Telangana High Court
M/S. Daga Global Chemical ... vs M/S. Pooja Priya Plasto Pack ... on 8 September, 2022
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
I.A.No.1 of 2018 in Crl.P.No.710 of 2007
Between:
M/s.Daga Global Chemicals Pvt. Ltd. ...Petitioner
And
M/s.Pooja Priya Plasto Pack Pvt. Ltd. .. Respondent
Criminal Petition No.710 of 2007
M/s.Daga Global Chemicals Pvt. Ltd. ...Petitioner
And
M/s.Pooja Priya Plasto Pack Pvt. Ltd.,
and another. .. Respondents
DATE OF JUDGMENT PRONOUNCED: 08.09.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see Yes/No
the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
_________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K.SURENDER
+I.A.No.1 of 2018 in Crl.P.No.710 of 2007
Between:
#M/s.Daga Global Chemicals Pvt. Ltd. ...Petitioner
And
$M/s.Pooja Priya Plasto Pack Pvt. Ltd. .. Respondent
Criminal Petition No.710 of 2007
#M/s.Daga Global Chemicals Pvt. Ltd. ...Petitioner
And
$M/s.Pooja Priya Plasto Pack Pvt. Ltd.,
and another. .. Respondents
% Dated 08.09.2022
! Counsel for the Petitioners: Sri T.Balamohan Reddy
^ Counsel for the Respondents: Public Prosecutor for R2
>HEAD NOTE:
? Cases referred
3
HON'BLE SRI JUSTICE K.SURENDER
I.A.No.1 of 2018
in
CRIMINAL APPEAL No.710 OF 2007
and
CRIMINAL APPEAL No.710 OF 2007
JUDGMENT:
1. The appellant/complainant is aggrieved by the order of
acquittal recorded by the XIV Additional Chief Metropolitan
Magistrate, Hyderabad in CC No.1709 of 2005 finding the
respondent/accused not guilty of the offence Section 138 of
the Negotiable Instruments Act.
2. The case of the appellant/complainant is that their
company supplies LLDPE material. The respondent has
defaulted in payment for the goods which were given on credit,
for which reason, the cheques Exs.P9 and P10 were issued
towards discharge of their liability to pay the outstanding
amount for the goods received on credit. The said cheques
when presented for clearance were returned unpaid for the
reason of 'exceeds arrangement'. A legal notice was issued
demanding payment. However, since payment was not made,
the complaint was lodged under Section 138 of N.I Act.
3. Appellant examined P.W.1 on behalf of the company
and marked Exs.P1 to P14. The 1st respondent examined
D.Ws.1 to 3 and marked Exs.D1 to D5 and X1 to X3
documents.
4. The learned Magistrate after concluding the examination
of the witnesses found the 1st respondent not guilty of the
offence on the following grounds; i) Exs.D1, D2, D4 and D5
and Exs.X1 and X3 are payments made for Rs.13,26,400/-; ii)
The 1st respondent by adducing oral and documentary
evidence by summoning the bank officials, who are D.Ws.1 to
3 has proved that out of the total amount of Rs.13,66,125/-,
an amount of Rs.13, 26, 400/- was already paid, iii) The 1st
respondent has established that there is no legally enforceable
debt to the tune of Rs.13,66,125/- under Exs.P9 and P10
dishonoured cheques.
5. Learned counsel for the appellant submits that the lower
Court has committed error in acquitting the 1st respondent
and failed to consider the documentary and oral evidence
placed on record. Appellant filed Criminal M.P.No.1 of 2018
under Section 482 and 391 of Cr.P.C to receive documents
and to lead additional evidence. The said documents are
invoices, which are 63 in number. The main grounds on
which the appellant seeks additional evidence is stated in the
affidavit which reads as follows:
"4. It is submitted that Exs.D1, D2, D4, D5 and Ex-X1, X3
were not the payments made to clear invoice bills marked in
Exp-3 to Exp-8 but were payments made to clear the previous
invoice bills for material supplied by the Appellant.
5. It is submitted while filing CC 1709/2005, the
Petitioner/Complainant has only filed Ex.P3 to Exp-8 invoices
as they are the relevant invoice against which Exp-9 and
Ex.P10 were issued. Taking advantage of this oversight on
behalf of the Petitoner/Appellant the respondent has cleverly
mislead the Hon'ble lower court to believe that he had paid
Rs.13,26,400/- vide Ex.D-1, D2, D4, D5 and Ex-X1 and Ex.X-
3 as against the debt of Rs.13,66,125 which was due.
6. It is submitted that the petitioner was surprised when the
accused misrepresented that the Honoured cheques which
were the payments towards the remaining 22 invoices as that
of the payment made towards Exp-3 to Exp-8 and therefore,
he could not file these documents to prove his case before the
Hon'ble lower court."
6. The said application was made on 24.12.2007, whereas
the appeal was filed on 02.06.2007 i.e, nearly ten years after
the appeal was filed, the present petition for additional
evidence was filed.
7. The main contention in the application is that the 1st
respondent has misled the Court stating that the exhibits
covered under Exs.D1, D2, D4 and D5 and Exs.X1 and X3 for
Rs.13,66,125/- were towards invoices which were filed by the
complainant during the course of trial. However the amount
paid was towards the invoices which are now sought to be
brought on record as additional evidence and not towards the
invoices placed on record during evidence.
8. It is not the case that no opportunity was given to the
appellant during the course of trial to adduce evidence.
Admittedly, the complainant had cross-examined the bank
witnesses D.Ws.1 to 3 and was also provided with the copies
of defence exhibits which clearly reflected payment to the
extent of Rs.13,26,400/-.
9. When all the documents were marked and evidence
adduced in the presence of the complainant, the complainant
at this stage cannot urge the court in appeal after ten years
that the court was misled and the documents which are now
filed have to be looked into for adjudication. It is the appellant
who is now trying to come up with a new case that they
received amount of Rs.13,26,400/- towards some other
invoices and not invoices which were marked during trial by
the appellant. The said approach of the complainant is not
appreciated and cannot be permitted. Accordingly,
Crl.M.P.No.1 of 2018 for additional evidence is dismissed.
10. As seen from the finding of the learned Magistrate, the
said findings are based upon oral and documentary evidence
of bank witnesses and documents that were marked during
the course of trial showing that there is no debt or outstanding
to be paid under the cheques in question EXP9 & 10. In the
said circumstances, this Court cannot come to a different view
unless the findings of the Magistrate are unreasonable or not
based upon records.
11. In the result, the Criminal Appeal is dismissed.
__________________
K.SURENDER, J
Date: 08.09.2022
Note: LR copies to be marked.
B/o.kvs
HON'BLE SRI JUSTICE K.SURENDER
I.A.No.1 of 2018
in
CRIMINAL APPEAL No.710 OF 2007
and
CRIMINAL APPEAL No.710 OF 2007
Date: 08.09.2022.
kvs
