Ruttala Veerabhadra Rao, v. The State Of A.P.,

THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.1086 of 2007 ORDER:

The petitioner-Accused preferred the present Criminal Revision Case by invoking the provisions under Sections 397 and 401 of the Code of Criminal Procedure being aggrieved by the judgment, dated 31.07.2007, passed in Crl.A. No.73 of 2007 by the Principal Sessions Judge, Eluru, West Godavari District, whereby the learned Sessions Judge dismissed the appeal, confirming the Judgment, dated 09.04.2007, passed in CC No.14 of 2006 (Old CC No.153 of 2003) by the Judicial Magistrate of First Class, Special Mobile Court, Eluru (Camp at Kovvur), whereby the learned Magistrate found the accused guilty of the offence under Section 138 of Negotiable Instruments Act (for short 'NI Act') and accordingly, convicted and sentenced him to undergo simple imprisonment for a period of six months and directed to pay the entire cheque amount as compensation to the de facto complainant, within a period of three months.

The case of the prosecution is that the petitioner is having hotel business in various places and to meet his business expenses, he borrowed a sum of Rs.1,00,000/- from the de facto complainant agreeing to repay the same with interest at 24% p.a., and also executed a promissory note. Subsequently, on repeated demands, the petitioner issued a cheque for a sum of Rs.75,000/- to the de facto complainant. When the de facto complainant deposited the cheque in his bank, the same was returned with a memo stating that payment stopped by the drawer and confirmation awaiting. Thereafter, the complainant got issued a notice to the petitioner and the petitioner issued reply notice with false allegations. Hence, the

de facto complainant filed a complaint for the offence under Section 138 of NI Act.

The case was taken on file for the offence under Section 138 of NI Act. On appearance of accused, the charge under Section 138 of the NI Act was read over and explained to him, for which, he pleaded not guilty and claimed to be tried. To substantiate its case, the prosecution examined PW.1 and got marked Exs.P-1 to P-8. No oral or documentary evidence was adduced on behalf of the petitioner. The trial Court, after considering the evidence on record, found the petitioner guilty of the above charge, and accordingly, convicted and sentenced him as stated above. Challenging the same, the petitioner preferred appeal in Crl.A. No.73 of 2007 before the Principal Sessions Judge, W.G. District at Eluru, and the learned Sessions Judge dismissed the appeal by confirming the judgment of the trial Court, vide judgement impugned.

Against the said judgment, this revision is filed. Heard and perused the material available on record. On perusing the judgments of both the Courts below, this Court is of the view that since the findings of both the Courts below are concurrent in nature, this Court is not inclined to interfere with the factual aspects of the case.

sentence, but this Court dismissed the said application since the de facto complainant was not ready for compounding the offence and now also the petitioner is ready to pay the cheque amount since petitioner is facing financial constraints; and restricted his arguments to the quantum of sentence and prayed that leniency may be shown while imposing sentence. Considering the facts and circumstances of the case and also considering that the case pertains to the year 2003, the sentence of imprisonment imposed by the trial Court, as confirmed by the lower appellate Court, can be set aside by imposing fine amount on the petitioner.

In the result, the conviction recorded against the petitioner by the Judicial Magistrate of First Class, Special Mobile Court, Eluru (Camp at Kovvur), in CC No.14 of 2006 (Old CC No.153 of 2003) vide judgment, dated 09.04.2007, as confirmed by the Principal Sessions Judge, W.G. District at Eluru, in Crl.A. No.73 of 2007, vide judgment, dated 31.07.2007, for the offence under Section 138 of the Negotiable Instruments Act, is confirmed. However, the sentence of imprisonment imposed by the trial Court for the above offence is set aside and the petitioner is sentenced to pay a fine of Rs.1,00,000/-, which includes the cheque amount, on or before 10.10.2016 and the same shall be given to the de facto complainant as compensation. In default of payment of the fine amount, the petitioner shall undergo simple imprisonment for a period of three (3) months.

Accordingly, the Criminal Revision Case is partly allowed. Miscellaneous applications, pending if any, shall stand closed.

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RAJA ELANGO, J July 18, 2016.

KTL