IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE MR JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE NO : 948 OF 2002 Between: Mandha Krupakara Rao S/o Vandanam ..... PETITIONER AND Alpati Kalyan Charan and one another .....RESPONDENTS ORAL ORDER : The petitioner was tried by the 5th Additional Munsif Magistrate, Guntur in CC No. 139 of 1999 for the offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate having considered the evidence of PWs 1 to 3 and Exs P1 to P9 on behalf of respondents and the evidence of DW- 1 and Exs D1 to D8 on behalf of the petitioner herein, came to the conclusion that the offence under Section 138 of the Negotiable Instruments Act, against the petitioner was proved and accordingly sentenced him to undergo Rigorous Imprisonment for a period of six months and further directed him to pay a fine of Rs. 5,000/-, in default to suffer Simple Imprisonment for one month. The learned Magistrate further observed that out of the said fine amount of Rs.5,000/- an amount of Rs. 4,000/- shall be paid to the complainant towards compensation. As against the said judgment, the petitioner preferred Criminal Appeal No. 467 of 2000 and the learned IV Additional Sessions Judge, Guntur while confirming the said sentence by judgment dated 4th July 2002 dismissed the said appeal. Hence, the petitioner approached this Court and filed the present Criminal Revision Case. The case of the complainant/respondent herein is that the petitioner borrowed a sum of Rs. 40,000/- on 5.8.1987 for his expenses and executed the promissory note in favour of the complainant agreeing to repay the said amount with interest at 24% per annum. As the said amount could not be paid despite repeated demands, the petitioner herein issued two cheques dated 6.11.1998 for Rs.20,000/- each. On presentation, the said cheques were returned with an endorsement ‘in sufficient funds’. Pursuant thereto, after following the procedure under Sections 138, and 142 of Negotiable Instruments Act, the said complaint has been filed and the Court below as stated supra convicted the accused. The learned counsel appearing for the petitioner mainly contended that the notices have not been sent and even if it is presumed that they have been sent, they were not received by the petitioner herein and as such, the said complaint itself is not maintainable under Section 138 of the Negotiable Instruments Act. According to her, in this context, the respondent miserably failed to establish that the said notices have been served and as such the Court ought not to have presumed that the said cheques have been issued in discharge of legally enforceable debt. Further, according to her, even according to the complainant, he lent money to so many persons and as such he is in the business of money lending and that he is doing the same without any valid licence as provided for under the A.P. (Telangana Area) Money Lenders Act, 1949 F (for short “Money Lenders Act”). The said submissions were opposed by the learned counsel for the respondent-complainant stating that the telegraph notice sent was served on the petitioner and the same was established beyond reasonable doubt. From a perusal of the judgments impugned in this Criminal Revision Case, this Court is of the clear view that both the Courts below have discussed the said aspects canvassed by the learned counsel for the petitioner. The first notice was issued on 11.11.1998 and the same was not served on the petitioner. Hence, the respondent again issued registered notice and also telegraph notice on 27.11.1998. Ex. P-7 is the certified copy of the telegraphic notice and Ex. P-8 is the acknowledgment. From the above, it is clear that the telegraphic notice has been sent and served on the petitioner. Hence, it cannot be said that the said complaint is filed without following due procedure provided for under Section 138 of the Negotiable Instruments Act. Coming to the aspect that the respondent is a moneylender, it is true that there is evidence that the petitioner lent money and in that context, he received some cheques from the borrower. But from that it cannot be said that the respondent is a moneylender and is carrying on money lending business without any valid licence as provided for under the Money Lenders Act. In fact, the respondent-complainant clearly denied the same and it is for the petitioner to prove that the respondent-complainant is in the business of money lending and is doing the same without any valid licence. Except stating that he is moneylender and is carrying on business without any valid licence, he has not established the said fact by adducing any cogent evidence. In the light of the above discussion, this Court is of the opinion that both the Courts below have rightly concluded that the petitioner has committed the said offence punishable under Section 138 of the Negotiable Instruments Act and accordingly, I see no merits in this Criminal Revision Case. It is stated by the learned counsel for the petitioner that the petitioner was in jail for a period of 15 days. Having regard to the said fact that he was in jail and also taking the fact that the said offence was of the year 1998, this Court takes a lenient view and reduces the sentence to that of the period already undergone. However, in addition to the fine amount that was imposed by the Courts below, the petitioner is hereby directed to pay a further sum of Rs., 5,000/- (Rupees Five Thousand Only) towards compensation as provided under Section 457 Cr.P.C, within a period of eight weeks from the date of receipt of a copy of this order and the said amount shall be paid to the complainant. If the said amount is not paid, it is needless to observe that the petitioner shall undergo the entire sentence as imposed by the Court below. Accordingly, this Criminal Revision Case is disposed of. _______________________________ GOPALA KRISHNA TAMADA, J Dt. 29.03.2010 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2CD copies