THE HON’BLE MR JUSTICE V.SURI APPA RAO CRIMINAL APPEAL NO.1357 OF 2007 DATED: 20.01.2014 Between:
M/s Krishnashreya Chit Fund (P) Limited .. Appellant/Complainant And Rajendra Enterprises and another .. Respondents THE HON’BLE MR JUSTICE V. SURI APPA RAO CRIMINAL APPEAL NO.1357 OF 2007
JUDGMENT:
This criminal appeal is directed against the judgment of acquittal dated 25.01.2007 passed by the Special Judicial First Class Magistrate, (Prohibition & Excise), Visakhapatnam in C.C.No.622 of 2006 for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the Act’).
2. For the sake of convenience, the parties herein are referred to as arrayed in the Court below.
3. Aggrieved by the judgment of acquittal, the complainant filed this appeal.
4. The brief facts of the case are hereunder:
The complainant company is a registered company. The accused joined as a member in the chit. The complainant company allotted ticket No.KCF-D2/05 for the value of chit Rs.1,00,000/- and the value of the subscription is @ Rs.2,500/- per month. The accused has participated in the auction conducted on 08.04.2001 and became successful bidder having agreed to forego an amount of Rs.31,000/-. The accused has received the prize amount and paid 36 installments and committed default in payment of subsequent installments from March, 2003. After repeated demands by the complainant, the accused issued Ex.P.3 cheque for Rs.11,000/- drawn on Bharat Overseas Bank Limited towards full and final settlement of the amount due to the complainant company towards arrears of subscription. The complainant thereafter, presented Ex.P.3-cheque for collection, it was dishonoured with an endorsement ‘funds insufficient’ in the account of the accused. The complainant thereafter, got issued Ex.P.5-notice dated 21.03.2005 the accused received the same and got issued Ex.P.7-reply notice, but failed to pay the cheque amount within stipulated period. Therefore, the complainant filed complaint under Section 138 of the Act.
5. The complainant is examined as PW.1 and relied on Exs.P.1 to P.9. DWs1 and 2 are examined on behalf of the accused and Exs.D.1 to D.8-receipts were marked.
6. Considering the oral and documentary evidence adduced by both parties, the trial Court dismissed the complaint on the ground that the complainant failed to produce statement of account maintained by the company to ascertain whether the accused failed to pay the arrears of subscription from March, 2003 onwards and also on the ground that the complainant failed to establish the debt or liability of the accused.
7. Learned counsel for the appellant submitted that when once the respondent/accused admitted about the issuance of Ex.P.3-cheque the burden shifts on him to prove that the cheque was not issued towards legally enforceable debt and that the finding of the trial Court that the complainant failed to file the statement of account to prove that the respondent/accused committed default in payment of installments after March, 2003.
8. Per contra, learned counsel for the respondent/accused submitted that the complainant obtained blank cheque at the time of payment of the prize money towards security and the same was utilized for filing the false complaint against the accused. In fact, the respondent/accused paid entire amount due to the complainant as per subscription and filed Exs.D1 to D.8.
9. PW1 has stated that the accused had paid 36 installments to the complainant company and committed default in payment of installments from March, 2003. However, he has admitted in the evidence that the accused has paid respective amounts under Exs.D.1 to D.8 after March, 2003. The respondent/accused examined DWs.1 and 2, who stood as sureties for the amount received by the respondent/accused from the complainant towards prize money. Both of them have stated in their evidence that the respondent/accused was subscriber in two chits in the complainant company and that they are the guarantors to the accused when he received chit amount. Both of them further stated that at the time of payment of chit amount, the employees of the chit fund company have obtained two cheques from the accused. DW.2 further stated that the complainant company has asked the accused to give two blank cheques for future guarantee in the year 2000 and that they have not received any notice from the complainant company. In case of default, the complainant company might have issued legal notice to the sureties.
10. The plea of the respondent/accused is that he paid all the installments after March, 2003 and obtained Exs.D1 to D.8 receipts. Learned counsel for the complainant submitted that the complainant is denying the genuineness or otherwise of the receipts Exs.D.1 to D.8 filed by the respondent/accused, but in the evidence PW.1 has clearly admitted that the accused paid 36 installments and that the payments made under Exs.D1 to D.8 are arrears due for previous installments. The last payment made by the respondent/accused on 03.05.2003 for Rs.1,600/-. All the receipts, Exs.D1 to D.8 are signed by the cashier and Manager of the complainant company and that they are from April, 2003 onwards. It is the specific case of the complainant that the respondent/accused committed default in payment of arrears of installments from March, 2003. Exs.D.1 to D8 filed by the complainant clearly indicates that the payments are made from 1st April, 2003 onwards and the last payment is made on 03.05.2003. The trial Court after considering the rival contentions of both parties was of the view that the complainant failed to file the statement of account to prove that whether the respondent/accused is still liable to pay any amount even after payment made under Exs.D1 to D.8. Further PW.1 has clearly admitted in the evidence that the complainant company has obtained promissory note and security bond for the amount received by the respondent/accused. However, it is an admitted fact that the respondent/accused was the successful bidder and received the prize money agreeing to forego certain amount. After March, 2003 the payments are made under Exs.D1 to D8. Exs.D.1 to D8 are not in equal installments, but various amounts that the complainant company issued receipts for the different amounts i.e. Rs.3,150/- under Ex.D.1, dated 01.04.2003, Rs.3,000/- under Ex.D2 dated 04.11.2003, Rs.2,600/- under Ex.D.3 dated 04.10.2003, Rs.3,000/- under Ex.D.4 dated 01.09.2003, Rs.3,500/- under Ex.D.5 dated 01.08.2003, Rs.3,500/- under Ex.D.6 dated 01.07.2003, Rs.3,550/- under Ex.D.7 dated 03.06.3003 and Rs.1,600 under Ex.D.8 dated 03.05.2003. The payments made under Exs.D1 to D.8 are not in equal installments. Therefore, it is for the complainant to produce the statement of account specifying as to what is the statement of account, what is the amount paid by the accused and what is the amount due from the respondent accused. The trial Court found the accused not guilty under Section 138 of the Act only on the ground that it is difficult to ascertain whether there are any arrears of installments or the accused has paid entire amount due to the complainant, in the absence of the statement of account. Admittedly, Ex.P.3, cheque was issued on 14.02.2005 for Rs.11,000/-. The accused participated in the auction conducted by the complainant company on 08.04.2001 and he was successful bidder and received the prize money from the complainant company.
11. The complainant however, contends that the accused committed default in payment of installments from March, 2003 onwards. The payments made under Exs.D1 to D.8 are April, 2003 onwards. The complainant has admitted that Exs.D.1 to D.8 were given by the complainant company and the last payment is in the month of May, 2003. When the transaction is in the year 2001 and last payment is made under Ex.D.8 on 03.05.2003, it is for the complainant to say as to what is the amount due to the complainant company even after adjusting the amounts paid by the respondent/accused under Exs.D.1 to D.8. The witnesses examined by the respondent/accused clearly stated in their evidence that at the time of payment of chit amount the officers of the company obtained blank cheques from the accused. It is not known why the complaint has not taken any action after 03.05.2003 after receiving last payment under Ex.D.8 for recovery of the balance amount and he did not chose to issue any notice to the respondent/accused indicating the balance amount and demanding the payments due to the complainant company. The complainant company contends that up to March, 2003 the respondent/accused made payment of installments and he committed default only after March, 2003 onwards. The payments made under Exs.D1 to D8 are from 01.04.2003 onwards and the last payment is in the month of May, 2003. Therefore, the contention of the accused that the staff of the complainant company obtained blank cheques from him at the time of payment of the chit amount is more probable and that the trial Court has rightly observed that the complainant has failed to produce the statement of account to prove the arrears of amount due to the complainant company even after adjustment of the amount covered under Exs.D.1 to D.8. The trial Court after appreciating the entire evidence on record rightly came to the conclusion that the complainant failed to establish the debt or liability on the part of the accused attracting the provisions under Section 138 of the Act. Therefore, I do not see any reasons to interfere with the judgment of the acquittal recorded by the trial Court, hence, the appeal is liable to be dismissed.
11. The appeal is accordingly, dismissed.
Date: 20.01.2014 V.SURI APPA RAO, J kvrm THE HON’BLE MR JUSTICE V. SURI APPA RAO
CRIMINAL APPEAL NO.1357 OF 2007
DATE: 20.01.2014