N.Gowri Shankar, Secunderabad., vs The State Of Telangana, Rep Pp And ...
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THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

        CRIMINAL REVISION CASE No.490 OF 2016

ORDER:

This Criminal Revision Case directed against the

judgment dt.29.09.2015 passed by the III Additional

Metropolitan Sessions Judge, Hyderabad, in Criminal Appeal

No.668 of 2013, wherein and whereunder, the learned Sessions

Judge confirmed the judgment dt.30.10.2012 passed by the

learned XII Special Magistrate, Hyderabad, in C.C. No.176 of

2011.

2. The revision petitioner herein is the complainant in C.C.

No.668 of 2013, whereas respondent No.1 is the State and

respondent No.2 is the accused. For convenience, the parties

hereinafter will be referred to as they are arrayed in the C.C.

before the trial Court.

3. Brief facts of the case of the complainant are as follows:

The complainant is a father of the accused. They are

partners of M/s Sri Rama Banaras Silk House and M/s Rama

Textiles, along with the mother of the accused, N. Rama Devi

and T. Ramalingam. The partnership business has been

running since 01.04.1996. The accused is the Managing 2 RRN,J Crl. RC No.490 of 2016

Partner in both Firms, and Mr. T. Ramalingam was looking

after the day-to-day accounts and cash maintenance. The

complainant and his wife N. Rama Devi, were sleeping

partners. Within a few years of starting the business, the

accused started acted unilaterally. They disregarded the advice

given by the complainant and started making decisions without

any regard for the complainant. No accounts were re-

conciliated after 01.04.2001 to avoid the income tax problem,

as advised by the auditor. In the month of July, 2004, the

accused sent back the stocks to the Sundry Creditors without

the consent of the remaining partners. The accused has taken

away stocks worth Rs.8.00 lakhs and, kept the same in his

custody and had been selling them. The accused was also

collecting all the dues from Sundry Creditors of the Firm.

3(1) Due to the attitude of the accused, the complainant

lodged a complaint in Mahankali Police Station on 31.12.2005.

The complainant has given two cheques for Rs.4.00 lakhs each

towards the stocks brought by the accused and kept under his

custody. Two cheques for Rs.3.00 lakhs each were issued

towards payment of Rs.5,000/- per month for utilizing the

furniture. In total, the accused has executed relevant

documents for the above said purpose of business, and the 3 RRN,J Crl. RC No.490 of 2016

accused issued all six (6) cheques amounting to

Rs.21,39,301.85 paise. On presentation of the said cheques,

they came to be bounced with an endorsement "funds

insufficient." Thereafter, the complainant got issued a notice

under Section 138(b) of the Negotiable Instruments Act (for

short, "the NI Act") and the accused received the notice, but

there was no response and he chose not to pay the amount

covered under the cheques. As such, the complainant filed a

private complaint.

4. The learned Magistrate, took the complaint on file.

During the course of trial, the complainant examined himself

as PW.1 and got marked Exs.P-1 to P-13. On behalf of

accused, DWs 1 to 4 were examined and marked Ex.D1 to

D10..

5. The learned Magistrate after considering the evidence on

record, found that the accused was not guilty for the offence

punishable under section 138 of NI Act. The complainant

preferred an appeal, and the III Additional Metropolitan

Sessions Judge, Hyderabad, also confirmed the judgment of

the trial Court by acquitting the accused. Aggrieved by the 4 RRN,J Crl. RC No.490 of 2016

same, the complainant preferred the present criminal revision

case before this Court.

6. Heard the learned Counsel appearing for the

complainant, learned Public Prosecutor appearing for the State,

and the learned Counsel appearing for the accused.

7. It has been contended by the learned Counsel for the

complainant that the Courts below failed to appreciate that the

accused has admitted his signature on the cheques and the

burden is on the accused to prove his innocence, and that the

burden was erroneously shifted on the complainant. He

further contended that the Courts below failed to appreciate

the totality of evidence, both documentary and oral evidence in

the backdrop of the allegations in the complaint. Accordingly,

prayed to allow the revision case.

8. Per contra, the learned Counsel for the respondent-

accused submitted that the Courts below properly appreciated

the evidence on record and reached a proper conclusion, which

warrants no interference by this Court.

                                                5                                     RRN,J
                                                                    Crl. RC No.490 of 2016

9.           In     Sanjaysinh            Ramrao         Chavan     Vs.    Dattatray

Gulabrao Phalke and others 1 the Hon'ble Apex Court held as

follows:

Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.

10. Now, the point for determination is:

Crl. Appeal No.97 of 2105 dt. 16.01.2015 6 RRN,J Crl. RC No.490 of 2016

Whether the complainant is entitled for setting aside the concurrent judgments of the Courts below acquitting the accused for offence punishable under Section 138 of N.I. Act?

11. POINT:

It is the specific case of the complainant that he, the

accused, the wife of the complainant and one T. Ramalingam

were the partners of the cloth business. In that business, the

accused took away the stocks worth Rs.8.00 lakhs, and he was

enjoying the same. With regard to utilizing the furniture also,

in all, he also gave six cheques for Rs.21,39,301-85 paise and

in support of the cheques, he executed Ex.P11 to P13

promissory notes. On presentation of said cheques, they were

dishonoured with an endorsement "funds insufficient", and the

same was intimated to the accused by way of legal notice.

12. It is observed by both the Courts below that the accused

admitted his signature on the promissory notes, but he denied

the execution and passing of consideration. With regard to this

aspect, the learned counsel for the accused relied upon a

decision reported in M/s Veera Constructions, represented by

its Managing Director and two others Vs. R. Karthick, which

Madras High Court delivered on 09.06.2015 wherein it was 7 RRN,J Crl. RC No.490 of 2016

held that there is a vast difference between the proof of

execution of the promissory note and the proof of signature of

the executants in the document. It is also observed that

though the signatures are admitted by the accused, it will not

automatically go to prove the execution of the promissory note.

He also relied upon the judgment in Shaji Vs. Ignatious 2

wherein it was held that

"Negotiable Instruments Act 1881 - Sections 138 and 139 - Legally recoverable debt - Presumption as to, under Section 139 - Not available when very execution of cheque not proved by evidence of PW.1 - Without proving promissory note and the consideration for that promissory note, it is not possible to uphold the case of the complainant that Ext.P1 cheque was issued towards payment of the amount covered by the promissory note. The case could have been upheld only on establishing that the amount covered by the promissory note was a legally recoverable debt - Weakness of defence case will not enable complainant to accept his case or to get a verdict of guilt against accused without establishing ingredients of offence."

In this decision, it was observed that when the very execution

of the cheque and promissory note is not proved, it is not

possible to uphold the case of the complainant that the cheque

2009(2) ALD (Crl.) (NOC) 15(Ker.), 8 RRN,J Crl. RC No.490 of 2016

was issued for payment of the amount under the promissory

note and the weakness of the defence case will not enable the

complainant to accept his case.

13. The Courts below observed that in the instant case, no

doubt, the accused admitted his signatures on Ex.P11 to P13

promissory notes, but he denied the execution and passing of

consideration. So, the complainant has to prove the execution

of the promissory note and passing of consideration under the

promissory notes. The complainant's wife Smt. N. Ramadevi

and one Shankara Rao are shown as witnesses to the

promissory notes, but the complainant did not choose to

examine them. Moreover, the complainant has not filed any

documentary evidence with regard to the stocks said to have

been taken away by the accused and kept in his custody, and

also with regard to utilizing the furniture and that he issued

cheques. Two business firms are not dissolved till the

judgment of the trial Court, no suit is filed to dissolve the

Firms and Rendition of Accounts. In the said circumstances,

the accused is not liable to pay any amounts to the

complainant, the individual partners liability will be fixed only

after the rendition of accounts of business Firms. Therefore,

the complainant cannot claim the alleged accounts as legally 9 RRN,J Crl. RC No.490 of 2016

liable amount based on Ex.P1 to P6 and Ex.P11 to P13. PW.1

failed to prove the execution of Ex.P1 to P6 and Ex.P11 to P13.

It is observed by the trial Court that the documents contain

signature in different inks and the other contents in different

ink. The complaint is filed in the individual capacity and not

as partners of the Partnership Firms. It is observed that

during the evidence of PW.1, he deposed that the Firms are

liable to pay the amount to him. The accused, being Managing

Partner, issued cheques Ex.P1 to P6 in the discharge of the

Firm's liability towards the complaint and his wife as partners.

The contents of the complaint do not disclose the said fact.

The complainant failed to prove that the Firms referred in

Ex.D1 and D2/Xerox copies of partnership deeds

dt.01.04.1996 and that they are liable to pay the amount of

Rs.21,39,301-85 paise to him and cheques Ex.P1 to P6 were

issued in discharge of such liability as the Managing Partner.

In the said circumstances, the complainant failed to prove the

case against the accused beyond all reasonable doubt and the

accused is liable to be acquitted. Thus, this Court does not

find any merit in the contention of the learned counsel for the

accused for setting aside the judgments of the Courts below.

                             10                                    RRN,J
                                                 Crl. RC No.490 of 2016

14. Accordingly, the Criminal Revision Case is dismissed by

confirming the judgment dt.29.09.2015 passed by the III

Additional Metropolitan Sessions Judge, Hyderabad, in

Criminal Appeal No.668 of 2013, wherein and whereunder, the

learned Sessions Judge confirmed the judgment dt.30.10.2012

passed by the learned XII Special Magistrate, Hyderabad, in

C.C. No.176 of 2011.

Miscellaneous petitions, if any, pending shall stand closed.

_____________________________________ NAMAVARAPU RAJESHWAR RAO, J

Date: 01.11.2023 BDR