Hyderabad High Court · 2025

Counsel for the Petitioner: SRI RAJA VISHWANATHAN, Amicus Curiae Counsel for the Respondent No.1: SRI HASSAN HUSSATN JUNAIDI, Counsel for the Respondent No.2: Mr. E. GANESH, Amicus Curiae ASSISTANT PUBLIC PROSECUTOR The Court made the following: ORDER THE HON'BLE SRI JU STICE E.V.VENUGOPAL CRIMINAL REVISIO NCASE No.2071 OF 2016 ORDER: 1 This criminal revision case is filed under Section 397 rlw 401 Cr.P.C aggrieved by the judgment dated 08.8.2016 passed in Crt.A.No.739 of 2017 by the learned lV Additional. Metropolitan Sessions Judge, Hyderabad, wherein and whereby the conviction and sentence imposed upon the revision petitioner / A.2, to suffer simpte imprisonment for one year and shatl aLlso pay fine of Rs.10,000/-, for the offence punishabte under Section 138 of N.l Act, in C.C.No.233 of 2011by the learned XVI Additionat Judge - cum - XX Additionat Chief Metropolitan Magistrate, Hyderabad dated 18.7.2012, was confirmed. 2 Heard Sri Raja Vishwanathan, learned amicrl:s curiae for the petitioner and Sri Hassan Hussain Junaidi, learned amicus curiae for the first respondent and Mr.E.Ganesh, the learned Assistant Public Prosecutor representing the State-2nd respondent, and perused the record. 3 The factual matrix that ted to the fiting of the present revision is that out of the ctose acquaintance, the revision petitioner being the partner of Vaishnavi Rama Traders, 2 borrowed an amount of Rs.7.00 lakhs on 08.6.2009 from the first respondent as hand loan for his business requirement promising to repay the same within four months. But the petitioner did not adhere to his promise. However, after much persuasion by the first respondent, the petitioner issued a cheque bearing No.238254 dated 24.11.2009 for Rs.4.00 lakhs drawn on lClCl bank, S.R.Nagar Branch, Hyderabad, which had been signed by the petitioner and another as partners of Vaishnavi Rama Traders and for the balance amount of Rs.3.00 takhs the petitioner in the capacity of partner of the said firm had issued another cheque bearing No.238256 dated 02.12.2009 drawn on lClCl Bank, S.R.Nagar branch, Hyderabad. The first respondent presented the cheques in his account tying in Andhra Bank, Rajivnagar branch, Hyderabad on 15.5.2010 for encashment. However, both the cheques were returned on 20.5.2010 and 18.5.2010 respectively for the reason 'account ctosed'. Thereafter, the first respondent got issued a tegal notice on 15.6.2010 and the same was received by the petitioner on 21 .6.2010, in spite of which, the petitioner neither paid the amount covered under the above said cheques nor had given any repty. Hence the first respondent, after fottowing the due procedure, filed the complaint against the petitioner for the offence punishabte u/s. 138 of N.l.Act. ts 4 During the course of triat, the first respondent/comptainant got himsetf examined as P.W. 1 and got marked EXs.p.1 to p.7. On 3 behatf of the petitioner, the petitioner himsetf got examined as D.W.1 and got marked Exs.D.1 to D.4 on his behatf. 5 The learned trial Court, after appreciating the entire evidence available on record, both orat and docurnentary, found the petitioner guitty of the offence punishabte uncler Section 13g of N.l Act accordingly convicted and sentencecl him to suffer simpte imprisonment for one year and also to pay fine of Rs.10,000/-, in default, to suffer simpte imprisonment for three months. Aggrieved, the petitioner preferred Criminat Appeat No.739 of 2012 on the fite of the Court of the lV Additionat Metropolitan Sessions Judge, Hyderabad, who, by judgment dated 08.8.2016, dismissed the appeat confirming the findings arrived at by the learned trial Court. As stated supra, the present criminal revision case. 6 ln the cross examination of p.W.1 he stated that he sotd out a ptot for Rs.12,60,000/- and out of that amourrt, he [ent the amount of Rs.7.00 takhs to the petitioner. So th,e contention of Sri Raja Vishwanathan, the learned amicus r:uriae for the petitioner that the first respondent has no such financial capacity 4 to lend such huge amount to the petitioner is liabte to be struck down. Though the petitioner set up a ptea that the first respondent has acquaintance with one Laxmi and her husband and got foisted the present case with their help, the petitioner faited to prove said ptea with cogent reasons. But at the same time, the petitioner did not dispute his signature on the cheques. 7 The predominant contention of the petitioner is that the statutory notice as contemptated under Section 138 (b) of the N.l. Act was not served on him. But Exs.P.6 and P.7 postal acknowledgements prove service of notice. The defence of the petitioner was that he was not residing in the given address and that he was residing in New Vivekananda cotony, Chintat, Hyderabad. According to him, the said house was owned by one Chandrasekhar Reddy and Exs.D.2 to D.4 are rental receipts said to have been issued by said Chandrasekhar Reddy. However, the petitioner did not examine the said Chandrasekhar Reddy as one of his defence witnesses. To prove a document the author of the same has to be examined, which the petitioner faited to do so' Mere fiting of the rental receipts does not come to the rescue of the petitioner unless the person who issued said receipts is examined. The other defence put forth by the petitioner was - that he hd+trained relationship with his father-in-taw who fite( ,F a suit and hence he was not residing in the given address. But 5 Ex.D.'l ptaint does not show the name of the petitioner as defendant. Therefore, the contention of the petitioner that the seMce of statutory notice as mandated under Section 138 (b) of the N.l. Act is defective is unacceptable inasmuch as the summons sent by the Court were addressed to the same address to which the statutory notice was sent and that the petitioner received the said summons. Hence, Exs.P.3 to P.7 notice and acknowledgments were established. 8 As seen from the record the petitioner had borrowed the amount from the first respondent in his personal capacity and in order to discharge the same the petitioner in the capacity of partner of the firm had issued two cheques in favour of the complainant. The partners are liabte for their acts done for their benefit on behalf of the partnership firm. 9 Record further shows that the first respondent has complied with att the requisites before fiting the comptaint in the trial Court. ln the instant case the cheque was adrnittedLy issued by the petitioner himself and he accepts and admits the signatures on the cheque. Then the initial presumption as contemptated under Section 139 of the N.l. Act has, to be and was 6 correctty raised by the courts below in favour of the first ) respondent. The presumption under Section 139 of the N.l.Act is mandatory presumption but not a general presumption. The accused is entitted to rebut the same. The fact remains that a mere ptausibte expl,anation is not expected from the accused, but it must be more than a ptausibte exptanation by way of rebuttat evidence. ln other words, the defence raised by way of rebuttat evidence must be probabte and capabte of being accepted by the court. ln the instant case, the petitioner has not put forth such an evidence to rebut the presumption because once issuance of cheque was admitted by the petitioner. so it is for the petitioner to rebut the presumption which he faited to do so by teading cogent and convincing evidence that the said cheque was not issued in discharge of any tegatty enforceabte debt' 10 Both the courts betow have gone through the material avaitable on record meticutously and have rendered their respective judgments. Hence I see no grounds to interfere with the wett considered judgments passed by both the courts betow' Accordingty, this revision is tiabte to be dismissed' 11 Further, the contention of the petitioner that the first respondent has not fited any income tax returns to show thq \ 7 transaction also cannot be countenanced. Admittedty, the first respondent is not an income tax assessee. Moreover, even if he is an income tax assessee, the first respondent is not supposed to show the transaction because the said amount is repayable within few days or few months in the same financia[ yeilr. ln such a case, failure to show the amount in the income tax returns may not by itsetf amount to rebuttal of presumption under Section 139 of N.l.Act. There is no provision under the lnr:ome Tax Act that any violation of provision under Section 269 SS of the said Act renders the transaction as itlegat and unenforceabte.

17. However, As per the decisions passed by the Hon'bte Supreme Court in Damodar S. Prabhu Vs. Sayed Babalalt, R. Vijayan Vs. Baby2, S.R. Sunil & Company Vs. D. Srinivasavaradan3, Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvia, Somnath Sarka Vs. Utpal Basu Mallicks, lvleters and \ I lnstruments Private Limited and another Vs. Kanchan Mehtas and lvL/s. Gimpex (P) Ltd. Vd. Manoj GoealT it is; quite obvious that with respect to the offence of dishonour of cheques, it is the I I I 2o1o (5) scc 663 ' 1zor2y r scc zoo 3 lzor+; ro scc :z o (zol5) 9 scc 622 s 2013 (16) scc 465 6 (2018) 1 Supremc Court Cases 560 ' (2022) 11 scc 705 8 compensatory aspect of the remedy which shoutd be given priority over the punitive aspect this Court deems it appropriate to modify the sentence of imprisonment imposed upon the petitioner by the trial Court and confirmed by the appellate Court by directing the petitioner to deposit Rs.3,50,000/- to the credit of C.C.No.233 of 2011 on the fite of the learned XVI Additionat Judge XX Additionat Chief Metropotitan Magistrate, Hyderabad within a period of one year from today. ln defautt of payment of the said amount, the petitioner sha[[ suffer simple imprisonment for two months.

13. Upon depositing the said amount, respondent No.1 comptainant ts granted tiberty to withdraw the same with immediate effect. To \ 1+. With the above direction, the Criminal Revision Case stands disposed of. Miscettaneous applications pending if any shatl alsor //TRUE COPY// sd/- T. sRt VAS RAR DEPUW REGI SECTION OFFICER The lV Additional Metropolitan Sessions Judge, Hyderabad. cr.,oft+, ueorAa) The XVI Additional Judge cum XX Additional Chief Metropolitan Magistrate, Hyderabad. The Superintendent, Chanchalguda Jail, Hyderabad Two CCs to the Public Proseoutor, High Court for the State of Telangana at Hyderabad[OUT] One CC to Sri Raja Vishwanathan, Advocate [OPUCI One CC to Sri Hassan Hussarn Junaidi, Advocate [OPUC] Two CD Copies 1 2 3 4 5 6. 7. Ye- 1 ----'-----:--- U HIGH COURT DATED:21 llZtz|Zs ORDER CRLRC.No.20t1 of 2016 :::::='=- 07ti ;'ii'[ i., \-.) \...' r \- r/;i ?.t' " ,:/ \,.'J' DISPOSING OF THE CRL.R.C. cQ1ed 1o Yt' (6?5 l I