· THE HON’BLE SRI JUSTICE R. KANTHA RAO + CRIMINAL REVISION CASE NO. 1536 OF 2004 % 07-09-2011 # Ravipudi Venkateswarlu .. Revision Petitioner-Accused VS. $ The State of AP Rep.by its Public Prosecutor High Court of AP Hyderabad & Anr. .. Respondents-complainant ! Counsel for the Rev.Petitioner : Sri S.Venkateswarlu ^ Counsel for the Respondents : Addl.Public Prosecutor for R-1 Sri N.Satyanarayana for R-2 < Gist : > Head Note : ? CITATIONS : IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE SEVENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL REVISION CASE NO. 1536 OF 2004 Between: Ravipudi Venkateswarlu … Revision Petitioner-Accused V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of Andhra Pradesh Hyderabad & Anr. … Respondents-Complainant Counsel for the Revision Petitioner : Sri S.Venkateswarlu Counsel for the Respondents : Addl.Public Prosecutor for R-1 Sri N. Satyanarayana for R-2 The Court made the following : (Judgment follows next page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL REVISION CASE NO. 1536 OF 2004. JUDGMENT : This Criminal Revision Case arises out of the judgment passed by VI Additional Sessions Judge (Fast Track Court), Prakasam in Criminal Appeal No.77 of 2002 confirming the judgment in CC.No. 31 of 2000, dated 30-3-2002 passed by the Additional Judicial Magistrate of First Class, Parchur, Prakasam district. 2. Heard Sri S. Venkateswarlu, the learned counsel appearing for the Revision Petitioner-Accused and Sri Nimmagadda Satyanarayana, the learned counsel appearing for the second respondent-defacto complainant. 3. The brief facts necessary for considering the present Criminal Revision Case may be stated as follows : According to the second respondent-complainant, the Revision Petitioner-Accused borrowed an amount of Rs.40,000=00 from him on 16- 4-1999 for family expenses and executed a promissory note in his favour, agreeing to repay the said amount with interest @ 24% per annum. Subsequently in discharge of the amount due under the promissory note, the revision petitioner-accused issued a cheque bearing No. 013932 dated 02-11-1999 for a sum of Rs.40,000=00 drawn on PDCC Bank Limited, Martur branch. The second respondent-complainant presented the cheque on 08-11-1999 for collection through Syndicate Bank, Idupulapadu. It was returned unpaid by PDCC Bank, Martur branch on 13-11-1999 stating that “no amount in his account” in the bank. The second respondent informed the said fact to the revision petitioner and on the request of the revision petitioner he waited for twenty days and again presented the cheque for collection on 02-12-1999 but the same was returned unpaid by PDCC Bank, Martur branch on 04-12-1999 on the ground of “insufficient funds” in the account of the revision petitioner in the bank. Subsequently, the second respondent issued a registered notice dated 13-12-1999, the revision petitioner received the notice but neither paid the cheque amount nor did reply to the notice. Thereafter, the second respondent filed a complaint under section 138 of the Negotiable Instruments Act before the learned Additional Judicial Magistrate of First Class, Parchur, Praksam district. 4. In the course of trial before the learned Magistrate, the second respondent to prove his case examined himself as PW-1 and three other witnesses as PWs 2 to 4 besides marking Exs.P-1 to P-10. One of the partners of the second respondent-complainant firm was examined as DW- 1 and the revision petitioner marked as Exs.D-1 to D-3 on his behalf. 5. Both the courts below upon analyzing the entire evidence on record arrived at the conclusion that there existed a legally enforceable debt and the impugned cheque was issued towards discharge of the said legally enforceable debt and since admittedly it was dishonoured the revision petitioner is liable for conviction for the offence under section 138 of the Negotiable Instruments Act. The learned trial Court convicted the revision petitioner under section 255 (2) Cr.P.C. for the offence punishable under section 138 of the Negotiable Instruments Act and sentenced him to suffer imprisonment for six months and to pay an amount of Rs.40,000/- to the second respondent towards compensation under section 357 (3) Cr.P.C., which was confirmed by the appellate court. 6. It has been contended on behalf of the Revision Petitioner that both the courts below have not properly appreciated the evidence on record and erroneously recorded conviction against the revision petitioner. The learned counsel appearing for the revision petitioner would submit that in the cross-examination, the second respondent who was examined as PW- 1 admitted that when the cheque was dishonoured for the first time he issued a notice to the revision petitioner, for which there was no reply. Second time he presented the cheque and again when the cheque was dishonoured for the second time, he issued Ex.P-5 notice and the learned counsel therefore argued that the cause of action for filing the complaint arises as soon as the first notice was issued and the complaint filed by the second respondent is barred under section 138 of the Negotiable Instruments Act. 7. Added to this, it may be stated that absolutely there is no mention about issuing of two notices to the revision petitioner in the complaint. There is only mention about Ex.P5 notice issued by the second respondent- complainant when the cheque was dishonoured for the second time. The second respondent-complainant had clearly mentioned in the complaint that he got issued a registered notice dated 13-12-1999 which is marked as Ex.P5 and that the revision petitioner though received the notice kept quiet without any payment or reply. Further the revision petitioner also did not file any notice received by him prior to Ex.P5. He only relied on the evidence of PW-1 during the course of cross-examination when he admitted that after the cheque was dishonoured for the first time he issued a notice to the revision petitioner. Both courts, in my view, rightly held that it is only “tongue-slip”. In the same cross-examination again PW-1 voluntarily corrected his statement and asserted that he only issued Ex.P5. Therefore, I do not think that both courts below have committed any error in appreciating the evidence on this aspect. 8. In so far as the legally enforceable debt is concerned, it is the contention of the learned counsel appearing for the Revision Petitioner that PW-1 was the managing partner of Vijayadurga Chits and Finance, Martur, which was subsequently dissolved. When the firm was in existence the revision petitioner borrowed some amount from the firm in the year 1995 and subsequently he repaid the same and in that connection the firm obtained blank promissory note and a cheque book from the revision petitioner for the security of loan advanced and subsequently after the firm was dissolved, the second respondent who was in possession of the blank promissory notes and blank cheque book filed the complaint against the revision petitioner to have unlawful gain. Both the courts below did not accept the said contention and they did not rely upon the oral testimony of DW-1, who was one of the partners of Vijayadurga Chits and Finance, Martur, supported the version of the revision petitioner and stated that the firm while advancing loan of Rs.50,000-00 to the revision petitioner obtained from him promissory note and also a cheque book. It is required to be seen that PW-1 filed a promissory note allegedly executed by the revision petitioner and it is marked as Ex.P-1. For Ex.P5 notice dated 13-12-1999 issued by the second respondent, there was no reply from the revision petitioner. If really, the second respondent issued notice earlier to Ex.P5, the revision petitioner would have certainly filed the said notice into the court but he did not file any such notice. The second respondent therefore in my view could be able to demonstrate before the trial court that the revision petitioner issued Ex.P2 cheque bearing No. 21199 for Rs.40,000=00 towards discharge of legally enforceable debt and both courts below after thoroughly scrutinizing the evidence arrived at the conclusion that on account of dishonour of the said cheque, the revision petitioner is liable for punishment under section 138 of the Negotiable Instruments Act. 9. In revision this Court will interfere with the concurrent findings recorded by both the courts only if they are perverse or not based on evidence. In the instant case, as I have already said the findings recorded by both the courts below are after thoroughly scrutinizing the evidence and upon considering the facts and circumstances of the case. This Court, therefore, will not interfere with the concurrent findings recorded by both the courts below. 10. In the result, the Criminal Revision Case is dismissed and the conviction and sentence passed by the learned Additional Judicial Magistrate of First Class, Parchur, which was confirmed by the VI Additional Sessions Judge (Fast Track Court) Prakasam, is hereby confirmed in all respects. ___________________________ JUSTICE R. KANTHA RAO . 07-09-2011 I s L NB: LR Copy to be marked. THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL REVISION CASE NO. 1536 OF 2004 NB: L.R. COPY TO BE MARKED. Circulation No. 3 7 Date : 07-09-2011 Court Master : I s L Computer No. 43