Telangana High Court
Aswath Narayana Reddy H.M vs The State Of Telangana on 8 January, 2025
1
THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL
CRIMINAL REVISION CASE No.100 OF 2021
O R D E R:
This Criminal Revision Case is filed by the petitioner-accused
against the judgment dated 09.02.2021 passed in Criminal Appeal
No.111 of 2018 by the learned Metropolitan Sessions Judge,
Hyderabad (for short, "the appellate Court"), confirming the judgment
of conviction and sentence passed by the learned XXI Special
Magistrate, Hyderabad in C.C.No.250 of 2017 dated 19.01.2018
wherein the revision petitioner has been convicted for the offence
punishable under Section 138 of Negotiable Instruments Act, 1881 (for
short "NI Act") and sentenced to undergo simple imprisonment for one
year and pay fine of Rs.50,10,000/- (Rupees Fifty Lakhs Ten Thousand
Only), in default to undergo sentence of imprisonment for (03) months.
In the event of realizing the said fine amount, a sum of Rs.50,00,000/-
shall be paid to the complainant under Section 357(1)(b) of Cr.P.C. as
compensation.
2. Heard Mr.S.Vijay Prashanth, learned counsel for the petitioner
and Mr.M.V.Durga Prasad, learned counsel for respondent No.2.
3. The brief facts of the case are that respondent No.2 -
complainant is M/s.Aparna Constructions and Estates Pvt.Ltd.,
represented by its General Power of Attorney/M.Devraj/PW1 and the
accused is carrying on the business of identifying agricultural and
converted lands and arranging for its procurement for prospective
purchasers, as such, he approached the complainant and offered to
procure 26 acres of land at Chimbenahalli Village, Sarjapura Hobli,
Anekal Taluk, Bengalore Urban District and entered into memorandum
of understanding dated 14.06.2012-Ex.P5 and Memorandum of
understanding for nomination and assignment dt.14.03.2013 - Ex.P6.
Under the said memorandums, the accused received total
consideration of Rs.1,50,00,000/- from the complainant and admitted
acknowledgment and encashment, but failed to perform his obligation
and cheated the complainant. Ultimately, the accused agreed to
refund the said amount received by him as advance consideration and
to pay Rs.1,00,00,000/- towards costs and damages to the
complainant by cancelling the earlier MOUs and entered into third
MOU, dated 13.03.2015 - Ex.P7. Accordingly, the accused issued five
post dated cheques i.e. dated 25.04.2015, 25.05.2015, 25.06.2015,
27.07.2015 and 26.08.2015 each for Rs.50,00,000/- in favour of the
complainant. The disputed cheque bearing No.016398 - Ex.P8, dated
25.06.2015 for Rs.50,00,000/- drawn on ING Vysya Bank Ltd., HSR
Layour branch, Bengalore is one of them. When the said cheque is
presented through Andhra Bank, Somajiguda branch on 25.06.2015
and on 02.07.2015, the same was returned unpaid with an
endorsement 'funds insufficient' vide cheque return memos - Exs.P9
and P10, thereupon, the complainant got issued statutory legal notice
- Ex.P11 to the accused through RPAD postal receipt - Ex.P12 and the
said notice was returned unserved with endorsement 'unclaimed'
under postal envelop - Ex.P13. Hence, the complainant has filed a
complaint under Section 200 of the Cr.P.C. against the accused for the
commission of an offence punishable under Section 138 of the NI Act.
4. The trial Court, vide judgment dated 19.01.2018 in C.C.No.250
of 2017, found the petitioner-accused guilty of the offence punishable
under Section 138 of NI Act and sentenced him to undergo simple
imprisonment for one year and pay fine of Rs.50,10,000/- (Rupees
Fifty Lakhs Ten Thousand Only), in default to undergo sentence of
imprisonment for (03) months. In the event of realizing the said fine
amount, a sum of Rs.50,00,000/- shall be paid to the complainant
under Section 357(1)(b) of Cr.P.C. as compensation.
5. Being aggrieved by this judgment of conviction dated 19.01.2018
in C.C.No.250 of 2017, the accused has preferred an appeal before the
Metropolitan Sessions Judge, Hyderabad in Crl.A.No.111 of 2018,
which came to be dismissed on 09.02.2021, confirming the judgment
passed by the trial Court. Assailing the same, the petitioner has
preferred this revision petition.
6. It is urged by the learned counsel for the petitioner that the
impugned Judgments and sentence passed by the learned trial Court
is bad in law as both the Courts below have not considered the
evidence and documents produced by the petitioner-accused and not
applied its judicial mind and only relying upon the evidence and
documents produced by the complainant, the learned Magistrate
arrived to wrong conclusion and convicted the accused. It is further
urged that the impugned Judgments are only based on inferences and
presumption, but not based on real facts and material on record. It is
further urged by the learned counsel for the petitioner that the
complainant failed to discharge initial burden of debt cast upon him
under law. Therefore, he seeks to allow this Revision.
7. Per contra, the learned counsel for respondent No.2 vehemently
justified the concurrent findings of conviction and submits that the
petitioner has not led any evidence to rebut the presumption which is
mandatory. The transaction even though denied by the petitioner, no
clinching evidence was produced to rebut the presumption. The
Courts below after considering the oral and documentary evidence on
record, rightly recorded the conviction and there is no infirmity or
illegality in the findings of the Courts below, therefore, interference
with the said findings may not be warranted. Having submitted thus,
learned counsel for respondent No.2 prays to dismiss the revision
petition.
8. This Court being a Revisional Court, having regard to the scope
and limits envisaged to appreciate the facts and law, it is necessary to
have a cursory look upon the evidence and also the law, to ascertain as
to whether any illegality or perversity or error committed by the Courts
below in recording the conviction.
9. It is well settled that in the exercise of revisional jurisdiction
under Sections 397 and 401 of the Criminal Procedure Code, the High
Court does not, in the absence of perversity, upset concurrent factual
findings. It is not for the Revisional Court to re-analyze and re-
interpret the evidence on record.
10. On behalf of the complainant, the trial Court examined PW1 and
marked Exs.P1 to P13. On behalf of the defence, the petitioner-accused
himself examined as DW1 and got marked Exs.D1 to D3. Upon careful
scrutiny of the oral and documentary evidence, the trial Court
observed that the accused did not rebut the presumption under
Section 139 of NI Act, with any convincing material or evidence and the
complainant established its case that the accused issued Ex.P8 cheque
in favour of the complainant towards discharge of legally enforceable
liability, therefore, the trial Court held that the accused was guilty of
the offence punishable under Section 138 of NI Act. Further, in the
appeal, the appellate Court confirmed the judgment passed by the trial
Court and dismissed the appeal.
11. The plea of the accused is that PW1 and his other employees
threatened him and forcibly obtained Ex.P7-MOU and five blank signed
cheques from him. The trial Court observed that he did not give any
complaint to police or notice to the complainant that the said Ex.P7-
MOU and Ex.P8 subject cheque were obtained from him by force
threatening him. But the accused did not do so and therefore, his
subsequent conduct in maintaining silence till trial was commenced
goes against his defence and also improbablises the defence.
12. The accused admitted in his cross examination that under Ex.P5
agreement he received Rs.9,00,000/- on 10.05.2012, Rs.91,00,000/ on
14.06.2012 and also received Rs.50,00,000/- through RTGS probably
in the year 2012 from the complainant, total of the said amount comes
to Rs.1,50,00,000/-. It is the defence of the accused in the cross
examination that after receiving the said amounts he paid the same to
the farmers/land owners as instructed by the complainant. The trial
Court observed that the accused did not prove with any documentary
or other oral evidence that he paid Rs.1,50,00,000/- to the
farmers/land owners on the instructions of the complainant, therefore,
he himself serving evidence in the said context holds no water and it is
not believable as true. The trial Court further observed that the
complainant did not file IT returns showing that the said amount of
Rs.1,50,00,000/- was paid to the accused, but when the accused
himself admitted that he received the said amount from the
complainant through RTGS, as such, not filing of IT returns has no
consequence in this case.
13. The reasons given by both the Courts below are based on record,
reasonable and probable and have concurrently held that the
petitioner is guilty of the offence and that he has failed to rebut the
presumption, hence, this Court is not in a position to interfere with
those concurrent findings and facts regarding the conviction of the
petitioner for the offence punishable under Section 138 of NI Act. In
the result, the concurrent findings made by the Courts below regarding
the conviction of the petitioner is legally proper and correct and are not
amenable for any revisional interference at the hands of this Court.
14. This Court after careful consideration of the records available, is
of the considered view that respondent No.2 has proved the guilt of the
petitioner for the offence punishable under Section 138 of NI Act and
the petitioner failed to rebut the same by adducing cogent and
convicting evidence in order to rebut the presumption.
15. As far as the sentence is concerned, it is seen that the trial court
had sentenced the revision petitioner - accused to undergo simple
imprisonment for one year with a direction to pay fine of
Rs.50,10,000/- (Rupees Fifty Lakhs Ten Thousand Only), in default to
undergo sentence of imprisonment for (03) months. In the event of
realizing the said fine amount, a sum of Rs.50,00,000/- shall be paid
to the complainant under Section 357(1)(b) of Cr.P.C. as compensation.
The appellate Court has concurred the said sentence and
compensation amount. The Apex Court, in Damodar S. Prabhu Vs.
Sayed Babalal 1 and M/s. Gimpex (P) Ltd. Vd. Manoj Goeal 2, has
held that the offence of dishonour of cheque envisaged in Section
138 of NI Act is essentially a civil wrong which has been given criminal
overtones by the legislative interventions made through the
amendments of the NI Act and that imposition of fine payable as
compensation to the complainant would be sufficient to meet the ends
of justice. Unless there are exceptional and compelling circumstances
warranting the imposition of substantive sentence, sentence of
appropriate fine amount would suffice. This Court is definitely of the
view that the substantive sentence of one year simple imprisonment
imposed by the courts below is rather excessive and disproportionate.
Since, the complaint pertains to the year 2017 and the trial Court
convicted the petitioner in the year 2018 and the appellate Court
confirmed the judgment of the conviction and sentence in the year
2021 and the petitioner is aged about 58 years would have undergone
mental agony by roaming around the Courts till today, therefore, this
Court is of the considered opinion that the sentence of imprisonment
can be reduced to the fine component.
16. Except the above modification, the Criminal Revision Case
stands dismissed, in all other aspects. However, the petitioner is
directed to pay compensation of Rs.50,10,000/- (inclusive of the
amounts if any deposited before the trial court) to the credit of
2010 (5) SCC 663
(2022) 11 SCC 705
C.C.No.250 of 2017 on the file of the learned trial Court on or before
05.02.2025. Out of the said amount, an amount of Rs.50,00,000/-
shall be paid to the complainant towards compensation under Section
357(1)(b) of Cr.P.C. and the remaining amount of Rs.10,000/- shall be
confiscated by the State towards fine. If the petitioner fails to comply
with the aforesaid direction, he shall suffer imprisonment of one year.
The bail bonds of the petitioner shall stand cancelled.
Miscellaneous Petitions, pending if any, shall stand closed.
____________________________
JUSTICE E.V. VENUGOPAL
Date: 08.01.2025
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