P JANARDHANARAO Vs. VENKATESWARA TRANSPORT

JUDGEMENT

(1.) Aggrieved by the acquittal of both the accused representing Sri Venkateswara Transports as its partners, of the offence under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (for short "the Act") by the judgment dated 13-9-2000 in C.C.No.274 of 1998 on the file of the Vth Additional Munsif Magistrate's Court, Chittoor, the complainant filed the present appeal.

(2.) The facts leading to the appeal are that the complainant, claiming to be an erstwhile partnerof Sri VenkateswaraTransports, truck operators, along with the 1st and 2nd accused, stated that the 1st accused has issued six cheques on different dates to him for the amounts to be paid to him by the partnership, but later paid cash and received back five cheques. The complainant further claimed that on 30-5-1998 the 1st accused issued a cheque for Rs.24,000/- drawn on Vysya Bank, Chittoor, which was presented by him for collection in Indian Bank, Greamspet, Chittoor on 18-6-1998, which was returned with advice 'insufficient funds'. The complainant issued a notice to both the accused on 29-6-1998, after which there was a mediation and it was agreed that the amount will be paid within a week or the cheque be presented again in the bank. When the complainant presented the cheque on 13-8-1998 again for collection, it was again returned with the endorsement of insufficiency of funds on 20-8-1998. The complainant issued a notice on 24-8-1998 to the accused, but the same was returned with an endorsement of avoidance of taking delivery, on 4-9-1998. The accused gave belated reply to the former notice and thus, the accused committed the offence punishable under Section 138 read with Section 142 of the Act.

(3.) The trial Court took the case on file after recording the sworn statement of the complaint and furnished copies of documents to the accused on their appearance. The accused denied the offence when they were examined under Section 251 of the Code of Criminal Procedure and P.Ws.1 and 2 were examined and Exs.P-1 to P-5 were marked during the trial. The 1st accused examined himself as D.W.1 and marked Exs.D-1 to D-3. The accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313of the Code of Criminal Procedure and the trial Court in the impugned judgment found that the complaint was pre-mature having been filed before the expiry of 15 days notice and it also found that as the complaint was barred by time from the first notice and as the second notice could not have given rise to a fresh cause of action, the complaint is not tenable. Consequently, it acquitted the accused.