THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL CRIMINAL APPEAL No.409 OF 2018

JUDGMENT:

This Criminal Appeal is filed seeking to set aside the judgment dated 24.01.2017 in C.C.No.142 of 2007 on the file of the learned Judicial First Class Magistrate, at Naryanpet (for short, “the trial Court”) for the offence under Section 138 r/w 142 of Negotiable Instruments Act (for short, “the Act”).

2. Heard Mr.L.Harish, learned counsel for the appellant and Mr.E.Ganesh, learned Assistant Public Prosecutor appearing for respondent No.2-State.

3. The brief facts of the complaint are that appellant/complainant and respondent No.2/accused were residents of Narayanpet Town and well acquainted with each other; that the accused approached the complainant requesting hand loan of Rs.6,11,000/- to meet his financial debts incurred in his business at Mumbai and agreed to repay the same with interest at the rate of 24% per annum by disposing of a commercial shop situated at Goduggeri, Narayanpet town to one Prabhakar on or before 20.05.2006 or on the order of complainant when demanded; that as per his request, complainant advanced the said amount on 20.01.2006 to the accused on execution of pro-note in favour of complainant; but even after the expiry of the stipulated period, the accused did not turn-up to refund the money and failed to repay the loan amount inspite of repeated demands; that on 21.06.2006, with the mediation of some well-wishers of the complainant, accused agreed to pay the original loan amount and issued two (2) cheques bearing No.515503 for an amount of Rs.4,00,000/- and No.515506 for an amount of Rs.2,11,000/- drawn on Andhra Bank, Narayanpet Branch dated 21.06.2006, by taking back the pro-note executed on 20.01.2016; that on 18.12.2006 the complainant deposited the said cheques with the Andhra Bank, Narayanapet for collection; But on the same day the cheques were returned as funds “insufficient”. Basing on the said facts, the present complaint is registered against the accused for the offence under Section 138 r/w 142 of the Act.

4. The trial Court vide impugned judgment acquitted the appellant/accused for the alleged offence. Aggrieved by the same, the appellant preferred the present Appeal.

5. Learned counsel for the appellant submits that the trial Court failed to see that respondent No.2 made a false statement that he gave the cheques to the father of appellant in a mortgage transaction in the year 2003, but PW2 clearly deposed that he opened the account on 16.12.2005; that respondent No.2 failed to make attempts to get back the cheques allegedly given to the father of the appellant, as security, by initiating criminal action or issuing notice. Thus, that the trial Court, without considering the evidence on record in proper perspective erroneously passed the impugned judgment. Hence, relying on the decision passed by the Hon’ble Supreme Court in M/s.Celestium Financial Vs. A. Gnanasekaran etc.1, he seeks to allow the Criminal Appeal.

6. Learned Assistant Public Prosecutor contends that the trial Court, upon careful scrutiny of the material available on record, rightly passed the impugned judgment and interference of this Court, at this stage, is not warranted. Therefore, he seeks to dismiss the Appeal.

7. On behalf of the complainant, PWs.1 and 2 were examined and Exs.P1 to P7 were marked. On behalf of the defence, RW1 was examined and Exs.R1 to R16 were marked. On careful consideration of the material available on record, the trial Court, relying on the decision passed by the erstwhile High Court of Andhra Pradesh in N.Narsinga Rao and Srinivasa Chary and another2, observed that no documentary proof is filed by the complainant showing that Ex P5/legal notice was served on the accused and the appellant/complainant failed to comply with the provision under Section 138(b) of the Act. Relying on the decision passed by the High Court of Karnataka in Gangadhar Vs. Sri Raghunathasa, 2008 (2) ALT (Crl) 160 (KAR), wherein it is held that no c