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IN THE COURT OF THE IV ADDITIONAL DIST AND SESSIONS JUDGE AT
L.B.NAGAR, RANGA REDDY DIST.
PRESENT : SRI V.NIRANJAN RAO, B.Sc (Hons'), M.A, LL.M. PGDCL
IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RANGA REDDY DISTRICT AT L.B. NAGAR
DATED THIS THE 5TH DAY OF FEBRUARY, 2016
CRIMINAL APPEAL NO. 224 OF 2014
BETWEEN:
A.Venkateshwar Rao, S/o.A.Sanjeeva Rao, Aged about 47 years, Occ: Business, R/o.Plot No.147, New Gayatri Nagar, Jillelaguda, Saroornagar Mandal, R.R.Dist. 500 079.
...APPELLANT
And
1. V.Madhusudhan Reddy, S/o.Reddy, Aged about 50 years, Occ: Bore well Business, R/o.L.B.Nagar, R.R.Dist.
2. The State of A.P through rep by A.P.P.
...RESPONDENT
Against: Judgment and conviction passed in C.C.NO.225 of 2013 by
IX Special Magistrate, Hasthinapuram, dated 03-03-2014.
BETWEEN:
A.Venkateshwar Rao
...COMPLAINANT
And
V.Madhusudhan Reddy.
...ACCUSED
This appeal is coming on 05-02-2016 before me for hearing in the presence of Sri Venkateshwar Rao, Counsel for the Appellant/accused; and Sri B.Hanumantha Reddy, counsel for the respondent and upon perusal of the material papers on record and the case having been heard and stood over for consideration till this day, this court delivered the following judgment; 2
J U D G M E N T
This appeal is preferred by the appellant/convict/accused challenging the judgment of conviction and sentence of imprisonment in C.C.No.225 of 2013 on the file of IX Special Magistrate, Hasthinapuram at L.B.Nagar dated 03-03-2014 for the offence U/s.138 of N.I Act.
1. The case of the complainant (Respondent) is,
The complainant and accused are known to each other since long time and due to the said acquaintance the accused borrowed a sum of Rs.15 Lakhs in the first of week of January, 2012 for business requirements. Considering his such request, the complainant lent Rs.15 Lakhs to the accused who executed a Pronote on 16-01-2012 promised to repay and also obtained a receipt from accused. When the accused failed to make repayment, upon the demand of complainant, accused gave him cheque bearing No.551628 for Rs.15 Lakhs dated 22-01-2013 drawn on State Bank of
Hyderabad, Jillelaguda Branch, Saroornagar Mandal. Thereafter in order to encash the same complainant presented the said cheque in his account at State Bank of India,
LB Nagar Branch, Hyderabad. But it was dishonoured through a cheque return memo
dated 23-01-2013 on the ground “Funds Insufficient”. Therefore, complainant got
issued statutory legal notice dated 04-02-2013 demanding payment of cheque amount within 15 days from date of receipt of the notice through Registered Post
Acknowledgment due as well as courier service, but returned as un-served with an endorsement “Unclaimed” and thereby committed the offence under Section 138 of
NI Act. Originally, this case has been filed before the II Metropolitan Magistrate,
Cyberabad at L.B.Nagar after recording the sworn statements of the complainant and 3 issued summons and numbered as C.C.No.575 of 2013 and later, the said case was transferred to IX Special Magistrate, Hasthinapuram at L.B.Nagar and renumbered as
C.C.No.225 of 2013.
2.The case was taken on file under Section 138 of NI Act and tried. During the trial, complainant was examined as P.W-1 and also examined PW-2 and Ex.P-1 to
P-7 were marked.
3.After completion of the trial of the complainant case the accused was examined under Section 313 Cr.P.C., explaining the accused all the incriminating evidence appearing against him. The accused denied the same and he did not choose to examine any witness. The case of the accused is that he did not commit any offence and he has nothing to do with the cheque transaction.
4.On appreciation of the evidence placed before the trial court and after hearing both sides, trial court found the accused guilty and he is convicted for the offence
U/s.138 of N.I.Act and sentenced to suffer Simple Imprisonment for a period of one year and also to pay a compensation of Rs.17,00,000/- to the complainant U/s.357 (3) of Cr.P.C and in default to suffer Simple imprisonment for 3 months.
5.Aggrieved of the said judgment and sentence passed by the lower court, the present appeal is preferred by the appellant/convict/accused challenging the judgment of conviction and sentence of imprisonment in C.C.No.225 of 2013 on the file of IX
Special Magistrate, Hasthinapuram at L.B.Nagar dated 03-03-2014 for the offence
U/s.138 N.I.Act.
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6.The important grounds taken by the appellant in the appeal to set aside judgment of the Lower court are:
1). That the judgment and order passed by the lower court is arbitrary, illegal and contrary to law and against the weight of the evidence.
2). That the trial court came in to erroneous conclusion without appreciating evidence on record and convicted and sentenced the appellant U/sec.138 N.I.Act.
3). That the lower court ought to have seen that the all evidence are in support of appellant.
4). That the lower court has wrongly come to the conclusion that the complainant has proved the case, in fact the complainant has miserably failed to prove the guilt of the appellant/accused, beyond reasonable doubt.
7. In spite of giving many adjournments for making submissions by the counsel
for the appellant/convict/accused, there is no representation by the counsel and
appellant has not been attending to the court. The arguments on behalf of the appellant are treated as heard.
8.On the other hand, the Learned counsel for respondent submits that there are no reasons for this court to interfere in the judgment of the Learned Special
Magistrate and Learned counsel for respondent further submits that basing on the
evidence of PW-1 as there are no contradictions which can be taken note of, the
Learned Special Magistrate found accused guilty and sentenced to imprisonment.
Learned counsel for respondent submits that appeal be dismissed.
9.In the context of the submission and the record:
The point that arises for determination is whether there are sufficient
reasons to interfere with the judgment of conviction passed by the Learned IX
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Special Magistrate, Hasthinapuram at L.B.Nagar in CC No. 224 of 2014 where in
the appellant herein was found guilty and convicted for the offence U/s.138 of
N.I.Act and sentenced to undergo simple imprisonment and also directed to pay
compensation ?”
POINT:
10.In the context of the grounds taken by the appellant, the case of the appellant is that the learned lower court failed to appreciate that complainant failed prove the guilt of the accused beyond reasonable doubt. This ground cannot be accepted, in the context that, complainant who has examined himself as PW-1, through his evidence the complainant established that he has acquaintance with the appellant/accused and the appellant/accused is dealing in business and approached him for hand loan and complainant has given Rs.15 Lakhs on which accused executed a pronote i.e., Ex.P-7. The PW-1 speaks to the execution of the same by the accused having obtained loan, apart from PW-1 scribe of pronote i.e., PW-2 by name
Narsimha Reddy who speaks to Ex.P-7. PW-2 categorically speaks to the aspect that the accused having obtained loan executed Ex.P-7, and he filled up contents in the proforma of Ex.P-7. The learned trial judge categorically gave finding that there is nothing to discredit the evidence of PW-2 and no material aspects have been elicited in the cross examination of PW-2 to discredit his evidence. The learned trial judge answered the case of the accused, as per that disposition of PW-2 there were 6 revenue stamps affixed to Ex.P-7, in fact there are 9 revenue stamps. The Learned trial judge rightly gave a finding that though 9 revenue stamps are affixed i.e., three each on pronote, receipt and surety but only pronote receipt have been filed on which the accused signed. In that context, PW-2 referred to only 6 revenue stamps and not referred to 3 revenue stamps which were there on surety proforma. Even otherwise, 6 also this is not material to discredit the evidence of PW-2. When the complainant has established the execution of the pronote by accused and cheque issued by accused i.e., Ex.P-1 towards discharge of the liability for repayment of debt, burden is on accused to rebut the same. It is to be accepted that Ex.P-1 is issued towards the discharge of legally enforceable liability. As far as, the case of the accused that there is difference in the signatures on Ex.P-1 and Ex.P-7, no way help the case of the appellant. As rightly found by the learned trial judge the said aspects show that either of the Ex.P-1 or A-7 contain signature of the accused if that is the case, the amount shown on the Ex.P-7 the said cheque has been issued towards the discharge of legally enforceable liability. Once the complainant establishes that the Ex.P-1 cheque has been issued by the accused and also that same has been issued for the legally enforceable liability,even otherwise, once the issuance of cheque has been admitted by accused or proved the burden lies on the accused to rebut the presumption that the cheque is issued towards legally enforceable liability but in this case the accused failed to discharge his burden that the Ex.P-1 cheque is not issued towards the legally enforceable liability.
The ground of the appellant that since the complainant failed to file income tax returns or failed to prove the financial capacity would not be helpful to the case of the appellant because the elicited aspect in the cross examination of PW-1, that PW-1 is having habit of lending amounts to different persons would go to show that the complainant has financial capacity. As rightly held by the learned trial judge, this aspect would go help the case of the accused to show that complainant has no capacity to lend the loan and non-filing of the income tax returns or non-showing of the amounts lent to the accused for income tax returns would not any way help the 7 case of the accused as held by trial judge. In view of the decision reported in
LAWS(APH)-2009-12-45/ALT(CRI)-2010-1-347 between M.Vidyavathi Vs.
Chandraiah for proposition that the capacity to lend the amount is not the ingredient
U/s.138 of N.I.Act and once the complainant established the ingredient U/s.138 of
N.I.Act, the presumption U/s.139 N.I.Act is to be drawn and this was held by Hon'ble
Supreme court in the decision reported in 2010 (3) ALT (Crl) 339 (SC) between
Rangappa Vs. Sri Mohan in this case the accused failed to discharge his burden rebutting the presumption U/s.139 of N.I.Act.
Next dealing with the case of the accused that there is not proper service of the statutory legal notice, the said ground of the appellant cannot be accepted because in his evidence, the complainant categorically states that having received cheque return memo under Ex.P-2 he has given legal notice to the accused under Ex.P-3 through post and courier and Ex.P-4 and 5 which are receipts shows that complainant sent the legal notice and in the absence of the accused it was returned and as pointed out by the learned trial judge, it appears that accused being a police constable knowing the consequences of unclaiming a registered post and particularly legal notice and knowing the consequences the accused unclaimed postal cover. As rightly held by the trial judge it is not the case of the accused that the said postal cover is not sent to the proper address in such context, the contention of the accused that there was no proper service of the statutory legal notice, on accused cannot be accepted.
In the context of the discussion made above, there are no reasons to interfere in the finding of the learned Special Magistrate. Accordingly, this court do not find any ground or reasons to interfere in the well considered judgment of the Learned V
Special Magistrate, Hasthinapuram, finding the accused guilty for the offence 8
U/s.138 of N.I.Act and also sentencing him to suffer Simple Imprisonment for a period of one year and also to pay a compensation of Rs.17,00,000/- to the complainant as compensation U/s.357 Cr.P.C in default to suffer simple imprisonment of three months. In the context of the nature of the offence, this court also do not want to interfere in the sentence passed by the Learned lower court as it is reasonable and proportionate, however the default sentence of three (3) months for non-payment of compensation is set aside as same is not tenable as per law. There are no grounds in appeal and Criminal appeal is liable to be dismissed and accordingly it is dismissed.
In the result, the appeal of the appellant/convict/accused is dismissed by
confirming the judgment passed by the trial court in C.C.NO.225 of 2013 by V
Special Magistrate, Hasthinapuram, dated 03-03-2014.
Dictated to the Personal Assistant, transcribed by him corrected and
pronounced by me in open Court on this the 5 th day of February, 2016.
IV ADDITIONAL DISTRICT JUDGE
RANGA REDDY DISTRICT