PITTALA SUBRAMANYAM Vs. STATE OF A P

JUDGEMENT

(1.) THIS criminal revision case is directed against the judgment dated 29th june 2007 passed in Criminal Appeal No. 24 of 2006 on the file of IV Additional Sessions judge, Nellore, whereby and whereunder the learned Additional Sessions Judge confirmed the conviction and sentence of fine of accused-Pittala Subramanyam for the offence under Section 138 of N. I. Act while modifying the sentence of imprisonment to compensation of Rs. 1,00,000/- passed in c. C. No. 195 of 2004 on the file of Judicial magistrate of First Class, Sullurpet.

(2.) THE background facts in a nutshell leading to filing of this revision by the accused are: 2nd respondent-P. Ramachandra Reddy is the complainant and the petitioner is the accused in C. C. No. 195 of 2004. A complaint came to be filed before the Judicial magistrate of First Class, Sullurpet alleging inter alia that the accused borrowed a sum of Rs. 1,00,000/- as hand loan from the complainant on 31. 3. 2004 and issued ex. P. 1 cheque dated 31. 3. 2004 drawn on state Bank of India, Sriharikota Branch towards discharge of the hand loan. He presented the cheque for collection and the same came to be dishonoured under Ex. P. 2 memo dated 12. 6. 2004. He got issued a notice as provided under Section 138 (b)of N. I. Act calling upon the accused to make good the amount covered under the cheque in question. Ex. P. 3 is the office copy of lawyers' notice dated 14. 6. 2004 and Ex. P. 4 is the postal acknowledgment. The accused neither issued a reply nor paid the money covered under the cheque in question. Hence, the complainant filed a complaint before the Judicial Magistrate of first Class, Sullurpet to punish the accused for the offence under Section 138 of n. I. Act. The learned Magistrate took the complaint on file as C. C. No. 195 of 2004 and issued process. In response to the summons, the accused entered appearance. On examination of the accused under section 251 of Cr. P. C putting the substance of accusations levelled against him, he pleaded not guilty and claimed to be tried. To substantiate the accusations levelled against the accused, the complainant got himself examined as P. W. 1 and examined the Branch Manager of State Bank of India, sriharikota as P. W. 2 and marked 4 documents as Exs. P. 1 to P. 4. The plea of the accused is that the complainant approached him to lend money expecting of his contract bills getting realized and he issued the cheque in question to accommodate the complainant and the cheque as security for the amount to be advanced. In a way he pleaded that there was no liability more so legally enforceable as on the date of issuance of Ex. P. 1 cheque. To probabalise his defence, he got himself examined as P. W. 1 and marked one document as Ex. D1. The learned Magistrate on considering the evidence brought on record and on hearing Counsel for the parties, came to the conclusion that the accused issued Ex. P. 1 cheque towards legally enforceable liability and thereby proceeded to record conviction of the accused for the offence under Section 138 of N. I. Act and sentenced him to suffer SI for one year and pay a fine of Rs. 5,000/-; in default to suffer SI for six months, by judgment dated 23rd January, 2006.

(3.) THE accused filed Criminal Appeal no. 24 of 2006 on the file of IV Additional sessions Judge, Nellore assailing his conviction and sentence for the offence under Section 138 of N. I. Act. It was contended before the appellate Court that the complainant failed to discharge his initial burden of proving the existing liability of the accused as on the date of Ex. P. 1 cheque. The appellate Court formulated the following points for consideration: