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IN THE COURT OF ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE
CHODAVARAM
Present : Miss. DORA UMADEVI
Principal Junior Civil Judge, Chodavaram
FAC/ Additional Judicial Magistrate of First Class, Chodavaram
Wednesday, this the 22 nd day of February, 2023
CALENDAR CASE No.659/2017
BETWEEN:
Killada Demudu, S/o. Appalanaidu, aged 49 years, Hindu, Cultivation, Residing at Lankavanipalem Village, K.Kotapadu Mandal, Visakhapatnam.
... Complainant
AND:
Kothala Simhachalam Naidu, S/o. Ramunaidu, aged 26 years, Hindu, Home Appliances Business, Residing at Kothapenta village, Devarapalli Mandal, Visakhapatnam District.
... Accused.
This case is coming before me on 15-02-2023 for final hearing in the presence of Sri K.Bhaskar Das, Advocate for the complainant and Sri K.David, Advocate for the accused and having stood over for consideration on this day and this Court delivered the following:-
J U D G M E N T
1.This is the private complaint filed by the complainant under
Section 200 of Criminal Procedure Code (herein after referred as Cr.P.C.) for the offence under Section 138 of Negotiable Instrument Act-1881 ( herein after referred as N.I.Act).
2. The brief contents of the complainant are:
(a) The accused borrowed an amount of Rs 5,00,000/- (Rupees Five
Lakhs only) from the complainant on 08-03-2015 agreeing to repay the same with interest at the rate of 24% p.a, for the purpose of family expenses and to 2 discharge sundry debts and executed a demand promissory note on the same day. On repeated demands made by the complainant, the accused issued a cheque bearing no.372407 for Rs.3,00,000/-, as part payment on 03-07-2017 drawn on State Bank of India, K.Kotapadu Branch, K.Kotapadu Village and
Mandal, Visakhapatnam and the same was presented by the complainant on the same day i.e., on 03-07-2017 in Indian Bank, Lankavanipalem Branch,
K.Kotapadu mandal, for collection and it was dishonored on 11-07-2017 with an endorsement "FUNDS INSUFFICIENT”.
(b)On that the complainant got issued a legal notice on 20-07-2017 demanding the accused to repay the cheque amount that he is liable to pay the cheque amount. The accused received legal notice on 27-07-2017 but neither reply nor comply with demand, thus the accused committed the offence punishable under section 138 of N.I.Act. Hence this complaint.
3. The above complaint was taken cognizance by the Court for the
Offence under Section 138 of Negotiable Instrument Act, 1881. Copies of documents are furnished to accused U/s 207 Criminal Procedure Code on his appearance.
4. The accused was examined U/s.251 of Criminal Procedure Code, 1973 the substance of accusation for the offence u/s 138 of Negotiable
Instrument Act is explained in Telugu. For which the accused pleaded not guilty and claimed for the Trial. Hence the case is posted for trial.
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5.During the trail, Complainant himself examined as PW.1 and one of the Attestor is examined as PW.2 and got marked Exs.P1 to P4.
6.After completion of complainant evidence, Accused was examined under section 313 Cr.P.C. explaining incriminating evidence against him for which he denied and on enquiry, he reported defence evidence and filed petition under Section 315 Cr.P.C seeking permission to allow the Accused to give evidence and the said petition in Crl.M.P.448/2022 is allowed. Accused himself examined as DW.1, got marked Ex.D1 and Ex.D2 on his behalf.
7. Heard arguments of complainant and Accused.
8. Now the points that have arisen for determination are:--
(i) Whether the complainant fulfilled all the ingredients of S.138 N.I Act to file this complaint and whether the presumption 139 N.I. Act can be drawn in favour of the complainant?
(ii) Whether the accused discharged his burden to establish that no legally enforceable debt existed and cheque was not issued in due discharge of the same and whether he rebutted the presumption?
POINT NO.1:
9.To file a complaint under Section 138 N.I.Act, the complainant has to fulfill the following conditions:
As per Section 138 of Negotiable Instrument Act:-
(a)The cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
(b)The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 4 (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c)The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
10.To prove the case of the complainant, the complainant was examined as PW.1 and he reiterated the contents of the complaint in his chief- examination affidavit. PW.1 stated that the accused borrowed a sum of
Rs.5,00,000/- on 08-03-2015 agreeing to repay the same with interest @ 24 per annum and thereafter, he committed defaulter in payment of interest and after repeated demands he issued Ex.P1 cheque on 03-07-2017 drawn on
State Bank of India, K.Kotapadu Branch, K.Kotapadu Village, Visakhapatnam.
As seen from the Ex.P1 original cheque, the same was issued on 03-07-2017 for an amount of Rs.3,00,000/- the same was presented in the Indian Bank,
Lankavanipalem Branch, K.Kotapadu mandal on 03-07-2017 and it was dis-
honoured on the same i.e., on 03-07-2017. The PW.1 also deposed the same,
the same was corroborated Ex.P2. The testimony of PW.1 also very clear that he presented the cheque and the bank issued Ex.P2 memo. As seen from the documentary evidence as well as oral evidence produced before this court, it is clear that the provision of Section 138 (a) of Negotiable Instrument Act was compiled by the complainant as the cheque was presented before the bank within time.
11.The crux of this case depends on Section 138(b) of Negotiable
Instrument Act, it is the version of complainant that the legal notice was issued by him on 20-07-2017 under Ex.P3 which is the period within the limitation and 5 the same was received by the accused under Ex.P4. The cheque was drawn on the account of bank of the accused for discharge in whole or in part of any debt or other liability which per-supposes a legally enforceable debt. The accused has not denied Ex.P1 cheque is drawn on his bank account.
Complainant issued a mandatory notice after return of cheque within 30 days and it was served, hence, he filed the complaint. Thereby this Court finds that apparently the complainant fulfilled all the above ingredients to file this case.
12.At this juncture, this Court intends to rely on the observation of the
Hon'ble Supreme Court in RANGAPPA VS. MOHAN AIR 2010 SC 1898.
"Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to Section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
13.Relying on the above mandate laid down by the Hon'ble Supreme
Court, since Ex.P1 appears to be drawn on the account of the accused, this
Court is inclined to draw the presumption under Section 139 N.I. Act in favour of the complainant. Hence point No.1 is answered in favour of the complainant.
POINT NO.2:
14.Now the point to be decided is whether the accused has rebutted the presumption. The accused herein has not issued any reply notice to
Ex.P3/notice sent by the complainant, the accused himself examined as DW.1 and got marked Ex.D1 and Ex.D2 on his behalf, hence defence of accused has taken based on his evidence and Ex.D1 and Ex.D2 and cross examination of 6
PW1 and PW2. It is the contention of the accused that he did not borrow amount from complainant and he had never given any cheque nor any other papers to the complainant.
15.The contention of the Accused in the year 2016 he requested one
Kota Suryanarayana to lend some amount. He introduced one Reddy of
Kothavalasa who is doing Finance business that he will lend amount to him. In the month of November, 2016, himself, Kota Suryanayarana, Pyla Lakshmi
Narayana Murthy and Surreddi Narayana Murthy went to the house of said
Reddy and requested him to lend Rs.20,000/-. Then the said Reddy obtained signed blank two promissory notes and two signed blank cheques from the
Accused and lent Rs.20,000/- to him. By that time, said Pyla Laskhmi
Narayana Murthy and Sureddi Narayana Murthy wants to sign as witnesses in the promissory notes but the said Reddy refused for the same. Within three months, the Accused repaid the amount asked him to return promissory notes and cheques, he replied which were misplaced, he will return the same whenever traced. Subsequently, disputes arose between himself and Kota
Suryanarayana. The said Kota Suryanarayana behind the back of the complainant got issued legal notice and filed this complaint against Accused.
Further contention of Accused, the complainant not filed said pronote to show
Ex.P1 was issued for legally enforceable debt.
16.Admittedly, the complainant not filed the promissory note before the Court. However, the Accused suggested to PW.1 and he admitted he filed
O.S. 52/2017 on the file of Senior Civil Judge Court, Chodavaram based on
the promissory note dated 08-03-2015, after full trial the said suit was decreed.
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So, the contention of the complainant that the Accused borrowed amount under promissory note, to discharge the debt due under the promissory note as a part payment, the Accused issued Ex.P1 cannot be ruled out. The Accused admitted his signature in the Ex.P1 and also admitted Ex.P1 cheque was issued through his account.
17.It is also the defence of Accused that complainant has not mention about Civil Suit in the complaint, so also about this case in O.S.52/2017.
Complainant not came to court with clean hands and he suppressed material fact. As rightly argued by learned counsel, the complainant not mention about
Civil Suit in this case. The plaint and written statement are marked as Ex.D1 and Ex.D2. On perusal of Ex.D2, written statement filed by Accused herein in
O.S. 52/2017, he stated that when he requested the amount to one Kota
Suryanarayana the plaintiff i.e., the complainant herein and the Kota
Suryanayarana took him to the house of one Reddy of Kothavalasa and the said Reddy by lending Rs.20,000/- obtained his signatures and thumb marks on two promissory notes and two blank cheques. The counsel for the Accused also suggested to PW.1 during cross examination the above said facts for which the PW.1 denied. It is pertinent to note that, the Accused has not stated anywhere in this case, the exact date of which said promissory note and Ex.P1 were obtained by him. The Accused did not mention about the presence of complainant in his chief examination that the complainant also accompanied him to the house of the said Reddy so also, he did not mention about the presence of Pyla Lakshmi Narayana Murthy and Surreddi Narayana Murthy and he had disputes with the Kota Suryanarayana. Though the Accused mentioned about the filing of this case against him in Ex.D2 but he did not 8 mention anywhere after receipt of the Ex.P3 notice he placed the matter before elders in the year 2016 itself. So, it shows that the Accused have taken different stands.
18.The Accused also did not choose to examine the said Reddy and the above said Pyla Laskhminarayana Murthy and Narayana Murthy as a witnesses on his behalf to prove his contention. Though he had disputes with the Kotha Suryanarayana he can examine the above said persons on his behalf but the Accused did not choose to examine them, reasons best known to him. Moreover, the Accused as DW.1 admitted in his evidence he did not take any action or got issued any notice to the said Reddy for non return of the cheques and blank promissory notes. During cross examination of PW.1, the learned counsel for Accused suggested to PW.1 that Accused is having knowledge of putting his signature in English and reading and writing of
English for which PW.1 stated he does not know whether the accused having knowledge of about English language. The learned counsel for the Accused argued that the Accused used to sign in English but the Ex.P1 contains the signature in Telugu. So, it is not the signature of the Accused. The accused on the one hand, he has taken plea the signature on Ex.P1 belongs to him which was obtained by one Reddy. On the other hand, he had taken a plea that the Accused used to sign in English the signature which is in Telugu in
Ex.P1 not belongs to him. So, which clearly shows that the Accused had taken different pleas, so also, he did not file any documentary proof or not examined any witnesses to prove his contention. So, this Court finds that this defence of the Accused is not proved to be probable.
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19.On verification of evidence of PW.1 and PW2, their evidence is corroborated with each other regarding passing of the consideration, denomination of currency and execution of promissory note by Accused. The counsel for the Accused cross examined PW.1 and PW.2 at length but did not elicit anything to disbelieve their evidence. Accused did not dispute his signature in Ex.P1. However, the accused contended that complainant not filed said promissory note before the Court to prove that the Ex.P1 was issued for the discharge of legally enforceable debt. Admittedly, complainant not filed said promissory note before the Court. However, he mentioned in his chief examination affidavit based on the said promissory note dated 08-03-2015, he filed a suit before the Hon’ble Senior Civil Judge, Chodavaram in O.S.52/2017 and the said suit was decreed, the same fact admitted by the Accused. So, admitted facts need not be proved.
20.The further contention of the accused is he was never demanded by the complainant to discharge amount, no notice served on him. Ex.P3 legal notice was not received by the accused and the signature in Ex.P4 is not belongs to him as such the complainant not complied mandatory provisions of
N I Act by issuing statutory notice. On perusal of Ex.P4 and the signature of the Accused in his evidence as DW.1 apparently botH the signatures are appears to be similar are one and the same. The writing of the letters and the strokes shows that the signature on Ex.P4 belongs to the Accused. Though the Accused has taken contention no notice served on him but he did not take any steps to prove the same.
10 21. Even if it is presumed that the accused may not have received the legal notice and had no knowledge of it, on this aspect, this Court relies on the settled position by Hon’ble Apex Court in C.C.Alavi Haji v. Palapetty
Muhammad (2007 Crl.L.J.3214), wherein it was held that:
“Even when it is the case of the accused that he did not receive the legal notice sent by the complainant, the accused can pay the amount to the complainant within 15 days of receiving of summons from the Court. It is for the accused to prove that he did not receive the demand notice.” “It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.”
22.As per the ratio laid down in the above citation, the burden is on the accused to prove that he has not received the legal notice, but the accused herein did not take any steps to prove the same. Moreover, this Court observes that the summons in this case was sent to the same address to which the Ex.P3 legal notice was sent. Even after appearing before the Court, the accused did not express his intention to repay the cheque amount to the complainant within 15 days. So this Court finds that the accused cannot take the plea that he did not receive Ex.P3 legal notice.
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23.The contention of the Accused that the complainant had no financial capacity to lend such huge amount of Rs.5,00,000/-. The learned counsel for Accused cross examined PW.1 at length regarding his financial capacity. PW.1 deposed he is doing firewood sticks business and he is owner cum driver of a van he took a loan from Sriram Finance for Rs.7,50,000/- to purchase van and he discharged the said debt and the Sriram Finance
Company had issued Clearance Certificate to him. He is a white ration card holder not an income tax assessee. He had a document to show that he had amount of Rs.5,000/- by the date of 08-03-2015. The evidence of PW.1 shows that he has a van and also doing business it shows the financial capacity of complainant to lend Rs.5,00,000/-. However, if the accused proved that the complainant is not having financial capacity by filing any document or adducing consisting evidence, then the burden shifts on the complainant to prove his financial capacity. However the accused did not take any steps to disprove the financial capacity of the complainant. The accused did not discharge his burden then shifting of burden on the complainant does not arise.
24.In this regard the court relies on decision of the Hon’ble Apex Court “ROHIT BHAI JEEVAN LAL PATEL. V. STATE OF GUJARAT
Criminal Appeal No.508/2019 Dated 15.03.2019 “There is no initial burden on the complainant to prove the source of income or to prove that the amount were shown in the income tax returns of the complainant such question arises only when the accused succeeded in rebutting the presumption raises against him“
The contentions raised by the Learned counsel for the accused do not prevail over the recent citation of the Hon’ble Apex Court between Triyambak 12
S.Hedge Vs. Sripad, reported in 2022 (1) Civil court Cases 098(SC),
wherein the Apex Court held in paragraph No.14 and 16 as follows:
“The learned counsel for the respondent has however referred to the decision of this Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 wherein it is held as hereunder.
“25. We having noticed the ratio laid down by this Court in the above cases on Sections 118 (a) and 139, we now summarise the principles enumerated by this Court in following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
On the position of law, the provisions referred to in Section 118 and 139 of N.I. Act as also the enunciation of law as made by this Court needs no reiteration as there is no ambiguity whatsoever. In, Basalingappa vs. Mudibasappa (supra) relied on by the learned counsel
for the respondent, though on facts the ultimate
conclusion therein was against raising presumption, the facts and circumstances are entirely different as the transaction between the parties as claimed in the said case is peculiar to the facts of that case where the consideration claimed to have been paid did not find favour with the Court keeping in view the various transactions and extent of amount involved. However, the legal position relating to presumption arising under Section 118 and 139 of N.I. Act on signature being admitted has been reiterated. Hence, whether there is rebuttal or not would depend on the facts and circumstances of each case. “ 13
25.Hence in view of the above foregoing discussion, this Court observed that the accused failed to create a probable doubt regarding non existence of legally enforceable debt in between himself and complainant and he did not issue the Ex.P1 cheque for the discharge of the legally enforceable debt. Therefore, he failed to rebut the presumption under Section 139 of NI Act.
The Point No.2 is answered in favour of the complainant. The complainant proved that the accused issued Ex.P1 cheque, hence presumption taken in his favour the complainant is sustainable. Therefore, the accused is liable for punishment under Section 138 of NI Act.
26.In view of the above discussions, this court finds that the accused is found guilty for the offence punishable under section 138 of NI Act. Hence the accused is liable for conviction.
Typed to my dictation by the Personnel Assistant of this court directly on computer, corrected and pronounced by me in open Court on this the 22 nd day of February, 2023.
Sd/- D.Uma Devi
Principal Junior Civil Judge, Chodavaram
(FAC) A.J.F.C.Magistrate, Chodavaram.
27.When questioned as to quantum of sentence to be imposed against him, the accused submitted that he has old aged parents, his mother is parlaysis patient, he has to look after her and he is also suffering with diabetes,
Blood Pressure and gastric problems and he is the sole bread winner of his family and prays to take lenient view.
28.By the nature of the offence the court is not inclined to apply
Probation of Offenders Act, because it is effect to the economy of the country 14 by issuance of false cheques. However, after considering the submission made by the accused, this court is inclined to take lenient view while awarding sentence.
29.In the result, the accused is found guilty for the offence under
Section 138 of N.I. Act and accordingly the accused is convicted under Section 255(2) Cr.P.C for the said offence and accused is sentenced to SIMPLE
IMPRISONMENT for a period of ONE YEAR and he is also directed to pay compensation of Rs.3,00,000/- (Rupees Three lakhs only) the Cheque amount under Section 357(3) of Cr.P.C. within the three months from the date of this judgment, in default of payment of compensation undergo simple imprisonment of two months. The bail bonds of the Accused shall be in force for a period of six months under Section 437-A of Cr.P.C.
The accused is appraised of about his right to prefer appeal in this
Calendar Judgment and right free legal aid through DLSA, on enquiry he reported that he got means to engage counsel. The copy of the judgment is given to the accused under acknowledgment.
Typed to my dictation by the Personnel Assistant of this court directly on computer, corrected and pronounced by me in open Court on this the 22 nd day of February, 2023.
Sd/- D.Uma Devi
Principal Junior Civil Judge, Chodavaram
(FAC) A.J.F.C.Magistrate, Chodavaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT: FOR ACCUSED:
PW.1: Killada DemuduDW.1:Kothala Simhachalam Naidu
PW.2: Dekka Ramana Babu 15
DOCUMENTS MARKED
FOR COMPLAINANT:
Ex.P1/03-07-2017Cheque for Rs.3,00,000/- issued by Accused in favour of PW.1
Ex.P2/11-07-2017Cheque return memo issued by the banker of complainant
Ex.P3/20-07-2017Office copy of Legal notice
Ex.P4/--Copy of Track Consignment
FOR ACCUSED:
Ex.D1/--Certified copy of plaint in O.S.52/2017 of Hon’ble
Senior Civil Judge’s Court, Chodavaram
Ex.D2/--Certified copy of written statement in O.S 52/2017 of
Hon’ble Senior Civil Judge’s Court, Chodavaram
Sd/- D.Uma Devi
Principal Junior Civil Judge, Chodavaram
(FAC) A.J.F.C.Magistrate, Chodavaram.
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CALENDAR & JUDGMENT
CALENDAR CASE TRIED BY THE COURT OF A.J.F.C.MAGISTRATE AT
CHODAVARAM
Date of Offence: 03-07-2017
Date of Report or Complaint: 22-08-2017
Date of apprehension of Accused: --
Date of accused released on bail: --
Date of Commencement of Trial: 20-09-2019
Date of Closure of trial: 08-02-2023
Date of sentence or order of Court: 22-02-2023 : Due to pandamic of corona and non Explanation for Delay & Remarks production of witnesses by accused
Calendar Case No.: C.C.No.659/2017
Killada Demudu, S/o. Appalanaidu, aged 49 years, Hindu, Cultivation, Name & Address of complainant: Residing at Lankavanipalem Village, K.Kotapadu Mandal, Visakhapatnam.
Kothala Simhachalam Naidu, S/o. Ramunaidu, aged 26 years, Hindu, Name and address of accused:Home Appliances Business, Residing at Kothapenta village, Devarapalli Mandal, Visakhapatnam District.
Section of law: U/s. 138 of Negotiable Instrument Act
Finding of Court: Accused is found guilty :In the result, the accused is found guilty Sentence or Order of the Court for the offence under Section 138 of N.I. Act and accordingly the accused is convicted under Section 255(2) Cr.P.C for the said offence and accused is sentencedtoSIMPLE IMPRISONMENT for a period of ONE YEAR and he is also directed to pay compensation of Rs.3,00,000/- (Rupees Three lakhs only)the Cheque amount under Section 357(3) of Cr.P.C. within the three months from the date of this judgment, in default of payment of compensation undergo 17 simple imprisonment of two months. The bail bonds of the Accused shall be in force for a period of six months under Section 437-A of Cr.P.C. The accused is appraised of about his right to prefer appeal in this Calendar Judgment and right free legal aid through DLSA, on enquiry he reported that he got means to engage counsel. The copy of the judgment is given to the accused under acknowledgment.
Sd/- D.Uma Devi
PRL. JR. CIVIL JUDGE, CHODAVARAM
(FAC) A.J.F.C. MAGISTRATE, CHODAVARAM