IMPORTANT POINT
Complainant given further opportunity to prove that accused issued cheque towards legally enforceable debt.

P.S. Narayana, J.—M/s Sufala Finance Private Limited, filed the complaint C.C. No. 679 of 1999 on the file of IX Metropolitan Magistrate Hyderabad, under Section 138 of Negotiable Instruments Act (hereinafter in short referred to as ‘Act’ for the purpose of convenience).

2. The case of the appellant/complainant is that the complainant is a company registered under the Companies Act, 1956 carrying on business relating to Hire purchase, financing, instalment purchase of various items represented by its Accountant K. Krishna Reddy, who is authorised by the complainant.

It is also the case of the appellant/complainant that the accused had approached the complainant along with the guarantor for financial assistance to purchase a Bajaj Chetak Scooter which was accordingly financed to a tune of Rs. 20,000 on 17.12.1995 to the accused after executing the necessary documents. The accused agreed to repay the amount in fifteen monthly equal instalments, but failed to do so. After so many requests and reminders to clear the above said liability, the accused issued a cheque bearing No. 189596 dated 20.10.1996 for an amount of Rs. 11,176 drawn on State Bank of Hyderabad, Mahaboob Gunj Branch, Hyderabad, and the complainant presented the above said cheque with its bankers M/s Central Bank of India, Gudimalkapur Branch, Hyderabad on 22.10.1996. The same cheque was returned dishonoured with an endorsement ‘insufficient funds’ vide memo dated 23.10.1996. The complainant got issued a legal notice dated 4.11.1996 by registered post with acknowledgement due as well as under certificate of posting. The accused received the same on 6.11.1996. The acknowledgement was received by the complainant on 9.11.1996. In spite of servicing the notices, the accused neither gave any reply nor paid the amount as demanded.

The complainant submits that the accused has issued the above said cheque undertaking that the same will be honoured as and when presented for realization, contrary, the accused deliberately with a mala fide intention, to cause wrongful loss to the complainant and wrongful gain for himself did not maintain sufficient balance in his account rendering himself to punishment under Section 138 of the Negotiable Instruments Act. Hence, the complaint.

3. The complaint was taken on file as C.C. No. 679 of 1996. On behalf of the complainant P.W. 1 was examined and Exs. P.1 to P. 13 were marked. The defence of the accused is that there is no legally enforceable debt.

4. The contention of the complainant is that the accused borrowed a sum of Rs. 20,000 on 17.12.1995 for purchase of Bajaj Chetak Scooter bearing No. APO 9K 2517 under Ex. P. 6 and agreed to repay the same in fifteen equal instalments and paid only four instalments and thereafter, committed default and on 20.10.1996 the accused had issued Ex. P 8 for Rs. 11,176 to the complainant towards six instalments payable with penal interest. Exs. P 1 to P7 are the documents for proving the transaction. A finding was recorded by the learned Judge that the ledger was not filed and the appellant/complainant also had not filed the registration certificate of the scooter to show that it was purchased under hire purchase agreement. It is no doubt true that the evidence of P.W. 1 alone was recorded and Exs. P. 1 to P 13 were marked. Except the finding that the complainant was unable to establish the legally enforceable debt, all other formalities to be complied with under the Act had been satisfied. In view of the facts and circumstances, this Court is of the opinion that the appellant/complainant has to be given a further opportunity to produce further evidence in this regard.

5. Hence, the Order of acquittal dated 12.4.1999 made in C.C. No. 679 of 1996 is hereby set aside and the matter is remanded to the IX Metropolitan Magistrate, Hyderabad. The learned IX Metropolitan Magistrate, Hyderabad, may provide further opportunity to both the parties to let in further evidence, if any, on the aspect of legally