THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.792 of 2007 Date:27.08.2014 Between:
K. Kali Dasu . Petitioner.
AND P. Sridhar and the State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.792 of 2007 ORDER:
This revision is preferred against judgment dated 19-06-2006 in Crl.A.No.30/2006 on the file of Metropolitan Sessions Judge, Vijayawada whereunder judgment dated 28-11-2005 in C.C.No.328/2005 on the file of I Metropolitan Magistrate, Vijayawada was confirmed.
2. Brief facts of the case are as follows:-
First respondent herein filed a complaint before I Metropolitan Magistrate, Vijayawada against the revision petitioner alleging that he borrowed a sum of Rs.75,000/- on 20-07-2002 from complainant and executed a promissory note and later on demand, he issued cheque bearing No.124188, drawn on Canara Bank, Patamata, Vijayawada on 01-03-2003 for Rs.75,000/- towards part payment of the amount due and when the cheque was presented for collection in Federal Bank, Governorpet, Vijayawada, it was dishonoured with an endorsement “insufficient funds” and that the complainant got issued a legal notice both under registered post with acknowledgement due and also under certificate of posting and that the registered notice was returned and the accused failed to pay the cheque amount, thereby, committed offence under Section 138 of Negotiable Instruments Act. On these allegations, complainant is examined as P.W.1 and got marked Exs.P1 to P6 and no witness is examined and no documents are marked on behalf of accused. On an over all consideration of oral and documentary evidence, trial Court found the accused guilty for the offence under Section 138 of N.I Act and sentenced him to suffer six months imprisonment with a fine of Rs.500/-
. Aggrieved by the conviction and sentence, he preferred appeal to the Court of Session, Vijayawada and the learned Metropolitan Sessions Judge, on a reappraisal of evidence, dismissed the appeal confirming the conviction and sentence. Now aggrieved by the judgments of both the Courts, present revision is preferred.
3. Heard both sides.
4. Advocate for revision petitioner submitted that except the self-serving testimony of P.W.1, there is no supporting evidence to prove the guilt of the accused, but both the trial Court and appellate Court relying on such evidence of P.W.1, convicted the revision petitioner. He further submitted that complainant obtained a blank cheque at the time of advancing money and there is no service of legal notice to the accused and the notice was given to a wrong address. He submitted that there is no demand prior to filing of the complaint and that there is no material to show that the revision petitioner intentionally avoided payment, therefore conviction is liable to be set aside.
5. Now the point that would arise for my consideration in this revision is whether judgments of Courts below are legal, proper and correct?
6. Point:- According to revision petitioner, Ex.P2-cheque was issued as a security, but not towards discharge of any debt. On the other hand, it is the contention of the complainant that this Ex.P2-cheque was issued towards part payment of the debt due under Ex.P1-pronote.
The complainant as P.W.1 deposed in his evidence that the revision petitioner herein borrowed Rs.75,000/- from him under Ex.P1-promossisory note and that the revision petitioner failed to repay the said amount in spite of repeated demands, but ultimately issued Ex.P2-cheque towards part payment and when the cheque was presented for collection, it was dishonoured with an endorsement insufficient funds.
P.W.1 was cross-examined on behalf of the accused, but nothing could be elicited from him to discredit his testimony. Here the accused admitted issue of cheque and having admitted the burden is on him to rebut the legal presumption under Section 139 of N.I Act.
The accused did not come into witness box and he has not produced any evidence to support his contention that this cheque was taken as a security at the time of Ex.P1 transaction. So the plea of the accused remained as a plea and it is not substantiated with any evidence. When the burden is on the accused to rebut the legal presumption under Section 139 of N.I Act, without producing any evidence contending that the evidence of P.W.1 is not corroborated by any other evidence is not tenable. Both trial Court and appellate Court, considering the evidence of P.W.1 and documents Exs.P1 to P6, held that the offence under Section 138 of N.I Act is duly proved against the revision petitioner and I do not find any wrong appreciation of evidence either by trial Court or appellate Court. I also do not find any incorrect findings in the judgments of the Courts below on any of the material aspects. On a scrutiny of the material, I am of the view that both the Courts have rightly convicted the revision petitioner and that there are no grounds to interfere with the concurrent findings.
7. Lastly, Advocate for revision petitioner submitted that the accused is a lorry driver and he is now 60 years old, therefore, some lenient view may be taken with regard to sentence. Here the trial Court imposed six months imprisonment and fine of Rs.500/- and the same is confirmed by appellate Court. No compensation is awarded besides fine amount. The cheque amount involved is Rs.75,000/- and considering the facts of the case, nature of offence and the cheque amount, I am of the view that the sentence imposed by the trial Court is quite reasonable and I do not find any grounds to interfere with the same.
8. For these reasons, revision is dismissed as devoid of merits confirming the conviction and sentence.
9. Trial Court shall take steps for apprehension of accused for undergoing unexpired portion of sentence.
10. As a sequel, miscellaneous petitions, if any, pending in this Criminal Revision Case, shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:27.08.2014 mrb