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2004 DIGILAW 432 (AP)

P. Narasimha Reddy v. D. L. Narasimha Rao

2004-04-05

C.V.RAMULU

body2004
C. V. RAMULU, J. ( 1 ) THIS criminal appeal is directed against the judgment dated 10. 3. 1998 in C. C. No. 833 of 1996 on the file of the VI Metropolitan Magistrate, hyderabad, wherein, the accused-respondent was found not guilty of the offence under section 138 of the Negotiable Instruments act (for short the Act ) and accordingly was acquitted under Section 255 (1) Cr. P. C. ( 2 ) THE facts of the complaint in a nutshell are that the accused borrowed a sum of Rs. 96,750/- from the complainant on 5. 3. 1996 assuring to repay the same within one month. In order to discharge the said amount, the accused gave a cheque for rs. 96,750/- vide cheque No. 474846 dated 23. 4. 1996 drawn on Tamilnadu Mercantile bank Limited, Hyderabad. Subsequently, the complainant, on the request of the accused, presented the cheque in Indian Bank, narayanaguda on 23. 8. 1996 for collection, but it was returned with an endorsement "insufficient funds". Subsequently, the complainant got issued a telegraphic notice on 6. 9. 1996 to the accused demanding the amount due. Since the accused neither paid the amount nor gave reply to the telegraphic notice, the complaint under section 138 of the Act was filed. ( 3 ) THE complainant, in support of his case, examined P. Ws. 1 to 3 and marked exs. P1 to P7. On behalf of accused, D. W. 1 was examined and Exs. D1 and D2 were marked. ( 4 ) ON appreciation of the evidence on record, both oral and documentary, the court below came to the conclusion that the complainant has not satisfied both the requirements, firstly, that the notice as required under Section 138 (b) of the Act was not served on the accused, secondly that the complainant could not prove the existence of a legally enforceable debt or other liability as required and accordingly, acquitted the accused for the offence under section 138 of the Act. ( 5 ) LEARNED Counsel for the appellant submits that the Court below erred in holding that notice was not served on the accused-respondent as required under section 138 (b) of the Act. Inasmuch as the telegraphic notice, Ex. P6 was received by the accused under Ex. ( 5 ) LEARNED Counsel for the appellant submits that the Court below erred in holding that notice was not served on the accused-respondent as required under section 138 (b) of the Act. Inasmuch as the telegraphic notice, Ex. P6 was received by the accused under Ex. D1, which was marked through the accused himself, the question of non-service of notice as required under Section 138 (b) of the Act does not arise. Simply because the notice was sent through Telegraphic Department and a certified copy of the telegraphic notice was not produced, it cannot be said that the notice as required under Section 138 (b) of the Act was not served. ( 6 ) I have gone through the entire evidence on record. It is seen that Ex. P6 telegraphic notice was received by the accused-respondent under Ex. D1. They are one and the same as was found by the Court below. But the sender s name as noted in the telegraphic notice seems to be that of Vittal Reddy and not the complainant- appellant herein. Further it also refers to the debt of Vittal Reddy, against which, the cheque in question i. e. , Ex. P1 was presented and not against the debt of Mr. Narasimha reddy. Therefore, no nexus was sought to be established between the cheque purported to have been presented by the complainant and the telegraphic notice issued under Ex. P6 read with Ex. D1. Whether a telegraphic intimation as to return of cheque Ex. P1 under Ex. P6 was a sufficient service under section 138 (b) of the Act is a larger question to be gone into. But, since the very telegraphic notice issued was defective and does not refer the complainant s name Narasimha Reddy and admittedly was issued on behalf of Vittal Reddy through an advocate viz. Mohan Rao, I am of the opinion that the lower Court was right in finding that the notice as required under section 138 (b) of the Act was not issued. ( 7 ) INSOFAR as the legally enforceable debt is concerned, as noticed above, the very notice sent under Ex. P6 does not refer to the complainant and further the complainant failed to bring home the guilt of the accused by adducing evidence to show that the cheque in question was issued in respect of the debt in question. ( 7 ) INSOFAR as the legally enforceable debt is concerned, as noticed above, the very notice sent under Ex. P6 does not refer to the complainant and further the complainant failed to bring home the guilt of the accused by adducing evidence to show that the cheque in question was issued in respect of the debt in question. Except his oral testimony and the testimony of P. W. 2, who is said to have been witnessed the borrowal of Rs. 96,750/- by the respondent-accused, no other evidence is put forward by the appellant-complainant. So also, no documentary evidence is forthcoming to show that the cheque in question was issued in connection with the legally enforceable debt. Therefore, no case is made out by the appellant-complainant warranting interference by this Court in the judgment under appeal. ( 8 ) THE criminal appeal is accordingly dismissed. No costs.