Allowed

A.v.Koti Reddy v. Kunchela Venkateshwarlu and the State of A.P.

Telangana HC21 Feb 2023CRLRC/1945/2009

Case brief

AI extract

What is this about?

In a criminal revision under Section 138 of the Negotiable Instruments Act, the High Court affirmed the conviction of the petitioner for issuing a dishonoured cheque. While upholding the conviction, the Court modified the sentence to a fine of Rs. 50,000, ordering imprisonment only in case of default, citing the long delay and the amount involved.

What did the court decide?

Conviction confirmed; sentence modified to a fine of Rs. 50,000 payable within four weeks, with simple imprisonment for one month only upon default.

A.v.Koti Reddy Vs Kunchela Venkateshwarlu and the State… — 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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TUESDAY ,THE TWENTY FIRST DAY OF FEBRUARY N,VO 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:^'19 45 0F 2009

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Revision filed under Section 397 and 401 of CrPC aggrieved by the Judgment dated 09.09.2009 in Crl.A.No.143 of 2007 on the file of the Court of the I Additional Sessions Judge, Kothagudem preferred the Judgment dated 19.09.07 passed in C.C,No.9 of 2000 on the file of the Court of the I Additional Judicial First Class Metropolitan Magistrate, Kothagudem

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Between:

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A.V,Koti Reddy, S/o Sarvi Reddy, aged about 53 years, Occ: Contractor Fl/o Near C.E.R. Club, Prakash Nagar, Kothagudem, Khammam District

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...PETITIONER/APPELLANT

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AND

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Kunchela Venkateshwarlu S/o Kotaiah, Occ. Contractor R/o H.No.7-8-50/2, New Gollagudem, Kothagudem Town, Khammam District

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The State of Andhra Pradesh, Represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad.

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... RESPONDENT/COM PLAINANT

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CRLRCMP. NO:2731 OF 2OOg

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Petition under Section 397 CrPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the Judgment dated 09.09.2009 in crl.A.No.143 of 2007 on the file of the Court of the I Additional Sessions Judge, Khammam confirming the Judgment dated 19.09.2007 passed in C.C.No.9 of 2000 on the file of the Court of the I Additional Judicial First Class Magistrate, Kothagudem, Khammam District by releasing the petitioners on bail, pending disposal of the Crl.R.C.

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/' Counsel for the Petitioner: SRl. T. L. NAYAN KUMAR

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,/ Counsel for the Respondent No. 1: SRl. S. MADAN MOHAN RAO

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Counsel for the Respondent No. 2: SRl. MUTHYALA MURALIDHAR,

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ADDITIONAL PUBLIC PROSECUTOR

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The Court made the following: ORDER

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THE HONOURABLE DR. JUSTICE D.NAGARJUN

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CRIMINAL REVISION CASE^{No. 1945} of^2OO9

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ORDER:

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This Criminal Revision^Case is^{filed by the petitioner} / accused under Sections 397 and⁴⁰ 1 of the^Criminal Procedure Code, 1973, aggrieved by the Judgment^dated 09.09.2009 passed in CRL.A.No. 143^{of 2OO7 by the learned I} Additional Sessions Judge, Kothagudem confirming^the Judgment of Conviction and Sentence dated^19.O9.2OO7in C.C.No.9 of 2OO0 passed by I Additional Judicial First^Class Magistrate, Kothagudem wherein the petitioner/ accused^was convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo Simple lmprisonment for a period of three months and to^pay fine of Rs.5,000/- and in default of payment of fine, he shall undergo Simple Imprisonment for a^period of fifteen days.

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The brief facts of the case are as under:

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The revision petitioner/ accused has allegedly issued on cheque in favour of the respondent Nc.l /complainant 30. 1 1.1999 for discharge ol legalll' enforceable debt of

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Rs.12,000/-. The respondent/complainant has presented the said cht:que in the bank and it was dishonoured with an endorsemen t 'insufficient funds'. The respondent I complainant after issuing statutory notice has filed complaint under Section 138 of the Negotiable Instrumenrs Act.

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I)uring the course of enquiry, the respondent / complainanl got examined himself as PWI and also examined PW2 and got marked Exs.P1 to P4 and the revision peritioner /^{accusedwas examined} as DWl and no document is marked on beha-lf of the accused. After fuil-fledged trial, on hearing both sides, the trial Court has found the revision pctitioner / accused guilty for the offence undr:r Scction l38 ol the Negotiable Instruments Act and s,3ntenced and sentenced as stated above.

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Aggrieved by the said Judgment ol Conviction and Sentence, the revision petitioner / accused preferred Criminal Appeal vide CRL.A.No.L43 of 2OO7. On hearing both sides, the said Criminal Appeal has been t,lismissed vide Judgment dated 09.09.2009 confirming the Judgn.rent of Conviction and Sentence passed by the trial CoLrrt.

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Aggrieved by the sarne, the revision petitioner / accused preferred this Criminal Revision Case on the following grounds:

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i. The Judgments of the trial Court and Appellate Court are not legal and contrary of law and weight of evidence and against the probabilities of the case.

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ii. The learned Judges ought to have seen there is no legally enforceable debt.

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Heard Sri T L Nayan Kumar, learned counsel for the revision petitioner / accused as ,*,ell as Sri Muthyala Muralidhar, learned Additional public prosecutor for the State / Respondent No.2 and Sri S Madan Mohan Rao, learned counsel for the respondent No.l. perused the record including the Judgments of tria-l Court ald Appe[ate Court.

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Now the point for determination is:

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Whether the Judgment dated O9.Og.2OOg passed in CRL.A.No.143 of 2OOZ by rhe learned I Additional Sessions Judge, Kothagudem conhrming the Judgment of Conviction and Sentence dated 19.09.2OO7 in C.C.No.9 of 2OO0 passed by I Additional Judicial Firsr Class Magistrate, Kothagudem, is liable to be ser aside ?

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POINT:

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The scope of this Revisional Court in interfering w,ith the Judgment of the trial Court is very limited. This Court cannc,t sit like an Appellate Court for re-assessing the finding of the trial Court confirmed by the Appellate Court in respect of fircts, which are already settled on the basis of evidence placed before the Court. This Court wiil essentialiy try to ana-lyse whether the Courts below have committed any error, either procedurally or legally, while c,oming to the co nclusion.

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In Khema @ Khem Chandra etc v. State of Uttar Pradeshr, the Honourable Supreme^(lourt held as under

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"12I>. It is further to be noted that imme,Jiately after thc incident, Vrjay Singh, brother of deceased Prakash as well as Omveer (PWl) and Inder (PW2), informe d about the incident to Police Station Shcrgarh on telephone which fact has corne on record in tl-re evidence of Omveer (PW1) and Inder (PW2). Neither Vijay has been examined nor has the sta t ion diary entry with regard to thr: said telephonic message been placed on record. Though Inder (PW2) has admitted that the incident was witnesscd bi' Parmal, Rajveer and other residents, nonc oI them was examined. As such, the possibi)it1, ol the prosecution not bringi.g on

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L 2022 O AIR (SC ) 37(15

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I{t t Ti tr a !! i ii ji :

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record the real genesis of the^{incident cannot be} ruled out.

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Shri Singh has strongiy relied on^the judgment of this Court in the case of Smt. Dalbir Kaur (supra) in support of the^{submissionthat in} view of the concurrent findings of^fact, this^Court should not reappreciate the^{evidence.No doubt} that the reliance^placed by Shri Singh^{on the} judgment of ttris Court in the case of Smt' Dalbir Kaur (supra) is well merited. However, it is^{to be} noted that this Court, in a catena of^{cases, has} hetd that though in cases of concurrent^findingsof fact this Court will not ordinarily interfere^{with the} said t-rndings, in exceptional circumstances,^this Court is empowered to do so. If this^Courtfinds that the appreciation of evidence and^hndingsis vitiated by aly error of law or^procedure or^found contrary to the principles of natural^{justice, errors} ol record and misreading of the evidence, or^where the conclusions of the High Court are manilestly perverse, this Court would not be^powerless to reappreciate the evidence. Reliance in this respect could be placed on the^judgments of this Courtⁱⁿ the cases of Himachal Pradesh Administration^v. Shri Om Prakash, Arunachalam v. P.S.R. Sadhanantham and Another, Mithilesh Kumari and Another v. Prem Behari Khare, State of U.P.^v. Babul Nath, and Pattakkal Kunhikoya^(Dead) By LRs. v. Thoopiyakkal Koya and Another.

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Recently, ttris Court in the case of Ashoksinh Jayendrasinh v. State of Gujarat had also held that when the High Court has failed to appreciate the oral evidence, this Court^\rt'ould ccrtainly be entitled to appreciate the evidence in correct perspective. In the said case also, this Court, finding that the conviction was recorded after ignoring the vital evidence, has set aside^thc order of conviction and acquitted the accused."

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I 0. [n view of the principle laid down in the^above said Authority and other catena of cases, it is^{held that}

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though in cases of concurrent findings of fact this Court will not ordinarily interfere r.r,ith the said Iindings, however, IN exceptional circumstances, this Court is emporvered to do so

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1 1 .^'lherefore, considering the limitations of the Crimina-l Revision Case, it is to be examined whether the Court belou' has committed any error in frnding the revision petitioner / accused guilty for the offence under Section l3B of the Negotiable Instrumcnts Act

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The revision petitioner/accused has also admitted issuance of cheque and his signature over the cheque. Once the revisron petrtioner has admitted the issuance of cheque and signature orr it, thc presumption under Section 139 of the Negotiable lnstrumerlts Act, will have to lce drawn that the cheque ',r,as issued in discharge of the legally enforceable debt.

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The respondent/complainant in discharge of his burden, has appeared be fore the Court as PW ]. and deposed that the revision petitioner/accused hirs borrowed Rs.12,000/- and in discharge of the said amount, he has

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issued cheque for Rs. |2,OOO / - under Ex.pl. On account of presumption under Section 139 of the Negotiable Instruments Act, now the burden shifts on the revision petitioner / accused, to rebut the presumption explaining the reasons on which he has to issue cheque under Ex.p I for Rs. 12,000/- to the respondent/complainant. However, the revision petitioner though has taken stand that it was given not for discharge of legally enforceable debt, could nor pro\re the same.

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The tria_l Court and Appellate Court have ana)y zed the evidence to that effect and ultimately concluded that the cheque was issued only for discharge of the legally enforceable debt and the evidence on record is well appreciated and therefore, cannot be interfered with. Once the cheque was issued in discharge of the legally enforceable debt, the duty cast upon the revision petitioner / accused to honour the cheque which he did not. Thereby he is liable to be punishable under Section 138 of the Negotiable lnstruments Act.

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On going through the entire material on record including the Judgments of the trial Court arld Appellate Court, this Court is ol the opinion that there is no material to hold that the trial Court or Appellate Court have committed any irregularities or illegalities which warrants interference by this Revisional Court and therefore, the Iinding in respect of recording conviction b-y the trial Court as well as Appellate Court, cannot be interfered with and the same is liable to be confirmed

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So far as sentence is concerned, the trial Court has sentenced to undergo Simple Imprisonmer-rt for a period of three months and to pav fine of Rs.5,OOO/- and in default cf payment of fine, ordered to undergo Simple Imprisonment for a period of lilteen days and the same is confirmed by the Appellate Court

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Hor.r,ever, ir has to be seen that money involved in this case is only Rs.12,000/-. As of this date, about 23 years have been l:Lpsed from the date of filing of C.C:.No.9 of 2000 in the trial Court, since thcn the revision petitioner / accused must havet'suffered from menta,l agony and stigma on

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account of recording^{convictionand sentencefor the offence} under Section^{138 of the NegotiableInstruments Act.}

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I 8. Section^I 38 of^{the Negotiable Instruments Act} contemplates imposition^{of sentence maximumto 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} Criminal Procedure Code,^{inadditionto thesentence} au,arded.

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Therefore, considering the facts and

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circumstances of the case, this Court^{is of the opinion that} while maintaining the conviction^{recorded by the trial Court} and as confirmed by the Appellate^{Court, itwould be} appropriate to direct the revision^petitioner /^{accusedto pay} fine of Rs.50,0OO/- within^{four weeks from the date of receipt} ol cop-v of this Order, and in default to^{pay the fine amount,} he shall suffer Simple Imprisonment^{for a period of one} month.

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