Andhra Pradesh High Court - Amravati
Thippe Naik vs M/S. Sri Ram City Union Finance Ltd. The ... on 4 April, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL REVISION CASE NO.1505 OF 2008
ORDER:-
This Criminal Revision Case is filed by the petitioner, who was appellant in Criminal Appeal No.12 of 2007, on the file of Sessions Judge, Ananthapur, challenging the judgment, dated 30.09.2008, where under the learned Sessions Judge, Ananthur, dismissed the Criminal Appeal, confirming the conviction and sentence imposed against him in S.T.C.No.67 of 2006, on the file of Additional Judicial Magistrate of First Class, Ananthapur, dated 22.12.2006 for the offence 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 petitioner before the Court below faced trial under Section 138 of N.I. Act. At the time of examination of him, he admitted the offence and pleaded guilty, as such he was convicted and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment for three months. When he filed the Criminal 2 Appeal challenging the conviction and sentence, it was dismissed.
4) The case of the complainant before the Court below according to the complaint filed is as follows:
The complainant is M/s.Shriram City Union Finance Limited, represented by Power of Attorney Holder, K. Shafiullah. The accused obtained a loan from the complainant's company for the purpose of purchasing consumer articles as per the terms and conditions of the loan agreement, dated 26.10.2004 and the accused has to repay the said loan amount by way of monthly installments by postdated cheques and accordingly when the complainant company demanded the accused for repayment of loan amount, the accused has issued five cheques for Rs.2,379/- each respectively in favour of the complainant company towards discharge of part of his liability under the above said loan agreement. The complainant presented the said cheques to its banker, within the period of their validity and the complainant company has received information from its bank that the said cheques were dischonoured for the reason "funds insufficient". The complainant knowingly well of insufficiency of funds in his account has issued the cheques and the complainant's company has got issued a legal notice, dated 30.07.2005 by registered 3 post with acknowledgement due to the accused appraising the accused of the above fact of return of cheques as unpaid and calling upon him to make payment of the amount covered by the cheques within 15 days of its receipt and as otherwise a complaint may be instituted against the accused under Section 138 of N.I. Act. The said notice was served on the accused, but the accused failed to make any payment. Hence, the complaint.
5) The learned Additional Judicial First Class Magistrate, Anantapur, after conducting necessary enquiry by recording the sworn statement of the complainant, took the case on file under Section 138 of N.I. Act. After appearance of the accused and after complying necessary formalities under Section 207 of Cr.P.C., accused was examined under Section 251 of Cr.P.C. with regard to the acquisition against him under Section 138 of N.I. Act. During the course of such examination, he admitted the offence and pleaded guilty in open Court. The Court below holding that the admission of guilt by the accused is voluntarily found him guilty of the offence under Section 138 of N.I. Act and convicted him under Section 255 (2) of the Code of Criminal Procedure ("Cr.P.C." for short). Accordingly, the Court below sentenced him to suffer rigorous imprisonment for one year and to pay fine of Rs.5,000/-, in default to suffer simple 4 imprisonment for three months. Aggrieved by the same, the unsuccessful accused filed the Criminal Appeal No.12 of 2007 which was came to be dismissed. Challenging the same, the unsuccessful appellant, filed the present Criminal Revision Case.
6) Now, in deciding the present Criminal Revision Case, the point that arises for consideration is whether the judgment of the learned Sessions Judge, Ananthapur in Criminal Appeal No.12 of 2007, dated 30.09.2008 suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the same?
Point:-
7) Learned counsel appearing for the Revision Petitioner would contend that the petitioner was not aware of the consequences in admitting the guilt and he did not know about the consequences and mistakenly he admitted the guilt for which the Court below sentenced him to suffer rigorous imprisonment for one year and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment for three months, which is harsh. The petitioner belonged to a Tribal community and he did not know about the Court proceedings and he was made to admit guilt. The learned Sessions Judge did not appreciate the 5 contentions in proper perspective, as such, the Criminal Revision Case is liable to be allowed.
8) None represented on behalf of the first respondent/ complainant when the matter was coming to hear the arguments.
9) Admittedly, the complainant initiated prosecution against the accused alleging the offence under Section 138 of N.I. Act. The accused was said to be a F.C.I. worker. According to the complainant, the accused obtained loan for purchase of consumer articles and executed loan agreement, dated 26.10.2004 and he has to pay loan amount in monthly installments and accordingly, issued five postdated cheques for Rs.2,379/- respectively and they were dishonoured. Though the complainant issued a legal notice, dated 30.07.2005, asking to pay the amount due under the cheques, within 15 days and though he received it, but, he failed to make payment. Hence, alleging the offence under Section 138 of N.I. Act, the complainant filed the complaint.
10) There is no dispute that the accused was subjected to examination under Section 251 of Cr.P.C. (trial Court mentioned provision of law under Section 245 of Cr.P.C. mistakenly). It is not the case of the accused that he was not 6 aware of the consequences of the admission. The questions were put to the accused in Telugu and he answered in Telugu. He specifically admitted that he committed guilty and there is no need to conduct any enquiry. So, the learned Additional Judicial Magistrate of First Class, Ananthapur, having found the admission of the guilt by the accused is voluntarily and further after questioning him about the quantum of sentence, for which the accused pleaded mercy, convicted him and sentenced him as above.
11) As seen from the judgment of the learned Sessions Judge, the learned Sessions Judge also opined that the accused voluntarily admitted the offence in Telugu with a specific answer that he committed the guilt and there is no need to conduct any enquiry. The contention of the petitioner that he was made to admit the offence and that he is not aware of the consequences of admission, etc., deserves no merits. Both the Courts below made specific findings that the admission of the guilt by the accused is voluntarily.
12) Therefore, absolutely, I do not find any reason to say that the learned Sessions Judge dismissed the Criminal Appeal erroneously. However, the fact remained is that it is also the contention of the petitioner that the sentence imposed 7 against him is severe. It is a case where the petitioner admitted the guilt, the subject matter of the cheques amount was Rs.11,895/- which were on account of the installments payable by the accused when he purchased the consumer articles.
13) Having regard to the above, I am of the considered view that the sentence of rigorous imprisonment for one year imposed against the accused appears to be severe. In the light of the above, I am of the considered view that the Criminal Revision Case is liable to be allowed only to the extent of modifying the sentence of imprisonment.
14) In the result, the Criminal Revision Case is partly allowed only to the extent of modifying the rigorous imprisonment of one year to that of six months and accordingly, the petitioner shall undergo rigorous imprisonment for six months instead of one year and the rest of the judgment of the learned Sessions Judge, Ananthapur in all respects shall stand confirmed.
15) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 12.04.2023 and on such certification, the trial Court shall take necessary steps to carry 8 out the sentence imposed against the appellant (accused) and to report compliance to this Court.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 04.04.2023.
PGR 9 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. REVISION CASE NO.1505 OF 2008 Date: 04.04.2023 PGR