Partly allowed

Mahesh Chand Choradia, Hyd v. P. Mohan Patel, Hyd and Ano

Telangana HC4 Oct 2024CRLRC/2430/2014

Case brief

AI extract

What is this about?

Single judge corrected the sentence under Section 138 of the NI Act, replacing imprisonment with a fine of double the cheque amount, while affirming the conviction. The court held the presumption of legal debt was not successfully rebutted by the accused.

What did the court decide?

Conviction confirmed; sentence modified to pay a fine of Rs. 1,40,000/- in lieu of simple imprisonment.

Mahesh Chand Choradia, Hyd Vs P. Mohan Patel, Hyd and Ano — Cheque Dishonour | Telangana HC (2024)

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13217 |

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NOTE : The Petitioner/ Accused was^d irected to be^{releasedon bail by the order of} the High Court dated 09-12-2014 in Crl.R.C.M.P.No.4037 of^{2014 in Crl.R.C} No.2430 ot2014.

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE FOURTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HON'BLE SRI JUSTICE^N. TUKARAMJI

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CRIMINAL REVISION CASE No: 2430 ot²⁰¹⁴

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Criminal Revision Case under Section^{397 & 40 1 of Cr.P.C. againstthe} Judgment dated 04-08-2014 in Crl.A.No.231 of^{2012 on the file of the Court of the} V Additional District & Sessions Judge^{(FastTrack Court) Ranga Reddy District,} preferred against the Judgment dated 10-05-2012 in C.C.No.2B3 of 2011 on the file of the Court of the X Special Magistrate,^{L.B.Nagar, Ranga Reddy District.}

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Between:

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Mahesh Chand Choradia, S/o^{late Mahaveerchand Choradia,Age: 44 years,} Occ: Business, Rlo.^14-7-71 to^{79, Begum Bazar, Hyderabad.}

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...Petitioner

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AND

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P. Mohan Patel, S/o.^P Chandulal^{Patel, Age: 37 years, Occ: BusinessRl/o.3-} 2$1, Shalivahana Nagar, L B. Nagar.^Hyderabad.

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State of Telangana,^rep ,^{by Public Prosecutor, High Court of Judicatureat} Hyderabad.

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... Respon dents/ComPlainant

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Gounsel for the Petitioner:^{Sri C. Sharan Reddy}

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Counsel for the Respondent No-1:^{None Appeared}

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Counsel for the Respondent No.2: Smt.S.^Madhavi,

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Assistant Public Prosecutor

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The Court made the followinq:^ORDER

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THE HONOURABLE SRI JUSTICE N. TUKARAMJI

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CRIMINAL R.EVTSIOI CASE IT0.2430 0F 2014

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ORDER:

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This Criminal Revision Case has been filed under Sections 397 and 4O I of Code of Criminal Procedure, 1973 assailing the Judgment dated O4.O8.2O 14 in Crl.A.No.23t of 2Ol2 passed by the V Additional District and Sessions Judge (Fast Track Court), Ranga Reddy District.

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By the impugned judgment, tJle Appellate Court had confirmed the conviction of the revision peLitioner under Section 13g of Negotiable Instruments Act, 1881 (for short^,the NI Act) and sentence of Simple Imprisonment for a period of six (O6) months and to pay a fine of Rs.1,10,O00/- in default Simple Imprisonment for one month.

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Heard Sri C.Sharan Reddy, learned counsel for the petirioner and Smt.S.Madhavi, leamed Assistant public prosecutor appearing for the respondent No.2-State.

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The case of the respondent No. l/ complainant is rhat, in the business affairs, the complainant had supplied certain materials on credit basis and the accused fell due of Rs. 96,325/- under different invoices/Exs.Pl to P4. To make good the dues, the accused said to have issued two cheques/Exs.P5 and p6 for an amount of

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Rs.2O,OOO/- and Rs.50,OO0/-^{respectively drawn on ICICI Bank,} Abids Branch, Hyderabad.^{On presentation of the chequeson} O2.O7.2OO7 under^{Exs.P7 and P8, they were returned unpaid under} Memos/Exs.P9 and^{PlO with an endorsement 'insufficientfur'ds''} Thereupon, statutory^{notice/Ex.PlI dated25.07 '2OO4 was issued to} the olfice and residential^{address of the accused/Exs'Pl4 and Pl5'} The notice addressed^{to the offirce of the accused returned un-sewed'} but the notice^{sent to residential address was returned with an} endorsement hnclaimed'/^{Ex.P1 7. Thus, the complaint'}

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In enquiry, the complainant^{got examinedhimselfas PW' 1 and} also the witnesses^{PWs.2and 3, who are the olficersof the bank and} also got marked Exs.Pl^{to P23.On behalf of the defence, no} evidence was adduced'

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Having considered the^{materials placed on record,the trial} Court concluded the^{guilt of the revision petitioner/accused and} sentenced as^{mentioned above. Aggrievedthereby,the revision} petitioner/accused^{preferred an appeal vide Crl A'No'231 of 2O2lorr} the tile of the V Additional^{Districtand SessionsJudge (FastTrack} Court), Ranga Reddy District.^{The Appellate Court on reappraisalof} the material, confirmed the^{judgment passed by the trial Court'} Thus, t]lis criminal revision^case.

Learned counsel for the revision^{petitionerwould submit that} the Courts below have failed to consider that the complainant^{is only} partner of the firm and has no loazs standi to file the complaint. Further, invoices under Exs.Pl to P4 are issued by different^persons and no rubber stamp or rank of the issuing authorities has been reflected. The Courts below failed to consider the role of the complainant in any of tlte documents liled to^prove the^legally enforceable debt. Furttrer, no sales tax returns are l-rled reflecting the transactions under Exs.Pl to P4. The Courts below ought to have observed that Exs.P22 and P23 are only downloaded pages from internet without any authentication. Furthermore, the Courts below ought to have considered that the cheques were not issued in favour of the complainant and the Courts ought to have held that the revision petitioner had rebutted the presumptions, thus entitled for acquittal.

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Inspite of due notice, respondent No. I /complainant choose to remain silent.

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I have perused the materia-ls placed on record.

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lO. The complainant as PW.1 asserted that he is business partner of the complainant lirm which is maintaining current account in their banker. PW.3 has confirmed that the cheques/ Exs. P5 and P6 .were^{dis honoured and returnedunder memos/Exs.P9and 1O.,-} {g:

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clarihed that the cheques were drawn by the accused on his account. A cumulative reading of this evidence is establishing that the cheques were drawn on the bank account of the accused and it contains his signature. Further, proper service of statutory notice is being made out by the return memo under Ex.P17 as unclaimed. Thus, the presumption under Section 118(a) and 139 of the NI Act shall come in favour of the complainant.

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In defence, the accused has contested that the complainant has no loans standi to file the complaint and Exs. P 1 to P4 were issued by different persons and there is no legally enforceable debt. In this regard, the complainant as PW. I coupled with the evidence of PW.2/banker is making out the fact that the complainant is partner of the firm on whose account tJ:e cheques were drawn. It is settled proposition that the partnership firm is not the juristic person and the partners are jointly and severally liable for the entire balance of the firm's debts, thus no substance is found in this contention. Furthermore, there is no legal proposition that all the invoices shall be issued by one person or ttre complainant to make the transaction actionable. In business transaction, employees of the concerned depending on the time and service would prepare the invoices. As such, this ground is not making out any reasonable ground in favour of the revision petitioner.

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Pertinently, the^{presumptionunderSection139 of the NI Act} covers existence of legally enforceable^{debt and this proposilion has} been fortified in decisions of ttre^{Hon'lcleSupreme Court in} " Rangappa a.^Sri Mohan'|^{" Blrsu.llngrrplrrr v Uittdtba.sappd2-It}

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is also well settled^{proposition that the contention/defence raised by} the accused shall be a^{probableone to rebut the presumption.In} that position as the delence^{pleadedby the accusedhas fallingshort,} this Court is of the considered^view that^{tJle complainanthad} established his case and the Courts^below lrave^{rightly recorded the} conviction against the revision^petitioner under^{Section138 of the NI} Act. Conscquently, the conviction recorded deserves to^{be and is} accordingly conflrmed.

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In regard to the sentence, considering the nature^of transaction and imposition of substantive sentence is^{not of much} signihcant ancl to make good the damage, this^{Court is of considered} view that imposition twice of the cheque amount as fine and^granting the same as compensation would meet the ends ofjustice^{as against} the imposition of sentence of imprisonment. Accordingly,^the . sentence^{is modificd.}

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(2OlO) II SCC 1.1r '^{ltR20lqsuepgvEcoutl'lgaJ}

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In the result, the Criminal Revision Case is allowed in^part by modiSing the conviction under Section 138 of the NI Act. The sentence is modifred to pay a fine of imposition of twice the cheque amount i.e., Rs.1,4O,OO0/- within a period of six⁽⁰⁶⁾ weeks from the date of receipt of a copy of this order, in default Simple Imprisonment for a period of three^(O3) months.

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As a sequel, miscellaneous petitions if any, stands closed.

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/ITRUE COPY'

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Sd/- I. NAGA^LAKSHMI DEPUTY EGISTRAR

SE ION OFFICER

To,