The court upheld the conviction under Section 138 of the Negotiable Instruments Act but modified the excessive sentence to time already served, emphasizing limitations on revisional jurisdiction.

ORDER :

The Revision has been preferred under Sections 397 & 401 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.,’) against the judgment in Criminal Appeal No.128 of 2006, dated 26.12.2008 passed by the learned Sessions Judge, Vizianagaram, confirming the judgment passed by the learned Special Judicial Magistrate of First Class (Excise), Vizianagaram in C.C.No.247 of 2005 dated 07.09.2006 for the offence under Section 138 of Negotiable Instruments Act, 1872 (for brevity ‘the N.I.Act’) sentencing the revisionist to undergo Rigorous Imprisonment for a period of three months and to pay a fine of Rs.300/-, in default, Simple Imprisonment for a period of one month.

2. I have heard the arguments of learned counsel for the revisionist, learned counsel for the second respondent and the learned Assistant Public Prosecutor appearing for respondent No.1.

3. Mr. G.V.S. Mehar Kumar, learned counsel for the petitioner/revisionist while reiterating the grounds of the revision, submitted that when the alleged cheque amount was only Rs.1,860/- awarding three months Rigorous Imprisonment was too harsh and unjust to the facts of the case and it was highly excessive to the gravity of the amount involved in the alleged cheque; complainant could not prove his version; the Courts below failed to observe the cross-examination of PW1, for a question posed by the counsel for the petitioner about the presentation of the cheque, the 2^nd respondent categorically deposed in his cross examination that they presented the cheque for collection of loan amount of Rs.26,000/- for purchase of T.V. and washing machine and the 2^nd respondent did not show any document; and PW1 also deposed in cross examination that the petitioner presented 24 cheques for assurance only; the courts below failed to observe that the 2^nd respondent failed to prove that the debt in dispute is a legally enforceable debt as the 2^nd respondent is silent in filing the receipts, warrant cards and bills or invoice for the T.V. and washing machine sold to the petitioner.

4. Per contra, Mr.O.Uday Kumar, learned counsel for second respondent vehemently argued that the learned Magistrate and also the Appellate Court rightly appreciated the evidence on correct perspective and no need to interfere with the order passed by the learned Magistrate. There are concurrent findings about the guilty of the revisionist and the revisionist was failed to discharge his burden as contemplated under the presumptions of ‘the N.I.Act’. As there are no material irregularities or error of law apparent on the face of the record, the judgment of the learned Sessions Judge, Vizianagaram is not required to be interfered and set aside and thus, urged to dismiss the revision.

5. Ms.Akhila Naidu, learned Assistant Public Prosecutor supported the version of the learned counsel for the second respondent and urged to dismiss this revision as it is not maintainable.

6. Thoughtful consideration is bestowed on the arguments advanced. I have perused the material on record.

7. Now the point for consideration is:

Whether the judgment in Crl.A.No.128 of 2006 dated 26.12.2008, passed by the learned Sessions Judge, Vizianagaram, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?

8. It is apposite to refer the Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar, [(2002) 6 SCC 650], wherein at Paragraph Nos.12 & 13 it is held as under:

“12. … We have carefully considered the material on record and we are satisfied that the High Court was not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the information under Section 401 of the Code of Criminal Procedure, Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, whic