Smt. Pushpalatha, vs K.Murali Krishna Muralidhar And ...
2022 Latest Caselaw 168 Tel

               HONOURABLE JUSTICE G. SRIDEVI

                       CRL.R.C. No.1245 of 2008

JUDGMENT:

The present Criminal Revision Case is filed under Sections 397

and 401 of the Code of Criminal Procedure, 1973 against the judgment,

dated 04.07.2008, passed in Crl.A.No.155 of 2006, wherein the learned

Sessions Judge, Mahabubnagar, confirmed the judgment, dated

17.11.2006, passed in C.C.No.207 of 2005 on the file of the Special

Judicial Magistrate of First Class for trial of cases under Prohibition

and Excise Act, Mahabubnagar.

The 1st respondent herein is the complainant and the revision

petitioner is the accused before the trial Court. For the sake of

convenience, they are referred to as arrayed before the trial Court.

The facts of the case are as under:

The complainant filed a private complaint under Section 200

Cr.P.C. against the accused for the offence punishable under Section

138 of the Negotiable Instruments Act, stating that on the request

made by the accused, the complainant gave hand loan of Rs.2,50,000/-

to her to meet her family necessities. On demand to repay the loan

amount, the accused issued a cheque bearing No.380252, dated

09.01.2005, for Rs.2,50,000/- drawn on Canara Bank, Narayanpet

towards repayment of the said debt and when the same was presented

by the complainant in the State Bank of India, Mahabubnagar, for

encashment, the same was retuned as 'funds insufficient'. Therefore,

the complainant got issued a notice on 17.03.2005 to the accused and

the accused sent a reply on 23.03.2005 denying the liability. As such

the complainant filed a complaint for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881.

In support of his case, the complainant has examined himself as

PW.1 and got marked Exs.P.1 to P.9, whereas the accused was

examined as DW.1 and on a petition filed by the complainant, the

Branch Manager, Canara Bank, Narayanpet Branch, was examined as

C.W.1.

The trial Court, after considering both the oral and documentary

evidence, found the accused guilty for the offence punishable under

Section 138 of the Negotiable Instruments Act and accordingly

convicted and sentenced her to undergo simple imprisonment for a

period of six months and to pay a fine of Rs.5,000/-, in default, to

suffer simple imprisonment for a period of three months. Aggrieved

by the same, the accused preferred Crl.A.No.155 of 2006 before the

Sessions Judge, Mahabubnagar. Vide judgment, dated 04.07.2008, the

learned Sessions Judge dismissed the appeal confirming the conviction

and sentence imposed by the trial Court.

Heard the learned Counsel appearing on either side.

Learned Counsel for the revision petitioner/accused submits

that though P.W.1 admitted in his cross-examination that he is a

money lender, but he has not filed any licence to that effect and hence

in view of the judgment of this Court in V.Naga Vinay v. Ch.

Sambasiva Rao1, a loan under a promissory note, dated 28.04.2002, is

not a legally enforceable debt. He also submits that the complainant

failed to prove that he is having acquaintance with the revision

petitioner. He further submits that the complainant failed to mention

about the existence of the promissory note in the statutory notice,

dated 17.03.2005 and the said promissory was filed during his cross-

examination and as such, the authenticity of the promissory note is

doubtful. He also submits that the complainant himself admitted that

his wife filled up the contents of the cheque. Therefore, prayed to set

aside the conviction and sentence imposed against the accused.

Per contra, learned Counsel for the 1st respondent/complainant

submits that the revision petitioner admitted her signature on the

cheque and from the evidence of P.W.1 and Exs.P1 to P9, the

complainant proved that the accused had issued Ex.P1-cheque

towards discharge of loan under Ex.P8-promissory note. It is also

submitted that merely because there was no licence for money lending

business held by the complainant, that itself does not mean that there

was no legally enforceable liability on the part of the revision

petitioner/accused as required under Section 138 of the Act.

Therefore, prayed to dismiss the revision.

A perusal of the material available on record would show that

during the course of cross-examination P.W.1 has stated that he is

doing money lending business, but he has not filed any licence to

prove that he is a money lender. In M/s. Baba Finance Corporation v.

(2019) 2 ALT (Crl.) 264 (T.S. & A.P.)

Mohd. Nayeem and another2 a learned Single Judge of the High Court

for combined State of Andhra Pradesh held as under:-

"Para 8: As I have already noted above, the explanation to Section 138 of the Negotiable Instruments Act provides that the debt for which the cheque was issued and bounced back should be a cheque relatable to a debt or liability which is legally enforceable. Phrase "legally enforceable" found under Explanation to Section 138 is the one applicable to both debt and other liability. The legally enforceable debt is one which a person can sue for the same before the competent Court and realize it. For any reason, if any, a person is incapacitated either by law or procedure to institute a suit before an appropriate Court and obtain relief regarding the suit in question such a debt is not legally enforceable........"

Relying upon the said judgment a learned Single Judge of the

High Court for combined State of Andhra Pradesh in V.Naga Vinay v.

Ch.Sambasiva Rao and another3 held as under:-

"12. A perusal of Ex.P10 would show that as rightly observed by the trial court, the money lending license was obtained by the complainant from the M.R.O., Saroornagar office on 28.02.2003, whereas, the two promissory notes i.e., Exs.P3 and P4 were dated 28.02.2001. Therefore, by the date of debt of Exs.P3 and P4 promissory notes, the complainant though was a money-lender but not having a valid money lending license. In that view, the debts covered by Exs.P3 and P4 cannot be regarded as legally enforceable. Since Ex.P1 cheque was allegedly issued in part payment of the debt covered by Exs.P3 and P4, the same cannot be said to be in due discharge of any legally enforceable debt. In this regard, the decision relied upon by the trial court in M/s.Baba Finance Corporation v. Mohd. Nayeem and Another (referred supra),

1997 (1) ALD (Crl.) 719 (A.P.)

(2019) 2 ALT (Crl.) 264 (T.S. & A.P)

squarely applies to the case on hand. Therefore, the trial court was right in coming to a conclusion that there was no legally enforceable debt in existence to back up Ex.P1 cheque."

In the instant case also though P.W.1 admitted in his cross-

examination that he is doing money lending business, he has not filed

any valid money lending license. A perusal of the material available

on record would show that the case of the complainant is that Ex.P1-

cheque was issued on 09.01.2005 to discharge the loan under Ex.P8-

promissory note, dated 28.04.2002. Further, the complainant did not

file Ex.P8-promissory note during his chief-examination and in his

cross-examination only he got marked the said promissory note. On

one hand, the complainant had stated that he is a money lender and

on the other hand he stated that he has given the loan to the accused

out of acquaintance. There is no evidence to show that the

complainant had an acquaintance with the accused. Therefore, two

contradictory statements were made by the complainant with regard

to the promissory note. That apart, in Ex.P3-legal notice, the

complainant did not mention about the existence of promissory note

and that no suit has been filed by the complainant basing on the said

promissory note. Further, the complainant himself admitted that his

wife has filled up the contents in Ex.P1-cheque. Hence, there is a

force in the argument of the learned Counsel for the revision

petitioner/accused that there is no legally enforceable debt and Ex.P1-

cheque cannot be said to have been issued to discharge a legally

enforceable debt. Therefore, the decisions relied upon by the learned

Counsel for the revision petitioner squarely applicable to the case on

hand.

For the aforesaid discussion, this Court is of the opinion that the

prosecution failed to prove that the revision petitioner/accused has

issued Ex.P1-cheque to discharge a legally enforceable debt and

committed an offence punishable under Section 138 of the N.I. Act.

Therefore, the conviction and sentence of the revision

petitioner/accused, in my considered view, has suffered from

illegality and caused miscarriage of justice. Hence, the conviction and

sentence imposed against the revision petitioner/accused for the

offence punishable under Section 138 of N.I. Act is liable to be set

aside.

The Criminal Revision Case is accordingly allowed. The

conviction and sentence imposed by the trial Court as confirmed by

the appellate Court for the offence punishable under Section 138 of the

N.I. Act are hereby set aside and the revision petitioner/accused is

acquitted of the said charge. Fine amount, if any, paid by the revision

petitioner/accused shall be refunded to her.

_____________________ JUSTICE G. SRIDEVI 24-01-2022 gkv/Gsn