HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.2210 OF 2005 Dated 23-7-2014 Between:
Vemula Ashwini Kumar.
Petitioner.
And:
M/s. Reco Agrotech Limited, represented by its Customer Service Manager, Mr.Gudapati Koteswararao and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.2210 OF 2005 ORDER:
This revision is preferred against judgment dated 21-12-2005 in Criminal Appeal No.141 of 2001 on the file of VII Additional District and Sessions Vijayawada is confirmed.
Brief facts leading to filing of this revision are as follows:
First respondent herein filed a complaint under Section 200 Cr.P.C. for the offence under Section 138 of Negotiable Instruments Act against revision petitioner alleging that the complainant is carrying on business in pesticides, Micro-Fertilizers and growth promoters etc., with wide marketing network and having its Regional Office at Vijayawada and the accused who is also carrying on business on pesticides and fertilizers etc., purchased goods from the complainant from time to time on credit basis. There is a running katha for the transactions and as per katha as on 30-8-1999, a sum of Rs.3,07,342/- was due from the petitioner towards principal amount and he issued a cheque bearing No.007277 dated 7-9-1999 for Rs.3,07,342/- drawn on Union Bank of India, Palakol Branch in favour of the complainant and the same is presented for collection in Karnataka Bank Limited, Vijayawada on 11-9-1999 and the same was dishonoured with an endorsement “Insufficient funds”. After receipt of intimation from the Bank, a statutory notice dated 30-9-1999 was issued demanding payment of cheque amount within 15 days from the date of receipt of notice and the petitioner evaded to receive notice in spite of intimation to him by the postal authorities and he did not choose to pay any amount and therefore, he is liable for punishment under Section 138 of Negotiable Instruments Act. On these allegations, trial court examined one witness and marked twenty documents on behalf of the complainant and on behalf of accused, one witness is examined and six documents are marked. On an over all consideration of oral and documentary evidence, trial court found the accused guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced him to suffer one year imprisonment with a fine of Rs.5,000/-. Aggrieved by the same, he preferred an appeal to the Sessions Court and the VII Additional District and Sessions Judge, (Fast Track Court) , Vijayawada, on a reappraisal of evidence, confirmed both conviction and sentence. Aggrieved by the same, present revision is preferred.
Heard both sides.
Advocate for revision petitioner submitted that courts below erred in appreciating the evidence on record and have failed to see that ingredients of Section 138 of Negotiable Instruments Act are not made out by the complainant. He further submitted that cheque in question was not issued towards any legally enforceable debt or liability and it was only issued as a security. He further submitted that courts below failed to see that complainant has no authorisation to file the complaint. He further submitted that trial court and appellate court failed to appreciate Ex.D.1 which would support the defence version that the cheque was issued as a security which is further supported and corroborated with cheque book counterfoils marked as Exs.D.3 to D.5.
On the other hand, advocate for first respondent submitted that all the objections now raised are considered by both trial court and appellate court and both courts on proper appreciation of evidence found the accused guilty and that 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, proper and correct?
POINT:
It is the case of the complainant that the cheque in question was issued towards discharge of liability under katha transaction whereas it is the contention of the revision petitioner that the cheque was given to the complainant as a security but not towards discharge of any debt or enforceable liability.
The main ground on which revision petitioner harped is that Ex.D.1 would clearly support the plea of revision petitioner that the cheque in dispute was given as a security but not towards discharge of any liability.
It is the contention of the advocate for revision petitioner that both trial court and appellate court have not correctly appreciated this Ex.D.1 document. According to revision petitioner, one Umamaheswararao, a Field Representative of complainant gave this letter Ex.D.1 and that the accused did not examine the said Umamaheswararao but the fact remains that he gave Ex.D.1 letter and the same is marked through D.W.1. The objection of the complainant with regard to this Ex.D.1 letter is that this document is a brought up document with the help of the said Umamaheswararao only to overcome the liability.
I have perused the judgments of the trial court and the appellate court and both courts have dealt with this document with reference to the counterfoils of the cheque book which are marked as Ex.D.3 to D.5. This Ex.D.1 document was not put to complainant when he was in the witness box. P.W.1 was cross-examined on behalf of revision petitioner and the only suggestion put to him was that the cheque was given as collateral security which P.W.1 denied. There is no reference about this Ex.D.1 document during cross- examination of P.W.1. There is not even a reference as to the name of Umamaheswararao when P.W.1 was cross- examined. D.W.1 is cross-examined on behalf of complainant and it was specifically suggested to the accused that the signature on Ex.D.1 is not that of Umamaheswararao. Admittedly, this Ex.D.1 is not on the letter head of the complainant and on the other hand, it is on the letter head of revision petitioner. As rightly pointed out by advocate for complainant, if really, this Ex.D.1 letter was issued on behalf of complainant by its employee, it should have been on the Letter Head of the complainant but not on the letter head of the accused. He further submitted that when complainant specifically disputed signature of Umamaheswararao on this Ex.D.1 document, burden is on the accused to show that this Ex.D.1 was issued by Umamaheswararao on behalf of complainant. Learned trial judge while considering evidence of both parties, held that much weight cannot be given to Ex.D.1 as the accused failed to prove its execution.
From the evidence, it is clear that the accused admitted issue of Ex.P.13 to P.18 documents along with a covering letter under Ex.P.20. He has not even denied issuing of Ex.P.3 document. So having admitted issue of cheque, the burden is shifted on him to prove that it was not issued in discharge of legally enforceable liability and the accused failed in his attempt to establish the same. Both trial court and appellate court have considered all these aspects and rightly disbelieved the version of accused. In fact, accused addressed letter to the complainant on 9-8- 1999 acknowledging the liability and it would further lend support to the case of complainant.
On a scrutiny of material on record, I am of the view that both courts have not committed any error in appreciating evidence on record and that there are no incorrect findings on any of the material aspects and that there are no grounds to interfere with the concurrent findings.
For these reasons, this Criminal Revision Case is dismissed as devoid of merits 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 23-7-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.2210 OF 2005 Dated 23-7-2014 Dvs