| SooperKanoon Citation | sooperkanoon.com/445964 |
| Subject | Banking;Criminal |
| Court | Andhra Pradesh High Court |
| Decided On | Mar-03-2003 |
| Case Number | Criminal Revision Case No. 3 of 2001 |
| Judge | Dubagunta Subrahmanyam, J. |
| Reported in | 2003(3)ALT8 |
| Acts | Negotiable Instruments Act, 1881 - Sections 138 |
| Appellant | Gundepaneni Nagabushanam |
| Respondent | T. Eswar Rao and anr. |
| Appellant Advocate | S.V.R. Subrahmanyam, Adv. |
| Respondent Advocate | G. Venkateswara Rao, Adv. for Respondent No. 1 and ;Public Prosecutor for Respondent No. 2 |
| Disposition | Petition allowed |
Dubagunta Subrahmanyam, J.
1. This revision is filed against the judgment dated 4-1-2001 in Crl.A.No. 67 of 2000 on the file of 1st Additional Metropolitan Sessions Judge, Visakhapatnam confirming the conviction and sentence imposed against the accused under Section 138 of the Negotiable Instruments Act (for short 'the Act') in C.C. No. 193 of 1998 on the file of V Metropolitan Magistrate, Visakhapatnam.
2. The accused issued a cheque Ex.P-2 for Rs. 1,29,500/-. The complainant presented the cheque Ex.P-2 in the bank for collection. The cheque was dishonored on the ground of 'no funds'. Thereafter, after issuing notice to the accused and on his failure to pay the amount within the stipulated time the complainant prosecuted the accused in C.C. No. 193 of 1998 for the offence punishable under Section 138 of the Act. The prosecution examined P.Ws.l to 3 and marked Exs.P-1 to P-12. The father of the accused was examined as D.W.1. No documentary evidence was adduced on behalf of the accused. On a consideration of oral and documentary evidence on record, the learned Magistrate by his judgment dated 19-6-2000 found the accused guilty, convicted and sentenced him to undergo simple imprisonment for six months and also to pay a fine of Rs. 5,000/- for the offence punishable under Section 138 of the Act. The accused preferred an appeal before I Additional Sessions Judge, Visakhapatnam. The learned Sessions Judge concurred with the findings of the Magistrate and dismissed the appeal. Aggrieved thereby the accused preferred the present revision petition.
3. According to the averments in the complaint, at the instance of the accused and his father D.W.1, the complainant carried out certain earth work etc. in the lands belonging to the accused and his father, during the period from 31-5-1997 to 20-6-1997, they became liable to pay to the complainant a total sum of Rs. 1,39,500/-, after commencement of the work a cheque was issued for Rs. 50,000/- on 13-6-1997, the said cheque bounced and thereafter the accused paid a sum of Rs. 10,000/- and after deducting the said amount the accused and his father became liable to pay a sum of Rs. 1,29,500/-. It is to be stated that the alleged cheque dated 13-6-1997 for Rs. 50,000/- is not the subject matter of the present prosecution. According to the complainant, the accused issued a cheque Ex.P-2 dated 31-1-1998 for Rs. 1,29,500/- and as it bounced on presentation in Bank, the accused is liable for punishment under Section 138 of the Act.
4. Ex.P-1 is an important document produced by the complainant. It is letter addressed to the father of the accused. The letter is undated. In the said letter it is stated that the father of the accused is liable to pay Rs. 1,29,500/- after deducting the advance amount of Rs. 10,000/-. According to the complainant, this letter was received and acknowledged by accused on behalf of his father. As per the recitals in Ex.P-1, it is the father of the accused, who is liable to pay the said sum of Rs. 1,29,500/- to the complainant. Regarding this letter the complainant as P.W.1. in his chief-examination deposed that the said letter was addressed to the accused, it was received and acknowledged by the father of the accused and he handed it over to his supervisor. The said evidence is contra to the recitals in Ex.P-1.
5. According to the accused, the cheque Ex.P-2 was obtained from him by the complainant and his henchmen, by force. There is one vital document produced by the complainant himself in this regard. It is a lawyer's notice Ex.P-6 issued by the accused on 26-4-1998 to complainant. In this letter, the accused stated clearly that complainant and his associates forced him to part with an undated cheque for Rs. 1,29,000/- and three numbers of I.D.B.I. bonds under threat of life. It is not in the evidence of complainant P.W.1. that he issued any reply notice to Ex.P-6. On 21-44998, P.W.1. issued a lawyers notice Ex.P-4 to the accused, bringing to the notice of the accused about presenting the cheque-Ex.P-2, and it bounced. For this, the accused issued a reply dated 5-5-1998. Ex.P-6 therefore clearly indicates that before the litigation started the accused issued a lawyers notice to P.W.1. stating that an undated cheque was obtained by him by force and for that crucial notice Ex.P-6, no reply notice was issued by P.W.1. denying the serious allegations made against him. There is no explanation for not issuing a reply notice.
6. Ex.P-1, as already pointed out, is an important piece of evidence. Leaving aside the discrepancy in the evidence of P.W.1. to whom that letter was addressed, Ex.P-1 was produced for the purpose of showing that the accused is liable to pay a particular sum to P.W.1. As per recitals in Ex.P-1 the said amount is liable to be paid by the father of the accused alone. It is nowhere stated in Ex.P-1 that accused is also jointly and severally liable to pay the said amount to P.W.1. It is one of the important adverse circumstances against the complainant.
7. The learned counsel for the complainant invites the attention of the Court to the evidence of D.W.1. It is pointed out that D.W.1. deposed in his evidence that he knows the complainant, who levelled their lands with a machine. According to the learned counsel for the complainant, this piece of evidence of D.W.1. shows that the accused is also liable to discharge the amount covered by Ex.P-1 as his land was levelled by P.W.1. This contention is advanced overlooking the remaining evidence of D.W.1. D.W.1. categorically deposed that the accused has no connection with his land levelling matter. He also deposed that he himself engaged the machines of the complainant. It is also his evidence that later P.W.1. and his followers threatened the accused and obtained a cheque in question by force. So from the evidence of D.W.1., the Court cannot infer that the accused is liable to pay the amount covered by Ex.P-1 document.
8. It is further contended on behalf of the complainant that presumption of law is that the cheque was issued by the accused for the discharge of debt or any other liability. There is no dispute regarding the said proposition. The learned counsel for the complainant invited the attention of this Court to a decision of Kerala High Court in Alexander v. Joseph Chacko, 1994 (1) Crimes 388. This decision of the Kerala High Court was later followed by Madras High Court in a decision reported in N. Vaidyanathan Deepika Milk Marketing v. Dodla Dairy Ltd, 2000 (1) Crimes 291.
9. In my considered opinion, these decisions do not come to the aid of the complainant in the present case. As per facts of Kerala High Court Judgment, D.W.1. therein owed some money to the complainant, as the said D.W.1. was in the impecunious condition and as the complainant insisted on repayment of the debt, the accused went to the rescue of D.W.1. and issued the cheque. Therefore, the Kerala High Court held that as the accused issued the cheque for the discharge of a debt owed by D.W.1., he is liable for conviction under Section 138 of the Act. In the present case, no evidence is adduced by the complainant to show that the accused came to the rescue of his father D.W.1. and issued the cheque to discharge any sum payable covered by the letter Ex.P-1. It is already noticed that as per the letter Ex.P-1, D.W.1. alone is liable to pay the amount. There is no whisper in that letter that the accused is also liable to pay the said amount. No evidence is adduced by the complainant in the present case saying that the accused undertook at any time to discharge the debt or liability covered by Ex.P-1, and thereafter issued the cheque in question. The circumstances under which the cheque came into existence cannot be ignored by the Court. At the earliest point of time, accused issued lawyers notice Ex.P-6 to the complainant informing him that an undated cheque was obtained from him by using force. No reply notice was issued to that notice denying the serious allegations made in the notice. The prosecution failed to establish that accused issued Ex.P-2 cheque to discharge his 'any liability'.
In view of these circumstances, I am satisfied that the accused is not liable for prosecution under Section 138 of the Act.
10. In the result, the revision petition is allowed. The accused is found not guilty and is accordingly acquitted of the charge under Section 138 of the Act. His conviction and sentence imposed by the two Courts below are set aside.