M/S Kedia Textiles At 212658/4, vs Madina Matching Centre Another,
2022 Latest Caselaw 3607 Tel

          HONOURABLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No. 1452 of 2007


JUDGMENT:

1. This appeal is filed questioning the acquittal of the 1st

respondent/accused vide judgment in CC No.365 of 2003

dated 29.12.2006 passed by the Chief Metropolitan

Magistrate, Hyderabad.

2. The complainant is M/s.Kedia Textiles represented by

its Proprietor Praveen Kedia and the accused/1st respondent-

Madina Matching Centre represented by its Proprietor Arshad

Iqbal.

3. It is the case of the complainant/appellant that the

firm Kedia Textiles supplied material to the accused firm and

in the course of business, fell due an amount of Rs.91,948/-

and he issued cheque bearing No.023874 for Rs.3,000/- dated

25.05.2003 and when the said cheque was presented for

clearance, the cheque which is Ex.P1 was returned with an

endorsement 'insufficient funds'.

4. During the course of trial, the Proprietor of Kedia

Textiles examined himself as P.W.1 and he admitted that the

1st respondent/accused used to approach its firm and

purchase cloth material. Running account was maintained.

In the course of business when the material was given on

credit, outstanding dues would be paid within 30 days from

the date of bill and also the interest at the rate of 24%. The 1st

respondent/accused was liable for a sum of Rs.91,948/- after

reconciling the account.

5. The complainant/appellant persuaded the 1st

respondent/accused to issue cheques, for which reason, the

1st respondent/accused issued cheques bearing Nos.023871 to

023873 and when the same were presented, they were

returned unpaid, as such, complaint was filed vide CC No.358

of 2001 and the 1st respondent/accused herein was found

guilty and convicted in the said case. Further, during the

course of his cross-examination, the complainant/appellant

admitted that he has not specifically filed any documents in

CC No.364 and 365 of 2003 to convince the Court regarding

the liability.

6. The appellant/complainant having filed and secured

conviction in CC No.358 of 2001 for the amount outstanding

to Rs.91,948/-, learned Magistrate found that there was no

liability which was specified by the complainant to show how

there was an outstanding after deducting previous amounts,

which were subject matter of earlier CCs and convicted.

7. Further, Ex.D1 was marked during the course of trial

by the 1st respondent/accused having entered into the witness

box. The said document Ex.D1 is a receipt issued reflecting

that blank chques were issued during the year 2000, for which

reason, learned Magistrate found that Ex.P1 was not issued on

25.07.2003 as claimed by P.W.1. The learned Magistrate

further found that in the translation of Ex.D1 it is disclosed

that the 1st respondent/accused has paid the amount and also

issued 13 cheques besides that he used to pay Rs.3,000/-

every month.

8. The learned counsel for the appellant/complainant

would submit that when the issuance of cheques have been

admitted that itself would indicate that the 1st

respondent/accused is accepting the liability. The counsel

relied upon the judgment of Hon'ble Supreme Court in the

case of T.Vasanthakumar v. Vijayakumari1, wherein the

Hon'ble Supreme Court held that once cheque has been issued

presumption is in favour of the complainant that it is for the

accused to discharge his liability.

9. In the case on hand, the 1st respondent/accused

himself entered into the witness box and marked Exs.D1 to

D15, which are receipts and reply notices issued by the 1st

respondent/accused. The appellant/complainant has

suppressed all the documents, which are reply notices and

also the receipt ExD1 and filed the present case. However, the

defence documents are not disputed and further there is no

counter to the explanation given under reply notices and also

during the course of cross-examination whereby the accused

AIR 2015 Supreme Court 2240

substantiated his version that the entire debt was already

discharged which are subject matters of the earlier cases filed

under Section 138 of Negotiable Instruments Act and there is

no liability as far as the present cheque is concerned.

10. Accordingly, the trial Court also found that the 1st

respondent/accused has discharged his burden to show that

these cheques, which were issued in the year 2000 were

subsequently misused to file the present CC. In the

circumstances, the burden shifts on to the 1st

respondent/accused and the same was discharged by him by

preponderance of probability that there was no outstanding. In

the said circumstances, when the version of P.W.1 is viewed

vis-à-vis, the version given by the 1st respondent/accused and

also considering the documents under Exs.D1 to D5, there is

no doubt regarding the finding of the trial Court that the

complainant/appellant failed to prove the outstanding against

the cheque in question. In the absence of any debt, which

could be proved by the appellant/complainant, the

prosecution for the offence under Section 138 of the Negotiable

Instruments Act has to fail.

11. In the circumstances, there are no grounds to interfere

with the finding of the learned Magistrate. Accordingly, the

Criminal Appeal is dismissed. 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.1452 OF 2007

Date:11.07.2022

kvs