Allowed

Mohammed Iftequar Uddin Siddiqui, Hyd., v. Mohammed Ghouse Mohiuddin, Hyd and 2 Otrs - Pp.

Telangana HC21 Nov 2022CRLRC/1024/2016

Case brief

AI extract

What is this about?

The High Court set aside the acquittal of accused persons in a cheque dishonour case under Section 138 of the Negotiable Instruments Act. The revision was allowed as the lower courts impermissibly ignored documentary evidence and presumptions regarding debt acknowledgment and service of notice, constituting a gross miscarriage of justice. The accused were convicted and sentenced to pay a fine.

What did the court decide?

Judgment of acquittal set aside; accused convicted and sentenced to pay fine of Rs. 6,00,000/- within two months, failing which imprisonment of one year.

Mohammed Iftequar Uddin Siddiqui, Hyd., Vs Mohammed… — Cheque Dishonour | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY, THE TWENTY FIRST DAY OF NOVEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI

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CRIMINAL REVISION CASE NO: 1024 OF 2016

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Criminal Revision case Under Section 397 & 40'1 Crl.P.C Against the Judgement in Crl.A.No. 96012014 dated 31-12-2015 on the file of the Court of the V Addl. Metropolitan Sessions Judge, Hyderabad. Preferred against the Order in CC.No. 456 of 2013 dated 2-9-2014 On the file of the Court of the )(Xll Special Magistrate, Hyderabad.

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Between:

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Mohammed lftequar Uddin Siddiqui @ Aijaz S/o Mohammed Shamsuddin Siddiqui, Aged 52 years, Civil Contractor, No. 16-7-207, Azampura, Hyderabad.

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...PETITIONERYAPPELLANT

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AND

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l/ohammed Ghouse Mohiuddin S/o. Mohammed Azeemuddin, Aged about 48 years, Rl/o. 23-1-821 , tvloghalpura, Hyderabad -5OOO23

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Ir4ohd. Azeemuddin & Company, (Thro' Accused-1, Proprietor/authorized signatory: lvlohammed Ghouse tMohiuddin) at 23-1-821, Moghalpura, Hyderabad.

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The State of Telangana, rep. by the Public Prosecutor, High Court.

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...RESPONDENTS/RESPONDENTS

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This Petition coming on for hearing upon perusing the Memorandum of Grounds of Criminal Revision Case and upon hearing the arguments of Sri. Mohd. Zafrullah, Advocate for the Petitioner and of the Public Prosecutor on behalf of the Respondent No. 3 and of Sri I\4.A..K. IVlukheed, Advocate for the Respondent No.¹ &2.

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The Court made the following: ORDER

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,/ A

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THE HON'llLE Dr'..IUSTICE G. RADHA RANI

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CRIMINAL REVISION CASE No.1024 OF 2016

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ORDII,R:

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This criminal revision case is hled by the petitioner-complainant aggrieved by the^judgment in Crl.A. No.960 of 2014, dated3l.12.2015 passed by the V Additional Metropolitan Sessions Judge, Hyderabad, confirming the^juclgrnent ol'the trial court in CC No.456 of 2013 dated 02.09.2014 in acquitting the respondent-accused for the offence under Section 138 of the Negotiable Instruments Act (for short 'M Act').

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2" The parties are hereinafter referred to as per their array before the trial court.

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The case of the complainant was that on 10.01.2012, Al and his three brothers executed a construction agreement in favour of the complainant and in part payment of remuneration, A1 issued a cheque bearing No.77932 dated 30.09.2012 for Rs.5,00,000/- drawn on Axis Bank, Saroomagar Branch, dated 30.09.2012. The account was in the name of A2-Mohd..,\zeemuddin and Company. When the complainant presented the cheque, it was retumed unpaid for the reason of

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DT.GRRJ Crh No i021of2016

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)

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'insufficient funds' on 01.10.2012, 11.10.2012, 18.10.2012 and also on 18.12.2012. The complainant issued legal notice dated 24.12.2012, which was served on Al and 42. Subsequently, A1 settled the claim of the complainant for Rs.6,40,500/- on 07.01.2013 and issued two post dated cheques on 01.02.2013, bearing Nos.777941 dated 15.02.2013 for Rs.3,00,000/- and 777942 dated 15.03.2013 for Rs.3,40,000/drawn on Axis Bank, Charminar Branch, Hyderabad. The complainant presented the said cheques, but they were returned unpaid for the reason 'funds insufficient' on 20.03.2013. The complainant got issued legal notice dated22.03.2013 to A1 and A2 by RPAD. Though Al and A.2 received notices on 23.03.2013, failed to pay the cheque amount, hence, filed the complaint under Section 138 of M Act.

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The case was tried by the XXII Special Magistrate, Hyderabad. During the course of trial, the complainant examined himself as PW.1 and got marked Exs.Pl to Pl0. No defence evidence was adduced by the accused. The trial court, on considering the evidence on record, observed that the construction agreement entered by A1 and his three brothers with the complainant was not placed before the court and Ex.P9 would not reveal in which connection the

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J Dr.CP-.J Ctltc No.1021of2016

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settlement was made and how the figure of Rs.6,40,000/- was arrived and how the accused was alone liable to pay the amount when the agreement of construction was also executed by the other three brothers of the accused and that the compiainant admitted that the signatures in acknowledgment-Ex.P6 and the cheque - Ex.Pl were different, as such, the demand notice Ex.P4 was not received by the accused in person and found the accused - A1 and A2 not guilty for the offenee under Section 138 of NI Act.

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Aggrieved by the said acquittal, the complainant preferred appeal. The V Adciitional Metropolitan Sessions Judge (Mahila Courl), Hyderabad heard the appeal vide Crl.A. No.960 of 2014 and dismissed the appeal vide^judgment dated3l.I2.20l5 confirming the judgment of the trial court in C(l No.456 of 2013 dated02.09.2014"

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Aggrieved by the dismissal of appeal, the complainant preferred this revision contending that the appellate court failed to evaluate the evidence and ignored the sufficient documentary evidence on untenable iogic, and reasoning that too in the absence of any defence evidence and wrongly applied the decisions relied by the defence" The appellate court wrongly assumed that the complaint and

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J.J...

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4 Dt GR&J Ctltc No. l02a oI 201 6

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the depositions would not reveal that the cheque was issued in discharge of legally enforceable debt or liability and overlooked^the evidence available on record. Both the trial court and the appellate court wrongly presumed that Ex.P3 was not received by the accused ignoring the General Clauses Act, Evidence Act and Indian Post Office Act and prayed to call for the records of the courts below and to set aside the^judgment dated 31.12.2015 passed in Crl.A. No.960 of 2014.

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Heard learned counsel for the petitioner and the learned counsel for the respondents No. 1 and 2.

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Perused the record.

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Normally, this Court had no authority to appreciate the evidence in revision in the manner as the trial court and appellate court were required to and could exercise its power of appreciation of evidence only in exceptional cases which would require interference for correction of a manifest illegality or for prevention of gross miscarriage of^justice or the courts had excluded the evidence which was admissible or relied on inadmissible evidence by overlooking the material evidence. The scope of revisional power of the High Court

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D. GRFJ Crlrc No-t021of)0t6

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/,/-

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was considered by the High Court of Allahabad in Satya Narain v.

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State of U.P. antl othersr by referring to various judgments as follows:

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"5. The^judicial review in exercise of revisional^jurisdiction is not like an appeal. It is a supervisory^jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to tum the Revisional court into a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintaincd.

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Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 SC 196 said that revisional^jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly rlhen it is invoked by private complainant against an order of acquittal which could have been appealed against by the Govemment under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference lbr the conection of a manifest illegality, or the prevention of a gross miscaniage ofjustice. In other words, the revisional^jurisdiction of the I:ligh Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.

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In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage ofjustice. However, this was also a case in which revisional jurisdiction was invoked against an orcier of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court rvould be justified in exercising revisional porver and not otherwise.

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The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh. AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and

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I Crl.Revision No.38E of 2004 dated 2 2,07.2019

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D|GRRJ Crlrc No. 1021 of 201 6

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others Vs. Ramayan Singh and another,2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (s.c.).

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In Duli Chand Vs. Delhi Administrat[on, 1975(4) SCC 649 the Court reminded that^jurisdiction of High Court in criminal revision is severely restricted and it can-not embark upon reappreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by leamed Magistrate and Sessions Judge was correct.

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In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that ofa Magistrate on a question offact.

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In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:

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"The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the fiaming of charge or the facts as stated in the First lnformation Report even if they are taken at the lace value and accepted in their entirety do not constitute the offence for which the accused has been charged."

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In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:

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'?. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory^{jurisdiction.} These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court ofappeal but at the same time,

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r\r \

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Dt.GRH Crlrc No.1024 of )016

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it is the duty of lhe cou( to correct manifest illegality resulting in gross miscarriage ofjustice."

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As there are concurent findings of acquittal by both the trial court as well as the lower appellate court, the scope of interference in such cases is also considered.^'lhe Hon'ble Apex Court in Ravi Sharma v. State (Government of N.C.T. of Delhi) and another2 while deciding the criminal appeal against the order of acquittal by the District and Sessions Judge, North-East District, Karkordooma Court Delhi, a Division Bench of the Dethi High Court overtumed the said judgment, observed that:

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"8. Before venturing into the mcrits of the case, we would like to reiterate the scope of Section 378 of the Code of Criminal Procedure (for short 'Cr.P.C.') while deciding an appeal by the High Court, as the position of law is rather settled. We would like to quote the relevant portion of a recent judgment of this Court in Jafzrrudheen and Others v. State of Kerala Q022 SCC Online SC 495) as follos,s:

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"25. While dealing with an appeal against acquittal by invoking Section 378 of the CI.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption .Ihat enures in favour of the

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'z^{Crl.A,Nos.4t0-4IU20lS} dated lt.OL.2O2Z

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D.CRn) Crlrc No-1021af2016

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accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

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I 1. By observing precedential law in Babu v. State of Kerala

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[(2010)^{9 SCC 189], it turther notedthat:}

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"20. The findings of fact recorded by a court can be held to^be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration inelevant/ inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of inationality."

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The Hon'ble Apex Court in Manju Ram Kalita v. State

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of Assam, held that:

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"lt is settled legal proposition that if the courts below have recorded the finding of fact, the question of re-appreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. It's function is to ensure that law is being properly aciministered, Such a court caurot embark upon fruitless task ol determining the issues by re-appreciating the evidence."

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As it was contended that both the trial court as well as the

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appellate court had ignored the evidence which was admissible on record and acquitted the accused, it is considered necessary to

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appreciate the evidence on record.

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The record would disclose that Ex.P7 is the office copy of the legal notice dated 24.12.2012 issued by the counsel for the complainant to Al and 42, wherein it was demanded to pay the cheque amount of Rs.5,00,000/- within fifteen (15) days on receipt of notice, failing which action would be taken against him. It was mentioned therein clearly that a construction agreement was executed between the complainant and Al and his three brothers on 10.01.2012 and the complainant performed and completed part of the work and was entitled to receive remuneration of Rs.28,44,778l- from the accused and in part payment of the remuneration arrears, A1 issued him the cheque bearing No.77932 dated 30.09.2012 for Rs.5,00,000/- and that the same was returned unpaid for the reason 'insuffltcient funds' when he presented the sarne on different dates.

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I 5. The complainant also filed a settlement reached by the parties on 07.01.2013 showing that Al agreed to pay Rs.6,40,000/- in two installments by 15th of February and before 15fr March, 2013, signed by him. The same was recorded on the backside of Ex.P7" A calculation was also recorded as to how the amount Rs.6,40,000/- was arrived and the sarne was also signed by A 1 . An acknowledgment

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i I

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dated 01.02.2013, marked under^Ex.PI0signed by Al^{was filed,} wherein Al agreed that the complainant^{executed construction work as} per agreement dated 10.01.2012 andin full and final^payment of^arrears of remuneration, gave him two^post dated chques on^{07.02.2013;one} bearing No.777941 dated 15.02.2013 for Rs.3,00,000/- and another bearing No.777942 dated 15.03.2013 for Rs.3,40,000/- drawn on their company account. It was also specifically mentioned there that the said amount was payable to the complainant in discharge of legally enforceable debt.

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When there is clear documentary evidence filed by the complainant, the trial court without considering the same, dismissing the complaint on untenable grounds like the construction agreement between the complainant and A1 and his three brothers was not filed and it was not known as to how the figure of Rs.6,40,000/- was arrived at and how Al was liable to pay the amount, is considered as perverse as the said observations were made in ignorance of admissible evidence on record, where A1 himself acknowledged the debt and signed on the settlement, statement and on the acknowledgment admitting issuance of cheque in discharge of legally enforceable debt. The observations made

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DL{;RRJ Ctltc No.l021oJ20l6

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by the trial court are also in ignorance of the presumptions available under Section 139 of NI Act.

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17" The appellate court also upholding the^judgment of the trial court without considering the said documentary evidence on record, is in utter disregard to the presumptions available under Section 139 ofM Act"

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Further, the observation ol'the trial court on the aspect ofthe demand notice not received by the accused person observing that the acknowledgment marked under Ex.P.5 was not signed by the accused himself is also in utter disregard to the provisions of Section 3 of the Indian Post Office Act, 1898.

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Under Section 3 of the indian Post Office Act, the meaning

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of "in eourse of transmission by post" and "delivery" is defined as:

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Meanings of "in course of transmission by post" and "delivery".- For the purposes of this Ac!-

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(a) a postal article shall be deemed to be in course of transmission by the post from the time of its being delivered to a post office 1o the time of its being delivered to the addressee or of its being retumed to the sender or otherwise disposed of under Chapter VII;

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(b) the delivery of a postal article of any description to a postman or other person authorized to receive

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DTGRR,I
Crtrc No- Io2t of 2016

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postal articles ol that description for the^post shall^be deemed to be a delivery to a^post office;^and

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(c) the delivery of a postal article at the house or office of the addressee, or to the^addressee or^his servant or agent or other person considered to^be authorized to receive the article according^to the^usual manner of delivering^postal articles to the^addressee, shall be deemed to be delivery to the addressee."

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Thus, ifthe article is delivered at the house or office ofthe addressee, and if the same was received by his servant, agent or any other person authorized to receive the article, the same is considered as deemed delivery to the addressee.

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Section 27 of the General Clauses Act, 1897 also states that service shall be deemed to be effected if it was properly addressed to the concerned. The accused had not denied that the iegal notice was not sent to his correct address. When there is no denial by the accused, the trial court considering the admission of PW.1 that the signatures in acknowledgments under Ex.P5 and on the cheque under Ex.Pl were different and observing that the demand notice was not received by the accused in person is a perverse finding. The appellate court also supporting the said^judgment of the trial court in utter disregard to the provisions of the Indian Post Office Act and of the General Clauses Act, is illegal. As such, it is considered fit to set aside the^judgments of

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DLCRRJ 13 Cthc No-102,1of2016

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the courts below and to convict the accused for the offence under Section 138 of the M Act"

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However, on considering the^judgment of the Hon'ble Apex Court in Kalamani Tex and another v. P. Balasubramanian3 wherein the three Judge Bench of the Hon'ble Apex Court stated that there need to be a consistent approach towards awarding the compensation and unless there exist special circumstances, the courts should uniformly lery fine up to twice the cheque amount along with simple interest @ 9% per annum, it is considered fit to impose sentence of fine of Rs.6,00,000/- i.e. double the cheque amount, against the respondents I and 2 and the said amount to be paid as compensation to the petitioner-complainant.

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In the result, the Criminal Revision Case is allowed setting aside the^judgment dated 31.12.2015 passed in Crl.A. No.960 of 2014 by the V Additional Metropolitan Sessions Judge, Hyderabad. The respondents I ar.d? - Al and ,42 are found guilty of the offence under Section 138 of the Negotiable Instruments Act. The respondents 1 and 2 - Al and ,A.2 are sentenced to pay a fine of Rs.6,00,000/- i.e. double

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r lzozr; s scc zs:

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Dt.GRR.J CnrcNo^l021of)016

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the cheque^{amount within a period of two monthsfrom today and in} case ofdefault^{ofpaymentoffine'the respondentNo'1 - accusedNo'1} shall^{undergosimple imprisonmentfor a period of one year' On} recovery^{of the amountof fine, the same shallbe paid as compensation}

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to the Petitioner-comPlainant'

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Pending^{miscellaneouspetitions'if any' shallstand closed'}

Sd/. M. MANJULA

DEPUTY REGISTRAR

//TRUE COPY//