Andhra Pradesh High Court - Amravati

Kothapalli Krishna Kumari, Guntur ... vs M/S. Navatha Chit Finance P Ltd., Guntur ... on 12 January, 2024

          THE HON'BLE SRI JUSTICE V.SRINIVAS

         CRIMINAL REVISION CASE No.1939 of 2009

ORDER:

Assailing the judgment dated 16.11.2009 in Crl.A.No.152

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

Judge, Guntur, confirming the conviction and sentence imposed

by the judgment dated 23.03.2009 in C.C.No.377 of 2008 on the

file of the Court of learned Special Judicial Magistrate of First

Class, Guntur, 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 (hereinafter referred to as "Cr.P.C.").

2. The revision case was admitted on 18.11.2009 and the

sentence of imprisonment imposed against the petitioner was

suspended, vide orders in Crl.R.C.M.P.No.2723 of 2009.

3. The shorn of necessary facts are that:

i). Accused joined as a member of the chit conducted by

M/s. Navata Chit Finance (Private) Limited,

Guntur/complainant and was allotted the chit bearing

No.FLK-4/15 for total value of Rs.5,00,000/- with

monthly installment of Rs.12,500/- for forty (40)

installments and she paid two installments and

participated in the auction and became successful

bidder and agreed to forego an amount of Rs.2,50,000/-

out of Rs.5,00,000/-. Then the complaint paid the prize

amount and in turn she executed a voucher in favour of

the complainant. Subsequently, she paid six

installments only and then committed default in paying

the further installments.

ii). On 25.05.2006, the compliant issued a letter to the

accused demanding for payment of remaining

installments of Rs.1,86,765/- and on receipt of the

same, she issued a cheque bearing No.0801689 for

Rs.1,00,000/- in favour of the complainant towards part

payment.

iii). The complaint presented the said cheque for

collection, but the same was dishonoured for the reason

"account closed". On that, complaint got issued a legal

notice dated 21.06.2006 calling upon the accused to pay

the cheque amount and even though it was served on

the accused on 22.06.2006, she kept quiet. 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 MD.Saleem, 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 1st

respondent herein has not produced the list of directors and

also not filed Memorandum of Association, as such the

complaint itself is not maintainable; that the Courts below failed

to consider the ingredients under Section 138 of N.I.Act and

thereby, the conviction and sentence passed against the

petitioner is liable to be set aside.

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

counsel, this Court closely perused the material available on

record. The complainant examined one Davuluri Dharmapal,

who is Manager and Authorized Agent of Complainant's

Company, before the trial Court. In his evidence, he reiterated

the facts stated in the complaint and through him Exs.P.1 to

P.16 were exhibited. In view of Ex.P.3 letter of authorization,

P.W.1 was properly authorized to represent the matter. During

the cross-examination noting was elicited to disbelieve his

testimony.

7. Further, the accused, who was examined as D.W.1, in the

chief examination itself admitted joining in the chit, bidding the

same, receipt of prize amount, but denied the receipt of letter

sent by the complaint firm. But during the cross examination,

she deposed that she received Ex.P.8 legal notice and she did

not issue any reply to the said notice. She also admitted the

issuance of Ex.P.10 cheque in favour of the complainant.

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

record held that nothing has been elicited to discard the

evidence of P.W.1 and no material has been placed to prove her

version that Ex.P.10 cheque was issued towards security for

future installments. As such, the accused failed to rebut the

presumption in favour of the complainant under Section 139 of

N.I.Act. Thereby, convicted the accused for the offence under

Section 138 of N.I.Act and sentenced her to undergo simple

imprisonment for a period of one (1) year and to pay fine of

Rs.5,000/-, in default to suffer simple imprisonment for two (2)

months.

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

appeal, vide Crl.A.No.152 of 2009, before the learned II

Additional Sessions Judge, Guntur. The learned Sessions Judge

categorically held at paragraph No.16 of the impugned judgment

that "in the absence of rebuttal evidence by the accused to rebut

the presumption under Section 139 of N.I.Act and failure to

reply Ex.P.13 notice, opined that the accused committed an

offence under Section 138 of N.I.Act and there is no valid reason

to differ from the findings of the learned trial Judge".

10. The learned Sessions Judge also referred judgment of

Hon'ble Supreme Court reported in K.N.Beena v. Muniyapa1

and also relied upon judgment of this Court reported in

Gorantal Venkateswara Rao v. Kolla Veera Raghava Rao2,

wherein it was held that "the failure of the accused in giving

reply to the legal notice issued by P.W.1 is one of the strong

circumstance to draw an inference that the accused borrowed

the amount from P.W.1 and the cheque was issued towards part

payment of the legally enforceable debt". Further, the learned

Sessions Judge by relying upon the above said judgments and

after evaluating the entire material on record, confirmed the

judgment of the trial Court.

11. 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

1 2011 Crl.LJ. 4745 (SC) 2 2006 Crl.L.J (1)

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 recording by both the

Courts below.

12. 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 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.

13. In the present case on hand, this Court does not find any

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

of the Court below/Sessions Court to exercise revisional power.

14. 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.3

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

Singh v. Mukesh Kumar4, wherein at paragraph Nos.18, 19,

28and 29 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 Another5, 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 fora 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

3(2006) 1 ALD Crl.300 (A.P.) 4(2019) 4 SCC 197 5 (2012) 1 SCC 260

compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil cases would expire by the time the criminal case was decided".

15. 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 Mehta6, 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

6AIR 2017 SC 4594

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."

16. 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.1,50,000/- to the complainant towards compensation within

a period of eight (8) weeks from today, in default she shall

undergo the sentence of imprisonment as well fine as affirmed

by the trial Court, which was confirmed by the Appellate Court.

Accordingly, the revision petitioner is directed to appear before

the trial court on or before 11.03.2024, to receive the sentence