THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL REVISION CASE No.754 of 2011

ORDER:

The present criminal revision case is filed under Sections 397 and 401 of Cr.P.C aggrieved by the Judgment dated 23.03.2011 passed in Crl.A.No.431 of 2009 on the file of the II Additional Metropolitan Sessions Judge, Hyderabad (for short ‘the appellate Court’) confirming the judgment dated 24.11.2009 passed in C.C.No.119 of 2008 on the file of the learned XVI Additional Judge-cum-XX Additional Chief Metropolitan Magistrate at Hyderabad (for short ‘the trial Court’).

2. Heard and perused the record.

3. The petitioner is accused and respondent No.2 is complainant before the trial Court. For the sake of convenience hereinafter parties are referred to as the complainant and the accused.

4. The case of the complainant in brief is that the accused entered into an agreement of sale (Ex.P1) dated 06.12.2003 for sale of Plot No.62 in Sy.No.3 and 4 part, admeasuring

289 Sq. Yards, situated at Salarjunj kancha (v) Pravathpur, G.P., Ghatkesar Mandal, Ranga Reddy District for a sale consideration of Rs.3,75,700/- and the complainant has paid sale consideration of Rs.3,00,000/- on different occasions in cash and by way of cheques and the cheques issued by the complainant were encashed by the accused. The further case of the complaint is that on verification he came to know that the accused has no title over the property and she is not the owner of the plots sold. When the complainant approached with a demand for return on the consideration of Rs.3,00,000/- already paid, the accused has promised to return the same and on persistent demands issued two post dated cheques bearing Nos.268497, dated 10.05.2005 for Rs.1,50,000/- (Ex.P2) and another cheque bearing No.268498, dated 30.06.2005 for Rs.1,50,000/- (Ex.P10) and both cheques were drawn on HDFC Bank, Himayathnagar. Complainant presented Ex.P2 cheque through his banker Central Bank of India, Koti on 10.05.2005 for realization of cheque amount but the cheque was returned unpaid with an endorsement “Account Closed” and the cheque return memo is Ex.P3, showing the return of cheque as “Account Closed”.

The complainant further claimed that since the first cheque Ex.P2 was returned due to closure of account, he did not present the second cheque Ex.P10 for collection but got issued legal notice dated 25.05.2005 informing the dishonour demanding return of cheque amount. The notice sent through Regd. post neither returned with endorsement nor claimed and notice sent under certificate of posting did not come back and deemed to have been received by the accused. Further accused failed to pay the amount, within 15 days contemplated under the Act and thus liable for prosecution and punishment in terms of under Section 138 of N.I. Act.

5. The case was taken on file and in due course, the trial went on. On behalf of the complainant, he examined himself as PW.1 and got marked Ex.P1 to P10. Accused examined herself as DW.1. and no documents were marked.

6. After appreciating the oral and documentary evidence on record, the trial Court has passed the Judgment dated

24.11.2009 in C.C.No.119 of 2008 which reads as under:

“37. I am of the opinion the accused failed to rebut the presumption under Section 139 of Negotiable Instruments Act and complainant established beyond reasonable doubt that Ex.P2 cheque was issued by the accused in favour of complainant towards discharge of legally enforceable liability and the same was returned with an endorsement as ‘account closed’ and there is no evidence by the accused that she was having sufficient amounts in her account to honour the cheque and accused refused to receive the legal notice and has not claimed the same and has not paid the cheque amount though the notice sent under certificates of posting deemed to have been served on her. Hence complainant established the ingredients for the offence under Section 138 of Negotiable Instruments Act. Hence accused is liable for conviction.

38. In th