C.C.38/2016 1 V AJFCM, RJVM, FAC-JFCM/RCVM
IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS
RAMPACHODAVARAM
PRESENT: CH.V.RAMAKRISHNA
V A.J.F.C. Magistrate, Rajamahendravaram FAC-J.F.C. Magistrate, Rampachodavaram Friday, the 27th day of December, 2019
C.C.No.38/2016
BETWEEN: S.B.G.Tilak, S/o.Apparao, A/30 yrs, C/Konda Kammara, Rampachodavaram (PO), East Godvari District.
...COMPLAINANT
AND Injarapu Jeevana Supriya, W/o.(late) Venkata Ramana, Godarigunta, Opp. Vinayaka Temple, Door No.3-17-44, Apartment Second Floor-S/1, Kakinada, East Godavari District.
...ACCUSED
This case came up before me on 08.11.2019 for final hearing in the presence of Sri M.V.R.Prakash, Advocate for complainant and Sri Md. Kareemuddin, Advocate for accused, and upon hearing both sides and this matter having stood over for consideration till this day, this Court delivered the following:
//J U D G M E N T//
This is a complaint filed under section 190 of Cr.P.C against the accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short -„the Act‟), as follows.
2. The averments, in brief, of the complainant are that the accused to meet his daughter‟s marriage expenses has approached the complainant through one S.V.V.Chowdary who is a colleague to her husband and borrowed Rs.3,00,000/- on 06.01.2014 and executed a demand promissory note in favour of the complainant. Subsequently, the accused had issued a cheque bearing No.962677 drawn on Andhra Bank, Shantinagar Branch,
Kakinada, for a sum of Rs.2,00,000/- (Rupees two lakhs only) on 20.09.2015 towards part payment of the said debt. The complainant presented the said cheque through his banker Union Bank of India, Rampachodavaram, but the same was dishonoured with a memo of Andhra Bank dt.03.12.2015 with an endorsement „insufficient funds‟ and the same was delivered to the complainant banker on 19.12.2015. The complainant got issued a legal notice on 29.12.2015 calling upon the accused to pay the amount within 15 days. The said notice was not claimed intentionally by the accused and was returned to the counsel for the complainant on 09.01.2016. Hence, the accused is liable to be punished for the offence under section 138 of the Act.
Hence, this complaint.
3. The complaint was taken on file for the offence under section 138 of the Act against the accused.
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4. On appearance of the accused, copies of case record have been furnished to her as required under section 207 Cr.P.C. She was examined under section 251 Cr.P.C for the offence punishable under section 138 of the
Act informing the substance of accusation made against her for which she denied having committed the offence, pleaded not guilty and claimed to be tried.
5. On behalf of the complainant, the complainant himself was examined as PW1 and Exs.P1 to P5 were marked. On closure of complainant side evidence, on 26.04.2018, the accused was examined under section 313
Cr.P.C puttingforth the incriminating material that appears against her in the evidence of PW1. The case of the accused is denial. On 07.05.2018, the accused had filed a petition under section 294 Cr.P.C to receive certain documents for marking of the same on her behalf. On 19.07.2019, the said petition vide Crl.M.P.No.1275/2018 was allowed in part. However, on 20.09.2019, the learned counsel for the accused reported 'no defence evidence' and the same was recorded. Hence, there is no evidence either oral or documentary on behalf of the accused.
6. Heard both sides at length and both sides have filed written arguments relying on certain authoritative pronouncements. Perused the material on record.
7. The learned counsel appearing for the complainant contended that the complainant by examining himself as PW1 and by producing Exs.P1 to P5 has, beyond reasonable doubts, proved the guilt of the accused for the offence under section 138 of the Act and so the statutory presumptions are available to him. It is submitted that the complainant has acquaintance with the accused through his friend namely Sade Vijaya Venkata Choudary (hereinafter referred to as attestor) to whom the husband of the accused was a colleague and who is witness for Ex.P1/promissory note transaction. It is submitted that Ex.P2/cheque issued by the accused was returned with
Ex.P3/memo of Andhra Bank dt.03.12.2015 with endorsement „insufficient funds‟ and the same was delivered to the complainant by his Banker on 19.12.2015 and, on receipt of the said endorsement, he got issued Ex.P4/ legal notice to the accused on 29.12.2015 demanding payment of cheque amount within 15 days. The notice was not claimed by the accused and was returned to his counsel on 09.01.2016. It is submitted that nothing was elicited by the accused from the cross-examination of PW1 to disbelieve his evidence. It is submitted that as the presumption under section 139 of the
Act has come into force, the banker of the complainant need not be examined. It is contended that Ex.P3 was issued by the Banker of the
C.C.38/2016 3 V AJFCM, RJVM, FAC-JFCM/RCVM accused to the Banker of the complainant. It is contended that the contention of the accused that cheques are given to one Chowdary is a rebuttable presumption and such presumption can be drawn only when the accused adduces evidence. It is submitted that the evidence of accused as
DW1 was eschewed and so there is no evidence for her. It is contended that the accused for the reasons best known to her did not take steps to examine herself as a witness or adduce any evidence on her behalf. So, it is clear that the accused failed to rebut the presumptions by placing probable defence. It is submitted that the suggestions and contentions raised during cross- examination of the complainant are not worthy enough to rebut the statutory presumptions available to the complainant and so the complainant has proved the offence against the accused beyond all reasonable doubts.
Further, in reply to the contentions of the learned counsel for the accused, it is contended that section 4-A of the Andhra Pradesh Scheduled Areas
Money-Lenders Regulation, 1960 (for short - the Regulation 1960), applies for filing a suit and that too the complainant is not a money-lender. It is also contended that even as per section 4-A, one of the attestors must be a village officer or sarpanch of a gram panchayat 'within whose jurisdiction the debtor resides'. It is submitted that in the case on hand, the debtor resides outside the jurisdiction of Rampachodavaram and so section 4-A of the Regulation 1960 does not apply to the facts of this case. In the written arguments filed by the complainant it is contended that the accused had filed a petition for marking of certain documents and that petition was allowed in part and even after availing several opportunities, the accused failed to adduce her evidence to rebut the evidence of the complainant and at last reported no defence evidence through her counsel. It is contended that the burden of proof is always on the accused to rebut the statutory presumptions and the accused failed to discharge the same and so the presumption under section 139 of the
Act has to be drawn. It is contended that the signature on the cheque was not denied by the complainant and so once there is no controversy regarding the cheque and the signature thereon, the burden shifts to the accused to rebut the same. He placed reliance on G.B.LINGAM v. VITTA MURALI
KRISHNA MURTHY & ANOTHER [1997(1) ALD (CRL) 940 AP]. It is contended that the promissory note is not a material one, but issuance of a cheque without sufficient funds is a point for consideration. In connection with the plea of non-receipt of legal notice by the accused, reliance is placed on section 27 of General Clauses Act and relied on YASWITA
CONSTRUCTION (P) LTD., MADAMARRI VILLAGE, MANUBOLU MANDAL,
NELLORE DISTRICT ANOTHER v. CHATLA SUBBAREDDY AND ANOTHER
C.C.38/2016 4 V AJFCM, RJVM, FAC-JFCM/RCVM [ALD 2005(2) 282]. It is submitted that the contention taken by the accused in Ex.P3, regarding difference in the dates mentioned on the top and last of the memo, it is contended that it was intimated to the complainant on 19.12.2015 and demand notice was issued to the accused on 29.12.2015 and so it is within the statutory period from either 03.12.2015 or 19.12.2015. Further, the accused ought not have been taken this ground as she did not claim/receive Ex.P4. The contention of non-filing of counter-foil is also not tenable as once the cheque was bounced it is enough to say that the cheque was submitted to the banker of the complainant. It is settled law that there is no need to examine the Bank authorities as they, after due verification of the cheque and her signature, have dishonored the cheque and issued memo stating that there are no sufficient funds in the account of the accused. The complainant filed this complaint within time and that there is no chance for him to tamper the cheque return memo as the same was issued by the Bank authorities. Hence, there is no need for him to alter the same. He relied on KUSHAL PAL SING v. STATE OF U.P AND ANOTHER.
It is contended that as per Ex.P4 the complainant got issued the legal notice to the accused within time. He relied on M/S. SAKETH INDIA LIMITED AND
OTHERS v. M/S INDIA SECUTIES LIMITED [1999 ALD (CRL) 584 SC]. In the instant case, consequent upon failure to pay the money within a period 15 days as envisaged under clause (c) of proviso to section 138 of the Act, the liability of the drawer for being prosecuted for the offence has arisen and the period of one month for filing the complaint under section 142 is to be reckoned accordingly. It is submitted that a combined reading of the above two sections of the Act, leaves no room to doubt the cause of action within the meaning of section 142 of the Act and can arise only once. He relied on
VALISHETTY MANOHAR v. PUBLIC PROSECUTOR, HIGH COURT OF
ANDHRA PRADESH AND ANOTHER [ 2005 (1) ALD Cri 805 ]. It is contended that as the complainant had admitted in cross examination that he is earning through agriculture and the source of income is based on agriculture through leased land, the capacity of the complainant stands proved. It is further submitted that the accused, in a petition filed by her, for recall of
NBW under section 70(2) of Cr.P.C has categorically mentioned that she is ready to pay 25% of the amount by 18.07.2017 and prayed for recall of NBW issued against her and the same is enough to conclude that Ex.P2 was issued to the complainant by her. Hence, the accused is liable for punishment for the offence under section 138 of the Act and the complainant is entitled for compensation out of the fine amount imposed.
C.C.38/2016 5 V AJFCM, RJVM, FAC-JFCM/RCVM
8. Per contra, the learned counsel for accused submitted that the case of accused is complete denial. It is submitted that husband of the accused by name Injarapu Venkata Ramana has passed away and he was a colleague of one S.V.V. Chowdary and there was a transaction between them. After death of Injarapu Venkata Ramana, taking advantage of the cheque of the accused, this case is foisted with false allegations. It is submitted that the accused never obtained loan from the complainant and never executed Ex.P1 in his favour and it is a fabricated one. It is contended that Ex.P1 was brought into existence without the knowledge of the accused. It is submitted that the accused never issued Ex.P2 to the complainant. It is contended that Ex.P3 contained two dates, one is 03.12.2015 and the other is 03.11.2015. It is contended that if the date 03.11.2015 is taken into consideration the statutory notice will not be in time and no offence under 138 of the Act constitutes. It is contended that to constitute the offence under section 138 of the Act, the statutory notice is to be given within 30 days from the date of receipt of the bank's memo and in the case on hand as there is a delay of 27 days in giving the said notice from 03.11.2015, and so the complaint fails. It is submitted that the accused is disputing both the dates on the memo issued by the banker. It is submitted that in his cross-examination the complainant admitted the date of memo as 03.11.2015 and so when the date is considered as 03.11.2015, there is a delay of 27 days in sending the notice to the complainant and if the date 03.12.2015 is considered, there is no delay. It is submitted that the complainant is not having any capacity to lend any amount to the accused and he is only an advocate clerk. The learned counsel for the accused also contended that the ingredient 'legally enforceable debt' is absent in the case on hand. It is contended that so far as
Ex.P1 is concerned, section 4-A of the Regulation 1960 applies and as per the said provision no money-lender shall advance any loan to a debtor otherwise than under an agreement in writing attested by two witnesses one of whom shall be a village officer or a Sarpanch of gram panchayat, within whose jurisdiction the debtor resides and no court shall entertain any suit for the recovery of any loan advanced in contravention of the provisions of this section. It is submitted that in the case on hand, no such attestor is present and only ordinary persons are shown as attestors. It is contended that one Chowdary is there as first attestor and the said person is a collusive person with the complainant for filing the present complaint no authroized person is present under section 4-A of the Regulation 1960 as attestor. It is submitted that whenever part-payment is made the same is to be reduced on
Ex.P1 as an endorsement and so the receipt of Rs.2,00,000/- by way of
C.C.38/2016 6 V AJFCM, RJVM, FAC-JFCM/RCVM cheque must be present on Ex.P1 as an endorsement as a part-payment and in the absence of such endorsement, there is no legally enforceable debt. It is submitted that the complainant used to work as an advocate-clerk in the
J.F.C. Magistrate Court, Rampachodavaram and his financial capacity to lend Rs.3,00,000/- to the accused is also not shown. It is submitted that the complainant has a habit of forgery of documents and, in that process, he also forged the signature of the accused and fabricated Ex.P1 and foisted false complaint against the accused, though the accused never borrowed any amount from him. It is submitted that as the complainant himself claimed that he is under the care and protection of his parents, it is clear that he has no financial capacity to lend any amount to the accused. Hence, the complainant failed to prove the offence against the accused and the accused is entitled for acquittal. In the written arguments it is contended that her husband Injarapu Venkata Ramana, who is a court employee, and one S.V.V.
Chowdary are colleagues and having close acquaintance with each other. On one occasion, the accused requested S.V.S. Chowdary to arrange loan from the Bank for the purpose of marriage of her daughter. In that regard, the said S.V.V. Chowdary obtained blank promissory notes and cheques from the accused promising her to arrange loan from the bank, but he failed to arrange loan. In the meanwhile the husband of accused died on 21.05.2014.
In spite of repeated demands made by the accused, the said S.V.V. Chowdary failed to return her empty promotes and cheques. It is submitted that taking advantage of death of her husband, the said S.V.V. Chowdary planted the complainant herein and filed the present complaint before this Hon‟ble
Court. The S.V.V. Chowdary by using empty promissory notes and cheques, he filed C.C.No.151/2016 against the accused before the Hon‟ble III Addl.
J.F.C.M. Court, Rajahmundry. It is submitted that Ex.P1 was fabricated in the name of complainant by S.V.V. Chowdary with date 06.01.2014 that too after the death of the husband of accused. It clearly proves that in the Ex.P1 pronote Dt.06.01.2014, the husband name of accused is mentioned as late
Injarapu Venkata Ramana. Injarapu Venkata Ramana husband of accused died on 21.05.2014 and his death certificate is also filed into court. It is submitted that the attestor of Ex.P1 is S.V.V. Chowdary and he is behind this litigation. Ex.P1 demand promissory note is fabricated document and it is not supported with any consideration and it is never executed by the accused in favour of complainant. It is submitted that Ex.P2 was returned as per
Ex.P3 on 03.11.2015 at 11:45 A.M. The date mentioned on first page of
Ex.P3 is 03.12.2015 and it clearly shows that the date is altered by the complainant. The complainant did not examine the Branch Manager of
C.C.38/2016 7 V AJFCM, RJVM, FAC-JFCM/RCVM complainant Banker to prove the validity of Ex.P3. The complainant mentioned in cause of action para of complainant that cheque return memo date is on 03.11.2015. He did not file counter foil pertains to cheque to show when the Ex.P3 was presented before his banker for collection. It is submitted that the statutory legal notice was issued on 29.12.2015 which is after completion of 30 days period from the date of return of Ex.P3 return memo i.e., 03.11.2015 at 11:45 A.M. So, the statutory notice is not issued within time stipulated as per Sec.138(b) of the Act. It is submitted that the complainant failed to prove his financial capacity to lend Rs.3,00,000/-.
During cross examination he deposed that he worked as an advocate clerk and he drawn Rs.10,000/- per month as salary. He is doing cultivation on lease. He deposed that he is not income tax assessee. But he did not file any documentary proof into court as proof of financial capacity. Therefore, the complaint filed by complainant is not at all maintainable under law. Hence, the complaint is liable to be dismissed and the accused is entitled for acquittal. He placed reliance on Sivakumar v. Natarajan [2009 (2) ALD (Crl.) 572], Kamlesh Kumar v. State of Bihar and another [AIR 2014 SC 660] and K.Venkata Krishna Prasad v. Peram Sai Swarupa, Vijayawada and another [2017(1) ALT (Crl.) 259]
9. The point that arises for consideration is whether the complainant is able to bring home the guilt of the accused beyond all reasonable doubts for the offence under section 138 of the Act.
POINT:
10. Before appreciating the evidence and arguments of both parties, it would be apt to note the basic ingredients of Section 138 of the Act which are as follows.
(a) The accused has issued a cheque on an account maintained by him with a Bank.
(b) The said cheque has been issued in discharge, in whole or in part, of any legally enforceable debt or other liability.
(c) The said cheque has been presented to the Bank within the period of its validity.
(d) The said cheque, when presented for encashment, was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque fails to make payment within 15 days of the receipt of the notice of demand.
It is on compliance of the above ingredients, the drawer of the cheque shall be deemed to have committed the offence under section 138 of the Act.
C.C.38/2016 8 V AJFCM, RJVM, FAC-JFCM/RCVM
11. The complainant as PW1 in his chief-examination affidavit reiterated all the averments made in the complaint and got marked the documents.
Ex.P1 is promissory note dt.06.01.2014. Ex.P2 is cheque dt.20.09.2015 issued by the accused in favour of the complainant. Ex.P3 is cheque return memo dt.03.12.2015 (date is in dispute). Ex.P4 is office copy of legal notice dt.29.12.2015. Ex.P5 is returned postal cover.
12. In cross-examination, PW1 stated that he is doing cultivation and having Ac.15-00 cents land and did not work as Advocate-clerk from 2012 to 2015. He added that he worked as advocate-clerk upto the year 2005 in
Rampachodavaram Bar Association. He used to earn Rs.10,000/- per month as advocate-clerk. He got acquaintance with accused through S.V.V.
Chowdary who worked as Junior Assistant in this court. He never saw the husband of the accused but he came to know that he is colleague of S.V.V.
Chowdary. He does not know where the husband of accused worked. He does not know whether the said S.V.V.Chowdary i.e., attester of Ex.P1 is working as bench clerk in Judicial First Class Magistrate Court at
Amalapuram. He does not know whether there is any transaction between the attester and the husband of accused. He stated that on 06.01.2014 he saw the accused and the accused only came for execution of Ex.P1. By the time of execution of Ex.P1 nobody came there. He does not know when the husband of accused died. He does not know whether by the date of execution of Ex.P1 the husband of accused is alive or not. Ex.P1 was scribed in his presence. He does not know about the letters mentioned in Ex.P1 as late Injarapu Venkata Ramana. He stated that as per the photocopy of death certificate shown to him Injarapu Venkata Ramana died on 21.05.2014. He did not ask the accused whether her husband is alive by the time of execution of Ex.P1. The scribe of Ex.P1 is A.V.V.Prasad. The attestor got scribed Ex.P1. The attestor brought the scribe at the time of execution of
Ex.P1. He does not know whether there is any acquaintance between the scribe and the accused. Ex.P1 was scribed at a quarter which is situated opposite to Bar Association Rampachodavaram. He does not know whether as per section 4 of the Regulation 1960, the local Village Revenue Officer or the Surpanch of the village have to attest the promissory note. He stated that there are some alterations in Ex.P1 and there is no initial by the scribe.
The thumb impression on Ex.P1 is of the accused. He denied the suggestion that the thumb impression on Ex.P1 belongs to attestor but not the accused.
The rate of interest mentioned in Ex.P1 is Rs.2/-. He got issued Ex.P4 through his advocate. He admitted that as per Ex.P4 the rate of interest is
C.C.38/2016 9 V AJFCM, RJVM, FAC-JFCM/RCVM 12% per annum. The accused got typed the letters on Ex.P2 but he was not present by that time. He stated that originally his name is Tilak. He added that he used to write his name as Tilak or Thilak. He used to subscribe his signature as Thilak. He signed on his chief affidavit as Thilak. He never raised any objection for mentioning his name as Tilak in Ex.P2. He does not remember on which date he had presented Ex.P2 in the bank for collection.
In the month of December he was informed by bank that Ex.P2 was dishonored but he does not remember the date. He admitted that as per his complaint Ex.P2 was delivered by the bank on 19.12.2015 as 'funds insufficient' but the said date is not disclosed on Ex.P3. He denied the suggestion that he had received Ex.P3 on 03.11.2015 at 11.45 AM. He does not know whether as per bank rules two dates should not be mentioned on cheque return memo. He admitted that as per his complaint, he had received Ex.P3 on 03.11.2015. He does not know whether statutory notice should be given within 30 days as per section 138 (b) of the Act. He does not know whether his complaint is barred by limitation as Ex.P3 was received on 03.11.2015 and Ex.P4 was issued on 29.12.2015. He had secured the amount of Rs.3,00,000/- from his cultivation. He is not having any land in his name but he is doing cultivation on lease. He can file the documents to show that he is cultivating the land on lease. He added that they are in the name of his father. He gave the amount of Rs.3,00,000/- by way of cash but he did not mention the same in his complaint. Except the transaction Ex.P1 he had no other transactions with the accused and he never saw her earlier.
He does not remember the denomination of cash given to the accused. He does not have any knowledge regarding income tax. He does not know whether any transaction more than Rs.1,00,000/- per day between same parties it should be by away of cheque or demand draft. He denied the suggestion that he has no capacity to give Rs.3,00,000/-. He does not know whether the attestor of Ex.P1 obtained two promissory note and two cheques from the husband of the accused towards security for the transaction between them while they were working in the Court at Amalapuram. He had not filed any civil suit for recovery of amount under Ex.P1. He denied the suggestion that as he has no financial capacity to pay the court fee, he could not file civil suit for recovery of money under Ex.P1. He is not an income tax assessee. He secured the amount of Rs. 3,00,000/- from his house but there is no documentary proof to that effect. He does not know whether keeping huge amount of Rs. 3,00,000/- in the house is an offence. He stated that a criminal case was registered against him in C.C.No.185/2013 on the file of this Court concerned in Cr.No.6/2011 of Donkarai Police Station for forgery
C.C.38/2016 10 V AJFCM, RJVM, FAC-JFCM/RCVM of documents. He denied the suggestion that the accused has no acquaintance with him and she did not borrow any amount from him and she does not have any facial acquaintance with him. He gave amount to the accused through the attestor of Ex.P1 for her daughter marriage purpose.
The attestor came before him along with the accused. He denied the suggestion that the accused did not execute Ex.P1 in his favour. He admitted that his complaint does not disclose on which date he had presented Ex.P2 for collection. He admitted that he did not file bank counter foil in this case. He does not know whether the accused has been drawing monthly pension of Rs.20,000/- after demise of her husband. He does not know whether there is any necessity for the accused to borrow Rs.3,00,000/- from him as she has financial capacity by drawing monthly pension and death benefits of her husband. He admitted that the accused did not receive any notice but it was returned under Ex.P5. He came to know through the attestor that he is having good family friendship with the husband of accused as mentioned in his chief affidavit. He does not know the family of accused who was introduced by LW2/S.V.V.Chowdary as mentioned in his chief affidavit. He does not know whether they used to come to LW2/S.V.V.
Chowdary in holidays as mentioned in his chief affidavit. He stated that though he had mentioned in his chief affidavit that due to which he has well acquaintance with the accused and her husband, he does not know the husband of the accused. He denied the suggestion that he had filed a false complaint against the accused without her issuing cheque in his favour only due to the acquaintance between him and the attestor of Ex.P1 while he was working in this court during the period in which he worked as advocate clerk.
13. According to the complainant, the accused had executed Ex.P1 in his favour and borrowed Rs.3,00,000/- from him in the presence of one S.V.V.
Chowdary on 06.01.2014. Ex.P1 was scribed by one A.V.V.Prasad and attested by one S.V.V.Chowdary. The case of the accused is that she has never borrowed any amount from the complainant and never executed Ex.P1 in his favour. The complainant stated that the thumb impression of Ex.P1 belongs to the accused. However, the accused did not deny the signature or thumb impression on Ex.P1 as not that of hers. The case of the complainant is that he got acquaintance with the accused through one S.V.V.Chowdary and that one Venkata Ramana who is husband of the accused and the said
S.V.V.Chowdary are employees in Judicial Department and are friends.
According to the complainant, the accused borrowed the amount to meet the marriage expenses of her daughter. In cross-examination, the complainant
C.C.38/2016 11 V AJFCM, RJVM, FAC-JFCM/RCVM as PW1 stated that he does not know where the husband of the accused worked and he does not know whether the said S.V.V.Chowdary worked as bench clerk in the Judicial First Class Magistrate Court, Amalapuram. It is not known, as to how the complainant could give loan of Rs.3,00,000/- without properly knowing a person. More particularly, the complainant claimed that he is not a money-lender. If a money-lender gives money, without knowing a person properly, it can be presumed that he might have given the amount as a business/commercial transaction. But, when the complainant is not a money-lender, he cannot be expected to give money to unknown persons or without knowing them properly or without being introduced to him properly by another person. According to the complainant, on 06.01.2014, he saw the accused and on that date only the accused came for execution of Ex.P1 and nobody came there. At this juncture, the complainant did not speak about the presence of S.V.V.
Chowdary as an attestor or one A.V.V.Prasad as scribe. This is a suspicious circumstance. PW1 stated that he does not know whether by the date of execution of Ex.P1, the husband of accused is alive or not. He also stated that he does not know about the letters mentioned in Ex.P1 as „late‟ Injarapu
Venkata Ramana. He cannot be expected to speak so. Further, it is well known to one and all that the term „late‟ refers to death of the person at whose name it is mentioned. The complainant in his evidence stated that as per the photocopy of death certificate shown to him, one Injarapu Venkata
Ramana died on 21.05.2014. It is to be noted that Ex.P1 is dated 06.01.2014. If the said Injarapu Venkata Ramana died on 21.05.2014, the term „late‟ ought not to have been mentioned on Ex.P1, as it is much before his date of death. This is another suspicious circumstance. The complainant claimed that the scribe of Ex.P1 is one A.V.V.Prasad and the attestor got scribed Ex.P1 and the scribe was brought by the attestor at the time of execution of Ex.P1. The complainant stated that there are corrections in Ex.P1, but there is no initial by the scribe. As per Ex.P1, the rate of interest is Rs.2/- per month i.e., 24% per annum. The complainant as PW1 stated that the rate of interest mentioned in Ex.P1 is Rs.2/- and he also admitted that, as per Ex.P4/office copy of legal notice, the rate of interest claimed by him is 12% per annum. This is another suspicious circumstance.
14. Now the claim of the complainant is that Ex.P2/cheque bearing
No.962677 drawn on Andhra Bank, Shantinagar Branch, Kakinada, for a sum of Rs.2,00,000/- (Rupees two lakhs only) on 20.09.2015 was issued by the accused towards part payment of the debt due under Ex.P1. There is no dispute with regard to Ex.P2 belonging to the accused and to have been
C.C.38/2016 12 V AJFCM, RJVM, FAC-JFCM/RCVM issued from the account being maintained by her with Andhra Bank and there is also no dispute with regard to the signature of the accused thereon.
However, the claim of the accused is that she did not issue such cheque to the complainant but it was issued to one Chowdary (may be S.V.V.
Chowdary). The other recitals in Ex.P1 are typed in English. In cross- examination, the complainant as PW1 stated that the accused got typed the letters on Ex.P2 and he was not present by that time. Whether Ex.P2 was issued towards part payment of the debt due under Ex.P1 or not and whether there is any legally enforceable debt or not is a point to be decided and that will be discussed infra.
15. According to the complainant, he had presented Ex.P2 with his banker
United Bank of India at Rampachodvaram and the same was returned to him with a memo of Andhra Bank dt.03.12.2015 with endorsement „insufficient funds‟ and the same was delivered to him on 19.12.2015. The major dispute in the present case is with regard to Ex.P3/cheque return memo. In the first page of Ex.P3, the date mentioned by Andhra Bank is „03.12.2015‟ and on the reverse of Ex.P3 at underneath portion the date mentioned is „03.11.2015‟ specifically mentioning the time 11:45 AM. This mentioning of specific time of issuance itself is a doubtful circumstance. This mentioning of time by the banker specifically is a new thing and, even to a naked eye, it appears that the letters „PM‟ are conveniently altered as „AM‟. All said and done, the difference of two dates in the front and reverse of Ex.P3 is visible even to a naked eye and every ordinary prudent person must get a doubt and that too in a case of this nature as the complainant is duty bound to issue notice to the drawer of the cheque within 30 days as per clause(b) of the proviso to section 138 of the Act. So, it is for the complainant to seek correction of the date from his banker or get the same corrected through his banker or from the banker of the drawer. The contention of the complainant is that Ex.P3 was issued by the banker of the accused and the same was received by him through his banker. The recitals in Ex.P3 shows that the
Andhra Bank, which is banker of the accused, has addressed such slip to the banker of the complainant. However, Ex.P3 does not contain any recital or stamp or seal of the banker of the complainant with any initial or date to show that the same was received by the banker of the complainant on such and such date and time and was handed over to the complainant on such and such date and time. The complainant claimed that Ex.P3 is dated 03.12.2015. When Ex.P3 also shows the date 03.11.2015, it is not known as to how and why the complainant remained silent without approaching his banker for correction of date. It is to be noted that since the offence under
C.C.38/2016 13 V AJFCM, RJVM, FAC-JFCM/RCVM section 138 of the Act mostly depends on technicalities in respect of dates, the clarity with regard to the date is very essential and the complainant being silent with regard to the said date raises a serious doubt. It is another suspicious circumstance. Further, a perusal of the complaint filed before the
Court in 7th Paragraph clearly shows that he mentioned the date of the said memo as 03.12.2015 and also stated that the same was delivered to him by his banker as '19.12.2015'. But in the 10th Paragraph of the complaint which refers to „cause of action‟, the date mentioned is '03.11.2015' and the same was delivered to him as '19.12.2015'. So, it is very clear that, first of all, the complainant himself is not clear with regard to the date, whether it is '03.12.2015' or '03.11.2015' and, secondly, it is not known as to how and by relying on which document he is claiming that he has received Ex.P3 on 19.12.2015. In respect of Ex.P3, the contention of the accused is that if the
date 03.11.2015 is taken into consideration, there is 27 days delay in filing
the complaint and if the date 03.12.2015 is taken into consideration, the complaint is within time. So, there are two possibilities even according to the complaint itself or complainant himself. It is a serious lacuna on the part of the complainant and it is to be clarified only by the complainant and not by the accused. So, the burden to prove that aspect is purely on the complainant.
16. Ex.P5 is returned postal cover and in respect of the said Ex.P5, the contention of the complainant is that the accused has not claimed the same and so it was returned to him by the postal authorities and in that connection relied on section 27 of General Clauses Act. This contention of the complainant is acceptable.
17. The contention of the accused is that the complainant failed to produce the counterfoil of the voucher by which Ex.P2 was deposited by him with his banker for encashment. It is also her contention that the complainant failed to take any steps to adduce the evidence of his banker to prove Ex.P3. In this regard, the contention of the complainant is that since he has produced
Exs.P1, P2 and P3 and as the signatures on Exs.P1 and P2 to be that of the accused are not in dispute and as it is mentioned in Ex.P3 that Ex.P2 was dishonoured for want of sufficient funds, the presumption under section 139 of the Act arises and so now the burden shifts to the accused. The said analogy is true, in my opinion, in normal circumstances. But, in the case on hand, there is a serious doubt against Ex.P3 itself. There is no hard and fast rule for filing counterfoil of the voucher to show the deposit of cheque with the banker of the creditor. The counterfoil merely shows the date on which the disputed cheque was deposited for encashment with the banker of the
C.C.38/2016 14 V AJFCM, RJVM, FAC-JFCM/RCVM creditor. It helps only to some extent to know on which date the cheque was deposited. If the cheque is not deposited within time, the banker would dishonour the same with the same ground. The date on the counterfoil is not a criterion for mentioning of date on the Bank‟s slip and however the date of the Bank's slip must be after the date on the counterfoil or on the same date.
However, in the case on hand, in view of difference of dates mentioned on
Ex.P3 and in view of the non-mentioning of any stamp or seal or initial by the banker of the complainant, he ought to have examined either his banker or the banker of the accused. For the reasons best known to him, though the complainant has mentioned the names of his banker and the banker of the accused as witnesses, in the complaint, he did not choose to examine them.
18. The contention of the complainant is that, when he produced Exs.P1,
P2, P3 and P4 and proved the ingredients under section 138 of the Act against the accused, with the help of statutory presumptions under sections 139 and 118(a) of the Act, the burden lies on the accused to rebut the said presumptions and the evidence placed by the complainant, by adducing her evidence. It is contended that the accused though tried to have been examined herself as DW1, her evidence was eschewed and thereafter she did not make any attempt to get her evidence examined and so the same is a strong circumstance in favour of the complainant and against the accused to show that the accused failed to rebut the evidence of the complainant. In catena of decisions, it is made clear that the accused need not enter into witness box but it is sufficient that the evidence of the complainant is substantially countered with probable evidence by raising reasonable doubts.
It is true, in the case on hand, the accused did not come forward to examine herself as a witness. It is true, the accused has filed her chief-examination affidavit but without any application under section 315 Cr.P.C seeking permission to examine herself as a witness in the case against her. However, subsequently, the learned counsel for the accused reported no defence evidence and so, recording the same, the evidence on behalf of accused was closed. Be that as it may, the complainant has filed a petition under section 91 Cr.P.C with a prayer to issue summons or written order to the banker of the complainant to produce the concerned documents regarding issuance of
Ex.P2. The said petition was dismissed on 28.03.2018 vide Crl.M.P.
No.3628/2017. The said order reads as follows.
“This is a petition filed by the petitioner/complainant under section 91 of Cr.P.C seeking to issue summons or written order to the Branch Manager, Union Bank of India at Rampachodavaram to produce the concerned documents regarding issuance of endorsement to the petitioner. Notice is given to the respondent who has reported no objection. Heard on both sides and perused the material on record. The petitioner being complainant filed the case against the accused under
C.C.38/2016 15 V AJFCM, RJVM, FAC-JFCM/RCVM Negotiable Instruments Act. During the course of trial, the complainant himself examined as PW1 and got examined other witness, at this stage this petition has been filed for issuance of summons to the Branch Manager of Union Bank of India by producing the concerned documents, but the petitioner did not specify the nature of documents to be caused production by the proposed witness. The case of the petitioner is that to issue summons or written order to proposed witness for production of concerned documents regarding issuance of endorsement which seems that the petitioner is not specified which documents he sought to be produced and even no specific dates furnished by him. Therefore, this petition is liable to be dismissed in view of lack of merits. In the result, this petition is dismissed.”
It is to be noted that the complainant during his cross-examination admitted that the complaint does not disclose the date of presentation of Ex.P2 for collection and also admitted that he did not file the bank counterfoil in this case. If the complainant is really intending to examine the banker, he should have taken steps to approach this court again with such petition filling up the lacunae. The observation of the Court while dismissing the petition is non-furnishing of information about the document sought to be produced by such witness. The complainant can as well apply for the same relief again duly furnishing such information. When it is the case of the complainant that he does not intend to examine the banker, in view of the presumption under section 139 of the Act, it is not known as to why he preferred such a petition and the complainant ought to have kept silent with regard to the observation made in the order of the petition to show that he had tried to examine his banker but the Court did not permit him. If it is his presumption, the same cannot be accepted because he has not come to the
Court with such petition with clean hands.
19. Further, the contention of the complainant is that for a petition under section 70(2) Cr.P.C filed by the accused on 11.07.2017, the accused has mentioned specifically that she is ready to pay 25% of the cheque amount by 18.07.2017 and sought recall of NBW issued against her. It is contended by the learned counsel for the complainant that this recital must be taken against the accused to show that the debt as claimed by the complainant is a legally enforceable debt. I am not in agreement with the said contention of the learned counsel for complainant. It is true, there is such recital with the handwriting of the accused herself in the petition under section 70(2) Cr.P.C filed by the accused. However, in such recital the accused did not admit the debt. She merely informed the Court her readiness to pay 25% of the cheque amount and sought recall of Non-Bailable Warrant issued against her. It is to be noted that it is not uncommon that the persons accused of various offences have been seeking bail and while seeking bail they tend to anything making various claims of physical and mental infirmities for themselves or their blood relatives and they also express their readiness and willingness to
C.C.38/2016 16 V AJFCM, RJVM, FAC-JFCM/RCVM accept and abide by any of the conditions that may be imposed by the Court even without knowing whether the Court is inclined to grant bail or not and whether the Court is inclined to impose any conditions for their release or the nature of conditions that may be imposed against them. In the case on hand also, the accused under the fear of going behind bars might have informed her readiness to deposit or to pay 25% of the cheque amount. Without there being any admission by the complainant admitting the debt, the mere recital appearing on the petition under section 70(2) Cr.P.C cannot be taken against her as an admission of legally enforceable debt.
20. The complainant in his cross-examination admitted that as per his complaint Ex.P2 (sic for Ex.P3) delivered by the banker on 19.12.2015 as „funds insufficient‟ but the said date is not disclosed on Ex.P3. It is the admission of the complainant that in his complaint he mentioned that he received Ex.P3 on 03.11.2015 and it is also the admission of the complainant that he had issued Ex.P4 notice on 29.12.2015. So, it is very clear that there is 27 days delay from 03.11.2015 and so it is a very serious lacuna on the part of the complainant and if that is so the complaint is barred by time.
21. Coming to the financial capacity of the complainant, it is contended by the accused that the complainant is only an Advocate clerk and he has no capacity to lend that much of money. Despite such allegation, the complainant did not make any attempt to show his financial capacity by producing his bank statement or otherwise. According to the complainant, he had secured Rs.3,00,000/- from his cultivation. He also stated that he had secured the amount of Rs.3,00,000/- from his house and he has no documentary proof to that effect. The complainant nowhere stated that he is also doing cultivation and that he has a particular piece of land in his name or in his possession by way of lease or otherwise. The complainant claimed that he is not an income tax assessee. If that is so, it is clear that the complainant failed to prove his financial capacity to lend that much amount.
22. Coming to section 4-A of the Regulation 1960, it deals with 'Advance of money to be in writing etc.'. According to it, no money-lender shall advance any loan to a debtor otherwise than under an agreement in writing attested by two witnesses one of whom shall be a village officer or a Sarpanch of a gram panchayat, within whose jurisdiction the debtor resides and no court shall entertain any suit for the recovery of any loan advanced in contravention of the provisions of this section. It is to be noted that as per section 1(2) of the Regulation, 1960, the said Regulation 1960 extends to the whole of the Scheduled Areas of the State of Andhra Pradesh. As per section 2(10) thereof, the term 'Loan' is defined and the present transaction, if true,
C.C.38/2016 17 V AJFCM, RJVM, FAC-JFCM/RCVM certainly falls under that definition. As per section 2(11), the term 'money- lender' is defined. According to it, money-lender means a person who advances loans, and includes a mandy merchant, a landlord lending grain as 'Namu' to his farm servant and a pawn-broker, but does not include a bank, company or Co-operative Society and the expression 'money-lender' shall be construed accordingly. It is the contention of the learned counsel for the complainant that since the accused is not a resident of scheduled area, the section 4-A has no application. It is true since the accused being shown as debtor is not a resident of any scheduled area, the section 4-A of the
Regulation, 1960, has no application to the facts of the present case.
23. During arguments, the learned counsel for the accused contended that the complainant is habituated to fabricate documents by way of forgery and file false complaints. The learned counsel for the complainant opposed the same saying that the said allegation is without any proof. It is to be noted that the complainant during cross-examination stated that a criminal was registered against him in Cr.No.6/2011 of Donkarayi Police Station regarding forgery of documents which is the subject matter in C.C.No.185/2013 on the file of J.F.C.M. Court, Rampachodavaram. So, the contention of the accused that the complainant is habituated to forge documents finds force from this evidence of complainant. However, that by itself shall not be taken to mean that the complainant has forged Ex.P1 and this is a false complaint. The result of C.C.No.185/2013 is not made known to this Court and further it is not that the present case is filed based on forged documents. So, this contention of the accused is baseless.
24. In the chief-affidavit, the complainant has mentioned that the husband of the accused and one S.V.V.Chowdary who is the attestor to Ex.P1 and who is shown as LW2 in the complaint are colleagues and have good family friendship. He also stated that the family of the accused was introduced to him by the said S.V.V.Chowdary when they used to come to the said S.V.V.
Chowdary in holidays and thereby he has well acquaintance with the accused and her husband. However, in cross-examination, the complainant stated that he came to know through the attestor S.V.V.Chowdary that he is having good family friendship with the husband of the accused as mentioned in his chief-affidavit. He also stated that he does not know whether they used to come to S.V.V.Chowdary in holidays as mentioned in his chief- affidavit. He stated that though he had mentioned in his chief-affidavit that he has well acquaintance with the accused and her husband, he does not know the husband of the accused. So, it is clear that he is coming out with a
C.C.38/2016 18 V AJFCM, RJVM, FAC-JFCM/RCVM different version from that of his chief-affidavit which was stated to be true by him on oath. So, this is another doubtful circumstance.
25. In view of the aforesaid discussion, I hold that the accused could raise sufficient reasonable doubts on Ex.P1 and its enforceability. Further, the accused also could raise sufficient defence on Ex.P3. Therefore, I hold that the complainant failed to rebut the defences raised by the accused and to prove that the debt as claimed by him is a legally enforceable debt. So, in such circumstances, the authoritative pronouncements relied on by both parties need not be discussed in detail.
26. Having regard to the aforesaid circumstances, I hold that the complainant failed to bring home the guilt of the accused beyond reasonable doubts for the offence under section 138 of Negotiable Instruments Act, 1881, and she is entitled for acquittal.
27. In the result, the accused is found not guilty for the offence under section 138 of the Negotiable Instruments Act, 1881, and she is consequently acquitted under section 255(1) Cr.PC. The bail bonds of the accused shall be in force for a period of six months, as contemplated under section 437-A
Cr.P.C.
Dictated to the Stenographer-Gr.II, transcribed by him, corrected, signed and
pronounced by me in open Court, this the 27th day of December, 2019.
SD/- CH.V. RAMAKRISHNA
V A.J.F.C. Magistrate, Rajamahendravaram FAC-J.F.C. Magistrate, Rampachodavaram
Appendix of Evidence
(Witnesses examined)
For Complainant: For Defence:
PW1: S.B.G. Tilak -NIL- (as eschewed)
Exhibits marked
For Complainant:
Ex.P1 : Promissory Note dated 06.01.2014 Ex.P2 : Cheque dated 20.09.2015 issued by the accused Ex.P3 : Cheque return memo dated 03.12.2015. Ex.P4 : Office copy of legal notice dated 29.12.2015. Ex.P5 : Returned postal cover.
For Defence: -Nil-
SD/- CH.V. RAMAKRISHNA
V A.J.F.C. Magistrate, Rajamahendravaram FAC-J.F.C. Magistrate, Rampachodavaram
C.C.38/2016 19 V AJFCM, RJVM, FAC-JFCM/RCVM
CALENDAR AND JUDGMENT
IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS
RAMPACHODAVARAM.
C.C.No.38/2016
DATE OF:-
Offence : 03.12.2015
Complaint : 28.01.2016
Apprehension of accused : 15.03.2016
Release on bail : 15.03.2016
Commencement of trial : 30.10.2017
Close of trial : 20.09.2019
Sentence or order : 27.12.2019
Explanation for delay : Nil
Name of the Complainant: S.B.G. Tilak, S/o.Apparao, aged 30 years, Caste: Konda Kammara, Rampachodavaram(PO), East Godvari District
Name of the accused: Injarapu Jeevana Supriya, W/o.(late) Venkata Ramana, Godarigunta, Opp. Vinayaka Temple, Door No.3-17-44, Apartment Second Floor-S/1, Kakinada, East Godavari District
Offence : U/Sec.138 of Negotiable Instruments Act, 1881.
Finding : Not Guilty.
Sentence or Order : In the result, the accused is found not guilty for the offence under section 138 of the Negotiable Instruments Act, 1881, and she is consequently acquitted under section 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period six months, as contemplated under section 437-A Cr.P.C.
SD/- CH.V. RAMAKRISHNA
V A.J.F.C. Magistrate, Rajamahendravaram, FAC-J.F.C. Magistrate, Rampachodavaram. Copy submitted to the Hon‟ble Chief Judicial Magistrate, East Godavari, Rajamahendravaram for favour of information.