Dismissed

Kokkiligadda Brahmaraju, Nizampatnam, Guntur Dist. v. Srinivasa Auto Financers, Nidubrolu, Guntur Dist., and Anr.

Andhra Pradesh HC15 Dec 2023CRLRC/1978/2009

Case brief

AI extract

What is this about?

The High Court reviewed a criminal revision petition challenging a confirmed conviction for cheque dishonour under Section 138 of the NI Act. While dismissing the petition on grounds of lack of perverse finding, the Court directed the accused to pay compensation equivalent to the cheque amount to avoid imprisonment.

What did the court decide?

Petitioner directed to pay Rs. 1,90,000 within two months; failure to comply will result in enforcement of confirmed sentence of imprisonment and fine.

Kokkiligadda Brahmaraju, Nizampatnam, Guntur Dist… — Cheque Dishonour | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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FRIDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE j

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PRESENT

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THE HONOURABLE SRI JUSTICE V SRINIVAS

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CRIMINAL REVISION CASE NO: 1978 OF 2009

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by the judgment dated 16-03-2009 on the file of the Additional Junior Civil Judge, Ponnuru and confirmed the same in passed in CrI.A.No. 116 of 2009 on the file of the VII AddI Sessions Judge (FTC), Guntur District dated 14-09-2009

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Between;

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Kokkihgadda Brahmaraju, S/o. Balaiah, Business R/o. 0pp. Vignaneswara Theater, Nizampatnam, Guntur District.

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...REGVISION PETITIONER/ACCUSED

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AND

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Nidubrolu, Rep. by its Managing Partner, Mowa

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Mandai Guntr^istS""'' Bhushanam, R/o. Nidubroiu, Ponnur

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The State of Andhra Pradesh, Rep. by its Public Prosecutor High Court, Hyderabad.

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...RESPONDENTS/COMPLAINANT

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Counsel for the Petitioner: SRI. G L NAGESWAR RAO Counsel for the Respondent No.1: Smt. G. JHANSI The Court made the following: ORDER

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THE HON’BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASENo.1978 of 2009 ORDER:

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This Revision is arising out of judgment dated 14.09.2009 passed in Crl.A.No.116 of 2009 on the file of VII Additional Sessions Judge (Fast Track Court), Guntur, wherein the learned Judge has dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner/accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the Act’) in the judgment dated 16.03.2009 in C.C.No.337of 2003 passed by the learned Additional Junior Civil Judge, Ponnur.

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St The brief facts of the case of the complainant/1 respondent as follows: The petitioner/accused borrowed St an amount of Rs. 1,50,000/- from the complainant/1 respondent, which is a registered firm and executed a mortgage deed dated 22.2.2002 vide document No.89/2002 agreeing to repay the said amount with

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interest at the rate of 24 % p.a. The accused is liable to pay the amount of Rs. 1,98,276/- to the complainant.^On repeated demands, the petitioner/accused issued a cheque bearing No.251382 dated 01.06.2003 for an amount of Rs. 1,90,000/to the complainant towards part payment of the said mortgage deed. When the complainant presented it to the bank, it was returned with an endorsement “funds insufficient”. Thereafter,^the complainant got issued legal notice to the petitioner/accused calling upon him for payment of^the cheque amount. But the petitioner/accused evaded to receive the said notice. Hence, the l^t respondent-firm herein filed complaint.

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The complainant examined PW.l and marked Ex.Pl to Ex.P8. On behalf of the accused, DW.l to DW.3 were examined and no documentary evidence was adduced.

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By considering the material on record, the trial Court convicted the accused for the offence under

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Section 138 of the Act and he is sentenced to undergo Simple Imprisonment for a period of eight (08) months.

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Against the said impugned judgment, the revision petitioner/accused preferred an appeal before the lower appellate Court, but the same was dismissed by confirming the trial Court’s judgment.

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Being aggrieved, the present revision has been filed by the petitioner/accused.

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Heard Sri G.L.Nageswara Rao, learned counsel for the revision petitioner and Smt. G.Jhanshi, learned counsel for the l^t respondent and the learned Assistant Public Prosecutor representing the 2*^^ respondent-State.

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The point that arises for consideration in this revision is:

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“Whether there is any illegality or impropriety in the sentence imposed by the trial Court as confirmed by the appellate Court i.e. VII Additional Sessions Judge (FTC), Guntur?”

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Learned counsel for the petitioner submits that there is no subsisting liability or debt between the

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revision petitioner and the complainant-firm on the date of issuance of alleged cheque; that the trial Court has not considered the revision petitioner has given the disputed cheque to discharge whether legally enforceable debt or not; that the said cheque was given as collateral security to advance the amount to the revision petitioner; that the respondent has no licence to deal with money lending business, as such there is no legal enforceable debt; and that the complainant-firm had^not filed any material to show that PW-1 is the authorized person. Hence, prayed to allow the revision. 10. Learned counsel for the l^t respondent submits that both the courts concurrently held that the complainant-firm had discharged its burden that the petitioner/accused borrowed the amount and in discharge of the said debt, he issued Ex.PI-cheque^dated 01.06.2003; that there is no truth in the submission of the learned counsel for the petitioner/accused that^there is no consideration under Ex.P8, as the petitioner/

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accused and DW-3 by name P.Veeraraghavaiah, who is attestor of the said document. Admitted the execution of Ex.P8-registered mortgage deed; that by considering these aspects, the trial Court as well as Sessions^Court came to conclusion that the accused had failed to substantiate the defence taken by him, thereby, the petitioner/accused is liable to pay the cheque amount^as the same was dishonoured for the reason of funds insufficient; Hence, there is no interfere with the concurrent finding of both the Courts below and prayed to dismiss the revision. 11. This Court perused the material on record. It is a fact that was elicited from the record that the petitioner/accused borrowed an amount of Rs. 1,50,000/from the complainant and executed a registered mortgage deed dated 22.02.2002 vide document No.89/2002 agreeing to repay the said amount with interest at the rate of 24% p.a. and the accused is liable to pay an amount of Rs. 1,98,276/to

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the complainant. On repeated demands the accused issued cheque bearing No.251382 dated 01. 06.2003 for an amount of Rs. 1,90,000/- to the complainant for part payment. When the complainant presented the said cheque said to be issued by accused, it was returned with an endorsement “funds insufficient”, Thereafter, the complainant got issued legal notice to the petitioner/accused and the same was returned un served. Since non-discharge of amount by the accused within stipulated time. respondent No. 1 -complainant herein has compelled to file a private complaint and the same was numbered as C.C.No.337 of 2003. The record also further shows that the petitioner herein, who is the accused, admittedly, issued a cheque under Ex.Pl and said cheque, according to l^t respondent was issued as a part payment for discharge of mortgage deed i.e. Ex.PS. 12. It is true that no contra evidence placed on record by the petitioner herein, the fact before the trial Court.

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The same is also discussed by the lower appellate Court in Crl.A.No.116 of 2009. 13. The lower appellate Court has considered the judgment of Supreme Court in C.C.Alavi Haji v papapetty 2007 (20) LS Page 157 (SC) in Crl.A.No.67^of 2007dated 18.05.2007. The trial Court also considered the judgments in 1) (2006 (1) Crl.L.J.l) (Gorantla Venkateswara Rao v. Kolia Veera Raghava Rao), 2) 2001 (1) ALT (Crl) 42 (SC) (K.Bhaskaran v.Sankaran Vaidhyan Balan) and 3) 2007 Crl.L.J.3214 C.C. Alavi Haji V. Papapetty Mahammed. 14. It is established that the cheque was issued by the petitioner/accused in discharge of legally enforceable debt and the amount due under the cheque is liable^to discharged by him.

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The trial Court as well as Appellate Court had presumed that the petitioner/accused issued the cheque for discharge of debt and same was not rebutted by any legal evidence by the petitioner.

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In this connection, in Bir Singh v Mukesh Kumar^y the HonT^le Apex Court held that: the trial Court and the Appellate Court rejected the plea of^the respondent-accused that the appellant-complainant had misused a blank signed cheque. It was also held in the said judgment that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the revisional Court to re-analyse and re-interpret the evidence on record. Under these circumstances, this Court cannot reappraise the evidence placed on record by petitioner^as well as respondent in the trial Court.

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During the course of arguments, learned counsel for the petitioner relied upon the judgment of the Honlile the Supreme Court in R.Vijayan v wherein it was observed that: Some Magistrates went by the traditional view, that the criminal proceedings were for

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1(2019) 4 see 197 2(2012) 1 see 260

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imposing punishment and did not exercise discretion^to direct payment of compensation, causing considerable difficulty to the complainant, as invariably, the limitation for filing civil cases would expire by the time of^the criminal cases was decided. It was further observed the said judgment, unless there were special circumstances. in all cases of conviction, the Court should uniformly exercise the power to levy fine up to twice the cheque amount and keeping in view the cheque amount and the simple interest thereon at 9 % per annum as the reasonable quantum of loss, direct payment of such amount as compensation. 18. It is also keep in mind another judgment of the HonlDle Apex Court in Meters and Instruments Private Limited v Kanchan Mehta^, wherein it was held that:

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Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is CC^preponderance of probabi lities”. The same has to be normally tried summarily as per

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^2017 AIR (SC) 4594

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provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

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ii) The object of the provision being primarily compensatory. punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.

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Hi) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

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iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have

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~ >

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to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.

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v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the banks slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second provision to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances**.

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Considering the above authoritative

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pronouncements and as discussed supra, this Court does not find any grounds to interfere with the concurrent findings recorded by both the Courts below regarding conviction under Section 138 of Negotiable Instruments Act against the petitioner. However, to^meet the ends of justice, the petitioner/accused is directed^to pay an amount of Rs. 1,90,000/- (Rupees One Lakh Ninety Thousand Only) within a period of two (02) months from the date of receipt of a copy of this order,ⁱⁿ default the petitioner/accused shall undergo the sentence of imprisonment as well fine as affirmed by^the trial Court, which was confirmed by the Appellate Court. In case any failure on the part of the revision petitioner before the Court below as directed supra in appearing and in making the payment of compensation amount, the trial Court is free to take coercive steps to secure^the presence of the revision petitioner and to execute^the sentence awarded against him.

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With the above observations, the present Criminal Revision Case is disposed of. A copy of this order^shallbe made to the trial Court and the learned Magistrate concerned can take steps against the petitioner/accused to serve the sentence, if she fails to comply with the condition stated in penultimate paragraph of this order.

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Interim orders granted earlier if any, stand vacated.

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As a sequel, miscellaneous petitions pending if any, shall stand closed.

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SD/- V DIWAKAR DEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The VII Additional Sessions Judge (FTC), Guntur 2. The Additional Junior Civil Judge, Ponnur, Guntur^District 3. One CC to SRI. G L NAGESWAR RAO, Advocate [OPUC] 4. One CC to Smt. G JHANSI, Advocate [OPUC] 5. Two CCs to Public Prosecutor, High Court of A.P.,^atAmaravati 6. The Section Officer, Criminal Section, High Court of A.P,^at Amaravati 7. Three CD Copies

Skm

PRK

HIGH COURT

DATED:15/12/2023

ORDER

CRLRC.No.1978 of 2009