N. MADHUSUDHAN GUPTA Vs. S. A. KALEEM

JUDGEMENT

(1.) This Criminal Appeal is filed aggrieved by the judgment of acquittal for the offence under Sec. 138 of NI Act, recorded by the learned XIV Additional Judge-cum-XVIII Additional Chief Metropolitan Magistrate at Hyderabad vide judgment in C.C.No.224 of 2008, dtd. 7/9/2009.

(2.) Briefly, the case of the appellant/complainant is that the appellant filed case under Sec. 138 of the Negotiable Instruments Act against the respondent/accused stating that the accused was his family friend. accused requested to advance loan amount of Rs.2.00 lakhs and promised to repay in the month of June, 2007. The said amount of Rs.2.00 lakhs was given on 12/2/2006. On 2/8/2007, when the demand was made to repay the said amount, two cheques Exs.P1 and P2 for Rs.1.00 lakh each were given. The said cheques, when presented for clearance, were returned unpaid for the reason of 'funds insufficient'. Legal notice was sent to the accused, who failed to make good the payment covered by the cheques, for which reason, complaint was filed before the learned Magistrate.

(3.) Learned Magistrate examined the complainant as P.W.1 and marked Exs.P1 to P9. He found that the major discrepancy in the case of the complainant was non service of mandatory legal notice, copy of which is Ex.P4. According to Exs.P7 and P8 acknowledgements, they did not contain the signature of the accused, as such, there was no proper compliance of service of mandatory notice. Though, it is stated that the accused has given reply notice dtd. 6/9/2007 to the complainant, the same is not filed into the Court. No satisfactory explanation was offered by the complainant for not filing reply notice sent by the accused, as such, adverse inference was drawn against the complainant's case. The learned Magistrate further found that there is a difference of ink in respect of date, name of the payee and the amount in words in Exs.P1 and P2, for which reason, learned Magistrate found that there was material alteration of the negotiable instrument. Further, Ex.P9, which is a cheque return memo does not bear the signature and date on it. Accordingly, on the said basis, learned Magistrate recorded acquittal.