JUDGMENT :- This criminal appeal is directed against the common judgment dated 24-1998 passed in Criminal Appeal Nos.15 of 1997 and 32 of 1997 on the file of the III Additional Metropolitan Sessions Judge, Hyderabad, whereby and whereunder the learned III Additional Metropolitan Sessions Judge allowed the appeals filed by A3 and AI, A2 and A4 setting aside the convictiolJ and sentence for the offence under Section 138 of the Negotiable Instruments Act passed in C.c. No.622 of 1993 on the file of the V Metropolitan Magistrate, Hyderabad.

2. The appellant-herein is the complainant and whereas the Respondents 1 to 4 are the accused in C.C. No.622 of 1993.

3. The brief facts of the case leading to filing of the complaint by the appellant/ complainant before the V Metropolitan Magistrate, Hyderabad, are:

The appellant and R1 to R3 are the partners in M/s. Simhapuri Builders (R4). Some differences arose between them with regard to partnership business in the year 1992. According to the appellant/complainant, he retired from the partnership firm and thereupon, A 1 to A3 agreed to pay a sum of Rs.3,75,000/- towards his share in the partnership firm and paid cash of Rs.2 lakhs and issued cheques for Rs.1,00,000/-, Rs.50,000/- and Rs.25,000/-dated 5-3-1993. Subsequently, an amount of Rs.25,000/- was paid to the appellant/complainant and upon which, the appellant/complainant returned the cheque for Rs.25,000/-. He presented the cheque for Rs.1,00,000/- on 5-3-1993. The cheque came to be returned for want of funds. On the request of the accused, the appellant/complainant presented the cheque once again on 20-8-1993. The cheque received the same fate. Consequently, he issued a legal notice dated 318-1993 calling upon the accused to make good the amount covered under the cheque in question. Since the accused failed to pay the amount, the appellant/complainant resorted to file complaint before the V Metropolitan Magistrate, Hyderabad. The learned Magistrate took the complaint on file as C.C. No.622 of 93. On appearance of the accused and on examination under Section 251, Cr.P.C., the accused denied the accusation and pleaded not guilty. The appellant/complainant, to substantiate the accusation levelled against the accused, examined himself as P.W.1 and examined one M. Seshagiri Rao, a Field Officer in Bank of Baroda, as P.W.2 and marked 8 documents as exhibits P1 to P8. On behalf of the accused, A1 was examined as D.W.1 and two documents were marked as Ex.D 1 and D2. The learned Magistrate formulated three points for consideration.

1. Whether the complainant retired from the Partnership Firm/Business, whether the cheque dated 5-3-1993 was issued in lieu of the part of the share amount said to be payable to the complainant by the accused?

2. Whether the cheque is barred by limitation by the date of its presentation in the Bank?

3. Whether the accused are liable for punishment under Section 138 of N.I. Act?

4. The learned Magistrate, on considering the evidence on record and on hearing the Counsel for the parties, held all the points in favour of the appellant/complainant and accordingly, found all the accused guilty for the offence under Section 138 of the Negotiable Instruments Act and convicted them accordingly and sentenced them to suffer rigorous imprisonment for six months each and to pay a fine of Rs.35,000/- by A 1 and A4, and whereas A1 and A3 to pay a fine of Rs.35,000/ - each, in default, to suffer rigorous imprisonment for three months each by judgment dated 30-12-1996. Assailing the judgment of conviction and sentence, A3 filed Criminal Appeal No.15 of 1997 and whereas A1, A2 and A4 filed Criminal Appeal No.32 of 1997 on the file of the III Additional Metropolitan Sessions Judge, Hyderabad. The learned III Additional Metropolitan Sessions Judge, on reappraisal of evidence, came to the conclusion that the appellant/complainant failed to prove the existing legally enforceable liability on the date of issuance of cheque in question and t

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