Telangana High Court
M/S. Nikhita Trade Links, Hyderabad. vs M/S.Kelvin Fans,Appliances,Kelvin ... on 2 February, 2024
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No.67 OF 2010
JUDGMENT:
1 This criminal appeal, under Section 378 (4) Cr.P.C. is filed by the de facto complainant, challenging the legality and validity of the judgment passed in C.C.No.264 of 2008 on the file of the Court of the XIV Additional Judge-cum-XVIII Additional Chief Metropolitan Magistrate, Hyderabad, wherein and whereby the first respondent herein was acquitted of the offence punishable under Section 138 of N.I.Act, 1881. 2 Heard Sri Sharad Sanghi learned counsel for the appellant and Sri Vizarath Ali, the learned Assistant Public Prosecutor appearing for the State. No representation for the first respondent. 3 The facts that lead to the filing of the present criminal appeal, in brief, are that the complainant / appellant is engaged in wholesale and retail and manufacture of various varieties of fans. The first respondent was one of the customers of the appellant and he purchased the goods from the appellant and in discharge thereof the first respondent issued various cheques worth Rs.1,00,000/- each drawn on Dhanalakshmi Bank Limited, Round South Branch, Thrissur. On presentation of the same, the cheques were dishonoured due to insufficient funds. Thereupon, the 2 appellant got issued a legal notice dated 28.7.2005 to the first respondent and that the first respondent having received the same, kept quiet without adhering to the demand of the appellant. Hence and having no other go, the appellant lodged the complaint before the trial Court under Section 200 Cr.P.C. against the first for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, which was taken cognizance of the said offence by the trial Court and was numbered as C.C.No.264 of 2008. 4 During the course of trial, the appellant got her husband examined as P.W.1 and also examined her manager as P.W.2 and got marked Exs.P.1 to P.32. On behalf of the first respondent No oral evidence was adduced, but Ex.D.1 invoice was marked. The trial Court, after appreciating the entire evidence available before it, found the first respondent not guilty of the offence punishable under Section 138 of N.I.Act and accordingly acquitted him of the said offence. Hence the present criminal appeal by the complainant.
5 The learned counsel for the appellant contended that the finding of the trial court stating that the authority of P.W.1 to depose in place of the proprietor is not correct and the trial court has not appreciated the evidence of the power of attorney holder. Further, the trial court has also not taken into consideration Section 120 of the Evidence Act which gives 3 power to either of the spouses to depose on behalf of each other. The trial court has not appreciated that P.W.1 is the person taking care of all the transactions and business of the proprietor and actually dealt with the transactions and therefore the finding on the authority of P.W.1 to depose and drawing adverse inference is not correct. He further contended that the finding that Smt. Kalpana Jain is not the proprietor of the complainant company is not correct inasmuch as the question was not at all in issue at any point of time. The entire discussion and finding on the legality of P.W.1 and also the complainant is only out of the assumptions and presumptions of the trial court and is not supported by any evidence. It is his further contention that the trial court has not appreciated Ex.P-2 which is scribed by the accused himself and has simply brushed aside Ex.P-2 as concocted document. When the Accused has not turned into the witness box to deny Ex.P-2, an adverse inference would have been drawn against the accused on the other hand. The trial court has also not considered that there is no explanation offered, much less any plausible explanation for issuance of the cheques to the appellant inasmuch as the issuance of the cheques is not in question at all. The trial court has also not appreciated that the accused has not produced any cogent evidence and the accounts books to substantiate the facts that he is not due any amounts to the complainant and the cheques have been issued only towards security. The 4 trial court has also not taken into consideration Ex.P-32 which is reply notice given by the accused wherein he has admitted the issuance of the cheques and also the receipt of the goods. The ground on which the trial court has dismissed the complaint is totally contrary to the stand taken by the accused in the reply notice Ex.P-32. The testimony of P.Ws.1 and 2 which has been extracted by the trial court is not taken in right prospective and the entire testimony has to be read and not only the stray sentences which otherwise caused the dismissal of the complaint. It is his vehement contention that the rebuttal evidence under Sec. 139 of N.I.Act has not been produced by the accused and hence the trial court should have drawn an adverse inference. In support of his contentions, the learned counsel relied on the following judgments: 1) A.C.Narayanan vs. State of Maharashtra 1, Triyambak S.Hegde vs. Sripad 2, Kishan Rao vs. Shankar Gouda 3, Rangappa vs. Sri Mohan 4, Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot vs. O.P. Poddar 5, Kalamani Tex vs. P.Balasubramanian 6, Sumeti Vij vs. Paramount Tech Fab Industries 7, Rohitbhai Jivanlal Patel vs. State of Gujarat 8, Uttam 1 AIR 2014 SC 630 2 (2022) 1 SCC 742 3 (2018) 8 SCC 165 4 (2010) 11 SCC 441 5 (1983) 4 SCC 701 6 (2021) 5 SCC 283 7 2021 (2) ALD (Crl.) 14 (SC) 8 2019 (2) ALD (Crl.) 385 (SC) 5 Ram vs. Devinder Singh Hudan 9 and APS Forex Services Pvt. Ltd., vs. Shakti International Fashion Linkers 10.
6 Now the point for consideration in this appeal is whether there are any merits and grounds to interfere with the judgment of the trial Court and whether the appeal deserves to be allowed.
POINT:
7 As seen from the record, the complaint does not disclose that Kalpana Jain is the proprietor of the complainant company. P.W.1 who is the husband of the said Kalpana Jain also deposed in his cross examination that there was no mention in the GPA said to have been executed in his favour that said Kalpana Jain is the proprietor of the complainant company. Moreover it is the categorical admission of P.W.1 that there was no specific mention in the GPA that he is the manager of the complainant company and that he was not given any authorisation in the said GPA to give evidence. Further, there was also no whisper about Ex.P.2 agreement in the GPA. It is also to be seen that Ex.P.2 does not stand for legal scrutiny because it was not a registered document. Simply because the first respondent admitted his signature in Exs.P.3 to P.13, it is not a conclusive proof to draw an inference that Ex.P.3 to P.13 cheques 9 (2019) 10 SCC 287 10 2020 (1) ALD (Crl.) 551 (SC) 6 have been issued by the first respondent towards in discharge of either part or whole of legally enforceable debt or other liability unless and until cogent and acceptable evidence has been produced by the petitioner to establish that there was a transaction between the petitioner and the first respondent much less the goods said to have been supplied to the first respondent. It is also to be seen from the cross-examination of P.W.2 that they used to maintain statement of account for day to day transaction of the petitioner company. But as seen from the record, he has not filed in the court any such statement of account pertaining to the transactions. Therefore, the evidence of P.Ws.1 and 2 is sufficient to rebut the presumption in favour of the first respondent. The petitioner failed to establish that there was a legally enforceable debt from the first respondent to the petitioner. In that view of the matter the judgments relied upon by the learned counsel for the petitioner do not have applicability to the facts and circumstances of the case on hand. 8 The trial Court has meticulously discussed all the above aspects in verbatim and had come to a just and reasonable conclusion, which, in my considered view does not call for any interference of this Court at this stage and hence the appeal is liable to be dismissed. 7 9 In the result, the appeal is dismissed. Miscellaneous petitions if any pending in this criminal appeal shall also stand dismissed.
------------------------------
E.V.VENUGOPAL, J.
Date:02.02.2024 Kvsn