Andhra HC (Pre-Telangana)
New Tech Pesticides Ltd., Rep. By Its ... vs Pavan Commercial Corporation, Prop. T. ... on 8 November, 2004
Equivalent citations: I(2007)BC375
JUDGMENT P.S. Narayana, J.
1. This Criminal Appeal is filed against the order of acquittal recorded in C.C. No. 438 of 1997 on the file of the Court of III Metropolitan Magistrate, Vijayawada.
2. The main contention raised by the learned counsel for the appellant is that the presumption under Section 139 of the Negotiable Instruments Act, 1881(hereinafter in short for "the Act" for the purpose of convenience) would come into play and the counsel would contend that in Para No. 5 of the notice, it was stated that the accused was due to the complainant to a tune of Rs. 56,919-35ps and in lieu of discharge of the amount due, a cheque for Rs. 50,000/- was issued and hence acquittal recorded by the learned Magistrate cannot be sustained.
3. The appellant-complainant filed C.C. No. 438 of 1997 stating that the accused purchased pesticides from it on credit basis by opening khata. To discharge the debt, the accused issued a cheque for Rs. 50,000/- on 25-11-1996 drawn on Chaitanya Grameena Bank, Koppanuru, Guntur District and the complainant presented the said cheque on 20-03-1997 and the same was returned with an endorsement "Insufficient funds" and hence, complainant got issued a notice to the accused on 31-03-96 through registered post and the same was returned by the accused with an endorsement that the said notice is not necessary. On 21-04-1997, the complainant received reply notice through the counsel of the accused. After receipt of notice, the accused failed to repay the amount covered under the cheque in question. Hence the complaint was filed.
4. On behalf of the complainant, PW.1 was examined and Exs. P-1 to P-8 were marked. On behalf of the accused-defence, Exs. D-1 to D-8 were marked. Findings in detail had been recorded. It is not in controversy that PW.1 in cross examination admitted that the accused himself had given 7 cheques including a cheque-Ex. P-3 to the complainant at Kothapalli in the month of September 1996 for value of about 3 lakhs and the accused need not pay Rs. 3,00,000/- as on the date of issuing cheque-Ex. P-3 by the accused to the complainant and the said fact was informed by the accused to the complainant through Ex. P-8-letter. Hence, the cheque in question was not issued on 25-11-1996 to discharge any legally enforceable liability. PW.1 also admitted in cross examination that the accused returned the stock worth of Rs. 7,863/- on 24-10-96, Rs. 28,858-45 on 10-11-1996, Rs. 91,752/- on 10-12-96 and Rs. 1,07,664/- on 10-12-96 and issued the stock return bills to the accused, which were marked as!
5. Exs.D-4 to D-8 respectively. PW.1 also admitted in cross examination that the amounts mentioned in Exs. D-4 to D-8 were not shown in Account copy-Ex. P-2 filed by PW.1. Hence, the accused is disputing the correctness of account copy. It is also not in controversy that the accused issued seven cheques including the cheque-Ex. P-3. PW.1 did not mention either in the complaint or in the sworn statement that the accused was indebted for Rs. 81,990/-. For the first time, PW.1 in chief examination deposed that the accused was due to him to a tune of Rs. 81,990/- whereas in Ex. P-5 notice issued by PW.1 to the accused, it was mentioned that the accused has to pay an amount of Rs. 56,919-30ps. The deposit amount of Rs. 20,000/- and amount mentioned in Ex. D-4 to D-8 were not shown in the account copy of Ex. P-2. Thus, PW.1 clearly admitted that Ex. P-3 cheque was issued by the accused in the month of September, 1996 and as per the evidence, it is clear that on the date of issuance of cheque, the same was not issued in discharge of the legally enforceable debt. The accused also issued the cheque in question-Ex. P-3 along with six other cheques in the month of September 1996 as advance for prompt payment of credit purchase, if any.
6. On appreciation of evidence of PW.1 and Exs. P-1 to P-8 and also Exs. D-1 to D-8, the learned Magistrate recorded a finding that the ingredients of legally enforceable debt or liability had not been established by the prosecution and hence, acquittal had been recorded. The findings recorded by the learned Magistrate definitely cannot be said to be based on improper appreciation of evidence. Further explanation to Section 138 of the Act clearly specifies that for the purpose of this section debt or other liability means a legally enforceable debt or other liability.
7. In the light of the above discussion, the findings recorded by the learned Magistrate cannot be doubted and they are based on appreciation of evidence. Hence, the said findings are hereby confirmed. The acquittal recorded by the learned Magistrate is well justified in the facts and circumstances referred to supra. No merits in the appeal and accordingly, the criminal appeal shall stand dismissed.