IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE 21st DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.R.C.No.586 OF 2005 Between: M/s Model Financial Corporation Ltd., Regd. Office at 6-3-456/A/1, Model House, Panjagutta, Hyderabad, rep. by its Manager, G.V.Subrahmanyam …Appellant/Complainant A n d The State of A.P. rep. by P.P, High Court of A.P., Hyderabad and another …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.586 OF 2005 JUDGMENT: This appeal is directed against the judgment dated 07-10-2004 in C.C.No.55 of 2003, on the file of the XXIII Metropolitan Magistrate, Hyderabad, wherein the second respondent herein was found not guilty of the offence under Section 138 of the Negotiable Instruments Act and was acquitted thereof. 2. Heard the learned counsel for the appellant/complainant. None appeared for the second respondent/accused, though served with notice. Perused the records. 3. The complainant is a limited company doing business in hire purchase, leasing and bill discounting. The accused approached the complainant with a proposal to take ‘TATA PTBU’ on hire purchase basis and entered into an agreement dated 18-08-2001. The value of the hire purchase agreement-Ex.P-4 was Rs.38,080/-. The accused undertook to pay the said amount in 24 monthly installments. After paying some installments, the accused committed default. After repeated demands, the accused issued a cheque-Ex.P-5 bearing No.181799 dated 10-08- 2002 for Rs.30,000/- drawn on Central Bank of India, Kalyannagar, Hyderabad. When presented for clearance, the cheque was dishonoured and returned with a memo- Ex.P-6 on 14-08-2002 with an endorsement ‘account closed’. Ex.P-7 is the debit advice. The complainant got a legal notice issued under Ex.P-8 and its postal receipt being Ex.P-9 and the same was received by the accused, but he failed to pay the amount. Hence, the complaint. 4. Before the trial Court, the accused denied the offence and claimed to be tried. 5. In support of its case, the complainant examined P.Ws.1 and 2 and marked Exs.P-1 to P-12. 6. The learned Magistrate recorded a finding to the effect that the complaint was filed in time and in accordance with the procedures stipulated under the Act. The complaint was, however, dismissed on the ground that the cheque was issued for a different amount i.e., 30,000/-, though according to the complainant, the amount due was Rs.38,080/- and as per the evidence of P.W.2 after deducting the two installments paid in July and August, the amount due was only Rs.24,906/-, but whereas the copy of the account- Ex.P-11 shows that the accused paid Rs.16,166/- and if the same is taken into consideration, the liability would be Rs.21,914/- only. 7 . The learned counsel for the appellant/complainant would submit that the total amount due by the accused was Rs.38,080/-, including interest on the principal amount of Rs.24,906/- and as part of one time settlement, the accused offered to pay Rs.30,000/- in full and final settlement for which the complainant agreed and accordingly the accused issued the cheque for the said amount of Rs.30,000/- and, therefore, there is no discrepancy in the amount that was demanded by way of legal notice. Admittedly, the notice-Ex.P-8 was issued demanding a sum of Rs.30,000/- in respect of which amount the cheque was issued and dishonoured. Thus, there is no discrepancy between the amount mentioned in the cheque-Ex.P-5 and the notice-Ex.P-8. It is always open for a creditor to forego a part of the claim as part of full and final settlement, except a lesser amount. In the present case, according to the complainant, as part of settlement, the amount of liability on the part of the accused was ascertained at Rs.30,000/- and a cheque-Ex.P-5 was issued for the said amount and that the cheque was dishonoured. The statutory notice- Ex.P-8 was given demanding payment of the same amount of Rs.30,000/- and as there was no response, the complaint was filed. 8. In the circumstances, the impugned order, dismissing the complaint for the reasons mentioned therein, is held unsustainable and the same is accordingly set aside. As the trial Court had not adverted to the merits of the case and did not record any specific finding as to whether or not the accused committed any offence, it is considered just and proper to remit the matter back to the trial Court for fresh disposal according to law after giving opportunity of adducing further evidence and also opportunity of hearing to both sides. 9. In the result, the criminal appeal is allowed and the matter is remitted back to the trial Court for fresh disposal in accordance with law. Having regard to the fact that the complaint is of the year 2003, the trial Court is directed to dispose of the matter within a period of four months from the date of receipt of a copy of this order. ____________________ G.V.SEETHAPATHY, J 21st August 2009 Lrkm.