Telangana High Court
M/S. Manikanta Tours And Travels vs The State Of A.P. Another on 15 December, 2021
Bench: G Sri Devi
HONOURABLE JUSTICE G.SRI DEVI
CRIMINAL REVISION CASE No. 204 of 2008
JUDGMENT:
The present Criminal Revision Case is filed under
Sections 397 and 401 Cr.P.C., aggrieved by the judgment
dated 12.02.2008 passed in Criminal Appeal No. 282 of 2007.
By the said judgment, the IV Additional Metropolitan Sessions
Judge, Hyderabad dismissed the appeal filed by the
petitioner-accused confirming the judgment, dated
09.08.2007 passed by the IV Additional Chief Metropolitan
Magistrate, Hyderabad in C.C. No. 224 of 2004.
The facts, in issue, are as under:
The de facto complainant-respondent No. 2 herein filed
a complaint under Section 200 Cr.P.C. alleging that during
the course of business, the accused, petitioner herein, who is
dealing in the business of tours and travels, used get the
diesel and petrol from the complainant's filling station on
credit basis and to settle an amount of Rs.1,64,185/-, the
accused issued a cheque on 22.11.2003 for an amount of
Rs.65,304/- vide cheque bearing No. 174721. However, the
said cheque, when presented for collection, was returned as
unpaid for want of funds. Subsequently, upon the promise
made by the accused to clear the amount in January, 2004,
the complainant continued to supply diesel and petrol to the
accused on credit basis. On 16.01.2004, the accused again
issued a post-dated cheque bearing No. 734727, dated
27.1.2004 for an amount of Rs.1,64,185/-. However, the said
cheque, when presented for clearance, was also returned on
13.01.2004 for want of funds. Hence, the complainant got
issued a legal notice, dated 05.02.2004 with a demand to
clear the cheque amount within 15 days. The accused
neither paid the amount nor issued any reply. Hence, the
complaint under Section 138 of Negotiable Instructions Act
(for short, the Act).
The Trial Court, after appreciating the evidence brought
on record, both oral and documentary, found the accused
guilty for the offence under Section 138 of the Act and
convicted him accordingly and sentenced him to undergo
imprisonment for six months and to pay a fine of Rs.5,000/-,
in default to suffer simple imprisonment for one month.
Aggrieved thereby, the accused, petitioner herein preferred
Criminal Appeal No. 282 of 2007. On re-evaluation of entire
evidence, the lower appellate Court dismissed the appeal
confirming the conviction and sentence imposed by the trial
Court. Hence, the present revision by the accused.
Heard learned Counsel for the revision petitioner and
the respondent No. 2 and perused the material on record.
The learned counsel or the revision petitioner, accused
has contended that the Trial Court and the lower appellate
Court have failed to assess and appreciate the evidence on
record in proper perspective. It is mainly contended that the
mandatory provision of Section 138 of the Act is not complied
with and the complaint itself is premature as no cause of
action arises on 04.03.2004.
The trial Court, while appreciating the evidence brought
on record, has clearly held that "Ex.P.4 notice was sent to
accused on 5.2.2004 and the same was served under Ex.P. 7
acknowledgement on 13.2.2004 and the cause of action arose
on 13.3.2004, whereas the present complaint is filed on
4.3.2004 which is well within the period of limitation
prescribed under the Act".
The lower appellate Court while re-appreciating the
entire evidence, has observed at para 14 as under:-
"14...It is important to note at this stage that it is not the
attack of the appellant that no credit dealings in between their
firm of tours and travels, where appellant is the owner and
respondent petrol pump. It is also not the defence of the
appellant that the vouchers under Ex.P.8 are fabricated. P.W. 1
also explained that since the appellant submitted Ex.P. 8
vouchers, there is no need to issue bill. It is also clarified by
way of suggestion that appellant has given Ex.P. 2 cheque as a
collateral security and the same was denied by the witness. It
is also alleged in the appellant grounds that it is under where
one has to issue blank cheques and put signatures on blank
papers as a security of the other. But on perusal of Ex.P. 1
letter, I did not find any adjustment of typing from top to bottom,
so as to conclude that the P.W.1 obtained a letter head paper of
the appellant tours and travels and thereafter got typed it to suit
the case and brought into existence. It is also suggested that the
body of Ex.P. 2 cheque and signature in Ex.P. 2 are not written
at a time and the same was denied by the witness. No material
from the appellant in support of the suggestion. So, appellant
admitted Ex.P. 2 cheque. Hence, there is a presumption for
passing of consideration towards discharge of legally
enforceable debt. No doubt, it is a rebuttable presumption. But
appellant has no dare to come to the witness box and deposed
in support of the defence at lease in support of the suggestions.
So, the trial court rightly accepted the evidence of P.W.1 and
come to the conclusion that Ex.P. 2 was issued for the legally
enforceable debt."
Further, the lower appellate court, at para No. 18,
categorically observed as follows:-
"18...The date of service of notice can be taken into
consideration. In such a case, the appellant received the notice
on 13.2.2004 and the complaint was filed on 4.3.2004 (sic.). So,
the complaint is not premature one. The trial court also held
accordingly as the above decisions have no applications.
Advocate for the appellant submitted reply argument that except
13th digit, no more month and year found on postal
acknowledgement under Ex.P. 5. It is also noted in the
complaint that the said postal acknowledgement is
dt.21.2.2004. Hence, in any angle this complaint filed before
expiry of that statutory period of 15 days."
Thus, the lower appellate Court has vividly discussed all
the grounds raised by the petitioner herein and came to the
conclusion that the complaint is not premature and
accordingly dismissed the appeal confirming the conviction
and sentence passed by the trial Court. I do not see any valid
ground or reason to interfere with the concurrent findings
arrived by both the trial Court as well as the lower appellate
Court.
The revision is devoid of merits and the same is
accordingly dismissed.
Miscellaneous petitions, if any, pending shall stand
dismissed.
____________________
JUSTICE G.SRI DEVI
15-12-2021
tsr
HONOURABLE JUSTICE G.SRI DEVI
CRIMINAL REVISION CASE No. 204 of 2008
DATE: 15-12-2021
