THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1434 OF 2005 Dated:17.12.2009 Between: M/s. Rajani Chit Fund (P) Ltd., Hanamkonda, rep., by its Foreman and Managing Director Ch.Saraiah, S/o.Venkataiah, Aged: 50 years, Occ: Business, R/o.Ramnagar Village Hanamkonda Mandal, Warangal District .. Appellant/Complainant And A.Giridhar and another .. Respondents JUDGMENT: The acquittal of the accused in C.C.No.130 of 2004 on the file of the Special Judicial Magistrate of First Class for Protection of Civil Rights Cases at Warangal by the judgment dated 13.07.2005 led the complainant to file the present appeal. The complainant alleged the accused to be guilty of offences punishable under Sections 138 and 142 of the Negotiable Instruments Act and Sections 420 and 422 of the Indian Penal Code in respect of two chits, one for Rs.5,00,000/- and another for Rs.2,50,000/-, run by the complainant in which the accused figured as the prized subscriber. The complainant alleged that the accused paid only 28 and 25 instalments respectively and failed to pay the balance amount in spite of demands and ultimately the accused settled his account with the complainant by issuing a cheque for Rs.3,95,000/- dated 31.01.2002. The cheque when presented was returned due to insufficiency of funds and when a statutory notice was issued, the accused managed to get it returned undelivered. Hence, the complaint. After recording the sworn statement of the complainant and after taking the case on file under section 138 of the Negotiable Instruments Act, copies of documents were furnished to the accused on his appearance and he denied the offence when he was examined under Section 251 of the Code of Criminal Procedure. PW.1 was examined on behalf of the complainant and Exs.P1 to P6 were marked. The accused denied the incriminating circumstances appearing against him when he was examined under Section 313 of the Code of Criminal Procedure and he had no defence evidence. The trial Court rendered the impugned judgment firstly concluding that the accused was the prized subscriber in respect of the chits run by the complainant company, but PW.1 did not produce any documents relating to the chits or the payments made by the accused to contradict the claim of the accused that he paid the entire amount under the two chits and was not a defaulter. The trial Court also concluded that in the light of the denial of the signatures on Ex.P1, undertaking letter and Ex.P2, cheque by the accused, the complainant should have taken steps to prove the said documents, which he did not do. The trial court was of the opinion that the acknowledgment of the alleged debts under Ex.P1 was not valid and in the absence of production of receipts said to have been issued by the complainant for the receipt of the cheque or for any other material document, the complainant cannot be considered to have proved the existence of a legally enforceable debt, towards discharge of which Ex.P2 cheque could have been issued. The trial Court also found fault with the complainant for not producing any documents to show that PW.1 was the validly authorized person to represent the complainant and consequently the trial Court acquitted the accused. The complainant challenges the said judgment in this appeal contending that the evidence produced by the complainant clearly proved the essential ingredients of an offence under Section 138 of the Negotiable Instruments Act and when the accused admitted his signature on the cheque, the statutory presumption in favour of the complainant should have been drawn. When the cheque was issued within three years from the termination of the chit in January, 2001, no bar of limitation could have come in the way of the complainant and, hence, the complainant desired the acquittal to be reversed. Sri P.Prabhakar Reddy, learned counsel for the appellant, and Sri J.Visweswarudu, learned counsel representing Sri Hari Sridhar, learned counsel for the accused, are heard. The point for consideration is whether the complainant proved the guilt of the accused for an offence punishable under Section 138 of the Negotiable Instruments Act? POINT:- PW.1 who claimed to be the Foreman and Managing director of the complainant and who filed copies of the authorization to prosecute the accused and the certificate of incorporation of the complainant, did not mark the said documents and when they were not admitted into evidence, they could not have been looked into by the Court and the accused could not have been able to question the contents of the documents or the legality of authority conferred on PW.1 by those documents to prosecute him. PW.1, in his chief examination affidavit, was not clear about the subject cheque being given along with Ex.P1, undertaking letter, though Exs.P1 and P2 were filed along with the affidavit. The evidence of PW.1 was also not clear whether Exs.P1 and P2 were obtained by or in the presence of PW.1. PW.1 who could not state the date on which the accused joined in the chits and who could not file the accounts relating to the chits of the accused into Court and could not produce the documents relating to the payment of the prize amounts through cash and cheques as claimed by him, only stated about Ex.P2 cheque being allegedly issued by the accused at their office at Hanamkonda, for which a receipt was issued by the complainant. PW.1 had admitted that neither the documents obtained at the time of the auction nor the receipt for the cheque were filed into Court and except denying the suggestions by the accused about the accused not sending or issuing Exs.P1 and P2, PW.1 was not specific about his witnessing the accused signing Exs.P1 and P2. The complainant did not examine anybody else to prove the execution of Exs.P1 and P2 and irrespective of other considerations, in the absence of proof of Exs.P1 and P2 being signed by the accused, an offence under Section 138 of the Negotiable Instruments Act, may not be positively concluded to be proved. The accused was positive in his examination under Section 313 of the Code of Criminal Procedure that he never issued any cheque and never settled his accounts. He also claimed that the company was closed two or three months after the auction and he had in fact paid almost the entire amount due even after the closure of the company. In view of the categorical denial of the other allegations of the complainant by the accused, Exs.P1 and P2 cannot be considered proved. In the legal notice Ex.P4, the complainant did not refer to the execution of Ex.P1 by the accused and if Ex.P1 was not proved and if the references by the trial Court to the relevant dates are factually correct, it is also doubtful whether there was any legally enforceable debt towards which Ex.P2 cheque could have been issued by the date of Ex.P2. In the total absence of any documents to corroborate the claims of PW.1 and in the absence of required clarity in the evidence of PW.1, the conclusions of the trial Court about the failure of the complainant to prove the offence beyond reasonable doubt cannot be interfered with and the appeal has to therefore fail. Any civil proceeding to which the complainant may take recourse to recover any amounts alleged to be due under the chits from the accused shall be determined uninfluenced by any observations made herein or by the trial Court. Accordingly, the Criminal Appeal is dismissed. ___________________ G. BHAVANI PRASAD, J 17th December 2009 KH