Rudra Prasad vs State Of Andhra Pradesh

This Criminal Revision Case is preferred by the revision petitioner-accused aggrieved by the judgment of the learned IV-Additional Sessions Judge

(FTC-III), Khammam, passed in Crl.A.No.87 of 2006, dated 31.01.2008, to the extent of remanding the case to the learned trial Court for retrial after

framing separate charges etc.,

It is the case of the prosecution that the revision petitioner/accused borrowed an amount of Rs.1,50,000/- from the complainant on 30.07.1999 and

executed a demand promissory note (Ex.P2) in favour of the complainant on the same day and thereafter he issued a cheque bearing No.480196

dated 30.07.2001 for an amount of Rs.2,22,000/- drawn on State Bank of Hyderabad, Manugur branch, Hyderabad, towards payment of the amount

due to the complainant and when the said cheque was presented for realization, the same was returned with an endorsement ‘insufficient funds†in

the account of the drawer (accused). Thereafter, after following the procedure provided for under Sections 138 and 142 of the Negotiable Instruments

Act, the complainant filed a private complaint and the same was taken on file by the trial Court.

During the course of trial, on behalf of the prosecution, P.Ws.1 to 4 were examined and got marked Exs.P1 to P11. No witness was examined and no

document was marked on behalf of the accused.

On a perusal of the entire evidence, both oral and documentary, the trial Court found the revision petitioner-accused guilty of the offence punishable

under Section 420 of I.P.C. and accordingly convicted and sentenced him to undergo simple imprisonment for a period of three years and also to pay

an amount of Rs.3,00,000/- to the complainant (P.W.1) towards compensation as provided under Section 357 (3) Cr.P.C., in default, to suffer simple

imprisonment for three months.

In an appeal preferred by the revision petitioner-accused against the said conviction and sentence, the learned IV-Additional Sessions Judge (FTC-

III), Khammam, while setting aside the conviction and sentence passed against the revision petitioner/accused for the offence punishable under

Section 420 of I.P.C., remanded the case to the trial Court with a direction to conduct retrial of the case after framing separate charges under

Sections 420 of I.P.C. and 138 of N.I Act. after affording sufficient opportunity to the prosecution and the accused to adduce further evidence.

Aggrieved by the same, the revision petitioner/accused preferred this criminal revision.

Heard the learned Counsel for the revision petitioner-accused and the learned Assistant Public Prosecutor for the respondent-State.

Learned Counsel for the revision petitioner/accused submitted that the appellate Court has no jurisdiction to remand the case for re-trial with a

direction to frame charges separately for the offences under Section 420 of I.P.C. and Section 138 of N.I. Act and, therefore, it is liable to be set

aside. In support of his contention, the learned Counsel relied upon the decision of the combined High Court of Andhra Pradesh in K.Ram Reddy and

others vs. State of A.P. (MANU/AP/1033/1996) and also the decision of the High Court of Orissa in Lakshmi Setti and others vs. The State

(MANU/OR/O051/1957).

The complainant (P.W.1) filed the private complaint against the revision petitioner/accused for the offences punishable under Sections 420 of I.P.C.

and Section 138 of N.I. Act before the trial Court and the same was forwarded to the police, under Section 156(3) Cr.P.C. for investigation and

report. The police registered the same as a case in Crime No.257 of 2002 against the accused under the aforesaid Sections of law and subsequently,

after due investigation, the police filed the charge sheet against the accused for the offences punishable under Sections 420 of I.P.C. and Section 138

of N.I. Act. But, the learned Magistrate took cognizance of the case for the offence punishable under Section 420 of I.P.C. only.

The learned Magistrate framed the charges under Sections 420 of I.P.C. and 138 of N.I. Act against the accused and he did not choose to mention

the date of loan, date of cheque, the amount of cheque and the date of dishonour of cheque in the charge framed under Section 138 of N.I. Act. So

also, the name of the person cheated and the property in respect of which cheating was committed and that the dishonest intention of the accused

were not mentioned in the charge framed under Section 420 of I.P.C.

Therefore, the learned Additional Sessions Judge held that the charges framed by the learned Magistrate are totally defective since he has proceeded

to dispose of the case thinking that the accused has been charged only for the offence punishable under Section 420 of I.P.C. and came to the

conclusion that the said offence has been proved against the accused without even making an attempt to find out whether the ingredients that are

required to prove the said offence are established or not. The learned Additional Sessions Judge further held that the learned Magistrate failed to

impose sentence of fine on the accused even though he found him guilty of the offence punishable under Section 420 of I.P.C. Having not imposed

fine for the offence under Section 420 of I.P.C., the learned Magistrate has invoked the provisions of Section 357 (3) Cr.P.C. and ordered

compensation to the complainant (P.W.1). Section 357 (1)(d) Cr.P.C. deals with persons convicted of offence of cheating. However, the learned

Magistrate instead of invoking Section 357(1)(d) of Cr.P.C. invoked Section 357 (3) of Cr.P.C., which is illegal and misconception of facts and law.

On perusal of the entire evidence available on record and having regard to the submissions made by the learned Counsel appearing on either side and

also the decisions relied upon by the learned Counsel for the revision petitioner/accused, this Court is of the view that the appellate Court has given

sufficient and cogent reasons in remanding the case to the trial Court for re-trial of the case after framing separate charges for the offences

punishable under Sections 420 of I.P.C. and 138 of N.I. Act and also after affording an opportunity to both sides to adduce further evidence. There is

no reason or justification to interfere with the findings of the appellate Court. I find no merit in the criminal revision case and it is liable to be dismissed.

Accordingly, the Criminal Revision Case is accordingly dismissed.

Miscellaneous petitions, if any, pending shall stand closed.