1 Crl.A.No.756 of 2017
IN THE COURT OF THE II ADDITIONAL METROPOLITAN SESSIONS JUDGE:
HYDERABAD
Tuesday, the 13th day of July, 2021
Present: Sri.Ch.V.R.R.Varaprasad, Special Sessions Judge for the trial of Criminal Cases relating to elected M.Ps. and M.L.As. of the State of Telangana, Hyderabad. FAC. II Addl. Metropolitan Sessions Judge, Hyderabad. ` CRIMINAL APPEAL NO. 756 of 2017
From what court this appeal is preferred :IV Special Magistrate’s Court, Hyderabad.
Case Number in that court :C.C.No.62 of 2014
Criminal Appeal Number Crl. Appeal No.756 of 2017
Name and description of the :H.Vijaya W/o: H.Sudershan Reddy, Appellant/AccusedAged about 52 Years, Occ: House Wife, R/o: H.No. 9-8-76, Flat No.104, Sai Enclave, Road No.2, Maruthi Nagar, Hyderabad.
Name and description of the :1. M/s Contec Syndicate Private Respondent/ComplainantLimited represented by its authorized signatory V.Nagabhushana Rao S/o: V.S.N. Benarji, Aged about 56 Years, R/o: H.No. 905, Sri Sainath Apartments,StreetNo.8, Venkataramana Colony, Khairatabad, Panjagutta, Hyderabad.
2. The State of Telangana represented by Public Prosecutor, Hyderabad.
The law and sentence passed by the trial:Accused was found guilty for offence court.under Section 138 of the Negotiable Instruments Act, convicted under Section 255 (2) of Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of Two Years and pay compensation of Rs.30,00,000/- within two months from the date of Judgment under Section 357 of Cr.P.C., and in default to suffer Simple Imprisonment for SIX MONTHS.
Whether confirmed, modified or reversed:In the result, Appeal is dismissed by and if modified, the modificationconfirming the Judgment dated 22-06- 2017 passed by the Court of IV Special Magistrate, Hyderabad in C.C No.62 of 2014.
2 Crl.A.No.756 of 2017
DATE ON WHICH
Presentation of Appeal : 05-07-2017 Filing of Appeal : 06-07-2017 Notice issued to respondent to appear : 07-07-2017 First appearance of Appellant : 07-08-2017 Hearing of Appeal : 01-07-2021 Judgment in the Appeal : 12-07-2021
This Criminal Appeal is coming on 01-07-2021 for hearing before me and upon perusing the grounds of appeal, lower court record, and considering the arguments of Sri. K.Ravinder Reddi, Counsel for Appellant/Accused and Sri. A.Vijaya Saradhi, Counsel for Respondent No.1/Complainant and none appeared
for Respondent No.2, this court has delivered the following:
J U D G M E N T
Accused in C.C.No.62 of 2014 on the file of IV Special Magistrate’s
Court, Hyderabad has filed this appeal under Section 374 (3) of the Code of
Criminal Procedure being aggrieved by the Judgment dated 22-06-2017 in
C.C.No.62 of 2014, under which appellant/accused was convicted for offence under
Section 138 of the Negotiable Instruments Act, for shot ‘the Act’, and sentenced to undergo Rigorous Imprisonment for a period of Two Years and pay compensation of Rs.30,00,000/- within two months from the date of Judgment under Section 357 of Cr.P.C. and in default to suffer Simple Imprisonment for Six Months.
2.Appellant and Respondent are hereinafter referred to as accused and complainant respectively as arrayed in trial court.
3.The case of complainant, in brief, is that accused being engaged in
Real Estate Business approached complainant company in January, 2009 and sought financial help to clear litigation in respect of land of Ac. 2.30 Guntas in Survey
No.172/3 of Hyder Nagar Village, Kukatpally Municipality, Ranga Reddy District.
Accordingly, complainant company paid Rs.98,00,000/- to accused through cheques in different spells. Accused promised to repay the said amount within one year and executed Promissory Notes in favour of complainant company. Accused went on postponing the repayment of amount on one pretext or the other. On 27-07- 2010 accused visited the office of complainant company, expressed her inability to repay the amount and requested further time, promised to pay interest at 18% Per
Annam and executed fresh Promissory Notes for the amount she had received.
3 Crl.A.No.756 of 2017
After repeated demands and requests in January, 2013 accused issued Cheques bearing Nos. 324104 dated 25-02-2013 for Rs.45,00,000, 324105 dated 04-03-2013 for Rs.23,00,000/-, 324106 dated 11-03-2013 for Rs.30,00,000/-, 324107 dated 25- 03-2013 for Rs.42,00,000/-, and 324108 dated 02-04-2013 for Rs.37,81,338/- drawn on Andhra Bank, Santosh Nagar Branch, Hyderabad towards discharge of legally enforceable debt. Complainant presented Cheque bearing No.324106 dated 11-03- 2013 for Rs.30,00,000/- (Ex.P.5) in its Bank. It was returned dishonoured on 14- 03-2013 with endorsement “Funds Insufficient” through Cheque Return Memo
dated 14-03-2012 (Ex.P.6). Complainant company got issued Legal Notice, dated
09-04-2013 (Ex.P.7) to accused by Registered Post with Acknowledgment Due.
Having received notice on 12-04-2013 accused neither issued reply nor paid cheque amount which compelled complainant to file complaint praying the court to punish accused for offence under Section 138 of the Act and grant compensation.
4.Cognizance was taken by the Court of VII Additional Chief
Metropolitan Magistrate, Hyderabad for offence under Section 138 of the Act and numbered as C.C.No.665 of 2013. As per the orders of the Metropolitan Sessions
Court, Hyderabad the case was transferred to the Court of I Metropolitan
Magistrate, Hyderabad. Subsequently the case was re-transferred to the Court of
VII Additional Chief Metropolitan Magistrate, Hyderabad and finally the case was transferred to the Court of IV Special Magistrate, Hyderabad and numbered as
C.C.No.62 of 2014 for disposal.
5.On appearance of accused trial court has furnished copies of documents as required under Section 207 Cr.P.C. and examined accused under
Section 251 of Cr.P.C. Brief allegations made against accused were read over and explained to her. Accused pleaded not guilty for offence under Section 138 of the
Act and claimed to be tried.
6.During the course of trial authorized representative of complainant was examined as PW.1 and got examined Smt. V.Vishnupriya, who is wife of
PW.1, and Managing Director of complainant company as PW.2 and got marked
Exs.P.1 to P.11. Ex.P.1 is Xerox copy of Registration Certificate of complainant 4 Crl.A.No.756 of 2017 company, dated 30-01-1996 issued by the Registrar of Companies. Ex.P.2 is Xerox copy of Extract of Minutes for reappointment of PW.2 as Managing Director of complainant company. Ex.P.3 is Online Form-32 as proof of filing in Registrar of
Companies. Ex.P.4 is Resolution dated 20-12-2012 of complainant company.
Ex.P.5 is Cheque bearing No.324106, dated 11-03-2013 for Rs.30,00,000/- drawn on Andhra Bank, Santoshnagar Branch, Hyderabad. Ex.P.6 is Cheque Return
Memo dated 14-03-2013. Ex.P.7 is Office copy of Legal Notice, dated 09-04-2013.
Ex.P.8 is Postal Receipt, dated 10-04-2013. Ex.P.9 is Postal Acknowledgment,
dated 12-04-2013. Ex.P.10 is Extract of Minutes for reappointment of PW.2 as
Managing Director of Company dated 14-11-2012 (Original of Ex.P.2). Ex.P.11 is
Certified copy of Written Statement in O.S.No.561 of 2013 on the file of the Chief
Judge’s Court, City Civil Court, Hyderabad.
7.After closure of evidence of complainant Accused was examined under
Section 313 Cr.P.C. and the incriminating material available in the evidence of
PW.1 and PW.2 was put-forth to Accused. Plea of accused was a total denial.
8. Accused was examined as DW.1 and got examined her husband
Sudharshan Reddy as DW.2 and got marked Ex.D.1 to Ex.D.8. Ex.D.1 is the
Statement of Account of accused of Andhra Bank, Santoshnagar Branch, Hyderabad for the period from 01-01-2009 to 31-03-2009. Ex.D.2 is Pahani dated 17-11-2015.
Ex.D.3 is Certified copy of Plaint in O.S.No.561 of 2013 on the file of the Chief
Judge’s Court, City Civil Court, Hyderabad. Ex.D.4 is Written Statement in O.S.
No.561 of 2013 on the file of the Chief Judge’s Court, City Civil Court,
Hyderabad. Ex.D.5 is Certified copy of Memorandum of Association of complainant company. Ex.D.6 is Certified copy of Articles of Association of complainant company. Ex.D.7 is location Map of land in Survey No. 172/3 (Part) and 172/3/A (Part) of Hyder Nagar Village, Balanagar Mandal, Ranga Reddy
District. Ex.D.8 is Xerox copy of Agreement of Sale, dated 28-01-2009.
9. After full trial Accused was found guilty for offence under Section 138 of the Act, convicted under Section 255 (2) of Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of Two Years and pay compensation 5 Crl.A.No.756 of 2017 of Rs.30,00,000/- within two months from the date of Judgment under Section 357 of Cr.P.C. and in default to suffer Simple Imprisonment for Six Months.
10.Being aggrieved by the Judgment in C.C.No.62 of 2014 passed by the learned IV Special Magistrate, Hyderabad appellant filed this appeal, inter alia, stating that the Judgment under appeal is contrary to the evidence and probabilities of the case; learned trial court placed reliance on the interested testimony of PW.1 and PW.2 and Ex.P.1 to Ex.P.11 without appreciating that complainant company failed to establish the existence of legally enforceable debt; complainant company was engaged in construction business and not authorized to advance loans and the alleged lending of amount by complainant company to accused is false; no resolution was passed by complainant company to advance loan of Rs.98,00,000/- to accused; no Income Tax Returns were filed by complainant company; learned trial court over looked Ex.D.8 without appreciating the fact that complainant company agreed to purchase 1600 Square Yards of land from accused in Survey No.172/3 of Hyder Nagar Village, Balanagar Mandal,
Ranga Reddy District under Agreement of Sale dated 28-01-2009 (Ex.D.8) and paid certain amounts as advance; learned trial court failed to appreciate that there is a recital in Ex.D.8 about blank Cheques and Promissory Notes obtained by complainant company towards security from accused; learned trial court ignored the admission of PW.1 that the cheques were issued by accused towards security; though complainant company is in custody of original of Ex.D.8 intentionally it was not produced in court; complainant frabricated Ex.P.5-Cheque by misusing blank Cheques and Promissory Notes taken from accused towards security at the time of entering into Ex.D.8; learned trial court failed to look into blank statement (Ex.D.1) reflecting that Cheque bearing No.324117 for Rs.5,000/- was encashed by
V.Nagabhushana Rao (PW.1) for the survey of land; mandatory requirements of
Section 138 of the Act were not fulfilled; complainant company filed O.S.No.561 of 2013 on the file of Chief Judge’s Court, City Civil Court, Hyderabad for recovery of Rs.1,77,81,338/- basing on fabricated Promissory Notes; and that learned trial court without considering the written arguments filed by accused recorded finding of guilt against accused which is not sustainable. Thus submitting, accused prayed 6 Crl.A.No.756 of 2017 the court to set aside the Judgment under appeal and acquit her for offence under
Section 138 of the Act.
11.By order dated 11-07-2017 in Crl.M.P.No.1411 of 2017 this Court has suspended the sentence passed by trial Court on the same terms and conditions imposed by trial Court, during pendency of appeal. The said order is still subsisting.
12. Heard Sri. K.Ravinder Reddi, learned counsel for accused and
Sri. A.Vijaya Sarathi, learned counsel for complainant who filed written arguments also along with citations which are perused by court. Both the learned Advocates have taken the court minutely through the contents of complaint, evidence of
PW.1, PW.2 and DW.1, DW.2, Ex.P.1 to Ex.P.11 and Ex.D.1 to Ex.D.8. While learned counsel for accused strenuously contended that the Judgment under appeal cannot be sustained learned counsel for complainant contended that the learned trial court has rightly convicted accused and the appeal is liable to be dismissed.
13. Following points arise for determination:
1. Whether complainant has proved the guilt of accused beyond all reasonable doubt for offence under Section 138 of the Act?
2. Whether the Judgment of trial Court is liable to be set aside as alleged in the appeal?
3. To what relief?
Point No.1:
14.In an offence under Section 138 of the Act complainant has to establish existence of legally enforceable debt as on the date of issuance of cheque; cheque in question was issued in discharge of such legally enforceable debt; cheque was presented by complainant for encashment within the validity period of cheque and it was dishonoured with endorsement “Funds Insufficient”; statutory notice under Section 138 of the Act was served on accused; and that despite receipt of statutory notice under Section 138 of the Act accused failed to pay the cheque amount and thereby became liable for punishment under Section 138 of the
Act. Burden lies on complainant to establish these necessary ingredients so as to 7 Crl.A.No.756 of 2017 bring home guilt of accused beyond all reasonable doubt for offence under Section 138 of the Act. However, in the process of bringing home guilt of accused complainant can take the help of legal presumption under Section 139 of the Act.
If the complainant is able to prove its case burden shifts to accused to rebut the presumption under Section 139 of the Act.
15. Court has carefully perused the contents of complaint, evidence of
PW.1 and PW.2 and Ex.P.1 to Ex.P.11 marked on behalf of complainant company, evidence of DW.1, DW.2 and Ex.D.1 to Ex.D.8 marked on behalf of accused, grounds of appeal and the written arguments and citations filed by learned counsel
for complainant and accused. This Court has to appreciate the evidence on record
independently and see whether complainant is able to bring home guilt of accused beyond all reasonable doubt for offence under Section 138 of the Act and whether the judgment under appeal is liable to be set aside or deserves to be confirmed.
16. Complainant is a Private Limited Company. Ex.P.1 is the Xerox copy of Certificate of Incorporation of complainant company while Ex.P.2 is Xerox copy of Resolution passed by Board of Directors of complainant company on 14-11-2012.
Since Ex.P.1 and Ex.P.2 are the Xerox copies they are inadmissible in evidence.
Ex.P.1 and Ex.P.2 were marked subject to objection. Ex.P.3 is Form No.32 (filed online) reflecting the name of PW.2 as Managing Director of complainant company.
Ex.P.10 is original of Ex.P.2. Defect in Ex.P.2 is cured by filing Ex.P.10. Ex.P.10 shows that PW.2 was reappointed as Managing Director of complainant company.
Ex.D.5 and Ex.D.6 are the Certified copies of Memorandum of Association and
Articles of Association respectively of complainant company. Since Ex.D.5 and
Ex.D.6 are filed by accused herself it can be taken that accused is not disputing the factum of complainant company being incorporated under the Companies Act.
Even if Ex.P.1 is totally eschewed from consideration being inadmissible evidence it will not affect the case of complainant company in view of accused filing Ex.D.5 and Ex.D.6.
8 Crl.A.No.756 of 2017
17.PW.1 got issued Ex.P.7-Legal Notice and signed on complaint as authorized person on behalf of complainant company. Ex.P.4 is the authorization given in favour of PW.1 on 20-12-2012 by the Board of Directors of complainant company authorizing PW.1 to file criminal complaints, which includes issuance of legal notices. Since complainant company is a juristic person authorization was given to PW.1. Though PW.1 is not holding any post like Director in complainant company he is not debarred to be competent for being appointed as authorized person. Ex.P.7 was got issued on 09-04-2013 by PW.1 on behalf of complainant company by virtue of authorization given under Ex.P.4 and signed on complaint.
Hence, the court is unable to accept the contention of accused that there was no proper authorization by complainant company in favour of PW.1.
18.As rightly contended by learned counsel for accused, Ex.D.5 and
Ex.D.6 do not show that complainant is authorized to lend money. PW.2 deposed in cross-examination that complainant company is engaged in construction work of bridges and roads and as per bylaws and rules of the company loans cannot be advanced. Learned counsel for complainant contended that though the complainant company cannot advance loans as a financial company it can always give hand loan to known persons which is not prohibited under law. No doubt complainant company is not a private financial company. Right from the stage of Ex.P.7-Legal
Notice it is the consistent case of complainant that accused is engaged in Real
Estate business and approached complainant company in January, 2009 and requested for financial help to clear the litigation in respect of land in Survey No.
172/3 of Hyder Nagar Village, Kukatpally Municipality, Ranga Reddy District and accordingly, gave an amount of Rs.98,00,000/-. PW.1 is the husband of PW.2 while PW.2 is the Managing Director of complainant company. DW.1 (accused) is wife of DW.2. DW.1 admitted that DW.2 is conducting Real Estate Business.
DW.2 admitted in his evidence about acquaintance with PW.1. In this background
PW.1 and PW.2 gave money to accused from the account of complainant company, particularly as PW.2 is its Managing Director. Merely because there is no mention in Ex.D.5 and Ex.D.6 authorizing complainant company to lend money it cannot be stated that the complainant company is debarred from giving money to known 9 Crl.A.No.756 of 2017 persons of PW.1 and PW.2 like accused for temporary adjustment as hand loan.
Since there was abnormal delay in repayment of amount accused agreed to pay interest at 18% Per Annum.
19.Regarding giving money of Rs.98,00,000/- by complainant company to accused no doubt no documentary evidence is filed by complainant company in this case, except oral evidence of PW.1 and PW.2. Ex.D.3 is certified copy of
Plaint in O.S.No.561 of 2013 filed by complainant company against accused in the
Chief Judge’s Court, City Civil Court, Hyderabad. Ex.P.11/Ex.D.4 is certified copy of written statement filed by accused in O.S.No.561 of 2013. DW.1 denied to have borrowed money from complainant company. DW.1 pleaded her ignorance about filing O.S.No.561 of 2013 against her. DW.1 admitted Ex.P.11/Ex.D.4 Written
Statement filed in O.S.No.561 of 2013 but surprisingly she has denied its contents.
In cross-examination DW.2 categorically admitted to have received Rs.98,00,000/- through Cheques from the complainant company. Ex.P.11/Ex.D.4 also contains the admission of accused regarding receipt of said amount of Rs.98,00,000/-. Admitted fact need not be proved as per Section 58 of the Evidence Act. Ex.D.3 shows that 5 Promissory Notes dated 27-07-2010 were filed in O.S.No.561 of 2013. Moreover, in view of admission of DW.2 regarding receipt of Rs.98,00,000/- from complainant company by accused court can safely come to a conclusion that accused received
Rs.98,00,000/- from complainant company, particularly as the said admission of
DW.2 is corroborated by the evidence of PW.1 and PW.2. Hence, non filing of documentary evidence like Promissory Notes or Income Tax Returns by complainant company is of no consequence.
20.Learned counsel for accused contended that amount of Rs.98,00,000/- was paid by complainant company to accused under Ex.D.8-Agreement of Sale but not as a loan as contended by complainant company and at the time of execution of Ex.D.8 blank Cheques and blank Promissory Notes were taken by complainant company, including Ex.P.5, for security purpose but the original Agreement of Sale was intentionally suppressed by complainant company and filled up the blank
Cheque, presented the same in Bank and foisted false case against accused.
Complainant company has totally denied Ex.D.8 and raised objection while marking 10 Crl.A.No.756 of 2017
Ex.D.8 which is a Xerox copy of Agreement of Sale. ExD.8 was marked subject to objection in view of common order dated 04-04-2016 passed by the Hon’ble High
Court in Criminal Petition Nos.659, 662, 663, 664 and 666 of 2015. A mere xerox copy is inadmissible in evidence. A xerox copy can be received as secondary evidence under Section 65 of the Evidence Act subject to certain conditions.
Burden lies on accused to establish that the original Agreement of Sale dated 28- 01-2009 was destroyed or lost and could not be secured for any other reason which is beyond the control of accused. Though it is the case of accused that original of Ex.D.8 is in the custody of complainant company no steps were taken to call for the said document. No petition is also filed praying the court to direct complainant company to produce original of Ex.D.8. Hence, adverse inference can be drawn against accused to the effect that original Agreement of Sale was not in existence. Ex.D.8 is unregistered one. It can be easily created with ante date.
Had it been a case where Agreement of Sale (Ex.D.8) is a registered one Court could have certainly accepted the defence of accused. I hold that Ex.D.8 Xerox copy of Agreement of Sale can not be looked into by Court as it is inadmissible in evidence.
21.Assuming for a moment for the sake of discussion that Ex.D.8 is true and correct no steps were taken by accused to issue notice to complainant when the remaining sale consideration was not paid since 2009 nor took any steps to cancel Ex.D.8. In respect of an Agreement of Sale readiness on the part of each party is very important. It appears that since Ex.D.8 was not in existence in 2009 no such steps were taken by accused. From this angle also, no reasonable or prudent man can accept that Ex.D.8 was executed between complainant company and accused.
22.There is another defect in Ex.D.8. DW.1 and PW.2 are stated to be the parties to Ex.D.8. Ex.D.8 was got marked through DW.2, who is not a party at all. Ex.D.8 was not confronted to DW.1. PW.2 denied signature on Ex.D.8 in cross-examination. There is no whisper in the evidence of DW.1 about Ex.D.8.
DW.1 deposed that complainant is stranger, there was no sale of her land to PW.1 under any Agreement nor there was any payment of any amount thereunder 11 Crl.A.No.756 of 2017 towards part sale consideration nor she has issued Cheques to PW.1 as security in such transaction. DW.2 gave contrary version in his evidence. Even the witnesses to Ex.D.8 were not examined. Crl.M.P.No.1188 of 2018 in Crl. Appeal No. 756 of 2017 filed by accused under Section 391 of Cr.P.C. to examine one Gangadhar
Rao, who is stated to be a witness to Ex.D.8, was dismissed by Court by order
dated 15-07-2009. In trial Court accused has not examined at least one of the
attestors to Ex.D.8. Accused filed Criminal Petition No.4466 of 2019 in the
Hon’ble High Court assailing the order dated 15-07-2019 in Crl.M.P.No.1188 of
2018 in Crl. Appeal No. 756 of 2017. The said petition was dismissed by the
Hon’ble High Court on 1st April, 2021 confirming the order of this Court. From
this angle also, no credence can be given to Ex.D.8, which is heavily relied upon by accused.
23.Contention of accused regarding Ex.D.8-Agreement of Sale can be
judged from another angle. It is the specific defence of accused that at the time
of execution of Ex.D.8 between complainant company and accused the latter issued blank Cheques and blank Promissory Notes in favour of the former as security.
According to DW.2, accused has offered to sell 1600 Square Yards of land in
Survey No. 172/3 situated in Hyder Nagar Village, Balanagar Mandal, Ranga Reddy
District under Ex.D.8-Agreement of Sale and issued Ex.P.5-Cheque and other
Cheques. In fact this defence was not stated by DW.1 herself in evidence. Usually vendee/purchaser issues Cheques under Agreement of Sale in favour of vendor/seller but not vice versa. If really the complainant company was to purchase the above land it ought to have issued Cheque/s in favour of accused.
Hence, the question of issuing blank Cheques by accused in favour of complainant company, as contended by accused, does not arise. From this angle also, Court is unable to accept the contention of accused that she has handed over blank
Cheques under Ex.D.8, particularly as Ex.D.8 itself is inadmissible and not proved by accused.
24.Accused has filed Ex.D.2 and Ex.D.7 relating to the land alleged to be under the ownership and possession of accused situated at Hyder Nagar. Ex.D.2 is the Pahani, dated 17-11-2015 in respect of Survey No.172/3 of Hyder Nagar 12 Crl.A.No.756 of 2017
Village reflecting the name of accused as pattedar and possessor of Ac.1.30 Guntas.
Ex.D.7 is the location Map of said land. These documents are of no value to the accused because the ownership and possession of accused in respect of the said land is not in issue in this case.
25.Learned counsel for accused contended that even according to complainant company loan was taken by accused in the year 2009 and Ex.P.5-
Cheque is dated 11-03-2013 and, hence, it is a time barred debt without any written acknowledgment in writing within the time of limitation and, thereby, it has to be held that there is no legally enforceable debt. Learned counsel for complainant contended that on 27-07-2010 accused approached complainant company, requested further time to repay the loan, promised to pay interest 18%
Per Annum and executed Promissory Notes and later in January 2013 she has issued Ex.P.5-Cheque in discharge of the said debt and, hence, the question of debt being barred by limitation does not arise. Right from the stage of Ex.P.7-
Legal Notice it is the consistent case of complainant that on 27-07-2010 accused visited the office of complainant, requested time for repayment of loan and executed Promissory Notes and later in the month of January 2013 she has issued
Ex.P.5-Cheque. The said recital of Ex.P.7 was reiterated in the complaint and in the evidence of PW.1 and PW.2. Though the Promissory Notes were not filed in this case they were filed in O.S.No.561 of 2013 which is evident from Ex.D.3.
From 27-07-2010 the period of limitation starts running. Ex.P.5-Cheque is dated 11-03-2013. To enforce the debt covered by Promissory Note period of limitation is 3 years. Hence, Ex.P.5-Cheque was issued within the period of limitation. The question of debt being time barred does not arise. The question of obtaining written acknowledgment from accused also does not arise.
26.Learned counsel for accused has placed reliance on the decision of the
Hon’ble High Court of Andhra Pradesh in Gerard Kollian v. Weis Electronics and
Industrial Services Private Limited, Secunderabad and others reported in 2014 (2)
ALD (Crl.) 794, wherein it was held that the debt was time barred and, accordingly, the amounts covered by two Cheques could not be enforced by virtue of Sections 18 and 19 of the Limitation Act and Section 25 of the Contract Act. In 13 Crl.A.No.756 of 2017 the said case Cheques were issued long after the expiry of period of 3 years from the date of borrowing money and in those circumstances, the Hon’ble High Court held that the debt was time barred and there was no legally enforceable debt and accordingly, accused was acquitted. The said decision is not applicable to the present case as facts are different.
27.Learned counsel for accused has also placed reliance on the decision of the Hon’ble High Court of Andhra Pradesh in A.Yesubabu v. D.Appala Swamy and another reported in 2003 (2) ALD (Crl.) 707 (AP), wherein it was held that since the debt was time barred there was no subsisting liability and the prosecution of accused for offence under Section 138 of the Act could not stand. In the said case also, Cheque was issued long after expiry of period of limitation without there being any written acknowledgment as required under Section 18 of the Limitation Act. As already stated, in the present case within the period of limitation from the date of Promissory Note (27-07-2010) Ex.P.5-Cheque was issued on 11-03-2013 and, as such, the said decision is also not applicable to the present case.
28.Since complainant company is the holder of Ex.P.5-Cheque presumption under Section 139 of the Act is available in favour of complainant to presume that Ex.P.5-Cheque was issued in discharge of legally enforceable debt.
Burden shifts to accused to rebut the said presumption. Learned counsel for accused has drawn the attention of Court to one sentence in cross-examination of
PW.1 wherein PW.1 stated that accused has given the Cheque to the complainant company for the loan taken by her as a security. One stray sentence deposed by
PW.1 cannot be the basis to reject the entire case of complainant. Court has to appreciate the evidence of a witness in unison but not in isolation. DW.1 went to the extent of denying the contents of her own written statement (Ex.P.11/Ex.D.4) filed in O.S.No.561 of 2013. DW.1 categorically admitted her signature on Ex.P.5-
Cheque. To almost all questions DW.1 replied that her husband (DW.2) knows about them. DW.2 has not disputed about the issuance of Ex.P.5-Cheque but according to him it was issued under Ex.D.8 but the said defence was not proved by accused. DW.2 admitted about the factum of complainant company filing 14 Crl.A.No.756 of 2017
O.S.No.561 of 2013 and the signature of accused on Cheques and Promissory
Notes. The factum of receiving Rs.98,00,000/- from the complainant company by way of Cheques was also categorically admitted by DW.2 in cross-examination. In this background also no significance can be attached to the above stray sentence deposed by PW.1 in cross-examination.
29.Drawing the attention of court to Ex.D.1-Statement of Account learned counsel for accused contended that since Cheque Nos. 324101 to 324103 were encashed in January and February 2009 it has to be taken that Ex.P.5-Cheque was also taken by complainant from accused in 2009 itself, particularly as Rs.5000/- was encashed by PW.1 on 20-04-2009 through Cheque No.324117. There was no cross-examination of PW.1 in this regard. Ex.D.1 was not confronted to PW.1. It was not even got marked through the Manager of Andhra Bank, Santoshnagar
Branch, Hyderabad. Bank Manager was not examined by accused. Ex.D.1 was not certified by bank authority as per the Bankers Books Evidence Act. Unless the author of Ex.D.1 is examined contents of Ex.D.1 cannot be proved. Though accused is stated to be the account holder under Ex.D.1 in Andhra Bank it was not even got marked through DW.1. Ex.D.1 was got marked through DW.2, who is the husband of accused. Hence, the Court is unable to rely on Ex.D.1. Even if assuming for a moment for the sake of discussion that Cheque bearing No.324117 for Rs.5000/- was encashed by PW.1 on 20-04-2009 it is not helpful to accused to rebut the presumption under Section 139 of the Act.
30.Though it is the defence of accused that Ex.P.5-Cheque and other
Cheques were handed over to complainant in blank with her signatures till the complaint is filed by complainant bank no steps were taken by accused by issuing notices to complainant company calling upon it to return blank Cheques. Silence on the part of accused from 2009 to 2014 compels the Court to draw adverse inference against accused. Court is of the considered opinion that in discharge of legally enforceable debt of Rs.98,00,000/- accused has issued Ex.P.5-Cheque in favour of complainant. As discussed supra, accused failed to rebut the presumption under Section 139 of the Act.
15 Crl.A.No.756 of 2017
31.Then comes the presentation of Ex.P.5-Cheque and its dishonor.
Ex.P.5-Cheque was presented in the bank of complainant company on 11-03-2013.
It was returned dishonoured on 14-03-2013 with endorsement “Funds Insufficient”, which is evident from Ex.P.6-Cheque Return Memo. It is not in dispute that
Ex.P.5-Cheque belongs to the bank account of accused in Andhra Bank vide
Account No.054810025100378 of Santoshnagar Branch, Hyderabad. When Ex.P.5-
Cheque was issued accused is expected to see that the amount covered by Ex.P.5 is paid to complainant. However, Ex.P.5-Cheque was returned dishonoured with endorsement “Funds Insufficient”, which endorsement gives rise to prosecution of accused for offence under Section 138 of the Act.
32.To prosecute accused for offence under Section 138 of the Act statutory notice has to be issued to accused under Section 138 of the Act. Ex.P.7 is the Legal Notice dated 09-04-2013 got issued to accused calling upon her to pay
Ex.P.5-Cheque amount within 15 days from the date of receipt of notice. Learned counsel for accused contended that PW.1 got issued Ex.P.7-Legal Notice in his individual capacity but not on behalf of complainant company and thereby the necessary conditions under Section 138 of the Act were not fulfilled and on that ground alone accused is entitled for acquittal. Learned counsel for complainant contended that as authorized person PW.1 got issued Ex.P.7-Legal Notice on behalf of complainant company and the requirements of Section 138 of the Act were duly fulfilled. Court has perused the contents of Ex.P.7. There is a clear mention in
Para No.1 of Ex.P.7 that PW.1, being the authorized person of complainant company, got issued Ex.P.7. Even in other paras of Ex.P.7 also complainant company was referred to. Ex.P.4 is the authorization issued by complainant company in favour of complainant on 20-12-2012. PW.1 deposed in cross- examination that Ex.P.7-Notice was not issued on behalf of complainant company.
In the very next sentence PW.1 deposed that he was authorized to issue notice on behalf of the complainant company by virtue of resolution. By the said explanation of PW.1 it is clear that he has got issued Ex.P.7 under due authorization on behalf of complainant company. Contents of Ex.P.7 clearly show that on behalf of complainant company as authorized person PW.1 got issued 16 Crl.A.No.756 of 2017
Ex.P.7-Legal Notice which is valid under Section 138 of the Act. Hence, above contention of accused also holds no water.
33.Ex.P.8 is the Postal Receipt while Ex.P.9 is Postal Acknowledgment.
It is enough if the notice is sent either by Registered Post with Acknowledgment
Due or Courier. PW.1 mentioned in complaint and deposed in evidence that
Ex.P.7-Legal Notice was served on accused on 09-04-2013. Postal Stamp on Ex.P.9 also reflects the said date. Accused has neither denied nor admitted receipt of
Ex.P.7-Legal Notice but she has pleaded her ignorance about its receipt. Accused has not denied her address mentioned in Ex.P.7. Even in Ex.D.1-Statement of
Account also the very same address of accused is mentioned. When the Notice is sent by Registered Post to the correct address of accused it is deemed to have been served. Learned counsel for complainant has placed reliance on the decision of the
Hon’ble Supreme Court in C.C.Alavi Haji v. Palapetty Muhammed and another in
Criminal Appeal No.767 of 2007, dated 18-05-2007, wherein it was held that when
Notice is sent to correct address by Registered Post it has to be presumed under
Section 27 of the General Clauses Act that service of Notice has been effected.
Moreover, in the present case Ex.P.9 acknowledgment shows that Ex.P.7-Notice was received by accused.
34.Learned counsel for accused contended that except the name of accused no address of accused is mentioned on Ex.P.9 and on that ground alone it has to be taken that Notice was not served on accused and accordingly, accused is entitled for acquittal. Learned counsel for complainant submits that by oversight address of accused was not mentioned in Ex.P.9 but the Notice was duly served on accused. PW.1 admitted in cross-examination that in Ex.P.9 address of accused was not mentioned. Ex.P.9 is Postal Acknowledgment Card. Admittedly, it contains the address of advocate for complainant company. It is true that except the name of accused her address is not mentioned in Ex.P.9. Since the full address of advocate is mentioned in Ex.P.9 it was received by the advocate for complainant company. No doubt address of accused ought to have been mentioned in Ex.P.9. However, failure to mention the address of accused in
Ex.P.9 is not fatal to the complainant company, particularly as it contains the 17 Crl.A.No.756 of 2017 signature of accused. Having received Ex.P.7-Legal Notice accused has signed on
Ex.P.9 and accordingly, as per the address mentioned therein it was received by advocate for complainant company. In these circumstances, court is of the considered opinion that absence of address of accused on Ex.P.9-Postal
Acknowledgment is not fatal to the complainant company. Ex.P.9 establishes that accused has duly received Ex.P.7-Legal Notice. Hence, it cannot be stated that requirements under Section 138 of the Act are not fulfilled by complainant company.
35.Though accused received Ex.P.7-Legal Notice under Ex.P.9 neither reply was given nor accused paid Ex.P.5-Cheque amount. Only after receipt of summons accused made her appearance in Court. Strictly speaking, silence on the part of accused without issuing reply to Ex.P.7-Legal Notice, amounts to admission of contents of Ex.P.7. The fact remains that even after receipt of Ex.P.7-Legal
Notice accused has not paid amount covered by Ex.P.5-Cheque. I hold that complainant company clinchingly proved the guilt of accused beyond all reasonable doubt for offence under Section 138 of the Act. Point No.1 is accordingly answered in favour of complainant and against the accused.
Point No.2:
36.Court has carefully perused the judgment of the learned trial court and the grounds of appeal. Though Accused took the plea that the evidence was not correctly appreciated by the trial court this court is unable to accept the said contention of Accused for the reasons stated on Point No.1. Trial court has properly appreciated the evidence of PW.1, PW.2 and DW.1 and DW.2 and correctly relied on Exs. P.1 to P.11 and properly dealt with Ex.D.1 to D.8 and recorded finding of guilt against accused. All the grounds mentioned in the appeal have been discussed and answered on Point No.1. This Court is unable to take a different view from that of the view taken by the trial Court.
18 Crl.A.No.756 of 2017
37.Learned trial court has convicted accused for offence under Section 138 of the Act and sentenced her to undergo Rigorous Imprisonment for a period of Two Years and pay compensation of Rs.30,00,000/- under Section 357 of Cr.P.C.
within two months from the date of Judgment and in default to suffer Simple
Imprisonment for Six Months. Learned counsel for accused has not made any contention with regard to quantum of sentence of Imprisonment imposed against accused. Court has got power to impose sentence of Two Years imprisonment and compensation to the extent of double the Cheque amount. There are multiple cases against accused for offence under Section 138 of the Act. In these circumstances, the learned trial court has imposed appropriate sentence of imprisonment and fine against accused. Court is of the considered opinion that just and proper sentence of imprisonment and compensation was imposed against accused by the learned trial court and no interference is required in respect of sentence of imprisonment and compensation. Point No.2 is accordingly answered against the accused.
Point No.3:
38.In the result, Appeal is dismissed by confirming the Judgment dated 22-06-2017 passed by the learned IV Special Magistrate, Hyderabad in C.C No.62 of 2014.
39.Appellant/Accused is present. Bail bonds of accused shall stand cancelled forthwith. Appellant/Accused is committed to Prison to serve out the sentence of imprisonment, both substantive and default.
40.Send the trial Court record to VII Additional Chief Metropolitan
Magistrate’s Court, Hyderabad, along with copy of Judgment.
Dictated to Stenographer, transcribed and typed by her, corrected and
pronounced by me in the open court, on this the 13th day of July, 2021.
Sd/- x x x
SPECIAL SESSIONS JUDGE,
FAC. II ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD.
// True Copy //