Telangana High Court
Hindustan Petroleum Corp. Ltd., vs The State Of Ap Rep By Its Pp Hyd., And 2 ... on 2 July, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.309 OF 2011
ORDER:
1. This Criminal Appeal is filed by the Complainant-
Hindustan Petroleum Corporation Limited, aggrieved by the
order of acquittal recorded by the X Additional Chief
Metropolitan Magistrate at Secunderabad, in C.C.No.1346 of
2002, dated 12.12.2008, for the offence under Section 138 of the
Negotiable Instruments Act.
2. Heard learned counsel for the complainant and learned
Assistant Public Prosecutor for the respondent-State.
3. Briefly, the case of the complainant-Hindustan Petroleum
Corporation Limited (A Government of India Enterprise) is that
the complainant company supplied furnace oil in bulk to the
tune of Rs.72.00 lakhs since February, 2000. The accused failed
to keep up the commitment of payment for which reason, Bank
Guarantee was revoked and the cheque in question for
Rs.41,69,137/- was presented for clearance. The said cheque
was returned by the Bank on the ground of 'exceeds
arrangements' and also 'payment stopped by drawer'. Aggrieved
by the said return of the cheque, the complainant company
issued notice to the accused. However, the accused failed to
make good payment covered by the cheque, for which reason,
complaint was filed.
4. The complainant company examined its Chief Regional
Manager-PW1, Senior Regional Manager-PW2 to speak about the
outstanding and the cheque issued by the accused. Accused
No.1 who was the Managing Director of Accused No.2 company
entered into box and examined himself as DW1. On behalf of the
complainant Exs.P1 to P17 which are the statement of accounts
(Exs.P1 to P3) and other documents were marked. On behalf of
the defence, Exs.D1 to D6 were marked.
5. On consideration of evidence, the Court below found that
Exs.P1 to P3-documents which are statement of account do not
give the exact details of the outstanding as on the date of issuing
cheque. If it is the case of the company that as on the date of
issuance of cheque, the amount on the cheque should be
reflected in the accounts, however, it is not the case. Further,
though the supply of furnace oil in bulk was admitted, however,
complainant company failed to prove the outstanding to the tune
of Rs.41,69,137/- as on the date of cheque which is 4.10.2002.
6. The learned Magistrate further found that on perusal of
the documents, A1 was not the Managing Director of A2
company on the date of issuance of the cheque. The accused
was able to prove that the cheque in question was issued long
prior to the date of the cheque, and the cheque was
subsequently filled up and sent for clearance by the
complainant. On account of there being no clarity regarding the
outstanding, the accused company had issued stop payment
instructions. Once the Managing Director had resigned and was
not functioning as on the date of sending notice, the question of
service of notice does not arise.
7. Finally, the learned Magistrate found that the complaint
was premature and accordingly on the basis of premature filing
of the complaint and the other grounds stated above, the learned
Magistrate recorded acquittal of the accused.
8. The learned Counsel appearing for the complainant
company would submit that in view of the Judgment of the
Honourable Supreme Court in Gajanand Burange v. Laxmi
Chand Goyal 1 the finding of the learned Magistrate regarding
the complaint being premature cannot be sustained. In view of
2022 SCC OnLine SC 1711
the same, the appeal has to be allowed and accused has to be
convicted for the offence under Section 138 of the Negotiable
Instruments Act. Apart from the said ground, no other grounds
were raised by the learned counsel.
9. On questioning by this Court, regarding various aspects
which were discussed by the learned Magistrate regarding there
being no proof of outstanding and other issues, the learned
counsel submitted that, premature complaint is the only ground
on which the appellant is seeking reversal or remand to the
Court below.
10. As already stated above, apart from the issue of premature
complaint, the trial Court found that the complainant was not in
a position to establish before the Court below regarding the
outstanding. Further, A1 was not the Managing Director of A2
company as on the date of cheque and it was taken long prior as
security. Since, none of these aspects are disputed by the
appellant, the only ground of 'premature complaint' cannot form
basis to allow the appeal.
11. Further, the Honourable Supreme Court in Ravi Sharma
v. State (Government of NCT of Delhi) and another 2, held that
while dealing with an appeal against acquittal, the appellate
court has to consider whether the trial Court's view can be
termed as a possible one, particularly when evidence on record
has been analysed. The reason is that an order of acquittal adds
up to the presumption of innocence in favour of the accused.
Thus, the appellate court has to be relatively slow in reversing
the order of the trial court rendering acquittal.
12. In Ghurey Lal v. State of Uttar Pradesh 3 the Hon'ble
Supreme Court after referring to several Judgments regarding
the settled principles of law and the powers of appellate Court in
reversing the order of acquittal, held at para 70, as follows:
"70. In the light of the above, the High Court and other
appellate Courts should follow the well-settled principles
crystallized by number of Judgments if it is going to overrule
or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb
the trial court's acquittal if it has "very substantial and compelling
reasons" for doing so.
A number of instances arise in which the appellate court
would have "very substantial and compelling reasons" to discard
the trial court's decision. "Very substantial and compelling reasons"
exist when:
i) The trial court's conclusion with regard to the facts is
palpably wrong:
ii) The trial court's decision was based on an erroneous view
of law;
(2022) 8 Supreme Court Cases 536
(2008) 10 Supreme Court Cases 450
iii) The trial court's judgment is likely to result in "grave
miscarriage of justice";
iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and
unreasonable;
vi) The trial court has ignored the evidence or misread the
material evidence or has ignored material documents like dying
declarations/report of the ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and
consideration o the findings of the trial court.
3. If two reasonable views can be reached__ one that leads to
acquittal, the other to conviction __the High Courts/appellate courts
must rule in favour of the accused."
13. In view of the above, the appeal fails and dismissed.
As a sequel, miscellaneous applications, if any, pending
shall stand closed.
___________________
K.SURENDER, J
Date: 02.07.2024
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