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2024 DIGILAW 532 (AP)

Uggina Apparao v. State Of A. P.

2024-05-07

V SRINIVAS

body2024
ORDER : V Srinivas, J. Assailing the judgment dated 17.06.2009 in Crl.A.No.23 of 2007 on the file of the Court of learned I Additional Metropolitan Sessions Judge at Visakhapatnam, confirming the conviction and sentence passed against the accused by the judgment dated 08.02.2007 in C.C.No.193 of 2003 on the file of the Court of learned II Additional Chief Metropolitan Magistrate at Visakhapatnam, for the offence under section 138 of Negotiable Instruments Act (hereinafter referred to as “N.I. Act”), the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973. 2. The revision case was admitted on 23.06.2009 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.1345 of 2009. 3. The shorn of necessary facts are that: i). On 01.10.2000, accused borrowed an amount of Rs.50,000/- from the complainant by executing a promissory note and agreed to repay the same with interest @ 24% per annum. On 21.11.2001, accused paid an amount of Rs.2,000/- towards interest and made an endorsement to that effect on the back side of the said promissory note. ii). Thereafter, even on the repeated demands made by the complainant, he did not pay any amount to the complainant. On that, complainant got issued a legal notice on 12.07.2002 to the accused demanding him to pay the entire due amount. On receipt of the same, accused issued a cheque bearing No.395101 on 01.08.2002 for Rs.70,000/- drawn on ‘The Nedungadi Bank Ltd.’, Visakhapatnam. Then, the complaint presented the said cheque in his bank on 08.08.2002 as per the request made by the accused, but the same was returned with an endorsement “insufficient funds”. iii). On that, complainant informed the same to the accused and on the request made by him to present the same after 20.10.2002, complainant again presented the said cheque on 21.10.2002 for encashment, but the same was returned unpaid with an endorsement “insufficient funds” on 22.10.2002. iv). Then complaint got issued a statutory legal notice on 01.11.2002 to the accused demanding him to pay the cheque amount, the same was received by the accused and kept quiet. Hence, the complaint. 4. iv). Then complaint got issued a statutory legal notice on 01.11.2002 to the accused demanding him to pay the cheque amount, the same was received by the accused and kept quiet. Hence, the complaint. 4. The complaint was taken on file and numbered as C.C.No.193 of 2003 on the file of the Court of learned II Additional Chief Metropolitan Magistrate at Visakhapatnam and after full-fledged trial, found the accused guilty of the offence under Section 138 of N.I.Act, sentenced him to undergo simple imprisonment of three (3) months and also directed him to pay compensation of Rs.1,000/- to the complainant under Section 357(3) of Cr.P.C. 5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.23 of 2007, before the Court of learned I Additional Metropolitan Sessions Judge at Visakhapatnam and the same was dismissed, vide judgment dated 17.06.2009, by confirming the conviction and sentence passed by the trial Court. 6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused. 7. Heard Sri K.A.Narasimham, learned counsel for the petitioner/accused and Sri K.Ajay Kumar, learned legal aid counsel appointed for the 2nd respondent/complainant. 8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?” 9. Sri K.A.Narasimham, learned counsel for the petitioner/accused submits that the complainant failed to prove the ingredients to constitute the offence alleged against the petitioner; that there is no proper memo from the Bank informing that there was dishonor of cheque; that Ex.P.2 cheque return memo has not been proved in terms of law; that the very complaint instituted by the 2nd respondent is wrong; that the Trial Court as well Sessions Court failed to appreciate the material on record in a proper perspective, erroneously convicted the petitioner and the same is liable to be set aside. 10. 10. Against the same, Sri K.Ajay Kumar, learned legal aid counsel appointed for the 2nd respondent/complainant submits that accused borrowed amount from the complaint by executing Ex.P.6 promissory note and failed to discharge the same; that Ex.P.1 cheque dated 01.08.2002 issued by the complaint for discharging the debt was dishonoured due to insufficient funds; that accused failed to pay the cheque amount, even after receipt of Ex.P.3 legal notice; that the complaint was filed within the period of limitation; that the Courts below rightly appreciated the evidence on record and convicted the petitioner for the said offence. 11. In view of the above rival contentions, this Court perused the material available on record. There is no dispute about the borrowal of amount of Rs.50,000/- by the accused from the complainant under Ex.P.6 Promissory Note, issuance of Ex.P.1 cheque and signature of the accused on the same. The only contention raised by the accused is that the complaint itself is barred by limitation. 12. To prove the case, the complainant himself examined as P.W.1 and got exhibited Exs.P.1 to P.6. He categorically testified about the averments made in the complaint. Nothing was elicited during cross examination to disbelieve the testimony of P.W.1 and no rebuttal evidence is placed on record to prove the contentions raised by the accused. Even, accused did not enter into the witness box before the trial Court to rebut the case of the complainant. He did not even deny his signature on Ex.P.6 promissory note. On perusal of Ex.P.6, it contains thumb impression of complainant along with signature. 13. Furthermore, on perusal of Ex.P.5 legal notice, it was issued on 12.07.2002 by the complainant demanding the accused to pay the due amount under Ex.P.6 promissory note, the same was not denied by the accused and in fact copy of the same was marked during cross examination of P.W.1 by the accused as Ex.D.2. He did not deny the contents in Ex.P.5/D.2 by issuing any reply. 14. On perusal of Ex.P.3 statutory notice, when Ex.P.1 cheque was dishonoured with insufficient funds under Ex.P.2 cheque return memo, complainant issued the said notice demanding the accused to pay the cheque amount. The same was received by him under Ex.P.4, kept quiet and even did not deny the contents in the said notice by issuing any reply. 14. On perusal of Ex.P.3 statutory notice, when Ex.P.1 cheque was dishonoured with insufficient funds under Ex.P.2 cheque return memo, complainant issued the said notice demanding the accused to pay the cheque amount. The same was received by him under Ex.P.4, kept quiet and even did not deny the contents in the said notice by issuing any reply. As stated supra, accused did not raise any dispute regarding his signature and thumb impression on Ex.P.6 promissory note as well signature in Ex.P.1 cheque. Furthermore, on perusal of Ex.P.2 cheque return memo, it was issued by Nedungadi Bank Limited at Visakhapatnam. In view of the above circumstances, the presumption under Section 118 of N.I. Act can be drawn in favour of the complainant. Thereby, it is categorically proved that accused borrowed an amount of Rs.50,000/- from the complainant under Ex.P.6, issued Ex.P.1 cheque to discharge the same and the same was dishonoured due to funds insufficient. 15. During the arguments, the senior counsel Sri Narasimham argued that the only point is compliant itself liable for dismissal as it hit by limitation. Now coming to the point of limitation, it is the contention of the petitioner that the complaint filed beyond the period of limitation of thirty days as notice under Ex.P.3 was given on 01.11.2002, if fifteen days is calculated from 01.11.2002, it expires by 16.11.2002, as such the complaint has to be filed within one month i.e., on 16.12.2002, but the same was filed on 19.12.2002. 16. On the other hand, learned counsel for the complainant submits that the complaint was filed on 10.12.2002 itself, but not 19.12.2002 as contended by the accused. 17. On perusal of the complaint, the D.D.R. number 10927 is given and the date 10.12.2002 is clearly mentioned under it and when the note was put up, it is signed by the checking staff on 11.12.2022 itself and the on the same day, trial Court has ordered that “complainant called absent and call on 09.01.2003” and below the said docket order initial and date put on by the presiding officer, which shows as 11.12.2002. Thereby, it is not possible, when the complaint filed 19.12.2002 as per the contention, to pass the docket order on 11.12.2002 itself. Even on perusal of the docket the date 19.12.2002 was again corrected as 10.12.2002. Thereby, it is not possible, when the complaint filed 19.12.2002 as per the contention, to pass the docket order on 11.12.2002 itself. Even on perusal of the docket the date 19.12.2002 was again corrected as 10.12.2002. Thereby, the said date mentioned as 19.12.2002 cannot be relied upon, because there is a docket order passed on 11.12.2002 itself stating that complainant called absent and call on 09.01.20023. Hence, the above all goes to show that the complaint is within the time prescribed under the Act. 18. The first Appellate Court categorically and minutely discussed about the said aspect and held that the notice under Ex.P.3 dated 01.11.2002 was received by the accused on 05.11.2002, so, fifteen days from that date expires by 20.12.2002 and from the said date thirty days is to be calculated, thereby the complaint even if filed on 19.12.2002, it is well within limitation. In view of the above, viewing from any angle, the contention raised by the accused has no legs to stand. 19. It is settled law that the minutest reexamination of whole evidence at the revisional stage is totally oblivious of the selfrestraint when there is concurrent finding of fact. The trial Court as well Sessions Court categorically held that the complainant proved his case under Section 138 of N.I. Act and accused failed to rebut the presumption in favour of the complainant. 20. It is settled law that in view of the concurrent findings on facts by the Trial Court as well Sessions Court, this Court being Revisional Court is not expected to set aside the same without any material of perversity or manifest error in the findings arrived by both the Courts below. There is no material before this Court to discard the trustworthiness of complainant’s case. 21. All these facts go to show that both the Courts below rightly came to conclusion that accused failed to discharge the debt under Ex.P.6 promissory note and Ex.P.1 cheque issued by him was dishonoured due to insufficient funds and that there is no apparent failure on the part of the Trial Court as well Sessions Court in appreciating the material on record or to arrive at a conclusion that prosecution proved the guilt of the accused for the said offences. In these circumstances, this Court is of the considered opinion that there is no perversity or flaw in the findings recorded by both the Courts below in convicting the accused for the said offence. 22. Coming to the operation of sentence is concerned, the trial Court sentenced the accused to undergo simple imprisonment of three (3) months, which was confirmed by the first Appellate Court, and there are no mitigating circumstances placed on record to reduce the same. 23. Having regard to the above discussion and in view of the above pronouncement of the Hon’ble Supreme Court, this Court is of the considered opinion that there are no legally valid grounds to interfere with the conviction and sentence passed by the trial Court, which was confirmed by the first Appellate Court, as such, the present criminal revision has no merits. Therefore, the same is liable to be dismissed. 24. In the result, the Criminal Revision Case is dismissed confirming the judgment dated 17.06.2009 in Crl.A.No.23 of 2007 on the file of the Court of learned I Additional Metropolitan Sessions Judge at Visakhapatnam. Interim orders granted earlier if any, stand vacated. As a sequel, miscellaneous applications pending, if any, shall stand closed.