THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl.A.No.195 OF 2007 BETWEEN: J.K. Chit Funds, rep. by Foreman, K.V.K. Jagatkumar, Eluru, West Godavari District. PETITIONER And 1. the State, rep. by Public Prosecutor, High Court of A.P. Hyderabad, and another. RESPONDENTS Counsel for petitioner: Sri K. Chidambaram Counsel for Respondent No.1: Additional Public Prosecutor Counsel for Respondent No.2: Sri G. Narasimha Rao The Court made the following order: ORDER: Unsuccessful complainant in C.C.No.232 of 2005 on the file of Special Judicial Magistrate of the First Class for Excise Cases, Eluru, is the complainant. He filed the case in the lower Court against the accused alleging offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act) for dishonour of Ex.P.14- cheque as per Ex.P.15-cheque return memo for want of sufficient funds. After issuing Ex.P.17-statutory notice, the complainant filed the case in the lower Court. After trial, the lower Court found the accused not guilty and acquitted him. There is no dispute about the accused (DW.1) issuing Ex.P.14- cheque to the complainant. According to the accused, he gave Ex.P.14 as blank cheque containing his signature, when one of his partners became prized subscriber in a chit being run by the complainant. On the other hand, it is the complainant’s case that the accused himself was member of the chit run by the complainant, namely, J.K. Chit Funds, Eluru, and that after participating in auction of the chit the accused received prize money and executed the pronotes Ex.P.6 to P.8, executed Ex.P.13-memorandum of deposit of title deed creating equitable mortgage and to discharge the said debts covered by the above pronotes, the accused gave cheque for Rs.1,50,000/- in favour of the complainant. As the matter now stands, there is no acceptable evidence on the part of the accused to show that he issued Ex.P.14- cheque in connection with a chit fund transaction relating to his partner. The lower court found that when the cheque was obtained in blank, the question of invoking Section 138 of the Act does not arise. Apart from the said ground, the complaint deserved dismissal on legal ground that drawer of cheque Ex.P.14 is not the accused in his individual capacity. Ex.P.14 was drawn by the accused as Managing Partner of Sri Vishnu Enterprises by affixing rubber stamp of Sri Vishnu Enterprises on the cheque. Thus, the cheque was drawn on account of Sri Vishnu Enterprises and not on account of the accused. No doubt, the accused may be Managing Partner of Sri Vishnu Enterprises. But, personal account of the accused in the bank is entirely different from account of Sri Vishnu Enterprises in the bank. Even though drawer of the cheque is Sri Vishnu Enterprises, the said partnership firm, namely, Sri Vishnu Enterprises is not impleaded as accused in the present case. Sri Vishnu Enterprises is not the chit subscriber with the complainant much less withdrew prized chit amounts in three chits. It was the accused alone in his individual capacity who became a member of the chit and became prized subscriber and withdrew prized chit amounts from the complainant. Therefore, it has to be held that the accused is not drawer of the dishonoured cheque Ex.P.14. For Ex.P.14-dishonoured cheque, there is no legally enforceable debt backing the same. After Ex.P.14-cheque was dishonoured, the complainant did not give any notice to the drawer of the cheque, namely, Sri Vishnu Enterprises. Thus, viewed from any angle, the accused in his individual capacity did not draw the cheque and did not commit the offence under Section 138 of the Act in order to find him guilty of the same. The conclusion arrived at by the lower Court and acquittal passed by the lower Court are not liable to be disturbed in this appeal. In the result, the Criminal Appeal is dismissed. ________________________________ (SAMUDRALA GOVINDARAJULU, J.) 21st July, 2010 Js.