IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1493 OF 2003 BETWEEN: M/S. Janapriya Chit Funds Pvt. Ltd., Rep. by its Managing Director V. Subrahmanyeswara Rao and another …. Petitioners AND State of Andhra Pradesh, represented by the Public Prosecutor, High Court of A.P., Hyderabad and another …. Respondents THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1493 OF 2003 ORDER: This Criminal Revision Case is filed by the petitioners - A1 & A2 under Sections 397 & 401 of the Criminal Procedure Code, 1973 (for short “Cr.P.C.”), against the judgment dated 10-09-2003 in Criminal Appeal No.541 of 2001 passed by the learned VI Additional Sessions Judge, Guntur, whereunder and whereby, the conviction of the petitioners of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’) and sentence to undergo simple imprisonment for a period of six (6) months and to pay a fine of Rs.5,000/- each, in default to undergo simple imprisonment for a period of three (3) months as imposed in the judgment dated 29-10-2001 in C.C. No.17 of 2001 passed by the learned VII Additional Munsif Magistrate, Guntur, were confirmed. 2. The brief facts that are necessary for disposal of the revision case may be stated as follows: Respondent No.2 G. Padmasree, who is the complainant, has joined as a member of a chit of value of Rs.2,00,000/-, payable in 40 monthly installments @ Rs.5,000/-, in the petitioner No.1 firm – M/s. Jana Priya Chit Fund Private Limited. Petitioner No.2 is the Managing Director of Petitioner No.1 firm. Respondent No.2 paid all the installments of the said chit. Petitioner No.2 issued a cheque (Ex.P-1) dated 23-08-1999 for Rs.1,90,000/- drawn on Vysya Bank. Respondent No.2 presented Ex.P-1 cheque on 29-11-2000 in the State Bank of Hyderabad, Chandramouli Nagar Branch, Guntur, but the same was returned with an endorsement ‘insufficient funds’. Respondent No.2 got issued Ex.P5 - legal notice to the petitioners. The said notice was received by the petitioners under Ex.P-6 postal acknowledgment but, they did not give any reply nor pay the amount covered under Ex.P-1 cheque. Hence, respondent No.2 filed the complaint. 3. When the petitioners were examined under Section 251 Cr. P.C. for the offence punishable under Section 138 of the N I Act, they pleaded not guilty and claimed to be tried. 4. To substantiate the case of respondent No.1 (complainant), PWs.1 to 3 were examined and Exs.P-1 to P-8 were marked. 5. After closure of the evidence of respondent No.2, petitioners were examined under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing in the evidence of witnesses for which, they denied the same. The petitioners did not choose to examine any witness nor mark any documents on their behalf. 6. The trial Court, after consideration of the evidence on record came to the conclusion that respondent No.2 had established her case against the petitioners for the offence punishable under Section 138 of the N I Act, beyond all reasonable doubt and accordingly convicted and sentenced the petitioners (accused) as stated above. Aggrieved of the same, the petitioners preferred an appeal and the appellate Court dismissed the said appeal confirming the judgment of the trial Court. Challenging the same, this revision is filed. 7. The learned counsel for the petitioners contended that respondent No.2 failed to explain the alterations in Ex.P-1 cheque and that, there was material alteration in the said cheque and that, in view of the material alterations, the complaint itself is not maintainable and hence, he prays to set aside the impugned judgments. 8. On the other hand, the learned counsel for respondent No.2 contended that concurrent findings of two courts below need no interference. The plea of material alternations has not been taken. Hence, he prays to dismiss the revision petition. 9. Now the point for determination is whether the judgments of both the Courts below are correct, legal and proper ? 10. There cannot be any dispute that revisional powers of this Court under Sections 397 and 401 I.P.C. are truncated one. Unless it is shown that any one of the findings of the trial Court or appellate Court is perverse or not based upon any evidence, ordinarily, this Court will not interfere with the concurrent findings of the Courts below. The findings can be said to be perverse, if they are not based upon the admissible evidence. 11. PW-1 is the complainant. Her evidence would go to show that she joined as a member of petitioner No.1 chit fund company and she paid all the installments @ Rs.5,000/- per month and later petitioner No.1 issued Ex.P-1 cheque in her favour for a sum of Rs.1,90,000/- drawn on Vysya Bank, and when she presented the said cheque in State Bank of Hyderabad, it was dishonoured. 12. PW-2 is the Branch Manager of State Bank of Hyderabad, Guntur. His evidence would clearly go to show that PW-1 presented Ex.P-1 cheque for collection and when he sent the same to the concerned bank for clearance, the same was not honoured and was returned with an endorsement ‘insufficient funds.’ 13. PW-3, who is the Manager of Vysya Bank, Patamata Branch, Vijayawada, stated in his evidence that Ex.P-1 cheque came to his Bank for clearance and that it was not honoured because of insufficiency of funds. Practically PWs.1 to 3 remained unchallenged. 14. It is not in dispute that PW-1 is the member of a chit group of petitioner No.1 firm. In pursuance of the chit fund transaction, PW-1 paid the total 40 installments @ Rs.5,000/- per month. Thereafter, the accused issued Ex.P-1 cheque to her. Therefore, the evidence of PW- 1, coupled with Ex.P-1 cheque, would go to show that the cheque was given towards discharge of legally enforceable liability as the amount paid by her towards the chit fund transaction. Once, the burden is discharged by PW-1, it is for the petitioners to show that the said cheque was not given for legally enforceable debt or liability under Section 139 of the N.I. Act. This burden has not been discharged by the petitioners. 15. Learned counsel for the petitioners pleaded that there are material alterations in the negotiable instrument i.e. Ex.P-1. If the petitioners took such a plea, it was for them to establish that there were material alterations in Ex.P-1 cheque. None of the accused entered the witness box to say that there were material alterations in Ex.P-1 and it was also not suggested to PW-1 that there were material alterations in Ex.P-1 cheque. Therefore, the contention of the learned counsel for the petitioners is wholly untenable and devoid of merits. None of the above findings of the courts below is shown to be incorrect or illegal. The findings are based upon proper appreciation of the evidence on record. Therefore, there are no grounds to interfere with the conviction of the petitioners. 16. With regard to sentence, admittedly, it is the case of the complainant that she paid Rs.1,90,000/- towards chit transaction and that the said amount has not been paid to her. The incident had taken place about a decade back. So, at this point of time, it is not desirable to send the petitioners to jail. Accordingly, while confirming the conviction under Section 138 of the N I Act, the petitioners – A-1 and A-2 are sentenced a compensation of Rs.3,80,000/- (Rupees three lakhs and eighty thousand only) within a period of six (6) months from the date of receipt of a copy of this order, failing which petitioner No.2 - A-2 shall undergo simple imprisonment for a period of six (6) months. 17. The Criminal Revision Petition is, accordingly, dismissed with the above modification in sentence. _____________ K.C. BHANU, J December 15, 2009. KTL