INDEN POWER INTERNATIONAL Vs. SRI CHANDAN PANDYA

JUDGEMENT

(1.) This appeal is preferred by the appellant-complainant aggrieved by the judgment dtd. 21/3/2007 passed in STC No.451 of 2005 by the III Metropolitan Magistrate, Cyberabad at L.B. Nagar in acquitting the accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act (for short 'NI Act').

(2.) The case of the appellant was that he was engaged in the business of Mini Power Projects in A.P. under the name and style of "Inden Power International Limited", represented by its authorised signatory authorized by the Board of Directors vide Resolution dtd. 21/4/2005. The accused was running business in the name and style of Dhansthra Capital Limited. The accused company approached the complainant company stating that they would provide foreign fund to the complainant company for mini power project in Andhra Pradesh. The accused company compelled the complainant to pay Rs.35.00 lakhs for providing the same. The complainant in good faith deposited an amount of Rs.35.00 lakhs in the account of the accused company for facilitating foreign fund for his mini power project but the accused failed in its duty to provide foreign funding and committed breach of trust. The accused gave evasive replies to avoid payments to the complainant. On repeated requests, the accused stated that the company was in crisis and his father Devendra Pandya who was the Managing Director of the company had expired and came forward to negotiate the issue by holding discussion for an amicable settlement and agreed to settle for an amount of Rs.25.00 lakhs though the actual liability was for Rs.35.00 lakhs. The accused gave an undertaking letter dtd. 20/11/2004 to settle the amount in due course and issued five post dated cheques for Rs.5.00 lakhs each drawn on HSBC Lokhandwala, Mumbai and requested for some time to clear the cheques. The complainant presented the cheque bearing No.270360 on 2/5/2005 and the same was returned with endorsement "Payment stopped by the drawer". The complainant issued a legal notice dtd. 23/5/2005. The accused acknowledged the receipt of notice but failed to give reply, as such, filed the complaint under Sec. 138 of NI Act. The case was taken on file by the III Metropolitan Magistrate, Cyberabad at L.B. Nagar and issued summons to the accused. The accused appeared before the Court and contested the matter. The complainant examined the Senior Executive of the Company as PW.1 and the Managing Director of the company as PW.2 and got marked Exs.P1 to P11. The accused examined himself as DW.1 and got marked Exs.D1 and D2. On considering the evidence on record, the learned III Metropolitan Magistrate, acquitted the accused under Sec. 255(1) Cr.P.C. for the offence under Sec. 138 of NI Act. Aggrieved by the same, the complainant preferred this appeal contending that the trial Court erred in acquitting the accused without giving any valid or cogent reasons for coming to the conclusion. The observations and findings of the trial Court in acquitting the accused were erroneous and unsustainable. The trial court ought to have taken into account Ex.P.11 wherein the accused sought for more time to pay the amount covered by the cheque. The trial court ought to have appreciated the fact of the undertaking given by the accused to discharge the legally enforceable debt. The trial court failed to appreciate the fact that the accused did not file any documents to show that he gave a report before Oshiwara Police Station at Mumbai and failed to appreciate the fact that the complainant had filed a case under Sec. 406 and 420 IPC in Tirumalgiri Police Station before filing the present complaint. The trial Court failed to consider that Ex.P.9 was unconnected to the issue in question and it was only an after-thought to avoid payment of legally enforceable debt. The trial Court erred in coming to the conclusion that the cheques were obtained under coercion and threat, the same was not supported by any cogent evidence by the accused. It was not an invariable principle that the drawer of the cheque ought to have a direct interest in the transaction or that he must be a part of it. The drawer of cheque could be a third party who could have undertook to discharge the debt and the trial Court ignored the presumptions under Sec. 138 of NI Act and prayed to allow the appeal.

(3.) The learned counsel for the appellant failed to argue the appeal though the matter was pertaining to the year 2007.