THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.2444 OF 2004 ORDER: This is an appeal arising out of the acquittal of the accused in C.C.No.196 of 2003 by the IV Metropolitan Magistrate, Hyderabad on 09.09.2004. The appellant herein is the complainant and he has filed the complaint under Section 200 Cr.P.C. against the accused/respondent No.1 herein for an offence under Section 138 of Negotiable Instruments Act alleging that the complainant is a partnership firm and has been carrying on business of interior building material and the accused company has approached the complainant on 05.02.2002 for supply of Gypsum Board and its accessories worth of Rs.1,50,000/-. On 15.02.2002 the accused paid Rs.40,000/- by way of cheque dated 05.02.2002 drawn on Dhanalaxmi Bank Limited, Abid Road, Hyderabad as an advance in favour of the complainant. The complainant has accepted the same. On 15.02.2002 the accused visited the shop of the complainant and purchased Gypsum board and its accessories worth of Rs.1,48,010/- and paid an amount of Rs.8,010/- in cash to the complainant after adjustment of advance amount of Rs.40,000/- and for the balance of Rs.1,00,000/- the accused has issued a postdated cheque bearing No.146173 dated 30.03.2002 in favour of the complainant. The accused asked the complainant to inform him one day prior to the presentation of the cheque into the bank so as to enable him to arrange for deposit of sufficient amounts to his account. Accordingly, the complainant has informed the accused number of times and the accused went on requesting the complainant to wait for some more time. The complainant informed the accused on 26.09.2002 that he is going to present the cheque and the accused as usual has requested for two weeks time. Since the cheque validity period was likely to be expired, the complainant has presented the said cheque for encashment and the same was returned as dishonoured on 28.09.2002 for the reason “Exceeds arrangements”. When the complainant got issued a legal notice dated 07.10.2002 demanding the due amounts and the accused failed to pay the due amounts in spite of service of the said notice, hence the complaint is filed for punishing the accused for the offence under Section 138 of Negotiable Instruments Act. The learned Magistrate has taken cognizance of the offence under Section 138 of Negotiable Instruments Act against the accused and when he was examined under Section 251 Cr.P.C., he pleaded not guilty. In order to establish the allegations made in the complainant, P.W.1 – K.Rama Chander Rao was examined on behalf of the complainant and got marked Exs.P.1 to P.5. The learned Metropolitan Magistrate taking into consideration of the said oral and documentary evidence found that the complainant failed to establish that the said cheque was issued for legally enforceable debt and also observed that the complaint is barred by limitation and the person who has given evidence is not competent to give evidence on behalf of the complainant and thereby found the accused not guilty for the offence under Section 138 of Negotiable Instruments Act and acquitted him. Aggrieved by the said acquittal, the complainant has filed the present appeal. Now, the point that arises for consideration is: Whether the complainant could able to establish the offence under Section 138 of Negotiable Instruments Act against the accused beyond reasonable doubt? P O I N T: When the matter is coming up for hearing on 15.03.2011, learned counsel for appellant has requested for time and even today as the matter is coming up for hearing, no representation on behalf of the appellant. Heard the learned counsel for respondent No.1 and the matter is being disposed of basing on the material available on record. The learned Magistrate has categorically observed that the complainant has failed to produce any material to show that the Ex.P.1 cheque was issued towards payment of any legally enforceable debt and the complainant has failed to produce any documentary evidence to show that the accused purchased the material from the complainant and paid some amount by cash and for the balance amount, he has issued the cheque for Rs.1,00,000/-. As per the grounds of appeal, it was pleaded by the appellant’s counsel that the burden of proving the consideration for a dishonoured cheque is not on the complainant, but it is on the accused to prove that the cheque has not been issued for a debt or liability. The said contention of the appellant’s counsel cannot be accepted for the reason that when the complainant is coming forward with a plea that the said cheque was issued towards the balance amount due by the accused to the complainant, the burden is on the complainant to establish the same and it is not on the accused as pleaded by him. The next finding of the lower Court is that the P.W.1 – M.Ramachander Rao claims to be GPA holder of the complainant firm, but he has not filed the GPA before the Court to show that he was authorized to give evidence on behalf of the complainant firm. Moreover, the learned Magistrate has observed that when the complaint was returned for presentation by proper person, one Gangavva has signed as partner of the complainant firm and represented the same. But the said Gangavva has not given evidence on behalf of the complainant and P.W.1 who is claiming to be the GPA holder was examined on behalf of the complainant. In the grounds of appeal, the appellant’s counsel has stated that the copy of GPA was filed in the Court, but it was not marked by oversight. Therefore, it is admitted that the GPA was not marked before the lower Court to establish that P.W.1 is the competent person to give evidence on behalf of the complainant firm. Therefore, the evidence of P.W.1 cannot be relied upon to prove the averments made in the complaint. The next observation made by the learned Magistrate is that the complaint is barred by limitation as it was filed beyond one month from the date of arising of cause of action. No ground was taken in that regard in the grounds of appeal. Therefore, the learned Magistrate has rightly observed that the complainant has failed to establish that Ex.P.1 cheque was issued towards legally enforceable debt and P.W.1 is not a competent person to give evidence on behalf of the complainant and the complaint is barred by limitation. Thus, the said findings of the learned Magistrate does not warrant any interference by this Court. In the result, the criminal appeal is dismissed. _______________________ P.DURGA PRASAD, J 6th April, 2011 KSP