IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.61 of 2005 DATE:13.07.2010 Between: Gummadi Siva Prasad, …… Petitioner/Accused. And: Guntupalli Vara Prasad and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.61 of 2005 ORDER: The petitioner/accused was convicted in C.C. No.25 of 1998 by the Judicial Magistrate of the First Class, Ponnur by judgment dated 27.04.2002 for the offence under Section 138 of the Negotiable Instruments Act (in short, the Act) and was sentenced to simple imprisonment for six months and fine of Rs.5,000/- apart from payment of compensation of Rs.1,75,000/- to the complainant. The said conviction and sentence was confirmed by the III Additional Sessions Judge (Fast Track Court), Guntur in Crl.A.No.213 of 2002 by judgment dated 20.01.2005. Questioning the same, the accused filed this revision petition. 2) The accused/petitioner purchased black gram and green gram from the complainant/1st respondent and became liable to pay some amount, towards discharge of which amount, the accused gave Exs.P-1 to P-8 cheques on various dates for Rs.20,000/-, Rs.12,722/-, Rs.20,000/-, Rs.20,000/-, Rs.20,000/-, Rs.20,000/-, Rs.20,000/- and Rs.17,500/- respectively drawn on Chaitanya Grameena Bank, Vinukonda branch in favour of the complainant. When the complainant presented the cheques for collection through Andhra Bank, Guntur branch, the cheques were dishonoured as per Ex.P-9 bill returning letter of banker of the accused. Thereupon, the complainant got issued Ex.P-10 notice to the accused calling upon him to pay the amounts covered by Exs.P-1 to P-8 cheques. As the accused failed to pay the amounts covered by Exs.P-1 to P-8 cheques within 15 days of receipt of the notice, the complainant prosecuted the accused for offence punishable under Section 138 of the Act. 3) In this revision petition, it is contended by the petitioner’s counsel that the 1st respondent/complainant was doing business in black gram and green gram without having licence under the Pulses (Storage Control) Order, 1977 and that therefore it cannot be said that Exs.P-1 to P-8 cheques were given by the accused to the complainant towards discharge of legally enforceable debt. It is contended that since business of the complainant was illegal and contrary to law, the complainant will not be in a position to enforce his claim in a Court of law by a validly constituted civil suit, as the contract between the accused and the complainant are opposed to law and public policy. It is further contended that though Section 139 of the Act contains presumption that the cheques were issued for discharge of any debt, the said presumption does not extend to there being a legally enforceable debt. In Krishna Janardhan Bhat V. Dattatraya G.Hegde[1] the Supreme Court held “Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability”. 4) At this stage a brief reference to oral evidence let in by the parties may be necessary. Though the complainant examined himself as P.W-1, the accused opted not to go into witness box to give any oral evidence. He also did not file any documents. P.W-2 is Manager of the banker of the accused and he spoke about Ex.P-9 bill return letter to the effect that Exs.P-1 to P-8 cheques were dishonoured for want of sufficient funds in the account of the accused. According to P.W-2, there was balance of Rs.767/- only in account of the accused as against total sum of Rs.1,50,222/- covered by Exs.P-1 to P-8 cheques in total. Exs.P-1 to P-8 cheques were not dishonoured on the ground that signatures therein did not tally with specimen signatures of the accused. Therefore, there cannot be any dispute that Exs.P-1 to P-8 cheques were issued by the accused to the complainant for the respective amounts mentioned therein. It is contended by the petitioner’s counsel that neither in the complaint nor in the complainant’s evidence as P.W-1, details as to business transactions between the parties are forthcoming. Simply because the complainant did not file any supporting documents showing existence of the debt, it cannot be said that the complainant did not substantiate existence of debt between the parties. The complainant as P.W-1 deposed that the accused purchased black gram worth Rs.1,50,222/- on credit and issued Exs.P-1 to P-8 cheques on various dates mentioned therein. The accused did not deny the same by examining himself. Therefore, it does not lie in the mouth of the petitioner now to contend that the complainant failed to prove existence of any debt. Production of documentary evidence is not the only method of proof of existence of a debt. Oral evidence of the complainant as P.W-1, which is not controverted by the accused, also proves existence of debt for which Exs.P-1 to P-8 cheques were issued by the accused. Therefore, this Court has no hesitation to find that Exs.P-1 to P-8 cheques were issued towards discharge of debt owed by the accused to the complainant. 5) P.W-1 in cross-examination deposed that no licence was obtained from the Government for running his business. In his cross-examination he further deposed that he has got six acres of land in his name and he raises paddy and black gram in his land and that he has stored paddy and black gram in his house and that he is doing commission business. He further says that the accused took delivery of 80 quintals from ryots through him. 6) Clause 3 of the Pulses (Storage Control) Order, 1977 contemplates taking licence by dealers and producers for carrying on business and for storage of pulses above certain limits mentioned therein. The said Control Order defines ‘dealer’ in Clause 2(f) and defines ‘Commission Agent’ in Clause 2(e). There is no provision in the said Control Order requiring a commission agent to obtain licence, and forbidding transactions by a commission agent without licence. In the absence of any provision for taking licence by a commission agent, it cannot be said that the transactions between the accused who is a dealer and the complainant who is a commission agent or in any way contrary to law are opposed to public policy. Therefore, it cannot be said that the transaction between the accused and the complainant are hit by Section 23 of the Contract Act. Consequently this Court has no hesitation to hold that the debt incurred by the accused with the complainant, is a legally enforceable debt, in discharge of which the accused issued Exs.P-1 to P-8 cheques. Both the Courts below came to right conclusion in favour of the complainant and this Court does not find any reasons to come to a different conclusion in this revision petition. 7) Hence, the revision petition is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J July 13, 2010 KSH HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.61 of 2005 Date:13.07.2010 ksh [1] (2008)4 SCC 54