IN THE COURT OF XVI ADDL.JUDGE-CUM-XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT SECUNDERABAD.
WEDNESDAY THE 28 th DAY OF July, 2019
Present : Sri CH.A.N.Murthy, XVI Addl.Judge-cum-XX ACMM, Secunderabad.
C.C.NO. 513 of 2019
BETWEEN:
Smt. A P Mythily, W/o Sri A.S.R Murthy, aged 47 years, Occ: Teacher, R/o 6-3-175/1, Flat No.303, Lotus View Apartments, Jai Nagar, New Bhoiguda, Mekalamandi, Secunderabad 500003
... Complainant
AND
Y. Rajesh, S/o Y. Narsing Rao, H.No. 1-2-387/69, Umdhabagh, Domalguda, Hyderabad 500029
….. Accused
This C.C has been coming for final disposal before me on 23.07.2021 in the presence of Sri Shanthi K. Hari learned counsel for the complainant and Sri J L Babu learned counsel for accused and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1.This is a private complaint filed by the complainant against the accused for the offence punishable under section 138 of Negotiable instruments Act, hereinafter referred to as "the Act".
2.The brief facts of the complaint are as follows.
The accused herein along with his friend, G. Shekar (accused in C C
No.511/2019) visited complainant's place and requested for financial support to meet his financial problems and agreed to pledge/mortgage a house which was gifted to him by his real paternal grand-mother dt. 21.02.2005 vide Doc No.
537/2005 on the file of SRO, Chikkadpally, Secunderabad, and assured that G.
Shekar (accused in C C No. 511/2019) who is his family friend will act as surety/guarantor; that by pledging his “Registered Gift Settlement Deed” Dt.
21.02.2005, Vide Doc. No Doc No. 537/2005 on the file of SRO, Chikkadpally,
Secunderabad, the accused took multiple hand loans from the complainant on different occasions total/ling to Rs. 9,28,000/- for which his friend one Mr. G.
Shekar stood as Guarantor and the accused has issued a cheque as security and - 2 - C C 513/2019 has promised to repay the loan amount within six months in case if he fails to pay the amount within six months, the complainant is at liberty to sue him in court of law for realization of loan amounts and accordingly the accused had issued the cheque bearing No. 177352, dt. 07.01.2019 for Rs.9,28,000/-
The complainant further submits that when he has presented the said cheque with her banker, the same was returned dishonoured with an endorsement “Drawer’s signature differs” vide cheque return memo dt.
10.01.2019; then the complainant got issued legal notice, to the accused’s address on 19.01.2019. In spite of receiving the said legal notice, the accused had not paid the amount but issued a reply notice dt. 31.01.2019 and hence the accused is liable to be punished for the offence U/sec. 138 of NI Act. Hence the complaint.
3. This complaint was taken on file against the accused for the offence punishable under section 138 of NI Act by X-ACMM Court, Secunderabad. Later as per the orders of Honorable Metropolitan Sessions Judge, Hyderabad this complaint was transferred to this Court.
4. After appearance of the accused, copies of documents were furnished to the accused as contemplated under section 207 Cr.P.C. Later the accused was examined under section 251 Cr.P.C. by explaining the substance of accusation for the offence punishable under section 138 of Negotiable Instruments Act, for which the accused has pleaded not guilty and claimed to be tried.
5.During the course of trial, the complainant himself examined as PW1 and got marked Exs.P1 to P10 documents and closed the evidence.
6.After the closure of complainant's evidence, the accused was examined under section 313 Cr.P.C. explaining the incriminating material found against him
The accused denied the evidence and reported no defence evidence.
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7. Heard the arguments by the learned counsel for the complainant as well as learned counsel appearing on behalf of the accused.
8. Learned counsel for the complainant contended that the complainant is working as a teacher in Kings Way High School Secunderabad, and that the accused developed acquaintance through his friend one G. Shekar (accused in C C
No. 511/2019) and with that acquaintance, the accused has borrowed an amount of Rs.,9,28,000/- as hand loan on the guarantee given by his friend shekar who got long acquaintance with the complainant and at that time, the accused has issued Ex.P2 cheque dt. 07.01.2019 for an amount of Rs.9,28,000 which was drawn on State bank of India, Himayathnagar Branch, Hyderabad and when the said cheque was presented in the bank, the same was returned dishonoured for the reason of “Funds Insufficient” as per Ex.P3 cheque return memo and inspite of requests made by the complainant, the accused did not repay the amount covered under Ex.P2 cheque and finally the complainant got issued Ex.P5 legal notice on 29.01.2019 calling upon the accused to make the payment covered under Ex.P2 cheque; that after receipt of Ex.P5 legal notice the accused got issued Ex.P7 reply notice with false allegations and hence the present complaint.
9.Learned Counsel for the complainant also contended that the accused and the said Shekar taking undue advantage of the close acquaintance with the complainant used to take hand loans and as the accused failed to repay the amount covered under Ex.P2 cheque, the complainant is constrained to take legal recourse against the accused; that the complainant has established the factual basis and as such he is entitled for drawal of statutory presumptions available
U/sec. 118 & 139 of the Act, but the accused did not adduce any rebuttal evidence in support of his contentions advanced by him as per Ex.P7 reply notice.
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10. Learned counsel for the complainant strongly contended that the accused instead of discharging his onerous liability of proving the contents of Ex.P7 reply notice by adducing the rebuttal evidence, has tried to throw the entire burden on to the complainant without substantiating his contentions and hence the accused had utterly failed dislodge the statutory presumptions available to the complainant. Learned counsel for the complainant further contended that learned defence counsel vehemently contended as if Ex.P5 legal notice is a defective one and it is not the statutory legal notice as contemplated under law as the complainant has demanded payment of amount covered under Ex.P2 cheque within seven days time from the date of receipt of Ex.P5 which is quite contrary to the period of 15 days stipulated U/sec. 138 of the Act; but in the reply notice
Ex.P7 nowhere the accused has taken such a plea and thus the accused is estopped from taking such defence at a later stage; that the contents of legal notice has to be taken as a whole, but not in between the lines; that in fact, in the instant case, Ex.P4 legal notice was issued within 30 days from the date of dishonour of cheque as per Ex.P3 cheque return memo and after giving 15 days mandatory time, then only the complainant has lodged the present complaint and the accused has got every knowledge of the demand notice Ex.P5 and hence such contention of the learned defence counsel cannot be accepted and in support of his contentions, the learned complainant’s counsel placed reliance on a decision of the Hon’ble Apex Court in Suman Sethi Vs. Ajay K. Churiwal reported in 2000 (1) SCR 601 and thus the accused is liable for punishment.
11. On the contra, learned defence counsel strongly contended that there is no acquaintance between the the complainant and the accused, that the accused has never taken any amount from the complainant; at any time and there is no debtor and creditor relationship between the accused and complainant and there exists no legally enforceable debt between the accused and the complainant and - 5 - C C 513/2019 as such the accused is no way liable for the discharge of the debt covered under
Ex.P2 as alleged and thus the accused did not commit any offence at all U/s. 138 of the Act.
12.Learned defence counsel vehemently contended that the admissions made by PW1 during the course of her cross examination shatters the case of the complainant in any manner which itself shows the falsity in the claim put forth by the complainant and he also contends that it is the well settled proposition of law that the accused need not adduce any rebuttal evidence and the complainant’s case can be shattered by disproving the case of the complainant through the admissions made by PW1 during the course of her cross examination and in such circumstances there is no need to the accused to enter the witness box and to substantiate his contentions by adducing defence evidence separately, that in the instant case, the complainant had miserably failed to establish her case against the accused and the conduct of the complainant in conducting the illegal chit business and collecting blank documents from the people and lodging false cases speaks volumes and the claim of the complainant for the alleged transaction had taken place in the year 2013, which is an outdated debt and hopelessly barred by limitation and hence the complaint is liable to be dismissed and the accused is liable to be acquitted.
13. Now the point for determination in this case is “whether the complainant could bring home the guilt of the accused for the offence punishable under section 138 of Negotiable Instruments Act”?
14.POINT :- In order to establish the offence under section 138 of Negotiable
Instruments Act the following ingredients are to be established.
1. That there exists a legally enforceable debt as on the date of issuance of the disputed cheque.
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2. That the cheque was presented in the bank within its validity period of three months as per Section 35 A of Banking Regulation Act 1949.
3. That the cheque was returned unpaid and the complainant has issued notice under writing informing the dishonor of cheque to the drawer within 30 days from the date of receipt of the information by him.
4. That the accused fails to make payment within 15 days from the date of receipt of such notice/information.
15. Section 118 of NI Act reads as follows
118. Presumptions as to negotiable instruments. —Until the contrary is proved, the following presumptions shall be made:—
(a) of consideration —that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date —that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance —that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer —that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements —that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps —that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course —that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
Section 139 of NI Act reads as follows
139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
16. Before dwelling into the factual matrix, it is expedient to refer the well settled proposition of law laid down by the Hon'ble Apex Court while deciding the cases filed U/s.138 of N.I. Act in a catena of decisions. The initial presumptions are available to the complainant U/s.118 of the Act and that the cheque has been i.e.
- 7 - C C 513/2019 (1) issuance of cheque, (2) presentation of the cheque in the bank, (3) dishonouring of the cheque by the bank with a cheque return memo, (4) issuance of statutory legal notice within the prescribed time limit and (5) non-payment of the amount covered under such cheque by the accused within a period of 15 days from the date of receipt of such notice or information. issued for a valid consideration and U/s.139 of the Act that the cheque has been issued for a legally enforceable debt, if the complainant could establish the factual basis i.e. (1) issuance of cheque, (2) presentation of the cheque in the bank, (3) dishonouring of the cheque by the bank with a cheque return memo, (4) issuance of statutory legal notice within the prescribed time limit and (5) non-payment of the amount covered under such cheque by the accused within a period of 15 days from the date of receipt of such notice or information.
17.In a decision reported in Rangappa Vs. Mohan (AIR 2010 Supreme
Court 1898) the Hon’ble Apex Court categorically held that "becauseboth Sections 138 and 139 require that the Court 'shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, it is obligatory on the Court to raise these presumptions in every case where the factual basis for raising of the presumption has been established".
18. It is the case of the complainant that the accused and his friend namely
Shekar have approached the complainant and on the guarantee given by the accused’s friend one G. Shekar (accused in C C No.511/2019) the complainant lent an amount of Rs.9,28,000/- to the accused, and the accused had agreed to repay the said amount within six months and in lieu of the said debt, the accused had issued Ex.P2 cheque for an amount of Rs.9,28,000/- dt. 07.01.2019 and when the said cheque was presented in the bank, the same was dishonoured as per
Ex.P3 cheque return memo, upon which the complainant got issued Ex.P5 legal notice as per Ex.P4 postal receipt, that the said notice was acknowledged by the - 8 - C C 513/2019 accused as per Ex.P6 and later the accused got issued Ex.P7 reply notice denying the allegations contained in Ex.P5 and as the accused failed to repay the amount covered under Ex.P2 cheque, the present complaint is filed. The complainant has also filed the title documents of the property of accused handed over by him as security to the alleged debt and the same were marked as Exs.P8 & P10 and the promissory note executed by the accused in favour of the complainant is marked as Ex.P9.
19.A perusal of Exs.P1 to P10 documents coupled with the oral evidence of PW1 primafacie reveal as to how the accused has approached the complainant along with his friend Shekar and on the guarantee given by his friend one Shekar the complainant has advanced an amount of Rs.9,28,000/- to the accused and the accused has agreed to repay the same within a period of six months and in lieu of the said debt, the accused appears to have issued Ex.P2 cheque; when the said cheque was presented in the bank as per Ex.P1 pay-in-slip, the said cheque was returned dishonoured for the reason of “Drawer’s Signature Differs” as per
Ex.P3 cheque return memo, thereafter the complainant got issued Ex.P5 legal notice through Ex.P4 postal receipt and Ex.P6 postal acknowledgment and Ex.P7 reply notice dt. 18.02.2019 evidences the receipt of Ex.P5 legal notice sent by the accused and as the accused failed to repay the amount covered under Ex.P2 cheque within the statutory period of 15 days, the complainant has lodged the instant complaint and thus the complainant by adducing the documentary evidence Exs.P1 to 10 coupled with the oral evidence of PW1 establishes the factual basis i.e. (1) issuance of cheque, (2) presentation of the cheque in the bank, (3) dishonouring of the cheque by the bank with a cheque return memo, (4) issuance of statutory legal notice within the prescribed time limit and (5) non- payment of the amount covered under such cheque by the accused within a period of 15 days from the date of receipt of such notice or information in order to - 9 - C C 513/2019 draw the statutory presumptions available U/secs. 118 & 139 of the Act and thus by following the judgment of Hon’ble Apex court in Rangappa vs Mohan (AIR 2010 Supreme Court 1898), the statutory presumptions are drawn in favour of the complainant U/secs. 118 & 139 of the Act.
20. Now it has to be seen to what extent the defence has rebutted the presumptions drawn in favour of the complainant either by adducing the rebuttal evidence or by raising a probable defence in order to shift the onus on to the complainant.
21.It is the well settled proposition of law laid down by the Hon’ble Apex
Court that even in the absence of placing such rebuttal evidence, the accused by disproving the material placed by the complainant in the form of oral and documentary evidence can raise a probable defence and in view of the well settled proposition of law laid down by the Hon’ble Apex court in Rangappa vs
Mohan (AIR 2010 Supreme Court 1898), the accused need not establish his probable defence against the complainant beyond all reasonable doubt and it would suffice if such probable defence is raised by way of preponderance of probabilities. It was also observed by the Hon’ble Apex Court in the said decision that it is open to the accused to rely on the material produced by the complainant for disproving the existence of a legally enforceable debt or liability.
22.In this case, the receipt of legal notice dated 29.01.2019 (Ex.P5) by the accused and the issuance of reply notice dated 18.02.2019 (Ex.P7) are not in dispute. It is the specific contention of the learned counsel for the defence as if the accused is a stranger to the complainant and he has no acquaintance with the complainant and it is the specific defence as per Ex.P7 reply notice that the accused never stood as a guarantor to any chit . Admittedly, no documentary evidence has been adduced by the defence in the form of rebuttal evidence to - 10 - C C 513/2019 substantiate as to how the complainant got the possession of exs.P8 to P10 documents except the oral assertions. No scrap of paper has been filed by the accused to substantiate that such documents were lost by the accused and gone into the wrong hands of the complainant. In the absence of such rebuttal evidence, the bald denial of contents of Ex.P5 notice in Ex.P7 reply notice got issued by the accused will no way come to the rescue of the accused. Further in the absence of placing any material to substantiate as to how Exs.P8 to P10 and
Ex.P2 cheque are in the possession of the complainant, the vague and bald denial of the allegations levelled in Ex.P5 legal notice will no way enrich the case of the accused and no prudent man will believed that without any transaction between the complaint and accused, such documents were wrongfully gone to the custody of the complainant who admittedly is a respectable Government Teacher and thus it can safely be said that such bald defences without there being any evidence either oral or documentary, are introduced only with a view to evade the liability of the accused covered under Ex.P2 cheque.
23.Further, during the course of the first examination made by this court U/sec.
251 Cr.P.C and U/sec. 313 Cr.P.C the case of the accused is a bald denial, to all the questions put by this court and he also stated in the 313 Cr.P.C examination that he has no acquaintance with the complainant and he never issued the said cheque (Ex.P2) and he never handed-over his house papers to the complainant and that he does not know how his house papers have gone into the hands of the complainant. As and when the accused came to know about the possession of
Exs.P2, P8 to P10 by the complainant immediately on receipt of Ex.P5 legal notice the accused ought to have taken appropriate steps to get back his lost documents but he simply kept quiet by merely issuing Ex.P7 reply notice denying the contents of Ex.P5. It is contended that penal action was taken against the complainant, but no scrap of paper is filed nor any person was examined on - 11 - C C 513/2019 behalf of the accused to disprove the contents of Ex.P5. Thus in the absence of any rebuttal evidence placed by the defence to substantiate the specific contentions pleaded by the accused as per Ex.P7 reply notice and in view of the clinching documentary evidence adduced by the complainant as per Exs.P1 to
P10, it can be said that the accused had miserably failed to substantiate his defence by adducing rebuttal evidence in order to rebut the statutory presumptions drawn in favour of the complainant. In these circumstances, it can safely be said that the accused came up with such false defences in order to circumvent his liability covered under Ex.P2 cheque.
24. Learned counsel for the defence vehemently contended that the admissions made by PW1 during the course of cross examination shatters the case of the complainant to any extent and the same is sufficient to displace the statutory presumptions drawn in favour of the complainant and as such there is no need for the accused to adduce any evidence, either oral or documentary on his behalf in order to rebut the statutory presumptions drawn in favour of the complainant.
There is no dispute with regard to the legal proposition sought to be advanced by the learned defence counsel as regards the necessity or desirability of adducing the rebuttal evidence, in case the accused could damage the credibility of the very prosecution case very badly. It is the settled proposition of law that the presumptions drawn in favour of the complainant are rebuttable presumptions and such presumptions may get displaced by the prosecution evidence on record itself or the accused may choose to lead independent evidence in rebuttal there off.
25.In the instant case, the accused came up with a specific defence as per
Ex.P7 reply notice that he has no acquaintance with the complainant and he never handed-over any documents, much less Ex.P2, P8 to P10 documents to the - 12 - C C 513/2019 complainant and he does not know how such documents are in the possession of the complainant. At one place, he contends as if such documents were lost by him and he has taken criminal action against the complainant. But as stated by me earlier, such contentions appears to have been taken by the accused in order to circumvent his liability covered under Ex.P2. Hence the silence on the part of the accused at the relevant point of time speaks volumes, especially in the absence of any documentary evidence adduced on behalf of the accused in the form of rebuttal evidence to substantiate his contentions. No doubt, as rightly contended by the learned counsel for the defence, when once the presumptions get dislodged by way of suspicious circumstances borne out by the prosecution evidence, then heavy burden would lie on the complainant to prove by independent positive evidence, but till such time the statutory presumptions drawn in favour of the complainant remain intact and hold good.
26. In this case, the complainant/ PW1 was cross examined at length by the learned defence counsel. During the course of cross examination of PW1 she categorically stated that the house documents pertaining to the accused were handed over to her by the said Shekar who is the friend of accused. PW1 also stated as if Ex.P2 cheque was also handed over by he said Shekar to her. PW1 also admitted that the contents of Ex.P2 cheque were also filled in by her own handwriting. In view of the language employed U/sec. 20 of the Act, mere filling in the contents of a cheque by the complainant will no way exonerates the liability of the accused/drawer. Learned defence counsel vehemently contended that as per
Ex.P3 cheque return memo, the reason for dishonour of cheque Ex.P2 is “drawer’s signature differs’. Such a contention of learned defence counsel is far-fetched.
In NEPC Micon Ltd. Vs Magma Leasing Ltd (1999) 4 SCC 253 the Hon’ble Apex court categorically observed as follows - 13 - C C 513/2019 the expression “amount of money …………. is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138 , so also dishonour on the ground that the “signatures do not match” or that the “image is not found”, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act. This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied.
There may indeed be situations where a mismatch between the signatories on the cheque drawn by the drawer and the specimen available with the bank may result in dishonour of the cheque even when the drawer never intended to invite such a dishonour. We are also conscious of the fact that an authorised signatory may in the ordinary course of business be replaced by a new signatory ending the earlier mandate to the bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial Court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration.
Thus by following the proposition of law laid down by the Hon’ble Apex
Court in NEPC Micon Ltd. Vs Magma Leasing Ltd (1999) 4 SCC 253 it is crystal clear that a onus duty casts upon the drawer to see that the cheque issued by him is honoured and for ths sole reason that the signature of the drawer/accused - 14 - C C 513/2019 differs as per the endorsement made by the bank authorities, the drawer of the cheque cannot plead ignorance and cannot raise a defence that the accused never issued such cheque. Whenever a cheque issued by the drawer is bounced for any of the reasons assigned above, a normal prudent drawer will act swiftly and if he failed to do so it can be easily be presumed that such in action on the part of the drawer has to be viewed with suspicion
27. In the instant case, the drawer of the cheque/accused though denied his acquaintance with the complainant, but he never had taken any steps with the concerned bank authorities that he lost the cheque and it has gone into the hands of the complainant and in the absence of any rebuttal evidence placed by the accused he cannot disown his responsibility about the dishonour of the cheque, in veiw of the statutory presumtions available in favour of the complainant and unless the statutory presumptions are rebutted by adducing substantial rebuttal evidence, the cheque Ex.P2 is presumed to have been for valid consideration. Thus the contention advanced by the learned counsel for the defence that the accused is an innocent person and that he never issued Ex.P2 cheque at any time and the signature on Ex.P2 does not belongs to accusedcannot be accepted.
28. As stated by me earlier, PW1 categorically denied about the running of private chits illegally and the obtaining of blank signed cheques, and blank promissory notes for such transactions. The tenor of cross examination of PW1 done by the defence counsel only goes to show as to how the complainant did illegal financial transactions being a Government teacher, which is denied by
PW1. But such line of cross examination by impeaching the conduct of the complainant will no way enrich the case of the defence to circumvent the liability of the accused covered under Ex.P2 cheque and it cannot be said that the - 15 - C C 513/2019 credibility of the evidence of PW1 is badly damaged. If really the complainant is conducting irregular and illegal chit business, the remedies available to the accused are elsewhere, but it will noway enrich the case of the defence in any manner. The facts elicited by the defence counsel through the cross examination of PW1 will no way substantiate the case of the defence in order to circumvent the liability of the accused covered under Ex.P2 cheque especially in the absence of any rebuttal evidence placed by them.
29. Learned counsel for the defence strongly contended that in Ex.P5 legal notice the complainant’s counsel made a demand to pay the amount covered under Ex.P2 cheque within a period of seven days from the date of receipt of the notice and hence Ex.P5 is bad in law. But such contention was never taken by the defence in Ex.P7 reply notice, which was given by the accused to the complainant at the earliest point of time i.e., on 18.02.2019 itself. Further, it is the specific contention advanced by the learned counsel for the complainant that though seven days time was mentioned in Ex.P5 notice, but after the expiry of 15 days statutory period only, the complainant lodged this complaint and he also placed reliance on a decision of the Hon’ble Apex Court in Suman Sethi Vs. Ajay K.
Churiwal reported in 2000 (1) SCR 601 to substantiate his contentions.
In in Suman Sethi Vs. Ajay K. Churiwal reported in 2000 (1) SCR 601 the
Hon’ble Apex Court will dealing with Sec. 138 of the Act in Central Bank of India
and another Vs. M/s Saxons Farms and others JT (1999) 8 SC 58 observed “that the object of the notice is to give a chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest, cost etc. is also made drawer will be absolved from his liability under Section 138 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before complaint is filed.
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30. In the instant case, admittedly Ex.P5 legal notice dated 29.01.2019 was received by the accused on 02.02.2019 as per Ex.P6 postal acknowledgment and after 15 days time only, the accused got issued Ex.P7 reply notice on 18.02.2019 and later the present complaint is filed and the accused is having every knowledge of the dishonour of Ex.P2 cheque issued by him and the accused never denied and never raised such objection in Ex.P7 reply notice that Ex.P5 notice is bad in law as the complainant made a demand to pay the amount covered under
Ex.P2 within seven days from the date of receipt of notice. It is the well settled proposition of law and following the judgment of Hon’ble Apex Court narrated above, as to what made the accused not to make payment covered under Ex.P2 as and when he received Ex.P5 notice, within 15 days from the receipt of said notice is not known but without doing so the accused now sought to raise such defence as if Ex.P5 legal notice is bad in law and such contentions advanced by the learned counsel are far-fetched and will noway come to the rescue of the accused.
31.Thus the complainant amply establishes her case by adducing the documentary evidence Exs.P1 to 10 coupled with oral evidence of PW1 and the oral assertions made by the learned defence counsel and the voluminous cross- examination of PW1 will no way come to the rescue of the defence in order to rebut the statutory presumptions drawn in favour of the complainant and the contentions raised during the course of arguments without adducing any rebuttal evidence only shows the hollowness in the defence put forth by the accused as an after thought in order to evade his liability covered under Ex.P2 cheque.
32.Absolutely, there is no material placed by the accused to disprove the claim of the complainant covered under Ex.P2 and there is no rebuttal evidence or probable defence placed by the accused in order to rebut the- presumptions - 17 - C C 513/2019 drawn in favour of the complainant. Except the bald and wild allegations against the complainant , nothing has been elicited from the cross-examination of PW1 to discredit her testimony and thus the accused has utterly failed to raise the probable defence.
33.Thus the complainant amply establishes the ingredients of the offence under Section 138 of Negotiable Instruments Act against the accused through the cogent, consistent and conclusive evidence adduced by the complainant through the documentary evidence Exs.P1 to 10 coupled with the oral evidence of PW1 and Ex.D1 undertaking hereby the presumptions drawn in favour of the complainant remained intact and hold good. Thus, the points 1 to 4 formulated at the beginning of the Judgment are all answered in favour of the complainant.
In the result, the accused is found guilty for the offence punishable
U/Sec.138 of Negotiable Instruments Act and convicted U/Sec.255(2) Cr.P.C.
Dictated to Personal Assistant, transcribed by her, corrected and pronounced by me in the
open Court on this the 28th day of July, 2021.
Sd/-
Ch. A.N. Murthy XVI Addl.Judge–Cum-XX ACMM, Secunderabad.
34The accused is questioned regarding the quantum of sentence that can be awarded to him for the offence U/Sec.138 of Negotiable Instrument Act, for which the accused stated that he is working in a private company and earning a meager amount of Rs.12,000/- per month and he is the sole bread winner of his family “ and hence prayed this Court to take a lenient view in awarding the sentence.
Heard the submissions made by the learned counsel on both sides regarding sentence.
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35.Considering the facts and circumstances of the case and having considered the submissions made by the accused as well as his counsel and keeping in view the nature of offence committed by the accused, this Court is not inclined to invoke the provisions of Probation of Offenders Act.
In this case on hand, the cheque amount covered under Exs.P2 of
Rs.9,28,000/- 36 In Meel Bai Vs. Rameshwara Prasad Chouhan (Crl.Rivision No.583 of 2012) the Hon’ble Chattisgarh High Court after referring the Hon’ble Apex Court’s judgments has held that “the punishment to be awarded in Section 138 of
Negotiable Instrument Act cases are meant to ensure payment of money and threat of jail is only to ensure recovery and as such, imposition of jail sentence is not mandatory”.
37In R.Vijayan Vs. Baby and another (2012 (1) ALD (Crl.) 803 (SC))
The Hon’ble Apex Court has held that “the apparent intention is to ensure that not only the offender is punished, but also ensure that the complainant invariably receives the amount of the cheque by way of compensation U/s.357(1)
(b) of the Code”.
38In Somnath Sarkar Vs. Utpal Basu Mallick and another (2014 (1) ALT (Crl.) 145 (SC)
The Hon’ble Apex Court has held that “the amount to be paid towards compensation U/s.357 Cr.P.C. to the complainant is not different or separate from the fine amount imposed U/s.138 of Negotiable Instrument Act”. So, the compensation has to be awarded to the complainant out of fine amount.
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Having regard to the facts and circumstances of the case and upon considering the submissions made by the learned counsel for the complainant as well as the learned counsel for the accused and keeping in view the family and financial condition of the accused and the Corona Pandemic and also taking into account that the meager earnings of the accused in the considered view of this court that sentencing the accused to undergo Rigorous Imprisonment for a period of three months and to pay a fine of Rs.13,50,000/ - (Rupees Thirteen Lakhs Fifteen
Thousand only) would meet the ends of justice.
Thus the accused is sentenced to under go Simple Imprisonment for a period of three months and to pay fine of of Rs.13,50,000/ - (Rupees Thirteen
Lakhs Fifteen Thousand only) in default to suffer simple imprisonment for two months for committing the offence U/sec. 138 of NI Act. Out of the fine amount of Rs.13,50,000/ - (Rupees Thirteen Lakhs Fifteen Thousand only) imposed by this court the accused shall pay an amount of Rs.5000/- towards fine payable to the state forthwith and an amount of Rs.13,45,000/- (Rupees Thirteen Lakhs
Fourty Five Thousand Only) shall be paid by the accused to the complainant towards compensation U/s.357(1)(b) Cr.P.C. with in three months from the date of judgment. A perusal of the record nowhere reveals that the accused was ever remanded to Judicial custody at any time and as such the question of giving set off U/Sec.428 Cr.P.C does not arise . The accused is informed that he has got a right of appeal against the conviction and sentence passed by this Court and he can also take the assistance of District Legal Services Authority, Hyderabad in preferring such appeal.
Dictated to Personal Assistant, transcribed by her, corrected and pronounced by me in the open
Court on this the 28th of July, 2021
Sd/-
Ch. A.N. Murthy XVI Addl.Judge–Cum-XX ACMM, Secunderabad.
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT : FOR DEFENCE:
PW1 : Smt. A P Mythily Nil
DOCUMENTS MARKED
FOR COMPLAINANT:
Ex.P1: Pay-in-Slip dt.7.1.2019 Ex.P2: Cheque bearing no. 177352 dt. 10.01.2019 Ex.P3: Cheque return memo dt. 10.01.2019 Ex.P4: Postal receipt dt. 19.01.2019 Ex.P5: Legal notice dt. 19.01.2019. Ex.P6: Postal acknowledgment dt. 24.01.2019 Ex.P7: Reply notice dt. 31.01.2019 Ex.P8: Original Gift settlement Deed dt. 21.02.2005 Ex.P9: Original promissory note duly signed by accused dt. 20.06.2018. Ex.P10: Original Non Judicial Stamp paper duly signed by accused dt. 20.06.2018.
For Accused:
Nil
Sd/-
Ch. A.N. Murthy XVI Addl.Judge–Cum-XX ACMM, Secunderabad.