The High Court · 2025

Counsel for the Petitioner Counsel for the Respondent No. 1 : Public Prosecutor Counsel for the Respondent No. 2 : M/s. Sistla Venkata Suresh : Sri. Raja Shekar Rao Salvaji The Court made the following: ORDER THE HONOURABLE SRI JUSTICE E.V.yv,riNUGOpAL CRIMINAL RE\rISION CASE No.34O c'i 2025 ORDER: The present Criminal Revision Case i:.r ,; been liled under Sectiorrs .138 and 142 of BNSS agg,:r,r.ed by the order ald juiigment dated 15.04.2025 in Cr.t \.No.451 of 2023 on the lite of [he learned t Additional Se:;r: ions Judge, Hyderabad (for short, ,tl-ie appellate Court,).

2. For the sake of conr.enience, the partic:; hereinafter referred as errrrayed in C.C.

3. The brief facts of the case are that the r : :mplainalt and accusecl are acquainted lor past maly yr ,t:s. Out of the said acqu,eintalce the accused has apF,r()ached the complainant irL the year 2013 and requestec ,or a hand loan of Rs.15,00,O00/ . Out of the said acqr,r . intance in the month of March, 2013, lhe complainalt ar.r,rnged hand loan amount ol Rs. 1S,00,000/ to accused. Th :r,eafter, the accused requested more money for various ner:r.[s and that the complainant from March, 2013 to Decembe r, 20 16 had lent an amount of Rs.SO,OO,00O/_ to the accus,..r:. That out of the afore rnentioned amount, some am:) : rltts urere ) E'.,?."-M trarsferred b1, way of electronic tralsfer from accounts of the complainant and complainant's r,vife bank account and the remaining n as paid ir-r cash. That the complaina:rt regularll. requested the accused to repay the amount lent by him upon which the cornplainant and accused had entered into a Debt Setllement Agreement dated

28.07.2017 and the same \\'as actuallv executed on

29.O7 .2077 as the accuscd s,ife r,r,as not available on

28.O7 .2017 . That the said de bt settlement agreement \rras duly srgned b1' the accused and his riife and the said debt settiement agreement also reflects the cheques issued for repayment of total outstanding clebt. That the accused had handed over three pronotes on 30.O7 .2017 for Rs. 15,00,O00 l- each all dated 3O.O7.2017. That later in the month of December, 2016 the accused requested the complainant for extension of time and asked tI-re complainant to return the c}'rcques issued while entering into Debt Settlement Agreemcr-rt for r,r,hich the complainant returned the said cheques to the accused. Thereafter, accused got issued three fresh cheques bearing Nso.463753, 463754 and 463755, dated O2.O7.2018 for a sum of Rs. 15,O0,000/- each, total amounting of I Rs.45,00,000/- drarvn on C ar-rara Bank, l.umdanbagh Branch, Hyderabad. When the complair-ran t r r-esented the salnc in the bank. ther s'crc clishonoure rl r lcl rL-turned rvitl'r an e ncloresement "F-uncis Insufficienr i,,icle cheque 'll' r, -eaftcr. the re turn Menros dated 18.07.20 iB. cornplainant issued legal notice to thr' :iccused on

06.08.2018 emd despite receiving the sarne r n 10.08.2018, the accused neither paid thc said amount ior qa\re .tny reply, as such the accusecl is liable to be pL r shed lor tl-re oflence under Section 138 of the Negot.ial:lr instruments Act, 1881 (for short, 'N.I. Act')

1. The cornplainant filecl the complainr l-ore leanred XVII ACMM. Hyderabacl u,hrch took cosn .: , nce of the offence against the accused under Section -.ili of N.l. Act arrd numbercd as C.C.No.B29 ol 20 18. LaLr .rn. the case was tralsferred to the learned X Special N{l: u strate Court and renumbered as C.C.No.24 of 2O19 errrr thereafter, transferred to the learned Metropolitan St--r:: ions Judge, Hyderabad (for short, 'the trial Court') ar-rd rcrrumbcred as C.C.N.I.No. 10569 of 2022 I .@

5. In order to bring home the guilt of the accused, prosecution examined p.Ws. i and. 2 arld got marked trxs.P. 1 to P. 15

6. After hearing the parties on both sides and upon considering the evidencc o, record, the trial Court found the accused guilty for the offence punishable under Section i38 of N.I. Act, as such the convicted the accused under Section 255(2) Cr.p.C. The relevar-rt portron reads as under: "3O. The accrtsed ltc-s been questioned. on the quantum of sentence upon u.thich the acansed pleacled mercA as he is the sole bread eamer of his fomitg and. praged to take lenient uieu. Keeping in uieu, the grcLui.ty of the offence comnitted_, this Court has not taken lenient uiew tuhile imposing sentence. As the accused is found guiltg for the offence under Section l3B of the N.L Act, lg|j and_ he u.tas conuicted under Section 255(2) Cr.p.C for the said. offence, the acansed is sentenced to paa ftne of Rs.75,O2,000/_ (Rupees SeuentA ?-iue Lakhs and Tuo Thousand- onlg) and. in default to undergo simple imprisottment for a period. of ttuo months i e., (2) rnontls for the offence under Section 138 of the Negotiable Instrunents Act, 1881. Out of the fine amount of Rs.75.O2,O00/, an anount oJ. Rs.2,00O/ _ (Rupees Tuto Thousand. Ontg) shall go to state and. remaining fine amount of Rs.75,OO,O0O/_ (Rupees Seuenta Fiue Lakhs Only) shall go to conplainant as compensation '* alnder Sectiott 357(1) (b) Cr.p.C. Keepitg in uiew of the grauity of the offence cont.mitted, the benefits und.er probation of offenclers Act are not inuockecl. A free copg of -5 .Iudgnrcnt shall be giuen to the acatsed as )i. Section 363 of Cr.P.(:. As accused has not. been in t:t-'.icial atstody euen for a sinqle dag, Section. 428 Cr.P.C .; not irtuoked. Accused is itrfomred about his iglt.t to appec'! 7 . Aggrieved by the judgmerit passed br. thr: lcarne d trial Court, the accused preferred an Appeal beforc' t re appellate Court uide C:1.A.No.451 of 2023. The app::. ate uide its judgment dated 15.04.2025 has partly allour:rl rhe appeal. The relevant portion reads as under "112. The Criminal Appeal is alloutert r part. 'fhe jud,gment' of conuiction of the appello.nt/ lr, use.d for an offence ttnder Section 138 of the N.I. Act .,:. recorded it C.C.N1.No.10569 of 2022 by the trial Corli I ls conlTnned and upheld. Hou,teuer, the judgment to t \e extent of sentence as imposed, is set aside- The natt ,'t ls retrtnded back to the trial Coutl to hear the appellar.t.' accused and respondent/ complainant afresh ott senten, t,. pa11 and to pass appropiote judgment in tltat regard . t .1r:,:t'.,rdance u.tith- Laut in the light of the aboue obse,-tations. Tlrc appellant/ acansed and the respondent/ cot. plainant are directed to appear before the tial CotLtt t:t,,.' tg tuiih their respectiu,z coznsels on 01 -O5.2025 for abot,,. said, limited purpose. On such oppearance, the trial Co,. rt shall hear and dispose the cose in accordance wti, laut. at the earLiest." B. Aggrieved by the judgment passed bl t-he iearned appellate Court, the petitioner/ complainant .-r Ls preferred this criminal r'evision case. 6

9. Heard learned counsel appearing for the petitioner ald learned counsel appearing for respondent No.2 and perused the record

10. Learned counsel appearir-rg for the petrtioner would submit that the appellate Court has erroneously observed that the case is conduc[ed as a regular/general summons case, but not as a Summa{, Trial Case on the basis that severa-l adjournments \rrere alforded to the parties. The appellate Court also farled to appreciate that the second proviso of sub-section (1) of Section 143 has given discretion to the tria-l Court to proceed the case other than in summary manner, the trial court must record reasons for doing so. When no cogent reasons are recorded by the trail Court, the trial only' be treated as Summar5r Trial as such there is no illegality of the sentence aw.arded by the trial Court. I 1. Learned counsel further submitted that the appellate Court though confirmed the conviction, has failed to appreciate that'vvhiie convicting an accused for commission t of offence under Section 138 of N.I. Act. the Court cannot ignore the compensatory aspect of remedy ar-rd the compensatory aspect can only be given du ,, t:egard if the sentence imposed is at ieast commensurate :: the amount of the cheque, if not more. Hence, seeks t, rct aside the order passeci by the learned appellate Court

12. Learned counsel appearing for res r1)nde nt No-2 rvould subm.Lt that the appellate Court is r :: r,ested u,ith the power r-tnder Section 386 of Cr.P.C t, :ernand the rrratter back to the trial Court

13. Section 386 of CI.P.C: The powers oll t he appellate Court. After pentsing such record and heanng tlrc :; cpeLlant or his pleoder, i_1- he appears, and tlrc Public I'r,t ;ecutctr, if Lrc appears, and in case of an appeol undet .-:-;cttort 377 or section 37,f , the accused, if he appears, tLte ,'\ opeLlate Court may, if it considers that there is no suffu t,: nt ground for interfeing. dismiss the appea[ or tnoA f . in an appeal from an order of acquitta| ret)t.:. "se such order and dirtzct that further inquiry be made, or ;,ttL:Lt th.e acased be re tried or committed for tia| as the '.,:t ;e trLoy be, or find hint guiltg and pass sentence on him a,:trdtrry to laut;

2. in an altpeal lrom a conuictton 7 . reuerse the finding and sentence t.,.t7d clccluit or discharge the acansed, or order him t: be re-tried bg a Coutl of competent juisdiction sub:;i tl,inate to sucl t Appellate Court or committed for tiaL t,r 2. o,lter the finding, maintaining the ser,.l(.Lce, or 3. urith or uithout alteing the finding. tiler 'the nature or the extent, or the nah,Lre atTa xtertt, of the sentence, but not so as to enhantce tli; sanrte: 8 'a

3. in an appeal for enhancement of sentence

7. reuerse the ftnding cLnd sentence and acquit or discharge the accused or order him to be re-tiecl bg a Court competent to try the offence, or 2. alter the fi.nding maitaining the sentence, or 3. tuith or u.tithout alteing the finding, alter the nattLre or the ertent, or the nature and. exlent, of the sentence, so as ,o enhance or reduce the same; 4. in an appeal from ang other order, alter or reuerse such order; that maA be

5. make ang amendment or onA consequential or incid.ental proper; Prouided that the sentetTce shall not be enhan Lced. unless the ocansed has had an opporh.LnitA of shouing ccLuse against en"hancement Prouided further thot the Appellate Court shall not inJTict greater punishment for the offence uhich in its opiniort the acansed has committed, than might haue been inJticted_ for that offence bg the Court passing the order or sentence under appeal.

14. In the light of the aforesaid facts ald circumstances of the case, this Court is of the opinion that the appellate Court under Section 386 of Cr. P. C. has power only to reverse the order and direct for further enquiry, but sha,1l not remand the matter back to the trial Court for fresh consideration. Under these circumstances, this Court deems it appropriate to set aside the judgment passed by the learned appellate Court dated lS.O4 .2025 in Cr1.A.No.451 of 2023 and remanded the matter back to the appellate Court for conducting fresh hearing ald upon _' 9 such, pass appropriate orders strictly in acr: rdance u,ith 1anr.

15. Accordingly, the criminal revision case i - ,lisposed of. Miscellaneous petitions, if any, pendin .1, sha11 stand closed SD/- V.KAVITHA 'lll::PUTY REGISTRAR /iTRUE COPY// I SECTION OFFICER To,

1. The I Additional Sessions Judge, Hyderabad 2 The Vtl Metropolitan lr,4agistrate Hyderabad' i r*" CCs to ih. Prbti"- Prosecuior, State of Tc rangana High Court Buildings, at FlYderabad (OUT) o"" cc to Ir//L Sistla Venkata Suresh, Advocar:' oPUCI One CC to Sri. Raja Shekar Rao Salvali, Advocrr ': IOPUC] Two CD CoPir:s

4. 5 tt. ,sl I.) d- HIGH COUR'T DATED:0910912025 ,:' ./ :' ,' ',: \.1i 1t Ii.I ?Ijfr ORDER CRLRC.No.340 of 2025 CRIMINAL REVISON CASE lS DISPOSE:I.I Of tLI * ?,( ]L L,