The main legal point established in the judgment is the validity of the conviction under Section 138 of the N.I.Act based on evidence of borrowal of money, issuance of cheque, and service of notice.

ORDER :

The revision petitioner was convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the N.I.Act’) and in challenge the present revision is filed under Sections 397 and 401 Cr.P.C.

2. On a complaint filed by respondent No.1, the revision petitioner was prosecuted in C.C.No.1211 of 2002 and after due trial, the learned VI Metropolitan Magistrate, Vijayawada by a judgment dated 13.10.2003 found the revision petitioner guilty for the offence under Section 138 of the N.I.Act and convicted him and sentenced him to undergo simple imprisonment for six months and pay a fine of Rs.1,000/- with a default sentence of simple imprisonment for one month.

3. The revision petitioner challenged the said judgment in Criminal Appeal No.217 of 2003. Learned Metropolitan Sessions Judge, Vijayawada after due hearing of the appeal, by a judgment dated 22.08.2005 confirmed the guilt of the accused but modified the sentence. The learned appellate Court sentenced the revision petitioner till raising of the day and he was directed to pay Rs.80,000/- as compensation to complainant and one month time was granted and a default sentence of simple imprisonment for three months was prescribed.

4. Challenging the worthiness of the above judgments, the present revision is filed on the following grounds:

1. The debt alleged was unenforceable.

2. The cheque was given by the revision petitioner only towards security of the above referred unenforceable debt.

3. This revision petitioner did not receive the statutory notice and respondent No.1 failed to prove service of notice.

4. Courts below committed error in convicting the revision petitioner under Section 138 of the N.I.Act and the appellate Court committed an error in directing this revision petitioner to pay the entire amount of legally unenforceable debt.

5. On 21.09.2005 in Crl.M.P.No.2014 of 2005 this Court suspended the execution of sentence and released the convict on bail. Thereafter, the revision petitioner or his learned counsel never prosecuted this revision. At one point of time even warrants were issue but they were unserved as the revision petitioner could not be traced. Despite granting opportunities, no arguments were advanced on behalf of the revision petitioner. Therefore, in terms of Section 403 Cr.P.C. the revision is to be disposed of in accordance with law.

6. Respondent No.1 was the complainant before the Courts below. No arguments were made and were submitted on behalf of respondent No.1. State is shown as respondent No.2 and learned Special Assistant Public Prosecutor argued saying that the case be disposed of in accordance with law.

7. The point that falls for consideration is:

“Whether the impugned judgments are irregular or illegal or improper requiring any interference?

8. Point:

For the accusations leveled against him, the plea of the accused was one of not guilty. To prove the accusation, complainant testified as PW.1. The Manager of the bank where the accused has been maintaining an account testified as PW.2. The Bank Manager of the bank of the complainant testified as PW.3. Defence did not adduce any oral evidence.

9. The case speaks about borrowal of money twice on part of the accused from the complainant. In evidence of it Exs.P.1 and P.2 pronotes were marked. The allegation is that towards repayment of that debt, the accused had given a cheque dated 13.05.2000. That cheque is Ex.P.3. Allegation was that on presentation of this cheque it was returned unpaid with an endorsement that funds in the account of the accused were insufficient to honour the cheque. To establish that, the memos issued by both banks are marked as Exs.P.4 and P.5. Demanding the accused to repay the cheque amount, the complainant got issued Ex.P.6-legal notice. As per the evidence this notice was dispatched by way of certificate of posting under Ex.P.8 and a copy of the notice was also sent to the address of the accused by way of registered post and that envelope was retur