K.V.P. Kennedy, Hyderabad. vs The State Of A.P., Rep. By P.P., ...
2022 Latest Caselaw 5620 Tel

              THE HON'BLE SRI JUSTICE K.SURENDER

                CRIMINAL APPEAL NO.391 OF 2010

J U D G M E N T:

The Criminal Appeal is filed under Section 378(4) of Criminal

Procedure Code, 1973 (for short, "Cr.P.C.") aggrieved by the

Judgment dated 13.04.2009 passed in C.C.No.297 of 2006 on the

file of the learned Special Mobile-cum-XI Metropolitan Magistrate,

Cyberabad in acquitting the accused for the offence under Section

138 of the Negotiable Instrument Act, 1881 (for short, "N.I.Act").

2. Heard Sri Ganduri Nageswara Rao, learned counsel for the

appellant, learned Assistant Public Prosecutor appearing for the 1st

respondent and Sri G. Simhadri, learned counsel for the 2nd

respondent.

3. The appellant/complainant is questioning the correctness of

the dismissal of the complaint filed by him under Section 138 of the

N.I.Act against the 2nd respondent/accused.

4. The brief case of the prosecution is that, an amount of

Rs.1,00,000/- (Rupees one lakh only) was borrowed by the accused

and later an amount of Rs.50,000/- (Rupees fifty thousand only)

was repaid by him towards interest. For the outstanding principal

amount, the cheque in question for rupees one lakh was issued by

the accused. When the said cheque was presented for clearance, the

same was returned unpaid for the reason of 'insufficiency of funds'.

Since, the accused failed to make good the payment covered by the

cheque after receipt of notice, the complaint was filed.

5. Learned Magistrate found that the accused is not guilty for the

said offence for the reason that the cheque in question was issued

in favour of the complainant by S.R. Associates and the said S.R.

Associates is not made as accused in this case. Therefore, the

accused is not liable for the dishonour of the said cheque since it is

not drawn on the account maintained by accused. Further, the

learned Magistrate found that there is an endorsement on the

backside of the cheque stating that Rs.50,000/- (Rupees fifty

thousand only) was paid on 11.03.2004, whereas the cheque was

dated 21.03.2004. Learned Magistrate found that since the amount

of Rs.50,000/- (Rupees fifty thousand only) was paid which was not

disputed, there is no legally enforceable debt to the extent of

Rs.1,00,000/- (Rupees one lakh only) for which reason, the

prosecution under Section 138 of N.I. Act, fails to establish the guilt

of the accused.

6. As per the findings of the learned Magistrate, it is a well

settled law that, a firm or a company shall be made a party to the

proceedings. The reason being that, under Section 141 of the N.I.

Act, vicarious liability is on the persons running the firm. Unless the

firm or the company is made party-accused to the suit case, the

question of vicarious liability does not arise.

7. For the said reasons, I find that the conclusions arrived at by

the learned Magistrate, while acquitting the accused, needs no

interference. In cases of an appeal being preferred against an

acquittal, the appellate Court shall not interfere with the order of

acquittal, unless there is a glaring inconsistency in the findings

based on record. Since, the findings are reasonable, there are no

grounds to interfere with the judgment dated 13-04-2009 passed by

the Court below.

8. Accordingly, the Criminal Appeal is dimissed.

Pending miscellaneous applications, if any, in this Criminal

Appeal, shall stand closed.

_________________ K.SURENDER, J

03.11.2022 ESP

THE HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.391 OF 2010

Dated: 03.11.2022

ESP