Telangana High Court
N. Mohan vs The State Of Telangana on 14 November, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
1
Dr.GRR, J
crlrc_3414_2018
THE HON'BLE DR. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No. 3414 of 2018
ORDER:
This Criminal Revision Case is filed by the petitioner-appellant-accused aggrieved by the judgment of the Metropolitan Sessions Judge, Hyderabad in Criminal Appeal No. 1391 of 2017 dated 19.10.2018 confirming the judgment passed by the XI Special Magistrate, Hyderabad in C.C.No.9 of 2017 dated 27.11.2017 in convicting the accused for the offence under Section 138 of Negotiable Instruments Act and sentencing him to suffer rigorous imprisonment for a period of eleven (11) months and to pay an amount of Rs.11,00,000/- as compensation under Section 357(3) of Cr.P.C. to the complainant within one month from the date of the order and in default of payment of the same to undergo simple imprisonment for a period of two and half months.
2. The case of the respondent No.2-complainant was that, he and the accused were neighbours and out of the said acquaintance, the accused requested the complainant for a hand loan of Rs.5,00,000/- in the month of October, 2013 to meet his urgent financial business needs. Though, the complainant informed his inability stating that he was not having such huge amount at his disposal, the accused pestered him to do something to help him to come out of his dire financial necessity. At that stage, with an understanding 2 Dr.GRR, J crlrc_3414_2018 that the accused would pay monthly EMIs and the total amount would be settled in not later than six (06) calendar months, the complainant obliged the same by raising personal loans from two (02) banks and from other sources and gave the amount of Rs.5,00,000/- in cash to the accused. In addition to the said amount, the accused had taken some other amounts also from the complainant. The accused failed to pay the monthly EMIs and requested the complainant to pay the EMIs for the next six (06) months stating that he invested full amount in his business and that he would pay back the full amount within six (06) months as promised including the bank interest amount in one settlement and thus made the complainant to pay the EMIs. Later, on persistent demand, on 16.03.2016 the accused issued Ex.P1 cheque bearing No. 000110 dated 30.06.2016 for an amount of Rs.5,00,000/- in favour of the complainant. When the complainant presented the said cheque for realization on 30.06.2016, the same was returned unpaid by the accused banker for the reason "funds insufficient" vide Ex.P2, cheque return memo dated 04.07.2016. The complainant got issued Ex.P3, legal notice dated 19.07.2016 under Ex.P4, postal receipt calling upon him to make payment of the amount due under the dishonoured cheque within fifteen (15) days from the date of receipt of the notice. After receipt of the said notice, the accused gave Ex.P5 reply dated 03.08.2016 with bald allegations but did not pay the dishonoured cheque amount. Hence, filed the complaint on 27.08.2016. 3
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3. The case was tried by the XI Special Magistrate, Hyderabad. The complainant examined himself as PW1 and marked Exs.P1 to P6 documents. The accused failed to adduce any defence evidence. On considering the oral and documentary evidence on record, the trial court found the accused guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced him as above.
4. Aggrieved by the said conviction and sentence, the accused preferred an appeal. The appeal was heard by the Metropolitan Sessions Judge, Hyderabad vide Criminal Appeal No.1391 of 2017 and vide judgment dated 19.10.2018 dismissed the same confirming the judgment of the trial court passed by the XI Special Magistrate, Hyderabad.
5. Aggrieved further, the petitioner-appellant-accused preferred this revision contending that the complainant had not filed any loan documents to show that he had obtained loan amount of Rs.2,00,000/- from ICICI bank and Rs.2,50,000/- from SBI bank. The lower court failed to observe that the complainant had admitted in his cross-examination that he was working as software engineer and his earnings was above Rs.1,00,000/- but not filed any tax returns and not gave any finding with regard to his financial capacity. The lower court failed to observe that at the time of taking loan, no receipt was issued and there was no evidence as to when the accused approached the complainant and on which date he had taken the loan amount. The lower court 4 Dr.GRR, J crlrc_3414_2018 failed to observe that when the complainant had taken loan from different banks, the number of installments was not mentioned in his chief examination. The lower court mechanically confirmed the judgment of the trial court without applying mind. The lower court had not given any finding about the statement of complainant in his cross-examination that he had given further amount of Rs.75,000/- to the accused. But however, there was no receipt or documentary evidence. The lower court failed to observe that basing on the reply given by the petitioner under Ex.P5, sentencing the petitioner-accused was illegal. When the petitioner in his 256 Cr.P.C. and 313 Cr.P.C. examinations clearly denied about taking any loan and giving any cheque to the complainant, the lower court coming to a conclusion that he failed to bring on record some documentary proof such as receipt or any evidence that he paid an amount of Rs.3,00,000/- or entire loan amount of Rs.5,00,000/- was illegal and prayed to set aside the order in Criminal Appeal No.1391 of 2017 dated 19.10.2018 by the Metropolitan Sessions Judge, Nampally, Hyderabad.
6. Heard the learned counsel for the revision petitioner and the learned counsel for respondent No.2-complainant.
7. The learned counsel for the petitioner contended that no reasons were given by the lower appellate court in Criminal Appeal No.1391 of 2017 and 5 Dr.GRR, J crlrc_3414_2018 relied upon the judgment of the Hon'ble Apex Court in Rama and Others v. State of Rajasthan1.
8. The learned counsel for the respondent-complainant on the other hand contended that the petitioner-appellant-accused admitted taking loan from the complainant and issuance of cheque and he pleaded the defence of discharge that he repaid the loan amount but failed to adduce any evidence. As such, by taking aid of the presumptions under Section 118 and 139 of Negotiable Instruments Act, both the trial court and the lower appellate court found the accused guilty for the offence under Section 138 of Negotiable Instruments Act. The trial court recorded the findings elaborately and the appellate court observing that there were no compelling reasons to interfere with the judgment of the trial court confirmed the same and relied upon the judgment of the Hon'ble Apex Court in Rangappa v. Mohan 2 , Hiten P. Dalal v. Bratindranath Banerjee3, K.N.Beena v. Muniyappan and Others4, Kishan Rao v. Shankargoud5, Tedhi Singh v. Narayan Dass Mahant6 .
9. Perused the record. The trial court on considering the evidence on record observed that the defence taken by the accused was the plea of discharge but failed to adduce any evidence that he repaid the loan amount and not brought on record any piece of document or evidence to substantiate his stand and 1 (2002) 4 SCC 571 2 AIR (2010) SC 1988 3 AIR (2001) SC 3897 4 AIR (2001) SC 2895 5 AIR (2018) SC 3173 6 MANU/SC/0310/2022 6 Dr.GRR, J crlrc_3414_2018 considering the defence taken by him in his reply notice marked under Ex.P5 that one cheque out of the two signed blank cheques available with the complainant was misused by the complainant, but the accused had not taken any action against the complainant by filing any criminal case for misusing the cheque or issued any legal notice to him for return of the signed blank cheques or had given any information to the bank by giving 'stop payment' instructions, prior to initiation of any action by the complainant, came to the conclusion that the accused failed to probabalise his defence and failed to create any doubt over the existence of legally enforceable debt or liability.
10. The trial court observed that the evidence of PW1 coupled with the corroborative documentary evidence marked under Exs.P1 to P6 proved that there existed legally enforceable debt or liability of Rs.5,00,000/- and towards discharge of the same, the accused issued Ex.P1 cheque which was dishonoured and even after issuance of notice, failed to repay the debt or liability, decided the case in favour of the complainant.
11. The contention of the learned counsel for the petitioner that the lower appellate court had not discussed the evidence is not correct. The lower appellate court on considering the evidence only observed that as far as borrowing of Rs.5,00,000/- was concerned, there was no dispute, so also with regard to signature on the cheque, there was no dispute, the trial court on considering the reply of respondent with regard to the part payments made by him and also considering the fact that the appellant never tried to get back the 7 Dr.GRR, J crlrc_3414_2018 empty pro-notes even though he made the entire payment, by relying on the judgments of the Hon'ble Apex Court in K.N.Beena v. Muniyappan and Others (4 supra) , T.Vasantha Kumar v. Vijayakumari, Rangappa v. Mohan (2 supra), Hiten P. Dalal v. Bratindranath Banerjee (3 supra) and as the appellant did not adduce any evidence before the trial court with regard to the plea of discharge taken by him, dismissed the appeal confirming the judgment of the trial court.
12. The scope of revision is very limited. This Court ordinarily would not interfere with the concurrent findings of the courts below unless there are exceptional circumstances justifying the departure from the normal practice.
13. The learned counsel for the respondent relied upon the judgment of the Hon'ble Apex Court in State of Rajasthan v. Fatehkaran Mehdu7 wherein it was observed that:
"The object of Section 397 Cr.P.C.is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding"
and by referring to its earlier judgment in Amit Kapoor v. Ramesh Chander 8 wherein the scope of Section 397 Cr.P.C. had been succinctly considered and explained, extracted the same as follows:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with 7 (2017) 3 SCC 198 8 (2012) 9 SCC 460 8 Dr.GRR, J crlrc_3414_2018 law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."
14. He also relied upon the judgment of the Hon'ble Apex Court in Rangappa v. Mohan (2 supra), wherein it was held that:
"we are in agreement with the respondent-complainant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability".
"there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof".
"In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail".
15. In K.N.Beena v. Muniyappan and Others (4 supra) also the Hon'ble Apex Court held that:
"Under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However the burden of proving 9 Dr.GRR, J crlrc_3414_2018 that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee9 has also taken an identical view.
16. In Hiten P. Dalal v. Bratindranath Banerjee (9 supra), the Hon'ble Apex Court held that:
"it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused". Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact".
"In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'".
17. The trial court as well as the appellate court having found that the cheque contained the signatures of the accused which was not disputed by the accused and the accused had taken the plea of discharge but had not led any evidence to prove the said plea and on the contrary in the reply notice given by him marked under Ex.P5 admitted taking loan from the complainant, rightly convicted the accused for the offence under Section 138 of Negotiable Instruments Act. 9 2001 Cri LJ 4647 10 Dr.GRR, J crlrc_3414_2018
18. But, however considering that the trial court sentenced the accused to suffer rigorous imprisonment for eleven (11) months and to pay an amount of Rs.11,00,000/- as compensation under Section 357 (3) Cr.P.C. which was more than double the amount of cheque, it is considered fit to modify the sentence by vacating the sentence of imprisonment and reducing the payment of compensation from Rs.11,00,000/- to Rs.10,00,000/- and in default of payment of compensation within one month from this date, the sentence of rigorous imprisonment for eleven (11) months would be restored. As the petitioner- appellant-accused had deposited one-fourth of the compensation amount before the trial court which was permitted to be with-drawn, he is directed to pay the balance amount, out of Rs.10,00,000/-, within one month from the date of this order or else has to suffer the rigorous imprisonment for eleven (11) months.
19. In the result, the Criminal Revision Case is partly allowed with the above modification.
Miscellaneous applications pending, if any, shall stand closed.
______________________ Dr. G.RADHA RANI, J Date: 14.11.2022 nsk