Telangana High Court
Dr. Kalapala Surya Prakasha Rao, vs The State Of Ap Rep By Its Pp Hyd., And ... on 16 February, 2024
1
THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.265 OF 2011
O R D E R:
The present Criminal Revision Case is filed seeking to set aside the judgment dated 25.01.2011 in Criminal Appeal No.198 of 2009 on the file of the learned I Additional Metropolitan Sessions Judge, Hyderabad (for short, "the appellate Court") in confirming the judgment dated 29.06.2009 in C.C.No.370 of 2008 on the file of the learned XV Additional-cum-XIX Chief Metropolitan Magistrate, Hyderabad (for short, "the trial Court").
2. No representation on behalf of the petitioner. Heard Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.1 State. Perused the record.
3. There was no representation on behalf of the petitioner on several occasions. Even today also there is no representation on behalf of the petitioner inspite of listing the matter under the caption, "for dismissal". Therefore, this Court is inclined to proceed with the matter on merits of the case as per the decision of the Hon'ble Apex Court in Bani Singh and others Vs. State of 2 Uttar Pradesh 1, wherein it was categorically held that the High Court cannot dismiss any appeal for non-prosecution simpliciter without examining the merits.
4. The brief facts of the case are that the petitioner/accused and his wife approached respondent No.2/complainant in the month of June, 2003 and requested for a hand loan of Rs.14,00,000/- for purchasing a flat. On such request, the complainant advanced an amount of Rs.14,00,000/- to the accused on different dates and the complainant promised him that he would repay the said amount as and when he would retire from service. Even upon repeated demands, the accused failed to keep up his promise. Finally, accused issued three cheques bearing Nos.452611, 038601 and 038602 dated 07.12.2003, 17.02.2004 and 20.02.2004 respectively for an amount of Rs.3,00,000/-, 5,00,000/- and 6,00,000/- respectively towards part satisfaction of the amount due.
5. On presentation, the said cheques were dishonoured for the reason "insufficiency of funds". The complainant informed the same to the accused. But the accused requested the complainant to present the cheques once again after some time. Upon such a 1 (1996) 4 Supreme Court Cases 720 3 request, the complainant represented the cheques after some time. But the said cheques were again dishonoured for the same reason. Therefore, the complainant issued legal notice to the accused requesting him to repay the amount due within the stipulated time. But the accused neither replied the notice nor repaid the amount due. Hence, the accused was alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short, "NI Act").
6. The trial Court vide judgment cited supra, found the accused guilty for the offence punishable under Section 138 of NI Act and sentenced him to undergo simple imprisonment for one year and pay fine of Rs.5,000/-, in default, to suffer simple imprisonment for one month. Aggrieved thereby, the accused preferred an appeal.
7. The appellate Court vide judgment cited supra, dismissed the appeal confirming the judgment passed by the trial Court. Assailing the same, the present Revision.
8. As per the grounds raised in the Revision, the petitioner contended that the trial Court as well as the appellate Court failed to appreciate the evidence available on record in proper perspective and erred in passing their respective judgments. 4 Therefore, the petitioner prayed to set aside the impugned judgment.
9. Learned Assistant Public Prosecutor opposed the same and contended that respondent No.2 underwent severe mental agony by roaming around the trial Court as well as the appellate Court. He submitted that both the Courts upon appreciating the oral and documentary evidence rightly passed their respective judgments. But, as the matter is pending from the year 2011, he seeks to pass appropriate orders.
10. The trial Court on behalf of the prosecution examined the complainant himself as PW1 and marked Exs.P1 to P13. On behalf of the defence, the wife of the accused was examined as DW1 and Exs.D1 to D5 was marked. Upon careful scrutiny of the oral and documentary evidence, the trial Court observed that the accused has not issued any reply to the legal notice issued by the complainant. It the accused has not borrowed any amount from the complainant and when the complainant issued the notice alleging that he had lent an amount to the accused, any person in the position of the accused will controvert the same by sending a reply. But the accused kept silent even after receipt of notice. Non-issuance of the reply notice to the notice issued by the 5 complainant would be a strong circumstance to draw an inference that accused had borrowed amount from the complainant. Hence, relying upon the decision of erstwhile High Court of Andhra Pradesh in B. Raja Krishnaji Vs. Kadam Kandoji and another 2, the trial Court found the accused guilty for the alleged offence and rendered the judgment cited supra. The appellate Court found that the trial Court has given sufficient reasoning for accepting the proper service of notice and therefore, dismissed the appeal confirming the judgment passed by the trial Court.
11. A perusal of the record shows that this Court vide order dated 07.02.2011 suspended the sentence of imprisonment alone imposed against the petitioner and enlarged him on bail on his executing a bond for Rs.10,000/- with two sureties each for a like sum each to the satisfaction of the learned XIX Additional Chief Metropolitan Magistrate, Hyderabad. Thereafter, the matter underwent several adjournments.
12. Having regard to the submissions made by both the learned counsel and relying upon the decisions passed by the Hon'ble 2 2008 (1) ALT (Crl.) 205 A.P. 6 Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal 3, R. Vijayan Vs. Baby 4, S.R. Sunil & Company Vs. D. Srinivasavaradan 5, Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi 6 and Somnath Sarka Vs. Utpal Basu Mallick 7, this Court deems it appropriate to direct the petitioner/accused to deposit an amount of Rs.14,00,000/- to the credit of the learned XIX Additional Chief Metropolitan Magistrate, Hyderabad within a period of one year from today, while reducing the sentence imposed against the petitioner to the period of imprisonment already undergone by him.
13. In default of payment of the said amount, the impugned judgment dated 25.01.2011 in Criminal Appeal No.198 of 2009 on the file of the learned I Additional Metropolitan Sessions Judge, Hyderabad stands good in all respects.
14. Upon depositing the said amount, respondent No.2/complainant is granted liberty to withdraw the same with immediate effect.
3 2010 (5) SCC 663 4 (2012) 1 SCC 260 5 (2014) 16 SCC 32 6 (2015) 9 SCC 622 7 2013 (16) SCC 465 7
15. With the above direction, the Criminal Revision Case stands disposed of.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ E.V. VENUGOPAL, J Date: 16.02.2024 ESP