IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE V SRINIVAS CRIMINAL REVISION CASE NO: 88 OF 2016 Revision filed under Section 397 & 401 of Cr.P.C, 1973, praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to against the judgment and sentence passed by the learned VIII Additional District & Sessions Judge, Chittoor in Crl.A.no.66 of 2011 dated 21.03.2011 confirming the trial court judgment and sentence passed in STC No.47 of 2006 on the file of the Judicial Magistrate of First Class, Kuppam, dated 17.02.2011. Between: A.Velu, son of Armugam, Proprietor of Genesis Diamonds, resident of 50/2, Baji Corn plex, Ummah Road, Tirupatur 6356601, Vellore District, Tamilnadu. ...Petitioner/Appellant/Accused AND 1. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court at Amaravathi ...Respondent son of Bheemappa, aged 31 years, resient at 2. B. Rajendra Lakshmipuram Village and Post, Kuppam Mandal, Chittoor District. ...Respondents/Respondent/Complainant Ss : SRI. V SURENDRA REDDY : PUBLIC PROSECUTOR Counsel for the Petitioner Counsel for the Respondent No.1 Respondent No.2; SRI. PRAKASH C Counsel for the The Court made the following: THE HON'BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE No.88 of 2016 JUDGMENT: Assailing the judgment dated 21.03.2014 in Crl.A.No.66 of 2011 on the file of the Court of learned VIll Additional Sessions Judge at Chittoor, confirming the conviction and sentence passed against the accused by the judgment dated 17.02.2011 in S.T.C.No.47 of 2006 on the file of the Court of learned Judicial Magistrate of First Class at Kuppam, for the offence under section 138 of Negotiable Instruments Act (hereinafter referred to as “N.I.Act”), the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973. The revision case was admitted on 06.01.2016 and the sentence imposed against the petitioner was suspended, vide 2. orders in Crl.R.C.M.P.No. 122 of 2016. The shorn of necessary facts are that: i). In the month of July 2006, the accused availed loan of Rs.60,000/- from the complainant for opening of a new Diamond Showroom and promised to repay the same. On that, he issued Ex.P. 1 cheque dated 23.08.2006 for 3. 2 Rs.60,000/- towards repayment of the said loan amount. When the complainant presented the said cheque for collection through his banker, the same was returned with an endorsement that ‘funds insufficient’ under Ex.P.2 cheque return memo, dated 09.10.2006. Then, the complainant got issued Ex.P.4 notice dated 26.10.2006 to the accused. Even after receiving the receipt of the same under Ex.P.6 acknowledgment, the accused did not make any payment and kept quiet. Hence, the complaint. iv). The complaint was taken on file and numbered as 4. S.T.C.No.47 of 2006 on the file of the Court of learned Judicial Magistrate of Fist Class at Kuppam, after full-fledged enquiry, fide judgment dated 17.02.2011, found the accused guilty of the offence under Section 138 of N.l.Act and sentenced him to undergo simple imprisonment for four (4) months and also to pay an amount of Rs.60,000/- towards compensation to the complainant under Section 357 Cr.P.C. 5. Aggrieved by the same, the petitioner/aecused preferred an appeal, vide Crl.A.No.66 of 2011, before the Court of learned Vlll Additional Sessions Judge at Chittoor and the same was 3 dismissed, yide judgment dated 21.03.2014, by confirming the conviction and sentence imposed against the accused. Against the said judgment of the first Appellate Court, the was preferred by the 6. present criminal revision case petitioner/accused. Heard Sri V.Surendra Reddy, learned counsel for the 7. petitioner/accused. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?” The only contention raised by the learned counsel for the appellant is that the first Appellate Court decided the appeal on merits only in the absence of petitioner, thereby, the same is liable to be set aside. The said contention has no legs to stand, since, categorical observations made by the first Appellant Court that “the accused stalled the proceedings for several years, he is remained absent from 06.9.2011 onwards and counsel for the accused on record reported no instructions thereby, the accused has deliberately avoided to attend the 8. 9. on 10. 18.03.2014, on r 4 Court”, decided the appeal material on record. merits by appreciating the on 11. To prove the case, the complainant examined P.W.l and got marked Exs.P.l his evidence, he reiterated the facts himself as to P.5 before the trial Court. In stated in the complaint. Except the bare suggestions, nothing was elicited to disbelieve the testimony of P. W. 1. 12. On perusal of Ex.P.l, the accused issued the same i favour of complainant for in amount of Rs.60,000/-. When the an same was presented in his bank for collection, returned with an endorsement /insufficient funds’ under Exs.P.2 and P.3 cheque notice within the receiving the receipt of the same under Ex.P.5 acknowledgment, the accused did returned memos and then he got issued Ex.P 4 limitation under the Act. Even after not make any payment, which all shows that the Ex.P.l issued by the accused committed default i cheque was payment of cheque amount to the complainant, and as such, the burden to m prove the case was discharged by the complainant. On the other hand, except the bare contention that Ex.P.5 acknowledgement was obtained by fraud for the 13. purpose of filing the case, even he did not deny the issuance of Ex.P.l cheque. On perusal of Ex.P.4 legal notice, it was sent to the 5 address of the accused and the same was mentioned in the sent to the accused for the complaint as well. The summons same address by the Trial Court was received by him and made before the trial Court. Thereby, the said his appearance contention raised by the accused that Ex.P.5 acknowledgement was obtained by fraud has no merits. Even the accused did not enter into witness box nor placed any record or piece of paper to say that Ex.P. 1 cheque issued to discharge the legally enforceable debt between him and complainant. Thereby, the presumption under Section 118 of N.I.Act is in favour of the complainant and the accused 14. was failed to rebut the same. Section 139 of N.I.Act enjoins the Court to presume that the holder of the cheque received it for the discharge of any debt liability and the burden is only on the accused to rebut the said presumption. Thereby, before the trial Court the complaint established his case and both the Courts below rightly appreciated the material on record and found the guilt of the accused for the offence under Section 138 of N.I. Act and in view of the above discussion there are no grounds put forth by the petitioner to interfere with the concurrent findings recorded by both the Courts below. 15. or 6 16. The Apex Court in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand}, held that “The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 Cr.P.C. Section 401 Cr.P.C is a Court to exercise all in aid of power of superintendence provision enabling the High powers of an appellate court, if necessaiy, or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 Cr.P.C. confers power on the High Court or Sessions Court, as the case may be for the purpose of satisfying Itself or himself as to the correctness, legality or propriety of any finding, sentence, or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”, above purpose, if necessaiy, the High Court or the Sessions It is for the Court can exercise all appellate powers. Section 401 Cr.P.C conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.P.C, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power. (2004) 7 see 659 7 Thus, it is settled law that the revisional court should not re-appreciate the evidence or interfere with the findings of fact, unless they are perverse or unreasonable. This is one of the principles of criminal revision, as laid down by the Supreme Court of India in several cases. The revisional court should not act as a second appellate court and substitute its own views for those of the Court below, unless there is a clear error of law or a gross injustice in the order or proceeding of the lower court. The revisional court should exercise its power with caution and restraint, and only in exceptional cases where there is a manifest illegality or a serious miscarriage of justice. In the present case on hand, this Court does not find any such error of law or a gross injustice in the judgment or proceeding of the Courts below to exercise revisional power. Coming to operation of sentence is concerned, now it is relevant to refer a judgment of this Court in Laxminivas Agarwal v. Andhra Semi-Conductors Pvt.Ltd.^ as well as pronouncement of HonTale Supreme Court in Bir Singh v. Mukesh Kumar^, wherein at paragraph Nos. 18, 19, 28 and 29 17. 18. 19. held as follows; 2(2006) 1 ALD Crl.300 (A.P.) 3(2019)4 see 197 \ 8 18. The Appellate Court affirmed the aforesaid findings. The Trial Court and the Appellate Court at the specific concurrent factual finding that the cheque had admittedly been signed by the respondent The Trial Court and the Appellate Court rejected the plea of the factual arrived \ \ -accused. respondent-accused that the appellant- complainant had misused a blank signed cheque made over by the respondent-accused to the appellant- complainant for deposit of Income Tax, in view of the admission of the respondent-accused that taxes paid in cash for which the appellant-complainant take payment from the respondent in cash. were used to 19. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Code, the High Court does Procedure not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyze and re-interpret the evidence on record. 28. In R.Vijayan vs. Baby and Another (2012) 1 SCC 260 this Court observed that the object of Chapter XVII of the Negotiable Instruments Act is both punitive and also compensatory and restitutive. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement the civil liability for realization of the thereby obviating the need for the creditor different for a for relief This Court of cheque amount, to move two expressed its angui.sh that some Magistrates went by the txariitional vipw th^, the criminal proceedings were for imposinp and did not exercise discretion to direct payment of 9 compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil would expire by the time the criminal case was cases decided. It is also relevant to refer another judgment of the Apex 20. Meters and Instruments Private Limited v. Court in Kanchan Mehta^, wherein at paragraph No. 18 held as follows: “18. From the above discussion following aspects emerge: i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be ■mally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVll of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is reason to proceed with the punitive aspect. nor no ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subiect to appropriate ‘‘AIR 2017 SC 4594 10 ■ m: compensator. as may be fonnH acce2table tgthe parties or the Conrt iii) Though compounding even in absence of of_Justicp ggS^glainant has hepn discretion___clpse accused requires consent of both parties, ih£-Qourt in t}^e on bein such satisfied that compensated dul can in its discharge the the ■Bigceedings and iv) Procedure for Act has trial of cases under Chapter XVII of the normally to be Magistrate under summaiy. The discretion of the seeond proviso to Section 143, to hold that it was undesirable to tiy the case summarily as passed, is fact that imprisonment, the Court Section 3.S7fq sentence of more than to be one year may have to be exercised after considering the further apart from the lurisdiction undpt- suitable sentence of i Cr^. to award sentence under powers of recovery under approach, prison sentence required in all compensation wWf]-, default Section 64 IPC pnd mth further With this one year may not be Section 431 Pr p o of more than cases. v) Since evidence affidavit, subject giving affidavit and being prima facie of the to the Court complaint can be given on summoning the examining him and the bank evidence of the dishonor unnecessary for the Magistrate to record any further can be read proceedings. The person giving affidavit preliminary evidence. Such affidavit evidence as evidence at all stages of trial or other manner of examination of the can ik 11 Section 264 Cr.P.C. The scheme is to follow be as per summary proeedure except where exercise of power under second proviso to Section 143 becomes neeessary, where have to be awarded and sentence of one year may compensation under Seetion 357(3) is inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or considered any other circumstances. Considering the above authoritative pronouncements and as discussed supra, this Court does not find any grounds to interfere with the concurrent findings recorded by both the Courts below regarding conviction under Section 138 of N.I.Act against the petitioner as well direction to pay the compensation towards cheque amount to the complainant by the accused. Having regarding to the above discussion, this Court has to interfere with the well-artieulated judgment of the first Appellant Court, thereby, the present revision has no merits and is liable for dismissal. In the result, the Criminal Revision Case is dismissed confirming the judgment dated 21.03.2014 in 2011 on the file of the Court of learned VIII Additional Sessions directed to 21. 22. no reason 23. Crl.A.No.66 of Judge at Chittoor. The petitioner/aceused is surrender before the Court of learned Judicial Magistrate of First Class at Kuppam to serve the sentence imposed against 12 him, if not, the learned Magistrate concerned shall take against the petitioner/accused. Interim orders granted earlier if any, stand vacated. As a sequel, miscellaneous applications pending, if any, shall stand closed. steps Sd/- K TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To 1. The VIII Additional District & Sessions Judge, Chittoor (with records) The Judicial Magistrate of First Class, Kuppam (with records) One CC to Sri. V Surendra Reddy, Advocate [OPUC] One CC to Sri. Prakash C., Advocate [OPUC] The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravathi. Two CCs to Public Prosecutor, High Court of Andhra Pradesh [OUT] Three CD Copies 2. 3. 4. 5. 6. 7. PR sree \ HIGH COURT DATED:31/01/2025 \ \ \ ORDER CRLRC.No.88 of 2016 S’ iim * S/SSMC^ DISMISSING THE CRLRC