Telangana High Court
Dr. Kalapala Surya Prakasha Rao, vs The State Of Ap Rep By Its Pp Hyd., And ... on 16 February, 2024
1
THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.265 OF 2011
O R D E R:
The present Criminal Revision Case is filed seeking to set
aside the judgment dated 25.01.2011 in Criminal Appeal No.198
of 2009 on the file of the learned I Additional Metropolitan
Sessions Judge, Hyderabad (for short, "the appellate Court") in
confirming the judgment dated 29.06.2009 in C.C.No.370 of 2008
on the file of the learned XV Additional-cum-XIX Chief
Metropolitan Magistrate, Hyderabad (for short, "the trial Court").
2. No representation on behalf of the petitioner. Heard
Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing
for respondent No.1 State. Perused the record.
3. There was no representation on behalf of the petitioner on
several occasions. Even today also there is no representation on
behalf of the petitioner inspite of listing the matter under the
caption, "for dismissal". Therefore, this Court is inclined to
proceed with the matter on merits of the case as per the decision
of the Hon'ble Apex Court in Bani Singh and others Vs. State of
Uttar Pradesh 1, wherein it was categorically held that the High
Court cannot dismiss any appeal for non-prosecution simpliciter
without examining the merits.
4. The brief facts of the case are that the petitioner/accused
and his wife approached respondent No.2/complainant in the
month of June, 2003 and requested for a hand loan of
Rs.14,00,000/- for purchasing a flat. On such request, the
complainant advanced an amount of Rs.14,00,000/- to the
accused on different dates and the complainant promised him
that he would repay the said amount as and when he would
retire from service. Even upon repeated demands, the accused
failed to keep up his promise. Finally, accused issued three
cheques bearing Nos.452611, 038601 and 038602 dated
07.12.2003, 17.02.2004 and 20.02.2004 respectively for an
amount of Rs.3,00,000/-, 5,00,000/- and 6,00,000/- respectively
towards part satisfaction of the amount due.
5. On presentation, the said cheques were dishonoured for the
reason "insufficiency of funds". The complainant informed the
same to the accused. But the accused requested the complainant
to present the cheques once again after some time. Upon such a
(1996) 4 Supreme Court Cases 720
request, the complainant represented the cheques after some
time. But the said cheques were again dishonoured for the same
reason. Therefore, the complainant issued legal notice to the
accused requesting him to repay the amount due within the
stipulated time. But the accused neither replied the notice nor
repaid the amount due. Hence, the accused was alleged to have
committed the offence punishable under Section 138 of the
Negotiable Instruments Act (for short, "NI Act").
6. The trial Court vide judgment cited supra, found the
accused guilty for the offence punishable under Section 138 of NI
Act and sentenced him to undergo simple imprisonment for one
year and pay fine of Rs.5,000/-, in default, to suffer simple
imprisonment for one month. Aggrieved thereby, the accused
preferred an appeal.
7. The appellate Court vide judgment cited supra, dismissed
the appeal confirming the judgment passed by the trial Court.
Assailing the same, the present Revision.
8. As per the grounds raised in the Revision, the petitioner
contended that the trial Court as well as the appellate Court
failed to appreciate the evidence available on record in proper
perspective and erred in passing their respective judgments.
Therefore, the petitioner prayed to set aside the impugned
judgment.
9. Learned Assistant Public Prosecutor opposed the same and
contended that respondent No.2 underwent severe mental agony
by roaming around the trial Court as well as the appellate Court.
He submitted that both the Courts upon appreciating the oral
and documentary evidence rightly passed their respective
judgments. But, as the matter is pending from the year 2011, he
seeks to pass appropriate orders.
10. The trial Court on behalf of the prosecution examined the
complainant himself as PW1 and marked Exs.P1 to P13. On
behalf of the defence, the wife of the accused was examined as
DW1 and Exs.D1 to D5 was marked. Upon careful scrutiny of the
oral and documentary evidence, the trial Court observed that the
accused has not issued any reply to the legal notice issued by the
complainant. It the accused has not borrowed any amount from
the complainant and when the complainant issued the notice
alleging that he had lent an amount to the accused, any person
in the position of the accused will controvert the same by sending
a reply. But the accused kept silent even after receipt of notice.
Non-issuance of the reply notice to the notice issued by the
complainant would be a strong circumstance to draw an
inference that accused had borrowed amount from the
complainant. Hence, relying upon the decision of erstwhile High
Court of Andhra Pradesh in B. Raja Krishnaji Vs. Kadam
Kandoji and another 2, the trial Court found the accused guilty
for the alleged offence and rendered the judgment cited supra.
The appellate Court found that the trial Court has given sufficient
reasoning for accepting the proper service of notice and therefore,
dismissed the appeal confirming the judgment passed by the trial
Court.
11. A perusal of the record shows that this Court vide order
dated 07.02.2011 suspended the sentence of imprisonment
alone imposed against the petitioner and enlarged him on bail on
his executing a bond for Rs.10,000/- with two sureties each for a
like sum each to the satisfaction of the learned XIX Additional
Chief Metropolitan Magistrate, Hyderabad. Thereafter, the matter
underwent several adjournments.
12. Having regard to the submissions made by both the learned
counsel and relying upon the decisions passed by the Hon'ble
2008 (1) ALT (Crl.) 205 A.P.
Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal 3, R.
Vijayan Vs. Baby 4, S.R. Sunil & Company Vs. D.
Srinivasavaradan 5, Mainuddin Abdul Sattar Shaikh Vs. Vijay
D. Salvi 6 and Somnath Sarka Vs. Utpal Basu Mallick 7, this
Court deems it appropriate to direct the petitioner/accused to
deposit an amount of Rs.14,00,000/- to the credit of the learned
XIX Additional Chief Metropolitan Magistrate, Hyderabad within a
period of one year from today, while reducing the sentence
imposed against the petitioner to the period of imprisonment
already undergone by him.
13. In default of payment of the said amount, the impugned
judgment dated 25.01.2011 in Criminal Appeal No.198 of 2009
on the file of the learned I Additional Metropolitan Sessions
Judge, Hyderabad stands good in all respects.
14. Upon depositing the said amount, respondent
No.2/complainant is granted liberty to withdraw the same with
immediate effect.
2010 (5) SCC 663
(2012) 1 SCC 260
(2014) 16 SCC 32
(2015) 9 SCC 622
2013 (16) SCC 465
15. With the above direction, the Criminal Revision Case stands
disposed of.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________
E.V. VENUGOPAL, J
Date: 16.02.2024
ESP
