THE HON’BLE SRI JUSTICE E.V.VENUGOPAL

CRIMINAL APPEAL No.670 of 2016

JUDGMENT:

This Criminal Appeal is filed by the appellant/complainant under

Sections 374(2) of Cr.P.C. assailing the Judgment dated 05.11.2015 passed in Crl.A.No.499 of 2013 passed by the learned II Additional Metropolitan Sessions Judge, Hyderabad, whereby, the sentence of conviction imposed against respondent Nos.1 and 2/accused Nos.1 and 2 vide Judgment dated 17.10.2012 in C.C.No.103 of 2011 (old C.C.No.21 of 2010) on the file of the Special Magistrate VI, Hyderabad, was set aside and acquitted them for the offence under Section 138 of

the Negotiable Instruments Act, 1881.

2. For the sake convenience, the appellant herein will be referred as complainant and respondent Nos.1 and 2 will be referred as accused

Nos.1 and 2, as they are arraigned before the trial Court. 3. The brief backdrop of the instant case is as follows:

a) the complainant and accused Nos.2 and 3 and two other

persons, namely, Md.Aijaz and Syed Ali Akber have constituted the partnership firm under the name and style as CENTURY 21 i.e., accused No.1 and that they have purchased the land admeasuring Acs.42.12 guntas in Sy.No.193/A, 196, 197, 191, 194, 195, 198 & 200, situated at Palgutta Village, Chevella Mandal, Ranga Reddy District, to

develop and convert the land into housing plots and that all the partners collectively developed the said land and converted into housing plots. Subsequently, differences arose between partners i.e., accused Nos.2 and 3, complainant, Md.Aijaz and Syed Ali Akber and that the complainant and two other persons wanted to retire from the partnership firm i.e., from accused No.1 - Firm. Accordingly, they have entered into a Memorandum of Understanding, dated 03.07.2008, between accused Nos.1 to 3 as First Party and complainant and two other partners as Second Party.

b) As per paragraph No.4 of the Memorandum of Understanding, dated 03.07.2008, in view of their retirement, accused Nos.2 and 3 have agreed to pay an amount of Rs.1,65,00,000/- (Rupees One Crore and Sixty Five Lakhs only) towards the amount invested and for the services rendered by them to the partnership firm and that accused Nos.2 and 3 have issued 12 cheques to the complainant and two other partners duly signed by accused No.2 in the name of accused No.1 and out of 12 cheques, three cheques bearing Nos.133433, dated 26.12.2008 for Rs.15,00,000/-; 133435, dated 26.02.2009 for Rs. 20,00,000/- and 133438, dated 26.05.2009 for Rs.5,00,000/- were issued to the complainant towards his retirement, investment and service rendered by him to the partnership firm.

c) The complainant has further submitted that cheque bearing No.133433, dated 26.12.2008 for Rs.15,00,000/- was presented in HDFC Bank and the same was dishonoured for "insufficient funds" and that as per the instructions of the accused Nos.2 and 3, he has presented the said cheques in HDFC bank, Hyderabad and again the same dishonoured with an endorsement "funds insufficient" vide cheque return memos, dated 23.07.2009.

d) Therefore the complainant got issued legal notice dated

17.08.2009 calling upon the accused Nos.2 and 3 to pay Rs.25,00,000/- towards the cheque amounts covered under Exs.P.2 and P.4 cheques and the same was served on accused Nos.2 and 3 on 19.08.2009 and notice sent to accused No.1 was returned with an endorsement "left". Even after receipt of the said notice, accused Nos.2 and 3 did not choose either repay the said amount or to give any reply.

4. To prove the case of the complainant, he got examined himself as PW.1 and got marked Exs.P.1 to P.11 i.e., Ex.P.1 Memorandum of Understanding, dated 03.07.2008; Ex.P.2 is the cheque bearing No.133435, dated 26.02.2009; Ex.P.3 is cheque return memo; Ex.P.4 is cheque bearing No.133438, dated 26.05.2009; Ex.P.5 is the cheque return memo; Ex.P.6 is the legal notice; Exs.P.7 and P.8 are the acknowledgments; Ex.P.9 is the registered post slip; Ex.10 is the registered post acknowledgment and Ex.P.11 is the c