Telangana High Court
Smt.Ghousia Begum, Hyd., vs Murad Pasha Died As Per Lrs., And 2 Otrs, ... on 4 July, 2024
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THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.1017 OF 2014
O R D E R:
The present Criminal Revision Case is filed seeking to set aside the judgment dated 15.04.2014 in Criminal Appeal No.1081 of 2014 on the file of the learned III Additional Metropolitan Sessions Judge, at Hyderabad (for short, "the appellate Court") in modifying the judgment dated 08.10.2012 in C.C.No.319 of 2010 on the file of the learned XVI Additional Judge-cum-XX Additional Chief Metropolitan Magistrate, Hyderabad (for short, "the trial Court").
2. Heard Mr.Mirza Nisar Ahmed Baig Nizami, learned counsel for the petitioner and Mr.Rama Kotaiah, learned Assistant Public Prosecutor appearing for respondent No.3-State. No representation on behalf of respondent Nos.1 and 2. Perused the record.
3. The brief facts of the case are that, the husband of the petitioner/accused was acquainted with respondent No.1/complainant and his wife/respondent No.2. Out of such acquaintance, on 23.01.2008, the accused along with her husband approached respondent No.1 and requested him to 2 advance an amount of Rs.1,00,000/- as hand loan. On such request, respondent No.1 lent an amount of Rs.1,00,000/- as a hand loan through a cheque bearing No.968755 dated 23.01.2008 drawn on State Bank of Hyderabad, Sanathnagar Branch and the accused credited the said amount into her Savings Bank account. Thereafter, accused executed a deed of acknowledgment and issued two post dated cheques bearing Nos.603854 and 603855 dated 10.08.2008 for Rs.50,000/- each drawn on Karur Vysya Bank Limited, Kalyan Nagar Branch, Hyderabad in favour of the respondent No.1 towards discharge of the loan amount.
4. It is stated that on 15.01.2009, respondent No.1 presented the aforesaid cheques in his account for realization and the same were returned unpaid along with cheque return memos dated 16.01.2009 for the reason "no funds available" in the account of the accused. Then, respondent No.1 issued legal notice dated 24.01.2009 to the accused demanding her to pay the amount covered under the cheque within the stipulated time. But the accused failed to pay the amount. It is stated that respondent No.1 executed a General Power of Attorney in favour of his wife/respondent No.1, permitting her to represent the case on his 3 behalf. Subsequently, respondent No.1 died. Hence, respondent Nos.1 and 2 filed a complaint against the petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act (for short, "NI Act").
5. The trial Court vide judgment dated 08.10.2012 in C.C.No.319 of 2010 found petitioner/accused guilty for the offence under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for a period of one year and to pay fine of Rs.5,000/-, in default of payment of fine, he was directed to suffer simple imprisonment for a period of one month. Aggrieved by the same, the petitioner preferred an appeal.
6. The appellate Court vide impugned judgment, modified the judgment passed by the trial Court and sentenced the petitioner/accused to pay an amount of Rs.1,50,000/- as compensation within 30 days from the date of the judgment. In default of payment of the compensation amount, the accused was directed to undergo simple imprisonment for a period of six months. Assailing the same, the present Revision.
7. Learned counsel for the petitioner contended that the trial Court and the appellate Court failed to appreciate the evidence available on record in proper perspective and erroneously passed 4 their respective judgments. He further contended that the trial Court, upon death of respondent No.1, permitted respondent No.2 to come on record and continue the proceedings on behalf of deceased respondent No.1, basing on a memo when specific provision is provided under Criminal Procedure Code and the same is untenable. Therefore, he seeks to set aside the impugned judgment.
8. Learned Assistant Public Prosecutor contended that both the Courts, upon careful scrutiny of the evidence available on record, have rightly passed their respective judgments and interference of this Court is unwarranted. Therefore, he seeks to dismiss the Revision.
9. On behalf of the complainant, the trial Court examined PWs.1 and 2 and marked Exs.P1 to P9. On behalf of the defense, none were examined and no document was marked. Upon careful scrutiny of the oral and documentary evidence the trial Court observed that the evidence of PWs.1 and 2, coupled with Ex P1, Ex P2-cheques, Ex P3-acknowledgment and Ex P6-statutory notice, would clinchingly establish that the accused had issued Exs.P1 and P2 cheques in favour of the deceased respondent No.1 in discharge of her legally enforceable debt. The oral 5 evidence of PW1 is reliable, unshaken and consistent with the documentary evidence. It is established by respondent No.2 that her husband dispatched Ex P6-statutory notice to the accused calling upon her to pay the amount covered by both the cheques within stipulated period. The said statutory notice was received by the accused. The accused, in her, Section 313 Cr.P.C. examination categorically admitted that she received Ex P6 statutory notice from the deceased respondent No.1 but, she failed to give any reply. Therefore, relying upon the decision passed by the erstwhile High Court of Andhra Pradesh in B. Raja Krishnaji Vs. Kadam Kandoji and another 1, the trial Court found the accused guilty of the offence under Section 138 of the NI Act and rendered the judgment dated 08.10.2012 in C.C.No.319 of 2010.
10. The appellate Court, upon re-appreciating the evidence available on record observed that the death of respondent No.1 will not abate the proceedings and the learned Magistrate has power to continue the proceedings by bringing respondent No.2 on record as legal heir of deceased respondent No.1. The learned Judge of the appellate Court found that the accused admitted her signatures on Exs.P1 and P2 and hence, presumption under 1 2008 (1) ALD (Crl.) 300 (AP) 6 Section 139 of the NI Act arises, which states that the accused issued the subject cheques in discharge of legally enforceable debt. But the accused failed to rebut the said presumption basing on preponderance of probabilities and thus, found that the complainant proved the ingredients under Section 138 of the NI Act and rendered the impugned judgment.
11. This Court vide order dated 08.05.2014 suspended the operation of sentence imposed against the petitioner on condition of the petitioner furnishing a personal bond for Rs.10,000/- with two sureties for a like sum to the satisfaction of the trial Court and also on deposit of a sum of Rs.75,000/- in the trial Court within a period of sixty days from that day. On such deposit, respondent No.2 was permitted to withdraw the same without furnishing any security. Nothing is available on record to show that the order passed by this Court has been complied with.
12. In the case on hand, both the Courts held that the petitioner was guilty of the offence punishable under Section 138 of NI Act, which finding, in my considered view, does not call for interference, in exercise of revisional jurisdiction under Section 397 Cr.P.C.
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13. In view of the facts and circumstances of the case and 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 ten long years have elapsed from the date of filing of this Revision, this Court is inclined to take a lenient view and reduce the amount of compensation, as awarded by the appellate Court to Rs.1,25,000/- instead of Rs.1,50,000/-. The petitioner is directed to pay the said amount within a period of one year from the date of receipt of a copy of the order. If the petitioner fails to comply with the aforesaid direction, he shall suffer simple imprisonment for a period of six (6) months.
14. Except the above modification, the Criminal Revision Case in all other aspects, stands dismissed.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________ E.V.VENUGOPAL, J Date: 04.07.2024 ESP