APHC010607162016 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3367]

(Special Original Jurisdiction)

FRIDAY ,THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE V SRINIVAS CRIMINAL REVISION CASE NO: 88/2016 Between:

Velu, ...PETITIONER AND The State Of Andhra Pradesh and Others ...RESPONDENT(S)

Counsel for the Petitioner:

V SURENDRA REDDY Counsel for the Respondent(S):

1. PRAKASH C

2. PUBLIC PROSECUTOR (AP) The Court made the following:

JUDGMENT:

Assailing the judgment dated 21.03.2014 in Crl.A.No.66 of 2011 on the file of the Court of learned VIII Additional Sessions Judge at Chittoor, confirming the conviction and sentence passed against the accused by the judgment dated 17.02.2011 in S.T.C.No.47 of 2006 on the file of the Court of learned Judicial Magistrate of First Class at Kuppam, 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 06.01.2016 and the sentence imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.122 of 2016.

3. The shorn of necessary facts are that:

i). In the month of July 2006, the accused availed loan of Rs.60,000/- from the complainant for opening of a new Diamond Showroom and promised to repay the same. On that, he issued Ex.P.1 cheque dated 23.08.2006 for Rs.60,000/- towards repayment of the said loan amount. 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.2 cheque return memo, dated 09.10.2006.

iv). Then, the complainant got issued Ex.P.4 notice dated 26.10.2006 to the accused. Even after receiving the receipt of the same under Ex.P.6 acknowledgment, the accused did not make any payment and kept quiet.

Hence, the complaint.

4. The complaint was taken on file and numbered as S.T.C.No.47 of 2006 on the file of the Court of learned Judicial Magistrate of Fist Class at Kuppam, after full-fledged enquiry, vide judgment dated 17.02.2011, found the accused guilty of the offence under Section 138 of N.I.Act and sentenced him to undergo simple imprisonment for four (4) months and also to pay an amount of Rs.60,000/- towards compensation to the complainant under Section 357 Cr.P.C.

5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.66 of 2011, before the Court of learned VIII Additional Sessions Judge at Chittoor and the same was dismissed, vide judgment dated 21.03.2014, by confirming the conviction and sentence imposed against the accused.

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

7. Heard Sri V.Surendra Reddy, learned counsel for the petitioner/accused.

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. The only contention raised by the learned counsel for the appellant is that the first Appellate Court decided the appeal on merits only in the absence of petitioner, thereby, the same is liable to be set aside.

10. The said contention has no legs to stand, since, on categorical observations made by the first Appellant Court that “the accused stalled the proceedings for several years, he is remained absent from 06.9.2011 onwards and counsel for the accused on record reported no instructions on 18.03.2014, thereby, the accused has deliberately avoided to attend the Court”, decided the appeal on merits by appreciating the material on record.

11. To prove the case, the complainant examined himself as P.W.1 and got marked Exs.P.1 to P.5 before the trial Court. In his evidence, he reiterated the facts stated in the complaint. Except the bare su