THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1415 of 2004 JUDGMENT: This Criminal Revision Case is preferred by the petitioner- complainant challenging judgment dated 10.12.1998 passed by the I-Additional Sessions Judge, Guntur, in Crl.A.No.186 of 1995, whereby and whereunder conviction and sentence imposed against the A-1 and A-3 in C.C.No.28 of 1990 dated 06.07.1995 by the learned Munsif Magistrate, Chilakaluripet, was set aside. The case of the complainant, in brief, is as follows: The complainant is a company dealing in the business of manufacture and sale of cotton, cotton seeds and oil products, and it is represented by its Director-PW.1, whereas the petitioners/ A1 & A3 and A2 in the case, who are brothers and traders in cattle and poultry feeds and also partners in a partnership Firm under the name and style of “Thumbulur Traders”, used to purchase groundnut and cotton seed extractions from the complainant from time to time. While so, during the course of their business, the accused fell due amount to the complainant and, in order to discharge the due amount, they issued six cheques drawn on Andhra Bank, Nellore, on 15.12.1989 for an amount of Rs.2,26,998-73, in total. However, when the complainant presented those cheques for encashment on 15.12.1989 itself in Central Bank of India, Chilakaluripet, all the cheques were returned with an endorsement “refer to drawer” on 18.12.1989, which amounts to dishonour or bouncing of the cheques. Thereupon, the complainant issued a notice to the accused on 26.12.1989 i.e., within 15 days from the date of dishonour of cheques intimating them about the dishonour of cheques and calling upon them to pay the amount due, and the accused, in spite of receiving the notice on 28.12.1989, did not choose to pay the amount due under the cheques within 15 days as contemplated under law. Hence, the complainant filed the present private complaint against the accused, for the offence punishable under Sections 138 and 142 of the Negotiable Instruments Act, before the concerned Court. After recording the sworn statement of the complainant represented by its Director, the case was taken on file as C.C.No.28 of 1990 against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and summons were issued to the accused, and subsequently, the case against A-2 was separated as per docket order dated 27.09.1991 of the trial Court. The respondents 1 and 2/A-1 & A-3 were tried for offence punishable under Section 138 of the Negotiable Instruments Act and were found guilty of committing the offence and were accordingly convicted under Section 255(2) Cr.P.C. and sentenced to undergo simple imprisonment for a period of one year and directed to pay a fine of Rs.2,26,998.73 ps. being the amount under the cheques and in default of paying the fine to undergo simple imprisonment for a period of two years, whereas aggrieved by the same, A-1 & A-3 preferred the Criminal Appeal No.186 of 1995 whereby the learned I-Additional Sessions Judge, Guntur, on consideration of the material available on record, allowed the appeal by judgment dated 10.12.1998 setting aside the conviction and sentence imposed by the trial Court against A-1 & A-3. Aggrieved by that, the complainant preferred the present criminal revision case. For the sake of convenience, I refer the parties as arrayed before the trial Court. It is the contention of the learned counsel for the revision petitioner/complainant that there was proper service of notice upon A-1 and A-3, but the appellate Court has erroneously gave a finding that the case of the complainant failed observing that the accused were arrayed in their individual capacity and neither the Firm of the accused is made as a party nor the accused in this case were described as the partners of the Firm and also observed that none of the accused issued Exs.P1 to P6 disputed cheques in their individual capacity. It is the further contention of the learned counsel for the complainant that the accused issued the cheques for and on behalf of their Firm and, therefore, the question of prosecuting the Firm does not arise and the trial Court has properly appreciated the matter and rightly convicted the accused, whereas the acquittal recorded by the appellate Court is liable to be set aside and the matter may be remanded to the appellate Court for fresh consideration. The point for consideration is whether the findings recorded by the appellate Court are liable to be set aside? POINT: It is pertinent to note here that it is the claim of the complainant company that the accused, being the partners of the Firm under the name and style of “Thambuluru Traders”, used to purchase groundnut and cotton seed extractions from it, and initially, they used to pay the sale consideration within one month from the date of sale, but after October, 1989, they started delaying the payments. It is the further case of the complainant that in order to discharge the amount due to it, the accused issued six cheques dated 15.12.1989 for Rs.2,26,998.73 ps., in total, and when those cheques were presented before the concerned Forum, they were returned with an endorsement “refer to drawer” on 18.12.1989. Thereupon, after complying with the legal requirements of Section 138 of the Negotiable Instruments Act, the present complaint is filed before the trial Court. As seen from the judgment of the appellate Court, it is to be noticed that the grounds on which the judgment of the trial Court was set aside were that (1) the complainant neither produced an iota of evidence regarding the registration of its company nor the right of PW.1 to file the present complaint on behalf of the company, (2) the accused were arrayed in their individual capacity and not as partners of the Firm and even the Firm of the accused is not made as one of the accused in this case, (3) none of the accused issued Exs.P1 to P6 cheques in their individual capacity and (4) though statutory notice was issued to the Firm, no notice was issued to the accused. Perused the entire material placed on record. PW.1 has not filed any relevant material showing his authority to represent the complainant company in the matter. Further, it appears that the cheques in question were issued in the name of the Firm of the accused, but the Firm is not added as a party in this case. Thus, I am of the considered opinion that the appellate Court has properly appreciated the matter and I do not find any reason to interfere with the findings of the appellate Court. In the result, the Criminal Revision Case is dismissed. ___________________________ G.KRISHNA MOHAN REDDY,J 14.07.2011 v v