THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL REVISION CASE NO.1132 OF 2009 Date: 16-12-2009 Between: Sri Balaji Egg Traders, Rep. by its Proprietor Ravi Srinivas, S/o.Nageswara Rao, 37 Years, Velpur, Tanuku, West Godavari District. - - - Petitioner And Sri Satya Sai Poultry Firm, Rep. by its Proprietor, M. Satyavathi and another. - - - Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL REVISION CASE NO.1132 OF 2009 ORDER: This Criminal Revision is directed against the Order in Criminal M.P. No.3098 of 2009, dated 16-06-2009, passed by the learned II Additional Judicial Magistrate of First Class, Tanuku, West Godavari District, whereby and where under the petition filed by the petitioner under section 311 of Cr.P.C. praying to issue summons to the Branch Managers of Axis Bank and Union Bank of India, Tanuku Branches, has been dismissed. The brief facts of the case are as follows : The petitioner herein filed a complaint in C.C. No.626 of 2007 against the respondent herein alleging that the respondent has been running Poultry Firm in the name and style of Sri Satya Sai Poultry Firm at Peravali and Chegallu and that the respondent had taken the advance amount from the petitioner to maintain her Poultry firm and failed to pay the outstanding amount of Rs.3,51,867/- (Rupees three laksh fifty one thousand eight hundred and sixty seven only) and finally she issued a cheque bearing No.350528 for Rs.3,00,000/- (Rupees three lakhs only) dated 10-09-2007 drawn on Union Bank of India, towards the payment of the due amount to the petitioner and when the said cheque was presented in Indian Bank, Tanuku Branch for collection, the said cheque was returned with an endorsement “Insufficient Funds”. Then the petitioner issued a registered legal notice dated 27-09-2007 through their Advocate to the respondent. In spite of receipt of said notice on 29-09-2007 the respondent failed to pay the amount and consequently the petitioner filed the complaint under Section 138 of the Negotiable Instruments Act (Hereinafter referred to as ‘N.I. Act.’). The petitioner was examined as PW.1 and during his cross- examination, a suggestion was given to him that there is no bank account in the name of the respondent/Accused. In order to prove the petitioner’s case, the petitioner filed a petition under Section 311 of Cr.P.C. praying to summon the Branch Manager of Axis Bank, Tanuku Branch, to produce the account copy of respondent/accused bearing account No.30357 and also opening form along with photo and also to summon the Branch Manager of Union Bank of India, Tanuku Branch, to produce the copy of the account bearing No.35061 relating to Sri Satya Sai Poultry Firm and the application form of the accused along with the photos on the application with specimen signatures and statement of the account namely Sri Satya Sai Poultry Firm represented by its proprietrix Satyaveni and a record showing the cheque issued by the Respondent/accused bearing No.350528 drawn on Union Bank of India, Tanuku and to give evidence with reference to the above documents. On earlier occasion Criminal M.P. No.626 of 2007 was filed and allowed and summons were issued to the Branch Manager, Union Bank of India, Tanuku Branch. On receipt of the summons, the Assistant Manager of the Union Bank of India, Tanuku filed a memo stating that the Account No. 35061 stands in the name of Sri Satya Sai Poultry Firm, represented by its proprietrix M. Satyaveni. The allegation of the petitioner against the respondent is that the respondent opened account in the name of Sri Satya Sai Poultry Firm in Union Bank of India as Satyaveni and she opened individual account in the Axis Bank as the proprietrix Satyavathi and the Respondent/accused received number of cheques from the complainant and deposited in their Axis Bank on behalf of Poultries. Since the learned II Additional Judicial Magistrate of First Class, Tanuku, West Godavari District, dismissed the petition in Criminal M.P. No.3098 of 2009 holding that the evidence of Bank Managers will not be helpful as to the allegations made against Satyavathi in this complaint. It was further observed that as long as complainant accepts that account bearing No. 35061 stands in the name of Satya Sai Poultry firm represented by Satyaveni at Union Bank of India, against whom he never filed any case, there would be no purpose in allowing the petition. Holding so, the petition has been dismissed. The learned counsel for the petitioner submitted that no prejudice will be caused to the respondent by summoning the Branch Managers of both the Banks to produce the documents referred in the petition and moreover the same will prove whether Sathyavathi and Sathyaveni is one and the same person and whether both the accounts opening forms along with the photographs belongs to the one and the same person or not? It is further argued that the respondent herself has issued a cheque for Rs.3,00,000/- (Rupees three lakhs only) and when the said cheque was returned with an endorsement “Insufficient funds”, the petitioner after issuing legal notice filed the complaint under Section 138 of the N.I. Act. It is further argued that if at all there was no account in the name of the accused, there was no need to issue the notice with endorsement as “Insufficient funds”. It is also submitted that the respondent has been playing fraud and is guilty of cheating and that the petitioner has been contemplating to file a complaint under Section 420 of the Indian Penal Code against the respondent. It is also submitted that summoning of Branch Managers along with the documents is necessary for the just conclusion of the case and in the interest of Justice. The learned counsel for the Respondent submitted that the drawer of the cheque is Satyaveni however, the complaint is filed against Satyavathi. It is further submitted that the respondent herein is Satyavathi proprietrix of Sri Satya Sai Poultry Firm and that the respondent also signed as Satyavathi and nowhere in the complaint it is whispered that the drawer of the cheue is Satyaveni and the respondent is one and the same person. It is further submitted that there is no account in the name of Satyavathi. It is submitted that summoning of the Branch Managers will not be helpful to the case of the complainant. It is also the case of the respondent that she has not received any notice from the complainant. The facts herein are not in dispute. Admittedly the petitioner/complainant filed complaint against Sri Satya Sai Poultry Firm represented by its proprietrix M. Satyavathi. As seen from the contents of the cheque bearing No.350528 drawn on Union Bank of India, Tanuku, West Godavari District, the drawer of the cheque is Satyaveni represented by Sri Satya Sai Poultry Firm. As seen from the contents of the counter, the respondent has taken a specific plea that she did not issue the cheque and that she does not maintain any account with the bank and that the cheque discloses the name of the firm as Satya Sai Poultry Firm represented by Satyaveni and that the respondent M. Satyavathi is representing Sri Satya Sai Poultry Firm. Admittedly, the cheque was returned with an endorsement “Insufficient funds” vide a memo. The Assistant Manager of Union Bank of India, had filed a memo stating that account bearing No.35061 stands in the name of Sri Satya Sai Poultry Firm represented by its proprietrix Sathyaveni. Whether M. Satyavathi, proprietrix of Sri Sri Satya Sai Poultry Firm and Sathyaveni is one and the same person or not is the main question and that has to be decided. It is true that the complaint is filed against Sri Satya Sai Poultry Firm represented by its proprietrix M. Sathyavathi. It is also true that the respondent received a copy of the complaint by signing as Sathyavathi. The petitioner’s case is that the respondent herself has issued a cheque drawn on Union Bank of India bearing No.350528. It is the duty of the Courts to ascertain the fact. The name of the firm and the name of the respondent so resemble one another and there is every likelihood of being cheated. The Respondent could not explain how a cheque issued by Satyaveni came into the possession of petitioner if it is not given by her. If at all the cheque was issued by another person by name Sathyaveni as alleged by the respondent, the petitioner would have certainly filed the complaint against the said Sathyaveni and would not have filed against the respondent Sathyavathi. The very fact that the petitioner came into possession of a cheque said to be issued by Respondent, though slightly appears to be in a different name resembling the name of the firm and name of the Respondent it appears that the petitioner should be given an opportunity to establish the truth. Technicalities should not borne in the way of establishing truth particularly at the trial stage. It is the duty of the Court to find out the truth. In the above circumstances, I am of the view that in the interest of justice the impugned order is liable to be set aside. Accordingly, the impugned order is set aside. Consequently the petition filed by the petitioner in Criminal M.P. No.3098 of 2009 stands allowed. The learned II Additional Judicial Magistrate of First Class, Tanuku, West Godavari District, is directed to issue summons to the witnesses mentioned therein as prayed for and proceed with the trial in accordance with law. Accordingly, the Criminal Revision Case is allowed. _____________________ B. CHANDRA KUMAR, J Date: 16-12-2009. DSH