HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL REVISION CASE No.1542 OF 2006
JUDGMENT:
1. This Criminal Revision Case is filed questioning the concurrent findings of conviction for the offence under Section 138 of the Negotiable Instruments Act, vide judgment in C.C.No.743 of 2002 dated 10.01.2006 passed by the Judicial Magistrate of First Class, Miryalaguda, which is confirmed by V Additional District Judge, Miryalaguda vide judgment in Criminal Appeal No.32 of 2006, dated 07.09.2006.
2. The case of the 2nd respondent is that her husband had advanced loan of Rs.1.00 lakh when the petitioner/accused approached him. Towards part repayment of the loan, a cheque for an amount of Rs.90,000/- was given. The said cheque when presented for clearance, was returned unpaid for the reason of 'insufficient funds'. After giving notice, since amount was not paid by petitioner, complaint was filed.
3. Learned Magistrate having examined P.W.1/complainant and marking Exs.P1 to P7 found that the petitioner was guilty for the offence under Section 138 of the Negotiable Instruments Act and convicted him to undergo rigorous imprisonment for a period 2 of one year and fine of Rs.5,000/- was imposed and further compensation of Rs.90,000/- was directed to be paid.
4. Learned counsel appearing for the petitioner would submit that both the courts below committed error in convicting the petitioner for the offence under Section 138 of the Negotiable Instruments Act. Both the Courts without considering the facts of the case have concluded that there is enforceable debt and petitioner is liable to be convicted. The Courts ought to have considered the defence of the petitioner vis-a-vis the claim of the complainant. The accused can discharge his liability by preponderance of probability and the accused succeeded but wrongly assessed by Courts and convicted. He relied on the judgment of Hon'ble Supreme Court in the case of Anss Rajashekar v. Augustus Jeba Ananth reported in (2020) 15 Supreme Court Cases 348) and argued that presumption was rebuttal presumption and petitioner had discharged his burden by preponderance of probability. However, the Courts below failed to appreciate and committed error in convicting the petitioner. He also relied on the judgment of Hon'ble Supreme Court in the case of Basalingappa vs. Mudibasappa in Criminal Appeal No.636 of 2019, dated 09.04.2019 and argued that when 3 the financial capacity of the complainant could not be proved, the Hon'ble Supreme Court quashed the criminal complaint filed under Section 138 of the Negotiable Instruments Act.
5. Both the Courts below having considered the evidence found that the petitioner has failed to place any rebuttal evidence. The case of the petitioner is that the deceased/complainant did not have financial capacity to arrange the amount of Rs.1.00 lakh, in fact, the deceased/ husband of complainant, had borrowed amount from persons by name Rosaiah, Koteshwar Rao and others. The signature on the cheque and demand promissory were disputed. Though there is a denial by the petitioner that the writings in the promissory note and cheque were not his, no steps were taken to send the same to the hand writing expert to ascertain that they were not signed by the petitioner herein. The burden is on the petitioner/accused to prove that the signatures were not his.
6. In Criminal Revision unless there is any illegality or impropriety in the orders, the High Court in revisional jurisdiction cannot normally re-appreciate the facts of the case unless perversity is apparent. I do not find any such reasons to interfere with the findings of fact. Further, the petitioner failed to 4 discharge the burden that is shifted on to him under Section139 of the Negotiable Instruments Act.
7. For the said reasons, there are no grounds to interfere with the order of conviction. However, since the case is of the year 2000, and nearly 23 years have lapsed since, this Court deems it appropriate to set aside the sentence of imprisonment and direct that enhanced compensation of Rs.1,80,000/- shall be paid to the 2nd respondent. The concerned Court shall cause appearance of the parties. In the event of the petitioner not depositing amount of Rs.1,80,000/- within three months from the date of direction by the concerned Magistrate, the petitioner shall undergo simple imprisonment of three months.
8. Accordingly, the Criminal Revision Case is disposed off. As a sequel thereto, miscellaneous petitions, if any, shall stand closed.
__________________ K.SURENDER, J Date: 10.01.2023 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL REVISION CASE No.1542 OF 2006 Date:10.01.2023 kvs 6