Telangana High Court
Smt.Ghousia Begum, Hyd., vs Murad Pasha Died As Per Lrs., And 2 Otrs, ... on 4 July, 2024
1
THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.1017 OF 2014
O R D E R:
The present Criminal Revision Case is filed seeking to set
aside the judgment dated 15.04.2014 in Criminal Appeal No.1081
of 2014 on the file of the learned III Additional Metropolitan
Sessions Judge, at Hyderabad (for short, "the appellate Court") in
modifying the judgment dated 08.10.2012 in C.C.No.319 of 2010
on the file of the learned XVI Additional Judge-cum-XX
Additional Chief Metropolitan Magistrate, Hyderabad (for short,
"the trial Court").
2. Heard Mr.Mirza Nisar Ahmed Baig Nizami, learned counsel
for the petitioner and Mr.Rama Kotaiah, learned Assistant Public
Prosecutor appearing for respondent No.3-State. No
representation on behalf of respondent Nos.1 and 2. Perused the
record.
3. The brief facts of the case are that, the husband of the
petitioner/accused was acquainted with respondent
No.1/complainant and his wife/respondent No.2. Out of such
acquaintance, on 23.01.2008, the accused along with her
husband approached respondent No.1 and requested him to
advance an amount of Rs.1,00,000/- as hand loan. On such
request, respondent No.1 lent an amount of Rs.1,00,000/- as a
hand loan through a cheque bearing No.968755 dated
23.01.2008 drawn on State Bank of Hyderabad, Sanathnagar
Branch and the accused credited the said amount into her
Savings Bank account. Thereafter, accused executed a deed of
acknowledgment and issued two post dated cheques bearing
Nos.603854 and 603855 dated 10.08.2008 for Rs.50,000/- each
drawn on Karur Vysya Bank Limited, Kalyan Nagar Branch,
Hyderabad in favour of the respondent No.1 towards discharge of
the loan amount.
4. It is stated that on 15.01.2009, respondent No.1 presented
the aforesaid cheques in his account for realization and the same
were returned unpaid along with cheque return memos dated
16.01.2009 for the reason "no funds available" in the account of
the accused. Then, respondent No.1 issued legal notice dated
24.01.2009 to the accused demanding her to pay the amount
covered under the cheque within the stipulated time. But the
accused failed to pay the amount. It is stated that respondent
No.1 executed a General Power of Attorney in favour of his
wife/respondent No.1, permitting her to represent the case on his
behalf. Subsequently, respondent No.1 died. Hence, respondent
Nos.1 and 2 filed a complaint against the petitioner/accused for
the offence under Section 138 of the Negotiable Instruments Act
(for short, "NI Act").
5. The trial Court vide judgment dated 08.10.2012 in
C.C.No.319 of 2010 found petitioner/accused guilty for the
offence under Section 138 of the NI Act and sentenced him to
undergo simple imprisonment for a period of one year and to pay
fine of Rs.5,000/-, in default of payment of fine, he was directed
to suffer simple imprisonment for a period of one month.
Aggrieved by the same, the petitioner preferred an appeal.
6. The appellate Court vide impugned judgment, modified the
judgment passed by the trial Court and sentenced the
petitioner/accused to pay an amount of Rs.1,50,000/- as
compensation within 30 days from the date of the judgment. In
default of payment of the compensation amount, the accused was
directed to undergo simple imprisonment for a period of six
months. Assailing the same, the present Revision.
7. Learned counsel for the petitioner contended that the trial
Court and the appellate Court failed to appreciate the evidence
available on record in proper perspective and erroneously passed
their respective judgments. He further contended that the trial
Court, upon death of respondent No.1, permitted respondent
No.2 to come on record and continue the proceedings on behalf of
deceased respondent No.1, basing on a memo when specific
provision is provided under Criminal Procedure Code and the
same is untenable. Therefore, he seeks to set aside the impugned
judgment.
8. Learned Assistant Public Prosecutor contended that both
the Courts, upon careful scrutiny of the evidence available on
record, have rightly passed their respective judgments and
interference of this Court is unwarranted. Therefore, he seeks to
dismiss the Revision.
9. On behalf of the complainant, the trial Court examined
PWs.1 and 2 and marked Exs.P1 to P9. On behalf of the defense,
none were examined and no document was marked. Upon careful
scrutiny of the oral and documentary evidence the trial Court
observed that the evidence of PWs.1 and 2, coupled with Ex P1,
Ex P2-cheques, Ex P3-acknowledgment and Ex P6-statutory
notice, would clinchingly establish that the accused had issued
Exs.P1 and P2 cheques in favour of the deceased respondent
No.1 in discharge of her legally enforceable debt. The oral
evidence of PW1 is reliable, unshaken and consistent with the
documentary evidence. It is established by respondent No.2 that
her husband dispatched Ex P6-statutory notice to the accused
calling upon her to pay the amount covered by both the cheques
within stipulated period. The said statutory notice was received
by the accused. The accused, in her, Section 313 Cr.P.C.
examination categorically admitted that she received Ex P6
statutory notice from the deceased respondent No.1 but, she
failed to give any reply. Therefore, relying upon the decision
passed by the erstwhile High Court of Andhra Pradesh in B. Raja
Krishnaji Vs. Kadam Kandoji and another 1, the trial Court
found the accused guilty of the offence under Section 138 of the
NI Act and rendered the judgment dated 08.10.2012 in
C.C.No.319 of 2010.
10. The appellate Court, upon re-appreciating the evidence
available on record observed that the death of respondent No.1
will not abate the proceedings and the learned Magistrate has
power to continue the proceedings by bringing respondent No.2
on record as legal heir of deceased respondent No.1. The learned
Judge of the appellate Court found that the accused admitted her
signatures on Exs.P1 and P2 and hence, presumption under
2008 (1) ALD (Crl.) 300 (AP)
Section 139 of the NI Act arises, which states that the accused
issued the subject cheques in discharge of legally enforceable
debt. But the accused failed to rebut the said presumption basing
on preponderance of probabilities and thus, found that the
complainant proved the ingredients under Section 138 of the NI
Act and rendered the impugned judgment.
11. This Court vide order dated 08.05.2014 suspended the
operation of sentence imposed against the petitioner on condition
of the petitioner furnishing a personal bond for Rs.10,000/- with
two sureties for a like sum to the satisfaction of the trial Court
and also on deposit of a sum of Rs.75,000/- in the trial Court
within a period of sixty days from that day. On such deposit,
respondent No.2 was permitted to withdraw the same without
furnishing any security. Nothing is available on record to show
that the order passed by this Court has been complied with.
12. In the case on hand, both the Courts held that the
petitioner was guilty of the offence punishable under Section 138
of NI Act, which finding, in my considered view, does not call for
interference, in exercise of revisional jurisdiction under Section
397 Cr.P.C.
13. In view of the facts and circumstances of the case and
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 ten long years have
elapsed from the date of filing of this Revision, this Court is
inclined to take a lenient view and reduce the amount of
compensation, as awarded by the appellate Court to
Rs.1,25,000/- instead of Rs.1,50,000/-. The petitioner is directed
to pay the said amount within a period of one year from the date
of receipt of a copy of the order. If the petitioner fails to comply
with the aforesaid direction, he shall suffer simple imprisonment
for a period of six (6) months.
14. Except the above modification, the Criminal Revision Case
in all other aspects, stands dismissed.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________
E.V.VENUGOPAL, J
Date: 04.07.2024
ESP
