APHC010452322022 IN THE HIGH COURT OF ANDHRA PRADESH ATAMARAVATI [3521]

(Special Original Jurisdiction)

TUESDAY,THE THIRD DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 748/2022 Between:

1.BURRAMSETTI VENKATARAMANA, S/O MALAKONDAIAH, AGED ABOUT 51 YEARS, R/O D.NO.20-12-65, SUKKARA PEDDAIAHGARI VEEDHI, BHIMAVARAM, WEST GODAVARI DISTRICT.

...PETITIONER AND

1.GRANDHI BALAJI, S/O VENKATA KRISHNAIAH, AGED 40 YEARS, R/O D.NO.2-11-61/19, RAMARAJU THOTA, BHIMAVARAM, WEST GODAVARI DISTRICT.

2.THE STATE OF ANDHRA PRADESH, REP. BY ITS PUBLIC PROSECUTOR HIGH COURT OF A.P.,ATAMARAVATI ...RESPONDENT(S):

Counsel for the Petitioner:

1.B CHANDRA SHEKHAR Counsel for the Respondent(S):

1.PUBLIC PROSECUTOR (AP)

2.YASWANTH GADE The Court made the following:

Dr.YLR,J

ORDER

The Criminal Revision Case has been preferred under Sections 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) against the judgment dated 04.08.2022 in Crl.A.No.440 of 2019 passed by the learned III Additional District and Sessions Judge, Bhimavaram confirming the judgment dated 30.10.2019 in C.C.No.112 of 2018 passed by the learned Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Bhimavaram, finding the revisionist guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I.Act.,’) and convicted and sentenced the Revisionist to undergo simple imprisonment for a period of eight months.

2. Sri B.Chandrasekhar, learned Counsel for the Petitioner while reiterating the grounds of revision submits that the impugned conviction and sentence are vitiated by grave errors of law and fact, the learned Trial Court having failed to undertake a judicious appraisal of the evidence on record. The learned Trial Court has proceeded on a mechanical invocation of the statutory presumption under Section 139 of ‘the N.I.Act.,’ without appreciating that such presumption is rebuttable and must yield to cogent circumstances demonstrating improbability of liability. The complainant’s own pleadings disclose that the alleged loan carried interest at 24% per annum, thereby rendering the liability on the date of issuance of the cheque at Rs.10,24,000/-, Dr.YLR,J whereas the cheque was drawn only for Rs.10,00,000/-. This internal contradiction, unexplained and unrectified, strikes at the root of the complainant’s case and renders the alleged debt not legally enforceable on the date of dishonour. The learned Trial Court’s omission to address this inconsistency constitutes a misdirection in law and a miscarriage of justice.

3. It is further urged that the statutory requirement of service of demand notice, which is the sine qua non for the accrual of cause of action under Section 138 of ‘the N.I.Act.,’ has not been satisfied. The complainant relied upon a track consignment purportedly showing receipt on 05.01.2018, but that document was never marked as an exhibit. Instead, Exhibit P5 is a postal endorsement dated 08.03.2019, recording delivery of the registered article on 22.01.2018 “to mother of addressee.” The reliance on this endorsement is wholly untenable, as the Petitioner’s mother had expired on 04.09.2017, rendering such service a legal impossibility. The learned Trial Court’s acceptance of this defective proof of service, and its consequent finding of compliance with the statutory notice requirement, is perverse and unsustainable. In the absence of valid service, the statutory preconditions under the proviso to Section 138 of ‘the N.I.Act.,’ stand unfulfilled, and the conviction cannot be maintained.

4. Learned Counsel for the Petitioner would also submit that the learned Trial Court erred in elevating the cheque, absent any promissory note, loan Dr.YLR,J agreement, or acknowledgment, to the status of unimpeachable proof of liability between parties who had no demonstrated acquaintance or commercial dealings. The presumption under Section 139 of ‘the N.