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TMI Blog2006 (4) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... by the complainant through P.W. 1, who has been duly authorised by a power of attorney document, Ex. P, 1, Ex. P. 2 is the letter of request given by the accused to the complainant for discounting a bill of exchange for a value of ₹ 15,00,000/-. The bill is marked as Ex. P.3. The delivery chalan is marked as Ex. P,4. The bill of exchange is Ex. P.5. The accused also issued a cheque dated 7-2-1996 for an amount of ₹ 15,00,000/- drawn on Vijaya Bank, Somajinguda, Hyderabad, which is marked as Ex. P. 6. Thereafter, the complainant was about to present the above said cheque on 7-2-2006, the accused requested to defer for some time. On 16-3-1996 a part payment of ₹ 2,00,000/- was made by the accused. When the complainant deposited the cheque, Ex. P.5 on 3-5-1996 in their Bank the same was returned on the ground of "insufficient funds". The Bank Memo is Ex. P.7 and Debit Advice is Ex. P.8. Thereafter, he has sent a registered legal notice, Ex. P. 9, demanding the accused to settle the amount due to dishonour of cheque as contemplated under Section 138 of the Negotiable Instruments Act. Ex. P. 10 to 12 are the acknowledgments for the receipt of the legal notice, Ex. P9 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing any notice to the accused has deposited the cheque, Ex. P.6 for ₹ 15,00,000/- and the said act of the complainant also affects the complainant's case. (iii) Yet another reason given by the learned Magistrate while acquitting the accused is that the complainant has not sent the statutory notice within the stipulated period has contemplated under Section 138 of the Act. It is observed by the learned trial Magistrate that the bank intimation, Ex. P.8 regarding the dishonour of cheque received by the complainant on 10-5-1996 and the complainant said to have sent the registered legal notice within a period of 15 days from the date of receipt of the written Bank Memo viz. 25-5-1996. The learned Magistrate also held in this case that the notice, Ex. P.9, dated 23-5-1996 was sent on 24-5-1996. But the perusal of Ex. P. 10 to P. 12 show that Ex. P.9, notice was sent only on 27-5-1996 and 28-5-1996 respectively and therefore, the complainant has not sent the statutory notice within the stipulated period as contemplated under Section 138 of the Act and therefore, the learned Magistrate held that the complaint is not maintainable which is against the provisions of Section 138 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. Ex. P9 was not sent within the time limit from the date of receipt of the bank intimation as contemplated under Section 138 of the Negotiable Instruments Act and therefore, the entire proceedings is vitiated and the non-compliance of such mandatory requirement is fatal to the case of the complainant. 11. I have given my careful consideration to the rival contentions put forward by either side. 12. I have perused the entire records both evidence as well as the exhibits. The entire perusal of the records shows that the accused admitted his liability to the extent of ₹ 13,00,000/-. The only grievance of the accused is that he is liable to pay ₹ 13,00,000/- out of ₹ 15,00,000/- as he has already paid ₹ 2,00,000/-. Therefore, the complaint filed on the basis of the return of the cheque, Ex. P.6 for an amount of ₹ 15,00,000/- and therefore the complaint itself is not maintainable as there is no legally enforceable liability on the part of the accused to the tune of ₹ 15,00,000/-. Such defence plea of the accused is unsustainable in law. The learned Counsel for the appellant has rightly placed reliance on the decision of this Court rendered by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resented the cheque, Ex. P.6 for ₹ 15,00,000/- which affects the case of the complainant is also contrary to the facts and materials available on record. The learned Magistrate failed to consider that the accused has miserably failed to establish such a plea that he had made a request for further time in settling the dues. But he has not produced any documents in support of his version. It is also relevant to note that P.W. 1 has categorically stated in his cross-examination that he has not received any written request by the accused requesting the complainant to wait for two more weeks for presenting the cheque. Ex. P. 13 is the reply sent to the statutory notice, Ex. P.9. In that reply, the accused has admitted his liability to the extent of ₹ 13,00,000/- as he has already paid an amount of ₹ 2,00,000/-. It is also further mentioned in that reply notice that the complainant agreed to receive the amount in installments. It is relevant to note that there is absolutely nothing mentioned in Ex. P13, the reply sent by the accused to the statutory notice that the accused has requested the complainant to wait for presenting the cheque. Therefore, the finding given by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot sent within the time prescribed under Section 138 of the Act is on the fare of it contrary to the facts. The learned Magistrate has misread the documents viz., Exs. P. 10 to 12. 15. It is well settled that in an appeal against acquittal if the learned trial Judge overlooked any material evidence or misread any evidence and if the findings are not based on the materials available on record then the interference in the order of acquittal is justified by this Court. Therefore, this Court is left with no other alternative except to allow the appeal and to set aside the order of acquittal and to convict the accused. 16. At this juncture, the learned Counsel for the respondents/accused submitted that the Company was already declared as "Sick" in the year 2004. It is further submitted by the learned Counsel for the respondents/accused that there was no running business for the last more than five years. It is also submitted by the learned Counsel for the respondents/accused that the respondents are not having enough source of income, as a result of which, they are suffering. The learned Counsel further brought to the notice of this Court that the third respondent/third accused, died ..... X X X X Extracts X X X X X X X X Extracts X X X X
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