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Telangana High Court · body

2022 DIGILAW 565 (TS)

K. Arun Kumar v. State Of A. P. ,

2022-09-01

G.RADHA RANI

body2022
ORDER : This Criminal Revision Case is filed by the revision petitioner/appellant/accused assailing the conviction and sentence passed in C.C.No.43 of 2010, dated 31.03.2011, by the XVI Additional Judge, City Civil Court–cum– XX Additional Chief Metropolitan Magistrate Court, Hyderabad, as confirmed in Criminal Appeal No.188 of 2011, dated 17.06.2013, by the II Additional Metropolitan Sessions Judge, Hyderabad. 2. Heard learned counsel for the Revision Petitioner/appellant/accused, and the learned counsel for the 2nd respondent/complainant. 3. The parties herein will be referred to as per their array before the Trial Court. 4. The case of the complainant was that the complainant and accused were known to each other and out of the said acquaintance, the accused borrowed a sum of Rs.1 lakh from the complainant on 16.03.2007 with a promise to repay the same with interest of Rs.10,000/- in the month of August, 2007, and issued two cheques therefor bearing No.042930, dated 10.04.2009, for Rs.50,000/- and another cheque bearing No.042931, dated 15.04.2009, for Rs.30,000/-, and agreed to repay the remaining amount by way of cash. The complainant presented the cheque bearing No.042930, dated 10.04.2009 for collection. But, the same was dishonoured by the bank for the reason “funds insufficient” along with a cheque return Memo dated 22.04.2009. On 05.05.2009, the complainant issued legal notice through Registered Post Acknowledgment Due (R.P.A.D.) and under Certificate of Posting. The accused received the notice under Certificate of Posting, but neither made payment nor gave any reply. As such, the complainant filed the complaint. 5. After recording the sworn statement of the complainant, the complaint was taken on file by the XX Additional Chief Metropolitan Magistrate Court, Hyderabad under Section 138 of Negotiable Instruments Act, 1881 and conducted trial. During the course of trial, the complainant got examined himself as PW.1 and got marked Exs.P.1 to P.14. No evidence was adduced by the accused. 6. On considering the oral and documentary evidence on record, and on considering the presumptions in favour of the complainant under Sections 118 and 139 of N.I. Act, the Trial Court found the accused guilty. The trial Court also by considering Section 27 of General Clauses Act, opined that notice of demand issued under Section 138 Sub-clauses (b) and (c) of N.I. Act sent to the accused was sufficient service. The trial Court also by considering Section 27 of General Clauses Act, opined that notice of demand issued under Section 138 Sub-clauses (b) and (c) of N.I. Act sent to the accused was sufficient service. It found the accused guilty for the offence under Section 138 of N.I. Act and sentenced him to undergo simple imprisonment for a period of one year and to pay fine of Rs.10,000/- and in default of payment of fine amount, to suffer simple imprisonment for a period of one month. 7. Aggrieved by the said order of conviction and sentence, the accused herein preferred Criminal Appeal No.188 of 2011 before the II Additional Metropolitan Sessions Judge, Hyderabad. 8. The appellant failed to argue the matter before the lower Appellate Court. However, the lower Appellate Court considered the evidence on record and passed the judgment on merits on 17.06.2013 confirming the conviction and sentence of the accused for the offence under Section 138 of N.I. Act, and dismissed the appeal. 9. Assailing the same, the present Criminal Revision Case is filed by the accused. 10. Learned counsel for the revision petitioner/appellant/accused contended that both the Courts below ought to have considered that the amount covered under the cheque in question was not a legally enforceable debt and no proof was filed in support of the debt and no evidence was led on that aspect; the prosecution failed to establish the ingredients of Section 138 of N.I. Act to convict the petitioner; the complainant failed to produce the Income Tax Returns pertaining to the relevant period of transaction to prove that he was in a position to provide financial assistance to the petitioner; the prosecution failed to prove the case beyond reasonable doubt and that the Courts erroneously convicted the accused; and prayed this Court to allow the Revision by setting aside the judgments of the Courts below. 11. 11. On a perusal of the record, the Trial Court observed that the accused was not disputing his signature on the cheque, as such, the presumption envisaged under Section 118 of N.I. Act that the cheque was drawn for consideration on the date which the cheque bore, and Section 139 of N.I. Act would enjoin on the Court to presume that the holder of the cheque received it for the discharge of debt or liability and that the accused failed to adduce any probable defence to show that he had not received money from the complainant and failed to adduce rebuttal evidence to discharge the burden laid upon him and did not place any iota of evidence under what circumstances the cheques were issued to the complainant, and held that the offence under Section 138 of N.I. Act was proved against the accused. 12. The Trial Court also considered the contention of the learned counsel for the accused that the alleged transaction was not reflected in the Income Tax Returns of the complainant, and observed that it was for the Income Tax Department to initiate proceedings against the complainant if the said transaction was not reflected in the Income Tax Returns, but the accused cannot take advantage of it. 13. Even with regard to the contention of the learned counsel for the accused that notice was not served upon him, the Trial Court by taking into consideration the provision under Section 27 of General Clauses Act, observed that when the letter was sent correctly it could be presumed that the Postman had tendered the letter at the address mentioned in the letter, and therefore presumed that notice was delivered to the addressee. 14. 14. The lower Appellate Court also observed that Ex.P.1-Cheque contained the signature of the accused, and the said cheque was generated from the account of the accused and when once the accused admitted his signature on the subject matter of the cheque which was returned, a presumption would arise that the cheque was drawn for consideration on the date on which the cheque bore, and the Court had to presume that the holder of the cheque received it for discharge of any debt or liability and relied upon the decision of the Hon’ble Apex Court in K. Bhaskaran vs. Sankaran Vaidhyan Balan, [2000 (1) ALT (Crl) 42 S.C.] and also of the High Court of Andhra Pradesh in Laxminivas Agarwal vs. Andhra Semi Conductors Pvt. Ltd., (2006) 1 ALD Crl. 300 (A.P) and confirmed the guilt of the accused for the offence under Section 138 of N.I. Act. 15. The lower Appellate Court also observed that the office copy of the legal notice and unserved registered postal receipts (marked under Exs.P.4 to P.11) would reveal that the complainant made full efforts in serving the notice on the accused after dishonour of Ex.P.1 cheque, the bank statement and deposits marked under Ex.P.13 and 14 would show the address of the accused, and the complainant sent the registered legal notice to the same address of the accused. Ex.P.5 – Legal Notice and Ex.P.11 – Returned cover endorsed as “unclaimed” show that it was sufficiently served on the accused, and rejected the contention of the accused that the complainant failed to issue statutory legal notice. 16. Thus, there were concurrent findings of the Courts below in confirming the guilt of the accused under Section 138 of N.I. Act. 17. The Hon’ble Apex Court in Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197 held at para Nos.15, 16, 25 and 26 as under : “18. The Appellate Court affirmed the aforesaid factual findings. The Trial Court and the Appellate Court arrived at the specific concurrent factual finding that the cheque had admittedly been signed by the respondent-accused. 17. The Hon’ble Apex Court in Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197 held at para Nos.15, 16, 25 and 26 as under : “18. The Appellate Court affirmed the aforesaid factual findings. The Trial Court and the Appellate Court arrived at the specific concurrent factual finding that the cheque had admittedly been signed by the respondent-accused. The Trial Court and the Appellate Court rejected the plea of the respondent-accused that the appellant-complainant had misused a blank signed cheque made over by the respondent-accused to the appellant- complainant for deposit of Income Tax, in view of the admission of the respondent-accused that taxes were paid in cash for which the appellant-complainant used to take payment from the respondent in cash. 19. It is well settled that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.” … … … 28. In R. Vijayan vs. Baby and Another, (2012) 1 SCC 260 this Court observed that the object of Chapter XVII of the Negotiable Instruments Act is both punitive as also compensatory and restitutive. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement of the civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move two different fora for relief. This Court expressed its anguish that some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise discretion to direct payment of compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil cases would expire by the time the criminal case was decided. 29. In R. Vijayan vs. Baby and another (supra) this Court observed that unless there were special circumstances, in all cases of conviction, the Court should uniformly exercise the power to levy fine up to twice the cheque amount and keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss, direct payment of such amount as compensation. This Court rightly observed that uniformity and consistency in deciding similar cases by different courts not only increases the credibility of the cheque as a Negotiable Instrument but also the credibility of the Courts of Justice.” 18. Similarly, the Hon’ble Apex Court in Meters and Instruments Private Limited and others vs. Kanchan Mehta, AIR 2017 SC 4594 held as under : “18. From the above discussion following aspects emerge: i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view of presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court. iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases. v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank’s slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances.” 19. This Court by Docket order dated 04.02.2020 passed in this Criminal Revision Case No.1330 of 2013 held as under : “In those circumstances, as per the offer made by the petitioner, if interest is calculated on the principal amount of Rs.80,000/- as of date, then it would work out to Rs.2,03,200/- and if a sum of Rs.10,000/- towards fine is added, finally, it would come to Rs.2,13,200/- but, the petitioner is willing to pay the second respondent a sum of Rs.2,25,000/- (Rupees Two Lakh Twenty Five Thousand only) which is considered to be reasonable, in the facts of the present case. However, the petitioner submits that he would pay the said amount in three monthly intalments.” 20. Though said Docket Order was passed on 04.02.2020, the petitioner/ accused failed to make the payment till date. 21. When the matter is taken up for hearing on 23.08.2022, learned counsel for the revision petitioner/accused stated that the revision petitioner/accused was ready to pay the amount of Rs.2,25,000/- as agreed before the Court on 04.02.2022. But the learned counsel for the respondent/complainant stated that the complainant is not ready for compromise as the accused had not produced the Demand Draft even on the said date. 22. Hence, considering the above decisions of the Hon’ble Apex Court in this regard and the concurrent findings of the Courts below, it is considered fit to dismiss the Revision Case confirming the guilt of the accused for the offence under Section 138 of N.I. Act as upheld by both the Courts below. 23. 22. Hence, considering the above decisions of the Hon’ble Apex Court in this regard and the concurrent findings of the Courts below, it is considered fit to dismiss the Revision Case confirming the guilt of the accused for the offence under Section 138 of N.I. Act as upheld by both the Courts below. 23. But, however, considering the object of the Act, it is considered fit to modify the sentence of imprisonment to fine and to pay the same as compensation to the complainant for the amount directed by this Court on 04.02.2020. As the revision petitioner/accused reported ready to pay the amount as suggested by this Court on 04.02.2020, and as stated by the Hon’ble Apex Court in Meters and Instruments Private Limited (supra) that though compounding requires consent of both parties, even in the absence of such consent, the Court, in the interest of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused, the Criminal Revision Case is dismissed on condition of the revision petitioner/accused to produce the Demand Draft for an amount of Rs.2,25,000/- within a week from the date of pronouncement of order. 24. It is made clear that if the revision petitioner/accused fails to produce the Demand Draft for an amount of Rs.2,25,000/- within a week from the date of pronouncement of this order, he shall undergo the sentence of imprisonment as affirmed by the lower Appellate Court. No costs. 25. As a sequel, miscellaneous petitions pending if any in this Revision, shall stand closed.