HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1307 of 2010
JUDGMENT:
1. The complaint filed under Section 138 of the Negotiable Instruments Act was dismissed vide judgment in CC No.127 of 2009 dated 29.04.2010 by the XIV Additional Judge-cum- XVIII Additional Chief Metropolitan Magistrate, Hyderabad. Aggrieved by the same, present appeal is filed.
2. It is the case of the complainant that he is the proprietor of the complainant firm and was acquainted with the accused/respondent. When asked for a loan of Rs.10.00 lakhs, complainant gave it in the month of June, 2007. On repeated requests, cheque for Rs.5.00 lakh was issued on 03.07.2007, which was dishonored on the ground of 'insufficient funds'. A notice dated 18.07.2007 was sent. However, for non payment of the amount covered by the cheque, complaint was filed.
3. The proprietor examined himself as P.W.1 and got marked Exs.P1 to P5. During the course of cross- examination, Exs.D1 to D4 were marked in defence. 2
4. The main ground on which the learned Magistrate acquitted the accused was that a notice was sent to the accused on behalf of P.Venkateshwara Rao, Proprietor of Pure Foods Industries and the name of the complainant which is M/s.Sun Son Industries, rep. by its Proprietor A.V.Ravi Kumar is not reflected. The other ground is that though Rs.10.00 lakhs was alleged to have advanced, the complainant industry has not produced any registration or accounts or income tax records to substantiate lending of such huge amount of Rs.10.00 lakhs to the accused. In the absence of any proof by the complainant firm, it cannot be said that there is a legally enforceable debt.
5. Having perused the record, unless the notice is sent by the drawee to the drawer of the cheque, the question of initiating complaint under Section 138 of the Negotiable Instruments Act does not arise.
6. In the present case, a notice was issued in the name of P.Venkateshwara Rao, Proprietor of Pure Foods Industries, which firm has nothing to do with the complainant. The said 3 ground would suffice to dismiss the complaint. It is not necessary to go into the facts whether the complainant firm ought to have produced any records of the firm to ascertain whether the amount was in fact advanced by the firm, since this court is not inclined to interfere on the sole ground of non sending of notice by the complainant to accused.
7. In Jafarudheen and others v. State of Kerala1 and Rajesh Prasad v. State of Bihar and another2, the Hon'ble Supreme Court held that in case of acquittal, presumption is in favour of the accused. Unless there are glaring mistakes or any erroneous view of law is taken, the appellate Courts cannot interfere with the judgment of the acquittal. The Hon'ble Supreme Court further held that it has to be shown that there was miscarriage of justice and while dealing with the evidence, the Court committed an error and improperly considered and adjudicated the case.
1 (2022) 8 SCC 440 2 (2022) 3 SCC 471 4
8. For the said reasons, this Court does not find any reason to interfere with the well reasoned judgment of the learned Magistrate.
7. Accordingly, the Criminal Appeal is dismissed.
As a sequel thereto, miscellaneous applications, if any pending shall stand closed.
__________________ K.SURENDER, J Date: 22.11.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1307 of 2010 Date: 22.11.2022.
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