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TMI Blog1998 (11) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Criminal Appeal. 3. The brief facts of the complaint are as follows: The Complainant who is the 1st respondent, is represented by its Accounts Officer Mr. P.S. Rao. It is stated that the 1st respondent-company is registered under the Companies Registration Act. It is a joint venture of the Government of Andhra Pradesh and IFFCO. The Company manufactures DAP and also deals in other composite fertilizers like Urea, Calcium etc. It has its Regional Marketing office at 40-7-27/A/2, Mogalrajapuram, Vijayawada. Accused No. 2 is representing the Accused No. 1 Rice and Flour Mill. They are doing business in fertilizers and pesticides. They are having a continuous running account with the Complainant-Company. The accused felt in ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 138 of Negotiable Instruments Act is made out and sentenced Accused No. 2 who is the Proprietor of Accused No. 1 Rice Flour Mill, to undergo Rigorous Imprisonment for a period of one month and to pay a fine of Rs.5,000/-, in default, to undergo Imprisonment for one month. 6. Against the said Judgment and sentence the present Appeal is filed. 7. The complainant, as stated earlier, filed Criminal Revision Case on the question of adequacy of the sentence passed. 8. Since both the matters are connected they are being disposed of by this Common judgment. 9. There is no dispute in the fact that the accused are the customers of the complainant. The issuance of the cheque (Ex.P1 dated 5-10-1991) in favour of the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were to pay the entire amount of Rs.8,21,029.12 in four instalments and a sum of Rs.2,71,029.12 is payable on or before 31-12-1991 towards the first instalment and that the Head Office demanded the accused to pay the first instalment as per Ex.D1, the terms of which are proposed by the accused themselves. This indicates that the complainant-Company itself had agreed for the entire amount to be paid in four instalments and the first instalment was to be paid on or before 31-12-1991. In such a case, the liability to pay in lumpsum in lieu of which, Ex.P1 was issued is wiped out and in its place the terms of Ex.D1 were constituted. When the complainant itself was insisting upon payment of the amount due in instalments, it does not lie in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted upon. PW1 clearly stated that the Company/1st respondent wrote letter on 28-12-1991 demanding payment of first instalment. This clearly indicates that the terms of Ex.D1 were accepted by the 1st respondent-Company and they were acting upon those terms. The contention that PW1 was not authorized to speak of Ex.D1 is also devoid of any merit. PW1 is representing the complainant- Company. Therefore, the complainant-Company cannot turn round and say that the evidence of PW1 in respect of Ex.D1 is not binding on them. 14. The lower Court applied the rule of thumb that once the cheque is issued and it is subsequently dishonoured, the offence under Section 138 of Negotiable Instruments Act is made out. This is erroneous. When the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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