(Prayer: Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the CriminalRevisionCase, the High Court may be pleased toto allow the Crl.RC and set aside the judgement dated 28-09-2018 in Crl.A.No.235 of 2016 on the file of the Honble XII Addl. District and Sessions Judge cum VI Addl. Metropolitan Sessions Judge, Vijayawadam, wherein the Honble Appellate Court confirmed the conviction and sentence of the petitioner or accused, dated 22-07-2016 passed in CC.No. 1141 of 2015 on the file of the Honble Chief Metropolitan Magistrate, Vijayawada, wherein the Honble trail Court convicted and sentenced the petitioner accused to undergo simple imprisonment for a period of six months and to pay a fine of Rs 5000 and in default to undergo simple imprisonment for one month for the offence under section 138 of the Negotiable Instrument Act, and to grant such other relief as it deems fit in the circumstances of the case.

IA NO: 1 OF 2018

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased May be pleased to dispense with filing of the certified copies of the Judgments dated 22-07-2016 passed in C.C.No. 1141 of 2015 on the file of the Honble Chief Metropolitan Magistrate, Vijayawada, and the copy of the Judgment dated 28-09-2018 passed in Crl.A.No. 235 of 2016 on the file of the Honble XII Additional District and Sessions Judge - cum - VI Additional Metropolitan Sessions Judge, Vijayawada, in the interest of Justice and to pass

IA NO: 2 OF 2018

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased May be pleased to suspend the operation and effect of the Judgment dated 28-09-2018 passed in Crl.A.No. 235 of 2016 on the file of the Honble XII Additional District and Sessions Judge - cum - VI Additional Metropolitan Sessions Judge, Vijayawada , wherein the Honble Appellate Court confirmed the conviction and sentence of the Petitioner/Accused, dated 22-07-2016 passed in C.C.No. 1141 of 2015 on the file of the Honble Chief Metropolitan Magistrate, Vijayawada, wherein the Honble trial Court convicted and sentences the Petitioner/Accused to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for one month for the offence under Section 138 of the Negotiable Instruments Act, pending disposal of the Crl.R.C., in the interest of Justice.

IA NO: 1 OF 2021

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Pleased to vacate the interim order dated 04-01-2018 in Ia. 02/2018 in Crl.Rc. 2688/2018 and pass)

1. The instant Criminal Revision Case has been preferred against the concurrent findings of the learned Courts below, wherein and where under both the petitioners were found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881(N.I.Act, 1881) (for brevity, “the N.I. Act”).

Factual Matrix of the case:

2. The accused borrowed an amount of Rs.2,00,000/- from the complainant on 02.02.2011 and promised to repay the same along with interest at 24% per annum. Upon demand, the accused issued a cheque dated 19.10.2011 for Rs.2,00,000/-. When the said cheque was presented for encashment, it was dishonoured with the endorsement “Funds Insufficient”. Thereafter, the complainant issued a legal notice to the accused. Though the accused received the said legal notice, he failed to comply with the demand made therein. Hence, the Criminal Revision Case.

3. After hearing both parties and upon appreciation of both oral and documentary evidence, the learned Trial Court convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo Simple Imprisonment for a period of six (06) months and to pay a fine of Rs.5,000/-. The said order of conviction was challenged before the learned Appellate Court. The learned Appellate Court also dismissed the appeal and confirmed the order of conviction. Hence, the instant Criminal Revision Case.

Submission of the petitioner.

4. Learned counsel for the petitioner submits that the complainant has failed to prove that there exists a legally enforceable debt between the complainant and the accused. He further submits that there were friendly relations between the petitioner and the complainant and that they had business transactions. In the course of such business transactions, the accused had issued a blank cheque in the name of the complainant. The complainant allegedly misused the said blank cheque by mentioning an amount of Rs.2,00,000/-.

5. It is also a ground of the petitioner that the demand notice was not served within the statutory period. The bank return memo (Ex.P3) is dated 21.10.2021, whereas the legal notice was issued on 21.11.2021, and thus there is a gap of 31 days. Therefore, the statutory provisions under Section 138(b) of the Negotiable Instruments Act, 1881 were not complied with.

Submissions of respondent:

6. Learned counsel for the respondent submits that the issue has time and again been decided by the learned Trial Court as well as the learned Appellate Court, and both Courts have concurrently found that there exists a legally enforceable debt between the complainant and the accused, and thereby the accused had issued the cheque in question.

7. He further submits that it was also concurrently held by the learned Courts below that the accused never denied his signature on the impugned cheque. Moreover, though a submission was made before the learned Trial Court that there were business transactions between the parties, nothing was proved by the accused in support of the same.

8. He further submits that the cheque return memo from the bank was received by the complainant on 21.10.2011 and the demand notice was served on 19.11.2011. There is no material to show that the demand notice was issued on 21.11.2011. Therefore, there was no delay in issuing the demand notice. Hence, the instant Criminal Revision Case is devoid of merit.

Observation of this Court:

9. There are concurrent findings of the learned Courts below. Firstly, it has to be looked into whether there exists a legally enforceable debt between complainant and accused and as to whether such issue was properly decided by the learned Trial Court and the learned Appellate Court.

10. The learned Appellate Court, in paragraph No.18 of impugned judgment, has categorically analyzed the issue on the basis of both oral and documentary evidence, the arguments advanced on behalf of the complainant as well as the accused were also taken into consideration on the basis of the materials available on record.

11. The learned Appellate Court opined that the accused did not properly clarify whether he and the complainant were doing business or whether there were only gambling transactions between them. Thereby, the learned Appellate Court is of the opinion that there exists a legally enforceable debt.

12. Upon perusal of the said observations, it appears that, in order to justify the contention that there was no legally enforceable debt between the complainant and accused, it was the duty of the accused to place some reliable material and evidence to show that a blank cheque was issued. In the present case, the accused failed to discharge his burden of proving the fact that the blank cheque was issued by him. In that view of the matter, the observations of the learned Appellate Court appear to be justified on that point.

13. While deciding the next issue as to whether the demand notice was served within the statutory period, it appears from the provisions of Section 138(b) of the Negotiable Instruments Act, 1881, the complainant, after receiving information from the bank regarding dishonour of the cheque, must issue a demand notice within 30 days.

14. In the present case, the information regarding dishonour of the cheque was received by the complainant on 21.10.2011. The legal notice was signed on 19.11.2011. At the time of passing of judgment, the learned Trial Court, in paragraph No.19, observed that the legal notice was registered on 21.11.2011. However, the postal receipt was never filed by the petitioner nor it was marked before the learned Trial Court.

15. In the absence of any such evidence, the learned Trial Court opined that it had seen the postal receipt attached to the legal notice (Ex.P4). I have perused Ex.P4 from the Trial Court record, such Ex.P4 does not contain or attach any postal receipt. Therefore, the observation of the learned Trial Court appears to be incorrect in that perspective. The legal notice marked as Ex.P4 was issued on 19.11.2011.

16. Moreover, this factual issue was never raised by the accused/petitioner before the learned trial court. If it were the position that the legal notice had been issued after 30 days, the same ought to have been noted or raised by the defence before the learned trial court. In the absence of any convincing oral or documentary evidence, this Court cannot go beyond the observations of the learned appellate court. Considering the same, in my view, the stand taken by the petitioner is not acceptable at this stage. Accordingly, I find no merit in the instant criminal revision case.

17. Furthermore, it appears that, at the time of admission of the instant Criminal Revision Case, the petitioner was directed to deposit an amount of Rs.1,00,000/- for the purpose of granting bail or stay of the order passed by the learned trial court. However, the said amount of Rs.1,00,000/- was not credited to the complainant’s account; rather, only Rs.25,000/- was paid directly to the complainant. The payment of Rs.25,000/- is not in consonance with the direction of this Court. It therefore appears that there are no merits to entertain the instant criminal revision case. Hence, the Criminal Revision Case is dismissed.

18. The order of suspension of sentence passed by this Court during the pendency of the instant Criminal Revision Case is hereby vacated. The petitioner is directed to appear before the learned trial court within six (06) weeks from the date of receipt of this order to serve out the sentence, failing which the learned trial court shall issue a non-bailable warrant of arrest against the petitioner for serving out the sentence.

19. With the above observations, the instant criminal revision case is dismissed.

Consequently, pending miscellaneous applications, if any, shall stand closed.