Andhra Pradesh High Court - Amravati
A.Amaranadh Babu, vs Gutha Suresh And Another, on 12 May, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL REVISION CASE NO.1117 OF 2009
ORDER:-
This Criminal Revision Case is filed by the petitioner, who was the appellant in Criminal Appeal No.260 of 2006, on the file of VIII Additional Sessions Judge (F.T.C.), Guntur ("Additional Sessions Judge" for short), challenging the judgment, dated 13.12.2007, whereunder the learned Additional Sessions Judge dismissed the Criminal Appeal filed by the appellant, confirming the judgment, dated 05.05.2006 in C.C.No.134 of 2005, on the file of V Additional Munsif Magistrate, Guntur, under Section 138 of Negotiable Instruments Act ("N.I. Act" for short).
2) The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court for the sake of the convenience.
3) The first respondent herein in the capacity of the complainant before the Court below filed a complaint under Sections 190 and 200 of the Code of Criminal Procedure ("Cr.P.C." for short), alleging the offence under Section 138 of N.I. Act.
4) The case of the complainant before the Court below is that the accused borrowed a sum of Rs.30,000/- on 09.05.2004 from him to meet his family expenses with a promise to repay the 2 amount with interest at 24% per annum either to him or to his order on demand. The accused executed a promissory note to that effect on the same day. On repeated demands made by the complainant, the accused issued a cheque bearing No.127491, dated 09.11.2004 for Rs.33,600/-, drawn on United Bank of India, Guntur, towards full and final settlement of the promissory note debt. The accused informed to the complainant that sufficient funds are available in the bank account to honour the cheque. The complainant presented the said cheque through his banker Punjab National Bank, Arundelpet Branch, Guntur for collection. Later, it was dishonoured by the United Bank of India, dated 16.11.2004, with an endorsement as insufficient funds. The United Bank of India, Guntur, returned the cheque to the complainant banker and in turn the complainant's banker intimates the same to the complainant. The complainant got issued a registered statutory legal notice on 01.12.2004 with postal acknowledgement due calling upon the accused to make payment within 15 days from the date of receipt of the notice. The accused received the notice on 02.12.2004 and kept quiet. Hence, the complaint.
5) The learned V Additional Munsif Magistrate, Guntur, took cognizance under Section 138 of N.I. Act. After appearance 3 of the accused and after furnishing copies of documents under Section 207 of Cr.P.C., he was examined under Section 251 of Cr.P.C. with reference to the allegations in the complainant case, for which he denied the allegations, pleaded not guilty and claimed to be tried.
6) During the course of trial on behalf of the complainant before the court below, P.W.1 to P.W.3 were examined and Ex.P.1 to P.6 were marked. After closure of the evidence of the complainant, the accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence, for which he denied the same and stated that he has defence witnesses. The accused in furtherance of his defence, examined himself as D.W.1.
7) The learned V Additional Munsif Magistrate, Guntur, on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the offence under Section 138 of N.I. Act, convicted him under Section 255 (2) of Cr.P.C. and after questioning him about the quantum of sentence, sentenced him to suffer rigorous imprisonment for four months and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for one month. Aggrieved by the said judgment, the unsuccessful accused filed Criminal Appeal No.260 of 2006 4 before the learned VIII Additional Sessions Judge (F.T.C.), Guntur, which was dismissed on merits. Felt aggrieved of the same, the unsuccessful appellant as above, filed the present Criminal Revision Case.
8) Now, in deciding this Criminal Revision Case, the point that arises for consideration is as to whether the judgment, dated 13.12.2007 in Criminal Appeal No.260 of 2006, on the file of learned VIII Additional Sessions Judge (F.T.C.), Guntur, suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the said judgment? POINT:-
9) Sri M. Pitchaiah, learned counsel for the revision petitioner, would contend that the revision petitioner denied the execution of Ex.P.1-promissory note and Ex.P.2-the so-called cheque. Though the accused denied the same, the complainant did not examine any other witnesses to prove the due execution and the Court below simply on the ground that Ex.P.1 and Ex.P.2 bears the signatures of the accused, upheld the contention of the complainant. It was for the complainant to prove that the accused borrowed Rs.30,000/- under Ex.P.1 and issued Ex.P.2 towards the discharge of the debt. The accused examined himself as D.W.1 to negative the case of the complainant and the Court below did not 5 find favour with the case of the complainant. Even the learned Additional Sessions Judge failed to appreciate the contentions in proper perspective, as such, for want of proof regarding the execution of the promissory note and cheque in question, the Criminal Revision case is liable to be allowed.
10) Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor for second respondent/ State, submits that the second respondent is only a proforma party.
11) In spite of opportunity given, none advanced any arguments on behalf of the first respondent/complainant.
12) As seen from the evidence of P.W.1, he got filed his chief examination affidavit reiterating the case in tune with the complaint averments. Through him, Ex.P.1-promissory note, Ex.P.2-cheque, Ex.P.3-memo issued by United Bank of India, Guntur, Ex.P.4-debit advice, dated 16.11.2004, issued by Punjab National Bank, Guntur, Ex.P.5 office copy of the registered legal notice, dated 01.12.2004 and Ex.P.6-postal acknowledgement are marked. The complainant further examined P.W.2, who deposed that he is working as Manager in Punjab National Bank, Arundelpet Branch, Guntur. The complainant had an account in the bank and he presented Ex.P.2 cheque for collection which was 6 sent to United Bank of India, Guntur, for clearance on 16.11.2004. It was returned dishonoured with an endorsement funds are insufficient. Ex.P.3 is the memo issued by United Bank of India. The complainant further examined P.W.3, who deposed that he is working as Manager in United Bank of India. Ex.P.2 was sent to their bank for collection, but it was returned as dishonoured on the ground that funds were insufficient. So, they sent Ex.P.3 memo.
13) The accused examined himself as D.W.1, who deposed that he is working as Attender in United Bank of India, Guntur. He approached one P. Srinivasa Rao for loan of Rs.5,000/- and Srinivasa Rao told him that to give the said amount, he need blank cheque and blank promissory note. Therefore, he gave blank cheque and blank promissory note to him to obtain loan of Rs.5,000/-. Srinivasa Rao told him to come after one week to take the money. Due to his daughter's educational purpose to pay the school fee, he gave such blank cheque and blank promissory note. Later, after one week he went to Srinivasa Rao to ask about his loan amount, but he was not traced. Ultimately, he (D.W.1) paid the fee out of his salary. Two months thereafter he traced Srinivasa Rao and asked him to return the blank cheque and blank promissory note and he 7 postponed to give it on some other day and dragged the issue. The said Srinivasa Rao told him that it was given to one G. Suresh to obtain loan. Thereafter, the complainant filed false case.
14) As seen from the cross examination part of P.W.1, he deposed that Ex.P.1 was executed at his house at 9-00 a.m. He secured the scribe by name E. Suresh Kumar. The first attestor by name M. Surendranath was brought by the accused. The scribe is resident of Brodipet, Guntur. He does not know who brought the second attestor. He made phone call to scribe to come to his house at 9-00 a.m. Accused came to his house at 8-30 a.m. He got issued Ex.P.5 to the residential address of the accused. Ex.P.6 was issued to the bank address of the accused. The accused can write in English and in Telugu. The accused asked him to get scribe the contents of Ex.P.1 by some other persons. Prior to the date of Ex.P.1, the accused came and asked him to lend the amount. The accused issued Ex.P.2 towards the part payment of the debt. He issued it on 09.11.2004 at 10-00 a.m. at the bank. The accused gave cheque signed by him by asking him to fill up the columns and as instructed by him, he filled up Rs.33,600/-. He denied that the accused never borrowed any amount from him and never executed Ex.P.1.
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15) As seen from the cross examination of P.W.1, the accused did not deny his signatures on Ex.P.1 promissory note and Ex.P.2 cheque in question. Absolutely, he did not explain any during cross examination as to under what circumstances his signatures were there on Ex.P.1 and Ex.P.2. Even during Section 313 of Cr.P.C. examination questionnaire also he never explained the above. Curiously, for the first time during the evidence, D.W.1 deposed as if he approached one Srinivasa Rao to borrow the amount to pay tuition fee of his daughter and said Srinivasa Rao obtained blank promissory note and blank cheque and later did not pay any loam amount to him, as such, he paid the tuition fee out of his salary and after one or two months thereafter, he approached Srinivasa Rao and asked him to return the blank promissory note and blank cheque and he dragged the issue, etc. The answers spoken by D.W.1 during cross examination would negative his defence. During cross examination he deposed that P. Srinivasa Rao is a moneylender and he approached him for loan of Rs.5,000/-. He never borrowed any amount prior to that. Though he gave blank promissory note and blank cheque to Srinivasa Rao, in fact, he did not lend any amount. Though he did not lend any amount and he did not return the promissory note and cheque, but, he (D.W.1) did not issue any registered notice to 9 return the blank promissory note and blank cheque. He received registered legal notice from the complainant regarding the cheque dishonour. He did not send any reply. He did not give any registered notice to Srinivasa Rao even after filing of the complaint against him by the complainant. The signatures on Ex.P.1 and Ex.P.2 belonged to him. He denied that he is deposing false.
16) As evident from the cross examination part of D.W.1, according to him, he gave blank promissory note and blank cheque to one Srinivasa Rao to get an amount of Rs.5,000/-. The said Srinivasa Rao did not give any loam amount to him. It is rather improbable that without getting loan amount of Rs.5,000/-, the accused could venture to handover the blank signed cheque and blank signed promissory note to Srinivasa Rao. Apart from this, a man of reasonable prudence in such circumstances would not venture to deliver the blank promissory note and blank cheque without receiving the amount. He would definitely issue a legal notice or a notice in writing asking Srinivasa Rao to return the blank signed cheque and blank signed promissory note. He would definitely issue a notice at-least after filing of complaint by the complainant brining to the notice of Srinivasa Rao that the so- called cheque signed by him was misused by the complainant. He 10 would further venture to issue a reply to the legal notice issued by the complainant alleging dishonour of cheque. Therefore, the act of the accused in keeping quiet is not that of a man of reasonable prudence. There is no dispute about the signatures of D.W.1 on Ex.P.1 and Ex.P.2.
17) The evidence of P.W.1 is fully convincing. The evidence of D.W.1 is not convincing. The complainant examined himself as P.W.1 and got marked Ex.P.1 and Ex.P.2 to discharge the burden relating to its execution. There is no dispute about the signatures of the accused on Ex.P.1 and Ex.P.2. He was supposed to explain how there were signatures on Ex.P.1 and Ex.P.2. The evidence of D.W.1 is nothing but improbable. Virtually, the evidence of D.W.1 is not liable to be believed. The contention of the Revision Petitioner that the complainant before the Court below did not prove the execution of Ex.P.1 and Ex.P.2 is not at all tenable. In judging as to whether the evidence of P.W.1 is to be believed or whether the evidence of D.W.1 is to be believed, the attending circumstances are to be looked into. The natural reaction of the accused has to be looked into in the given situation. The reaction of the accused is not that of a man of reasonable prudence. The V Additional Munsif Magistrate, Guntur rightly dealt with all these issues and found favour with the case 11 of the complainant that the complainant proved Ex.P.1 and Ex.P.2.
18) Turning to the other statutory requirements under Section 138 of N.I. Act, the complainant immediately after receipt of information regarding the dishonour of cheque, issued a legal notice within the statutory period of 15 days and it was received by the accused. There is no dispute about the receipt of legal notice by the accused and it is also proved by virtue of Ex.P.6, postal acknowledgement. Therefore, after having waited the statutory period, the complainant filed the complaint. So, the complainant proved other statutory requirements under Section 138 of N.I. Act. The factum of dishonour of Ex.P.2 was proved by virtue of the evidence of P.W.1 and P.W.2 and P.W.3 the bank officials. The learned Additional Sessions Judge (F.T.C.), Guntur, rightly looked into all the circumstances and delivered a reasonable judgment, dismissing the Criminal Appeal. Hence, the impugned judgment is legally sustainable and it does not suffer with any irregularity and impropriety. Hence, I see no reason to interfere with the same.
19) In the result, the Criminal Revision Case is dismissed.
20) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the 12 trial Court on or before 19.05.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant and to report compliance to this Court.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 12.05.2023.
PGR 13 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. REVISION CASE NO.1117 OF 2009 Registry to circulate a copy of this order to the Court below on or before 19.05.2023.
Date: 12.05.2023 PGR