1 CC. No 219/2016 dt.11-7-2018
IN THE COURT OF THE V ADDITIONAL JUNIOR CIVIL JUDGE, GUNTUR
PRESENT: Smt. B. Radha Rani, V Additional Junior Civil Judge, Guntur
Wednesday, the 11 th day of July, 2018
C.C.No.219/2016
Between:
Kambala Srinivasa Rao.... Complainant.
Vs.
Smt.Kambala Devaki. ...Accused.
This case is coming before me for final hearing on 10-7-2018 in the presence of Sri B.Saibabu, Learned counsel for complainant and Sri R.Srinivasaraju, learned counsel
for the accused and having heard and after perusing the material on record, this court
delivered the following:
J U D G M E N T
1.NATURE OF OFFENCE:- This is a private complaint filed U/Sec.190 and 200 of
Code of Criminal Procedure ( in short Cr.P.C.) by the complainant against accused for the offence punishable U/Sec. 138 r/w 142 of Negotiable Instruments Act, 1882 (in short N.I.Act) which is summons procedure.
2.BRIEF FACTS OF THE COMPLAINANT AS SET OUT IN THE COMPLAINT
ARE AS FOLLOWS::
(a) It is alleged by the complainant that the accused is doing business in the name and style of “Devaki Sarees” at Arundelpet, Guntur and she is related to the complainant. Due to relationship with the complainant, the accused along with her husband approached the complainant and requested to advance amount for the purpose of her business and family expenses and also made a promise to the complainant that the amounts borrowed will be repaid at the time of complainant’s daughters’ marriage. Both the accused and her husband executed a deed of acceptance on 11-9-2013. As per the request made by the accused, the complainant lend an amount of Rs.3 lakhs to the accused on 8-9-2013 and another sum of Rs.3 lakhs on 9-9-2013 for her business and family expenses, evidencing the same, the accused executed two separate promissory notes in favour of the complainant on the even dates i.e., on 8-9-2013 and 9-9-2013, agreeing to repay the same with interest @ 24% p.a. either to the complainant or his order on demand. The accused 2 CC. No 219/2016 dt.11-7-2018 also borrowed another sum from the complainant’s wife.
(b)Subsequently inspite of repeated demands made by the complainant, the accused issued two cheques bearing No.893875 dated 15-11-2015 for an
amount of Rs.3,75,000-00 and another cheque bearing No.893876 dated 22-
11-2015 for Rs.3,75,000-00, both the cheques were drawn on Andhra Bank, Hindu
College Campus branch, Guntur towards part payment of the amounts due under the above said two promissory notes. While issuing the above said cheques, the accused requested the complainant to present the said cheques in the month of December, 2015, so that funds will be arranged for encashment.
(c ) Believing the promise made by the accused, the complainant presented the said cheques for collection through his banker i.e., Vijaya Bank, Arundelpet branch,
Guntur and to the utter surprise of the complainant, the said two cheques were dishonored and returned with an endorsement as “funds insufficient” and to that effect, two separate cheque return memos were issued by the accused banker dated 23-12-2015 and in turn, the same was intimated by the complainant banker and the same was received by the complainant. Immediately the complainant informed the same to the accused and as there is no proper response from the accused, the complainant got issued a registered legal notice to the accused on 8-1-2016 to the places of residence and business calling upon the accused to pay the cheque amounts referred supra within 15 days from the date of receipt of legal notice. The accused
received the legal notice addressed to her residential address on 9-1-2016
and the notice addressed to her place of business was got it returned on 22-2-2016 with an endorsement “unclaimed” by managing the postal authorities and kept quiet without paying the cheque amounts or giving any reply. Hence, this complaint.
3. Cognizance: After perusing the record, my learned Predecessor took cognizance for the offence U/Sec. 138 of N.I.Act against the accused and issued summons to the accused.
4. Compliance of Procedural Requirements: a) In pursuance of receipt of summons, the accused appeared before the court. Copies of documents were furnished 3 CC. No 219/2016 dt.11-7-2018 to her as required U/Sec.207 of Cr.P.C.
b) When accused is examined U/sec.251 of Cr.P.C., stating the substance of accusation against her, for the offence U/Sec.138 of N.I.Act, she pleaded not guilty and claims to be tried. Hence she was put on trial.
5. Trial : Complainant in order to establish his case, got examined himself as PW.1 and exhibited Exs.P.1 to P.14 on his behalf. On other hand, the accused herself examined as DW.1 and her husband examined as DW.2. But no documents marked on her behalf.
6. Sec.313 Cr.P.C examination: After completion of evidence of complainant, the accused is examined U/Sec.313 of Cr.P.C. calling upon her to give explanation for the incriminating material available against her from the evidence of the complainant, the same is read over and explained to her in Telugu, for which she denied the same and got herself examined as D.W.1 and her husband as D.W.2 on her behalf.
7. Heard the learned counsel for the complainant and the learned counsel for the accused. Perused the record.
8. Now, the point for determination is:
Whether the complainant has established his case beyond reasonable
doubt subject to the satisfaction of this court by establishing the
essential ingredients for the offence U/Sec.138 of N.I.Act against the
accused?
9. POINT:
In order to establish the case under Sec.138 of NI Act, the complainant should establish the following requirements to fasten the guilt on the accused.
(1)That the accused executed Exs.P.1 and P.2 two pronotes each for Rs.3 lakhs on 8-9-2013 and 9-9-2013 respectively in favour of complainant.
(2)That the accused issued Exs.P.3 and P.4 two cheques for Rs.3,75,000-00 each on 15-11-2015 and 22-11-2015 respectively towards part payment of the debt existed under Exs.P.1 and P.2 drawn from her account to the complainant.
(3)That both the cheques should have been issued in discharge of part of the debt existed under Exs.P.1 and P.2.
4 CC. No 219/2016 dt.11-7-2018 (4)That the cheques have been presented to the bank of the complainant within the period of its validity.
(5)That the cheques were returned by the bank unpaid either because of the amount of money standing to the credit of the account is insufficient to honor the cheques or it exceeds the amount arranged to be paid from the account by an agreement made with the bank.
(6)That the holder of cheque issued a legal notice demanding for payment of the debt amount under the cheques by issuing a legal notice in writing to the accused within the period of 15 days from the date of receipt of the cheque return memos as unpaid.
(7)That the accused failed to make payment of the demand of the complainant within the period of 15 days on receipt of the said legal notice.
(8)That the complainant filed the complaint within the period of limitation.
(9)That the debt or other liability referred to under Sec.138 of NI Act is legally enforceable debt or other liability.
10.To establish the offence under Sec.138 of NI Act, the complainant himself is examined as P.W.1 and exhibited Exs.P.1 to P.14 on his behalf. Now it has to be seen whether the complainant has established the requirements to constitute the offence as required under Sec.138 of NI Act.
11.POINT NO.1:
(i)To substantiate the case of the complainant, the complainant himself is examined as P.W.1. His chief affidavit is nothing but replica of his complaint. According to him, on 8-9-2013 and 9-9-2013, the accused borrowed a sum of Rs.3 lakhs each and executed two separate pronotes respectively in favour of complainant agreeing to repay the same with interest @ 24% p.a. either to him or to his order on demand.
(ii) The factum of execution of pronotes in favour of complainant is also admitted by the accused. Of course, she admitted the execution of Ex.P.1 pronote for a sum of
Rs.3 lakhs in favour of complainant and denied the execution of another pronote i.e., under Ex.P.2 for a sum of Rs.3 lakhs by claiming that she never executed it, Be that it 5 CC. No 219/2016 dt.11-7-2018 may be, she herself clearly further admitted the availability of her signature in Ex.P.2 another pronote for Rs.3,00,000-00 at executant column. The said relevant evidence of the accused/ DW.1 is hereby reproducing for better appreciation.
“It is true that I borrowed Rs.3 lakhs under Ex.P.1 dated 8-9-2013
from the complainant. It is true that the signature confronted to me in
Exs.P.1 to P.4 are belongs to me at executant column.”
(iii)The said admission of the accused is made it clear that she clearly admitted the execution of Ex.P.1 on borrowing Rs.3 lakhs cash from complaiant agreeing to repay the same with interest @ 24% p.a. either to him or on his demand.
Further she admitted about the availability of her signature at executant column in
Ex.P.2 another pronote. Further she went to the extent that she borrowed an amount of Rs.2 lakhs loan from the complainant about 4 years back and it was discharged with interest, Further stated that at the time of availing the said loan, the complainant obtained signed unfilled pronotes and cheques from her and failed to return the same after it’s discharge in order to knock away their 50 yards of house site and house which was situated adjacent to the house of the complainant.
(iv) So, besides admission of borrowing of Rs.3 lakhs from the complainant, the accused went to the extent that she also availed Rs.2 lakhs loan from the complainant that it may be under Ex.P.2 or other amount which was availed by her. In respect of execution of Ex.P.1 pronote, there is no dispute, as admitted fact need not be proved as per Sec.58 of Indian Evidence Act. So, it can conclude that Ex.P.1 was executed by the accused herself by borrowing Rs.3 lakhs from the complainant and she was indebted for the said amount to the complainant and it is legally enforceable debt.
(v) Here, there is no document or piece of evidence brought before the court by the accused to conclude that she discharged her debt indebted under Ex.P.1 or the alleged loan amount of Rs.2,00,000/-. The complainant being a creditor of the accused filed the complaint, adduced evidence and placed documentary evidence i.e., Ex.P.1 to establish the factum of indebtedness of the accused under Ex.P.1. So, it can safely conclude that the accused borrowed a sum of Rs.3 lakhs under Ex.P.1 and she failed to 6 CC. No 219/2016 dt.11-7-2018 establish discharge of the same.
(vi)So far as in respect of Ex.P.2 is concerned, the accused herself admitted clearly that Ex.P.2 contains her signature at executant column. Once she admitted her signature in Ex.P.2, it is on her shoulder to state how the said signed pronote went into the hands of the complainant, for which she went to the extent that at the time of availing Rs.2 lakhs cash of loan from the complainant, he obtained some unfilled cheques and pronotes signed by the accused. How many cheques were obtained by the complainant is failed to state by her. The accused did not explain whether there was any practice of the complainant obtaining blank signed pronotes, blank signed cheques and blank signed papers on the earlier occasions also and what were the compelling circumstances, which made her to sign on so many blank papers. Further, the accused did not even suggest to the complainant denying the execution of pronote.
Whether he was in practice of taking signatures on blank papers and blank cheques at the time of lending money has to establish by the accused once she taken the said plea.
(vii)Once the signed cheques or pronotes issued by the accused to the complainant, it deemed that she consented for filling up the cheques and pronotes according to Sec.20 of NI Act, which reads as follows:
“Sec.20. Inchoate stamped instruments :- Where one person signs and de- livers to another a paper stamped in accordance with the law relating to negotiable in- struments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount : provided that no per- son other than a holder in due course shall recover from the person delivering the in- strument anything in excess of the amount intended by him to be paid there under.”
(viii)The legal position on this aspect is very clear that the body of the cheque need not necessarily be written by the accused and it can be in the hand writing of anybody else or typed on a type machine, so long as the accused not disputing the genuineness of signature on the cheque, it cannot be disputed. The law does not provide in case of any negotiable instrument, entire body has to be written by the maker or drawer only. What is material is signature of drawer or maker and not the 7 CC. No 219/2016 dt.11-7-2018 body of writing. Hence, the dispute relating to the body writing has no significance.
The accused herself admitted about borrowing of amount under Ex.P.1, then it becomes legally enforceable debt. Once the accused herself admitted about the presence of her signature in Ex.P.2, it is on her shoulders to explain how it went to the hands of the complainant. So, she did not deny the signature on Ex.P.2 as well Exs.P.3 and P.4 two cheques, but attributing that they were given to the complainant at the time of availing loan of Rs.2 lakhs.
(ix)The learned counsel for the accused would submit that the complainant did not take any steps on civil side to recover the debt existed under the pronotes, hence the contention of the complainant cannot be accepted. It is the fact that P.W.1 did not take any steps on civil side to recover the amount due to him from the accused is pointing against P.W.1 and it is not a ground, as the complainant can choose to take steps either under Sec.138 of NI Act or to file a civil suit before civil court.
(x)Further, the husband of the accused i.e., D.W.2 also admitted that he signed as an attestor in Exs.P.1 and P.2 both pronotes. Then, it can conclude that unless and until D.W.1/accused borrowed loan under Ex.P.2 also from the complainant, there is no need to sign at executant column and there is no need for her husband to attest in it. The said admission of D.W.2 about his attestation in both the pronotes is in favour of the case of the complainant to conclude that by borrowing Rs.3 lakhs under
Ex.P.2 pronote, the accused executed it and D.W.2 attested it. The said piece of evidence is clearly supports the case of the complainant to conclude that both the pronotes were executed by the accused herself at the time of borrowing loan of Rs.3 lakhs each.
(xi)The learned counsel for the accused would submit that the complainant has no financial capacity to lend huge amount to the accused, as such without proof of said financial capacity of the complainant to lend money to the accused at the time of two pronotes transaction, benefit has to be given to the accused by relying on the judgment of Kanakamedala Venkata Krishna Prasad vs. Peram Sai Swarupa and another reported in 2017(2) ALD (Crl.) 981, wherein His lordship held that 8 CC. No 219/2016 dt.11-7-2018 “the source of income for lending money if not proved and not filed any scrap of evidence to show his savings and in the absence of said proof, the contention of the complainant about lending huge amount appears to be unbelievable.”
(xii)But, the above judgment is not applicable to the facts on hand, as the facts in it, is differs with the facts on hand, because the complainant in this case filed
Exs.P.10 to P..14 i.e., Ex.P.10 certified copy of sale deed executed by Kambhala Sujatha ( wife of complainant ) in favour of Kamatham Subbamma on 25-7-2013 for
Rs.1,50,000-00, Ex.P.11 certified copy of sale deed executed by Kambhala Sujatha in favour of Jettiboina Rani on 25-7-2013 for Rs.1,75,000-00, Ex.P.12 certified copy of sale deed executed by Kambhala Sujatha in favour of Mallela Satyanarayana on 25-7-2013 for Rs.2,50,000-00, Ex.P.13 certified copy of sale deed executed by Kambhala Sujatha in favour of Varikallu Srinivasarao on 25-7-2013 for Rs.3,78,000-00, Ex.P.14 certified copy of agreement of sale-cum-GPA dated 25-7-2013, which evidencing that the wife of the complainant sold her immovable properties two months prior to lending loan to the accused. After disposing the properties of the wife of the complainant under Exs.P.10 to P.14, the complainant possessed/ become custodien of Rs.14 lakhs cash in his hand, out of the said Rs.14 lakhs, he lent Rs.6 lakhs amount to the accused under Exs.P.1 and
P.2 and he also lent another Rs.6 lakhs to the accused only through her wife, . More over it is admitted fact that his wife also filed a case against the accused vide CC 55/2016 on the file of Excise Court, Guntur and the same is pending. So, the financial capacity to lend the amount under Exs.P.1 and P.2 is clearly proved by the complainant by producing Exs.P.10 to P.14. Such is the case, it cannot be said that the complainant failed to produce any scrap of paper for proof of his financial capacity to lend amount to the accused.
(xiii)Be that it may be, the accused herself admitted about borrowing of loan under Ex.P.1 and she herself admitted about the presence of her signature in Ex.P.2 besides availing Rs.2 lakhs loan. Such is the case, without having financial capacity, she won’t approach the complainant for borrowing loan. According to the case of the complainant, the said huge amount was possessed by him by disposing their properties 9 CC. No 219/2016 dt.11-7-2018 in order to perform marriage of his children. So, for performing marriage of two daughters of the complainant, he disposed the properties of his wife and arranged the amount for the said purpose. Then, at the request of the accused, who is none other the sister in law of the complainant, he lent money to her under Exs.P.1 and P.2.
Thus , it can conclude that the accused executed Exs.P.1 and P.2 two pronotes each for Rs.3 lakhs on 8-9-2013 and 9-9-2013 respectively in favour of complainant.
Accordingly point No.1 is answered.
12.POINT Nos.2 and 3:
(i)As stated above, the accused borrowed loan from the complainant. Then, she issued Exs.P.3 and P.4 two cheques bearing Nos.893875 and 893876 each for
Rs.3,75,000-00 drawn on Andhra Bank, Hindu College Campus branch, Guntur towards part payment of the amount indebted under Exs.P.1 and P.2. D.W.1/accused herself admitted that she passed the cheques signed by her to the complainant by claiming that it was issued at the time of availing Rs.2 lakhs loan, but the said contention cannot be accepted, because no person would issue any unfilled cheques and pronotes after executing Exs.P.1 and P.2 two pronotes. Be that it may be, D.W.1 admitted that both the cheques were containing her signature. Likewise, her husband also admitted that the signature of D.W.1 alone present in Exs.P.3 and P.4, two cheques.
(ii) According to P.W.1, the accused borrowed loan under Exs.P.1 and P.2 for carrying her business. The accused herself admitted that she is running Devaki Sarees at Arundelpet, Guntur since 30 years. The same is also admitted by her husband as
D.W.2. Further, D.W.1 admitted that she used to borrow loan from others for running saree business. So, it shows that for running saree business of the accused, she is in the habit of borrowing loan from others. Like that nature, she also borrowed loan from the complainant under Exs.P.1 and P.2. In pursuance of the said debt, she passed
Exs.P.3 and P.4 towards discharge of its part payment. Now there is need to note following judgment.
(iii)In the judgment of Bhaskaran Chandrasekharan vs. Radhakrishnan, 1998 Cr.L.J.3228, wherein the Division Bench of Hon’ble Kerala High Court held that 10 CC. No 219/2016 dt.11-7-2018 “when a cheque is issued for valid consideration, with no dispute regarding the signature, amount and name, it cannot be said that putting a date on the cheque by the payee who is the holder of the cheque in due course would amount to material alteration rendering the instrument void. In fact, there is no material alteration. When a cheque is admittedly issued with blank date, and when the payee has no objection with regard to the same, amount and signature, it can be presumed that there is an implied consent for putting the date as and when required by the beneficiary, and get it encashed. In other words, when the date is put by the payee, or the drawer on the cheque the presumption under Section 118 of the Act would arise. The burden is, therefore, entirely on the drawer of the cheque to establish that the payee had no authority to put the date and encash the cheque. It is further held therein that when the drawer issued cheque as security for loan transaction and there is no dispute regarding the signature, amount and name shown in the cheque, it can be presumed that the cheque was supported by consideration.”
(iv)In view of the admission of accused about availability of her signature in both the cheques and for the reasons stated above, this point is answered holding that the complainant established the facts that Exs.P.3 and P.4 two cheques were issued in his favour by the accused towards part payment of debt existed under Exs.P.1 and P.2 pronotes dated 8-9-2013 and 9-9-2013 respectively.
Accordingly point Nos.2 and 3 are answered.
13.POINT NO.4:
(i)It is the evidence of P.W.1 that the accused passed Exs.P.3 and P.4 two cheques and asked him to present the same for collection. Believing her words, he presented both cheques in his bank i.e., Vijaya Bank, Arundelpet branch, Guntur for collection within the period of 6 months from the date of issue or within the period of its validity whichever is earlier.
(ii) As per record and the documents, both cheques were issued on 15-11-2015 and 22-11-2015 respectively in favour of complainant by the accused and within one month, those two cheques were presented in the bank of the complainant for collection.
11 CC. No 219/2016 dt.11-7-2018
As such, it can conclude that within the validity period, the complainant presented both cheques in his bank for collection.
Accordingly point No.4 is answered.
14.POINT No. 5:
(i)It is the further evidence of P.W.1 that after presentation of cheques
Exs.P.3 and P.4 in his account for collection, it were returned by the bank authorities because of amount of money standing to the credit of the account of the accused is insufficient to honour both cheques. In evidencing the same, the complainant also produced Ex.sP.5 and P.6 cheque return memos dated 23-12-2015 respectively. A perusal of Exs.P.5 and P.6, the bank authorities were made an endorsement that due to insufficiency of funds in the account of the accused, those two cheques were dishonored.
(ii) Thus, the ocular evidence of P.W.1 coupled with Exs.P.5 and P.6, the complainant established the factum of presentation of cheques in his account for collection and it’s return by the bank authorities unpaid, because of insufficiency of funds in the account of the accused to honor the same, which shows that having knowledge about insufficiency of funds in the account of the accused, she passed
Exs.P.3 and P.4 two cheques to the complainant in pursuance of debt indebted under
Exs.P.1 and P.2 and requested him to present the same for collection illegally.
(iii)In general, a person who used to pass cheque got knowledge about the availability of funds in her account as receiver of cheque/holder of cheque would not have knowledge about the availability of balance amount in the bank account of accused. So, believing the words of accused, the complainant received both cheques from the accused and presented the same in his bank for collection, but it were returned for the reason that funds are insufficient in the account of accused to honour the cheques.
(iv)In this case, the accused stated that the complainant obtained signed unfilled pronotes and cheques from her at the time of availing loan of Rs.2 lakhs and it was discharged later, but the unfilled documents which were obtained by the 12 CC. No 219/2016 dt.11-7-2018 complainant from the accused were not returned by the complainant. For what reason the complainant did not return it, is not stated by D.Ws.1 and 2. No person would refuse to return the documents, in case of discharge. Furthermore, once discharge plea was taken by the accused, it is on the shoulders of accused to prove the same, but no document is filed in proof of discharge of the alleged Rs.2 lakhs to the complainant by the accused. The ocular evidence without supportive documentary evidence about the discharge, the contention of D.ws.1 and 2 cannot be accepted on said aspect.
(v)Further more ,D.W.1 is a lady who has been doing saree business since 30 years. So, she might have got knowledge about the money transactions very well. So, having knowledge about the same, she won’t give any unfilled cheques or pronotes to the complainant, unless and until she borrowed loan from him. In whose presence
D.Ws.1 and 2 discharged the debt to the complainant is also not stated in their evidence. Moreover, no suggestion also put to the complainant about availing of Rs.2 lakhs loan from PW.1 and its discharge as pleaded by the accused. Without putting any suggestion, mere taking defence cannot be accepted. Be that it may be, the accused is not disputing about Exs.P.1 and P.2 pronotes, so also about her admission in respect of availability of her signature in both cheques. Then, it can hold that the cheques were issued by the accused in part payment of debt existed under Exs.P.1 and P.2 and it were returned by the bank authorities unpaid for the reason that funds are insufficient in the account of accused.
Accordingly Point No.5 is answered.
15.POINTS 6 AND 7:
(i)P.W.1 deposed that after return of cheques along with cheque return memos, he made a demand of payment of cheque amounts by giving legal notice in writing on 8-1-2016. He addressed the said legal notice in writing to the residential address of the accused as well as her shop address. The legal notice sent to her residential address was received by the accused. In proof of the same, the complainant produced Ex.P.8 postal acknowledgment dated 9-1-2016, whereas another legal notice which was sent to the shop address of the accused was returned as unclaimed under 13 CC. No 219/2016 dt.11-7-2018
Ex.P.9. Ex.P.9 returned unserved cover with an endorsement of unclaimed is evidencing that the complainant sent the legal notice to both residential address and shop address of the accused, but she received the legal notice addressed to her residential address and unclaimed at her shop address. So, to establish the fact that the complainant issued legal notice, PW.1 filed legal notice Ex.P.7 dated 8-1-2016 and he also produced
Ex.P.8 evidencing about proof of service of legal notice i.e., postal acknowledgment to the accused. So, immediately within the limitation, the complainant issued legal notice demanding the accused to pay the cheque amount in writing, inspite of receipt of it, the accused did not choose to repay the debt amount within 15 days on receipt of legal notice. Further, no reply notice issued to the complainant by the accused on receipt of
Ex.P.7 legal notice.
(ii)The learned counsel for the complainant would submit that failure to give reply notice by the accused to the legal notice of the complainant itself is sufficient to draw an inference against the accused to hold that the accused borrowed amount from
P.w.1 and cheques were issued towards part payment of legally enforceable debt, hence prayed the court to convict the accused by relying the judgment of Gorantla
Venkateswara Rao vs. Kolla Veera Raghava Rao and another reported in
2005(2) ALD (Crl.) 840 (AP), wherein His Lordships held in para 42 that “the mere loss of the demand promissory note or its’ non-production by itself would not be sufficient to hold that there was no legally enforceable debt. There are no other probable circumstances placed by the accused in the process of discharge of his burden. The failure of the accused in giving reply to the legal notice issued by
P.W.1 is one of the strong circumstances to draw an inference that the
accused borrowed the amount from P.W.1 and the cheque was issued towards part payment of the legally enforceable debt.”
(iii)A perusal of the above judgment and facts of this case are identical and suitable. In this case also, the accused failed to give any reply. The same is also admitted by her. The said admission of D.W.1 is reproduced for better appreciation.
“It is true that I received the legal notice from the complainant on 9-1-
14 CC. No 219/2016 dt.11-7-2018 2016 under Ex.P.8. No reply issued by me for the said legal notice.”
(iv)The above evidence of D.W.1 herself would goes to show that she failed to give any reply notice. Further, If really the complainant obtained unfilled cheques and pronotes at the time of availing Rs.2 lakhs and said debt was discharged by the accused, what prevented her to issue legal notice either for demand of return of unfilled cheques and pronotes or by questioning Exs.P.3 and P.4 is not explained by the accused. Without giving such legal notice, in the absence of any evidence from the accused, an inference can be drawn against the accused that after borrowing loan under Exs.P.1 and P.2 from P.W.1, she only passed the cheques towards part payment, which is legally enforceable debt.
(v)So, on perusing the evidence of the complainant at any angle, he clearly complied the requirements required under Sec.138(b) and (c) of NI Act by issuing legal notice within the stipulated time in writing demanding the accused to repay the debt under the two cheques.
Accordingly these points are answered.
16.POINT NO.8:
(i)It is the evidence of P.W.1 that on failure of the accused in payment of cheque amount within 15 days on receipt of legal notice Ex.P.7, he filed the complaint within limitation. In this case, on 8-1-2016, legal notice issued to the accused by the complainant and it was served on 9-1-2016 on the accused under Ex.P.8. Then, after waiting 15 days from 9-1-2016, then complaint filed by the complainant within the limitation on 10-2-2016. So, within the limitation as per law, this complaint was presented by the complainant. Having receipt of legal notice from the complainant, the accused failed to repay the amount. So, this complaint is totally within the limitation, filed before this court having jurisdiction over the same. Then, it can conclude that the complainant also established this point.
Accordingly this point is answered.
17.POINT NO.9:
(i)In view of the answer given under point No.1, in view of admission of 15 CC. No 219/2016 dt.11-7-2018 execution of Ex.P.1 pronote and admission of accused herself about availability of her signature in Exs.P.2 to P.4, this court holds that towards legally enforceable debt only, the accused passed cheques. The relevant admissions of D.W.1 are required to be reproduced for better appreciation.
“It is true that the signature confronted to me in Exs.P.1 to P.4 are belongs to me at executant column. I do not remember the date of lending money by the complainant to me. I never issued any legal notice to the complainant calling upon him to return my signed pronotes and cheques. I do not remember the date, month, year of repayment of the amount to the complainant. I do not know whether the complainant disposed his properties of his wife under Exs.P.10 to P.14 and some amount was lent to me on my request. I do not know whether some amount kept by the complainant in his custody for marriage expenses of his two daughters. I borrowed the said amount from him, as marriage alliances not fixed to his daughters.”
(ii)The admissions of D.W.2 are required to be reproduced for better appreciation.
“It is true that the signature of D.W.1 alone present in Exs.P.3 and P.4. For 30 years onwards, I am running saree business. No reply notice issued to the complainant for return of unfilled pronotes and cheques. I do not remember the date, month, year of repayment of amount to the complainant. We are residing at R.Agraharam, whereas complainant is resident of Donka road. The distance between my house and the house of complainant is about 5 kms. I do not know whether the wife of complainant sold her properties and filed Exs.P.10 to P.14 before this court. It is true that 50 yards extent of house neither stands on my name or my wife. About 13 years back, we performed the marriage of my daughter and gifted the above house to her. I know the facts of this case. It is true that I used to attend court for every adjournment along with D.W.1.”
(iii)The above admissions of accused and her husband would goes to show that neither they demanded for return of unfilled cheques and pronotes nor give any demand notice for return of the same. Even they failed to state when they borrowed amount from the complainant . Here, P.W.1 is none other than cousin of D.W.2. D.W.1 16 CC. No 219/2016 dt.11-7-2018 is wife of D.W.2. when both parties are inter related, they might have got knowledge about the custody of sale consideration after disposing properties by PW.1 and it appears that for this case purpose only, D.W.1 went to the extent that she does not know when she availed loan from the complainant, when the complainant was in custodian of sale proceeds, as no marriage alliance was fixed to his daughter. The contention of the counsel for the complainant on this aspect is appears to be true, as
D.Ws.1 and 2 denied the same.
(iv)The learned counsel for the accused would argue that the complainant failed to produce income tax returns and not showed the cheque amounts or pronote amounts in his income tax returns, hence benefit of doubt has to be given to the accused as per the judgments of (1) Kanakamedala Venkata Krishna Prasad vs.
Peram Sai Swarupa and another reported in 2017(2) ALD (Cri.) 981 where in his Lordship held that “when the complainant admitted that he is income tax assessee and he used to mention all the financial transactions in his returns, his failure to produce the said income tax returns and his failure to mention about debt under pronote transaction in his income tax returns and in view of the decision reported in 2009 Crl.L.J.3777, the amount advanced by the complainant to the accused is large amount and not repayable within few months and his failure to note the same in his income tax returns, may be sufficient to draw the presumption under Sec.139 of NI Act. Hence, the complainant debt deemed to be not proved as legally enforceable debt existing in between him and the accused.”
(vi)In another judgment of R.Chennakesava Rao, Hyderabad vs.
P.Laxmi Narasaiah, Hyderabad and another reported in 2017(2) ALT (Crl.)
279 (A.P.). His Lordships held that “when the accused dispelled the presumption under Sec.139 of NI Act, the burden will shift on the complainant to prove that the cheques were issued towards discharge of legally enforceable debt. Though the complainant placed evidence, he failed to establish that the amount allegedly lent to the accused is not unaccountable 17 CC. No 219/2016 dt.11-7-2018 money and he possessed licence to lend money being native of Telangana area. When the amount lent by complainant to the accused is unaccountable money which is not recoverable, then accused is not liable for punishment for the offence under Sec.138 of
NI Act”.
(vii)A perusal of the above judgments, those two judgments are not suitable to the facts on hand, because P.W.1 stated that he is not income tax assessee. Once he is not income tax assessee, insisting him to file the same does not arise. Moreover, the above 2nd judgment is not identical to the facts on hand, because the complainant is not doing money lending business in Telangana area. Further except this transaction, there is no other transaction between the accused and the complainant. So, the judgments relied by the counsel for the accused are not suitable to the case on hand to hold that though the complainant adduced evidence, he failed to establish that the amount allegedly lent to the accused is not unaccountable money and that he possessed licence to lend money being native of Telangana area.
(a) Be that it may be, by filing Exs.P.1 and P.2 and in view of the admission of the accused herself, it can hold that legally enforceable debt already existed in between the complainant and the accused. Hence it cannot be said that no such debt is existed in between them.
(viii) the other judgment relied by the counsel for the accused of Sanjay
Mishra vs. Kanishka Kapoor @ Nikki and another reported in 2010(1) ALD
(Crl.) (NOC) 3 (Bombay), His Lordships held that “when the amount advanced is large and not repayable within few months, non- disclosure of the same in income tax returns may be sufficient to rebut the presumption under Sec.139 of NI Act.”
(ix)But, the above judgment is also not suitable to the case on hand, as the complainant is not income tax assessee to file income tax returns.
(x)The other judgment relied by the counsel for the accused is of John
K.Abraham vs. Simon C.Abraham and another reported in 2014(2) ALD (Cri.)
61 (SC), wherein in para 9, our Apex Court held that 18 CC. No 219/2016 dt.11-7-2018 “to draw the presumption under Secs.118 read with 139 of NI Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced money to the accused and that issuance of cheque in support of the said payment advanced was true and that accused was bound to make payment as had been agreed while issuing cheque in favour of complainant.”
(xi)But, the above judgment is against the case of accused and in favour of complainant, because the complainant clearly produced Exs.P.10 to P.14 evidencing his financial capacity to advance money to the accused. Further, the accused admitted about execution of pronotes and presence of her signature in both cheques.
(xii)So, in view of findings given in the above points, this court holds that the complainant advanced loan to the accused and the accused is bound to make payment and failed to do so. As such, he issued cheques to the complainant. Then, the presumption under Secs.118 read with 139 of NI Act is clearly lies to the complainant in view of fulfillment of all requirements required to constitute the offence under Sec.138 of Ni Act by the complainant. As such, the above judgment is not useful to the contention of the accused, as it supports the complainant case.
(xiii)The other judgment relied by the counsel for the accused is K.Krishna
Reddy vs. K.Rajender and another reported in 2012(1) ALD (Crl.) 934 (AP), wherein His Lordship held at para 27 that “While it is true that the admission of the signature on Ex.P.1-cheque leads to the availability of the statutory presumption sunder Sections 118 and 139 of the Act, the appellate Court deeming such presumptions to have been rebutted on the facts and circumstances of the case cannot be considered unreasonable and though the story of the accused about the loss of hand bag appears artificial as opined by the trial court, the same cannot be considered to be proof of existence of a legally enforceable debt or liability or the subject cheque being issued towards discharge of such debt or liability or the return of the cheque unpaid being within the scope of Section 138 or the statutory notice being proved to have been served or deemed to be served, to uphold the conclusion of guilt of the accused. Apart from even the existence of the factual basis 19 CC. No 219/2016 dt.11-7-2018 for raising the presumptions under Sections 118 and 139 being doubtful, it cannot be said that the view taken by the first appellate Court on the preponderance of probabilities arising out of the evidence on record is baseless or impossible and if two views are possible, interference by the appellate Court with the finding of acquittal recorded on merits by the first appellate Court may not be permissible.”
(xiv)But in this case, it is not the case of the accused that she lost her hand bag which containing her cheque book and cheque leaves and complainant filed the same, because she herself admitted that she only passed the cheques to the complainant. Moreover, the complainant and the accused are none other than close relatives to each other. So, in view of the above reasons, this court holds that the above judgment is not suitable in support of the defence taken by the accused.
(xv)The other judgment relied by the counsel for accused is Laxminivas
Agarwal vs. Andhra Semi Conductors Pvt. Ltd., Hyderabad and others
reported in 2006(1) ALD (Crl.) 300 (AP) is also not identical to the facts on hand and not suitable, as facts of that case is differs with the facts on hand. Hence, same is not relying by this court, because the legally enforceable debt existence in between
P.W.1 and the accused, the same is admitted by the accused herself during her cross examination. Further, admitted facts need not be proved. So, when the existence of legally enforceable debt is established by the P.W.1, the above judgment is not useful in support of the contention of the accused.
(xvi)Furthermore, the accused stated that to knock away her house site of 50 yards extent, which was situated adjacent to the house of the complainant, this complaint filed, though no consideration passed under Exs.P.1 and P.2 and she availed loan of only Rs.2 lakhs from the complainant, for which her husband himself stated that the said 50 yards house site and house neither stands on his name or on D.W.1 and it was gifted in favour of their daughter by way of gift about 13 years ago at the time of performance of her marriage. This case transaction is held in the year 2013, whereas the house site is gifted to the daughter of the accused about 13 years back. Then, neither D.W.1 nor D.W.2 are owners of the said house site or house. Such is the case, 20 CC. No 219/2016 dt.11-7-2018 the allegation against the complainant that he is making efforts to knock away the same by filing this type of complaint does not arise.
(a) Furthermore, D.W.2 went to the extent that himself and D.W.1 jointly borrowed Rs.2 lakhs from the complainant, which is varies with the evidence of P.W.1.
Further, he went to the extent that the complainant obtained two unfilled signed pronotes and cheques containing signatures of D.Ws.1 and 2, for which counsel for the complainant elicited from D.W.2 that he only attested in Exs.P.1 and P.2 two pronotes, whereas Exs.P.3 and P.4 were contains the signatures of D.w.1 alone, but not D.W.2.
The document itself reflects that both cheques did not contain the signatures of both wife and husband. Inspite of it he went to the extent by deposing contrary evidence to his wife’s ocular evidence. He too admitted that no legal notice issued to the complainant for return of unfilled pronotes and cheques and he do not remember the date, month and year of repayment of amount by the complainant. Further, he went to the extent that whether the wife of the complainant sold her properties and filed
Exs.P.10 to P.14 before the court.
(xvii) A perusal of the above ocular evidence, this court holds that the complainant established all the requirements required for constitution of offence under
Sec.138 of NI Act. Then, the accused is liable for conviction. Accordingly, all the points are answered.
18. Result: the accused is found guilty for the offence U/Sec.138 of N.I.Act and she is convicted U/Sec.255(2) Cr.P.C. for the same.
Dictated to Stenographer Grade-III, transcribed by him, corrected and
pronounced by me in open court, this the 11th day of July, 2018.
Sd/- B.Radha Rani,
V ADDL. JUNIOR CIVIL JUDGE,
GUNTUR.
19.Convict/Accused questioned about quantum of sentence for the offence
U/Sec.138 of NI Act as follows:
20.Accused pleaded mercy and submitted that she is suffering with chest pain and she also got loss in her saree business and prays to show mercy upon her.
21 CC. No 219/2016 dt.11-7-2018
21.In the facts and circumstances of the case, I feel that it is not a fit case to invoke provisions of Probation of Offenders Act or Section 360 Cr.P.C. The complainant did not adduce any evidence showing the circumstances for awarding compensation U/Sec.357
Cr.P.C. Therefore, I am not inclined to award compensation Under Section 357 Cr.P.C. to the complainant. The offence under Sec.138 of NI Act is punishable with imprisonment or fine or with both.
22.Considering the facts and circumstances of the case, the age of the accused and also the above submission of the accused, as she issued cheques to the P.W.1 and failed to discharge the same, I am not inclined to take any lenient view. But this court feels that following sentence would meet the ends of justice, as imposing fine is not suffi- cient.
23.Accordingly the accused is sentenced to undergo Rigorous Imprisonment for a period of six months and pay a fine of Rs.5,000/- (Rupees Five thousand only), in default of payment of fine amount, she shall undergo Simple Imprisonment for a period of one month. The remand period, if any, undergone by the accused shall be given set- off under Sec.428 Cr.P.C.
24.Appraisal of right to prefer appeal: Convict/Accused is appraised of her right to prefer appeal against the judgment of this court. When questioned with regard to means to engage the counsel at appellate stage, she submitted she has means. Bail bonds of the accused shall remain in force for a period of six months as per Sec.437-A of Cr.P.C.
25.Property order: No order as to property as required under Rule 227 of Crl.R.P is passed, as no property marked.
Typed to my dictation, corrected and pronounced by me in open court, this the 11th day of July, 2018.
Sd/- B.Radha Rani,
V ADDL. JUNIOR CIVIL JUDGE
GUNTUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT:
P.W.1Kambala Srinivasarao.
22 CC. No 219/2016 dt.11-7-2018
FOR DEFENCE:
D.W.1K.Devaki. D.W.2K.Narasimharao.
EXHIBITS MARKED
FOR COMPLAINANT:
Ex.P.1Promissory note dt.8-9-2013 for Rs.3 lakhs. Ex.P.2Promissory note dt.9-9-2013 for Rs.3 lakhs. Ex.P.3Cheque dt.15-11-2015 for Rs.3,75,000-00. Ex.P.4Cheque dt.22-11-2015 for rs.3,75,000-00. Ex.P.5Cheque return memo dt.23-12-2015. Ex.P.6Cheque return memo dt.23-12-2015. Ex.P.7Office copy of legal notice dt.8-1-2016 issued by complainant to accused along with postal receipt,. Ex.P.8Postal acknowledgment dt.9-1-2016. Ex.P.9Returned unserved cover with an endorsement “unclaimed”. Ex.P.10 certified copy of sale deed executed by Kambhala Sujatha in favour of Kamatham Subbamma on 25-7-2013 for Rs.1,50,000-00. Ex.P.11 certified copy of sale deed executed by Kambhala Sujatha in favour of Jettiboina Rani on 25-7-2013 for Rs.1,75,000-00. Ex.P.12 certified copy of sale deed executed by Kambhala Sujatha in favour of Mallela Satyanarayana on 25-7-2013 for Rs.2,50,000-00. Ex.P.13 certified copy of sale deed executed by Kambhala Sujatha in favour of Varikallu Srinivasarao on 25-7-2013 for Rs.3,78,000-00. Ex.P.14 certified copy of agreement of sale-cum-GPA dated 25-7-2013.
FOR DEFENCE: NIL.
Sd/- B.Radha Rani,
V ADDL. JUNIOR CIVIL JUDGE
GUNTUR.
// TRUE COPY //
V ADDL. JUNIOR CIVIL JUDGE
GUNTUR.