Gella Natraj, Khammam Dt., vs The State Of Telangana, Rep Pp ...
2022 Latest Caselaw 3996 Tel

       HON'BLE SRI JUSTICE A.SANTHOSH REDDY

                       CRL.Rc.No.1046 OF 2017
ORDER:

This revision is directed against the judgment

dated 11.04.2017, passed by the III Additional Judicial Magistrate

of First Class, Khammam confirming the judgment of

Principal Sessions Judge at Khammam, dated 09.03.2016,

in C.C.No.306 of 2014, on the file of the Principal Sessions Judge,

Khammam, wherein the petitioner was found guilty of the offence

under Section 138 of the Negotiable Instruments Act, 1881 (for

short 'the Act') and sentenced to undergo Rigorous Imprisonment

for a period of one year and also directed to pay Rs.3,30,000/-

under Section 255(2) Cr.P.C.

2. Heard the learned counsel for the petitioner and the learned

counsel for the second respondent. Perused the material on record.

3. The parties hereinafter referred to as the complainant and the

accused as arrayed in the complaint before the trial Court.

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4. The second respondent/complainant herein filed complaint

against the petitioner/accused herein alleging that he is an

agriculturist as well as business man, whereas the accused is also

business man taking the rice mills on contract basis. Out of

acquaintance, the complainant advanced an amount of

Rs.1,00,000/-, Rs.1,20,000/- and Rs.50,000/- on 14.04.2013,

16.04.2013 and 23.04.2013 respectively and the accused received

the same and executed pronotes. Subsequently, the accused

towards repayment issued cheque for Rs.3,30,000/- dated

09.05.2014 including the interest accrued drawn on State Bank of

Hyderabad, Khammam branch, dated 09.05.2014, in favour of the

complainant. The said cheque was presented for encashment at

ING Vysa Bank Limited, Gandhi Chowk Branch, Khammam and

the same was returned unpaid through cheque return memo dated

13.05.2014 for the reason "funds insufficient" in the account of the

accused. Then the complainant got issued legal notice to the

accused calling upon him to pay the amount within 15 days and the

said notice was served on 16.05.2014 and rejoinder notice was

issued on 26.05.2014 which was served on 28.05.2014 and the 3 ASR,J crlrc_1046_2017

accused got issued reply notice denying the liability and requested

the complainant to supply copies of pronotes and cheque as

mentioned in the legal notice. Again on 30.05.2014, the

complainant got issued rejoinder reply notice with all the

photocopies of pronote and cheque and the same was served on the

accused. But the accused failed to pay the amount. Hence, this

complaint is filed under Section 138 of the Act against the accused.

4. The accused denied the offence and pleaded not guilty.

In support of his case, the complainant examined himself as P.W.1

and on his behalf examined Pws.2 and 3 and marked Exs.P-1 to

P-13. The accused has not adduced any defence evidence.

5. On hearing both the counsel and perusing the material

available on record, the learned Magistrate found guilty for the

offence under Section 138 of the Act and convicted under Section

255(2) Cr.P.C. to undergo Rigorous Imprisonment for a period of

one year and was also directed to pay compensation of

Rs.3,30,000/-. Being aggrieved by the same, the accused preferred

appeal No.56 of 2016 on the file of Principal Sessions Judge, 4 ASR,J crlrc_1046_2017

Khammam. The learned Sessions Judge after hearing both the

counsel and considering the material on record confirmed the

conviction and sentence imposed including the compensation by

the trial Court and dismissed the appeal. Being aggrieved by the

same, the present criminal revision case is filed.

6. Learned counsel for the accused submits that there is no

legally enforceable debt, in discharge of which the accused did not

issue cheque to the complainant and there are two different inks

used in the preparation of cheque and it can be believed that Ex.P.1

cheque which was misused by the complainant. Therefore, the

learned counsel prays to allow the revision and acquit the accused.

7. Learned counsel for the complainant submits that the trial

Court and the appellate Court have given concurrent findings that

the complainant has successfully proved that he has paid money to

the accused and in discharge of legally enforceable debt, Ex.P.1

cheque was issued by the accused. Therefore, the complainant has

proved the there exists legally enforceable debt with oral and

documentary evidence in respect of Ex.P.1 and there are no merits

in the revision and prayed to dismiss the same.

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                                                    crlrc_1046_2017

8. Thus, the point that would arise for determination in this

revision is, whether the conviction and sentence against the

accused under Section 138 of the Act imposed by the trial Court

and confirmed by the appellate Court suffers from any infirmity

warranting interference?

9. A perusal of the evidence of the complainant adduced

before the trial Court would reveal that the accused borrowed an

amount of Rs.1,00,000/- on 14.04.2013, Rs.1,20,000/- on

16.04.2013 and Rs.50,000/- on 23.04.2013 and executed pronotes

under Exs.P.11 to P.13. Subsequently, towards discharge of said

liability, the accused issued Ex.P.1 dated 09.05.2014 for an amount

of Rs.3,30,000/- which includes principal amount and accrued

interest, drawn on State Bank of Hyderabad, Khammam Branch.

The said cheque was presented for encashment in ING Vysya

Bank, Gandhi Chowk Branch, Khammam. The said cheque was

returned dishonoured with Ex.P.2 return memo dated 13.05.2014

for the reason "funds insufficient". The complainant got issued

legal notice on 15.04.2014. The accused received the same and

gave reply notice dated 26.05.2014 under Ex.P.8 and thereafter, the 6 ASR,J crlrc_1046_2017

complainant issued rejoinder reply notice dated 30.05.2014 under

Ex.P.9. Ex.P.3 to 10 are legal notices and postal receipts and the

said correspondence between the complaint and accused

categorically prove the compliance of issue in the legal notice

within one month from the date of receipt of information from the

bank regarding return of cheque as unpaid.

10. Learned counsel for the accused submits that the Ex.P.1

cheque was issued in favour of one Vankayala Gandhi, but not in

favour of the complainant and the complainant misused the same

and filed the complaint. Admittedly, the accused has not entered

into witness box nor examined any witnesses on his behalf. He has

not filed any documents in support of his contention.

11. The complainant examined Pws.2 and 3, who are the

attestors of the promissory notes and basing on the oral testimony

of the witnesses and the Ex.P.11 to Ex.P.13 pronotes, the trial

Court has rightly believed that the complainant paid the amounts to

the accused as stated by him on three occasions. After that the

complainant got issued legal notice after dishonour of Ex.P.1

cheque to which the accused got issued reply notice under Ex.P.8.

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The trial Court has also observed that the accused did not raise or

state anything in Ex.P.8 reply notice that Ex.P.1 cheque was not

issued towards discharge of the debt, but it was issued to one

Vankayala Gandhi. Therefore, once the complainant adduced

evidence and proved that the accused issued cheque towards

discharge of legally enforceable debt and presumption under

Section 139 of the Act would operate in favour of the complainant.

Further, the presumption contained in Section 139 of the Act

mandates that unless the contrary is proved, it shall be presumed

that the holder of the cheque received the cheque for discharge,

in whole or in part of any debt or liability. There is no evidence

adduced by the accused rebutting the said presumption. In the

absence of any such evidence to the contra, it must be presumed

that Ex.P-1 was issued by the accused in discharge of a legally

enforceable debt. The trial Court has considered the evidence of the

complainant carefully and also the contentions raised by the

learned counsel for the accused and rightly believed the evidence

of complainant and found the accused guilty. The appellate Court

also on scrutiny of evidence of both the parties and relying on 8 ASR,J crlrc_1046_2017

decision of Apex Court in Rangappa v.Mohan1 has rightly

observed that the accused set up the defence that the cheque and

pronotes were not issued in favour of the complainant, but they

were issued in favour of one Vankayala Gandhi. But he failed to

adduce any independent evidence. The appellate Court also

carefully evaluated the evidence and rightly confirmed the

judgment of the trial Court. The defence set up by the accused has

been disbelieved by the Courts below since he failed to prove the

same by oral or documentary evidence and the accused failed to

rebut the presumption, but the complaint proved that the cheque

in question issued towards discharge of legally enforceable debt

with cogent evidence. Therefore, the trial Court as well as the

appellate Court on proper appreciation of evidence has rightly

found the accused guilty and convicted and sentenced for the

offence under Section 138 of the Act.

12. For the foregoing reasons, I am of the view that the

impugned judgments of the Courts below finding that the revision

petitioner/accused is guilty for the offence under Section 138 of the

1 AIR 2010 SC 1898 9 ASR,J crlrc_1046_2017

Negotiable Instruments, 1881 and the conviction and sentence

imposed against him for the same are not liable to be interfered

with in exercise of revisional jurisdiction by this Court.

13. Accordingly, the Criminal Revision Case is dismissed.

Miscellaneous petitions, if any, pending shall stand closed.

                                       ________________________
                                        A.SANTHOSH REDDY, J

01.08.2022

Nvl
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