A.Amaranadh Babu, vs Gutha Suresh And Another,
2023 Latest Caselaw 3098 AP

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

           CRIMINAL REVISION CASE NO.1117 OF 2009

ORDER:-

      This Criminal Revision Case is filed by the petitioner, who

was the appellant in Criminal Appeal No.260 of 2006, on the file

of VIII Additional Sessions Judge (F.T.C.), Guntur ("Additional

Sessions Judge" for short), challenging the judgment, dated

13.12.2007, whereunder the learned Additional Sessions Judge

dismissed the Criminal Appeal filed by the appellant, confirming

the judgment, dated 05.05.2006 in C.C.No.134 of 2005, on the

file of V Additional Munsif Magistrate, Guntur, under Section 138

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

      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.

      3)     The first respondent herein in the capacity of the

complainant before the Court below filed a complaint under

Sections 190 and 200 of the Code of Criminal Procedure ("Cr.P.C."

for short), alleging the offence under Section 138 of N.I. Act.

4) The case of the complainant before the Court below is

that the accused borrowed a sum of Rs.30,000/- on 09.05.2004

from him to meet his family expenses with a promise to repay the

amount with interest at 24% per annum either to him or to his

order on demand. The accused executed a promissory note to

that effect on the same day. On repeated demands made by the

complainant, the accused issued a cheque bearing No.127491,

dated 09.11.2004 for Rs.33,600/-, drawn on United Bank of India,

Guntur, towards full and final settlement of the promissory note

debt. The accused informed to the complainant that sufficient

funds are available in the bank account to honour the cheque.

The complainant presented the said cheque through his banker

Punjab National Bank, Arundelpet Branch, Guntur for collection.

Later, it was dishonoured by the United Bank of India, dated

16.11.2004, with an endorsement as insufficient funds. The

United Bank of India, Guntur, returned the cheque to the

complainant banker and in turn the complainant's banker

intimates the same to the complainant. The complainant got

issued a registered statutory legal notice on 01.12.2004 with

postal acknowledgement due calling upon the accused to make

payment within 15 days from the date of receipt of the notice.

The accused received the notice on 02.12.2004 and kept quiet.

Hence, the complaint.

5) The learned V Additional Munsif Magistrate, Guntur,

took cognizance under Section 138 of N.I. Act. After appearance

of the accused and after furnishing copies of documents under

Section 207 of Cr.P.C., he was examined under Section 251 of

Cr.P.C. with reference to the allegations in the complainant case,

for which he denied the allegations, pleaded not guilty and

claimed to be tried.

6) During the course of trial on behalf of the complainant

before the court below, P.W.1 to P.W.3 were examined and Ex.P.1

to P.6 were marked. After closure of the evidence of the

complainant, the accused was examined under Section 313 of

Cr.P.C. with reference to the incriminating circumstances

appearing in the evidence, for which he denied the same and

stated that he has defence witnesses. The accused in furtherance

of his defence, examined himself as D.W.1.

7) The learned V Additional Munsif Magistrate, Guntur,

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 after questioning him about the quantum of

sentence, sentenced him to suffer rigorous imprisonment for four

months and to pay a fine of Rs.500/-, in default to suffer simple

imprisonment for one month. Aggrieved by the said judgment,

the unsuccessful accused filed Criminal Appeal No.260 of 2006

before the learned VIII Additional Sessions Judge (F.T.C.),

Guntur, which was dismissed on merits. Felt aggrieved of the

same, the unsuccessful appellant as above, filed the present

Criminal Revision Case.

8) Now, in deciding this Criminal Revision Case, the point

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

13.12.2007 in Criminal Appeal No.260 of 2006, on the file of

learned VIII Additional Sessions Judge (F.T.C.), Guntur, suffers

with any illegality, irregularity and impropriety and whether there

are any grounds to interfere with the said judgment?

POINT:-

9) Sri M. Pitchaiah, learned counsel for the revision

petitioner, would contend that the revision petitioner denied the

execution of Ex.P.1-promissory note and Ex.P.2-the so-called

cheque. Though the accused denied the same, the complainant

did not examine any other witnesses to prove the due execution

and the Court below simply on the ground that Ex.P.1 and Ex.P.2

bears the signatures of the accused, upheld the contention of the

complainant. It was for the complainant to prove that the accused

borrowed Rs.30,000/- under Ex.P.1 and issued Ex.P.2 towards the

discharge of the debt. The accused examined himself as D.W.1 to

negative the case of the complainant and the Court below did not

find favour with the case of the complainant. Even the learned

Additional Sessions Judge failed to appreciate the contentions in

proper perspective, as such, for want of proof regarding the

execution of the promissory note and cheque in question, the

Criminal Revision case is liable to be allowed.

10) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor for second respondent/

State, submits that the second respondent is only a proforma

party.

11) In spite of opportunity given, none advanced any

arguments on behalf of the first respondent/complainant.

12) As seen from the evidence of P.W.1, he got filed his

chief examination affidavit reiterating the case in tune with the

complaint averments. Through him, Ex.P.1-promissory note,

Ex.P.2-cheque, Ex.P.3-memo issued by United Bank of India,

Guntur, Ex.P.4-debit advice, dated 16.11.2004, issued by Punjab

National Bank, Guntur, Ex.P.5 office copy of the registered legal

notice, dated 01.12.2004 and Ex.P.6-postal acknowledgement are

marked. The complainant further examined P.W.2, who deposed

that he is working as Manager in Punjab National Bank,

Arundelpet Branch, Guntur. The complainant had an account in

the bank and he presented Ex.P.2 cheque for collection which was

sent to United Bank of India, Guntur, for clearance on

16.11.2004. It was returned dishonoured with an endorsement

funds are insufficient. Ex.P.3 is the memo issued by United Bank

of India. The complainant further examined P.W.3, who deposed

that he is working as Manager in United Bank of India. Ex.P.2

was sent to their bank for collection, but it was returned as

dishonoured on the ground that funds were insufficient. So, they

sent Ex.P.3 memo.

13) The accused examined himself as D.W.1, who

deposed that he is working as Attender in United Bank of India,

Guntur. He approached one P. Srinivasa Rao for loan of

Rs.5,000/- and Srinivasa Rao told him that to give the said

amount, he need blank cheque and blank promissory note.

Therefore, he gave blank cheque and blank promissory note to

him to obtain loan of Rs.5,000/-. Srinivasa Rao told him to come

after one week to take the money. Due to his daughter's

educational purpose to pay the school fee, he gave such blank

cheque and blank promissory note. Later, after one week he went

to Srinivasa Rao to ask about his loan amount, but he was not

traced. Ultimately, he (D.W.1) paid the fee out of his salary. Two

months thereafter he traced Srinivasa Rao and asked him to

return the blank cheque and blank promissory note and he

postponed to give it on some other day and dragged the issue.

The said Srinivasa Rao told him that it was given to one G. Suresh

to obtain loan. Thereafter, the complainant filed false case.

14) As seen from the cross examination part of P.W.1, he

deposed that Ex.P.1 was executed at his house at 9-00 a.m. He

secured the scribe by name E. Suresh Kumar. The first attestor by

name M. Surendranath was brought by the accused. The scribe is

resident of Brodipet, Guntur. He does not know who brought the

second attestor. He made phone call to scribe to come to his

house at 9-00 a.m. Accused came to his house at 8-30 a.m. He

got issued Ex.P.5 to the residential address of the accused.

Ex.P.6 was issued to the bank address of the accused. The

accused can write in English and in Telugu. The accused asked

him to get scribe the contents of Ex.P.1 by some other persons.

Prior to the date of Ex.P.1, the accused came and asked him to

lend the amount. The accused issued Ex.P.2 towards the part

payment of the debt. He issued it on 09.11.2004 at 10-00 a.m. at

the bank. The accused gave cheque signed by him by asking him

to fill up the columns and as instructed by him, he filled up

Rs.33,600/-. He denied that the accused never borrowed any

amount from him and never executed Ex.P.1.

15) As seen from the cross examination of P.W.1, the

accused did not deny his signatures on Ex.P.1 promissory note

and Ex.P.2 cheque in question. Absolutely, he did not explain any

during cross examination as to under what circumstances his

signatures were there on Ex.P.1 and Ex.P.2. Even during Section

313 of Cr.P.C. examination questionnaire also he never explained

the above. Curiously, for the first time during the evidence,

D.W.1 deposed as if he approached one Srinivasa Rao to borrow

the amount to pay tuition fee of his daughter and said Srinivasa

Rao obtained blank promissory note and blank cheque and later

did not pay any loam amount to him, as such, he paid the tuition

fee out of his salary and after one or two months thereafter, he

approached Srinivasa Rao and asked him to return the blank

promissory note and blank cheque and he dragged the issue, etc.

The answers spoken by D.W.1 during cross examination would

negative his defence. During cross examination he deposed that

P. Srinivasa Rao is a moneylender and he approached him for

loan of Rs.5,000/-. He never borrowed any amount prior to that.

Though he gave blank promissory note and blank cheque to

Srinivasa Rao, in fact, he did not lend any amount. Though he did

not lend any amount and he did not return the promissory note

and cheque, but, he (D.W.1) did not issue any registered notice to

return the blank promissory note and blank cheque. He received

registered legal notice from the complainant regarding the cheque

dishonour. He did not send any reply. He did not give any

registered notice to Srinivasa Rao even after filing of the

complaint against him by the complainant. The signatures on

Ex.P.1 and Ex.P.2 belonged to him. He denied that he is deposing

false.

16) As evident from the cross examination part of D.W.1,

according to him, he gave blank promissory note and blank

cheque to one Srinivasa Rao to get an amount of Rs.5,000/-. The

said Srinivasa Rao did not give any loam amount to him. It is

rather improbable that without getting loan amount of Rs.5,000/-,

the accused could venture to handover the blank signed cheque

and blank signed promissory note to Srinivasa Rao. Apart from

this, a man of reasonable prudence in such circumstances would

not venture to deliver the blank promissory note and blank

cheque without receiving the amount. He would definitely issue a

legal notice or a notice in writing asking Srinivasa Rao to return

the blank signed cheque and blank signed promissory note. He

would definitely issue a notice at-least after filing of complaint by

the complainant brining to the notice of Srinivasa Rao that the so-

called cheque signed by him was misused by the complainant. He

would further venture to issue a reply to the legal notice issued by

the complainant alleging dishonour of cheque. Therefore, the act

of the accused in keeping quiet is not that of a man of reasonable

prudence. There is no dispute about the signatures of D.W.1 on

Ex.P.1 and Ex.P.2.

17) The evidence of P.W.1 is fully convincing. The

evidence of D.W.1 is not convincing. The complainant examined

himself as P.W.1 and got marked Ex.P.1 and Ex.P.2 to discharge

the burden relating to its execution. There is no dispute about the

signatures of the accused on Ex.P.1 and Ex.P.2. He was supposed

to explain how there were signatures on Ex.P.1 and Ex.P.2. The

evidence of D.W.1 is nothing but improbable. Virtually, the

evidence of D.W.1 is not liable to be believed. The contention of

the Revision Petitioner that the complainant before the Court

below did not prove the execution of Ex.P.1 and Ex.P.2 is not at

all tenable. In judging as to whether the evidence of P.W.1 is to

be believed or whether the evidence of D.W.1 is to be believed,

the attending circumstances are to be looked into. The natural

reaction of the accused has to be looked into in the given

situation. The reaction of the accused is not that of a man of

reasonable prudence. The V Additional Munsif Magistrate, Guntur

rightly dealt with all these issues and found favour with the case

of the complainant that the complainant proved Ex.P.1 and

Ex.P.2.

18) Turning to the other statutory requirements under

Section 138 of N.I. Act, the complainant immediately after receipt

of information regarding the dishonour of cheque, issued a legal

notice within the statutory period of 15 days and it was received

by the accused. There is no dispute about the receipt of legal

notice by the accused and it is also proved by virtue of Ex.P.6,

postal acknowledgement. Therefore, after having waited the

statutory period, the complainant filed the complaint. So, the

complainant proved other statutory requirements under Section

138 of N.I. Act. The factum of dishonour of Ex.P.2 was proved by

virtue of the evidence of P.W.1 and P.W.2 and P.W.3 the bank

officials. The learned Additional Sessions Judge (F.T.C.), Guntur,

rightly looked into all the circumstances and delivered a

reasonable judgment, dismissing the Criminal Appeal. Hence, the

impugned judgment is legally sustainable and it does not suffer

with any irregularity and impropriety. Hence, I see no reason to

interfere with the same.

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

20) 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 19.05.2023 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. 12.05.2023.

PGR

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

CRL. REVISION CASE NO.1117 OF 2009

Registry to circulate a copy of this order to the Court below on or before 19.05.2023.

Date: 12.05.2023

PGR