IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.102 OF 2006 Between: Vegesna Eswara Raju ..... PETITIONER AND State of Andhra Pradesh and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.102 OF 2006 ORDER: This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for Short, "Cr.P.C.") is directed against the Judgment, dated 16.01.2006, in Crl.A.No.213 of 2005 on the file of the Principal District and Sessions Judge, Eluru, West Godavari District, whereunder and whereby, the conviction of the petitioner/A2 of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (for short, "the Act") and sentence to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for three months, recorded in the judgment, dated 10.10.2005, in C.C.No.72 of 2004 and Crl.M.P.Nos.1204, 1248, 1249 and 1250 of 2005 on the file of the Judicial Magistrate of First Class, Special Mobile Court, Eluru, West Godavari District, were confirmed. 2. None appears for the petitioner, in spite of giving several opportunities. 3. The brief facts that are necessary for disposal of the present Criminal Revision Case may be stated as follows: The complainant was having a fishing tank at Laxmipuram and Korukollu of Bhimadole Mandal. A2 was doing the business as proprietor in the name of A1 - M/s. S.S. Fisheries, Pedamiram, purchasing fish from the farmers and exporting the same. The complainant sold the fish from his tank to the accused between 05.12.2002 and 22.12.2002, worth about Rs.28,72,980/-. Having purchased the said fish, the accused paid Rs.22,00,000/- to the complainant by way of installments on various dates through the mediator PW.4 -Chintalapati Nagaraju of Pathepuram Village. Still an amount of Rs.6,72,977/- was due from the accused. On repeated demands, A2 on behalf of A1 issued two cheques for Rs.3,20,000/- each, dated 05.02.2003 and 11.02.2003, drawn on Karur Vysya Bank Limited, Bhimavaram. When the complainant presented them in State Bank of India, Eluru main branch, the same were sent to A2’s bank, which returned the same to the complainant's bank with memo of A2’s bank stating 'insufficient funds'. Thereafter, the complainant got issued statutory notice to the accused on 07.03.2003 by registered post with acknowledgement due, calling upon him to pay the cheque amounts. A2 willfully avoided to receive the statutory notice when it was sent to the shop address, but he received the notice when the same was sent to the residential address. Hence, the complaint. Thereafter, the case was taken cognizance under Section 138 of the Act. 4. When the accused were examined under Section 251 Cr.P.C. for the offence punishable under Section 138 of the Act, they denied the same, pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined PWs.1 to 4 and got marked Exs.P1 to P27. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against them in the evidence of prosecution witnesses. They denied the same. A2 himself was examined as DW.1 and no documents were marked on behalf of the defence. But, Ex.C1 was got marked through the Court. 7. The trial Court, upon considering the evidence on record, came to the conclusion that the prosecution proved its case beyond all reasonable doubt and found the accused guilty of the offence punishable under Section 138 of the Act and accordingly, convicted and sentenced A2 as stated above. Aggrieved by the same, the accused preferred an appeal before the appellate Court, which confirmed the judgment of the trial Court. Challenging the same, the present revision is filed by A2. 8. The grounds raised in this revision case are that the impugned judgments were not based upon proper evidence, but based on surmises and presumptions; that the appellate Court did not consider the fact that no evidence was placed on record to show that the petitioner/A2 has anything to do with the transactions; that no evidence is adduced to show that the petitioner is the proprietor of M/s. S.S. Fisheries, Devi Ice Factory; that the trial Court committed an error in comparing the signature on the cheques with that of the admitted signature of the petitioner and hence, he prays to set aside the impugned judgments. 9. On the other hand, learned counsel for respondent No.2 contended that the concurrent findings of both the Courts below need not be interfered with in view of the fact that the findings are based upon proper appreciation of evidence on record; that when the petitioner is denying the signatures on the cheques, Exs.P1 and P3, it is his duty to send the disputed signatures to a Hand Writing Expert for comparison and opinion with his admitted signature, but the said fact has not been proved; that the trial Court disbelieved the evidence of DW.1; that the evidence of PW.4, who is an independent witness, would clearly go to show that the petitioner purchased fish from the tanks of respondent No.2/PW.1 between 05.12.2002 and 22.12.2002 of 17 lorries of load worth Rs.28,00,000/-; that the petitioner paid Rs.22,00,000/- and on demand made by the complainant for the balance amount, the petitioner issued Exs.P1 and P3 – cheques; that therefore, once Exs.P1 and P3 were issued by the petitioner, the presumption is that they were given for legally enforceable debt or liability; that there are no grounds to set aside the impugned judgments and hence, he prays to dismiss the Criminal Revision Case. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be perverse or contrary to law or illegal or improper, ordinarily this Court would not interfere with the concurrent findings of the Courts below. A finding can be said to be perverse, if it is not based upon proper appreciation of the evidence on record. 11. For the offence under Section 138 of the Act, respondent No.2/complainant has to prove that the cheques in question were issued by the petitioner/A2; they were presented in the bank; they were returned with an endorsement 'insufficient funds'; got issued a statutory notice to the petitioner calling upon him to pay the amount covered by the returned cheques, which were unpaid, and that the petitioner failed to pay the amounts covered by the cheques. Then only the complainant gets cause of action for filing the complaint within one month. 12. The evidence of respondent No.2/PW.1 would go to show that the petitioner was doing business in the name of M/s. S.S. Fisheries, purchased the fish from the tanks of PW.1 between 05.12.2002 and 22.12.2002, under Exs.P10 to P26, worth about Rs.28,70,865/-, paid Rs.22,00,000/- by way of installments through PW.4 and he has to pay the remaining balance of Rs.6,70,863/-. When PW.1 demanded the petitioner to pay the balance amount, it is clear that the petitioner issued Exs.P1 and P3 cheques. PW.4 is an agent through whom the petitioner paid certain installments to PW.1. PW.4 also categorically stated that the petitioner issued Exs.P1 and P3 cheques for Rs.3,20,000/- each. Exs.P10 to P26, weighment sheets in the name of the proprietary concern of the accused, would clearly go to show that PW.1 supplied fish to the accused from his tanks. Therefore, there is no other reason to disbelieve the evidence of PWs.1 and 4. Their evidence is clear that the petitioner/A2 purchased the fish from PW.1 and to discharge his liability, he paid some amounts by way of installments and as an amount of Rs.6,72,977/- was due, the petitioner issued Exs.P1 and P3 – cheques each for Rs.3,20,000/- to PW.1. 13. The said allegations are totally denied by the petitioner and the case of the petitioner is that due to political reasons, Exs.P1 and P3 were got fabricated by respondent No.2. The initial burden standing on respondent No.2, to prove that the cheques in question were issued by the petitioner for legally enforceable debt, has been discharged. Therefore, the burden shifts to the petitioner to rebut the said presumption under Section 139 of the Act. If the petitioner has not discharged his burden, then the presumption is that the cheques in question were given for legally enforceable debt or liability. Except denying that the signatures do not belong to the petitioner, he has not adduced any evidence to show that the signatures in Exs.P1 and P3 do not belong to him. The petitioner has not explained as to why and under what circumstances Exs.P1 and P3 were handed over to PW.1. Therefore, the burden placed on the petitioner has not been discharged by preponderance of probability. A plea has been taken by the petitioner with regard to non-service of statutory notice as contemplated under Section 138(b) of the Act. Admittedly, the acknowledgement was received by one V. Geetha Vani, under Ex.P-7 – postal acknowledgement. The petitioner admitted that summons sent by post to the address noted in the complaint was received by the petitioner. So, the address noted in the complaint is self-same address as noted in the statutory notice. Therefore, there is a presumption under Section 28 of the General Clauses Act, 1897, that when a registered post is sent by acknowledgement due to the correct address, then it is a deemed service. Now, the burden shifts to the petitioner to prove that the address mentioned in the notice is incorrect. His wife name is Vegesina Mahalakshmi Geetha Vani. He is unable to identify the signature of his wife in Ex.P-7. It shows his conduct that he has not come to the Court with clean hands. The petitioner, husband of the person who signed on the acknowledgement i.e., Ex.P-7, would definitely identify that whether the signature belongs to his wife or not. Even otherwise, when the address on the registered post acknowledgement due is correct, it is deemed that it has been served. Therefore, the trial Court after elaborate consideration of evidence on record rightly found the petitioner guilty. None of the findings are shown to be incorrect or improper. There are no grounds to set aside the impugned judgments and the revision case is devoid of merit. 14. Accordingly, the Criminal Revision Case is dismissed. _______________ K.C. BHANU, J August 06, 2010 MD THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.102 OF 2006 August 06, 2010