Between v. Lanka Veeraju

THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No. 222 OF 2005. O R D E R : Aggrieved by the judgment dated 24-01-2005 passed in Criminal Appeal No. 93 of 2003 by the learned I-Additional Metropolitan Sessions Judge, Visakhapatnam, confirming judgment dated 07-8-2003 passed in CC.No. 41 of 2001 by the learned VII Metropolitan Magistrate, Visakhapatnam, this Criminal Revision Case is preferred by the Accused.

2. The sole accused in CC.No. 41 of 2001 on the file of the Court of VII Metropolitan Magistrate, Visakhapatnam was found guilty for the offence under Section 138 of Negotiable Instruments Act and he was sentenced to suffer simple imprisonment for three months and to pay a fine of Rs.2000/-, in default, to suffer simple imprisonment for one month. Aggrieved by the said order of conviction and sentence, he preferred Criminal Appeal No. 93 of 2003 on the file of the Court of I-Additional Metropolitan Sessions Judge, Visakhapatnam. However, the said appeal was dismissed by the said Court by its judgment dated 24-01-2005 confirming the conviction and sentence passed by the trial court, viz., VII Metropolitan Magistrate, Visakhapatnam in CC.No. 41 of 2001 by its judgment dated 07-08-2003. Aggrieved by the said impugned judgment of the first appellate court, he preferred this Criminal Revision Case.

3. The facts, in brief, are that the defacto complainant preferred a private complaint before the Court of VII Metropolitan Magistrate, Visakhpatnam, stating that the petitioner-accused had borrowed Rs. 50,000/- from him on 01-04-1997 against pronote. On demand of payment of the said loan amount along with interest, the petitioner-accused had issued three cheques bearing Nos. 176703, 176704 and 176705 each for Rs.25,000/- in favour of the defacto complainant. However, they were returned unpaid when presented to the Bank with an endorsement “insufficient funds” and as such CC. No. 515 of 1999 was filed in the Court of III Metropolitan Magistrate, Visakhpatnam, under Section 138 of Negotiable Instruments Act. At the stage of judgment in the said case, the petitioner-accused agreed to pay Rs.50,000/- by way of compromise towards full satisfaction of the said debt amount in two instalments i.e., Rs.15,000/- in cash immediately and the balance of Rs.35,000/- within one month. Having paid the first instalment of Rs.15,000/- in cash, the petitioner- accused had issued cheque dated 01-12-2000 for Rs.35,000/- vide cheque bearing No. 560811. However, when the said cheque was presented before UCO Bank, Hindustan Ship Yard Branch, Visakhapatnam for collection on 07-12-2000, the same was returned unpaid on 08-12-2000 with an endorsement “insufficient funds”. On 18-12-2000 a legal notice was issued to him and the petitioner- accused got issued reply notice on 03-01-2001. Hence, a private complaint was preferred before the Court of VII Metropolitan Magistrate, Visakhpatnam.

4. On appearance of the petitioner-accused, the learned VII Metropolitan Magistrate, Viskahapatnam, had complied with the formalities as contemplated under Section 207 Cr.P.C., and examined the petitioner-accused under Section 251 Cr.P.C., alleging the substance of accusation. The petitioner-accused denied the same and claimed to be tried for the offence under Section 138 of Negotiable Instruments Act.

5. In support of his case, the defacto complainant got himself examined as PW-1 besides examining PW.2-Bank Manager, Co- operative Bank, Akkayapalem Branch, Visakhapatnam, (banker of defacto complainant) and PW-3 who is the Assistant Manager, UCO Bank, Hindustan Shipyard Colony Bank, Visakhapatnam (banker of petitioner-accused) and got marked Exs.P1 to P-14 on his behalf, whereas no witnesses were examined and no documents were marked on behalf of the petitioner-accused.

6. On appreciation of the oral and documentary evidence adduced and taking into consideration the evidence of PWs 1 to 3 and also considering the other material on record, the trial Court, found the petitioner-accused guilty for the offence under Section 138 of Negotiable Instruments Act and accordingly convicted and sentenced him as has already been specified in paragraph No.2 supra.

7. Whereupon and on his preferring Criminal Appeal No. 93 of 2003 on the file of the Court of I-Additional Metropolitan Sessions Judge, Visakhpatnam, the same was dismissed confirming the conviction and sentence imposed by the trial court as has already been specified in paragraph No.2 supra.

8. Aggrieved by the said impugned order of dismissal of the said criminal appeal by the first appellate court, the petitioner accused filed this criminal revision case, inter alia on the following grounds: that both the courts below failed to appreciate the fact that the matter was compromised before the trial court and the entire debt amount was paid and as per the terms of the compromise he had made part payment as stated in Ex.P7, dated 03-01-2001 and as such there was no legally enforceable debt.

9. It is the case of the petitioner-accused that in view of the compromise in CC.No. 515 of 1999, he had paid Rs.15,000/- in cash and had issued a cheque for the remaining balance amount of Rs.35,000/- dated 01-12-2000. In Ex.P7 reply notice, it was stated that in view of the compromise in CC.No. 515 of 1999, the petitioner- accused had paid the full amount as was agreed upon and the matter was thus settled finally. Therefore, there was no debt due from him to the defacto complainant, which was legally enforceable.

10. However, it is to be seen that no material has been brought on record to show that the petitioner-accused had paid the full amount as agreed by and between the parties, as per Ex.P7 reply notice. Therefore, the trial court believed the case of the defacto complainant that the petitioner-accused had issued cheque for the remaining balance amount of Rs.35,000/- as per the terms of Ex.P7, which was dishonoured by the bank. Therefore, the defacto complainant preferred CC.No.41 of 2001 on the file of the VII Metropolitan Magistrate, Visakhapatnam. Therefore, this court is of the view that the conviction and sentence imposed on the petitioner- accused by the trial court, and as confirmed by the first appellate court cannot be said to be perverse nor it can be said that they have committed any error or illegality. Moreover, the petitioner-accused did not get himself examined nor had filed any material to show that no legally enforceable debt was due from him to defacto complainant (PW-1).

11. In the result, the Criminal Revision Case is dismissed. ___________________ B.N.RAO NALLA, J. 07-04-2011 Isl/Stp THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRL.RC.No. 222 OF 2005 07-04-2011