HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.107 OF 2007 DATE:12.07.2010 Between: Sri Vangapalli Purnachander Rao …… Appellant And: Sri Vangapalli Vijay Kumar and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.107 OF 2007 ORDER: 1. Unsuccessful complainant in a lis under Section 138 of the Negotiable Instruments Act (in short, the Act) before the XIV Additional Chief Metropolitan Magistrate, Hyderabad in C.C.No.1425 of 2004, is the appellant. The accused/1st respondent is no other than paternal uncle of the complainant. In the lower court, P.W.1 who is stated to be Special Power of Attorney Holder of the complainant represented him. The complainant did not give evidence, but P.W.1 gave evidence on his behalf. Giving of evidence by P.W.1 for the complainant is valid, in case he has got personal knowledge abut the transaction (vide M/s. Shankar Finance & Investments v. State of Andhra Pradesh[1] of the Supreme Court; and Durgadevi v. Shalikram[2] of the Bombay High Court). 2. It is the complainant’s case that the accused was collecting rents and deposits relating to shops located at Ameerpet on behalf of Vangapalli Family Trust and also 11 more shops located at Lalgudi bazaar, Secunderabad since the year 1999 and that when the complainant requested the accused to settle his share of amounts of deposits and rents relating to the shops, both of them arrived at the amount as Rs.7,00,000/- towards complainant’s share and that accused issued the cheque for the said amount drawn on State Bank of Hyderabad, General bazaar branch, Secunderabad. When the complainant presented the cheque for collection, banker dishonoured the said cheque for want of sufficient funds. After issuing Ex.P-3 notice and waiting for the statutory period, the complainant filed the complaint in the lower court alleging offence punishable under Section 138 of the Act against the accused. 3. During trial in the lower court, P.W.1 was examined and Exs.P.1 to P.5 were marked on behalf of the complainant; and the accused examined himself as D.W.1. The lower court came to the conclusion that the complainant did not prove legally enforceable debt supporting Ex.P-1 cheque. Consequently the lower court dismissed the complaint. 4. It is contended by the appellant’s counsel that P.W.1 who is no other than elder brother of the complainant has spoken to the events which lead the accused to issue Ex.P-1 cheque in favour of the complainant. It is pointed out by the lower court that P.W.1 was not cited as one of the witnesses in the complaint nor it was mentioned in the complaint that P.W.1 was also present at the time of the transaction, settlement of account and issuance of Ex.P-1 cheque. Simply because P.W.1 happened to be elder brother of the complainant, one cannot take his evidence on face value, without there being any basis in the complaint. 5. There is no dispute that the accused gave another cheque for Rs.2,00,000/- in favour of the complainant towards the same settlement of accounts relating to rents and deposits from shops, and the said cheque was encashed by the complainant. It is not known why another cheque for Rs.7,00,000/- was given towards the same settlement. It is not the complainant’s case that there were two settlements on two different dates which resulted in giving of two cheques one for Rs.2,00,000/- and the other for Rs.7,00,000/-. Admittedly there are property disputes between the parties. Father of the complainant and P.W.1 is no other than brother of the accused. The property at Ameerpet belonged to grand-mother of the complainant and P.W.1. There are also criminal cases between the parties by way of giving complaints in the police station under Section 498-A IPC etc. According to the accused, his signatures were obtained on Ex.P-1 cheque during settlement of a dispute in the police station relating to a criminal case. The lower court pointed out that the complainant did not produce any accounts relating to settlement of accounts and deposits from shops. Having regard to the evidence on record and lack of accounts between the parties much less settlement of the accounts evidenced by any documents, the lower court rightly held that the complainant could not prove existence of any debt much less legally enforceable debt for the amount covered by Ex.P-1 cheque. 6. This Court intends to add one more straw to the drowning complainant. Ex.P-1 cheque was issued by the accused on behalf for M/s.Vangapalli Latchiach as proprietor. No doubt, M/s.Vangapalli Latchiah, Brass and Metal Merchant, is a sole proprietary concern in which the accused was the sole proprietor. Even according to the complaint, the alleged settlement of account was in between the complainant and the accused in their personal capacity. Neither M/s. Vangapalli Latchiach nor the accused as Proprietor of M/s. Vangapalli Latchiach owed any amount to the accused. Therefore, when Ex.P-1 cheque was issued for M/s. Vangapalli Latchiach, this Court can safely conclude that there is no debt at all much less legally enforceable debt owned by M/s. Vangapalli Latchiach to the complainant. This is a pure question of law which arises out of Ex.P-1 document produced by the complainant himself and which is the basis for the complaint. 7. Thus, viewed from any angle, the complaint has no legs to stand in this appeal. The finding of acquittal recorded by the lower court is legal and proper. 8. In the result, the appeal is dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:12.07.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.107 OF 2007 Date:12.07.2010 Gk. [1] 2008 AIR SCW 7493 [2] 2009(2) ALD (Crl.) (NOC) 44 (Bom)