IMPORTANT POINT
Dishonour of cheque – Merely because amount advanced by a lender was not shown in his income tax returns same would not disentitle him from recovering amount from his borrower – Non-disclosure of amount may entail consequences for party acting in breach of Income Tax law but, borrower cannot get any advantage of it.

ORDER

This Criminal Revision case is filed under Sections 397 and 401 of Criminal Procedure Code (for short, ‘Cr.P.C.’), assailing the judgment dated 21.03.2017 passed in Criminal Appeal No.35 of 2016 by the learned VII Additional District and Sessions Judge, Vijayawada, whereby and whereunder the judgment dated 28.01.2016 passed in C.C.No.674 of 2015 by the learned II Special Magistrate, Vijayawada convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, was confirmed.

2. The Criminal Revision Petitioner was the accused and the 1st respondent was the complainant in C.C.No.674 of 2015. The trial court convicted the accused and assailing the same he had preferred Criminal appeal and the same having been dismissed, he preferred this Criminal Revision Case.

3. For sake of convenience, the parties, hereinafter will be referred to with their status in C.C.No.674 of 2015, i.e. to say the 1st respondent herein will be referred to as, ‘the complainant’ and the criminal revision petitioner will be referred to as, ‘the accused’.

4. The complainant filed a complaint under Sections 190 and 200 of Cr.P.C. to punish the accused for the offence under Sections 138 and 142 of the Negotiable Instruments Act (for short, ‘N.I. Act’) and to award compensation under section 357 of Cr.P.C. It is the case of the complainant that, the accused borrowed Rs.12,00,000/- from him on 25.11.2011 for his business expenses and evidencing the same executed a promissory note agreeing to repay the debt with interest at the rate of 24% p.a. Subsequently, the accused issued a cheque dated 27.05.2013 for Rs.10,00,000/- towards partial discharge of the debt due under the aforesaid promissory note. When presented, the cheque was returned dishonoured with an endorsement ‘funds insufficient’. Pursuantly, the complainant got issued a legal notice dated 15.06.2013 by registered post and certificate of posting. The accused received the same, but he neither replied nor paid the amount. Hence, the complainant filed the complaint.

5. In response to the summons, the accused entered his appearance and denied the contents of the complaint.

6. During the course of trial, to substantiate his case, the complainant examined himself as P.W.1 and exhibited Exs.P1 to P10. No evidence, either oral or documentary, is adduced by the accused.

7. The trial Court, upon hearing both sides, having held that the complainant had capacity to lend the amount covered under the promissory note and that the complainant could prove that there is legally enforceable debt and that the accused, who did not deny his signature on Ex.P2 cheque, failed to discharge his burden under Section 139 of the N.I. Act, found the accused guilty for the offence punishable under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for six (06) months and pay compensation of Rs.19,50,000.

8. Aggrieved thereby, the accused preferred Criminal Appeal No.35 of 2016 contending that the trial Court failed to appreciate the evidence on record in proper perspective and was misguided by presumptions and surmises and the trial Court failed to consider that on the date of Ex.P1 promissory note, the complainant had bank balance of Rs.968-12 ps. and that Exs.P6 and P7 do not prove the capacity of the complainant and they show that the complainant had no savings on the relevant date of alleged lending and Form-16 do not show any other source of income for the complainant and thus the trial Court grossly erred in coming to the conclusion that the complainant has proved that there is legally enforceable debt. Hence, prayed to allow the appeal.

9. The learned VII Additional District & Sessions Judge, Vijayawada, upon hearing both the counsel and upon perusal of the evidence and material available on record, dismissed the appeal confirming the conviction and sentence imposed by the trial Court, holding that the accused failed to raise a defence to rebut the pr