Telangana High Court
M/S. Priya Polymers, vs M/S. Indus Floritech Ltd., on 21 July, 2022
Bench: K.Surender
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.814 OF 2006
JUDGMENT:
1. The appellant/complainant filed this appeal aggrieved by the
acquittal of the respondents/accused vide judgment in CC No.424
of 2002 dated 01.02.2006 passed by the I Additional Chief
Metropolitan Magistrate, Hyderabad, for the offence under Section
138 of the Negotiable Instruments Act.
2. According to P.W.1, i.e., appellant/complainant, he is
representing the appellant company, supplied material to the
respondents 1 and 2/A1 and A2. Thereafter, the appellant
requested for payment of the amount, for which reason, A2 issued a
cheque on behalf of A1 bearing No. 17994, dated 04.03.2002 for
Rs.1,23,000/-which is Ex.P1. The said cheque, when presented for
encashment was returned on the ground of "insufficient funds" on
07.03.2002 vide Ex.P2. Notice was issued under Ex.P8 and on
failure to pay the amount within 15 days from the date of receipt of
notice, the present complaint was filed. In proof of delivery of
material, the complainant filed Exs.P4 to P7 invoices.
3. The 1st respondent entered into the witness box and examined
himself as PW1. Mrs. Shailaja Goleccha was examined in defence
as D.W.1 and marked Exs.D1 to D3.
4. The learned Magistrate, after conclusion of trial found the
respondents/accused not guilty of the offence under section 138 of
the Negotiable Instruments Act for the following reasons; i) the
complainant failed to prove that there was any existing liability; ii)
Ex.P1 cheque was a post dated cheque issued long prior to the date
of cheque; iii) under Ex.D3, it was mentioned by the complainant
that material should be returned/taken back as the product which
is supplied was giving problems; iv) since the complainant failed to
prove that there was debt and failed to establish the initial burden
of debt, benefit of doubt is extended to the respondents/accused.
5. Learned counsel appearing for the appellant submits that the
learned Magistrate had erred in relying upon Ex.D3 letter to say
that there was no existing liability. The said letter was addressed to
M/s. Kinetic Polymers and not to M/s.Priya Polymers/complainant.
The address in M/s. Priya Polymers is Plot No.35/C, Katedan,
whereas the letter addressed under Ex.D3 is to M/s. Kinetic
Polymers at Jeedimetla. The appellant company failed to show any
connection between M/s.Kinetic Polymers and M/s.Priya Polymers.
6. The only document relied upon by the trial court to ascertain
that there is no outstanding under Ex.P1 is the letter under Ex.D3,
in which the details of Ex.P1 cheque are noted. As seen from Ex.D3,
the said letter was addressed to M/s. Kinetic Polymers, Jeedimetla,
whereas the complainant M/s.Priya Polymers is at Plot No.35/C,
Katedan, Hyderabad.
7. It is for the respondents company to prove that both
M/s.Kinetic Polymers and M/s.Priya Polymers are one and the
same. The factum of goods delivered by complainant not being
satisfactory to accused and consequently to return the cheque in
question was not addressed to the complainant after receipt of legal
notice under Ex.P8 dated 09.03.2002 from the complainant in the
form of reply. The respondents/accused received Ex.P8 notice on
11.03.2002 as acknowledged under Ex.P9.
8. The only source to draw an inference that there is no
outstanding under Ex.D3 letter which was produced at the stage of
examination of D.W.1. The said letter was not shown to PW1 during
cross examination. Admittedly, though legal notice was received by
the respondents/accused, no reply was sent to the said legal notice,
taking said defence of damaged material and there being no
outstanding. In the said circumstances, the complainant
established that there was legally enforceable debt vide Ex.P1.
However, the respondents/accused failed to discharge their burden
to show that there was no outstanding debt under Ex.P1. For the
said reasons the finding of the learned Magistrate is erroneous and
hereby set aside.
9. As seen from the record, the transactions are of the year 2001
and subsequently the complainant has filed a civil suit O.S.No.2635
of 2004 and the same was decreed on 26.09.2013 in favour of
Complainant.
10. The judgment of the trial Court in C.C.No.424 of 2002 dated
01.02.2006 is set aside. The accused are convicted and sentenced
to pay fine of Rs.10,000/- to the appellant, in default, to suffer
Simple Imprisonment for a period of one month under section 138
of Negotiable Instruments Act.
11. Accordingly, The Criminal Appeal is allowed. As a sequel
thereto, miscellaneous petitions, if any, pending, shall stands
closed.
__________________
K.SURENDER, J
Date: 21.07.2022
kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.814 of 2006
Date: 21.07.2022.
kvs
