THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL NO.391 OF 2010
J U D G M E N T:
The Criminal Appeal is filed under Section 378(4) of Criminal Procedure Code, 1973 (for short, "Cr.P.C.") aggrieved by the Judgment dated 13.04.2009 passed in C.C.No.297 of 2006 on the file of the learned Special Mobile-cum-XI Metropolitan Magistrate, Cyberabad in acquitting the accused for the offence under Section 138 of the Negotiable Instrument Act, 1881 (for short, "N.I.Act").
2. Heard Sri Ganduri Nageswara Rao, learned counsel for the appellant, learned Assistant Public Prosecutor appearing for the 1st respondent and Sri G. Simhadri, learned counsel for the 2nd respondent.
3. The appellant/complainant is questioning the correctness of the dismissal of the complaint filed by him under Section 138 of the N.I.Act against the 2nd respondent/accused.
4. The brief case of the prosecution is that, an amount of Rs.1,00,000/- (Rupees one lakh only) was borrowed by the accused and later an amount of Rs.50,000/- (Rupees fifty thousand only) was repaid by him towards interest. For the outstanding principal amount, the cheque in question for rupees one lakh was issued by 2 the accused. When the said cheque was presented for clearance, the same was returned unpaid for the reason of 'insufficiency of funds'. Since, the accused failed to make good the payment covered by the cheque after receipt of notice, the complaint was filed.
5. Learned Magistrate found that the accused is not guilty for the said offence for the reason that the cheque in question was issued in favour of the complainant by S.R. Associates and the said S.R. Associates is not made as accused in this case. Therefore, the accused is not liable for the dishonour of the said cheque since it is not drawn on the account maintained by accused. Further, the learned Magistrate found that there is an endorsement on the backside of the cheque stating that Rs.50,000/- (Rupees fifty thousand only) was paid on 11.03.2004, whereas the cheque was dated 21.03.2004. Learned Magistrate found that since the amount of Rs.50,000/- (Rupees fifty thousand only) was paid which was not disputed, there is no legally enforceable debt to the extent of Rs.1,00,000/- (Rupees one lakh only) for which reason, the prosecution under Section 138 of N.I. Act, fails to establish the guilt of the accused.
6. As per the findings of the learned Magistrate, it is a well settled law that, a firm or a company shall be made a party to the proceedings. The reason being that, under Section 141 of the N.I. 3 Act, vicarious liability is on the persons running the firm. Unless the firm or the company is made party-accused to the suit case, the question of vicarious liability does not arise.
7. For the said reasons, I find that the conclusions arrived at by the learned Magistrate, while acquitting the accused, needs no interference. In cases of an appeal being preferred against an acquittal, the appellate Court shall not interfere with the order of acquittal, unless there is a glaring inconsistency in the findings based on record. Since, the findings are reasonable, there are no grounds to interfere with the judgment dated 13-04-2009 passed by the Court below.
8. Accordingly, the Criminal Appeal is dimissed.
Pending miscellaneous applications, if any, in this Criminal Appeal, shall stand closed.
_________________ K.SURENDER, J 03.11.2022 ESP 4 THE HON'BLE SRI JUSTICE K.SURENDER 76 CRIMINAL APPEAL No.391 OF 2010 Dated: 03.11.2022 ESP