Partly allowed

V.Raghuveer Reddy, v. a.Prathap Reddy and Another

Telangana HC8 Feb 2023CRLRC/1453/2008

Case brief

AI extract

What is this about?

In a criminal revision, the High Court declined to interfere with the conviction for cheque bounce but exercised powers to modify the sentence, setting aside imprisonment and ordering compensation to the complainant while remitting the fine.

What did the court decide?

Sentence reduced to one month simple imprisonment; fine remitted; Rs. 2,50,000 compensation to complainant.

V.Raghuveer Reddy, Vs a.Prathap Reddy and Another — Cheque Dishonour | Telangana HC (2023)

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[^32se ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, THE EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE DR. JUSTICE D.NAGARJUN

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CRIMINAL REVISION CASE No: 1453 OF 2008

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Criminal Revision Case filed under Section 397 & 401 of CrPC against the docket order dated 23-09-2008 passed in Crl.A.No.451 of 2007 on the file of the Court of the ll Additional Metropolitan Sessions Judge, Hyderabad confirming the order dated:23-10-2017 in CC.No. 134 ol 2004 on the file of the lV Additional Chief Metropolitan Magistrate, Hyderabad.

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Between:

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V.Raghuveer Reddy,, S/o. V.Raghava Reddy, Aged about 50 years, Rl/o. H.No. 2-2-111913, Flat No.3, Sundram Mansion, New Nallakunta, Hyderabad.

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...Petitioner/Accused

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AND

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A.Prathap Reddy, S/o. A.Narasimha Reddy, Aged about 50 years,R/o. H.No. 7-71 162, Maheswari Nagar, Habsiguda, Hyderabad.

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The State of A.P.,, rep,. By Public Prosecutor, High Court of A.P., Hyderabad

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...Respondents

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CRLRCMP. NO: 1980 OF 2008

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Petition under Section 3S7 (1) Cr.P.C. praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of sentence and released the petitioner on bail, pending disposal of the Criminal Revision Case

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Counsel for the Petitioner: SRl. T PRADYUMNA KUMAR REDDY

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Counsel for the Respondent No.1: None Appeared

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Counset for the Respondent No.2: PUBLIC PROSECUTOR

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The Court made the following: ORDER

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: _. _:'"j ea:'. :::-. '

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THE HoNOTIRABLE DR. JUSTICE D.NAGIGJUN

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CRIM:NAL REVISION CASE No.1453 of ztOO8

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ORDER

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This Orj^'ninal Revision Case is lileci b1, llLe revisiorr petitloner - rccr-rsed to set aside the judgr ent dated 23.O9.2OC'8 in Criminal Appeal No.451 of 2OO7 o-L the file of learned II Additional Metropolitan Sessicrr; Judge, H)rds..5.cl :orfirrning the judgment dated 23.I0.2007 in C.C No.l3.1 ,tf 2004 on the file of learned lV Addrt..onal Chiei Metropolitan J 'leLgrstrate, IJl,derabad, w.herein rl; -- r'evisron petitioner - ,lc:LLsr:d^.,vas found guilty ald convict.ed for thc ofl'ence under I^.e,rl.ion i38 ol the Negotiable Inslrurnen -s Act.

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The latrts ir bnef, as carr be seen from^.:he r(',-^ )rd are a:.1 under

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a) The r e spc nrlent Nit. 1 - complainant loclgcd ,r ,:ontplaint against thr re'vi rr,rn petitioner - accused for the oflt:rrce unclerSection 13,\ cf t hr: Negoti:Lble Instruments Act erlie 3ing that in the month r-rf F :trnrary, 200 1 the revision pL'titiorler, ,r,tro is his family li'rc n [, has borrowed aL sum of Rs.2,50, ](rO/- from

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the respondent No. I - complainant promising to repay the same in the month of April, 2002 rvith interest @ 24'k per annum by executing promissory note dated 01.02.2001. But the reyision petitioner accused failed to keep up his promise. On repeated demalds by the respondent No. 1 complainant, the revision petitioner - accused has issued a cheque bearing No.O3O4O3 dated 22.10.2003 for i.,. sum of Rs.2,5O,OO0/- in discharge of the debt under pronote. When the said cheque was presented by the responclent No.l complainant with his banker, the same was returned unpaid under the caption "insufficient funds" vide cheque returned memo dated 22.1O.2OO3. The respondent No. 1 complainant got issued a legal notice dated 03.11.2003 to the revlsl0n petitioner accused informing him about the bouncing of cheque, thereby demanded him to pay the amount covered under the cheque within 15 days from the date of receipt of the said notice and the same was served on the revision petitioner - accused. But the revision petitioner -^{accused neither repaid the amount rror gave any reply} notice.

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b) The said crmplaint was taken cognizattcer fc,r- thr, offence under Sectior 138 of the Negotiable InstrurnerLts ,\ct ard numbered iis C).C.No.734 of 2004. During tL r: ccurse of enqui4', the r:vision petitioner was examined u:-r<.ler Section 251 of the Oo [e of Criminal Procedure for the o li.nc,: under Section 1ll8 ol the Negotiable Instruments Act, f<r.r wtLich the revision p,rtitic nr-'r pieaded not guilty and cl:rimec I,o L,e tried. The resporrder t No.1 - complainant got examine,i hinrself as PWI and g,tt rnarked Exs. Pl to P9 in supp:)rt of his contention s. I ft,:r closure of evidence, the revisicn petitioner -^{accused u,as examined} under Section 3 i.l of ,h.e Oode of Criminal Proc, dure explaining the incriminatirrel nraterial deposed bi. f'S 1. for which the revision petit.ioner - accused denied anrl re rorted defence evidence on his b:tLalf . The revision pe.titio rer - accused got examined hims--l.'ars DWl and got m;rrket IDxs. Dl to D3 in support of his co:.rtentions. The trial Croutrt after considering the oral and dc,<:r_rmentarJr evidence, fbun< the reusion petitioner - accused g-r.r ilty of the offence unrler S:c:tion 1.38 of the Negotiable lnstrr.rrnerts Act and benten ced h.m to undergo simple impt.isonrrLcnt for a

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period of six months and to pay fine of Rs.S,OOO/- and in default to under simple imprisonment for a period of one month.

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c) Aggrieved by the same, the revision petitioner herein has preferred Criminal Appeal No.451 of 2OO7 on the file of learned II Additional Metropolitan Sessions Judge, Hyderabad. The learned II Additional Metropolitan Sessions Judge, Hyderabad after considering the rival contentions, has dismissed Criminal Appeal No.451 of 2OO7 vide^judgment dated 23.09.2OO8.

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Aggrieved by the dismissal of criminal appeal, the revision petitioner - accused has filed the present^crimina-l revision case to set aside the^judgment dated 23.09.2008 in Criminal Appeal No.45l of 2OO7 on the frle of learned^II Additional Metropolitan Sessions Judge, Hyderabad on^the following grounds:

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a) The learned Judge erred in placing reliance^{on the} highly interested discrepant testimony of PW1

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b) The learned Judge ought to have seen thel P[,1 could not estab [is]-r h;et there was a legally enforcr:able <1,:bt

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c) The lea^-ned Jr.rdge erred in holding _:rat non examination c I Urna Fleddy and Deepkanth Redct1, was fatal to the pet:.tic)n :r to estzrblish the receipt dated29.()'1 .2r)02.

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d) The lear r<rd Juctge erred in placing relie rr :e on the decree passt:d in O.S.No. 198/2OO4 on the fie of ea-ned III Additional Sr:n or Civil Judge (FTC), Ranga Reddy rrgarnst the petitioner, wtei, h u.as liled against Ex.P6 promiss(,r-. n()Le.

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e) The lezLrr eC Jud11e erred in rejecting the r:r,idr:nce of DWI and Ilxs. ) t to D3,.

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f) The lerr red Juctge erred in holding theL: rLothing prevented th,: retitioner from producing thc coun:er foil of the chequr: l-ror k or the balk statement to prob ztl;al se his contention that h,: issued Ex.Pl cheque on 22.lO.2lCO3.

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Hearcl Sri T. Prad.rumna Kumar Reddy, lear:r,:d senior counsel for tt e revision petitioner accusec. and Sri Muthyala I,lura icLhar, lr3arned Additiona_l public pr.osr:cutor

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for respondent - State. Notice taken out to respondent No.1 was served. However, there is no representation behalf of^the respondent No. 1 since long time, hence, the submission of respondent No.1 is treated as "heard".

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5 Now the point for consideration is:

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"Whether judgment dated

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23.O9.2OO8 in Criminal Appeal No.451 of 2OO7 on the frle of learned II Additional Metropolitan Sessions Judge, Hyderabad confirming the judgment dated 23.1O.2OO7 in C.C.No. 134 of 2OO4 on the file of learned IV Additiona-l Chief Metropolitan Magistrate, Hyderabad is liable to be set aside?"

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The scope and ambit of this Revisional Court in interfering with the^judgment of the trial Court is^very limited. This Court cannot sit like an appellate Court^for re-assessing the frnding of the trial Court in respect of^facts, which are already settled on the basis of^{evidence placed} before the Court. This Court will^essentially try^to understand whether the^appellate Court has committed^any

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error, eit t1e r rr ocedurally or iegally, while corrr ng to the

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conclusio n

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In Kher.a (A Khem Chandra etc v. State: o,f Uttar

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Pradeshl, rhe lc,nourable Supreme Court held as Lrnder:

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".2[ It is further to be noted t,L'.at imm,:diatzly afier the incidert, Vijag SirtgrLq broth.er o' deceased Prakash as utell as Omix'er (PW t) at d lnder (PW2), informed about ,tte incident. , t Pctlice Station Shergarh on telepholle tthich 1'a< t ,\as cotne on record in the euidence cf Omut:er 1DW1) ar:.d Inder (PW2). Neitlrcr V1:t.,.y has beer <;xamined nor has the station dtcug entn,, u,it,,- regard to the said telephonic messzl!.e been pla< zcl on record. Though Inder (PW2) ac.,s admrtted tlrat the, incident u.tas witnessed t.y Parnral, tlajueer ond other residents, none of them wa: etxamined. As such, the possibilitlr ,.tf the p'ro.;e rution not bringing on record the ret,:rl gene::is o., th.e inciclent cannot be ruled out.

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Sltn Singh has strongly reliecl on t,Le judgrnent tJ tltis Ccurt in the case of SmL Da'Lsir Kaur lsup^'al in support of the sub mission tLta'. t,r uieu cf th t <:oncun'ent findings of fact, tLtis Cowt sltoultl na reappreciate the euidence. No doul;t that t'.he' r zltance placed by Shri Singh on^',1t,2 judgmert >f th.is C<';urt in the case of Smt. DalLtir Kaur (sttp, a,' is tueil meited. Howeuer, it is to lte noted that this Court, in a catena of ca-ses, hct:; held thctt ; h<>ugh ir,:. cases of concurrent findir, g1:; of fact th s Court uill not ordinarily iruterfere. with t\e said findings, in excepliorr-,;:l circuntstar ces, thi:; Court is empoutered to d.,:t

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'^zlez 0 ,qlR^(sc ) ] 7(,^j

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so. If this Court finds tlnt the appreciation of euidence and findings is uitiated bg ang enor of la u.t or procedure or fourud cortrary to the pinciples of natural justice, errors of record and misreading of the euidence, or u.there tle anclusions of the High Court are manifestlg peruerse, this Court u.tould not be pouLerless to reappreciate th.e euidence. Reliance in this respect could be placed on th.e judgments of this Court in thE cases of Himachal Pradesh Administration u. Shn Om Prakash6 Arunaclwlam u. P.S.R. Sadhananttum and Anoth.er, Mithilesh Kumari and Another u. Prem Behai Klwre, State of U.P. u. Babul Nath, and Pattakkal Kunhikoga (Dead) Bg IRs. u. Thoopiyakkal Koya and Anotler.

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Recentlg, this Court in the case of Ashoks'inhJauendrasinh u. State of Guiarat tnd also held thnt when the High Court has failed to appreciate the oral euidence, this Court u.tould certainlg be entitled to appreciate the euidence in correct perspectiue. In the said case also, this Court, finding that tle conuictton was recorded afier ignoring th.e uital euidence, has set aside the order of conuiction and acquitted the acansed.'

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In view of the principle laid down in .the above said authority and other catena of cases, it is settled that though in cases of concurrent findings of fact this Court will not ordinarily interfere with the said frndings, 1n exceptional circumstances, this Court is empowered to do so. On perusal

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of the gt ou n, [s of th,: revision, the revision p:t itioner has taken grour:Ld ers if he has preferred an appeal.

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As seer from the grounds of revision irncl entire material avai able on record, the revision pe ti:ioner has submitterl t hr .t the trial court and appellate (.:ourt have committe<l t:rr tt in holding that the revision pr:rltioner has not rebul rerl the presumption under Section 139 of the Negotiablc inr truments Act ard that non exarrrina tion of material rvir,n^.sses is fata-l to the revision :t:titioner accused

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Accordinl to the respondent - complainalt, r:o a.ccount of previous €rc( uaintan,te he has advanced Rs.2,5(.t,OO0/- to the revisron rr:titioner - accused, who hal; executed promisson not: undertaking to repay the same uith i.eterest @^{24% per zLn} rlrm. The revision petitioner - a,:c:ust:d has also issued E-x.,,1 cheque in discharge of the said zurrount but the said r:heq re was dishonoured when the s;irm,: was

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presented I n t re ltank. During the course ol^.:ria-l, the &"i I^{sion pr:titio rc,r examinedhimself as DW l,,vhrt has}

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admitted that Exs.Pl and^{P6 were given by him and he also} admitted his sig:natures on Exs.Pl and^{P6. However, he has} taken defence that those two documents^{were given by him} when his wife has borrowed Rs.2,00,000/- from the^{wife of} the complainant and even though his^{wife has dischargedthe} said amount in the presence of^{two witnesses, Exs.Pl and P6} were not returned and a false^case has^{been foisted.Once} PWl has deposed that he has^{advancedRs.2,5O,0OO/-, for} which accused has executed Exs.Pl and^{P6 in discharge of} the said amount, the burden stands^{dischargedas Section} 139 of the Negotiable Instruments^{Act mandates that once} the accused admits to^{have given cheque to the complainant,} it is deemed that the said cheque is^{given towards} enforcement of legally enforceable debt.^{However, the} revision petitioner - accused has right to^{rebut the said} presumption either by producing evidence or by^cross examining the witnesses^examined on^{behalf ofthe} complainant or showing^{the infirmities} in^{the evidence of} PW1.

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1i. It is the s:ecific case of the revision ltetitiorrer that his wife has l;orrr^q'ed Rs.12,00,000/, from the rvifc of r-esoondent No.1 and she 1as returned the same in the preser.rce of Uma Reddy an,1 I)e :p,kanth Reddy. For the reasons bes: known to the revision pr titioner - accused, his wife is not er:,:anined to show that pro rote ancl cheque were given to thr:^.'vifr: of the complaina nt vhen she has borrowed Rs.2 laktr:; ald the same werc nrir used. Siimilarly in respect of discri,Lrgt: of the loan to thr: rl'itl of the complainant also, it is the r;t,ecific case of the rev sion p,stitioner - accused that in the 1t:-es,:nce of Uma Redcly ar Ld Deepkanth Reddy the amount vras given. Ho',vever, 1he), verre not examined beforc the Cour- r:ts <lefence wltn esse s.

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The c,ther documents filed by the revision petitior,er i.e., Exs.Dl to ..)3 v ere exa-rnined by the trial Court arLd observed that they are n;t relevant to the facts of the case. Ttre trial Court has a1so rointed out that the revision petitic,n er raving received noti<:e has not reply to put forth his c,ase Not giving of rep11' t I the sta_tutory notice will r-rot be a 1:round to hold that\ tLre ttccuserl has admitted thc: ca se c,f the

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complainant. However, once the revision petitioner^{has got a} specific case, it is expected that he should send a^reply stating that he is not due arry amount under the pronote or cheque.

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The trial Court and appellate Court having gone through the entire evidence, carefully and meticulously^have concluded that the revision petitioner has borrowed Rs.2,50,OOO/- by executing pronote ald in discharge of the said amount, the revision petitioner has given cheque for Rs.2,SO,OOO/- and the said cheque was returned^as dishonoured admittedly when^presented in the bank and trial court has also gave a finding that the revision^{petitionerhas} failed to rebut the presumption raised against him^{that the} cheque given by him to the complainant is in^respect of^the discharge of legally enforceable debt. Since, these ingredients are proved, there is no other option for the trial Court and appellate Court except to find the revision^petitioner - accused guilty of the offence under^{Section 138} of^the Negotiable Instruments Act. .---

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In vievr^{, rf} the aLrove discussion, the revisigrt potitioner has faile,l tr place arry material before th s Crturt to demonstra.te .hat trial court and appellate (l:urt have committe<-l err )r' on the face of it either procedrrral :r legal and thereiore, the judgment of the trial Cotrrt cor-rfirmed by the appellilte c )L.rt cannot be interfered

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Learnerl counsel for the revision petiti,tnerr has submitted dur n11 the course of arguments r_hat if ult tmately the Court⁽ orn( s to the conclusion that there is no rtraterial in the revision pe ition, sc,ught for considering the rt:,:luction of the senten,::e in pcsed^'lt.y the trial Court and confirrled by the appellate ccurt

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The trial^t )ourt has sentenced the revision po1iti('ner to undergo sirnple irnprisonment for a period of six nrr:nths and pay fine of R ;. Ij,OOO / - and in default to sullr:r simple imprisonmt:nt fr r a period of one month. The appe llate Court has simph tlir rr issed the appeal without moclrt'ying the sentence. It is ubmitted that as per the record, t.-rt rev1sl0n petitioner ir,r zrg, d abor-Lt 50 years on the dzrte ol lilirtg the

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revision case in the year 2004 when the complaint^{was filed} and as of now, the revision^petitioner would be aged^{about 69} yea,rs. Section 138 of the Negotiable Instruments Act contemplates imposition of sentence maximum to the extent of two years and also fine, which may extend to twice the cheque amount or with both. The Court can also award compensation to the complainant under Section 357 of the Code of Criminal Procedure in addition to the sentence awarded. The trial Court while imposing sentence of six months has also imposed fine of Rs.5,0O0/-. However,^the said amount must have been confiscated to the State,^for which the complainant did not get any amount.

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In a similar case, the High Court of Kerala at Ernakulam in Q.(llfehini^y5 Varghese M. Mathew and

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another2 held as under:

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o13. Consequentlg, the reuision petition is alloued in parl. Conuiction of tle petitioner/acansed for the offence under Section 138 of the Act bg the trial aur| ulhich stands affirmed bg the appellate court,

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'?^{2o2o scconlineKer 492}

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is c:'sryt'ir ned The sentence imposed on tlu' petil i.ctrte /,tccuseC bg the tial court, tuhtc,r,:. starlds a^Fftrmed bg the appellate court. is s.l aside. ) 1 supe,"session of the se'ntence impc.'se:d tr'. the petitioner/ accused bg the ttitl coun'. tt, is setttenced to paA a Jine ,';-l Rs.5,)0,( Or)/- (Rupees fiue lakl:s ten thousana cnlg) and in default of pagnten.t of fine,^{lc t,ndergosimple imprtsonment} for^a. peiod oJ lu.t<t month-s. If the fine amount 1s: reali:;ecl, t :;hall b,z paid to the complainant as. compensc tion. The petitioner/ accus<:d^js granled c peiod ctf fiue montl* from today tc remit the .irie amount in the tial courl."

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Learne,l counsel for the revision peli _rr.,ner has submitted that based on the promissory note u rcler Ex.P6 the complain:rn . has frled a suit for recovery of mo-rt:y against the revisior F,et .tioner. The said suit was decree<l rrftr:r fullfledged triarl ar d the rt:vision petitioner did not r:ho,tse to prefer an appee l. The <:ase of the revision petition,::r is that he has not l;orr ru'ed anv money under the pronot(:. ho.,r,ever, his u,ife borrol,l:ci Rs.2,00,000/- only from thr: rvi:'e ,rf the complainant by giving pronote and cheque. If s rt.h is the

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case, the revision petitioner could have preferred an^appeal. Keeping quiet and suffered the^judgment also^{wouldgo to} show that the revision petitioner has borrowed the^money under pronote.

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In view of the above facts and circumstances,^this Court is of the opinion that the revision^{petitionerhas failed} to establish any of the grounds to^{succeed in this criminal} revision case to show that the trial Court or^{appellate Court} have committed illegality or irregularity^{while passingthe} impugned^judgment.

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Accordingly, the Criminal^{Revision Case is disposedof} modiffing the^judgment dated^{23.O9.2OOa in Criminal Appeal} No.45l of 2OO7 on the file of^{learned IIAdditional} Metropolitan Sessions Judge, Hyderabad to^{the extent of} reducing the simple imprisonment^{from six monthsto one} month. Further, the revision^petitioner -^{accusedis directed} to pay Rs. 2,50,000/- to the^{complainaltas compensation} under Sectio n 357 of^{the Code of Criminal Procedure. The} revision petitioner/ accused^{is granted a period of five months}

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from todr:1' to rcmit the compensation amounl lt,:[ore the trial Court. IrL del rlrlt of payment of compensation it'nount, the revision gre it oner - accused shall su fIi:r simple imprisonrnenr ftr a pe:riod of trvo months and ttr,: trial Court is directe'd to take necessary steps in this regarrl. Further, the sentc'nce rf imposing fine of Rs.5,000/^. is s:t aside. The fine amounl-, f ,ry, prrid by the revision petitione:r is ordered to be retr-Lrne I back to the revision petitioner-. 'I'he remand period, if arLy already undergone by the revisiorL pet.tioner - accused Ls or *:rr:d tc be set off under St:ctior ,12tt of the Code of^(-ri;r. nal Procedure. The sentence impcsed against the revision p etitioner - accused in this case art,l Orimina_1 Revision^('zrs;e No. 1454 of 2OOB shall run conclrrrently.

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As a st:q re 1, penciing Miscellaneous Applicati:rns, if any, shall stanrl <:k st:d.

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//TRUE COPY//

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Sd/. T. KRISHNA KUMAR Dt:PUT\T REGISTRAR

To,

:iI CTION OFFICER