ORDER : This Criminal Revision Case is filed by the petitioner, who was the appellant in Criminal Appeal No.173 of 2003, on the file of Principal Sessions Judge, West Godavari District at Eluru, challenging the judgment, dated 16.03.2005, where under the learned Principal Sessions Judge, dismissed the Criminal Appeal filed by the appellant, confirming the judgment in C.C.No.26 of 2003, on the file of Judicial Magistrate of First Class (Special Mobile Court), West Godavari District at Eluru. The Revision Petitioner faced trial before the learned Judicial Magistrate of First Class, West Godavari District at Eluru for the offence under Section 138 of Negotiable Instruments Act (“N.I. Act” for short) and he was convicted under Section 255 (2) of the Code of Criminal Procedure (“Cr.P.C.” for short) and sentenced to suffer simple imprisonment for six months and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for two months. 2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court for the sake of the convenience. 3. The case of the complainant before the Court below, according to the averments in the complaint filed by him alleging the offence under Section 138 of N.I. Act, is that the accused borrowed a sum of Rs.1,00,000/- on 13.01.1999 from the complainant, agreeing to repay the same with interest at Rs.2-50 ps. Per month per hundred with yearly rests. The accused accordingly executed a promissory note in favour of the complainant on the same day. On 13.12.2000 the accused issued a cheque in favour of the complainant, drawn on Canara Bank, Chettinavaripalem, Visakhapatnam for Rs.1,50,000/-, towards part discharge of the amount due under the promissory note. When the cheque was presented through the banker of the complainant in State Bank of India, it was returned by the Canara Bank, Visakhapatnam with an endorsement that payment of cheque was stopped. The payment was stopped, as the accused did not have sufficient funds to honour the cheque. The cheque bearing No.564094, dated 13.12.2000, drawn on Canara Bank, was dishonoured. The complainant issued a notice on 25.02.2001 as per the provisions of Negotiable Instruments Act to the accused. The accused received the same on 28.02.2001. As on the date of complaint, the accused did not make any payment. He did not give any reasons for stopping the payment. Hence, the complaint. 4. The complainant issued a notice on 25.02.2001 as per the provisions of Negotiable Instruments Act to the accused. The accused received the same on 28.02.2001. As on the date of complaint, the accused did not make any payment. He did not give any reasons for stopping the payment. Hence, the complaint. 4. The learned Judicial Magistrate of First Class, West Godavari District at Eluru, after conducting necessary enquiry, took the case on file and issued process on the accused. After appearance of the accused and after complying the provisions of Section 207 of Cr.P.C., the accused was examined under Section 251 of Cr.P.C., for which the accused denied the allegations, pleaded not guilty and claimed to be tried. 5. During the course of trial, on behalf of the complainant before the Court below, P.W.1 and P.W.2 were examined and Ex.P.1 to P.5 were marked. After closure of the evidence of the complainant, the accused was examined under Section 313 of Cr.P.C. with regard to the incriminating circumstances in the evidence of the complainant witnesses, for which he denied the same, but, the accused did not let in any defence witnesses. 6. The learned Judicial Magistrate of First Class, West Godavari District at Eluru, on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the offence under Section 138 of N.I. Act and accordingly, convicted and sentenced him as above. Aggrieved by the said judgment, the unsuccessful accused in the above said C.C.No.26 of 2003, filed the Criminal Appeal No.173 of 2003 before the learned Principal Sessions Judge, West Godavari District at Eluru, which came to be dismissed on merits. Aggrieved by the said judgment in Criminal Appeal No.173 of 2003, the unsuccessful appellant filed the present Criminal Revision Case. 7) Now, in deciding this Criminal Revision case, the point that arises for consideration is that as to whether the judgment, dated 16.03.2005 in Criminal Appeal No.173 of 2003, on the file of learned Principal Sessions Judge, West Godavari District at Eluru, suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the said judgment of the learned Principal Sessions Judge? POINT:- 8. POINT:- 8. The learned counsel appearing for the revision petitioner, Sri S. Khadar Mohiddin, would contend that the case of the complainant is that the accused borrowed Rs.1,00,000/- from him on 13.01.1999 and executed a promissory note and towards part discharge of the promissory note debt, the accused issued cheque, dated 13.12.2000, for a sum of Rs.1,50,000/- and when he presented it for collection, it was dishonoured on the ground that the payment was stopped. He would strenuously contend that filing of the C.C.No.26 of 2003 by the complainant before the concerned Judicial Magistrate of First Class was as a counter-blast to the letter of the revision petitioner to Mr. G. Sudhakar on 20.10.2000. It is the case of the revision petitioner that in respect of one chit transaction in the year 1997, the revision petitioner gave three empty cheques to G. Sudhakar and later discharged the chit amount, but G. Sudhakar did not return the cheques. As the revision petitioner suspected that G. Sudhakar may misuse it, he addressed a letter, dated 20.10.2000, demanding G. Sudhakar to return the cheques. After that only, Ex.P.1 was brought into existence by G. Sudhakar in collusion with the complainant by fabricating a theory. Apart from this, the revision petitioner intimated to his bank by letter, dated 02.11.2000 to stop payments on the ground that three cheques were taken by a third party. The subject matter of the present cheque was also one of the cheques in the said letter. Therefore, the letter addressed by the revision petitioner to G. Sudhakar and letter addressed by the revision petitioner to the bank were much prior to Ex.P.1 cheque. The revision petitioner agitated before P.W.1 about the defence theory but, unfortunately, due to the circumstances beyond the control, the revision petitioner could not let in any evidence. The complainant failed to file the subject matter of the promissory note before the Court below. The answers spoken to by him shows any amount of doubtful circumstances in truthfulness of his case. P.W.2, the bank official, also deposed false as if cheque was bounced due to insufficient funds. In fact, as the revision petitioner asked the bank authorities not to make payments, in view of the reason set out in his letter, the payment was stopped. The revision petitioner unfortunately could not let in evidence before the Court below in view of certain circumstances beyond his control. In fact, as the revision petitioner asked the bank authorities not to make payments, in view of the reason set out in his letter, the payment was stopped. The revision petitioner unfortunately could not let in evidence before the Court below in view of certain circumstances beyond his control. In fact, those two documents were marked in connection with Calendar Case at Visakhapatnam as Ex.D.1 and Ex.D.2. The Court below erroneously convicted the revision petitioner. When the revision petitioner filed Crl.M.P.No.2233 of 2004 in Criminal Appeal No.173 of 2003 under Section 391 of Cr.P.C. to adduce additional evidence, it was dismissed erroneously by the learned Principal Sessions Judge, Eluru on 28.01.2005. Subsequently, the Criminal Appeal was dismissed on merits. If the revision petitioner was granted permission to adduce additional evidence, he would have proved those documents by way of additional evidence. 9. Learned counsel for the revision petitioner would rely upon a decision of the Hon’ble Supreme Court in Rambhau and another vs. State of Maharashtra, 2001 (1) ALD (Crl.) 800 (SC) with regard to letting of additional evidence. He would further rely upon a decision of the Hon’ble Supreme Court in K.N. Beena vs. Muniyappan and another, (2001) 8 Supreme Court Cases 458 to contend that the complainant failed to prove the offence under Section 138 of N.I. Act. The learned counsel for the revision petitioner would further contend that the learned Principal Sessions Judge with untenable reasons went on to dismiss the Criminal Appeal. Both the Courts below failed to appreciate the contention of the revision petitioner that he had no acquaintance with the respondent-complainant. Apart from the above contentions, the learned counsel for the revision petitioner seeks to remand the matter to the appellate Court directing the appellate Court to permit the revision petitioner to adduce additional evidence. 10. In spite of the opportunity given, no arguments are advanced on behalf of the first respondent/complainant. 11. P.W.1 before the Court below was the complainant and he deposed in chief examination that he knows the accused, who did Readymade (wholesale) garments business. He knows the accused. The accused requested him to lend Rs.1,00,000/- for his business. The accused agreed to repay the amount with interest at 30% per annum and hence, he lent Rs.1,00,000/- on 13.01.1999. The accused executed a demand promissory note in his favour on the same day for the said amount incorporating certain terms. He knows the accused. The accused requested him to lend Rs.1,00,000/- for his business. The accused agreed to repay the amount with interest at 30% per annum and hence, he lent Rs.1,00,000/- on 13.01.1999. The accused executed a demand promissory note in his favour on the same day for the said amount incorporating certain terms. He demanded the accused to discharge the due under promissory note. Thereafter, the accused issued a cheque, dated 13.12.2000 for Rs.1,50,000/-, drawn on Canara Bank, Visakhapatnam, towards discharge of the loan amount due under the promissory note. The accused promised to arrange funds to honour the cheque. He presented the said cheque in State Bank of India, Vatluru in the month of January, 2001 for collection and it was sent to the drawer’s bank. It was informed that the accused made a request to the bank to stop the payment. So, the bank officials informed to him vide memo, dated 15.02.2001 that the accused requested the bank to stop payment under the cheque. Ex.P.1 is the cheque, dated 13.12.2000. Ex.P.2 is the cheque returned memo, dated 15.02.2001 issued by State Bank of India. Ex.P.3 is another cheque returned memo issued by Canara Bank, Chittivanipalem Branch, Visakhapatnam. He got issued a registered legal notice on 25.02.2001 demanding the accused to pay the amount due. He sent the notice through registered post. The accused received it under postal acknowledgement. Ex.P.4 is the office copy of the legal notice. Ex.P.5 is the postal acknowledgement. After receipt of legal notice, the accused requested him not to file the case, but, he filed the present complaint as per the provisions of Section 138 of N.I. Act. After the complaint was taken on file, the accused made his appearance and subsequently, executed a fresh demand promissory note in his favour not only for the principal amount but also the interest. The accused neither paid the amount due under the dishonour of cheque nor the amount due under the fresh promissory note. The accused issued Ex.P.1 to deceive him and requested the bank officials to stop the payment knowing fully well about the consequences. Hence, he is constrained to file the complaint. 12. The complainant also examined P.W.2, the then Assistant Branch Manager, State Bank of India, Vatluru, who deposed that P.W.1 had S.B. Account in their bank and its No.21/3345. The accused issued Ex.P.1 to deceive him and requested the bank officials to stop the payment knowing fully well about the consequences. Hence, he is constrained to file the complaint. 12. The complainant also examined P.W.2, the then Assistant Branch Manager, State Bank of India, Vatluru, who deposed that P.W.1 had S.B. Account in their bank and its No.21/3345. P.W.1 presented Ex.P.1 cheque in their bank on 23.01.2001 for collection and it was sent to the Canara Bank. Subsequently, they received communication from the drawer’s bank that Ex.P.1 was dishonoured due to insufficient funds. Later, they sent the dishonoured cheque to P.W.1 by registered post on 05.02.2001. 13. This revision case is preferred against the judgment of the learned Principal Sessions Judge, West Godavari District at Eluru in Criminal Appeal No.173 of 2003, dated 16.03.2005, confirming the judgment of the learned Judicial Magistrate of First Class, Eluru, under which the revision petitioner was convicted for the offence under Section 138 of N.I. Act. So, this revision case is preferred against the concurrent findings of both the Courts below. The simple question that has to be looked into while deciding this revision case is as to whether the judgment of the learned Principal Sessions Judge suffers with any illegality, irregularity and impropriety. Admittedly, it is a case where the complainant filed the complaint alleging the offence under Section 138 of N.I. Act before the Court below. In support of the case, the complainant examined himself as P.W.1 and further examined P.W.2, the bank official. 14. To appreciate the contention of the revision petitioner, it is appropriate to look into his defence before the Court below. There is no dispute about the signature of the accused on Ex.P.1, cheque, projected by the complainant. Coming to the cross examination of P.W.1, he deposed that he underwent training in I.T.I. as Mechanical Draftsman. He did not get mention either in the complaint or in Ex.P.4, legal notice, about Sai Hanuman Transport business which was carried on in Visakhapatnam. He did not produce any document for Sai Hanuman Transport business. He carried on transport business from the year 1998 to November, 2000. He did not produce any documentary proof for his transport business even for those two years. He did not mention in his complaint or Ex.P.4 about his acquaintance with the accused or the manner of the acquaintance. 15. He carried on transport business from the year 1998 to November, 2000. He did not produce any documentary proof for his transport business even for those two years. He did not mention in his complaint or Ex.P.4 about his acquaintance with the accused or the manner of the acquaintance. 15. It is to be noticed that it is the case of the complainant that he lent an amount of Rs.1,00,000/- to the accused under the cover of a specific promissory note. Though the complainant did not produce the promissory note, it will be discussed hereinafter as to whether it is fatal to the case of the complainant. Therefore, it is not a case where the amount was lent by Sai Hanuman Transport business to the accused. Hence, non-filing of any proof regarding the business carried by the complainant under the name and style of Sai Hanuman Transport business deserves no consideration here. 16. During the cross examination, P.W.1 denied that one G. Sudhakar is his friend. The learned counsel for the accused shown a Photostat copy to P.W.1 and asked him to disclose the names of the witnesses and their addresses. He could disclose the name of the second attestor, but not first attestor. He could not remember the name of the scribe, who scribed the original promissory note, dated 13.01.1999. He deposed that he did not file any suit basing on the promissory note, dated 13.01.1999 for recovery of amount. Even he did not address any letters or issue any notice demanding amount due under the promissory note. He denied that he obtained a blank cheque from G. Sudhakar and got filed a false case against the accused and nothing was happened in between them. 17. It is to be noticed that the mere non-filing of any suit by the complainant to recover the amount due under the promissory note does not entitle the accused to claim order of acquittal. The complainant sought to prove the guilt against the accused by relying on Ex.P.1 to Ex.P.5. There is no dispute about the issuance of Ex.P.4, legal notice, to the accused by the complainant and further receipt of the same under Ex.P.5, acknowledgment. The complainant sought to prove the guilt against the accused by relying on Ex.P.1 to Ex.P.5. There is no dispute about the issuance of Ex.P.4, legal notice, to the accused by the complainant and further receipt of the same under Ex.P.5, acknowledgment. In the cross examination though the complainant did not mark the original promissory note, but the accused cross examined him by showing Photostat copy of the promissory note, dated 13.01.1999 and asked him to state the names of the attestors. However, nothing was suggested to P.W.1 during cross examination that the so called promissory note set up by the complainant is fabricated document. During the cross examination the signature of the accused on Ex.P.1 is not denied in any way. Therefore, it is a case where P.W.1 denied the defence of the accused that he obtained a blank cheque from G. Sudhakar and got filed a false case against the accused with his convenience. The complainant examined P.W.2, the bank official, who spoken about the fact that when P.W.1 presented Ex.P.1, cheque, in their bank on 23.01.2001 for collection, it was sent to Canara Bank and later they received information from the drawer’s bank that it is dishonoured as insufficient funds. 18. Admittedly, the cheque was dishonoured as payment was stopped according to the case of the complainant and as evident from Ex.P.2 and Ex.P.3, the cheque returned memos. It appears that P.W.2 mistakenly deposed that the cheque was dishonoured due to insufficient funds. P.W.2 did not deny Ex.P.2 and Ex.P.3. Hence, it is clear that according to Ex.P.2 and Ex.P.3, the cheque was dishonoured as payment was stopped. It is quietly evident from Ex.P.2 and Ex.P.3. It is clear that the complainant proved the factum of dishonour of Ex.P.1. No probabilites were elicited from the mouth of P.W.1 during cross examination as to how the cheque under Ex.P.1 went into the hands of G. Sudhakar and how G. Sudakhar handed over the same to P.W.1. During Section 313 of Cr.P.C. examination, the accused revealed that he does not know P.W.1 and he never delivered the promissory note or cheque to P.W.1. In the year 1997 he handed over three empty cheques to G. Sudhakar in connection with chits and later he cleared the chit amount. Though he paid the chit amount, but the blank promissory notes and cheques were not returned to him. In the year 1997 he handed over three empty cheques to G. Sudhakar in connection with chits and later he cleared the chit amount. Though he paid the chit amount, but the blank promissory notes and cheques were not returned to him. On account of his acquaintance with G. Sudhakar, he did not ask for return of those cheques and promissory notes. It is to be noticed that these things that were put forth in Section 313 of Cr.P.C. examination were not put forth before P.W.1. The simple defence before P.W.1 was that he obtained empty cheques from G. Sudhakar and filed a false case. It was not suggested to P.W.1 that the complainant delivered three empty cheques and promissory notes to G. Sudhakar and G. Sudhakar did not return, etc. There is no dispute that the accused never issued any reply to counter the allegations in Ex.P.4, legal notice. There is also no dispute that he did not issue any legal notice to G. Sudhakar. The accused did not let in any defence evidence by examining G. Sudhakar to probabalise his contention. Even he did not examine any bank officials to prove his contentions now, as canvassed during the course of hearing of this revision petitioner. 19. It is the specific evidence of P.W.1 that after filing of the complaint, the accused executed another promissory note with interest in respect of the subject matter of the issue and even after that he failed to pay that amount. This portion of the evidence of P.W.1 was not at all impeached during the cross examination. Therefore, the complainant before the Court below examined himself as P.W.1 and examined P.W.2 and got marked Ex.P.1 to Ex.P.5. The simple defence of the accused that the complainant obtained a blank cheque and fabricated Ex.P.1 remained a mere allegation. There were no circumstances in the evidence of P.W.1 to disbelieve his evidence. Hence, the suggestions that were put forth before P.W.1 would not disprove the case of the complainant, as such, the Court below found the accused guilty of the offence and convicted him. 20. There were no circumstances in the evidence of P.W.1 to disbelieve his evidence. Hence, the suggestions that were put forth before P.W.1 would not disprove the case of the complainant, as such, the Court below found the accused guilty of the offence and convicted him. 20. The contention of the revision petitioner is that he addressed a letter suspecting some mischief on the part of G. Sukhakar on 20.10.2000 and that Ex.P.1 was brought into existence as a counter-blast and that further addressed a letter on 02.11.2000 to the bank to stop payments as three cheques fell into hands of a third party and Ex.P.1 is one of such cheques. Even this version was not suggested to P.W.1 during the cross examination. Nothing was suggested before P.W.1 during cross examination that the accused addressed a letter, dated 20.10.2000 to G. Sudhakar demanding to return the cheques and promissory notes and further addressed a letter to the bank on 02.11.2000 to stop payments, etc. It is a fact that the accused in the capacity of the appellant filed Crl.M.P.No.2233 of 2004 in Crl.A.No.173 of 2003 and the learned Principal Sessions Judge by virtue of an order, dated 28.01.2005, dismissed the same. The revision petitioner enclosed the copies of the petition, counter and the order in the above Criminal Miscellaneous Petition along with the Memorandum of Revision. 21. Now the contention of the revision petitioner is that the learned appellate Court erroneously dismissed the said application. If the Court remands this matter, it would resolve the issue and the revision petitioner would be able to prove the case before the Court below. This Court has carefully looked into the above said contention. As evident from the order in Crl.M.P.No.2233 of 2004 in Crl.A.No.173 of 2003, dated 28.01.2005, it is quietly evident that along with the said Criminal Miscellaneous Petition, the revision petitioner did not enclose the so-called copies of letters. The Criminal Miscellaneous Petition was filed before the Court below on 07.09.2004, for which a counter was filed and it was disposed on 28.01.2005. Subsequently, the appeal was dismissed on merits. The revision petitioner enclosed the so-called Ex.D.1 and the so-called Ex.D.2, the purported letters, dated 20.10.2000 and 02.11.2000 respectively marked in C.C.No.76 of 2001. There is no dispute that those letters were not brought in evidence either before the Court below or before the appellate Court. Subsequently, the appeal was dismissed on merits. The revision petitioner enclosed the so-called Ex.D.1 and the so-called Ex.D.2, the purported letters, dated 20.10.2000 and 02.11.2000 respectively marked in C.C.No.76 of 2001. There is no dispute that those letters were not brought in evidence either before the Court below or before the appellate Court. The order of the learned Principal Sessions Judge shows that the revision petitioner even to prove his bonafidies did not enclose any letter along with the petition. The order in Criminal Miscellaneous Petition goes to show that the learned Principal Sessions Judge looked into overall facts and circumstances and dealt with the scope of Section 391 of Cr.P.C. and that the accused did not file even a copy of the letter to prove his bonafidies. With the above, the learned Principal Sessions Judge dismissed the same. 22. Now, the appellant sought to rely upon Rambhau’s case (1 supra) to let in additional evidence. It was a case under Prevention of Corruption Act. The Court below acquitted the accused for the charges framed. When the matter was canvassed before the High Court of Bombay, appeal was allowed reversing the judgment of the trial Court by convicting the appellant. Then, the appellant filed Criminal Appeal before the Hon’ble Supreme Court, which was dismissed. Dealing with Section 391 of Cr.P.C., the Hon’ble Supreme Court held that the additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the case against the accused. Ultimately, the Hon’ble Supreme Court held that the exercise of powers under Section 391 of Cr.P.C. is dependent upon the fact-situation of the matter. So, it is a case where the additional evidence was sought to be adduced, it was held that the additional evidence cannot be adduced so as to cause prejudice to the accused. It appears, it was a case where the evidence was sought to be let in against the accused. Here, it is the accused, who sought for additional evidence against the complainant. Having regard to the scope of Section 391 of Cr.P.C., this Court is of the considered view that the appellant never set forth his defence as sought for in his application for additional evidence before P.W.1 when he was subjected to probing cross examination. Here, it is the accused, who sought for additional evidence against the complainant. Having regard to the scope of Section 391 of Cr.P.C., this Court is of the considered view that the appellant never set forth his defence as sought for in his application for additional evidence before P.W.1 when he was subjected to probing cross examination. In my considered view, the appellant miserably failed to make out a case so as to adduce the additional evidence before the learned Principal Sessions Judge and the learned Principal Sessions Judge passed an elaborate order negativing the contention of the appellant. Under the circumstances, the alternative submission made by the learned counsel for the revision petitioner that if this Court remands the matter to the Court below, it would resolve the issue is not tenable. Therefore, it is not a fit case to remand the matter to the Court below. 23. Turning to another decision in K.N. Beena’s case (2 supra), the factual aspects are such that the Hon’ble Supreme Court dealing with the presumption under Section 118 and 139 of N.I. Act, held that the presumption is rebuttable by the accused, but mere denial in replying to the legal notice is not enough to discharge the burden on the part of the accused. Coming to the case on hand, even it is not a case where the accused refuted the allegations in Ex.P.1 having received a legal notice. Even he failed to put forth his defence now, as canvassed before P.W.1 during the cross examination. He did not let in any defence evidence. He did not elicit any probable circumstances from P.W.1 to probabalise his defence. Even he did not make out any case before the learned appellate Court so as to adduce additional evidence as sought for. In my considered view, the revision petitioner failed to probabalise his defence theory and failed to rebut the presumption under Section 139 of N.I. Act. In fact, the decision in K.N. Beena’s case (2 supra) goes contra to the case of the revision petitioner. 24. In my considered view, the revision petitioner failed to probabalise his defence theory and failed to rebut the presumption under Section 139 of N.I. Act. In fact, the decision in K.N. Beena’s case (2 supra) goes contra to the case of the revision petitioner. 24. A perusal of the judgment of the learned Principal Sessions Judge in Criminal Appeal No.173 of 2003 goes to show that the learned Principal Sessions Judge looked into the facts and circumstances in proper perspective and answered the authorities cited by the learned counsel for the appellant properly and ultimately after analyzing the evidence on record, came to a conclusion that the appeal filed by the appellant is liable to be dismissed. In my considered view, the judgment of the learned Principal Sessions Judge in Criminal Appeal No.173 of 2003 does not suffers with any illegality, irregularity and impropriety. The evidence on record before the Court below established his case as projected with cogent evidence, as such, the learned Principal Sessions Judge, West Godavari at Eluru rightly dismissed the appeal. Therefore, I see no reason to interfere with the judgment of the learned Principal Sessions Judge, West Godavari at Eluru, dated 16.03.2005 in Criminal Appeal No.173 of 2003. 25. In the result, the Criminal Revision Case is dismissed. 26. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the trial Court on or before 24.03.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant and to report compliance to this Court. Consequently, miscellaneous applications pending, if any, shall stand closed.