THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
CRIMINAL REVISION CASE No.1171 OF 2015
ORDER:
This Criminal Revision Case directed against the judgment dt.27.04.2015 passed by the IV Additional Metropolitan Sessions Judge, Hyderabad, in Criminal Appeal No.783 of 2012, wherein and whereunder, the learned Sessions Judge confirmed the judgment dt.03.08.2012 passed by the learned VI Special Magistrate, Hyderabad, in C.C. No.524 of 2011 against the accused.
2. The revision petitioner herein is the accused in C.C. No.524 of 2011, whereas respondent No.1 is the complainant and respondent No.2 is the State. For convenience, the parties hereinafter will be referred to as they are arrayed in the C.C. before the trial Court.
3. Brief facts of the case of the complainant are as follows:
The complainant and the accused are close friends, and the accused approached him for hand loan. Accordingly, he gave Rs.90,000/- to the accused as hand loan and that the accused received the said amount and promised to repay the said amount within two months. But, the accused failed to repay the said amount within the stipulated time and on 2 RRN,J Crl. RC No.1171 of 2015 demand by the complainant, the accused issued post-dated cheque No.119663 dt.22.02.2011 for Rs.90,000/- drawn on the Deccan Co-operative Urban Bank, Saidabad Branch, in discharge of his legal liability. He further alleged that he presented the said cheque at his bank A.P. State Co-operative Bank, Champapet Branch, but the same was dishonoured for the reason of "funds insufficient". The same was intimated to the complainant on 22.02.2011, on which he conveyed the same to the accused orally. Subsequently, the complainant got issued a legal notice on 10.03.2011 and sent the same through courier service, which was received by the accused on 12.03.2011. However, the accused failed to pay the said amount, and thereby, the accused committed the offence punishable under Section 138 of N.I. Act. As such, the complainant filed a private complaint.
4. The VI Special Magistrate, Hyderabad, in C.C. No.524 of 2011, the accused was convicted for the offence punishable under section 138 of Negotiable Instruments Act (for short "the NI Act") and sentenced to undergo Rigorous imprisonment for a period of one year and to pay a sum of Rs.90,000/- to the complainant as compensation under Section 357(3) of Cr.P.C. within 30 days from the date of the judgment and in default of 3 RRN,J Crl. RC No.1171 of 2015 payment of compensation, the accused has to undergo Rigorous Imprisonment for a period of six months. The accused preferred an appeal, and the IV Additional Metropolitan Sessions Judge, Hyderabad, also confirmed the conviction and sentence passed by the trial Court.
5. During the course of trial, the complainant examined himself as PW.1 and got marked Exs.P-1 to P-9. No evidence was adduced by the accused.
6. On appreciating the material on record, the Trial Court found the accused guilty of the offence under Section 138 NI Act and convicted and sentenced him as stated supra.
7. Aggrieved thereof, the accused preferred the above criminal appeal before the learned IV Additional Metropolitan Sessions Judge, Hyderabad, and the learned Sessions Judge, after appreciating the evidence on record, confirmed the judgment passed by the trial Court and dismissed the appeal. Aggrieved by the same, the accused preferred the present criminal revision case before this Court.
8. Heard the learned Counsel appearing for the accused and the learned Counsel appearing for the complainant, and the 4 RRN,J Crl. RC No.1171 of 2015 learned Public Prosecutor appearing for the State. Perused the record.
9. It has been contended by the learned Counsel for the accused that both the Courts below erred in convicting the accused for the charged offence without properly appreciating the evidence on record. It was further contended that the Appellate Court failed to appreciate the fact that the entire case was foisted against the accused in order to extract money illegally. He further contended that the Courts below failed to appreciate the inference drawn from the cross-examination of PW.1, that the cheque in question was taken by him for the purpose of security on behalf of a 3rd party and not issued to him in order to discharge the legally enforceable debt. PW.1 failed to prove his financial capacity beyond reasonable doubt. He finally contended that the ingredients of Section 138 of N.I. Act, are not made out in the instant case. Accordingly, prayed to allow the revision case.
10. Per contra, the learned Counsel for respondent- complainant submitted that the Courts below properly appreciated the evidence on record and reached a proper conclusion and warrants no interference by this Court.
5 RRN,J
Crl. RC No.1171 of 2015
11. In Sanjaysinh Ramrao Chavan Vs. Dattatray
Gulabrao Phalke and others 1 the Hon'ble Apex Court held as follows:
Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.
12. Now, the point for determination is:
1
Crl. Appeal No.97 of 2105 dt. 16.01.2015 6 RRN,J Crl. RC No.1171 of 2015 Whether the accused is entitled for setting aside the concurrent judgments of the Courts below for the offence punishable under Section 138 of N.I. Act?
13. POINT:
PW.1-complainant deposed that the accused borrowed Rs.90,000/- from him to meet his financial needs, in lieu of which, he issued a cheque marked as Ex.P1 dt.21.02.2011. The said cheque, on presentation, was dishonoured for the reason of "insufficient funds" in the account of the accused, and the same was captured in the Ex.P2 and Ex.P3/Cheque Return Memos dt.22.02.2011 and dt.05.03.2011. He further deposed that he got issued Ex.P4, the notice demanding repayment within 15 days from the date of the receipt of the notice. He further deposed that the accused issued Ex.P5/reply notice dt.15.03.2011, wherein the accused stated that he issued the said cheque as security for the amount borrowed by him.
14. It is observed by both the Courts below that throughout the trial, the accused has not denied his signature on the said cheque and it is not his contention that it was not drawn on an account maintained by him. The Appellate Court observed that upon examination, the accused did not offer any explanation 7 RRN,J Crl. RC No.1171 of 2015 against any averment made by the complainant. It further noted that the accused by way of issuing a reply notice/Ex.P5, admitted borrowing money and further stated that he had repaid Rs.5,000/-, after which he issued the cheque to PW.1 as security. It further noted that even as per Ex.P5, the issued cheque was not a blank cheque, which further affirms that it was issued as a security in lieu of the legally enforceable debt. Further, the accused also did not examine any independent witness to disprove the same.
15. The Karnataka High Court in Devi Tyres Vs. Nawab Jan, 2 held as follows:
"There is a presumption that when a cheque is issued, that the amount is payable and no criminal court is required to embark upon any enquiry that goes behind the act of issuance of the cheque. If the drawer contends that there were certain special reasons whereby a cheque was issued and that the cheque was not intended to be encashed or honoured, the onus of establishing this shifts squarely to the accused."
16. In view of the above decision, it is required to be presumed that the cheque in question was drawn for 2001 AIR KANT.H.C.R. 2154 2 8 RRN,J Crl. RC No.1171 of 2015 consideration and the holder of the cheque i.e., the complainant, received the same in discharge of an existing debt. Therefore, the onus, shifts on the accused to establish a probable defence so as to rebut such presumption.
17. On the aspects relating to a preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non- existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. Mere denial would not fulfil the requirements of rebuttal as envisaged under Sections 118 and 139 of the NI Act. Thus, this Court does not find any merit in the contention of the learned counsel for the accused for setting aside the judgments of the Courts below.
18. In the result, the Criminal Revision Case is dismissed confirming the judgment dt.27.04.2015 passed by the IV Additional Metropolitan Sessions Judge, Hyderabad, in Criminal Appeal No.783 of 2012 confirming the Judgment dated 03-08-20212 passed by the learned VI Special 9 RRN,J Crl. RC No.1171 of 2015 Magistrate, Hyderabad, in C.C. No.524 of 2011. However, considering the judgment of the Hon'ble Apex Court in Kalamani Tex and another Vs. P. Balasubramanian 3, it is considered fit to modify the sentence of rigorous imprisonment for a period of one year and compensation of Rs.90,000/-, to Rs.1,80,000/- (i.e. double the cheque amount). The accused is directed to pay Rs.1,80,000/- to the complainant within six months from the date of this order, and on his failure to pay the same, to undergo simple imprisonment for a period of six months.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 20.10.2023 BDR 3 (2021) 5 SCC 283l.