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THE COURT OF THEII ADDITIONAL CIVIL JUDGE,(JUNIR DIVISION)
cum II Addl Judicial Magistrate of Ist class, BHIMAVARAM.
PRESENT: Smt N.Jyothi II Additional Civil Judge, (Junior Division)-cum II Addl. Judicial
Magistrate of Ist Class Bhimavaram.
Friday, this the 16th day of May, 2025.
CALENDAR CASE No.528/2021 Between:
Meragani Appa Rao, S/o.Appa Rao, aged about 61 years, R/o.Flat No.S3, Subhadra Residency, Bhimavaram – 2, Bhimavaram Mandal, West Godavari District.
...Complainant
And
Bandaru Veera Venkata Satyanarayana Murthy, S/o.Dharma Raju, aged 42 years, Occ: H.P. Gas Dealer, R/o.Dr.No.6-145, K.M., Street, Kothapeta – 53323, Eat Godavari District. … Accused
This case is coming on 14.05.2025 before me for final hearing in the presence of the Sri.Chilakalapudi Srinivas, Advocate for Complainant and of Sri I.Suresh Babu, Advocate for the Accused, upon hearing on both sides and upon perusing the material on record, the court delivered the following:
J U D G M E N T
1. The instant complaint filed against above noted accused is in respect of an offence punishable U/Sec.138 of Negotiable Instrument Act, 1881 (herein after called, in short, the N.I.Act).
2. Case of the complainant, as was projected is that: The complainant alleging that the accused borrowed an amount of Rs.17,50,000/- from him for his family necessities to discharge of his sundry debts and his business investment. Said amount was paid by the complainant to the accused by means of R.T.G.S transactions from his account maintained in Central Bank of India, Bhimavaram into the account of the accused in State Bank of India, Kothapeta, viz., Rs.4,50,000/- on 17.02.2018,
Rs.5,00,000/- on 20.02.2018, Rs.5,00,000/- on 28.02.2018 and Rs.3,00,000/- on 14.03.2018 respectively and said amount was credited to the account of the accused, who received it and executed promissory note on 14.03.2018, for the above said 2 CC.No.528/2021 Dt:16.05.2025
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amount, in favor of the complainant together with interest at 24% p.a., compounding with yearly rests. Again the accused borrowed an amount of Rs.35,00,000/- from the
Complainant for his family necessities, to discharge his sundry debts and his business investment on 14.04.2018 and he executed a promissory note on the even date in favour of the complainant agreeing to repay the said sum of Rs.35,00,000/- together with interest at 24% p.a., compounding with yearly rests.
2.1) On being demanded by the complainant to repay the above said two promissory notes debts, the accused issued three cheques viz., bearing Nos.118112, 118113 and 118115, dt. 15.10.2019 for Rs.15,00,000/- each (two cheques ) and for Rs. 12,00,000/- respectively drawn on account maintained in Federal Bank, Visakhapatnam Branch to the complainant towards part payment of the debt due under the said two promissory notes. Further the complainant presented the said three cheques issued by the accused for collection into his account in Karuru Vysya Bank Limited, Bhimavaram on 28.10.2019, those cheques were got returned under memos dt.29.10.2019 unpaid to him. Said cheques were dishonored for the reasons “Funds Insufficient”. Then, he got registered notice issued to the accused on 22.11.2019 through his Advocate to the accused demanding him to pay the amounts covered by the said three dishonored
Cheques, the accused received said notice on 30.11.2019, but kept quiet. The accused neither choose to issue reply notice nor to repay the amount. Hence he was constrained to file the complaint.
3. After filing sworn affidavit of the complainant, this case was taken on file for the offence U/Sec.138 of Negotiable Instrument Act 1881 against the accused. On appearance of accused, copies of case documents were furnished to him as required
U/Sec. 207 Cr.P.C. The accused was examined U/Sec.251 Cr.P.C, explaining the substance of accusation made against him. His plea is one of total denial and he pleaded not guilty and claimed to be tried.
4. During the course of trial, the complainant himself is examined as P.W.1, besides one of the attestors by name Karimojju Venkateswara Rao is examined as P.W.2 and got Exs.P1 to P9 marked. Exs.P1 to P3 are Original Cheque bearing No.188112, 188113 and 188115 drawn on Federal Bank, Visakhapatnam branch issued by the 3 CC.No.528/2021 Dt:16.05.2025
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accused to the complainant, for Rs.15,00,000/- each(Two cheques)and Rs.12,00,000/-
dated 15.10.2019 respectively; Ex.P4 and P5 are areoriginal payslips and cheques
return memos issued by the Karuru Vysya Bank Limited, Bhimavaram, dt.28.10.2019 ( each three in number); Ex.P6 and P7 are attested copies of promissory notes executed by the accused in favour of the complainant, dt.14.03.2018 and 14.04.2018 respectively; Ex.P8 is the Office copy of registered legal notice, dt.22.11.2019; and
Ex.P.9 is Postal acknowledgment from the accused, dt.30.11.2019. On behalf of
Accused, neither oral nor documentary evidence is adduced.
5. After closure of the evidence on behalf of the complainant, the accused was examined U/Sec.313 Cr.P.C explaining the incriminating material found against the accused in the evidence of prosecution witnesses. In 313 examination, accused denied the same and reported defence evidence. Later, the accused counsel reported no defence evidence. Hence the matter is posted for arguments.
6. I have heard the arguments of learned counsel of Sri.Chilakalapudi Srinivas,
Advocate for Complainant and of Sri I.Suresh Babu for the accused. Perused the written argument filed by the both parties. Both parties advanced their oral arguments at length on maintainability of complaint.
7. Now the points for consideration are;
i)Whether the complainant had succeeded in establishing his case that, there is legally enforceable debt, and if so; ii)Whether the accused has dispelled the presumption as envisaged under Sec.139 of N.I.Act with preponderance of probabilities?
8. Before adverting to discussion on the case of the both the parties, it is germane to mention the necessary requirements to constitute for an offence under section 138 of NI Act. In a case of Jagadish Sangal Vs., Samsheer Singh Gogi reported in (2009) 14 SCC 683. The Hon'ble Supreme Court of India noted following ingredients which are required to be fulfilled:-
i) The accused must have drawn a cheque on account maintained by him in the bank for payment of certain amount of money to another person from and out of that account. ii) The cheque should have been issued for discharge of in whole or in part of any debt or other liability.
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iii) That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity which ever is earlier iv) That the cheque is returned by the bank either because of amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arrange to be paid from that account by an agreement may with the bank.
v) The payee or holder in due course of the cheque makes a demand for payment of the said amount of money by giving notice in writing to the drawer of the cheque within one month from the date of receipt of information by him from the bank regarding return of the cheque unpaid. vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or holder in due course of the cheque within 15 days of receipt of said notice.
9. In order to avoid the repetition of evidence and better understanding the points 1 and 2 are going to be discussed together.
10. In order to prove the case of the prosecution U/Sec.138 of N.I.Act, the complainant is bound to prove that there is legally enforceable debt and in discharge of said debt, accused had issued cheque, either whole or in part, and the said cheque was returned by the Bank unpaid for the reasonFunds InsufficientIf the
holder of cheque establishes that he legally received the cheque from the
drawer, the presumption under Sec.139 of the Act, follows to the effect that there exists a legally enforceable debt in between the parties and cheque was issued for discharge of the said debt unless contrary is proved. It is pertinent to note that, the
Court shall presume that every Negotiable Instrument was made or drawn for consideration and the said presumption is rebuttal in nature and those presumptions shall come into play, when once accused admitted his signature on promissory notes, and also on the cheques in question.
11. In view of rival contentions of both the parties, the court has to consider whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumptions contemplated by section 139 of the Act. Being cumulative, it is only when all the above ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed the offence under section 138 of
Negotiable Instrument Act.
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12. Presentation of impugned cheques i.e., Exs.P1 to P.3 for enchantment and dishonor of the cheques for the reasons “FUNDS INSUFFICIENT” is not disputed fact as it is matter of record by the cheque return memos/Exs.P5. Therefore, it is a matter of record and has been proved that the cheques were presented within it’s validity period and dishonored by the banker of the accused. It is also not disputed that Exs.P1 to P.3 cheques were issued by the accused and it was drawn on it’s account maintained by him as he has admitted his signature on the cheques.
13. Mainly, the learned counsel for the both parties have argued seriously about the maintainability of the compliant for the reason that cheque numbers which were mentioned in the legal notice, complaint and chief affidavit are different. On careful perusal of the complaint, legal notice/Ex.P.8, chief affidavit coupled with
Exs.P.1 to P.3 the cheques numbers were not tallied. On careful perusal of the record the complainant mentioned the cheques numbers as 118112, 118113 and 118115, dt. 15.10.2019 drawn on Federal Bank, Vishakapatnam branch in his legal notice and complainant, but he filed Original Cheques bearing Nos.188112, 188113 and 188115 drawn on Federal Bank, Visakhapatnam branch issued by the accused to the complainant, for Rs.15,00,000/- each(Two cheques)and Rs.12,00,000/- dated 15.10.2019 respectively and same were marked. Except the cheque numbers the amount of three cheques, Bank name and dates of the cheques correctly noted in the legal notice and the complaint. On careful perusal of Exs.P.1 to P.3 and
P.5/Cheque returned memos (3 in number) contained the same cheque numbers,which are filed before the court alongwith the complaint and which are already on record. In this regard the learned counsel for complainant has relied on following citations:
(1) Newport Express Services Private Limited & Others V/s. The state of West
Bengal & Another, dt. 07.04.2010.
(2) 2003 SCC OnLine A.P. 1512 Kavuri Suwarna Bala Sundaram V/s. Karnati
Poorna Chandra Rao and Another,wherein the Hon’ble High Court of A.P. at Hyderabad held that mentioning of the Cheque number of the dishonored cheque is wholly unnecessary and irrelevant in a proceeding U/sec. 138 N.I.Act. In view thereto the fact that there is a variation in the number of the cheque mentioned in the notice of dishonour and in the body of the complaint and the 6 CC.No.528/2021 Dt:16.05.2025
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cheque that is filed into court is of no sequence when in the notice of demand the amount covered by the dishonored cheque is correctly mentioned.
In contra the learned counsel for the accused has relied on following citations:- (1)
K.R. Indiira V/s. Dr. G. Adinaryana, 2003 (7) Supreme 741, wherein the Hon’bel Apex
Court held that Negotiable Instruments Act. 188- Section 138 (b) – Prosecution for dishonor of cheque – Acquittal on ground that notice did not meet requirement of law i.e., proviso to clause (b) of Section 138 of the Act – One common notice of demand was sent by two complainants and High Court held that common notice was not in accordance with law . there was a specific demand for payment of sum covered by cheque, mere fact that it was a consolidated notice, may not invalidate it- Demand notice in the case in question had not raised demand of cheque amount but amount of loan- Notice was imperfect as it did not specifically contain any demand for cheque amount-Acquittal could not be interfered with.
(2) Parth Chauhan V/s. Subhash Chander wherein the Hon’ble High Court of
Punjab and Haryana at Chandigarh held that the learned trial Court while discussing the merits of the case observed that in the legal notice the cheuqe number was wrongly mentioned as 875208 and the cheque which has been filed with the complaint bears No.975208. Apart from the above in the legal notice it has been mentioned that the complainant stood surety for a loan taken by the accused from nationalized bank which was factually wrong statement.
(3) The Hon’ble Sri Justice K.Surender in Criminal Appeal No.1589 of
2009 – whereinit was held that when the description of the cheque was not correctly intimated to the accused, requirements under section 138 of Negotiable Instruments Act, 1881 is not met. For the said reasons, the acquittal recorded by the learned Magistrate cannot be interfered with.
With reference to the above rival contentions the court has to see whether issuance of notice for attracting offence under sec. 138 NI Act is mandatory or not and what are the requirements of statutory Notice under section 138 NI Act. When a cheque is dishonored due to funds insufficient or Account closed in the drawers account or payment stopped by the drawer, it is punishable under section 138 of NI Act. However, one of the most important formalities to be followed under the said provision is the legal notice for the dishonour of the cheque. Therefore a proper service of statutory notice after dishonour of cheque is mandatory for maintainability of case under section 138 of NI Act. Since section 138 NI Act statutory notice is important for raising cause of action and to file case against the drawer of the cheque, as mentioned in the provision under section 138 NI Act. The law 7 CC.No.528/2021 Dt:16.05.2025
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regarding legal notice for cheque bounce is available under (c) and (b) of section 138 of NI
Act “the payee or the holder in due course of the cheque makes a demand for the payment of said amount by giving statutory notice in writing to the drawer of cheque within thirty days of the receipt of said notice by him from the cheque return memo date by the banker as unpaid” it means that once the payee issued cheque and same was dishonored the thirty days period was given to the holder of the cheque to serve legal notice to the drawer of the cheque regarding the payment and later 15 days time, from the date of receipt of notice, was given to the drawer of the cheque, so as to facilitate him to pay the amount. If he fails to pay the amount within such 15 days period i.e., from the 16th day, the cause of action would arose for filing complaint under sec. 138 of NI Act. A point is to be noted that 15 days should be given to the drawer of the cheque for payment. In other words, after receiving a legal notice for cheque dishonor, it is the duty of drawer of the cheque to repay the debt amount within a period of 15 days of receiving such notice. Otherwise, the payee gets the right to take legal action. Hence, the cause of action arises from the 16th day after serving the cheque dishonoured notice to the drawer. Statutory notice is to be addressed to the person who drew the cheque which has been dishonoured for the reasons stated supra. Therefore issuance of legal notice is mandatory to the drawer of the cheque.
14. In order to attract the offence under section 138 NI Act the complainant has to prove all the ingredients for the offence under sec. 138 NI Act. Out of which issuance of statutory notice under section 138(c) is the major ingredient to attract the offence under section 138
NI Act. So, far as statutory notice is concerned,on perusal of the Clause (c) of section 138 of NI Act with naked eye, the 15 days notice calling upon the accused for payment is mandatory and it is one of the ingredients to attract the offence under section 138 of NI
Act. Therefore, now the court has to see whether the complainant has complied the mandatory requirement.
15. Undoubtedly, issuance of statutory notice is mandatory. On careful perusal of the citations which are failed by the both parties, the following citation which held by
Hon’ble Supreme Court is recent one in case of Haritha Rakesh Enterprises &
Others V/s. North en Minerals Limited, Hyderabad & Anotaher, 2010 SCC On
Line AP 117,wherein the Hon’ble High Court of A.P. at Hyderabad held that “there is nothing in Sec. 138 of N.I.Act to show that the number of the dishonored cheque should be mentioned either in the 8 CC.No.528/2021 Dt:16.05.2025
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Statutory notice or in the complaint. The number on the cheque has no relevancy in a proceeding under Sec. 138 N.I.Act”. When there is citation of Hon’ble Apex Court which is subsequent to the previous Judgment, said recent Judgment would prevail, as such I relied on it and taking the assistance of said authority it can be safely said that mere the cheques numbers wrongly noted in the complaint and statutory notice/P8 when correct cheques/Exs P1 to 3 are filed before the board and said correct cheques are got marked on behalf of the complainant. Thus, it is not fatal to the case of complainant.
Further on conjoint reading of the purport of Hon’ble Court judgment and ingredients under section 138 NI Act the payee must make a demand of repayment of cheque amount after it’s dishonor but mentioning of cheque number is not mandatory as discussed in the above said section. Coming to the case on hand except the cheque numbers, the dates of cheques, amounts mentioned on those cheques/Exs.P.1 to P.3 and bank name of cheques are one and the same which are mentioned in the legal notice and chief affidavit. Therefore mere variation of cheque numbers mentioned in the legal notice/Ex.P.8, and in the complaint and the cheques that are filed into the Court is of no consequence when, in the notice of demand the amount covered by dishonored cheques is correctly mentioned as held in case of Kavuri Suwarna Bala Sundaram. Therefore the contention of the accused that case is not maintainable U/sec. 138 N.I.Act on the said ground and the complainant shall not be deemed to be complied statutory notice U/sec. 138 (c) of N.I.Act would not maintainable. Hence, rejected. Having considering the discussion made inter alia and authority relied on by the complainant the Court safely held that the complainant complied the mandatory requirement of issuance of statutory notice U/sec. 138 (c) NI Act. Accordingly, the the complaint u/sec. 138 NI
Act is maintainable.
Legally enforceable debt:
16. Now let us see other important ingredients of section 138 NI Act whether there exists legally enforceable debt between the complainant and accused.
Coming to the oral evidence of P.W.1 he reiterated the contents of complaint in his chief examination. The evidence of complainant would show that he has 9 CC.No.528/2021 Dt:16.05.2025
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acquaintance with the accused when he ran Rice Mill. Admittedly, some financial transactions have been taken place among himself, accused and Vardineedi
Suresh Babu in the year, 2017. It is elicited that P.W.1 mortgaged his Rice Mill to the said bank to IDBI Bank, but he denied that he obtained 15,00,00,000/- of loan from the IDBI Bank of Palakol. Significantly, the learned counsel for the accused suggested to P.W.1 that the accused executed six blank signed promissory notes and cheques in his favour. Admittedly, to the surprice of the court the complainant/P.W.1 deposed that no financial transactions have been taken place between him and accused on 14.03.2018 and that no document is filed to show that he has transferred the amount from his bank to the Bank account of the accused on 14.03.2018 through R.T.G.S.
17. The main contention of the complainant is that he send the amount by means of
R.T.G.S. transactions from his account maintained in Central Bank of India,
Bhimavaram into the account of the accused in State Bank of India, Kothapeta, viz.,
Rs.4,50,000/- on 17.02.2018, Rs.5,00,000/- on 20.02.2018, Rs.5,00,000/- on 28.02.2018 and Rs.3,00,000/- on 14.03.2018 respectively and said amount was credited to the account of the accused who received it and executed promissory note on 14.03.2018 in favour of the complainant together with interest at 24% p.a., compounding with yearly rests. Again the accused borrowed an amount of
Rs.35,00,000/- from the Complainant for his family necessities, to discharge of his sundry debts and his business investment on 14.04.2018. So,the accused executed two promissory notes on the even dates in favour of the complainant agreeing to repay the said sum of Rs.35,00,000/- together with interest. However for the reasons best known to him he did not choose to filed Bank Statement of the relevant dates.
18.1) Added to it, the complaint filed notarized xerox copies of pronotes/Ex.P6 & P7 showing that the accused borrowed Rs.17,50,000/- and Rs.35,00,000/- and to prove those transactions. The complainant failed to file Bank Statement showing R.T.G.S.
transaction for Rs.17,50,000/- and Original Pro notes for the two amounts i.e.,
Rs.17,50,000/- and Rs.35,00,000/-. On careful perusal of the complaint and the Chief 10 CC.No.528/2021 Dt:16.05.2025
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affidavit of P.W.1 there is no whisper why he could not file original Pro notes of Exs.P.6 and P.7. In the absence of averment in the complaint and reason for not filing original pro notes even at the time of trial, the case of complainant is doubtful. Even fact is otherwise, notarized xerox copies of pro notes/Exs.P.6 &7 are in admissible documents as per the Indian Evidence Act. Therefore, Exs.P.6 &7 are not considered.
Significantly, he admitted that he does not know when xerox copies of promissory notes are notarized by notary Public.
18.2) To prove his contention the complainant has got one of the attestor’s of Ex.P6 and Ex.P.7 examined as P.W.2,who stated that the complainant gave 70 bundles of
Rs.500/- notes, but surprisingly he stated that he doesn’t know whether accused counted or not. So the said statement itself created doubt regarding his presence at the time of alleged transactions. A pronote is not a compulsory attestable document.
Even the evidence of P.W.2 is ignored the complainant failed to prove the legally enforceable debt between him and the accused. Having considering the discussion made interalia and when the complainant failed to prove legally enforceable debt and execution of pronotes in his favour the preemption U/sec. 118 shall not be drawn in favour of the complainant. Here the total amount said to be covered under Ex.P.6 and
P.7 is Rs.52,50,000/- which is huge amount. However, the complainant neither filed the source of income proof nor Bank Statements pertaining to relevant period and Original
Promissory notes as well. Added to it Pw.1 mortgaged his rice mill and obtained loan.
So, his financial capacity is doubtful in the absence of cogent evidence. Therefore, the court safely held that the main ingredients Sec. 138 N.I.Act are not proved by the
Complainant.
19. So, keeping in view of the discussion made interalia the court can safely concluded that pronotes/Exs P6 and 7 are not executed by the accused and cheque was not issued by him in favour of the complainant in part or whole in discharge of legally enforceable debt covered U/sec. Exs.P.6 and Ex.P.7 which are in admissible documents. Thus, the presumption under sections 118 and 139 of NI
Act shall not be drawn in favour of complainant.
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20. Furthermore, the learned counsel for the defence has seriously argued that
P.W.1/complainant did not show the amount in his income tax returns, as such said money is unaccounted money and thus the complainant failed to prove his financial capacity. Therefore the question of not proving financial capacity of the complinant is probable defence would maintainable. The testimony of P.Ws.1 and be impeached by the accused regarding financial transactions.
21.1) The learned counsel for defense has argued that the complainant is failed to prove his financial capacity that he had an amount of Rs.52,50,000/- as on the date of alleged transactions under pronotes I.e on 14.03.2018 and 14.04.2018. At this juncture, It is is worth to remind the authority held in case of K.Subramani vs.
K.Damodara Naidu (2019) 5 Supreme Court 418 ; (2019) 5 Supreme Court (Cri)
571; (2019) SCC Online SC 491 where in his lordships held that “Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant/ accused”.Basilingappa
Vs.Mudibasappa – 2019(5) SCC 418 wherein the Hon’ble Apex Court held that
:
“it is observed that the complainant is silent as to his source of income at present. He has nowhere specified as to what is he working and his earning to show his position to lend amount as specified
It is pertinent to note that the complainant financial capacity when being questioned it was incumbent on part of the complainant to have explained his financial capacity as the court cannot insist a person to have lead negative evidence. However the complainant failed to prove the execution of pronotes and transfer of amounts by way of RTGS transaction. Thus, as held in the authority referred above the complainant need to prove his financial capacity and that there was existence of debt between him and the accused. In this regard, the learned counsel for accused has seriously contended that since the complainant failed to file his bank statement of relevant period in spite of availability an adverse inference to be drawn. At this juncture it is appropriate to abstract section 114 of Indian Evidence Act:
Section 114. Court may presume existence of certain facts:
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The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
21.2) On plain reading of (g) of Section 114 of Indian Evidence Act with naked eye, the evidence which could be and is not produced an adverse inference can be drawn against such person. P.W.1 categorically stated that he send an amount of
Rs,17,50,000/- from his account to the account of accused by way of RTGS transactions i.e Rs.4,50,000/- on 17.02.2018, Rs.5,00,000/- on 20.02.2018,
Rs.5,00,000/- on 28.02.2018 and Rs.3,00,000/- on 14.03.2018 respectively and said amount was credited to the account of the accused. However he did not file the same, though his contention is that he gave the amount under pronote through online transfer. Here, it is the case under section 138 NI Act the complainant has to prove that there is a legally enforceable debt between him and the accused, and that towards discharge of said debt, the accused has issued said cheques/Exs.P 1 to 3. So, in order to prove the legally enforceable debt he got Ex.P6 &7 /pronotes marked. The moment execution of pronotes is proved the court draws the presumption under section 118 of negotiable instrument Act that those instruments are supported with consideration.
However said presumption is re-buttable presumption. The accused can rebut those presumptions either by direct evidence or relying on the materials brought on record by the complainant. The re-buttable of presumptions and onus of proof on the accused is on preponderance of probabilities as that of in civil cases. When the complainant himself stated that he transferred the amount through RTGS transaction, it is his duty to prove the same. However, he failed to file said document(bank statement) which is very much available to him. In-spite of best available evidence with him,he failed to produce the same, as rightly contended by the accused,thus an adverse inference can be drawn against the complainant. Therefore, it can be safely said that the complainant failed to prove the transaction and that consideration exists between him and the accused.
22. Added to it, as discussed in preceding paras, Exs.P6 and P7 are not considered as the complainant failed to prove genuinity of said instruments. Said instuments 13 CC.No.528/2021 Dt:16.05.2025
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are inadmissible documents. Thus, the complainant is failed to prove his financial capacity and source of his income as well. As discussed earlier the complainant failed to prove passing of consideration and existence of debt between him and the accused. The learned advocate for the accused has cross-examined P.W.1 at length on his financial capacity and source of income and his evidence is impeached in respect of transactions and source of income. Thus,the court can safely held that the complainant has failed to prove his financial capacity.
23. Having considering the discussion made inter alia, it can be safely said that the complainant has proved the execution of pro-notes/Ex.P6 and P7 and issuance of Cheques/Exs.P 1 to 3 by the accused. Thereby presumptions are not drawn in favour of complainant that the pronotes were supported with consideration and cheques were issued in discharge of enforceable debt or liability. Thus the presumptions under section 118 and 139 of NI Act are not drawn in favor of the complainant. Having considering the evidence and authority referred above it can be conveniently opined that, cheques/Exs.P1 to P3 are not issued infavor of the complainant towards discharge of legally enforceable debt in whole or in part.
24. For the foregoing reasons, as the complainant had failed to establish that there is legally enforceable debt between him and accused passing of consideration, after the accused has dispelled the presumption as envisaged under section 139 on preponderance of probabilities. In that view of the mater, I hold that, case of complainant stands not proved for the offence leveled against the accused and hence I find that, accused is not guilty for the offence under Sec.138 of NI Act.
Consequently, I found that, accused is not guilty of the offence for issuing Ex.P1 to 3/cheque towards legally enforceable debt. Which was returned unpaid with an endorsement of ‘funds insufficient” with ill intention to deceive the complainant.
Therefore, the accused did not commit the offence U/s138 of NI Act, as such he is not found guilty for the offence U/s. 138 of NI Act. Accordingly, the above two points are answered in favour of the accused and against the complainant.
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25. In the result, the accused is not found guilty for the offence U/s.138 of
Negotiable Instrument Act. Accordingly, he is acquitted under section 255 (1)
Cr.P.C for the offence U/sec. 138 of NI Act. The bail bonds of the accused if any shall stand cancelled after expiry of six months as per section 437A of Code of
Criminal Procedure.
Typed to my dictation, by the Personnel Assistant, corrected and pronounced by me in open Court, this the 16 th day of May, 2025.
II Additional Judicial Magistrate of First class, Bhimavaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT:
P.W.1: Meragani Appa Rao P.W.2 : Karimojju Venkateswara Rao.
FOR ACCUSED:-
NONE
DOCUMENTS MARKED
FOR COMPLAINANT :
Ex.P1:15.10.2019Original Cheque bearing No.188112 drawn on Federal Bank, Visakhapatnam branch issued by the accused to the complainant, for Rs.15,00,000/-. Ex.P2:15.10.2019Original Cheque bearing No.188113 drawn on Federal Bank, Visakhapatnam branch issued by the accused to the complainant, for Rs.15,00,000/-. Ex.P3:15.10.2019Original Cheque bearing No.188115 drawn on Federal Bank, Visakhapatnam branch issued by the accused to the complainant, for Rs.12,00,000/-. Ex.P4:28.10.2019Original three pay in slips issued by the Karuru Vysya Bank, Limited., Bhimavaram, dt.28.10.2019. Ex.P5:28.10.2019Three cheques return memos issued by the Karuru Vysya Bank Limited, Bhimavaram. Ex.P6:14.03.2018Attested copy of promissory note executed by the accused in favour of the complainant. Ex.P7:14.04.2018attested copy of promissory note executed by the accused in favour of the complainant.
15 CC.No.528/2021 Dt:16.05.2025
II AJCJ,BVRM.
Ex.P8 :22.11.2019Office copy of registered notice issued by the complainant’s Advocate to the accused. Ex.P9 :30.11.2019Original Postal acknowledgment from the accused.
FOR ACCUSED:
NIL
MATERIAL OBJECTS MARKED:
-Nil-
II Additional Judicial Magistrate of First class, Bhimavaram..
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16 CC.No.528/2021 Dt:16.05.2025
II AJCJ,BVRM.
Form No. 72
Calendar and Judgment District of West Godavari District Calendar of cases tried by the II Additional Judicial Magistrate of First class, Bhimavaram
Judgment in Calendar Case No.528/2021
Nature of Offence: Under Section 138 of Negotiable Instrument Act
Date of Judgment : 16.05.2025
Date of Date ofDate of Date of Date of Date of offenceReport of appearance of commencement of closure of sentence or Complainantaccusedtrialtrialorder 22.11.201910.01.202010.12.202110.06.202422.10.202116.05.2025
Explanation for the delay: Due to non production of witness.
Judgment in Calendar case No.528/2021 on the file of II Additional Judicial Magistrate of
First class, Bhimavaram.
Complainant:S/o.Appa Rao, aged about 61 years, R/o.Flat No.S3, Subhadra Residency, Bhimavaram – 2, Bhimavaram Mandal, West Godavari District.
Accused:Bandaru Veera Venkata Satyanarayana Murthy, S/o.Dharma Raju, aged 42 years, Occ: H.P. Gas Dealer, R/o.Dr.No.6-145, K.M., Street, Kothapeta – 53323, Eat Godavari District. . Pleaded : Not Guilty
Finding : Accused is found not Guilty.
Sentence of order: In the result, the accused is not found guilty for the offence U/s.138 of Negotiable Instrument Act. Accordingly, he is acquitted under section 255 (1) Cr.P.C for the offence U/sec. 138 of NI Act. The bail bonds of the accused if any shall stand cancelled after expiry of six months as per section 437A of Code of Criminal Procedure.
II Additional Judicial Magistrate of First class, Bhimavaram. . Copy submitted to: The Hon’ble I Addl. District & Sessions Judge, West Godavari, Eluru.