Partly allowed

M.a.Azeez, v. T.Ramakrishna Rao

Telangana HC23 Jan 2012CRLRC/468/2005

Case brief

AI extract

What is this about?

In criminal revision regarding a cheque bounce conviction, the High Court held the evidence established subsisting liability, upheld the conviction, quashed the separate fine, and modified the sentence to six months imprisonment with compensation of Rs.1 lakh under CrPC 357(4).

What did the court decide?

Fine of Rs.5,000 set aside; compensation of Rs.1 lakh directed instead; substantive sentence reduced from one year rigorous to six months simple imprisonment.

M.a.Azeez, Vs T.Ramakrishna Rao — Cheque Dishonour | Telangana HC (2012)

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HON’BLE SRI JUSTICE N. RAVI SHANKAR

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CRIMINAL REVISION CASE No.468 of 2005

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ORDER:-

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The first respondent herein filed a private complaint i.e. C.C.No.295 of 2002 in the court of the Judicial First Class Magistrate-cum-Special Mobile Court, Nalgonda (trial court), against the petitioner alleging a cheque bouncing offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short Act). The trial court after considering the matter by its judgment dated 15.09.2003 convicted the petitioner of the said offence and sentenced him to undergo rigorous imprisonment (RI) for one year and to pay a fine of Rs.5,000/- with a default clause prison sentence of one month for non-payment of fine. Additionally it also directed the petitioner to pay compensation of Rs.2 lakhs i.e. cheque amount within two months from the date of its judgment.

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2. Questioning the above judgment of the trial court, the petitioner filed Crl.A.No.145 of 2003. The appellate court i.e. the Court of I Additional Sessions Judge, Nalgonda, dismissed that appeal by its judgment dated 07.03.2005. It is questioning that appellate judgment the petitioner came up with this revision.

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3. Both the trial court and the appellate court after considering the evidence of the complainant i.e. P.W.1 and P.W.2 D.Narasimha Babu and the documents filed by him, and also the evidence of the accused i.e. D.W.1 and his witness D.W.2 Anand, concluded that the accused issued Ex.P.2 cheque bearing No.266437 dated 30.04.2002 for Rs.2,00,000/- drawn on State Bank of Hyderabad, Pochampadu branch, in favour of the

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complainant (first respondent herein), and the said cheque was dishonoured for want of sufficient funds in the bank account of the accused and the complainant filed the case after issuing Ex.P.5 statutory notice in accordance with the Act and there was no defect in the said notice also. It then concluded that complainant was able to establish the offence.

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4. Sri C.Praveen Kumar the learned counsel for the accused though raised an argument about the correctness of the trial court findings regarding issuance of cheque, its dishonour for want of sufficient funds and that there was no defect in the statutory notice, but he could not show any circumstance in the evidence to disturb the said findings of the courts below. He however concentrated on the findings of the courts below that the cheque in question is supported by consideration or that it was issued in discharge of a subsisting liability and pointed out that the said findings are not based on evidence or in any event both the courts have not appreciated the evidence properly in reaching that conclusion. He then argued that since a finding not based on evidence or which is against evidence can be a ground for interference in a revision, this court should therefore now set aside the conviction. Alternatively he also argued on the illegality committed by the trial court in imposing the sentence of fine and awarding compensation and further pleaded for leniency also having regard to the age of the accused. There was no representation for the complainant.

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5. The point to be decided is whether or not Ex.P.2 cheque can be held to have been issued in discharge of a subsisting or enforceable liability.

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6. Regarding the consideration or the subsisting liability for which Ex.P.2 cheque is said to have been issued, the case of the complainant is based upon Ex.P.1 document which is drafted on the letter head of the accused M.A.Azeez. It is dated 22.03.2011. The accused in his evidence as D.W.1 admitted this Ex.P.1 document. The plea of the complainant is that himself, the accused, one Venkateswarlu and another Hanumantha Rao did contract work jointly and that Ex.P.1 agreement or document was executed by the accused in that connection. The recitals in Ex.P.1 document contain the names of the complainant and the above two individuals and it reads that the value of the work was Rs.53 lakhs and that the accused was giving 50% share to the above three individuals in the said works and that all of them agreed that they would get back their investments with interest at 3% and that excess investment made by any one of them would also be paid back with 3% interest. It is not clear whether the above rate of interest was per month or per annum. This document then reads that accused would distribute the amounts as soon as bills are passed after taking accounts. The work is mentioned in Ex.P.1 as earth work in some part of Sriramsagar Project and this work is spoken to by D.W.2.

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7. What should be noted is that the above Ex.P.1 document is dated 22.03.2001 and Ex.P.2 cheque is dated 30.04.2002 i.e. nearly 1 month 10 days after Ex.P.1 which is admitted the accused. Thus Ex.P.1 document shows that there were certain transactions relating to a joint work and the complainant and the accused and two others agreed for execution of the same. Ex.P.1 further reads that subsequently the parties would adjust the amounts and Ex.P.1 specifically reads that accused would repay

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the amounts with interest after receiving the bills and after accounts are taken.

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8. It is the version of the complainant that subsequently one and half month later the accused gave Ex.P.2 cheque in connection with the amounts due to him. In view of the above recitals in Ex.P.1 and the admission of Ex.P.1 by the accused and also the admission of issuance of Ex.P.2 cheque by him, it may be noted, the presumption under Section 139 of the Act and also the presumption under Section 118(a) of the Act begin to operate against the accused on a much stronger footing and the burden lies upon the accused to rebut those presumptions and establish his defence that there was no subsisting debt or liability in respect of the amount covered by Ex.P.2 cheque.

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9. One aspect which was pointed out by Sri Praveen Kumar is that the complainant did not file any accounts and further there is also nothing mentioned in Ex.P.1 that he paid Rs.2 lakhs to the complainant and there is no other evidence to show that accused owed the amount of Rs.2 lakhs to the complainant and therefore the defence of the accused should be accepted as proved treating that he has rebutted the above presumption operating against him. There is no force in this contention. It may be noted that Ex.P.1 recitals read that it was the accused who was looking after the work and it also contains a specific recital that after receiving the bills he would distribute the amounts payable to the complainant and the above two others after taking accounts. In other words, what Ex.P.1 recitals show is that it was the accused who was looking after the work and therefore he is supposed to maintain the accounts.

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10. The accused did not file any accounts and he did not lead any other convincing evidence to show that Ex.P.1 is only a nominal document which was not acted upon or intended to be acted upon and that no amount was due. He, of-course, examined D.W.2 Anand but his evidence only shows that it does not inspire any confidence to uphold the defence of the accused. The accused could have filed the accounts maintained by him or he could have examined some other officials or some persons who had knowledge about the transactions between him and the complainant to support his defence but he did not do it.

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11. Here is a case where Ex.P.1 document shows that there were monetary transactions between the parties in connection with a civil work and the accused promised to distribute the amounts after receiving the bills. What can reasonably be inferred from Ex.P.1 recitals and Ex.P.2 cheque is that amount became due and therefore accused gave Ex.P.2 in discharge of the debt. In such a situation the burden lies upon the accused to prove his defence. This circumstance plus the presumption under Section 139 of the Act and also the presumption under Section 118(a) of the Act attached to the cheque become a good plus point for the complainant and shows that his case that the cheque in question is issued in respect of the amounts owed by the accused to him has to be accepted.

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12. The accused then took an alternative defence which is that he signed four blank cheques and kept them with him and he lost the said cheques and Ex.P.2 can be one of them. This defence as discussed by the courts below is not substantiated by the accused.

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13. Both the trial court and as well as the appellate court considered these aspects in detail and concluded in favour of the complainant and I am of the opinion that there is no reason to disagree with their conclusions. The point is accordingly decided in favour of the complainant. It therefore follows that the conviction of the accused for the offence under Section138 of the Act recorded by the trial court and confirmed by the appellate court cannot be disturbed and that is accordingly confirmed.

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14. That takes me to the sentences. The trial court as already mentioned imposed a sentence of substantive imprisonment of RI for one year and that was confirmed by the appellate court. The matter is of 2002 and as on today more than 9 years have elapsed and the learned counsel for the petitioner pointed out that the accused was aged 50 years when the case was filed against him and he must be nearing 60 years of age now and therefore leniency may be shown. Having regard to the above plea and the fact that more than 9 years have elapsed by now, I am of the opinion that while, as will be presently seen, directing the accused to pay compensation in addition to imprisonment, the substantive sentence of imprisonment can be reduced to six months simple imprisonment.

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15. Now coming to the sentence of fine of Rs.5,000/- imposed by the trial court and also the direction given by it for payment of compensation of the cheque amount, Section 138 of the Act only permits imposition of fine which can extend upto twice the cheque amount but not compensation additionally. Even a perusal of subsections (1) and (3) of Section 357 of the Code would show that a court, if it imposes a sentence of fine or a sentence of which fine forms a part, can award compensation only from out of that fine

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amount, but where it does not impose a fine it can order the accused to pay compensation which can be beyond Rs.5000/-. In other words, the court cannot impose both fine and compensation separately. Hence the trial court can be said to have violated this provision in imposing fine and as well as ordering compensation separately. This being the position it follows that the trial court cannot be said to be correct in imposing fine of Rs.5000/- and also payment of the cheque amount as compensation in the present case.

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16. Thus, in the circumstances of this case, I am of the opinion that the sentence of fine should be set aside and a reasonable compensation should be awarded as this court can also order such compensation under Section 357(4) of the Code. Accordingly, the sentence of fine imposed by the trial court and confirmed by the appellate court is set aside, but the accused is directed to pay a sum of Rs.1,00,000/- to the complainant as compensation as it constitutes half of the cheque amount and is considered reasonable. The compensation factor is also accordingly modified.

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17. To make it clear the accused is now sentenced to six months simple imprisonment and is also directed to pay a compensation of Rs.1,00,000/- (Rupees one lakh only) to the complainant. So far as the compensation is concerned the accused is granted two months time to pay it, but so far as the substantive sentence of imprisonment is concerned it shall be executed by the trial court immediately.

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18. With the above modification in substantive sentence of imprisonment and payment of compensation, this revision case is

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dismissed. The actual recovery and disbursement of compensation shall be made only after the expiry of the time available for the accused in pursuing his remedies against this judgment. Any amount paid by the accused towards fine or compensation in trial court shall be adjusted against the compensation now ordered.

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______________________ N. RAVI SHANKAR, J

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23^rd January 2012 CVRK

M.a.Azeez, v. T.Ramakrishna Rao

Case brief

What is this about?

What did the court decide?

M.a.Azeez, v. T.Ramakrishna Rao

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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