G.Ravi Kumar vs State Of A.P., Another
2022 Latest Caselaw 4255 Tel

      HON'BLE SRI JUSTICE A.SANTHOSH REDDY

                   CRL.R.C.No.492 OF 2016
JUDMGENT:

      This criminal revision case is directed against the judgment

dated 18.12.2015 in Crl.A.No.593 of 2013, on the file of the

III-Additional Metropolitan Sessions Judge, Hyderabad, wherein

the said appeal was dismissed, confirming the conviction of the

revision petitioner-accused for the offence under Section 138 of the

Negotiable Instruments Act (for short 'the NI Act') and sentence of

rigorous imprisonment for a period of one year and fine of

Rs.5,000/- imposed by the learned XIV-Special Magistrate,

Hyderabad in C.C.No.394 of 2012.


2.    Heard the learned counsel for the revision petitioner-accused

and learned counsel for the second respondent-complainant.

Perused the material on record.

3. The second respondent filed a complaint against the

revision petitioner (hereinafter called 'the accused') before the

I-Additional Chief Metropolitan Magistrate, Hyderabad alleging

that the complainant and the accused are acquainted with each

other and out of the said acquaintance, the accused approached the

complainant to lend a sum of Rs.4,50,000/- by way of hand loan

and, accordingly, the complainant lent the said amount on

27.02.2012 and the accused agreed to repay the amount with

interest at 24% per annum within three months. The accused also

executed a demand promissory note on the same day. The accused

failed to repay the said amount, but on demand issued a cheque

for Rs.4,77,000/- dated 07.06.2012 towards discharge of the debt.

The said cheque, when presented for encashment, was returned for

the reason 'insufficient funds' on 08.06.2012. The complainant got

issued legal notice dated 18.06.2012 and the accused, having

received the same, neither issued reply nor paid the amount.

The said complaint was originally filed before the I-Additional

Chief Metropolitan Magistrate, Hyderabad and the learned

Magistrate has taken cognizance of the same for the offence under

Section 138 of the NI Act against the petitioner and numbered it as

C.C.No.470 of 2012. Subsequently, it was transferred to the court

of XIV-Special Magistrate, Hyderabad and re-numbered as

C.C.No.394 of 2012. The accused denied the offence and pleaded

not guilty.

4. In support of his claim, the complainant examined himself as

P.W.1 and also examined P.Ws.2 and 3 on his behalf and marked

Exs.P-1 to P-12. The accused examined himself as D.W.1 and

marked Exs.D-1 and D-6 were marked.

5. On a consideration of the evidence available on record, the

learned Magistrate, having observed that the complainant could

successfully establish that the accused had borrowed the amount of

Rs.4,50,000/- on 27.02.2012 and executed Ex.P-7 promissory note

and later issued Ex.P-1 cheque towards discharge of legally

enforceable debt, found that the accused guilty of the offence

under Section 138 of the NI Act and, accordingly, convicted and

sentenced him to undergo rigorous imprisonment for one year and

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

for three months.

6. Aggrieved and dissatisfied with the judgment passed by

the trial court, the accused preferred an appeal before the

III-Additional Metropolitan Sessions Judge, Hyderabad. The

learned Sessions Judge, after hearing the submissions of both the

counsel and on re-appraisal of the entire material on record,

confirmed the conviction and sentence of the accused for the

offence under Section 138 of the NI Act. Aggrieved thereby, the

present revision by the accused.

7. Learned counsel for the petitioner submits that the courts

below failed to consider that the alleged cheque was issued to one

Mr.Laxman Rao, who promised that he will arrange loan and hence

those documents were issued only for security purpose and not

towards discharge of any legally enforceable debt. The learned

counsel further submits that there is no nexus between the

complainant and the accused and, therefore, the initiation of

proceedings against him is an abuse of process of law. Learned

counsel prayed to allow the revision.

8. Per contra, learned counsel for the second respondent

submits that both the courts below have appreciated the evidence,

both oral and documentary, based on the facts and circumstances of

the case and had rightly convicted the revision petitioner-accused

and there is no illegality or irregularity to interfere with the

judgments of the courts below and prayed to dismiss the revision.

9. I have carefully considered the submissions of learned

counsel for both sides and the evidence on record, both oral and

documentary, and also the judgments of both the courts below.

10. Now, the question that arises for consideration is whether

there are justifiable grounds to interfere with the judgments of the

courts below in finding the accused guilty of the offence under

Section 138 of the NI Act.

11. The oral and documentary evidence adduced by both the

parties discloses that the accused borrowed an amount of

Rs.4,50,000/- from the complainant and in discharge of the said

amount, he issued a cheque for Rs.4,77,000/- under Ex.P.-1. When

the said cheque was presented for encashment, it was returned

dishonoured due to insufficient funds in the account of the

accused along with a cheque return memo Ex.P-2. Thereafter, the

complainant got issued legal notice under Ex.P-3 to the accused,

who, having received the same, neither got issued reply nor paid

the amount.

12. It, therefore, emerges from the material on record that

the accused has not disputed his signature on the cheque Ex.P-1.

It is the defence of the accused that one Mr.Laxman Rao, who is

brother of the complainant, is a very close friend of him and the

said Laxman Rao worked in Special Protection Force and he

used to escort the cash while taking the same to the Central

Telegraph Office, Secunderabad from the cash counter at

Erragadda. The accused was in need of money and the said

Laxman Rao promised that he will get arrange loan and under that

pretext he took blank cheques and property documents from him.

However, in the cross-examination of D.W.1, it was suggested on

behalf of the accused that the said Laxman Rao committed theft of

cheques and promissory notes from the cash counter of the

accused. The contradictory defence taken by the accused itself

falsifies his contention and rightly there appears to be no truth in

the said defence. Therefore, once the accused admitted that the

cheque bears his signature, there is presumption that there exists a

legally enforceable debt or liability under Section 139 of the

NT Act. Since the evidence adduced by the accused to rebut

the presumption is not convincing and did not inspire

confidence to believe his contention, the complainant filed

statements of account relating to his bank accounts under Ex.A-1 to

A-11 in support of his contention that he has good income to lend

money of Rs.4,50,000/- to the accused. The oral evidence of the

complainant supported by the documentary evidence, including

Ex.P-7 promissory note, would establish that he has accepted to

lend money and the accused having borrowed the same, executed

the promissory note and issued cheque towards discharge of the

said liability. As such both the courts below have rightly held

that there is legally enforceable debt in respect of the cheque

Ex.P-1.

13. Apart from the above, the evidence let in by the accused was

disbelieved by the courts below and held that the complainant

established the existence of a legally enforceable debt as on the

date of issuance Ex.P-1 cheque.

14. I do not find any justifiable grounds to interfere with the

findings of the courts below about the liability of the accused.

The evidence, both oral and documentary, placed by the record,

proved the ingredients of the offence under Section 138 of the

NI Act. The concurrent findings of the courts below, including the

sentence imposed by the trial court and as confirmed by the

appellate court, do not suffer from any infirmity or illegality

warranting interference by this court.

15. The criminal revision case is, accordingly, dismissed.

16. Pending miscellaneous petitions, if any, stand closed.

_______________________ A.SANTHOSH REDDY, J

24.08.2022 Lrkm