Judgment:
This Criminal Revision Case is filed by the petitioner – accused, R. Rajendran, assailing the judgment in Criminal Appeal No.8 of 2007 dated 17-03-2008 passed by the learned Special Judge for trial of offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – cum - VI Additional Metropolitan Sessions Judge, Secunderabad confirming the conviction and sentence passed against him (accused) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1988 (for short “NI Act”) in C.C. No.762 of 2002 dated 02/05-01-2007 passed by the learned XI Additional Chief Metropolitan Magistrate, Secunderabad.
2. The revision petitioner is accused, respondent No.1 is the complainant and respondent No.2 is the State.
3. For the sake of convenience, the petitioner and respondent No.1 are hereinafter referred to as accused and complainant respectively.
4. The case of the complainant, in brief, is as under:
In the month of February and March 2001, accused approached the complainant for financial assistance for his business needs and the complainant extended hand loan in installments, totalling to Rs.6,45,000/- and the accused promised to repay the same by the end of December 2001 and issued three cheques bearing Nos.695352, 695353 and 695350 dated 18-12-2001, 19-12-2001 and 20-12-2001 for Rs.1,85,000/-, Rs.1,85,000/- and Rs.2,75,000/- respectively of Karur Vysya Bank Limited, Chennai Branch towards discharge of the handloan. However, when the cheques were presented for encashment, they were returned dishonoured for the reason of “insufficient funds” vide cheque return memos dated 08-04-2002 and 09-04-2002. Therefore, the complainant got issued demand notice to the accused on 19-04-2002 and the accused in spite of receipt of the notice neither paid the amount nor issued reply. Hence, he was constrained to approach the Court against the accused by filing private complaint for the offence under Section 138 of NI Act.
5. When the trial Court examined the accused under Section 251 Cr.P.C., he denied the case against him and pleaded not guilty.
6. To substantiate his case, the complainant got himself examined as PW.1 and got marked Exs.P-1 to P-7 documents. After closure of the evidence on behalf of the complainant, when the accused was examined under Section 313 Cr.P.C., he denied the incriminating material against him, but no oral or documentary evidence was adduced on his behalf.
7. However, the plea of the accused is that he issued signed blank cheques to the complainant in an immovable property transaction and that in spite of closure of the said property transaction by executing a registered sale deed after payment of the entire sale consideration, the complainant misused the cheques in question by filling those signed blank cheques and filed this case for wrongful gain.
8. The trial Court after an elaborate consideration of both oral and documentary evidence available on record, found the accused guilty of the offence punishable under Section 138 of NI Act holding that the accused failed to establish his case of signed blank cheques theory and that he also failed to establish that the cheques in question were not issued towards any legally enforceable debt, and accordingly convicted and sentenced him to undergo simple imprisonment for one (1) year and to pay a fine of Rs.10,000/-, and in default of payment of fine, to suffer simple imprisonment for a period of three months and ordered to pay Rs.5,000/- out of the fine amount to the complainant towards defraying expenses. Aggrieved by the same, accused preferred Criminal Appeal No.8 of 2007 before the learned Special Judge for trial of offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – cum - VI Additional Metropolitan Sessions Judge, Secunderabad. The learned Sessions Judge after re-appreciating the entire oral and documentary evidence on record dismissed the appeal confirming the judgment of the trial Court. Assailing the same, accused preferred this revision.
9. This revision is preferred on 11-06-2008 and this Court while admitting the revision on the same day suspended the sentence of imprisonment imposed on the accused directing to enlarge him on bail vide Crl.R.C.M.P. No.1094 of 2008. Thereafter, the matter came up for hearing on 01-07-2011 and underwent several adjournments. On 02-04-2012, as there was no representation and also for previous three occasions by then on behalf of the accused, observing that the accused is not evincing any interest to proceed with the case, recalled the order of suspension of sentence of imprisonment and dismissed the suspension petition ordering the trial Court to issue warrant against the accused to serve out the remaining sentence. Aggrieved of the same, seeking to recall the warrant issued against the accused and to suspend the order of this Court dated 02-04-2012 passed in Criminal R.C.M.P. No.1094 of 2008 by restoring the order dated 11-06-2008, accused filed Criminal R.C.M.P. No.1732 of 2012 and the same is coming up for hearing now. At this stage, the Bench hearing the revision observing that the complainant-in-person is continuously interrupting the proceedings and smooth functioning of the Court, directed to post it before any other Court. Thus, the matter is before this Court.
10. As seen from the record, on number of occasions there was no representation for the accused, which shows that the accused is not evincing any interest to proceed further with the matter after obtaining the bail, as such, the main revision itself is taken up for hearing instead of Criminal R.C.M.P. No.1732 of 2012, which is filed seeking to recall the warrant issued against the accused by the trial Court and to suspend the order of this Court dated 02-04-2012.
11. Heard the learned counsel for the accused and Sri T.S.V. Prasad, Advocate, representing the learned Additional Public Prosecutor, and perused the material available on record. None appeared for the complainant, who is contesting the matter as party-in-person.
12. Now the contention of the learned counsel for the accused is that both the Courts below erroneously found the accused guilty of the offence relying on the evidence of PW.1 and Exs.P-1 to P-7 documents without there being any corroborative evidence to the same and that the Courts below failed to see that the complainant failed to establish his case beyond reasonable doubt. Further, the Courts below failed to see that except the self-serving statement of PW.1, there is no other evidence to prove that the cheques in question were issued by the accused to the complainant towards discharge of legally enforceable debt. It is also contended that the accused has not received any legal notice from the complainant and the signature on Ex.P-7 acknowledgement is not of accused and that the cheques in question were issued by the accused to the complainant in an immovable property transaction, however both the Courts below disbelieving the case of the accused, erroneously found him guilty of the offence, as such, he may be acquitted of the same setting aside the conviction and sentence imposed against him. In support of his case, learned counsel relied on the decisions of the Apex Court in M.D. Thomas v. P.S. Jaleel (2010(2) ALT (Crl.) 95 (SC), C. Antony v. K.G. Raghavan Nair (2003) 1 SCC 1), Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54), andthis Court in Avon Organics Ltd., Hyd. V. Poineer Products Ltd., New Delhi (2003(2) ALD (Crl.) 219 (AP), Shaik Ayaz v. Abdul Khader (2012(1) ALT (Crl.) 110 (A.P.), Shri Taher N. Khambati v. M/s. Vinayak Enterprises, Secunderabad (1995 Crl.L.J. 560), Uplanche Mallikarjun v. Ratkanti Vimala (1997 Crl.L.J. 4237), M/s. Swastik Coaters Pvt. Ltd. v. M/s. Deepak Brothers (1997 Crl.L.J. 1942), Nagisetty Nagaiah v. State of A.P. (2004 Crl.L.J. 4107), Kishan Bodhankar v. M.A. Hameed 1997(1) ALD (Crl.) 787 (AP), Laxminivas Agarwal v. Andhra Semi Conductors Pvt. Ltd. (2006(1) ALD (Crl.) 300 (AP)and P. Narasimha Reddy v. D.L. Narasimha Rao (2004(2) ALD (Crl.) 303 (AP)and YadlapalliSatyam v. K. Seetharamanjaneyulu (2005(1) ALD (Crl.) 473 (AP), and also an unreported decision of this Court in AdithyaAlkalods Ltd. v. Ncc Finance Ltd.(Crl. Rev. Case No.971 of 1999 dated 28-03-2000).
13. Now the only point that arises for consideration in this revision is whether the impugned judgment suffers from any error or infirmities?
POINT:
14. It is an admitted fact that accused has issued the cheques in question to the complainant. The case of the complainant is that accused issued the said cheques to him in December 2001 towards legally enforceable debt of Rs.6,45,000/- which was taken by him (accused) as handloan in February and March 2001 promising to repay the same by the end of December 2001. On the other hand, the case of the accused is that he issued the three signed blank cheques in question to the complainant in an immovable property transaction, but in spite of closure of said transaction, complainant did not return those cheques and by filling those blank cheques, he foisted this false case for wrongful gain. However, it is settled law that when once issuance of the cheques in question and signature on them are admitted to be true, even though blank cheques were issued, the burden lies on the accused as to why he issued the same. For which, the case of the accused is that he issued the cheques in question in an immovable property transaction. But, he failed to prove the same by adducing any oral or documentary evidence in support of his case. In the circumstances, there is no other option for the Courts below except to accept the case of the complainant, who got examined himself as PW.1 and produced Exs.P-1 to P-7 as corroborative evidence which establishes his case clearly. Further, as observed by the lower appellate Court, the civil suit in O.S. No.12575 of 1995 filed by the accused against the complainant before the Additional Civil Judge, Madras for specific performance was compromised in 2001 and a registered sale deed was also executed on 22-10-2001 in respect of the immovable property transaction and the same was prior to issuance of the cheques in question, which were issued on 18, 19 and 20th December 2001, as such, it is evidently clear that the case of the accused that he issued signed blank cheques in an immovable property transaction is false and concocted for the purpose of defence but nothing else. Further, if he has really not issued the cheques in question towards any legally enforceable debt, he must have entered the witness box or got someone entered and produced the documents in support of his case, which he failed to do so.
15. The next contention to be considered is there is no corroborative evidence to support the evidence of PW.1 and Exs.P-1 to P-7. When the accused himself admits issuance of the cheques in question and also not disputing his signatures on them, there is no necessity of any corroborative evidence, since the burden is on the accused to prove as to why he issued those cheques and not towards any legally enforceable debt, which he failed to discharge. In view of the same, it is also clear that the contention of the accused that he has not received Ex.P-6 legal notice is also false and the same is pleaded only to defeat the case of the complainant. Hence, the statement of the complainant as PW.1 in his cross-examination that he does not know as to who received Ex.P-6 notice and who signed on Ex.P-7 postal acknowledgement do not come to the rescue of the accused.
16. Coming to the decisions of the Apex Court and this Court referred surpa, on which reliance is placed by the learned counsel for the accused, they are not applicable to the present case since the facts and the issues involved in those cases are totally different to the facts and the issues involved in this case.
17. Thus, there is no error or infirmity in the judgment impugned warranting interference of this Court. In the circumstances, this Court is of the view that the trial Court rightly found the accused guilty of the offence under Section 138 of NI Act and convicted and sentenced him for the said offence and the same is rightly confirmed by the lower appellate Court as found supra. The point is accordingly answered.
18. Accordingly, the Criminal Revision Case is dismissed confirming the judgment in Criminal Appeal No.8 of 2007 dated 17-03-2008 passed by the learned Special Judge for trial of offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – cum - VI Additional Metropolitan Sessions Judge, Secunderabad which was filed against the conviction and sentence passed in C.C. No.762 of 2002 dated 02/05-01-2007 by the learned XI Additional Chief Metropolitan Magistrate, Secunderabad. The trial Court is directed to take necessary steps against the accused immediately for serving out the remaining sentence. The miscellaneous applications, if any, pending are closed.