Kongala Ramanjaneyulu vs I.G.Chiranjeeva Rao The State Of ...
2023 Latest Caselaw 1690 AP

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

         CRIMINAL REVISION CASE No.1187 of 2009

ORDER:

A convict for the offence under Section 138 of the

Negotiable Instruments Act, 1881 (for short, 'the N.I.Act')

preferred this criminal revision under Sections 397 and 401

Cr.P.C. seeking for his acquittal. Respondent No.1 is the

complainant before the learned trial Court. On his complaint,

this revision petitioner was prosecuted in C.C.No.64 of 2005

and learned III Metropolitan Magistrate, Vijayawada after due

trial and hearing, by its judgment dated 11.10.2006 found the

revision petitioner guilty for the offence under Section 138 of the

N.I.Act and convicted him and sentenced him to undergo

rigorous imprisonment for one year and pay a fine of Rs.5,000/-

with a default sentence of simple imprisonment for two months.

2. The convict carried the matter in appeal in Criminal

Appeal No.234 of 2006. Learned VIII Additional District and

Sessions Judge (Fast Track Court), Vijayawada after due

hearing on both sides by its judgment dated 09.07.2009 found

the trial Court's judgment right on facts and in law and found

no merit in the appeal and dismissed the same.

Dr. VRKS, J Crl.R.C.No.1187 of 2009

3. It is in challenge to these above referred judgments, the

present revision is filed urging the following grounds:

1. The Courts failed to consider that this revision petitioner handed over the disputed cheque to the complainant towards payment of premium for Life Insurance Policy.

2. That the signature on the subject matter cheque does not belong to this revision petitioner and it was forged.

3. It was the duty of the trial Court to forward the subject matter cheque for opinion of the handwriting expert and it failed to do so.

4. The evidence of PW.1 had no corroboration but Courts below accepted his evidence.

5. The subject matter cheque was not given towards debt covered by the decree in O.S.No.381 of 2003 and that decree pertains to a different debt. In ignorance of these facts this revision petitioner was convicted and therefore the judgments of the Courts below shall be set aside.

6. That the cheque was issued in the capacity of Managing Director of Siri Auto Sales Enterprises but not in the personal capacity of this revision petitioner for the purpose of discharge of any personal debt.

Dr. VRKS, J Crl.R.C.No.1187 of 2009

4. Respondent No.1/complainant did not submit any

arguments.

5. State is shown as respondent No.2 and the learned

Special Assistant Public Prosecutor submits that the case be

disposed of as required under law.

6. Learned counsel for revision petitioner submitted

arguments.

7. The point that falls for consideration is:

"Whether the judgments of the Courts below were

illegal, irregular or suffer from impropriety requiring

interference?"

8. Point:

Before the learned Magistrate when the accusation of

cheque dishonor for the offence under Section 138 of the N.I.Act

was read over and explained, the accused merely denied the

truth of the allegations and pleaded not guilty and did not raise

any specific line of defence.

Dr. VRKS, J Crl.R.C.No.1187 of 2009

9. In the trial that ensued, complainant testified as PW.1.

The averments in his complaint and his evidence as PW.1 were

that for the purpose of meeting financial needs in the business,

the accused in his personal capacity borrowed Rs.75,000/- on

03.05.2000 from the complainant and executed the original of

Ex.P.1 promissory note. During trial he also deposed that on

this very promissory note he filed the suit for recovery of money

in O.S.No.381 of 2003. The copy of the plaint pertaining to that

suit is Ex.P.11. At the trial, accused testified as DW.1. During

his cross-examination he did not dispute the factual correctness

and legal validity of Ex.P.1-promissory note and he also

admitted that based on that promissory note, the complainant

filed the suit and that was decreed against him and he did not

prefer any appeal. It is on this evidence, the learned trial Court

recorded that the promissory note and the decree in the suit

pertain to same transaction and existence of debt owed by the

accused to complainant remained undisputed. The learned

appellate Court also examined this aspect and approved the

correctness of that finding.

10. The averments in the complaint and the evidence of PW.1

was that towards the above referred promissory note, the debt

Dr. VRKS, J Crl.R.C.No.1187 of 2009

was outstanding and during that time when he demanded the

accused to repay, the accused towards part payment of the

above referred debt issued a cheque for Rs.70,000/- as per

Ex.P.2. He further said that when he presented this cheque for

collection this was returned unpaid and the banker endorsed

"account closed". On considering the evidence on both sides,

learned trial Court recorded a finding that the reason for which

the cheque was dishonoured remained undisputed and return

of a cheque on the ground that account was closed is equivalent

to dishonor of a cheque for insufficiency of funds and dishonor

of the cheque is evidenced by Exs.P.3 and P.4-cheque return

memos and on all those aspects no controversy was raised

before it by the defence. On assessment of evidence including

the evidence of DW.1 it observed that the subject matter cheque

in Ex.P.2 was handed over by the accused to the complainant.

These aspects were verified and were found to be correct by the

appellate Court also. On these aspects no controversy is raised

in this revision also.

11. A few more aspects regarding Ex.P.2-cheque are required

to be noticed here. In this criminal revision case filed by the

convict, the revision petitioner in his cause title described

Dr. VRKS, J Crl.R.C.No.1187 of 2009

himself as Proprietor of Siri Auto Sales Enterprises. However,

when the case was at the trial Court he contended that Siri Auto

Sales Enterprises is a partnership firm and he produced Ex.D.1

which is a partnership deed and he also filed Exs.D.2 and D.3,

which are income tax returns filed by the said partnership firm.

According to revision petitioner, he is Managing Partner of that

partnership firm. If that be the case, it is not known as to how

and why he described himself as a proprietor of it in the cause

title of this revision petition. Be that as it may. About that

partnership there is some relevancy for Ex.P.2-cheque. When it

comes to Ex.P.2-cheque, the first defence taken by the revision

petitioner before both the Courts below as well as here is that it

was an empty blank unsigned cheque that he had given to

complainant. The purpose of giving such a cheque was to

enable the complainant to remit premium for the L.I.C. Policy,

which is due from the accused. Referring to this defence, the

learned trial Court mentioned what was admitted by accused as

DW.1 in his cross-examination and also the evidence of brother

of the accused, who deposed as DW.2. Both the witnesses

during their cross-examination admitted that accused never

obtained any insurance policy. It was on that admission the

Dr. VRKS, J Crl.R.C.No.1187 of 2009

Courts below concluded that when there was no insurance

policy at all, the question of payment of a premium for a non-

existing insurance policy did not arise. It was for that reason

the purpose for which the cheque was allegedly given by

accused to complainant as sought by the complainant was

accepted and the contention of the accused in that regard was

negatived.

12. Though the first line of defence was that it was a total

blank unsigned cheque that was given, at the trial the cheque

was exhibited in evidence and it was fully filled up in its

columns, which include the signature of the accused. Therefore

the accused contended before the Courts below that he never

signed this cheque and the complainant got his signature

forged. Referring to this aspect of the mater, the trial Court

observed that the signature as available on Ex.P.2-cheque was

compared by it in terms of Section 73 of the Indian Evidence Act

as against the admitted signatures of this very accused available

on Exs.D.1 to D.3 and it found that they are absolutely similar

without any variations. Therefore, it found that the signature

on Ex.P.2-cheque was the very signature of the accused.

Learned trial Court went a little further and made a comparison

Dr. VRKS, J Crl.R.C.No.1187 of 2009

of signature of the accused as available on the cheque as

against the signature subscribed by this accused on his

deposition form and on his Section 251 Cr.P.C. examination

form and Section 313 Cr.P.C. examination form. On all those

papers the signature of accused came to be subscribed when

the criminal case came before the Court. Learned trial Court

observed that those signatures are totally at variance against

the signatures of this very accused available on Exs.D.1 to D.3

which were earlier to the commencement of litigation. This

observation of the trial Court discloses the kind of attitude the

accused has towards legal process in changing his signatures.

13. Before the appellate Court, this accused raised a

contention that it was the duty of the trial Court to forward

Ex.P.2-cheque to the handwriting expert for comparison and it

failed to do so and instead, it took for itself the task of

comparison in terms of Section 73 of the Indian Evidence Act

and that is incorrect. The learned appellate Court nagatived

that contention and recorded an observation that it was upto

the accused to seek for an expert's opinion and not for the

Courts. Having lost that contention there, the same is repeated

here by the revision petitioner. In an adversarial trial it is for

Dr. VRKS, J Crl.R.C.No.1187 of 2009

the parties to adduce evidence as they choose. On the evidence

that is made available, as a neutral arbiter, the trial Court

decides the facts and concludes the case. If any of the parties

believe that an opinion of an expert is beneficial in sustaining

one's own contention, it could request the help of the Court to

have the document referred to an expert. Court would consider

the request and depending on the need of the case it would take

a decision. Court by itself may entertain an opinion that the

evidence made available to it does not completely enable it to

take a decision, in which case it by itself also could seek the

opinion of an expert. In the case at hand, the trial Court by

itself did not entertain any belief that the case before it and the

evidence available for it was not sufficient to arrive at a

conclusion and unless it had the assistance of opinion of an

expert it could not make up its decision. Court holding such an

opinion is within the total discretion of that Court and none

could comment it. There is absolutely no law that is brought to

the notice of this Court by the revision petitioner that in every

case when an accused denies his signatures, it is always the

duty of the Court to forward the disputed document to a

handwriting expert and elicit his opinion and summon him on

Dr. VRKS, J Crl.R.C.No.1187 of 2009

its own and examine the witness on its own. Thus, a very

frivolous contention is raised by the revision petitioner. That

contention is negatived. Banker did not return the cheque on

the ground that signature did not tally. The finding of the

Courts below that Ex.P.2 bears the signature of the accused is

to be held as correct on facts.

14. On Ex.P.2-cheque, below the signature of accused, there

is a rubber stamp impression concerning his business entity.

Before the trial Court accused contended that, that was a fake

rubber stamp. He never produced the original rubber stamp of

his business entity for perusal of the Court to enable it to

appreciate his version. Thus best evidence available with him

was suppressed by the accused to his own detriment.

15. Harping on the rubber stamp impression of the

partnership firm below the signature of the accused on Ex.P.2-

cheque, the accused raised a contention before the trial Court

that since the partnership firm is not prosecuted for dishonour

of that cheque his prosecution was invalid. Learned trial Court

as well as appellate Court, at full length discussed this aspect of

the matter and they held that facts presented by both sides

Dr. VRKS, J Crl.R.C.No.1187 of 2009

during the evidence never disclosed any transaction of debt

between the partnership firm of the accused and the

complainant, the pronote and the decree do not pertain to any

transactions between complainant and the partnership firm.

Therefore, they held that participation of partnership firm in the

criminal trial is totally irrelevant. Then they held that mere

existence of rubber stamp of the partnership firm does not

relieve this accused from his liability. It is that aspect of the

matter that is challenged here. Having examined the material

on record, this Court finds no merit in the challenge raised by

the revision petitioner. The evidence of PW.1 and cheque return

memos in Exs.P.3 and P.4 indicate that the cheque is drawn by

the accused on an account maintained by him with the bank. It

was never the case of accused that Ex.P.2-cheque was not on an

account maintained by him. In ICDS Ltd. vs. Beena Shabeer1,

the Hon'ble Supreme Court of India made the following

observations:

"the words "any cheque" and "other liability" occurring in Section 138 are the two key expressions which stand as

(2002) 6 SCC 426

Dr. VRKS, J Crl.R.C.No.1187 of 2009

clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. These expressions leave no manner of doubt that for whatever reason it may be, the liability under Section 138 cannot be avoided in the event the cheque stands returned by the banker unpaid. Any contra interpretation would defeat the intent of the legislature.

16. In the light of that legal principle and in the context of the

fact that the revision petitioner has not shown any principle of

law that is different from this, this Court has to hold that the

approach of the Courts below is right on facts and in law. The

contention of the revision petitioner that the cheque does not

pertain to the pronote and the decree and the cheque does not

contain his signature and that the partnership firm is not made

a party are all without any merit and without any legal basis.

All these contentions were properly considered by the Courts

below and they reached to accurate conclusions. In this

revision, the convict failed to point out any procedural errors or

jurisdictional errors or any legal errors in the approach of the

Courts below. Therefore, point is answered against the revision

petitioner.

Dr. VRKS, J Crl.R.C.No.1187 of 2009

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

confirming the conviction and sentence recorded against the

revision petitioner/accused in the judgment dated 09.07.2009

of learned VIII Additional District and Sessions Judge (Fast

Track Court), Vijayawada in Criminal Appeal No.234 of 2006

and the judgment dated 11.10.2006 of learned III Metropolitan

Magistrate, Vijayawada in C.C.No.64 of 2005. Revision

petitioner/Konagala Ramanjaneyulu shall submit himself on or

before 03.04.2023 before the learned trial Court, failing which

the learned III Metropolitan Magistrate, Vijayawada shall secure

his presence and enforce the punishment.

18. 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 29.03.2023. 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: 27.03.2023 Ivd

Dr. VRKS, J Crl.R.C.No.1187 of 2009

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

CRIMINAL REVISION CASE No.1187 of 2009

Date: 27.03.2023

Ivd