THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.2209 OF 2011
ORDER:
1 Heard Sri G.Bhanu Prasad, learned counsel for the petitioner and Sri Vizarath Ali, learned Assistant Public Prosecutor appearing for the State - First respondent and Sri Kowturu Pawan Kumar, learned counsel for the second respondent.
2 This criminal revision case is filed challenging the judgment dated 09.05.2011 passed in Crl.A.No.93 of 2007 on the file of the Court of the I Additional Sessions Judge, Khammam, whereby the learned Additional Sessions Judge allowed the appeal setting aside the judgement dated 27.06.2007 passed in C.C.No.855 of 2006 on the file of the Court of the learned I Additional Judicial Magistrate of I Class, Khammam and acquitted the petitioner for the offence under Section 138 of the Negotiable Instruments Act.
3 The facts that led to the filing of the present revision are that the petitioner herein being complainant filed a complaint before the learned trial Court against the second respondent herein for an offence under Section 138 r/w Section 142 of Negotiable Instruments Act. The case of the petitioner is that the second respondent is his elder brother and that the second respondent borrowed an amount of Rs.75,000/- for his family 2 and agricultural necessities by promising to repay the same within six months. When the petitioner demanded for repayment of the amount, the second respondent issued a cheque bearing No.090745 dated 20.05.2006 for Rs.75,000/- drawn on Andhra Bank, BSC Branch, Khammam towards discharge of the loan amount. The petitioner presented the said cheque in his banker - Union Bank of India, Khammam for collection on 22.08.2006, but the said cheque was returned unpaid with an endorsement 'funds insufficient' along with a Memo dated 24.08.2006 of Union Bank of India and a Memo dated 23.08.2006 of Andhra Bank. Thereupon, the petitioner got issued a legal notice dated 28.08.2006 to the second respondent calling upon him to pay the cheque amount, but the same was returned with an endorsement of postal authorities stating that 'addressee refused'. Hence, the petitioner filed the complaint on 22.09.2006.
4 The second respondent was tried for the offence under Section 138 of N.I.Act. During the course of trial, on behalf of the petitioner P.Ws.1 and 2 were examined and Exs.P.1 to P.6 were marked.
5 After appreciating the entire material available on record, both oral and documentary, the trial Court arrived at a conclusion that the petitioner proved the guilt of the second respondent for an offence under Section 138 r/w Section 142 of NI Act and accordingly convicted and 3 sentenced him to suffer simple imprisonment for one year and also to pay Rs.1,50,000/- to the petitioner towards compensation under Section 357 (3) Cr.P.C. within one month from the date of judgment, in default, to suffer simple imprisonment for three months, by judgment dated 27.06.2007. Aggrieved thereby, the second respondent preferred Criminal Appeal No.93 of 2007 before the learned I Additional Sessions Judge, Khammam, who, by judgment dated 09.05.2011 allowed the said appeal by setting aside the judgment of the trial Court. Aggrieved, the complainant filed the present criminal revision case. 6 The learned counsel for the petitioner / complainant vehemently contended that taking aid of the judgment of the Hon'ble Supreme Court in M.S.Narayana Menon @ Mani Vs. State of Kerala 1, the trial Court has rightly observed that it is for the accused to prove that how the cheque came into the hands of the complainant and that the complainant foisted a false case against the accused. It is his further contention that the appellate Court lost sight of the presumption under Section 118 and 138 of the N.I.Act that it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. He further submitted that the burden is on the second respondent who failed to discharge the same.
1 2007 (1) ALT (Cri.) 103 (SC) 4 7 As seen from the record, P.W.1 admitted that panchayats were held between him and the second respondent wherein some details were noted about the settlements and payment of Rs.1,10,000/- to him by the second respondent and that the second respondent admitted that he received Rs.30,000/- and Rs.25,000/- from P.W.1 in some other occasion. But those documents were not marked as exhibits. It is to be noted that though the petitioner denied the suggestion that there were no disputes between him and the second respondent, panchayats held between the parties and in those panchayats some settlement was arrived at between the parties and both parties attested the same. In such circumstances it has to be seen whether P.W.1 had discharged the burden of proof lies on him to show that still there was some outstanding due from the second respondent and in discharge of that the second respondent issued the said cheque. So the initial onus which lies on the complainant was not successfully discharged. He failed to prove that there was legally enforceable debt and in discharge of such debt the second respondent issued the cheque in question. When once the second respondent failed to discharge the burden lies on him, question of rebutting the same by the second respondent does not arise. Moreover, no documentary proof was adduced by the complainant to show that the second respondent owe certain amounts to him. Therefore, the petitioner failed to discharge 5 the initial burden lies on him and on the other hand the second respondent established the improbability of having money transactions between them in view of the disputes between him and the petitioner even prior to the date of the alleged transaction done under Ex.P.1 cheque and that the petitioner foisted a false case by forging his signature. So the presumption under Sections 118 and 139 of the Act have been successfully rebutted by the second respondent. 8 In that view of the matter, this criminal revision case fails and the judgment of the appellate court is upheld.
9 In the result, the criminal revision case is dismissed confirming the judgment dated 09.05.2011 passed in Crl.A.No.93 of 2007 on the file of the Court of the I Additional Sessions Judge, Khammam is confirmed. 10 Miscellaneous petitions, if any, pending in this criminal revision case shall also stand dismissed.
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E.V.VENUGOPAL, J.
Date: 26.09.2023 Kvsn