Allowed

G.Nagendrudu v. The State of A.P.

Andhra Pradesh HC11 Dec 2023CRLRC/2049/2011

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision against conviction under Section 138 of the Negotiable Instruments Act. The appellant discharged the cheque amount prior to the hearing, and since the underlying debt was satisfied, the conviction and sentence were set aside, acquitting the accused.

What did the court decide?

Criminal Revision allowed; conviction and sentence set aside; Petitioner acquitted of Section 138 charge and ordered to be released forthwith if not detained elsewhere.

G.Nagendrudu Vs The State of A.P. — Cheque Dishonour | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE No.2049 of 2011

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ORDER:

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This Revision is arising out of judgment dated 30.09.2011 passed in Criminal Appeal No.103 of 2009 on the file of VI Additional Sessions Judge(Fast Track Court), East Godavari District, Rajahmundry, 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 in the judgment dated 03.06.2009 in C.C.No.1448 of 2005 passed by the learned III Additional Judicial Magistrate of First Class, Rajahmundry.

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Heard Ms.K.S.G.Padmavati, learned counsel representing Sri G.V.Shivaji, learned counsel for the petitioner and the learned Special Assistant Public Prosecutor appearing for the 1^st respondentState.

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Learned counsel for the petitioner filed a memo dated 05.12.2023 showing that the notice sent by the learned counsel was served upon the 2^nd respondent, who is the complainant in the above C.C.

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When the matter is taken up for hearing, the learned counsel for the petitioner produced some material papers before this Court. One of the documents shows that the 2^nd respondent/complainant

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herein by name K.Lalitha Kumari, W/o Raja Rajeswara Vara Prasad, Aryapuram, Rajahmundry, filed an affidavit in E.A...of 2010 in E.P.No.130 of 2012 in O.S.No.1 of 2007 before the learned II Additional Senior Civil Judge, Rajahmundry, wherein she stated at para No.2 as follows:

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“ The Honourable Court passed the decree on 22.06.2009. In criminal case C.C.NBo.1448/05 filed under Section 138 of N.I.Act against respondent/JDr by me on the file of III Addl Judicial First Class Magistrate, Rajahmundry, the respondent/JDr is convicted by the Honourable Court and the respondent/JDr sentenced for one year simple imprisonment. Since, the decree in the civil suit and conviction in Criminal Case, the respondent/JDr has been approaching me and promising to pay the entire amount at a time and settle the matter and dragging on the matter by one pretext or other, though, the respondent/JDR has a capacity to pay the entire amount at a time. Unless, the Honourable Court takes stern steps against the respondent/JDr, the respondent/JDr would drag on the matter as would not pay or discharge my debt soon.

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Further, in the same affidavit, she stated that invoking Order 21 Rule 64 of the Code of Civil Procedure prayed the trial Court to sell the property belonging to the Judgment Debtor, who is the petitioner herein by name G.Nagendrudu S/o Suryanarayana.

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The learned counsel for the petitioner also submitted that the 2^nd respondent/complainant herein also filed Full Satisfaction Memo in E.P.No.130 of 2012 in O.S.No.1 of 2007 before the learned Principal Senior Civil Judge, Rajahmundry stating that the court auctioned the

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E.P.schedule property on 23.11.2015 for a total amount of Rs.7,60,000/- and the warrant amount was Rs.2,03,425/- and posted the matter to 25.01.2016 for confirmation of sale. The Judgment Debtor, on 03.12.2015, paid the entire amount sum of Rs.2,30,000/including interest and poundage and she also issued receipt to that effect and prayed to record the full satisfaction in the E.P. and raise attachment on the schedule property. It is further submitted that the amount under the cheque in question, which is subject matter of this revision was said to have paid by the petitioner, she prayed to set aside the conviction and sentence imposed by the III Additional Judicial Magistrate of First Class, Rajahmundry.

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From the above, it is clear that basing on the cheque in question, the 2^nd respondent-complainant also filed a suit in O.S.No.1 of 2007. The entire cheque amount was discharged by the petitioner and full satisfaction memo filed in the trial court and the same is recorded by the Principal Senior Civil Judge, Rajahmundry. It is also evident from page 24 of the material papers that the learned counsel appearing for the 2^nd respondent in the trial Court filed a memo to cancel the sale stating that the J.Dr. by name Gunisetti Nagendrudu i.e. the petitioner herein paid an amount of Rs.2,30,000/- including poundage charges and interest etc. to the decree holder by name

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Kurmapu Lalitha Kumari, who is the 2^nd respondent herein by way of challan drawn on State Bank of India, Innispeta, Rajahmundry.

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In this case, one more important aspect to be noted is that learned counsel for the petitioner also sent notice to the 2^nd respondent on 01.12.2023 and same was delivered to her on 4.12.2023 and tracking status of the notice is also placed on record. Since the petitioner placed on record that he discharged the debt covered under this revision as stated supra and as the 2^nd respondent herself gave affidavit stating that the debt covered under the present revision and the suit in O.S.No.1 of 2007 is one and the same and the same was discharged by the petitioner, it can be presumed that though notice served on the 2^nd respondent, she did not choose to appear before this Court.

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In the above circumstances, it is established that the entire amount under the cheque in question was discharged and in the catena of expressions the Hon’ble Supreme Court held that in the case of dishonour of cheques the act of accused is only a civil wrong. Hence, this Court is of the view that since the petitioner discharged the debt covered under this revision, the conviction and sentence imposed by the III Additional Judicial Magistrate of First Class, Rajahmundry, which was confirmed by the VI Additional Sessions

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Judge(Fast Track Court), East Godavari District, Rajahmundry, is liable to be set aside.

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Accordingly, the Criminal Revision Case is allowed, setting aside the conviction and sentence recorded in the judgment dated 03.06.2009 in C.C.No.1448 of 2005 passed by the learned III Additional Judicial Magistrate of First Class, Rajahmundry, as confirmed in judgment dated 30.09.2011 in Criminal Appeal No.103 of 2009 by the learned VI Additional Sessions Judge(Fast Track Court), East Godavari District, Rajahmundry and thereby the revision petitioner/accused is acquitted of the charge under Section 138 of the Negotiable Instruments Act. The petitioner/accused shall be released forthwith if he is not required in any other case.

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Interim orders granted earlier if any, stand vacated.

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Miscellaneous petitions pending if any, shall stand closed.

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__________________ JUSTICE V.SRINIVAS

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Date: 11.12.2023 Pab

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE No.2049 of 2011

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DATE: 11.12.2023

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Pab

G.Nagendrudu v. The State of A.P.

Case brief

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G.Nagendrudu v. The State of A.P.

Case brief

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