IN THE COURT OF THE PRL., SESSIONS JUDGE, AT PEDDAPALLI.
Present: - SRI D.HEMANTH KUMAR, Prl. Sessions Judge, Peddapalli.
TUESDAY, THE 28 th DAY OF JANUARY, 2025.
CRIMINAL APPEAL. No. 35 of 2022 in C.C No.251 of 2016 (On the file of Judl. Magistrate of First Class, Peddapalli)
Between: Aitham Ravi, s/o Rayamallu, 40yrs, occ: Business, R/o Maredugonda v/o Peddapalli Mdl. In Dist. Peddapalli.
…… Appellant/Accused AND
1.The State through Public Prosecutor, Peddapalli
2.Thakur Rajaram Singh (died)
3.Thakur Thakur Sabitha, w/o late Rajaram Singh, 46yrs, occ: Housewife,
4.Thakur Vineela, w/o Abhilash, 29yrs, occ: Household,
5. Thakur Sai Sathish Singh, s/o late Raja Ramsingh, 27yrs, occ: Private Employee
6.Thakur Sai Prasanna, D/o late Rajaram Singh, 25yrs, occ: Household
All are R/o H.No. 4-1-19/2, Bandiwada, Peddapalli
Respondents//Complainant/LRs of Complainant
On Appeal against the Judgment passed by the Judicial
Magistrate of First Class, Peddapalli on 22-11-2022 in C.C
No. 251 of 2016
Between:
Thakur Rajaram Singh, s/o Vkiram Singh, 49yrs, occ: Business, R/o H.No. 4-1-19/2, Balajinagar, Post & Dist: Peddapalli ……. Complainant AND
Aitham Ravi, s/o Rayamallu, 40yrs, occ: Business, R/o Maredugonda v/o Peddapalli Mdl. In Dist. Peddapalli
...Accused
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CRIMINAL APPEAL FILED UNDER SEC. 374(3) of Cr.P.C
This Appeal is coming before this court on 21.01.2025 for hearing in the presence of Sri R.Suresh Babu, Advocate for Appellant/ Accused and Sri G.Malla Reddy, Advocate for Respondent/complainant, having been heard and having stood over for consideration till this day, the court delivered the following:-
:: J U D G M E N T ::
1. This Criminal Appeal is filed by the appellant-accused U/s.
374(3) of Cr.P.C, aggrieved by the Judgment dated 22.11.2022 passed by the learned Judl. Magistrate of First Class, Peddapalli in
CC No.251 of 2016, wherein and whereby, the learned Magistrate
has found the accused guilty for the offence punishable under
Section 138 of the Negotiable Instruments Act, convicted and sentenced him to undergo Rigorous imprisonment for a period of
Eight (08) months and to pay Rs.6,50,000/- (Rupees Six Lakhs Fifty
Thousand only) towards compensation to the complainant under
Section 357(3) Cr.P.C, within three months, in default to suffer simple imprisonment for a period of two months for the offence under Section 138 of the Negotiable Instruments Act.
2. For the sake of convenience and to avoid ambiguity, the parties will be referred to the same as they were arrayed before the trial court.
3.The case of the complainant, in brief is, as follows:
The complainant and the accused are acquainted with each other, due to such acquaintance, the accused approached the 3 of 24
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complainant and requested a sum of Rs.5,25,000/- (Rupees Five lakhs
Twenty five thousand only) to meet his business needs. Considering the request of accused, the complainant advanced the above said amount as hand loan on 03.02.2016 and after receipt of the same, accused promised to repay the borrowed amount within one month.
Even after the lapse of stipulated period, the complainant demanded the accused to repay the borrowed amount, on that accused issued a cheque bearing No. 877720, dated 01.03.2016 to the complainant drawn on State Bank of Hyderabad, Peddapalli branch in discharge of his liability.
4.After receipt of the above cheque, the complainant deposited the same into his bank account, but surprisingly, the said cheuqe was returned with an endorsement of “funds insufficient” and issued a
Cheque return Memo, dated 02.03.2016. That the accused issued a cheque for the borrowed amount to the complainant was dishonoured due to insufficient funds, thereupon the complainant got issued a statutory legal notice to the accused on 08.03.2016 demanding him to repay the cheque amount within 15 days from the date of receipt of same, and the same was received by the accused on 11.03.2016, but even after receipt of the said legal notice, the accused gave reply with false and baseless allegations. When the accused failed to repay the 4 of 24
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cheque amount within the statutory period, so that, the complainant filed the complaint against the accused. Hence, complaint.
5.After recording the sworn statement of complainant and considering the facts, the trial court took cognizance of the case for the offence U/s. 138 of Negotiable Instruments Act against the accused and issued summons to him.
6.On receipt of summons, accused appeared before the trial court and supplied with the copies of complaint as contemplated U/s. 207
Cr.P.C.
7.The accused was examined U/s. 251 Cr.P.C. by explaining the substance of accusation alleged against him for the offence U/s. 138 of
Negotiable Instruments Act, for which he denied the same and claimed to be tried.
8.In order to prove his case, the complainant examined himself as
Pw.1, and got marked Ex.P1 to P7 and Ex.D1 to D5.
9.After closure of complainant’s evidence, accused was examined
U/s. 313 Cr.P.C. by explaining the incriminating material found against him, for which he denied and reported evidence.
10.On behalf of accused, Chief Manager of State Bank of India, ADB,
Peddapalli namely V.Gopala Krishna Murthy examined as Dw.1, through him, Ex.D6 is marked, 5 of 24
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11.After considering the oral and documentary evidence, the trial court convicted the accused U/s. 255(2) Cr.P.C. for the offence U/s. 138 of Negotiable Instruments Act, as referred supra.
12.Aggrieved by the above said impugned Judgment, the appellant/accused filed the present appeal with the following grounds:
I). The trial court failed to consider the oral and documentary evidence, more particularly failed to arrive to the conclusion that the cheque is pertaining to the firm and wrongly observed in the impugned Judgment that the accused has taken loan in his personal capacity by issuing subject cheque in question, whereas no such pleading was taken in the complaint.
ii)The appellant rebutted the presumption U/s. 118 and 139 of
Negotiable Instruments Act by examining Pw.1 and Dw.1 and also by exhibiting that the cheque containing the seal and stamp of firm. In order to rebut the legal presumptions, the accused need not require to lead any direct evidence.
Iii)The appellant further took a specific plea that the Managing direction of company not signed the cheque and even the accused in his capacity as Managing Director of the company, consequently, across the cheque, the stamp of company which is presented does not satisfy the statutory requirement U/s. 138 of NI Act.
iv)Even after receipt of statutory notice, the appellant/accused gave a reply notice by taking a specific plea that the cheque pertains to the company and the said company has to be made as party, but the respondent/complainant failed to do so and the complainant failed to show the vicarious liability of the accused. Thereby, the applicability of 6 of 24
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Sec. 141 of Negotiable Instruments Act clearly supports the version of appellant.
v)Further more, there are several contradictions and omissions in the evidence of Pw.1 which are all material to prove the innocence of appellant/accused. For all these reasons, the impugned Judgment passed by the trial court deserves to be set aside, in the interest of justice.
13.Heard both sides and perused the record.
14.Now the points that arise for determination are:
1. Whether the impugned judgment of the trial court suffered from any illegality or irregularity and it requires interference of this court?
2. To what relief?
POINT No.1:
15.In order to prove the offence under Section 138 of Negotiable
Instruments Act, 1881, the following ingredients are required to be proved by the Complainant.
a) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account maintained by him.
b) The said cheque is issued for the discharge, in whole or in part, of any debt or other liability.
c) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
d) 30 days demand notice is issued by the payee or the holder in due course on receipt of information by him from the bank regarding the dishonour of the cheque.
e) The drawer of said cheque fails to make the payment of the said amount of the money to the payee or the holder in due course within 15 days of the said notice.
f)The debt or liability against which the cheque was issued is legally enforceable.
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16.The complainant in support of his case filed his evidence affidavit in lieu of chief examination by reiterating almost all the averments made in the complaint, through him Ex.P1 to P7 are marked.
17. The main stand of the complainant as Pw.1 by contending that keeping the acquaintance in between them, he advanced an amount of Rs.5,25,000/- to the accused on 03.02.2016. At that time, accused promised to repay the borrowed amount within one month. Even after lapse of said period, Pw.1 demanded the accused to repay the borrowed amount, then, the accused gave Ex.P1 cheque. Later, he deposited the same and received Ex.P2-Cheque
Return memo, dated 02.03.2016 with an endorsement that “funds insufficient”. Subsequent thereto, he issued Statutory legal notice under Ex.P4, dated 8.3.2016. To strengthen his contentions, he relied Ex.P7-Postal receipt, dated 08.03.2016 and Ex.P6-Postal
Acknowledgment card.
18.He further relied Ex.P7-Reply notice, dated 24.03.2016 to show that the accused counsel gave a reply notice, dated 24.03.2016, the sum and substance of Pw.1 evidence in chief is that the accused failed to repay the loan amount, even after receipt of statutory notice. In those circumstances, he constrained to file the main complaint.
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19.The learned counsel for the accused cross examined the Pw.1 about his financial capacity and also to ascertain whether he was tax payer or not and also he has not filed any record to show that he is having bank balance of Rs.5,25,000/- in his account prior to 03.02.2016, for which, the witness clarified that he used to kep the liquid cash at his home for his business purpose.
20.The learned counsel for the accused tired to impress upon the court from the cross examination of Pw.1 that as per Ex.P1 cheque, it pertains to Account No. 62189032672 and it belongs to SBH, ADB,
Peddapalli Branch. He further tried to impress upon the court that the Manager of one Bank will not have knowledge with regard to account of the other bank. At one point of time, Pw.1 admitted that
Ex.P1 does not belong to SBH main branch, as it belongs to
SBH,ADB Branch. It is further evident that Ex.P1 cheque return memo contains the seal and stamp of SBH main branch, Peddapalli, but it does not contain the seal and stamp of ADB, Peddapalli. Pw.1 clearly admitted that he did not obtain any document from the accused in connection with monitory transactions. Pw.1 admitted that he sent Ex.P4-Legal notice to the accused and received Ex.P7-
Reply notice. Of course, a specific suggestion put to Pw.1 that he does not know the contents of Ex.P7- Reply notice. It can not have any significance except introducing the stand of the accused in it.
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21.The learned defence counsel tried to impress upon the court that one case was registered against K.Rajesh, based on the complaint of accused in Cr.No. 98/2016 of Peddapalli PS on the ground that Rajesh stolen a blank cheque pertaining to M/s.
Vaishnavi Constructions. Ex.D1 is the certified copy of FIR. On perusal of Ex.D1, dated 14.05.2016, whereas there is reference about Ex.P1, dated 01.03.2016, thereby it is clear that the accused after taking two and half (2 ½ ) months time leisurely filed a private complaint against his alleged clerk Rajesh and got issued Ex.D1-FIR.
Ex.P7-Reply notice, dated 24.03.2016 at the 1st instance, denied the statutory notice averments and in the penultimate para of the notice, a specific plea was taken that in fact one Kuchanapalli
Rajesh, who worked as Gumasta in Laxmi Canvassing Agency and
Lorry Supply office, Peddapalli, there was a dispute between them, keeping it in mind, Rajesh committed theft of some valuable documents and one blank cheque signed by him on behalf of above said constructions, which was not functioning and closed the same.
His client also filed a complaint before the Judl. Magistrate of F.C.,
Peddapalli and it was referred to the police, but the contents of
Ex.D1 clearly goes to show that subsequent to Ex.P7-Reply notice only that private complaint referred to police station and the same was registered as Ex.D1. This court compelled to arrive to such conclusion for the simple reason that the crime number in Ex.D1 not 10 of 24
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referred in Ex.P7-Reply notice. When this court carefully gone through Ex.D1, undoubtedly, as an after though only, the accused got filed a private complaint and brought into the existence of
Ex.D1. Further more, it is to be enlightened that the said Rajesh only gave the alleged stolen cheque to the complainant. So by any stretch of imagination, the contentions of accused can not be accepted.
22.On one hand, the specific suggestion to Pw.1 is that accused never issued Ex.P1 cheque to the complainant and never borrowed any amount from him and he categorically denied about issuance of
Ex.P1 Cheque. However, he denied the said version and to strengthen his contentions, he simply elicited that he signed on blank cheque, kept in the company and it was stolen by one Rajesh, thereupon he filed Ex.D1 FIR.
23.Even for the sake of argument, when Ex.D1 was issued about 2 ½ months after issuance of Ex.P7-Reply notice, till date, the accused did not visualize the court about the steps taken by him and also about the subsequent consequences after Ex.D1-FIR not enlightened to impress upon the court whether it culminated as
Calender Case, if so, what is its end product and what steps he has taken on those aspects is silent. This itself creates a doubt in the mind of the court.
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24.The learned counsel for the accused tried to impress upon the court by cross examining Pw.1 with reference to Ex.P2-Cheque return Memo contains seal and stamp of SBH Main Branch, but it does not contain the seal and stamp of SBH,ADB, Peddapalli. He further admitted that in the complaint, he has not mentioned that
Ex.P1 cheque belongs to SBH, ADB Bank, Peddapalli, there need not be such pleading in the complaint and if such averment is not there, it can not vitiate the proceedings. Pw.1 clearly admitted that he did not add M/s. Vaishnavi Constructions as accused in the complaint after receipt of Ex.P7 and also the Managing Partner of above said company. He further admitted that he did not issue legal notice to the Managing partner of M/s. Vaishnavi Constructions. He clearly stated that he does not know whether A/c.No. 62189032672 belongs to M/s. Vaishnavi Constructions, however, the pass book of the above said account is marked as Ex.D2.
25.One more suggestion put to Pw.1 is that the accused is no way concerned with Ex.P1 cheque as it belongs to M/s. Vaishnavi
Constructions, Ex.D3 is the Firm Registration certificate marked through this witness. On one hand, by relying Ex.D3-Firm
Registration certificate, accused name is shown as one of the
Partner in the above said company. On the other hand, he simply states that accused is no way concerned with Ex.P1 cheque. These two pleas taken by him are inconsistent. When the accused himself 12 of 24
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is the Managing Partner and the total defence of the accused either in Ex.P7-Reply notice or even Ex.D1 FIR, he wants to impress upon the court that one of his clerk (Gumastha) stolen the signed blank cheque of M/s. Vaishnavi Constructions and the same was pressed into services by the complainant. Then, the contentions of the accused is that he is no way concerned with Ex.P1 cheque is not going to help him in any manner for the simple reason that he is
Managing Director of that company. He further got it elicited that the signature appearing on Ex.P1, Ex.D4 and D5 are similar in nature. A formal suggestion put to this witness that as the stamp and seal of M/s. Vaishnavi Constructions not there on Ex.P1, as such it does not belong to accused. Of course, he denied the same. The stand of complainant is that Ex.P1 cheque given by the accused after duly affixing his signature on it. Then, the onus is upon him to take steps to refute those contentions. But he failed to do so.
26.In the further cross examination of Pw.1, the learned counsel
for the accused tried to impress upon the court that whether Pw.1 is
aware about the referred Ex.P1 cheque belongs to ADB Bank, for which he pleaded ignorance. One more suggestion put to this witness is that he managed the Bank Manager SBH for not sending
Ex.P1 cheque for clearance purpose. One more suggestion put to him is that if Ex.P1 cheque could send to ADB, SBH, Peddapalli
Branch, then the bank might have returned the same for want of 13 of 24
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authentication of M/s. Vaishnavi Constructions and on that ground, the Drawers signature might not tallied. He denied the said suggestion. Finally, the learned counsel for the accused tried to impress upon the court from the cross examination of Pw.1 that the complaint is not maintainable as Ex.P1 cheque did not sent for clearance of SBH, ADB,Peddapalli and as on the date of issuance of
Ex.P2-Cheque return Memo, SBH main Brach and SBH-ADB Bank not merged in SBI. As Ex.P2-Cheque Return Memo emerged from the competent authority and the same is not challenged, as such this document need not be looked with suspicion. Thereby the above defences taken by the learned counsel for the accused can not be considered at all.
27.One more defence taken by the learned counsel for the accused is that the signature appearing on Ex.P6-Memo of
Appearance and Ex.P1 not belongs to accused. One more defence is that he forged the signature of accused in collusion with Rajesh, who has stolen Ex.P1 cheque from M/s.Vaishnavi Constructions without showing any nexus between Rajesh and Pw.1, the above suggestion not going to help the counsel for the accused in any manner.
28.It is not out of place to mention that on combined reading of
Ex.P7-Reply notice and Ex.D1-Certified copy of FIR, there is no 14 of 24
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specific mention about the stolen cheque number by the alleged
Rajesh. One specific allegation made in the private complaint and also in Ex.P7-Reply notice that one bank cheque signed by the accused on behalf of firm was stolen by his clerk Rajesh. When such specific stand is taken by him, which clearly goes to show that the alleged blank cheque was duly signed by the accused was stolen, even then, a specific suggestion put to Pw.1 that after taking that blank cheque, the complainant with the signature of accused by colluding with Rajesh, who has stolen Ex.P1 cheque does not arise, for the simple reason that the plea taken in the aforesaid two documents is quite contrary to the said suggestion. Of course, the accused got every right to take as many defences as possible, but one of such defence should not contradict their own plea. Even then, the learned counsel for the accused ventured to put these suggestions. Formal suggestion about the other aspects to Pw.1 even by going into the root with regard to the capacity and monitory transactions as averred by the complainant, for which
Pw.1 specifically denied the same and re-affirmed his stand.
29.Evidently, the accused did not appear before the court to put forth his contentions in support of his defence. However, he got examined the Chief Manager of SBI, ADB, Peddapalli as Dw.1. He simply deposed that M/s. Vaishnavi Constructions got current
Account in their bank with A/c. No. 62189032672 from June, 2021, 15 of 24
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which was opened by two partners. Ex.P1 cheque issued on the above referred Vaishanavi Constructions current Account. If any cheque is used by the company, then a stamp of firm is required on the cheque. If the cheque is found without stamp of the firm, then, they return the said cheque on the ground that firm stamp is required.
30.The learned counsel for the complainant cross examined this witness (Dw.1) and got it elicited from Dw.1 that the signature appearing on Ex.P1 cheque belongs to accused Aitham Ravi. As on the date of receiving Ex.P1 cheque into the Bank, the Current account referred on which the cheque was inoperative. The chief
Manager categorically stated that since 2011, there are no transactions in the above referred current account. At one point of time, this witness admitted that at present, the issuance of Ex.P1 cheque there was no such facility to show that the cheque leaf lets are issued with names of persons. On perusal of Ex.P1, this witness clearly stated that it was returned on the ground of “insufficient funds” and the same is mentioned in Ex.P2-Cheque return Memo.
He further admitted that the current account referred can be operated by one of the partners of the said firm. He further admitted that on seeing Ex.P1 cheque, it can not be said whether it belongs to firm or an individual. In Ex.P2-Cheque return Memo, it is 16 of 24
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not mentioned that the cheque was returned on the ground that firm stamp is required. He further fairly admitted that if the funds were available in the current account, then the cheque would have been honoured.
31.The learned counsel for the complainant further cross examined the Dw.1 with reference to Ex.D6 and other documents.
32.This court should not forget that the role of Dw.1 is only with regard to the available material in the bank and the evidence given by this witness is in his official capacity only. As such his evidence can be considered only to the referred documentary evidence and also about Ex.P1 cheque, Ex.P2-Cheque return Memo and Ex.D6, but not with regard to other aspects.
33.After perusal of oral and documentary evidence put forth by
Pw.1 and also Dw.1 coupled with the arguments submitted by both the counsel, this court can cull out the factual aspects hereunder:
i)The stand of the complainant is that accused only signed and gave Ex.P1 cheque to him in discharge of loan amount to him. In support of his contentions, he relied Ex.P1 cheque and also Ex.P4-
Statutory legal notice coupled with Ex.P2 Cheque Return memo.
ii) The learned counsel for the accused had taken two pleas, first one is that the signature on Ex.P1 was forged by the complainant and brought into existence and in order to suffer him, got filed the 17 of 24
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same though there is no transaction in between him with the accused. The 2nd defence is that the accused put his signature in the cheque book and kept in the company, which was stolen by one
Rajesh and after taking the said signed cheque, Pw.1 pressed the same into service by utilizing the same as Ex.P1 cheque.
34.These two pleas are inconsistent. If really, the accused has taken the plea of forgery of his signature, then, he ought to have taken appropriate steps at the relevant point of time by referring the said document to the expert for opinion and report. No such steps taken. Even if the court considered the 2nd plea, evidently, the signature on Ex.P1 belongs to accused only. Even then, the contention of the complainant that the accused has given the signed Ex.P1 cheque to him in discharge of his liability holds good.
35. In this regard, it is appropriate to refer to the judgment of the
Hon'ble Apex Court in the case of Bir Singh Vs. Mukesh Kumar
reported in (2019) 4 Supreme Court Cases 197, wherein the
Hon'ble Apex Court, observed as under:
“A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted" 18 of 24
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36.Even from the combined reading of Ex.P7 Reply notice and
Ex.D1-FiIR the accused himself clearly admitted that his signed blank cheque was pressed into service as Ex.P1. Even by deriving strength from the said admission, it is clear that the signature on cheque was admittedly put by accused. Then, it mandate the court to raise the presumption of legally enforceable debt.
37.At this juncture, this court relied on a Judgment reported in (2010) Supreme Court Cases 441 between Rangappa Vs. Sri
Mohan, has observed as under:
“The presumption mandated by section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the Accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the Respondent/Complainant.”
38.In 2011 (2) ALD (Crl) Page 847 (AP) between Videocon
International Ltd., Hyderabad Vs. Innovations, Chirala, AP
and others, the Hon'ble Apex Court held as under:
“Section 139 of the Act raises a presumption in favour of the holder to the effect that the holder of a cheque received the cheque of the nature referred in section 138 for the discharge of any debt or other liability, in whole or in part. No doubt, the said presumption under section 139 of the Act is rebuttable presumption. Opening words of section 139 reads “It shall be presumed unless the contrary is proved” In that view of the matter it is not for the complainant initially to prove existence of any legally enforceable 19 of 24
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debt or other liability for the cheques involved in these cases. The initial burden is on the accused to prove that the dishonoured cheques were not supported by any legally enforceable debt or other liability.”
39.In order to rebut the above said presumptions, the accused relied mainly upon the cross examination of Dw.1 by referring Ex.D2 to D6 documents. But he could not visualize the court how these documents are squarely goes to his rescue in support of his contentions. Even for the sake of argument, this court has considered the evidence of Dw.1, who is Chief Manager, he simply deposed that on close perusal of Ex.P1, no one can say that it pertains to a company. Then, how could the complainant have knowledge to know that the said cheque pertains to M/s. Vaishnavi
Constructions. From the evidence of Dw.1, it is elicited that since 2011, there are no transactions done by M/s. Vaishnavi
Constructions. Then, the stand of learned counsel for the accused that the said company has to be shown as a party in the complaint can not be considered, for the simple reason that the grievance of the complainant is against the accused only, but not against the said company. It is not even elicited that the accused is a partner of
M/s. Vaishnavi constructions till Ex.D2 to D6 firm certificate are brought on record. Though Ex.D1 relied to support the version of accused, but he could not succeed in his efforts, for the simple reason that he did not explain the subsequent events after 20 of 24
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registration of Ex.D1-FIR. So, this court left with no option except to arrive to the conclusion that the Ex.D1 was brought into existence only for defence purpose, but he could not bring the same to logical conclusion in support of his contention to explain about culmination of case and subsequent proceedings. Merely filing Ex.D1 is not going to help the accused in any manner, more particularly to accept his defence as true and correct. This court is of considered view that the accused got ample opportunity to put forth his contentions in the lines of Ex.P7-Reply notice, but he could not enlighten the court on those aspects except examining Dw.1-Chief
Manager and brought Ex.D2 to D6 documents. Even at the cost of repetition, Ex.D2 to D6 are not going to help the accused, more particularly to shatter the contentions of complainant version.
40.To strengthen his contention, the appellant/accused relied on the following citations;
In the 1 st citation reported in a case of D.Chandra Reddy
Vs. Gourishetty Prabhakar Rao and another (Vaman Rao J)
1999(6) ALD 281=1999(2) ALD (Crl.)722, wherein it was held that;
Sections 138 and 141 – Cheque signed by the Director of the ompany- He can not escape liability for its dishonour, by resigning as Director after receiving the dishonour notice.
It further observed that “Section 138 and 141- Cheque issued on behalf of the company by its Managing Director on the account standing in the name of the company – When the cheque was dishonoured, 21 of 24
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the person who issued the cheque can not be made personally liable under the Act – Prosecution can only be launched against the company.
In the 2 nd citation reported in a case of P.Shivanandam Vs.
Sri Srinivasa Marketing Co.Guntur and another 2006(1) ALD
(Crl.) 526 AP wherein it was held that;
Offence by Company – Cheque issued by Managing Partner of firm to discharge liability of firm- issue of cheque by Managing Partner of a firm to discharge liability of firm- Complaint Under Section 138 read with Section 141 NI Act- Complaint against Managing Partner only maintainable – Not essential to prosecute firm or other partners.
In the 3rd citation reported in a case of Pramod Vs.
C.K.Velayudham and others in 2006(1) ALD (Crl.) (NOC) 20
(Ker.) wherein it was held that;
Offence by Company, declared as ‘sick’- Complaint against, under Section 138, NI Act- Maintainability –
Before expiry of statutory period of 15 days after notice
of dishonour, BIFR submitted its report declaring company as ‘sick and directions issued under Section 22-A of SICA restraining company from disposing of any of its assets- petitioner company and its directors not in position to make payment of cheques in question – Offence under Section 138 NI Act not completed.
In the 4 th citation reported in a case of KVR Enterprises Vs. Madras Cements Ltd., and another, wherein it was held that;
Section 138- Offence by sole proprietary concern- Proprietary concern has no legal entity and prosecution can not be maintained against – But when accused was shown as KVR Enterprises Proprietor K.Subrahmanyam in the cause title of complaint, it is shown as proprietorship concern represented by proprietor – Complaint is maintainable.
41. By relying these citations, the learned counsel for the
Appellant wants to impress upon the court that the accused is the 22 of 24
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partner in the company and the Managing partner of M/s. Vaishnavi
Constructions is not shown as a party, for that reason, the appeal deserves to be allowed by setting aside the conviction of the trial court.
42.When this court carefully gone through the above said citations inconsonence with the submissions put forth by the learned counsel for the appellant, this court can not forget the factum that Ex.P1 Cheque signed by him and given to the complainant. This aspect clearly dealt by the court while deciding the other aspects in the aforesaid observations. Evidently, on perusal of Ex.P1 cheque, there is no mention that it belongs to M/s.
Vaishnavi contradictions. Dw.1 clearly stated that since 2011, the said company is not functioning. So, merely considering Ex.D2 to d6 documents, this court can not arrive to any conclusion that Ex.P1 cheque pertains to the above said company. It is not even brought to the notice of the court that the accused signed as a Managing
Director or not. When the documentary evidence is not disclosing about the existence of the company or its affairs, then, the plea of the learned counsel for the appellant can not be considered and the above said citations are not going to help him in any manner.
Thereby this court unable to consider the dicta in favour of appellant as the present facts and circumstances in the case on 23 of 24
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hand are entirely different with that of the above said citations.
Thereby, the appellant can not derive any benefit on those citations.
43.In view of the above discussion, this Court is of the view that the complainant has complied all the ingredients of Section 138 of the Negotiable Instruments Act, and that Ex.P1 cheque was issued in discharge of legally enforceable debt. This Court does not find any illegality, infirmity or impropriety in the impugned judgment of the trial Court. Accordingly, the point No.1 is answered in favour of the Respondent/ complainant.
POINT No.2:
44.In view of the findings in point No.1, the court of considered view that the trial court rightly observed the presumptions U/s. 138 of Negotiable Instruments Act and come to right conclusion by finding the appellant/accused guilt. Therefore, this court did not see any tenable and convincing reasons to interfere with those findings.
45.In the result, the criminal appeal is dismissed by confirming the impugned judgment, dated 22.11.2022 passed by the learned
Judicial Magistrate of First Class, Peddapalli in CC No.251 of 2016.
The Court below is directed to implement and execute the sentence.
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The office is directed to send the case records to the concerned court forthwith.
Issue NBWs against the appellant/accused.
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me in the open court, on this the 28th day of January,
2025.
Prl. Sessions Judge, Peddapalli
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
-None-
EXHIBITS MARKED
-Nil-
Prl. Sessions Judge, Peddapalli