Telangana High Court

Col. V.G.G.Rao vs The State Of A.P. And Another on 31 July, 2024

    THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI

         CRIMINAL REVISION CASE No.398 OF 2008


% Dated:31.07.2024

# Col V G G Rao, S/o. Sri V G Naidu,
  Aged 60 years, Occ: Ex-Serviceman,
  R/o. Mathura Nagar, R.K.Puram,
  Ranga Reddy District                            .. Petitioner

            And

$ The State represented by the,
  Public Prosecutor,
  High Court of AP, Hyderabad [AP] & another .. Respondents


! Counsel for petitioner     : Mr. V.S.M.Pritham Kanumuri,
                               Learned Legal Aid Counsel

^ Counsel for respondent No.1: Learned Additional Public Prosecutor

<GIST:

> HEAD NOTE:

? Cases referred

   1. 1959 Supp (1) SCR 63
                                                               JAK, J
                          ::2::                      CRLRC_398_2008




     THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI

        CRIMINAL REVISION CASE No.398 of 2008

ORDER:

This Criminal Revision Case is filed against the

conviction and sentence imposed by the learned

IV Additional District & Sessions Judge, Fast Track

Court, Ranga Reddy District, vide judgment, dated

29.02.2008 in Criminal Appeal No.66 of 2005 confirming

the judgment of the learned X Metropolitan Magistrate,

Cyberabad, Ranga Reddy District, Hyderabad in

C.C.No.2244 of 2005, dated 10.11.2005, wherein the

revision petitioner/accused was convicted for an offence

under Section 138 of the Negotiable Instruments Act,

1881 (for short 'the N.I. Act, 1881') and sentenced to

undergo rigorous imprisonment for six months and to

pay compensation of Rs.75,000/- to the complainant.

2. Heard Mr. V.S.M.Pritham Kanumuri, learned Legal

Aid Counsel for the revision petitioner/accused and JAK, J ::3:: CRLRC_398_2008

learned Additional Public Prosecutor appearing for

respondent No.1-State.

3. Learned counsel for the revision petitioner has

contended that the complainant/respondent No.2 has

lent an amount of Rs.75,000/- to the revision

petitioner/accused on 18.07.2002 in the presence of a

mediator i.e., DW2 for which the revision petitioner has

executed a receipt on Rs.10/- non-judicial stamp paper

and the revision petitioner has issued two post dated

cheques bearing No.284795, dated 03.08.2002 and

No.284796, dated 15.08.2002, for an amount of

Rs.60,000/- and Rs.15,000/- respectively. The

complainant presented the said cheques to his Banker

on 05.10.2002 and the same were dishonoured due to

insufficient funds. Owing to dishonour of the said

cheques, a statutory notice dated 21.10.2002 under

Section 138 (b) of the N.I. Act, 1881 was sent by the

complainant to the accused and having received the

notice, the accused did not make any arrangement for JAK, J ::4:: CRLRC_398_2008

honour of the cheques. The complainant has approached

the trial Court and the trial Court vide judgment, dated

10.11.2005, in C.C.No.2244 of 2005, has convicted the

accused for the offence under Section 138 of the N.I. Act,

1881 and imposed the punishment of rigorous

imprisonment for six months and to pay compensation

of Rs.75,000/- to the complainant. Aggrieved by the

same, the accused preferred Criminal Appeal No.66 of

2005 and the Appellate Court vide judgment, dated

29.02.2008, has dismissed the appeal. Hence, the

Criminal Revision Case.

4. Learned counsel for revision petitioner contended

that the trial Court has over looked the fact that the

complainant failed to fulfil the requirement(s) of

statutory requirement of sending notice within 15 days

under Section 138 (b) of the N.I. Act, 1881 which was

not adhered. It is further contended that the date of

dishonour of said cheques being 05.10.2002, notice was

sent on 21.10.2002 and no offence has been made out JAK, J ::5:: CRLRC_398_2008

by the accused and case is not proved beyond

reasonable doubt. It is also contended that the Appellate

Court failed to consider the objections with regard to the

notice and over looked the facts pleaded. Lastly, it is

urged that accused is an ex-defence employee and that

Courts should not entertain matters against defence

employees.

5. Learned Additional Public Prosecutor representing

respondent No.1-State submitted that Appellate Court

considered the evidence on record and has rightly come

to the conclusion that the accused was guilty of the

offence under Section 138 of the N.I. Act, 1881 and the

Appellate Court was justified in upholding the sentence

of rigorous imprisonment for six months and payment of

compensation of Rs.75,000/- to the complainant. It is

further contended that notice was sent by the

complainant within the stipulated period of 15 days and

the ground of not sending notice within 15 days as

raised by the accused is not correct. It is urged that no JAK, J ::6:: CRLRC_398_2008

grounds are made out for interference in the impugned

judgement, dated 29.02.2008, in Criminal Appeal No.66

of 2005.

6. Heard learned counsels, perused the record and

considered the rival submissions.

7. Complainant/respondent No.2 has lent an amount

of Rs.75,000/- to the revision petitioner/accused on

18.07.2002 in the presence of a mediator i.e., DW2 for

which the revision petitioner has executed a receipt on

Rs.10/- non-judicial stamp paper and the revision

petitioner has issued two post dated cheques bearing

No.284795, dated 03.08.2002 and No.284796, dated

15.08.2002, for an amount of Rs.60,000/- and

Rs.15,000/- respectively. Complainant presented the

cheques for the third time on 05.10.2002 and were

returned dishonoured. It is held that there was clear and

undisputable evidence that complainant received the

information of dishonour of cheques on 08.10.2002 and

that there was proof that complainant sent the notice on JAK, J ::7:: CRLRC_398_2008

21.10.2002 within fifteen days as required under the N.I.

Act, 1881. Accused has not denied the date of receipt of

information about dishonour of cheques and the

evidence on record is suffice to show that accused has

knowledge of the said information on 08.10.2002 and

the notice sent on 21.10.2002. Accused has not

disputed that he has not received Ex.P3 the legal notice.

It is established that Ex.P10 is a hand written receipt,

dated 18.07.2002, executed by accused in favour of

complainant. A specific finding is recorded that the

accused received Ex.P3 i.e., legal notice, but has failed to

reply and the contention of the accused that he has paid

Rs.50,000/- does not stand the test of time as there is

no endorsement to that extent. The evidence on record

establishes the fact that complainant complied with the

mandatory requirement of the notice to be sent within

15 days and the accused having received the notice was

unable to prove or lead evidence that it was beyond the

period of 15 days. The trial Court, after elaborate JAK, J ::8:: CRLRC_398_2008

discussion, held that the statutory requirement was

complied, as contemplated under Section 138 of the N.I.

Act, 1881. It is evident that statements of DW-1 and

DW-2 are not at variance and there is no evidence to

show that the accused has paid Rs.50,000/- to the

complainant. There is no evidence to establish that the

accused has issued any legal notice to the complainant

for return of said cheques and that the complainant has

illegally demanded an amount of Rs.25,000/- as

interest. On consideration of the documentary and oral

evidences of DW-1 and DW-2, it is established beyond

any reasonable doubt that the accused has committed

the offence.

8. This Court is of the opinion that no grounds have

been made out to upset the judgment of the Appellate

Court and there is no illegality, much less any perversity

is made out to interfere with the judgment passed by the

Appellate Court in the Criminal Appeal No.66 of 2005,

dated 29.02.2008.

                                                           JAK, J
                          ::9::                  CRLRC_398_2008




9.   The    Criminal Revision Case      is   dismissed by

confirming the conviction and sentence imposed in

C.C.No.2244 of 2005, dated 10.11.2005, against the

revision petitioner/accused to undergo rigorous

imprisonment for a period of six months and to pay

compensation of Rs.75,000/- to the complainant under

Section 357 of Code of Criminal Procedure, 1974 (for

short 'Cr.P.C').

10. This Court is constrained to consider the memo,

dated 02.03.2024, presented by the learned Legal Aid

Counsel appearing on behalf of the revision petitioner/

accused before this Court after hearing and reserving

the matter for judgement, along with a letter, dated

13.02.2024, of High Court Legal Services Committee,

stating that the revision petitioner/accused died on

01.11.2012. But, no endorsement is reflected with

regard to serving of a copy of memo on the other side, be

that as it may, this Court takes note of the Memo.

                                                                     JAK, J
                                   ::10::                  CRLRC_398_2008

11. The Hon'ble Apex Court in Pranab Kumar Mitra

vs. State of West Bengal And Another1, while dealing

with Section 431 of the old Code of Criminal Procedure,

(Section 394 of the new Code of Criminal Procedure) held

as follows:

"6. In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence, and that subordinate Criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognized by the courts, and the right to appeal, where one exists, cannot be denied in exercise of the discretionary power even of the High Court. The legislature has, therefore, specifically provided, by Section 431 of the Code, the rules governing the right of substitution in case of death of an appellant, but there is no

1959 Supp (1) SCR 63 JAK, J ::11:: CRLRC_398_2008

corresponding provision in Chapter XXXII, dealing with the question of abatement and the right of substitution in a criminal revision. We may assume that the legislature was aware of the decision of the Bombay High Court, referred to above, when it enacted Section 431 for the first time in the Code of 1882. If the legislature intended that an application in revision pending in a High Court, should be dealt with on the same footing as a pending appeal, it would have enacted accordingly. But in the absence of any such enactment, we may infer that the power of revision vested in the High Court under Chapter XXXII of the Code, was left untouched -- to be exercised according to the exigencies of each case. The High Court is not bound to entertain an application in revision, or having entertained one, to order substitution in every case. It is not bound the other way, namely, to treat a pending application in revision as having abated by reason of the fact that there was a composite sentence of imprisonment and fine, as some of the Single Judge decisions placed before us, would seem to indicate. The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed under Section 250 of the Code to pay compensation to an accused person upon his discharge or acquittal. Whether it was an accused person or it was a complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued a rule, that rule has to be heard and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in court by a legal practitioner. In hearing and determining cases under Section 439 of the Code, the High Court JAK, J ::12:: CRLRC_398_2008

discharges its statutory function of supervising the administration of justice on the criminal side. Hence, the considerations applying to abatement of an appeal, may not apply to the case of revisional applications. In our opinion, therefore, the Bombay majority decision, in the absence of any statutory provisions in respect of criminal revisional cases, lays down the correct approach.

7. There are a number of decisions in the books, mostly of Judges sitting singly, that though Section 431, in terms, does not apply to revisional applications, the principle of that section applied to such cases. It is not necessary to refer to those cases specifically. In view of the fact that even in the absence of any statutory provisions, we have held, in agreement with the decision aforesaid of the Bombay High Court, that the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his legal representative, it now remains to consider whether the High Court was right in limiting its power of revision to the question of fine only -- whether it was proper or excessive -- without going into the merits of the order of conviction. Once it is held that the High Court's revisional jurisdiction is attracted to such a case, it is difficult to limit the exercise of such a power in the way the High Court has done. Under Section 439 of the Code, the discretion is vested in the High Court to exercise such of the powers of an appellate court, as may be attracted to the case, and it has also the power to enhance a sentence subject to the proviso that no order to the prejudice of an accused person, shall be made unless he has had the opportunity of being heard. In the instant case, we are not concerned with the question of enhancement of sentence; we are concerned with the question JAK, J ::13:: CRLRC_398_2008

whether there is any provision in the Code, which limits the discretionary power of the High Court to examine the "correctness, legality or propriety of any finding, sentence or order" -- (Section 435), passed by any inferior court. On the death of the convicted person, the question of his serving the whole or a portion of his sentence of imprisonment, does not arise. But the sentence of fine still remains to be examined -- whether it was well founded in law. This question cannot be effectively gone into unless the order of conviction itself is examined on its merits. If the fact that the fine will have to be paid out of the estate of the deceased appellant or petitioner in revision, is the ground for giving the heir or legal representative a right to continue the appeal or a privilege of maintaining or continuing a revision, the same principle should entitle him to question the correctness of the conviction itself, for, if the conviction remains, at least some fine, however nominal, will have to be paid by the heir or the legal representative out of the estate of the deceased. In our opinion, therefore, where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu, it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view."

12. In view of the law declared by the Hon'ble Apex

Court and the fact that the revision petitioner/accused

died on 01.11.2012, the sentence insofar as to undergo

rigorous imprisonment for six months as awarded in

C.C.No.2244 of 2005 and confirmed in Crl.A.No.66 of JAK, J ::14:: CRLRC_398_2008

2005 against the revision petitioner/accused, the

Criminal Revision Case stands abated per Section 394 of

Cr.P.C. In respect of compensation of Rs.75,000/-

payable to the complainant under Section 357 of

Cr.P.C., as awarded by the trial Court(s), the Criminal

Revision Case stands dismissed.

13. Accordingly, the Criminal Revision Case to the