Andhra Pradesh High Court - Amravati
This Criminal Revision Case Is Filed By ... vs X Additional District & Sessions Judge on 16 March, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL REVISION CASE NO.1384 OF 2007
ORDER:-
This Criminal Revision Case is filed by the petitioner, who was the appellant in Criminal Appeal No.66 of 2006, on the file of X Additional District & Sessions Judge, Krishna at Machilipatnam ("Additional Sessions Judge" for short) and who was the accused in C.C.No.543 of 2004 on the file of Additional Judicial Magistrate of First Class, Avanigadda, challenging the judgment, dated 20.08.2007, in the above appeal where under the learned Additional Sessions Judge, dismissed the Criminal Appeal filed by the appellant, as such, confirmed the judgment, dated 17.05.2006 in C.C.No.543 of 2004. The revision petitioner faced trial before the Court below for the offence under Section 138 of Negotiable Instruments Act ("N.I. Act" for short) and he was convicted under Section 255 (2) of the Code of Criminal Procedure ("Cr.P.C." for short) and sentenced to suffer rigorous imprisonment for two years and to pay an amount of Rs.1,50,000/- towards compensation.
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.
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3) The case of the complainant before the Court below, according to the averments in the complaint under Section 190(1) of Cr.P.C. is that the complainant is resident of Avanigadda. On 15.05.2002 the accused borrowed a sum of Rs.1,50,000/- from the complainant to do his business, agreeing to repay the same with interest at 18% per annum payable on demand to the complainant or on his order. On the even day, he executed a demand promissory note in favour of the complainant. On repeated demands made by the complainant, the accused issued a postdated cheque, dated 27.06.2004 for an amount of Rs.1,50,000/- towards part payment of debt due under the promissory note vide cheque bearing No.923919 drawn in the name of State of Bank of India, Avanigadda in favour of the complainant. The complainant presented the said cheque for collection in Indian Bank, Avanigadda in September, 2004. The Indian Bank, Avanigadda forwarded the cheque for collection to State Bank of India, Avanigadda. The State Bank of India, Avanigadda returned the cheque along with a cheque returned memo with date of 01.10.2004, with a reason that the accused account was closed. It was intimated to the complainant by Indian Bank along with memo, dated 05.10.2004 with a returned memo of State Bank of India along with the cheque. The closure of the account of the accused would amounts to dishonour of 3 cheque. The complainant had properties and capacity to lend the amount under the promissory note. There is subsisting and legally enforceable debt due by the accused to the complainant. The accused with a dishonest intention to deceive the complainant to get wrongful gain issued the cheque. The complainant issued a registered notice on 19.10.2004 to the accused intimating the dishonour of the cheque and requesting to pay the amount within 15 days. The complainant also issued the notice by way of certificate of posting on the same day. The accused received the notice under certificate of posting and knowing the contents thereof, kept silent. He got managed to endorse that door locked with regard to the registered notice, knowing fully well about the dishonour of cheque and its consequences. Postal authorities returned it with the said endorsement. Hence, the complaint.
4) The learned Additional Judicial Magistrate of First Class, Avanigadda, after recording the Sworn statement of the complainant, took the case on file for the offence under Section 138 of N.I. Act and after appearance of the accused and after complying the provisions relating to Section 207 of Cr.P.C., examined the accused under Section 251 of Cr.P.C., for which the accused denied the allegations, pleaded not guilty and claimed to be tried.
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5) During the course of trial, on behalf of the complainant before the Court below, P.W.1 and P.W.2 were examined and Ex.P.1 to P.7 were marked. After closure of the evidence of the complainant, the accused was examined under Section 313 of Cr.P.C. with regard to the incriminating circumstances in the evidence of the complainant witnesses, for which he denied the same. The accused in furtherance of the defence, examined himself as D.W.1 and also examined D.W.2, the bank official and got marked Ex.D.1 to D.4.
6) The learned Additional Judicial Magistrate of First Class, Avanigadda, 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 sentenced him to suffer rigorous imprisonment for two years and to pay an amount of Rs.1,50,000/- towards compensation to the complainant. Aggrieved by the said judgment, the unsuccessful accused in the above said C.C.No.543 of 2004, filed the Criminal Appeal No.66 of 2006 before the learned X Additional District & Sessions Judge, Krishna at Machilipatnam, which came to be dismissed on merits. Aggrieved by the said judgment in Criminal Appeal No.66 of 2006, the unsuccessful appellant filed the present Criminal Revision Case.
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7) Now, in deciding this Criminal Revision case, the point that arises for consideration is that as to whether the judgment, dated 20.08.2007 in Criminal Appeal No.66 of 2006, on the file of learned X Additional District & Sessions Judge, Krishna at Machilipatnam, suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the said judgment of the learned Additional Sessions Judge? POINT:-
8) Smt. Y. Anupama Devi, learned counsel for the revision petitioner, would contend that the complainant before the Court below failed to prove that Ex.P.1, cheque, was issued by the accused in favour of the complainant for discharge of the legally enforceable debt. The accused put forth a defence before the Court below that the complainant stolen Ex.P.1 from the custody of the appellant. Except the signature and account number in Ex.P.1, the rest of the contents of Ex.P.1 were not in the hand writing of the accused. The complainant failed to send statutory notice under Section 138 of N.I. Act. The complainant stage managed the postal officials and got endorsed on the postal cover as if the accused was absent in the town. The accused denied the execution of Ex.P.7, promissory note. The complainant failed to prove the execution of Ex.P.7, promissory note. Though the accused examined D.W.2 to prove that way back in the year 2001 6 his account was closed, both the Courts below failed to appreciate the contention of the revision petitioner in proper perspective.
There was no question of issuing a cheque in the year 2004 when the accused got closed his bank account in the year 2001. He examined himself as D.W.1 and examined D.W.2 to prove the defence of the accused. Hence, the Criminal Revision Case is liable to be allowed.
9) The second respondent is only a formal party.
10) In spite of opportunity, the first respondent/ complainant failed to argue the matter.
11) P.W.1 before the Court below was the complainant and he filed his chief examination affidavit reiterating his case in tune with the complaint averments. Through his examination in chief, Ex.P.1 to Ex.P.7 were marked. Ex.P.1 is the cheque bearing No.923919 issued by the accused. Ex.P.2 is the memo issued by State Bank of India, Avanigadda, dated 01.10.2004 to show that Ex.P.1 was dishonoured as accused closed the account. Ex.P.3 is the memo issued by the Indian Bank, Avanigadda, dated 05.10.2004. Ex.P.4 is the office copy of the registered legal notice, dated 19.10.2004. Ex.P.5 is the registered returned notice. Ex.P.6 is the proof for certificate of posting. Ex.P.7 is the promissory note.
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12) The complainant further examined P.W.2, who deposed that on 15.05.2002 accused borrowed Rs.1,50,000/- from the complainant and executed a promissory note and it was scribed by one Batchu Narasimha Rao. He (P.W.2) attested the said promissory note. He can identify the promissory note and his signature. Ex.P.7 is the said promissory note which bears his signature.
13) D.W.1 before the Court below is the accused and his evidence in substance is that he never borrowed any amount from the complainant under Ex.P.7, promissory note. The signature on Ex.P.7 is not of him. He closed his business in the year 2001. He never issued Ex.P.1 in part discharge of Ex.P.7. The contents in Ex.P.1 were not filled up. The signature on Ex.P.1 belonged to him. He also filled up account number. He is in the habit of keeping signed blank cheques for issuing the same to his business customers whenever he wanted to issue cheque to the concerned. He will note his name and issue the same by affixing his firm stamp i.e., Tajeswani Enterprises. He does not know how the complainant came into possession of Ex.P.1. He did not receive any notice under certificate of posting. He did not receive registered notice from the complainant. He had no account in his individual name in State Bank of India, Avanigadda. The Firm Tajeswani Enterprises account was closed in the month of 8 November, 2001. The complainant filed this complaint at the instigation of one Simhadri Rai, who is his cousin.
14) Turning to the evidence of D.W.2, the Branch Manager, State Bank of India, Avanigadda, he deposed that he brought the ledger relating to Current Account No.C/A C&I 243 of Tajeswani Enterprises, Avaniagadda. It was opened on 09.03.2001. On that day, they provided cheque book facility to the Proprietor of Tajeswani Enterprises, Simhadri Srinivasa Rao through a letter. On 15.11.2001 it was closed by the customer at request of Proprietor of Tajeswani Enterprises through a letter. Ex.D.1 is the attested Photostat copy of the cheque book issuing register which shows that on 09.03.2001 cheque book bearing Nos.923901 to 925 was issued to the Proprietor, Tajeswani Enterprises. Ex.D.2 is the attested Photostat true copy of Account opening form of Tajeswani Enterprises. Ex.D.3 is the letter, dated 15.11.2001 submitted by the Proprietor of Tajeswani Enterprises with a request to close the account and he withdrawn an amount of Rs.9,827/-, the remaining balance. Ex.D.4 is the attested Photostat copy of loose leaf cheque submitted by the Proprietor at the time of closing of the account.
15) P.W.1 during the cross examination deposed that the accused is his brother-in-law by courtesy. He deposed that he used to visit the house of the accused and the accused used to 9 visit his house. The signature on Ex.P.1 is a different ink with the body of the cheque and its writing. He does not know whether Ex.P.1 belongs to M/s.Tajeswani Enterprises or not. According to Ex.P.5, the accused was not in town on 20.10.2004. He denied that the accused did not receive Ex.P.4 notice under Ex.P.6 certificate of posting. He denied that the accused did not execute the demand promissory note. He denied that he and his brother- in-law, Simhadri Ravi, stolen Ex.P.1 from the house of the accused with a signature by the accused and filed the present case for wrongful gain. He denied that the accused did not issue Ex.P.1 in discharge of promissory note debt. He denied that the accused did not execute Ex.P.7. During the cross examination, P.W.2, the attestor of Ex.P.7, deposed that on the date of Ex.P.7, he was called by the accused at 10-00 a.m. Then, they went to the house of the complainant. At the advice of the complainant, they three came to Sub-Registrar Office, Avanigadda. He denied that he is deposing false.
16) During the cross examination, D.W.1 denied the case of the complainant. He deposed that there is a cheque dishonour case pending against him at Vijayawada, filed by one Sudhakar. He is in the habit of verification of blank signed cheques which are in the custody whether they are in safe condition or not. He returned unused leaves of the cheque book to his banker at the 10 time of closing of the account form. He has no disputes with the postal department. He denied that he received the notice under certificate of posting and avoided to receive the notice under registered post. He denied that he got filled up Ex.P.1 through his friend and handed over to the complainant towards part satisfaction of Ex.P.7. He denied that he issued Ex.P.1 suppressing that he closed his account. It is true that he did not give any report either to the police or to the bank about the loss of Ex.P.1. He denied that he is deposing false to escape from his liability. Turning to the evidence of D.W.2, the bank official, he deposed in cross examination that Ex.P.1 cheque is one of the leaves relating to the cheque book issued to the Proprietor of Tajeswani Enterprises on 09.03.2001. Ex.D.3, letter, did not disclose that the Proprietor of Tajeswani Enterprises lost any leaf from the cheque book. Even Ex.D.3 did not disclose the return of unused cheques to their branch. As per Ex.P.2, the cheque was dishonoured due to account closed.
17) Admittedly, both the Courts below found favour with the case of the complainant upholding the contention of the complainant under Section 138 of N.I. Act. It is no doubt true that the complainant was supposed to prove before the Court below that the accused issued Ex.P.1 towards part discharge of legally enforceable debt and that the complainant presented the 11 same within the time with the bank and that it was dishonoured and that he further complied with the statutory requirements of Section 138 of N.I. Act. Both the Courts below on analysation of the evidence on record found favour with the case of the complainant. Therefore, this Criminal Revision Case against the concurrent findings of the learned Additional Judicial Magistrate of First Class, Avanigadda and the learned X Additional District and Sessions Judge, Krishna at Machilipatnam.
18) The complainant examined P.W.2, who was the attestor of Ex.P.7, promissory note and P.W.2 supported the case of the complainant. Ex.P.7 literally support the case of the complainant that P.W.2 acted as an attestor to Ex.P.7. D.W.1 in cross examination admitted that he had no disputes with the attestors or scribe mentioned in Ex.P.7. There is no dispute about the signature of the accused in Ex.P.7. Even there is no dispute that the cheque number as mentioned in Ex.P.1 was also written by the accused. During the cross examination P.W.1 denied that he and Simhadri Ravi stolen Ex.P.1 cheque from the house of the accused. It is to be noticed that the very evidence of D.W.1 is that he used to sign the cheques beforehand and whenever he wanted to issue the same to any person, he used to fill up the name and put the stamp. Even according to him, he used to verify as to whether signed cheques were in safe condition or not. He 12 further admitted that he used to return unused cheques to the bank whenever he returned the cheque book. If those answers are considered, it is not understandable as to how the accused was supposed to return unused leaves when especially those were signed by him. Hence, the bank would not accept the signed cheques by the accused at the time of returning the cheques. Though the accused examined D.W.2, who deposed that the accused got closed the account way back in the year 2001, but as evident from Ex.D.3, letter of the accused and the evidence of D.W.2, there is no whisper from Ex.D.3 that the accused returned any unused cheques to the bank. There is no whisper in Ex.D.3 that Ex.P.1 cheque was lost from the custody of the accused. As admitted by D.W.1, the accused, he did not intimate to the bank and even did not intimate to the police that Ex.P.1 cheque was lost from his custody. Therefore, it is very clear that though the account was closed in the year 2001 as per D.W.1 and D.W.2, but, it was within the exclusive knowledge of the accused as to why he issued Ex.P.1 in the year 2004 in favour of the complainant. The defence of the accused that he used to sign the cheques beforehand and he used to return unused leaves, etc., is not at all probabalized by virtue of the evidence of D.W.2 coupled with Ex.D.1 to Ex.D.4. No man of reasonable prudent would venture to sign beforehand especially when he was a habit of 13 returning the unused cheques to the bank. The accused would not have kept quiet, if really the complainant and Simhadri Ravi stolen away the cheque from his custody. So, the defence of the accused is not at all convincing, in my considered view. Apart from this, the complainant discharged his burden by getting marked Ex.P.7, promissory note and by getting examined P.W.2. P.W.2 has no reason to depose false against the accused. Hence, the complainant was able to prove before the Court below that the accused issued Ex.P.1 cheque in favour of the complainant towards part discharge of legally enforceable debt.
19) Coming to the statutory requirements to attract the offence under Section 138 of N.I. Act, soon after receipt of the information about the dishonour of cheque by the bank to the complainant, the complainant issued the legal notice under Ex.P.4. As seen from Ex.P.5, the postal authorities made several attempts to serve it on the accused on several days and as the door was locked it was returned. The date of return was on 28.10.2004. Ex.P.6 reveals that the complainant also sent a legal notice under certificate of posting. The complainant could not be found fault for the absence of the accused in the headquarters when the postal authorities tried to serve the notice. Therefore, if the registered notice was sent to the correct address of the accused with proper postage and when the accused was not 14 available at his house without any instructions to the inmates, it can be taken as a proper service. Therefore, there is no dispute that after waiting for the statutory period only from the date of return, the complainant instituted the complaint before the Court below. Hence, the contention of the accused that there was no proper compliance of statutory notice under Section 138 of N.I. Act cannot stand to any reason. In my considered view, the learned Additional Judicial Magistrate of First Class, Avanigadda, rightly appreciated the evidence on record and rightly dealt with the contentions of both the parties and found guilty of the accused and convicted and sentenced him. A perusal of the judgment of the learned X Additional District and Sessions Judge, Krishna at Machilipatnam, goes to reveal that he answered various contentions raised by the appellant and by any stretch of imagination, the judgment of the learned Additional Sessions Judge in dismissing the Criminal Appeal cannot be said to be illegal or irregular. The judgment does not suffer with any impropriety.
20) Having regard to the above, I am of the considered view that absolutely there are no grounds to interfere with the judgment of the learned X Additional District and Sessions Judge, Krishna at Machilipatnam.
21) In the result, the Criminal Revision Case is dismissed. 15
22) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the trial Court on or before 23.03.2023 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. 16.03.2023.
PGR 16 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU Registry to circulate a copy of this order to the Court below on or before 23.03.2023.
CRL. REVISION CASE NO.1384 OF 2007 Date: 16.03.2023 PGR