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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
N. TUKARAMJI, J.
R. Vimala Devi - Petitioner
Versus
The State of A.P. & Another - Respondents
Criminal Revision Case No. 57 of 2008
Decided On : 07-06-2022
Negotiable Instruments Act - Conviction under Section 138 - 138 - The court discussed the essential aspects of the complaint and the presumptions under Section 139 of the NI Act. The court also referred to the principles laid down by the Hon’ble Supreme Court in Rangappa v. Srimohan, AIR 2010 SC 1898, emphasizing the existence of a legally enforceable debt and the standard of proof required to rebut the presumption.
Fact of the Case:
The appellant/accused challenged the judgment of conviction and sentence under Section 138 of the Negotiable Instruments Act, 1885. The case involved a loan transaction, issuance of a cheque, its dishonor, and subsequent legal notices.
Finding of the Court:
The court found that the essential aspects of the complaint were established, and the presumptions under Section 139 of the NI Act were applicable. The court also emphasized the standard of proof required to rebut the presumption, as laid down by the Hon’ble Supreme Court.
Issues: The issues involved determining the guilt of the accused under Section 138 of the NI Act and the propriety of the impugned judgment.
Ratio Decidendi: The court held that the complainant proved the essential aspects of the complaint, and the presumptions under Section 139 of the NI Act applied. The court also emphasized the standard of proof required to rebut the presumption, as laid down by the Hon’ble Supreme Court.
Final Decision: The court concluded that the revision failed on merit and dismissed the appeal, finding no error in the impugned judgment.
ORDER :
Challenging the propriety of the judgment dated 12.11.2007 in Crl.A.No.131 of 2005 on the file of the Sessions Judge, Warangal, the appellant/accused filed this revision.
2. In the impugned judgment, the appellate Court confirmed the judgment of conviction and sentence passed by the I Additional Judicial Magistrate of First Class, Warangal in C.C.No.112 of 2004 dated 31.10.2005 wherein the revision petitioner/appellant/accused was convicted for the offence under Section 138 of the Negotiable Instruments Act, 1885 (for short the NI Act) and sentenced to pay a fine of Rs.3,000/- in default to suffer simple imprisonment for a period of three months.
3. The brief facts of the case are that the de facto complainant used to supply milk to the revision petitioner and as her husband was the student of the revision petitioner. In such acquaintance, on 06.07.2002 the revision petitioner borrowed an amount of Rs.1,10,000/- and executed demand promissory note/Ex.P-2 with an agreement to repay the amount with interest at 24% per annum. Thereafter, as neglected repayment, on persistent demands, the petitioner issued cheque bearing No.232286 dated 09.01.2004 for Rs.1,50,000/- drawn on Vysya Bank Ltd.,Hanamkonda Branch, towards the loan dues. The complainant on the same day presented the cheque in Central Bank of India, Warangal, but it was dishonoured on 10.01.2004 under cheque return memo/Ex.P-4 on the ground of ‘no account’ and the cheque was returned on 16.01.2004. Thereupon, the 2nd respondent/complainant got issued statutory notice/Ex.P-5 vide postal receipt/Ex.P-6 and the same was served under acknowledgment/Ex.P-7. The respondent got issued reply notice dated 09.02.2004/Ex.P-8 with false averments. Thus the complaint.
4. During trial, the complainant got examined herself as PW-1 and marked letter dated 06.01.2004 said to have been written by the accused/Ex.P-1, letter dated 06.01.2004/Ex.P-2, cheque No.0232286 dated 9.1.2004/Ex.P-3, cheque return memo dt.10.01.2004/Ex.P-4, legal notice dated 16.01.2004/Ex.P-5, postal receipt No.1521/Ex.P-6, postal acknowledgment/Ex.P-7 and reply notice/Ex.P-8 and examined Bank Manager as PW-2.
5. On behalf of the defence, the revision petitioner/accused got examined herself as DW-1 and got marked Exs.D-1 to D-3.
6. The trial Court after examining the material on record held that the ingredients of the offence punishable under Section 138 of the NI Act have been established and passed the impugned judgment of conviction and sentence.
7. Aggrieved thereby the revision petitioner preferred the appeal and the appellate Court passed the impugned judgment confirming the judgment of the trial Court.
8. Heard the learned counsel for the revision petitioner and the 2nd respondent did not choose to appear for hearing.
9. In this revision, the learned counsel for the revision petitioner pleaded that as the courts below opined that there is interpolation/overwriting in the year portion of the Ex.P-1 letter, should have held that the complaint itself vitiates. Further, the Courts below ought to have observed that the cheque was not issued towards legally enforceable debt. The infirmities in evidence are insufficient to bring home the guilt of the accused.
10. The points that arise for determination are :
(i) Whether the guilt of the revision petitioner is established beyond all reasonable doubt for the offence under Section 138 of the NI Act?
(ii) Whether there is any impropriety in the impugned judgment and needs any interference in the revision?
11. To prove the guilt under Section 138 of the NI Act, the complainant must prove that the accused had issued disputed cheque towards legally enforceable debt and the same was returned by the bank unpaid and the accused failed to clear the cheque amount even after due notice.
12. The second respondent/complainant as PW-1 deposed that the revision petitioner/accused borrowed Rs.1,50,000/- and executed Ex.P-2 document and in pursuance thereof cheque/Ex.P-3 was issued.
13. The re
AI
The High Court's revisional jurisdiction is supervisory in nature and limited to correcting legal improprieties or perversity in findings; it cannot be used to reappreciate evidence where trial and a....
In a prosecution under Section 138 of the NI Act, once the execution of a cheque is admitted or proven, a presumption under Section 139 arises in favour of the complainant, and the burden shifts to t....
Under S. 139 of the Negotiable Instruments Act, once the execution of a cheque is established, a rebuttable presumption of a legally enforceable debt arises, and mere suggestions by the accused witho....
The statutory presumption of liability under the Negotiable Instruments Act remains unless the accused provides adequate rebuttal evidence, which was not done in this case.
In a Section 138 N.I. Act prosecution, once the execution of a cheque is proven, the statutory presumption under Section 139 shifts the burden to the accused; revisional courts will not interfere wit....
The statutory presumptions under Sections 138, 118, and 139 of the Negotiable Instruments Act are critical in dishonour cases, determining the burden of proof.
The court's revisional jurisdiction is limited to correcting illegality and perversity; it cannot re-appreciate evidence as an appellate court, and the statutory presumption under Section 139 of the ....
The admission of issuing a cheque creates a presumption under Section 139 of the N.I. Act, which must be rebutted by the accused to avoid liability.
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....
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