THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL APPEAL No.1221 of 2007
JUDGMENT:
This appeal is preferred by the appellant-complainant aggrieved by the judgment dated 21.03.2007 passed in STC No.451 of 2005 by the III Metropolitan Magistrate, Cyberabad at L.B. Nagar in acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'NI Act').
2. The case of the appellant was that he was engaged in the business of Mini Power Projects in A.P. under the name and style of "Inden Power International Limited", represented by its authorised signatory authorized by the Board of Directors vide Resolution dated 21.04.2005. The accused was running business in the name and style of Dhansthra Capital Limited. The accused company approached the complainant company stating that they would provide foreign fund to the complainant company for mini power project in Andhra Pradesh. The accused company compelled the complainant to pay Rs.35.00 lakhs for providing the same. The complainant in good faith deposited an amount of Rs.35.00 lakhs in the account of the accused company for facilitating foreign fund for his mini power project but the accused failed in its duty to provide foreign funding and committed breach of trust. The accused gave evasive replies to avoid payments to the complainant. On repeated requests, the accused stated that the company was in crisis and his father Devendra Pandya who was the Managing Director of the company had expired and came Dr.GRR,J 2 CrlA.No.1221 of 2007 forward to negotiate the issue by holding discussion for an amicable settlement and agreed to settle for an amount of Rs.25.00 lakhs though the actual liability was for Rs.35.00 lakhs. The accused gave an undertaking letter dated 20.11.2004 to settle the amount in due course and issued five post dated cheques for Rs.5.00 lakhs each drawn on HSBC Lokhandwala, Mumbai and requested for some time to clear the cheques. The complainant presented the cheque bearing No.270360 on 02.05.2005 and the same was returned with endorsement "Payment stopped by the drawer". The complainant issued a legal notice dated 23.05.2005. The accused acknowledged the receipt of notice but failed to give reply, as such, filed the complaint under Section 138 of NI Act. The case was taken on file by the III Metropolitan Magistrate, Cyberabad at L.B. Nagar and issued summons to the accused. The accused appeared before the Court and contested the matter. The complainant examined the Senior Executive of the Company as PW.1 and the Managing Director of the company as PW.2 and got marked Exs.P1 to P11. The accused examined himself as DW.1 and got marked Exs.D1 and D2. On considering the evidence on record, the learned III Metropolitan Magistrate, acquitted the accused under Section 255(1) Cr.P.C. for the offence under Section 138 of NI Act. Aggrieved by the same, the complainant preferred this appeal contending that the trial Court erred in acquitting the accused without giving any valid or cogent reasons for coming to the conclusion. The observations and findings of the trial Court in acquitting the accused were erroneous and unsustainable. The trial Dr.GRR,J 3 CrlA.No.1221 of 2007 court ought to have taken into account Ex.P.11 wherein the accused sought for more time to pay the amount covered by the cheque. The trial court ought to have appreciated the fact of the undertaking given by the accused to discharge the legally enforceable debt. The trial court failed to appreciate the fact that the accused did not file any documents to show that he gave a report before Oshiwara Police Station at Mumbai and failed to appreciate the fact that the complainant had filed a case under Section 406 and 420 IPC in Tirumalgiri Police Station before filing the present complaint. The trial Court failed to consider that Ex.P.9 was unconnected to the issue in question and it was only an after-thought to avoid payment of legally enforceable debt. The trial Court erred in coming to the conclusion that the cheques were obtained under coercion and threat, the same was not supported by any cogent evidence by the accused. It was not an invariable principle that the drawer of the cheque ought to have a direct interest in the transaction or that he must be a part of it. The drawer of cheque could be a third party who could have undertook to discharge the debt and the trial Court ignored the presumptions under Section 138 of NI Act and prayed to allow the appeal.
3. The learned counsel for the appellant failed to argue the appeal though the matter was pertaining to the year 2007.
4. The learned counsel for the 1st respondent - accused stated that the connected appeals in Crl.A. Nos.1512 of 2007 and 1218 of Dr.GRR,J 4 CrlA.No.1221 of 2007 2007 were dismissed on 04.06.2014 and 15.02.2018 respectively and prayed to consider this appeal also on the same grounds.
5. Perused the record, the judgment of the trial Court in STC No.461 of 2005, dated 21.03.2007 and the judgments of this Court in Crl.A.Nos.1512 and 1218 of 2007. All these cases are arising out of the same transaction for the five post dated cheques issued by the accused on 20.11.2004. The appellant failed to argue the matter in the said appeal also. Crl.A. No.1218 of 2007 was dismissed for default, but Crl.A. No.1512 of 2007 was dismissed on merits. Considering that all the appeals arose from the different STCs, decided on the same day on the same facts pertaining to different cheques issued by the accused and the trial Court as well as this Court in Crl.A. No.1512 of 2007 considered that it was the father of the accused as the Director of Dhansthra Capital Limited, who was alleged to have received the amount of Rs.35.00 lakhs from the complainant and he died in the year 2001 and the complainant, who initiated a criminal case in Crime No.29 of 2004 on the file of Tirumalgiri Police Station, went to Mumbai along with the Sub Inspector of Police and Head Constable of Tirumalgiri Police Station and under threat and force obtained the signatures of the accused i.e. son of the Managing Director of Dhansthra Capital Limited and also obtained five blank cheques bearing Nos.270358 to 270363 and the accused filed a complaint before Oshiwara Police Station, Mumbai against them, for obtaining is signatures under threat and force and considering that the accused did not receive the amount personally, both the trial court as well as Dr.GRR,J 5 CrlA.No.1221 of 2007 the appellate court in Crl.A. No.1512 of 2007 opined that the complainant failed to prove that there was any legally enforceable debt between the complainant and the accused. Hence, considering that the reasons given by the trial Court are justifiable for acquitting the accused and this Court discussed the evidence and law on the said subject in detail in Crl.A. No.1512 of 2007 and dismissed the appeal for the very same reasons, it is considered fit to dismiss the present appeal also.
6. In the result, the Criminal Appeal is dismissed confirming the judgment dated 21.03.2007 passed in STC No.451 of 2005 by the III Metropolitan Magistrate, Cyberabad at L.B. Nagar.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J January 07, 2022 KTL