Telangana High Court
M/S. Esma Tractors vs Sri Sat Kamal Pathak The State Of ... on 17 August, 2022
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.1064 OF 2007
Between:
M/s.Eshma Tractors. ... Appellant
And
Sri Sat Kamal Pathak and another. ... Respondents
DATE OF JUDGMENT PRONOUNCED: 17.08.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to Yes/No
see the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
_________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K.SURENDER
+ CRL.A. No. 1064 of 2007
% Dated 17.08.2022
# M/s.Eshma Tractors. ... Appellant
And
$ Sri Sat Kamal Pathak and another ...Respondents
! Counsel for the Appellant: Shyam S.Agarwal.
^ Counsel for the Respondent: Sri Tousif Basha for R1
>HEAD NOTE:
? Cases referred
1
AIR 2021 SC 1281
2 2012(1) ALD (Cri) 865
3
Criminal Misc.(Main).362/1996 decided on 27.05.1999
4
ILR 2013 Karnataka 1607
5
2001 (2) ALT (CRI.) 493
6
Criminal OP Nos.9894 to 9896 of 1993
7 Crl.O.P.No.28077 of 2006 and M.P.No.1 of 2006
8 (1999) 4 Supreme Court Cases 567
9 1993 LawSuit (SC) 576
10
2004 LawSuit(Mad) 287
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1064 OF 2007
JUDGMENT:
1. This appeal is filed against the order of acquittal in CC
No.1678 of 2003 dated 03.08.2007 passed by the XI Additional
Chief Metropolitan Magistrate at Secunderabad.
2. The case of the complainant/appellant is that the appellant
firm is a proprietary concern, selling tractors. The
respondent/accused approached the appellant and took supply
of tractors on credit basis. Towards repayment of the due, out of
the sale transactions, the respondent issued Ex.P2 cheque
bearing No.280702 and when the same was presented for
clearance, it was returned for the reason of 'exceeds
arrangements'.
3. After examination of the witnesses produced by the
appellant, the learned Magistrate found the respondent not guilty
for the following reasons; i) telegram notice will not satisfy the
requirement of statutory notice under Section 138 of the
Negotiable Instruments Act and it should be followed by a letter
of confirmation; ii) The telegram notice was sent on 11.07.2003,
but the confirmation was sent on 08.08.2003 after a lapse of 28
days, which is beyond 15 days from the date of return of the
cheque; iii) If the confirmation is notice taken into consideration,
it is beyond the statutory period of sending notice; iv) When there
is no proper and valid service of notice, there cannot be any valid
cause of action.
4. Learned counsel for the appellant submits that the trial
Court has committed an error in acquitting the respondent when
the issuance of cheque was not disputed. Once the issuance of
cheque and signatures are not disputed, a presumption arises
under Section 139 of the Negotiable Instruments Act and in
support of his contentions, Counsel relied upon the judgments in
the cases of:
i) Sumeti Vij v. Paramount Tech Fab Industries1; ii)
Gadela Vasantha v. Cybermate Infotek Ltd.,2; iii)Yoginder
Kumar Sharma v. Ashok Kumar Sharma3; iv) Gold Field Steels
Pvt. Ltd., v. Sanjay Alloys Pvt. Ltd.,4, v) Pattabirama Reddy v.
AIR 2021 SC 1281
2012(1) ALD (Cri) 865
Criminal Misc.(Main).362/1996 decided on 27.05.1999
ILR 2013 Karnataka 1607
Nageshwara Reddy5; vi) H.M.Brothers Pvt. Ltd., v. R.Monsing
and sons Pvt. Ltd.,6; vii) C.H.V.Appa Rao v. A.R.K.Film
Enterprises7. He further submits that sending of telegram is a
valid notice since the certified copies of a telegram were filed into
the Court under Ex.P5. When the said telegram was sent to the
correct address, presumption under Section 27 of the General
Clauses Act is raised and it has to be deemed service of notice.
The confirmation letter being issued after the statutory period is
of no consequence. In the said circumstances, the finding of the
learned Magistrate has to be reversed.
5. On the other hand, learned counsel for the respondent
submits that merely issuing of a telegram is not sufficient unless
a confirmation letter is issued and that too within the statutory
period prescribed under Section 138 of the Negotiable
Instruments Act. Once the confirmation letter was issued after
the period prescribed time, there is no valid notice and for the
reason of there being no valid notice, prosecution cannot be
launched under Section 138 of Negotiable Instruments Act. The
2001 (2) ALT (CRI.) 493
Criminal OP Nos.9894 to 9896 of 1993
Crl.O.P.No.28077 of 2006 and M.P.No.1 of 2006
other ground urged by the learned counsel for the respondent is
that there is no personal knowledge of P.W.1 about the
transactions in between the appellant firm and the respondent,
as such, launching of prosecution by the GPA-P.W.1 is also not
valid. Finally, the learned counsel for the respondent argued that
the Courts at Hyderabad have no jurisdiction, since both the
complainant company and the respondent are residents of
Haryana and deliberately, the GPA holder has filed the complaint
at Hyderabad. In support of his contentions, he relied on the
following judgments: i) Angu Parameswari Textiles (P) Ltd., v.
Sri Rajam decided on 24.01.2001 by Madras High Court; ii)SIL
Import, USA v. Exim Aides Silk Exporters, Bangalore8,
wherein the Hon'ble Supreme Court held that sending of notice
by fax is permissible. However, the limitation period starts from
the date of receipt of fax notice and not from the date of second
notice sent under registered post. Accordingly, complaint was set
aside for not having jurisdiction to take cognizance after the
prescribed period; iii) District Magistrate v. G.Jothisanker9,
wherein the Hon'ble Supreme Court held that telegram itself is
(1999) 4 Supreme Court Cases 567
1993 LawSuit (SC) 576
not an authenticated document unless the telegram is confirmed
by a subsequent confirmation letter; iv) M.Murugan v. Queen
Jhansi Vetrikodi10, in which, the Madras High Court held that
when the telegram was not authenticated by a subsequent letter
within the period of limitation, the telegram by itself cannot be
construed as a statutory notice.
6. Lastly respondent submits that as seen from the audit
reports Exs.P9 to P14, the outstanding was shown as
Rs.6,56,624/- as against the respondent. However, the cheque is
for the amount of Rs.7,50,000/- which is not explained. He
also submits that all the legal heirs have not made an application
to prosecute the appeal, for which reason, the application
permitting one legal heir to prosecute the case has to be
dismissed.
7. Admittedly, the telegrams were sent within the specified
time, however, the confirmation letter was beyond the date of
statutory period of sending of notice. In the said circumstances, it
cannot be said that the telegram being sent within the statutory
period was in compliance of the notice to be issued under Section
2004 LawSuit(Mad) 287
138 of the NI Act. In the absence of the confirmation letter, which
has to follow the telegram and said confirmation Ex.P6 letter was
given on 08.08.2003 under the postal receipt Ex.P9 dated
09.08.2003, the said date of sending the telegram notice is clearly
beyond the statutory period of 15 days. For the said reason,
taking cognizance by the Court is bad in law.
8. Secondly, the liability as shown in the audit report is
Rs.6,56,624/- and the cheque is for Rs.7,50,000/-. Complainant
vaguely stated that the amount was after reconciliation and
towards interest. How the said amount of Rs.7,50,000/- was
arrived at is not specifically stated by the complainant in his
complaint nor in his deposition before the Court. Since the
respondent disputed the outstanding it is for the complainant to
specifically state the details of the outstanding amount. The
respondent admitted the issuance of cheque as such the burden
shifts onto him. However for the said reason of the
appellant/complainant not proving the outstanding except
stating that there was a settlement, it cannot be said that the
amount mentioned in Ex.P2 cheque is legally enforceable debt in
the background of EXP9 to 14.
9. The objection of the respondent that all the legal heirs have
to collectively come on record to prosecute the appeal has no
legal basis. The case under section 138 NI Act is quasi criminal
in nature to decide the liability of the accused therein and
prosecuting the case will not decide any rights or claims of legal
heirs. For the said reason it is sufficient compliance that any one
of the legal heirs approaches the Court seeking permission to
prosecute the appeal.
9. For the aforementioned reasons, the Criminal Appeal is
liable to be dismissed and accordingly dismissed. As a sequel
thereto, miscellaneous applications, if any, shall stand closed.
_________________
K.SURENDER, J
Date: 17.08.2022
Note: LR copy to be marked.
B/o.kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1064 OF 2007
Dated: 17.08.2022
kvs
