Telangana High Court
Hindustan Petroleum Corp. Ltd., vs The State Of Ap Rep By Its Pp Hyd., And 2 ... on 2 July, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.309 OF 2011
ORDER:
1. This Criminal Appeal is filed by the Complainant- Hindustan Petroleum Corporation Limited, aggrieved by the order of acquittal recorded by the X Additional Chief Metropolitan Magistrate at Secunderabad, in C.C.No.1346 of 2002, dated 12.12.2008, for the offence under Section 138 of the Negotiable Instruments Act.
2. Heard learned counsel for the complainant and learned Assistant Public Prosecutor for the respondent-State.
3. Briefly, the case of the complainant-Hindustan Petroleum Corporation Limited (A Government of India Enterprise) is that the complainant company supplied furnace oil in bulk to the tune of Rs.72.00 lakhs since February, 2000. The accused failed to keep up the commitment of payment for which reason, Bank Guarantee was revoked and the cheque in question for Rs.41,69,137/- was presented for clearance. The said cheque was returned by the Bank on the ground of 'exceeds arrangements' and also 'payment stopped by drawer'. Aggrieved by the said return of the cheque, the complainant company 2 issued notice to the accused. However, the accused failed to make good payment covered by the cheque, for which reason, complaint was filed.
4. The complainant company examined its Chief Regional Manager-PW1, Senior Regional Manager-PW2 to speak about the outstanding and the cheque issued by the accused. Accused No.1 who was the Managing Director of Accused No.2 company entered into box and examined himself as DW1. On behalf of the complainant Exs.P1 to P17 which are the statement of accounts (Exs.P1 to P3) and other documents were marked. On behalf of the defence, Exs.D1 to D6 were marked.
5. On consideration of evidence, the Court below found that Exs.P1 to P3-documents which are statement of account do not give the exact details of the outstanding as on the date of issuing cheque. If it is the case of the company that as on the date of issuance of cheque, the amount on the cheque should be reflected in the accounts, however, it is not the case. Further, though the supply of furnace oil in bulk was admitted, however, complainant company failed to prove the outstanding to the tune of Rs.41,69,137/- as on the date of cheque which is 4.10.2002. 3
6. The learned Magistrate further found that on perusal of the documents, A1 was not the Managing Director of A2 company on the date of issuance of the cheque. The accused was able to prove that the cheque in question was issued long prior to the date of the cheque, and the cheque was subsequently filled up and sent for clearance by the complainant. On account of there being no clarity regarding the outstanding, the accused company had issued stop payment instructions. Once the Managing Director had resigned and was not functioning as on the date of sending notice, the question of service of notice does not arise.
7. Finally, the learned Magistrate found that the complaint was premature and accordingly on the basis of premature filing of the complaint and the other grounds stated above, the learned Magistrate recorded acquittal of the accused.
8. The learned Counsel appearing for the complainant company would submit that in view of the Judgment of the Honourable Supreme Court in Gajanand Burange v. Laxmi Chand Goyal 1 the finding of the learned Magistrate regarding the complaint being premature cannot be sustained. In view of 1 2022 SCC OnLine SC 1711 4 the same, the appeal has to be allowed and accused has to be convicted for the offence under Section 138 of the Negotiable Instruments Act. Apart from the said ground, no other grounds were raised by the learned counsel.
9. On questioning by this Court, regarding various aspects which were discussed by the learned Magistrate regarding there being no proof of outstanding and other issues, the learned counsel submitted that, premature complaint is the only ground on which the appellant is seeking reversal or remand to the Court below.
10. As already stated above, apart from the issue of premature complaint, the trial Court found that the complainant was not in a position to establish before the Court below regarding the outstanding. Further, A1 was not the Managing Director of A2 company as on the date of cheque and it was taken long prior as security. Since, none of these aspects are disputed by the appellant, the only ground of 'premature complaint' cannot form basis to allow the appeal.
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11. Further, the Honourable Supreme Court in Ravi Sharma v. State (Government of NCT of Delhi) and another 2, held that while dealing with an appeal against acquittal, the appellate court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal.
12. In Ghurey Lal v. State of Uttar Pradesh 3 the Hon'ble Supreme Court after referring to several Judgments regarding the settled principles of law and the powers of appellate Court in reversing the order of acquittal, held at para 70, as follows:
"70. In the light of the above, the High Court and other appellate Courts should follow the well-settled principles crystallized by number of Judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons"
exist when:
i) The trial court's conclusion with regard to the facts is palpably wrong:
ii) The trial court's decision was based on an erroneous view of law;2
(2022) 8 Supreme Court Cases 536 3 (2008) 10 Supreme Court Cases 450 6
iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration o the findings of the trial court.
3. If two reasonable views can be reached__ one that leads to acquittal, the other to conviction __the High Courts/appellate courts must rule in favour of the accused."
13. In view of the above, the appeal fails and dismissed.
As a sequel, miscellaneous applications, if any, pending shall stand closed.
___________________ K.SURENDER, J Date: 02.07.2024 tk