Rudra Prasad, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 167 Tel

                   HONOURABLE JUSTICE G.SRI DEVI

                           CRL.R.C.No.690 of 2008

JUDGMENT:

This Criminal Revision Case is preferred by the revision

petitioner-accused aggrieved by the judgment of the learned IV-

Additional Sessions Judge (FTC-III), Khammam, passed in

Crl.A.No.87 of 2006, dated 31.01.2008, to the extent of remanding the

case to the learned trial Court for retrial after framing separate

charges etc.,

It is the case of the prosecution that the revision

petitioner/accused borrowed an amount of Rs.1,50,000/- from the

complainant on 30.07.1999 and executed a demand promissory note

(Ex.P2) in favour of the complainant on the same day and thereafter

he issued a cheque bearing No.480196 dated 30.07.2001 for an

amount of Rs.2,22,000/- drawn on State Bank of Hyderabad,

Manugur branch, Hyderabad, towards payment of the amount due

to the complainant and when the said cheque was presented for

realization, the same was returned with an endorsement 'insufficient

funds" in the account of the drawer (accused). Thereafter, after

following the procedure provided for under Sections 138 and 142 of

the Negotiable Instruments Act, the complainant filed a private

complaint and the same was taken on file by the trial Court.

During the course of trial, on behalf of the prosecution, P.Ws.1

to 4 were examined and got marked Exs.P1 to P11. No witness was

examined and no document was marked on behalf of the accused.

On a perusal of the entire evidence, both oral and documentary, the

trial Court found the revision petitioner-accused guilty of the

offence punishable under Section 420 of I.P.C. and accordingly

convicted and sentenced him to undergo simple imprisonment for a

period of three years and also to pay an amount of Rs.3,00,000/- to

the complainant (P.W.1) towards compensation as provided under

Section 357 (3) Cr.P.C., in default, to suffer simple imprisonment for

three months.

In an appeal preferred by the revision petitioner-accused

against the said conviction and sentence, the learned IV-Additional

Sessions Judge (FTC-III), Khammam, while setting aside the

conviction and sentence passed against the revision

petitioner/accused for the offence punishable under Section 420 of

I.P.C., remanded the case to the trial Court with a direction to

conduct retrial of the case after framing separate charges under

Sections 420 of I.P.C. and 138 of N.I Act. after affording sufficient

opportunity to the prosecution and the accused to adduce further

evidence. Aggrieved by the same, the revision petitioner/accused

preferred this criminal revision.

Heard the learned Counsel for the revision petitioner-accused

and the learned Assistant Public Prosecutor for the respondent-State.

Learned Counsel for the revision petitioner/accused

submitted that the appellate Court has no jurisdiction to remand the

case for re-trial with a direction to frame charges separately for the

offences under Section 420 of I.P.C. and Section 138 of N.I. Act and,

therefore, it is liable to be set aside. In support of his contention, the

learned Counsel relied upon the decision of the combined High

Court of Andhra Pradesh in K.Ram Reddy and others vs. State of

A.P. (MANU/AP/1033/1996) and also the decision of the High

Court of Orissa in Lakshmi Setti and others vs. The State

(MANU/OR/O051/1957).

The complainant (P.W.1) filed the private complaint against

the revision petitioner/accused for the offences punishable under

Sections 420 of I.P.C. and Section 138 of N.I. Act before the trial

Court and the same was forwarded to the police, under Section 156

(3) Cr.P.C. for investigation and report. The police registered the

same as a case in Crime No.257 of 2002 against the accused under

the aforesaid Sections of law and subsequently, after due

investigation, the police filed the charge sheet against the accused

for the offences punishable under Sections 420 of I.P.C. and Section

138 of N.I. Act. But, the learned Magistrate took cognizance of the

case for the offence punishable under Section 420 of I.P.C. only.

The learned Magistrate framed the charges under Sections 420

of I.P.C. and 138 of N.I. Act against the accused and he did not

choose to mention the date of loan, date of cheque, the amount of

cheque and the date of dishonour of cheque in the charge framed

under Section 138 of N.I. Act. So also, the name of the person

cheated and the property in respect of which cheating was

committed and that the dishonest intention of the accused were not

mentioned in the charge framed under Section 420 of I.P.C.

Therefore, the learned Additional Sessions Judge held that the

charges framed by the learned Magistrate are totally defective since

he has proceeded to dispose of the case thinking that the accused

has been charged only for the offence punishable under Section 420

of I.P.C. and came to the conclusion that the said offence has been

proved against the accused without even making an attempt to find

out whether the ingredients that are required to prove the said

offence are established or not. The learned Additional Sessions

Judge further held that the learned Magistrate failed to impose

sentence of fine on the accused even though he found him guilty of

the offence punishable under Section 420 of I.P.C. Having not

imposed fine for the offence under Section 420 of I.P.C., the learned

Magistrate has invoked the provisions of Section 357 (3) Cr.P.C. and

ordered compensation to the complainant (P.W.1). Section 357 (1)

(d) Cr.P.C. deals with persons convicted of offence of cheating.

However, the learned Magistrate instead of invoking Section 357

(1)(d) of Cr.P.C. invoked Section 357 (3) of Cr.P.C., which is illegal

and misconception of facts and law.

On perusal of the entire evidence available on record and

having regard to the submissions made by the learned Counsel

appearing on either side and also the decisions relied upon by the

learned Counsel for the revision petitioner/accused, this Court is of

the view that the appellate Court has given sufficient and cogent

reasons in remanding the case to the trial Court for re-trial of the

case after framing separate charges for the offences punishable

under Sections 420 of I.P.C. and 138 of N.I. Act and also after

affording an opportunity to both sides to adduce further evidence.

There is no reason or justification to interfere with the findings of the

appellate Court. I find no merit in the criminal revision case and it is

liable to be dismissed.

Accordingly, the Criminal Revision Case is accordingly

dismissed.

Miscellaneous petitions, if any, pending shall stand closed.

____________________ JUSTICE G.SRI DEVI

24-01-2022 Gsn.