Vuppu Venkata Subbaiah, v. The State And Another,

HON'BLE SRI JUSTICE A. SHANKAR NARAYANA Criminal Revision Case No.1560 of 2006 JUDGMENT:

Questioning the conviction recorded in C.C. No.470 of 2002, dated 19.10.2005, by the learned II-Additional Judicial Magistrate of First Class, Ongole, under Section 255 (2) of the Criminal Procedure Code, 1973 (for short, 'Cr.P.C.'), for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, and sentence of simple imprisonment for a period of three months and compensation of Rs.1,05,000/- under Section 357 (3) of Cr.P.C., as affirmed by the III-Additional District & Sessions Judge (Fast Track Court), Ongole, in Criminal Appeal No.135 of 2005, dated 15.9.2006, the revision petitioner-appellant-accused preferred the present Criminal Revision Case under Sections 397 and 401 of Cr.P.C.

2. The facts would show that the revision petitioner borrowed a sum of Rs.50,000/- on 9.3.2000 and executed promissory note agreeing to repay the same with interest at 36% per annum, and a sum of Rs.1,000/- was paid on 14.1.2002 towards principal of the promissory note debt and thereafter, on demand for payment, the revision petitioner issued a cheque for Rs.80,000/- on 27.9.2002 towards part satisfaction of the promissory note debt, which was dishonoured, when sent for collection with the endorsement "insufficiency of funds".

3.

On examination of the accused, since the accused pleaded not guilty, the learned Magistrate proceeded with the trial. The complainant himself examined as P.W.1 and marked Exs.P1 to P7; and no oral or documentary evidence was let in by the revision petitioner-accused.

4.

The learned Magistrate having formulated the four relevant points for consideration held that the evidence let in by the complainant would establish that Ex.P3-Cheque was issued by the revision petitioner towards legally enforceable debt and that the cheque was dishonoured due to 'insufficiency of funds' in the account of the revision petitioner; that the complainant complied with the mandatory requirement of Section 138 (b) of Negotiable Instruments Act, and the evidence proves the guilt of the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act. Perused the findings recorded by the learned Magistrate, and absolutely nothing is brought out in the cross-examination of P.W.1 to disprove or rebut the presumption nor any infractions are brought out, and, therefore, there is no legal infirmity occurring in the findings recorded by the learned Sessions Judge.

5.

The learned III-Additional Sessions Judge, Ongole, once again scanned the evidence on record and disbelieved the stand taken by the revision petitioner-accused. The learned Appellate Judge referred to the circumstance of filing an application in Criminal M.P.No.5803 on 25.9.2003, under Section 45 of the Indian Evidence

Act, 1872, praying the Court to send the promissory note to the Handwriting Expert for opinion, as his signature is rank forgery occurring on Ex.P1 promissory note and Ex.P2 endorsement, besides contending that it was time-barred debt. That petition was dismissed on merits and it appears that the revision petitioner has not pursued his remedy further. It appears even the Criminal Revision Petition also was dismissed, as could be seen from the observations made in Paragraph-14 of the appellate judgment. The learned Appellate Court placed reliance in K. Bhaskaran v. Sankaran Vaidhyan Balan (2000 (1) ALT (Crl.)

42) and found, on his independent analysis of evidence, that the complainant would prove the offence punishable under Section 138 of the Negotiable Instruments Act beyond any reasonable doubt at all, as such no legal infirmity is found in the findings recorded by the trial Court and thereby affirmed the conviction and sentence of imprisonment, and directing the revision petitioner to pay the compensation of Rs.1,05,000/- within one month from the date of judgment rendered in the appeal. 6.

Heard the learned counsel for the petitioner. 7.

Learned counsel for the revision petitioner would submit that the Calendar Case relates to the year 2002 and Criminal Appeal relates to the year 2005. During trial, the petitioner was remanded to judicial custody pursuant to non-bailable warrant issued and he was in jail for three days till he came out by obtaining bail and again when the judgment was pronounced by the appellate court, he was again

committed to the prison pursuant to issuance of committal warrant. It is also his submission that present Criminal Revision Case was filed in the year 2006 and the petitioner is more than 60 years and, therefore, seeks to show sympathy on him.

8.

When the Calendar Case was filed in 2002, the age of the petitioner was shown as 51 years. Perhaps he must be 65 years old, if the age was correctly shown in the Calendar Case. However, keeping in view the fact that the amount borrowed is Rs.50,000/- and the cheque was issued for Rs.80,000/- and the trial court ordered compensation of Rs.1,05,000/-, the period of three months Simple Imprisonment inflicted by the trial court and affirmed by the appellate court is converted to that of the period already undergone while confirming the conviction as well as the payment of compensation of Rs.1,05,000/-.

9.

Therefore, the present Criminal Revision Case is dismissed confirming the conviction recorded and the fine imposed against the revision petitioner-accused viz., Vuppu Venkata Subbaiah, by the learned II-Additional Judicial Magistrate of First Class, Ongole, in C.C No.470 of 2002 as affirmed by the learned IIIAdditional Sessions Judge (Fast Track Court), Ongole, in Criminal Appeal No.135 of 2005, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and modified the sentence of imprisonment to that of the period he has already undergone till date.

The revision petitioner shall be released forthwith if he is not required in any other case.

As a sequel there to miscellaneous petitions, if any, pending in the present Criminal Revision Case shall stand closed. _____________________________ A. SHANKAR NARAYANA, J December 08, 2017.

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