THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1792 OF 2004 ORDER: 1. This Criminal Revision Case is preferred under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) against the judgment dated 16.08.2004 in Criminal Appeal No.172 of 2003 on the file of the IV Additional Sessions Judge (Fast Track Court), Ongole, whereunder and whereby the conviction and sentence recorded against the petitioner/accused in the judgment dated 04.12.2003 in C.C. No.367 of 2003 on the file of the II Additional Judicial Magistrate of First Class, Ongole were confirmed. 2. The petitioner herein is the accused and the first respondent herein is the complainant, in the C.C. For sake of convenience, the parties are hereinafter referred to as they are arrayed before the trial Court. 3. The brief facts that are necessary for disposal of this Criminal Revision Case may be stated as follows: The accused was the proprietor of New Car Travels, Ongole. On 2.4.2001, he took a sum of Rs.1.00 lakh as hand loan from the complainant in the presence of P.W.2, agreeing to repay the same with interest @ 24% p.a. Thereafter, the accused gave a letter to the complainant stating that he would repay the amount either on 25.5.2003 or on 5.6.2003. When the complainant approached the accused on 5.6.2003, the latter gave a cheque dated 5.6.2003 for Rs.1,02,000/- to the former, towards part payment of the above debt. When the said cheque was presented, it was dishonoured with endorsement ‘insufficient funds’. Thereafter, the complainant got issued statutory notice to the accused, and when the accused failed to discharge the debt even after receipt of the notice, the present complaint is filed. 4. The plea of the accused is one of the denial. During trial, P.Ws. 1 and 2 were examined and Exs.P1 to P5 were got marked, on behalf of the complainant. No oral or documentary evidence was adduced on behalf of the accused. 5. The trial Court, upon consideration of the evidence on record, found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’), accordingly convicted and sentenced him to suffer simple imprisonment for a period of one year and to pay compensation of Rs.1,00,000/- to the complainant under Section 357 Cr.P.C. failing which to undergo simple imprisonment for a period of three months. 6. Aggrieved by the same, the accused preferred the appeal. The appellate court, by the impugned judgment, dismissed the appeal confirming the conviction and sentence recorded by the trial Court. Challenging the same, the present revision case is preferred. 7. Heard both sides. 8. The learned counsel for the revision petitioner contended that the petitioner has not borrowed any amount from the complainant and that the findings of the both the courts below are perverse. Hence, he prays to set aside the conviction and sentence recorded against the petitioner. 9. On the other hand, the learned counsel for the first respondent contended that the evidence of P.W.1 and the documents filed on his behalf, are very clear that the petitioner/accused borrowed a sum of Rs.1,00,000/- from the complainant and to discharge the said debt, Ex.P2- cheque was issued, and when it was presented, it was dishonoured; that both the courts below, after appreciation of the evidence on record in right perspective, rightly convicted and sentenced the accused, and there are no grounds to interfere with the same. Hence, he prays to dismiss the revision case. 10. Revisional jurisdiction of this Court under Sections 397 and 401 Cr.P.C. is truncated one. Unless the concurrent findings of the courts below are illegal or improper or incorrect, ordinarily this court would not interfere with the same. A finding is said to be perverse, if it is not based on the evidence on record. 11. The offence alleged against the accused is punishable under Section 138 of the Act. To constitute an offence incorporated in the main enacting clause of Section 138 of the Negotiable Instruments Act, the following three conditions have to be established: a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 12. The evidence of P.W.1 is very clear that the accused borrowed a sum of Rs.1,00,000/- from him and to discharge the said debt, Ex.P2-cheque was issued to him. Therefore, the initial burden standing on the complainant has been discharged. Now, the burden shifts on to the accused, under Section 139 of the Act, to rebut the same. The words ‘unless contrary is proved’ in Section 139 of the Act indicate that there must be plea and evidence to discharge the said burden, and mere explanation is not sufficient. The accused has not discharged his burden to show that the cheque in question was not given by him to discharge the legally enforceable debt. Therefore, the presumption under Section 139 of the Act can be drawn. If it is drawn, the cheque in question was issued towards discharge of legally enforceable debt. Both the courts below, upon appreciation of the evidence on record in right perspective, found the accused guilty. None of the findings is shown to be perverse or contrary to law. Therefore, there are no grounds to interfere with the conviction recorded by the courts below. 13. With regard to sentence, Ex.P2-cheque was issued in the year 2003 and the accused has been prosecuting the case for the last seven years. Therefore, at this point of time, it is not desirable to send him to jail, instead, compensation can be awarded to meet the ends of justice. 14. In the result, the conviction recorded against the accused by the trial court, as confirmed by the appellate court, of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, is confirmed. The substantive sentence is set aside and the petitioner/accused is directed to pay compensation of twice the cheque amount viz. Rs.2,00,000/- (Rupees two lakhs only) to the complainant within six months from today, failing which he shall undergo simple imprisonment for a period of six months. 15. With the above modification in sentence, the Criminal Revision Case is dismissed. ------------------- (K.C.Bhanu, J.) 10.2.2010 Drk THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CAE No. 1792 OF 2004 Date: 10.2.2010 Between: Anjaneya Prasad Ithinedi, s/o. Chandraiah …Petitioner And Akki Pullareddy & another …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1792 OF 2004 10.2.2010