JUDGMENT :

1. The appellant/complainant is aggrieved by the order of acquittal recorded by the XIV Additional Chief Metropolitan Magistrate, Hyderabad in CC No.1709 of 2005 finding the respondent/accused not guilty of the offence Section 138 of the Negotiable Instruments Act.

2. The case of the appellant/complainant is that their company supplies LLDPE material. The respondent has defaulted in payment for the goods which were given on credit, for which reason, the cheques Exs.P9 and P10 were issued towards discharge of their liability to pay the outstanding amount for the goods received on credit. The said cheques when presented for clearance were returned unpaid for the reason of ‘exceeds arrangement’. A legal notice was issued demanding payment. However, since payment was not made, the complaint was lodged under Section 138 of N.I Act.

3. Appellant examined P.W.1 on behalf of the company and marked Exs.P1 to P14. The 1st respondent examined D.Ws.1 to 3 and marked Exs.D1 to D5 and X1 to X3 documents.

4. The learned Magistrate after concluding the examination of the witnesses found the 1st respondent not guilty of the offence on the following grounds; (i) Exs.D1, D2, D4 and D5 and Exs.X1 and X3 are payments made for Rs.13,26,400/-; (ii) The 1st respondent by adducing oral and documentary evidence by summoning the bank officials, who are D.Ws.1 to 3 has proved that out of the total amount of Rs.13,66,125/-, an amount of Rs.13,26,400/- was already paid, (iii) The 1st respondent has established that there is no legally enforceable debt to the tune of Rs.13,66,125/- under Exs.P9 and P10 dishonoured cheques.

5. Learned counsel for the appellant submits that the lower Court has committed error in acquitting the 1st respondent and failed to consider the documentary and oral evidence placed on record. Appellant filed Criminal M.P.No.1 of 2018 under Section 482 and 391 of Cr.P.C. to receive documents and to lead additional evidence. The said documents are invoices, which are 63 in number. The main grounds on which the appellant seeks additional evidence is stated in the affidavit which reads as follows :

“4. It is submitted that Exs.D1, D2, D4, D5 and Ex-X1, X3 were not the payments made to clear invoice bills marked in Exp-3 to Exp-8 but were payments made to clear the previous invoice bills for material supplied by the Appellant.

5. It is submitted while filing CC 1709/2005, the Petitioner/Complainant has only filed Ex.P3 to Exp-8 invoices as they are the relevant invoice against which Exp-9 and Ex.P10 were issued. Taking advantage of this oversight on behalf of the Petitioner/Appellant the respondent has cleverly mislead the Hon’ble lower court to believe that he had paid Rs.13,26,400/- vide Ex.D-1, D2, D4, D5 and Ex-X1 and Ex.X-3 as against the debt of Rs.13,66,125 which was due.

6. It is submitted that the petitioner was surprised when the accused misrepresented that the Honoured cheques which were the payments towards the remaining 22 invoices as that of the payment made towards Exp-3 to Exp-8 and therefore, he could not file these documents to prove his case before the Hon’ble lower court.”

6. The said application was made on 24.12.2007, whereas the appeal was filed on 02.06.2007 i.e., nearly ten years after the appeal was filed, the present petition for additional evidence was filed.

7. The main contention in the application is that the 1st respondent has misled the Court stating that the exhibits covered under Exs.D1, D2, D4 and D5 and Exs.X1 and X3 for Rs.13,66,125/- were towards invoices which were filed by the complainant during the course of trial. However the amount paid was towards the invoices which are now sought to be brought on record as additional evidence and not towards the invoices placed on record during evidence.

8. It is not the case that no opportunity was given to the appellant during the course of trial to adduce evidence. Admittedly, the complainant had cross-examined the bank witnesses D.Ws.1 to 3 and was also provi