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TMI Blog2023 (10) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment, dated 20.06.2007, wherein the learned Magistrate found the respondent/accused not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act') and accordingly acquitted him under Section 255(1) Cr.P.C. 2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience. 3. The case of the complainant, in brief, according to the averments in the complaint is that accused joined as subscriber in one of the Chits conducted by complainant in Chit Group No. KCS- 1C/11 on 11.10.1999 for the chit value of Rs. 1,00,000/- payable in 25 monthly installments at the rate of Rs. 4,000/- p.m. commencing from 18.07.1999 and terminati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived by the accused on 16.01.2002, but the accused never paid the amount nor sent any reply. Hence, the complaint to prosecute the accused for issuing a cheque without having sufficient funds in his account. 4. The learned Magistrate took the case on file under Section 138 of the NI Act. 5. After following the procedure under Section 207 Cr.P.C and on appearance of the accused, copies of case documents were furnished to him under Section 207 Cr.P.C. The accused was examined under Section 251 Cr.P.C. for which he denied the offence, pleaded not guilty and claimed to be tried. 6. The complainant, to bring home the guilt against the accused, examined the Manager of the complainant Company as PW.1 and got marked Exs.P-1 to P.10. 7. After c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel, representing Sri K. Subrahmanyam, learned counsel for the 1st respondent/accused, would contend that the complainant did not file account copy before the trial Court to show the amount due by the accused as on the date of Ex.P-1 and, on the other hand, the suit filed by the complainant before the learned I Additional Senior Civil Judge, Kakinada was decided by holding that the amount due was only Rs. 25,000/- and, if that be the case, issuance of Ex.P-1 in the manner as alleged is highly doubtful. Accused examined himself as DW. 1 to contend that the complainant obtained Ex.P-1 in accordance with some other transaction but not relating to the chit transaction alleged against him. The learned trial Judge with elaborate reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount per month after the accused took the prized amount was Rs. 4,000/-. Ex. P-7 discloses that if a subscriber commits default consecutively for three installments, the complainant had every cause of action to terminate the chit agreement and to recover the amount in lump sum. So, Ex.P-1 was subsequent to completion of the chit auction successfully by the accused. It is not understandable as to why the complainant kept quiet without availing the legal remedies when the accused committed default for three consecutive installments. Under the circumstances, it is the duty of the complainant to connect Ex. P-1 with that of a legally enforceable debt. It is quietly evident that from the evidence that when the complainant filed a suit in O.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter with any unreasonable grounds. 15. Having regard to the above, I am of the considered view that there are no reasons whatsoever to interfere with the judgment in Calendar Case No. 101 of 2002, dated 20.06.2007, on the file of the Court of III Additional Judicial Magistrate of First Class, Kakinada. The complainant miserably failed to prove the offence under Section 138 of the NI Act against the respondent/accused beyond reasonable doubt. 16. POINT No.3: In the result, the Criminal Appeal is dismissed as such the judgment in Calendar Case No. 101 of 2002, dated 20.06.2007, on the file of the Court of III Additional Judicial Magistrate of First Class, Kakinada stands confirmed. Consequently, Miscellaneous Applications pending, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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