Andhra Pradesh High Court - Amravati

Ch.Baskararao vs The State Of A.P. Another on 2 February, 2024

THE HON'BLE SRI JUSTICE V.SRINIVAS

          CRIMINAL REVISION CASENo.951of 2009

ORDER:

Assailing the judgment dated 05.06.2009 in Crl.A.No.10of

2008 on the file of the Court of learned I Additional Sessions

Judge, Krishna at Machilipatnam, confirming the conviction

imposed by the judgment dated 14.12.2007 in C.C.No.50 of

2005 on the file of the Court of learned Additional Judicial

Magistrate of First Class, Gudivada, for the offence under

section 138 of Negotiable Instruments Act (hereinafter referred

to as "N.I.Act"), but modified and reduced the sentence from six

(6) months to four (4) months rigorous imprisonment, the

petitioner/accused filed the present criminal revision case

under Section 397 r/w.401 of the Criminal Procedure Code,

1973 (hereinafter referred to as "Cr.P.C.").

2. The revision case was admitted on 16.06.2009 and the

sentence of imprisonment imposed against the petitioner was

suspended,vide orders in Crl.R.C.M.P.No.1279 of 2009.

3. The shorn of necessary facts are that:

i). On 02.10.2002, accused borrowed an amount of

Rs.75,000/- for his family expenses and to discharge

sundry debts from one Nadella Basava Kumari,

W/o.Srinivasa Rao, Pamarru and agreed to repay the

same with interest @ 24% per annum and executed a

promissory note in favour of said Basava Kumari.

ii). On 01.03.2003, the said Basava Kunari transferred

the said promissory note to the complainant by name

Koduru Padmavathi for a consideration of Rs.80,000/-

and the same was endorsed on the reverse of said

promissory note executed by the accused and informed

the same to him.

iii). On repeated demands, accused issued a cheque

bearing No.035505 for Rs.50,000/- on 01.03.2004

drawn on Andhra Bank, Gudivada towards part payment

of debt and the same was presented for collection, but

returned unpaid. Then, on the request made by the

accused, again it was presented on 20.04.2004, but it

was dishonoured due to 'funds insufficient' and returned

unpaid along with memo.

iv). On that, complainant got issued a legal notice dated

05.05.2004 demanding the accused for payment of entire

cheque amount, but the accused did not choose to

receive the same. Hence, the complaint.

4. Now the point that arises for determination in this

revision is "whether there is any manifest error of law or flagrant

miscarriage of justice in the findings recorded by the Trial Court

as well first Appellate Court?"

5. Sri T.S.Anirudh Reddy, learned counsel for the petitioner,

submits that the learned Sessions Judge erred in dismissing the

appeal without appreciating the evidence on record in proper

perspective; that the Courts below failed to see that the burden

is on the complainant to prove that all the ingredients of Section

138 of N.I.Act were duly complied; that no notice as

contemplated under Section 138 of N.I.Act was issued to the

accused; that the non-examination of sister of P.W.1 is fatal to

the case of the complainant and thereby, the conviction and

sentence passed against the petitioner is liable to be set aside.

6. Sri Y.Ramatirtha, learned counsel for the 2nd respondent

submits that the complainant categorically proved her case by

adducing evidence; that the accused did not enter into witness

box to prove his contention nor produced any material; that the

Courts below properly appreciated the material on record and

rightly convicted the accused for the said offence and this Court

has no grounds to interfere the concurrent findings of both the

Courts below.

7. In view of the facts and contentions raised by the learned

counsel on both sides, this Court closely perused the material

available on record. The complainant examined herself as

P.W.1 and she reiterated the averments stated in the complaint

and through himExs.P.1 to P.6 were exhibited.During the cross

examination P.W.1 deposed that Basava Kumari is her elder

sister and that asper Ex.P.1 promissory note the accused

borrowed said amount for old debts. Except bare suggestions,

nothing was elicited to disbelieve the testimony of P.W.1.

8. The complaint also got examined one G.Venkatarao, Bank

Manager, Andhra Bank as P.W.2 to prove the fact of dishonour

of cheque issued by the accused. The evidence of P.W.2

remained unchallenged.

9. Furthermore, the accused did not deny his signature on

Ex.P.1 and issuance of Ex.P.3 cheque in favour of P.W.1 and the

same was returned unpaid under Ex.P.4. On perusal of Ex.P.6,

P.W.1 got issued legal notice to the accused and the same was

returned with an endorsement 'intimation served'. Thereby, the

complaint complied the statutory notice under Section 138 of

N.I.Act. Further, accused did not enter into witness box to rebut

the presumption under Section 138 of N.I.Act and not even

stated anything during examination under Section 313 Cr.P.C.

to deny the case of the complaint.

10. The trial Court after the evaluating the evidence placed on

record held thatthe evidence available on record sufficient to

hold that the accused committed offence under Section138 of

N.I.Act. Thereby, convicted the accused for the said offence and

sentenced him to undergo rigorous imprisonment for a period of

six (6) months and to pay fine of Rs.2,000/-, in default to suffer

simple imprisonment for one (1) month.

11. Aggrieved by the same, the petitioner/accused filed an

appeal, vide Crl.A.No.10 of 2008, before the learned I Additional

Sessions Judge, Krishna at Machilipatnam. The learned

Sessions Judge categorically held that E.P.3 cheque was given

by the accused to P.W1 for discharge of legally enforceable debt

and evidently the statutory notice was issued and the same was

evaded to receive by the accused. Therefore, the facts

established that the accused committed an offence under

Section 138 of N.I.Act. Thereby, confirmed the conviction

imposed by the trial Court, but modified and reduced the

sentence of imprisonment from six (6) months to four (4)

months rigorous imprisonment.

12. Section 139 of N.I.Act enjoins the Court to presume that

the holder of the cheque received it for the discharge of any debt

or liability and the burden is only on the accused to rebut the

said presumption. Thereby, before the trial Court, the complaint

established its case and both the Courts below rightly

appreciated the material on record and found the guilt of the

accused under Section 138 of N.I.Act and in view of the above

discussion there are no grounds put forth by the petitioner to

interfere with the concurrent findings recorded by both the

Courts below.

13. It is settled law that the revisional court should not re-

appreciate the evidence or interfere with the findings of fact,

unless they are perverse or unreasonable.This is one of the

principles of criminal revision, as laid down by the Hon'ble

Supreme Court of India in several cases. The revisional court

should not act as a Second Appellate Court and substitute its

own views for those of the Court below, unless there is a clear

error of law or a gross injustice in the order or proceeding of the

lower court. The revisional court should exercise its power with

caution and restraint, and only in exceptional cases where there

is a manifest illegality or a serious miscarriage of justice.

14. In the present case on hand, this Court does not

findanysuch error of law or a gross injustice in the order or

proceeding of the Court below/Sessions Court to exercise

revisional power.

15. However, now, coming to operation of sentence is

concerned, the learned counsel for the petitioner brought to the

notice of this Court a judgment of this Court reported in

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

well judgment of Hon'ble Supreme Court reported in Bir Singh

v. Mukesh Kumar2, wherein at paragraph Nos.18, 19, 28and

29 held as follows:

19. It is well settled that in the exercise of revisional jurisdiction underSection 482 of the Criminal Procedure Code, the High Court doesnot, 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. InR.Vijayan vs. Baby and Another3,this Court observedthat the object of Chapter XVII of the Negotiable Instruments Actis both punitive as also compensatory and restitutive. It providesa single forum and single proceeding for enforcement of criminalliability by reason of dishonour of cheque and for enforcement ofthe civil liability for realization of the cheque amount,

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

therebyobviating the need for the creditor to move two different fora forrelief. This Court expressed its anguish that some Magistrateswent by the traditional view, that the criminal proceedings werefor imposing punishment and did not exercise discretion to directpayment of compensation, causing considerable difficulty to thecomplainant, as invariably the limitation for filing civil caseswould expire by the time the criminal case was decided".

16. It is also brought to the notice of this Court, a judgment

of the Hon'ble Supreme Court reported 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

4AIR 2017 SC 4594

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 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."

17. Considering the above authoritative pronouncements and

as discussed supra, this Court does not find any grounds to

interfere with the concurrent findings recorded by both the

Courts below regarding conviction under Section 138 of N.I.Act

against the petitioner. However, to meet the ends of justice, the

petitioner/accused is directed to pay an amount of Rs.50,000/-

to the complainant towards compensation within a period of

four(4)weeks from today, in default he shall undergo the

sentence of imprisonment as well fine as affirmed by the

Appellate Court. Accordingly, the revision petitioner is directed

to appear before the trial court on or before 04.03.2024, to

receive the sentence of imprisonment or to pay the