Dismissed

Penumatcha Sai Babu Raju, v. Manda Raja Rao and Another

Andhra Pradesh HC6 Feb 2020CRLRC/1466/2007

Case brief

AI extract

What is this about?

In this criminal revision under Sections 397 and 401 of Cr.P.C., the High Court declined to interfere with the appellate court's acquittal of the accused. The revision petitioner argued that the cheque bore the defendant's signature and was supported by a promissory note, warranting a presumption under Section 139 of the Negotiable Instruments Act. The Court, however, observed a discrepancy in the

What did the court decide?

The Criminal Revision Case is dismissed; consequently, pending miscellaneous petitions stand closed.

Penumatcha Sai Babu Raju, Vs Manda Raja Rao and… — Cheque Dishonour | Andhra Pradesh HC (2020)

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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Criminal Revision Case No. 1466 of 2007

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ORDER:

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1. Heard the counsel for the petitioner and perused the record.

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The present Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C., against the Judgment in Criminal Appeal No. 178 of 2005 reversing the Judgment of conviction in C.C. No. 107 of 2005 on the file of the III Metropolitan Magistrate, Vijayawada.

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Originally, a private complaint was filed under Section 200 Cr.P.C. against the accused for the offence punishable under Section 138 of Negotiable Instruments Act in respect of dishonour of the cheque for Rs.30,000/- due to insufficient funds.

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The averments in the complaint show that the accused borrowed an amount of Rs.30,000/- from the complainant on 01.05.2000 and executed a demand promissory note agreeing to repay the said amount with interest @ 24% per annum to the complainant on order or demand. Towards repayment of the said amount, the accused issued a cheque for Rs.30,000/- bearing no. 378114 on 07.05.2002 drawn on State Bank of India, Bhasraraopet branch, RTC Complex, Vijayawada. The said cheque when presented returned unpaid with an endorsement “funds insufficient” issued a memo dated 08.05.2002 was issued to that affect. A registered notice was issued to the accused on 20.05.2002 calling upon the accused to pay the amount within 15 days from

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the date of receipt of the notice. Acknowledging the said notice, the accused issued a reply on 30.05.2002. Thereafter, a complaint came to be lodged.

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On appearance of the accused, copies of all the documents, as required under Section 207 Cr.P.C. were furnished. He was examined under Section 251 Cr.P.C., to which he pleaded not guilty and claimed to be tried.

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In support of his case, the complainant examined himself as PW1 and got marked Ex.P1 to Ex.P7. After completing prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of PW1, to which he denied. However, he did not adduce any evidence or got marked any documents in support of his plea.

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The Trial Court convicted the accused relying upon the contents of the promissory note, admitted signature on the cheque and the evidence of PW1. Challenging the said conviction, the accused preferred an appeal vide Crl. A. No. 178 of 2005, wherein, the Appellate Court acquitted the accused. Challenging the same, the present revision came to be filed by the Complainant.

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Sri. V.V.L.N. Sarma, learned Counsel for the Revision Petitioner would contend that a reading of the evidence of PW1 coupled with the documents marked amply establishes the ingredients of Section 138 N.I. Act. According to him, when there is no dispute with regard to the contents of Ex.P2-cheque, signature

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on Ex.P2, a presumption ought to have been drawn to that effect that it was issued in discharge of a debt or liability. Apart from that, he further pleads that Ex.P2 document gets corroboration from Ex.P1 promissory note executed by the accused. Since all the mandatory requirements as contemplated are complied with and when it is admitted that the notice was given within the period prescribed, acquittal of the accused for the offence punishable under Section 138 is illegal in law.

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It is to be noted that, though notice was ordered in the year 2007, till date the same is not served on the accused. Be that as it may, the issue now is, whether the complainant made out a case against the accused for an offence punishable under Section 138 N.I. Act ?

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It is no doubt true that under Section 139 of N.I. Act, a presumption must be drawn that the holder of the cheque received the cheque of the nature referred to in Section 138 in discharge of any debt or liability unless contrary is proved as held in Murali

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Udyog Limited v. Narndra¹ .

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The issue relating to presumption under Section 138 and 139 of N.I. Act was dealt with by the Hon’ble Apex Court in Hiten P. Dalal v. Bratindranatha Banerjee² . In view of the law laid down, it is now to be seen whether Ex.P2 was issued in discharge of any debt or liability.

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1 (1999) 1 SCC 113

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2 2001 SCC (Criminal) 960

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In cross-examination, it was suggested to PW1 that he gave only Rs.15,000/- and not Rs.30,000/- and that he obtained signatures on blank cheque and promissory note, but the same was denied by him. To a suggestion that he lent money @ Rs.6/per hundred per month was also denied by him. But, he admits that the accused is a bank employee and that he can fill up cheque. Ex.P2 cheque has been issued by the accused. He denies that the writings on Ex.P2 do not belong to accused. To a suggestion that he obtained blank cheque and filled the contents was denied. From the answers elicited in the cross-examination, it is apparent that the accused is a bank employee, can fill up the cheque on his own and that Ex.P2 has been drafted by the accused. But, a perusal of Ex.P2 cheque shows that the contents and signatures were written in two different inks while the signature was made in blue colour pen, the contents, namely, the name and the amount were written in blank ink. No explanation is forthcoming as to the said discrepancy.

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The learned counsel for the petitioner would contend that the accused should have made every effort to explain the said discrepancy. But, when the cheque is in possession of the complainant and when it was he who presented the cheque, which lead to its dishonour and as initial burden is on him to establish that the cheque was issued in discharge of legally debt as claimed by him in his complaint, it is the complainant who has to explain the same. The discrepancy in the ink is not only with regard to the contents but also with regard to the signature. Hence, there arises

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any amount of doubt as to whether it was really issued in discharge of the debt as claimed by the petitioner. Therefore, the findings of the Appellate Court, in acquitting the accused, require no interference.

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