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2022 DIGILAW 360 (TS)

R. Vimala Devi v. State of A. P.

2022-06-07

N.TUKARAMJI

body2022
ORDER : Challenging the propriety of the judgment dated 12.11.2007 in Crl.A.No.131 of 2005 on the file of the Sessions Judge, Warangal, the appellant/accused filed this revision. 2. In the impugned judgment, the appellate Court confirmed the judgment of conviction and sentence passed by the I Additional Judicial Magistrate of First Class, Warangal in C.C.No.112 of 2004 dated 31.10.2005 wherein the revision petitioner/appellant/accused was convicted for the offence under Section 138 of the Negotiable Instruments Act, 1885 (for short the NI Act) and sentenced to pay a fine of Rs.3,000/- in default to suffer simple imprisonment for a period of three months. 3. The brief facts of the case are that the de facto complainant used to supply milk to the revision petitioner and as her husband was the student of the revision petitioner. In such acquaintance, on 06.07.2002 the revision petitioner borrowed an amount of Rs.1,10,000/- and executed demand promissory note/Ex.P-2 with an agreement to repay the amount with interest at 24% per annum. Thereafter, as neglected repayment, on persistent demands, the petitioner issued cheque bearing No.232286 dated 09.01.2004 for Rs.1,50,000/- drawn on Vysya Bank Ltd.,Hanamkonda Branch, towards the loan dues. The complainant on the same day presented the cheque in Central Bank of India, Warangal, but it was dishonoured on 10.01.2004 under cheque return memo/Ex.P-4 on the ground of ‘no account’ and the cheque was returned on 16.01.2004. Thereupon, the 2nd respondent/complainant got issued statutory notice/Ex.P-5 vide postal receipt/Ex.P-6 and the same was served under acknowledgment/Ex.P-7. The respondent got issued reply notice dated 09.02.2004/Ex.P-8 with false averments. Thus the complaint. 4. During trial, the complainant got examined herself as PW-1 and marked letter dated 06.01.2004 said to have been written by the accused/Ex.P-1, letter dated 06.01.2004/Ex.P-2, cheque No.0232286 dated 9.1.2004/Ex.P-3, cheque return memo dt.10.01.2004/Ex.P-4, legal notice dated 16.01.2004/Ex.P-5, postal receipt No.1521/Ex.P-6, postal acknowledgment/Ex.P-7 and reply notice/Ex.P-8 and examined Bank Manager as PW-2. 5. On behalf of the defence, the revision petitioner/accused got examined herself as DW-1 and got marked Exs.D-1 to D-3. 6. The trial Court after examining the material on record held that the ingredients of the offence punishable under Section 138 of the NI Act have been established and passed the impugned judgment of conviction and sentence. 7. Aggrieved thereby the revision petitioner preferred the appeal and the appellate Court passed the impugned judgment confirming the judgment of the trial Court. 8. 7. Aggrieved thereby the revision petitioner preferred the appeal and the appellate Court passed the impugned judgment confirming the judgment of the trial Court. 8. Heard the learned counsel for the revision petitioner and the 2nd respondent did not choose to appear for hearing. 9. In this revision, the learned counsel for the revision petitioner pleaded that as the courts below opined that there is interpolation/overwriting in the year portion of the Ex.P-1 letter, should have held that the complaint itself vitiates. Further, the Courts below ought to have observed that the cheque was not issued towards legally enforceable debt. The infirmities in evidence are insufficient to bring home the guilt of the accused. 10. The points that arise for determination are : (i) Whether the guilt of the revision petitioner is established beyond all reasonable doubt for the offence under Section 138 of the NI Act? (ii) Whether there is any impropriety in the impugned judgment and needs any interference in the revision? 11. To prove the guilt under Section 138 of the NI Act, the complainant must prove that the accused had issued disputed cheque towards legally enforceable debt and the same was returned by the bank unpaid and the accused failed to clear the cheque amount even after due notice. 12. The second respondent/complainant as PW-1 deposed that the revision petitioner/accused borrowed Rs.1,50,000/- and executed Ex.P-2 document and in pursuance thereof cheque/Ex.P-3 was issued. 13. The revision petitioner vehemently contested that the interpolation in the letter/Ex.P-1 is proved and it vitiates the complaint itself. It is pertinent to note that Ex.P-1 is letter said to have been addressed by the revision petitioner/ accused to the husband of the complainant stating that the amount would be paid on certain date. The averments of the letter are acknowledgment but it is not the record of actual loan transaction. Thus, at the best the letter/Ex.P-1 is a circumstance corroborating the loan transaction. Be that as it may, the interpolation or material alteration in the letter/Ex.P-1 shall not have any effect on the complaint, especially as the contention of material alteration is not regarding the negotiable instrument / cheque. Further the revision petitioner/accused as DW-1 had admitted signature on the document reflecting the loan transaction and also on the cheque/Ex.P3. 14. Be that as it may, the interpolation or material alteration in the letter/Ex.P-1 shall not have any effect on the complaint, especially as the contention of material alteration is not regarding the negotiable instrument / cheque. Further the revision petitioner/accused as DW-1 had admitted signature on the document reflecting the loan transaction and also on the cheque/Ex.P3. 14. The revision petitioner/accused as DW-1 did not dispute issuance of the cheque on her account or it does not bear her signature. The then Branch Manager as PW-3 deposed that as there was no minimum balance, the account on which the cheque was drawn, was closed. In addition the contention that her signatures were forcibly/coercively obtained remained unsubstantiated and as there was absence of conduct of ordinary prudence on the part of revision petitioner, it shall be concluded that the cheque/Ex.P-3 was issued by the revision petitioner/accused against the liability in the document/Ex.P-2. 15. The presentment and retaining of cheque are being established by the evidence of Bank Manager/PW-2. Further Exs.P-5 to P-7 are confirming the issuance of statutory notice and the reply notice Ex.P-8 is bespeaking the receipt by the petitioner. Therefore, it shall be held that the second respondent/complainant had prima facie proved the essential aspects in the complaint as such, the presumptions under Section 139 of the NI Act comes into play. 16. However, the revision petitioner/accused may rebut the same either by producing the evidence or even by the material on record. It is also well settled that proof of defence is sufficient if it explains the probabilities. 17. In a similar context, the Hon’ble Supreme Court in Rangappa v. Srimohan, AIR 2010 SC 1898 laid the following principles : (a) the presumptions mandate under Section 139 of the Negotiable Instruments Act includes the existence of legally enforceable debt or liability; (b) when the accused has to rebut the presumption under Section 139 of the Negotiable Instruments Act, the standard of proof doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise probable defence which creates a doubt about the existence of legally enforceable debt or liability, the prosecution fails. 18. By this dictum, it is clear that presumption under Section 139 of the Negotiable Instruments Act covers legally enforceable debt. 19. Therefore, if the accused is able to raise probable defence which creates a doubt about the existence of legally enforceable debt or liability, the prosecution fails. 18. By this dictum, it is clear that presumption under Section 139 of the Negotiable Instruments Act covers legally enforceable debt. 19. In defence, the petitioner/accused had put-forth the contentions of interpolation in Ex.P-1 letter and the signature on the Ex.P-2 and cheque/Ex.P-3 were obtained coercively. As discussed above the interpolation in Ex.P-1 does not effect the prosecution and as nothing is made out in the cross examination of the witnesses to point out any circumstance in proof of the other defence theory, it shall be concluded that the petitioner/accused failed to rebut the presumption. In this position it shall be held that the record is validating the case in the complaint, beyond doubt. 20. For the reasons aforesaid, this Court is of the considered opinion that the Court below did not commit any error or no manifesting injustice is found in the impugned judgment necessitating interference by this Court. Accordingly, the revision fails on merit and in effect, dismissed. As a sequel, miscellaneous petitions, pending if any, shall stand closed.