Sandeep Singh Sandhu, vs The State Of Ap Rep By Its Pp Hyd., ...
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          HONOURABLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No. 1081 of 2008


JUDGMENT:

1. The appellant is questioning the acquittal recorded by

X Metropolitan Magistrate, Cyberabad at Malkajgiri in

C.C.No.939 of 2005 dated 04.03.2008, in the present

appeal.

2. The case of the appellant/complainant is that the 2nd

respondent/accused requested for hand loan of Rs.1.00

lakh and promised to repay the same along with interest.

Rs.50,000/- was given in the month of January, 2004 and

the accused promised to repay the same with 12% interest.

Towards repayment, the 2nd respondent/accused issued

Ex.P1 cheque for Rs.50,000/- on 03.03.2004. The said

cheque when sent for clearance was returned unpaid vide

cheque return memo dated 11.09.2004 under Ex.P2 for the

reason of 'insufficient funds'.

3. A copy of Ex.P3 notice dated 01.10.2004 was sent

intimating regarding the cheque being returned for the

reason of not paying the amount covered by the cheque, the

present complaint was filed under Section 138 of Negotiable

Instruments Act by the complainant/appellant.

4. The 2nd respondent/accused entered into the witness

box and examined himself as D.W.1. His claim is that he

did not have prior acquaintance with the

appellant/complainant and never approached him for the

hand loan and denied taking Rs.50,000/- as claimed by the

appellant/complainant. His defence is that he knew one

Teja Singh Sandhu, who was doing finance business and

the cheque issued in question was issued to the said Teja

Singh Sandhu. Though, he repaid the outstanding amount

to the said Teja Singh Sandhu did not return the five blank

cheques given to him. For the said reason, the 2nd

respondent/accused issued legal notice to the said Teja

Singh Sandhu vide Ex.D1, dated 17.08.2006. The cheque

in question was misused by the complainant/appellant to

lodge present complaint apparently given by Teja Singh

Sandhu. During cross-examination, however, the 2nd

respondent/accused admitted that he knew the father of

P.W.1 namely Teja Singh Sandhu to whom the 5 cheques

were issued and he did not know about P.W.1 complainant.

5. The case of the 2nd respondent/accused was that the

legal notice was not issued within the statutory period of 30

days. The cheque return memo Ex.P2 is dated 31.08.2004

and the cause of action arose on the next date i.e.,

01.09.2004 and the statutory period of 30 days would end

on 30.09.2004. However, the legal notice Ex.P3 was issued

on 01.10.2004 after lapse of the statutory period of 30 days,

for which reason, the complaint itself is time barred.

6. Learned Magistrate found that the contention raised by

the 2nd respondent/accused is correct as seen from Exs.P1

to P3. However, the contention of the appellant/complainant

is that though Ex.P2 dated is 31.08.2004 he has received

the said intimation on 11.09.2004, as such the notice is

within 30 days. The learned Magistrate found that Ex.P2

does not contain either signature or any initial from the

Corporation Bank to show that P.W.1 received cheque

return memo EXP2 on 11.09.2004. The

appellant/complainant also failed to examine any one from

the Bank to prove that he has received information about

the cheque returned on 11.09.2004. On Ex.P2, P.W.1 in his

own handwriting has mentioned about the receipt of the

cheque return memo. The learned Magistrate refused to rely

upon such endorsement made by the

complainant/appellant in his own hand writing. As the

notice was issued beyond the statutory period of 30 days,

the prosecution has failed as the requirement of Section 138

of Negotiable Instrument Act has not been fulfilled.

Section 138 of the Negotiable Instrument Act reads as

follows:

. "138. Dishonour of cheque for insufficiency, etc., of funds in the account.

1[Where any cheque drawn by a person on an account

maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 2[a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by

him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the

holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.-- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability."

7. Learned Magistrate also discussed regarding admitting

of receiving blank cheque, towards discharge of debt and

found that receiving blank cheques without name and

amount is not cheque as per the provisions of Sections 5

and 6 of Negotiable Instruments Act. The said finding of the

learned Magistrate cannot be held to be correct for the

reason of the 2nd respondent/accused admitting issuance of

cheque. However, he stated that it was given to the father of

the appellant/complainant. The finding of the learned

Magistrate that there cannot be any prosecution under a

cheque which was issued without filling the date and

amount is set aside in view of judgment of Hon'ble Supreme

Court in the case of T.Vasanthakumar v. Vijaykumari1,

wherein it is held as follows:

"10. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used

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by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence."

8. Since the legal notice was issued beyond the statutory

period, the appeal fails. However, the finding of the learned

Magistrate that prosecution cannot be lodged on unfilled

cheque is set aside in view of the aforesaid judgment of

Hon'ble Supreme Court.

Accordingly, the Criminal Appeal is disposed off. As a

sequel thereto, miscellaneous petitions, if any, pending,

shall stands closed.

________________

K.SURENDER, J Date: 11.07.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Appeal No.1081 OF 2008

Date:11.07.2022

kvs