THE HONOURABLE SRI JUSTICE N. TUKARAMJI
CRIMINAL REVISION CASE No.1206 of 2008
CRIMINAL REVISION CASE No.1207 of 2008
AND
CRIMINAL REVISION CASE No.1208 of 2008
COMMON JUDGMENT:
Heard Sri Vijay Paropakari, learned Senior counsel on behalf of
Smt.S.Bhavana for the revision petitioner and Sri P.Prasad learned
counsel for the 2nd and 3rd respondents.
2. Since these revisions emanated from the self-same transaction between the same parties and the solitude nurture of the question of fact and law to be considered, these petitions are heard together and are being disposed of by this common judgment.
3. Crl.R.C.No.1206 of 2008: This revision has been filed challenging the propriety of the judgment dated 08.08.2008 in Criminal Appeal No.63 of 2008, passed by the II-Additional Metropolitan Sessions Judge, Hyderabad, confirming the judgment of conviction, dated 07.02.2008 in C.C.No.1091 of 2004 passed by the XIV Additional Chief Metropolitan Magistrate, Hyderabad, whereby the revision petitioner was convicted under Section 138 of the Negotiable NTR,J ::2:: crlrc_1206_2008 & batch Instruments Act, 1881 (hereinafter 'the NI Act') and sentenced for rigorous imprisonment for one year and pay Rs.10,000/- fine, in default, simple imprisonment for two months.
4. Crl.R.C.No.1207 of 2008: This revision has been filed challenging the propriety of the judgment dated 08.08.2008 in Criminal Appeal No.62 of 2008, passed by the II-Additional Metropolitan Sessions Judge, Hyderabad, confirming the judgment of conviction, dated 07.02.2008 in C.C.No.1090 of 2004 passed by the XIV Additional Chief Metropolitan Magistrate, Hyderabad, whereby the revision petitioner was convicted under Section 138 of the NI Act and sentenced to rigorous imprisonment for one year and pay Rs.10,000/- fine, in default, simple imprisonment for two months.
5. Crl.R.C.No.1208 of 2008: This revision has been filed challenging the propriety of the judgment dated 08.08.2008 in Criminal Appeal No.61 of 2008, passed by the II-Additional Metropolitan Sessions Judge, Hyderabad, confirming the judgment of conviction, dated 07.02.2008 in C.C.No.1089 of 2004 passed by the XIV Additional Chief Metropolitan Magistrate, Hyderabad, whereby the revision petitioner was convicted under Section 138 of the NI Act and NTR,J ::3:: crlrc_1206_2008 & batch sentenced to rigorous imprisonment for one year and pay Rs.10,000/- fine, in default, simple imprisonment for two months. The substantive sentence of imprisonment in all the matters were directed to run concurrently.
6. In all the revision petitions, the 1st respondent is the complainant and the revision petitioner is the accused. Further, in all the calendar cases the witnesses and the documents were indicated identically. Therefore, for the sake of facility of reference, the parties and documents are referred to as per their rank in the calendar case. 7.1. The factual matrix in nutshell of the cases are as follows:-
The complainant lodged a private complaint, stating that he is the Managing Director of M/s. Mayuri Engineers Private Limited and he approached the accused for tax consultancy. In that course, acquaintance was developed and the accused induced him for investing amounts in his real estate business. On agreement the accused obtained loans in his (complainant) name and indebted of Rs.18 lakhs. 7.2. In this regard, the accused had executed a bond of settlement/Ex.P1 on 08.05.2004, accepting the liability and also issued NTR,J ::4:: crlrc_1206_2008 & batch six cheques for Rs.2,00,000/- each with an undertaking that the amounts would be paid within four months.
8. The complainant presented two cheques on 10.05.2004 (Exs.P3 and P4 subject cheques in C.C.No.1091 of 2004, Crl.A.No.63 of 2008, Crl.R.C.No.1206 of 2008), two cheques on 06.05.2004 (Exs.P3 and P4 subject cheques in C.C.No.1090 of 2004, Crl.A.No.62 of 2008, Crl.R.C.No.1207 of 2008), and two cheques on 10.05.2004 (Exs.P3 and P4 subject cheques in C.C.No.1089 of 2004, Crl.A.No.61 of 2008, Crl.R.C.No.1208 of 2008), through his banker State Bank of Hyderabad, Begumpet Branch. All the cheques were returned unpaid by the banker under the cheque return memoes/Exs.P5 and P6, dated 10.05.2004, 08.05.2004 and 11.05.2004 respectively with an endorsement "payment stopped by drawer". Thereupon, on 18.05.2004 the complainant got issued separate statutory notices/Exs.P7 and P8 and they were served on the accused under the registered post, vide acknowledgements dated 17.06.2004/Ex.P11. As the accused failed to make payment of the cheque amounts within the stipulated period, the private complaint for the offence under Section 138 of the NI Act has been filed.
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9. During trial, the complainant got examined himself as P.W.1 and examined the branch manager of his banker as P.W.2, the investigating officers of Chilkalguda Police Station/P.Ws. 3 and 4 and got marked Exs.P1 to P12.
10. On the other hand, the accused got examined himself as D.W.1 and exhibited Exs.D1/reply notice and Exs.D-2 and D-3/acknowledgements.
11. The trial Court after examining the materials held that the complainant has proved the essential ingredients of Section 138 of Negotiable Instruments Act beyond reasonable doubt, thereby, convicted and sentenced him as stated above. On appeal, the appellate court affirmed the findings on all aspects and passed the impugned judgment.
12. In these revisions, the accused contended that the trial and appellate Courts have failed to appreciate that all the cheques/Exs.P-3 and P-4 were obtained under coercion and he lodged police report in this regard. Further, he is not liable to pay any amount to the complainant, as such, legally enforceable debt has not been proved by NTR,J ::6:: crlrc_1206_2008 & batch the complainant. That apart, the complainant's source of income or ability to lend amount and the accounts to establish the liability or the income tax returns proving the claimed transaction were not filed. Thus, the Courts below should have held that the prosecution had failed to establish its case and should have acquitted him. In addition, pleaded that as the complainant has passed away during the pendency of three revisions and though there is no legal stance, as the legal representatives are contesting. Therefore, the substantial sentence of imprisonment may be restricted only to fine amount as per the dictum in Babu Rao Vs. Nanjunda Settaru in C.R.P. No. 243 of 2009 dt. 10.07.2012 passed by the Hon'ble High Court of Karnataka.
13. Further placed reliance on the following authorities: Sunil Kumar Jain Vs. Dinesh Kumar Jain(of the co-ordinate Bench of this Court) and M/s. Indus Airways Pvt.Ltd & others Vs. M/s. Magnam Aviation Pvt.Ltd (Crl.A.No.830 of 2014, dt.07.04.2014 of Hon'ble Supreme Court).
14. On the other hand, the learned counsel for the legal representatives of the complainant pleaded that the trial and appellate Courts have considered the facts and law in right perspective and arrived at just conclusions as the defence put forth by the accused was NTR,J ::7:: crlrc_1206_2008 & batch stale and unproved, the contention regarding the legally enforceable debt and the insistence to display the accounts is unacceptable. Thus, the revisions lacks merit and deserves dismissal.
15. I have carefully considered the rival pleadings and the materials on record.
16. At the outset, the complainant's pleading that the cheques/Exs:P-3 and P-4 in the three complaints were drawn on the account of revision petitioner and those cheques are bearing the signatures of the accused are not disputed by the accused. Further, the accused as D.W.1 admitted his signature on Settlement Deed/Ex.P1 and on cheques/Exs.P3 and P4, however contested that they came into existence in peculiar circumstances. Further, the presentment and return of the cheques with an endorsement "stop payment by the drawer" is clear by the record. To note, the Hon'ble Supreme Court in Electronics Trade and Technology Vs. Indian Technologies and Engineers1 held that even if the cheque is dishonoured because of stop payment instructions to the bank, Section 138 of the Negotiable Instruments Act would get attracted. The statutory notices dated 12.05.2004/Ex.P7 1 (1996) 2 SCC 739 NTR,J ::8:: crlrc_1206_2008 & batch and P8 and the acknowledgements/Ex.P11 are establishing the service on the Revision petitioner. That apart, the claim of the accused that he got issued reply notice under Exs.D1 and D2 conclusively proving the service of statutory notice.
17. These facts are prima facie satisfying the requirements for the offence under Section 138 of the NI Act, in effect, the presumptions under Section 139 of the NI Act shall be read in favour of the complainant.
18. It is well settled that Rangappa Vs. Sri Mohan2, Basalingappa Vs. Mudibasappa3 and Triyambak S.Hegde Vs. Sripad4 (Criminal Appeal No.849/850/2011, dated 23.09.2021), the three Judge Bench of Hon'ble Apex Court held that under Section 139 of the NI Act the presumption that the cheque was issued in discharge of legally enforceable debt will be raised and it is incumbent on the accused to rebut the same.
19. Thus the onus shifts on to the accused to rebut the presumptions. In defence, he proposed the following theory.
2 (2010) 11 SCC 441 3 (2018) 5 SCC 418 4 (2022) 1 SCC 742 NTR,J ::9:: crlrc_1206_2008 & batch (i) His signatures on Exs.P1 to P3 were obtained under duress and he also lodged police report on this aspect.
(ii) The complainant failed to prove his ability to lend and the legally enforceable debt by placing the accounts and the income tax returns to substantiate the alleged transaction.
20. The material is disclosing that the accused had lodged a police report in Chilkalguda Police Station and the same was referred as mistake of fact by the then investigating officer/P.W.3. On protest, the learned Magistrate ordered for re-investigation, thereupon a final report was filed. Thus the accused is contending that as the final report is filed, his defence that he was kidnapped and the documents and cheques were executed under duress, are being validated.
21. Though lodging of police report is a positive circumstance in favour of the defence, the Court is bound to examine whether the circumstance alone probabalises the defence to rebut the presumption.
22. It is pertinent to note that in the cross examination of P.W.1/complainant, the accused specifically suggested that "the settlement deed was executed at 4.00 pm., by the accused and that on the same day evening the complainant's staff went to the office of the NTR,J ::10:: crlrc_1206_2008 & batch accused and obtained cheques on his behalf. The complainant's accountant Krishna Murthy and supplier Jameel and driver Akhil went to the office of accused and received the cheques. Further the accused was dropped at his residence by the complainant's driver after receipt of cheques". These signatures are explaining the situation in contrast to the claim that the cheques were obtained by force and on kidnapping the accused.
23. Further the accused in his evidence as DW-1 failed to give particulars as to where, when and how he was kidnapped and in which circumstances he had executed the documents. Further, except the pleading about lodging the report, the crime record has not been placed. Moreover, the P.W.4/investigating officer spoke about filing of final report against the accused, but nothing has been stated as to what were the materials relied on to draw such conclusions. These aspects, when considered in ordinary prudence, are effecting the probability of existence of the accused pleaded circumstances, they are not inspiring confidence.
24. The other aspects i.e. capacity of the complainant to lend money and other accounts would be of substance only on successful rebuttal NTR,J ::11:: crlrc_1206_2008 & batch of presumption by the accused. Mere a claim without substance, will not refute the existing presumptions in favour of the complainant. Therefore, the accused insistence for placing accounts and income tax returns to prove the original transaction cannot be sustained.
25. This view is approved by the Hon'ble Supreme Court in the dictum of Rohit Shaini Jeevalal Patel v. State of Gujarat5 where, in para No. 19, it is held that "it is needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favor of the complainant, when such presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not".
26. For the aforesaid, this Court is of the considered opinion that the Courts below did not commit any error or no manifesting injustice is found in the impugned judgments necessitating interference by this Court. Accordingly, the revision petitions fail on merit.
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27. However, on the aspect of sentence, considering the aspects of death of the complainant and the transaction is of the year 2004 to redress the loss on account of dishonour of cheque by way of reparation directing to pay fine and on realization granting compensation to the extent of the cheque amount, is found reasonable. IN THE RESULT:
28. (i) Crl.R.C No.1206 of 2008: The concurrent finding of guilt and conviction of the accused under Section 138 of the Negotiable Instruments Act, is affirmed, however, the substantive sentence is modified to the payment of fine of Rs. Rs.4,20,000/- (Rupees four lakhs twenty thousand only) in default shall undergo simple imprisonment for one year. On realization of the fine amount, Rs.4,00,000/- (Rupees four lakhs only) shall be paid to the complainant.
(ii) Crl.R.C No.1207 of 2008: The concurrent finding of guilt and conviction of the accused under Section 138 of the Negotiable Instruments Act, is affirmed, however, the substantive sentence is modified to the payment of fine of Rs. Rs.4,20,000/- (Rupees four NTR,J ::13:: crlrc_1206_2008 & batch lakhs twenty thousand only) in default shall undergo simple imprisonment for one year. On realization of the fine amount, Rs.4,00,000/- (Rupees four lakhs only) shall be paid to the complainant.
(iii) Crl.R.C No.1208 of 2008: The concurrent finding of guilt and conviction of the accused under Section 138 of the Negotiable Instruments Act, is affirmed, however, the substantive sentence is modified to the payment of fine of Rs. Rs.4,20,000/- (Rupees four lakhs twenty thousand only) in default shall undergo simple imprisonment for one year. On realization of the fine amount, Rs.4,00,000/- (Rupees four lakhs only) shall be paid to the complainant.
The accused is directed to pay the fine amount within a month from the date of receipt of this common judgment, on failure the accused shall surrender before the trial Court, and the trial Court shall take necessary steps under law for execution of sentence.
29. In the above terms, these criminal revision petitions are disposed of.
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As a sequel, miscellaneous petitions, pending if any, shall stand closed.
________________ N. TUKARAMJI, J Date:11.11.2022 Shr/ccm