Dodda Narayana Reddy vs The State Of Ap., Rep.Byits P.P And ...
2023 Latest Caselaw 2734 Tel

            THE HON'BLE SRI JUSTICE E.V.VENUGOPAL

           CRIMINAL REVISION CASE No.2209 OF 2011

ORDER:

1 Heard Sri G.Bhanu Prasad, learned counsel for the petitioner and

Sri Vizarath Ali, learned Assistant Public Prosecutor appearing for the

State - First respondent and Sri Kowturu Pawan Kumar, learned counsel

for the second respondent.

2 This criminal revision case is filed challenging the judgment dated

09.05.2011 passed in Crl.A.No.93 of 2007 on the file of the Court of the I

Additional Sessions Judge, Khammam, whereby the learned Additional

Sessions Judge allowed the appeal setting aside the judgement dated

27.06.2007 passed in C.C.No.855 of 2006 on the file of the Court of the

learned I Additional Judicial Magistrate of I Class, Khammam and

acquitted the petitioner for the offence under Section 138 of the

Negotiable Instruments Act.

3 The facts that led to the filing of the present revision are that the

petitioner herein being complainant filed a complaint before the learned

trial Court against the second respondent herein for an offence under

Section 138 r/w Section 142 of Negotiable Instruments Act. The case of

the petitioner is that the second respondent is his elder brother and that

the second respondent borrowed an amount of Rs.75,000/- for his family

and agricultural necessities by promising to repay the same within six

months. When the petitioner demanded for repayment of the amount,

the second respondent issued a cheque bearing No.090745 dated

20.05.2006 for Rs.75,000/- drawn on Andhra Bank, BSC Branch,

Khammam towards discharge of the loan amount. The petitioner

presented the said cheque in his banker - Union Bank of India,

Khammam for collection on 22.08.2006, but the said cheque was

returned unpaid with an endorsement 'funds insufficient' along with a

Memo dated 24.08.2006 of Union Bank of India and a Memo dated

23.08.2006 of Andhra Bank. Thereupon, the petitioner got issued a legal

notice dated 28.08.2006 to the second respondent calling upon him to

pay the cheque amount, but the same was returned with an endorsement

of postal authorities stating that 'addressee refused'. Hence, the

petitioner filed the complaint on 22.09.2006.

4 The second respondent was tried for the offence under Section 138

of N.I.Act. During the course of trial, on behalf of the petitioner P.Ws.1

and 2 were examined and Exs.P.1 to P.6 were marked.

5 After appreciating the entire material available on record, both oral

and documentary, the trial Court arrived at a conclusion that the

petitioner proved the guilt of the second respondent for an offence under

Section 138 r/w Section 142 of NI Act and accordingly convicted and

sentenced him to suffer simple imprisonment for one year and also to pay

Rs.1,50,000/- to the petitioner towards compensation under Section 357

(3) Cr.P.C. within one month from the date of judgment, in default, to

suffer simple imprisonment for three months, by judgment dated

27.06.2007. Aggrieved thereby, the second respondent preferred Criminal

Appeal No.93 of 2007 before the learned I Additional Sessions Judge,

Khammam, who, by judgment dated 09.05.2011 allowed the said appeal

by setting aside the judgment of the trial Court. Aggrieved, the

complainant filed the present criminal revision case.

6 The learned counsel for the petitioner / complainant vehemently

contended that taking aid of the judgment of the Hon'ble Supreme Court

in M.S.Narayana Menon @ Mani Vs. State of Kerala 1, the trial Court

has rightly observed that it is for the accused to prove that how the

cheque came into the hands of the complainant and that the complainant

foisted a false case against the accused. It is his further contention that

the appellate Court lost sight of the presumption under Section 118 and

138 of the N.I.Act that it is to be presumed that the negotiable

instrument (including a cheque) had been made or drawn for

consideration. He further submitted that the burden is on the second

respondent who failed to discharge the same.

2007 (1) ALT (Cri.) 103 (SC)

7 As seen from the record, P.W.1 admitted that panchayats were

held between him and the second respondent wherein some details were

noted about the settlements and payment of Rs.1,10,000/- to him by the

second respondent and that the second respondent admitted that he

received Rs.30,000/- and Rs.25,000/- from P.W.1 in some other occasion.

But those documents were not marked as exhibits. It is to be noted that

though the petitioner denied the suggestion that there were no disputes

between him and the second respondent, panchayats held between the

parties and in those panchayats some settlement was arrived at between

the parties and both parties attested the same. In such circumstances it

has to be seen whether P.W.1 had discharged the burden of proof lies on

him to show that still there was some outstanding due from the second

respondent and in discharge of that the second respondent issued the

said cheque. So the initial onus which lies on the complainant was not

successfully discharged. He failed to prove that there was legally

enforceable debt and in discharge of such debt the second respondent

issued the cheque in question. When once the second respondent failed

to discharge the burden lies on him, question of rebutting the same by

the second respondent does not arise. Moreover, no documentary proof

was adduced by the complainant to show that the second respondent

owe certain amounts to him. Therefore, the petitioner failed to discharge

the initial burden lies on him and on the other hand the second

respondent established the improbability of having money transactions

between them in view of the disputes between him and the petitioner

even prior to the date of the alleged transaction done under Ex.P.1

cheque and that the petitioner foisted a false case by forging his

signature. So the presumption under Sections 118 and 139 of the Act

have been successfully rebutted by the second respondent.

8 In that view of the matter, this criminal revision case fails and the

judgment of the appellate court is upheld.

9 In the result, the criminal revision case is dismissed confirming the

judgment dated 09.05.2011 passed in Crl.A.No.93 of 2007 on the file of

the Court of the I Additional Sessions Judge, Khammam is confirmed.

10 Miscellaneous petitions, if any, pending in this criminal revision

case shall also stand dismissed.

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E.V.VENUGOPAL, J.

Date: 26.09.2023 Kvsn