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2023 DIGILAW 346 (AP)

Nalam Traders v. State of Andhra Pradesh

2023-02-08

V.R.K.KRUPA SAGAR

body2023
ORDER : 1. Distraught about the acquittal of the drawer of a cheque, this revision under Sections 397 read with Section 401 of Cr.P.C. is filed by payee of the cheque/complainant. 2. First respondent is the accused before the Courts below. Second respondent is State. 3. Alleging an offence under Section 138 of Negotiable Instrument Act (for short ‘N.I. Act’) this appellant originally filed a complaint and that was tried by the learned III-Metropolitan Magistrate, Vijayawada as C.C. No. 165 of 2005. After due trial, the sole accused was convicted and was sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 5,000/- with default sentence of simple imprisonment for two months prescribed for it. 4. The aggrieved accused preferred Criminal Appeal No. 235 of 2005. After due hearing, the learned VIII-Additional District and Sessions Judge (Fast Track Court), Vijayawada vide judgment dated 23.01.2007 found the accused not guilty and acquitted him by setting aside the judgment of the trial Court. 5. Against such judgment of acquittal this criminal revision is filed by the complainant. 6. Facts leading to the present revision are required to be noticed now: Two trading partnership firms have been in business transactions concerning pesticides. The complainant was selling pesticides on cash basis as well as credit basis and the accused used to purchase pesticides on credit basis. Complainant, in his books of accounts maintained the relevant account for these transactions. The business commenced in the year 1999 and the business transactions stopped between the parties somewhere in the year 2000. By then as per the accounting calculations of the complainant there was outstanding due recoverable from the accused. The assertion of the complainant is that, it is entitled to claim interest 24% p.a. on the over due amount going by the agreement, usage and law between the parties. Concerning the overdue amount, the last payment transaction occurred between the parties sometime in the year 2001. Subsequently, on the demands for repayment the accused allegedly drew a cheque dated 03.01.2003 for Rs. 2,60,000/- on an account maintained by it with the Indian Bank, Nandigama, Krishna District Branch payable to complainant. On its presentation the banker returned it unpaid with an endorsement that the funds in the account of accused were insufficient. Subsequently, on the demands for repayment the accused allegedly drew a cheque dated 03.01.2003 for Rs. 2,60,000/- on an account maintained by it with the Indian Bank, Nandigama, Krishna District Branch payable to complainant. On its presentation the banker returned it unpaid with an endorsement that the funds in the account of accused were insufficient. Thereafter, the complainant dispatched statutory notices both by way of the registered post as well as by way of certificate of posting. Finding no response from the accused and finding no repayment, the complainant complained to the learned trial Court. After requisite procedure the learned trial Court took cognizance of the offence and summoned the accused who made its appearance through its learned counsel. After furnishing copies of documents in terms of Section 207 Cr.P.C. the essential accusations were read out under Section 251 Cr.P.C. and the accused denied the truth of the facts and pleaded not guilty. At the trial, complainant testified as PW-1 and got marked Exs.P1 to P9. The incriminating material available on record was posed to the accused under Section 313 Cr.P.C. seeking his explanations. He did not explain any piece of evidence except saying that entire evidence is false. Thereafter, accused entered into the witness box and testified as DW-1. After hearing arguments on both sides and after considering the evidence on record, learned trial Court found the accused guilty for the offence under Section 138 of N.I. Act. During the course of appreciation of evidence, the learned trial Court recorded that complainant is a registered partnership firm and copy of the certificate of registration is Ex.P9. It stated that the account of the accused maintained by the complainant is Ex.P8. Accused/DW-1 in his cross-examination admitted the truth and correctness of contents of Ex.P8. Thus, the trial Court recorded a finding that there was subsisting liability on part of accused to a tune of Rs. 2,67,452.92 paise. It then stated that as per the evidence of PW-1, demanding repayment of that account over due a notice was sent by complainant to the accused but accused did not repay. During trial, accused pointed out that a copy of such notice was not exhibited before the trial Court. Trial Court, it seems, thought it un-necessary to have that copy of notice for the purpose of case at hand. During trial, accused pointed out that a copy of such notice was not exhibited before the trial Court. Trial Court, it seems, thought it un-necessary to have that copy of notice for the purpose of case at hand. It then recorded an observation that, after several demands accused had given Ex.P1 cheque for Rs. 2,60,000/- to the complainant and banker returned it as evidenced by Exs.P2 and P3 on the ground that funds in the account of accused were insufficient. Thereafter the original of Ex.P4 notice was sent by complainant and Ex.P5 postal receipt indicates its dispatch by way of registered post and Ex.P6 indicated dispatch of it under certificate of posting. Since within 15 days’ time granted accused failed to repay the cheque amount it found the accused guilty for the offence under Section 138 of N.I. Act. 7. Main defence of the accused at the trial Court was that Ex.P1 cheque bears his signatures but the remaining columns were blank and that Ex.P1 along with two other accompanying signed but blank cheque leaves were given by the accused to the complainant at the beginning of the business transaction in the year 1999 and this complainant got filled up the columns of Ex.P1 and filed this false case. 8. For accused it was argued that Ex.P1 cheque was given by way of security, but not given towards discharge of any debt or liability. Accused also contended that because the cheque was given in the year 1999 its presentation in the year 2003 was beyond six months period of validity and therefore such a cheque could not bring out penal consequences. By giving extensive reasons, the trial Court found no efficacy in the contentions raised by the accused and negatived its contentions. Therefore, it sentenced the accused in the terms that are indicated earlier in this judgment. 9. The first appellate Court dealt with various contentions raised by the accused with reference to validity of complaint and about non service of statutory notice. Learned appellate Court on considering the evidence on record and various legal authorities argued before it, held that complaint was validly filed and the accused received the notice and did not respond. While it agreed with every other finding rendered by the trial Court, it disagreed on one crucial aspect which resulted in upsetting the trial Court judgment. Learned appellate Court on considering the evidence on record and various legal authorities argued before it, held that complaint was validly filed and the accused received the notice and did not respond. While it agreed with every other finding rendered by the trial Court, it disagreed on one crucial aspect which resulted in upsetting the trial Court judgment. Para 12 of judgment of the appellate Court is extracted here: “The main contention of the accused is that he got issued Ex.P1 cheque at the time of commencement of account Katha towards security. I have gone through Ex.P1 cheque. The signature of the accused on Ex.P1 is in different ink with that of the other writings in it. There is no explanation from the complainant why they have not obtained Ex.P1 with the writings of same pen by the accused. The difference in ink in Ex.P1 is clearly supporting the case of the accused that he has not issued Ex.P1 on 03.01.2003 to discharge the existing liability. In view of the writing with two different inks in Ex.P1, I am of the opinion that the complainant firm should have obtained Ex.P1 at the time of commencement of Katha as security as contended by the learned counsel for the accused.” 10. It is in that view of the matter the learned first appellate Court held at Para-13 of its judgment that Ex.P1 cheque was materially altered and that it was not issued on 03.01.2003 and therefore the presumption raised under Section 139 of N.I. Act stood rebutted and benefit of doubt was to be given to accused and accordingly it acquitted the accused. 11. As against that acquittal judgment, learned counsel for complainant/revision petitioner argued that the signature on Ex.P1 cheque was admitted by the accused during his cross-examination. The accused did not argue about difference in ink in filling up of the cheque and the first appellate Court ignored to read the entire evidence available on record and failed in considering the facts and circumstances and rendered its judgment against the facts and law and in fact there was no basis to surmise that Ex.P1 cheque was given in blank. For these reasons, the revision shall be allowed and the accused shall be convicted by restoring the judgment of the learned trial Court. 12. For these reasons, the revision shall be allowed and the accused shall be convicted by restoring the judgment of the learned trial Court. 12. For Respondent No. 1/accused appearance was made through his learned counsel and when the matter was coming up for hearing on several earlier occasions time was prayed for arguments and the same was granted on all the earlier occasions and when the matter was posted for final arguments on 06.02.2023 as well as on 07.02.2023, the learned counsel for accused did not choose to appear and argue thereby indicating that there was no arguments on behalf of the accused. For Respondent No. 2 learned Special Assistant Public Prosecutor submits that this Court may take a decision in accordance with law. 13. In the context of the above facts and circumstances, the point that falls for consideration in this revision is: Whether the finding of the learned first appellate Court that Ex.P1 cheque was not given in discharge of debt and that Ex.P1 cheque was materially altered are findings based on evidence and in accordance with law? 14. Point: This case being a criminal revision petition where powers of this Court are sought to be invoked under Section 397 read with Section 401 Cr.P.C. and this being not an appeal, it shall be borne in mind that revisional jurisdiction is to preserve the power of the Court to do justice in accordance with the principles of criminal jurisprudence. The findings of the Courts below and the decision of the Court below is sought to be revised. This Court is entitled to do it only when it is shown to it that those findings and decisions are either perverse or untenable in law or they are grossly erroneous or glaringly unreasonable or where the decision was based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously. It is only in such circumstances this Court can interfere while exercising its revisional powers and the same is clear from the ratio in Sanjaysinh Ramarao Chavan vs. Dattatray Gulabrao Phalke, 2015 (3) SCC Online SC 123. 15. It is only in such circumstances this Court can interfere while exercising its revisional powers and the same is clear from the ratio in Sanjaysinh Ramarao Chavan vs. Dattatray Gulabrao Phalke, 2015 (3) SCC Online SC 123. 15. Having gone through the entire evidence on record and the judgments of the Courts below it is to be mentioned here that the case of the complainant that Ex.P1 cheque in its physical form was received by PW-1 from the accused is a fact that is admitted by the accused all through out the trial as he stated specifically even in his evidence as DW-1 that he physically handed over Ex.P1 cheque to PW-1. The cheque bears the signature of the drawer. PW-1 stated that it was given by accused. DW-1 in his evidence categorically stated that he signed the cheque and Ex.P1 cheque bears his signature. Thus, there is legitimate handing over of the cheque which bears the signature of the drawer and that much is undisputed. 16. As per the evidence of PW-1 and also as per the evidence of DW-1 there were business transactions between them and both sides stated that each of them was maintaining books of accounts concerning these business dealings. According to PW-1 towards repayment of what was overdue the accused gave him Ex.P1 cheque. That there was over due was shown by complainant through Ex.P8 statement of account. DW-1 during his cross examination verified it and admitted the truth of its contents. Thus as per Ex.P8 and the oral evidence on both sides the amount that was finally arrived it in Ex.P8 was the amount that was overdue from the accused to the complainant. Showing that, this amount was repaid no evidence was brought on record by the accused. He merely stated that he repaid it. He did not furnish the date of payment, mode of payment and place of payment. He did not produce his books of accounts to show that he had paid it and closed the account. Therefore, the fact that he failed to pay is the only conclusion that was possible and in fact trial Court rightly arrived at such conclusions. The learned first appellate Court did not disturb that finding. 17. Ex.P1 cheque as is available on record bears the date 03.01.2003. Therefore, the fact that he failed to pay is the only conclusion that was possible and in fact trial Court rightly arrived at such conclusions. The learned first appellate Court did not disturb that finding. 17. Ex.P1 cheque as is available on record bears the date 03.01.2003. Since the date is specifically given and is available on the negotiable instrument by the time it came to be considered by the Courts below there was mandate of the law in Section 118(b) of the Negotiable Instruments Act, 1881 to the affect that the Court shall presume, until contrary is proved, that every negotiable instrument which bears a date was made or drawn on such date. The contrary has to be proved and this presumption has to be dislodged by the one who questions the correctness of the date. The contention of the accused before the Courts below was that he did not fill up the date. No evidence was shown, excluding his own self-serving unverifiable statement, that he had given an undated cheque to the complainant. He did not take any acknowledgment that he had given an undated cheque or unfilled cheque to the complainant. Before initiating prosecution, according to both the Courts below, accused received notice from the complainant. The material on record and findings of the Courts below indicate that in those notices Ex.P1 cheque with all its contents has mentioned but the accused did not give any reply. As this Court verified the response of the accused recorded under Sections 251 and thereafter 313 Cr.P.C. there was no statement from the accused that he had given any undated, unfilled but signed cheque to the complainant. Thus, there was absolutely no material to think any probability that the accused did not put the date on Ex.P1 and did not hand it over to the complainant on the date that is available on the cheque but gave it on any different date. Accused never issued any notice to complainant for return of his cheques on the promise that he had discharged the debt. 18. The discussion made above shows that by the date written on Ex.P1 cheque the liability to repay money on the part of the accused to the complainant stood established and Ex.P1 cheque passed on from his hands to the hands of complainant legitimately stood established and the signature on Ex.P1 cheque stood admitted. 18. The discussion made above shows that by the date written on Ex.P1 cheque the liability to repay money on the part of the accused to the complainant stood established and Ex.P1 cheque passed on from his hands to the hands of complainant legitimately stood established and the signature on Ex.P1 cheque stood admitted. When such was the available material on record, certain legal principles were laid down by the Hon’ble Supreme Court of India to deal with a case in such circumstances. They are required to be noticed now. In Bir Singh vs. Mukesh Kumar, 2019 (4) SCC Online SC 197. Their Lordships considered Sections 20, 87, 139 of the Negotiable Instruments Act and held that all these provisions make it amply clear that a person who signs a cheque and makes it over to the payee remains liable even if it was a signed blank cheque leaf given by the drawer and it was filled up by any person other than the drawer. In Womb Laboratories Private Limited vs. Vijay Ahuja, 2019 SCC Online SC 2086. The Hon’ble Supreme Court of India held that, handing over of the cheque by way of security per se would not extricate the accused from the discharge of liability arising from such cheques. In Sripati Singh vs. State of Jharkhand, 2021 SCC Online SC 1002. In this case their Lordships of Supreme Court of India held that security given for a loan is something given as a pledge of payment. It is given to make certain fulfilment of an obligation to which the parties to the transaction are bound. In the absence of prior discharge of liability and if the liability is subsisting, cheque given as security will bring all the penal and legal consequences. 19. In the light of above legal principles and the evidence available on record, one has to concur with the findings of the learned trial Court that Ex.P1 cheque was given by the accused on the date it was mentioned on the cheque and it was given towards discharge of the subsisting liability shall be accepted. 19. In the light of above legal principles and the evidence available on record, one has to concur with the findings of the learned trial Court that Ex.P1 cheque was given by the accused on the date it was mentioned on the cheque and it was given towards discharge of the subsisting liability shall be accepted. Learned first appellate Court without eliciting any experts opinion and without anybody’s invitation and without considering all that relevant and material evidence and the law simply rushed to a conclusion that in its opinion there is a change in the colour of ink and Ex.P1 cheque was materially altered and was not given towards discharge of debt. No reasonable prudent man would have arrived at such conclusion on the kind of evidence that was available on record. Learned first appellate Court failed to look at the statute and the precedent and failed to apply the law to the facts. Its appreciation of evidence is unreasonable capricious and is perverse. Therefore, the conclusions reached by it cannot be supported and therefore the judgment of the first appellate Court shall be set-aside. 20. Having concluded to set-aside the judgment of the first appellate Court the result that emerges is that the acquittal granted to the accused is incorrect. In such circumstances, the accused shall be punished with appropriate sentence. However, since this Court is not sitting in appeal and this Court is only sitting in revision it cannot convert a finding of acquittal into one of conviction by virtue of legislative mandate in Sub-Section (3) of Section 401 of The Code of Criminal Procedure, 1973. The way out is indicated by the Hon’ble Supreme Court of India in Joseph Stephen vs. Santhanasamy, 2022 SCC Online SC 90. Their Lordships held that the High Court has to remit the matter to the first appellate Court to rehear the appeal and pass a judgment afresh. 21. In the above referred circumstances, the point is answered in favour of the revision petitioner. 22. In the result, this Criminal Revision case is allowed. The Judgment dated 23.01.2007 of the learned VIII Additional District and Sessions Judge (Fast Track Court) Vijayawada in Criminal Appeal No. 235 of 2005 is set aside and the matter is remitted to the said Court with a direction to rehear the appeal and render its judgment afresh in accordance with law as expeditiously as possible. 23. The Judgment dated 23.01.2007 of the learned VIII Additional District and Sessions Judge (Fast Track Court) Vijayawada in Criminal Appeal No. 235 of 2005 is set aside and the matter is remitted to the said Court with a direction to rehear the appeal and render its judgment afresh in accordance with law as expeditiously as possible. 23. As a sequel, miscellaneous applications pending, if any, shall stand closed.