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2006 Supreme(AP) 873
Andhra Pradesh High Court
Judges : GOPALA KRISHNA TAMADA
G.NIRMALA - Appellant
Versus
SYED ZAHIR AHMED - Respondent
Decided On : 08/02/2006
CRIMINAL APPEAL 783 Of 2001
Headnote:
Negotiable instruments Act, 1881 – Section 138 – Dishonoured of cheque – Acquitted – Appellant is the complainant and first respondent is accused – For purpose of convenience, parties are hereinafter referred to as they were arrayed in trial Court – Case of prosecution, in brief, is that accused approached complainant in month of May, 1998 for a hand loan of rs. 1,20,000/- to meet his domestic needs – Complainant accordingly gave an amount of accused and at that time accused promised that he would repay said amount within a period of six months, but he failed to do so. Despite fact that complainant requested and demanded for repayment of loan amount, accused was postponing same on some pretext or other and ultimately issued Ex. P1, cheque bearing for said amount – Held, As stated supra, in a case of this nature, Court should have restricted itself without going into those aspects, as it is unnecessary for a criminal Court to go into details whether it is probable to say that such huge amount was lent by complainant to accused without knowing profession or education and his capacity to repay amount etc – Which are beyond the scope of criminal Court – Hence, this Court has no hesitation to come to conclusion that judgment impugned in this appeal is liable to be set aside – In light of said findings, this Court is of view that it is desirable that case be remitted to trial Court for fresh disposal in accordance with law giving opportunity to complainant to get herself examined in cross – Criminal appeal is allowed.
( 1 ) THIS criminal appeal is preferred by the complainant against the judgment dated 20-02-2001 passed in C. C. No. 702 of 1999 by the X metropolitan Magistrate, S,ecunderabad, wherein the first respondent-accused was acquitted of the offence under Section 138 of the Negotiable instruments Act, 1881 (for short, the Act ).
( 2 ) THE appellant is the complainant and the first respondent is the accused. For the purpose of convenience, the parties are hereinafter referred to as they were arrayed in the trial Court.
( 3 ) THE case of the prosecution, in brief, is that the accused approached the complainant in the month of May, 1998 for a hand loan of rs. 1,20,000/- to meet his domestic needs. The complainant accordingly gave an amount of Rs. 1,20,000/- to the accused and at that time the accused promised that he would repay the said amount within a period of six months, but he failed to do so. Despite the fact that the complainant requested and demanded for repayment of the loan amount, the accused was postponing the same on some pretext or the other and ultimately issued Ex. P1, cheque bearing No. 615589 dated 05-08-1999, for the said amount. After consultation and with the consent of the accused, the complainant presented the cheque with her banker at Secunderabad, but the said cheque was dishonoured with an endorsement insufficiency of funds. Thereafter, the complainant as provided under Section 138 of the Act issued Ex. P3, notice, but the same was returned with an endorsement that the accused refused to receive it. Thereupon, the complainant filed he complaint against the accused for the offence punishable under Section 138 of the Act.
( 4 ) ON behalf of the complainant, the complainant herself was examined as PW-1 and her son, who is a close friend of the accused, was examined as PW 2 and got marked Exs. P1 to P6. Per contra, the accused was examined as DW-1 and got marked Exs. D1 to D3.
( 5 ) ON an analysis of both oral and documentary evidence adduced on either side the Court below found the accused not guilty of the offence with which he was charged and accordingly dismissed the complaint filed by the complainant mainly on two grounds: Firstly as PW-1 was not put to cross-examination an adverse inference was drawn against the complainant. Secondly, though the complaint was filed by the complainant and she was examined in chief, she was not cross-examined at any point of time but her son, who was given General Power of Attorney, on her behalf, was examined as PW-2 and thus also an adverse inference was drawn against the complainant.
( 6 ) HEARD learned Counsel for the appellant, learned Additional Public prosecutor and perused the impugned judgment and other material on record.
( 7 ) AS the cheque bouncing cases are alarmingly increasing and in order to curtail the same, the Government of India thought it fit and necessary to int oduce certain amendments to the Negotiable Instruments act, 1881. To achieve that object Section 138 of the Act was inserted by banks Public Institutions and Negotiable Instruments Laws (Amendment)Act, 1988 (Act 66 of 1988) and the said Act has come into force with effect from 01-04-1989. Act 66 of 1988 was introduced with a view to encourage the culture of use of cheques and enhance the credibility of the instruments. The Legislature has sought to inculcate faith in the efficacy of banking operations and use of negotiable instruments in business transactions. Whenever a cheque is returned by a banker with an endorsement "insufficiency of funds" etc. , then the procedure for prosecution is prescribed under Section 138 of the Act, according to which a notice shall be issued informing the payer about the dishonour of the cheque, within 15 days (subsequently amended as 30 days) from the date of the knowledge of bounding of the said cheque. The purpose of the said notice is to enable the payer to make alternative arrangement and see that the cheque amount is paid. Despi
