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TMI Blog2023 (3) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... ort) and he was convicted under Section 255 (2) of the Code of Criminal Procedure ("Cr.P.C." for short) and sentenced to suffer rigorous imprisonment for two years and to pay an amount of Rs. 1,50,000/-towards compensation. 2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court for the sake of the convenience. 3. The case of the complainant before the Court below, according to the averments in the complaint under Section 190(1) of Cr.P.C. is that the complainant is resident of Avanigadda. On 15.05.2002 the accused borrowed a sum of Rs. 1,50,000/-from the complainant to do his business, agreeing to repay the same with interest at 18% per annum payable on demand to the complainant or on his order. On the even day, he executed a demand promissory note in favour of the complainant. On repeated demands made by the complainant, the accused issued a postdated cheque, dated 27.06.2004 for an amount of Rs. 1,50,000/-towards part payment of debt due under the promissory note vide cheque bearing No. 923919 drawn in the name of State of Bank of India, Avanigadda in favour of the complainant. The complainant presented the said cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Additional Judicial Magistrate of First Class, Avanigadda, on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the offence under Section 138 of N.I. Act, convicted him under Section 255 (2) of Cr.P.C. and sentenced him to suffer rigorous imprisonment for two years and to pay an amount of Rs. 1,50,000/-towards compensation to the complainant. Aggrieved by the said judgment, the unsuccessful accused in the above said C.C. No. 543 of 2004, filed the Criminal Appeal No. 66 of 2006 before the learned X Additional District & Sessions Judge, Krishna at Machilipatnam, which came to be dismissed on merits. Aggrieved by the said judgment in Criminal Appeal No. 66 of 2006, the unsuccessful appellant filed the present Criminal Revision Case. 7. Now, in deciding this Criminal Revision case, the point that arises for consideration is that as to whether the judgment, dated 20.08.2007 in Criminal Appeal No. 66 of 2006, on the file of learned X Additional District & Sessions Judge, Krishna at Machilipatnam, suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the said judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was scribed by one Batchu Narasimha Rao. He (P.W.2) attested the said promissory note. He can identify the promissory note and his signature. Ex.P.7 is the said promissory note which bears his signature. 13. D.W.1 before the Court below is the accused and his evidence in substance is that he never borrowed any amount from the complainant under Ex.P.7, promissory note. The signature on Ex.P.7 is not of him. He closed his business in the year 2001. He never issued Ex.P.1 in part discharge of Ex.P.7. The contents in Ex.P.1 were not filled up. The signature on Ex.P.1 belonged to him. He also filled up account number. He is in the habit of keeping signed blank cheques for issuing the same to his business customers whenever he wanted to issue cheque to the concerned. He will note his name and issue the same by affixing his firm stamp i.e., Tajeswani Enterprises. He does not know how the complainant came into possession of Ex.P.1. He did not receive any notice under certificate of posting. He did not receive registered notice from the complainant. He had no account in his individual name in State Bank of India, Avanigadda. The Firm Tajeswani Enterprises account was closed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... da. He denied that he is deposing false. 16. During the cross examination, D.W.1 denied the case of the complainant. He deposed that there is a cheque dishonour case pending against him at Vijayawada, filed by one Sudhakar. He is in the habit of verification of blank signed cheques which are in the custody whether they are in safe condition or not. He returned unused leaves of the cheque book to his banker at the time of closing of the account form. He has no disputes with the postal department. He denied that he received the notice under certificate of posting and avoided to receive the notice under registered post. He denied that he got filled up Ex.P.1 through his friend and handed over to the complainant towards part satisfaction of Ex.P.7. He denied that he issued Ex.P.1 suppressing that he closed his account. It is true that he did not give any report either to the police or to the bank about the loss of Ex.P.1. He denied that he is deposing false to escape from his liability. Turning to the evidence of D.W.2, the bank official, he deposed in cross examination that Ex.P.1 cheque is one of the leaves relating to the cheque book issued to the Proprietor of Tajeswani Enterprise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of returning the cheques. Though the accused examined D.W.2, who deposed that the accused got closed the account way back in the year 2001, but as evident from Ex.D.3, letter of the accused and the evidence of D.W.2, there is no whisper from Ex.D.3 that the accused returned any unused cheques to the bank. There is no whisper in Ex.D.3 that Ex.P.1 cheque was lost from the custody of the accused. As admitted by D.W.1, the accused, he did not intimate to the bank and even did not intimate to the police that Ex.P.1 cheque was lost from his custody. Therefore, it is very clear that though the account was closed in the year 2001 as per D.W.1 and D.W.2, but, it was within the exclusive knowledge of the accused as to why he issued Ex.P.1 in the year 2004 in favour of the complainant. The defence of the accused that he used to sign the cheques beforehand and he used to return unused leaves, etc., is not at all probabalized by virtue of the evidence of D.W.2 coupled with Ex.D.1 to Ex.D.4. No man of reasonable prudent would venture to sign beforehand especially when he was a habit of returning the unused cheques to the bank. The accused would not have kept quiet, if really the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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