Ineedi Anjaneya Prasad vs Desu Nageswara Rao The State Of ...
2022 Latest Caselaw 444 AP

              HON'BLE SRI JUSTICE RAVI NATH TILHARI

            CRIMINAL REVISION CASE No.1086 OF 2006

JUDGMENT:

1. Heard Sri S. Venkateswarulu, learned counsel for the

petitioner/revisionist and Sri Soora Venkata Sai Nath, learned Special

Assistant Public Prosecutor for the State/2nd respondent. Respondent

No.1 defacto-complainant is unrepresented inspite of service.

2. This revision under Sections 397/401 Cr.P.C has been filed

challenging the judgment dated 20.03.2006 in Criminal Appeal No.120

of 2005, on the file of III Additional District and Sessions Judge, Ongole,

whereby maintaining the conviction of the petitioner though modifying

the sentence as imposed by the II Additional Judicial Magistrate of the

First Class, Ongole in C.C.No.443 of 2004 dated 03.10.2005 of

imprisonment while maintaining the direction to make payment of

compensation to the complainant/1st respondent.

3. The 1st respondent one Desu Nageswara Rao filed the complaint

under Section 138 of the Negotiable Instruments Act, 1881 (for short,

"the N.I.Act") against the petitioner on the allegation that the petitioner

borrowed a sum of Rs.50,000/- from the complainant on 05.12.2002 for

carrying out business and executed a pronote to repay the same with

interest at the rate of 24% per annum. On repeated demands, the

petitioner issued a cheque for Rs.70,000/- on 05.08.2004 towards full

discharge of the pronote debt but on presentation of the cheque in

Pinakini Bank, Ongole for collection, the same bounced and was

returned with an endorsement "account closed". On 14.08.2004, the

complainant issued a legal notice which was received by the petitioner

on 17.08.2004, but inspite thereof, the petitioner failed to make the

payment of the cheque amount and thus committed the offence

punishable under Section 138 of the N.I.Act.

4. The Judicial Magistrate of the First Class taken the case on file.

On appearance of the accused-petitioner the documents were furnished.

He was examined under Section 251 Cr.P.C. He pleaded not guilty and

was therefore tried.

5. The complainant in support of his case, examined himself as

P.W.1 and the testator and scribe of the document as P.Ws.2 and 3, and

got marked Exhibits P.1 to P.8. After closure of the complainant's

evidence the accused was examined under Section 313 Cr.P.C

explaining the incriminating circumstances in the evidence which were

denied by him. The accused petitioner did not examine any witness nor

any exhibit was marked.

6. The learned Magistrate vide judgment dated 03.10.2006 recorded

the finding that the complainant successfully established the guilt of

the offence under Section 138 N.I.Act against the petitioner beyond all

reasonable doubt and consequently convicted the petitioner-accused

for the offence under Section 138 of the N.I.Act and imposed the

sentence of S.I for a period of 9 months and also directed him to pay a

sum of Rs.85,000/- to the complainant towards compensation under

Section 357(3) Cr.P.C and in default to undergo S.I for a further period

of six months.

7. The judgment of the Judicial Magistrate dated 03.10.2005 was

challenged in Criminal Appeal No.120 of 2005 on the file of III

Additional District and Sessions Judge, Ongole, which was dismissed

vide judgment dated 20.03.2006 with respect to the conviction and the

direction for payment of compensation, with respect to the sentence of

imprisonment, it was set aside.

8. Learned counsel for the petitioner submitted that the appellate

court legally erred in confirming the judgment of the trial court with

regard to the compensation after having rightly modified the sentence

part, it ought to have also set aside the direction for payment of

compensation. No other argument was advanced.

9. Learned Special Assistant Public Prosecutor for 2nd respondent

submitted that both the courts below have convicted the petitioner and

have recorded concurrent findings of fact on the guilt of the petitioner

and as such no illegality has been committed with regard to imposition

of punishment.

10. I have considered the submissions advanced and perused the

material on record.

11. From perusal of the judgment passed by the Judicial Magistrate,

it is evident that on consideration of the evidence of P.Ws.1 to 3 and the

exhibits, finding has been recorded that the complainant established

that Ex.P.1 pronote was executed by the accused petitioner on

05.12.2002 towards borrowing of Rs.50,000/- from the complainant

and a cheque Ex.P.2 for Rs.70,000/- was issued towards discharge of

the pronote debt, which cheuqe on presentation in the bank bounced of

which the bank submitted the information vide Ex.P.3 and P.4 to the

effect that the cheque was dishonoured due to account closed. This

evidence of P.W.1 and the Ex.P.3 and P.4 were not challenged

specifically by the petitioner and in view thereof the complainant

established that Ex.P.2 cheque was presented by him for collection

which was dishonoured with endorsement account closed. The

evidence of P.W.1 further established that the P.W.1 complainant

issued a legal notice to the accused on 14.08.2004 demanding the

accused to pay the cheque amount which was also evidenced by Ex.P.5

the copy of the legal notice, Ex.P.6 the letter given by the postal

authorities Ex.P.7 the postal receipt and Ex.P.8 the letter of the postal

authority to the complainant that the registered letter was delivered on

17.08.2004. The complainant therefore, established that he complied

with the provisions of statutory notice to the accused-petitioner as

contemplated under Section 138(b) of the N.I.Act.

12. Admittedly, the accused failed to make payment inspite of service

of notice.

13. The aforesaid finding of the Judicial Magistrate has been affirmed

by the appellate court on consideration of the evidence on record. The

appellate court though confirmed the order of conviction but keeping

the age of the petitioner in mind, modified the sentence imposed by the

Judicial Magistrate by allowing the appeal partly to this extent that the

sentence of imprisonment was set aside, however, the direction to pay

compensation was maintained.

14. Merely because the sentence has been modified by the appellate

court, keeping in view of the age of the accused-petitioner, to the extent

of the sentence of imprisonment, it cannot be said that the part of the

direction to pay compensation ought also to have been modified. The

finding on the point of conviction having been confirmed by the

appellate court, the submission of the learned counsel for the petitioner

that once the sentence was modified, the direction to pay compensation

can also not stand, is misconceived and is rejected.

15. I do not find any illegality in the order passed by the court below

which does not call for any interference in the exercise of the revisional

jurisdiction.

16. On 31.08.2018, in the revision, this Court passed the following

order:

"It is represented by the learned counsel for the petitioner that the petitioner is intending to pay the money. However, he needs some time. Post on 14.09.2018 with an understanding that no adjournment will be given".

17. Inspite of many adjournments since 31.08.2018, learned counsel

for the petitioner has no instructions on the point whether in view of the

statement made on 31.08.2018, the petitioner has made the requisite

payment of the compensation amount to the complainant or not. There

is no representation from the complainant side as well.

18. Keeping in view of the aforesaid, no case is made out to interfere

with the judgment under challenge.

19. The petition is dismissed but providing that:

a) If the amount of compensation has been paid in view of the statement made before this Court as recorded in the order dated 31.08.2018, no further action shall be taken against the petitioner, but

b) if the petitioner has not made the payment of the compensation amount as imposed by the learned Judicial Magistrate, till date, the same shall be paid to the complainant-1st respondent, which expression shall include his legal representatives, if the necessity so arises, along with interest at the rate of 11% per annum from the date of the judgment of the Judicial Magistrate, i.e.03.10.2006 till date or upto double the cheque amount i.e., Rs.1,40,000/- (Rupees one lakh forty thousand only) whichever is less, within a period of one month from today, failing which the part of the judgment of the Judicial Magistrate providing that in default to pay the compensation amount to the 1st respondent-complainant to undergo simple imprisonment for a period of six months, shall become operative and the court below shall proceed accordingly against the petitioner.

20. Consequently, Miscellaneous Applications, if any pending, also

stand closed.

________________________ RAVI NATH TILHARI, J Date:31.01.2022, Gk

HON'BLE SRI JUSTICE RAVI NATH TILHARI

CRIMINAL REVISION CASE No.1086 OF 2006

31.01.2022

Gk