Telangana High Court
Bhukya Rambabu, vs Dr.T.Veera Raghavaiah, on 29 February, 2024
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THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.2018 OF 2011
O R D E R:
The present Criminal Revision Case is filed aggrieved by the judgment dated 01.07.2011 in Criminal Appeal No.94 of 2010 on the file of the learned II Additional Sessions Judge (Fast Track Court), Khammam (for short, "the appellate Court") in confirming the judgment dated 03.06.2010 in C.C.No.10 of 2009 on the file of the learned Judicial Magistrate of First Class, Bhadrachalam (for short, "the trial Court").
2. Heard Mr. Y. Pulla Rao, learned counsel representing Mr. S. Madan Mohan Rao, learned counsel for the petitioner and Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.2 State.
3. The brief facts of the complaint are that on 03.12.2006, the petitioner/accused borrowed an amount of Rs.4,00,000/- from respondent No.1/complainant to clear his liabilities and executed a promissory note agreeing to repay the said amount with interest @ 24% per annum. Upon several requests made by the complainant, the accused issued a cheque bearing No.785022 dated 29.07.2008 for an amount of Rs.5,00,000/- in discharge of 2 debt. On presentation, the said cheque was returned with an endorsement "funds insufficient". Thereafter, the complainant issued a legal notice dated 05.08.2008 demanding the accused to pay the cheque amount. But accused failed to repay the amount due. Hence, the accused was alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the NI Act").
4. The trial Court vide judgment cited supra found the accused guilty for the alleged offence and sentenced him to suffer simple imprisonment for one year and pay compensation of Rs.5,00,000/-, within a month from the date of the said judgment. Aggrieved thereby, the petitioner preferred an appeal.
5. The appellate Court vide judgment cited supra, dismissed the appeal confirming the judgment passed by the trial Court. Assailing the same, the present Revision.
6. During the course of hearing, learned counsel for the petitioner stated that the trial Court as well as the appellate Court concurrently found the petitioner guilty for the offence punishable under Section.138 of N.I.Act. Learned counsel relied upon the order dated 18.04.2017 passed by this Court in Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and Crl.R.C.No.2887 of 3 2015, wherein and whereby, this Court upon taking into consideration the decisions passed by the Hon'ble Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal 1, R. Vijayan Vs. Baby 2, S.R. Sunil & Company Vs. D. Srinivasavaradan 3, Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi 4 and Somnath Sarka Vs. Utpal Basu Mallick5, wherein it was held that, the object of incorporating the penal provisions under Sections 138 to 142 of the NI Act is not only to provide a strong criminal remedy to deter the high incidence of dishonour of cheques but a remedy of punitive nature and observed that where there is a conviction, there should be a consequential levy of fine amount sufficient to cover the cheque amount along with simple interest thereon at a fixed rate of 9% per annum and held that the interest should be followed by an award of such sum as compensation from the fine amount. However, to meet the ends of justice, this Court modified the sentence of six months of simple imprisonment with fine of Rs.10,000/-, to imprisonment till rising of the day by giving set off to the period undergone if any and fine of Rs.10,00,000/- of which Rs.50,000/- would go to 1 2010 (5) SCC 663 2 (2012) 1 SCC 260 3 (2014) 16 SCC 32 4 (2015) 9 SCC 622 5 2013 (16) SCC 465 4 the State and Rs.9,50,000/- as compensation to the complainant which includes Rs.10,000/- fine if paid to adjust and out of it in compensation received by complainant, for the balance to pay or deposit within one month from that day, failing which, the accused was to suffer the default sentence of six months simple imprisonment for the lower Court to levy under Section 421 of Cr.P.C. and enforce it. Therefore, he seeks to pass appropriate orders relying upon the said order.
7. Learned Assistant Public Prosecutor opposed the same and contended that respondent No.1 underwent severe mental agony by roaming around the trial Court as well as the appellate Court. Learned counsel submitted that both the Courts upon appreciating the oral and documentary evidence rightly passed the impugned judgments. But, as the matter is pending from the year 2011 learned counsel sought to pass appropriate orders.
8. On behalf of the complainant, the trial Court examined respondent No.1 himself as PW1 and marked Exs.P1 to P8. On behalf of the defence, none were examined and no document was marked. Upon careful scrutiny of the oral and documentary evidence, the trial Court observed that the accused has not put any questions during the cross-examination of PW1 touching the 5 defence set up by him except bare suggestions with regard to the acquaintance between the parties, lending amount and showing the lent amount in the income tax assessment of the complainant etc. The accused failed to take any specific or exact defence to disprove the claim of the complainant.
9. Therefore, as per Section 139 of NI Act, it shall be presumed that, unless a contrary is proved, the holder of a cheque received the cheque referred under Section 138 of NI Act in discharge of any debt or other liability either whole or in part. In the instant case, the accused failed to prove anything contrary to such presumption. As per Section 118 of the NI Act, unless and until the contrary is proved, it can be presumed that the cheque has been issued for consideration only. As the accused failed to lead any rebuttal evidence, the trial Court presumed that the accused issued Ex P8 initially for consideration and in discharge of the same, issued Ex P1 in favour of the complainant. Thus, the presumption under Section 118 of NI Act was found applicable to the present facts and circumstances of the case. Further, accused failed to take steps for sending Ex P1 or Ex P8 to expert opinion, to prove the forgery. Therefore, the trial Court successfully concluded that the complainant proved the essential 6 ingredients of the alleged offence beyond reasonable doubt. The appellate Court also re-appreciated the evidence available on record in the same lines and held the accused guilty for the offence under Section 138 of NI Act.
10. In the present case on hand, both the Courts held that the petitioner was guilty for the offence punishable under Section 138 of I.P.C., which finding, in my considered view, does not call for interference, in the exercise of revisional jurisdiction under Section 397 Cr.P.C.
11. Having regard to the submissions made by both the learned counsel, on perusing the order dated 18.04.2017 passed by this Court in Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and Crl.R.C.No.2887 of 2015, upon considering the fact that the petitioner suffered mental agony and hardship during the course of litigation before the trial Court as well as the appellate Court and as thirteen long years have elapsed from the date of filing of this Revision, this Court is inclined to reduce the sentence imposed against the petitioner to the period of imprisonment already undergone by him and direct the petitioner to pay the compensation of Rs.5,00,000/- to the credit of the trial Court within three months from today.
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12. In default of payment of the said compensation, the judgment dated 01.07.2011 in Criminal Appeal No.94 of 2010 on the file of the learned II Additional Sessions Judge (Fast Track Court), Khammam stands good in all respects.
13. Upon depositing the said amount, respondent No.1/ complainant is granted liberty to withdraw the same with immediate effect.
14. With the above direction, the Criminal Revision Case stands disposed of. Needless to mention, the petitioner is at liberty to work out the remedies available under law.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ E.V. VENUGOPAL, J Date: 29.02.2024 ESP