B.OMPRAKASH Vs. M.GANGADHAR

JUDGEMENT

(1.) The complainant, who filed C.C. No. 119 of 2000 on the file of the Additional Judicial First Class Magistrate (Special Mobile), Nizamabad (Originally numbered as C.C. No. 5.11 of 1998 and on transfer to the Spl. Mobile court re-numbered as C.C. No. 119 of 2000); based on Ex. P. 2-cheque issued by the accused dated 07.12.1997 for Rs. 2,50,000/- which debt is covered by earlier Ex. A. 1-promissory note borrowing of said amount, dated 06.06.1997 and from the legal notice after dishonour of the cheque when presented covered by Ex. P. 4, bank cheque return memo, dated 03.04.1998 by Ex. P-3 notice dated 13.04.1998, that notice for not claimed returned covered by Ex. P. 5. It is in fact averred in the complaint that prior to the presentation of the cheque on 03.04.1998 earlier Ex. P. 2-cheque was presented on 08.12.1997 and the same was also returned dishonoured for insufficiency of funds and that the complainant issued legal notice dated 12.12.1997, which is not marked before the trial Court. It is based on that cause of action from subsequent presentation of the cheque dishonoured and notice given unclaimed, the complainant filed the private complaint case for the offences under Section 420 IPC and 138 of N.I. Act, the same was taken cognizance only under Section 420 IPC on 10.07.1998 saying the earlier presentation of the cheque on 08.12.1997 and issue of legal notice for the dishonour of the cheque on 12.12.1997 accrued cause of action once started will not further accrue by suspending existing cause of action to maintain the complaint under Section 138 of N.I. Act. It was there from for the offence under Section 420 IPC on a complaint case taken cognizance by the trial Court against the accused-charge framed under Section 420 IPC as provided for private warrant case and on accused when questioned denied commission of the offence and claims to be tried.

(2.) During the course of trial, on behalf of the complainant P.Ws. 1 to 5 were examined and Exs. P. 1 to P. 6marked and accused came to witness box with permission under Section 315 Cr.P.C. as D.W. 1 and cause examined D.Ws. 2 to 4 and placed reliance upon Exs. D. 1 to D. 7 which include another C.C. No. 135 of 1998 based on loan agreement and three promissory notes laid in disputing the issuing of cheque and execution of promissory note for the so called debt. The trial Court referring to the expression of full bench of this Court in Opts Marketing (P.) Ltd. v. State of Andhra Pradesh, convicted the accused having found him guilty for the offence under Section 420 IPC and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 5,000/- with default-sentence of simple imprisonment for six months. Against which, the accused preferred Appeal No. 3 of 2003 and the 1st appellate Court mainly at para. 10 in pages 10 and 11, observed that admittedly the cheque consideration is depending upon earlier promissory note-Ex. P. 1 debt and either in the complaint or in the evidence says nothing on dishonest intention of cheating for the borrowal covered by promissory note debt to say for which cheque issued and for no consideration under the cheque separately paid nothing parted with or acted or omitted to do any act to a tribute said cheating there from by any intention to deceive and thereby offence not made out for no fraudulent or dishonest intention at the time of making promise from the inception for the debt. It is impugning the same, the second appeal is filed with leave granted under Section 378(4) Cr.P.C. The contentions in the grounds of appeal are the 1st appellate Court went wrong in reversing the finding of guilty of the accused for having been convicted for the offence under Section 420 IPC by re-appreciation of evidence in a wrong perspective instead of looking into the factum of the accused issued the cheque without intention to honour that is further supported by subsequent events like issuing notice to the bank alleging cheque lost and not to honour any presentation of cheque for encashment, unclaimed the legal notice etc., hence to set aside the said finding of the 1st appellate Court by confirming the conviction judgment of the trial Court.

(3.) Whereas it is the contention of the learned counsel for the accused that there is nothing to interfere with the reasoned finding of the first appellate Court for the ingredients of offence under Section 415 IPC not made out.