The High Court set aside convictions and sentences under Section 138 NI Act. Acknowledging that admitted payments were not in the complainant's records, the court held that the offence of non-payment could not be established.
Convictions and sentences imposed against the accused are set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE Nos.723 and 724 of 2005
COMMON JUDGMENT:
These revisions are preferred by the petitioner against common judgment dated 26.10.2004 rendered in Crl.A.Nos.68 and 69 of 2002 and Crl.R.P.Nos.16 and 17 of 2004 on the file of the Court of Metropolitan Sessions Judge, Vijayawada preferred against judgments rendered in C.C.Nos.239 and 241 of 2000 on the file of the Court of Additional Metropolitan Magistrate for Railways, Vijayawada.
2. Whereas the revision petitioner is the accused, the 2nd respondent herein is the complainant in C.C.Nos.239 and 241 of 2000. For the sake of convenience, the parties are referred to as they are arrayed in the Calendar Cases.
3. Before the trial Court, the accused was charged for offence punishable under Section 138 of the Negotiable Instruments Act (for short, the Act). The trial Court, after due enquiry, found the accused guilty of committing the offence and accordingly convicted and sentenced him to pay a fine of Rs.5,000/-, and in default of payment of the fine, to undergo Simple Imprisonment for a period of two months, in each case. Challenging the convictions and sentences, the accused preferred Crl.A.Nos.68 and 69 of 2002 to set aside the convictions and the complainant filed Crl.R.P.Nos.16 and 17 of 2004 seeking enhancement of the sentences, before the Metropolitan Sessions Judge, Vijayawada.
4. The lower appellate Court, by the impugned order, dismissed the appeals filed by the accused and allowed the criminal revision petitions filed by the complainant modifying the sentence of imprisonment to three months while confirming the fine amount in each case, aggrieved by which, the present revisions are filed by the accused.
5. The point for consideration is whether the prosecution could prove the guilt of the accused for the offence punishable under Section 138 of the NI Act, and whether the impugned judgment is sustainable. POINT:
6. Before proceeding with the case, it is necessary to briefly note the complainant’s version or versions which is/are as follows:
7. The complainant-company is a private limited Company dealing with manufacturing and sale of pesticides, having its sales office at Governorpet, Vijajaywada, being represented by its Assistant Branch Manager and Special Power of Attorney Holder i.e., Durga Prasad. The accused-agency is a proprietary concern represented by its Proprietor, Katturi Srinivasu, it is doing wholesale and retail business in pesticides. The accused used to purchase pesticides from the complainant on credit basis for which opened an account with the complainant. In the course of business transactions, the accused fell due an amount of Rs.6,21,189/- to the complainant as on 10.02.1999. Towards part-payment of it, the accused issued two cheques bearing Nos.084651 and 084652 dated 20-02-1999 and 24-02-1999 for Rs.2,94,618/- and Rs.3,26,571/- respectively. When the complainant presented the cheques, they were dishonoured by the bank of the accused, with an endorsement “payment stopped by drawer”. The complainant issued a registered legal notice under Section 138 of the Act to the accused, demanding to pay the amount, but the accused issued a reply with false allegations and did not repay the money. Hence, the complainant preferred the two complaints against the accused.
8. Before the trial Court, in C.C.No.239 of 2000, for the complainant PWs.1 and 2 were examined, and Exs.P1 to P21 were marked and on behalf of the defence, DW1 was examined and Exs.D1 to D10 were marked. Further, in C.C.No.241 of 2000, for the complainant PWs.1 and 2 were examined and Exs.P1 to P17 were marked and on behalf of defence, DW1 was examined and Exs.D1 to
D8 were marked.
9. Learned counsel for the accused would contend that the accused filed receipts in proof of payments made by him, marked as Exs.D-1 to D-7 in both the cases, and they would clearly show that the accused paid an amount of Rs.5,11,931/- to the Marketing Manager of the complainant but the same was not accounted for and in fact, PW.1Sales Manager of the complainant company clearly admitted about the payment of those amounts by the accused, but the court below failed to appreciate the matter properly, and hence the question of prosecuting and convicting the accused for the alleged offence would not arise at all.
10. Learned Additional Public Prosecutor has been given time to clarify the question; but ultimately he has stated that he has not received any information in that regard.
11. In the instant case, Exs.D-1 to D-8 and Ex.P-7-account copy of the complainant are very important. Exs.D-1 to D-8 would clearly provide that the accused paid in all an amount of Rs.5,11,931/-. PW.1, the Sales Manager of the complainant company also admitted in his evidence about the payment of the said amount. But as per the Account copies of the complainant company, the said amount was not included. In fact, no satisfactory evidence is placed to substantiate the claim of the complainant. Under those circumstances, there is no other go except to come to a conclusion that the accused paid the amounts covered by Exs.D-1 to D-8 in each case, which were not accounted for by the complainant company. This clearly demolishes the case of the complainant. The complainant should have approached the Court with clean hands presenting the true facts of the case. When Exs.D-1 to D-8 are accepted by PW1 in his evidence in each case, it cannot be said that the accused committed the offences in question. In fact, even after accepting Exs.D-1 to D-7, it is clear that the accused has to pay balance amount in each case. But, for the purpose of establishing the offence against the accused, the matter as a whole has to be taken into
consideration and it cannot be considered in fraction. In other words, on the ground of non-payment of the balance amount, the offence cannot be said to be established. 12. For the reasons stated above, I do not agree with the findings of the trial court and the appellate court, which are not proper in my view. Ultimately, the convictions and sentences imposed against the accused are liable to be set aside.
13. Accordingly, the criminal revision cases are allowed and the convictions and sentences imposed against the accused are set aside.
_____________________________ G. KRISHNA MOHAN REDDY, J
13th August, 2012 Prv
3 issues framed by the court
Whether the prosecution could prove the guilt of the accused for the offence of cheque dishonour despite admitted payments not reflected in the complainant's accounts.
Whether the impugned judgment of conviction and sentence is sustainable on facts.
Whether the offence was established considering the balance unpaid against the total debt and admitted payments.
1 provisions across 1 enactments
Katturi Srinivasu
Complainant (Private Limited Company)
G Krishna Mohan Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
