RAKESH AGARWAL Vs. K. NARASIMHA RAO AND STATE

JUDGEMENT

(1.) The unsuccessful complainant in C.C. No.30 of 1998 preferred this appeal under Section 255(1) Cr.P.C with leave under Section 378(4) Cr.P.C aggrieved by the Judgment dated 09.01.2002 adjudged by the learned Judicial Magistrate of the First Class, Yellandu.

(2.) The complainant filed the private complaint case under Section 200 Cr.P.C for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'the Act') against the accused based on a dishonoured cheque dated 16.09.1997 for an amount of Rs.50,000/-. The cheque said to have been drawn by the accused in his favour in lieu of the promissory note executed on 01.08.1994 undertaking to pay a sum of Rs.35,000/- with interest at 24% p.a. thereon. From the averments of the complaint, when said cheque presented through their banker the same was returned dishonoured on the ground of "the account was closed". Ex.P-2 is the bank voucher and Ex.P-3 and P-4 are memos. On the strength of the same the complainant issued Ex.P-5 legal notice dated 28.10.1997 and same was returned which was disclosed by Ex.P-7. The case was taken on file and cognizance against the accused for the offence under Section 138 of the Act. On appearance of the accused and after pleaded not guilty in examination under Section 251 Cr.P.C, trial was conducted as a summons case. From said evidence of complainant as P.W-1 coupled with the officer of the Bank as P.W-2 in proof of the dishonoured cheque and P.W-3 is the Assistant Director, Forensic Science Laboratory with reference to Exs.P-8 to P-13 requisition, opinion along with reasons, photo chart and negatives regarding the signature opining that of the accused, the case was ended in acquittal on the finding of guilt not proved holding that the account was closed much earlier to the issuing of cheque and hence, the accused cannot be prosecuted though the cheque was dishonoured.

(3.) The learned counsel for the appellant contended that the learned Magistrate committed grave error in acquitting the accused instead of finding guilty for the offence made out from the cheque issued, for the subsisting debt, was dishonoured, even notice issued cause managed from deemed service, the offence made out and cause of action subsists within the meaning of Section 142 read with 138 of the Act of an offence shall be deemed to have been committed with respect to presumption under Section 139 and 118(a) of the Act and to set aside the finding of the learned Magistrate in acquittal and to convict the accused.