THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 669 OF 2010
JUDGMENT:
This Criminal Appeal is filed by the Appellant/Complainant aggrieved by the acquittal recorded by the XV Additional Judge-cum-XIX Additional chief Metropolitan Magistrate, Hyderabad, in C.C.No.89 of 2009, dated 24.01.2009, acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. Heard both sides and perused the record.
3. The case of the complainant is that it is a public limited company and the 1st respondent-accused was one of the Proprietors to whom cement was supplied on credit basis. When the outstanding was Rs.1,62,132.50 ps., a cheque was issued by the 1st respondent-accused. The said cheque was presented for clearance and returned unpaid for the reason of "not arranged". Having received advice memo, the complainant issued a legal notice asking the accused to pay the amount covered by the cheque. Having received the notice, the accused gave reply but did not make any payment for which reason a complaint was filed by the complainant.
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4. During trial, Learned Magistrate examined one B.Venkateswar Rao as PW1 on behalf of the Company and marked Exs.P1 to P12 produced by him. The accused entered into witness box having filed an application under Section 315 of the Cr.P.C. and examined himself as DW1.
5. Learned Magistrate acquitted the accused on the following grounds;
a) Ex.P10 filed by the complainant reflects that the accused filed insolvency petition on 29.10.2003 which was not disputed by the complainant. If the application for insolvency was filed on 29.10.2003, the question of issuing cheque subsequently on 05.12.2003 does not arise.
b) The witness who was examined as PW1 did not have any personal knowledge about the transactions between the complainant Company and the accused. It is the specific case of the accused that at the time of dealership, bank cheques were given as security which can be believed in the background of the present case.
c) The Statement of Account was filed. However, it was not proved as there was no supporting evidence to the claims made in the Statement of Account regarding the outstanding. 3
6. Learned Counsel appearing for the appellant would submit that the accused had accepted his signature on the cheque for which reason the presumption under Section 138 of the Negotiable Instrument Act is attracted and the defence taken by the accused is not sufficient to rebut presumption. Since the signature on the cheque is not disputed, the finding of the learned Magistrate is improbable and has to be reversed.
7. Admittedly, the representative of the Company did not have personal knowledge of the transactions interse the complainant and the accused. The fact that the accused filed an insolvency application in the month of October, 2003 is not disputed by the complainant. When it is a fact that the accused had filed an insolvency petition, which is to the knowledge of the Complainant the question of issuing a cheque after two months of filing such petition appears to be improbable and the version which is stated by the accused that the cheque was issued at the inception when the dealership was taken from the complainant Company, appears to be correct. Though, the Statement of Account was filed, the same was not filed along with the complaint and the Statement of Account which was generated by the complainant cannot be believed in the absence 4 of any corroborating documents such as invoices, credit bills, delivery challans etc.
8. Reasons given by the learned Magistrate while dismissing the complaint under Section 138 of the Negotiable Instruments Act are based on record and probable in the circumstances of the present case.
9. The appellate Court while dealing with an appeal against acquittal cannot interfere with the order of the acquittal unless the findings are not correct, improbable and not based on record.
10. This Court does not find any grounds to interfere with the well reasoned Judgment of the learned Magistrate acquitting the accused.
11. Accordingly, The Criminal Appeal fails and is dismissed.
Miscellaneous applications pending, if any, shall stand closed.
__________________ K.SURENDER, J 27.10.2022 tk 5 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL NO. 669 OF 2010 Dt. 27.10.2022 tk