THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL REVISION CASE No.209 of 2005 ORDER: This is a complainant’s revision from an appellate judgment of acquittal. Petitioner, which is a limited company, in this criminal revision case is the complainant in C.C.No.273 of 2000 on the file of the Court of VIII Metropolitan Magistrate, Vijayawada (trial court). It filed the said complaint case against the respondent/accused alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short Act) (cheque bouncing offence). 2. The trial court after considering the matter by its judgment dated 18.04.2001 found the accused guilty of the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.5,000/- with a default clause prison sentence of two months for non-payment of fine. Aggrieved by that judgment, the accused filed Crl.A.No.65 of 2001. That appeal was allowed by the VIII Additional District and Sessions Judge, Vijayawada (appellate court), by his judgment dated 14.12.2004. Questioning that appellate court’s judgment, the complainant has come up with this revision. 3. The case of the complainant is that it is carrying on business in pesticides and micro fertilisers with its regional office at Vijayawada and the accused who is also a dealer in pesticides and fertilisers at Palakol purchased pesticides on an account from it from time to time on credit basis. The complainant’s version is that as on 8.10.1998 the accused became liable to pay to it an amount of Rs.1,44,824/- towards principal amount due for the price of fertilisers. It is the further version of the complainant that in discharge of the said liability, the accused issued Ex.P.4 cheque bearing No.618376 dated 6.9.1999 for Rs.1,44,824/- drawn on Andhra Bank, Palakol Branch and when it presented the cheque for collection in its bank on 11.9.1999 it was dishonoured and returned with its banker’s memo dated 16.9.1999 with the endorsement that the cheque was dishonoured for insufficient funds in the account of the accused. The plea of the complainant is that it received the returned cheque on 21.9.1999 and thereafter it has issued the statutory notices under the Act to the accused and as he did not pay the amount, it filed the complaint. 4. The plea of the accused was one of denial. In the cross- examination of P.W.1 G.Koteswar Rao, the Customer Service Manager of the complainant company it was suggested on behalf of the accused that the present Ex.P.4 cheque in question and another cheque were given by the accused as security for the stocks sold or released to the accused and that the accused has been regular in paying the dues and therefore nothing is due from him under the present cheque. It is seen that the accused relied upon Ex.D.1 letter dated 19.1.1998 said to have been given by one M.Uma Maheshwar Rao, the then Field Representative of the complainant company and of-course it shows that the present cheque No.618376 i.e. Ex.P.4 is mentioned in it. The trial court however rejected the above defence of the accused whereas the appellate court in substance accepted that. 5. Before I proceed further, it must be mentioned here that in this revision the complainant is seeking the relief of setting aside the acquittal recorded by the appellate court and for restoring the judgment of the trial court by which it convicted the accused and sentenced him as aforesaid. At the time of arguments Sri A.V. Sesha Sai the learned counsel for the petitioner and also Sri S.Ashok Anand Kumar the learned counsel for the accused did not argue about the power of this court in a revision to convert a finding of acquittal into one of conviction. It may now be noted that in a revision from acquittal this court by reason of restriction under Section 401(3) of the Code of Criminal Procedure, 1973, cannot convert a finding of acquittal into one of conviction. It is also now well settled that this court can interfere in a revision from acquittal only if the judgment in question is found to be totally contrary to law or against evidence and perverse and even then this court can only remand the matter to the appellate court for fresh disposal. This is the settled position in revisions from acquittals and this legal position is stated in the Supreme Court decision given in Thankappa Nadan v. Gopala Krishnan[1]. Since the above legal position was not argued by both the counsel, a question may arise as to whether the matter should be re-opened for further hearing on the said question. At the same time it should be noted that even if the matter is re-opened the above legal position holds good regarding the power of this court in revisions and since both parties are bound by the above legal position it follows that no useful purpose would be served by reopening the matter and hearing it further. Keeping in view the above legal position, the merits of the matter and the validity of the appellate court’s judgment in question have to be considered and the matter is being disposed of according to the said legal position without posting the matter for further hearing. 6. Sri A.V.Sesha Sai basing upon the oral evidence of P.W.1 and Exs.P.1 to P.11 documents and especially Ex.P.5 letter dated 4.9.1999 which purports to have been issued by the accused himself argued that the appellate court committed a serious error and acted against the evidence in upholding the above defence of the accused. He pointed out that Ex.P.5 letter dated 4.9.1999 which is signed by the accused himself shows that he has acknowledged the debt of Rs.1,44,824/- towards the account dealings or khata dealings regarding the amount due for fertilisers purchased by him and that it also acknowledges that he issued the Ex.P.4 cheque for the present amount of Rs.1,44,824/- and the transactions are also supported by Ex.P.3 ledger copy account which is a computer generated one pertaining to the account of the accused which is maintained in the name of his proprietory concern. He then pointed out that Ex.D.1 letter relied upon by the accused is drafted on the letter head of Mani Enterprises which is the proprietory concern of the accused himself and it is highly unreliable to hold that the complainant company would have given such a letter on the letter head of the accused in stead of on its own letter head. Additionally he argued that the accused did not examine the said M.Uma Maheswar Rao also who is said to have given Ex.D.1 letter on behalf of the complainant and these are strong circumstances to conclude that the defence of the accused is false and the appellate court totally acted against evidence in rejecting the complainant’s case. 7. On the other hand Sri S.Ashok Anand Kumar argued that there is no circumstance to disbelieve Ex.D1 letter and that the complainant’s Field Representative himself gave Ex.D.1 letter and the complainant should have examined the said M.Uma Maheswar Rao to disprove Ex.D.1 and having not done so, the complainant should fail. He also argued that the complainant did not file the copies of the credit bills and this is a circumstance which raise against him. Regarding Ex.P.5 letter, he argued that Ex.D.1 letter would also show that he gave some blank letter heads with his signatures and that the complainant must be held to have forged the said letter on one of those letter heads and since the complainant did not examine the employee who took that letter from the accused, the said letter should be rejected as not proved and therefore the acquittal recorded by the appellate court cannot be faulted. He then relied upon M.S.Narayana Menon v. State of Kerala[2], Hiten P.Dalal v. Bratindranath Banerjee[3] and K.Prakashan v. P.K.Surenderan[4] and argued, basing on the principles laid down therein, the defence of the accused should be held to have been correctly accepted by the appellate court. He then argued that this is an appeal from acquittal and since the appellate court has recorded sufficient reasons, it is not for this court to interfere in the matter in a revision. 8. In the light of the above contentions, it has now to be seen whether there are grounds to interfere with the acquittal and this is the point in this revision. A perusal of the judgment of the appellate court would show that the conclusions reached by it can be said to have been recorded without considering the evidence properly and also the effect of presumption under Section 139 of the Act which weighs in favour of the complainant as contended by the petitioner’s counsel and the appeal should be remanded to the appellate court for fresh disposal. I now proceed to give reasons for this conclusion of mine. 9. The appellate court, after setting out the cases of the parties, proceeded to discuss the merits from para-4 onwards in its judgment. The oral evidence on behalf of the complainant consists of oral testimony of its customer service manager i.e. P.W.1 G.Koteswar Rao and he spoke about all the documents. It should be noted that no suggestions were made to P.W.1 to the effect that Ex.P.5 letter which is said to have been given by the accused is a got up document and nothing was elicited from him to probablise the defence of the accused. This Ex.P.5 letter is dated 04.09.1999 and it reads that the accused himself gave the said letter on his letter head acknowledging his transactions with the complainant and also his indebtedness to a tune of Rs.1,44,824/-. Yet the appellate court did not discuss the above aspect and it simply went by the fact that the complainant did not file the credit bills to show the credit sales to the accused. It has also failed to give any convincing reasons as to why it has rejected Ex.P.3 ledger copy account of the accused with the complainant. 10. The appellate court then gave very much importance to Ex.D.1 letter forgetting the fact that it purports to have been drafted on the letter head of the proprietory concern of the accused himself. It may be noted that normally such letters acknowledging receipt of blank cheques towards security are given on the letter head of the supplier of goods or some receipt or document containing an indication that they belong to the supplier or vendor of the goods but not the letter head of the purchaser. It is also not clear from the evidence whether Uma Maheswar Rao who signed the said letter was authorised to give such letter on behalf of the complainant. The appellate court also failed to state as to who should examine Uma Maheswar Rao who purports to be the signatory to Ex.D.1 letter and who should fail if he is not examined. 11. It may also be noted, as observed by the trial court, the accused did not dispute his signature on Ex.P.4 cheque. The appellate court did not reverse that finding, but yet it did not discuss about the presumption which weighs in favour of the complainant company under Section 139 of the Act regarding the Ex.P.4 cheque and it did not give any reason as to how the accused can be said to have rebutted that presumption especially in the face of Ex.P.5 letter and Ex.P.3 ledger account copy pertaining to the accused. The appellate court also gave much importance to the version of the accused that he has returned the stocks to the complainant and a suggestion was made to that effect to P.W.1 which was denied by him. The accused did not from his side file any documents or papers which indicate that he has returned the stocks which he would have certainly maintained and it did not also discuss how the failure of the accused to prove his plea regarding return of stocks would strengthen his case. 12. The appellate court then proceeded to comment about the statutory notices issued by the complainant and whether or not they were received by the accused, but it did not give any finding as to whether or not the complainant can be said to have complied with the requirement under Section 138 of the Act in giving the said notices. It then observed that the presentation of the cheque was also beyond its validity period treating that the cheque in question was issued on the date of Ex.D.1 letter which is 19.1.1998. It reached this conclusion without discussing the effect of Ex.P.5 letter and its truthfulness. No specific findings have been recorded on the above aspects. The above short comings in the judgment of the trial court are clearly noticeable. It may be noted that sitting in a revision from acquittal, this court should not also make any observations which have the effect of or which can be understood as giving a direction to the appellate court while remanding the matter to confirm the convictions recorded by the trial court. The above short comings would only show that the appellate court did not consider the evidence on record in reaching its conclusions. 13. In the above situation, it follows that the judgment of the appellate court can be said to be contrary to law inasmuch as it did not consider the evidence in recording its findings and in stead it proceeded to reverse the trial court’s judgment by making certain observation which cannot be said to be findings based on evidence. Thus it can be said that the appellate court has committed an illegality and its judgment calls for interference by this court and the matter has to be remanded for fresh disposal. The various decisions cited by the learned counsel for the accused pertain to the appreciation of defence of the accused on merits vis-à-vis the case of the complainant and they can be cited before the appellate court as the matter is now being remanded. 14. Accordingly for the aforesaid reasons this criminal revision is allowed and the appeal is remitted back to the appellate court for fresh disposal in accordance with law. Parting with the matter, it is again made clear that this order shall not be understood to be giving a direction to the appellate court to confirm or reverse the judgment of the trial court and it shall be open for the appellate court to re-appreciate the evidence and arrive at its own conclusion in the matter one way or the other. As the matter is an old one, the appellate court shall proceed to dispose it of as early as possible. ______________________ N.RAVI SHANKAR, J 18th January, 2012 Tjmr/Cvrk [1] 2002(9) SCC 393 [2] (2006) 6 SCC 39 [3] (2001) 6 SCC 16 [4] (2008) 1 SCC 258