THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No.189 of 2006 Date: 11.03.2011 Between: Achanta Siva Mohan …..Petitioner And The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad & another …..Respondents THE COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No.189 of 2006 ORDER: The sole accused was convicted by the learned VII Munsif Magistrate, Guntur for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’). He was sentenced to rigorous imprisonment for 6 months and fine of Rs.5,000/-. The accused preferred an appeal before the VIII Additional Sessions Judge (F.T.C.), Guntur. The learned VIII Additional Sessions Judge (F.T.C.), Guntur dismissed the appeal and confirmed the conviction and the sentence recorded by the trial Court. Aggrieved by the same, the accused preferred the present revision. It is the case of the 2nd respondent, who is the de facto complainant that the accused/revision petitioner borrowed Rs.30,000/- from him on 28.6.2001. The de facto complainant, who is the P.W.1 received Ex.P.2-Cheque for Rs.30,000/- from the accused on 3.2.2003 towards part payment of the amount due from the accused. The cheque presented to the bank had bounced on the ground of insufficient funds. T h e de facto complainant thereafter, issued notices to the accused demanding payment of the amount covered by the cheque. As the accused failed to honour the notice, the de facto complainant filed a case before the trial Court. The de facto complainant was examined as P.W.1. The bank officials were examined by the de facto complainant as P.Ws.2 and 3. The accused admitted Ex.P.1-promissory note as well as Ex.P.2-cheque. The defence of the accused is that the accused used to borrow the money regularly from P.W.1, that he left Ex.P.2 with P.W.1 towards collateral security and that P.W.1 foisted this case against the accused taking advantage of Ex.P.2 being with him. Admittedly, the de facto complainant/P.W.1 issued notice contemplated by the Section 138 of the Act to the accused. The accused received the same vide Ex.P.6-endorsement. However, the accused did not reply Ex.P.5-notice with the defence that he had taken before the trial Court. If the defence of the accused were true, the accused would have promptly replied Ex.P.5-notice claiming that Ex.P.2 was not executed by him in connection with the subsisting debt. The accused, in fact, examined D.Ws.1 and 2. D.W.1 is none other than the brother-in-law of the accused. D.W.2 is an independent witness. Both of them speak about the transaction between the accused and P.W.1 and about the dispute between the accused and P.W.1. However, neither of them would establish that Ex.P.2 was executed as collateral security as alleged by the accused. When Ex.P.2 is supported by Ex.P.1-promissory note, there cannot be any doubt that Ex.P.2-cheque was issued by the accused in connection with the subsisting debt. When the cheque stood bounced on account of lack of funds, the accused, at once, is liable for punishment under Section 138 of the Act. The trial Court as well as appellate Court are perfectly justified in finding the accused guilty of the offence under Section 138 of the Act. The trial Court sentenced the revision petitioner/accused to rigorous imprisonment for 6 months and fine of Rs.5,000/- with appropriate default sentence. The appellate Court confirmed the same. The learned Counsel for the revision petitioner, however, submitted that the civil suit filed by P.W.1 on the strength of Ex.P.1-promissory note, was decreed and that the accused, as judgment debtor in the civil suit had already honoured the amount covered by the decree. Taking this factor into consideration, I deem it appropriate to reduce the sentence of imprisonment awarded by the trial Court and confirmed by the appellate Court to rigorous imprisonment for one month, where the accused had already honoured the decree. The fine amount recorded by the trial Court and confirmed by the appellate Court deserves to be maintained. Consequently, this revision to the extent of conviction recorded by the trial Court and confirmed by the appellate Court against the accused/revision petitioner is dismissed. The conviction of rigorous imprisonment for six months as recorded by the trial Court and confirmed by the appellate Court is reduced to rigorous imprisonment for a period of one month, where it is claimed that the accused had already discharged the amount covered by Ex.P.1-promissory note. The accused is entitled to the benefits under Section 428 of Cr.P.C. setting off the period of imprisonment already undergone by him. The fine as recorded by the trial Court is maintained. Accordingly, the revision petition is partly allowed. _________________________ JUSTICE K.G.SHANKAR 11.03.2011 TJMR THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No.189 of 2006 DATE: 11.03.2011