Andhra Pradesh High Court - Amravati
This Criminal Revision Case Is ... vs X Additional District & Sessions ... on 16 March, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL REVISION CASE NO.1384 OF 2007
ORDER:-
This Criminal Revision Case is filed by the petitioner, who
was the appellant in Criminal Appeal No.66 of 2006, on the file of
X Additional District & Sessions Judge, Krishna at Machilipatnam
("Additional Sessions Judge" for short) and who was the accused
in C.C.No.543 of 2004 on the file of Additional Judicial Magistrate
of First Class, Avanigadda, challenging the judgment, dated
20.08.2007, in the above appeal where under the learned
Additional Sessions Judge, dismissed the Criminal Appeal filed by
the appellant, as such, confirmed the judgment, dated
17.05.2006 in C.C.No.543 of 2004. The revision petitioner faced
trial before the Court below 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 rigorous
imprisonment for two years and to pay an amount of
Rs.1,50,000/- towards compensation.
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.
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3) The case of the complainant before the Court below,
according to the averments in the complaint under Section 190(1)
of Cr.P.C. is that the complainant is resident of Avanigadda. On
15.05.2002 the accused borrowed a sum of Rs.1,50,000/- from
the complainant to do his business, agreeing to repay the same
with interest at 18% per annum payable on demand to the
complainant or on his order. On the even day, he executed a
demand promissory note in favour of the complainant. On
repeated demands made by the complainant, the accused issued
a postdated cheque, dated 27.06.2004 for an amount of
Rs.1,50,000/- towards part payment of debt due under the
promissory note vide cheque bearing No.923919 drawn in the
name of State of Bank of India, Avanigadda in favour of the
complainant. The complainant presented the said cheque for
collection in Indian Bank, Avanigadda in September, 2004. The
Indian Bank, Avanigadda forwarded the cheque for collection to
State Bank of India, Avanigadda. The State Bank of India,
Avanigadda returned the cheque along with a cheque returned
memo with date of 01.10.2004, with a reason that the accused
account was closed. It was intimated to the complainant by
Indian Bank along with memo, dated 05.10.2004 with a returned
memo of State Bank of India along with the cheque. The closure
of the account of the accused would amounts to dishonour of
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cheque. The complainant had properties and capacity to lend the
amount under the promissory note. There is subsisting and legally
enforceable debt due by the accused to the complainant. The
accused with a dishonest intention to deceive the complainant to
get wrongful gain issued the cheque. The complainant issued a
registered notice on 19.10.2004 to the accused intimating the
dishonour of the cheque and requesting to pay the amount within
15 days. The complainant also issued the notice by way of
certificate of posting on the same day. The accused received the
notice under certificate of posting and knowing the contents
thereof, kept silent. He got managed to endorse that door locked
with regard to the registered notice, knowing fully well about the
dishonour of cheque and its consequences. Postal authorities
returned it with the said endorsement. Hence, the complaint.
4) The learned Additional Judicial Magistrate of First
Class, Avanigadda, after recording the Sworn statement of the
complainant, took the case on file for the offence under Section
138 of N.I. Act and after appearance of the accused and after
complying the provisions relating to Section 207 of Cr.P.C.,
examined the accused under Section 251 of Cr.P.C., for which the
accused denied the allegations, pleaded not guilty and claimed to
be tried.
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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.7 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. The accused in furtherance of the
defence, examined himself as D.W.1 and also examined D.W.2,
the bank official and got marked Ex.D.1 to D.4.
6) The learned Additional Judicial Magistrate of First
Class, Avanigadda, 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, convicted him under
Section 255 (2) of Cr.P.C. and sentenced him to suffer rigorous
imprisonment for two years and to pay an amount of
Rs.1,50,000/- towards compensation to the complainant.
Aggrieved by the said judgment, the unsuccessful accused in the
above said C.C.No.543 of 2004, filed the Criminal Appeal No.66 of
2006 before the learned X Additional District & Sessions Judge,
Krishna at Machilipatnam, which came to be dismissed on merits.
Aggrieved by the said judgment in Criminal Appeal No.66 of 2006,
the unsuccessful appellant filed the present Criminal Revision
Case.
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7) Now, in deciding this Criminal Revision case, the point
that arises for consideration is that as to whether the judgment,
dated 20.08.2007 in Criminal Appeal No.66 of 2006, on the file of
learned X Additional District & Sessions Judge, Krishna at
Machilipatnam, suffers with any illegality, irregularity and
impropriety and whether there are any grounds to interfere with
the said judgment of the learned Additional Sessions Judge?
POINT:-
8) Smt. Y. Anupama Devi, learned counsel for the
revision petitioner, would contend that the complainant before the
Court below failed to prove that Ex.P.1, cheque, was issued by the
accused in favour of the complainant for discharge of the legally
enforceable debt. The accused put forth a defence before the
Court below that the complainant stolen Ex.P.1 from the custody
of the appellant. Except the signature and account number in
Ex.P.1, the rest of the contents of Ex.P.1 were not in the hand
writing of the accused. The complainant failed to send statutory
notice under Section 138 of N.I. Act. The complainant stage
managed the postal officials and got endorsed on the postal cover
as if the accused was absent in the town. The accused denied the
execution of Ex.P.7, promissory note. The complainant failed to
prove the execution of Ex.P.7, promissory note. Though the
accused examined D.W.2 to prove that way back in the year 2001
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his account was closed, both the Courts below failed to appreciate
the contention of the revision petitioner in proper perspective.
There was no question of issuing a cheque in the year 2004 when
the accused got closed his bank account in the year 2001. He
examined himself as D.W.1 and examined D.W.2 to prove the
defence of the accused. Hence, the Criminal Revision Case is
liable to be allowed.
9) The second respondent is only a formal party.
10) In spite of opportunity, the first respondent/
complainant failed to argue the matter.
11) P.W.1 before the Court below was the complainant
and he filed his chief examination affidavit reiterating his case in
tune with the complaint averments. Through his examination in
chief, Ex.P.1 to Ex.P.7 were marked. Ex.P.1 is the cheque bearing
No.923919 issued by the accused. Ex.P.2 is the memo issued by
State Bank of India, Avanigadda, dated 01.10.2004 to show that
Ex.P.1 was dishonoured as accused closed the account. Ex.P.3 is
the memo issued by the Indian Bank, Avanigadda, dated
05.10.2004. Ex.P.4 is the office copy of the registered legal
notice, dated 19.10.2004. Ex.P.5 is the registered returned
notice. Ex.P.6 is the proof for certificate of posting. Ex.P.7 is the
promissory note.
12) The complainant further examined P.W.2, who
deposed that on 15.05.2002 accused borrowed Rs.1,50,000/-
from the complainant and executed a promissory note and it was
scribed by one Batchu Narasimha Rao. He (P.W.2) attested the
said promissory note. He can identify the promissory note and his
signature. Ex.P.7 is the said promissory note which bears his
signature.
13) D.W.1 before the Court below is the accused and his
evidence in substance is that he never borrowed any amount from
the complainant under Ex.P.7, promissory note. The signature on
Ex.P.7 is not of him. He closed his business in the year 2001. He
never issued Ex.P.1 in part discharge of Ex.P.7. The contents in
Ex.P.1 were not filled up. The signature on Ex.P.1 belonged to
him. He also filled up account number. He is in the habit of
keeping signed blank cheques for issuing the same to his business
customers whenever he wanted to issue cheque to the concerned.
He will note his name and issue the same by affixing his firm
stamp i.e., Tajeswani Enterprises. He does not know how the
complainant came into possession of Ex.P.1. He did not receive
any notice under certificate of posting. He did not receive
registered notice from the complainant. He had no account in his
individual name in State Bank of India, Avanigadda. The Firm
Tajeswani Enterprises account was closed in the month of
November, 2001. The complainant filed this complaint at the
instigation of one Simhadri Rai, who is his cousin.
14) Turning to the evidence of D.W.2, the Branch
Manager, State Bank of India, Avanigadda, he deposed that he
brought the ledger relating to Current Account No.C/A C&I 243 of
Tajeswani Enterprises, Avaniagadda. It was opened on
09.03.2001. On that day, they provided cheque book facility to
the Proprietor of Tajeswani Enterprises, Simhadri Srinivasa Rao
through a letter. On 15.11.2001 it was closed by the customer at
request of Proprietor of Tajeswani Enterprises through a letter.
Ex.D.1 is the attested Photostat copy of the cheque book issuing
register which shows that on 09.03.2001 cheque book bearing
Nos.923901 to 925 was issued to the Proprietor, Tajeswani
Enterprises. Ex.D.2 is the attested Photostat true copy of Account
opening form of Tajeswani Enterprises. Ex.D.3 is the letter, dated
15.11.2001 submitted by the Proprietor of Tajeswani Enterprises
with a request to close the account and he withdrawn an amount
of Rs.9,827/-, the remaining balance. Ex.D.4 is the attested
Photostat copy of loose leaf cheque submitted by the Proprietor at
the time of closing of the account.
15) P.W.1 during the cross examination deposed that the
accused is his brother-in-law by courtesy. He deposed that he
used to visit the house of the accused and the accused used to
visit his house. The signature on Ex.P.1 is a different ink with the
body of the cheque and its writing. He does not know whether
Ex.P.1 belongs to M/s.Tajeswani Enterprises or not. According to
Ex.P.5, the accused was not in town on 20.10.2004. He denied
that the accused did not receive Ex.P.4 notice under Ex.P.6
certificate of posting. He denied that the accused did not execute
the demand promissory note. He denied that he and his brother-
in-law, Simhadri Ravi, stolen Ex.P.1 from the house of the
accused with a signature by the accused and filed the present
case for wrongful gain. He denied that the accused did not issue
Ex.P.1 in discharge of promissory note debt. He denied that the
accused did not execute Ex.P.7. During the cross examination,
P.W.2, the attestor of Ex.P.7, deposed that on the date of Ex.P.7,
he was called by the accused at 10-00 a.m. Then, they went to
the house of the complainant. At the advice of the complainant,
they three came to Sub-Registrar Office, Avanigadda. He denied
that he is deposing false.
16) During the cross examination, D.W.1 denied the case
of the complainant. He deposed that there is a cheque dishonour
case pending against him at Vijayawada, filed by one Sudhakar.
He is in the habit of verification of blank signed cheques which are
in the custody whether they are in safe condition or not. He
returned unused leaves of the cheque book to his banker at the
time of closing of the account form. He has no disputes with the
postal department. He denied that he received the notice under
certificate of posting and avoided to receive the notice under
registered post. He denied that he got filled up Ex.P.1 through his
friend and handed over to the complainant towards part
satisfaction of Ex.P.7. He denied that he issued Ex.P.1
suppressing that he closed his account. It is true that he did not
give any report either to the police or to the bank about the loss
of Ex.P.1. He denied that he is deposing false to escape from his
liability. Turning to the evidence of D.W.2, the bank official, he
deposed in cross examination that Ex.P.1 cheque is one of the
leaves relating to the cheque book issued to the Proprietor of
Tajeswani Enterprises on 09.03.2001. Ex.D.3, letter, did not
disclose that the Proprietor of Tajeswani Enterprises lost any leaf
from the cheque book. Even Ex.D.3 did not disclose the return of
unused cheques to their branch. As per Ex.P.2, the cheque was
dishonoured due to account closed.
17) Admittedly, both the Courts below found favour with
the case of the complainant upholding the contention of the
complainant under Section 138 of N.I. Act. It is no doubt true
that the complainant was supposed to prove before the Court
below that the accused issued Ex.P.1 towards part discharge of
legally enforceable debt and that the complainant presented the
same within the time with the bank and that it was dishonoured
and that he further complied with the statutory requirements of
Section 138 of N.I. Act. Both the Courts below on analysation of
the evidence on record found favour with the case of the
complainant. Therefore, this Criminal Revision Case against the
concurrent findings of the learned Additional Judicial Magistrate of
First Class, Avanigadda and the learned X Additional District and
Sessions Judge, Krishna at Machilipatnam.
18) The complainant examined P.W.2, who was the
attestor of Ex.P.7, promissory note and P.W.2 supported the case
of the complainant. Ex.P.7 literally support the case of the
complainant that P.W.2 acted as an attestor to Ex.P.7. D.W.1 in
cross examination admitted that he had no disputes with the
attestors or scribe mentioned in Ex.P.7. There is no dispute about
the signature of the accused in Ex.P.7. Even there is no dispute
that the cheque number as mentioned in Ex.P.1 was also written
by the accused. During the cross examination P.W.1 denied that
he and Simhadri Ravi stolen Ex.P.1 cheque from the house of the
accused. It is to be noticed that the very evidence of D.W.1 is
that he used to sign the cheques beforehand and whenever he
wanted to issue the same to any person, he used to fill up the
name and put the stamp. Even according to him, he used to verify
as to whether signed cheques were in safe condition or not. He
further admitted that he used to return unused cheques to the
bank whenever he returned the cheque book. If those answers
are considered, it is not understandable as to how the accused
was supposed to return unused leaves when especially those were
signed by him. Hence, the bank would not accept the signed
cheques by the accused at the time of returning the cheques.
Though the accused examined D.W.2, who deposed that the
accused got closed the account way back in the year 2001, but as
evident from Ex.D.3, letter of the accused and the evidence of
D.W.2, there is no whisper from Ex.D.3 that the accused returned
any unused cheques to the bank. There is no whisper in Ex.D.3
that Ex.P.1 cheque was lost from the custody of the accused. As
admitted by D.W.1, the accused, he did not intimate to the bank
and even did not intimate to the police that Ex.P.1 cheque was
lost from his custody. Therefore, it is very clear that though the
account was closed in the year 2001 as per D.W.1 and D.W.2,
but, it was within the exclusive knowledge of the accused as to
why he issued Ex.P.1 in the year 2004 in favour of the
complainant. The defence of the accused that he used to sign the
cheques beforehand and he used to return unused leaves, etc., is
not at all probabalized by virtue of the evidence of D.W.2 coupled
with Ex.D.1 to Ex.D.4. No man of reasonable prudent would
venture to sign beforehand especially when he was a habit of
returning the unused cheques to the bank. The accused would
not have kept quiet, if really the complainant and Simhadri Ravi
stolen away the cheque from his custody. So, the defence of the
accused is not at all convincing, in my considered view. Apart
from this, the complainant discharged his burden by getting
marked Ex.P.7, promissory note and by getting examined P.W.2.
P.W.2 has no reason to depose false against the accused. Hence,
the complainant was able to prove before the Court below that
the accused issued Ex.P.1 cheque in favour of the complainant
towards part discharge of legally enforceable debt.
19) Coming to the statutory requirements to attract the
offence under Section 138 of N.I. Act, soon after receipt of the
information about the dishonour of cheque by the bank to the
complainant, the complainant issued the legal notice under
Ex.P.4. As seen from Ex.P.5, the postal authorities made several
attempts to serve it on the accused on several days and as the
door was locked it was returned. The date of return was on
28.10.2004. Ex.P.6 reveals that the complainant also sent a legal
notice under certificate of posting. The complainant could not be
found fault for the absence of the accused in the headquarters
when the postal authorities tried to serve the notice. Therefore, if
the registered notice was sent to the correct address of the
accused with proper postage and when the accused was not
available at his house without any instructions to the inmates, it
can be taken as a proper service. Therefore, there is no dispute
that after waiting for the statutory period only from the date of
return, the complainant instituted the complaint before the Court
below. Hence, the contention of the accused that there was no
proper compliance of statutory notice under Section 138 of N.I.
Act cannot stand to any reason. In my considered view, the
learned Additional Judicial Magistrate of First Class, Avanigadda,
rightly appreciated the evidence on record and rightly dealt with
the contentions of both the parties and found guilty of the
accused and convicted and sentenced him. A perusal of the
judgment of the learned X Additional District and Sessions Judge,
Krishna at Machilipatnam, goes to reveal that he answered
various contentions raised by the appellant and by any stretch of
imagination, the judgment of the learned Additional Sessions
Judge in dismissing the Criminal Appeal cannot be said to be
illegal or irregular. The judgment does not suffer with any
impropriety.
20) Having regard to the above, I am of the considered
view that absolutely there are no grounds to interfere with the
judgment of the learned X Additional District and Sessions Judge,
Krishna at Machilipatnam.
21) In the result, the Criminal Revision Case is dismissed.
22) 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 23.03.2023 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 23.03.2023.
CRL. REVISION CASE NO.1384 OF 2007
Date: 16.03.2023
PGR
