Telangana High Court
G. Venkateswara Reddy vs Team One Builders Developers on 22 November, 2022
Bench: K.Surender
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1592 of 2010
JUDGMENT:
1. The appellant is complainant questioning the dismissal of
complaint filed under Section 138 of the Negotiable Instruments
Act against the respondents/accused vide judgment in CC No.4 of
2009, dated 07.04.2010 by the XVI Additional Judge-cum-XX
Additional Chief Metropolitan Magistrate, Hyderabad.
2. Briefly, the facts of the case are that the accused company
was doing real estate business. An agreement of sale was entered
on 09.01.2007 between one B.Anji Babu as first party, complainant
as second party and one J.Venkat Rao as third party to purchase
land at Kondapur village, Sherilingampally Mandal. The
complainant made investment of Rs.1.00 Crore towards earnest
money and as per the terms of the agreement, Anji Babu and
Venkat Rao initially issued cheques to indemnify the investment of
Rs.1.00 Crore by the complainant. The said cheques were taken
back by them. Later complainant and the said two persons jointly
executed an agreement of sale in favour of A2, who was acting on
behalf of A1 for consideration of Rs.26,50,00,000/-. Towards the
share of the complainant, two cheques for an amount of Rs.85.00
lakhs and Rs.50.00 lakhs were issued to the complainant. The said
cheques were presented for clearance on 10.01.2008, which were
returned unpaid. On 21.01.2008, legal notice was sent, which was
received on 25.01.2008. A reply was given on 06.02.2008. However,
the payment was not made, as such, complaint was filed.
3. The learned Magistrate examined P.W.1/complainant and
marked Exs.P1 to P14 on his behalf. The accused examined D.Ws.1
and 2 and marked Exs.D1 to D4 in support of their defence.
Having examined the oral and documentary evidence, the learned
Magistrate held that the accused was not guilty of the offence
under Section 138 of the Negotiable Instruments Act.
4. Learned counsel for the appellant submits that though the
cheques were issued by D.W.2, since A2 was also a partner in A1
company, there is a liability, as such, the acquittal has to be
reversed and conviction has to be recorded.
5. The main ground on which the learned Magistrate acquitted
the accused is that the cheques were signed by D.W.2 and not A2,
who was shown as Managing Partner. The complainant has to
establish that there was any legally enforceable liability against the
cheques received.
6. There is no proof that the complainant had to be paid the
amount of Rs.1,35,00,000/- covered by two cheques and failure to
prove as to how the outstanding arose, there is no liability on the
said cheques.
7. According to D.W.2, who is the Managing Partner of A1 firm,
the cheques were issued to the complainant by him towards
security, who promised to sort out the disputes and same was also
mentioned in the reply notice. The writings in the cheques and
signatures are made with different ink, which clearly indicates that
the cheques were not given as stated by the complainant.
8. Though the documents were marked, it is not substantiated
by the complainant as to how there is a due of Rs.1,35,00,000/-
from the company. Failure to prove the outstanding, which
admittedly is based on documents filed during the course of trial, it
cannot be inferred that there is an outstanding, only for the reason
of the cheques being in possession of the complainant.
9. Admittedly, A2 is not a signatory to the said cheques.
Though, D.W.2 entered into witness box and stated that A2 has
nothing to do with the transactions in question and it was D.W.2,
who had issued the cheques towards security, no steps were taken
by the complainant to make D.W.2 as an accused by filing petition
under Section 319 of Cr.P.C. D.W.2 could have been prosecuted by
PW1 without sending him a notice since notice was given in favour
of A1 company. However, keeping in view the failure of the defacto
complainant to discharge his initial burden of proving that there is
a liability and also for prosecuting the person, who has not issued
the cheques, the order of acquittal needs no interference.
10. 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 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.
11. The findings of the learned Magistrate are probable and based
on record and needs no interference by this Court.
(2022) 8 SCC 440
(2022) 3 SCC 471
12. Accordingly, the Criminal Appeal is dismissed.
As a sequel thereto, miscellaneous applications, if any, shall
stand closed.
__________________
K.SURENDER, J
Date: 22 .11.2022
kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1592 of 2010
Date: 22.11.2022.
kvs
