IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.877 OF 2001 Between: V. Krishnam Raju ..... Accused/Appellant/Petitioner AND The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Complainant/Respondent/Respondent The Court made the following: ORDER: The Criminal Revision Case, under Sections 397 & 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 23.07.2001, in Crl.A.No.91 of 2000, on the file of the learned I Additional Metropolitan Sessions Judge, Visakhapatnam, whereunder and whereby the conviction of the petitioner of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”), recorded by the learned V Metropolitan Magistrate, Visakhapatnam, vide judgment, dated 26.07.2000, in C.C.No.631 of 1999, was confirmed, but the sentence of Simple Imprisonment for a period of three months is reduced to two months, while confirming the fine of Rs.500/-. 2. Brief facts, that are necessary for disposal of the present Criminal Revision Case, may be stated as follows: The accused borrowed a sum of Rs.25,000/- from P.W.1 on 17.09.1997 for the purpose of his business, agreeing to repay the same with interest @ 24% per annum and executed a promissory note in favour of P.W.1. The accused did not repay the said amount inspite of several demands, but issued Ex.P1- cheque bearing No.819220, dated 19.04.1999, for a sum of Rs.27,850/-, towards part payment of the amount. When the cheque was presented, it was returned with an endorsement “Account closed”. Thereafter, the complainant got issued a statutory legal notice to the accused. As the accused did not give any reply or pay the amount after receipt of the notice, the complainant lodged the complaint. 3. When the accused was examined under Section 251 Cr.P.C. for the offence punishable under Section 138 of the Act, he denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the complainant examined P.Ws.1 to 3 and got marked Exs.P1 to P6. 5. After closure of the complainant evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating evidence appearing against him in the complainant evidence. He denied the same. On behalf of the accused, no evidence either oral or documentary was adduced. 6. The trial Court, after accepting the evidence of P.W.1 and Ex.P1-cheque, came to the conclusion that Ex.P1 cheque was given for discharge of legally enforceable debt, that the cheque was returned with an endorsement “Account closed”, that the accused failed to pay that amount even after receipt of statutory legal notice, and committed an offence punishable under Section 138 of the Act and accordingly convicted and sentenced him as stated above. On appeal, the Appellate Court confirmed the conviction, but the sentence of Simple Imprisonment for a period of three months is reduced to two months, while confirming the fine of Rs.500/-. Challenging the same, the present Criminal Revision Case is filed. 7. Now the point for determination is whether the judgments of the two Courts below are correct, legal and proper? 8. The learned counsel appearing for the petitioner contended that the account was closed on 04.06.1998, and therefore, the question of giving a cheque on 20.04.1999, does not arise, as at the time of closure of the account, necessarily unused cheque leaves have to be returned to the bank, and accordingly, the unused cheques were returned to bank on 04.06.1998. This circumstance would indicate that cheque in question was given prior to closure of account to P.W.1 for security purpose. Therefore, he prays to allow the revision petition. 9. To constitute an offence incorporated in the main enacting clause of Section 138 of the Act, the following ingredients 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.” 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be incorrect, or illegal, or improper, ordinarily this Court will not interfere with the concurrent findings of the two Courts below. 11. There cannot be any dispute that the initial burden always lies on the complainant to establish that the cheque in question was issued for legally enforceable debt or liability. When once the initial burden is discharged by the complainant, the burden shifts on to the accused in view of Section 139 of the Act. 12. The evidence of P.W.1 would go to show that the accused borrowed a sum of Rs.25,000/- from the complainant on 17.09.1997 for the purpose of investing in the business. His evidence would clearly go to show that the cheque in question was given to discharge the debt borrowed under the said promissory note. Nothing has been elicited to discredit the testimony of P.W.1 on this aspect. Now, the burden shifts to the accused under Section 139 of the Act to prove that the said cheque was not issued for discharge of a legally enforceable debt or liability. Of course, the accused can rebut the said presumption by adducing evidence or eliciting necessary material from the evidence adducing from the complainant witnesses. 13. The presumption under Section 139 of the Act which reads as follows: “It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” Though Section 139 of the Act is rebuttable presumption, but the word “unless contrary is proved” would mean that there must be a pleading and evidence to substantiate the same and mere explanation is not sufficient. The accused has not come to the witness box to speak that the cheque in question was not given for legally enforceable debt or liability, and that it was given for security purpose. 14. The evidence of P.W.2, who is the Branch Manager, would clearly go to show that the cheque was dishonoured as the account of the accused was closed in the year 1998. Even the said fact was admitted by the accused when he was examined under Section 313 Cr.P.C. 15. It is the contention of the learned counsel for the petitioner that the cheque in question was given as security. There is no evidence adduced by accused to show that he returned all the cheques at the time of closure of the account so as to infer that the cheque in question was given prior to closing of his account in the bank for the purpose of security. The accused himself admitted that he issued the cheque to the complainant, but he is disputing about the figures in the cheque. Under Section 118 of the Act, it can be presumed that a negotiable instrument shall be issued for consideration unless contrary is proved. The trial Court, after elaborate consideration of evidence on record, rightly found the accused guilty for the offence punishable under Section 138 of the Act and there are no grounds to interfere with the conviction recorded by the trial Court as confirmed by the Appellate Court. 16. With regard to the sentence, the transaction is relating to the year 1999, i.e., a decade has been elapsed. At this point of time, it is not desirable to send the accused to jail. Therefore, the compensation can be awarded to the complainant/second respondent to meet the ends of justice. Hence, while confirming the conviction for the offence punishable under Section 138 of the Act, the accused is sentenced to pay a compensation twice the cheque amount i.e., Rs.55,700/- within a period of six months from today, failing which he shall undergo Simple Imprisonment for a period of two months. 17. Accordingly, the Criminal Revision Case is dismissed with the above modification of sentence. _____________ (K.C.BHANU, J) Date: 24th November, 2009. KL