This Criminal Revision arising from a private complaint for cheque dishonour was dismissed. The court held that the magistrates order modifying the deposit amount was not functus officio and no illegality was found to warrant revision.
Revision dismissed; miscellaneous petitions, if any, pending in the revision shall stand closed.
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THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.253 of 2014
ORDER:
This Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C by the petitioner-complainant, having been aggrieved by the order dated 24.12.2013 in Crl.M.P.No.2485 of 2013 in C.C.No.176 of 2012 (private complaint case filed for dishonour of cheque) passed by the learned X Special Magistrate, Hyderabad.
2. The revision petitioner is none other than the complainant who filed a private complainant against the respondent/accused in C.C.No.176 of 2012, a case for the offence under Section 138 of the Negotiable Instruments Act (for short, ‘the N.I.Act’), for the dishonour of cheque, filed this revision with the contentions in the grounds of revision that the order of the learned Magistrate in allowing the application under Section 45 of the Indian Evidence Act is unsustainable and the propositions relied have no application to the present facts, that the learned Magistrate should have seen that the petition in Crl.M.P.No.1695 of 2013 filed by the 2nd respondent-accused that was allowed directing to comply by deposit of Rs.5,000/- towards Expert fee by 07.11.2013 but the 2nd respondentaccused instead of availing said opportunity, filed another petition covered by impugned order, is unsustainable, hence to set aside the same. The learned counsel for the revision petitioner reiterated the same during the course of hearing.
3. Whereas, it is the contention of the 2nd respondent-accused that the impugned order covered by the Crl.M.P.No.2485 of 2013 is to modify the earlier order passed in Crl.M.P.No. 1695 of 2013 so far as the deposit of Rs.5,000/- concerned to reduce from what they came to know of the deposit of Rs.1,500/- is enough but not any fresh petition filed and thereby the revision is not maintainable under law or on fact for nothing illegality and impropriety in the impugned order.
4. Heard and perused the material on record.
5. Now the points that arise for consideration are:
1. Whether the impugned order, dated 24.12.2013 in Crl.M.P.No.2485 of 2013 in C.C.No.176 of 2012 (private complaint case filed for dishonour of cheque) passed by the learned X Special Magistrate, Hyderabad, is unsustainable, if so, with what observations?
2. To what result?
Point No.1:
6. The sum and substance of the defence of the accused in the cheque bouncing case was that he borrowed amount from the father of the complainant(P.W.1) and later discharged the amount after death of the father of the complainant, to the mother of the complainant who is no other than the P.W.2 and she passed a receipt in token of receipt of the amount by affixing her thumb impression, being admittedly not a signatory, and the complainant-P.W.1 was a signatory as a witness to it and as P.W.2 denied her thumb impression to identify and so the accused states that it requires sending to Expert the disputed receipt, that the accused moved the application from the factual matrix with reference to the evidence of P.Ws.1 and 2, not only for the age of the ink of the filled contents of the Ex.P.1 cheque issued by him with his signature allegedly in blank, as security to the father of the complainant at the time of the borrowal of the amount, but also the signature of P.W.1 in witnessing the transaction of payment acknowledging with thumb impression by P.W.2 in support of the defence of liquidated the amount of nothing due under the alleged cheque, misused by the complainant-P.W.1 even no legally enforceable debt. When such is the case in the factual matrix, the lower Court was right in allowing the application to send for the said purposes to secure the Expert evidence subject to the possibility of the age of the ink of the contents of Ex.P.1 including the age of signature if not admittedly of the
accused and thumb impression of the P.W.2 and signature of P.W.1 in the impugned receipts. Now coming to the order passed by the learned Magistrate for said purposes covered by Crl.M.P.No.1695 of 2013, there is no dispute but for even for the revision petitioner/complainant to say the same was not complied with by deposit of Rs.5,000/- directed by the Magistrate and so far as this petition Crl.M.P.No.2485 of 2013 is concerned, it is in continuation to the earlier application regarding the amount in deposit and not a fresh application when that was considered by the learned Magistrate in modifying the amount required to be deposited to that extent, the lower Court is not functus officio. When such is the case, for this Court while sitting in revision against that extent of the order, there is nothing to interfere, much less any irregularity or impropriety in the impugned order. Accordingly, Point No.1 is answered.
Point No.2:
7. In the result, the Revision is dismissed. Consequently, miscellaneous petitions, if any, pending in this revision, shall stand closed.
___________________________
___________________________ Dr. B.SIVA SANKARA RAO J, Date: 20.08.2014. B/o vvr
1 issue framed by the court
Whether the impugned order in Crl.M.P.No.2485 of 2013 is unsustainable and requires interference.
3 provisions across 3 enactments
Complainant
Accused
B.SIVA SANKARA RAO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
