes to prove that all the statements by PW2 &

PW3 are cooked up stories. On a bare perusal of the Chief Examination Affidavit of

PW2, it can be seen that it amounts to nothing but hearsay statements inadmissible in

law. During the Final Hearing of arguments before the Learned Judge, at this point a

remark was made by the Judge that, usually whatever is written in the Complaint is

copied in the Chief Examination Affidavit and maybe that’s why the presence of PW2 &

PW3 does not find a mention in the Chief Examination Affidavits. The said statement

from the learned Judge shows that he stepped into the shoes of Respondent

No.2/Complainant which is not acceptable as per the law. Furthermore the learned Judge

completely ignored to mention about the same or even distinguish the contention in the

impugned Judgment.

11. It is humbly submitted that, the Court below grossly erred in not permitting the learned

Counsel for the Appellant/Accused to move applications for receiving the said phone in

evidence, reopening the evidence of DW1 and sending the said phone to Central Forensic
 Science Lab, Ramanthapur for the purpose of examination. The Court below assured the

Counsel for the Appellant/Accused that incase anything adverse would take place, the

Court below would suo moto reopen the said case which was not done thereby causing

grave injustice to the Appellant/Accused.

12. It is humbly submitted that, the Court below grossly erred in convicting the

Appellant/Accused by considering Ex. P1. However, it can be seen in the impugned

Judgment that, the learned Judge did not consider Exs. D2 to D4 despite the fact that the

said exhibits proves the defense of the Appellant/Accused. The learned Judge showed

bias when on one hand Ex P1 was considered in ordered to prove the case of the

Respondent No2/Complainant but on the other hand Exs D2 to D4 were not

considered to prove the defense of the Appellant/Accused. DW1 categorically stated

during Chief Examination that, MD of M/s Jupiter Bio Sciences Ltd. gave the following:

a. Three undated promissory notes marked as Exs. D2-D4;

b. Three Cheques for Rs.10,00,000/- (Rupees Ten Lakhs Only), Rs.20,00,000/-

(Rupees Twenty Lakhs Only) and Rs.20,00,000/- (Rupees Twenty Lakhs Only)

marked as Exs. D5-D7.

The aforementioned Exs D2 to D7 clearly proves the case of the Appellant/Accused.

However, for reasons best known the Court below did not consider the same. For this

reason alone this Hon’ble Court may be pleased to set aside the impugned Judgment and

acquit the Appellant/Accused.

13. It is humbly submitted that, the Court below grossly erred in not considering the fact

that, though DW1 during Chief Examination stated that Exs. P1 TO P3 were given only

for a limited purpose to PW1, the said statement was not even referred to during Cross

Examination of DW1. Therefore the only logical conclusion is that even the Respondent

No.2/Complainant has conceded the fact that Exs P1 to P3 were given only for a limited

purpose to PW1.

14. It is further humbly submitted that, the Court below gravely erred in holding that Exs. D2

to D7 cannot be considered because the maker of the said instruments i.e., Mr. K.

Venkata Ramana was not examined before the Court below. In connection to non-

examination of Mr. K.Venkata Ramana the Appellant/Accused categorically stated

during Cross Examination that the Company of Mr. K.Venkata Ramana has gone
 bankrupt and the said person is absconding and therefore he could not be brought before

the Court below for the purpose of evidence. The aspect that the Company of Mr.

K.Venkata Ramana has gone bankrupt has been admitted by PW1 during Cross

Examination. Therefore it is highly possible that Mr.K.Venkata Ramana is absconding

due to the bankruptcy of his Company and the said aspect was just ignored by the learned

Judge and has convicted the Appellant/Accused with the flawed reasoning that Exs.D2

TO D7 cannot be considered due to the non-examination of Mr.K.Venkata Ramana.

15. It is humbly submitted that, the Petitioner herein is advised that he has got good prospects

to succeed in the Criminal Appeal.

16. It is respectfully submitted that, the Petitioner/Appellant will comply any or all

conditions if any imposed by this Hon’ble Court.

17. It is humbly prayed that this Hon’ble Court may be pleased to suspend the operation of

the sentence of the imprisonment & conviction and compensation imposed by the

Hon’ble II Special Magistrate at Hasthinapuram, R.R. District in CC No.2 of 2017 vide

Judgment dated 22nd February 2019 whereby the Hon’ble II Special Magistrate convicted

the Petitioner/Appellant/Accused U/s 255(2) Cr.P.C and U/s. 138 N.I. Act to undergo

One (1) Simple imprisonment and further Appellant/Accused was ordered to pay fine of

Rs.90, 00, 000.00 (Rupees Ninety Lakhs Only) as Compensation to the Respondent

No.2 / Complainant U/s. 357(3) Cr.P.C. after Appeal time is over in the interest of

Justice.

Hence it is humbly prayed that this Hon’ble court may be pleased to suspend the operation of the

sentence of the imprisonment & conviction and compensation imposed by the Hon’ble II Special

Magistrate at Hasthinapuram, R.R. District in CC No.2 of 2017 vide Judgment dated 22 nd

February 2019 and or to pass order/s or other order/s or such other order/s in the circumstances

of the case and in the interest of the Justice.

Place: L.B.Nagar Petitioner/Appellant/Accused

Date: 2019 Counsel for Petitioner /Appellant/Accused

IN THE COURT OF THE HON’BLE

METROPOLITAN SESSIONS
JUDGE, RANGA REDDY DISTRICT

AT: L.B. NAGAR

Crl.M.P.No.: OF 2019

IN

Crl. Appeal No: of

2019

Against

(Judgment Dated 22nd February 2019

passed in CC. No: 2 of 2017 on the File
of the Hon’ble II Special Magistrate,
Hastinapuram, R.R. District)

Between:

Nayab Rasool Sheik

…Petitioner/Appellant/Appellant
/Accused

And

The State of Telangana,

(Through P.S. L.B.Nagar)
Represented by its Public Prosecutor
& Anr.
…Respondents/Respondent No.2 /
Complainant

PETITION FILED UNDER

SECTION 389 (1) Cr. P.C.

Filed on:

Filed by: Counsel for

Petitioner/Appellant/Accused

Address:

Thomas George
Manav Gecil Thomas
O/o. Thomas George & Associates
(Advocates & Solicitors)
174, Satya Nagar Colony,
Uppal, Hyderabad- 500039.
Tel. # 09849253977/ 040 27200326
Website: www.tgalaw.in