THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.309 OF 2005 Dated:10.11.2009 Between: Pasupuleti Sambasiva Rao .. Appellant And Gopaluni Venkata Satya Narasimha Rao and another .. Respondents JUDGMENT: The acquittal of the accused in C.C.No.196 of 2001 on the file of the I Additional Judicial Magistrate of First Class, Tenali, by the judgment, dated 11.10.2004, led the complainant therein to file the present appeal. The case of the complainant is that the accused borrowed Rs.45,000/- from him on 05.06.2000 under a pronote agreeing to repay the same with interest at 24% per annum with yearly rests and towards part payment towards the said debt, the accused issued a cheque for Rs.45,000/- on 12.04.2001, which was dishonoured on presentation, due to insufficiency of funds. In spite of a statutory notice issued on 23.04.2001, the accused failed to pay and hence committed an offence punishable under Sections 138 of the Negotiable Instruments Act and 420 of the Indian Penal Code. The complaint was taken on file by the trial Court only under Section 138 of the Negotiable Instruments Act and the accused was examined under Section 251 Cr.P.C., after his appearance, and after furnishing of copies to him, he pleaded not guilty to the said offence and during trial, PWs.1 to 4 were examined and Exs.P1 to P8 were marked. The accused denied the incriminating circumstances appearing against him, when he was examined under Section 313 Cr.P.C., and he has no defence evidence. The trial Court rendered the impugned judgment noting that Ex.P1 pronote and the evidence of PWs.1 and 2, apart from the decree in O.S.No.661 of 2002 show that the accused borrowed Rs.45,000/- from the complainant and issued the subject cheque which was dishonoured. However, the trial Court found that the accused issued a cheque from the cheque book pertaining to the Panchayatraj Department, in which he was working and the requirement under Section 138 of the Negotiable Instruments Act is about a cheque being drawn by a person on an account maintained by him with a banker. Therefore, depending on the precedents cited before it, the trial Court concluded that the non-maintenance of his account by the bank makes an offence under Section 138 of the Negotiable Instruments Act no proved against him. Consequently, it acquitted the accused. The complainant contended in this appeal that once the signatures on the bounced cheque were admitted by the accused, the learned Magistrate should have convicted him not only under Section 138 of the Negotiable Instruments Act, but also under Section 420 of the Indian Penal Code. Heard Sri Mohd.Saleem, learned counsel for the appellant and Sri P.Srinivasulu, learned counsel for the accused/respondent No.1 apart from Ms. E.Shanthasree, learned counsel representing the learned Public Prosecutor. The point for consideration is whether an offence under Section 138 of the Negotiable Instruments Act was proved beyond all reasonable doubt against the accused? POINT:- Though the complaint was filed alleging committal of offences under Sections 138 of the Negotiable Instruments Act and 420 of the Indian Penal Code, the case was taken on file by the trial Court only under Section 138 of the Negotiable Instruments Act. While the facts are not in dispute that it was proved that the accused borrowed Rs.45,000/- from the complainant and issued the subject cheque towards part payment, it is also not in dispute that the subject cheque belonged to the department of the State Government in which the accused was working and was not relating to any account maintained by the accused with any bank. While the decree of O.S.No.661 of 2002 on merits by the competent civil Court, proves beyond reasonable doubt the existence of the debt and the issuance of the cheque towards part payment, the basic requirement under Section 138 of the Negotiable Instruments Act is that the cheque should have been drawn by the accused on an account maintained by him with a banker, and the present cheque does not answer the said description. As such, irrespective of other considerations, the conclusion of the trial Court about the non-liability of the accused for an offence under Section 138 of the Negotiable Instruments Act due to his non- maintaining any account in the subject bank and due to the subject cheque not belonging to him cannot be considered to be inappropriate or incorrect. Learned counsel for the appellant seeks to contend that the admitted and proved facts undoubtedly make an offence under Section 420 of the Indian Penal Code, but as the complaint was not taken cognizance for such an offence and the accused was not found guilty for such an offence, no expression of opinion can be made on such a contention herein. If the complainant is entitled under law to pursue any remedies in respect of any such offences, it will be open to him to pursue the same and it will also be open to the accused to defend himself in accordance with law. Without expressing any opinion on such extraneous matters, the present appeal has to fail. In the result, the Criminal Appeal is dismissed. ___________________ G. BHAVANI PRASAD, J 10th November 2009 KH