THE HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.784 of 2005 Date:07-04-2011 Between: Malati Ravindra Shah and another. ………..Petitioners AND Goodwin Pharma Chem Laboratories rep. by its proprietor G.V. Seshagiri Rao Kothapet, Guntur and another ……….Respondents THE HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.784 OF 2005 JUDGMENT: A-1 - a proprietary concern, A-2 - the proprietor of A-1 and A-3 - the director of A-1 concerned, were prosecuted and tired for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) in C.C. No.161 of 2002 on the file of the learned Judicial Magistrate of First Class for Excise, Guntur and the said Court, by its judgment dated 10-02-2003, while acquitting A-3 for the said offence found A-1 and A-2 guilty of the offence under Section 138 of the Act, and accordingly, convicted them for the said offence. However, A-2, being the proprietor of A-1 alone was sentenced to suffer simple imprisonment for six (6) months and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for three (3) months for the said offence. 2. Aggrieved by the said judgment and order of conviction as passed by the trial Court, A-1 and A-2 preferred Criminal Appeal No.72 of 2003 on the file of the Court of the learned VII Additional Sessions Judge, Guntur. However, since both the parties failed to advance their arguments and remained absent, the first appellate Court taking the material on record into consideration decided the appeal and found both A-1 and A-2 guilty of the offence under Section 138 of the Act and thereby dismissed the appeal by confirming their conviction and also sentence of A-2, being the proprietor of A-1, passed by the trial Court. Assailing the said judgment of the first appellate Court, A-1 and A-2 preferred this revision, inter alia, on the following grounds: (i) that both the Courts below failed to appreciate the evidence and other material on record in proper perspective; and (ii) that both the Courts below failed to appreciate the fact that there was a running khatha (account) between the parties and at the instance of the respondent- complainant, the revision petitioners (A-1 & A-2) along with A3, who was acquitted by the trial Court, had mailed 16 signed cheques, but without mentioning the dates and figures to the respondent - complainant towards security and with instructions not to present the said cheques without prior intimation to them and that the respondent - complainant in violation of and in contravention of the said instructions, presented those cheques for payment. 3. It is in the evidence of PW.1 - the proprietor of the complainant firm, that the accused were intimated on telephone about presentation of the cheques for payment. Therefore, the trial Court, having regard to the said evidence and relying on the provisions of Section 139 of the Act providing for presumption that the cheques were issued towards discharge of legally enforceable debt and since the said presumption was not rebutted by adducing appropriate evidence, dismissed the appeal confirming the conviction and sentence of A-1 and A-2. It is contended by the learned counsel for the petitioners - A- 1 and A-2 that as the first appellate Court had decided the matter based on the material available on record since there was no representation from either side for a quite a long time despite several adjournments, the revision petitioners, A-1 and A-2, realized that somehow they could not prosecute their case diligently and the same led to their predicament. In the circumstances, now it is also contended by the learned counsel for the petitioners - A-1 and -2 that the matter may be remitted back to the first appellate Court to enable the parties to advance their arguments and then to decide the matter on merits. 4. In the above circumstances of the case particularly in view of the fact that the first appellate Court decided the appeal without hearing both sides and also having regard to the contention raised by the learned counsel for the petitioners - A-1 and A-2 to remit back the matter to the first appellate Court for its disposal on merits, this Court is of the view that without going into the merits of the case, it is appropriate to remit the matter back to the first appellate Court for fresh disposal on merits after hearing both sides and the same would meet the ends of justice. 5. Accordingly, it is ordered that the matter shall be remitted back to the first appellate Court with a direction to the said Court to issue notices to both the parties, hear them and then decide the matter afresh on merits in accordance with law uninfluenced by the observations, if any, made by this Court, within a period of three (3) months from today. Till disposal of the first appeal by the first appellate Court, the execution of sentence of imprisonment of the petitioners – A- 1 and A-2 passed by the trial Court is suspended. 6. With the above observations and directions, the Criminal Revision case stands disposed of. ______________________ JUSTICE B.N.RAO NALLA Date:07-04-2011 Mrb/PV