1
THE COURT OF THE SPL. JUDICIAL MAGISTRATE OF FIRST CLASS
(MOBILE)-CUM-II ADDL. CIVIL JUDGE (JUNIOR DIVISION), VIZIANAGARAM Present: KUM. PONNURU BUJJI, Spl. Judicial Magistrate of First Class (Mobile)-cum- II Addl. Civil Judge (Junior Division), Vizianagaram Thursday, this the 24th day of April, 2025
Calendar Case No.418/2020
Between:
Bevera Sai Kumar S/o Satyanarayana, aged 31 years, resident of D.No. 20- 5-23, Lenka Veedhi, Vizaianagaram. …Complainant
And
Karumajji Santosh Kumar S/o Sri Rama Murthy, aged about 36 years, residing at House No. 37, P.S.R. Colony, Vizianagaram.
... Accused.
This case coming on 22.04.2025 for final hearing before me in the presence of Sri I. Ramesh, learned counsel for the Complainant and Sri S.A. Shajahan, learned counsel for the accused, and having stood over for consideration till this day, 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 U/Sec. 138 r/w 142 of Negotiable
Instruments Act, 1882 (In short N.I.Act) which is summons procedure.
2. THE COMPLAINT AVERMENTS IN BRIEF AS FOLLOWS;
a) The complainant contended that the accused for his necessities i.e. for his business purpose borrowed a sum of Rs.3,50,000/- from the complainant on dated 01.12.2017 agreed to repay the same with interest @ 24% p.a. to him or his order on demand and executed Two demand promissory notes in favour of the complaint one for Rs.50,000/- by the accused and another for Rs.3,00,000/- by the accused and his father Sri
Rama Murthy.
b)After repeated demands of complainant, on 17.12.2019 the accused issued a cheque bearing NO.792421 for an amount of Rs.2,00,000/- drawn 2 at Andhra bank, Ring Road Branch, Vizianagaram towards part payment of the debt to the complainant.
c)The complainant in order to encash the cheque amount, presented the same in his account i.e., State bank of India, Fort Branch, but the same was returned as dishonoured by the drawer bank for the reason that “ ACCOUNT BLOCKED”. Hence, the complainant received the dishonoured cheque through cheque return memo of the drawee bank dt.18.12.2019.
d) For which the complainant issued a legal notice on 16.01.2020 with acknowledgment due to the accused demanding for repayment of debt within 15 days from the date of receipt of notice. The accused received the said notice on 18.01.2020 and kept quiet. As such, the complainant constrained to file this complaint against the accused for the offence u/sec.138 r/w.142 of NI Act within the jurisdiction of this court.
3. COGNIZANCE :- After perusing the record, my learned predecessor took cognizance for the offences punishable u/sec.138 r/w.142 of NI Act, 1881 against accused and issued summons to accused by assigning case number as in CC.No.418/2020.
4. COMPLIANCE OF PROCEDURAL REQUIREMENTS :- The accused after receipt of summons appeared before this court. Hence copies of record furnished to accused.
He was examined u/sec.251 Cr.P.C. by explaining the allegations mentioned in the complaint and read over the same in Telugu for which he denied the same and claimed to be tried.
5. Trial:- On behalf of the complainant, the complainant himself examined as P.W.1 on his behalf. PW1 relied upon exhibits Exs.P.1 to P6 i.e., Ex.P.1-cheque bearing No. 792421 for Rs.2,00,000/- drawn on Andhra bank, ring Road branch, Vizianagaram dated 17.12.2019, Ex.P.2- cheque return memo dt.18.12.2019 of SBI, Fort Branch, Vizianagaram, Ex.P3- office copy of the legal notice dt.16.01.2020, Ex.P4- acknowledgment dt.18.01.2020, Ex.P5- Certified copy of promissory note for an amount of
Rs.50,000/- dated 01.12.2017 and Ex.P6- Certified copy of promissory 3 note for Rs.3,00,000/- dated 01.12.2017 executed by accused and his father in support of the case of the complainant.
ii)On other hand, the accused examined himself as DW1 but no documents were marked on his behalf.
6. Sec.313 (1)(b) of Cr.P.C examination :- Upon closing of the evidence the accused was examined u/sec.313 Cr.P.C. calling upon him, to explain for the incriminating evidence leveled against him from the evidence of complainant and the same is read over and explained to him in Telugu for which he denied the sameand reported defence evidence.
7.Heard the learned counsels on both sides.
8. Arguments submitted by the learned counsel for the complainant:
The learned counsel for the complainant had argued that the complainant clinchingly established all the ingredients required u/sec.138 r/w 142 of NI Act and proved that the accused had issued cheque Ex.P1 for discharging the legally enforceable debt existed under Ex.P5 and 6 promissory notes and the complainant has proved his case by examining himself as PW1 and in support of his case examined PW2 and relied on
Exs.P1 to P6. Further, the accused neither examined any supportive evidence nor filed any documents to show that the PW1 was doing real estate business under the control of the accused and forged the signature of the accused on Ex.P6. Though accused examined as DW1 but his evidence cannot be relied upon. As such the accused borrowed amount from the complainant and the accused and his father executed a promissory note for Rs.3,00,000/- and the accused executed another promissory note for Rs.50,000/- under Ex.P5 and 6 thereafter, the accused got issued Ex.P1 towards discharge of the part payment of the said promissory notes. Therefore, until the contrary is proved, it is presumed that the accused got issued Ex.P.1 for discharging legally enforceable debt to the complainant, hence, the complainant had established all the essential ingredients u/sec.138 of NI Act, as such the presumption 4 u/sec.139 of NI Act is in favour of the complainant. The complainant has proved his case beyond all reasonable doubt, hence, prayed the Hon’ble court to convict the accused.
9. Arguments submitted by the learned counsel for accused:
The learned defence counsel for the accused strenuously argued that the accused never borrowed any amount from the complainant and he neither executed any promissory notes nor issued any cheque to the
PW1. Moreover the accused did not receive any legal notice from the complainant as the complainant send the Ex.P3 to the wrong address of the accused. In fact, the address mentioned in Ex.P3 and the court summons address are different. Therefore, the complainant failed to fulfill the essential ingredients under section 138 (b) of NI Act. Though the complainant examined PW2 but he clearly stated that he does not know the complainant. As such the evidence of Pw2 cannot be taken into consideration. Further, argued that complainant worked under the accused , during the real estate business the dispute arose between the accused and the PW1 due to which PW1 created a promissory note by forgering the signature of the accused on EXP5 and P6 and EXP1 and filed the present case against the accused. In order to rebut the case of the complainant, the accused himself examined as DW1 and rebutted the case of the complainant u/sec.139 of NI Act. Therefore the complainant failed to prove the case beyond all reasonable doubt. Hence, prayed the
Hon’ble court to acquit the accused.
Perused the material on record.
10.Now the point for determination is:
Whether the complainant established the essential ingredients
of u/sec.138 r/w.142 of NI Act, 1881 beyond reasonable doubt to
the satisfaction of this Court?
5
11. In order to establish the offence u/sec.138 of NI Act, the complainant needs to prove:
1. that accused issued cheque to the complainant towards legally enforceable debt?
2. that accused rebutted the presumption u/sec.118-A and 139 of NI
Act.
3. that complainant proved the case beyond all reasonable doubt?
Now it has to see whether the complainant adduced satisfactory evidence and proved the above points as required.
As points Nos.1 to 3 are interlinked, hence three points were discussed simultaneously in order to avoid the repetition of the evidence and its marshaling. Perused the entire evidence and other material available on record.
12. Evidence of PW.1:-
i)To substantiate the case of the complainant, he filed his chief affidavit in lieu of chief examination by reiterating the averments of the complaint. So the evidence of P.w.1 is nothing but the replica of the contents of the complaint.
ii)It is the oral testimony of P.W.1 that the accused approached the complainant and borrowed an amount of Rs.3,50,000/- from the complainant the accused for his necessities i.e. for his business purpose borrowed a sum of Rs.3,50,000/- from the complainant on dated 01.12.2017 agreed to repay the same with interest @ 24% p.a. to him or his order on demand and executed Two demand promissory notes in favour of the complaint one for Rs.50,000/- by the accused and another for Rs.3,00,000/- by the accused and his father Sri Rama Murthy. After repeated demands of complainant, on 17.12.2019 the accused issued a cheque bearing NO.792421 for an amount of Rs.2,00,000/- and the complainant presented the same but the same was returned as dishonoured for the reason that “ Account closed” through cheque return memo of the drawee bank dt.18.12.2019. The nomenclature mentioned in cheque return memo Ex.P.2 is come within purview of Sec.138 of NI Act.
6
Further it concludes that within three months and limitation disputed cheque was presented for encashment as per law and complied the provision as contemplated u/sec.138 of NI Act. Further the complainant issued legal notice dt.16.01.2020 demanding for repayment of debt within 15 days. The accused received the said notice and kept quiet. As such the complainant is constrained to file the complaint in written on 20.02.2020 within limitation u/sec.138 r/w 142 of NI Act against accused.
iii)During the course of cross examination by the learned counsel
for the accused, P.W1 has stated that he is LCD operator. He has been
running the LCD business for last 20 years. He has own LCD business.
Previously he has own shop for running LCD business at present he has no shop. He closed his LCD shop at about 4 years back. At present he is getting income of Rs.30,000/- to 40,000/- per month. When he was running LCD business he was earning Rs.30,000/- to 40,000/- per month.
He is not income tax esseesee. He is LCD distributor for doing marriage events, live shows, movies and other festivals. He owned 4 shops and getting rents. He has not maintaining any account with regard to above said business. He has account in SBI since 10 years. He has not shown his business amount in his savings account. He has acquaintance with accused since 15 years as he is residing in his street. He gave an amount of Rs.3,00,000/- to accused on 01.12.2017. He gave to the accused from his savings amount which was kept in his house. The lending amount of
Rs.3,00,000/- saving from his business. The transaction took place in between 9.30 to 10 am at his house in between himself and accused in the presence of Karumajji Sriramamurthy, Santosh, Prakash, Penumajji
Madhava and Palli Ravindra were present. The attestors of Ex.P6 are not his relatives and he does not know both the attestors. Accused brought scribe of Ex.P6 at the time of transaction by that time he saw the scribe.
Accused never gave any interest to him towards principal amount of
Rs.3,00,000/-. Later accused got issued cheque. He got issued legal notice to accused in respect of Ex.P6 and the same is received by accused. He issued legal notice to the accused in respect of Ex.P1. He filed civil suit 7 against accused based on Ex.P6. After filing of the above civil suit before this court in OS 499/2020, defendant/ accused herein received court summons in that suit. Accused issued Ex.P1 cheque to him on 17.12.2019.
He can identify the signature of accused, he identified the signature of accused on Ex.P6. Accused was residing PSR colony, near Park,
Vizianagaram upto 3 months back. He came to know at present accused was shifted to MSN colony, Vizianagaram. After filing of present complaint
before this court as accused was shifted to opposite house then court
summons got issued in that address where he was shifted. He does not remember the door number of accused but it may be 43 when summons got issued to the accused through this court. He again says that accused gave filled cheque to him.
iv)He denied for the suggestions put by the learned counsel for the accused that the accused never attended before this court in the above said civil suit and he did not state give amount to him. He further denied that when the accused did not appear in that civil suit he got exparte decree in OS 499/2020. He gave amount of Rs.3,00,000/- to the accused by way of cash. He further denied that the signature on Ex.P6 and signature on the memo of appearance of the accused are different.
Prior to filing of this case he has not issued any legal notice to accused.
Accused did not receive his legal notice and he is not residing in that address which was mentioned in his legal notice. He further denied that the address on court summons and address on Ex.P3 are different as such accused did not receive legal notice under Ex.P3. He further denied that himself and accused are doing real estate business, during the transaction of real estate business he created Promissory Note Ex.P6 by forgery and filed present case against accused. He further denied that accused never issued Ex.P1 to him, the dispute arose in between himself and accused during the real estate business and he got created Ex.P1 by forgery the signature of accused on Ex.P1, the signature as well as other columns, writings all are different on Ex.P1. he further denied that the signature on
Ex.P1 and Ex.P6 are not belongs to accused. He has no objection to send 8 the Ex.P1 and P6 to the hand writing experts to comparing the signatures of accused. He never lend any amount to the accused and he did not received any amount from him.
13. Evidence of PW2:
i) In support of his the complainant had examined the scribe of the said promissory note as PW2 he deposed that he know the complainant and the accused and also acquainted with the facts of the case. The accused had borrowed a sum of Rs.3,50,000/- from the complainant on 01.12.2017 agreeing to repay the same together with interest to the complainant or his order on demand and executed two promissory note in favour of the complainant for Rs.50,000/- and another for Rs.3,00,000/- and the accused and his father executed one promissory note for
Rs.3,00,000/- and the accused alone executed promissory note for
Rs.50,000/- and he has scribed the promissory note on 01.12.2017 in the presence of accused and the complainant. He further deposed that inspite of repeated demands made by the complainant the accused did not pay any amount due on the afore mentioned promissory notes. Later, he came to know through the complainant that the accused he himself had issued a cheque in favour of the complainant for the part pay of amount due under the afore said promissory notes and when the complainant presented the said cheque for collection, the cheque which was issued by the accused to the complainant was dishonoured due to some reasons.
He was also examined as witness in O.s. 499/2020.
ii)During the course of cross examination he deposed he does not know the Complainant. Further he deposed that he know the transaction in between PW1 and accused and the accused is doing real estate business and he informed him that he took amount from PW1 as such he requested him to scribe Promissory Note Ex.P6. The transaction took place on 01.12.2017 in between PW1 and accused at the house of PW1 in between 10 to 11 am by that time himself, PW1, accused, father of accused, K. Prakash and another person his surname is Penumatsa but he 9 does not remember his name were present. He does not know about the issuance of cheque by the accused to PW1.
14. EVIDENCE OF DW1:
i)In order to rebutte the case of the complainant the accused himself examined as DW1 and he testified that Previously he did Real estate business. The complainant is his relative and his grand mother is his grand father’s niece. The complainant is also doing Real estate business along with him by that time they have good relation between them. When he sustained loss of Real estate business, then the dispute arose between him and complainant. During the transaction of real estate business one of his cheque was misplaced. Then the complainant filed the present case against him by forgering his signature on Ex.P1. The signature on Ex.P1 is not belongs to him. He does not know attestors and scribe of Ex.P5 and
P6. The complainant filed false case against him and harassed him.
ii) During his cross examination he deposed that there is no name and license of his real estate business. He has not filed any documentary proof to show that himself and complainant did real estate business. He has not given any Police complaint when his cheque was misplaced during his real estate business. He will send Ex.P1 to the hand writing expert to compare his signature. After receiving court summons he attend before this court for the 1st time in this case. He has not received any legal notice from the complainant. He has not filed any documentary proof to show that he did not receive any legal notice issued by Complainant. He admitted that the complainant filed civil suit filed against him on the file of this court and the same was decreed.
Before adverting to discussion it is just and necessary to note the
presumption u/sec.139 of NI Act.
The presumption u/ Sec.139 of NI Act which says that it shall be presumed “unless the contra was proved that the holder of the
cheque received the cheque for discharge in whole or in part of
any debt or liability it was further held in compliance of Sec.138
of NI Act, this court has to presume that cheque has been issued
10
for debt or liability, the burden of proof that cheque was not
issued for debt or liability is on the accused”.
On careful consideration of the provision of Sec.139 of NI Act, it reveals that there is a presumption in favour of the holder of the cheque that the cheque was issued for legally enforceable debt and the presumption u/sec.139 of NI Act is not a general presumption but it is a mandatory presumption which can be raised in favour of the complainant. But the accused is entitled to rebut the presumption and what is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances, but the fact remains that a mere plausible explanation is not expected from the accused and it must be more than plausible explanation by way of rebuttable evidence and moreover, the defence raised by the accused by way of rebuttable evidence it must be probable and capable of being accepted by the Court.
In order to create the doubt in the complainant’s claim the accused had taken the following defences;
15. The learned counsel for the accused argued that the accused did not receive legal notice from the complainant as such Ex.P3 is not proper service to the accused. Further, the address mentioned on Ex.P3 and the court summons address are different. Therefore, the complainant failed to fulfill the essential ingredients under section 138 (b) of NI Act and the complaint is liable to be dismissed.
i)On the other hand, the complainant argued that the complainant had sent legal notice to the accused under Ex.P.3 and the said notice was served to the accused under Ex.P4. Therefore, the complainant fulfilled the essential ingrdence under section 138(b) of NI Act. Hence, accused is liable to be convicted.
ii)As seen from the record the complainant sent the legal notice to the address of the accused which was mentioned in Ex.P.5 and P6 promissory notes and the same was received by the accused under EXP4 on 18.01.2020. In case the accused changed his dress, it is the duty of the accused to inform his changed address to the complainant.The burden 11 lies on the accused to inform the same. More so, he neither filed any support document nor examined any neighbour to prove his contention he is not residing in the address noted in EXP3.
At this juncture there is need to note the relevant provision. Sec.106 of
Indian Evidence Act: Burden of proving fact especially within
knowledge.—When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. iii) Further the complainant stated that after filing of the present complaint as the accused was shifted to opposite house of his
previous house then the court summons got issued in that
address where the accused is shifted. Moreover, if really the accused did not receive legal notice and the signature Ex.P4 is not belongs to him.
what prevented to him to examine the postal authorities. But the accused failed to examine any postal authorities to prove his contention.
On said aspect this court had relied on the judgment of Mutyala
Bhushanam v., Patneedi Sreeramamurthy and another reported in
2015(2) ALD (Crl.) 318 wherein his lordships held that “it is for
accused to rebut presumption of service under 27 of General
Clauses Act by adducing necessary evidence, therefore, finding of
lower appellate court that it is for complainant to examine
postman concerned to prove endorsement on postal cover is
erroneous.”
Nonetheless, the principle incorporated in Sec.27 can profitably be important in case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee. Hence, it is presumed that it is deemed to be served on the accused.
iv) Nevertheless, in the present case even after got known the legal notice, the accused did not pay the amount and not even made an attempt to discharge the burden to rebut the aforesaid presumption u/sec.139 of NI Act.
At this context, this court relied on the judgment reported in 2007(6)
SSC 553 (three judges bench) of Alavi Haji vs Palapetty Muhammed & 12
Anr wherein his lordships held that “It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of
Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive
the notice sent by post, can, within 15 days of receipt of
summons from the court in respect of the complaint under
Section 138 of the Act, make payment of the cheque amount and
submit to the Court that he had made payment within 15 days of
receipt of summons. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the
G.C. Act and Section 114 of the Evidence Act.
Even after having knowledge about issuance of notice by the complainant, the accused neither give reply notice nor make any payment and kept quiet. The non issuance of reply notice is one of the reason to drawn the adverse inference against accused. Therefore, on considering the above General clause Act and citation, the notice sent to the address of the accused is deemed to be served to accused and that notice is to be validated. Mere denial of the accused will not come under the purview of rebutting the case of the complainant. Hence, the contention of the learned counsel for the accused is untenable.
vi) The another defence took by the learned counsel for the accused is that the signature on Ex.P1 is not belongs to the accused. Moreover, the accused did not fill the columns of the cheque and the said cheque was filled by the complainant according to their convenience. Hence, prayed the court to acquit the accused.
On the other hand, the complainant had deposed that that the accused gave a filled cheque/Ex.P1 to him.
Xvii) But the said contention of the accused is not acceptable, When the accused has taken defence that the signatures and writings on impugned 13 documents is not belonged to the accused, he ought to have send the disputed document to the hand writing expert. Even though the accused counsel suggested to PW1 during cross examination that if any objection to send the document to hand writing expert then PW1 clearly stated that he has no objection to send the document but why the accused has not been taken any steps for sending impugned documents to the hand writing expert. If really the writings and signature are
not belonged to the accused definitely he would have been send
the disputed document to the hand writing expert. The failure of sending documents to the hand writing expert creates an amount of doubt to accept the contention of the accused.
viii) The learned counsel for the accused further argued that, even though the complainant examined PW2 but he clearly stated that he did not know the complainant as such the PW2 does not known any thing about case facts and his evidence cannot be taken into consideration.
ix) As seen from the evidence of PW2 who is scribe of EXP5 and P6, he clearly stated that the transaction took place in between the complainant and the accused on 01.12.2017 at the house of the complainant/PW1 in the presence of PW2.
x) At this context, it is just and necessary to note the relevant portion of the evidence during the cross examination of PW2 is culled out as under
EVIDENCE OF PW2:
“I know the transaction in between PW1 and accused. I
know the accused and he is doing real estate business and he
informed me that he took amount from PW1 as such he
requested me to scribe promissory note i.e., Ex.P6. The
transaction took place on 01.12.2017 in between PW1 and
accused t the house of Pw1 in between 10 to 11 am by that time
myself PW1,accused, father of the accused, K. prakash and
another person his surname is Penumacha, but I do not know his
name and we all are present at the time of transaction.” 14 xi)From the above said evidence of PW2 clearly explicit that the transaction took place in between the complainant and accused in his presence. Moreover, he categorically stated about every details of the transaction in between the accused and the complainant on the date of the lending amount and execution of promissory notes by the accused in favour of the complainant. Though the PW2 stated that he does not know the complainant but PW2 clearly stated that on the request of the
accused he scribed Ex.P5 and 6 at the time of transaction. It is
settled principle that “Evidence of witnesses must be read as
whole”. Merely, on the solo ground the entire evidence of the PW2 cannot be discarded in toto. Hence, the evidence of the PW2 is believable and he clearly supported with the evidence of Pw1. As such the said contention of the learned counsel for the accused does not hold water.
xii)The main specific defence of the accused counsel that the PW1 worked under the control of the accused and they did real estate business and having family relation between them. During real estate business some dispute arose between complainant and accused and the Ex.P5 and
P6 were created by the PW1 by forgering the signature of the accused on the said promissory notes. In order to rebutte case of the complainant the accused examined as DW1. As such the EX P1 was not issued by the accused for discharging legally enforceable debt.
xiii)On the other hand the complainant argued that the PW1 never worked under the control of the accused. Moreover, there is no dispute between them. The accused borrowed amount from the complainant and executed Ex.P5 and P6 later, he got issued Ex.P1 towards discharging of legal enforceable debt.
xiv) At this juncture, For better appreciation it is necessary to observe the relevant portion of evidence which is culled out from the cross examination of DW1 and same is reproduced here under:
EVIDENCE OF DW.1:
The complainant is also doing real estate business along
with me. When I sustained loss of real estate business then the
15
dispute arose between me and complainant. During the
transaction of real estate business one of my cheque misplaced.
I have not filed any documentary proof to show that myself
and complainant did real estate business. I have not give any
police complaint when my cheque was misplaced during my real
estate business. It is true the complainant field civil suit against
me and the same was decreed.
xv) Apart from that, here, surprisingly,During the course of cross examination the accused counsel did not suggested either Pw1 or 2 that during the real estate business the cheque of the accused was misplaced.
Therefore, there is inconsistency statement of accused, suggestion
posed by the accused and the defence taken by the accused at
each stage different and varies with each other and it would arise doubt in the contention of the accused for acceptance of his defence as such, the said in consistency evidence cannot be used as rebuttal evidence to prove the case of the accused. However, it is presumed for a while, that the accused lost his cheque during the real estate business but
what prevented the accused to choose to gave a complainant
before the police. Moreover, he neither examined any support person
like examine any person to show that the accused and PW1 did real estate business. The accused should place cogent evidence and probable evidence which is acceptable by the court.
In this regard, this court relied on the judgment of our Hon’ble
Apex Court in T edhi Singh vs., Narayan Dass Mahant in Criminal
Appeal No.362 of 2022 (arising out of Slp (Crl) No.1963 of 2019)
dt.07.03.2022 wherein his lordships held that
“In fact even we notice that there is no reference to the loss
of the cheque book or signed cheque leaf. No complaint was given
of the loss of the cheque book or the signed cheque leaf either to
the police or to the bank. In the evidence of DW5, the son of the
appellant, the version given is that on 5.10.2011, PW5 had left
home with the cheque book of the appellant which had a cheque
16
signed by the appellant for withdrawing money, if needed in the
absence of the appellant. He further deposed that since his father
was not at home he could not tell him about the incident and got
engrossed in his study and forgot the incident. In his statement
under Section 313 Cr.PC given on 10.01.2013, appellant has taken
the stand that he informed the Bank. It is relevant to notice that
DW5 has further deposed that when the appellant received the
notice he asked him about the cheque book and then he told him
about the incident of the loss of cheque book. Still, at the time
when the reply notice was sent, the case is not set up about the
loss of cheque book and about the cheque relied upon by the re-
spondent being one which is brought into existence using the lost
signed cheque leaf. We have already noticed that there is no evi-
dence to establish that the appellant had informed the Bank
about the loss of the cheque book containing blank cheque.”
In another judgment Raj Kumar Khurana vs State Of (Nct Of
Delhi) & Anr held in CRIMINAL APPEAL NO. 913 OF 2009 [Arising out of SLP (Crl.) No. 8059 of 2007] dt.05.05.2009 wherein it is held that
“That the above said cheque in question was presented by
the complainant for encashment through its bearers, namely
State Bank of India, Azadpur Branch, Delhi - 33, but the same was
returned as dishonoured with the remarks "SAID CHEQUE RE-
PORTED LOST BY THE DRAWER". This intimation was received by
the complainant from the bankers on 27.7.2001 and accordingly a
notice dt. 3.8.2001 was sent to the accused requesting the ac-
cused to make payment of the above said cheque amount and on
17.8.2001 the accused sent reply through his Advocate denying
his liability falsely taking the plea that the cheque in question
was lost as stolen by the complainant...
That the issuance of the cheque by the accused and inform-
ing wrongly his own bankers about the loss/ theft of the cheque,
with no intention to make payment thereof, rather showing that
17
right from the time he issued the cheque, he had intention to
cheat and defraud the complainant by making false representa-
tions and thus the accused has willfully committed an offence
punishable under Sections 138 and 142 of the Negotiable Instru-
ments Act...” xvi) As per the aforesaid ratio of judgment wherein held that if cheque is lost or reported stolen, can a case of the cheque bounce under 138 of NI
Act be still made. Here in given case, the accused clearly admitted that no complaint was given about the misplace/stolen cheque and no notice is- sued to the bank not to honour the cheque. If really the said con-
tention is true, no person would sit quiet and certainly he would
have informed the said fact to his bank authorities by giving in-
structions and also would lodge the report or would take appro-
priate steps. Even the accused did not examine any of his co- real
estate business person and not filed any piece of paper to show
that the PW1 worked under the accused. Moreover, at the time of ex- amination u/sec.313 CrPC also the accused did not state about the mis- place of cheque . As such there is no evidence brought on record to estab- lish by the accused about the alleged cheque of the accused was mis- placed during the real estate business.
At this juncture, this court relied on the judgment of Rohitbhai J
Patel vs The State Of Gujarat reported in (2019) 2 ALD (Crl) 385
S.C wherein his lordships held that, Mere denial and mere
creation of doubt accused/appellant cannot be said to have
successfully rebutted the presumptions as envisaged u/sec.139 of
NI Act and accused is liable to be convicted.
xviii) It is was also brought on record that the complainant filed civil suit in OS 499/2020 and the same decreed. Though the accused counsel contend that the complainant got the exparte decree in the above said suit. However, here the accused has not been taken any steps on said impugned judgment, if really he did not borrow amount from the PW1 what is hardeal to the accuse to take steps and the reason best known to 18 him. Therefore, the accused borrowed amount from the complainant and executed Ex.P5 and P6 as such he did not take any steps in the above judgment in OS 499/2020. When a person is sleeping over his rights, no law will come into his rescue. Hence the contention of the learned counsel
for the accused is very difficult to believe and not sustainable.
xix)Further it is an admitted fact that Ex.P1 cheque is drawn on the account maintained by the accused. Even though the accused examined but no worthful evidence elicited from his evidence in this regard. Now the burden is on the accused to rebut the presumption. But the accused did not put forth any acceptable evidence before the court to rebut the said presumption and the presumption can only be rebutted in evidence.
xx) At this juncture, this court relied on the judgment of Hon'ble
Supreme court rendered in KN.Beena vs. Muniappan and another reported (2001)8 SCC 458 wherein his lordships held that
“Burden of proving that the cheque had not been issued for
any debt or liability is on the accused. Denial/averments in reply
by the accused are not sufficient to shift the burden of proof on to
the complainant, the accused has to prove in trial by leading
cogent evidence that there was no debt or liability.” xxi) In the light of above decisions and discussions this court is of the considered view that the accused failed to put-forth probable defence to rebut the presumption raised U/Sec.139 of Negotiable Instrument Act by placing any reliable evidence to prove his contention. On the other hand, the complainant successfully established all essential ingredients of
Sec.138 r/w 142 of NI Act. When the complainant established the presumptions U/Sec.118 and 139 of NI Act would come to rescue of him to say that transaction was held and consideration was passed to the accused and towards discharge of said debt existed under Ex.P1 was issued by the accused. Therefore without any hesitation this court holds that the accused has not rebutted the presumption raised U/Sec.139 of
Negotiable Instruments Act. Thus, the evidence of complainant is inspiring 19 the confidence of the court holding that the accused borrowed an amount of Rs.3,50,000/- from the complainant on 01.12.2017 for the purpose of his necessities and accused and his father executed promissory note i.e.
Rs.3,00,000/- and the accused executed promissory note for an amount of
Rs.50,000/- on even date in favour of the complainant. Lather, Ex.P1 cheque was issued by the accused towards discharge of the part payment of debt of the said promissory notes.
xxii) On evaluation of the entire evidence and settled legal position, the complainant succeeded in proving the case beyond all reasonable doubt by establishing all essential ingredients of Sec.138 r/w.142 of NI Act, 1881 to the satisfaction of this case.
Accordingly this point is answered in favor of the complainant and against the accused, hence, the accused is liable for punishment.
16. Result: In the result the accused is found guilty for the offence punishable u/sec.138 r/w.142 of NI Act and he is convicted for the same u/sec.255(2) Cr.P.C.
Directly typed to my dictation by my personal assistant, corrected by me and pronounced in open court, on this the 24th day of April, 2025.
Sd/- Kum Ponnuru Bujji,
Spl. Judl. Magistrate of I Class (Mobile)-cum- II Addl.Jr.Civil Judge,Vizianagaram.
17.The accused is questioned about quantum of sentence for the offence punishable u/sec.138 r/w.142 of NI Act for which he pleaded as follows
18.That he has wife, children and old age parents are depending upon him. If he sent to jail, his family would suffer a lot. Hence, he prayed to show mercy upon him.
17.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.
19.Considering the facts and circumstances of the case and also the above submission of the accused as he issued cheque in favour of the 20 complainant towards the debt due, I am not inclined to take any lenient view.
20.As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonor of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.
21.Uniformity and consistency in deciding similar cases by different courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice.”
22.The Hon'ble Apex Court in “Mainuddin Abdul Sattar Shaikh vs
Vijay D Savli” on 6 July, 2015 wherein it was held that 'The problem
is aggravated having regard to the fact that in spite of Section
143(3) of the Act requiring the complaints in regard to cheque
dishonour cases under Section 138 of the Act to be concluded
within six months from the date of the filing of the complaint,
such cases seldom reach finality before three or four years let
alone six months. These cases give rise to complications where
civil suits have not been filed within three years on account of the
pendency of the criminal cases'.
23.So basing on above judgments of Hon’ble Supreme Court and also
the facts and circumstances of case this court is under obligation
to award compensation to the complainant/P.W.1 in this case
under section 357(1) of The Code of Criminal Procedure,1973
towards the expenses incurred by him for this complaint, hence, this court feels that following sentence would meet the ends of justice as imposing fine is not sufficient.
21
24.In the result the accused is sentenced to undergo Simple imprisonment for a period of SIX MONTHS and ordered to pay compensation amount of Rs.3,00,000/- (Rupees three laksh only) to the complainant under Sec.357(1) of Cr.P.C. In default of payment of compensation amount the accused shall undergo simple imprisonment for a period of TWO MONTHS and the complainant is at liberty to receive the said compensation amount after expiry of appeal time.
25.As per the note put up by the concerned bench clerk there is no remand period of the accused hence, Section 428 Cr.P.C. does not arise.
Copy of the judgment has been supplied to the accused u/sec.363(6) of
Cr.P.C. at free of cost.
26.Convict/ Accused is appraised of his right to prefer appeal against the judgment of this court. When questioned with regard to means to en- gage the counsel at appellate stage, he submitted he has means.
Pronounced in open court on this the 24th day of April, 2025.
Sd/- Kum Ponnuru Bujji
Spl. Judl. Magistrate of I Class (Mobile)-cum-
II Addl.Jr.Civil Judge,Vizianagaram.
APPENDIX OF EVIDENCE
WITNESS EXAMINED
For complainant:
P.W.1: Bevara Sai Kumar (Complainant).
P.w.2: Palli Ravindra Kumar
For Defence:
D.W1: Karumajji Santosh Kumar
Documents Marked.
For Prosecution:
Ex.P.1-cheque bearing No. 792421 for Rs.2,00,000/- drawn on Andhra bank, ring Road branch, Vizianagaram dated 17.12.2019, Ex.P.2- cheque return memo dt.18.12.2019 of SBI, Fort Branch, Vizianagaram, Ex.P3-office copy of the legal notice dt.16.01.2020, Ex.P4- Acknowledgment dt.18.01.2020, 22
Ex.P5- Certified copy of promissory note for an amount of Rs.50,000/-
dated 01.12.2017 and
Ex.P6- Certified copy of promissory note for Rs.3,00,000/- dated 01.12.2017 executed by accused and his father For Defence: - NIL -
M.Os. Marked:- NIL-
Sd/- Kum Ponnuru Bujji,
Spl. Judl. Magistrate of I Class (Mobile)-cum-
II Addl.Jr.Civil Judge,Vizianagaram.