Kanaka Durga Vaddera Labour, Hyd ... vs The State Of Telangana, Rep Pp And ...
2023 Latest Caselaw 2303 Tel

             THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
              CRIMINAL REVISION CASE NO.350 OF 2017
ORDER :

This Criminal Revision Case is filed under Sections 397 and 401

of Criminal Procedure Code ('Cr.P.C.') by the petitioners aggrieved by

the Judgement passed by learned VIII Additional Sessions Judge,

Ranga Reddy District at LB Nagar in Criminal Appeal No.170 of 2014

dated 30.12.2016 wherein the conviction and sentence to suffer simple

imprisonment for a period of one year and to pay a fine of Rs.5,000/-

awarded to the 2nd petitioner by the learned Special Magistrate-I,

Malkajgiri, vide judgment in CC No.5 of 2013 dated 25.02.2014 was

confirmed.

2. Heard Sri M.Rathan Singh, learned counsel for the

petitioner, Sri Vizarath Ali, learned Assistant Public Prosecutor,

representing learned Public Prosecutor for the State/1st respondent and

Sri Subba Rao MV, learned counsel representing Sri Prasad Sanaka

learned counsel for the 2nd respondent.

3. CC No.5 of 2013 before the learned Special Magistrate-I,

Malkajgiri, was registered under Section 138 of Negotiable Instruments

Act (NI Act) for dishonour of cheque bearing Nos.827959 and 829760,

both dated 30.05.2011 each for Rs.50,000/- drawn on Canara Bank,

Sainikpuri Branch, Secunderabad, issued by the 2nd petitioner being

the proprietor of petitioner No.1 towards discharge of legally enforceable

debt of Rs.1,00,000/- loan. The trial Court, upon considering the

entire evidence on record in the form of PWs.1, DWs.1 and 2, Exs.P1 to

P11, Ex.D1 and Ex.X1, found the petitioners guilty, convicted and

sentenced the 2nd petitioner, as stated above. The said findings were

confirmed by the appellate Court vide judgment in Criminal Appeal

No.170 of 2014.

4. Aggrieved by the findings of both the Courts below, the

petitioners filed the present criminal revision case contending that both

the Courts below have erroneously found the petitioner guilty without

appreciating the evidence available on record in a right perspective and

without there being any legally enforceable debt. On the other hand,

learned Assistant Public Prosecutor and learned counsel for the 2nd

respondent have vehemently opposed the present criminal revision case

stating that the findings of both the Courts below are well reasoned and

interference of this Court is not warranted.

5. The case of the 2nd respondent through the complaint, his

evidence as PW1 and also the legal notice/Ex.P5 is that in the 1st week

of May, 2009 the 2nd petitioner approached him and borrowed an

amount of Rs.1,00,000/- and executed a promissory note under Ex.P11

promising to repay the same on demand but failed to repay the same

and issued Exs.P1 and P2 cheques towards discharge of the said legally

enforceable debt but on presentation, Exs.P1 and P2 were dishonoured

under Exs.P3 and P4 memos with endorsement account closed and

accordingly he issued Ex.P5 notice through Ex.P6 and P7 postal

receipts and as per Exs.P8 and P9 postal acknowledgments, the

petitioners received the same but failed to repay the loan amount and

under Ex.P10 they gave a reply with false contentions.

6. The defence of the petitioners before the trial Court was

that during the year 2003 petitioner No.1 society availed loan of

Rs.1,00,000/- from the 2nd respondent and gave two promissory notes

and three blank signed cheques, including the subject cheqeus towards

security and they repaid the same but the 2nd respondent, inspite of

receipt of the said amount, returned back one promissory note and one

cheque keeping the subject promissory note/Ex.P11 and two

cheques/Exs.P1 and P2 with him and later with the help of those

documents he filed the present case. 2nd petitioner got examined

himself as DW1 apart from examining one V.Venkataiah as DW2, who

accompanied him at the time of his taking loan from the 2nd

respondent.

7. It is also the evidence of DW1 that he repaid the said loan

amount in three instalments i.e. Rs.45,000/- under cheque bearing

No.591056, Rs.50,000/- under cheque bearing No.603090 dated and

Rs.40,000/- under cheque bearing No.59217. The 2nd respondent

denied receipt of above amounts and Ex.C1 statement of account of

petitioner society also does not reflect those amounts at the relevant

point of time in the account of the petitioner No.1. If the petitioners

have really paid the amounts through the above cheques, definitely it

would have reflected in their statement of account. In view of non-

reflection of the above said cheques in Ex.C1 the defence set-up by

them does not stand for legal scrutiny weakening their case. The 2nd

petitioner himself admitted his signatures on Exs.P1, P2 and P11. He

failed to establish his case that the subject cheques and promissory

note were given to the 2nd respondent in respect of earlier transaction

and inspite of closing the said transactions, by stating that some of the

instruments were missing, he did not return Exs.P1, P2 and P11 to the

petitioners and by using those instruments, filed the present case. In

view of the above, it can be safely held that the petitioners failed to

rebut the presumption under Sections 139 and 118(A) of Negotiable

Instruments Act. The petitioners did not dispute receipt of Ex.P5.

Further they got issued reply under Ex.P10.

8. In view of the above, this Court is of the considered view

that the 2nd respondent, after complying with all procedural aspects,

has filed the case against the petitioners and by adducing cogent and

convincing evidence, could able to establish the guilt of the petitioners

for dishonour of the cheques, issued in discharge of legally enforceable

debt. The Courts below, upon considering the entire evidence on

record, have rightly found guilty of the petitioners and convicted the 2nd

petitioner being the owner of the 1st petitioner.

9. Learned counsel for the petitioner while relying upon the

decision of this Court rendered in Yalla Ram Naresh Naidu Vs. Yalla

Rama Tulasi and another (Crl.P.No.3476 of 2011) contended that the

appellate court had dismissed the appeal inspite of the absence of the

appellant/petitioner No.2 due to ill-health and therefore, requested to

stay execution of the conviction awarded by the trial Court. On perusal

of the judgment in Criminal Appeal No.170 of 2014 on the file of the

learned VIII Additional Sessions Judge, Ranga Reddy District at LB

Nagar, this Court is of the considered view that the above findings are

made basing on the material available on record including the evidence

and hence, the objection raised by the petitioners in this regard cannot

be given any credence.

10. So far as the sentence of imprisonment, imposed against

the petitioner No.2 is concerned, from the inception of case i.e. from the

year 2013 the 2nd petitioner has been roaming around the Courts for

defending himself by facing mental agony and trauma. This itself is a

sufficient ground to take a lenient view in so far as the sentence of

simple imprisonment imposed on the 2nd petitioner by the Courts below

is concerned. Therefore, the sentence of simple imprisonment for a

period of one year imposed to the 2nd petitioner is hereby reduced to

that of the period of imprisonment which he has already undergone

directing him to pay a compensation amount equivalent to double the

cheques' amount to the 2nd respondent while upholding the fine

amount imposed by the trial Court. In default of payment of

compensation amount, the petitioner shall undergo the period of

imprisonment imposed by the Courts below.

11. Except the above modification in respect of period of

sentence of simple imprisonment, this criminal revision case in all

other aspects is dismissed. Interlocutory applications, if any pending,

shall stand dismissed.

____________________ E.V.VENUGOPAL, J Dated :13-09-2023 abb