THE HON’BLE MR JUSTICE V.SURI APPA RAO CRIMINAL APPEAL No.1655 OF 2006 DATE: 22.01.2014 Between:
Y.Chandra Sekhara Rao And .. Appellant/Complainant Joginder Nagu Nizampatnam and another .. Respondents THE HON’BLE MR JUSTICE V. SURI APPA RAO CRIMINAL APPEAL No.1655 OF 2006
JUDGMENT:
This criminal appeal is directed against the judgment of acquittal dated 13.10.2006 passed by the IV Additional Chief Metropolitan Magistrate, Hyderabad in C.C. No.339 of 2003, 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. For the sake of convenience, the parties herein are referred to as arrayed in the trail Court.
3. Aggrieved by the judgment of acquittal recorded by the trial Court, the complainant filed this appeal.
4. The brief facts of the case are hereunder:
In the month of June, 2002 the accused has borrowed a sum of Rs.70,000/- for his domestic expenses promising to repay the same in the month of July, 2002, but he failed to repay the same in spite of repeated demands. Thereafter, the accused issued Ex.P.1-cheque bearing No.082854, dated 20.12.2002 for a sum of Rs.50,000/- and Ex.P.2-cheque bearing No.631367, dated 20.08.2002 for Rs.20,000/- towards discharge of debt due to the complainant. When both the cheques were presented for encashment, the same were returned with an endorsement ‘insufficient funds’ in the account of the accused. Therefore, the complainant got issued legal notice on 20.02.2003 to the accused informing him about the endorsement and demanded him to pay the cheque amounts covered under Exs.P.1 and P.2 within 15 days from the date of receipt of the notice. Since the accused neither paid the cheque amounts nor issued any reply, the complainant filed complainant before the trial Court under Section 138 of the Act.
5. The complainant is examined as PW.1 and relied on Exs.P.1 to P.7. During the course of cross examination of PW.1, the defence counsel marked Exs.D.1 and D.2.
6. Considering the oral and documentary evidence adduced by both parties, the trial Court found the accused not guilty of the offence punishable under Section 138 of the Act on the ground that Ex.P.7- returned postal cover cannot be treated as deemed notice that Ex.P.1 and P.2- cheques were issued for discharge of legally enforceable debt.
7. Feeling aggrieved by the aforesaid findings of the trial Court, the complainant filed this appeal.
8. Learned counsel for the complainant/appellant submitted that the trial Court relying on the contents of Ex.D1 receipt, dismissed the complaint. It is further contended that PW.1 never admitted the issuance of Ex.D.1- receipt. Therefore, the trial Court was not justified in relying on the recital in Ex.D.1.
9. It is the specific case of the respondent/accused that he worked under the complainant and he was collecting rents from the tenants of the complainant, who are residing in Surabhi Complex. In that connection he issued Exs.P.1 and P.2-cheques, but not towards discharge of any debt. Subsequently, he paid amounts covered under Exs.P.1 and P.2-cheques. Therefore, the ingredients of Section 138 of the Act do not attract and that the complaint is liable to be dismissed. In the complaint or in the legal notice issued by the complainant no where it is mentioned that the accused is working under the complainant and collecting rents and handing over the same to him. Ex.D.1-entry written by the complainant himself clearly indicates that he received the amount covered under cheque Nos. 631363, 631364, 631365 and 631367 from the respondent/accused i.e Rs.1,20,000/- only on 18.01.2003. The contents of Ex.D.1 clearly indicate that the respondent/accused was employee under the complainant and he was collecting rents and handing over the same to the complainant. Ex.P.2 cheque was also included in the list of cheques mentioned in Ex.D.1. Therefore, the contention of the complainant that the respondent/accused availed loan of Rs.70,000/- for his domestic expenses cannot be believed. The complainant as was observed by the trial Court suppressed the real facts and filed complaint as if the respondent/accused borrowed a sum of Rs.70,000/- for his domestic needs though the respondent was working under him and collecting rent on complainant’s behalf and remitting the same to him. When once the accused denied the issuance of Exs.P.1 and P.2 cheques towards discharge of legally enforceable debt and when he is contending that he was working under the complainant and collecting the rents, burden shifts on the complainant and the complainant has to discharge the preliminary burden that Exs.P.1 and P.2 were issued towards legally enforceable debt. Further more Ex.P.7-returned postal cover also cannot be treated as deemed service as on the postal cover it is not mentioned that the respondent/accused not claimed notice, and that the address mentioned in the postal cover also appears to be a wrong address. On this ground also the complaint is liable to be dismissed. The trial Court after appreciating entire evidence rightly held that the complainant failed to prove that the respondent/accused issued Exs.P.1 and P.2 cheques towards legally enforceable debt. Therefore, I do not see any grounds to interfere with the judgment of acquittal recorded by the trial Court, hence, 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.1655 OF 2006
DATE: 22.01.2014