THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1400 of 2003 & TRANSFER CRIMINAL APPEAL No. 106 of 2008 COMMON JUDGMENT: 1. The Criminal Revision Case is directed by the petitioner/ complainant to set aside the fine amount imposed against the respondents 2 and 3/A.1 and A.2, in the judgment dated 22.7.2003 in C.C. No.114 of 2002 on the file of the Judicial Magistrate of First Class Special Mobile, Karimnagar and award compensation of twice the cheque amount. Transfer Criminal Appeal is filed by the appellants/A.1 and A.2, challenging the conviction and sentence recorded against them in the said judgment. 2. As both the cases arise out of the same judgment, they are being taken up together for disposal. For sake of convenience, the parties are hereinafter referred to, as they are arrayed in the impugned judgment. 3. The brief facts that are necessary for disposal of the present cases may be stated as follows. It is the case of the complainant that A.2 is the partner of A.1 firm and was in-charge of, and responsible for, day to day working of A.1 firm. A.2 has been purchasing seeds on credit basis on behalf of A.1 firm from the complainant and he used to make payment from time to time therefor, and in this regard, A.1 firm fell due a sum of Rs.3,42,833/- to the complainant. To discharge the said debt, A.2 gave a cheque bearing no.377235, dated 7.8.2000 for Rs.3,42,833/- to complainant firm. When the cheque was presented, it was returned with endorsement ‘account closed’. Thereafter, the complainant got issued statutory notice under Section 138(b) of the Negotiable Instruments Act, 1881 (for short, ‘the Act’). As the accused evaded receiving the notice, it was received back by the complainant firm on 19.9.2000. Hence, the complaint for the offence punishable under Section 138 of the Act. 4. When the accused were examined under Section 251 Cr.P.C. for the offence punishable under Section 138 of the Act, he pleaded not guilty and claimed to be tried. 5. To substantiate its case, P.Ws. 1 and 2 were examined and Exs.P1 to P12 were marked on behalf of the complainant. On behalf of accused, D.W.1 was examined and Exs.D1 to D9 were marked. 6. The trial Court, after consideration of the evidence on record, came to conclusion that the cheque in question was issued towards legally enforceable debt or liability and accordingly found the accused guilty of the offence punishable under Section 138 of the Act, accordingly convicted them and sentenced A.2 to suffer simple imprisonment for a period of one year and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for two months. Challenging the same, the present revision case and appeal are preferred by the complainant and accused respectively. 7. Now, the point for determination is whether the complainant proved its case beyond reasonable doubt for the offence punishable under Section 138 of the Act and if so whether the punishment is liable to be enhanced in view of the revision case filed by the complainant? 8. The learned counsel for the appellants/accused contended that there is no evidence to show that the accused was due the amount covered by Ex.P1-cheque and there are no invoices or any other documentary evidence to show that P.W.1 supplied seeds to the accused and therefore the initial burden on the complainant has not been established; that in view of the disputes between the accused and P.W.1, cheques were given for security purpose; that prior to the incident, P.W.1 committed theft of 7 cheques; that, the evidence of D.W.1 would go to show that the cheque in question was not given towards discharge of legally enforceable debt and that the documents marked on behalf of the accused would clearly go to show that there were some disputes between P.W.1 and the accused. Hence, he prays to set aside the conviction and sentence recorded by the trial court. 9. On the other hand, the learned counsel for the revision petitioner/complainant contended that the evidence of P.W.1 is very clear that the accused purchased seeds from the complainant on credit basis and the evidence of P.W.1 reveals that an amount of Rs.3,42,833/- was due and to discharge the said debt, Ex.P1-cheque was given; that the contention of the accused that he gave the cheque towards security purpose is not tenable because no such plea had been taken in the notice got issued by the accused and therefore it is a clear case where the trial court ought to have awarded compensation. 10. To constitute an offence incorporated in the main enacting clause of Section 138 of the Negotiable Instruments Act, the following three conditions 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. 11. There cannot be any dispute that the initial burden to prove the case for the offence punishable under Section 138 of the Act lies on the complainant. In normal criminal law, the burden never shifts on to the accused. But, in view of Section 139 of the Act, after the initial burden placed on the complainant has been discharged, the accused can rebut the same by adducing necessary evidence. The words ‘unless contrary is proved’ in Section 139 of the Act must mean that there should be a plea and evidence to substantiate the same. Mere explanation is not sufficient to discharge the burden under Section 139 of the Act. Of course, the accused can discharge his burden by preponderance of probability also, and the burden lying on the accused is not so heavy as the one lying on the complainant. 12. P.W.1 stated that he is the Managing Partner of M/s. Poornima Agro Agencies, Karimnagar; A.2 used to purchase and sell their seeds on behalf of A.1 firm, and that, after calculating the balance due, the accused gave the cheque dated 7.8.2000 for Rs.3,42,832/-. It is elicited that they settled the accounts in the presence of D.Rajeswar Rao of Katnapalli village and the terms of the settlement have not been reduced into writing as the accused issued the cheque immediately. Except suggesting that the accused are not liable to pay any amount and that there is no legally enforceable debt or liability to be discharged by the accused, nothing has been elicited to discredit the testimony of P.W.1. The evidence of P.W.1 that A.2 used to purchase and sell seeds on behalf of A.1 firm and after calculation of the balance amount, A.2 gave the cheque, remained unchallenged. It is nowhere suggested to P.W.1 that the cheque in question was given towards collateral security or for some other purpose. It is suggested to him that he was in possession of 9 blank cheques signed by partners of A.1 firm. But, there is no basis for it. The cheque was signed by both D.W.1 (A.2) and said Syamsundar Rao. Therefore, the evidence of P.W.1 with regard to A.2 and one Syamsundar Rao issuing the cheque in question on behalf of A.1 firm for purchase of seeds, remained unchallenged. It is also not in dispute that legal notice was also issued to said Syamsundar Rao, who is another partner. Therefore, the initial burden lying on the complainant has been discharged. Now, the burden shifts on to the accused. 13. A.2, who is examined as D.W.1, stated that as collateral security for each other, the complainant and accused firm have exchanged two cheques. He did not dispute that he was having dealings with P.W.1 till 1998. They both deal in seeds business. If really some cheques have been exchanged between the parties, D.W.1 would have filed those cheques. But, no such cheques have been filed by him. No suggestion was given to P.W.1 that the cheque in question was given as collateral security or both the complainant and accused firm exchanged cheques. 14. It is also stated by D.W.1 that P.W.1 committed theft of seven blank cheques in collusion with other partner. But, that is not the subject matter of the present case. According to him, D.W.1 issued Ex.D1-notice through his advocate to P.W.1 on 19.2.1999 and Ex.D2-telegraphic notice subsequently, and Exs.D3 to D7 are postal receipts and Ex.D8 is the charge sheet and Ex.D9 is the copy of complaint filed against P.W.1. Those documents are not relevant for the purpose of deciding the issue in this case, because the criminal case got filed by D.W.1 against P.W.1 was for the offences of house trespass, for causing simple injuries and intimidation. Even otherwise, the said case ended in acquittal and no appeal or revision has been filed against the said order. 15. The learned counsel for the appellants/accused heavily relied upon the contents of Ex.D1. There cannot be any dispute that they are pleadings raised by D.W.1. If the accused wants to rely upon the said contents, the same have to be proved. The contents in Ex.D1 are totally contradictory to the evidence of D.W.1. There was no plea that there was exchange of cheques between D.W.1 and P.W.1 for collateral security. As a matter of fact, P.W.1 need not give any collateral security to the accused, because, admittedly, he was supplying seeds to D.W.1. Therefore, to avoid the liability, D.W.1 must have given false evidence. In the first instance, there was no plea that the cheque in question was given for collateral security. Even otherwise, no suggestion was given to P.W.1 that the cheque in question was given towards collateral security. So, the burden placed on the accused has not been discharged to show that the cheque in question was given for collateral security. Therefore, the evidence of P.W.1 has to be accepted. The trial Court, after an elaborate consideration of the evidence on record, rightly convicted the accused and there are no grounds to interfere with the findings of the trial court. 16. As regards the sentence, the transaction is of the year 2000. A decade has been elapsed and at this point of time, it is not desirable to sent A.2 to imprisonment, and imposing the compensation to the extent of twice the cheque amount would meet the ends of justice. 17. In the result, the conviction recorded against the accused in the in the judgment dated 22.7.2003 in C.C. No.114 of 2002 on the file of the Judicial Magistrate of First Class Special Mobile, Karimnagar is confirmed. Both the accused are sentenced to pay twice the amount of cheque towards compensation within a period of six months from today failing which A.2 shall undergo simple imprisonment for a period of six months. 18. With the above modification in sentence, the Criminal Appeal is dismissed. The Criminal Revision Case is, accordingly, allowed to the extent indicated above. --------------------- (K.C.Bhanu, J.) 16.12.2009 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1400 of 2003 & TRANSFER CRIMINAL APPEAL No. 106 of 2008 Date: 16.12.2009 CRIMINAL REVISION CASE No. 1400 of 2003: Between: M/s. Poornima Agro Agencies, Karimnagar Rep. by its Managing Partner M.Narayana Reddy ….Petitioner/complainant and State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad & others …Respondents TRANSFER CRIMINAL APPEAL No. 106 of 2008: Between: M/s. Karshak Seeds, Karimnagar, rep. by its Managing Partner & another …Appellants/A.1 and A.2 And M/s. Poornima Agro Agencies, Karimnagar Rep. by its Managing Partner M.Narayana Reddy & another …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU COMMON JUDGMENT IN CRIMINAL REVISION CASE No. 1400 of 2003 & TRANSFER CRIMINAL APPEAL No. 106 of 2008 16.12.2009