[1 of 18] C.C. No. 1554 / 2021
IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE CUM XIX
ADDL. METROPOLITAN MAGISTRATE, CYBERABAD AT
MALKAJGIRI.
Present:- Smt. B. Soujanya, II Addl. Junior Civil Judge cum XIX Addl. Metropolitan Magistrate. Cyberabad at Malkajgiri.
Dated this the 07 th day of October, 2021.
C.C. No. 1554 of 2021
Between:
S.R. Kasturi, D/o. S.E. Rajaiah, Age : 42 Years, R/o. H.No. 5-2-1, J.J. Nagar Colony, Yapral, R.R. District.
… Complainant
A N D
B.S. Vimala, W/o. B.R. Satyanarayana, Age: 54 years, R/o. R.V. Home, 35-15/2, G.K. Colony, R.K. Puram, Secunderabad.
… Accused
This case has come up before me on 02-09-2021 for final
hearing in the presence of Sri. Jacob Mudi, Advocate, Counsel for
Complainant and Sri. Sarosh Bastawala, Advocate, Counsel for
Accused and having stood over for consideration till this day, the
Court delivered the following:
J U D G M E N T
1.This is the complaint filed U/s. 200 Cr.P.C. by the complainant against the accused for the offence punishable U/s. 138 of
Negotiable Instruments Act, 1881.
2. The brief facts of the complaint are as under :
The complainant and accused are known to each other.
Accused borrowed an amount of Rs. 28,00,000/- from the complainant as hand loan for her business needs from time to time on various dates between 2010 to July, 2013. Accused executed promissory note on 12.12.2013 agreeing to repay the [2 of 18] C.C. No. 1554 / 2021 same as and when demanded by the complainant. Accused failed to repay and expressed her inability to repay the same. She requested for some time and executed an undertaking acknowledging to repay the amount before 31.05.2014. At that time accused handed over three post dated cheques bearing nos.
000013 dated 30.01.2014, 000014 dated 31.05.2014 and 000015
dated 31.05.2014. The complainant has presented the cheques
bearing no. 000014 for an amount of Rs. 6,00,000/- and another cheque bearing no. 000015 for an of Rs. 16,00,000/- on 02.06.2014 to be drawn on Karur Vysya Bank, Dr. A.S. Rao Nagar branch towards legally enforceable debt. And the same was returned with an endorsement of 'insufficient funds' and received cheque return memo dated 02.06.2014. Accused failed to discharge her lawful debt to the complainant by not arranging sufficient funds in her account, as such she is liable for punishment U/s. 138 of Negotiable Instruments Act.
3.Cognizance was taken for the offence U/s. 138 of Negotiable
Instruments Act, 1881 by issuing summons to the accused.
Accused made her appearance, as such all the copies of documents were furnished as contemplated U/s. 207 Cr.P.C. to the accused and she was examined under Sec.251 of Cr.P.C wherein the substance of accusation U/s. 138 r/w. 142 of Negotiable Instruments Act, 1881 was explained to her in Telugu for which she pleaded not guilty and claimed to be tried.
4.The complainant in order to substantiate her case, examined herself as PW1 so also got examined independent witness who was present in their money transactions and witness to the promissory note as well as undertaking as PW2 and got marked Ex.P1 to P8 in this case. Ex.P1 is original promissory note dated 12.12.2013, Ex.P2 is the Undertaking on Rs. 100/- Non-Judicial Stamp paper, dated 12.12.2013, Ex.P3 is the cheque bearing no. 000014 dated 31.05.2014 for Rs. 6,00,000/-, Ex.P4 is the cheque return memo
dated 02.06.2014, Ex.P5 is the cheque bearing no. 000015, dated
31.05.2014 for Rs. 16,00,000/-, Ex.P6 is the cheque return memo [3 of 18] C.C. No. 1554 / 2021
dated 02.06.2014, Ex.P7 is the office copy of legal notice dated
20.06.2014, Ex.P8 is the returned postal cover and acknowledgement card dated 28.06.2014.
Ex.D1 and D2 were marked by defence during the cross examination of PW1. Ex.D1 is the certified copy of complaint given by PW1 on 26.01.2017 before Neredmet PS, Ex.D2 is the photostat copy of Sec. 161 Cr.P.C. statement given by PW1 before police,
Neredmet.
5. On closure of complainant's side evidence, the accused was examined U/s. 313 Cr.P.C. explaining the incriminating material on record for which she denied the same and reported no defence evidence.
6. The contention of learned counsel for the complainant is that accused failed in rebutting the presumption U/s. 139 Negotiable
Instruments Act and thereby he is liable for the punishment for the offence U/s. 138 Negotiable Instruments Act. He further argued that
PW1 during the course of her evidence has clearly explained to the
Court as to how she secured that much amount by way of pledging her gold before various pawn brokers and also her source of income and affordability to give Rs. 28,00,000/- to the complainant. She further deposed that she pledged 11/2 kg gold which she bought it during her business and from her age of 12 years. She further deposed that she gave Rs. 28,00,000/- to the accused as she does real estate business and offered to construct a house to the complainant herein. As such on various occasions she gave amounts to accused from 2010 to 2013 and all those money transactions were done in the presence of PW2 to that effect. She also explained to the Court that the amounts under Ex.D1 and D2 about Rs. 56,00,000/- being given to accused with regard to another transaction and it covers the present amount also. She further submitted that the rules of presumptions U/s. 118 and 139 of
Negotiable Instruments Act help the complainant to shift the burden on accused . Presumptions will live, exist, survive and shall end only [4 of 18] C.C. No. 1554 / 2021 when the contrary is proved by the accused and that the cheques were issued for consideration and in discharge of any debt or liability. Accused has failed to raise a probable defence and he has not adduced any evidence to rebut the presumption, except denying the existence of debt. He relied on following citations:
i) Kishan Rao Vs. Shankar Gouda criminal appeal no. 803 of 2018 dated 02.07.2018 wherein the Hon'ble Supreme Court has held that an adverse inference can be drawn against accused when they fail to prove how signed cheques, promissory notes and undertakings have reached the complainant.
ii) Asst. Director of Inspection Vs. A.B. Shanthi criminal appeal no. 601 of 1990 4478 of 2000 dated 03.05.2002 in which the
Hon'ble Supreme Court held that accused will be at fault if a loan
amount more than Rs. 20,000/- is received then. It has to be received through account payee cheque or account payee bank draft and she cannot take advantage of her own fault.
The counsel for the complainant further argued that the accused contended that no document showing income tax returns was filed that would best hold the assesse or lender liable for the action under Income Tax law and if the complainant succeeds in showing the lending amount then the existence of legally enforceable debt cannot be denied and presumption existing in favour of the complainant by virtue of Sec. 118 and 139 of Negotiable Instruments
Act. As such evidence for source of funds would be no relevant to this case.
iii) Rohitbhai Jivanlal Patel Vs State of Gujarat & ANR Criminal
Appeal No. 508 of 2019 dated 15.03.2019 in which an observation was made with regard to variance in the statement of complaint and witness; or want of knowledge about dates and other particulars of the cheques as held by Hon'ble Supreme Court.
The counsel further submitted complainant has proved the case against accused and prayed the Court to impose sentence U/s.
[5 of 18] C.C. No. 1554 / 2021 138 of Negotiable Instruments Act and also grant victim compensation U/s. 357(3) of Cr.P.C.
7. The counsel for accused argued that pre-existing liability is to be established by the complainant and no pleading about the date of such lending and there are so many inconsistencies in the evidence of the complainant. Accused is the owner of cinema theater whereas complainant is vegetable vendor and earlier would have been time barred debt on that day, as such filed present complaint. The complainant has made five different stories in the present complaint and that Rs. 28,00,000/- were given from 2010 to 2013. In Ex.D1 she has enhanced to Rs. 56,00,000/- and in Sec. 161 Cr.P.C.
statement she has stated a different amount and there is variance of the amounts as well as dates and there is no consistency. PW1 had not filed any suit for recovery for money but got registered Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act case against accused to pressurize her for payment. There is no evidence and there is no consistency, as such there is no need for the accused to rebut the complainant's evidence. There is no capacity for the complainant to lent money to the accused who herself is a rich person. PW1 had not filed the receipts or documents pertaining to pledging of gold and stated that the said receipts had been stolen.
PW1 is not only a vegetable vendor but also money lender who lends money on daily basis and cheques were taken in police station forcibly. The memorandum of understanding and half of the cheques were used for the purpose of this case as the debt is time barred on that day. The person who lends money should be able to lend money and there is no evidence on record to say that PW1 has capacity to lend. Unauthorized amount is an illegal debt and not leading the defence amount does not automatically prove the evidence of the complainant and the counsel for the accused filed the following set of citations in support of his case :
1) (2015) 1 Supreme Court Cases 99 between K. Subramani Vs.
K. Damodar Naidu : It was observed that the complainant and accused were working as lecturers in a government college at the [6 of 18] C.C. No. 1554 / 2021 relevant time and alleged Rs. 14,00,000/- is claimed to have been paid as cash and it is disputed. It is contention taken by the accused is that they are governed by the Government Servant
Conduct Rules which prescribes the mode of lending and borrowing money. There is nothing on record to say that the prescribed mode was followed. The source shown by the complainant is savings from his salary which was lent and Rs. 5,00,000/- derived by him from sale of one property belonging to him. There is no averment with regard to said source of income and sale deed was not filed before the
Court. The complainant is income tax assessee and admitted that the same is not shown in Income Tax returns. The complainant did not produce bank statements to substantiate his claim. The Trial
Court took into account the testimony of the wife of complainant in which she stated that the accused had not taken any loan from her husband and the Trial Court came to conclusion that there complainant had no source of income to lend money. But in the present case the complainant has established her source of income and also deposed clearly before the Court even in the cross examination as to who she has got capacity to give that much of amount as loan to the accused. The facts and circumstances of the above citation does not suit to the present case on hand.
2) (2014) 2 Supreme Court Cases 236 between John K Abraham
Vs. Simon C. Abraham and Another : In this case the complainant was not aware of the dates of transactions more particularly date on which he advanced loan to the accused. Therefore, the case ended in acquittal. But in this case, the complainant has clearly deposed
before the Court that there were several occasions and several dates
from 2010 to 2013 wherein she has lent the money to the accused on several occasions. It is not the single day transaction and the facts and circumstances mentioned in the above citation does not suit to the present case, as such the ratio laid down in the above citation cannot be applied to this case.
3) 2009(4) Mh.L.J. Sanya Mishra Vs. Kanishka Kapoor 2 Nikki and Another : The said judgment deal with unaccounted money.
[7 of 18] C.C. No. 1554 / 2021
But on the contra the counsel for the complainant relied on the judgment in Rohitbhai Jivanlal Patel Vs State of Gujarat & ANR
Criminal Appeal No. 508 of 2019 wherein the Hon'ble Supreme
Court has clearly mentioned that if such unaccounted money is there then she shall be liable for the punishment Under Income Tax
Act but not under Negotiable Instruments Act and the same cannot waive her right.
4) 2009 (110) DRJ 592 Vijay Polymers Pvt. Ltd. and Another Vs.
Vinnay Aggarwal : The said judgment dealt with the point that cheque issued in view of debt which was not legally enforceable recoverable. The acknowledgment if any must be there before period of limitation is over and that debt was not legally enforceable at the time of issuance of cheque. The ratio decidendi does not suit to the present case, as the debt between the complainant and accused herein is legally enforceable and it is not time barred debt as on the date of issuance of cheque.
5) (2009) 1 Supreme Court Cases 258 between K. Prakashan Vs.
P.K. Surendran : In this case, the Hon'ble Apex Court has held that the accused need not step into the witness box to discharge his burden. It is for the accused whether to discharge his or her burden or not. But primarily the complainant has to prove that the cheque has been signed and issued by the accused towards legally enforceable debt and the same has been discharged by the complainant herein. If the accused did not rebut said presumption and discharge the burden, it is for the accused to face the consequence.
6) 2010 SCC Online Kar 54 between B. Girish Vs S. Ramaiah : It was held by the Hon'ble Apex Court that the complainant failed to prove the existence of debt and guilt of accused U/s. 138 of
Negotiable Instruments Act for which the Court was justified in acquitting the accused. But principles laid down in the said judgment and the facts and circumstances are different to the present case on hand.
[8 of 18] C.C. No. 1554 / 2021
7) Krishna Janardhan Bhat Vs. Dattatreya G. Hegde (2008) 4
Supreme Court Cases 54 : This judgment also dealt with time barred debt which does not apply to the case on hand, as the cheque was issued towards discharge of legally enforceable debt and the accused has also executed promissory note as well as memorandum of understanding, acknowledging the debts which was within the time of limitation.
8) 2006 SCC Online Bom 977 between Jagadamba Parisar
Sahakari Pat Sanstha Maryadit Vs. Shravan Ajinath Ukirde
and Another : It was held that the burden is on the accused / drawer to prove that the cheque has not been issued towards debt or liability. But the said citation does not support the case of accused but it would further strengthen the case of complainant.
9) (2009) 2 Supreme Court Cases 513 Kumar Exports Vs.
Sharma Carpets : It was held that defence of of Appellant that the blank cheques were issued towards debt and the onus of burden shifts on the complainant. In this case, the complainant has discharged the burden of proof, as such there is no question of onus shifting from complainant to accused and after establishing a fact again shifting back to the complainant.
10) 2010 (11) Supreme Court Cases 441 Rangappa Vs. Sri
Mohan : The contention taken in this citation already discussed in one of the above citations.
The counsel for the accused filed the above citations and all the citations does not suit to the present case and only they were filed to confuse the Court.
The counsel for accused also filed another set of citations during the course of his oral arguments which are as under :
1) (2007) 12 SCC 714 John K. John Vs. Tom Varghese and
Another: It was held by the Hon'ble Apex Court that the complainant therein has not approached with unclean hands and his conduct was [9 of 18] C.C. No. 1554 / 2021 not of prudent man and also respondent / accused succeeded in rebutting the presumption U/s. 139 of Negotiable Instruments Act and the complainant therein failed to prove that the accused had borrowed any sum for which those cheques had been issued. The facts and circumstances of that case will not suit to the present case as complainant herein succeeded in proving the case against accused and also that the accused had failed to rebut the evidence of the complainant.
2) (2008) 1 SCC 258 between K. Prakashan Vs P.K. Surendran :
This citation is already discussed above.
3) (2013) 3 SCC 86 Vijay Vs Laxman and Another : The said judgment dealt with principles and scope of rebutting presumptions under 139, 118A and 138 of Negotiable Instruments Act. It was held by the Apex Court that the standard of proof for rebutting presumption under 118 and 139 of Negotiable Instruments Act is not as high as that required of the prosecution and is rebuttable on the preponderance of probabilities. This Court has no where denied principles laid down in the above citation.
4) 2012 ACD 878 (Guj) between Rajendrakumar @ Rajeshkumar
Balkishan Agrawal Vs State of Gujarath and Another : The
Hon'ble High Court of Gujarath has acquitted the accused by
observing that the prosecution has failed to prove the ingredients U/ s. 118 and 139 of Negotiable Instruments Act so also observed that there are serious lacuna in oral and documentary evidence by the prosecution, which was ignored by the lower Courts for which the
Hon'ble Apex Court has acquitted the accused. In this case there is
no discrepancy or inconsistency in the evidence of prosecution nor there is lacuna in the oral as well as documentary evidence as such the principles laid down in the above judgment cannot be applied to the present case.
The extracts vide Sl.No. 5 and 6 are not discussed as they are articles but not judgments.
[10 of 18] C.C. No. 1554 / 2021
7) (2019) 5 SCC 418 Basalingappa Vs Mudibasappa : This judgment also dealt with the principles of standard of preponderance of probabilities and also reiterated that the prosecution must establish beyond reasonable doubts. This judgment is with regard to principles laid down and it does not specifically attract to this case and that the complainant herein has proved beyond reasonable doubt by placing cogent evidence both oral and documentary
8) (2019) 18 SCC 106 Rohitbhai Jivanlal Patel Vs State of Gujarat & ANR : This judgment is already discussed earlier.
9) (2019) 10 SCC 287 Uttam Ram Vs Devinder Singh Hudan and
Another: This judgment is in favor of complainant but not accused.
8. Sec. 138 of Negotiable Instruments Act deals with 'Dishonour of cheque for insufficiency, etc., of funds in the account and it reads as "Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount
of money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount, of
money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence and
shall, without prejudice to any other provision of this Act, be
punished with imprisonment for [a term which may be extended
to two years], or with fine which may extend to twice the
amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless -
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier.
[11 of 18] C.C. No. 1554 / 2021
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
9. Thus, for making out a case for the offence punshible U/s.
138 of Negotiable Instruments Act, following are the essential ingredients to be satisfied : (i) the accused should have been issued a cheque to the complainant for a sum towards discharge of whole or part of the amount due on the account maintained by him. (ii) The said cheque should have been presented for encashment within a period of 3 months from the date of issuance. (iii) The cheque should have been returned for 'want of sufficient funds in the account of accused to meet cheque or for any other reason' to attract the offence
U/s. 138 of Negotiable Instruments Act. (iv) The complainant should have got issued legal notice demanding payment of money due under the cheque. (v) Within 30 days of receipt of such information from the bank, it should have been served on the accused. (vi) The accused should have failed to make payment of the amount within 15 days from the receipt of the notice. (vii) The complainant should have filed the complaint within 1 month from the date, when cause of action arose.
10. On hearing both the sides, the Court framed the following
Points for determination :-
1) “Whether the complainant is able to establish the transactions between herself and accused?”
2) “Whether there exists any legally enforceable debt due by the
accused to complainant and whether Ex.P3 and P5 cheques
were issued by the accused to the complainant towards
[12 of 18] C.C. No. 1554 / 2021
discharge of any legally enforceable debt or other liability"?
3) "Whether the cheques were dishonoured on the ground as 'funds insufficient'?”
4) “Whether there was proper service of statutory legal notice on the accused?”
5) “Whether the accused is liable to be punished for the said offence?”
11. Point 1) : “Whether the complainant is able to establish the transactions between herself and accused”?
The complainant got herself examined as PW1 and examined a direct witness to the money transactions as well as witness to Ex.P1,
P2, P3 and P5 as PW2. Both PW1 and PW2 were cross examined at length by the counsel for accused but there was no denial on the part of the accused with regard to transactions that took place between the accused and PW1. The only contention by the accused is that PW1 has no source of income and she failed to prove her source of income and earnings of Rs. 28,00,000/- to give the same to accused. Her further contention is that the complainant had not filed any proof of source of income to lent that much of money. The entire defence is with regard to source of money but the accused has not denied issuance of cheques nor documents under Ex.P1 and P2 which were executed by him. PW2 clearly deposed that both said documents are in the handwriting of accused and he signed as witness to both documents. Another important and interesting point is that PW2 is not the interested witness of PW1 but he is the interested witness of accused only. He clearly deposed that he do not know PW1 but know accused as she used to arrange amount for his cloth business. As such the evidence of PW2 is most reliable.
Both PW1 and PW2 deposed with regard to the transactions between the complainant and accused by filing Ex.P1 and P2 before the
Court. PW2 who is the witness on behalf of accused has deposed that he was present on all the transaction of money and he is also a witness in Ex.P1 and P2 executed in favor of complainant and attested said documents. First time the accused took defence in [13 of 18] C.C. No. 1554 / 2021 arguments that accused signed Ex.P1 and P2 in police station on the coercion of police in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act case but the same was not taken in cross examination or in their defence evidence which she never lead.
But PW2 clearly deposed that they went to the house of PW1 for signing. There is no rebuttal evidence to disprove said contention.
As such the complainant has proved before the Court the existence of transaction between herself and accused. Point no. 1 is answered in favor of complainant.
12. Point No. 2 : “Whether there exists any legally enforceable debt
due by the accused to complainant and whether Ex.P3 and P5
cheques were issued by the accused to the complainant towards
discharge of any legally enforceable debt or other liability?”
Accused not denied the issuance of Ex.P3 and P5 nor denied the signature on it. As such the presumption can be drawn U/s. 139 of
Negotiable Instruments Act, 1881 that there is exists legally enforceable debt due by the accused to the complainant and that
Ex.P3 and P5 / cheques were received by the complainant from the accused towards discharge of debt of Rs. 6,00,000/- and Rs.
16,00,000/- respectively. Accused has not denied about the execution of undertaking letter given by her in favor of complainant nor denied about signing on promissory notes given to the complainant. She has not even denied the signature on cheques.
But the only defence taken by accused is that the complainant failed to prove her source of income to given that much huge amounts as loan to the accused. As such it can be easily presumed that accused himself has signed on Ex.P1, P2, P3 and P5. It is settled principle of law that when the cheque is signed by accused then she herself is responsible for the issuance of said cheques. When she herself admitted Ex.P1, P2. P3 and P5 nothing much remained to be proved by the complainant. Once the complainant has discharged her initial burden that she has advanced an amount of Rs. 28,00,000/- to the accused towards legal enforceable debt then the onus shifts upon accused to disprove said contention. It is the duty of the [14 of 18] C.C. No. 1554 / 2021 accused to prove before the Court as to who and why said cheques under Ex.P3 and P5 came into the possession of the complainant.
She has to answer as to how and why she has executed Ex.P1 and
P2. Accused has failed to rebut the evidence of complainant. She has not examined herself nor examined any other independent witness on her behalf. Ex.D1 and D2 are not related to this case.
13. More particularly the principle of criminal law is that the statements U/s. 145 of Indian Evidence Act and Sec. 161 Cr.P.C.
statements shall be used only for the purpose of corroboration by the prosecution in that particular case and not for any other purpose.
As such Ex.D2 cannot be looked into. PW1 has also clearly explained that the amount of Rs. 56,00,000/- is different with that of amounts under Ex.P3 and P5. Now, accused only has to explain about said Rs. 56,00,000/- once she has taken said defence.
Accused has not rebutted nor taken any chance to rebut the presumption U/s. 139 of Negotiable Instruments Act. As such the complainant has sufficiently proved the existence of transactions between the complainant and accused by filing Ex.P1 and P2 before the Court. As such point no. 2 is answered in favor of complainant.
14. Point No. 3 : "Whether the cheques were dishonoured on the ground as 'funds insufficient'?”
PW1 and PW2 has clearly deposed that PW1 has presented the
Ex.P3 and P5 / cheques on 30.05.2014 and 31.05.2014 and both the cheques were dishonoured with an endorsement "funds insufficient" and the cheque return memo was issued to him on 02.06.2014 and the same were marked under Ex.P4 and P6. There is no challenge from the accused in this regard and it is not the case that the accused has maintained sufficient funds in her bank account to meet cheques. The only defence taken by accused is that the complainant has no source of means to lend money to her is not tenable, when she has not denied the issuance of cheques for legally enforceable debt and she has knowledge about dishonour of cheques for reason of not maintaining sufficient funds. As such admitted [15 of 18] C.C. No. 1554 / 2021 facts need not be proved U/s. 58 of Indian Evidence Act. There is no controversy on this point and does not require any appreciation in depth. Point no. 3 is answered in favor of the complainant.
15. Point No. 4 : “Whether there was proper service of statutory legal notice on the accused?”
PW1 has clearly deposed before the Court that she has issued notice to accused on 20.06.2014 for repayment of said debt through registered post and acknowledgment due and the same has been returned by the accused and accused further promised to settle the matter within 10 days without fail. But she had not settled the matter within 10 days not repaid the amount. The notice has been returned by the accused under Ex.P8 with an endorsement 'no such person'. But however accused has knowledge about the same and no question was put during the cross examination of PW1 to rebut the same. Learned counsel for defence had also not denied about the said legal notice. There is no reply given to the said notice but orally gave assurance to repay the amount. As seen from Ex.P8 it reflects the address of accused as R.V. Home, 35-15/2, G.K. Colony,
R.K. Puram. Though Ex.P8 was returned with an endorsement 'no such person' in the said address but the latest memo of appearance filed by the counsel for accused also reflects the same address which clearly goes to prove that the legal notice has been sent to the correct address but the accused has purposefully returned it by un-claiming it. As such now the accused cannot deny by saying that the statutory legal notice has not been issued to her. However, the purpose of issuance of legal notice is to make the accused aware of legal proceedings to be initiated against her in case of failure of payment of consideration under the issuance of cheque. Accused is having knowledge of the same when she herself has signed on Ex.P1 to P3, P5. Now, she cannot escape the liability and she had been deemed to be guilty as the accused has never denied the legal enforceable debt and executed Ex.P1 and P2 admitting and acknowledging the debt due to the complainant herein. There does not remain anything to prove as the legal notice is properly issued to [16 of 18] C.C. No. 1554 / 2021 the accused under Ex.P8 but she herself has returned it. The present complaint is filed after completion of 15 days after legal notice is returned within the statutory period. Point No. 4 is answered in favor of complainant.
16. Point No. 5 : “Whether the accused is liable to be punished for the said offence?”
Consequent to the failure of the accused in rebutting the presumption U/s. 139 of Negotiable Instruments Act and the complainant succeeded in proving the legally enforceable debt to him and that Ex.P3 and P5 cheques were received by her towards discharge of said debt and the cheques were dishonoured for insufficient funds in the account of accused. The legal notice was sent to proper address to the accused and it was returned by the accused purposefully by unclaiming it. Accused has failed to rebut said notice and failed to repay the amounts under the cheques within the stipulated period of 15 days from the date of said notice and thereby liable for prosecution U/s. 138 of Negotiable
Instruments Act. Point no. 5 is answered in favor of complainant.
17.In the result, accused is found guilty for the offence punishable
U/s. 138 of Negotiable Instruments Act and accordingly accused is convicted U/s. 255 (2) of Code of Criminal Procedure r/w. 142 of
Negotiable Instruments Act, as amended in Act 55 of 2002 for the offence U/s. 138 of Negotiable Instruments Act.
Dictated to steno, transcribed by her, corrected and pronounced by me in the open Court on this the
07 th day of October, 2021.
Sd/-
II Addl. Junior Civil Judge cum XIX Addl. Metropolitan Magistrate Cyberabad at Malkajgiri.
Accused is questioned with regard to the quantum of sentence to be imposed upon him.
Accused submitted that, she will file appeal against the judgment.
The same is not mitigating circumstance to consider.
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Heard the accused with regard to quantum of sentence. After taking into consideration all the circumstances and nature of the case, this Court is of the opinion that the said circumstances are not mitigating in nature. This is not fit case to invoke the provisions of Probation of
Offenders Act and also not the case to take lenient view. As such, it is just and proper to award punishment to accused in the interest of justice and to meet ends of justice.
In the result, accused is sentenced to undergo Rigorous
Imprisonment for 01 Year (One Year Only) and accused is sentenced to pay compensation of Rs. 44,10,000/- (Rupees Forty Four Lakhs Ten
Thousand Only) which is double the amount of cheques within two months from this day U/s. 357(3) Code of Criminal Procedure and in default of payment of such amount accused is sentenced to undergo
Simple Imprisonment for a period of 06 Months (Six Months Only).
Out of said compensation a sum of Rs. 44,00,000/- (Rupees Forty
Four Lakhs only) is awarded as compensation to complainant / prosecution witness no. 1 S.R. Kasturi, D/o. S.E. Rajaiah, Age : 42 Years,
R/o. H.No. 5-2-1, J.J. Nagar Colony, Yapral, R.R. District U/s. 357 (3) of
Code of Criminal Procedure, payable after appeal time is over.
Accused is informed about the right of filing appeal against the judgment within the limitation period of law.
Sd/-
II Addl. Junior Civil Judge cum XIX Addl. Metropolitan Magistrate Cyberabad at Malkajgiri.
:: Appendix of Evidence ::
Witnesses Examined
Complainant :
PW1 : S.R. Kasturi
PW2 : Narsing Ramesh
Defence :
Nil [18 of 18] C.C. No. 1554 / 2021
EXHIBITS MARKED
For Complainant :
Ex.P1 : Original promissory note dated 12.12.2013
Ex.P2 : Undertaking on Rs. 100/- Non-Judicial Stamp paper, dated 12.12.2013
Ex.P3 : Cheque bearing no. 000014 dated 31.05.2014 for Rs. 6,00,000/-
Ex.P4 : Cheque return memo dated 02.06.2014
Ex.P5 : Cheque bearing no. 000015 dated 31.05.2014 for Rs. 16,00,000/-
Ex.P6 : Cheque return memo dated 02.06.2014
Ex.P7 : Office copy of legal notice dated 20.06.2014
Ex.P8 : Returned postal cover and acknowledgment card dated 28.06.2014.
For Defence: Ex.D1 : Certified copy of complaint given by PW1 on 26.01.2017 before Neredmet PS
Ex.D2 : Photostat copy of Sec. 161 Cr.P.C. statement given by PW1 before police, Neredmet.
MATERIAL OBJECTS MARKED
Nil
Sd/-
II Addl. Junior Civil Judge cum XIX Addl. Metropolitan Magistrate Cyberabad at Malkajgiri.