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2024 DIGILAW 902 (AP)

B. Philomina Rani v. State of A. P.

2024-08-01

V.SRINIVAS

body2024
ORDER : V. Srinivas, J. Assailing the judgment, dated 16.10.2008, in Crl.A.No.88 of 2007 on the file of the Court of learned III Additional Sessions Judge, Guntur, confirming the conviction and sentence imposed by the Judgment, dated 14.02.2007 in C.C.No.80 of 2006 on the file of the Court of learned V Additional Munsif Magistrate, Guntur, for the offence punishable under section 138 read with 142 of the Negotiable Instruments Act (hereinafter referred to as “N.I.Act”), the petitioner/accused filed the present criminal revision case under Section 397 read with 401 of the Criminal Procedure Code, 1973. 2. The revision case was admitted on 03.06.2016 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.1636 of 2016. 3. The shorn of necessary facts are that : (i). Out of money dealings between the complainant and accused, the accused borrowed Rs.60,000/- from the complainant on 18.04.2011 for his necessities and executed a promissory note agreeing to repay the amount together with interest at the rate of 24 percent per annum. On repeated demands made by the complainant, on 20.07.2011, the accused paid the interest up to that date and issued cheque bearing No.344721 for Rs.60,000/- drawn on Syndicate Bank, Rapur, in discharge of the debt due to the complainant. Upon which, the complainant on the same day returned the promissory note and presented the said cheque on 28.07.2011 through Syndicate Bank, Rapur Branch for collection and the same was returned dishonoured on the ground of "Insufficient funds" in the account of the accused. (ii). The complainant got issued the statutory notice on 03.08.2011 calling upon the accused to pay the cheque amount within 15 days of receipt of the notice. The accused on receiving notice got issued reply notice with false allegations. Hence, the complainant filed a private complaint against the accused for the offence under Section 138 read with 142 of the Negotiable Instrument Act. 4. The accused on receiving notice got issued reply notice with false allegations. Hence, the complainant filed a private complaint against the accused for the offence under Section 138 read with 142 of the Negotiable Instrument Act. 4. The complaint was taken on file and numbered as C.C.No.400 of 2012 on the file of the Court of learned II Special Judicial Magistrate of First Class, Venkatagiri and after full-fledged trial, found the accused guilty of the offence under Section 138 read with 34 of the N.I.Act and sentenced him to undergo Rigorous Imprisonment of a period of six (6) months and to pay Rs.60,000/- towards compensation, i.d.s.i., for two month under Section 357 Cr.P.C., for the offence punishable under Section 138 read with 148 of the N.I.Act. 5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.129 of 2013, before the Court of learned VII Additional District & Sessions Judge, Gudur, and the same was dismissed, vide judgment dated 12.04.2016, 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 Kambhampati Ramesh Babu, learned counsel for the petitioner/accused and Sri G. Venkateswarlu, learned counsel for the Respondent No.1/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 Kambhampati Ramesh Babu, learned counsel for the petitioner/accused submits that the complainant failed to prove the ingredients to constitute the offence alleged against the petitioner; that the testimony of P.W.1 is not reliable. The petitioner/accused herein repaid the debt amount borrowed from the complainant and admittedly the complainant also returned the pronote executed by the petitioner. The complainant willfully kept the cheque with him with a malifide intention and filed the present complaint and the said fact is established by the evidence of DWs 1 and 2.Both the Courts below without appreciation of the material on record, erroneously convicted the petitioner for the said offence and the same is liable to be set aside. 10. The complainant willfully kept the cheque with him with a malifide intention and filed the present complaint and the said fact is established by the evidence of DWs 1 and 2.Both the Courts below without appreciation of the material on record, erroneously convicted the petitioner for the said offence and the same is liable to be set aside. 10. Sri G. Venkateswarlu, learned counsel for the Respondent No.1/complainant submits that accused borrowed an amount of Rs.60,000/- from the complainant, executed a promissory note, in turn, on demand, issued Ex.P.1 cheque for an amount of Rs.60,000/- to discharge the said promissory note amount by taking the original of said promissory note, but Ex.P.1 cheque was returned unpaid; that the accused gave reply to Ex.P3 under Ex.P5 with false allegations; that the presumption can be drawn in favour of the complainant; that the Courts below properly appreciated the material on record, rightly convicted the accused for the said offence and this Court has no grounds to interfere with the concurrent findings of both the Courts below. 11. In view of the facts and contentions raised by the learned counsel on both sides, this Court closely perused the material available on record. There is no dispute about the issuance of Ex.P.1 cheque to the complainant as well dishonour of the same as unpaid. 12. The only contention raised by the petitioner/accused is that there are financial dealings between the petitioner and complainant and that the petitioner has paid the debt amount borrowed from the complainant and admittedly the complainant has also returned the pronote executed by the petitioner herein. But the complainant willfully kept the cheque with him with a malafide intention and filed the present complaint and the said fact was established by the oral evidence of DWs 1 and 2. 13. To prove his case, the complainant himself was examined as P.W.1. He reiterated the averments made in the complaint. The evidence of PW2 who is working as Branch Manager, Syndicate Bank, Rapur, is that the cheque was returned on the ground of "insufficient funds" in the account of accused. The accused still having the said account. 14. Now, coming to the defense evidence, DW1 is not disputing issuance of the cheque and he admitted issuance of the cheque. The evidence of PW2 who is working as Branch Manager, Syndicate Bank, Rapur, is that the cheque was returned on the ground of "insufficient funds" in the account of accused. The accused still having the said account. 14. Now, coming to the defense evidence, DW1 is not disputing issuance of the cheque and he admitted issuance of the cheque. In catena of Judgments of Hon'ble Apex Court, it was categorically held that even a blank cheque voluntarily signed and hand over by the accused, which is towards some payment, would attract presumption under the Section 139 of N.I.Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of debt. 15. It is the contention of the petitioner that he borrowed an amount of Rs.50,000/- from the complainant in the year 2005 and during that time he executed pronote and issued two cheques to the complainant. Subsequently, he discharged the debt and the complainant returned the pronote and one cheque, but failed to return another cheque stating that it was misplaced. At that time one N.A.Raju who is driver and G. Venkataramaiah, Senior Assistant of their office were present. Ex.P1 cheque was not issued to the complainant in discharge of any debt. The evidence of DW2 is also in the lines of DW1. But, as pointed out by the trial Court, the pronote and returned cheque are not filed in support of their contention, which shows that the story put forth by the accused is not believable. 16. Presumption under Section 139 of N.I. Act ought to have been invoked and Section 139 of the N.I. Act is an example of reverse onus clause and therefore once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the accused to rebut such presumption by leading evidence. 17. In the case on hand, the accused failed to rebut such presumption by leading plausible evidence and the version put forth by the accused is not convincing. In that view, it has to be noted that there is no dispute with regard to the issuance of the cheque and the same is also not denied by the accused. 18. 17. In the case on hand, the accused failed to rebut such presumption by leading plausible evidence and the version put forth by the accused is not convincing. In that view, it has to be noted that there is no dispute with regard to the issuance of the cheque and the same is also not denied by the accused. 18. It is settled law that the revisional court should not re-appreciate the evidence or interfere with the findings of fact, unless they are perverse or unreasonable. This is one of the principles of criminal revision, as laid down by the Hon'ble Supreme Court of India in plethora of judgments. The revisional court should not act as a Second Appellate Court and substitute its own views for those of the Court below, unless there is a clear error of law or a gross injustice in the order or proceeding of the lower court. The revisional court should exercise its power with caution and restraint and only in exceptional cases where there is a manifest illegality or a serious miscarriage of justice. 19. In the present case on hand, this Court does not find any such error of law or a gross injustice in the judgment or proceeding of the Courts below/Sessions Court to exercise revisional power. 20. However, learned counsel for the petitioner seeks this court indulgence to show some lenient view in favour of the petitioner, for which the counsel for the respondent submits he has no objection if petitioner pays the cheque amount with default clause. Now, coming to operation of sentence is concerned, in Judgment of this Court in Laxminivas Agarwal v. Andhra Semi-Conductors Pvt. Ltd., (2006) 1 ALD Crl. 300 (A.P.) as well judgment of Hon'ble Supreme Court reported in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 , wherein at paragraph Nos.18, 19, 28 and 29 held as follows : 19. It is well settled that in the 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-analyze 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 is not for the Revisional Court to re-analyze 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 reliefs. 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.” 21. Considering the above authoritative pronouncements and as discussed supra, this Court does not find any grounds to interfere with the concurrent findings recorded by both the Courts below regarding conviction under Section 138 of N.I.Act against the petitioner. However, to meet the ends of justice, the petitioner/accused is directed to pay the cheque amount i.e., Rs.60,000/- (Rupees Sixty Thousand Only) to the complainant towards compensation within a period of two (2) weeks from the date of receipt of copy of this order, in default, he shall undergo the sentence of imprisonment as well fine imposed as affirmed by the first Appellate Court. Accordingly, the revision petitioner is directed to appear before the Court of learned Special Judicial Magistrate of First Class, Venkatagiri, within two weeks from the date of receipt of copy of this order, to pay the compensation amount as fixed by this court. In case, any failure on the part of the revision petitioner in appearing before the trial Court as directed supra and in making the payment of compensation amount, the trial Court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against him. 22. With the above observations, the present Criminal Revision Case is disposed of. 22. With the above observations, the present Criminal Revision Case is disposed of. Copy of this order shall be made to the trial Court and the learned Magistrate concerned shall take steps against the petitioner/accused to serve the sentence, if he fails to comply with the condition stated in penultimate paragraph of this order. Interim orders granted earlier if any, stand vacated. As a sequel, miscellaneous applications pending, if any, shall stand closed.