HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4016 of 2009 DATE: 19.08.2010 Between: A. Ramachandra Babu …… Petitioner. And: The State of AP., rep. by its PP and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4016 of 2009 ORDER: 1. The petitioner is accused of offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act) in C.C.No.17 of 2009 on the file of Judicial Magistrate of the First Class, Mahaboobnagar. It is alleged that the accused borrowed Rs.5,00,000/- from the complainant/2nd respondent for his family legal domestic necessities on 18.08.2007 promising to repay the said hand loan amount within six months and that when the complainant was requesting the accused to pay the said hand loan, the accused issued the cheque for Rs.5,00,000/- drawn on State Bank of India, Banjara Hills Branch, Hyderabad to the complainant towards hand loan amount. After dishonour of the cheque when presented for encashment, the complainant gave statutory notice to the accused demanding payment and the accused got issued reply therefor and the complainant again got issued rejoinder notice. 2. It is contended by the petitioner’s counsel that the dishonoured cheque was not drawn by the accused on his account with the bank and that the said cheque was drawn on account of Sai Vikas Educational Society of which the petitioner is the Secretary and Correspondent and that therefore for dishonour of cheque relating to the Society, the petitioner cannot be prosecuted in person. In the reply notice dated 04.04.2008 the accused mentioned the fact that the accused is not holder of the account and that the account originally belongs to Sai Vikas Educational Society for which the accused was acting as President. In the rejoinder notice dated 21.04.2008 the 2nd respondent/complainant specifically denied the said fact to the effect that it is false to allege that the issued cheque by the accused belongs to Sai Vikas Educational Society. As the matter now stands, there is nothing on the cheque to show that it was drawn on the account of the society. Admittedly, the cheque contains signature of the accused. It was not stated on face of the cheque that the accused was signing the said cheque on behalf or representing Sai Vikas Educational Society either as President or Secretary or Correspondent. There is no indication on the dishonoured cheque that the said cheque pertains to the account of the society. The question as to who was the account holder pertaining to that cheque, is one of fact, which this Court cannot go into and decide in this petition under Section 482 Cr.P.C. 3. Secondly, it is contended that it is basic requirement under Section 138 of the Act that the cheque should have been drawn by the accused on his own account. In Jugesh Sehgal v. Shamsher Singh Gogi[1] the Supreme Court noticed the first ingredient required to constitute an offence under Section 138 of the Act is that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account. It was further observed therein that there is little doubt that if the very first ingredient of Section 138 of the Act is not satisfied, an offence under Section 138 of the Act cannot be proved. Basing on the said observations of the Supreme Court, it is contended by the petitioner’s counsel that it is imperative for the complainant to incorporate the said fact situation in the complaint in order to maintain the complaint before the criminal court. It is also contended that the Magistrate should not have taken cognisance of the case in a causal manner and should have applied mind as to whether such allegation is made in the complaint. It is alleged in the complaint that the accused had issued cheque bearing No.9474010 dated 27.09.2007 for Rs.5,00,000/- drawn on State Bank of India, Banjara Hills Branch, Hyderabad to the complainant for realisation of hand loan amount. The complaint cannot be read in isolation. It has to be read along with the documents appended to the complaint. The documents appended to the complaint are also part and parcel of the complaint itself. Exchange of notices were appended to the complaint, which include the rejoinder notice containing denial of the petitioner’s allegations in the reply notice. Therefore, in this case, it cannot be said that there is no valid pleading as to existence of statutory facts relating to Section 138 of the Act. 4. The contention of the petitioner that he lost several signed cheques and the present cheque is one of such cheques, is a matter of proof for which the burden is on the petitioner to be discharged by leading evidence during trial of the matter in the lower court. I see no reasons to interfere with trial of this case in the lower court. 5. Hence, the criminal petition is dismissed. ___________________________________ SAMUDRALA GOVINDARAJULU, J August 19, 2010 GK HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4016 of 2009 Date: 19.08.2010 Gk. [1] 2009 SAR (Criminal) 741 = 2009 (14) SCC 683