IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA CRIMINAL PETITION No.5432 of 2007 Between: Balijepalli Kamalakar …Petitioner AND Smt Gogineni Satyaveni And another …Respondents The Court made the following: THE HON'BLE SRI JUSTICE P.S.NARAYANA CRIMINAL PETITION No.5432 of 2007 ORDER: 1. Heard Dr.P.B.Vijaya Kumar, learned counsel representing the petitioner, Sri S.Rajan, learned counsel representing the ﬁrst respondent and the learned Additional Public Prosecutor representing the second respondent. 2. Dr.P.B.Vijaya Kumar, learned counsel representing the petitioner had taken this Court through speciﬁc grounds raised in the Criminal Petition and would maintain that the Courts below failed to notice the discrepancy in the evidence of P.W.1, P.W.4 and Ex.P.5. Learned counsel also pointed out the speciﬁc grounds raised before this Court and would maintain that in the light of the facts and circumstances of the case, the Criminal Petition is to be allowed. 3. On the contrary, Sri S.Rajan, learned counsel representing the ﬁrst respondent had pointed out the ﬁndings which have been recorded by both the Courts below and would maintain that in the light of the convincing ﬁndings recorded by both the Courts below and especially those being fact ﬁndings, normally those findings cannot be disturbed in Criminal Petition. 4. Learned Additional Public Prosecutor also had pointed out to the ﬁndings recorded in Crl.R.P.No.88 of 2005 on the file of the Metropolitan Sessions Judge – cum – I Additional District & Sessions Judge, Visakhapatnam. 5. Heard the learned counsel on record. 6. This Criminal Petition, under Section 482 of Cr.P.C. (hereinafter referred to as ‘the Code’, for the purpose of convenience), is ﬁled challenging the judgment dated 27.08.2007 in Crl.R.P.No.88 of 2005 on the ﬁle of the Metropolitan Sessions Judge – cum – I Additional District & Sessions Judge, Visakhapatnam (‘lower appellate Court’, for brevity), whereby and whereunder, the judgment dated 24.10.2005 passed in C.C.No.241 of 2003 by the II Additional Chief Metropolitan Magistrate, Visakhapatnam (‘trial Court’, for brevity), was confirmed. 7. The brief facts of the case, as can be seen from the evidence adduced by the prosecution, are as follows. The petitioner borrowed an amount of Rs.2,00,000/- from the complainant on 17.08.2002 by executing a mortgage deed. Thereafter, in repayment of the said mortgage debt, petitioner issued a cheque for Rs.3,50,000/- in part payment of the debt. When the said cheque was presented for encashment, it was dishonoured on the ground of insuﬃcient funds. As such, the complainant issued notice dated 02.01.2003 demanding the petitioner – accused to pay the cheque amount. As the petitioner failed to pay the cheque amount, complainant approached the Court and ﬁled private complaint, which was taken on ﬁle for the oﬀence under Section 138 of the Negotiable Instruments Act, 1881. 8. Evidence of P.W.1 and P.W.2 had been let in and Exs.P.1 to P.7 were marked. On behalf of the defence, none has been examined. 9. The trial Court, after considering the evidence available on record, formulated the following points for determination. 1. Whether the prosecution has proved the existence of a legally enforceable debt in between the parties? 2. Whether the prosecution has proved that the cheque was issued in part payment of such legally enforceable debt? 3. Whether the prosecution has proved the case against the accused beyond all reasonable doubt? 10. The trial Court recorded the reasons at paras 8 to 12 and ultimately came to the conclusion that the complainant was successful in proving the case beyond all reasonable doubt and ultimately, the accused was sentenced to undergo Simple Imprisonment for a period of two months. Aggrieved by the same, the matter was carried by way of Crl.R.P.No.88 of 2005 to the lower appellate Court and the learned Judge of the lower appellate Court, at para 7 of his judgment, formulated the point for consideration as hereunder. “In the present revision, the point for consideration is: Whether the complainant is able to prove about dishonour of the cheque by the petitioner – accused?” 11. The learned Judge of the lower appellate Court further recorded reasons for the above point at paras 8 to 10 and ultimately came to the conclusion that there is no irregularity or illegality in the judgment made by the trial Court and accordingly dismissed the appeal. 12. This Court has carefully gone through the oral and documentary evidence available on record and the findings recorded by both the Courts below. 13. This Court is thoroughly satisﬁed that the ﬁndings recorded by both the Courts below, being fact ﬁndings, normally those ﬁndings cannot be disturbed by this Court, especially in dealing with Criminal Petition filed under Section 482 of the Code. 14. In the light of the same, the Criminal Petition is dismissed conﬁrming the judgment dated 27.08.2007 made in Crl.R.P.No.88 of 2005 by the Metropolitan Sessions Judge – cum – I Additional District & Sessions Judge, Visakhapatnam. ____________________ P.S.NARAYANA, J March 10, 2010 Bvv