HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NOs.82 & 83 OF 2007 DATE:20.07.2010 CRIMINAL APPEAL NO.82 OF 2007 Between: C. Narasimha Murty …… Petitioner. And: J.L. Narasimha Rao and another …..Respondents. CRIMINAL APPEAL NO.83 OF 2007 Between: G.V.S.Krishna Rao …… Petitioner. And: J.L. Narasimha Rao and another …..Respondents. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NOs.82 & 83 OF 2007 COMMON JUDGMENT: 1. Common questions of fact and law arise for consideration in these two appeals arising out of acquittal of the accused for offences punishable under Section 138 of the Negotiable Instruments Act (in short, the Act) recorded by the I Additional Judicial Magistrate of the First Class, Kadapa in S.T.C.Nos.80 of 2003 and 96 of 2003. 2. As the matter now stands, there is no dispute about execution of promissory notes covered by Ex.P-1 in both the cases and cheques covered by Ex.P-2 in both the cases containing signatures of the accused. The accused contends that he was taken to Hyderabad with the help of hired goondas and that his signatures in the pronotes and cheques were obtained by threats and coercion. 3. According to the complainants/appellants in both the appeals, the accused borrowed Rs.10,00,000/- from each of them and executed Ex.A-1 pronotes and in discharge of the said debts, the accused issued Ex.P-2 cheques. There is no dispute that when presented for encashment, both the cheques were dishonoured for want of sufficient funds. After issuing statutory notices, both the complainants filed their respective cases against the accused alleging offence under Section 138 of the Act, in the lower court. 4. The complainants and the accused were friends. Complainant in S.T.C.No.96 of 2003 and the accused are partners in Sri Vijayalakshmi and Company which is a partnership firm doing turmeric business at Kadapa. The complainant in S.T.C.No.80 of 2003 is brother of the complainant in S.T.C.No.96 of 2003. The accused executed pronotes in his individual capacity. Whereas two cheques covered by Ex.P-2 were issued by the accused as Managing Partner of Sri Vijayalakshmi and Company. Even as per the complainants’ case Sri Vijayalakshmi and Company is not the borrower under Ex.P-1 pronotes. As per the promissory notes, it was the accused alone who was the borrower in his individual capacity. For whatever purpose the accused is said to have borrowed the amounts covered by Ex.P-1 pronotes, it was the accused alone who executed those pronotes in his individual capacity. Therefore, the pronotes covered by Ex.P-1 cannot be legally enforceable debts as against Sri Vijayalakshmi and Company which is drawer of the two cheques covered by Ex. P-2. There is no debt or debts payable by Sri Vijayalakshmi and Company in favour of both the complainants. In that view of the matter, the lower court rightly found that there are no legally enforceable debts for both the cheques covered by Ex.P-2. This ground alone is sufficient to acquit the accused. 5. Under Explanation to Section 141 of the Act, a company is defined as including a firm. Under Section 141(1) of the Act, if the person committing offence under Section 138 of the Act is a company, then apart from the company, every person who was in-charge of and was responsible to the company for conduct of business of the company are liable. In these two cases, the complainant did not choose to implead Sri Vijayalakshmi and company on whose account Ex.P-2 cheques were issued. The accused/1st respondent was not impleaded as partner of the partnership firm, but was impleaded as an individual. Thus, viewed from any angle, this Court is of the opinion that the complainant has not made out any offences under Section 138 of the Act much less against the 1st respondent/accused. In that view of the matter, I do not propose to go into factual controversy regarding use of force in obtaining Ex.A-1 pronotes and Ex.A-2 cheques. Conclusion arrived at by the lower court by way of acquitting the accused is in accordance with law. 6. In the result, both the criminal appeals are dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:20.07.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NOs.82 & 83 OF 2007 Date:20.07.2010 Gk.