M/S. Om Surya Electronics ... vs M/S. Az Marketing The State Of A.P.
2021 Latest Caselaw 2295 Tel

       THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER

       CRIMINAL REVISION CASE No.1722 OF 2006

ORDER:

This Criminal Revision Case, under Sections 397 and 401

of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is

filed by the petitioner-complainant aggrieved by the judgment,

dated 08.08.2006, passed in C.C.No.1645 of 2003 by the

learned XIV Additional Chief Metropolitan Magistrate, Hyderabad,

whereby, the Court below, found the respondent No.1-accused

guilty of the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 (for short, 'N.I. Act') and

accordingly, convicted him of the said offence and sentenced him

to pay fine of Rs.5,000/-, in default, to suffer simple

imprisonment for thirty days.

2. Heard the learned counsel for petitioner-complainant,

learned Assistant Public Prosecutor appearing for respondent

No.2-State and perused the record.

3. Notice was taken out to the respondent No.1-accused in

the month of April, 2007 to the address furnished in the cause

title of the revision case. As the respondent No.1-accused was

continuously absent for a considerable time, endorsing the same

on the cover of the notice sent to the respondent No.1-accused,

the notice was returned unserved. Hence, there is deemed

service on the respondent No.1-accused. Though the matter is

pending for several years, the respondent No.1-accused did not 2 Dr.SA,J Crl.R.C.No.1722 of 2006

choose to appear or appoint an Advocate to represent the

matter.

4. The facts of the case, in brief, are that the respondent

No.1-accused used to purchase the required goods from the

petitioner-complainant on credit basis by issuing cheques. The

respondent No.1-accused purchased certain goods from the

petitioner-complainant and issued cheque bearing No.278085,

dated 10.08.2002 for Rs.7,980/- drawn on Bombay Mercantile

Co-operative bank, Hyderabad Branch, towards payment of

goods purchased. When the petitioner-complainant presented

the said cheque in the bank, the same was dishonoured for want

of sufficient funds. Therefore, the petitioner-complainant got

issued a legal notice, dated 27.08.2002 demanding the

respondent No.1-accused to pay the cheque amount. In spite of

the same, the respondent No.1-accused did not pay the cheque

amount. Hence, the petitioner-complainant filed the subject

private complaint before the Court below and the same was

registered as the subject C.C. for the offence punishable under

Section 138 of the N.I. Act. The Court below, having examined

the material on record and the submissions made, found the

respondent No.1-accused guilty of the offence punishable under

Section 138 of the N.I. Act and accordingly, convicted him of the

said offence and sentenced to pay fine of Rs.5,000/-, in default,

to suffer simple imprisonment for thirty days. Aggrieved by the

same, the present Criminal Revision Case is filed by the

petitioner-complainant.

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                                                    Crl.R.C.No.1722 of 2006

5. The grievance of the petitioner-complainant is that the

Court below, having convicted the respondent No.1-accused of

the offence punishable under Section 138 of the N.I. Act,

sentenced him only to pay fine of Rs.5,000/-, which is irrational.

In the given circumstances, the Court below ought to have

directed the respondent No.1-accused to pay the cheque amount

of Rs.7,980/- towards compensation and ultimately, prayed to

modify the sentence imposed by the Court below and allow the

revision case by sentencing the respondent No.1-accused to

suffer imprisonment as well as to pay the cheque amount.

6. Admittedly, the Court below having examined the entire

material on record was pleased to hold that the respondent

No.1-accused was guilty of the offence punishable under Section

138 of N.I. Act and accordingly, convicted him of the said

offence and sentenced him to pay fine of Rs.5,000/-, in default

to undergo simple imprisonment for thirty days. There is ample

evidence on record to show that the cheque, dated 10.08.2002,

given by the respondent No.1-accused was dishonoured for want

of sufficient funds and that the respondent No.1-accused did not

repay the cheque amount to the petitioner-complainant.

Further, the two essential ingredients that have to be present in

order to attract the offence under Section 138 of the N.I. Act are

that 1) the cheque ought to have been 'drawn' by the drawer in

favor of the payee on an account with a bank and 2) the

issuance of the cheque must be in total or partial discharge of

the liability owed by the drawer to the payee. In the instant 4 Dr.SA,J Crl.R.C.No.1722 of 2006

case, the said essential ingredients of N.I. Act have been

established. In the given circumstances, sentencing the

respondent No.1-accused only to pay fine of Rs.5,000/- is

irrational. The Court below ought to have directed the

respondent No.1-accused to pay the cheque amount also

towards compensation, in addition to the fine amount.

7. Under these circumstances, to meet the ends of justice,

while maintaining the conviction and the sentence of fine amount

of Rs.5,000/- along with the default clause imposed by the Court

below, vide the impugned order, dated 08.08.2006, the

respondent No.1-accused is directed to pay the cheque amount

of Rs.7,980/- towards compensation to the petitioner-

complainant.

9. Accordingly, the impugned judgment, dated 08.08.2006,

passed in C.C.No.1645 of 2003 by the learned XIV Additional

Chief Metropolitan Magistrate, Hyderabad, is modified to the

extent indicated above and the Criminal Revision Case is

disposed of.

Miscellaneous Petitions, if any, pending in this Criminal

Revision Case shall stand closed.

______________________ Dr. SHAMEEM AKTHER, J Date: 06-08-2021.

MD