[HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.90 OF 2006 Dated 12-8-2014 Between:
P.Chandrakala.
And:
..Petitioner.
K.Narender and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.90 OF 2006 ORDER:
This revision is preferred against judgment dated 12-1-2006 in Criminal Appeal No.212 of 2005 on the file of VII Additional Metropolitan Sessions Judge, Hyderabad, whereunder judgment dated 20-7-2005 in C.C.No.1036 of 2001 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad is confirmed.
Brief facts leading to this revision are as follows:
First respondent herein filed a complaint against revision petitioner for the offence under Section 138 of Negotiable Instruments Act contending that accused borrowed a sum of Rs.5,00,000/- promising to repay the same with interest at 2.5% p.a., and she failed to repay the same in spite of repeated demands and finally, she issued a post dated cheque for Rs.7,00,000/- and the same is presented on 6-2-2001 and that it is returned with endorsement “insufficient funds” and that the complainant issued statutory notice for which a reply with false averments is given. The learned trial judge took cognizance of the offence and conducted trial during which three witnesses are examined on behalf of complainant besides marking ten documents and one witness is examined on behalf of accused besides marking twelve documents. On an overall consideration of oral and documentary evidence, learned trial judge found the accused guilty for offence under Section 138 of Negotiable instruments Act and sentenced her to suffer six months imprisonment with a fine of Rs.500/-. Aggrieved by the conviction and sentence, the accused preferred an appeal to the court of Sessions and the learned VII Additional Metropolitan Sessions Judge dismissed the appeal confirming the conviction and sentence. Aggrieved by which, present revision is preferred.
Heard both sides.
It is the contention of revision petitioner that statutory notice is defective and it is issued beyond statutory period of 15 days. It is further contended that the revision petitioner and her son joined as members in a chit run by the complainant and at the time of receiving prize money, complainant obtained blank cheques and promissory note as security and those were pressed into service. It is further contended that both the courts failed to consider the evidence of D.W.1 and the cheques marked on behalf of the accused which would clinchingly show that the cheque was obtained only as a security and that there is no legally enforceable debt.
It is further submitted that petitioner herein issued a legal notice on 23-1-2001 long prior to issue of statutory notice disclosing that bank cheques, blank promissory notes and blank N.J.Stamps containing signatures of petitioner are with the complainant and that there is no reply to the said notice. It is further contended that there is no whisper in the statutory notice about Ex.P.1 promissory note and all these aspects would throw any amount of doubt as to the correctness of the case of complainant. It is further submitted that even if the promissory note pleaded by complainant is accepted, there is no supporting receipt showing payment of consideration, further if principal and interest at the rate of 2.5% is calculated for twenty five months, it would come to Rs.8,12,500/- and therefore, issue of cheques for Rs.7,00,000/- falsifies the story of complainant. It is further submitted that there is no legally enforceable debt and the cheque and promissory note are pressed into service taking advantage of the blank signed documents in the possession of complainant which were obtained at the time of payment of prize amount in a chit fund transaction. It is further submitted that statutory notice is also not within the stipulated period and all these aspects are not considered by the courts below and therefore conviction imposed by the courts below is liable to be set aside.
On the other hand, it is the contention of advocate for first respondent that the documents relied on by the accused are not confronted with the complaint and they are no way concerned with the debt contracted by revision petitioner. It is further contended that when the complainant demanded for payment of Rs.5,00,000/- and interest thereon, there was a settlement and in pursuance of which, Rs.7,00,000/- is arrived and cheque was issued for that final amount of Rs.7,00,000/- and the evidence of P.Ws.1 to 3 would clearly establish that there is a legally enforceable debt as on the date of issue of cheque. He further contended that revision petitioner issued reply to the statutory notice but nothing is whispered in the reply about the defence that was set in during trial. He contended that both the courts considered all these aspects and rightly discarded the plea of the revision petitioner and that there are no grounds to interfere with the concurrent findings of the courts below.
It is further submitted that entire version of the accused is a development and all the documents produced on behalf of accused are not confronted with the complaint. It is further submitted that, if really, the contention that complainant is in possession of some blank signed documents, it should have been referred in the reply notice given to the statutory notice and to over come the same, even Ex.D.5 is created. He further submitted that it is clearly pleaded in the complaint that Rs.7,00,000/- was arrived on settlement and therefore, the point that on calculation, the principal with interest do not match with the cheque amount is not tenable. He further submitted that trial court and appellate court have considered all these aspects and rightly discarded them and there are no grounds to interfere with the concurrent findings.
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?
POINT:
According to complainant, revision petitioner borrowed Rs.5,00,000/- and executed Ex.P.1 promissory note on 29-4-1998 and after settlement of account, she gave Ex.P.2 cheque on 29-8-2000 for Rs.7,00,000/- towards discharge of the debt due under the promissory note and when the cheque was presented, it was dishonoured and thereafter, statutory notice was issued and in spite of that, accused failed to pay the cheque amount and thereby, committed offence under Section 138 of Negotiable Instruments Act.
On the other hand, the plea of the accused is a total denial. According to her, she and her son joined as subscribers in the chit fund business run by complainant and his brother and they became successful bidders and for payment of prize amount, they were asked to produce government sureties and when they could not comply the said requirement, the complainant took two blank promissory notes, two blank bond papers and four blank signed cheques as security towards prize amount and in spite of payment of money due under this chit fund transaction, these documents are not returned, for which, a legal notice was also issued but it was returned.
To prove his case, the complainant himself is examined as P.W.1 who reiterated his case. One Mallesh is examined as P.W.2 who is relative of P.W.1 deposed that on 29-4-1998, he went to the shop of P.W.1 and at that time, an Yadaiah and Srinivas brought the revision petitioner and her husband to the shop of P.W.1 and in his presence, P.W.1 paid Rs.5,00,000/- to the revision petitioner and her husband and that some documents were executed at the time of payment of Rs.5,00,000/-. One of the attestor of promissory note is examined as PW.3 who supported and corroborated version of complainant with regard to execution of promissory note and passing of consideration. All the three are cross examined on behalf of accused and nothing could be elicited from them to discredit their testimony or to support the version that there was no transaction of advancing of Rs.5,00,000/- on 29-4-1998. Thus, evidence of P.Ws.1 to 3 would establish execution of Ex.P.1 promissory note on 29-4-1998. Complainant as P.W.1 deposed that on 29-8-2000, the revision petitioner issued Ex.P.2 cheque towards final payment of the amount due under the promissory note as per the settlement. He further deposed that even the contents in cheque-Ex.P.2 are filled by accused. Here the signature on the cheque is not disputed, on the other hand, admitted therefore, burden is on the accused to prove the plea or circumstances under which such cheque was issued. According to revision petitioner, she and her son joined as subscribers in the chit run by the complainant and his brother and in that connection, blank cheques were obtained from her as security. To prove the same, the accused herself is examined as D.W.1 and she deposed as to her plea and through her Exs.D.1 to D.12 are marked. Though she contended that Ex.D.1 and Ex.D.2 are the pass books issued for the chit transaction, these documents are not confronted with the complaint when he was cross examined on behalf of accused. Admittedly, a reply was given to the statutory notice on behalf of accused which is marked as Ex.P.5. In this Ex.P.5, there is absolutely no reference about these documents viz. alleged chit pass books or about collecting blank cheques, blank promotes and blank signed bond papers from the accused at the time of payment of prize money under the chit transaction. Advocate for revision petitioner mainly focused on Ex.D.5 which is office copy of a notice dated 23-1-2001. He submitted according to this notice, the accused demanded for return of blank documents lying with the complainant and it was issued almost one month prior to issue of statutory notice and the complainant intentionally has not received the registered notice but the accused sent this notice simultaneously under certificate of posting also and having received the same, he has issued statutory notice under Ex.P.4. In reply to this, advocate for complainant submitted that the address given in Ex.D.5 notice is different to that the address of complainant that was referred in the complaint and also in the legal notice Ex.P.4 on receipt of which, Ex.P.5 reply was given. He further submitted that if really, there was such notice issued to the complainant, there must be a reference in Ex.P.5 reply notice about this Ex.D.5 and there must be reiteration of theory of collecting blank cheque or blank promissory note or blank signed bond papers. He further submitted that this Ex.D.5 is an after thought and the same cannot be accepted.
I have gone through the documents Exs.P.4, P.5 and D.5. As rightly pointed out by advocate for complainant, if really, there was a notice like Ex.D.5 issued to the complainant, there must be a reference about issue of Ex.D.5 in the reply notice Ex.P.5 which was issued as an answer for the statutory notice issued relating to dishonour of the cheque in question. In fact, this objection was raised before the appellate judge and the learned appellate judge elaborately discussed this Ex.D.5 document relied on by the accused besides chit fund pass books and discarded them on the ground that accused failed to rebut the statutory presumption under Section 139 of Negotiable Instruments Act.
On a thorough scrutiny of the material on record, which is compared with the judgments of both the courts, I am of the view that both trial court and appellate court have rightly appreciated evidence on record and they have not committed any illegality or irregularity in accepting the case of complainant or in convicting the revision petitioner.
Scope of revisional jurisdiction is limited one and the court while exercising revisional jurisdiction cannot go into a detailed examination of evidence of both sides, unless there are perverse findings in the judgments under challenge.
As there is no illegality or impropriety in the judgments of the courts below, I am of the view that there are no grounds to interfere with the concurrent findings.
Trial court sentenced the revision petitioner to suffer six months imprisonment with a fine of Rs.500/- besides awarding compensation of Rs.7,00,000/-. It is submitted that the compensation awarded is not paid.
Considering the facts of the case and cheque amount, I feel that the trial court and appellate court have rightly exercised judicial discretion in imposing sentence and I do not find any ground to interfere with the same.
For these reasons, this Criminal Revision Case is dismissed confirming conviction and sentence. The trial Court shall take steps to apprehend the accused to undergo the unexpired portion of the sentence.
As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 12-8-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL REVISION CASE No.90 OF 2006 Dated 12-8-2014