HON'BLE SRI JUSTICE A.SANTHOSH REDDY
CRL.Rc.No.1046 OF 2017
ORDER:
This revision is directed against the judgment dated 11.04.2017, passed by the III Additional Judicial Magistrate of First Class, Khammam confirming the judgment of Principal Sessions Judge at Khammam, dated 09.03.2016, in C.C.No.306 of 2014, on the file of the Principal Sessions Judge, Khammam, wherein the petitioner was found guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') and sentenced to undergo Rigorous Imprisonment for a period of one year and also directed to pay Rs.3,30,000/- under Section 255(2) Cr.P.C.
2. Heard the learned counsel for the petitioner and the learned counsel for the second respondent. Perused the material on record.
3. The parties hereinafter referred to as the complainant and the accused as arrayed in the complaint before the trial Court.
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4. The second respondent/complainant herein filed complaint against the petitioner/accused herein alleging that he is an agriculturist as well as business man, whereas the accused is also business man taking the rice mills on contract basis. Out of acquaintance, the complainant advanced an amount of Rs.1,00,000/-, Rs.1,20,000/- and Rs.50,000/- on 14.04.2013, 16.04.2013 and 23.04.2013 respectively and the accused received the same and executed pronotes. Subsequently, the accused towards repayment issued cheque for Rs.3,30,000/- dated 09.05.2014 including the interest accrued drawn on State Bank of Hyderabad, Khammam branch, dated 09.05.2014, in favour of the complainant. The said cheque was presented for encashment at ING Vysa Bank Limited, Gandhi Chowk Branch, Khammam and the same was returned unpaid through cheque return memo dated 13.05.2014 for the reason "funds insufficient" in the account of the accused. Then the complainant got issued legal notice to the accused calling upon him to pay the amount within 15 days and the said notice was served on 16.05.2014 and rejoinder notice was issued on 26.05.2014 which was served on 28.05.2014 and the 3 ASR,J crlrc_1046_2017 accused got issued reply notice denying the liability and requested the complainant to supply copies of pronotes and cheque as mentioned in the legal notice. Again on 30.05.2014, the complainant got issued rejoinder reply notice with all the photocopies of pronote and cheque and the same was served on the accused. But the accused failed to pay the amount. Hence, this complaint is filed under Section 138 of the Act against the accused.
4. The accused denied the offence and pleaded not guilty. In support of his case, the complainant examined himself as P.W.1 and on his behalf examined Pws.2 and 3 and marked Exs.P-1 to P-13. The accused has not adduced any defence evidence.
5. On hearing both the counsel and perusing the material available on record, the learned Magistrate found guilty for the offence under Section 138 of the Act and convicted under Section 255(2) Cr.P.C. to undergo Rigorous Imprisonment for a period of one year and was also directed to pay compensation of Rs.3,30,000/-. Being aggrieved by the same, the accused preferred appeal No.56 of 2016 on the file of Principal Sessions Judge, 4 ASR,J crlrc_1046_2017 Khammam. The learned Sessions Judge after hearing both the counsel and considering the material on record confirmed the conviction and sentence imposed including the compensation by the trial Court and dismissed the appeal. Being aggrieved by the same, the present criminal revision case is filed.
6. Learned counsel for the accused submits that there is no legally enforceable debt, in discharge of which the accused did not issue cheque to the complainant and there are two different inks used in the preparation of cheque and it can be believed that Ex.P.1 cheque which was misused by the complainant. Therefore, the learned counsel prays to allow the revision and acquit the accused.
7. Learned counsel for the complainant submits that the trial Court and the appellate Court have given concurrent findings that the complainant has successfully proved that he has paid money to the accused and in discharge of legally enforceable debt, Ex.P.1 cheque was issued by the accused. Therefore, the complainant has proved the there exists legally enforceable debt with oral and documentary evidence in respect of Ex.P.1 and there are no merits in the revision and prayed to dismiss the same.
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8. Thus, the point that would arise for determination in this revision is, whether the conviction and sentence against the accused under Section 138 of the Act imposed by the trial Court and confirmed by the appellate Court suffers from any infirmity warranting interference?
9. A perusal of the evidence of the complainant adduced before the trial Court would reveal that the accused borrowed an amount of Rs.1,00,000/- on 14.04.2013, Rs.1,20,000/- on 16.04.2013 and Rs.50,000/- on 23.04.2013 and executed pronotes under Exs.P.11 to P.13. Subsequently, towards discharge of said liability, the accused issued Ex.P.1 dated 09.05.2014 for an amount of Rs.3,30,000/- which includes principal amount and accrued interest, drawn on State Bank of Hyderabad, Khammam Branch. The said cheque was presented for encashment in ING Vysya Bank, Gandhi Chowk Branch, Khammam. The said cheque was returned dishonoured with Ex.P.2 return memo dated 13.05.2014 for the reason "funds insufficient". The complainant got issued legal notice on 15.04.2014. The accused received the same and gave reply notice dated 26.05.2014 under Ex.P.8 and thereafter, the 6 ASR,J crlrc_1046_2017 complainant issued rejoinder reply notice dated 30.05.2014 under Ex.P.9. Ex.P.3 to 10 are legal notices and postal receipts and the said correspondence between the complaint and accused categorically prove the compliance of issue in the legal notice within one month from the date of receipt of information from the bank regarding return of cheque as unpaid.
10. Learned counsel for the accused submits that the Ex.P.1 cheque was issued in favour of one Vankayala Gandhi, but not in favour of the complainant and the complainant misused the same and filed the complaint. Admittedly, the accused has not entered into witness box nor examined any witnesses on his behalf. He has not filed any documents in support of his contention.
11. The complainant examined Pws.2 and 3, who are the attestors of the promissory notes and basing on the oral testimony of the witnesses and the Ex.P.11 to Ex.P.13 pronotes, the trial Court has rightly believed that the complainant paid the amounts to the accused as stated by him on three occasions. After that the complainant got issued legal notice after dishonour of Ex.P.1 cheque to which the accused got issued reply notice under Ex.P.8.
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The trial Court has also observed that the accused did not raise or state anything in Ex.P.8 reply notice that Ex.P.1 cheque was not issued towards discharge of the debt, but it was issued to one Vankayala Gandhi. Therefore, once the complainant adduced evidence and proved that the accused issued cheque towards discharge of legally enforceable debt and presumption under Section 139 of the Act would operate in favour of the complainant. Further, the presumption contained in Section 139 of the Act mandates that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque for discharge, in whole or in part of any debt or liability. There is no evidence adduced by the accused rebutting the said presumption. In the absence of any such evidence to the contra, it must be presumed that Ex.P-1 was issued by the accused in discharge of a legally enforceable debt. The trial Court has considered the evidence of the complainant carefully and also the contentions raised by the learned counsel for the accused and rightly believed the evidence of complainant and found the accused guilty. The appellate Court also on scrutiny of evidence of both the parties and relying on 8 ASR,J crlrc_1046_2017 decision of Apex Court in Rangappa v.Mohan1 has rightly observed that the accused set up the defence that the cheque and pronotes were not issued in favour of the complainant, but they were issued in favour of one Vankayala Gandhi. But he failed to adduce any independent evidence. The appellate Court also carefully evaluated the evidence and rightly confirmed the judgment of the trial Court. The defence set up by the accused has been disbelieved by the Courts below since he failed to prove the same by oral or documentary evidence and the accused failed to rebut the presumption, but the complaint proved that the cheque in question issued towards discharge of legally enforceable debt with cogent evidence. Therefore, the trial Court as well as the appellate Court on proper appreciation of evidence has rightly found the accused guilty and convicted and sentenced for the offence under Section 138 of the Act.
12. For the foregoing reasons, I am of the view that the impugned judgments of the Courts below finding that the revision petitioner/accused is guilty for the offence under Section 138 of the 1 AIR 2010 SC 1898 9 ASR,J crlrc_1046_2017 Negotiable Instruments, 1881 and the conviction and sentence imposed against him for the same are not liable to be interfered with in exercise of revisional jurisdiction by this Court.
13. Accordingly, the Criminal Revision Case is dismissed. Miscellaneous petitions, if any, pending shall stand closed.
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A.SANTHOSH REDDY, J
01.08.2022
Nvl
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