IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD Date: 04-03-2011 PRESENT: THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No. 78 OF 2007 Between: Kondi Mohan Rao S/o Harihara Rao, 42 years, R/o. D.No.36-16-22, Near State Bank of India, Innespeta Branch, Rajahmundry, East Godavari district. … Petitioner AND M/s. Rajesh Tyres Represented by its Proprietor Gonemadathala Vara Prasada Rao Kovvur, Kovvur Town West Godavari district & Anr. … Respondents Counsel for the Petitioner : Sri Y. Ashok Raj Counsel for the Respondent No.1: Sri Davuluri Narasimha Rao Counsel for the Respondent No.2: Addl.Public Prosecutor The Court made the following : ORDER (Order follows 2nd page) THE HONOURABLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.78 OF 2007 JUDGMENT: The revision petitioner – accused filed this Criminal Revision Case against the judgment dated 11-01-1999 in Criminal Appeal No. 61 of 2005 passed by the learned V Additional Sessions Judge, West Godavari, Eluru, confirming the conviction and sentence imposed on him by the learned II Additional Judicial Magistrate of First Class, Kovvur, West Godavari District in C.C. No.270 of 1999 dated 21-02-2005 for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). 2. The facts of the case are that the complainant – respondent N o.1 Viz. M/s. Rajesh Tyres, represented by its sole proprietor Gonemadathala Vara Prasada Rao, was carrying on tyres business. The accused - K. Mohan Rao purchased lorry tyres and tubes worth Rs.19,000/- from the complainant on 19-05-1998 vide credit bill No.31 dated 19-05-1998. The accused received the set of tyres on credit basis and opened khatha (account) with the complainant. The accused issued cheque bearing No.A/423132183 for Rs.20,000/- drawn on State Bank of India, Innispet Branch, Rajahmundry to the complainant towards part payment of the goods purchased and informed him that the cheque will be honoured by the time when it is presented in the bank for collection. Thus, there is creditor and debtor relationship between the complainant and the accused. The complainant presented the cheque in the State Bank of India, Kovvur Branch on 11-02-1999 for collection and the same was dishonoured by the banker as “unpaid due to insufficient funds”. Again on 06-04- 1999, the complainant presented the said cheque for collection and it was returned on 19-04-1999 by the banker dishonouring the cheque as “unpaid due to insufficient funds”. Then the complainant got issued notice to the accused on 26-04-1999 under Section 138 of the Act informing him about dishonour of the cheque issued by him and demanding to pay the amount of the dishonoured cheque. The accused received the same on 01-05-1999 but did not pay the amount. Thus, the accused committed the offence under Section 138 of the Act. The complaint is filed within 15 days after issuance of the registered legal notice dated 01-05-1999. Hence, the complaint. 3. On appearance of the accused, the learned Magistrate after complying with the formalities as contemplated under Section 207 Cr.P.C. examined the accused under Section 251 Cr.P.C., alleging the substance of accusation. Accused denied the same, pleaded not guilty and claimed to be tried. 4. In support of his case, the complainant got examined himself as PW.1 and also examined the Bank Managers as PWs.2 and 3 and got marked Exs.P-1 to P-4. On behalf of the accused, no oral and documentary evidence was adduced. 5. After closure of the evidence on behalf of the complainant, the accused was examined under section 313 Cr.P.C. for the incriminating evidence appearing against him and the accused denied the same and claimed no defence. 6. On appreciation of the oral and documentary evidence placed on record, the learned Magistrate found the accused guilty of the offence under Section 138 of the Act and accordingly convicted and sentenced him for the same to suffer simple imprisonment for a period of six months. 7. Assailing the conviction and sentence recorded by the learned Magistrate in C.C. No.270 of 1999 dated 21-02-2005, accused preferred Criminal Appeal No.61 of 2005 on the file of the Court of the learned V Additional Sessions Judge, West Godavari, Eluru. 8. On re-appreciation of the entire oral and documentary evidence placed on record, the first appellate Court confirmed the conviction and sentence passed by the learned II Additional Judicial Magistrate of First Class, Kovvur in C.C. No.270 of 1999 by its judgment dated 21-02-2005. Aggrieved by the same, accused filed the present criminal revision case, inter alia, on the following grounds: i) that PW.1 failed to prove by filing any document to show that he was the proprietor of M/s. Rajesh Tyres, Kovvur town, West Godavari district; ii) that he also failed to prove the case by filing any document that he was authorised to represent M/s. Rajesh Tyres; iii) that he failed to file any bills of the transaction; and iv) that the trial Court erred in convicting and sentencing the accused and later the first appellate Court confirmed the same erroneously; 9. It is the case of the accused that there was no legally enforceable debt between him and the complainant. The cheque was issued in the name of M/s. Rajesh Tyres, Kovvur and not to an individual person i.e., the complainant in his independent capacity. Therefore, in the absence of any proof that the complainant is the proprietor of M/s. Rajesh Tyres and also in the absence of authorization by M/s. Rajesh Tyres in his favour authorizing him to represent M/s. Rajesh Tyres, the complaint under Section 138 of the Act is not maintainable. Therefore, it is contended that the trial Court has erred in not considering the said facts and erroneously convicted and sentenced the accused for the alleged offence and accordingly the first appellate Court also erroneously confirmed the judgment of the trial Court by the impugned judgment. 10. In the above mentioned facts and circumstances of the case and also in general having regard to the fact that the accused had issued the cheque for Rs.20,000/- to discharge legally enforceable debt to M/s. Rajesh Tyres of which the complainant is the proprietor, and the accused failed to rebut the same and moreover both the Courts below have also given a finding to that effect, this revisional Court is of the view that the impugned judgment passed by the first appellate Court confirming the judgment of the trial Court does not suffer from any infirmity or illegality, and therefore, the same is not liable to be interfered with. 11. In the result, the Criminal Revision Case is dismissed and the impugned judgment and also conviction and sentence imposed on the accused are confirmed. _________________ B.N. RAO NALLA, J Date:04-03-2011. ISL/PV