M/S. My Home Cement Industries ... vs S.Venkateswarulu The State Of ...
2022 Latest Caselaw 5372 Tel

            THE HON'BLE SRI JUSTICE K.SURENDER

              CRIMINAL APPEAL No. 669 OF 2010

JUDGMENT:

This Criminal Appeal is filed by the

Appellant/Complainant aggrieved by the acquittal recorded by

the XV Additional Judge-cum-XIX Additional chief Metropolitan

Magistrate, Hyderabad, in C.C.No.89 of 2009, dated 24.01.2009,

acquitting the accused for the offence punishable under Section

138 of the Negotiable Instruments Act, 1881.

2. Heard both sides and perused the record.

3. The case of the complainant is that it is a public limited

company and the 1st respondent-accused was one of the

Proprietors to whom cement was supplied on credit basis. When

the outstanding was Rs.1,62,132.50 ps., a cheque was issued by

the 1st respondent-accused. The said cheque was presented for

clearance and returned unpaid for the reason of "not arranged".

Having received advice memo, the complainant issued a legal

notice asking the accused to pay the amount covered by the

cheque. Having received the notice, the accused gave reply but

did not make any payment for which reason a complaint was

filed by the complainant.

4. During trial, Learned Magistrate examined one

B.Venkateswar Rao as PW1 on behalf of the Company and

marked Exs.P1 to P12 produced by him. The accused entered

into witness box having filed an application under Section 315 of

the Cr.P.C. and examined himself as DW1.

5. Learned Magistrate acquitted the accused on the following

grounds;

a) Ex.P10 filed by the complainant reflects that the accused filed

insolvency petition on 29.10.2003 which was not disputed by

the complainant. If the application for insolvency was filed on

29.10.2003, the question of issuing cheque subsequently on

05.12.2003 does not arise.

b) The witness who was examined as PW1 did not have any

personal knowledge about the transactions between the

complainant Company and the accused. It is the specific case of

the accused that at the time of dealership, bank cheques were

given as security which can be believed in the background of the

present case.

c) The Statement of Account was filed. However, it was not

proved as there was no supporting evidence to the claims made

in the Statement of Account regarding the outstanding.

6. Learned Counsel appearing for the appellant would submit

that the accused had accepted his signature on the cheque for

which reason the presumption under Section 138 of the

Negotiable Instrument Act is attracted and the defence taken by

the accused is not sufficient to rebut presumption. Since the

signature on the cheque is not disputed, the finding of the

learned Magistrate is improbable and has to be reversed.

7. Admittedly, the representative of the Company did not

have personal knowledge of the transactions interse the

complainant and the accused. The fact that the accused filed an

insolvency application in the month of October, 2003 is not

disputed by the complainant. When it is a fact that the accused

had filed an insolvency petition, which is to the knowledge of the

Complainant the question of issuing a cheque after two months

of filing such petition appears to be improbable and the version

which is stated by the accused that the cheque was issued at

the inception when the dealership was taken from the

complainant Company, appears to be correct. Though, the

Statement of Account was filed, the same was not filed along

with the complaint and the Statement of Account which was

generated by the complainant cannot be believed in the absence

of any corroborating documents such as invoices, credit bills,

delivery challans etc.

8. Reasons given by the learned Magistrate while dismissing

the complaint under Section 138 of the Negotiable Instruments

Act are based on record and probable in the circumstances of

the present case.

9. The appellate Court while dealing with an appeal against

acquittal cannot interfere with the order of the acquittal unless

the findings are not correct, improbable and not based on

record.

10. This Court does not find any grounds to interfere with the

well reasoned Judgment of the learned Magistrate acquitting the

accused.

11. Accordingly, The Criminal Appeal fails and is dismissed.

Miscellaneous applications pending, if any, shall stand

closed.

__________________ K.SURENDER, J 27.10.2022 tk

THE HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL NO. 669 OF 2010

Dt. 27.10.2022

tk