APPOLO TYRES LTD. Vs. H.M. TYRES

JUDGEMENT

(1.) THE appellant -complaint M/s. Apollo Tyres Ltd., seeks to assail the 15 acquittal judgements of even dated 28.06.2001 passed by the learned IV Metropolitan Magistrate, Hyderabad, in the respective private complaint cases vide C.C.Nos.56, 57, 54, 60, 59, 52, 61, 62, 65, 63, 58, 55, 64, 51 & 53 of 2001 filed by said complainant (under Section 138 of the Negotiable Instruments Act,1881 -amended by Act 66 of 1988 (for brevity 'the Act'), which came into force w.e.f., 01.04.1989. The accused in these cases are no other than the area dealers of the products of the complainant, by name M/s. H.M. Tyres, represented by Mr. Hameed Muzafaruddin(A -1), said Muzafaruddin (A -2) individually, so also Mr. Adil Moizuddin (A -3). The complainant - M/s. Apollo Tyres Ltd., filed the complaints, rep. by its employee, duly authorised (Mr. K.G.Nair the then District Commercial in -charge, on whose sworn statement, cognizance was taken on the 15 complaint cases for the offence under the provisions of the Act and later changed the authorisation to the then District Commercial in -charge Mr. Krishna Rao P.W.1).

(2.) THE case of the complainant in all these cases was that for the supply of the products, like Tyres, Tubes, etc., through its Branch Office at Hyderabad, for the orders placed by the accused, being their dealers, from time to time under the respective invoices, for the amounts covered thereunder for each of the invoices, the accused issued the respective cheques, total 43 in number, during the period between 29.4.2000 and 23.5.2000, for a total amount of Rs.12,09,111/ -, when presented for collection returned dishonoured and for the statutory notice of demand intimating the dishonour and to pay, the accused issued a reply with false averments saying no liability and failed to pay, hence the respective complaints. It is pursuant to said complaints and from the sworn statement of the complainants authorised District Incharge by then, by name Mr. K.G.Nair, cognizance was taken on the 15 complaint cases for the offence under the provisions of the Act and after the accused were summoned and put in appearance from supply of copies under Section 207 of the Code of Criminal Procedure (for brevity, The Cr.P.C.), when questioned on substance of accusation under Section 251 Cr.P.C., they pleaded not guilty and were put to trial and in the course of trial, the complainants authorised employee viz., the then District Commercial in -charge Mr. Krishna Rao was examined as P.W.1 and placed reliance upon the respective authorisation, Certificate of Incorporation of the company, the respective invoices for the supply of stocks as ordered by the accused and the cheques issued pursuant to it and on presentation of the cheques returned dishonoured as per the respective Memos and the statutory Notice issued with acknowledgement and certificate of posting in proof of service and the reply of the accused and also the statement of account of the accused with the complainant of the relevant period. In most of the cases, besides Exs.P.1 and P.2, authorisation and Certificate of Incorporation of the company, respectively, are common, other exhibits are depending upon the number of cheques for invoices and dishonour Memos i.e., where there is a single cheque for single invoice with dishonour Memo, exhibited as Exs.P.3 to P.5, respectively, and if there are 3 cheques for invoices with 3 dishonoured Memos, exhibited as Exs.P.3 to P.11, respectively, and therefrom the other 5 documents with continuation number for the notice with acknowledgement and certificate of posting as well as reply and account copy, either as Exs.P.6 to P.10 or as Exs.P.12 to P.16, respectively. It is after said evidence of complainant, the accused were examined under Section 313 Cr.P.C. by bringing to their notice the incriminating material against them and from recording their answers in pleading innocence, reiterating their defence version of nothing due to pay to honour the cheques and thereby they issued to their banker instructions for stop payment and for return of the cheques, therefrom they committed no offence. Same is also the version in their reply notice as well in cross -examination of P.W.1, while admitting the orders placed by them for supply of stocks and received the stocks as per respective invoices and issued cheques for each of the respective invoice amount due on the respective dates, however, in saying they requested for settlement of account between them and for non -settlement, they also filed civil suit against the complainant showing amount due for recovery and thereby the amounts covered by the cheques not fallen due. They adduced evidence by cause examined the Law Officer of Charminar Cooperative Bank and exhibited through him Exs.D.1 to D.5 viz., List of Credit notes issued by the complainant, ledger extract of the O.D. Account bearing No.15, standing in the name of H.M. Tyres (A.1), 3 cheques dated 12.3.1999, 27.3.1999 and 31.3.1999 issued by accused from their account in favour of the complainant, stated encashed. It is also the defence that the amounts covered by 3 cheques Exs.D.3 to D.5 of March, 1999 encashed as per the evidence of D.W.1 with reference to Exs.D.1 and D.2 were not given credit to and thereby not reflected in Ex.P.16 ledger extract, and therefrom also for nothing due, no offence committed.

(3.) THE findings of the learned trial Magistrate in acquitting the accused were that as set out in the defence, the accused rebutted the presumptions available against them and in favour of the complainant under Section 118 and 139 of the Act, from admittedly purchased the stocks as per the orders under the respective invoices for which the cheques were issued, however, from showing the amounts covered by 3 cheques issued by the accused in favour of the complainant for its discharge under Exs.D.3 to D.5, since encashed, as reflected from the evidence of D.W.1 with reference to Exs.D.1 and D.2 and thereby shows nothing due under the cheques dishonoured and the stop payment issued is for not payable and committed thereunder no offence.