Allowed

Mohammed Iftequaruddin Siddiqui , Aijaz v. Mohammed Ghouse Mohiuddin

Telangana HC20 Sept 2022CRLRC/1038/2016

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision against an acquittal and affirmed judgment in a Section 138 NI Act case. It set aside the acquittal, finding evidence regarding debt acknowledgement and notice service sufficient, and convicted the accused with a doubled fine.

What did the court decide?

Criminal revision allowed; judgments quashed; accused convicted; fine of Rs. 6,80,000 imposed; imprisonment for default directed.

Mohammed Iftequaruddin Siddiqui , Aijaz Vs Mohammed… — Cheque Dishonour | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAI)

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TUESDAY, THE TWENTIETH DAY OF SEPTEIV1BER TWO THOUSAND AND TWENTY IWO

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI

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CRIMINAL REVISION CASE NC): 1038 OF 2016

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Criminal Revision Case filed Under Sections 397 and 401 of Cr.P.C aggrieved by the Judgment dated. 31.12.2015^passed in Cd.A.No.9S9 of 2014 on the file of the Court of the V Additional l\4etropolitan Sessions Judge Mahila court, Hyderabad, confirming the Judgment dated. 02.09.20'14^passed in C.C.No.455 of 2013 on the file of the Court of the XXll Special tvlagistrate, Hyderabad.

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Between:

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Mohammed lftequaruddin Siddiqui @ Aijaz, S/o. Mohammed Shamsuddin Siddiqui, Occ.Civil Contractor,^cJo. 16-7-2O7, Azampura, Hyderabad.^-

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...Petitioner/AppellanUCommplainant

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AND

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Mohammed Ghouse tvlohiuddin, S/o. l\tlohammed Azeemuddin, aged about 48 years, Nol 23-1-821, Moghalpum, Hyderabad-500023.

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Mohd. Azeemuddin and Company, (Thro'Accused-1 , proprietor/authorized ' 'signatory: Mohammed Ghouse f/ohiuddin) at 23-1-821, Moghalpura, Hyderabad.

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...Respondents/RespondentsiAccused

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State of Telangana, represented by Public Prosecutor, High Court, Hyderabad.

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...Respondents/Respondents/Accused

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Counsel for the Petitioner: SRI MOHD ZAFRULLAH

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counsel for the Respondent No.3: THE PUBLIC PROSECUTOR^(Ts)

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Counsel for the Respondent Nos. 1 and 2: SRI M. A. K. MUKHEED

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The Court made the following: ORDER

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TIlli HOvBt,E I)r.JUS'l'ICIi^{(iRAl)ll,\rl.\Nl} CtTII4IN\I, REVIS^{ION (lASIt No.l0.lll Ot'} _2^0l6

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oRDlll{:

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'lhis crir rinal revision case is filed by the pctitior e:r-co mplainant aggrieved by tl,e^{judgment in Crl-A.No.959of 20 14. dzted 3l'12'2015} passed by thc V Additional^{MetropolitanScssions J ud} -ze:,^{H yderabad,} confirming the^{judgmentof the trial court in CC No 45:'r} 'l^{2013 dated} 02.09.2014 in^{rcquittingthe respondent-acctrsedlor tht t} 'f-fcnce^under Section 138 of^{:he NegotiableInstruments Ar;t (fol short 'I'll Act')'}

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Thc^p arties are hereinafter^{referred to as per th':iranay before} the trial court.

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The )ase of the^{complainantwas that on [0.0 'l]0112,Al and} his three broth:rs executed^{a constructionagreenlentilt lavour of the} complainant ard^{in partpaymentof remuneration. AI i;sued a cheque} bearing No.771r32^{dated 30.09.2012for Rs.5,00,()00/-} 'lrirwn^{on Axis} Bank, Saroorni^{gar Branch,dated30.09.2011- Theacc()unt rvas in the} name of A2-M:hd.Azeemuddin^{and Company. When tlre cornplainant} presented the cheque, it^{was retumedunpaid for the reason bf}

'insufficicnt funds' on 0l. I0.2011. I I . 10.20 12. 13. 10.201 2 and also on 18.12.2012. The conrl:lainant issucd lcgal^rroticc dated 24.17.2012, which was served on A I and 42. Sutrsccluently, A I settled the clairn ol the complainant for Rs.6,4.0,500/- on 07.0^I .201 3 and issued two^post dated cheques on 01.02.2{)13, bearing^{Nos.777941dated 15.02.2013} for Rs.3,00,000/- and 711942 dated 15.03.2013 for^{Rs.3,40,000/-} drawn on Axis Bank, Charnrinar Branch, Hydcrabad.^{The complainant} presented the said chequcs, but thcy were rcturned unpaid for^the reason 'funds insufficient' on 20.03.2011. Tlie complainant^{got issued} legal notice dated22.03.20t3 to Al and^A.2 by RPAD.^Though Al^and hence, frled the complaint trnder Scction^I 38 ol NI 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.l and got marked Exs.Pl to Pl0. No^{defence evidence} was adduced by the accused. The trial court, on^{consideringthe} evidence on record, observed that the construction agreement^entered by Al and his three brothers with the^{complainantwas not placed} before the court and Ex.P8 would not reveal^{in which connectionthe}

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settlenrertt^{uas nlade and how thc figure ot- Rs (t'40'0(r0/-rvas arrivetl} and ho$'^{th: accused was alone liable to pay the tntounl$'hcnthe} agreement^{o iconstructionwas alsoexecuted by the o hcr tlrree brothers} ol the accus:d^{ar-rd that the complainant admitted that lhe signaturesit-t} acknowledg^{nent-Ex.P5 and the cheque -Er'P I'r'e re different'as} such, the^{d:mandnoticeEx'P3 was not received lr,' the accusedin} person and^{lound the accused} -^{Al and ,,A.2 not guittl[or the oflence} uncler Sectit,n^{138 of NI Act'}

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5.^{y' ggrieved by the said acquittal' the conrplainantpref'erred} appeal. The^{V Additional Metropolitan SessionsJudge (Mahila Court)'} Hyderabad^{heardthe appeal vide Crl'A No'1)59 of 2 0I 4 and dismissed} the appeal "ide.judgment^{dated3l'12'2015confirminpthc judgment of} the trial^{cot rt in CC No.455 of 2013dated 02'09'2014}

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Aggrieved^{by the dismissalof appeal'the complainant} preferred tris^{revisioncontending that the appell ate court failed to} evaluate th:^{evidenceand ignored the sufficientdot utnentary evidence} on untenab^{le logicand reasoning that too in theaLrsr:nr:ec'fanydefence} evidence^{a.rd wronglyapplied the decisions relied lry the defence'The} appellate^{c curt wronglyassumedthat the complaintatrd tltc depositions}

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would nclt rcvcal that thc chcquc rvas^issLred in dischargc ol' lcgally enlorceable debt or liability and o,erlooketl thc cvidcrrcc available on rccord. Both the trial coutt and the appellatc coutl rvrongly lrrcsumed that Ex.P3 was not received by the accuscd ignoring thc Ceneral Clauses Act, Evidence Act and Indian Post Ollice Act and^prayedto call for the records of the courts below and to set aside the^judgment dated31.l2.20l5^passed in Crl.A. No.959 of 2014.

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Heard learned counsel lor thc^petitioncr and the lcarned counsel for the respondents No.l 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 thc tria[ court^and appellatc 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 ofjustice 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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lvas consider('d bv the tligh^Courr ol^{Allahabadin lirr tva Narain r'.}

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State ol t-1.P. and othersl by^{rcl'erring to various.iutlgflil1ts as filllows:}

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''5. Thr judir:ial review in exercise of revisional.itlrisdi( ti,:ln is not like an appcrrl. It is a supervisory^{jurisdiction u'hich is e:<erciscd} hy thc^()ourt to con'ect the rnanifest^{elrorin thc orders of} subordi rate courts but should not^{be exercised in a manrtersoas} t() turr the Revisional court^into a^{Court of Appeal.The} legislat rre has differently made^provisions for^{apllcal and} -^- revisior and the distinction of^{two jurisdictionslra-' to be} nraintai red.

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flons:nring old Section 439 of Criminal^{I'rocedureC ld,:,I ll9tl,} peilaini rg to revisional^{jurisdiction,theCourt in D. St(pl'ens 's-} Nosibo la. AIR l95l SC¹⁹⁶ said that^{revisionalj rri;diction} tun<lcr S ectiorr 439 of thc^Codeought not^{to be excrci: txl lightly} particul rrlv rvhen it is invoked try^{privatecomplainantag:rinsl itn} order o acqrrittal which could^{have been a1;pealedagainslby thc} (iovem nent under Section 417. It could be exercised oulf in ercepti,,nal cases where the^interests ol'public^{justi )(r reqdire} intcrl-er rnce for the correction of a manifest^illegali ;''..^{or tlte} pre vent on ol a gross miscarriage of^justice. In othenvords,^tlte rcvisior al^jurisdiction of the High Court^{carulol bc invoked} nrerely recause the lower court^{has taken a wrongvieu rl'la'/ or} nrisappr eciatcd the evidence^{on record.}

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In K . Chinnaswamy Ileddy^Vs. State of^{AndhraPra ler;h, r\lR} 1962 S,l l7ti8 it was held that revisional iurisrliction^{sh;uld bc} cxercist d by the High Court in exceptional^{cases only v'ht:n there} is some glaring defect in the^procedure br^{a manifest )Toron a} point ol law resulting in flagrant miscarriage ofjustice.^lkrwe'ver, tllis wal also a case in which^{revisionaljurisdictionwas invoked} aqainst rn order of acquittal. If^{theCourt lacks jurisdictrrxr orhas} exclude I evidence which rvas admissible or^{relied on} inadrnis ;ible evidence or^{materialevidencehas been o verlookcd} etc., th)n only this Court would be^{justified in} ':xt:rcising rcvrsior rl power and not^otherwise.

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The i bove^{view has beenreiteratedin MahentlraPrzt,rp Si:rgh} Vs. Sar u Singh, AIR 1968^{SC 707;KhetrabasiSarnalVs-S:ate} olOrisra, AIR 1970^{SC 272;Satyendra Nath Duttaardanolhcr} Vs. Rar r Narain, AIR^I 975^{SC 580;Jagannath Chou' lJriry} 'rnd

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I Crl.Revision No-: 38 of 2004 dated 22.07.2019

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()

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othors Vs, I{arnayan Singh and anothcr, 2002(5) SCC^(r59; andJohar and othcls Vs. Nlandal Prasad and arrothcr. 2001t ('r..L,.t. r 627 (S.C.).

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L.r Duli Chand Vs. Dclhi Adrninistration, 1975(4) SCC' (r49 the Court rcrnindcd that jurisdiction of High Courl in clintinal revision is severely restricted and it cannot ernbark upon reapplcciation of' cvidencc. While cxer-,cising supcrvisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidcncc for dctcnnining whcther the corcuncut findings of fact reached by leamed Magistrate and Scssions Judge was correct.

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In Pathumma and another Vs. Muhainrnad, 1986(2) SCC 585 reiterating the above vierv the Coufi said that in rcvisional jurisdiction ttre l{igh Oourt would not bc justified in substituting its own vicw for that of a Magistrate on a qucstion of [act.

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ll. In Munna Devi Vs. State of Rajastlian and anothcr, 2001(9) SCC 63 I the Court said:

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"The revision power undcr the Code of Criminal procedure cannot be exerciscd in a routine and casual manner. While exercising such powers the I{igh Court has no authority to appreciate thc evidcnce in the manncr as the trial and the appellatc courts are required to do. Revisional powers could be exerciscd only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or tlie facts as stated in thc First Infonnation Rqrorl cven if they arc taken at the facc value and accepted in their cntirety do not constitutc the offence for which the.accused has been charged."

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

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"4. Sections 397 to 4Ol of the Code are group o[ sections conferring higher and superior courts a sort of supervisory^{jurisdiction.} Thesc powers are required to hc exercised spariugly. Though the jurisdiction undcr Section 401 cannot be irrvoked to only correct wrong appreciation of evidcnce and the High Crurt is not required to act as a court ofappeal but at the same tilnc,

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it is thc duty of the cotrrt to corrcct rlanil'est il cgalit'r rt sultirrg in gross rniscarriage ofjustice."

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A s tlrerc arc concunent findings of acquitt:.1[ by both the trial courl as v cll as the lower appellate court, the scop,: of interterence in such cascs is also considered. The llon'ble Apex^()ourt in Ravi Sharnra v. Sr ate (Government of N.C.T. of Delhi. and another2 rvhilc decidinp thc criminal appeal against the orrler of acquittaI by the I)istrict and S :ssions Judge , North-East District. Karkc,r doonra Court Delhi. a Divis on llench ol the Dethi High Court ovetturned the^said judgnrcnt, obst wcd that:

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"8. llctb c- ,enlu ng into the mcrits of the case, rve rvoul,l like to rcitcrate the scope of' Section 378 of the Codc of^(}iminal Pror,cdure (for short 'Cr.P.C.') while deciding an appe tl by^the I{iglr Cc:rrt. as the position of law is rather settled. V/,: would like to^(uote the relcvant portion of a recent^jtrdg,met t^,tf tJris Crrurt in Jafarudhccn and Others v. State of Keru|'r⁽²⁰²² SC(l 0n line SC 495) as follows:

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"21 . White dealing with an appeal against acquiftal by inr rking Section 378 of the Cr.PC, the Appellatt: (lo ll1 has to consider whether the Trial Court's vieu' car be lermed as a possible one, p:rticularly wl.t:r.r cvi lencc on record has been anal1zed- The reasor ir; tlla an^()rder of acquittal adds up to the^prosumpt orr o[' inno<:ence in favour of the accused. lhus, ]rt, Ap rel)ate Court has to be relatively slow in revers n1. tlre ordr:r of thc^'l'rial Court rendering acquittal. 'fhr retbre, the presumption in favour of the accu: t,ri dot l not get weakcned but only strengthened. Suclr^Ir rloLble prcsumption that cnures in favotrr of^rht:

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2 crl..(. f,los.4 l(,-.1 I I 20 I 5 dated 11.07.2122

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I I i I rl

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accuscd ltas to br: distulbed only by thorouglr scr utiuy on thc acccpted legal paraureters."

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I l. []y observing Dreccdential law in Babu ,. Statc o['l{cr:rla

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[(2010)^{9 SCC I891,ir firfthernorcd} that:

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"20. Thc findings o[ fbct recorded by a court can be held to be perverse if the findings have been anived at by ignoring or excluding relcvant rnaterial or by taking into consideration irrelevant/ inadrnissible material. The finding may also be said to be peruerse if it is "against the weight of evidence", or if the finding so outragcously dcfies logic as to suffer fiorn the vice of irrationality."

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l'he Hon'ble z\pex Court in Manju Rarn 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 lravc recorded the finding of fact, the question of re-appreciation ol evidcnce by the third court does not arisc unless it is flound to bc totally perverse. The higher court does not sit as a regular cou( of appeal. It's function is to ensure that law is being properly administered. Such a oourt carmot embark upon fruitless task of determining thc 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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appcllate court had ignored the evidence which was adrnissible on record and acquitted the accused, it is considered necessary to apprcciate the evidence on record.

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), t;k1r I ( t11.,.t ltr tl rl :t)!a

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l-1.^'-he rccorrl rvotrltl disclosc that [rx.P7 is the otlice copy of tlrc lcgal r oticc clatcd 24.1?..2012 issued lry tht ,:ounsel fbl the conlplainan to A I and 42, wherein it was denrandec to pr.y the cheque arnount ol- 1Is.5,00,000/- within fitieen (15) days on r,3geipt of notice, fhiling rvhirh action would be taken against him. lt was mentioned therein clcar ly that a construction agreement was executed between the corrplainant and AI and his three brothers on lC.0 1.2012 and the cornplainanl perlbrnred and cornpleted part ol th: work and was entitle(l to r:ccive rernuneratiorr of Rs.28,44,778l- fr-om the accused and in parl )aynrent of the renruneration arrears. A I issued him the cheque beanng No.77932 dated 30.09.2012 for Rs.5 00,0()0/- and that the sanre wa; returned unpaid lor the reason 'insuffir;it:nt funds' when he presented the same on different dates.

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I 5. 1^'he complainant also filed a settlement reached by the parties on 0i.01.2013 showing that Al agreed to pay lts.6,40,000/- in two installm:nts by 15'h of February and before l:i'h March, 2013, signed by hirr. l'he same was recorded on the backide of Ex.P7. A calculation u as also recorded as to how the amount F.s.6,40,000/- was arrived and he sarre was also signed by A I . An lcknowledgment

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Itt

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l()

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datcd 01,02.20 l.l, rnarkcd under llx.l'9 signed by A I was Illed, rvhcrein A I agrecrl tllat tlie contplainant exccuted colistructiou r.vork as per agrccrnent datcd I 0,0 I .20 I2 and in lull andfinal payment ol'lrrcars ol rcmuncratiolr, gave him trvo post dated chques on 01.02.2013; 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. [t was also specifically mentioned the re that thc said amount n,as payablc to thc complainant in discharge ol lcgally enfbrccable debt.

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l(r. 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 agrecment between the complainant and Al 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, wherc Al himself acknowledged the debt and signed on the settlement, statement and on the acknowledgment admitting issuance of chequc in dischargc of legally enforceable debt. The observalions madc

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by thc trial c(rLtrt ure also irr iqnoraltcc ol'the l)resLlnptions available undcr Secticn lic) olNI Act.

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17.^'I he appellate court also upholding tire jucgrnert ol the trial court withor t cousidering the said documentary evid,:nce on record, is in utter disre lard to the presumptions available under Section 136'of NI Act.

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Ft rther, thc obscnation olthe trial courr or theaspect ofthe demancl noti,:e n()t receivcd by the accused person observing that the acknowledgn rent marked under Ex.P.5 was not signel by the accused himsell is al ;o in utter disregard to the provisions of Section 3 of the Indian Post Cffice Act, 1898.

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Ur der Section 3 of'the Indian Post Olfice ,\ct, the meaning

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of "in course rf transmission by post" and "delivery" is defirred as:

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3 Meanings of "in course of transmission by 1,ost,, a rd "delivery".--For the purposes of this Act,-

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(i ) a postal article shall be deemed to be in coun er ,lf tr rnsrnission by the post from the time of its being d' livercd to a post office to thc tilne ol its b:ing d, livcrcd to the addressee or of its being retumed to tt: sender or otherwise disposed ol'under Chapt,:r VI;

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(b ) thc delivery of a postal article of any descnpticn to a postlnan or other pcrson authorized to rec:rve

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. D,APRJ Crlrc^{No-I038 of 2016}

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postal articles of that^description for^{the post shallbe} deemed^to be a delivcry^{to a post offipe; and}

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

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Thus, if the articte^{is deliveredat the house or officeof the} addressee, and if the same^{was received by his servant, agentor any} other person authorized^{to receive the article, the sameis considered as} deemed delivery to the^addressee.

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Section 27 of the General^{ClausesAct, 1897also statesthat} service shall be deemed^{to be effected if it was properly addressed to} the concerned. The accused^{had not denied that the legal noticewas} not sent to his correct address.^{Whenthereis no denialby the accused,} the trial court considering^{the admissionof PW. I that the signaturesin} acknowledgments^{under Ex.P5 and on the chequeunder Ex'Pl were} different and observing^{that the demand notice was not receivedby the} accused in^{person is a perverse finding. The appellate courtalso} supporting the^{said judgmentof the trial courtin utterdisregardto the} provisions of the^{IndianPostOffice Act and of the GeneralClauses} ect, ii illegal.^{As such,it is considered fit to set aside the judgments of}

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DT.GRBJ C.kc No l0J2t ol )016

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the courrs bel t*, and to convict the accused for tlre of-tbnce unddr Section I 38 of the NI Acr.

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"22. ln^therer ult, the Criminal Revision Case is allo ,r,ed setting aside thc judgment riated 31.12.2015 in Crl.A. No.959 of 2014 passed by the learned V A lditional Metropolitan Sessions Judgr,, Hyderabad, whereby the ju lgment dated 02.09.2014 in CC No.455 r,f 2013 passed by the learned X) III Special Magistrate,, Hyderabad is :onfirmed. The respondent Nos.l and 2 - accused are found guirh, for the offence under Section 138 of t re Negotiabre Instruments Act. Horvever, considering the judgment ol'tht Hon'trle Apex court in Karamani rex rLnd a,other v. p. Balasubramani: rn [(2021) 5 SCC 2g3l wherein, the three ,ludge Bench of the Hon'ble Apr x Court herd that there need to be a conristent approach towards awarr ing compensation and unless ther,: exist special circumstances, he Courts should uniformly leq.fine up to twice the cheque amount along with simple interest at 9o/o ptr annum, it is considered fit tt im;rose sentence of fine of double the cheque amount against respond:nt Nos.l and 2 - accused. Accordinql;r, respondent Nos.l and 2 - accused are sentenced to pay a fine rf Rs.6,g0,000/_ (Rupees Six lakhs and Eighty thousand only) i.e. clouble the cheque amount and the same shall be paid as compensation to the ;retitioner_ cornplainant s,itl rin a period of two months from the dat: of reccipt of a

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DT.GRR.J Crl,. No lOlAoJ2ot6

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copy of this order. In case of default of paymcnt of line, respondent Nos.l and 2 - accused shall undergo simple imprisonment fbr a period of one year. The trial court is directed to take steps to execute the sentence, if the fine amount, as directed by this Court, is not paid by the accused within the stipulated time."

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Pending miscellaneous petitions, ifany, shall stand closed.

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1 \ I

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SD/-A.V.S.S.C.S.M.SARMA DEPUry REGISTRAR Note: Amended as per court order dated 2 ih;E;' r.rliii".,iitr, th",;;;ffii["'r%]'ili:' 3il""f.0"iJ.X:? subsrituteseartiero.J";;hi;;;Jrar-.irili,"a on01t12t2022.

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Sd/.A.V.S.S.C.S. M.SHARMA DEPUry RIGISTRAR //TRUE COPY//

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To, sEcTloN oFFICER

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The V Addjtional Metropolitan Sessions Judge,(Mahita Court) at

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^^{Hyderabad.(With records if any)} i II:^ XLP:cialylgisjrate,^{Hyderabad (with recordsif any)} r. rwo UCs to the public prosecutor, High Court for the State of Telangana, at Hyderabad [OUT]

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