V. Ramachandra Rao, vs V.Manohar Another,
2022 Latest Caselaw 5763 Tel

     THE HONOURABLE SRI JUSTICE N. TUKARAMJI


             CRIMINAL REVISION CASE No.1206 of 2008
             CRIMINAL REVISION CASE No.1207 of 2008
                            AND
             CRIMINAL REVISION CASE No.1208 of 2008

COMMON JUDGMENT:

      Heard Sri Vijay Paropakari, learned Senior counsel on behalf of

Smt.S.Bhavana for the revision petitioner and Sri P.Prasad learned

counsel for the 2nd and 3rd respondents.

2. Since these revisions emanated from the self-same transaction

between the same parties and the solitude nurture of the question of

fact and law to be considered, these petitions are heard together and

are being disposed of by this common judgment.

3. Crl.R.C.No.1206 of 2008: This revision has been filed

challenging the propriety of the judgment dated 08.08.2008 in Criminal

Appeal No.63 of 2008, passed by the II-Additional Metropolitan

Sessions Judge, Hyderabad, confirming the judgment of conviction,

dated 07.02.2008 in C.C.No.1091 of 2004 passed by the XIV

Additional Chief Metropolitan Magistrate, Hyderabad, whereby the

revision petitioner was convicted under Section 138 of the Negotiable NTR,J ::2:: crlrc_1206_2008 & batch

Instruments Act, 1881 (hereinafter 'the NI Act') and sentenced for

rigorous imprisonment for one year and pay Rs.10,000/- fine, in

default, simple imprisonment for two months.

4. Crl.R.C.No.1207 of 2008: This revision has been filed

challenging the propriety of the judgment dated 08.08.2008 in Criminal

Appeal No.62 of 2008, passed by the II-Additional Metropolitan

Sessions Judge, Hyderabad, confirming the judgment of conviction,

dated 07.02.2008 in C.C.No.1090 of 2004 passed by the XIV

Additional Chief Metropolitan Magistrate, Hyderabad, whereby the

revision petitioner was convicted under Section 138 of the NI Act and

sentenced to rigorous imprisonment for one year and pay Rs.10,000/-

fine, in default, simple imprisonment for two months.

5. Crl.R.C.No.1208 of 2008: This revision has been filed

challenging the propriety of the judgment dated 08.08.2008 in Criminal

Appeal No.61 of 2008, passed by the II-Additional Metropolitan

Sessions Judge, Hyderabad, confirming the judgment of conviction,

dated 07.02.2008 in C.C.No.1089 of 2004 passed by the XIV

Additional Chief Metropolitan Magistrate, Hyderabad, whereby the

revision petitioner was convicted under Section 138 of the NI Act and NTR,J ::3:: crlrc_1206_2008 & batch

sentenced to rigorous imprisonment for one year and pay Rs.10,000/-

fine, in default, simple imprisonment for two months. The substantive

sentence of imprisonment in all the matters were directed to run

concurrently.

6. In all the revision petitions, the 1st respondent is the complainant

and the revision petitioner is the accused. Further, in all the calendar

cases the witnesses and the documents were indicated identically.

Therefore, for the sake of facility of reference, the parties and

documents are referred to as per their rank in the calendar case.

7.1. The factual matrix in nutshell of the cases are as follows:-

The complainant lodged a private complaint, stating that he is

the Managing Director of M/s. Mayuri Engineers Private Limited and

he approached the accused for tax consultancy. In that course,

acquaintance was developed and the accused induced him for investing

amounts in his real estate business. On agreement the accused

obtained loans in his (complainant) name and indebted of Rs.18 lakhs.

7.2. In this regard, the accused had executed a bond of

settlement/Ex.P1 on 08.05.2004, accepting the liability and also issued NTR,J ::4:: crlrc_1206_2008 & batch

six cheques for Rs.2,00,000/- each with an undertaking that the

amounts would be paid within four months.

8. The complainant presented two cheques on 10.05.2004 (Exs.P3

and P4 subject cheques in C.C.No.1091 of 2004, Crl.A.No.63 of 2008,

Crl.R.C.No.1206 of 2008), two cheques on 06.05.2004 (Exs.P3 and P4

subject cheques in C.C.No.1090 of 2004, Crl.A.No.62 of 2008,

Crl.R.C.No.1207 of 2008), and two cheques on 10.05.2004 (Exs.P3 and

P4 subject cheques in C.C.No.1089 of 2004, Crl.A.No.61 of 2008,

Crl.R.C.No.1208 of 2008), through his banker State Bank of

Hyderabad, Begumpet Branch. All the cheques were returned unpaid

by the banker under the cheque return memoes/Exs.P5 and P6, dated

10.05.2004, 08.05.2004 and 11.05.2004 respectively with an

endorsement "payment stopped by drawer". Thereupon, on

18.05.2004 the complainant got issued separate statutory

notices/Exs.P7 and P8 and they were served on the accused under the

registered post, vide acknowledgements dated 17.06.2004/Ex.P11. As

the accused failed to make payment of the cheque amounts within the

stipulated period, the private complaint for the offence under Section

138 of the NI Act has been filed.

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9. During trial, the complainant got examined himself as P.W.1 and

examined the branch manager of his banker as P.W.2, the investigating

officers of Chilkalguda Police Station/P.Ws. 3 and 4 and got marked

Exs.P1 to P12.

10. On the other hand, the accused got examined himself as D.W.1

and exhibited Exs.D1/reply notice and Exs.D-2 and

D-3/acknowledgements.

11. The trial Court after examining the materials held that the

complainant has proved the essential ingredients of Section 138 of

Negotiable Instruments Act beyond reasonable doubt, thereby,

convicted and sentenced him as stated above. On appeal, the appellate

court affirmed the findings on all aspects and passed the impugned

judgment.

12. In these revisions, the accused contended that the trial and

appellate Courts have failed to appreciate that all the cheques/Exs.P-3

and P-4 were obtained under coercion and he lodged police report in

this regard. Further, he is not liable to pay any amount to the

complainant, as such, legally enforceable debt has not been proved by NTR,J ::6:: crlrc_1206_2008 & batch

the complainant. That apart, the complainant's source of income or

ability to lend amount and the accounts to establish the liability or the

income tax returns proving the claimed transaction were not filed.

Thus, the Courts below should have held that the prosecution had

failed to establish its case and should have acquitted him. In addition,

pleaded that as the complainant has passed away during the pendency

of three revisions and though there is no legal stance, as the legal

representatives are contesting. Therefore, the substantial sentence of

imprisonment may be restricted only to fine amount as per the dictum

in Babu Rao Vs. Nanjunda Settaru in C.R.P. No. 243 of 2009 dt.

10.07.2012 passed by the Hon'ble High Court of Karnataka.

13. Further placed reliance on the following authorities: Sunil Kumar

Jain Vs. Dinesh Kumar Jain(of the co-ordinate Bench of this Court) and M/s.

Indus Airways Pvt.Ltd & others Vs. M/s. Magnam Aviation Pvt.Ltd

(Crl.A.No.830 of 2014, dt.07.04.2014 of Hon'ble Supreme Court).

14. On the other hand, the learned counsel for the legal

representatives of the complainant pleaded that the trial and appellate

Courts have considered the facts and law in right perspective and

arrived at just conclusions as the defence put forth by the accused was NTR,J ::7:: crlrc_1206_2008 & batch

stale and unproved, the contention regarding the legally enforceable

debt and the insistence to display the accounts is unacceptable. Thus,

the revisions lacks merit and deserves dismissal.

15. I have carefully considered the rival pleadings and the materials

on record.

16. At the outset, the complainant's pleading that the

cheques/Exs:P-3 and P-4 in the three complaints were drawn on the

account of revision petitioner and those cheques are bearing the

signatures of the accused are not disputed by the accused. Further, the

accused as D.W.1 admitted his signature on Settlement Deed/Ex.P1

and on cheques/Exs.P3 and P4, however contested that they came into

existence in peculiar circumstances. Further, the presentment and

return of the cheques with an endorsement "stop payment by the

drawer" is clear by the record. To note, the Hon'ble Supreme Court in

Electronics Trade and Technology Vs. Indian Technologies and Engineers1 held

that even if the cheque is dishonoured because of stop payment

instructions to the bank, Section 138 of the Negotiable Instruments

Act would get attracted. The statutory notices dated 12.05.2004/Ex.P7

(1996) 2 SCC 739 NTR,J ::8:: crlrc_1206_2008 & batch

and P8 and the acknowledgements/Ex.P11 are establishing the service

on the Revision petitioner. That apart, the claim of the accused that he

got issued reply notice under Exs.D1 and D2 conclusively proving the

service of statutory notice.

17. These facts are prima facie satisfying the requirements for the

offence under Section 138 of the NI Act, in effect, the presumptions

under Section 139 of the NI Act shall be read in favour of the

complainant.

18. It is well settled that Rangappa Vs. Sri Mohan2, Basalingappa Vs.

Mudibasappa3 and Triyambak S.Hegde Vs. Sripad4 (Criminal Appeal

No.849/850/2011, dated 23.09.2021), the three Judge Bench of

Hon'ble Apex Court held that under Section 139 of the NI Act the

presumption that the cheque was issued in discharge of legally

enforceable debt will be raised and it is incumbent on the accused to

rebut the same.

19. Thus the onus shifts on to the accused to rebut the

presumptions. In defence, he proposed the following theory.

  (2010) 11 SCC 441

  (2018) 5 SCC 418

  (2022) 1 SCC 742
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(i)    His signatures on Exs.P1 to P3 were obtained under duress and

he also lodged police report on this aspect.

(ii) The complainant failed to prove his ability to lend and the legally

enforceable debt by placing the accounts and the income tax returns to

substantiate the alleged transaction.

20. The material is disclosing that the accused had lodged a police

report in Chilkalguda Police Station and the same was referred as

mistake of fact by the then investigating officer/P.W.3. On protest,

the learned Magistrate ordered for re-investigation, thereupon a final

report was filed. Thus the accused is contending that as the final

report is filed, his defence that he was kidnapped and the documents

and cheques were executed under duress, are being validated.

21. Though lodging of police report is a positive circumstance in

favour of the defence, the Court is bound to examine whether the

circumstance alone probabalises the defence to rebut the presumption.

22. It is pertinent to note that in the cross examination of

P.W.1/complainant, the accused specifically suggested that "the

settlement deed was executed at 4.00 pm., by the accused and that on

the same day evening the complainant's staff went to the office of the NTR,J ::10:: crlrc_1206_2008 & batch

accused and obtained cheques on his behalf. The complainant's

accountant Krishna Murthy and supplier Jameel and driver Akhil went

to the office of accused and received the cheques. Further the accused

was dropped at his residence by the complainant's driver after receipt

of cheques". These signatures are explaining the situation in contrast

to the claim that the cheques were obtained by force and on

kidnapping the accused.

23. Further the accused in his evidence as DW-1 failed to give

particulars as to where, when and how he was kidnapped and in which

circumstances he had executed the documents. Further, except the

pleading about lodging the report, the crime record has not been

placed. Moreover, the P.W.4/investigating officer spoke about filing

of final report against the accused, but nothing has been stated as to

what were the materials relied on to draw such conclusions. These

aspects, when considered in ordinary prudence, are effecting the

probability of existence of the accused pleaded circumstances, they are

not inspiring confidence.

24. The other aspects i.e. capacity of the complainant to lend money

and other accounts would be of substance only on successful rebuttal NTR,J ::11:: crlrc_1206_2008 & batch

of presumption by the accused. Mere a claim without substance, will

not refute the existing presumptions in favour of the complainant.

Therefore, the accused insistence for placing accounts and income tax

returns to prove the original transaction cannot be sustained.

25. This view is approved by the Hon'ble Supreme Court in the

dictum of Rohit Shaini Jeevalal Patel v. State of Gujarat5 where, in

para No. 19, it is held that "it is needless to reiterate that the result of

such presumption is that existence of a legally enforceable debt is to be

presumed in favor of the complainant, when such presumption is

drawn, the factors relating to the want of documentary evidence in the

form of receipts or accounts or want of evidence as regards source of

funds were not of relevant consideration while examining if the

accused has been able to rebut the presumption or not".

26. For the aforesaid, this Court is of the considered opinion that

the Courts below did not commit any error or no manifesting injustice

is found in the impugned judgments necessitating interference by this

Court. Accordingly, the revision petitions fail on merit.

    AIR 2019 SC, 1876
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27. However, on the aspect of sentence, considering the aspects of

death of the complainant and the transaction is of the year 2004 to

redress the loss on account of dishonour of cheque by way of

reparation directing to pay fine and on realization granting

compensation to the extent of the cheque amount, is found reasonable.

IN THE RESULT:

28. (i) Crl.R.C No.1206 of 2008: The concurrent finding of guilt

and conviction of the accused under Section 138 of the Negotiable

Instruments Act, is affirmed, however, the substantive sentence is

modified to the payment of fine of

Rs. Rs.4,20,000/- (Rupees four lakhs twenty thousand only) in default

shall undergo simple imprisonment for one year. On realization of the

fine amount, Rs.4,00,000/- (Rupees four lakhs only) shall be paid to

the complainant.

(ii) Crl.R.C No.1207 of 2008: The concurrent finding of guilt and

conviction of the accused under Section 138 of the Negotiable

Instruments Act, is affirmed, however, the substantive sentence is

modified to the payment of fine of Rs. Rs.4,20,000/- (Rupees four NTR,J ::13:: crlrc_1206_2008 & batch

lakhs twenty thousand only) in default shall undergo simple

imprisonment for one year. On realization of the fine amount,

Rs.4,00,000/- (Rupees four lakhs only) shall be paid to the

complainant.

(iii) Crl.R.C No.1208 of 2008: The concurrent finding of guilt and

conviction of the accused under Section 138 of the Negotiable

Instruments Act, is affirmed, however, the substantive sentence is

modified to the payment of fine of Rs. Rs.4,20,000/- (Rupees four

lakhs twenty thousand only) in default shall undergo simple

imprisonment for one year. On realization of the fine amount,

Rs.4,00,000/- (Rupees four lakhs only) shall be paid to the

complainant.

The accused is directed to pay the fine amount within a month

from the date of receipt of this common judgment, on failure the

accused shall surrender before the trial Court, and the trial Court shall

take necessary steps under law for execution of sentence.

29. In the above terms, these criminal revision petitions are disposed

of.

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As a sequel, miscellaneous petitions, pending if any, shall stand

closed.

________________ N. TUKARAMJI, J

Date:11.11.2022 Shr/ccm