JUDGMENT :

G. SRIDEVI, J.

1. This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 against the judgment, dated 03.01.2013, passed in Crl. Appeal No. 269 of 2010, wherein the learned IV-Additional Metropolitan Sessions Judge, Hyderabad, confirmed the judgment, dated 26.07.2010, passed in C.C. No. 326 of 2008 on the file of the XIV-Additional Judge-cum-XVIII-Additional Chief Metropolitan Magistrate at Hyderabad.

2. The facts of the case are as under:

The 1st respondent herein, who is the complainant before the trial Court, filed a private complaint under Section 200 Cr.P.C. against the revision petitioner/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, stating that he was doing business in gold jewellery and supplies the same to various traders; that the revision petitioner/accused approached him in September, 2004 and requested him for a hand loan of Rs. 32.00 lakhs for his business purposes with a promise to repay the same within a short time; that between September, 2004 and November, 2004, the 1st respondent/complainant gave an amount of Rs. 32,00,000/- on various occasions to the revision petitioner/accused; that, on 30.07.2005, the revision petitioner/accused executed a Memorandum of Understanding promising to repay the amount as per the terms and conditions mentioned in the said Memorandum of Understanding and issued three post dated cheques, one cheque for Rs. 5,00,000/- and two cheques for Rs. 1,00,000/- each towards discharge of the said debt and that when the said cheques were presented for encashment, the same were dishonoured on 24.11.2005 on the ground that the revision petitioner/accused issued instructions to the banker to stop payment. Therefore, the 1st respondent/complainant got issued notice, to which the revision petitioner/accused gave a reply with false contents. As such, the 1st respondent/complainant filed a complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’).

3. On behalf of the 1st respondent/complainant, PWs. 1 and 2 were examined and Exs.P1 to P12 were marked. On behalf of the revision petitioner/accused, DWs. 1 and 2 were examined and Exs.D1 and D2 were marked.

4. The trial Court, after considering both the oral and documentary evidence found the revision petitioner/accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and accordingly convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation of Rs. 10,000/- to the 1st respondent/complainant, in default, to undergo simple imprisonment for three months. Aggrieved by the same, the revision petitioner/accused preferred Crl. Appeal No. 269 of 2010 before the IV-Additional Metropolitan Sessions Judge, Hyderabad. Vide judgment, dated 03.01.2013, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial Court.

5. None appears on behalf of the 1st respondent/complainant. Heard learned Counsel for the revision petitioner/accused, learned Assistant Public Prosecutor appearing for the 2nd respondent/State and perused the record.

6. Learned Counsel for the revision petitioner/accused would submit that the 1st respondent/complainant has no capacity to lend such a huge amount of Rs. 32.00 lakhs. It is further submitted that the 1st respondent/complainant, who was examined as PW-1, has admitted in his evidence that though he was an income tax assessee, the returns were not filed in the Court and he did not know whether the present transaction was shown in his income tax returns or not and that his income is only Rs. 20,000/- to Rs. 30,000/- per month. It is further submitted that when the revision petitioner/accused disputed the financial capacity of the 1st respondent/complainant, the burden shifts on the 1st respondent/ complainant to prove the same. It is also submitted that the