Shaik Rasool, vs The State Of Ap Rep. By Its Pp Hyd., ...
2023 Latest Caselaw 179 Tel

              HON'BLE SRI JUSTICE K.SURENDER

         CRIMINAL REVISION CASE No.1542 OF 2006
JUDGMENT:

1. This Criminal Revision Case is filed questioning the

concurrent findings of conviction for the offence under Section

138 of the Negotiable Instruments Act, vide judgment in

C.C.No.743 of 2002 dated 10.01.2006 passed by the Judicial

Magistrate of First Class, Miryalaguda, which is confirmed by V

Additional District Judge, Miryalaguda vide judgment in Criminal

Appeal No.32 of 2006, dated 07.09.2006.

2. The case of the 2nd respondent is that her husband had

advanced loan of Rs.1.00 lakh when the petitioner/accused

approached him. Towards part repayment of the loan, a cheque

for an amount of Rs.90,000/- was given. The said cheque when

presented for clearance, was returned unpaid for the reason of

'insufficient funds'. After giving notice, since amount was not

paid by petitioner, complaint was filed.

3. Learned Magistrate having examined P.W.1/complainant

and marking Exs.P1 to P7 found that the petitioner was guilty for

the offence under Section 138 of the Negotiable Instruments Act

and convicted him to undergo rigorous imprisonment for a period

of one year and fine of Rs.5,000/- was imposed and further

compensation of Rs.90,000/- was directed to be paid.

4. Learned counsel appearing for the petitioner would submit

that both the courts below committed error in convicting the

petitioner for the offence under Section 138 of the Negotiable

Instruments Act. Both the Courts without considering the facts of

the case have concluded that there is enforceable debt and

petitioner is liable to be convicted. The Courts ought to have

considered the defence of the petitioner vis-a-vis the claim of the

complainant. The accused can discharge his liability by

preponderance of probability and the accused succeeded but

wrongly assessed by Courts and convicted. He relied on the

judgment of Hon'ble Supreme Court in the case of Anss

Rajashekar v. Augustus Jeba Ananth reported in (2020) 15

Supreme Court Cases 348) and argued that presumption was

rebuttal presumption and petitioner had discharged his burden

by preponderance of probability. However, the Courts below

failed to appreciate and committed error in convicting the

petitioner. He also relied on the judgment of Hon'ble Supreme

Court in the case of Basalingappa vs. Mudibasappa in Criminal

Appeal No.636 of 2019, dated 09.04.2019 and argued that when

the financial capacity of the complainant could not be proved, the

Hon'ble Supreme Court quashed the criminal complaint filed

under Section 138 of the Negotiable Instruments Act.

5. Both the Courts below having considered the evidence

found that the petitioner has failed to place any rebuttal

evidence. The case of the petitioner is that the

deceased/complainant did not have financial capacity to arrange

the amount of Rs.1.00 lakh, in fact, the deceased/ husband of

complainant, had borrowed amount from persons by name

Rosaiah, Koteshwar Rao and others. The signature on the cheque

and demand promissory were disputed. Though there is a denial

by the petitioner that the writings in the promissory note and

cheque were not his, no steps were taken to send the same to the

hand writing expert to ascertain that they were not signed by the

petitioner herein. The burden is on the petitioner/accused to

prove that the signatures were not his.

6. In Criminal Revision unless there is any illegality or

impropriety in the orders, the High Court in revisional

jurisdiction cannot normally re-appreciate the facts of the case

unless perversity is apparent. I do not find any such reasons to

interfere with the findings of fact. Further, the petitioner failed to

discharge the burden that is shifted on to him under Section139

of the Negotiable Instruments Act.

7. For the said reasons, there are no grounds to interfere with

the order of conviction. However, since the case is of the year

2000, and nearly 23 years have lapsed since, this Court deems it

appropriate to set aside the sentence of imprisonment and direct

that enhanced compensation of Rs.1,80,000/- shall be paid to

the 2nd respondent. The concerned Court shall cause appearance

of the parties. In the event of the petitioner not depositing

amount of Rs.1,80,000/- within three months from the date of

direction by the concerned Magistrate, the petitioner shall

undergo simple imprisonment of three months.

8. Accordingly, the Criminal Revision Case is disposed off. As a

sequel thereto, miscellaneous petitions, if any, shall stand closed.

__________________ K.SURENDER, J Date: 10.01.2023 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL REVISION CASE No.1542 OF 2006

Date:10.01.2023

kvs