HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.330 OF 2007 Dated 25-4-2014 Between:
Major Ramesh Upadhyay.
And:
Petitioner.
The State of A.P. represented by its Public Prosecutor, High Court of A.P., Hyderabad and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.330 OF 2007 ORDER:
This revision is against judgment dated 17-1-2007 in Criminal Appeal No.278 of 2006 on the file of VI Additional Metropolitan Sessions Judge, Secunderabad whereunder judgment dated 11-7-2006 in C.C.No.797 of 2000 on the file of XI Additional Chief Metropolitan Magistrate is confirmed.
2. Brief facts leading to this revision are as follows:
Second respondent herein filed a private complaint against the revision petitioner alleging that he approached complainant for financial assistance to acquire Eitcher container body with wind reflector on hire purchase basis and complainant accepted the request and the accused entered into hire purchase agreement and as per the terms and conditions of the said agreement, the total value of Rs.7,65,900/- was advanced to the accused and he undertook to discharge the same in 36 monthly installments at the rate of Rs.21,275/-. The accused committed default in payment of monthly installments and on repeated requests made by the complainant, he issued five cheques of Rs.21,275/- each and the said cheques were presented for clearance and they were dishonoured and on that, complainant issued a legal notice informing the dishonour of cheques and demanded payment of amount covered under the cheques. The accused received the notice on 18-4-2000 but he neither paid the amount nor gave any reply and therefore, he is liable for punishment for the offence under Section 138 of Negotiable Instruments Act. On these allegations, trial court examined P.W.1 and marked Exs.P.1 to P.20 on behalf of complainant and no witness is examined on behalf of accused and Exs.D.1 to D.6 are marked on behalf of accused. On an overall consideration of oral and documentary evidence, trial court found the accused guilty for the offence under Section138 of the Negotiable Instruments Act and sentenced him to suffer one year imprisonment with a fine of Rs.5,000/- and aggrieved by the same, he preferred appeal to the Metropolitan Sessions Court and VI Additional Metropolitan Sessions Judge, Secunderabad dismissed the appeal and confirmed judgment of the trial court. Now aggrieved by the same, present revision is preferred.
3. Heard both sides.
4. Advocate for revision petitioner submitted that as per the terms and conditions of hire purchase agreement, the complainant took re-possession of the vehicle on 3-2-2000 and therefore, the revision petitioner issuing cheques on 10-4-2000 does not arise. He further submitted that at the time of entering into hire purchase agreement, blank cheques are obtained and they were pressed into service and therefore, accused has not issued cheques in question. He further submitted that there is no legally enforceable debt and therefore, the offence of Section 138 of Negotiable Instruments Act is not attracted.
5. Now the point that would arise for my consideration in this revision is whether the Judgments of the courts below are legal, correct and proper?
6. POINT:
According to complainant, the accused entered into hire purchase agreement on 18-2-1999 and availed loan facility of Rs.7,65,900/- promising to discharge the same in 36 monthly installments of Rs.21,275/- each. According to complainant, he has issued five cheques, first cheque is dated 18-11-1999 and second cheque is dated 18-12- 1999 and third cheque is dated 18-1-2000, 4th cheque is dated 18-2-2000 and 5th cheque is dated 18-3-2000 for Rs.21,275/- each and when all these cheques were presented and they were dishonoured on 4-4-2000.
7. One of the objections of the advocate for revision petitioner is that complainant took re-possession of the vehicle on 3-2-2000 and therefore, issue of cheques does not arise but as seen from the cheques, two cheques are prior to the date of taking re-possession, one cheque is 15 days after taking of re-possession and the other cheque is one month fifteen days after taking re-possession. When the evidence of P.W.1 is clear to the effect that these cheques are issued towards discharge of loan amount, the seizure of the vehicle is no way relevant. It is not the case of revision petitioner that by seizure of the vehicle, the entire loan amount is cleared. Simply because vehicle is seized, it cannot be said that there is no legally enforceable debt after the seizure of the vehicle. The document i.e., statement of account marked as Ex.P.18 would clearly disclose that there is an outstanding balance as on the date of dishonour of the cheques and the outstanding balance is more than the total amount covered by these four cheques. The same objection is raised before the trial court and appellate court and both courts have not accepted the objection while considering evidence of P.W.1 and the documents relied on by both the parties.
8. Here under Section 397 Cr.P.C., this court has to verify the correctness, legality or propriety of any finding in the judgments of the order of the subordinate court. Both the trial court and appellate courts have rightly appreciated the evidence and there is no illegality or incorrectness in any of the findings of the trial court and appellate court. There is no perversity in the findings of the courts below on any of the material aspects. When there is an outstanding balance as on the date of dishonour of cheques, which is evidenced by documentary evidence i.e., Ex.P.18, the burden is on the revision petitioner to rebut the same but revision petitioner has not examined any witnesses and only relied on Ex.D.1 to D.6 and those documents are no way relevant for the allegations leveled against him. Both the trial court and appellate court have considered these aspects and held that Exs.D.1 to D.6 are no way helpful to the plea of the accused i.e., there is no legally enforceable debt on the date of issue of cheques. I do not find any wrong in the judgments of the trial court and appellate court and both courts have rightly convicted the revision petitioner for the offence under Section 138 of Negotiable Instruments Act.
9. Now coming to sentence, revision petitioner is sentenced for one year imprisonment with a fine of Rs.5,000/- and considering the amount covered by five cheques and the outstanding balance, I feel that the sentence is not on higher side and therefore, there are no grounds to interfere with the concurrent findings of the courts below.
10. For these reasons, this Criminal Revision Case is dismissed as devoid of merits. The trial Court shall take steps to apprehend the accused to undergo the unexpired portion of the sentence.
11. As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 25-4-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL REVISION CASE No.330 OF 2007 Dated 25-4-2014