THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1286 of 2005 18-12-2014 BETWEEN:
Danda Harinada Babu …..Appellant/Complainant AND Guntheti Kasinath And another.
…..Respondents THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1286 of 2005 JUDGMENT:
The Criminal Appeal is preferred by the appellant/complainant challenging the Judgment dated 30.05.2005 passed in C.C. No.28 of 2000 by the Court of the I Additional Judicial Magistrate of First Class, Khammam, whereby the learned trial Judge acquitted the accused for the offence under Section 138 of the Negotiable Instruments Act.
The case of the appellant/complainant is as follows:
The accused borrowed a sum of Rs.35,000/- from the complainant and executed a promissory note agreeing to repay the said amount with interest of 24% per annum. Later on demand, the accused issued a cheque of Rs.40,000/- towards repayment of the borrowed amount with interest and that the said cheque was dishonoured due to insufficient funds. The same was informed to the accused and that the accused requested the complainant to re-present the same after sometime and that at the instructions of the accused, the complainant presented the cheque again and that the same was returned with an endorsement ‘account closed’. Complainant issued a legal notice to the accused by the registered post with acknowledgment due and the notice was returned unserved with an endorsement ‘seven days absent’. It is the allegation of the complainant that the accused managed the postal authorities and got such endorsement made. Hence, the charge.
To substantiate the case of the appellant/complainant, P.Ws.1 to 3 were examined and Exs.P.1 to P.10 were marked. On behalf of the accused, D.W.1. was examined and Exs.D.1 and D.2 were marked..
The learned trial Judge on appreciation of evidence, and on hearing oral submissions, having found the accused not guilty for the offence under Section 138 of the Negotiable Instruments Act, acquitted the accused on the following grounds.
The complainant alleged that notice was not served on the accused since the accused managed the postal authorities. But the complainant has failed to prove the same. The fact remains that the notice was not served on the accused, which is mandatory in nature. Further, P.W.1 also admitted in the cross-examination that he does not aware whether the notice was served or not. Hence, without therebeing service of notice on the accused, no offence would be made out under Section 138 of the Negotiable Instruments Act.
Heard and perused the material available on record.
On perusing the entire material available on record, this Court is of the view that the Court below has considered the evidence in proper perspective and the reasoning given while acquitting the accused is in accordance with law. The Judgment of the trial Court does not suffer from any perverse findings and the same needs no interference by this Court, and as such, the criminal appeal is liable to be dismissed.
The Criminal Appeal is accordingly dismissed. Miscellaneous applications, if any pending in this appeal, shall stand dismissed.
JUSTICE RAJA ELANGO 18.12.2014 pln