This Criminal Revision Case Is ... vs Principal Sessions Judge With ...
2023 Latest Caselaw 1460 AP

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

           CRIMINAL REVISION CASE NO.567 OF 2005

ORDER:-

      This Criminal Revision Case is filed by the petitioner, who

was the appellant in Criminal Appeal No.173 of 2003, on the file

of Principal Sessions Judge, West Godavari District at Eluru,

challenging the judgment, dated 16.03.2005, where under the

learned Principal Sessions Judge, dismissed the Criminal Appeal

filed by the appellant, confirming the judgment in C.C.No.26 of

2003, on the file of Judicial Magistrate of First Class (Special

Mobile Court), West Godavari District at Eluru. The Revision

Petitioner faced trial before the learned Judicial Magistrate of First

Class, West Godavari District at Eluru for the offence under

Section 138 of Negotiable Instruments Act ("N.I. Act" for short)

and he was convicted under Section 255 (2) of the Code of

Criminal Procedure ("Cr.P.C." for short) and sentenced to suffer

simple imprisonment for six months and to pay a fine of

Rs.5,000/-, in default to suffer simple imprisonment for two

months.

      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.
                                   2


     3)       The case of the complainant before the Court below,

according to the averments in the complaint filed by him alleging

the offence under Section 138 of N.I. Act, is that the accused

borrowed a sum of Rs.1,00,000/- on 13.01.1999 from the

complainant, agreeing to repay the same with interest at Rs.2-50

ps. Per month per hundred with yearly rests. The accused

accordingly    executed   a   promissory   note   in   favour   of   the

complainant on the same day. On 13.12.2000 the accused issued

a cheque in favour of the complainant, drawn on Canara Bank,

Chettinavaripalem, Visakhapatnam for Rs.1,50,000/-, towards

part discharge of the amount due under the promissory note.

When the cheque was presented through the banker of the

complainant in State Bank of India, it was returned by the Canara

Bank, Visakhapatnam with an endorsement that payment of

cheque was stopped. The payment was stopped, as the accused

did not have sufficient funds to honour the cheque. The cheque

bearing No.564094, dated 13.12.2000, drawn on Canara Bank,

was dishonoured. The complainant issued a notice on 25.02.2001

as per the provisions of Negotiable Instruments Act to the

accused. The accused received the same on 28.02.2001. As on

the date of complaint, the accused did not make any payment.

He did not give any reasons for stopping the payment.           Hence,

the complaint.
                                       3


      4)    The learned Judicial Magistrate of First Class, West

Godavari District at Eluru, after conducting necessary enquiry,

took the case on file and issued process on the accused.                        After

appearance of the accused and after complying the provisions of

Section 207 of Cr.P.C., the accused was examined under Section

251 of Cr.P.C., for which the accused denied the allegations,

pleaded not guilty and claimed to be tried.

      5)    During     the   course       of   trial,        on   behalf   of    the

complainant before the Court below, P.W.1 and P.W.2 were

examined and Ex.P.1 to P.5 were marked. After closure of the

evidence of the complainant, the accused was examined under

Section    313   of   Cr.P.C.   with      regard        to    the   incriminating

circumstances in the evidence of the complainant witnesses, for

which he denied the same, but, the accused did not let in any

defence witnesses.

      6)    The learned Judicial Magistrate of First Class, West

Godavari District at Eluru, on hearing both sides and on

considering the oral as well as documentary evidence, found the

accused guilty of the offence under Section 138 of N.I. Act and

accordingly, convicted and sentenced him as above. Aggrieved by

the said judgment, the unsuccessful accused in the above said

C.C.No.26 of 2003, filed the Criminal Appeal No.173 of 2003

before the learned Principal Sessions Judge, West Godavari
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District at Eluru, which came to be dismissed on merits. Aggrieved

by the said judgment in Criminal Appeal No.173 of 2003, the

unsuccessful appellant filed the present Criminal Revision Case.

      7)    Now, in deciding this Criminal Revision case, the point

that arises for consideration is that as to whether the judgment,

dated 16.03.2005 in Criminal Appeal No.173 of 2003, on the file

of learned Principal Sessions Judge, West Godavari District at

Eluru, suffers with any illegality, irregularity and impropriety and

whether there are any grounds to interfere with the said

judgment of the learned Principal Sessions Judge?

POINT:-

      8)    The   learned   counsel    appearing   for   the   revision

petitioner, Sri S. Khadar Mohiddin, would contend that the case of

the complainant is that the accused borrowed Rs.1,00,000/- from

him on 13.01.1999 and executed a promissory note and towards

part discharge of the promissory note debt, the accused issued

cheque, dated 13.12.2000, for a sum of Rs.1,50,000/- and when

he presented it for collection, it was dishonoured on the ground

that the payment was stopped.         He would strenuously contend

that filing of the C.C.No.26 of 2003 by the complainant before the

concerned Judicial Magistrate of First Class was as a counter-blast

to the letter of the revision petitioner to Mr. G. Sudhakar on

20.10.2000. It is the case of the revision petitioner that in respect
                                  5


of one chit transaction in the year 1997, the revision petitioner

gave three empty cheques to G. Sudhakar and later discharged

the chit amount, but G. Sudhakar did not return the cheques. As

the revision petitioner suspected that G. Sudhakar may misuse it,

he addressed a letter, dated 20.10.2000, demanding G. Sudhakar

to return the cheques. After that only, Ex.P.1 was brought into

existence by G. Sudhakar in collusion with the complainant by

fabricating a theory.   Apart from this, the revision petitioner

intimated to his bank by letter, dated 02.11.2000 to stop

payments on the ground that three cheques were taken by a third

party. The subject matter of the present cheque was also one of

the cheques in the said letter. Therefore, the letter addressed by

the revision petitioner to G. Sudhakar and letter addressed by the

revision petitioner to the bank were much prior to Ex.P.1 cheque.

The revision petitioner agitated before P.W.1 about the defence

theory but, unfortunately, due to the circumstances beyond the

control, the revision petitioner could not let in any evidence. The

complainant failed to file the subject matter of the promissory

note before the Court below. The answers spoken to by him

shows any amount of doubtful circumstances in truthfulness of his

case.   P.W.2, the bank official, also deposed false as if cheque

was bounced due to insufficient funds. In fact, as the revision

petitioner asked the bank authorities not to make payments, in
                                             6


view of the reason set out in his letter, the payment was stopped.

The revision petitioner unfortunately could not let in evidence

before the Court below in view of certain circumstances beyond

his control. In fact, those two documents were marked in

connection with Calendar Case at Visakhapatnam as Ex.D.1 and

Ex.D.2. The Court below erroneously convicted the revision

petitioner. When the revision petitioner filed Crl.M.P.No.2233 of

2004 in Criminal Appeal No.173 of 2003 under Section 391 of

Cr.P.C.        to    adduce    additional       evidence,    it    was   dismissed

erroneously by the learned Principal Sessions Judge, Eluru on

28.01.2005. Subsequently, the Criminal Appeal was dismissed on

merits. If the revision petitioner was granted permission to

adduce         additional     evidence,   he      would     have    proved   those

documents by way of additional evidence.

          9)        Learned counsel for the revision petitioner would rely

upon a decision of the Hon'ble Supreme Court in Rambhau and

another vs. State of Maharashtra 1 with regard to letting of

additional evidence. He would further rely upon a decision of the

Hon'ble Supreme Court in K.N. Beena vs. Muniyappan and

another 2 to contend that the complainant failed to prove the

offence under Section 138 of N.I. Act. The learned counsel for the



1
    2001 (1) ALD (Crl.) 800 (SC)
2
    (2001) 8 Supreme Court Cases 458
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revision petitioner    would   further   contend   that   the   learned

Principal Sessions Judge with untenable reasons went on to

dismiss the Criminal Appeal.      Both the Courts below failed to

appreciate the contention of the revision petitioner that he had no

acquaintance with the respondent-complainant.         Apart from the

above contentions, the learned counsel for the revision petitioner

seeks to remand the matter to the appellate Court directing the

appellate Court to permit the revision petitioner to adduce

additional evidence.

10) In spite of the opportunity given, no arguments are

advanced on behalf of the first respondent/complainant.

11) P.W.1 before the Court below was the complainant

and he deposed in chief examination that he knows the accused,

who did Readymade (wholesale) garments business. He knows

the accused. The accused requested him to lend Rs.1,00,000/- for

his business. The accused agreed to repay the amount with

interest at 30% per annum and hence, he lent Rs.1,00,000/- on

13.01.1999. The accused executed a demand promissory note in

his favour on the same day for the said amount incorporating

certain terms. He demanded the accused to discharge the due

under promissory note. Thereafter, the accused issued a cheque,

dated 13.12.2000 for Rs.1,50,000/-, drawn on Canara Bank,

Visakhapatnam, towards discharge of the loan amount due under

the promissory note. The accused promised to arrange funds to

honour the cheque. He presented the said cheque in State Bank

of India, Vatluru in the month of January, 2001 for collection and

it was sent to the drawer's bank. It was informed that the accused

made a request to the bank to stop the payment. So, the bank

officials informed to him vide memo, dated 15.02.2001 that the

accused requested the bank to stop payment under the cheque.

Ex.P.1 is the cheque, dated 13.12.2000. Ex.P.2 is the cheque

returned memo, dated 15.02.2001 issued by State Bank of India.

Ex.P.3 is another cheque returned memo issued by Canara Bank,

Chittivanipalem Branch, Visakhapatnam. He got issued a

registered legal notice on 25.02.2001 demanding the accused to

pay the amount due. He sent the notice through registered post.

The accused received it under postal acknowledgement. Ex.P.4 is

the office copy of the legal notice. Ex.P.5 is the postal

acknowledgement. After receipt of legal notice, the accused

requested him not to file the case, but, he filed the present

complaint as per the provisions of Section 138 of N.I. Act. After

the complaint was taken on file, the accused made his appearance

and subsequently, executed a fresh demand promissory note in

his favour not only for the principal amount but also the interest.

The accused neither paid the amount due under the dishonour of

cheque nor the amount due under the fresh promissory note. The

accused issued Ex.P.1 to deceive him and requested the bank

officials to stop the payment knowing fully well about the

consequences. Hence, he is constrained to file the complaint.

12) The complainant also examined P.W.2, the then

Assistant Branch Manager, State Bank of India, Vatluru, who

deposed that P.W.1 had S.B. Account in their bank and its

No.21/3345. P.W.1 presented Ex.P.1 cheque in their bank on

23.01.2001 for collection and it was sent to the Canara Bank.

Subsequently, they received communication from the drawer's

bank that Ex.P.1 was dishonoured due to insufficient funds.

Later, they sent the dishonoured cheque to P.W.1 by registered

post on 05.02.2001.

13) This revision case is preferred against the judgment of

the learned Principal Sessions Judge, West Godavari District at

Eluru in Criminal Appeal No.173 of 2003, dated 16.03.2005,

confirming the judgment of the learned Judicial Magistrate of First

Class, Eluru, under which the revision petitioner was convicted for

the offence under Section 138 of N.I. Act. So, this revision case is

preferred against the concurrent findings of both the Courts

below. The simple question that has to be looked into while

deciding this revision case is as to whether the judgment of the

learned Principal Sessions Judge suffers with any illegality,

irregularity and impropriety. Admittedly, it is a case where the

complainant filed the complaint alleging the offence under Section

138 of N.I. Act before the Court below. In support of the case,

the complainant examined himself as P.W.1 and further examined

P.W.2, the bank official.

14) To appreciate the contention of the revision petitioner,

it is appropriate to look into his defence before the Court below.

There is no dispute about the signature of the accused on Ex.P.1,

cheque, projected by the complainant. Coming to the cross

examination of P.W.1, he deposed that he underwent training in

I.T.I. as Mechanical Draftsman. He did not get mention either in

the complaint or in Ex.P.4, legal notice, about Sai Hanuman

Transport business which was carried on in Visakhapatnam. He

did not produce any document for Sai Hanuman Transport

business. He carried on transport business from the year 1998 to

November, 2000. He did not produce any documentary proof for

his transport business even for those two years. He did not

mention in his complaint or Ex.P.4 about his acquaintance with

the accused or the manner of the acquaintance.

15) It is to be noticed that it is the case of the

complainant that he lent an amount of Rs.1,00,000/- to the

accused under the cover of a specific promissory note. Though

the complainant did not produce the promissory note, it will be

discussed hereinafter as to whether it is fatal to the case of the

complainant. Therefore, it is not a case where the amount was

lent by Sai Hanuman Transport business to the accused. Hence,

non-filing of any proof regarding the business carried by the

complainant under the name and style of Sai Hanuman Transport

business deserves no consideration here.

16) During the cross examination, P.W.1 denied that one

G. Sudhakar is his friend. The learned counsel for the accused

shown a Photostat copy to P.W.1 and asked him to disclose the

names of the witnesses and their addresses. He could disclose the

name of the second attestor, but not first attestor. He could not

remember the name of the scribe, who scribed the original

promissory note, dated 13.01.1999. He deposed that he did not

file any suit basing on the promissory note, dated 13.01.1999 for

recovery of amount. Even he did not address any letters or issue

any notice demanding amount due under the promissory note.

He denied that he obtained a blank cheque from G. Sudhakar and

got filed a false case against the accused and nothing was

happened in between them.

17) It is to be noticed that the mere non-filing of any suit

by the complainant to recover the amount due under the

promissory note does not entitle the accused to claim order of

acquittal. The complainant sought to prove the guilt against the

accused by relying on Ex.P.1 to Ex.P.5. There is no dispute about

the issuance of Ex.P.4, legal notice, to the accused by the

complainant and further receipt of the same under Ex.P.5,

acknowledgment. In the cross examination though the

complainant did not mark the original promissory note, but the

accused cross examined him by showing Photostat copy of the

promissory note, dated 13.01.1999 and asked him to state the

names of the attestors. However, nothing was suggested to P.W.1

during cross examination that the so called promissory note set

up by the complainant is fabricated document. During the cross

examination the signature of the accused on Ex.P.1 is not denied

in any way. Therefore, it is a case where P.W.1 denied the

defence of the accused that he obtained a blank cheque from

G. Sudhakar and got filed a false case against the accused with

his convenience. The complainant examined P.W.2, the bank

official, who spoken about the fact that when P.W.1 presented

Ex.P.1, cheque, in their bank on 23.01.2001 for collection, it was

sent to Canara Bank and later they received information from the

drawer's bank that it is dishonoured as insufficient funds.

18) Admittedly, the cheque was dishonoured as payment

was stopped according to the case of the complainant and as

evident from Ex.P.2 and Ex.P.3, the cheque returned memos. It

appears that P.W.2 mistakenly deposed that the cheque was

dishonoured due to insufficient funds. P.W.2 did not deny Ex.P.2

and Ex.P.3. Hence, it is clear that according to Ex.P.2 and Ex.P.3,

the cheque was dishonoured as payment was stopped. It is

quietly evident from Ex.P.2 and Ex.P.3. It is clear that the

complainant proved the factum of dishonour of Ex.P.1. No

probabilites were elicited from the mouth of P.W.1 during cross

examination as to how the cheque under Ex.P.1 went into the

hands of G. Sudhakar and how G. Sudakhar handed over the

same to P.W.1. During Section 313 of Cr.P.C. examination, the

accused revealed that he does not know P.W.1 and he never

delivered the promissory note or cheque to P.W.1. In the year

1997 he handed over three empty cheques to G. Sudhakar in

connection with chits and later he cleared the chit amount.

Though he paid the chit amount, but the blank promissory notes

and cheques were not returned to him. On account of his

acquaintance with G. Sudhakar, he did not ask for return of those

cheques and promissory notes. It is to be noticed that these

things that were put forth in Section 313 of Cr.P.C. examination

were not put forth before P.W.1. The simple defence before P.W.1

was that he obtained empty cheques from G. Sudhakar and filed a

false case. It was not suggested to P.W.1 that the complainant

delivered three empty cheques and promissory notes to G.

Sudhakar and G. Sudhakar did not return, etc. There is no

dispute that the accused never issued any reply to counter the

allegations in Ex.P.4, legal notice. There is also no dispute that he

did not issue any legal notice to G. Sudhakar. The accused did not

let in any defence evidence by examining G. Sudhakar to

probabalise his contention. Even he did not examine any bank

officials to prove his contentions now, as canvassed during the

course of hearing of this revision petitioner.

19) It is the specific evidence of P.W.1 that after filing of

the complaint, the accused executed another promissory note

with interest in respect of the subject matter of the issue and

even after that he failed to pay that amount. This portion of the

evidence of P.W.1 was not at all impeached during the cross

examination. Therefore, the complainant before the Court below

examined himself as P.W.1 and examined P.W.2 and got marked

Ex.P.1 to Ex.P.5. The simple defence of the accused that the

complainant obtained a blank cheque and fabricated Ex.P.1

remained a mere allegation. There were no circumstances in the

evidence of P.W.1 to disbelieve his evidence. Hence, the

suggestions that were put forth before P.W.1 would not disprove

the case of the complainant, as such, the Court below found the

accused guilty of the offence and convicted him.

20) The contention of the revision petitioner is that he

addressed a letter suspecting some mischief on the part of

G. Sukhakar on 20.10.2000 and that Ex.P.1 was brought into

existence as a counter-blast and that further addressed a letter

on 02.11.2000 to the bank to stop payments as three cheques fell

into hands of a third party and Ex.P.1 is one of such cheques.

Even this version was not suggested to P.W.1 during the cross

examination. Nothing was suggested before P.W.1 during cross

examination that the accused addressed a letter, dated

20.10.2000 to G. Sudhakar demanding to return the cheques and

promissory notes and further addressed a letter to the bank on

02.11.2000 to stop payments, etc. It is a fact that the accused in

the capacity of the appellant filed Crl.M.P.No.2233 of 2004 in

Crl.A.No.173 of 2003 and the learned Principal Sessions Judge by

virtue of an order, dated 28.01.2005, dismissed the same. The

revision petitioner enclosed the copies of the petition, counter and

the order in the above Criminal Miscellaneous Petition along with

the Memorandum of Revision.

21) Now the contention of the revision petitioner is that

the learned appellate Court erroneously dismissed the said

application. If the Court remands this matter, it would resolve the

issue and the revision petitioner would be able to prove the case

before the Court below. This Court has carefully looked into the

above said contention. As evident from the order in

Crl.M.P.No.2233 of 2004 in Crl.A.No.173 of 2003, dated

28.01.2005, it is quietly evident that along with the said Criminal

Miscellaneous Petition, the revision petitioner did not enclose the

so-called copies of letters. The Criminal Miscellaneous Petition

was filed before the Court below on 07.09.2004, for which a

counter was filed and it was disposed on 28.01.2005.

Subsequently, the appeal was dismissed on merits. The revision

petitioner enclosed the so-called Ex.D.1 and the so-called Ex.D.2,

the purported letters, dated 20.10.2000 and 02.11.2000

respectively marked in C.C.No.76 of 2001. There is no dispute

that those letters were not brought in evidence either before the

Court below or before the appellate Court. The order of the

learned Principal Sessions Judge shows that the revision petitioner

even to prove his bonafidies did not enclose any letter along with

the petition. The order in Criminal Miscellaneous Petition goes to

show that the learned Principal Sessions Judge looked into overall

facts and circumstances and dealt with the scope of Section 391

of Cr.P.C. and that the accused did not file even a copy of the

letter to prove his bonafidies. With the above, the learned

Principal Sessions Judge dismissed the same.

22) Now, the appellant sought to rely upon Rambhau's

case (1 supra) to let in additional evidence. It was a case under

Prevention of Corruption Act. The Court below acquitted the

accused for the charges framed. When the matter was canvassed

before the High Court of Bombay, appeal was allowed reversing

the judgment of the trial Court by convicting the appellant. Then,

the appellant filed Criminal Appeal before the Hon'ble Supreme

Court, which was dismissed. Dealing with Section 391 of Cr.P.C.,

the Hon'ble Supreme Court held that the additional evidence

cannot and ought not to be received in such a way so as to cause

any prejudice to the accused. It is not a disguise for a re-trial or

to change the nature of the case against the accused. Ultimately,

the Hon'ble Supreme Court held that the exercise of powers under

Section 391 of Cr.P.C. is dependent upon the fact-situation of the

matter. So, it is a case where the additional evidence was sought

to be adduced, it was held that the additional evidence cannot be

adduced so as to cause prejudice to the accused. It appears, it

was a case where the evidence was sought to be let in against the

accused. Here, it is the accused, who sought for additional

evidence against the complainant. Having regard to the scope of

Section 391 of Cr.P.C., this Court is of the considered view that

the appellant never set forth his defence as sought for in his

application for additional evidence before P.W.1 when he was

subjected to probing cross examination. In my considered view,

the appellant miserably failed to make out a case so as to adduce

the additional evidence before the learned Principal Sessions

Judge and the learned Principal Sessions Judge passed an

elaborate order negativing the contention of the appellant. Under

the circumstances, the alternative submission made by the

learned counsel for the revision petitioner that if this Court

remands the matter to the Court below, it would resolve the issue

is not tenable. Therefore, it is not a fit case to remand the matter

to the Court below.

23) Turning to another decision in K.N. Beena's case (2

supra), the factual aspects are such that the Hon'ble Supreme

Court dealing with the presumption under Section 118 and 139 of

N.I. Act, held that the presumption is rebuttable by the accused,

but mere denial in replying to the legal notice is not enough to

discharge the burden on the part of the accused. Coming to the

case on hand, even it is not a case where the accused refuted the

allegations in Ex.P.1 having received a legal notice. Even he

failed to put forth his defence now, as canvassed before P.W.1

during the cross examination. He did not let in any defence

evidence. He did not elicit any probable circumstances from P.W.1

to probabalise his defence. Even he did not make out any case

before the learned appellate Court so as to adduce additional

evidence as sought for. In my considered view, the revision

petitioner failed to probabalise his defence theory and failed to

rebut the presumption under Section 139 of N.I. Act. In fact, the

decision in K.N. Beena's case (2 supra) goes contra to the case of

the revision petitioner.

24) A perusal of the judgment of the learned Principal

Sessions Judge in Criminal Appeal No.173 of 2003 goes to show

that the learned Principal Sessions Judge looked into the facts and

circumstances in proper perspective and answered the authorities

cited by the learned counsel for the appellant properly and

ultimately after analyzing the evidence on record, came to a

conclusion that the appeal filed by the appellant is liable to be

dismissed. In my considered view, the judgment of the learned

Principal Sessions Judge in Criminal Appeal No.173 of 2003 does

not suffers with any illegality, irregularity and impropriety. The

evidence on record before the Court below established his case as

projected with cogent evidence, as such, the learned Principal

Sessions Judge, West Godavari at Eluru rightly dismissed the

appeal. Therefore, I see no reason to interfere with the judgment

of the learned Principal Sessions Judge, West Godavari at Eluru,

dated 16.03.2005 in Criminal Appeal No.173 of 2003.

25) In the result, the Criminal Revision Case is dismissed.

26) The Registry is directed to take steps immediately

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

trial Court on or before 24.03.2023 and on such certification, the

trial Court shall take necessary steps to carry out the sentence

imposed against the appellant and to report compliance to this

Court.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 16.03.2023.

PGR

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

Registry to circulate a copy of this order to the Court below on or before 24.03.2023.

CRL. REVISION CASE NO.567 OF 2005

Date: 16.03.2023

PGR