Andhra Pradesh High Court - Amravati

Pulagam Nagarjuna Murali Krishna vs The State Of A.P. Another on 19 August, 2024

APHC010512742010

                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI             [3367]
                          (Special Original Jurisdiction)

         MONDAY ,THE NINETEENTH DAY OF AUGUST
            TWO THOUSAND AND TWENTY FOUR

                       PRESENT
          THE HONOURABLE SRI JUSTICE V SRINIVAS

            CRIMINAL REVISION CASE NO: 1042/2010

Between:
Pulagam Nagarjuna Murali Krishna                 ...PETITIONER

                                AND

The State Of A P Another and Others         ...RESPONDENT(S)

Counsel for the Petitioner:
  VENKATA SAI KRISHNA PONNURU

Counsel for the Respondent(S):

   1. SOMISETTY GANESH BABU
   2. PUBLIC PROSECUTOR

The Court made the following:

ORDER:

Assailing the judgment dated 18.05.2010 in Crl.A.No.449

of 2009 on the file of the Court of learned I Additional Sessions

Judge at Guntur, confirming the conviction and sentence

imposed by the judgment dated 30.11.2009 in C.C.No.331 of

2007 on the file of the Court of learned Additional Judicial

Magistrate of First Class at Bapatla, for the offence under

section 138 of Negotiable Instruments Act (hereinafter referred

to as "N.I.Act"), the petitioner/accused filed the present criminal

revision case under Section 397 r/w.401 of the Criminal

Procedure Code, 1973.

2. The revision case was admitted on 02.06.2010 and the

sentence of imprisonment imposed against the petitioner was

suspended, vide orders in Crl.R.C.M.P.No.1505 of 2010.

3. Pending criminal revision case, today, the petitioner by

name Pulagam Nagarjuna Murali Krishna as well respondent

No.2 by name Kancherla Venkata Vijaya Lakshmi Kumari

present before this Court, who are identified by their respective

counsel.

4. Both the petitioner as well 2nd respondent submitted

before the Bench that they have settled the matter and in view

of the said compromise, the petitioner agreed to pay

Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand only) towards

full and final settlement under the Ex.P.1 cheque in question.

For which, 2nd respondent received the same by way of cash and

submitted that she has no objection to consider the present

revision by setting aside the conviction and sentence passed

against the petitioner.

5. Now, it is relevant to refer the judgment of this Court in

Laxminivas Agarwal v. Andhra Semi-Conductors Pvt.Ltd.1

as well judgment of Hon'ble Supreme Court in Bir Singh v.

Mukesh Kumar2, wherein at paragraph Nos.19 and 28 held as

follows:

19. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyze and re-interpret the evidence on record.

28. In R.Vijayan vs. Baby and Another3,this Court observed that the object of Chapter XVII of the Negotiable Instruments Act is both punitive as also compensatory and restitutive. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement of the civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move two different forums for relief. This Court expressed its anguish that some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise discretion to direct payment of compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil

1(2006) 1 ALD Crl.300 (A.P.) 2(2019) 4 SCC 197 3(2012) 1 SCC 260

cases would expire by the time the criminal case was decided".

6. It is also relevant make note of another judgment of the

Hon'ble Supreme Court in Meters and Instruments Private

Limited v. Kanchan Mehta4, wherein at paragraph No.18 held

as follows:

"18. From the above discussion following aspects emerge:

i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act.

Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate

4AIR 2017 SC 4594

compensation as may be found acceptable to the parties or the Court.

iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

iv) Procedure for trial of cases under Chapter XVII of the Act normally has to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.

v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can

be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances."

7. Considering the above authoritative pronouncements, to

meet the ends of justice, since both parties have entered into

compromise and the petitioner/accused already paid the

amount to the 2nd respondent towards full and final settlement

under Ex.P.1 cheque, this Court is inclined to consider the

present revision.

8. In the result, the Criminal Revision Case is allowed. The

conviction and sentence passed against the petitioner/accused,

vide judgment dated 30.11.2009 in C.C.No.331 of 2007 on the

file of the Court of learned Additional Judicial Magistrate of

First Class at Bapatla, as confirmed the sentence in the

judgment, dated 18.05.2010 in Crl.A.No.449 of 2009 on the file