HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRL.P.No.8433 of 2008 ORDER: This Criminal Petition is filed to set aside order dated 19-12-2007 in Crl.R.P.No.27 of 2006 on the file of the learned I Additional Metropolitan Sessions Judge, Visakhapatnam confirming order of the II Additional Chief Metropolitan Magistrate, Visakhapatnam, in C.C.No.553 of 2004, dated 02-03-2006. 2. The 2nd respondent herein is the complainant (for short ‘the complainant’) and the petitioner herein is the accused in the calendar case (for short ‘the accused’). For the sake of convenience, parties will be herein after referred to as they are arrayed in the calendar case. 3. The pleas taken in the complainant are as follows: The accused borrowed Rs.1,50,000/- from the complainant by executing a promissory note on 11-07-2001. Thereafter, the accused issued a cheque for Rs.2,60,000/- drawn on Kanaka Mahalakshmi Co- operative Bank Lmited, Akkayyapalem Branch, Visakahapatnam, in favour of the complainant, in part payment of the above said debt. The cheque was dishonoured under a memo dated 26-03-2004, endorsing that there were insufficient funds in the corresponding account of the accused. The complainant got issued a notice on 08-04-2004 to the accused to comply with the requirement. But he did not pay the amount. Hence, the complainant filed the complaint for the offence punishable under Sections 138 read with 142 of the Negotiable Instruments Act (for brevity ‘the Act’). 4. During the course of trial, on behalf of the complainant, he got himself examined as P.W.1 besides examining P.Ws.2 and 3 and got marked Exs.P-1 to P-5 and Ex.X-1. No oral or documentary evidence was adduced on behalf of the accused. After considering the evidence on record, the learned Magistrate found the accused guilty of committing the offence and convicted and sentenced him to undergo simple imprisonment for three months and also directed him to pay compensation of Rs.2,000/- to the complainant, whereby, aggrieved by the same, the accused preferred Crl.R.P.No.27 of 2006 on the file of the I Additional Metropolitan Sessions Judge, Visakhapatnam. The learned Sessions Judge observed on the basis of the evidence on record as follows: “P.W.1’s evidence affidavit discloses that the accused borrowed Rs.1,50,000/- on 11-07-2001 and agreed to repay the same with interest at 30% per annum and executed the promissory note on the even date. Subsequently, after several demands, he issued a cheque for Rs.2,60,000/- drawn on the Kanaka Mahalalkshmi Co-operative Bank Ltd., Akkayyapalem Branch, Visakhapatnam, towards part payment of the loan amount. When the same was presented in the banker of P.W.1, it was returned by the banker of the accused on the ground ’insufficient funds’ and the same was intimated by the Banker to P.W.1 under memo. Later, P.W.1 got issued lawyer’s notice and the same was acknowledged by the accused. Thus, the accused committed the offence under Section 138 of the Act. As stated earlier, Ex.P-1 is the promissory note, Ex.P-2 is the cheque dated 24-03- 2004, Ex.P-3 is the cheque return memo, Ex.P-5 is the office copy of lawyer’s notice and Ex.P-4 is the postal acknowledgement. To further support the case of the complainant, P.W.2 who is the Branch Manager in State Bank of Hyderabad, District Court Premises Branch, Visakhapatnam, has deposed as follows: “The complainant is having savings bank account bearing No.49098 in his Bank. Ex.P-2 cheque was deposited in his Bank for collection on 25-03-2004. It was sent for clearance to Kanaka Mahalakshmi Bank. It was dishonoured due to insufficient funds. In that context, the cheque return memo Ex.P-3, dated 26-03-2004 was issued by the drawee bank. They received the return cheque on 27- 03-2004 and it was reflected in the cheque return intimation register Ex.X-1 is the attested copy of the said register. His branch was previously in the Municipal Corporation Extension Branch and that Ex.P-2, cheque, bears the stamp of the Municipal Corporation Extension Branch. P.W.3, who is the Manager of Kanaka Mahalakshmi Cooperative Bank, Akkayyapalem Branch, Visakahapatnam, has deposed as follows: The accused is having savings bank account in the Bank. The number of the account is 958. he is having cheque facility. Ex.P-2 cheque was drawn on his Bank. It was received by his Bank on 26-03-2004. For clearance, it was sent for collection by State Bank of Hyderabad. Ex.P-2 cheque was dishonoured due to insufficient funds. In that context, his Bank issued Ex.P-3, return memo. Ex.P-2, cheque, was sent through HDFC Bank to his Bank. 5. Ultimately, the learned Sessions Judge, after considering the oral and documentary evidence on record, dismissed the revision petition holding that the case against the accused was established for the offence punishable under Section 138 of the Act beyond reasonable doubt and therefore, there was no need to interfere with the judgment of the trial Court and accordingly, confirmed the conviction and sentence recorded by the trial Court. 6. The point for consideration is whether the accused is entitled for acquittal? 7. It is the contention of learned counsel for the accused that there is no existence of legally enforceable debt and the version of the complainant that within three years of the borrowing the amount, was increased to 2,60,000/- is not acceptable and the Courts below failed to appreciate the matter properly, and hence, the judgments passed by the Courts below are liable to be set aside. 8. It is clear from the evidence of P.Ws.1 to 3 that there has been existence of legally enforceable debt and bouncing of the cheque as narrated above. Further under Section 138 of the Act, it is only to be considered as to whether there was legally enforceable debt and the accused issued the cheque and it was bounced on the ground that sufficient amount was not there in his corresponding account subject to the proviso there under. Further, it is not a case of making any part payments subsequently in order to examine the scope of the proviso of the Act. Therefore, the proceedings against the accused cannot be quashed. 9. There is no merit in the Criminal Petition. Accordingly, the Criminal Petition is dismissed. ____________________________ 23rd December 2011 G.KRISHNA MOHAN REDDY,J kvr