Kothapalli Krishna Mohan, vs The State Of A.P., Rep By Pp., And ...
2022 Latest Caselaw 9645 AP

           HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

           CRIMINAL REVISION CASE No.1615 OF 2008

ORDER:

This Criminal Revision Case, under Sections 397(1) and 401

of the Code of Criminal Procedure, 1972 (for short, 'the Cr.P.C'),

came to be filed by the petitioner, who is the unsuccessful

appellant in Criminal Appeal No.114 of 2008 on the file of the

Court of I Additional District and Sessions Judge, Guntur (for

short, the 'learned Additional Sessions Judge') and the

unsuccessful accused in Calendar Case No.877 of 2007, on the file

of the Court of V Additional Munsif Magistrate, Guntur (for short,

'the learned Magistrate'), challenging the judgment, dated 03-11-

2008, in Criminal Appeal No.114 of 2008, whereby the learned

Additional Sessions Judge, confirmed the judgment, dated

31.03.2008 in C.C. No.877 of 2007.

2. The parties to this Criminal Revision Case will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

3. The accused in C.C. No.877 of 2007 faced trial for the

offence under Section 138 of the Negotiable Instruments Act, 1881

(for short, 'the NI Act'). The case of the complainant, in brief,

AVRB,J Crl.R.C. No.1615/2008

before the Court below, according to the averments in the

complaint, is as follows:

The accused borrowed Rs.2,00,000/- from the complainant

on 06.06.2004 at Guntur for his business purpose, under the

same day and executed a demand promissory note agreeing to

repay the same with interest at 24% p.a. Subsequently, the

accused did not choose to repay the debt amount in spite of the

demands. On 07.09.2006, the complainant got issued a registered

legal notice demanding the accused to repay the amount. Knowing

about the contents of the notice, accused got it returned with false

endorsement 'not in town continuously for seven days'. Thereafter,

on 19.09.2006, accused met the complainant and issued a cheque

bearing No.0801668, dated 19.09.2006, for Rs.2,00,000/- towards

part payment of the debt due under the promissory note. On the

same day, complainant presented the same through his banker

i.e., Andhra Bank and it was dishonoured on 20.09.2006 as 'funds

insufficient'. The bank intimated the same to the complainant

through the cheque return memo dated 20.09.2006. On

13.10.2006, the complainant got issued a registered legal notice to

the accused demanding him to pay the amount covered under the

said cheque. The said notice was returned as 'left' on 16.10.2006.

AVRB,J Crl.R.C. No.1615/2008

Learned counsel for the complainant received it on 27.10.2006.

Hence, the complaint.

4. The Court below took cognizance of the case under Section

138 of the NI Act and further, after appearance of the accused, he

was examined under Section 251 Cr.P.C. for which he denied the

allegations in the complaint, pleaded not guilty and claimed to be

tried.

5. During course of trial, on behalf of the complainant, before

the Court below, PW.1 was examined and Exs.P-1 to P-8 were

marked. After the evidence of the complainant was closed, accused

was examined under Section 313 Cr.P.C. for which he denied the

incriminating circumstances and claimed that he has defence

witnesses. He examined himself as DW.1.

6. The learned Magistrate, on hearing both sides and

considering the oral and documentary evidence on record, gave a

finding that the complainant proved that the accused issued the

subject matter of the cheuqe towards part discharge of the debt

amount and further the complainant complied the statutory

requirement of issuing notice etc., as such found the accused

guilty of the offence and after questioning him sentenced him to

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suffer Rigorous Imprisonment for four months and to pay a fine of

Rs.500/- in default to suffer Simple Imprisonment for one month.

Then the accused filed Criminal Appeal No.114 of 2008 before the

learned Additional Sessions Judge, which came to be dismissed on

merits by virtue of the judgment dated 03.11.2008. Challenging

the same, the unsuccessful appellant/accused filed the present

Criminal Revision Case.

7. Now, in deciding this Criminal Revision Case, the point that

arises for consideration is as to whether the judgment in Criminal

Appeal No.114 of 2008, dated 03.11.2008, suffers with any

illegality, irregularity and impropriety and whether there are any

grounds to interfere with the same?

8. Sri Shaik Meera Vali, learned counsel, representing learned

counsel for the petitioner, would contend that the learned

Appellate Judge without proper appreciation erred in dismissing

the Criminal Appeal and the Court below did not appreciate the

evidence of PW.1 and DW.1 in proper manner and erroneously the

petitioner was subjected to conviction as such the Criminal

Revision Case is liable to be allowed.

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9. Ms. Shaik Kyrunnissa, learned counsel, representing

learned counsel for the respondent/complainant, would contend

that the accused admitted that he handed over Ex.P-1, promissory

note and when he admitted execution of Ex.P-1, according to

Section 118 of the NI Act, it is deemed that it is supported by

consideration. Accused did not dispute his signing on Ex.P-1

promissory note and Ex.P-4 cheque and the complainant sent

notices under Exs.P-2 and Ex.P-8 to the registered address of the

accused which were returned deliberately and accused before the

trial Court even denied his signatures on the postal cover, under

which he was served with summons, and it shows his character

and the Court below rightly awarded conviction as such Criminal

Revision Case is liable to be dismissed.

10. As the petitioner faced trial under Section 138 of the NI Act,

admittedly, it was the duty of the complainant before the Court

below to prove that accused issued Ex.P-4, cheque, towards part

discharge of the legally enforceable debt and after that he (PW.1)

complied the statutory requirement regarding issuance of notice

etc. To prove the same, complainant got himself examined as PW.1

by filing his chief-examination affidavit and got marked Exs.P-1 to

P-8. Accused examined himself as DW.1.

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11. PW.1, in his chief-examination affidavit, spoken to the facts

in accordance with the complainant averments. He got marked

Exs.P-1 to P-8. During the course of cross-examination, he

deposed that he is one of the Directors of Navata Chit Funds.

Family members of the accused are members in the said Chit and

some Chits relating to them are under default. He denied that

Ex.P-1 was obtained by them from the accused when he stood as

guarantor to his family members after they became successful

bidder and received the prize amount. He volunteers that Ex.P-1

has nothing to do with the said transaction. He denied that

accused did not receive any amount under Ex.P-1. He denied that

Ex.P-4 cheque was given by the accused to him in connection with

the said chit transaction in which family members of the accused

involved. He denied that he did not send notices to the correct

address of the accused.

12. It is to be noticed that during the course of cross-

examination of PW.1, accused did not deny his signatures on

Exs.P-1 and P-4. Even he did not dispute the execution of Ex.P-1.

Nothing is suggested to him that complainant obtained blank

promissory note under Ex.P-1 and blank cheque under Ex.P-4.

When that is the situation, surprisingly, DW.1 without any basis

AVRB,J Crl.R.C. No.1615/2008

in the cross-examination before PW.1 deposed that he did not

execute any promissory note and the complainant obtained blank

signed promissory note and cheque in connection with the chit

transaction of his family members. So, accused did not dispute

before PW.1 that he handed over Exs.P-1 and P-4 to PW.1. He

never put forth any suggestion that he handed over the same

when they were in blank. Now the evidence of DW.1 that he

handed over in blank Exs.P-1 and P-4 deserves no merit.

13. It is to be noticed that, as seen from Exs.P-2 and P-8,

accused did not dispute the fact that they were sent to the one and

same address. So, after issuance of Ex.P-2, accused was alleged to

have come to PW.1 and issued Ex.P-4 cheque. As evident from the

answers spoken by DW.1, he never ventured to issue any notice to

the complainant alleging that he handed over Exs.P-1 and P-4

when they were in blank in connection with the so called chit

transaction of his family members in which he stood as a

guarantor. Apart from this, the evidence of DW.1 and the trend in

cross-examination of PW.1 means that accused set up a defence

that he is residing elsewhere than the address mentioned in

Exs.P-2 and P-8. There is no suggestion in which address accused

is residing. So it goes to show that when the complainant sent

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Exs.P-2 and P-8 to the correct address they were returned as

continuously absent and left. Accused did not venture to give any

reply setting forth his defence that the complainant obtained blank

cheques and blank promissory notes. All these goes to show that

the moment when the accused admitted that he executed

Ex.P-1, there arises a presumption under Section 118 of the NI Act

that it is supported by consideration. Accused did not suggest to

PW.1 that Ex.P-4 was in blank when it was issued. So, accused

miserably failed to connect Exs.P-1 and P-4 with that of the chit

transaction. Accused knows the contents of Ex.P-1 which shows

that he borrowed Rs.2,00,000/- from the complainant.

Complainant is able to establish the link between Exs.P-1 and P-4.

It is interesting to note that accused received summons in C.C.

No.877 of 2007 before the Court below while residing in the

address mentioned in Exs.P-2 and P-8. For this reason, even he

has gone to the extent of denying his signature on the summons.

It all shows his character. As evident from the admissions made by

DW.1, in other cases, he is shown as accused on the allegations of

cheating.

14. Having regard to the overall facts and circumstances, the

evidence on record cogently proves that the complainant lent the

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amount under Ex.P-1 and later the accused issued Ex.P-4 towards

part discharge of the debt. Further, the complainant complied the

statutory requirement of issuing a prior notice after the cheque

was bounced under Ex.P-8 to the correct address of the accused

which was returned as left.

15. In my considered view, the learned V Additional Munsif

Magistrate, Guntur rightly appreciated the evidence on record and

the learned I Additional District and Sessions Judge, Guntur also

rightly appreciated the evidence on record and rightly dismissed

the Criminal Appeal. Hence, absolutely, the judgment of the

learned Additional Sessions Judge in Criminal Appeal No.114 of

2008, dated 03.11.2008, is sustainable under law and facts and it

does not suffer with any illegality, irregularity and impropriety.

Hence, I see no merits in the Criminal Revision Case as such it is

liable to be dismissed.

16. In the result, the Criminal Revision Case is dismissed.

17. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the order of this Court along with the

lower Court record, if any, to the Court below on or before

19.12.2022 and on such certification, the trial Court shall take

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necessary steps to carry out the sentence imposed against the

petitioner in C.C. No.877 of 2007, dated 31.03.2008, and report

compliance to this Court. A copy of this order be placed before the

Registrar (Judicial), forthwith, for giving necessary instructions to

the concerned Officers in the Registry.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date :15.12.2022 DSH