Andhra Pradesh High Court - Amravati

Smt. Yederasapu Sunitha, vs Karrothu Venkata Papu Naidu, Another, on 25 October, 2024

APHC010660622011

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

        FRIDAY ,THE TWENTY FIFTH DAY OF OCTOBER
            TWO THOUSAND AND TWENTY FOUR

                       PRESENT
          THE HONOURABLE SRI JUSTICE V SRINIVAS

             CRIMINAL REVISION CASE NO: 408/2011

Between:
Smt. Yederasapu Sunitha,                         ...PETITIONER
                                 AND

Karrothu Venkata Papu Naidu Another and      ...RESPONDENT(S)
Others

Counsel for the Petitioner:
  RAVI KIRAN ARUKUTLA
Counsel for the Respondent(S):
  1. PUBLIC PROSECUTOR

   2. SARIPALLI SUBRAHMANYAM

The Court made the following:

ORDER:

Assailing the judgment dated 21.02.2011 in Crl.A.No.47

of 2009 on the file of the Family Court-cum-Additional Sessions

Court at Vizianagaram, confirming the conviction and sentence

imposed against the accused by the judgment dated 05.08.2009

in C.C.No.90 of 2008 on the file of the Court of learned Special

Judicial Magistrate of First Class (Excise) at Vizianagaram, 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 23.02.2011 and the

sentence of imprisonment imposed against the petitioner was

suspended, vide orders in Crl.R.C.M.P.No.611 of 2011.

3. The shorn of necessary facts are that:

i). On 12.12.2005, the accused and her husband

borrowed an amount of Rs.1,00,000/- from the

complainant and she executed Ex.P.1 promissory note in

favour of complainant agreed to repay the same with

interest @ 24% per annum on his demand. On the

demand made by the complainant for repayment, she

issued Ex.P.2 cheque bearing No.784977 on 12.07.2006

for Rs.1,05,000/- towards part payment of debt. When

the complainant presented the said cheque for collection

through his banker on 21.07.2006, the same was

returned with an endorsement that 'insufficient funds'

under Ex.P.3 cheque return memo.

iv). Then, the complainant got issued Ex.P.4 notice

dated 28.07.2006 to the accused. Even after receipt of

the same under Ex.P.5 acknowledgment, the accused did

not make any payment and kept quiet. Hence, the

complaint.

4. The complaint was taken on file and numbered as

C.C.No.90 of 2008 on the file of the Court of learned Special

Judicial Magistrate of First Class (Excise) at Vizianagaram, after

full-fledged enquiry, vide judgment dated 05.08.2009, found the

accused guilty of the offence under Section 138 of N.I.Act and

sentenced him to undergo rigorous imprisonment for six (6)

months and also to pay fine of Rs.1,000/-, in default to suffer

simple imprisonment of two (2) months.

5. Aggrieved by the same, the petitioner/accused preferred

an appeal, vide Crl.A.No.47 of 2009, before the Court of Family

Court-cum-Additional Sessions Judge at Vizianagaram and the

same was dismissed, vide judgment dated 21.02.2011, by

confirming the judgement passed by the trial Court.

6. Against the said judgment of the first Appellate Court, the

present criminal revision case was preferred by the

petitioner/accused.

7. Heard Sri K.Chaitanya, learned counsel representing Sri

A.Ravi Kiran, learned counsel for the petitioner/accused and Sri

S.Subrahmanyam, learned counsel for the 1st

respondent/complainant.

8. 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?"

9. Sri K.Chaitanya, learned counsel representing Sri A.Ravi

Kiran, learned counsel for the petitioner/accused submits that

the Trial Court ought to have disbelieved the testimony of P.W.1

and Exs.P.1 to P.5; that except the self-serving testimony of

P.W.1, nothing on record to prove guilt of the accused; that the

Courts below failed to appreciate the material on record in

proper perspective and erroneously convicted the accused,

thereby, prays to consider the present revision.

10. Sri S.Subrahmanyam, learned counsel for the 1st

respondent/complainant submits that that material placed on

record categorically shows that there is legally enforceable debt

under Ex.P.1, as such, there is an obligation on the part of the

petitioner/accused to discharge the same; that the trial Court

as well first Appellate Court rightly appreciated the material on

record and convicted the petitioner for the said offence; that

there are no valid grounds urged by the petitioner to meddle

with the judgment of the Trial Court, which was affirmed by the

first Appellate Court, thereby, prays to dismiss the present

revision.

11. In view of the above rival contentions, this Court perused

the material available on record. The complainant examined

himself as P.W.1 and got marked Exs.P.1 to P.5 before the trial

Court. In his evidence, he reiterated the facts stated in the

complaint. Except the bare suggestions, nothing was elicited to

disbelieve the testimony of P.W.1.

12. On perusal of Exs.P.1 to P.5, it categorically shows that

the accused borrowed an amount of Rs.1,00,000/- from the

complainant on execution Ex.P.1 promissory note, on the

demand made by the complainant, she issued Ex.P.2 cheque

and when the same was presented in his bank for collection,

returned with an endorsement 'insufficient funds' under Ex.P.3

cheque returned memo and then he got issued Ex.P.4 notice

within the limitation under the Act. Even after receipt of the

same under Ex.P.5 acknowledgment, the accused did not make

any payment, which all shows that the Ex.P.2 cheque was

issued by the accused to discharge the legally enforceable debt

under Ex.P.1 promissory note, and as such, the burden to prove

the case was discharged by the complainant. On the other

hand, except the bare contention, the accused did not enter into

witness box nor placed any record or piece of paper to show that

he is not liable to discharge the debt amount legally enforceable

debt covered under Ex.P.1. Thereby, the presumption under

Section 118 of N.I.Act is in favour of the complainant and the

accused failed to rebut the same.

13. 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 recording by both the

Courts below.

14. The Apex Court in State of Maharashtra v. Jagmohan

Singh Kuldip Singh Anand1, held that "The revisional court is

empowered to exercise all the powers conferred on the appellate

1 (2004) 7 SCC 659

court by virtue of the provisions contained in Section 401 CrPC.

Section 401 CrPC is a provision enabling the High Court to

exercise all powers of an appellate court, if necessary, in aid of

power of superintendence or supervision as a part of power of

revision conferred on the High Court or the Sessions Court.

Section 397 CrPC confers power on the High Court or Sessions

Court, as the case may be for the purpose of satisfying itself or

himself as to the correctness, legality or propriety of any finding,

sentence or order, recorded or passed, and as to the regularity

of any proceedings of such inferior court". It is for the above

purpose, if necessary, the High Court or the Sessions Court can

exercise all appellate powers. Section 401 CrPC conferring

powers of an appellate court on the revisional court is with the

above limited purpose. The provisions contained in Section 395

to Section 401 CrPC, read together, do not indicate that the

revisional power of the High Court can be exercised as a

second appellate power.

15. Thus, 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.

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

such error of law or a gross injustice in the judgment or

proceeding of the Courts below to exercise revisional power.

17. 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 in Laxminivas

Agarwal v. Andhra Semi Conductors Pvt.Ltd.2 as well

pronouncement of Hon'ble Supreme Court in Bir Singh v.

Mukesh Kumar3, wherein at paragraph Nos.18, 19, 28 and 29

held as follows:

18. The Appellate Court affirmed the aforesaid factual findings. The Trial Court and the Appellate Court arrived at the specific concurrent factual finding that the cheque had admittedly been signed by the respondent-accused. The Trial Court and the Appellate Court rejected the plea of the respondent-accused that the appellant-

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

complainant had misused a blank signed cheque made over by the respondent-accused to the appellant- complainant for deposit of Income Tax, in view of the admission of the respondent-accused that taxes were paid in cash for which the appellant-complainant used to take payment from the respondent in cash.

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 Another (2012) 1 SCC 260 this Court observed that the object of Chapter XVII of the Negotiable Instruments Act is both punitive and 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 for a 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 cases would expire by the time the criminal case was decided".

18. It is also brought to the notice of this Court 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 compensation as may be found acceptable to the parties or the Court.

4AIR 2017 SC 4594

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 has normally 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."

19. 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.2,50,000/- (Rupees Two Lakh Fifty Thousand only) to the

complainant towards compensation within six (6) weeks from

today, in default he shall undergo the sentence of imprisonment

as well fine imposed by the Trial Court, which was affirmed by

the first Appellate Court. Accordingly, the revision petitioner is

directed to appear before the Trial Court on or before