HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1592 of 2010
JUDGMENT:
1. The appellant is complainant questioning the dismissal of complaint filed under Section 138 of the Negotiable Instruments Act against the respondents/accused vide judgment in CC No.4 of 2009, dated 07.04.2010 by the XVI Additional Judge-cum-XX Additional Chief Metropolitan Magistrate, Hyderabad.
2. Briefly, the facts of the case are that the accused company was doing real estate business. An agreement of sale was entered on 09.01.2007 between one B.Anji Babu as first party, complainant as second party and one J.Venkat Rao as third party to purchase land at Kondapur village, Sherilingampally Mandal. The complainant made investment of Rs.1.00 Crore towards earnest money and as per the terms of the agreement, Anji Babu and Venkat Rao initially issued cheques to indemnify the investment of Rs.1.00 Crore by the complainant. The said cheques were taken back by them. Later complainant and the said two persons jointly executed an agreement of sale in favour of A2, who was acting on behalf of A1 for consideration of Rs.26,50,00,000/-. Towards the share of the complainant, two cheques for an amount of Rs.85.00 2 lakhs and Rs.50.00 lakhs were issued to the complainant. The said cheques were presented for clearance on 10.01.2008, which were returned unpaid. On 21.01.2008, legal notice was sent, which was received on 25.01.2008. A reply was given on 06.02.2008. However, the payment was not made, as such, complaint was filed.
3. The learned Magistrate examined P.W.1/complainant and marked Exs.P1 to P14 on his behalf. The accused examined D.Ws.1 and 2 and marked Exs.D1 to D4 in support of their defence. Having examined the oral and documentary evidence, the learned Magistrate held that the accused was not guilty of the offence under Section 138 of the Negotiable Instruments Act.
4. Learned counsel for the appellant submits that though the cheques were issued by D.W.2, since A2 was also a partner in A1 company, there is a liability, as such, the acquittal has to be reversed and conviction has to be recorded.
5. The main ground on which the learned Magistrate acquitted the accused is that the cheques were signed by D.W.2 and not A2, who was shown as Managing Partner. The complainant has to establish that there was any legally enforceable liability against the cheques received.
3
6. There is no proof that the complainant had to be paid the amount of Rs.1,35,00,000/- covered by two cheques and failure to prove as to how the outstanding arose, there is no liability on the said cheques.
7. According to D.W.2, who is the Managing Partner of A1 firm, the cheques were issued to the complainant by him towards security, who promised to sort out the disputes and same was also mentioned in the reply notice. The writings in the cheques and signatures are made with different ink, which clearly indicates that the cheques were not given as stated by the complainant.
8. Though the documents were marked, it is not substantiated by the complainant as to how there is a due of Rs.1,35,00,000/- from the company. Failure to prove the outstanding, which admittedly is based on documents filed during the course of trial, it cannot be inferred that there is an outstanding, only for the reason of the cheques being in possession of the complainant.
9. Admittedly, A2 is not a signatory to the said cheques. Though, D.W.2 entered into witness box and stated that A2 has nothing to do with the transactions in question and it was D.W.2, who had issued the cheques towards security, no steps were taken 4 by the complainant to make D.W.2 as an accused by filing petition under Section 319 of Cr.P.C. D.W.2 could have been prosecuted by PW1 without sending him a notice since notice was given in favour of A1 company. However, keeping in view the failure of the defacto complainant to discharge his initial burden of proving that there is a liability and also for prosecuting the person, who has not issued the cheques, the order of acquittal needs no interference.
10. 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 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.
11. The findings of the learned Magistrate are probable and based on record and needs no interference by this Court. 1 (2022) 8 SCC 440 2 (2022) 3 SCC 471 5
12. Accordingly, the Criminal Appeal is dismissed.
As a sequel thereto, miscellaneous applications, if any, shall stand closed.
__________________ K.SURENDER, J Date: 22 .11.2022 kvs 6 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1592 of 2010 Date: 22.11.2022.
kvs