HON'BLE SRI JUSTICE A.SANTHOSH REDDY
CRL.R.C.No.492 OF 2016
JUDMGENT:
This criminal revision case is directed against the judgment
dated 18.12.2015 in Crl.A.No.593 of 2013, on the file of the
III-Additional Metropolitan Sessions Judge, Hyderabad, wherein
the said appeal was dismissed, confirming the conviction of the
revision petitioner-accused for the offence under Section 138 of the
Negotiable Instruments Act (for short 'the NI Act') and sentence of
rigorous imprisonment for a period of one year and fine of
Rs.5,000/- imposed by the learned XIV-Special Magistrate,
Hyderabad in C.C.No.394 of 2012.
2. Heard the learned counsel for the revision petitioner-accused
and learned counsel for the second respondent-complainant.
Perused the material on record.
3. The second respondent filed a complaint against the revision petitioner (hereinafter called 'the accused') before the I-Additional Chief Metropolitan Magistrate, Hyderabad alleging that the complainant and the accused are acquainted with each 2 other and out of the said acquaintance, the accused approached the complainant to lend a sum of Rs.4,50,000/- by way of hand loan and, accordingly, the complainant lent the said amount on 27.02.2012 and the accused agreed to repay the amount with interest at 24% per annum within three months. The accused also executed a demand promissory note on the same day. The accused failed to repay the said amount, but on demand issued a cheque for Rs.4,77,000/- dated 07.06.2012 towards discharge of the debt. The said cheque, when presented for encashment, was returned for the reason 'insufficient funds' on 08.06.2012. The complainant got issued legal notice dated 18.06.2012 and the accused, having received the same, neither issued reply nor paid the amount. The said complaint was originally filed before the I-Additional Chief Metropolitan Magistrate, Hyderabad and the learned Magistrate has taken cognizance of the same for the offence under Section 138 of the NI Act against the petitioner and numbered it as C.C.No.470 of 2012. Subsequently, it was transferred to the court of XIV-Special Magistrate, Hyderabad and re-numbered as 3 C.C.No.394 of 2012. The accused denied the offence and pleaded not guilty.
4. In support of his claim, the complainant examined himself as P.W.1 and also examined P.Ws.2 and 3 on his behalf and marked Exs.P-1 to P-12. The accused examined himself as D.W.1 and marked Exs.D-1 and D-6 were marked.
5. On a consideration of the evidence available on record, the learned Magistrate, having observed that the complainant could successfully establish that the accused had borrowed the amount of Rs.4,50,000/- on 27.02.2012 and executed Ex.P-7 promissory note and later issued Ex.P-1 cheque towards discharge of legally enforceable debt, found that the accused guilty of the offence under Section 138 of the NI Act and, accordingly, convicted and sentenced him to undergo rigorous imprisonment for one year and pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for three months.
6. Aggrieved and dissatisfied with the judgment passed by the trial court, the accused preferred an appeal before the 4 III-Additional Metropolitan Sessions Judge, Hyderabad. The learned Sessions Judge, after hearing the submissions of both the counsel and on re-appraisal of the entire material on record, confirmed the conviction and sentence of the accused for the offence under Section 138 of the NI Act. Aggrieved thereby, the present revision by the accused.
7. Learned counsel for the petitioner submits that the courts below failed to consider that the alleged cheque was issued to one Mr.Laxman Rao, who promised that he will arrange loan and hence those documents were issued only for security purpose and not towards discharge of any legally enforceable debt. The learned counsel further submits that there is no nexus between the complainant and the accused and, therefore, the initiation of proceedings against him is an abuse of process of law. Learned counsel prayed to allow the revision.
8. Per contra, learned counsel for the second respondent submits that both the courts below have appreciated the evidence, both oral and documentary, based on the facts and circumstances of the case and had rightly convicted the revision petitioner-accused 5 and there is no illegality or irregularity to interfere with the judgments of the courts below and prayed to dismiss the revision.
9. I have carefully considered the submissions of learned counsel for both sides and the evidence on record, both oral and documentary, and also the judgments of both the courts below.
10. Now, the question that arises for consideration is whether there are justifiable grounds to interfere with the judgments of the courts below in finding the accused guilty of the offence under Section 138 of the NI Act.
11. The oral and documentary evidence adduced by both the parties discloses that the accused borrowed an amount of Rs.4,50,000/- from the complainant and in discharge of the said amount, he issued a cheque for Rs.4,77,000/- under Ex.P.-1. When the said cheque was presented for encashment, it was returned dishonoured due to insufficient funds in the account of the accused along with a cheque return memo Ex.P-2. Thereafter, the complainant got issued legal notice under Ex.P-3 to the accused, 6 who, having received the same, neither got issued reply nor paid the amount.
12. It, therefore, emerges from the material on record that the accused has not disputed his signature on the cheque Ex.P-1. It is the defence of the accused that one Mr.Laxman Rao, who is brother of the complainant, is a very close friend of him and the said Laxman Rao worked in Special Protection Force and he used to escort the cash while taking the same to the Central Telegraph Office, Secunderabad from the cash counter at Erragadda. The accused was in need of money and the said Laxman Rao promised that he will get arrange loan and under that pretext he took blank cheques and property documents from him. However, in the cross-examination of D.W.1, it was suggested on behalf of the accused that the said Laxman Rao committed theft of cheques and promissory notes from the cash counter of the accused. The contradictory defence taken by the accused itself falsifies his contention and rightly there appears to be no truth in the said defence. Therefore, once the accused admitted that the cheque bears his signature, there is presumption that there exists a 7 legally enforceable debt or liability under Section 139 of the NT Act. Since the evidence adduced by the accused to rebut the presumption is not convincing and did not inspire confidence to believe his contention, the complainant filed statements of account relating to his bank accounts under Ex.A-1 to A-11 in support of his contention that he has good income to lend money of Rs.4,50,000/- to the accused. The oral evidence of the complainant supported by the documentary evidence, including Ex.P-7 promissory note, would establish that he has accepted to lend money and the accused having borrowed the same, executed the promissory note and issued cheque towards discharge of the said liability. As such both the courts below have rightly held that there is legally enforceable debt in respect of the cheque Ex.P-1.
13. Apart from the above, the evidence let in by the accused was disbelieved by the courts below and held that the complainant established the existence of a legally enforceable debt as on the date of issuance Ex.P-1 cheque.
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14. I do not find any justifiable grounds to interfere with the findings of the courts below about the liability of the accused. The evidence, both oral and documentary, placed by the record, proved the ingredients of the offence under Section 138 of the NI Act. The concurrent findings of the courts below, including the sentence imposed by the trial court and as confirmed by the appellate court, do not suffer from any infirmity or illegality warranting interference by this court.
15. The criminal revision case is, accordingly, dismissed.
16. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 24.08.2022 Lrkm