Challenging the order of acquittal, the appeal has been filed. The appellant is the complainant in a private complaint filed under Section 138 of Negotiable Instruments Act in C.C.No.1079 of 1999 on the file of the XV Metropolitan Magistrate Court, George Town, Chennai. The trial Court after full trial acquitted the accused. Now, challenging the order of acquittal, the present appeal has been filed.
2. The case of the complainant in brief is as follows :
The appellant/complainant was engaged in steel business. The respondent/accused was having a business transaction with the appellant and purchased steel on credit and there was an outstanding of Rs.1,61,887.80. In order to discharge part of the liability, the respondent issued a cheque dated 20.08.1998 for a sum of Rs.90000/- drawn on Indian Bank, West Mambalam Branch. When the cheque was presented for collection, it was returned on the ground of accounts closed. Thereafter, the complainant sent a legal notice demanding money. Evenafter receipt of the notice, the respondent failed to pay the amount. Hence, the complaint has been filed.
3. In order to prove his case, the complainant examined himself as P.W.1 . The Assistant Manager of the Bank was examined as P.W.2 and the Assistant Manager of the drawer bank was examined as P.W.3 and marked 22 documents. Out of which, Ex.Ps.1 to 7 are the invoices and Ex.P8 and Ex.P.14 are the delivery chellans. Ex.P.15 is the cheque and Ex.P.16 and Ex.P.17 are the returned memo and debit advice. Ex.P.18 and Ex.P.19 are notices and acknowledgment sent by the complainant . Ex.P.20 is the reply notice sent by the respondent/accused. Ex.P.21 is the authorization given by the bank to P.W.2 . Ex.P.22 the Statement of the complainant , Ex.P.23 is the authorization given to P.W.3 and ex.P.24 is the copy of the record.
4. When the incriminating materials were put to the accused under
Section 313 of Cr.P.C., the accused denied the same. On the side of the complainant, P.Ws.1 to 3 were examined and Ex.Ps.1 to 24 were marked . But, the accused has not examined any witness on his side and marked 5 receipts for payment of a sum of Rs.31,000/- to the appellant/complainant.
5. Considering all the materials the trial Court acquitted the respondent on the ground that the actual liability of the respondent is only Rs.85887.80 and it is also not the case of the complainant that the cheque has been given including interest and the cheque has been given only as a security for purchase of the materials from the accused, now misusing the cheque , the complaint has been filed. Apart from that , the trial Court has also held that the complaint is also barred by limitation. Now, challenging the above said order of acquittal, the present appeal has been filed.
6. I have heard the learned counsel appearing for the appellant and also perused the materials available on record carefully.
7. The specific case of the complainant is that the respondent purchased steel materials from the appellant on credit basis and there was an outstanding to the tune of Rs.1,00,000/- and in order to discharge the part of liability, the disputed cheque has been given for a sum of Rs.90,000/-. It is the case of the respondent/accused that there is no liabilityof Rs.1,00,000/- and the respondent has already paid a sum of Rs.31000/- to the appellant and to prove the same, he has also marked the receipt, through the complainant during the cross examination.
8. In the said circumstances, the trial Court came to a conclusion that the payment of Rs.31000/- being accepted and the actual liability only comes to Rs.85,887.80 and apart from that it is not the case of the complainant that the liability is only Rs.85,887/- and the cheque has been given including the interest and further alleged that the liability as claimed by the respondent is not correct and the cheque has been issued only for security purpose not for discharging any liability. Apart from that the trial Court has also held that the legal notice issued by the complainant under Ex.P.13 dated 31.08.1998, and it has been received by the respondent/accused on 03.09.1998. The cause of auction arises for filing the complaint on 19.09.1998, and the complainant ought to have filed a complaint on or before 18.10.1998, but even though the complaint said to have filed on 29.09.1998, the same was returned on the ground of improper filing as a complaint did not contains the signature of the complainant and in the vakalat. Thereafter, it was represented only on 04.11.1998 after rectified the defect and that date alone to be considered as a presentation of the complaint. Hence, the complaint is bared by limitation.
9. I have heard the learned counsel appearing for the applicant and the learned counsel appearing for the respondents and I have perused the materials available on records.
10. As rightly held by the trial Court, admittedly, the liabilityis only Rs.85,887.80 , but it is the specific case of the complainant that there was a liability of Rs.1,16,887/- and in order to discharge part of the liability, the cheque has been issued by the respondent/accused. But considering the materials available on record and also the actual liability, it could be only seen that the cheque was not issued to discharge the part of the liability, and the cheque given as security had been misused and the present complainant has been filed. In the above circumstances, I find no illegality or irregularity in the finding of the trial Court and I find no merits in the appeal.
V.BHARATHIDASAN,J.
dh/mrp
11. Accordingly, the Criminally Appeal is dismissed and the order of acquittal passed by the Court below is hereby confirmed.
17.11.2017 dh/mrp Index:Yes/No Internet:Yes/No Speaking Order/Non speaking order To The XV Metropolitan Magistrate, G.T.Chennai.
Crl.A.No.352 of 2005