M/S. Sun Son Industries, ... vs Kunnapa Reddy Suresh, ...
2022 Latest Caselaw 6071 Tel

            HON'BLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No.1307 of 2010
JUDGMENT:

1. The complaint filed under Section 138 of the Negotiable

Instruments Act was dismissed vide judgment in CC No.127 of

2009 dated 29.04.2010 by the XIV Additional Judge-cum-

XVIII Additional Chief Metropolitan Magistrate, Hyderabad.

Aggrieved by the same, present appeal is filed.

2. It is the case of the complainant that he is the proprietor

of the complainant firm and was acquainted with the

accused/respondent. When asked for a loan of Rs.10.00 lakhs,

complainant gave it in the month of June, 2007. On repeated

requests, cheque for Rs.5.00 lakh was issued on 03.07.2007,

which was dishonored on the ground of 'insufficient funds'. A

notice dated 18.07.2007 was sent. However, for non payment

of the amount covered by the cheque, complaint was filed.

3. The proprietor examined himself as P.W.1 and got

marked Exs.P1 to P5. During the course of cross-

examination, Exs.D1 to D4 were marked in defence.

4. The main ground on which the learned Magistrate

acquitted the accused was that a notice was sent to the

accused on behalf of P.Venkateshwara Rao, Proprietor of Pure

Foods Industries and the name of the complainant which is

M/s.Sun Son Industries, rep. by its Proprietor A.V.Ravi Kumar

is not reflected. The other ground is that though Rs.10.00

lakhs was alleged to have advanced, the complainant industry

has not produced any registration or accounts or income tax

records to substantiate lending of such huge amount of

Rs.10.00 lakhs to the accused. In the absence of any proof by

the complainant firm, it cannot be said that there is a legally

enforceable debt.

5. Having perused the record, unless the notice is sent by

the drawee to the drawer of the cheque, the question of

initiating complaint under Section 138 of the Negotiable

Instruments Act does not arise.

6. In the present case, a notice was issued in the name of

P.Venkateshwara Rao, Proprietor of Pure Foods Industries,

which firm has nothing to do with the complainant. The said

ground would suffice to dismiss the complaint. It is not

necessary to go into the facts whether the complainant firm

ought to have produced any records of the firm to ascertain

whether the amount was in fact advanced by the firm, since

this court is not inclined to interfere on the sole ground of non

sending of notice by the complainant to accused.

7. In Jafarudheen and others v. State of Kerala1 and

Rajesh Prasad v. State of Bihar and another2, the Hon'ble

Supreme Court held that in case of acquittal, presumption is

in favour of the accused. Unless there are glaring mistakes or

any erroneous view of law is taken, the appellate Courts

cannot interfere with the judgment of the acquittal. The

Hon'ble Supreme Court further held that it has to be shown

that there was miscarriage of justice and while dealing with

the evidence, the Court committed an error and improperly

considered and adjudicated the case.

(2022) 8 SCC 440

(2022) 3 SCC 471

8. For the said reasons, this Court does not find any reason

to interfere with the well reasoned judgment of the learned

Magistrate.

7. Accordingly, the Criminal Appeal is dismissed.

As a sequel thereto, miscellaneous applications, if any

pending shall stand closed.

__________________ K.SURENDER, J Date: 22.11.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1307 of 2010

Date: 22.11.2022.

kvs