Telangana High Court
M/S. Ganga Bhavani Constructions vs The State Of A.P Another on 11 October, 2018
THE HON'BLE SRI JUSTICE P. KESHAVA RAO
CRIMINAL REVISION CASE NO. 992 OF 2013
ORDER:
Heard the learned counsel for the petitioner and the learned counsel for respondent No.2.
2. The present Criminal Revision Case is filed challenging the judgment passed in Crl.A.No.160 of 2012 dt.27.5.2013 on the file of the Court of the Special Judge for trial of cases under SCs and STs (POA) Act-cum-X Additional District and Sessions Judge, East Godavari district, Rajahmundry, confirming the judgment in CC.No.1971 of 2008 convicting the petitioner for the offence under Section 138 of Negotiable instruments Act and directing him to undergo simple imprisonment for a period of two years.
3. The facts in brief are that the petitioner herein borrowed a sum of Rs.10,00,000/- on 4.4.2007 from respondent No.2. On receipt of the said amount, the petitioner executed a promissory note Ex.P7 on the same day. Subsequently, on the demand of respondent No.2, petitioner issued the subject cheque i.e., Ex.P1 on 17.4.2008. When the said cheque was presented for realization, the same has been returned with an endorsement, "payment stopped by the drawer" on 18.4.2008. Thereafter, respondent No.2 got issued legal notice Ex.P3 on 2 1.5.2008. After receipt of the same, the petitioner got issued a reply notice dated 11.5.2008 vide Ex.P5. Since the petitioner has not paid any amounts even after receipt of the legal notice and the issuance of the reply notice, respondent No.2 filed CC.No.1971 of 2008. The petitioner has taken a specific defence that he lost his cheques when they were in the custody of one S.Krishna Chaithanya in the course of business transactions. Those cheques have been misused by respondent No.2 herein. The petitioner also pleaded that respondent No.2 is not having any money lending license and the advancement of Rs.10 lakhs to him is not reflected in the income tax returns of respondent No.2. On appearance, the petitioner was furnished with the complaint copy and the documents enclosed thereto. At the time of framing charge under Section 138 of Negotiable Instruments Act, the petitioner pleaded not guilty.
4. To bring home the guilt of the petitioner, respondent No.2 examined himself as PW1 and got marked Exs.P1 to P7. The petitioner examined DWs 1 and 2 and got marked Ex.D1. Learned Magistrate, after hearing the parties and appreciating the evidence on record, found that the petitioner is guilty of the offence and is convicted and sentenced to undergo simple imprisonment for two years by judgment dated 17.4.2012. 3 Aggrieved by the said judgment, the petitioner filed Crl.A.No.160 of 2012 on the file of the Court of the Special judge for trial of cases under SCs & STs POA Act - cum- X Additional District and Sessions Judge, East Godavari at Rajahmundry. Learned Additional Sessions Judge, after hearing the petitioner and respondent No.2 and after analysing the evidence on record, dismissed the appeal by judgment dated 27.5.2013 confirming the conviction given by the trial Court. Aggrieved by the same, the present Criminal Revision Case is filed.
5. Learned counsel for the petitioner strenuously contended that both the Courts below failed to appreciate that respondent No.2 has not established the ingredients of Section 138 of Negotiable Instruments Act beyond reasonable doubt. Learned counsel also submitted that the presumptions under Sections 139 and 119 of Negotiable Instruments Act will come into operation only upon the proof of ingredients of Section 138 of Negotiable Instruments Act. Both the Courts below also failed to appreciate that the alleged amount of Rs.10 lakhs paid to the petitioner, is not reflected in the income tax returns of respondent No.2. He also submitted that there was no consideration as on the date of issuance of the cheque. 4
6. Per contra, learned counsel for respondent No.2 supported the impugned judgment.
7. Having heard both the counsel and from the perusal of the material on record, it is revealed that the petitioner has issued the promissory note and the subject cheque i.e., Exs.P7 and P1 respectively towards receipt of Rs.10 lakhs from respondent No.2. When the said cheque was presented for realization, it was returned with an endorsement "payment stopped by the drawer". When a legal notice was issued under Ex.P3, the petitioner got issued a reply vide Ex.P5 denying the contents of Ex.P3. During the course of evidence, the petitioner has taken a specific defence that he lost cheques including the subject cheque i.e., Ex.P1 from the custody of one S.Krishna Chaithanya in the course of business transactions and respondent No.2 misused one of such cheques and filed a false complaint against him. The defence taken by the petitioner indicates that the promissory note and the subject cheque have been issued by him and they contain his signatures. When once the petitioner has admitted the signatures on the subject cheque, the presumption under Section 139 of Negotiable Instruments Act is automatic. Then the initial onus on the part of respondent No.2 stands discharged. Therefore, the petitioner has to prove by way of 5 rebuttal that the subject cheque was not issued towards the legally enforceable debt.
8. In the case on hand, the petitioner has taken a specific defence as stated supra. During the course of trial, admittedly, he has not examined the said S.Krishna Chaithanya from whose custody the cheques were lost. That apart, when the petitioner has realised that he lost his cheques from the custody of S.Krishna Chaithanya in the course of business transactions, admittedly, he has not lodged any complaint with the concerned police. Therefore, when the petitioner has not discharged the onus by producing cogent evidence, it cannot be said that the petitioner is not liable to pay the said amount and Ex.P1 cheque was not issued towards the said legally enforceable debt.
9. Therefore, this Court is of the opinion that there is no irregularity or illegality in the judgment of the lower appellate Court. There are no merits in the Criminal Revision Case and the same is liable to be dismissed.
10. Accordingly, Criminal Revision Case is dismissed.
11. At this stage, learned counsel for the petitioner requested this Court to reduce the sentence of imprisonment on the ground that the petitioner alone is the bread winner of the family. He got college going children and if he is imprisoned 6 for two years, his family will be totally shattered. Apart from the same, he also has to maintain his aged parents who are totally dependant on him. Therefore, any amount of hardship will be caused to him.
12. Learned counsel for respondent No.2 opposed for reducing the sentence.
13. However, this Court, after considering the circumstances, more particularly, when the petitioner is financially crippled, this Court is inclined to take a lenient view for reducing the sentence of imprisonment of two years to one year.
14. Accordingly, this Court, while upholding the conviction of the petitioner as stated supra, reduce the sentence of imprisonment from two years to one year.
Pending miscellaneous petitions, if any, shall also stand dismissed.
_________________ P. KESHAVA RAO,J Date: 11.10.2018 KPM