Telangana High Court
Bhukya Rambabu, vs Dr.T.Veera Raghavaiah, on 29 February, 2024
1
THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL REVISION CASE No.2018 OF 2011
O R D E R:
The present Criminal Revision Case is filed aggrieved by the
judgment dated 01.07.2011 in Criminal Appeal No.94 of 2010 on
the file of the learned II Additional Sessions Judge (Fast Track
Court), Khammam (for short, "the appellate Court") in confirming
the judgment dated 03.06.2010 in C.C.No.10 of 2009 on the file
of the learned Judicial Magistrate of First Class, Bhadrachalam
(for short, "the trial Court").
2. Heard Mr. Y. Pulla Rao, learned counsel representing
Mr. S. Madan Mohan Rao, learned counsel for the petitioner and
Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing
for respondent No.2 State.
3. The brief facts of the complaint are that on 03.12.2006, the
petitioner/accused borrowed an amount of Rs.4,00,000/- from
respondent No.1/complainant to clear his liabilities and executed
a promissory note agreeing to repay the said amount with
interest @ 24% per annum. Upon several requests made by the
complainant, the accused issued a cheque bearing No.785022
dated 29.07.2008 for an amount of Rs.5,00,000/- in discharge of
debt. On presentation, the said cheque was returned with an
endorsement "funds insufficient". Thereafter, the complainant
issued a legal notice dated 05.08.2008 demanding the accused to
pay the cheque amount. But accused failed to repay the amount
due. Hence, the accused was alleged to have committed the
offence punishable under Section 138 of the Negotiable
Instruments Act (for short, "the NI Act").
4. The trial Court vide judgment cited supra found the
accused guilty for the alleged offence and sentenced him to suffer
simple imprisonment for one year and pay compensation of
Rs.5,00,000/-, within a month from the date of the said
judgment. Aggrieved thereby, the petitioner preferred an appeal.
5. The appellate Court vide judgment cited supra, dismissed
the appeal confirming the judgment passed by the trial Court.
Assailing the same, the present Revision.
6. During the course of hearing, learned counsel for the
petitioner stated that the trial Court as well as the appellate
Court concurrently found the petitioner guilty for the offence
punishable under Section.138 of N.I.Act. Learned counsel relied
upon the order dated 18.04.2017 passed by this Court in
Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and Crl.R.C.No.2887 of
2015, wherein and whereby, this Court upon taking into
consideration the decisions passed by the Hon'ble Supreme Court
in Damodar S. Prabhu Vs. Sayed Babalal 1, R. Vijayan Vs.
Baby 2, S.R. Sunil & Company Vs. D. Srinivasavaradan 3,
Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi 4 and
Somnath Sarka Vs. Utpal Basu Mallick5, wherein it was held
that, the object of incorporating the penal provisions under
Sections 138 to 142 of the NI Act is not only to provide a strong
criminal remedy to deter the high incidence of dishonour of
cheques but a remedy of punitive nature and observed that where
there is a conviction, there should be a consequential levy of fine
amount sufficient to cover the cheque amount along with simple
interest thereon at a fixed rate of 9% per annum and held that
the interest should be followed by an award of such sum as
compensation from the fine amount. However, to meet the ends
of justice, this Court modified the sentence of six months of
simple imprisonment with fine of Rs.10,000/-, to imprisonment
till rising of the day by giving set off to the period undergone if
any and fine of Rs.10,00,000/- of which Rs.50,000/- would go to
2010 (5) SCC 663
(2012) 1 SCC 260
(2014) 16 SCC 32
(2015) 9 SCC 622
2013 (16) SCC 465
the State and Rs.9,50,000/- as compensation to the complainant
which includes Rs.10,000/- fine if paid to adjust and out of it in
compensation received by complainant, for the balance to pay or
deposit within one month from that day, failing which, the
accused was to suffer the default sentence of six months simple
imprisonment for the lower Court to levy under Section 421 of
Cr.P.C. and enforce it. Therefore, he seeks to pass appropriate
orders relying upon the said order.
7. Learned Assistant Public Prosecutor opposed the same and
contended that respondent No.1 underwent severe mental agony
by roaming around the trial Court as well as the appellate Court.
Learned counsel submitted that both the Courts upon
appreciating the oral and documentary evidence rightly passed
the impugned judgments. But, as the matter is pending from the
year 2011 learned counsel sought to pass appropriate orders.
8. On behalf of the complainant, the trial Court examined
respondent No.1 himself as PW1 and marked Exs.P1 to P8. On
behalf of the defence, none were examined and no document was
marked. Upon careful scrutiny of the oral and documentary
evidence, the trial Court observed that the accused has not put
any questions during the cross-examination of PW1 touching the
defence set up by him except bare suggestions with regard to the
acquaintance between the parties, lending amount and showing
the lent amount in the income tax assessment of the complainant
etc. The accused failed to take any specific or exact defence to
disprove the claim of the complainant.
9. Therefore, as per Section 139 of NI Act, it shall be presumed
that, unless a contrary is proved, the holder of a cheque received
the cheque referred under Section 138 of NI Act in discharge of
any debt or other liability either whole or in part. In the instant
case, the accused failed to prove anything contrary to such
presumption. As per Section 118 of the NI Act, unless and until
the contrary is proved, it can be presumed that the cheque has
been issued for consideration only. As the accused failed to lead
any rebuttal evidence, the trial Court presumed that the accused
issued Ex P8 initially for consideration and in discharge of the
same, issued Ex P1 in favour of the complainant. Thus, the
presumption under Section 118 of NI Act was found applicable to
the present facts and circumstances of the case. Further,
accused failed to take steps for sending Ex P1 or Ex P8 to expert
opinion, to prove the forgery. Therefore, the trial Court
successfully concluded that the complainant proved the essential
ingredients of the alleged offence beyond reasonable doubt. The
appellate Court also re-appreciated the evidence available on
record in the same lines and held the accused guilty for the
offence under Section 138 of NI Act.
10. In the present case on hand, both the Courts held that the
petitioner was guilty for the offence punishable under Section
138 of I.P.C., which finding, in my considered view, does not call
for interference, in the exercise of revisional jurisdiction under
Section 397 Cr.P.C.
11. Having regard to the submissions made by both the learned
counsel, on perusing the order dated 18.04.2017 passed by this
Court in Crl.R.C.M.P.Nos.1708 & 1709 of 2016 in/and
Crl.R.C.No.2887 of 2015, upon considering the fact that the
petitioner suffered mental agony and hardship during the course
of litigation before the trial Court as well as the appellate Court
and as thirteen long years have elapsed from the date of filing of
this Revision, this Court is inclined to reduce the sentence
imposed against the petitioner to the period of imprisonment
already undergone by him and direct the petitioner to pay the
compensation of Rs.5,00,000/- to the credit of the trial Court
within three months from today.
12. In default of payment of the said compensation, the
judgment dated 01.07.2011 in Criminal Appeal No.94 of 2010 on
the file of the learned II Additional Sessions Judge (Fast Track
Court), Khammam stands good in all respects.
13. Upon depositing the said amount, respondent No.1/
complainant is granted liberty to withdraw the same with
immediate effect.
14. With the above direction, the Criminal Revision Case stands
disposed of. Needless to mention, the petitioner is at liberty to
work out the remedies available under law.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________
E.V. VENUGOPAL, J
Date: 29.02.2024
ESP
