THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 906 OF 2004. DATED: 16-11-2009. Between: M/S Sree Kaliprasad Agencies, A partnership firm rep. by its Partner D.Kaliprasad … Appellant/Complainant and 1.Smt.P.Rajyalakshmi …Respondent/Accused 2.State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. … Respondent/Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 906 OF 2004. JUDGMENT: This Criminal Appeal by the appellant-complainant under Section 378 (4) Cr.P.C., is directed against the judgment, dated 12-02-2004, in C.C. No. 659 of 2001, on the file of the III Metropolitan Magistrate, Visakhapatnam, whereunder and whereby the 1st respondent-accused was acquitted of the offence punishable under Section138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) 2. Brief facts, are that the family members of the accused are having lorry tankers and running transport company in the name and style of Veeramulu Transport at N.H.9, Bhavanipuram, Vijayawada and Veeramulu Lorry Suppliers Hyderabad. The accused and her family members used to purchase petroleum products from the complainant for last so many years on credit basis and opened an account in the bank and they have to pay the outstanding amount of Rs.5,45,954/- by the end of 13-12-2000. The accused issued a cheque dated 15-12-2000 for Rs.1,45,954/- drawn on State Bank of Hyderabad, Bhavanipuram, Vijayawada. Similarly, her family members issued three cheques for Rs.1,00,000/- each and they were honoured, but the cheque issued by the accused was dishonoured. On the request of the accused, the complainant again presented the cheque for collection, but the same was returned with an endorsement ‘funds insufficient’. After giving statutory legal notice, the complaint was filed. 3. When the accused was examined under Section 251 Cr.P.C. for the offence punishable under Section 138 of the Act, she denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the complainant examined P.Ws. 1 to 3 and got marked Exs.P1 to P11. The accused herself was examined as D.W.1, but no documents were marked on her behalf. 5. The trial Court upon consideration of entire oral and documentary evidence available on record, acquitted the accused. Challenging the same, the complainant preferred this appeal. 7. Now the point that arises for consideration is whether the complainant proved its case against the accused of the offence punishable under Section 138 of the Act beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 8. Learned counsel appearing for the appellant-complainant contended that the trial Court has not considered the evidence with regard to ingredients to be proved under Section 138 of the Act, that in the absence of pleading or evidence, discussion of the trial Court with reference to Section 141 of the Act and the decision relied upon by the accused is unsustainable and hence, he prays to set aside the order of acquittal. 9. On the other hand, learned counsel appearing for the 1st respondent-accused contended that the trial Court after considering the evidence on record rightly held that the complainant has not proved its case beyond all reasonable doubt, that the accused issued the cheque towards the discharge of debt incurred by her husband and therefore, there are no grounds to interfere with the same. 1 0 . To constitute an offence incorporated in the main enacting clause of Section 138 of the Negotiable Instruments Act, the following three conditions have to be established: “ a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.” 11. As seen from the impugned judgment, it would not reveal about the necessary ingredients to be proved by the complainant with reference to the offence under Section 138 of the Act. Practically, the trial Court has made out a third case and applied Section 141 of the Act, which reads thus: “Offences by companies: 1.If the person committing an offence under Section 138 is a company, every person who at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly; Provided that nothing contained ion this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government a financial corporation owned or controlled by the Central Government or State Government as the case may be he shall not be liable for prosecution under this chapter. 2) Notwithstanding contained anything in sub-section (1) where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” It is not the case of the complainant nor the accused that the accused is the Director or she was in charge and responsible for day-to-day affairs of the firm. In such a case, in the absence of any pleading or evidence, the impugned judgment is unsustainable. There cannot be any dispute that the initial burden is on the complainant to establish that the accused issued the cheque in question for legally enforceable debt or liability. After discharging the said burden, the presumption under Section 139 of the Act can be drawn. Mere admitting of issuance of cheque does not relieve the complainant to establish that the cheque in question was given for legally enforceable debt. These aspects have not been considered by the trial Court. Hence, it is a fit case where the judgment is liable to be set aside and the matter has to be remanded to the trial Court for fresh disposal. 12. Accordingly, the Criminal Appeal is allowed setting aside the judgment dated 12-02-2004, in C.C. No. 659 of 2001, on the file of the III Metropolitan Magistrate, Visakhapatnam. The matter is remitted to the trial Court with a direction to decide the point involved in accordance with law and dispose of the same after giving due opportunity to both parties. Observations, if any, made in this appeal are only for the purpose of disposal of the present appeal and uninfluenced by any of the observations, the trial Court shall dispose of the case. --------------------- K.C.BHANU, J DATED: 16-11-2009 Hsd