IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH WEDNESDAY THE TWENTYFIFTH DAY OF JUNE TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE NO. 389 OF 2007 Between:
Unnam Seshagiri Rao … Petitioner/Appellant/ Accused V/s.
The State of Andhra Pradesh Represented by its Public Prosecutor High Court of A.P.
Hyderabad & Anr. .. Respondents/Complainant Counsel for Petitioners : Sri Md.Saleem Counsel for Respondents : Public Prosecutor for R-1 Sri S.Sridhar for R-2 The court made the following : [order follows] HONOURABLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE NO. 389 OF 2007 O R D E R :
This Criminal Revision Case is against judgment dated 14/03/2007 in Criminal Appeal No. 409 of 2005 on the file of III- Additional District and Sessions Judge, Guntur, whereunder judgment dated 11/11/2005 in CC.No. 424 of 2004 on the file of V- Additional Munsif Magistrate, Guntur, is confirmed.
2. Brief facts leading to filing of this criminal revision are as follows:
Second Respondent filed a complaint before V-Additional Judicial Magistrate of First Class, Guntur, alleging that Revision Petitioner borrowed Rs.1,00,000/- [Rs.one lakh only] on 24/7/2003 from the complainant and executed a promissory note for the said amount and in discharge of the said amount, he has issued a cheque bearing No. 0355586 for Rs.1,00,000/- [Rs. One lakh only] drawn on Corporation Bank, Guntur dated 15/7/2004 and when the said cheque was presented for collection it was dishonoured with an endorsement that funds are insufficient. On that the complainant issued a legal notice on 22/7/2004 and the said notice is returned. Therefore, accused has committed offence under section 138 of Negotiable Instruments Act.
3. On these allegations, learned Magistrate conducted trial, during which three witnesses are examined and seven documents are marked on behalf of complainant. On behalf of accused, the accused himself was examined as DW-1.
4. On a consideration of oral and documentary evidence, trial court found the accused guilty for offence under section 138 of Negotiable Instruments Act and sentenced him to suffer four months Rigorous Imprisonment with a fine of Rs.500/-.
5. Aggrieved by the same, he preferred appeal to the Court of Session, Guntur and III-Additional District and Sessions Judge, Guntur, confirmed conviction and sentence. Aggrieved by the same, present criminal revision is preferred.
6. Heard both sides.
7. Advocate for petitioner submitted that both the courts erred in convicting the revision petitioner without there being any legal evidence. He submitted that both courts mechanically accepted the evidence of complainant and his witnesses and when the complainant failed to prove the ingredients of section 138 of Negotiable Instruments Act. He further submitted that the cheque and pronote were collected in a chit transaction and they were pressed into service and this aspect was not considered by the trial court and appellate court, therefore, both the judgments of courts below are liable to be set aside.
8. On the other hand, learned counsel for second respondent submitted that complainant has discharged his burden of proof that there is a legally enforceable debt and the cheque was issued in discharge of said liability and the accused failed to rebut the presumption and both courts have rightly convicted revision petitioner and that there are no grounds to interfere with the concurrent findings.
9. Now the point that arises for consideration in this Criminal Revision is whether the order of the court below is legal, correct and proper ?
10. P O I N T : According to complainant, Revision Petitioner borrowed a sum of Rs.1,00,000/- [Rs. One lakh only] and executed a promissory note promising to repay the same with interest and subsequently he issued a cheque for Rs.1,00,000/-[Rs. One lakh] in discharge of said liability. To substantiate the same complainant is examined as PW-1 official from Andhra Bank is examined as PW-2 official from Corporation Bank is examined as PW-3. The promissory note is marked as Ex.P-1 and the cheque is marked as Ex.P-2 and the memos issued by two banks are marked as Exs.P-3 andP4 and the office copy of notice is marked as Ex.P5 whereas postal receipt and return notice are marked as Exs.P6 and P7.
11. It is the contention of accused that cheque and promissory note were obtained in a chit transaction and they were subsequently pressed into service. The very same contention was raised before trial court and appellate court and both courts after appreciating the evidence on record held that Revision Petitioner failed to substantiate his ddefence that promissory note and the cheque were collected by defacto complainant in a chit transaction.
12. I have perused the evidence of PW-1, who deposed supporting the complaint averments. Except putting suggestion to the defacto complainant, nothing was elicited from him to doubt his testimony. No doubt it was suggested to PW-1 that this cheque and promissory note were collected in a chit transaction and those suggestions are denied by PW-1. Mere putting suggestion is not sufficient and those suggestions have to be substantiated with evidence. Except self-serving testimony of DW-1 there is no material to support version of accused . When the documents Exs.P-1 and P2 are not denied and they are proved through PW-1, the burden is shifted on the accused to rebut the same but the accused failed in rebutting the same.
13. From the evidence of PWs 2 and 3 supported by Exs.P-1 to P-4, it is clear that cheque issued by accused was dishonoured for want of funds. Both trial court and appellate court have elaborately discussed the evidence of these witnesses on each and every point raised on behalf of accused. I do not find any wrong appreciation of evidence either by trial court or by appellate court.
14. On a scrutiny of material available on record, I am of the view that both trial court and appellate court have not committed any error in convicting the accused and there are no grounds to interfere with the findings of both the courts.
15. Coming to the sentence part, trial court imposed sentence of four months Rigorous Imprisonment with a fine of Rs.500/- for offence punishable under section 138 of Negotiable Instruments Act. The amount involved is Rs.1,00,000/- [Rs. One lakh only]
14. Considering the facts of the case and the amount involved I am of the view that trial court has already taken a lenient view and there are no grounds even to interfere with the sentence.
15. For the above reasons, it is held that there are no grounds to interfere with the concurrent findings of courts below both on conviction and sentence. Hence, this Criminal Revision is dismissed. Trial court shall take steps for apprehension of accused to undergo un-expired portion of sentence.
JUSTICE S. RAVI KUMAR .
25/06/2014 I s L HONOURABLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE NO. 389 OF 2007 Circulation No. Date:25/06/2014 Court Master: I s L Computer No. 20th Court Hall