Andhra Pradesh High Court - Amravati
Tetali Venkateswara Reddy vs Donga Murali Krishna on 23 August, 2024
APHC010054952020
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3396]
(Special Original Jurisdiction)
FRIDAY, THE TWENTY THIRD DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL APPEAL NO: 210/2020
Between:
TETALI VENKATESWARA REDDY, S/o. VENKATA REDDY, R/O D.NO.
7-114/A, PLIAPU VEEDHI, PENUMANTRA V AND M WEST GODAVARI
DISTRICT.
...APELLANT
AND
1. DONGA MURALI KRISHNA, S/o. VENKATESWARA RAO, R/O D.NO.
4-5A, DARI THIPPA, JAGANNADHAPURAM VILLAGE, MOGALTURU
MANDAL, WEST GODAVARI DISTRICT.
2. THE STATE OF AP, REP. BY PUBLIC PROSEUICTOR, HIGH COURT
OF AP, AMARAVATHI.
...RESPODENT(S):
Counsel for the Appellant:
1. VENKATESWARLU KOLLA
Counsel for the Respondent(S):
1. MANGENA SREE RAMA RAO
2. PUBLIC PROSECUTOR (AP)
The Court made the following:
JUDGMENT:
The Appellant/Complainant preferred the present appeal under Section
378(4) of the Code of Criminal Procedure1, 1973, challenging the judgment
dated 05.12.2019 passed in C.C.No.176 of 2018 on the file of the Court of
For short 'Cr.P.C'
Special Magistrate, Tanuku for an offence punishable under Section 138 of
the Negotiable Instruments Act, 18812, was acquitted.
2. The parties hereinafter referred to as they were arrayed before the trial
Court.
3. Facts of the case, in brief, are as follows:
a. On 16.04.2017, the Accused borrowed a sum of Rs.1,80,000/- and
executed a promissory note in favour of the Complainant agreeing to repay
the same with interest @ 18% per annum. Subsequently, on demand, the
Accused issued a cheque bearing No.000181 for Rs.1,80,000/- on
06.12.2017, towards part payment of the said amount. On presentation, the
said cheque was returned on 13.12.2017 with an endorsement of "funds
insufficient". Thereupon, the Complainant got issued a statutory notice on
20.01.2018 and having received the same, the Accused neither paid any
amount nor gave any reply. Hence, a private complaint came to be filed for the
offence under Section 138 of N.I. Act. The trial Court on appreciation of the
evidence on record, acquitted the Accused.
4. Grounds of Appeal:
Feeling aggrieved, the Complainant filed the present appeal on the
following grounds.
a. The judgment of the learned Magistrate is contrary to law, weight of
evidence and probabilities of the case.
For short 'N.I.Act'
b. The learned Magistrate failed to observe that, though Ex.P.2 cheque
was dishonoured by Karur Vysya Bank at Bhimavaram on 13.12.2017 and
sent back to Andhra Bank, Tanuku where Ex.P.3 memo was prepared on
04.01.2018, it has to come back to Andhra Bank at Penumantra and it was
received there on 06.01.2018 and was given to the Appellant / Complainant
on 09.01.2018.
c. When Ex.P.4 notice to Respondent / Accused was given on 20.01.2018,
even if the date of printing of Ex.P.3 i.e.,04.01.2018 was taken as the date of
knowledge to the Appellant / Complainant, the learned Magistrate ought to
have held that Ex.P.4 notice was within the stipulated time of 30 days from the
date of receipt of information from the Bank. So the observation of the
learned Magistrate that the Appellant / Complainant failed to prove the date of
his knowledge of information is erroneous.
d. The learned Magistrate ought to have held that Respondent/Accused
has committed the offence under Section 138 of N.I.Act and ought to have
convicted him.
5. Heard Sri Venkateswarlu Kolla, learned counsel for the Appellant. Sri
Mangena Sree Rama Rao, learned counsel for Respondent No.1/Accused
and Ms.Priyanka Lakshmi, learned Assistant Public Prosecutor for
Respondent No.2 is in attendance.
6. The point that emerges for determination is
Whether the impugned judgment warrants any interference from this
Court?
7. In the instant case, the learned Magistrate acquitted the Accused mainly
on the ground that the alleged cheque was returned on 13.12.2017 and the
statutory notice was issued on 20.01.2018, which is beyond the period of
limitation of 30 days. However, a bare perusal of the material on record would
disclose that the said cheque was presented in the bank account of the
Complainant i.e., Andhra Bank, Penumantra on 08.12.2017 and the same was
sent for clearing through the said bank and it was returned on the ground of
"Funds Insufficient" by the Bank of Accused and the said returned cheque was
received by the banker of the Complainant on 06.01.2018 and the same was
intimated to the Complainant by his banker on 09.01.2018. Whereas, the
statutory notice got issued by the Complainant to the Accused is dated
20.01.2018. As per the amendment dt.06-02-2003 to Section 138(b) of the
Act, the Complainant has to issue notice demanding repayment of the amount
to the Accused within thirty days of the receipt of information of return of
cheque. In the case on hand, the Complainant had issued the said notice
within 30 days which is well within the time, in view of the above provision.
8. In the light of the discussion referred above, this Court finds that the trial
Court erred in acquitting the Accused on the sole ground that the Complainant
failed to issue notice to the Accused within the statutory period and hence, the
judgment of the trial Court warrants interference of this Court and the same is
liable to be set aside.
9. In the result, the Criminal Appeal is allowed setting aside the judgment
dated 05.12.2019 passed in C.C.No.176 of 2018 on the file of the Court of
Special Magistrate, Tanuku. Matter is remanded to the trial Court and
C.C.No.176 of 2018 shall be restored to file. The learned trial Judge is directed
to dispose of the case on merits according to law, as expeditiously as possible.
Learned counsel representing both parties are requested to inform the
respective parties to appear before the trial Court on 13.09.2024 without fail.
Learned trial Judge need not issue any notice to the parties.
Registry is directed to transmit the record along with copy of the Order
forthwith.
As a sequel thereto, miscellaneous petitions, pending if any, shall
stand closed.
_____________________________________
JUSTICE VENKATA JYOTHIRMAI PRATAPA
Date:23.08.2024
Dinesh
HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
Dt.23.08.2024
Dinesh
