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ANDHRA PRADESH HIGH COURT AT AMARAVATI
A.V. Ravindra Babu, J.
Mindala Venkateswarlu – Appellant
Versus
Srinivasa Auto Financiers And The State of A. P. & Ors. – Respondents
Criminal Revision Case No. 448 of 2009
Decided On : 26-12-2022
NEGOTIABLE INSTRUMENTS ACT - SECTION 138 - DISHONOR OF CHEQUE - ESSENTIAL INGREDIENTS - PROOF - BURDEN OF PROOF - STATUTORY NOTICE - LIMITATION - FABRICATED DOCUMENTS - PAYMENT DURING PENDENCY OF REVISION CASE - MODIFICATION OF SENTENCE.
Fact of the Case:
Complainant lent Rs.20,400/- to the original borrower, who along with the accused as guarantor, executed a demand promissory note to repay the amount in installments. The original borrower paid a part of the amount, and the accused issued a cheque for Rs.18,000/- towards part satisfaction of the balance. The cheque was dishonored due to insufficient funds. The complainant issued a statutory notice to the accused, who received it but did not respond. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act.
Finding of the Court:
The court found that the complainant had established a case under Section 138 of the Negotiable Instruments Act. The accused failed to prove that the debt was barred by limitation or that the documents were fabricated. The court also found that the statutory notice was issued to the accused, who was the drawer of the cheque.
Issues: 1. Whether the complainant established the essential ingredients of Section 138 of the Negotiable Instruments Act? 2. Whether the debt under the promissory note was time-barred? 3. Whether the statutory notice was issued to the original borrower? 4. Whether the documents produced by the complainant were fabricated?
Ratio Decidendi: 1. The complainant proved that the accused issued the cheque towards part discharge of a legally enforceable debt. 2. The debt was not barred by limitation as it was duly acknowledged by the original borrower and the accused in writing. 3. The statutory notice was issued to the accused, who was the drawer of the cheque. 4. The documents produced by the complainant were not fabricated.
Final Decision: The court allowed the criminal revision case in part, setting aside the sentence of simple imprisonment of three months imposed against the accused and sentencing him to a fine of Rs.5,000/- instead of Rs.3,000/-.
JUDGMENT
A.V. Ravindra Babu, J. - This Criminal Revision Case is filed by the petitioner, who was the appellant in Criminal Appeal No.45 of 2008 and accused in C.C.No.183 of 2003, on the file of the Additional Junior Civil Judge, Ponnur, questioning the judgment, dated 18.03.2009 in Criminal Appeal No.45 of 2008, whereunder the learned V Additional Sessions Judge (Fast Track Court), Guntur, dismissed the appeal confirming the calendar and judgment, dated 18.02.2008 in C.C.No.45 of 2008, under which the learned V Additional Sessions Judge, found the present Revision Petitioner guilty of the offence under Section 138 of Negotiable Instruments Act ('N.I. Act' for short) and convicted him and sentenced him to suffer simple imprisonment for three months and to pay a fine of Rs.3,000/- in default to suffer simple imprisonment for one month.
2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court for the sake of the convenience.
3. The case of the complainant, in brief, according to the averments in the complaint before the Court below, is that on 14.08.1996 one Varikutu Yelesu borrowed Rs.20,400/- from the complainant for his family expenses and along with guarantors i.e., accused and that one Varikuti Samsonu, jointly executed a demand promissory note in favour of the complainant, agreeing to repay an amount of Rs.29,263/-including interest of Rs.8,868/- in 36 equal monthly installments at the rate of Rs. 813/-. The drawing and disbursement officer of the said Yelesu i.e., the Commissioner, Tenali Municipality, undertake to pay the installments after deducting the same from the salary of the original borrower. So, accordingly, he paid a sum of Rs.26,006/- to the complainant through the Commissioner towards part satisfaction and failed to pay the balance amount. The original borrower and the guarantor i.e., accused executed debt acknowledgement letters periodically. Ultimately, when the complainant demanded to pay the balance, accused being guarantor of the original borrower, issued a cheque for Rs.18,000/-, in favour of the complainant, towards part satisfaction of the balance and when it was presented for encashment, it was dishonoured by Chaitanya Grameena Bank, Nidubrolu, as 'funds were insufficient' in the account of the accused. Complainant issued a statutory notice to the accused. The accused received it and kept quite. Hence, the complaint.
4. The learned Additional Junior Civil Judge, Ponnur, took cognizance on file under Section 138 of N.I. Act and after furnishing copies of documents as required under Section 207 of the Code of Criminal Procedure ('Cr.P.C.' for short), examined the accused under Section 251 of Cr.P.C. with reference to the allegations in the complaint, for which he denied the offence and pleaded not guilty and claimed to be tried.
5. During the course of trial before the trial Court, complainant examined himself as P.W.1 and got marked Exs.P.1 to P.17. After the closure of evidence of the complainant, accused was examined under Section 313 Cr.P.C., for which he denied the incriminating circumstances and did not adduce any evidence.
6. The learned Additional Junior Civil Judge, Ponnur, on hearing both sides and on considering the evidence on record, found the accused guilty of the offence under Section 138 of N.I. Act and accordingly, convicted him and sentenced him as above. Felt aggrieved of the same, the unsuccessful accused filed Criminal Appeal No.45 of 2008 before the V Additional Sessions Judge (Fast Track Court), Guntur, which came to be dismissed on merits on 18.03.2009. Felt aggrieved of the same, the unsuccessful appellant filed the present Criminal Revision Case.
7. Now, in deciding the present Criminal Revision Case, the point that arises for consideration is as to whether the impugned judgment suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the said judgment?
Point:-
8. Sri N. Harina
The essential ingredients of Section 138 of the Negotiable Instruments Act are: (i) the existence of a legally enforceable debt; (ii) the issuance of a cheque towards discharge of such debt; (iii) th....
The main legal point established in the judgment is the confirmation of the conviction under Section 138 of the Negotiable Instruments Act based on the evidence presented and the legal presumption of....
The presumption of debt under Section 139 of the N.I. Act requires the accused to rebut the presumption to avoid conviction under Section 138.
Criminal Law - Dishonoured of Cheque - Appeal against conviction - Petitioner in this case, did not raise any probable defence which would create doubts in mind of Court. Court find no reason to inte....
Dishonour of cheque – Mere non-filing of any suit by complainant to recover amount due under promissory note does not entitle accused to claim order of acquittal.
The main legal point established in the judgment is the application of the presumption under Section 139 of the Negotiable Instruments Act and the importance of proving the contrary to rebut the pres....
The presumption of issuance of a cheque for consideration under Section 139 of the Negotiable Instruments Act is not rebutted by mere denial of the transaction without evidence.
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