IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE 20th DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.341 OF 2005 Between: Sri Durga Industries rep. By its Proprietor Mahankali Suryanarayana …Appellant/Complainant A n d Koppuravuri Srinivasa Kumar and another …Respondents/Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.341 OF 2005 JUDGMENT: This appeal is directed against the judgment dated 07-12-2004 in C.C.No.152 of 2003, on the file of the V- Metropolitan Magistrate, Vijayawada, wherein the said complaint filed by the appellant herein, complainant, alleging offence under Section 138 of the Negotiable Instruments Act (for short ‘the Act’) against the first respondent herein, was dismissed. 2. Heard the learned counsel for the appellant/complainant and the learned counsel for the first respondent/accused. Perused the records. 3. It is not disputed that the first respondent/accused executed a promissory note-Ex.P-2 dated 27-11-2001 in favour of the appellant/complainant for Rs.One lakh, which he received by way of a cheque dated 27-11-2001. It is also not disputed that in discharge of the said debt, the first respondent issued a cheque- Ex.P-1 dated 28-12-2002 for a sum of Rs.1,10,000/- drawn on State Bank of Hyderabad, S.C.Railway Branch, Vijayawada. When the said cheque was presented for encashment on 31-12-2002, the same was returned dishonoured with a memo dated 02-01-2003 to the effect that the account was closed. The appellant issued a statutory legal notice under Ex.P-4 dated 07-01-2003 covered by certificate of postal receipt-Ex.P-5 and the same was received by the first respondent/ accused under Ex.P-6-postal acknowledgment dated 08-01-2003 and the accused gave a reply-Ex.P-7 dated 16-01-2003 denying his liability. Ex.P-8 is the debit voucher issued by the complainant’s bank on 03-01-2003. 4. The accused contended that he did not issue the cheque in discharge of any legally enforceable liability and that there were some chit transactions between himself and the complainant covered by Ex.D-1 and D-2 and he had paid Rs.6,60,000/- in respect of the amount due by him which, in fact, was excess of what he was due to the complainant. He further contends that the complainant obtained some blank pronotes and some blank cheques in connection with the said chit transactions and taking advantage of the same, he pressed one of the blank signed cheques into service and presented the same for encashment. 5. Before the trial Court, the complainant was examined as P.W.1 and Exs.P-1 to P-10 were marked on his behalf. The accused was examined as D.W.1 and Exs.D-1 and D-2 were marked on his behalf. 6. On a consideration of the evidence available on record, the learned Magistrate found the accused not guilty of the offence under Section 138 of the Act and acquitted him thereof. 7. A perusal of the impugned judgment of the learned Magistrate would disclose that all the findings recorded are in favour of the complainant, pertaining to execution of Ex.P-2 pronote and issuance Ex.P-1 cheque and issuance of a statutory notice by the complainant and that the complaint filed is also within time and in accordance with the procedure prescribed. The learned Magistrate, however, acquitted the accused on the sole ground that by issuing reply notice-Ex.P-10 dated 04-01- 2003 in reply to the notice Ex.P-9 dated 30-12-2002 got issued by the accused, the complainant has waived his right to prosecute the accused for the offence under Section 138 of the Act. 8. It can be seen that the cheque-Ex.P-1 was issued on 28-12-2002. Immediately thereafter on 30-12-2002, the accused got issued a notice-Ex.P-9 to the effect that the account against which the cheque was issued was already closed and he requested the complainant not to present the cheque in the bank, offering to replace the same with a fresh cheque. On 31-12-2002, the complainant presented the cheque for encashment and the same was returned on 02-01-2003. Subsequent to dishonour of the cheque, the complainant issued reply-Ex.P-10 to the notice Ex.P-9 demanding the accused to pay the amount by way of demand draft or cash to avoid future consequences. If really the complainant wanted to pursue the legal remedies against the accused pursuant to dishonour of the cheque, he would not have issued reply-Ex.P-10, demanding the accused to pay the amount by way of demand draft or cash. The fact that the complainant got issued such a reply under Ex.P-10 even subsequent to dishonour of the cheque and with the knowledge that the said cheque issued by the accused was dishonoured, would clearly amount to waiver on the part of the complainant to pursue his remedy under Section 138 of the Act. The contents of reply notice-Ex.P-10 would clearly go to indicate that instead of pursuing the remedy under Section 138 of the Act, the complainant wanted to give an opportunity to the accused to pay the amount by way of demand draft or in cash. The fact that subsequently the complainant got issued a statutory notice under Ex.P-4 on 07-01-2003 is of no consequence, inasmuch as even by the date of issuing the said notice- Ex.P-4, the complainant had waived his right to proceed against the accused under Section 138 of the Act. In fact, in his notice-Ex.P-9 dated 30-12-2002, the accused himself, even before the cheque was presented for encashment, had stated that the account in the said bank on which the cheque was drawn, was already closed and wanted the complainant to take a fresh cheque on some other bank. Instead of agreeing for the said course, the complainant had demanded the accused to pay the amount in cash or by way of demand draft, which amounts to substitution of the original demand with a new demand besides waiver of the right to prosecute under Section 138 of the Act, inasmuch as the said reply notice- Ex.P-10 was issued only after dishonour of the cheque and with the knowledge that the cheque was, in fact, dishonoured by that date. Under those circumstances, the learned Magistrate had rightly held that the complainant waived his right to prosecute the accused by issuing Ex.P-10 notice and acquitted the accused for the said offence. The impugned judgment of the trial Court does not suffer from any illegality or material irregularity warranting interference by this Court in this appeal. 8. In the result, the criminal appeal is dismissed. ____________________ G.V.SEETHAPATHY, J 20th August 2009. Lrkm.