Avula Rangaiah, v. The State Of Ap Rep By Its Pp Hyd., Another,
t I BAIL SLIP: The Petitioner/Accused was direcled to be released on bail bythe Order of the High court dated o8lo2l2o11 in GRL.RC..M.P No,424 of 2O11 in CRL.RC..No.274 of 201 1.
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD WEDNESDAY THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL CRIMINAL REVISIO N E NO: 274 OF 2011 Revision filed under Section 397 RAIV 401 of CrPC aggrieved by the/ against the judgment and Conviction Crl.A.No. 78 of 2O1O, dt. 04-02-20'1 1 on the file of the Sessions Judge, Mahabubnagar preffered against the judgement, dated 26-07-2010 in CC.No. 36 of 2008 on the file of Spl. J.F.C.M., Proh. and Excise Court at Mahabubnagar Between:
,1- AVULA RANGAIAH,, S/o. Ba|aiah, Business, RYO. MIG -17 ,HUDA Co|ony, Shamshabad, RR.District.
...REVISION PETITIONER/APPELLANT/ACCUSED AND
1. THE STATE OF AP REP BY ITS PP HYD., Rep. by its Public Prosecutor, High Court of A.P., at Hyderabad.
2. Mohd Yaqoob,, S/o. Mohd. Khaja, Agriculture and Business, Fl/o. Gauraram Village, Post Maganoor, Bi.iinapalli Mandal, Mahabubnagar District. ...RESPONT}ENT/RESPONDENT/COMPLAINTANT I I
Counsel for the Petitioner(s):SRl. M ACHUTA REDDY Counsel for the Respondent No.l:SRl VIZARATH ALl, ASSISTANT PUBLIC PROSECUTOR Counsel for the Respondent No.2: N.A The Court made the following: ORDER
THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL CRIMINAL REVISION CASE No.274 oF 2011 ORDER:
This Criminal Revision Case is filed against the judgment dated 04.02.2011 in Crl.A.No.78 of 20LO on the file of the learned Sessions Judge, Mahabubnagar (for short, "the appellate Court") in confirming the judgment dated 26.07.2O1O in C.C.No.36 of 2OO8 on the file of the learned Special Judicial Magistrate of First Class Prohibition and Excise Court, at Mahabubnagar (for short, "the trial Court").
2.
Heard Mr. Chandrasekhar, learned counsel representing Mr. M. Achutha Reddy, learned counsel for the petitioner and Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for the respondent State.
3.
The brief facts of the case are that on O4.03.2OO5 respondent No.2/cornplainant gave an amount of Rs.2,75,O00/- as loan to the petitioner/ accused on acquaintance and the petitioner executed a promissory note acknowledging the debt. Inspite of repeated requests, the petitioner failed to repay the said loan. Finally, on O5.O4 .2OO7 , the petitioner issued two cheques one bearing No.962383 dated lO.O4.2OO7 for
Rs.1,25,OOO/- i.e., Ex p1 and another cheque bearing No.9623g2 dated 19.O4.2OO7 for Rs.1,50,0O0/- i.e., Ex p2 drawn on SBH, Shamshabad. On presentation, the both the cheques were returned unpaid on 17.05.2007 with an endorsement ,insufficient funds'. Immediately, respondent No.2 informed the petitioner about the dishonour of cheques and issued legal notice on 26.O5.2OO7 demanding repayment of loan within hfteen (15) days of receipt of notice. Petitioner refused to take notice and failed to repay the same. Hence, respondent No.2 filed complaint under Section 138 of Negotiable Instruments Act (for short, ..NI Act"). 4.
Learned counsel for the petitioner submitted that the Courts below erred in appreciating the oral arrd documenta5z evidence in proper perspective a,d convicted the revision petitioner though he is not due of arry amount under the alleged cheques. Therefore, seeks to allow the Revision. 5.
l,earned Assistant public prosecutor contended that the trial Court as well as the appellate Court after careful scrutiny of the erridence available on record rightly passed the respective judgments and the interference of this Court, at this stage is unwarranted. Therefore, seeks to dismiss the Revision.
., 6.
The trial Court vide judgment dated 26.O7.2O1O in C.C.No.36 of 2008 found the petitioner guilty for the offence under NI Act and sentenced him to undergo simple imprisonment for a period of six months and pay fine of Rs.1O,00O/-, in default of payment of hne, to undergo further imprisonment for a period of one month. The period of remand, il any, undergone by the petitioner in judicial custody was set off under Section 428 Cr.P.C. Out of the fine amount, an amount of Rs.S,OOO/- was directed to be paid as compensation to the petitioner. Aggrieved thereby, the petitioner preferred an appeal.
7.
The appellate Court vide judgment dated O4.O2.2Oll in Cr1.A.No.78 of 2010 dismissed the appeal while confrrming the sentence passed by the trial Court vide judgment dated 26.O7.2O1O in C.C.No.36 of 2O08. Assailing the same, the present Revision.
8.
On behalf of respondent No.2, the trial Court examined PWl and marked Exs.Pl to P9. On behalf of defense, DWs. 1 and 2 were examined and Exs.Dl to D7 were marked. PWl deposed I I in the same lines as per the averments made in the complaint. The contention of DWl was that PWl is only a money lender and he obtained hand loan of Rs.2,75,00O /- from PWI on 06.O3.2OO4
.t and not on 04.03.2005 as alleged. He repaid the said loan vide Exs. Dl to D7 and due to the dispute that arose with regard to payment of interest, PWl filled the blank signed cheques issued to him, in an earlier transaction and filed the present case. He also got examined the Bank Manager to strengthen his contention that the cheques were issued in lieu of loan transaction dated 06.03.2004.
9 .
The trial Court upon careful consideration of oral and documentar5r evidence found that there was no dispute with regard to the factum of prior acquaintance between the petitioner and respondent No.2. It was also not in dispute that PWI used to give hand loans to the petitioner for his necessities which the petitioner repaid. The only contention of petitioner was that he issued cheques in connection with another transaction and the sarne were misused by PWl. No where, in the entire case, the petitioner has taken the plea that he issued Exs.Pl and P2 as security a-fter two'days or some days, as the case may be, after obtaining loan on 06.03.2004. Secondly, the petitioner stated that at the time of receipt of Ex P9, he was residing at Balmoor (v) and that the notice was not issued on correct address. But if the contention of the petitioner was true, the notice would have
tr': a-t.:i!-;;, ,;.a ) returned with an endorsement ,,addressee left,, or ..not present,,. But the postal envelope was returned with an endorsement "refused". Except taking such a bare plea, no evidence was put forth by him to substantiate his contention that he was not residing in the address as mentioned on the envelope on the alleged date. Hence, it was presumed that the petitioner received the statutory notice as contemplated under the NI Act. lO. Further, the petitioner pleaded that he repaid the loan amount of Rs.2,75,000/_ vide Exs.Dl to D7 and obtained promissory note and receipt. But respondent No.2, instead of returning the btank cheques issued by him, misused them and Iiled the present case. Except taking the said plea, the petitioner did not prefer to adduce the promissory note or receipt as evidence.
This leads to the presumption against the petitioner under Section 11a($ of the Indian Evidence Act which states that the evidence which could be and is not produced would, if produced, be unfavourable to him. Further, during cross_ examination, petitioner admitted that he has not taken any recourse to see that the said cheques were returned back by respondent No.2 or when respondent No.
not trace out, the same was either intimated to bank or police authorities.
I I . During the cross-examination of PW 1 , nothing could be elicited to discredit his version. Further, petitioner admitted that there were other loan transactions existing between respondent No.2 and himself but, nothing was on record to prove that the payments made by the petitioner do correspond to the alleged transaction in dispute. Thus, respondent No.2 established the fact that the petitioner is due loan amount of Rs.2,75,000/- given on 04.03.20O5. Therefore, the presumption under Sections.118 and 139 of NI Act were available to respondent No. 2 which state that the cheques were issued in discharge of legally enforceable debt and respondent No.2 established the guilt of the petitioner beyond reasonable doubt.
12. On an appeal being preferred, the appellate Court observed that the receipt of amounts under Exs. Dl and D2 was admitted by respondent No.2, but according to him, they were received in connection with another transaction. In such circumstances, the burden of proof lies upon the petitioner to establish that the amounts were received by PWl in discharge of the present loan transaction, but the petitioner failed to discharge his burden. The
/ evidence of PWI as to the issuance ol the cheques i.e., Exs.Pl and P2 in discharge of legally enforceable debt has not been effectively rebutted by the petitioner.
I 3. Therefore, the appellate Court held that the trial Court upon elaborate discussion on the aspects raised by both the parties and relying on the decisions of the Apex Court in i I I K. Bhasker Vs. Sankaran Vidhya Bala and othersr and Hiten P. Dalal Case2 rightly came to the conclusion that the petitioner was guilty of the offence under Section 138 of NI Act and such finding requires no interference. Therefore, dismissed the appeal while confirming the sentenced passed by the trial Court.
14. A perusal of record shows that this Court vide order dated 08.O2-2011 suspended the sentence imposed against the petitioner and enlarged him on bail on. executing a bond for an amount of Rs.10,000/- with two sureties each of like sum to the satisfaction of the trial Court. In the present case on hand, both the Courts have concurrently held that the petitioner was guilty of the offence under Section.l38 of N.LAct, which finding, in my considered view, does not call for interference, in exercise of revisional jurisdiction under Sectio n 397 Cr .P .C. t AIR 199 SC 3762 , 2O01 SCC (Crl) 960
I o
15. There are no grounds much less valid grounds to interfere with the well considered judgment of the appellate Court and accordingly, this Revision is liable to be dismissed.
16. Accordingly, the Criminal Revision Case is dismissed Miscellaneous Petitions, pending if any, shall stand closed SD/- I.NAGA LAKSHMI DEPUW REGISTRAR //TRUE COPY// >.1,/ To, SECTION OFFICER
1. The Sessions Judge, Mahabubnagar. (with records if any)
2. The Spl. J.F.C.M., Proh. and Excise Court at Mahabubnagar
3. One CC to SRl. M ACHUTA REDDY Advocate [OPUC]
4. Two CCs to the PUBLIC PROSECUTOR, TSHC at Hyderabad [OUT]
5. Two CD Copies.
s \N.-
HIGH COURT DATED:1310912023 1 HE STA 14, q J I Jco + 2024 7;) N
ORDER
* p.T * CRLRC.No.274 of 2011 THE CRIMINAL REVISTON CASE IS DISMISSED ;L ,V3 tt*