APHC010441022011 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3560]

(Special Original Jurisdiction)

FRIDAY,THE TWENTY EIGHTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 901/2011 Between:

1. PENUMARTHI ABBAI, S/O SATHIRAJU, PROPRIETOR SRI VIJAYA DURGA TRADERS, VETLAPALEM, SAMARLAKOTA MANDAL, E.G.DIST.

...PETITIONER AND

1. MADDALA VENKATA SATYANARAYANA THE STATE OF A P, S/O NARAYANA MURTHY, CULTIVATION R/O 4-6-80, KOLAVARI VEEDHI, SAMARLAKOTA MANDAL, E.G.DIST.

2. THE STATE OF ANDHRA PRADESH, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, HYDERABAD.

...RESPONDENT(S):

Revision filed under Section 397/401 of Cr.P.C., praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to allow the present Crl.R.C., by setting- aside the Judgment dated 07.04.2011 passed by the Court of the VII Addl. Sessions Judge, Kakinada, E.G.Dist., in Crl.A.No.165 of 2008 confirming the Judgment dated 15.05.2008 passed by the Court of the III Addl. Judl. First Class Magistrate, Kakinada, E.G.Dist., in C.C.No. 188 of 2006.

IA NO: 1 OF 2011(CRLRCMP 1347 OF 2011 Petition under Section 151 C.P.C praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the conviction and sentence imposed in the Judgment dated 07.04.2011 passed by the Court of the VII Addl. Sessions Judge, Kakinada, E.G.Dist., in Crl.A.No.165 of 2008 confirming the Judgment dated 15.05.2008 passed by the Court of the III Addl. Judl. First Class Magistrate, Kakinada, E.G.Dist., in C.C.No.

188 of 2006, and consequently enlarge the petitioner on bail.

Counsel for the Petitioner:

1. P DURGA PRASAD Counsel for the Respondent(S):

1. SATYANARAYANA NIMMALA

2. PUBLIC PROSECUTOR The Court made the following:

THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 901/2011

O R D E R:

Being aggrieved by and dissatisfied with the finding by the learned Courts below in a proceeding under Section 138 of the Negotiable Instruments Act (for short N.I Act), against the petitioner, whereas the learned Courts below found the Petitioner guilty for the offence of dishonor of Cheque, the instant Criminal Revision Case has been preferred.

2. Learned Counsel for the petitioner has raised points of illegality of the Orders passed by the learned Courts Below as follows:-

i. Mandatory notice under section 138 of the N.I Act was ot served on the Appellant.

ii. The so-called demand notice does not reflect the specific term that the payment has to be paid within a period of 15 days.

iii. A lump-sum amount was demanded which is over and above to the chque amount.

3. POINT No.1: On point No.1 learned Counsel for the petitioner submits that during Trial before jurisdictional Magistrate, the copy of legal notice was marked as Ex.P.5 and postal receipt was marked as Ex.P.6, but no track report was placed on record before the learned Magistrate, which can prove it was received or served upon the Petitioner. He taken the ground that the demand notice was not at all served upon the petitioner. Learned Counsel for the Respondent No.1 raised an objection and submits that the issue has already been settled by the Trial Court, now the said issue cannot be re-adjudicated i. Having heard the learned Counsel for the parties, it appears that the present Petitioner being the accused person appeared before the learned Courts Below and never raised point that the demand notice was not served upon him. However, the demand notice was exhibited and postal receipt was also exhibited. During the course of Trial, the petitioner has not raised any objection regarding exhibiting those documents. At this juncture, this Revisional Court cannot enter into the finding or merits of the matter decided by the learned Courts below. Moreover, this issue was never raised before the learned Trial Court or before