THE HON’BLE MR JUSTICE V.SURI APPA RAO CRIMINAL APPEAL No.1048 OF 2007 DATED: 22.01.2014 Between:
M/s Bindu Enterprises And .. Appellant/Complainant M/s Harini Fibras Yard and Workshop and another .. Respondents THE HON’BLE MR JUSTICE V. SURI APPA RAO CRIMINAL APPEAL No.1048 OF 2007
JUDGMENT:
This criminal appeal is directed against the judgment of acquittal dated 29.01.2007 passed by the Judicial First Class Magistrate, (Prohibition and Excise), Visakhapatnam in C.C.
No.317 of 2006, whereby the learned Magistrate found the accused not guilty for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the Act’) and acquitted under Section 255(1) Cr.P.C.
2. Aggrieved by the judgment of acquittal recorded by the trial Court, the complainant filed this appeal.
3. For the sake of convenience, the parties herein are referred to as arrayed in the trial Court.
4. The brief facts of the case are hereunder:
The complainant is proprietary concern, dealer and supplier of FRP materials, i.e. CSN 450, catalyst, accelerators, pigments, surface mats etc. The complainant has supplied material under Ex.P.2 invoice during the period October, 2001 and November, 2001 on credit basis. The accused has agreed to pay interest @ 24% per annum. The total worth of material received by the accused as on 31.12.2001 was Rs.35,591-70ps. After repeated demands, the accused has issued Exs.P.3 to P.5-cheques for the amounts Rs.14,500/-, Rs.25,000/- and Rs.25,000/- respectively towards payment of the cost of the material and interest @ 24% per annum. The complainant presented those cheques in his bank for collection, but they were dishonoured with an endorsement that the ‘funds are insufficient’. After return of cheques, the complainant got issued Ex.P.9-legal notice on 24.10.2004 calling upon the accused to pay the cheque amounts. The accused received notice and failed to pay the cheque amounts. Therefore, the complaint filed complainant before the trial Court under Section 138 of the Act.
5. The complainant is examined as PW.1 and marked Exs.P.1 to P.14. No oral or documentary evidence was adduced on behalf of the accused.
6. Considering the oral and documentary evidence available on record, the trial Court found the accused not guilty of the offence punishable under Section 138 of the Act on the ground that the total material worth Rs.35,591.70ps was received by the accused and that the total worth of Exs.P.3 to P.5 cheques are Rs.64,500/-, therefore, it is doubtful that whether Exs.P.3 to P.5 are issued by the accused towards alleged liability under Ex.P.2.
7. In the evidence, the complainant has clearly admitted that the material was supplied to the accused under Ex.P.2-invoices. One D.Hargopal representing the accused company used to come to the office of the complainant company and took delivery of the material. As seen from Ex.P.2-invoices, the said D.Hargopal representing the accused company has not acknowledged the receipt of the material in receiver signature column and for Bindu Enterprises one M.V.A.Naidu signed the invoice Nos.414 and 412 and another invoice is signed by one T.D. Prakash. The complainant has further stated that he made entries in the ledger book with regard to supply of material to the accused, but the ledger copy was not filed in the Court and corresponding copy of bill issued by the complainant company was also not filed after delivery of the material to the accused. Ex.P.2 is only invoices which were not acknowledged by the accused. Moreover, the total worth of material alleged to have been supplied is Rs.35,591-70ps, but the amount covered under Exs.P.3 to P.5 is Rs.64,500/- for which there was no explanation by the complainant as to what made him to obtain the cheque for Rs.64,500/-.
8. Thus, the complainant failed to prove that even as per Ex.P.2 invoices he supplied the material to the accused worth Rs.35,591-70ps which was not properly acknowledged by the accused. Therefore, EXs.P.3 to P.5 cheques cannot be said to be issued towards discharge of legally enforceable debt. The trial Court after appreciating entire evidence on record rightly held that the complainant failed to prove the offence under Section 138 of the Act.
9. For the reasons stated above, I do not see any grounds to interfere with the order of acquittal recorded by the trial Court for the offence punishable under Section 138 of the Act. Therefore, the appeal is liable to be dismissed.
10. The appeal is accordingly, dismissed.
Date: 22.01.2014 V.SURI APPA RAO, J kvrm THE HON’BLE MR JUSTICE V. SURI APPA RAO
CRIMINAL APPEAL NO.1048 OF 2007
DATE: 22.01.2014