THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.R.C.347 OF 2009 ORDER The accused in C.C.No.1996 of 2003 on the file of the Court of XIV Additional Chief Metropolitan Magistrate, Hyderabad was convicted for the offence under Section 138 of the Negotiable Instruments Act,1881 and sentenced to undergo Rigorous Imprisonment for six(6) months and to pay a fine of Rs.2,000/- and in default to undergo Simple Imprisonment for two months, which was confirmed in an appeal viz., Crl.A.No.195 of 2008 on the file of the Court of III Additional Metropolitan Sessions Judge, Hyderabad, is the revision petitioner herein. The case of the prosecution is that the accused, who was a member of a Chit for Rs.5 lakhs and entered into an agreement of chit on 20-02-2001, became successful bidder in the auction held on 25-05-2002 and received the money on 10-07-2002. The accused only paid 18 instalments and committed default and subsequently issued a cheque bearing No.689651 dated 29.07.2003 for Rs.1,50,297/- drawn on ICICI Bank, Sanjeeva Reddy Nagar Branch and when it was presented by the complainant it was dishonoured on the ground of “funds insufficient” and thereafter a legal notice was issued on 12.08.2003 to pay the said amount, but, the accused did not give any reply notice nor pay the amount. Thereafter, a private complaint was filed and after considering the evidence of the complainant and other documents the accused/revision petitioner was convicted and sentenced accordingly. Now the point that arises for consideration is:- Whether the prosecution initiated against the accused and the conviction thereafter is valid? POINT:- Sofar as the issue of the cheque is concerned, according to the evidence of PW.1, the accused was a subscriber and he participated in the auction and has defaulter after 18 months. He issued a cheque which was dishonoured. The cheque is marked as Ex.P-5. In cross- examination, it was only elicited that the accused was a member in other two chits and the statutory notice was also issued by the Advocate but a denial was made by the accused that the accused did not issue any cheque towards part payment of the liability and that no legal notice required under the statute was given to the correct address and Ex.P10 acknowledgment is a fabricated one. It was even not denied in the cross examination of PW.1 that the revision petitioner is a member of chit and he participated in the auction and became highest bidder. The signature on the cheque nor the issuance of cheque are disputed. Therefore, in view of the above circumstances, a valid presumption can be drawn that the cheque was issued for discharge of enforceable liability. The learned counsel for the revision petitioner strongly contended that the prosecution is not valid since the statutory notice was not served to the correct address of the revision petitioner. Strong reliance is placed on Exs.D-2 and D-3, which are said to be chit agreements and also the plaint filed subsequent to the alleged issuance of the cheque whereunder the address of the revision petitioner is shown as “resident of D.No.5-84, Fateh Nagar, Sanath Nagar, Hyderabad’. From this, it is sought to be contended that the legal notice is said to have been sent to the address as resident of Plot No.7, Aparajitha Colony, Ameerpet, Hyderabad is not correct one and consequently the acknowledgment Ex.P-10 is fabricated one. Apparently, the above contention when compared to other documents may appear to be true, but, the fact remains that both the acknowledgments Ex.P-10 contain the signature and the registered postal acknowledgment about the service of the summons in the criminal case also contains the signature of the accused/revision petitioner. The contention that it is a fabricated signature appears to be not believable. The fact that the accused/revision petitioner did not attend before the court and proceedings under Sections 82 and 83 Cr.P.C. were initiated and thereafter Non-bailable Warrant was issued to him and he was produced under the N.B.W is not disputed. The whole claim of the revision petitioner is falsified by the report of the Inspector of Police, Panjagutta while executing the N.B.W. It clearly goes to show that in pursuance of the N.B.W given to the accused showing him as a resident of Plot No.7, Aparajitha Colony, Ameerpet, Hyderabad, he was apprehended on 22-12-2007 at the given address and he was produced before the Court. That being so, the claim of the revision petitioner that no notice was given to his known address or a residential address cannot be accepted and the theory developed is only an after-thought to avoid the prosecution. Therefore, in view of the positive apprehension of the accused in the given address the presumption of service of notice to him can be validly drawn and prosecution cannot be said to be bad and the conviction and sentence imposed by the learned Magistrate, which was confirmed by the appellate court, does not call for any interference. Therefore, there are no merits in the revision and is liable to be dismissed. Accordingly, the Criminal Revision Case is dismissed. The lower court is directed to issue N.B.W for the apprehension of the revision petitioner/accused. _______________________ N.R.L. NĀGESWARA RĀO,J 12-12-2011 TSNR