Dismissed

M.Danam, Rc Puram, Medak District v. T.Srinivas, Medak District and Another, Rep.by P.P, High Court

Telangana HC13 Sept 2023CRLRC/171/2011

Case brief

AI extract

What is this about?

This revision maintained the conviction of the petitioner for cheque bouncing under Section 138 of the Negotiable Instruments Act. The court rejected the claim that the judgment was based on surmises, finding the presptions under the Act valid and the sentences appropriate.

What did the court decide?

The criminal revision case was dismissed; the impugned judgment of conviction and sentence was maintained.

M.Danam, Rc Puram, Medak District Vs T.Srinivas, Medak… — Cheque Dishonour | Telangana HC (2023)

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[^329e ]

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IN THE HIGH COURT FOR AT HYDTJREABIflE^{OF TELANGANA}

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WEDNESDAY,THE THIRTEENTH DAY OF SEPTEMBER rwo rHousAND AND TWENTi rinti-"'"

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PRESENT

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THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL

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CRIMINAL REVtstoN CASE NO :171 OF 2011

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Criminal Revision Case under Sections 3g7 & 4O1 of Cr.p.C. aqainst the Judgment dated 27_01_201 1T49 i" Crl.A.ii;. d"O iOtO on the fite of the Court of the speciar Judse for Trair of offenc;;'il;; dcE'r'i"oer Act_cum- V Additionar District and sessions Judo9,ledak rt srg, i"ioj ereferred against the order passed in c.c.No. 25 0f 20og oateo zr-od-z6i"o"ol, *," fire of the courr of the J.F.C.M., Sanga Reddy.

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Between:

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M.Danam, S/o. paramar B h; ;; il;;;s; ;,,j"#d fEi:fl,I hff"; ir":,r",1 gf],!,1,e,orov"e, R/o L r c.60e,

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AND

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...PETITIoNER/AACUSED

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' L::i:11?',t'J,";,,Xfm!;ffi::^{BusinessRr/o H No 2-56,Ameenpur Virase,}

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The State of A.p.. Reot by its public prosecutor, High Court of A.p.,Hyderabad.

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...nEtFo,r.iEeruTs/coMpLAtNANr

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CRLRC MP. NO: 276 oF 2011

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Petition under section i 51 cpc praying that in the circumstances stated in the affidavit fited in support31 1ne^{Oeiition, it.Uign Court may be pteased} to suspend the execution of sentence passed in the jud"qment passed in crr.A.No. 46 of 2010 on the fire of the Speciar LiGl"i ri"i ti"dffun ", under SCisr (poA) Act-cum- V Additionat oist.itt anO Ses-SrG j;;;;' ,i"orn ,, Sanga Reddy dated 27-01-2011 as confirmed in c.c.No. zs ot zoodl", ihe rire of the J.F.c.M., sanoa fi:tl fl:5* 21-06-2010, and rerease te pJitiJner'on bait, pendins disposatif

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Counsel for the petitioner : Mr. M.^pRATAp SINGH Counsel for the Respondent No.1: frlr. n. pneSAO^' uounset ror the Respondent No.2: Mr. VIZARATH ALl, PUBLIC PRosEcuroR The court made the fottowing: o*#t*tt'

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THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL

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CRIMINAL REVISION CASE No.171 OF 2011

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ORDER:

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This Criminal Revision Case is filed against the judgment dated 27.01.2011 passed in Crl.A.No.46 of 2OlO on the file of learned Special Judge for Trial of Offences under SC/ST (POA) Act-cum-V Additional District & Sessions Judge, Medak at Sanga Reddy (for short, "the lower appellate Court") as conhrmed in the judgment dated 21.06.2O1O in C.C.No.2S of 2OO9 on the file of learned Judicial First Class Magistrate, Sanga Reddy (for short, "the trial Court").

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Heard Mr. M. Pratap Singh, learned counsel for the petitioner, Mr. R. Prasad, learned counsel for respondent No.1 and Mr. Vizarath Ali, Iearned Assistant Public Prosecutor appearing for the respondent State.

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The brief facts of the case are that respondent No. 1, who is the complainant filed a private complaint against petitioner herein who is the sole accused under Section 200 Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the N.I. Act"). The petitioner approached respondent No.1 seeking hand loan of Rs.4O,OOO/- to

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meet his family necessities. Accordingly, respondent No.1 advanced the said amount to the petitioner on 17.06.2007 and the petitioner to that effect executed a promissory note in favour of respondent No.1 promising to re-pay the said amount within a period of three months. On repeated demands, the petitioner issued a cheque viz. , Ex P 1 towards repayment of hand loan.

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On presentation, the said cheque was dishonoured due to insufficiency of funds in the account. There upon respondent No.1 issued a statutory legal notice. But even on receipt of the said notice, the petitioner neither re-paid the said amount nor gave any reply. Hence, the present complaint.

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The trial Court vide judgment dated 21.06.2O1O in C.C.No.2S of 2OO9 found the petitioner-accused guilty for the offence punishable under Section 138 of the N.I. Act ald convicted and sentenced him to undergo rigorous imprisonment for a period of one year and also pay fine of Rs. 1O,OOO/- for the a-lleged offence. In default of payment of line, the accused had to undergo simple imprisonment for a period of three months. Out of the hne amount collected, an amount of Rs.8,000/- was to be paid to the complainant under Section 357 Cr.P.C. towards compensatlon.

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The period already undergone by the accused if any, shall be set off against the sentence of imprisonment imposed on him as per Section 428 Cr.P.C.

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7 . On an appeal being preferred by the petitioner, the appellate Court vide judgment dated27.Ol.2O11 in Crl.A.No.46 of 2O 1O allowed the same in part and accordingly, reduced the rigorous imprisonment imposed for a period of one year to six months the conviction, keeping the imposition of fine amount intact. Aggrieved by the same, the present Revision

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l,earned counsel for the petitioner would submit that respondent No.l failed to prove his case by adducing any independent witnesses. PWl was the petitioner and PW2 was the witness. The trial Court as well as the lower appellate Court failed to consider the evidence of DW2 and passed the impugned judgment basing on surmises and conjectures. Therefore, seeks to set aside the impugned judgment.

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l,earned Assistant Public Prosecutor would contend that the trial Court as well as the lower appellate Court a_fter appreciating the oral and documentary evidence in proper perspetive rightly passed th.e-sespective judgments and therefore, submits that the

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interference^{from this Court in unwarranted. Hence, seeksto} dismiss^{the Revision}

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10.^{A perusal of the record shows that the trial Court on behalf} of respondent^{No.1 examinedPWs. Iand 2 and marked Exs. Pl to} P6. On behalf^{of petitionerexamined DWs'1and 2 atd marked} Ex Dl.^{Respondent No.l himself was examinedas PWl, who} re-iterated^{all the averments madein the complaint. PW2 is the} person who^{stood as guarantor for the said loan transaction.The} petitioner^{himself was examined as DW1, who stated that he had} no acquaintance^{with the respondentNo.l-complainantand he} has not^{taken aly loan from the complainant.He deposedthat} Ex Pl^{has been collected by wrongful methodsonly with a} malafide^{intention to harasshim mentally and physically.DW2} deposed^{that he has acquaintance with DWl ald further stated} that petitioner^{has not taken loan at any point of time and he has} not issued^{the chequein question. He further deposedthat there} is no necessity^{for the petitionerto take any loan amount as he is} financially^{sound. DW2 further deposed that respondentNo' 1} filed various^{cases againstso many personsin aldaround} Chandanagar and^{Patancheru,but he did not give the details.}

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I l. During the cross-examination DW I denied that he knows respondent No.l and Seenaiah, who was the guarantor. He also denied his signature on Ex Pl i.e., the cheque. He also denied his signature on his chief afhdavit. Therefore, from the evidence of petitioner as DW 1, it is crystal clear that he had gone to the extent of denying his own admitted signatures on his chief affidavit frled before the Court.

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The trial Court also observed that the signature of the petitioner on his chief aflidavit and his signature at the bottom of his cross-examination are dissimilar. Therefore, petitioner was in the habit of changing his hand writing as per his whims and fancies to suit his needs. The admitted signature of the petitioner as DW I on the bottom of his cross-examination and that appearing on the promissory note and also on the receipt attached to the said promissory note as well as on the cheque are similar. Therefore, Ex P6 was executed by the petitioner only after receiving the loan amount. It can also be seen that the petitioner has not taken any steps for sending the promissory note to expert for comparison of his admitted signatures. Therefore, the trial Court observed that the petitioner had issued cheque as a legally enforceable debt.

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i Ii t:i:i I t,t Ij l. l l/ ll :

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The trial^Court upon considering that a presumption under Section 139^{of the} N.l. Act came to the conclusion that the petitioner has taken a false defence only to cheat respondent No.1 to avoid^payment of the amount due under the cheque, Ex Pl which is a^legally enforceable debt. Therefore, upon holding that the^evidence adduced by respondent No.l to be reliable, convincing,^{cogent and} further by relying on the evidence of PWs. 1 and^{2 found the petitioner} guilty of the alleged offence.

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The^{appellate Court} observed that, respondent No.l by examining himself^and the attestor proved that the petitioner borrowed^Rs.4O,O0O/- from him by executing Ex^p6 promissory note and^{failed to repay} the amount and ultimately issued Ex^pl cheque towards repayment of the loar amount, which on presentation by PWl on 05. I2.2OO7 with his banker was dishonoured on^06.72.20O7 which can be seen from Ex p2. Therefore, PWl issued the legal notice dated lS.O2.2Ol7 und,er the trx P3 on the^{office address} and residential address of DWl which was served upon him on la.72.2OOZ. Inspite of the issualce of legal notice, DW1 neither made payment nor issued any reply. If at all the contention of DW 1 that he neither borrgved the amount nor executed the pronote or issued the

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cheque was correct, he would have issued reply denying the case of PWl, but he did not do so. Since, the petitioner failed to repay the amount inspite of issuance of legal notice, respondent No.1 filed the complaint within the stipulated time on 17.01.2008. Thereby, respondent No. I proved that the petitioner committed the offence under Section 138 of N.I. Act. Since the amount borrowed was only Rs.4O,OOO/-, the appellate Court had taken a lenient view and reduced the sentence of imprisonment imposed by the trial Court from one year to six months, keeping intact the imposition of fine.

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f5. A perusal of the record shows that the Revision pertains to the year, 2011 and this Court vide order dated 29.01.2011 suspended the substantive sentence of imprisonment imposed by the Court below and enlarged the petitioner on bail on his executing a bond for a sum of Rs.10,000/- with two sureties of the like sum each to the satisfaction of the trial Court.

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In the present case on hand, both the Courts have concurrently held the petitioner guilty for the offence under Section.l38 of N.l.Act, which finding, in my considered view, does not call for interference of this Court in the exercise of revisional jurisdiction under Section 397 Cr.P.C. There are no grounds

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much less valid grounds to interfere with the well considered judgment of the appellate Court and accordingly, this Revision is

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liable to be dismissed

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Accordingly, the Criminal Revision Case is dismissed

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Miscellaleous Petitions, pending if any, shall stand closed

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SD/- M. RAMANA KRISHNA DEPUTY RE ISTRAR

//TRUE COPY//

SECTION OFFICER

To,

'l The Special Judge for Trail of Offences under SC/ST (pOA) Act_cum- V

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Additional District and Sessions Judge, Ivledak at Sanga Reddy

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The Judicial First Class lvlagistrate, Sanga Reddy. 3. Two CCs to PUBLIC PROSECUTOR, High Court for the State of Telangana at Hyderabad [OUT]

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One CC to Mr. M. PRATAP StNGH, Advocate tOpUCl

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One CC to l\4r. R. PRASAD, Advocate tOpUCl

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Two CD Copies

d^ d)

HIGH COURT

DATED:13/09/2023

ORDER

CRLRC.No.171 ot 2O11

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DISMISSING THE Crl. R.C

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M.Danam, Rc Puram, Medak District v. T.Srinivas, Medak District and Another, Rep.by P.P, High Court

Case brief

What is this about?

What did the court decide?

M.Danam, Rc Puram, Medak District v. T.Srinivas, Medak District and Another, Rep.by P.P, High Court

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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