This Criminal Revision Case Is ... vs Judge
2022 Latest Caselaw 9850 AP

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     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

        CRIMINAL REVISION CASE NO.448 OF 2009

ORDER:-

      This Criminal Revision Case is filed by the petitioner, who

was the appellant in Criminal Appeal No.45 of 2008 and accused

in C.C.No.183 of 2003, on the file of the Additional Junior Civil

Judge, Ponnur, questioning the judgment, dated 18.03.2009 in

Criminal   Appeal   No.45   of 2008, whereunder             the   learned

V   Additional   Sessions   Judge       (Fast   Track   Court),   Guntur,

dismissed the appeal confirming the calendar and judgment,

dated 18.02.2008 in C.C.No.45 of 2008, under which the

learned V Additional Sessions Judge, found the present Revision

Petitioner guilty of the offence under Section 138 of Negotiable

Instruments Act ("N.I. Act" for short) and convicted him and

sentenced him to suffer simple imprisonment for three months

and to pay a fine of Rs.3,000/- in default to suffer simple

imprisonment for one month.

      2)    The parties to this Criminal Revision Case will

hereinafter be referred to as described before the trial Court for

the sake of the convenience.

      3)    The case of the complainant, in brief, according to

the averments in the complaint before the Court below, is that
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on 14.08.1996 one Varikutu Yelesu borrowed Rs.20,400/- from

the complainant for his family expenses and along with

guarantors i.e., accused and that one Varikuti Samsonu, jointly

executed   a   demand    promissory    note   in    favour   of   the

complainant, agreeing to repay an amount of Rs.29,263/-

including interest of Rs.8,868/- in 36 equal monthly installments

at the rate of Rs. 813/-. The drawing and disbursement officer

of the said Yelesu i.e., the Commissioner, Tenali Municipality,

undertake to pay the installments after deducting the same from

the salary of the original borrower. So, accordingly, he paid a

sum   of   Rs.26,006/-    to   the    complainant     through     the

Commissioner towards part satisfaction and failed to pay the

balance amount. The original borrower and the guarantor i.e.,

accused executed debt acknowledgement letters periodically.

Ultimately, when the complainant demanded to pay the balance,

accused being guarantor of the original borrower, issued a

cheque for Rs.18,000/-, in favour of the complainant, towards

part satisfaction of the balance and when it was presented for

encashment, it was dishonoured by Chaitanya Grameena Bank,

Nidubrolu, as "funds were insufficient" in the account of the

accused. Complainant issued a statutory notice to the accused.

The accused received it and kept quite. Hence, the complaint.
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      4)    The learned Additional Junior Civil Judge, Ponnur,

took cognizance on file under Section 138 of N.I. Act and after

furnishing copies of documents as required under Section 207 of

the Code of Criminal Procedure ("Cr.P.C." for short), examined

the accused under Section 251 of Cr.P.C. with reference to the

allegations in the complaint, for which he denied the offence and

pleaded not guilty and claimed to be tried.

      5)    During the course of trial before the trial Court,

complainant examined himself as P.W.1 and got marked Exs.P.1

to P.17. After the closure of evidence of the complainant,

accused was examined under Section 313 Cr.P.C., for which he

denied the incriminating circumstances and did not adduce any

evidence.

      6)    The learned Additional Junior Civil Judge, Ponnur, on

hearing both sides and on considering the evidence on record,

found the accused guilty of the offence under Section 138 of N.I.

Act and accordingly, convicted him and sentenced him as above.

Felt aggrieved of the same, the unsuccessful accused filed

Criminal Appeal No.45 of 2008 before the V Additional Sessions

Judge (Fast Track Court), Guntur, which came to be dismissed

on merits on 18.03.2009.      Felt aggrieved of the same, the

unsuccessful appellant filed the present Criminal Revision Case.
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     7)    Now, in deciding the present Criminal Revision Case,

the point that arises for consideration is as to whether the

impugned judgment suffers with any illegality, irregularity and

impropriety and whether there are any grounds to interfere with

the said judgment?

Point:-

     8)    Sri N. Harinadh, learned counsel, representing the

learned counsel for the Revision Petitioner, would contend that

the learned appellate Judge ought to have reversed the findings

of the learned Magistrate.   The complainant failed to establish

the essential ingredients of Section 138 of N.I. Act. The learned

Sessions Judge ought to have held that the debt under Ex.P.3

was time barred and it was not legally enforceable debt. No

statutory notice was issued to the original borrower, as such,

the complaint before the Court below must fail. The Court below

did not look into Exs.P.1 to P.17 are fabricated.         As an

alternative contention, he would also submit that the Revision

Petitioner duly paid the cheque amount to the complainant

during the course of pendency of the Criminal Revision Case, as

such, Court may take into consideration this fact and in the

event of dismissal of the Criminal Revision Case, the sentence of
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imprisonment imposed against the Revision Petitioner may be

modified as that of fine amount.

      9)      Smt. G. Jhansy, learned counsel for the first

respondent, would contend that the Courts below rightly

appreciated the evidence on record that complainant established

a case under Section 138 of N.I. Act before the Court below and

the learned V Additional Sessions Judge (Fast Track Court),

Guntur, rightly appreciated the evidence, as such, Criminal

Revision Case is liable to be dismissed. She would further

submit that it is a fact that during the course of pendency of the

Revision Case, the Revision Petitioner paid the subject matter of

the cheque amount to the first respondent, as such, the request

of the learned counsel for the Revision Petitioner may kindly be

considered.

10) The sum and substance of the case of the

complainant before the Court below is that originally one Yelesu

borrowed Rs.20,400/- on 14.08.1996 from the complainant and

later when he failed to complete the payment of amount, the

accused being guarantor, issued the subject matter of the

cheque, which was dishonoured.

11) P.W.1 before the Court below is no other than the

complainant, who adverted the facts according to the contents

of the complaint. Through his examination, Exs.P.1 to P.17 are

marked. On the other hand, accused did not examine any

witness in support of his defence. P.W.1 was cross examined

before the Court below on behalf of the accused. The

complainant to prove the case against the accused duly got

marked Ex.P.3, promissory note, executed by Varikuti Yelesu

and his guarantors including the accused. It is a case where the

original borrower executed Exs.P.5, P.6, P.7 and P.8, the

acknowledgment of debt letters and the accused executed

Exs.P.9 and P.10, debt acknowledgment letters. Ex.P.11 was

said to be the cheque issued by the accused. The factum of

dishonor is not in dispute. The contention of the accused before

the Court below is multifold. One contention is that the

statutory notice after the dishonor of the cheque was not issued

to the original borrower.

12) It is to be noticed that it is not a case where the

original borrower issued Ex.P.11, cheque. On the other hand,

being the guarantor, it was the accused, who was said to have

issued the said cheque. So, factum of dishonor was supposed to

be intimated to the drawer of the cheque, who was the accused.

Therefore, the contention of the accused before the Court below

that after the dishonor, statutory notice was not issued to the

original borrower holds no water. Apart from this, when the

transaction under Ex.P.3, promissory note, was duly

acknowledged by virtue of Exs.P.5, P.6, P.7 and P.8 in writing by

the original borrower and other guarantor, as the case may be,

and further by the accused under Ex.P.9 and P.10, further

contention that the debt was barred by limitation deserves no

merits.

13) Apart from this, it was also a plea before P.W.1

during the cross examination on behalf of the accused that

Exs.P.1 to P.17 were fabricated. It is nothing a baseless

defence. One cannot fabricate even the endorsements made by

the bank about the factum of dishonor. So, the complainant by

examining himself as P.W.1 and getting marked Exs.P.1 to P.17,

discharged his burden. Accused failed to adduce any evidence.

So, there was no rebuttal evidence at all except putting forth the

defence before P.W.1, which he denied in the cross examination.

14) In my considered view, the complainant before the

Court below duly proved that accused issued the subject matter

of the cheque towards part discharge of a legally enforceable

debt. Both the Courts below rightly appreciated the evidence on

record.

15) Now, certain things that are happened during

pendency of the Criminal Revision Case that is the payment

made by the accused to the complainant about the amount

covered under the cheque. It goes to prove that the case of the

complainant is absolutely true. So, it is crystal clear that

absolutely the impugned judgment does not suffers with any

illegality, irregularity and impropriety, as such, the complainant

proved the case under Section 138 of N.I. Act against the

accused before the Court below beyond reasonable doubt.

16) Now, coming to another submission made by the

learned counsel for the Revision Petitioner, for which the

complainant did not resist, admittedly, it is a case where the

subject matter of the cheque was not huge amount. It was for a

sum of Rs.18,000/-. Even the original borrower discharged

more than half of the amount. Now, during the pendency of this

Criminal Revision Case, the Revision Petitioner paid the cheque

amount to the complainant as per both counsel.

17) Having regard to the above, this Court is of the

considered view that the ends of justice will meet, if the

sentence of imprisonment imposed against the Revision

Petitioner is modified as that of the fine.

18) In the result, the Criminal Revision Case is allowed

in part setting aside the sentence of simple imprisonment of

three months imposed against the Revision Petitioner and

sentencing the Revision Petitioner to that of a fine of Rs.5,000/-

(Rupees five thousand only) instead of Rs.3,000/- (Rupees three

thousand only) and in default to suffer simple imprisonment for

three months.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 26.12.2022.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. REVISION CASE NO.448 OF 2009

Date: 26.12.2022

PGR