Pothuri Parvathi vs The State Of A.P Another
2023 Latest Caselaw 1584 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CRIMINAL REVISION CASE No.849 of 2009

ORDER:

The revision petitioner calls in question her conviction for

the offence under Section 138 of the Negotiable Instruments

Act, 1881 (for short, 'the N.I.Act, 1881) praying for interference

of this Court in terms of Sections 397 and 401 Cr.P.C.

2. Respondent No.1 is the State. Respondent No.2 is the

complainant on whose complaint this revision petitioner was

prosecuted and punished.

3. C.C.No.299 of 2006 was on a complaint and after due

trial, learned V Additional Munsif Magistrate, Guntur by a

judgment dated 03.07.2007 found this revision petitioner guilty

for the offence under Section 138 of the N.I.Act, 1881 and

convicted her and sentenced her to undergo Rigorous

Imprisonment for six months and pay a fine of Rs.500/- with a

default sentence of Simple Imprisonment for one month.

4. Convict's prayer in appeal was duly heard by learned V

Additional Sessions Judge (Fast Track Court), Guntur and by a

judgment dated 29.05.2009 the learned Additional Sessions

Judge did not find any merit in that appeal. However, moved by

Dr. VRKS, J Crl.R.C.No.849 of 2009

the pitiable physical condition of the woman he was pleased to

reduce the incarceration from six months to three months.

5. In a challenge to that, this revision is brought. The

revision petitioner filed the revision through her learned

counsel. In Crl.R.C.M.P.No.1157 of 2009 by an order dated

03.06.2009 this Court suspended the execution of substantive

sentence and released the convict on bail. Having utilized that

privilege, in the last all these years there has never been any

representation from the revision petitioner in person or through

her advocate. In adjudication of criminal revisions, the

revisional Court is vested with a jurisdiction by Section 403

Cr.P.C. to the effect that it is the option of the revisional Court

either to hear party or her counsel on either side or not to hear

and decide a revision. This provision reflects the theme of

revisional jurisdiction. The revision petition by itself must

indicate to the revisional Court the illegality, impropriety or

irregularity of the proceedings that took place before the Courts

below. It was for correcting such errors only revisional Court

exercises its jurisdiction. This jurisdiction is different from

appeals. Despite Section 403 Cr.P.C. for nearly 13 years time

was granted on several occasions for revision petitioner to

Dr. VRKS, J Crl.R.C.No.849 of 2009

submit arguments. None came up to submit any arguments.

For respondent No.1, learned Special Assistant Public

Prosecutor submitted arguments. For respondent No.2, none

has come to argue.

6. On perusal of the record, the point that falls for

consideration is:

"Whether the Courts below erroneously excluded to

give weight to the defence evidence and improperly

believed the evidence of prosecution and therefore, the

judgments of the Courts below are incorrect?"

7. Point:

The facts of the case are straight and simple.

Complainant and accused are known to each other. The

accused borrowed Rs.1,50,000/- and executed the original of

Ex.P.6-promissory note in favour of the complainant on

20.05.2005. Sometime later the complainant was demanding

the accused for repayment. Therefore towards repayment of

principal as well as the interest, the accused drew a cheque on

Andhra Bank, Koritepadu Branch, Guntur where she has been

maintaining an account. The payee is the complainant and the

Dr. VRKS, J Crl.R.C.No.849 of 2009

date of cheque is 21.02.2006. The money mentioned in the

cheque is Rs.1,75,000/-. Accused handed over the cheque to

the complainant. Immediately the cheque was presented by the

complainant for collection but the banker returned it unpaid

and issued a memo dated 22.02.2006-Ex.P.2 mentioning that

the funds in the account of the accused were insufficient to

honour the cheque. Soon thereafter on 24.02.2006 complainant

got issued a statutory notice-Ex.P.3 to the accused calling upon

her to repay the cheque amount within 15 days. Accused

received it under Ex.P.4-postal acknowledgment. She did not

oblige the terms of the notice and did not pay the cheque

amount but gave a reply notice dated 11.03.2006 in Ex.P.5.

These facts are alleged in the complaint and these facts were

proved by the complainant by his evidence as PW.1 where these

documents were marked as Exs.P.1 to P.6. Learned trial Court

believed all that evidence.

8. At the trial, the accused did not testify but she examined

one of her neighbours as DW.1. She said certain things in her

examination in chief. However, it was during her cross-

examination she came out with the straight admission that she

had absolutely no knowledge of any facts and any transactions

Dr. VRKS, J Crl.R.C.No.849 of 2009

that took place between accused and complainant. Thus,

through the evidence of DW.1, nothing relevant to the facts at

issue were brought to the notice of the trial Court and therefore

that evidence of DW.1 was found unworthy for deciding any fact

in issue. Before the learned trial Court one and the only

defence that was taken by the accused/revision petitioner was

that she has a son-in-law by name Ch.Tirumalavasu and he

was in need of money and he borrowed money from a person by

name Malyadri. It was at that time, the creditor Malyadri

demanded for security. As a mother-in-law to the debtor the

accused said to have very liberally signed cheques and pronotes

without filling up any columns and gave them to Malyadri. Her

son-in-law Tirumalavasu repaid the debt but Malyadri did not

give back the signed blank pronotes and cheques. However,

Malyadri gave some of them to complainant and the

complainant filed this spurious complaint utilizing those

documents. Learned trial Court minutely appreciated this

defence contention and recorded that the entire transaction

taken up as a defence is a transaction that is alien to the facts

in the case. It observed that the connection between

complainant and Malyadri is not proved. The allegation that

Dr. VRKS, J Crl.R.C.No.849 of 2009

Tirumalavasu borrowed money from Malyadri is not borne out

by any document and Tirumalavasu himself did not depose in

favour of his own mother-in-law/accused and no

correspondence between that debtor and creditor and no

instruments and no papers of discharge of debt were brought on

record. The trial Court also pointed out that if at all the

accused believed truth in those versions ventilated by her, she

should have certainly issued a notice to creditor Malyadri

demanding return of her blank signed documents. She did not

do that. Thus, in proof of the entire defence version, the trial

Court observed, there was no material to think any

probabilities. It was for that reasons it did not accept the

defence version. It chose to convict and sentence the accused.

9. When the matter went in appeal, the learned V Additional

Sessions Judge (Fast Track Court), Guntur heard all the

submissions once again and he independently went through the

entire evidence on record and evaluated the correctness of

prosecution evidence in the context of defence version and

found that the judgment of the trial Court was completely right

on facts and law. It observed that by the defence taken by the

accused all signatures on Ex.P.1-cheque and Ex.P.6-pronote

Dr. VRKS, J Crl.R.C.No.849 of 2009

were found admitted. By virtue of presumptions contained in

Section 118 of the N.I.Act, 1881 and by virtue of presumption

contained in Section 139 of the N.I.Act, 1881 and in the context

of the evidence available on record, it found that there was

legitimate passage of cheque from the hands of accused to the

hands of complainant and that cheque was dishonoured for

insufficient funds. Both the Courts below recorded that once

due execution of cheque is proved Courts have to presume that

the cheque was given towards discharge of debt or liability.

They observed that in rebuttal, no fact was probabilized by the

defence and therefore, the presumptions stood unrebutted. It

was in that view of the matter, learned Additional Sessions

Judge approved the findings of the trial Court and dismissed

the appeal.

10. The various grounds mentioned in this revision speak

only about appreciation of evidence and reiteration of unproved

defence contention. The Court which tried the case was

competent Court of jurisdiction and prescribed summons

procedure was followed and althroughout accused was defended

by a counsel and the witnesses were permitted to be cross-

examined and there is absolutely no defect in the trial process

Dr. VRKS, J Crl.R.C.No.849 of 2009

and in this revision the revision petitioner has not been

questioning these aspects. When both the Courts below

concurrently found the facts on record, this Court cannot

reappreciate and reach to other conclusions except when this

Court is shown the perversity in appreciation of evidence or

when it is shown that the material on record was not considered

or that certain material which was not part of the evidence was

considered to arrive at the conclusions. It must at least be

shown that on the proved facts the conclusions arrived at are

arbitrary or frivolous. The grounds mentioned in the revision do

not touch upon any of these fundamentals. Despite that, this

Court grants concession to what is mentioned in the grounds of

revision and it has gone through the entire material on record

and it found that the clear case of borrowal evidenced by Ex.P.6

and repayments sought to be made by Ex.P.1-cheque and

failure to repay despite receipt of Ex.P.3-notice is evident and

the entire defence version has no basis of any evidence and that

made out a perfect case for finding guilt of accused under

Section 138 of the N.I. Act, 1881 and both the Courts below did

it accordingly. There is nothing to interfere. Point is answered

against the revision petitioner.

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

confirming the conviction and sentence recorded against the

revision petitioner/accused in the judgment dated 29.05.2009

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

Guntur in Criminal Appeal No.227 of 2007. Revision

petitioner/Pothuri Parvathi shall submit herself on or before

28.03.2023 before the learned trial Court, failing which the

learned V Additional Munsif Magistrate, Guntur shall secure her

presence and enforce the punishment.

12. Registry is directed to dispatch a copy of this order along

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

before 24.03.2023. A copy of this order be placed before the

Registrar (Judicial), forthwith, for giving necessary instructions

to the concerned Officers in the Registry.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 21.03.2023 Ivd

Dr. VRKS, J Crl.R.C.No.849 of 2009

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE No.849 of 2009

Date: 21.03.2023

Ivd