The presumption under Sections 118 and 139 of the Negotiable Instruments Act affirms that a cheque is issued to discharge a legally enforceable debt, which the accused failed to rebut.

ORDER:

Assailing the judgment dated 24.10.2016 in Crl.A.No.135 of 2015 on the file of the Court of learned I Additional Metropolitan Sessions Judge at Visakhapatnam, confirming the conviction passed against the accused by the judgment dated 23.03.2015 in C.C.No.480 of 2014 on the file of the Court of learned Special Magistrate-IV at Visakhapatnam, for the offence under section 138 of Negotiable Instruments Act (hereinafter referred to as “N.I.Act”), the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973 .

2. The revision case was admitted on 01.11.2016.

3. The shorn of necessary facts are that:

i). On 02.03.2009, the complainant borrowed an amount of Rs.45,000/- from the accused by pledging gold ornaments of his wife weighing 6.4 tulas. Later the complainant discharged the pledged amount with interest and requested the accused to return the said gold ornaments, but the accused postponed the same on one pretext or other. Then the complainant came to know that the brothers of the accused pledged the said gold ornaments to one Srinivas for Rs.65,000/-. Thereby, the complainant submitted report to Police on 18.11.2010. On that accused admitted his guilt and promised to pay Rs.2,00,000/- towards worth of said gold ornaments and as part payment, he issued Ex.P.3 cheque for Rs.1,20,000/- dated 01.06.2011 drawn on State Bank of India, Maharanipeta, Visakhapatnam. When the complainant presented the said cheque for collection through his banker, the same was returned with an endorsement that ‘funds insufficient’ under Ex.P.4 cheque return memo, dated 27.06.2011.

iv). Then, the complainant got issued Ex.P.5 notice dated 29.06.2011 to the accused. Even after receiving receipt of the same under Exs.P.6 and P.7 acknowledgments, the accused did not make any payment and kept quiet. Hence, the complaint.

4. The complaint was taken on file and numbered as C.C.No.480 of 2014 on the file of the Court of learned Special Magistrate-IV at Visakhapatnam, after full-fledged enquiry, vide judgment dated 23.03.2015, found the accused guilty of the offence under Section 138 of N.I.Act and sentenced him to undergo simple imprisonment for six (6) months and also to pay fine of Rs.5,000/-, in default to suffer simple imprisonment of one month.

5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.135 of 2015, before the Court of learned I Additional Metropolitan Sessions Judge at Visakhapatnam and the same was dismissed, vide judgment dated 24.10.2016, by confirming the conviction against the accused, however, altered the sentence towards fine of Rs.2,40,000/- i.e., double the cheque amount, in default to suffer simple imprisonment for six (6) months and the entire fine amount shall be given to the complainant under Section 357(1)(a&b) of Cr.P.C . to defray the expenses and to mitigate the loss sustained by the complainant.

6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.

7. Heard Sri R. Siva Sai Swarup, learned counsel for the petitioner/accused and Sri K. Adibabu, learned counsel for the 2^nd respondent/complainant.

8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?”

9. Sri R.Siva Sai Swarup, learned counsel for the petitioner/accused submits that there is no legally enforceable debt between the accused and complainant; that the first Appellate Court erred in imposing fine of Rs.2,40,000/- against the accused; that the Courts below failed to appreciate the material on record in proper perspective and erroneously convicted the accused, thereby, prays to consider the present revision.

10. Sri K.Adibabu, learned counsel for the 2^nd respondent/complainant submits that the material placed on record categorically shows th