THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.Rc.No.1172 of 2004 ORAL JUDGMENT: This revision is directed against the judgment delivered by the V Metropolitan Magistrate, Hyderabad in C.C.No.688 of 2003 dated 14.8.2003. The facts which led to the filing of the Criminal Revision Case, are as follows: The respondent No.1-accused No.1 is a partnership firm and the respondent Nos.2 to 5-Accused Nos.2 to 5 in the case are the Managing Partners and partners of the said firm. While so the accused No.1 through accused Nos.2 to 5 in the case approached the revision petitioner- complainant for a loan of Rs.50,000/- for business purpose. The complainant having acceded to their request lent a sum of Rs.50,000/- through cheque bearing No.156341 dated 28.2.2000 drawn on Bank of India, Sitabuldi branch, Nagpur. The accused agreed to pay relevant interest regularly to the complainant. The accused paid interest for some time on the amount due and thereafter committed default. Subsequently, the accused No.1 issued a cheque bearing No.788290 dated 19.2.2002 drawn on Bank of Baroda, Dharmapeth branch, Nagpur for Rs.50,000/- towards the payment of some principal amount. However, when the complainant presented the said cheque, the same was dishonoured by the bank on 26.3.2002 with an endorsement ‘exceeds arrangements” and thereafter the complainant, after giving statutory legal notice, filed the corresponding private complaint before the learned V Metropolitan Magistrate, Hyderabad against the accused for the offence punishable under Section 138 N.I. Act. When the calendar case was taken up for hearing, it was pleaded by all the accused in the case that they paid the cheque amount of Rs.50,000/- by way of demand draft pursuant to the filing of the criminal case and a lenient view may be taken against them. The trial Court through the impugned judgment, found all the accused guilty of committing the offence punishable under Section 138 N.I. Act and while taking into consideration the plea that the accused paid the cheque amount of Rs.50,000/- released them under Section 3 of Probation of Offenders Act, 1958 (for short ‘the Act’). It is the contention of learned counsel for the petitioner/complainant that the trial Court just basing upon the representation of the accused that they paid the cheque amount of Rs.50,000/- by way of demand draft pursuant to the filing of criminal case and without examining properly as to whether it was paid in respect of amount due accepted the claim and in fact the accused had to pay lot of other amounts to the complainant and thereby the trial Court had to determine towards which debt that amount was paid and further it is also not proper to release the accused under Section 3 of the Act. Therefore, it is to be considered as to whether the trial Court properly examined the matter in the light of the arguments advanced on behalf of the accused and whether releasing the accused under Section 3 of the Act is proper or not. In the order, it is observed by the trial Court that the accused filed a memo along with xerox copies of documents evidencing the payment of Rs.50,000/- towards the debt in question, but the counsel for the complainant stated that he was not aware of the payment of the amount by way of giving demand draft and that further there were other debts payable by the accused, and it is also observed “the letter speaks that the amount is towards this case and as such there is no option to the complainant to adjust the under Section 60 of I.C. Act”. There is no proper discussion as to what that letter is. It appears that the trial court Judge found no time to properly clarify the contents of such letter including relevant date and its relevancy. Therefore, I feel it is a fit case to remand the matter to the trial Court for considering it properly with regards to the question of imposing of the sentence setting aside the application of Section 3 of the Act in the light of the circumstances enumerated above including the contention of learned counsel for petitioner. In the result, accordingly the matter is disposed of remanding the matter to the trial Court for the disposal of the matter in the light of the observations made above with reference to the question of imposition of necessary sentence/the application of Section 3 of the Act confirming the conviction imposed. _______________________ G.KRISHNA MOHAN REDDY,J Date: 14.7.2011 DA/PNB