THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 177 OF 2010
JUDGMENT:
This Criminal Appeal is filed by the Appellant/defacto complainant aggrieved by the acquittal recorded by the III Additional Metropolitan Sessions Judge, Hyderabad, dt.13.08.2009, reversing the order of conviction recorded by the XIV Additional Judge-cum-XVIII Additional chief Metropolitan Magistrate at Hyderabad in C.C.No.20 of 2008, dated 06.04.2009, convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. Heard Sri Jaikanth, representing Sri N.V.Ananthakrishna, learned counsel for the appellant.
3. Briefly the facts of the case are that the complainant company filed case under Section 138 of the Negotiable Instruments Act, 1881, alleging that the wife of the accused was the subscriber of the chit being run by the complainant company. Being a successful bidder, she has taken the prize amount, however, she failed to pay the remaining installment amounts and that the total outstanding amount is Rs.75,000/-. To discharge the said liability, a cheque for the said amount was given by the 2 accused who is the husband of chit subscriber, and when the said cheque was presented, it was returned unpaid for the reason of 'account closed'. It was intimated to the accused by sending a legal notice, however, the accused failed to pay the amount covered by the cheque, for which reason a private complaint was filed.
4. Learned Magistrate having examined the complainant who was representative of the chit fund company and marking Exs.P1 to P16 found that the accused was guilty and sentenced him to undergo one year imprisonment and also pay a fine of Rs.5,000/-.
5. The accused preferred appeal vide Crl.A.No.113 of 2009 and the learned Sessions Judge, reversed the conviction and acquitted the accused on the following grounds;
a) As per Section 29 of the Indian Contract Act, Ex.P13-
Guarantee Agreement is void and the accused has no obligation to perform as a guarantor, since Ex.P13 does not contain the details of execution amount of guarantee.
b) The chit fund company failed to produce the documents to substantiate the outstanding.3
c) There is no proof of liability or debt to the extent of Rs.92,500/- which amount is mentioned in Ex.P2- Promissory Note and the cheque is for Rs.75,000/-.
d) It is evident from the documents produced by the complainant company that the cheques and pro-notes were taken in blank and subsequently filled up.
e) Admittedly, the wife of the accused was the chit member and the details of the payments evaded for the particular months are also not stated and no document is furnished.
6. Learned Counsel appearing for the appellant/complainant would submit that the Sessions Judge has erred in reversing the order of well reasoned Judgment of the Magistrate Court. In fact, Ex.P2 which is a joint promissory note was also filed along with other documents such as chit application, guarantee bond etc.
7. Admittedly, the wife of the accused was a member of the chit of the complainant company. In the agreement of guarantee- Ex.P13, Ex.P14-voucher, Ex.P12-enrollment in the chit, were all signed by the wife of the accused. Admittedly, she was the borrower of the amount. As seen from Ex.P1-cheque, there is an endorsement behind the cheque which reads as 'security cheque'. On close scrutiny it was also found by the learned Sessions Judge 4 that the writings on the cheque differed and the stand taken by the accused that it was a security cheque was believed in corroboration of the fact that there was no outstanding which the accused is liable to pay. The Company failed to produce documents which reflected payments of monthly chit amount. Unless the details of such monthly chit amounts are produced, the Court cannot come to a conclusion about the outstanding.
8. The findings of the learned Sessions Judge are reasonable and based on record for which reason, this Court is not inclined to interfere with the well reasoned Judgment of the learned Sessions Court.
9. Accordingly, the Criminal Appeal is dismissed.
Miscellaneous applications pending, if any, shall stand closed.
__________________ K.SURENDER, J Dt.:03.11.2022 tk 5 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No. 177 OF 2010 Dt. 03.11.2022 tk