Andhra HC (Pre-Telangana)
Padmja Marketing Enterprises vs V.S.R. Murthy And Ors. on 4 March, 1997
Equivalent citations: 1997(1)ALD(CRI)814, 1998CRILJ881
JUDGMENT
1. The complainant in C.C. No. 240/91 on the file of the XII Metropolitan Magistrate, Hyderabad, is the appellant herein and he filed this appeal against the order of acquittal recorded by the Magistrate against the accused in the above case under S. 138 the Negotiable Instruments Act r./w. S. 200, Cr.P.C.
2. The learned counsel for the appellant contended that the Magistrate mis-directed himself in appreciating the evidence that was let in and on mere surmises and conjunctures, the Magistrate acquitted the accused on the charge levelled against him. The case of the complainant is that he is the manufacturer of ITE Televisions and the accused was acting as a dealer of the company for the sale of the T.Vs. and the transactions are evidenced by a katha. As on 31-3-1991, the accused owes an amount of Rs. 44,117/- and on 6-4-1991 and he issued a cheque drawn on Indian Bank, Palakoi Branch for Rs. 10,000/- drawn in favour of the complainant towards part payment of the amount due by him. Thereafter it is not in dispute that the appellant paid another sum of Rs. 5,500/- to the representative of the complainant on 16-4-1991 by way of a demand draft and it is not the case of the appellant that the amount was not credited to his account. After some time the complainant seemed to have presented the cheque for encashment and the same was returned on 14-8-1991 with an endorsement "insufficiency of funds". Thereafter, the complainant got issued a legal notice on 27-8-1991 and the same was received by the accused on 30-8-1991. But the accused did not give any reply denying his liability. In those circumstances a complaint was lodged in accordance with the provisions of Section 138 and See. 142 of the Negotiable Instruments Act. After receipt of the summons, the accused entered appearance and pleaded discharge of the debt by contending that after issuance of the cheque he paid Rs. 5,500/- on 16-4-1991 by way of demand draft and another sum of Rs. 5,000/- was paid on 21-9-1991 in cash to the representative of the complainant who was examined as DW-1. Admittedly the second payment is after filing of the complaint. On the basis of the payment of these two amounts, the accused pleaded discharge of the debt. On behalf of the complainant, the accountant of the company, who also holds the Power of Attorney was examined as PW-1 and Exs. P-1 to P-10 were marked. To prove the case of the accused, an employee of the complainant company was examined as DW-1.
3. From the evidence there is no dispute about the receipt of the two amounts pleaded by the accused. But the fact being that the case of the complainant was that the accused owes an amount of Rs. 44,117/- as on 31-3-1991 which is a legally enforceable and even assuming that these two amounts were paid by the accused it cannot be said that he paid the entire amount and discharged his liability. In fact to show that the accused owes the above amount, the complainant got the accounts statement marked as Ex. P. 2 I have gone through the judgment of the Court below. The Magistrate without adverting to Ex. P-2, on an erroneous reading of the evidence acquitted the accused forgetting the fact that even after the adjustment of these two amounts, still the accused is liable to pay nearly an amount of Rs. 34,000/-. Hence as long as there is legally enforceable liability either on the date of issuance of the cheque or on the date of encashment of the cheque, the complainant is entitled to encash the cheque issued by the accused. The accused except marking Ex. D-1, a provisional receipt, issued by the representative who was examined as DW-1 to prove that an amount of Rs. 5,000/- was paid in cash, he did not choose to dispute his liability. Further the amount of Rs. 5,000/- was paid after the complaint was filed. The conduct of the accused can also be seen from another angle. Having received the legal notice on 30-8-1991, he has chosen to remain silent without accepting or denying the version of the complainant. For all these reasons, I am of the opinion that the Magistrate erred in acquitting the accused and the same cannot be sustained in law.
4. Accordingly, the order of acquittal recorded by the Magistrate is set aside and the matter is remanded for fresh trial. As the offence was said to have taken place in the year 1991, the Magistrate is directed to dispose of the case within three months from the date of receipt of the order.
5. The appeal is accordingly allowed.
6. The office is directed to send back the records to the Lower Court along with the order within two weeks.
7. Appeal allowed.