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2004 DIGILAW 1401 (AP)

B. Narayana Reddy v. P. Vimla Devi

2004-11-19

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) 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 complainancorporation and after calculating the loan account, 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. 75,0007- 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 realisation. 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. 75,000/- on 30-8-1998 to clear off the debt. On 22-7-1998, the complainant deposited the cheque bearing No. 454419 for realisation. 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 th ree 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, d. W. 1 was examined and Exs. D-1 to D-5 were marked. ( 5 ) THE learned Magistrate commencing from para 9 up to 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 list of the witnesses or the list of documents, which had been marked by both the parties. ( 6 ) SRI C. Praveen Kumar, learned counsel representing appellant/complainant made the following submissions: the learned counsel commented that exs. D-2 to D-5 receipts are suspicious and the evidence of D. W. 1 and Exs. ( 6 ) SRI C. Praveen Kumar, learned counsel representing appellant/complainant made the following submissions: the learned counsel commented that exs. D-2 to D-5 receipts are suspicious and the evidence of D. W. 1 and Exs. D-2 to D-5 had not been appreciated properly. The learned counsel also submitted that when the signatures on the cheques are admitted, the finding recorded by the learned Magistrate that there is a possibility of issuance of blank cheques cannot be sustained and even otherwise the burden is on the accused to prove the same and the same was not discharged. The learned counsel also had drawn the attention of this Court to Rule 68 of the Criminal Rules of Practice and submitted that in the light of the vague findings recorded by the learned Magistrate, it is a fit matter to be remitted back to afford opportunity to both the parties to let in further evidence in relation to all the aspects. ( 7 ) THE learned Additional Public prosecutor submitted that if the learned magistrate had considered all the aspects, on the mere non-compliance of Rule 68 of the Criminal Rules of Practice, the judgment of a competent criminal Court need not be disturbed since at the best Rule 68 of the criminal Rules of Practice can be said to be only directory and not mandatory. Unless serious prejudice is caused to the accused, it cannot be said that on the mere non- compliance of Rule 68 of the Criminal Rules of Practice the matter may have to be remitted. But, however on facts if the Court is satisfied that it is a fit case to be remanded, then this court as appellate Court can exercise that power. ( 8 ) PER contra, Sri G. Prabhanjan Reddy, learned counsel representing the first respondent/accused submitted that except the evidence of P. W. 1, there is no other evidence available on record and P. W. 2, the managerofs. B. H. ,ramachandrapuram was examined. None of the account books relating to the loan transactions had been produced. Apart from this aspect of the matter, the evidence of D. W. 1 and also the receipts- exs. D-2 to D-5 are available on record. B. H. ,ramachandrapuram was examined. None of the account books relating to the loan transactions had been produced. Apart from this aspect of the matter, the evidence of D. W. 1 and also the receipts- exs. D-2 to D-5 are available on record. The learned counsel also pointed out that though the list of witnesses and the list of exhibits marked had not been shown by way of appendix in the judgment, the findings would clearly go to show that all the aspects had been clearly considered. The counsel also submitted that in the light of Sections 354 and 465 of the Code of Criminal Procedure, it cannot be said that the violation or contravention of Rule 68 of the Criminal rules of Practice would in any way vitiate the judgment. As such, at the best Rule 68 of the criminal Rules of Practice can be said to be directory and definitely not mandatory. Hence, the counsel would maintain that in the light of the facts and circumstances the findings are to be confirmed. The learned counsel also pointed out to the relevant dates in relation to ex. P-16 and submitted that the complaint is barred by limitation. But, in all fairness, the counsel would submit that no finding in this regard had been recorded by the learned magistrate. ( 9 ) HEARD the counsel on record and also perused the findings recorded by the learned magistrate. ( 10 ) SECTION 354 of the Code of Criminal procedure reads hereunder: section 354: Language and contents of judgment: (1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353- (a) Shall be written in the language of the Court; (b) Shall contain the point or points for determination, the decision thereon and the reasons for the decision; (c) Shall specify the offence (if any) of which, and the Section of the indian Penal Code (45 of 1860), or other law under which, the accused is convicted and the punishment to which he is sentenced; (d) If it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. (2) When the conviction is under the indian Penal Code (45 of 1860), and it is doubtful under which of two sections, or under which of two parts of the same sections of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. (4) When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the court or unless the case was tried summarily under the provisions of this Code. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (6) Every Order under Section 117 or sub-section (2) of Section 138 and every final order made under section 125, Section 145 or section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision. ( 11 ) LIKEWISE, Section 465 of the Code of criminal Procedure reads as under: section 465: Finding or sentence when reversible be reason of error, omission or irregularity:- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation, or revision on account of any error, omission or irregularity in the complaint, summons warrant, proclamation, order judgment or other proceedings before or during trial or in any inquiry orotherproceedingunderthiscode, or any error, or in any inquiry or other proceeding under this Code, or any. error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in proceeding. "rule 68 of the Criminal Rules of Practice dealing with the list of witnesses etc. , to be appended to judgment specifies that there shall be appended to every judgment a list of the witnesses examined by the prosecution and for the defence and by the Court and also a list of exhibits and material objects marked. ( 12 ) SUBMISSIONS at length were made relating to the aspects of legally enforceable debt, non-production of account books in this regard by the complainant-Corporation and also the suspicious circumstances of all the three cheques bearing serial Nos. 454419, 454420 and 454421. The evidence of D. W. 1 no doubt had been referred to at para 11. Exs. D-2 to D-5 also had been referred to at the said para. But, clear findings had not been recorded in relation to the version of the defence. It is no doubt true that in the light of the language employed in Sections 354 and 465 Cr. P. C. and also Rule 68 of the Criminal rules of Practice, it cannot be laid down that when all the aspects had been considered by a competent Criminal Court, the whole oral and documentary evidence had been discussed in detail and findings had been recorded in relation thereto, mere non- inclusion of the appendix specifying the list of witnesses, the list of documents and the other particulars specified under Rule 68 of the Criminal Rules of Practice by itself may not vitiate the judgment. But, however when rule 68 of the Criminal Rules of Practice contemplates the judgment to contain the appendix, the Criminal Courts are bound to follow Rule 68 of the Criminal Rules of practice. But, however when rule 68 of the Criminal Rules of Practice contemplates the judgment to contain the appendix, the Criminal Courts are bound to follow Rule 68 of the Criminal Rules of practice. It is one thing to say whether rule 68 of the Criminal Rules of Practice is mandatory or directory, but, however, when a Rule is specified in the Criminal Rules of practice, it is needless to say that the Criminal courts are bound to follow the said Rule. Apart from this aspect of the matter, in the light of the unsatisfactory findings recorded by the learned Magistrate while appreciating the evidence of both P. Ws. 1 and 2 and also d. W. 1 and the documents relied upon by the respective parties, apart from the opinion on the part of the learned Magistrate in including the appendix as per Rule 68 of Criminal rules of Practice, this Court is of the considered omission that the impugned judgment cannot be sustained and accordingly the same is hereby set aside and the matter is remitted to the learned Additional judicial Magistrate of First Class, sangareddy, to afford opportunity to both the parties to let in further evidence on all the aspects and to decide the matter afresh in accordance with law. ( 13 ) ACCORDINGLY the criminal appeal is allowed to the extent indicated above. ( 14 ) LET the office circulate copies of the judgment to all Criminal Courts in the State for guidance.