Dismissed

Ramesh Dusangu , Ramesh Kachru, v. the State of Ap Rep by Its Pp Hyd., and Another

Telangana HC2 Feb 2023CRLRC/1900/2008

Case brief

AI extract

What is this about?

The High Court, in criminal revision, dismissed the petitioner's appeal against conviction under Section 138 NI Act. The court held the trial and appellate courts committed no legal error, as the presumption of debt under Section 139 was valid and un-rebutted, and factual findings regarding the cheque were not to be reappraised.

What did the court decide?

Criminal Revision Case No.1900 of 2008 was dismissed affirming conviction and sentence.

Ramesh Dusangu , Ramesh Kachru, Vs the State of Ap Rep by… — Cheque Dishonour | Telangana HC (2023)

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Bail Slio: The Accused/^{petitionerwas releasedon bail by the order of the High} court dated 2311212008 in crl.RC.MP.No.2616/2008ⁱⁿ Crl.R.C.No.'l 900/2008

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IN THE HIGH COURT^{FOR THE STATE OF TELANGANA} - AT HYDERABAD

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THURSDAY, THE SECOND^{DAY OF FEBRUARY} TWO THOUSAND AND^{TWENTY THREE}

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PRESENT

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THE HONOURABLE^{OR. JUSTICE D.NAGARJUN}

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CRIMINAL REVIS^{loNCASE NO:1900 OF 2008}

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Criminal Revision Case^{under Section 397 & 401 of Cr.P.C against the} Judgment dated^{1211212008made in crl.A.No.246 of 2008 on the file of the court of} the Additional Metropolitan^{sessions Judge,for Trial of communal offence cases} - cum- Vll Additional^{Metropolitan SessionsJudgeCourt, Red Hills, Hyderabad} preferred against the order passed in cc No.935^{of 2006 on the file of the X} Additional Chief Metropolitan^{Magistrate, Secunderabad.}

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Between:

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RAMESH DUSANGU @^{RATVESHKACHRU,S/o late Kachru, Ra} ilway Employee, FUo H.No. 667/1, Railwiy Quarters,^{NorthLalaguda, Secunderabad.}

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...PETITIONER

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AND

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THE STATE OF^{AP., rep. by its Public Prosecutor, High Court of A.P.,at} Hyderabad.

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Z. Patricia Singleton, W/o^{B.Singleton, Rl/o H.No.2-154, Street No.3, Vaninagar,} Malkajgiri' Hyderabad

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...RE',.NDENTS

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For the Petitioner : SRI^{T.VENKAT REDDY} ,^Advocate

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Forthe Respondent No.1^{: PUBLIC PROSECUTOR}

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Forthe Respondent^{No.2: SRIT.CHANDRASHEKAR' Advocate}

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The Court made the following.^ORDER

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EYI

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HONOURABLE DR. JUSTICE D.^NAGARJUN

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CRIMINAL REVISION CASE No.19OO OF^2OO8

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ORDER:

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This revision is filed by the accused in^{C.C.No.935 of} 2006 to set aside the^{judgmentdated 12-12.2008in} Crl.A.No.246 of 2008 passed by^{the learnedAdditional} Metropolitan Sessions Judge for the^{Trial of Communal} Offence Cases-cum-Vll Additional^{MSJ Court, Red Hills,} Hyderabad.

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The facts in brief are that the^{petitioner/accused} borrowed an arnount of Rs.74,O00/^{lrom the de-facto} complainant as hand loan and^pard an^{amount of} Rs.4,OOO/- and towards the balancc^{arrlount of} Rs.70,0OO/-, he issued a cheque. When the^de-facto complainant presented the said cheque, the^{same was} dishonoured rvith an endorsement "insufficient^funds" After completion of statutory formalitres,^{the de-lacto} complainant issued notice under Section^I 38 of^the Negotiable Instruments Act (for short, "the Act") to the petitioner, but the petitioner though reccived the same did

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not respond.^{The de-facto complainant filed a case against} the petitioner alleging^that he^{has committedoffence} punishable under Section¹³⁸ of the Act.^{Cognizance of} tJle said case was taken^{by the XAdditionalChief} Metropolitan Magistrate, Secunderabad, against^the petitioner/ accused as C.C.No.935 of 2006 and the same was allowed, finding the accused guilty for the offence under Section 138 of the Act ald he was convicted and sentenced to undergo simple imprisonment for a^period of six months and to pay hne of Rs.2,OOO/-, in default to suffer simple imprisonment for a^period of 15 days.

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Aggrieved by the said^judgment, the accused preferred Cr1.A.No.246 of 2008 on the file of the Additional Metropolitan Sessions Judge for the Trial of Communal Offence Cases-cum-Vll Additiona.l MSJ Court, Hyderabad, and the said appeal was dismissed vide^judgment dated 12.l2.2OOB confirming the conviction and sentence recorded by the tria.l Court. Aggrieved by the said judgment, the present revision case is hled on the following grounds:

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a The judgment of the lower appellate Court is contrar5z to law, weight of evidence and probabilities of the case on facts and lanv. The lower appellate Court ought to have seen that the complainant failed to establish the guiit of the petitioner/ accused for the offence punishable under Section 138 ofthe Act.

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b. Both the lower appellate Court as well as the trial Court erred in giving much credence to the evidence of PW. 1 by ignoring the evidence of DWs.l and 2. Both the Courts below failed to see that there are certain alterations in Ex.P1/cheque and ought to have acquitted the pctltroner.

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Both the Courts below failed to appreciate the fact that there is no mention about Exs.PS and P6, rvhich do not contain the date, either in the legal notice or in the complarnt and they were brought into eistence to support the cheque given for security.

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d. Both the Courts below erred in coming to the conclusion that the alterations in the cheque are not fatal

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to the case and that the complainant herself hlled the blanks in the cheque and fabricated the same.

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e. Both the Courts below ought to have seen that there is no evidence to establish the case of the complainant that Ex.Pl was issued for discharge of the legally enforceable debt and therefore, prayed the Court to allow the revision.

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Heard the learned counsel for the petitioner. There is no representation on behalf of respondent No.2. perused the record, including the judgments of both the appellate Court as well as the trial Court.

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Now, the point for determination is whether the judgment dated 12.12.2008 in Crl.A.No.246 of 2008 ol the appellate Court conlirming the judgment dated 05.08.200g in C.C.No.935 of 2006 of the trial Court can be set aside?

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The scope of this revisional Court in appreciating the judgment of the trial Court and the appetlate Court is very limited only to the extent of whether both the Courts below have committed any irregularity or illegality finding the petitioner/ accused as guilty. This Court is not expected to

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reappralse the evidence and reassess the facts to conclude that the factual conclusions of the trial Court and the appellate Court are either correct or incorrect

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On perusal of the grounds of revision it is clear that the petitioner has taken a stand that the trial Court completely ignored the evidence of PW.1 and his wife DW.2 and that the finding that the alteration in the cheque is not a fatal

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The simple case of the de-facto complainant is that the petitioner has borrowed arr amount of Rs.74,OOO/- and has paid Rs.a,000/- and thereby Ex.Pl was issued for Rs.70,0007' The said cheque was dishonoured, thereby on completion of legal forma-lities filed a complaint. The petrtioner has admitted that the cheque and the signature over the cheque belong to him. Once the petitioner admits that the cheque 1n dispute and the sigrlature over rt belongs to hirn, the presumption as required under Section 139 of the Act is required to be drawn.

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Section 139 of the Act runs as under:

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"139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."

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Considering the above provision, it is clear that presumption is required to be drawn in this case in favour of the respondent/complainant to the effect that the cheque was given by the petitioner for legally enforceable debt. The presumption, however, is rebuttable. The petitioner/ accused will have a right to rebut the said presumption either by way of adducing oral and documentar5z evidence or by pointing out the discrepancies in the evidence of the respondent/complainant.

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I I . Once the petitioner successfully rebuts the presumption under Section 139 of the Act, again the issue goes back to the respondent/complainant and the Court will have to decide the issue basing on the preponderance of probabilities. Further, prior to invoking the presumption under Section 139 of the Act, the respondent/complainant is expected to get into witness box and dispose that the cheque in dispute given to-the petitioner was in discharge

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of legally enforceable debt. That simple statement is enough for passing on the burden to the petitioner to disprove that the cheque u,as given for legally enforceable debt

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In the case on hand, the respondent/complainant was examined as PW.l and got exhibited the cheque^given by the petitioner. The petitioner has not only examined himself as DW. 1, but also examined his wife as DW.2.^The sum and substance of the defence taken by the^petitioner is that his uife/DW.2 and PW. 1/complainant have done finance busrness and during that business,^the responden t / c.om^plainant n'anted cheques and^other documents ol DW-2 and srnce DW.2 was not having^any account in the bank, the petitioner/DW.1 was constrained to issue cheques duly signed by him to the complainant. It is also the iurther case of the petitioner that the respondent/ complarnant has misused the cheque after arising disputes betu'een the complainant and his wile/DW.2, and liled a faise case

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In order to prove this defence, as already observed, DWs. 1 and 2 were examined and their statements were denied by the respondent/complainant. When pW.l was examined, the petitioner has not put-forth entire defence to PW. i except stating that the cheque was given as a security when PW. I and DW.2 were doing finance business. Further, the respondent/complainant has issued a statutory notice in favour of DW. I prior to filing of the complaint. The petitioner having received the same has kept quite and no reply was given. If really the cheque was given as a security when his wife/DW.2 and pW. I were doing finarce business, nothing prevented the petitioner from explaining the reasons.

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lt is also stated in the evidence of DWs. 1 and 2 that after the disputes arose between pW. 1 and DW.2, DW.2 stated to have orally requested pW. 1 to return the blank cheques etc. However, as already observed, this aspect was also not put to PW.l when he was cross_examined. Further, DW. I has mentioned that he has no acquaintance with PW. 1. However, the same DfV. I has tal<en rhe

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defence that his wife/DW.2 and PW.l has done finance business. Further, according to PW. 1, the petitioner has barrowed Rs.74,000/-. Horvever, cheque was given only for Rs.70,OOO/- as the petitioner has paid Rs.4,000/-. PW.1 has filed Exs. P5 and P6 to show that the petitioner has paid Rs.4,O0O I - for which a receipt was also given. If really the cheque, which u,as given as a security, was misused by PW.1, there is rro reason nhv Exs.PS and P6 were given by the petitioner in favour of DW. I . Therefore, on seeing Exs.PS and P6, it is clear thzrt the petitioner has borrowed Rs.74,000/- ar-ld returncd Rs.4,000/-, thereby the cheque was given for balance ru'nolrnt. The petitioner though stated that the signature s on Exs.P5 and P6 do not belong to him, no steps u,ere takt:n b,r,him to see that the disputed signatures werc scnt to harrrirn,riting expert to prove that the signatures on Exs.P5 and P6 do not belong him.

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Therelore, considcring from alry angle and on analyzing the evidence as to see ',r,hether the law has been properly applie d to the facrs. u,hich were settled by the trial Court and confirmed b-r' the nppellate Court, this Court is

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of the opinion that both the Courts below did not commit any procedural or legal error in finding the petitioner guilty of the offence

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The trial Court while finding the petitioner guilty of the offence has taken lenient view on the submission made by the petitioner/ accused that he has to perform thc marriage ol his children. 15 years have been elapsed from the date of awarding sentence by taking lenient view that the petitioner has to perform the marriage of his children. By this time, marriage must have been performed by the petitioner. Taking into account the circumstances, this Court is of the opinion that there a-re no grounds to accept the request ol the petitioner. Therefore, the linding of the trial Court as conlirmed by the appellate Court in respect of conviction and sentence awarded cernnot be interfered with.

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ln the result, the criminal revision case is dismissed

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Miscellaneous petitions, if any, shall stand closed.

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Sd/-M.MANJULA DEPUTY REGISTRAR //TRUE COPY// SE N OFFICER

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I The Additional l/etropolitan Sessions Judge, for the Trial of Communat Offence Cases -cum- Vll Additional Metropolitan Sessions Judge Court, Red Hills. Hyderabad.

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2 The X Additional Chief Metropolitan Magistrate, Secunderabad. 3 The Superintendent, Central Prison, Chenchalguda, Hyderabad. 4 One CC to Sri T.Venkat Reddy, Advocate [OPUC] 5 One CC to Sri T.Chandra Shekar, Advocate IOPUC] Two CD Copies

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HIGH COURT

DAf ED:0210212023

ORDER

<, k\ e sTATt- c.r.t
[g JUl{ ?[8

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CRLRC.No.1900 of 2008

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THE CRL.R.C. IS DISMISSED.

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\ 5')

Ramesh Dusangu , Ramesh Kachru, v. the State of Ap Rep by Its Pp Hyd., and Another

Case brief

What is this about?

What did the court decide?

Ramesh Dusangu , Ramesh Kachru, v. the State of Ap Rep by Its Pp Hyd., and Another

Case brief

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What did the court decide?

What the court decided

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