THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA CRIMINAL REVISION CASE No.2020 OF 2010

ORDER:

This Criminal Revision Case is filed aggrieved by the judgment, dated 25.10.2010, rendered in Crl.A.No.161 of 2010 by the learned Special Judge for Trial of Offences under SCs. & STs. (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, whereby, the conviction of the petitioner-accused No.1 of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’) and sentence to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.5,000/- and in default to suffer simple imprisonment for a period of 15 days, recorded in the judgment, dated 22.04.2010, in C.C.No.347 of 2007, on the file of learned X Additional Chief Metropolitan Magistrate, Secunderabad, were confirmed.

2. Notice sent to respondent No.2 to the address available on record, is returned with an endorsement “Item returned addressee left without instructions”. Hence, notice is deemed to have been served on respondent No.2.

3. Since learned counsel for the petitioner failed to appear, Amicus Curiae was appointed in this case and on hearing the Amicus Curiae and the learned Additional Public Prosecutor for respondent No.1, the matter is being decided.

4. The brief facts of the case are that the petitioner-accused No.1 and accused No.2 are father and son. They approached respondent No.2-complainant for a hand loan of Rs.3,00,000/- and promised that they would return the amount very shortly. Respondent No.2 advanced the said amount to the accused. But, the accused failed to return the said amount. On persistent demands, the accused issued cheque bearing No.042218, dated 13.10.2006, for Rs.1,00,000/- of Edukondala Venkateshwara Waddara Labour Contractor Co-operative Society Limited drawn on Co-operative Central Bank Limited, Hyderabad, towards part payment, since the petitioner and accused No.2 are President and Secretary to the said Society. When the said cheque was presented, the same was returned on 16.10.2006 with a Memo stating ‘Insufficient Funds”. Thereafter, on 09.11.2006, respondent No.2 got issued a legal notice to the accused demanding to pay the amount covered under the said cheque within 15 days from the date of receipt of the said notice. In spite of receiving the said legal notice, the accused have neither paid the amount nor given any reply. Hence, the present complaint is filed. Thereafter, the case was taken cognizance under Section 138 of NI Act by the learned X Additional Chief Metropolitan Magistrate, Secunderabad, and numbered as C.C.No.347 of 2007. The trial Court, upon considering the evidence on record, came to the conclusion that respondent No.2-complainant failed to prove the guilt of accused No.2 and accordingly, acquitted accused No.2. However, the trial Court observed that respondent No.2-complainant could make out the case against the petitioner-accused No.1 for the offence under Section 138 of NI Act and found the petitioner-accused No.1 guilty of the offence punishable under Section 138 of the NI Act and accordingly, convicted and sentenced the petitioner as stated above. Aggrieved by the same, the petitioner-accused No.1 preferred Crl.A.No.161 of 2010 and the appellate Court, considering the evidence on record, confirmed the judgment of the trial Court. Challenging the same, the present Criminal Revision Case is filed by the petitioner-accused No.1.

5. Learned Amicus Curiae for the petitioner submitted that the cheque alleged to have been issued by the petitioner-accused No.1 does not belong to the petitioner, as it is given in the capacity of President of Edukondala Venkateshwara Waddara Labour Contractor Co-operative Society Limited, but not in his personal capacity. She further submitted that accused No.2 was the Secretary of the said Society. The trial Court has acquitted accused No.2, but has convicted the petitioner-accused No.1, which is not just and proper. She