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2005(2) Bankmann 140
ANDHRA PRADESH HIGH COURT
P.S. Narayana, J.
B. Narayana Reddy — Appellant
versus
P. Vimla Devi and another — Respondents
Criminal Appeal No. 1420 of 1999
Decided on 19-11-2004
Counsel for the Parties:
For the Appellant:Mr. C. Praveen Kumar, Advocate.
For the Respondent No. 1:Mr. Prabhanjan Reddy, Advocate.
For the Respondent No. 2: Additional Public Prosecutor.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 354, 465—Criminal Rules of Practice—Rule 68—Nature of Rule 68—Judgment to contain Appendix—When Rule 68 contemplates the judgment to contain appendix, criminal court, bound to follow the Rule—However, when the criminal court discusses the whole oral and documentary evidence and records a finding thereto, mere non-inclusion of appendix specifying the list of witnesses and documents, may not vitiate the judgment.
Facts of the Case:
A)Present appeal is preferred by the complainant against the order of acquittal, arguments were advanced relating to the aspects of legally enforceable debt, non-production of account books by complainant/corporation and also the suspicious circumstances of all the 3 cheques bearing serial Nos. 454419, 454420, 454421. The lower court has not recorded clear findings in relation to the version of the defence.
B)In the light of the unsatisfactory findings recorded by the Magistrate, while appreciating both PWs. 1 and 2 and also DW1 and documents, the appellate court is of the opinion that the impugned judgment cannot be sustained and according the same is nearly set-aside and matter remitted back to the Magistrate.
P.S. Narayana, J.—This Criminal Appeal is filed by the appellant/complainant/Om Finance Corporation as against an Order of acquittal dated 11-6-1999 recorded in C.C. No. 600 of 1998 on the file of the Additional Judicial Magistrate of First Class, Sangareddy.
2. The appellant/complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience).
3. It is the case of the complainant that it is registered firm and on 31-8-1995, the first respondent along with her husband approached the complainant—Corporation and requested for an advance of Rs. 2,00,000/- for the purpose of family and legal necessities and the husband of the accused expressed his willingness to stand a guarantor. The accused, after satisfying with the terms and conditions of the Corporation, submitted two loan applications, each for Rs. 1,00,000/- and also agreed to pay an interest at the rate of 2% p.a., payable on or before the 14th of every month. The accused received an amount of Rs. 2,00,000/- by way of cash from the complainant—Corporation on the same day i.e. 31-8-1995. On repeated demands, the accused came to the complainant—Corporation and after calculating the loan amount, a sum of Rs. 3,00,000/- is arrived at and the accused requested the Corporation to receive the said amount on instalment basis. On 31-1-1998, the accused issued a cheque bearing No. 454419 for a sum of Rs. 75,000/- in favour of the complainant—Corporation and requested to deposit the said cheque in the month of July, 1998. Again on 28-2-1998, the accused issued another cheque bearing No. 454420 for a sum of Rs. 75,000/- and requested to deposit the same in the month of July, 1998. And again on 31.3.1998, the accused issued another cheque bearing No. 454421 for a sum of Rs. 75,000/- and requested to deposit all the three cheques in the month of July, 1998. The accused also promised to pay another sum of Rs. 75,000/- on 30-8-1998 to clear off the debt. On 22-7-1998, the complainant deposited the cheque bearing No. 454419 for realization. But, all the three cheques were dishonoured for want of funds. When questioned about the bouncing of cheques, the accused requested time up to August, 1998. As such the said cheques were again deposited on 12-8-1998. On 17-8-1998, all the three cheques were dishonoured due to insufficient funds. On 21-8-1998, the complainant issued a notice to the accused demanding payment within 15 days. The accused having received the same, sent a reply stating that an amount of Rs. 2,40,000/- has already been paid. On seeing the said reply notice, the complainant issued a telegraphic notice to the accused and her advocate asking them to send the copies of payment receipts within three days, but they failed to produce the same. The accused knowingly and intentionally issued three cheques in favour of the complainant—Corporation to clear off the legally enforceable debt even though there are no sufficient funds in her account and thereby committed an offence under Section 138 of the Act. Hence, the complaint.
4. To prove the case of the prosecution, P.Ws. 1 and 2 were examined and Exs. P-1 to P-18 were marked. On behalf of defence, DW 1 was examined and Exs. D-1 to D-5 were marked.
5. The learned Magistrate commencing from para 19 upto para 16 had discussed the evidence available on record and came to the conclusion that there are certain suspicious circumstances and also had taken note of the fact that the three cheques bear serial Nos. 454419, 454420 and 454421 and the possibility of issuance of such serial cheques is very remote and hence, the issuance of blank cheques at the time of taking loan is quite possible. After recording reasons, ultimately the learned Magistrate came to the conclusion that the ingredients of “legally” enforceable debt” had not been proved and recorded acquittal. As can be seen from the Judgment, there is no appendix specifying either the l
