IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.1745 OF 2003 Between: B. Panduranga Rao ..... Petitioner AND The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent The Court made the following: ORDER: The Criminal Revision Case, under Section 397 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 19.11.2003, in Crl.A.No.14 of 2002, on the file of the learned Metropolitan Sessions Judge, Vijayawada, whereunder and whereby the conviction of the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”), and sentence of Simple Imprisonment for a period of six months and to pay a fine of Rs.2,000/-, in default to suffer Simple Imprisonment for a period of one month made in judgment, dated 28.01.2002, in C.C.No.453 of 1998, on the file of the learned II Metropolitan Magistrate, Vijayawada, were confirmed. 2. The learned counsel appearing for the petitioner reported that non-bailable warrant issued to the petitioner was said to have been inexecutable by the police in view of the fact that the whereabouts of the petitioner were not known. This Criminal Revision Case is pending for the last six years. Therefore, this Court has no objection to proceed with the disposal of this Criminal Revision Case in accordance with law. 3. Brief facts, that are necessary for disposal of the present Criminal Revision Case, may be stated as follows: The petitioner/accused used to purchase Acqua Feed from the complainant company on credit basis. An account was being maintained by the complainant company and the accused towards discharge of his liability under the account, issued two cheques bearing (i) cheque No.0343391, dated 10.07.1998 for Rs.50,000/- and (ii) cheque No.0343385, dated 25.07.1998, for Rs.2,79,146/-, drawn on the Vysya Bank Ltd., Bhimavaram, in favour of the complainant company, which are marked as Exs.P3 and P4. When the complainant company presented the two cheques for collection, they were returned with an endorsement “Insufficient Funds”. Then the complainant company got issued a statutory legal notice, dated 13.08.1998, to the accused under Ex.P11 demanding the accused to pay the amounts covered by the two cheques. After receipt of the notice, the accused neither paid that amount nor given any reply. Hence the complaint. 4. 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. 5. To substantiate its case, the complainant examined P.Ws.1 & 2 and got marked Exs.P1 to P15. 6. 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 oral evidence was adduced except marking Exs.D1 to D3. 7. The trial Court, after considering the evidence on record, came to the conclusion that Exs.P3 and P4 cheques were given for discharge of legally enforceable debt, that the cheques were returned with an endorsement “Insufficient Funds”, that the accused failed to pay that amount even after receipt of statutory legal notice, dated 13.08.1998, and committed an offence punishable under Section 138 of the Act and accordingly convicted and sentenced him as stated above. 8. Now the point for determination is whether the judgment of the two Courts below are correct, legal and proper? 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 cheques in question were issued for legally enforceable debt or liability. When once the initial burden is discharged by the complainant, the burden shifts to the accused in view of presumption under Section 139 of the Act. 12. The evidence of P.W.1 coupled with Ex.P2-Statement of Account would clearly go to show that the accused used to purchase Acqua Feed from the complainant company on credit basis and that the statement of account is maintained in the name of the accused. To discharge the amount covered under Ex.P2, the cheques in question were issued by the accused. Admittedly, the cheques in question were returned with an endorsement “Insufficient Funds”. Therefore, the initial burden on the complainant stands discharged. Then the burden shifts to the accused to show that the cheques in question were not given for legally enforceable debt or liability. 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. 14. The accused can discharge the burden by adducing evidence by preponderance of probability. It is not necessary that the accused shall come to the witness box and rebut the presumption under Section 139 of the Act. He can as well elicit from the cross-examination of P.W.1 that the cheques in question were not given for discharge of any legally enforceable debt or liability, but the accused has not elicited anything in the cross-examination of P.W.1 that the cheques in question were given otherwise than to discharge the liability covered under Ex.P2-Statement of Account. Therefore, the trial Court as well as the Appellate Court, upon proper appreciation of evidence on record, rightly came to the conclusion that the accused committed an offence punishable under Section 138 of the Act. None of the findings is shown to be incorrect or illegal or contrary to law. None of the grounds is taken that the complainant company is not made a party in the complaint. Therefore, the said contention is untenable. None of the grounds raised in this revision petition make any consideration in view of the fact that the findings are based upon proper appreciation. It is clear that on proper appreciation of evidence, the findings would be arrived at. There are no grounds to interfere with the impugned judgment. Hence, the Criminal Revision Case is devoid of merit and is liable to be dismissed. 11. Accordingly, the Criminal Revision Case is dismissed confirming the judgment, dated 19.11.2003, in Crl.A.No.14 of 2002, on the file of the learned Metropolitan Sessions Judge, Vijayawada. _____________ (K.C.BHANU, J) Date: 3rd November, 2009. KL