Telangana High Court
B.Manik Rao, Bidar, Karnataka State vs The State Of Ap., Through Pp., High ... on 6 March, 2024
1
THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL
CRIMINAL REVISION CASE No.2142 OF 2011
O R D E R:
The present Criminal Revision Case is filed aggrieved by the
judgment dated 19.09.2011 in Criminal Appeal No.498 of 2010
on the file of the learned III Additional Metropolitan Sessions
Judge, at Hyderabad (for short, "the appellate Court") in
modifying the judgment dated 03.12.2010 in C.C.No.402 of 2009
on the file of the learned XV Additional Judge-cum-XIX
Additional Chief Metropolitan Magistrate, Hyderabad (for short,
"the trial Court").
2. Heard Ms. Swathi, learned Amicus Curiae representing
petitioner, Mr. Vizarath Ali, learned Assistant Public Prosecutor
appearing for respondent No.1 State and Mr. Palivela Satyaraja
Babu, learned counsel appearing for unofficial respondent No.2.
3. The brief facts of the case are that the petitioner/accused
and respondent No.2/complainant were known to each other.
Out of such acquaintance, on 03.01.2006, the accused borrowed
an amount of Rs.1,00,000/- from the complainant and executed
a promissory note, promising to repay the same within three
months. The accused failed to pay the amount due after three
months. On repeated demand, the accused issued cheque
bearing No.781827 dated 18.05.2006 for Rs.1,00,000/- drawn on
Vysya Bank Limited, Bidar Branch. On presentation, the said
cheque was dishonoured with an endorsement "account closed".
Thereafter, the complainant issued legal notice to the accused
calling upon him to pay the cheque amount within fifteen days.
But the accused failed to repay the amount. Hence, the accused
was alleged to have committed the offence punishable under
Section 138 of the Negotiable Instruments Act (for short, "NI
Act").
4. The trial Court vide judgment cited supra, found the
accused guilty for the offence punishable under Section 138 of
the NI Act and sentenced him to suffer simple imprisonment for a
period of six months and pay fine of Rs.10,000/-. In default of
payment of fine, the accused was directed to suffer simple
imprisonment for one month. Aggrieved thereby, the petitioner
preferred an appeal.
5. The appellate Court vide judgment cited supra, dismissed
the appeal, however, reduced the sentence of imprisonment
imposed against the petitioner from six months to four months
without touching the amount of fine. Assailing the same, the
present Revision.
6. Learned counsel for 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 passed
their respective judgments. Therefore, she seeks to set aside the
impugned judgment.
7. Learned Assistant Public Prosecutor and learned counsel
for respondent No.2 submitted that the trial Court as well as the
appellate Court, upon appreciating the evidence available on
record in right perspective, passed their respective judgments
and the interference of this Court is unwarranted. Therefore,
learned counsel seek to dismiss the Revision.
8. On behalf of the prosecution, the trial Court examined
respondent No.2 himself as PW1 and marked Exs P1 to P7, C1.
On behalf of the defence, DWs.1 and 2 were examined and no
document was marked. Upon careful scrutiny of the evidence
available on record, the trial Court found that the promissory
note and the cheque are found to be with the signatures of the
accused and in the absence of any other evidence being adduced,
the trial Court held that they were executed by the accused
himself. Therefore, the presumption under Section 139 of the NI
Act comes into play. Moreover, DWs.1 and 2 entered into the
witness box but nothing contra was proved except their self
serving testimonies. The service of notice effected upon the
accused was found to be proper and the accused deliberately
refused to receive the notice sent under registered post. Hence,
the trial Court found that the accused was guilty of the alleged
offence and rendered the judgment cited supra.
9. The appellate Court upon re-appreciating the evidence
available on record observed that the stand taken by the accused
on the execution of the cheque was not clear and the evidence of
the complainant was found to be convincing. Therefore, on the
basis of the available evidence, the appellate Court held that the
accused was guilty of the alleged offence and reduced the
sentence imposed against the accused to four months without
touching the amount of fine.
10. A perusal of the record shows that this Court vide order
dated 03.11.2011 suspended the sentence of imprisonment alone
imposed against the petitioner, pending Revision and ordered him
to be released on bail on executing a bond for Rs.5,000/- with
one surety for the likesum each to the satisfaction of the learned
XIX Additional Chief Metropolitan Magistrate, Hyderabad.
Thereafter, the matter underwent several adjournments.
11. In the present case on hand, both the Courts held that
petitioner/accused was guilty for the offence under Section 138
of NI Act, which finding, in my considered view, does not call for
any interference, in the exercise of revisional jurisdiction under
Section 397 Cr.P.C. There are no grounds much less valid
grounds to interfere with the well considered judgments passed
by both the Courts.
12. Having regard to the submissions made by all the learned
counsel and relying upon 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 Sarkar Vs. Utpal Basu Mallick 5, this
Court is inclined to reduce the sentence imposed against the
petitioner to the period of imprisonment already undergone by
him.
2010 (5) SCC 663
(2012) 1 SCC 260
(2014) 16 SCC 32
(2015) 9 SCC 622
2013 (16) SCC 465
13. The petitioner is directed to deposit an amount of
Rs.50,000/- as fine to the credit of the trial Court within one year
from today. Out of which, Rs.45,000/- was directed to be paid to
respondent No.2 and Rs.5,000/- shall remain with the State.
14. Upon such deposit, the respondent No.2/complainant is
directed to withdraw an amount of Rs.45,000/- with immediate
effect.
15. If the petitioner fails to comply with the aforesaid direction,
the judgment dated 19.09.2011 in Criminal Appeal No.498 of
2010 on the file of the learned III Additional Metropolitan
Sessions Judge, at Hyderabad stands good in all respects.
16. With the above direction, the Criminal Revision Case is
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: 06.03.2024
ESP
