D.viswanadham

IN THE COURT OF THE SENIOR CIVIL JUDGE :: YELLAMANCHILI

Present: Sri D.Viswanadham.,B.Com.,M.L

Senior Civil Judge, Yellamanchili.

Thursday, the 26 th day of October, 2017

OS.No.107/2013

Between:

1. Karri Appalanaidu, S/o Adiyya, Hindu, aged about 69 years, Hindu, Cultivation, Residing at D.No.2-9, Near Erra Gate, Etikoppaka Village, Nakkapalli Mandal, Visakhapatnam District.

2. Karri Varalakshmi, W/o Appalanaidu, aged about 55 years, Hindu, Cultivation, residing at D.No.2-9, Near Erra Gate, Etikoppaka Village, Yellamanchili Mandal, Visakhapatnam District.

... Plaintiffs

And:

1. Veesam Chandrarao, S/o late Veera Bhadrudu, Hindu, aged about 40 years, Business, Residing at D.No.39-27, Yellapu Kasayyagari Veedhi, Yellamanchili Village & Mandal, Visakhapatnam District.

2. Boddeda Narasingarao, S/o late Atchanna, Hindu, aged 69 years, Cultivation, Residing at D.No.5.45, Panchayat Street, Munagapaka Village and Mandal, Visakhapatnam District.

3. Boddeda Seetha Ratnam, W/o Narasingarao, Hindu, aged 59 years, Household duties, Residing at D.No.5-45, Panchayat Street, Munagapaka Village and Mandal, Visakhapatnam District.

4. Adari Apparao, S/o late Appalanaidu, Hindu, aged 58 years, Cultivation, Residing at D.No.16-46, Mangalavarapupeta H/o Munagapaka, Visakhapatnam District.

5. Boddeda Lakshmi, W/o Lakshmanarao, Hindu, aged 24 years, Household duties, Residing at D.No.5.45, Panchayat Street, Munagapaka Villageand Mandal, Visakhapatnam District.

... Defendants

This suit is coming before me on 28-04-2017 for hearing in the presence of Sri S.Appalanaidu, Advocate on behalf of the plaintiffs and of Sri.S.D.Jagannadha Raju and Sri.K.V.Subbarao are the Advocates for Defendants 3 to 5, D1 remained exparte and D2 died (abated) and upon hearing and considering the material on record this court made the following:

J U D G M E N T

This is a suit for recovery of an amount of Rs.8,34,944/- along with interest and another amount of Rs.1,00,000/- with interest at the rate of 24% p.a. and costs of the suit from the defendants 1 to 3.

2. The case of the plaintiffs is that the 1st plaintiff is the husband of the 2nd plaintiff and they are the absolute owners of the plaint schedule property situated in Komati Veedhi in Yellamanchili which is more fully described in the plaint schedule as it was purchased by them for valid 2 consideration of Rs.48,06,500/- from his rightful owner i.e., the 1st defendant herein represented by his agents i.e., the defendants 2 to 5 herein. The 1st defendant acquired the said property from one Sheik Bob Johnny under a registered sale deed dt.27-9-2006 and under a registered gift deed dt.18-4- 2007 which was executed by his wife. The defendants 2 to 5 purcahsed the said property from the 1st defendant under a registered sale agreement cum

General Power of Attorney dt.2-3-2009 and delivered its possession to the defendants 2 to 5. In turn, the plaintiffs purchased the said property from the defendants under a registered sale deed dt.20-1-2010 before that the plaintiffs approached the 1st defendant and enquired about his right and title for which the 1st defendant stated that he is the absolute owner of the plaint schedule property and executed a sale agreement cum General Power of Attorney in favour of the defendants 2 to 5 to sell the property and further stated that the plaintiffs are at liberty to deal with the defendants 2 to 5 then only the plaintiffs agreed to purchase the plaint schedule property by paying full consideration to the defendants 2 to 5, later on the plaintiffs came to know that the plaint schedule property was mortgaged by the 1st defendant with the

State Bank of India, Dimili Branch by availing a housing loan and later on failed to discharge the same, now the bank officials wanted to proceed against the plaint schedule property by pasting notices on the plaint schedule property under SARFESE Act and wanted to sell the same in the public auction by dispossessing the plaintiffs from it. The defendants have kept quite and did not reveal the fact of outstanding loan against the plaint schedule property due to the State Bank of India, Dimili Branch, so that the defendants cheated the plaintiffs. The plaintiffs pleaded that the bank officials that since they purchased the plaint schedule property without the knowledge of the same and outstanding amount in due is very less they requested the bank officials to proceed against the 1st defendant personally but the bank officials did not agree for the same and on the other hand they made arrangements for sale of 3 the plaint schedule property under SARFASE Act having no other got the plaintiffs have been forced to clear the entire loan i.e., of Rs.5,28,000/- on 9-9-2010 to the State Bank Of India. The plaintiffs were put to lot of pressure, mental strain and financial loss by the defendants due to the concealment of the debt and encumbrance on the plaint schedule property at the time of sale of it to the plaintiffs, the acts of the defendants and the bank officials damaged the reputation of the plaintiffs and their credibility in the society, so that the plaintiffs estimated their pain and suffering and damage as of Rs.1,00,000/- on modesty estimate which is liable to be payable by the defendants along with the loan amount in due paid by the plaintiffs to the State Bank of India with interest at the rate of 24% p.a. as per Trade, Custom and usage. The plaintiffs demanded the defendants to repay the said amount on several times orally and got issued a registered lawyer’s notice on 4-1-2013 but the defendants failed to comply the demand, as the plaintiffs have no other option they filed the present suit for recovery of the said amount. Hence, prayed the court to decree the suit as prayed for.

3. On the other hand the 3rd defendant filed his written statement by denying all the material allegations made by the plaintiffs as false except the facts which are specifically admitted therein and further stated that the 1st defendant is the original owner of the plaint schedule property and executed a registered possessory sale agreement from General Power of Attorney on 2-3-2009 in favour of the defendants 2 to 5 after receiving the entire sale consideration and delivered its possession to the defendants 2 to 5. Thereafter the defendants 2 to 5 came ot know that the 1st defendant obtained a Housing

Loan by mortgaging the plaint schedule property with a bank then immediately the defendants 2 to 5 questioned the 1st defendant about the same. Then the 1st defendant promised that he would clear off the loan so that he asked the defendants 2 to 5 do not worry about it. While the defendants 2 to 5 intending 4 to sell the plaint schedule property the plaintiffs approached them and showed their inclination to purchase it. At that stage the defendants 2 to 5 informed the plaintiffs about the fact of mortgage of schedule property by the 1st defendant with the bank. The defendants 2 to 5 and plaintiffs enquired with the bank officials and came to know that the amounts in due of the loan as of

Rs.5,28,000/- by that time the plaintiffs asked the defendants 2 to 5 that they would purchase the property bu the defendants 2 to 5 should see that the loan amount in due shall be paid by the 1st defendant to the bank. The defendants 2 to 5 agreed for the same. Accordingly, the defendants 2 to 5 set apart the loan amount in due i.e., Rs.5,28,000/- out of the total sale consideration of

Rs.48,06,500/- and executed a registered sale deed in favour of the plaintiffs.

Thereafter the defendants 2 to 5 along with the 1st defendant and plaintiffs approached the bank and the defendants 2 to 5 paid the loan amounts due to the bank through the 1st defendant and obtained a receipt in view of the execution of a registered sale deed in favour of the plaintiffs the original receipt under which the loan was paid to the bank was handed over to the plaintiffs. Now the plaintiffs filed the present suit with false allegations in collusion with the 1st defendant and by suppressing of all the above said facts to harass the defendants and to extract money from them. The question of sustaining loss, mental pressure as alleged by the plaintiffs does not arise as the defendants paid the out standing loan amount to the bank through the 1st defendant. The plaintiffs did not come to the court with clean hands they have no bonafide in filing the present petition, there is no cause of action to file the present suit. Hence, prayed the court to dismiss the suit with exemplary costs as it is not maintainable under law. The written statement filed by the 1st defendant is adopted by the defendants 4 and 5. The 1st defendant is remained exparte and 2nd defendant was died during the pendency of the suit and the suit against him was abated as no Lrs of the 2nd defendant were brought on record by way of taking steps against him.

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4. Basing on the pleadings of both the parties and after hearing their counsels and perusal of the records the following issues have been settled for trial.

1) Whether the mortgaged amount in due to the State Bank of India was got discharged by the defendants 3 to 5 through the 1 st defendant out of sale consideration and acknowledgment receipt of the said payment to the State Bank of India was handed over to the plaintiff?

2) Whether the plaintiff has knowledge about the mortgage of the plaint schedule property with the State Bank Of India as on the date of its purchase?

3) Whether the plaintiffs themselves discharged in due of Rs.5,28,000/- to the State Bank of India on 9-9-2010?

4) Whether the plaintiffs are entitled to recover Rs.5,28,000/- towards discharge of the mortgaged loan in due by the 1 st defendant to the

State Bank of India and Rs.1,00,000/- towards damages for mental agony from the defendants 1 to 5?

5) To what relief?

5. During the course of trial, the 1st plaintiff K.Appalanaidu filed his evidence in chief on behalf of himself and the 2nd plaintiff as PW1 by reiterating all the material allegations made in the plaint, one Rapeti Venkata kanaka Ramu is aged about 49 years, R/o Mangalavarapupeta in Munagapaka

Mandal filed his evidence in chief as PW2 by supporting the case of the plaintiffs. Exs.A1 to A9 are marked in support of the case of the plaintiffs. On the other hand, the 3rd defendant namely B.Seeta Ratnam filed his evidence in chief as DW1 on behalf of himself and other defendants by reiterating all the material allegations made in their written statement. One Vegi Venkata

Ramanababu aged about 50 years, R/o Panchayat Street, Munagapaka Mandal filed his evidence in chief as DW2 in support of the case of the defendants. No documentary evidence is produced and marked as exhibits on behalf of the defendants. After closing the recording of oral evidence on behalf of the both 6 the parties when the matter was posted for arguments the learned counsel for the plaintiffs and defendants have submitted their respective arguments and thereafter this matter was reserved for pronouncement of judgment. Due to my personal inconvenience and lack of time I could not able to pronounce the judgment within the time prescribed by the law. Hence, the same may be pardoned as there is no willful intention and negligence in pronouncing the judgment in time,but due to the above said reason only.

6. By taking into consideration of all the above said material on record the issues which have been said in this case are being answered in the following manner:-

7. Issue No.2:

I took up the 2nd Issue to discuss and to decide at 1st instance for the sake of convenience to come to just conclusion on remaining issues 1, 3, 4 and 5. According to this issue it has to be decided that whether the plaintiffs had knowledge about the mortgage of the plaint schedule property with the

State Bank of India as on the date of its purchase.

8. According to the pleadings of both the parties it appears that it is not in dispute that the 1st defendant is the absolute owner of the plaint schedule property as he acquired it from its rightful owner namely Sheik Bob

Johnny under a registered sale deed dt.27-9-2006 under a registered gift deed dt.18-4-2007 executed by his wife. It is also an admitted fact that the 1st defendant executed a registered sale agreement cum GPA dt.2-3-2009 vide

Ex.A3 in favour of the defendants 2 to 5 for valid consideration of

Rs.48,06,500/- and delivered its possession to the defendants 2 to 5 on 2-3-2009 itself and it is also not in dispute that in turn the plaintiffs purchased the plaint schedule property from the defendants 2 to 5 being the 7 representatives of the 1st defendant for valid consideration of Rs.48,06,500/- under Ex.A4 and got the delivery of possession of the plaint schedule property from the defendants 2 to 5.

9. As per the plea taken by the defendants 3 to 5 in their written statement that the plaint schedule property which was sold to the plaintiffs under Ex.A4 was already subjected to mortgage with the State Bank of India,

Dimili Branch for a loan availed by the 1st defendant and the same was informed by them to the plaintiffs at the time of its purchase by the plaintiffs and the plaintiffs and defendants and defendants 1 to 5 have also made an enquiry with the State Bank of India, Dimili Branch with regard to the outstanding loan amount of Rs.5,28,000/-, so that the defendants 2 to 5 have kept apart the said outstanding loan amount out of the total sale consideration of Rs.48,06,500/- and later on it is the same by by the defendants 2 to 5 themselves and discharge receipt issued by the bank was handed over to the plaintiff as the plaintiffs purchased it and as they are in possession of the plaint schedule property.

10. Whereas, the plea taken by the plaintiffs in their plaint that the defendants 2 to 5 have suppressed the fact of mortgage of the plaint schedule property by the 1st defendant with the State Bank of India, Dimili Branch at the time of their purchase of the plaint schedule property by receiving the entire sale consideration and later on he came to know about the mortgage charge over the plaint schedule property by the State Bank of India, Dimili Branch only when the officials of the bank affixed a notice on the door of the plaint schedule property under SARFASE Act to bring the same for sale in public auction in order to recover the amount in due so that he discharged the said amount in due of Rs.5,28,000/- to the State Bank of India, Dimili Branch under Ex.A1 receipt issued by the State Bank of India, Dimili Branch and 8 demanded the defendants 1 to 5 to pay the said loan amount of Rs.5,28,000/- which was discharged by him did none of the defendants come forward to pay the same, so that he entitled to recover the said amount from the defendants 1 to 5 and further claimed that due to the suppression of the material fact of mortgage of the plaint schedule property with the State Bank of India, Dimili

Branch and with regard to the amount in due towards the said mortgage loan at the time of purchase of the plaint schedule property by the plaintiffs they were put to lot of mental pressure, physical strain besides suffering financial loss and the activities of the bank officials who made an attempt to sell the plaint schedule property in public auction by affixing the notice on the door of the plaint schedule property much damage has been caused the reputation and credibility of the plaintiff in the society, so that they are also entitled to have damages of Rs.1,00,000/- from the defendants 1 to 5 for their pain and sufferance.

11. The fact of the mortgage of the plaint schedule property by the 1st defendant with the State Bank of India, Dimili Branch for a loan from it appears as not in dispute and the outstanding loan amount of Rs.5,28,000/- as due to the bank towards the said mortgage loan is also not in dispute and the payments of the said amount in due of Rs.5,28,000/- to the State Bank of

India, Dimili Branch towards the said mortgage loan on the plaint schedule property on 9-9-2010 under the receipt vide Ex.A1 is also not in dispute. But, the only dispute is with regard to the knowledge of the plaintiffs about the said mortgage of the plaint schedule property with the State Bank of India, Dimili

Branch as on the date of the purchase under Ex.A4 and with regard to the suppression of the material fact of mortgage of the plaint schedule property with the above said bank by the 1st defendant without revealing the same to to the plaintiffs at the time of their purchase of the plaint schedule property under Ex.A4 and thereby the sufferance of the plaintiffs both physical and 9 mental besides financial loss and with regard to the attempt made by affixing a notice on the door of the plaint schedule property under Ex.A7 and thereby the damage caused to the reputation and credibility of the plaintiffs in the society and with regard to the entitlement of the plaintiffs to recover an amount of Rs.1,00,000/- towards damages for their pain and sufferance and with regard to the recovery of the loan amount of due i.e., of Rs.5,28,000/- from the defendants 1 to 5 and at last with regard to the fact that by whom the said amount in due of Rs.5,28,000/- was paid to the bank under Ex.A1 receipt i.e., whether it was paid by the plaintiffs or by the defendants 3 to 5.

12. The question that who paid the amount in due of

Rs.5,28,000/- to the bank towards the mortgage loan on the plaint schedule property under Ex.A1 and the question of sufferance of the plaintiffs and damage caused to their reputation to an extent of Rs.1,00,000/- as claimed by the plaintiffs against the defendants and with regard to the entitlement of the plaintiffs to recover the said amount of Rs.5,28,000/- towards the amount in due of the mortgage loan on the plaint schedule property which was paid to the bank under Ex.A1 and the damage of Rs.1,00,000/- from the defendants 1, 3 to 5 can be decided later on at the time of discussion of the relevant issues which have been settled to decide the above said questions but now the knowledge of the plaintiffs about the mortgage of the plaint schedule property with the bank as on the date of purchase of the plaint schedule property by them and with regard to the suppression of the material fact of mortgage of the plaint schedule property with the bank for a loan by the 1st defendant when revealing the same to the plaintiffs at the time of purchase of the plaint schedule property by the plaintiffs alone has to be dealt under this Issue No.2.

13. In order to decide whether the plaintiffs are having knowledge of the mortgage of the plaint schedule property with the bank as on the date 10 of purchase of the plaint schedule property or not. The Ex.A2 legal notice dt.4- 1-2013 issued by the plaintiffs to the defendants 1 to 5 through his advocate and Ex.A8 legal notice dt.3-12-2012 issued by the plaintiffs to the Branch

Manager of the State Bank of India, Dimili Branch, S.Rayavaram Mandal,

Visakhapatnam District are playing a pivotal role in deciding that whether the plea taken by the plaintiffs with regard to the mortgage of the plaint schedule property by the 1st defendant with the bank as on the date of their purchase of the plaint schedule property. Of course, the Certified Copy of the sale agreement cum General Power of Attorney admittedly executed by the 1st defendant in favour of the defendants 2 to 5 under Ex.A3 in respect of the plaint schedule property empowering them to sell the plaint schedule property to any 3rd parties as his agents and the certified copy of a registered sale deed vide Ex.A4 which is admittedly executed by the defendants 2 to 5 in favour of the plaintiffs by selling the plaint schedule property to them for valid consideration discloses that nothing is mentioned in those documents with regard to the fact of mortgage of the plaint schedule property with the State

Bank of India, Dimili Branch by the 1st defendant and with regard to the amounts in due of Rs.5,28,000/- towards the said mortgage loan. If the recitals of the above said two documents are taken in to consideration then it can be said that the plea taken by the plaintiffs in their plaint pleadings as well as the evidence in chief of the 1st plaintiff as PW1 with regard to the fact that the plaintiffs have no knowledge about the said mortgage of the plaint schedule property with the State Bank of India, Dimili Branch and with regard to the amounts in due of Rs.5,28,000/- towards the said mortgage loan appears as probable to believe but if the other circumstances are taken in to consideration which can be construed from the legal notice vide Exs.A2 and A8 which have been issued by the plaintiffs to he defendants 1 to 5 to the State

Bank of India, Dimili Branch prior to the filing o the suit and the fact of remained of the 1st defendant exparte without contesting the suit by filing his 11 written statement and the fact of allowing he suit abated against the deceased 2nd defendant without taking steps to bring his legal heirs on record any amount of doubt can be entertained with regard to the contention of the plaintiffs that they have no knowledge of the fact of mortgage of the plaint schedule property with the State Bank of India, Dimili Branch even at the stage of their purchase of it from the defendants 2 to 5 and that the defendants 2 to 5 suppressed the said material fact etcetera.

14. As per the Ex.A4 admittedly the defendants 2 to5 sold away the plaint schedule property to the plaintiffs under a registered sale deed for valid consideration and its possession was also delivered to the plaintiffs on 20-1-2010 and since then the plaintiffs are admittedly in possession and enjoyment of the plaint schedule property the Ex.A2 was issued by the plaintiffs to their advocates to the defendants 1 to 5 on 4-1-2013 informing to the defendants 1 to 5 for the first time after 3 years of the purchase of the plaint schedule property about the attempt made by the State Bank of India officials to sell away the plaint schedule property in public auction under

SARFASE Act by way of dispossession of the plaintiffs from the plaint schedule property for recovery of the amount in due of Rs.5,28,000/- towards mortgage loan to the said bank and about the payment of the said amount in due to the

State Bank Of India on 9-9-2010 and also made an allegation that despite of his repeated requests none of the defendants 1 to 5 repay the said amounts in due to the plaintiffs. So that the plaintiffs claimed that the said notices that they are entitled to recover the said amount of Rs.5,28,000/- and another amount of Rs.1,00,000/- towards damages from the defendants 1 to 5 and warned the defendants 1 to 5 to pay the said amounts within 3 days after receipt of the said notice with accrued interest otherwise appropriate action taken for recovery of the said amounts from the defendants 1 to 5 .

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15. But, absolutely there is no evidence before the court is whether oral or documentary evidence to establish that when exactly the plaintiffs came to know about the fact of mortgage of the plaint schedule property with the State Bank of India, Dimili Branch made by the 1st accused by availing a loan from it and when exactly the officials of the State Bank of

India, Dimili Branch informed the plaintiffs as there was an amount of

Rs.5,28,000/- in due towards the mortgage debt of the 1st defendant and with regard to the request alleged to have been made by the defendants 1 to 5 to repay the said amounts of Rs.5,28,000/-. There is no explanation from the plaintiff that whey they waited for 3 years from the date of purchase of the sale date without giving any such legal notice to the defendants 1 to 5 by informing the fact of mortgage of the plaint schedule property with the State

Bank of India and with regard to their coming to know about the mortgage of the plaint schedule property with the State Bank of India, Dimili Branch by the 1st defendant and with regard to the suppression of the said material fact by the defendants at the time of sale and with regard to the the payment of the amount in due of Rs.5,28,000/- to the State Bank of India, Dimili Branch under Ex.A1.

16. As per Ex.A7 it appears that it is the photo and CD of notice affixed to the door of the plaint schedule property by the State Bank of India by informing about the mortgage of the said property with State Bank of India,

Dimili Branch by availing a loan from it one Sri Krishna Anjaneya Junior

College and also there is a warning in the said notice that if the bank loan was not discharged immediately the mortgaged property would be attached for sale in public auction in order to recover the mortgage debt. But, the said photo of such notice and CD vide Ex.A7 does not disclose the date when it was affixed to the door of the plaint schedule property by the officials of the State

Bank of India, Dimili Branch. It is also not containing either the seal and seal 13 of the State Bank of India and signature of the Branch Manager of the Dimili

Branch who is authorized to do so. On the face of the Ex.A7 notice it appears that it was not hand writing with blue colour Ink of a sketch pen, the symbol of the State Bank of India is also appears as drawn by not with blue colour ink of sketch pen. In view of the above mentioned characteristics of the said notice alleged to have been fixed by the officials of the State Bank of India, Dimili

Branch to the door of the plaint schedule property it appears that there is every possibility to manipulate such notice by any person and photograph to it for the purpose of this case.

17. When coming to the oral evidence of the 1st plaintiff as PW1 the

PW1 categorically stated that he filed a suit on the file of the Hon’ble I

Additional District Judge’s Court, Visakhapatnam, against the defendants 1 to

5, State Bank of Hyderabad, State Bank of India, Visakhapatnam, State Bank of India, Dimili Branch in OS.226/11 he has not got it mentioned in the above said suit about the payment of the amount in due to the bank made by him and about the liability of the defendants to pay such amount to the said bank.

So also the averments of the plaint in OS.226/11 also discloses that no such averment was made in the said plaint about the payment of amount in due to the bank by him and liability of the defendants to pay such amount to the said bank. The said suit was filed in the year 2011 whereas the present suit was filed in the year 2013. The OS.226/11 was filed by the plaintiffs for a relief of declaration of right and title of the plaintiffs in the plaint schedule property and for consequential relief of permanent injunction restraining the defendants from interfering with the plaint schedule property for costs and such other reliefs. It is not in dispute that the schedule property in the present suit and in

OS.226/11 is one and the same it is also not in dispute that the defendants 1

to 5 in OS.226/11 are also the defendants in the present suit. But, the other defendants i.e., State Bank of Hyderabad, State Bank of India, Visakhapatnam 14 and the State Bank of India, Dimili Branch have not been shown in the present suit. In the said suit it is pleaded by the plaintiff that before purchase that he made enquiry in the Sub Registrar Office, yellamanchili and learnt that there are no encumbrances on the schedule property. The defendants 2 to 5 also as there were no encumbrance and they also gave a copy of encumbrance certificate obtained by them at the time of obtaining the agreement of sale cum General Power of Attorney dt.2-3-2009 but the said fact is not mentioned in the present suit. On the other hand, in the present suit the plaintiff simply stated that the defendants have suppressed the material fact of encumbrance over the plaint schedule property and subsequently he came to know about it when the bank officials affixed the notice on the door of the plaint schedule property which is quite contra to the averments made in OS.226/11 because in the plaint of OS.226/11 vide Ex.B1 the plaintiffs categorically stated about the information given by the defendants 2 to 5 with regard to the existence of encumbrance on the plaint schedule property before its purchase by the plaintiffs and they also given an encumbrance certificate obtained by them at the time of obtaining of the Ex.A3.

18. As per the averments made in the Ex.B1 plaint pleadings by the plaintiffs in OS.226/11 it appears that the plaintiffs have given two contradictory statements in their plaint because on one hand they stated that the defendants 1 to 5 have informed the same about the existence of the encumbrance on the plaint schedule property and gave a copy of the encumbrance certificate to him which was obtained by the defendants 2 to 5 at the time of execution of Ex.A3 which is an agreement of sale cum General

Power of Attorney dt.2-3-2009 i.e., before the date of purchase of the plant schedule property by the plaintiff. On the other hand, the plaintiffs again stated that before purchase of the plaint schedule property the plaintiffs passed enquiry in the Sub Registrar Office, Yellamanchili and learnt that there 15 are no encumbrance certificate in the schedule property and in fact no encumbrance certificates obtained either before the purchase of the plaint schedule property either by the plaintiffs or the encumbrance which was stated as obtained by the defendants 2 to 5 at the time of execution of Ex.A3 are placed before the court by the plaintiffs in this case. In the present plaint the plaintiffs pleaded that subsequently on their enquiry made with Sub Registrar

Office, Yellamanchili they came to know about the existence of mortgage of the plaint schedule property with the State Bank of India, Dimili Branch.

Admittedly, the above said mortgage of the plaint schedule property with the

State Bank of India, Dimili Branch was made by the 1st defendant for availing a loan, if it is so since the mortgage is a registered one then certainly it would have been reflected in the relevant registers of the Sub Registrar Office,

Yellamanchili but when the plaintiffs stated Ex.B1 plaint in OS.226/11 as the

Registrar Office, Yellamanchili said there was no such encumbrance on the plaint schedule property even before the purchase of the plaint schedule property by the plaintiffs and again the same Sub Registrar Office,

Yellamanchili stated to the plaintiffs about the existence of the encumbrance on the plaint schedule property as mentioned in the plaintiffs in the present suit suppose if Sub Registrar of Yellamanchili is deemed as given a false statement to the plaintiffs with regard to the existence of encumbrance on the plaint schedule property. The plaintiffs would have made the Sub Register of

Yellamanchili as a party to the suit and an action would have been taken against him for giving such a false information to the plaintiffs with regard to the existence of encumbrance on the plaint schedule property. But, no such action was taken and the Sub Registrar of Yellamanchili is also not added as a party to the present suit. All the above said facts clearly shows that there is no bonafide on part of the plaintiffs in the pleading that they have no knowledge of the existence of the encumbrance of the plaint schedule property by the date of its purchase by them that they came to know about it recently when a 16 notice was affixed on the door of the plaint schedule property as mentioned in the present suit. It also appears that the plaintiff came to the court with un clean hands by suppressing the real fact of his knowledge about the existence of the encumbrance on the plaint schedule property as on the date of their purchase of it from the defendants 2 to 5 because the plaintiffs categorically stated in Ex.B1 that the defendants 2 to 5 have informed him about the existence of the encumbrance of the plaint schedule property and they also gave a copy of the Encumbrance Certificate to him which was obtained by him a the time of execution of agreement of sale cum General

Power of Attorney dt.2-3-2009 by the 1st defendant in favour of the defendants 2 to 5.

19. The Ex.B1 further discloses that the plaintiffs have also stated in the plaint in OS.226/11 filed against the very same defendants 1 to 5 and 3 other defendants i.e., State Bank of Hyderabad, State Bank of India,

Visakhapatnam and State Bank of India, Dimili Branch as the defendants therein colluded together and trying to create nominal and collusive documents in favour of 3rd party with anti dates to defeat the rights of the plaintiffs. There is no such averments either in the Ex.B1 plaint pleadings or in the plaint pleadings of the present suit that there are any such disputes in between the plaintiffs and defendants immediately after the purchase of the plaint schedule property by the plaintiffs from the defendants 2 to 5 up to the date of issuance of a legal notice under Ex.A5 by the plaintiffs to the State

Bank of India, Dimili Branch alone i.e., on 3-12-2012. Ex.A8 legal notice was issued 1st time to the State Bank of India, Dimili Branch requesting it not to proceed against the plaint schedule property for its sale in public auction and to proceed against the defendants 2 to 5 for recovery of the amount in due of mortgage loan on the plaint schedule property to know such a legal notice was issued to the defendants 1 to 5 till the Ex.A2 legal notice dt.4-1-2013 which 17 was issued to the defendants 1 to 5 only on 4-1-2013 i.e., before filing of the suit. The OS.226/11 was filed on 13-6-2011 and the plaint schedule property was purchased by the plaintiffs on 20-1-2010 if all the above said dates of transactions are taken in to consideration it appears that there is ample opportunity and time to the plaintiffs question the defendants 1 to 5 that why they suppressed the fact of existence of mortgage on the plaint schedule property and if at all any dispute was raised with the defendants before filing of the OS.226/11 ae before the issuance of the Ex.A8 legal notice to the State

Bank of India, Dimili Branch dt.3-12-2012 the same would have been mentioned both in Ex.B1 plaint pleadings as well as in Exs.A2 and A8 legal notices but no such averment is made in those proceedings by the plaintiffs with regard to the raising of a dispute by the plaintiffs with the defendants either in relation to the mortgage on the plaint schedule property and in relations o the suppression of the fact of the mortgage or with regard to any other disputes. In such circumstances and in the absence of any such documentary evidence it is not possible to believe the version of the plaintiffs that the defendants 1 to 5 have been colluded with the State Bank of India,

Hyderabad, State Bank of India, Visakhapatnam, State Bank of India, Dimili

Branch and trying to create nominal and collusive documents in favour of 3rd parties with anti dates to defeat the rights of the plaintiffs in respect of the plaint schedule property.

20. In Para No.III (e) of Ex.B1 has been in OS.226/11 the plaintiffs further pleaded that the 8th defendant is now claiming that the 1st defendant created an equitable mortgage in the name of their bank by pledging the plaint schedule property to the 8th defendant who is nothing but the State Bank of

India, Dimili Branch. From the above said statement it can be said that the plaintiffs had knowledge about the existence of such mortgage on the plaint schedule property made by the 1st defendant with the State Bank of India, 18

Dimili Branch even by the time of filing of the OS.226/11 which was filed on 17-6-2011 as per the date mentioned in the Ex.B1 plaint. But, as per the

Ex.A8 legal notice dt.3-12-2012 the plaintiffs stated that they came to know when the State Bank of India, Dimili Branch officials affixed a notice on the doors of the plaint schedule but when it was affixed was not mentioned. The fact of the filing of OS.226/11 and the fact of claim made by the State Bank of

India, Dimili Branch with regard to the allegation of an equitable mortgage by the 1st defendant in respect of the plaint schedule property in the name of the

State Bank of India, Dimili Branch are not mentioned in the present plaint.

21. Moreover, in Para No.III (d) the plaintiff further stated that the defendants 2 to 5 have already brought to the notice of the plaintiffs about the

Encumbrance Certificate on the plaint schedule property made by the 1st defendant even before the date of the agreement of sale cum GPA dt.2-3-2009 vide Ex.A3 was executed by the 1st defendant in favour of the defendants 2 to

5. If that fact is taken in to consideration there is no strange in the claim made by the State Bank of India, Dimili Branch with regard to the creation of the equitable mortgage by the 1st defendant by pledging the plaint schedule property with it as mentioned in Page No.III (e) of the Ex.B1 plaint and the said averment made in Para No.III (e) by stating that he came to know about the said creation of mortgage only at the time of filing the Ex.B1 plaint appears as quite contra to the averment made in Para No.III (d) of the said plaint pleadings, wherein the plaintiffs claimed that they have already had knowledge about such encumbrance as the same was informed by the defendants 2 to 5 by the plaintiffs and an Encumbrance Certificate was also given to them.

22. As per the Para No.III (f) in Ex.B1 plaint the plaintiffs pleaded that after execution of agreement of sale cum GPA by the 1st defendant in 19 favour of the defendants 2 to 5 after receiving the entire sale consideration of

Rs.48,06,500/- from the defendants 2 to 5. The 1st defendant had no right to execute or alienate the schedule property by way of sale, gift, mortgage or otherwise. The above said averment made by the plaintiffs in OS.226/11 gives an inference that the plaintiffs presuming that the 1st mortgage the plaint schedule property with the bank subsequent to the execution of an agreement of sale cum GPA i.e., vide Ex.A1 apart from a previous encumbrance on the plaint schedule property as informed by the defendants 2 to 5 to the plaintiffs and certified copy of the encumbrance was obtained and handed over the same to the plaintiffs at the time of purchase as mentioned by the plaintiffs in

Para No.III (d) of Ex.A1.

23. Ex.A8 is the legal notice dt.3-12-2012 issued to the Branch

Manager of the State Bank of India, Dimili Branch according to which the plaintiffs contention is that they are the absolute owner of the plaint schedule property by having possession over it as they purchased it under a registered sale deed dt.20-1-2010 from the defendants 2 to 5 for valid consideration and subsequent to their purchase of the plaint schedule property the plaintiffs lent that there is an outstanding Housing Loan in State Bank of India, Dimili Branch created Vasam Chandrarao the 1st defendant herein by showing the plaint schedule property as a security and without prejudice to the rights of the plaintiffs the plaintiffs cleared the entire outstanding amounts in the said mortgage loan and further stated in the legal notice that after clearing the outstanding amount unfortunately the State Bank Of India, Dimili Branch failed to return the original sale deed relating to the plaint schedule property on flimsy grounds and keep the same with the said bank.

24. The plaintiffs further stated in the said notice that unfortunately in spite of clearing the outstanding loan amounts the State Bank Of India, 20

Dimili Branch still claiming that the said Chandrarao created another loan by mortgaging the said property on 5-10-2009. Therefore, the plaintiffs submitted in the said notice that V.Chandrarao (D1) has alienated the plaint schedule property under a registered sale agreement cum General Power of Attorney on 2-3-2009 for valuable consideration by obtaining full consideration in favour of the defendants 2 to 5 and deliver its vacant possession to them. Therefore,

V.Chandrarao (D1) is not the owner of the plaint schedule property from 2-3- 2009 itself as such he has not right to create mortgage on 5-10-2009 or of any other date or even if it is created it is not valid and binding on the plaint schedule property.

25. The contents of the remaining Paras of the notice vide Ex.A8 shows that the said legal notice was issued by the plaintiffs through their

Advocate claiming that they obtain a temporary injunction against the State

Bank of India, Dimili Branch by filing an IA.581/11 in OS.226/11 from restraining it and its employees from interfering with the plaint schedule property but the employees of the State Bank Of India, Dimili Branch disobeyed the said order by way of interfering with the plaint schedule property. The affixing of the notice on the doors of the plaint schedule property is stated as nothing but legal and unlawful act of the State Bank Of India,

Dimili Branch. Therefore, the plaintiffs sought written apology from State Bank

Of India, Dimili Branch in the said notice.

26. If all the contents of the notice of the plaintiffs under Ex.A8 are taken in to consideration it can be understood that the plaintiffs themselves claimed as clear outstanding loan amount to the State Bank Of India, Dimili

Branch but no notice was issued either to the 1st defendant or to the defendants 2 to 5 prior to the Ex.A8 notice informing that he paid such outstanding amount to State Bank Of India, Dimili Branch and demanding 21 them to repay the said outstanding amount to them for the reasons best known to the plaintiffs. But, the Ex.A8 is appears as issued to the State Bank

Of India, Dimili Branch first time by stating that in spite of clearing of outstanding loan amounts the State Bank Of India, Dimili Branch is still claiming that the 1st defendant created another loan by mortgaging the plaint schedule property on 5-10-2009.

27. Of course, the alleged allegation of outstanding loan amount by the 1st defendant dt.5-10-2009 is no way concerned to the present suit but however the 1st defendant can be said that still he is having right and title in the plaint schedule property as on 5-10-2009 because admittedly the 1st defendant executed a sale agreement cum GPA for the plaint schedule property on 2-3-2009 and as per its recitals the 1st defendant only permitted the defendants 2 to 5 to sell the plaint schedule property on his part to any 3rd party. Therefore, by virtue of Ex.A3 which is registered sale agreement cum

GPA it cannot be said that the right and title of the 1st defendant was out and out transferred to the defendants 2 to 5. In such circumstances, when the 1st defendant created any more on the plaint schedule property even subsequent to the registered sale agreement cum GPA vide Ex.A3 dt.2-3-2009 and till the date of sale of the plaint schedule property under a registered sale deed by the defendants 2 to 5 on 20-1-2010 it can be said that the right and title in the plaint schedule property was with the 1st defendant alone if any such mortgage is created by the 1st defendant on 5-10-2009 as stated in Ex.A8 notice by the plaintiff such mortgage will holds good but however since the mortgage deed dt.5-10-2009 alleged to have been created by the 1st defendant with the State

Bank Of India, Dimili Branch is not in dispute in the present suit, there is no need to go in deep the rights and liabilities of the parties to the suit with regard to the said mortgage dt.5-10-2009 the said mortgage is appears as different from the mortgage in respect of which the plaintiffs claiming as clear 22 outstanding amount and when the plaintiffs did not chose and intimate the same either to the 1st defendant or to the defendants 2 to 5 till 4-1-2013 on which a legal notice was issued to the defendants 1 to 5 before filing the suit and coupled with the recitals made in the plaint vide Ex.B3 which was filed in

OS.226/11 filed by the plaintiffs as discussed in the paras mentioned supra I

am of the considered view that the plaintiffs are having knowledge about the mortgage of the plaint schedule property with the State Bank Of India, Dimili

Branch even by the time of purchase of the plaint schedule property from the defendants 2 to 5 under Ex.A4 though the said fact is not mentioned either in the Ex.A3 registered sale agreement cum GPA executed by the 1st defendant in favour of the defendants 2 to 5 dt.2-3-2009 are in the registered sale deed dt.20-1-2010 under which the plaintiff purchased the plaint schedule property from the defendants 2 to 5. Accordingly, the 2nd issue is answered against the plaintiff.

28. Issue Nos.1, 3 and 4:

I took up the above said two issues for its common discussion as both of them are involved with the similar facts and circumstances and evidence to be discussed and come to a just conclusion. According to the Issue

Nos.3 and 4 the main question is whether the plaintiffs themselves discharged the amounts in due of Rs.5,28,000/- to the State Bank of India on 9-9-2010 and entitled to recover the same from the defendants 1 to 5 along with

Rs.1,00,000/- towards damages for mental agony from the defendants 1 to 5.

29. Admittedly, the Ex.A1 counter foil of the challan under which the outstanding amount of Rs.5,28,000/- was paid to the State Bank Of India,

Dimili Branch on 9-9-2010 is with the plaintiffs if the said fact is taken in to consideration as it is by leaving the other circumstances and oral evidence 23 given by the 1st plaintiff as PW1 in his cross examination then it can be said certainly one has to believe that since the plaintiffs are having possession of the counter foil of the challan of Rs.5,28,000/- dt.9-9-2010 which shows thathe said amount was paid to the State Bank Of India, Dimili Branch then there is no other go except to say that the plaintiffs might have paid the said amount to the State Bank Of India, Dimili Branch but none other else but the circumstances under which the Ex.A1 counter foil came in to the hands of the plaintiff and coupled with the oral evidence of the 1st plaintiff as PW1 in his cross examination and the other circumstances are taken in to consideration then it can be said that under any circumstances there is no possibility to believe that the plaintiffs alone paid the said amount in due to the State Bank

Of India, Dimili Branch and they are entitled to recover the same from the defendants 2 to 5 along with Rs.1,00,000/- towards damage.

30. Exs.A8 and A2 are the initial documents which came into existence before filing the suit by the plaintiffs, Ex.A8 is the office copy of the legal notice dt.3-12-2012 issued by the plaintiffs to the State Bank Of India,

Dimili Branch, Ex.A2 is the office copy of the legal notice issued by the plaintiffs to the defendants 1 to 5 dt.4-1-2015 and there after the present suit is filed in the year 2013 itself. Of course, the plaintiffs have pleaded in the present suit as if the defendants 1 to 5 have suppressed the fact of mortgage of the plaint schedule property that the State Bank Of India, Dimili Branch by receiving the entire sale consideration while selling the same to the plaintiffs and subsequently when plaintiffs came to know about the mortgage of the plaint schedule property with the Dimili Branch they paid the amount in due of

Rs.5,28,000/- to the State Bank Of India, Dimili Branch so that now he is claiming as entitled to recover the said amount from the defendants 1 to 5 along with Rs.1,00,000/- towards damages.

24

31. Of course, the plaintiffs have also pleaded in Ex.A1 and A8 notices that they themselves paid the outstanding amount in due of

Rs.5,28,000/- to the State Bank Of India, Dimili Branch on 9-9-2010 after coming to know the same and mortgage of the plaint schedule property with the said bank. Of course, as per the recitals of Exs.A3 and A4 which are the registered sale agreement cum GPA executed by the 1st defendant in favour of the defendants 2 to 5 and the registered sale deed executed by the defendants 2 to 5 in favour of the plaintiffs by selling the plaint schedule property to the plaintiffs by virtue of the Ex.A3 it appears that the defendants 1 to 5 categorically stated that there is no any account of encumbrance on the plaint schedule property bu the defendants 3 to 5 who alone contested the suit categorically stated in their written statement that they have informed the plaintiffs about the existence of mortgage charge over the plaint schedule property as well as the amount in due of Rs.5,28,000/- to the State Bank of

India, Dimili Branch and further claimed that though they received the entire sale consideration from the plaintiffs they set apart amount in due and paid the same to the State Bank Of India, Dimili Branch under Ex.A1 on 9-9-2010.

32. It has already been discussed in the paras mentioned supra while answering the Issue No.2 that in view of the circumstances discussed therein there is no other go except to believe that the plaintiffs are having knowledge about the existence of a mortgage charge over the plaint schedule property with the State Bank Of India, Dimili Branch at the time of their purchase of the plaint schedule property under Ex.A4. Now there is no need to repeat the same at this juncture. Apart from that the statements of the plaintiff as PW1 in his cross examination with regard to the way in which the actual payment of the said outstanding amount of Rs.5,28,000/- was admittedly made in to the bank also gives rise a doubt with regard to the payment of the said outstanding amount into bank by the plaintiffs themselves 25 under Ex.A1.

33. Apart from the circumstances, discussed in Issue No.2 to believe that the plaintiffs are having knowledge about the existence of mortgage charge over the plaint schedule property with the State Bank Of

India, Dimili Branch. The admission made by the PW1 in his evidence in cross that the original sale deed, gift deed under which the 1st defendant got the plaint schedule property i.e., the registered sale deed dt.27-9-2006 and gift deed dt.18-4-2007 were admittedly not handed over the plaintiffs at the time of their purchase of the plaint schedule property. Though the defendant 1 to 5 have promised to handed over the same to the plaintiffs but they handed over only the Photostat copies of the said sale deed and gift deed at the time of purchase of the plaint schedule property by the plaintiffs.

34. The PW1 further stated that he asked the defendants 1 to 5 on two or three occasions to handover the original sale deeds to them, but has not got it mentioned in plaint pleadings as well as his evidence in chief which itself establish the fact that the plaintiffs are having the knowledge about the mortgage under which the title deeds of the 1st defendant were kept with the bank, so that the same could not be handed over by the plaintiffs to the defendants 1 to 5. The plaintiffs have not mentioned the same in the plaint about their demand made by them to the defendants 1 to 5 at last the evidence in chief of the PW1.

35. The PW1 furtehr stated that he has not obtained copies of

Encumbrance Certificate relating to the plaint schedule property at the time of his purchase by him, but in general no prudent man will keep quite without obtaining an Encumbrance Certificate at the time of purchase of the movable.

In the said circumstances when the plaintiffs admittedly kept quite without 26 obtaining Encumbrance Certificate and purchase the plaint schedule property which itself shows that the plaintiffs have knowledge about the Encumbrance over the mortgaged property, so that they did not take care of obtaining any of

Encumbrance Certificate of the plaint schedule property at the time of their purchase of it.

36. PW1 further stated that he came to know after 20 days of purchase of the plaint schedule property about the mortgage of the plaint schedule with the State Bank Of India, Dimili Branch by depositing the title deeds of the 1st defendant with it. But, no notices in writing was given to the defendants 1 to 5, the said circumstances is also giving rise a doubt that the plaintiffs came to know about the mortgage only after 20 days of purchase because admittedly the plaintiffs paid the entire sale consideration to the defendants 2 to 5. In such a case if the plaintiffs do not know about the mortgage at the time of purchase and came to know about it after 20 days of the purchase no prudent man like the plaintiffs kept quite without giving notice to the defendants 1 to 5 demanding them to discharge the mortgage when the defendants 2 to 5 have admittedly received the entire sale consideration from the plaintiffs.

37. When coming to the payment of Rs.5,28,000/- to the State

Bank Of India, Dimili Branch on 9-9-2010 under Ex.A1 the payment of the said amount of Rs.5,28,000/- under Ex.A1 to the State Bank Of India, Dimili

Branch is not in dispute. As per the plaintiffs that they themselves paid the said amount to the State Bank Of India, Dimili Branch under Ex.A1 whereas, the defendants 3 to 5 pleaded that they themselves paid the said amount to the State Bank Of India, Dimili Branch out of the total sale consideration received by them from the plaintiffs.

27

38. In such circumstances, first of all burden is on the plaintiff to establish that the amount in due of Rs.5,28,000/- was paid by them to the bank on 9-9-2010, the Ex.P1 counter foil of the challan under which the challan was admittedly paid to the bank is showing prima facie evidence as in favour of the plaintiff to believe that the said amount in due of Rs.5,28,000/- has paid by the plaintiff under Ex.A1.

39. Since the defendants are claiming that they themselves paid the said amount in due to the bank on 9-9-2010 under Ex.P1 out of total sale consideration by keeping the same a part and later on the said Ex.A1 receipt was given to the plaintiffs as the plaintiffs are in possession and enjoyment of the said property, so that now the burden is shifted to the defendants to establish their contention. Of course, the 1st plaintiff who gave his evidence

before the court on behalf of himself and 2nd plaintiff categorically denied the

suggestion given by the counsel for the defendants that the said amount in due to the bank was paid by the defendants themselves under Ex.A1 receipt and handed over the same to the plaintiff as false.

40. In order to establish the case of the defendants the 3rd defendant gave his evidence before the court on oath as DW1 on behalf of herself and other defendants by stating that at the time of entering in to a contract in between the plaintiffs and defendants for the sale of the plaint schedule property the defendants 2 to 5 have informed the plaintiffs about the mortgage of the schedule property made by the 1st defendant with the State

Bank Of India, Dimili Branch and the defendants 2 to 5 have also agreed to discharge the amount in due to the bank accordingly they kept Rs.5,28,000/- out of the sale consideration of Rs.48,06,500/- and executed the sale deed in favour of the plaintiffs. The DW1 further deposed that after the execution of the registered sale deed in favour of the plaintiff she herself and the 28 defendants 2 to 5 along with the 1st defendant and the plaintiffs went to the bank and paid the loan amount due to the bank through the 1st defendant and obtained the receipt but in view of the execution of the sale deed in favour of the plaintiffs in respect of the said mortgaged property the said receipt under which the loan amount in due of Rs.5,28,000/- was paid was handed over to the plaintiffs.

41. DW1 stated in her evidence in cross that one V.Ramanababu is her son in law who looked after the welfare of the purchase and selling of the schedule property and also proceedings of the suit. At the time of purchase of the plaint schedule property they have not aware of the existence of the bank loan on the schedule property but they came to know about the said bank loan subsequent to the purchase. The 1st defendant availed bank loan by giving the security of the schedule property as such he is liable to pay the bank loan. The 1st defendant also promised to discharge the bank loan, but she do not know whether any acknowledgment was given by the 1st defendant with regard to the promise of discharge of the bank loan, her sone in law alone is aware of the said transaction. No document was executed in between the plaintiffs and themselves and that by whom the debt was availed by the 1st defendant has to be discharged. She never went to the bank but enquired about the quantum of the loan but her son in law made an enquiry about it and came to know that a total amount of Rs.5,28,000/- was in due as on the date of execution of Ex.A1.

The plaintiffs have paid the entire sale consideration to them under a registered sale deed of Rs.5,28,000/-, Rs.5,28,000/- was deducted from the total sale consideration and the same was kept with the custody of her son in law the said amount was deposited in the bank, after completion of 8 months of the execution of Ex.A4 she never asked the 1st defendant to repay the loan amount in due out of the period of 8 months. The 1st defendant also did not pay any amount towards the said loan between the date of execution of Ex.A4 29 sale deed and Ex.A1 receipt.

42. In view of the above said statements made by the DW1 in his cross examination it appears that the entire transaction under Ex.A4 was looked after by her son in law. The DW1 categorically stated that at the time of sale transaction of the schedule property under Ex.A3 they were not aware of the existence of the bank loan but they came to know about th said bank loan subsequent to the purchase. She cannot say that how many days after the purchase of the schedule property they came to know about the existence of the above said bank loan. Of course, the DW3 may not know about the said particulars as her son in law alone looked after all the affairs relating to the transaction of the schedule property. The Exs.A3 and A4 discloses that the defendants 2 to 5 are not having knowledge about the mortgage of the plaint schedule property as on the date of execution of these deeds. Since the DW1 stated that they came to know about the mortgage with the bank only after 8 months of their purchase of the schedule property under Ex.A3 since the date of Ex.A3 is on 2-3-2009 and the date of Ex.A4 sale deed under which the plaintiffs purchased the plaint schedule property is 20-1-2010. The defendants can be said as having knowledge by the time of the execution of the Ex.A4 sale deed.

43. Since the defendants 2 to 5 appears as having knowledge about the mortgage of the schedule property they would have mentioned the same in the Ex.A4 registered sale deed but the same is not mentioned as per the recitals of Ex.A4. If the Ex.A4 is taken into consideration it can be said that the defendants 2 to 5 have suppressed the fact of mortgage of he schedule property with the State Bank Of India, Dimili Branch if the other circumstances are kept aside. But, if the attitude of the plaintiffs are taken in to consideration as they kept quite without obtaining an Encumbrance Certificate or without 30 insisting to have the original link sale deeds of the 1st defendant then a presumption is forced to be drawn as the defendants 2 to 5 and the plaintiffs intentionally got executed the Ex.A4 without mentioning about the existence of the mortgage of the schedule property with the State Bank Of India, Dimili

Branch for the reasons best known to them other wise the plaintiffs being n ordinary prudent persons they would have insisted the original link documents of the 1st defendant and they would also obtain Encumbrance Certificate before entering into a transaction with the defendants 2 to 5 under Ex.A4. Therefore, in view of all the above said circumstances there is no other go to the court except to draw an inference that the plaintiffs might have knowledge about the existence of the mortgage with the State Bank Of India, Dimili Branch in respect of the schedule property as on the date of the execution of Ex.A4 due to the reasons as discussed in Issue No.2.

44. Now the question before the court is that whether the plaintiffs themselves paid the amount in due of Rs.5,28,000/- to the bank under Ex.A1 or whether the said amount was paid by the defendants 2 to 5 to the bank and handed over the Ex.A1 receipt to the plaintiffs as they purchased the schedule property. In the cross examination the DW1 stated that on the date of payment of the loan amount due to the bank the 1st plaintiff, 1st defendant and herself and her son in law and some other persons whose names are not known to her have went to the bank at Munagapaka. The defendants 2, 4 and 5 have not come to the said bank. The son of the 1st plaintiff namely

Srinivasarao also came ot the bank on that day but she could not recognized him. She handed over the entire cash of the loan amount to the 1st plaintiff to deposit the same into the bank. She do not know who filled the pay in slip i.e., the Ex.A1, she was very much present in the bank at the time of repayment of the loan. The DW1 further stated that the said loan amount which was given by her might have been deposited either by the 1st plaintiff or by his son as 31 she did not went near to the bank counter. The 1st plaintiff informed her that he repaid the loan amount but he did not show the repayment receipt. But, she do not know that with whom the repayment receipt was there as she did not make enquiry for it.

45. In view of the above said statements made by the DW1 in her cross examination the learned counsel for the plaintiffs argued that the evidence of the DW1 in her cross examination is creating any amount of doubt with regard to her presence along with the 1st defendant and her son in law in the bank of Munagapaka handed over the loan amount in due to the plaintiff in the said bank itself for its repayment appears as doubtful.

46. When the DW1 further stated in her evidence in cross that she is not having any dispute with the 1st defendant the learned counsel for the plaintiffs submitted that the defendants 2 to 5 and the 1st defendant have colluded together and foisted a false defence in this case to get wrongful gain from the plaintiffs. But, the DW1 denied the suggestion of such collusion in between the 1st defendant and herself and foisting a false case in this case as false and further denied that the plaintiffs were never informed with the existence of the bank loan at the time of transaction under Ex.A4 and that he said loan amount in due was never handed over by her to the plaintiff and that the said amount was paid by the plaintiff himself in the Munagapaka Branch as false.

47. Therefore, in view of the above said reasons it appears that the learned counsel for the plaintiff could not able to contradict the evidence of the

DW1 with regard to the handing over of the money by her to the plaintiff in

State Bank of India, Munagapaka Branch to deposit the same towards the loan amount in due to the State Bank Of India, Dimili Branch under Ex.A1 and its 32 handing over to the plaintiffs as they purchased the plaint schedule land.

48. On the other hand the DW2 who is the son in law of the DW1 namely V.V.Ramanababu while giving his evidence before the court he also stated that he know the 1st defendant from the last 25 years, the 2nd defendant is younger brother of his mother, the 3rd defendant is his mother in law and wife of the 2nd defendant, the 4th defendant is brother of the 3rd defendant and the 5th defendant is the daughter in law of the 2nd and 3rd defendant.

Therefore, the DW2 appears as close relative to defendants 2 to 5 having acquaintance with the 1st defendant from long time.

49. The DW2 further deposed that he arranged the sale transaction between the 1st defendant and defendants 2 to 5 in which the 1st defendant executed the Ex.A3 sale agreement cum GPA in favour of the defendants 2 to 5 on 2-3-2009, at that state the 1st defendant stated with regard to his link documents has misplaced and promised to handover it to the defendants 2 to 5 as and when traced out but subsequently they came to know that the schedule property mortgaged with the State Bank Of India, Dimili Branch by the 1st defendant by creating equitable mortgage when the 1st defendant is questioned about the mortgage he informed that he would clear the loan within short period and asked the defendants 2 to 5 not to worry about it.

50. The DW2 further deposed that when himself and 3rd defendant asked the plaintiffs and 1st defendant to discharge the said loan amount at that juncture for which they stated as the 1st defendant was having some more loan transactions with the said bank by creating equitable mortgage on the schedule property, if they paid all the loan amounts in lump sum i.e., one time statement they will get some remission or subsidy from the bank then this

DW2 and the 3rd defendant informed the plaintiffs and 1st defendant that they 33 would retain the loan amount which is liable to be paid to the bank for which the plaintiffs and 1st defendant agreed then the defendants 2 to 5 executed registered sale deed in favour of the plaintiffs for the schedule property on 20-1-2010 by retaining the loan amount in due i.e., of Rs.5,28,000/- out o the total sale consideration in order to clear the loan transaction.

51. The DW2 further deposed that at the request of the plaintiff and 1st defendant the 3rd defendant and himself asked them to come to their native place Munagapaka to remit the same in the State Bank of India, Munagapaka in order to avoid bringing the cash to the State Bank Of India, Dimili Branch then the plaintiff and his son and some other person came to the State Bank of India, Munagapaka Branch on 9-9-2010 and this witness and his mother in law the 3rd defendant herein also went to State Bank of India, Munagapaka

Branch with cash and the 3rd defendant handed over Rs.5,28,000/- to the 1st plaintiff and when there is a short of Rs.3,000/- the DW2 himself gave the said amount from his pocket to the 1st plaintiff then the 1st plaintiff remitted the same in to the bank under Ex.A1 from then onwards the transaction between the plaintiffs and defendants was completed.

52. The DW2 further deposed that later on he cameto know that the State Bank Of India, Dimili Branch did not return the original sale deeds of the 1st defendant due to the reason that the 1st defendant also liable to pay some other huge loan amounts on the mortgage of the schedule property ot the said bank and the plaintiff and 1st defendant are litigating the for the same. Thereafter the 1st defendant filed OS.226/11 on the file of the I

Additional District Judge’s Court, Visakhapatnam against the defendants 1 to 5

and 3 others representing the State Bank Of India, Dimili Branch for a relief of permanent injunction. Admittedly, the plaintiffs filed OS.226/11 on the file of I

Additional District Judge’s Court, Visakhapatnam for a relief of permanent

34 injunction against the defendants 1to 5 herein and 3 others representing the

State Bank Of India, Dimili Branch without stating anything in the said suit with regard to the alleged deceit made by the defendants 1 to 5 in suppressing the fact of mortgage charge over the plaint schedule property with the State

Bank Of India, Dimili Branch and without mentioning about the depositing of the loan amount in due by the 1st defendant in to State Bank Of India,

Munagapaka Branch on 9-9-2010 though the suit in OS.226/11 was filed on 13-6-2011. Therefore, in view of the non mentioning of the above said facts by the plaintiffs in OS.226/11 and issuance of the legal notice by the plaintiffs only to the State Bank Of India, Dimili Branch under Ex.A8 dt.3-12-2012 it appears that there is a probability and reasonability to accept the version given by the DW2 in his evidence in chief.

53. Apart from that the fact that the plaintiffs purchased the plaint schedule property under Ex.A4 on 20-1-2010 without obtaining Encumbrance

Certificate of the schedule property and the plaintiffs further claimed that subsequently they came to know about the mortgage of the property with the

State Bank Of India, Dimili Branch without mentioning the date of their knowledge but no legal notice was issued to the defendants either to the 1st defendant or defendants 2 to 5 at 1st instance and such a legal notice was issued by the plaintiffs 1st time to the State Bank Of India, Dimili Branch I..e, after lapse of two years and there after only another legal notice was issued to the defendants 1 to 5 under Ex.A2 after lapse of 3 years before filing the present suit without explaining that whey they could not able to take any action against the 1st defendant or defendants 2 to 5 for the alleged suppression of material fact of mortgage of the schedule property with the

State Bank Of India, Dimili Branch. All the above said facts clearly giving rise a doubt that the plaintiffs being a an ordinary prudent man and woman if at all they have no knowledge about the mortgage as claimed bythe DW2 in his 35 evidence in chief as discussed in the paras mentioned supra certainly they would have cheated the 1st defendant as well as the defendants 2 ot 5 at 1st instance without waiting for a such a long period of 3 years to issue a legal notice under Ex.A2 before filing the suit. Therefore, the above said fact is also probablising the version of the DW2 that the plaintiffs consented to purchase the plaint schedule property by knowing the existence loan amount in due against the said property in State Bank of India, Dimili Branch.

54. As per the answer given by the DW2 to the question put by the counsel for the plaintiff by saying that it is the 1st defendant has to discharge the debt to the bank as he availed the loan, for which the DW2 stated that

before the sale of property to the plaintiffs the 1st defendant gave the bank

debt amount to the 3rd defendant since the plaintiffs and 1st defendant asked the 3rd defendant to stop the payment of the bank debt, the 3rd defendant did not discharge the bank debt till the month of September, 2010 asthey would get some benefits from the bank. Thereafter only the 1st plaintiff and 1st defendant asked the 3rd defendant to pay the bank debt as they said the claim with the bank. The 3rd defendant herself brought the amount to the bank as the said amount was till her with that date and she handed over the same to the 1st plaintiff in the bank. The DW2 further stated that he was very much present in the bank and observed the handing over of the money by the 3rd defendant to the 1st defendant in the bank.

55. The DW2 stated to a suggestion given by the counsel for the plaintiff in his cross examination that the entire sale consideration was collected from the plaintiff without deducting the amount which is due to the bank with a fear that in case if the plaintiffs do not discharge the bank debt it will effect to the 3rd defendant. The above said apprehension of the DW2 as well as the 3rd defendant that in case if the plaintiffs failed to pay the amount 36 in due to the bank after deducting the same from the sale consideration then certainly it will effect to the 3rd defendant so that he apprehension of the DW2 appears as probable and in view of the in action of the plaintiffs from all these days i.e., from the date of execution of Ex.A4 in their favour from the date of execution of Ex.A4 sale deed in their favour till the date of issuance of legal notice under Ex.A2 before filing the suit it appears that the case of the DW2 is being probablised.

56. The oral evidence given by the 1st plaintiff as PW1 in his evidence in cross is that an amount of Rs.5,28,000/- was paid to the bank on 9-9-2010. The said amount in due to the State Bank of India was paid in the

Branch of Munagapaka. The 1st defendant is having so many transaction with the State Bank of India, Dimili Branch and that he is not having any transaction with the State Bank of India, Munagapaka Branch. It is true that recently the 1st defendant clear up all his liabilities to the bank that the debts cleared by the 1st defendant are relating to the loans availed by him for the construction of a school. The loan relating to the plaint schedule property was cleared off when ever the amount of Rs.5,28,000/- was paid to the said bank on 9-9-2010.

57. The PW1 further stated in her evidence in cross that he is the native of Etikoppaka which is at a distance of 25 Kilometers away from

Yellamanchili. The mortgage of the plaint schedule property was made with the

State Bank of India, Dimili Branch which is at a distance of 20 Kilometers away from Yellamanchili. All the defendants are the residents of Munagapaka Village and Mandal. The village of the plaintiffs i.e., Etikoppaka is in Yellamanchili

Mandal, Dimili Village is in Rambilli Mandal.

58. If all the above said facts spoken by the PW1 in his evidence in 37 cross as stated in the paras mentioned supra coupled with the evidence given by the Dws.1 and 2 in their evidence in chief and cross it appears that the plaintiffs are the relatives of the Etikoppaka Village in Yellamanchili Mandal whereas the defendants are the residents of Munagapaka Village and Mandal,

Dimili Village where the bank in which the schedule property was mortgaged by the 1st defendant is in Rambilli Mandal. The distance in between Etikoppaka to Yellamanchili and Yellamanchili to Dimili is of 20 Km. Admittedly, the so called amount in due of Rs.5,28,000/- was deposited under Ex.A1 in the State

Bank of India, Munagapaka Branch. As per the oral evidence of the DW1 since the said amount in due to the bank was with the 3rd defendant, the 3rd defendant and himself asked the plaintiffs to come to the Munagapaka in order to avoid in convenience to carry such a huge amount either to the Etikoppaka or Dimili Branches. In view of the above said distance in between Etikoppaka and Dimili and from Dimili to Yellamanchili. The contention of the DW2 as they requested the plaintiffs to come to their Village Munagapaka whereas, the defendants are residing in order to avoid inconvenience to carry such a huge amount appears as probablised.

59. If at all the plaintiff himself paid the amount in due of

Rs.5,28,000/- towards discharge of the mortgage debt he would have deposited the same in to the State Bank of India, Etikoppaka Branch where he is residing then there is no need for the plaintiff to come all the way to

Munagapaka Village to deposit the same towards the mortgage debt. But, admittedly, as per the evidence of PW1 the said amount due was deposited in to the Branch of the Munagapaka. In such circumstances, the contention of the

DW2 and the contention of the 3rd defendant as DW1 and her son in law who who gave his evidence as DW2 before the court on oath that the 3rd defendant himself handed over the said amount in due to the bank towards the loan to the 1st plaintiff by asking him to come to Munagapaka itself in order to avoid 38 the inconvenience to carry the amount of the way to Munagapaka either to

Etikoppaka or to Dimili which are admittedly far away places from Munagapaka appears as probablised.

60. Therefore, in view of the above said reasons I am of considered view that thee is ample evidence before the court to believe that the amount of Rs.5,28,000/- though deposited by the 1st plaintiff towards the mortgage debt into State Bank Of India, Munagapaka under Ex.A1 on 9-9-2010 but it is established that the said amount was actually retained by the 3rd defendant and handed over the same to the 1st plaintiff on 9-9-2010 in Munagapaka,

State Bank of India Branch to deposit the same towards the mortgage loan on the plaint schedule property. Therefore, the contention of the plaintiffs that they themselves paid the said amount due to the bank i.e., of Rs.5,28,000/- is appears as utterly false. So also the claim of the plaintiffs that they have suffered with so much of strain and mental agony due to the attitude of the defendants towards the plaintiffs with regard to the transaction of the plaint schedule property under Ex.A4 and they sustained a damage of Rs.1,00,000/- and he same is entitled to be recovered from the defendants is also appears as not established and the said claim of the plaintiffs is also not sustainable, so that it can be fairly held that the plaintiffs are not entitled to recover either the amount of Rs.5,28,000/- towards the discharge of the loan on the schedule property or the Rs.1,00,000/- towards damages with interest from the defendants 1 to 5. Accordingly, the Issue Nos.3 and 4 are answered against the plaintiffs and Issue No.1 is answered in favour of the defendants.

61. Issue No.5:

In the result, the suit is dismissed with costs.

Dictated to Stenographer, transcribed by him, corrected and pronounced by me in open

court on this 26th day of October, 2017.

SENIOR CIVIL JUDGE,

YELLAMANCHILI.

39

APPENDIX OF EVIDENCE

WITNESS EXAMINED FOR

PLAINTIFF: DEFENDANT:

P.W1 Karri Appalanaidu DW1: Boddeda Seetha Ratnam P.W2 Rapeti Venkata Kanaka RamuDW2: Vegi Venkata Ramanababu

DOCUMENTS MARKED FOR

PLAINTIFF:

Ex.A1:- Bank Receipt Dt.9-9-2010 Ex.A2:- Office copy of the legal notice dt.4-1-2013 Ex.A3:- Certified copy of Registered Agreement cum GPA dt.2-3-2009 Ex.A4:- Certified copy of saledeed dt.20-1-2010. Ex.A5:- 5 postal receipts dt.18-1-2013 Ex.A6:- 4 Postal acknowledgments Ex.A7:- Photo along with CD Ex.A8:- Office copy of Legal Notice dt.3-12-2012 Ex.A9:- Postal acknowledgment.

DEFENDANT:

NIL

Senior Civil Judge,

Yellamanchili 40

1

IN THE COURT OF SPECIAL MAGISTRATE VI

AT VISAKHAPATNAM

PRESENT K. SATYA NAGA BALA PRASAD,

SPECIAL MAGISTRATE VISAKHAPATNAM.

Monday this the 17th day of February, 2025

C.C. No: 518/2022

Between:-

1. Vankiteela Rajendra Prasad.

S/o.Gandhi Naidu, Aged 64 years, D.No.18-13-4, Hill Crest Apartments, Seethammadhara north extension, Visakhapatnam.

2.Gada Kalpana W/o. Vankiteela Rajendra Prasad, aged 58 years, D.No.18-13-4, Hill Crest Apartments, Seethammadhara north extension, Visakhapatnam.

Complainan ts

And:-

Pulivarthi Vijayalakshmi, W/o.Anne Sidhartha Chowdary,aged 48 years, D.No.3-2911/1, Beside P.F.Office, 13-5-199. SrivatsaResidency, Krishna Nagar, Guntur, presently at Vidya nagar, 4th late, left 2nd cross, D.No.4-5-27/11A, Adj to gold's gym, Guntur - 522007

...Accused

This case is coming on for final hearing before me on in the presence of Srl. M.Ravi, Advocate for the complainant, and Sri N.S.V.Reddy, Advocate for accused, and having stood over for consideration till this day, this court delivered the following:- 2

JUDGMENT

1. This is a private complaint filed U/sec. 190 (1) (a) of Cr.P.C., and 200 Cr.P.C., against the accused for the offence punishable U/sec. 138 r/w 142 of Negotiable Instrument Act.

This case was originally filed before the Honourable I

AdditionalChiefMetropolitanMagistrateCourt,

Visakhapatnam, and after taking cognizance of the offence

U/sec. 138 N.I. Act, against the accused, the case was registered as C.C.518/2022 and at the stage of summons to accused, this case is received by this court as per the proceedings of the Honorable Chief Metropolitan Magistrate,

Visakhapatnam communicated in Dis. No. 98 dt: 06.04.2022 by transfer.

2. The brief averments of the complaint are that the complainants are husband and wife and that the complainants and accused are acquainted with each other and out of the said acquaintance the accused borrowed an amount of Rs.1,00,00,000/- on 18.11.2018 and executed two demand promissory notes each for Rs.50,00,000/- in favor of complainants 1 and 2 respectively on the even date agreeing to repay the principal together with interest @ 1.50 ps per 3 one hundred per month to the complainants. But subsequently, inspite of several repeated reminders and requests the accused did not make any payment towards

principal or interest at last the accused issued three different

cheques i.e., 1) bearing No.029518 for Rs.50,00,000/- on 21.08.2021 in favor of 1st complainant, 2) bearing No.029519 for Rs.50,00,000/- on 21.08.2021 in favor of 1st complainant and 3) bearing No.029520 for Rs.11,45,000/- on 21.08.2021 in favor of 1st complainant drawn on Bank of India,

Lakshmipuram branch, Guntur. The cheques issued for an amount of Rs.50,00,000/- each towards clearance of principal and the cheque issued for Rs.11,45,000/- towards part of the interest accrued on the principal. The 2nd complainant had accepted for issue of cheque for clearance of the amount due to her in the name of her husband 1st complainant. All the three cheques were presented by the complainant to their banker Union bank of India, Seethammadhara branch,

Visakhapatnam on 27.08.2021 for clearance, but those cheques were dishonoured and returned along with cheque return memo with an endorsement "Funds insufficient" and the same was communicated to the complainant's by their banker on 27.08.2021. Then the complainants got issued 4 statutory notice to the accused on 16.09.2021 demanding to pay the amounts covered under those cheques within 15 days from the date of receipt of the said notice and that the said notice was served on the accused, but she did not choose to pay the amounts covered under the cheques and to give reply. Hence, this complaint.

3. Basing on the material available on record, cognizance of case was taken for the offence U/sec.138 Negotiable

Instrument Act, against the accused. On receipt of summons to the Accused and on appearance of the Accused he was served with copies under section 207 Cr.P.C., and he was examined U/s.251 Cr.P.C., and the substance of allegations made by the Complainant against the Accused in complaint has been read over and explained to the Accused in Telugu language and he denied the same and claimed to be tried the offence.

4. To prove the guilt of the accused, on behalf of the complainant PWs.1 to 4 were examined and Ex.P.1 to Ex.P.22 were marked on behalf of complainant. Ex.P.1 is the original promissory note dt.18.11.2018 executed by the accused in favour of complainant for an amount of Rs.50,00,000/-, Ex.P.2 is the original cheque bearing number 029518 dt.21.08.2021 5 issued by the accused in favour of complainant for an amount of Rs.50,00,000/- drawn on Union Bank of

India,Lakshmipuram Branch, Guntur towards partial discharge of the debt due under Ex.P.1 promissory note,

Ex.P.3 is the cheque return memo dt.27.08.2021 issued by

Union Bank of India, Seethammadhara Branch,

Visakhapatnam with an endorsement ''Funds Insufficient'',

Ex.P.4 is the original cheque bearing number 029519 dt.21.08.2021 issued by the accued in favour of complainant for an amount of Rs.50,00,000/- drawn on Union Bank of

India, Lakshmipuram Branch, Guntur towards part payment of the amount due to the complainant and complainant's wife, Ex.P.5 is the cheque return memo dt.27.08.2021 issued by Union Bank of India, Seethammadhara Branch,

Visakhapatnam pertaining to Ex.P.4 cheque with an endorsement ''Funds Insufficient''. Ex.P.6 is the original cheque bearing number 029520 dt.21.08.2021 issued by the accused in favour of complainant for an amount of

Rs.11,45,000/- drawn on Union Bank of India, Lakshmipuram

Branch, Guntur towards part payment of the amount due to complainant and complainant No.2, Ex.P.7 is the cheque return memo dt.27.08.2021 issued by Union Bank of India, 6

Seethammadhara Branch, Visakhapatnam pertaining to

Ex.P.5 cheque with an endorsement ''Funds Insufficient'',

Ex.P.8 is the office copy of statutory notice dt.16.09.2021 got issued by the complainant to the accused through complainant's advocate along with postal receipts bearing

No.RN817542170IN and RN817542183IN dt.16.09.2021,

Ex.P.9 is the postal acknowledgment dt.18.09.2021, Ex.P.10 is the original promissory note dt.18.11.2018 executed by the accused in favour of complainant for an amount of

Rs.50,00,000/-. Ex.P.11 is the salary certificate dt.30.09.2018 for the month of September, 2018 issued by Deputy

Manager, Accounts of Dolphin Hotels, Ex.P.12 is the salary certificate dt.31.10.2018 for the month of October, 2018 issued by Deputy Manager, Accounts of Dolphin Hotels,

Ex.P.13 is the salary certificate dt.30.11.2018 for the month of November, 2018 issued by Deputy Manager, Accounts of

Dolphin Hotels, the Management of Dollphin Hotels,

Visakhapatnam credit complainant salary to his account after deductin of Income Tax payable to the Income Tax

Department, Ex.P.14 is the copy of complainant's Income Tax returns issued by complainant's chartered Accountant for the assessment for the year 2015-2016, Ex.P.15 is the copy of 7 complainant's Income Tax returns issued by complainant's chartered Accountant for the assessment for the year 2016- 2017, Ex.P.16 is the copy of complainant's Income Tax returns issued by complainant's chartered Accountant for the assessment for the year 2017-2018, Ex.P.17 is the copy of complainant's Income Tax returns issued by complainant's chartered Accountant for the assessment for the year 2018- 2019, Ex.P.18 is the salary certificate dt.19.08.2023 of second complainant for the month of September, 2018 to November, 2018 issued by Chief Manager-HR, Ushodaya Publications,

Visakhapatnam, The Management of Ushodaya Publications credit second complainant salary to her account after deduction of Income Tax payable to Income Tax Department,

Ex.P.19 is the copy of income tax returns by second complainant's chartered account for the assessment year 2015-2016, Ex.P.20 is the copy of income tax returns by second complainant's chartered account for the assessment year 2016-2017, Ex.P.21 is the copy of income tax returns by second complainant's chartered account for the assessment year 2017-2018, Ex.P.22 is the copy of income tax returns by second complainant's chartered account for the assessment year 2018-2019, 8

5.After closure of the Complainant side evidence, the Accused was examined U/s. 313 Cr.P.C and the incriminating circumstances appeared against the Accused was read over and explained to the Accused in Telugu language and he denied the same and reported that he got defence evidence. Accused has not adduced any evidence, hence, defence evidence of accused as treated as NIL.

Heard, arguments of both sides.

6. Now the points for determination are:

1. Whether the accused borrowed Rs.1,00,00,000/- from the complainants 1 and 2 on 18.11.2018 executed two demand promissory notes as legally enforceable debt?Whether the accused issued Ex.P.2, P4 and P6 cheques in favour of complainants 1 and 2 towards part payment of the debt amount ?Whether the statutory notice dated 16.09.2021 is serve on the accused? Whether the Complainant has proved the guilt of the accused beyond all reasonable doubt for the offence U/sec. 138 of Negotiable Instrument Act 2.To what relief?

7.In view of the above said rival contentions of the complainant and the accused, I am of the considered view that it is necessary to recap the sec 138, 118 and 139 of NI 9

Act and section 27 of general clauses act for proper appreciation of the evidence on record coupled with the ingredients of sec 138 and the presumptions provided U/s 118 and 139 of NI Act and section 27 of general clauses act in order to come to a just conclusion that whether the accused in this case has committed an offence U/sec 138 of

NI Act.

Sec 138: Dishonour of cheque for insufficiency etc., of funds in the account:- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge in whole or in part of any debt or other liability is returned by the bank unpaid either because of money standing to the credit of that account is insufficient to

honour the cheque or that it exceeds the amount arranged to

be paid from the account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provision of this act be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both.

Provided that nothing contained in this section shall apply unless -

(a) The cheque has been presented to the bank within a period of 6 months from the date on which it is drawn or within the period of its validity, whichever is earlier.

10

(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, within 30 days of the receipt of the 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 15 days of the receipt of the said notice.

Explanation:For the purposes of this section “debt or other liability” means a legally enforceable debt or other liability.

Sec 118: Presumptions as to negotiable instruments :- Until the contrary is proved the following presumptions shall be made -

(a)Of consideration– That every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration.

(b) as to date; that every negotiable instrument bearing a date was made or drawn on such date…………..

Sec 139: Presumptions in favour of holder of a cheque – It shall be presumed, unless the contrary is proved, that the holder of a cheque received the 11 cheque of the nature referred to in sec 138 for discharge, in whole or in part, of any debt or other liability.

Where in Section 27 in The General Clauses Act, 1897 says

27. Meaning of service by post .Where any [Central Act] [Substituted by A.O.1937, for " Act of the Governor General-in-Council.] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

The analysis of sec 138 of NI Act shows that in order to constitute an offence U/s 138 of NI Act, the cheque shall be issued by the accused by drawing the same on a bank in which he / she is having an account in favour of the complainant in order to discharge an amount in due and in turn the complainant must have presented the same in his bank within a period of 3 months ( now )or within a period mentioned in the cheque, whichever is earlier from the date mentioned in it and it must have been dishonoured for the reasons shown in Sec.138 of NI Act. On dishonour of the cheque, the payee of the cheques should cause a demand 12 legal notice in writing within 30 days from the date of dishonour of the cheque demanding to pay the amount covered by the cheques within 15 days from the date of service of the notice. If the drawer of the cheque fails to pay the amount covered by the cheque within 15 days from the date of service of the notice then the cause of action arises for filing a complaint.

8.It is settled law that the presumption under section 139 of N.I Act is rebutting presumption and that the accused can rebut the presumption under section 139 of N.I

Act by adducing direct cogent evidence in support of his defence or through the evidence available on record let in by the complainant eliciting something through the prosecution witness in support of his defence. And like wise as for section 27 of General Clauses Act presumption can be drawn with regard to deemed service if letter is posted to correct address.

9.According to the complaint, complainants are husband and wife and that the complainants and accused are acquainted with each other and out of the said acquaintance the accused borrowed an amount of Rs.1,00,00,000/- 18.11.2018 and executed two demand promissory notes each for Rs. 50.00.000/ in favour of complainants 1 and 2 13 respectively on the even date agreeing to repay the principal together with Interest @ 1.50 ps per one hundred per month to the complainants. But subsequently, inspite of several repeated reminders and requests the accused did not make any payment towards principal or interest at last the accused issued three different cheques 1) bearing No.029518 for

Rs.50,00,000/- on 21.08.2021 in favour of 1st complainant 2) bearing No.029519 for Rs. 50,00,000/- on 21.08.2021 in favour of 1" complainant and 3) bearing No.029520 for Rs.

11,45,000/- on 21.08.2021 in favour of 1" complainant drawn on Bank of India, Lakshmipuram branch, Guntur. The cheques

Issued for an amount of Rs.50,00,000/- each towards clearance of principal and the cheque issued for Rs.

11,45,000/- towards part of the interest accrued on the

principal. The 2nd complainant had accepted for issue of

cheque for clearance of the amount due to her in the name of her husband 1st complainant. All the three cheques were presented by the complainant to their banker Union bank of

India, Seethammadhara branch, Visakhapatnam on 27.08.2021 for clearance, but those cheques were dishonoured and returned along with cheque return memo with an endorsement "Funds insufficient" and the same was 14 communicated to the complainant's by their banker on 27.08.2021. Then the complainants got issued statutory notice to the accused on 16.09.2021 demanding to pay the amounts covered under those cheques within 15 days from the date of receipt of the said notice and that the said notice was served on the accused, but she did not choose to pay the amounts covered under the cheques and to give reply.

10. According to the accused, she did not borrow

Rs.1,00,00,000/- from the complainants at any point of time much less on 18.11.2018 and she did the not execute any of the promissory note in favour of complainants. As such there is non existence of legally enforceable debt between complainants and accused. She also contended that she never issued the cheques in dispute in favour of complainant towards discharge of alleged legally enforceable debt. She further contended that the first complainant and husband of accused used to do prose finance business jointly and that the complainant used to send the profits in their business every month to the accused and her husband since the year 2011 and the 1st complainant committed theft of cheque book of accused and filled up the blanks of those cheques available in the said cheque book forging the signatures of 15 accused and that the husband of accused lodged the police report against the 1st complainant before II town PS.

Visakhapatnam in connection with the financial transaction between the complainants and husband of accused. As such the question of issuance of cheque in dispute by the accused

In favour of complainant on 21.08.2021 does not arise. She also contended that the complainant created the promissory note for the purpose of this case. The other contention of the accused is that no statutory notice was served on her and the signature on Ex.P9 postal acknowledgment not belonging to accused. As such the accused has not committed any offence punishable under section 138 of NI Act. Hence, the complaint is liable for dismissal and accused is entitled for acquittal.

11.To substantiate their respective claims complainant himself examined as P.W.1Complainant himself examined as PW1, who reiterate all the averments of complaint with regard to accused borrowed amount of ₹1,00,00,000 on 18-11-2018, and executed to demand promissory notes of ₹50 lakhs each agreeing to repay the

principal together with interest at the rate of 1.50 per 100

per month to them, on demand and thus, there is a legally enforceable debt or liability in their favour against the 16 accused in spite of several demands, accused issued three different cheques, one for 50 lakhs. another for 50 lakhs and another cheque for 11,45,000 in favour of first complainant.

For which it is contended that if demand promissory notes are executed one in favour of complainant No1and another in favour of complainant No2, how can it be expected all the cheques said to be arise out of the same transaction be issued to First complainant only as such they are invalid. It cannot be said that they were issued in discharge of enforceable debt. As such whatever contention taken by the complainant is not acceptable and they are objectionable and they cannot be taken into consideration the liability against first complainant only to the extent of 50 lakhs said to be given to accused but not for remaining 50 lakhs which is said to be given by the wife of complainant.

12. Later they were presented in their bank union of India

Seethamma Dhara branch Visakhapatnam on 27-08-2021, but they were dishonoured with an endorsement funds insufficient with return memo, 27-08-2021, All the three cheques together filed as per section 219 CRPC the notice was issued on 16-09-2021. The same was served on the accused on 18-09-2021, but no reply was given by accused.

17 hence this complaint and he got marked exhibit P1 to P 9.

13.In his cross-examination, Pw1 admitted that he worked in dolphin Hotel Visakhapatnam from 1995 to August 2022. Complainant is his wife. She worked in Eenadu as sub editor, Monthly salary about 55,000 to 60,000. She worked since 1995 to 2020. He used to draw monthly salary of 3,10,000 while he worked in dolphin Hotel, he is income tax assessee he did not show these amounts in his income tax returns or in his wife’s income tax returns. He has not filed any civil suit for recovery of said promissory note amounts, there is no documentary to show the amounts are drawn from a bank. He joined in dolphin hotels as manager his monthly salary ₹25,000 as a manager by then in the year 2005 is monthly salary raised to 1,50,000. He also admitted that as per ration card, he has shown his annual income is about three lakhs in the year 2005. Further admitted that the total income of their family is three lakhs, he has not filed about his monthly salary as ₹3,10,000 as vice president of dolphin hotels, Visakhapatnam, he admitted that as per his complaint and chief affidavit, it was shown that he lent only 50 lakhs to the accused. He has filed one cheque for ₹11,45,000 another cheque for ₹50 lakhs and another 18 cheque. for 50 lakhs in the name of his wife.

14.With this, it is contended that their total income was shown as 3,50,000 per annum in ration card, but claiming that they lent an amount of ₹1,00,00,000, it is really not believable when monthly salary is very low, it cannot be expect one crore rupees said to be in the possession of the complainant 1 and 2. It is to be established by the complainants that they are having financial capacity to lend such huge amount of one crore, but they failed to do so as rightly contended by the accused counsel. When they admitted total income is about three lakhs. It is their duty to furnish the particulars how they accumulate the amount of one crore to lend the same to accused. It is to be explained by the complainant. What is their source of income how they get one crore rupees which is very large amount. It is claimed that 50 lakhs were given by his wife another 50 lakhs was given by complainant NO1 but cheques are drawn in favour of Complainant NO1 alone for an amount of 1,11,45,000 by way of three cheques, this is very ridiculous. No explanation was given by the compliment NO1. It is admitted by the complainant. NO 1 and 2 for which it is contended by the accused the cheques are fabricated by obtaining them by 19 way of illegal means. which cannot be ruled out

15.It is further contended that cheques only to be issued for enforceable debts then only it comes under purview of section 138 of NI act. He further admitted that accused is housewife and also business woman and he has proof to file for the same. He further admitted that the accused is financially very sound woman express ignorance about the properties of accused in Guntur and Rajahmundry.

The accused is having properties but he cannot say its value.

His son also lent amounts and that he got filed one complaint under section 138 of NI act through his son against accused on the file of 24th additional Metropolitan magistrate Court

Ranga Reddy district, he does not remember where it was filed and expressed his ignorance about Let Out, her property at rajahmundry to run Kims hospital for a period of 45 years and she received consideration of ₹14,00,00,000s from the management of Kim hospital He also not aware of consideration amount.

15.With this it is contended that the accused and her husband are having financial capacity they need not borrow any amount from anybody. They have such a financial capacity to run KIMS Hospital and other institutions as such 20 accused as no need to borrow any amount from the complainant. He further disclosed that at the time of exhibit P1 transaction, accused and her husband, himself and his wife and scribe of promissory note by name Ramana

Murthy was presen, after completion of scribing exhibit P1 promissory note and subscription of signature of accused on it, the attestors namely Srinivas Rao and Vykunta Rao came to there. they took one hour time for completion of Ex.P.1 transaction. He paid amount to the accused under Ex.P.1 in five hundred rupee denominations. Likewise the complainant tried to explain how the transaction took place.in whose presence it was taken place what are the denominations.

The accused counted the currency bundles but he did not count the amount. Ex.P.1 transaction took place in Dolphin hotel. Both the attestors of Ex.P.1 promissory note are employees in Dolphin Hotel and worked under him and also stated the husband of the accused is boss for the attestors of

Ex.P.1 promissory note. they have not obtained the signature of husband of the accused in Ex.P.1 promissory note. He admitted that he might have sent Rs.25,000.00 to

Rs.30,000.00 to the accused every month by way of account transfer. He denied about himself and husband of the 21 accused jointly used to do finance business and receiving profits since the year 2011. He admitted that the payee name and amount in letters in Ex.P.2 cheque was written by him but the amount Rs.50,00,000.00 in figures in Ex.P.2 was written by the accused. He admitted that the date on Ex.P.2 cheque was written by him it was put on Ex.P.2 at the instructions of accused. Witness adds that he put that the said date on Ex.P.2 at the instructions of accused. He admitted that the pen used for written the payee name and amount portion in letters and date different from the pen used for the alleged signature of accused and amount portion in letters in Ex.P.2 cheque. These facts are elicited by the accused counsel to substantiate his stand with regard to the financial position of accused and her husband and they have no need to borrow any amount from the complainants and how they fabricated the pronotes Ex.P.1 and Ex.P.10and cheques which were obtained by illegal means and also contended that if really amount is said to be given by the complainant No.2 for an amount of Rs.50,00,000/- she is only eligible to receive the cheque in her name for the said debt but not by any other person's name including her husband.

If really they want to transfer the amount to her husband it 22 should be endorsed on pronote and it should be transfer in the name of first complainant but no such transfer was made without such transfer it cannot be said that, first complainant is eligible to receive the cheque on behalf of his wife complainant No.2 as such the cheque said to be issued for enforceable debt of the wife of first complainant to first complainant without any such endorsement on said pronote

Ex.P.10 it cannot said that it is a valid issuance of cheque in favour of first complainant for the said debt amount of his wife. He expressed his ignorance about the signature on

Ex.P.9 postal acknowledgment belong to whom. he got issued two notices to the accused as per the postal receipts filed by him into court. His wife has not filed any civil suit against the accused. It is denied that the accused did not issue Ex.P.2 cheque on 21.8.2021 in his favour. It is denied that the statutory notice (Ex.P.8) alleged to have been got issued by him to the accused is not valid under law. It is denied that he has no financial capacity to lent such huge amount to the accused and that he has borrowed amounts from the accused and her husband so many times for his needs. It is denied that there is no existence of legally enforceable debt between himself and accused for which it is contended by the 23 accused counsel that the issuance of cheque to the first complainant for the amount said to be borrowed from the wife of first complainant i.e. second complainant, unless there is a transfer by way of endorsement on the said pronote in favour of first complainant as such issuing cheques to first complainant does not come under purview of enforceable debt, but there is no transfer endorsement is found in the case of second complainant pronote Ex.P.10

16.Wherein P.W.2 in her chief examination stated about her acquintance with the accused and lending amount of Rs.1,00,00,000/- out of which she lend an amount of

Rs.50,00,000/- her husband lent an amount of Rs.50,00,000/- out of savings of her salary and her husband salary. agreed to repay the same with interest but failed to do so, on insists three cheques were issued in the name of her husband and also confirmed that it was presented in their bank which was dishonoured with return memo ''insufficient funds'', hence notice is issued and filed the complaint and pronote was maked as Ex.P.10. but it was not explained what made them to obtain three said cheques in the name of first complainant even she is said to be lent an amount of Rs.50,00,000/- and obtained cheque in favour of her husband i.e. first 24 complainant without such any such endorsement or written consent in complaint they stated that with the consent of second complainant cheques are issued by the accused in favour of first complainant, it is not tenable under law, which needs some more documents support to substantiate their case.

17.In her cross examination that she admitted that she knows that the complaint filed under Section 138 of

N.I.Act when the cheques were dishonoured. The accused executed pronote in her favour and she filed the same

before the court. She admitted that none of the cheque filed

into court is in her name. she adds that the accused issued cheque in the name of her husband as it is their joint account. she admitted that the accused did not issue any cheque in her name. she has not filed any civil suit against accused for recovery of money basing on Ex.P.10 promissory note. It is very clear that she did not receive any cheque from the accused for the said enforceable debt amount said to be exiusting under Ex.P.10 but the cheque was issued in favour of first complainant for which the accused counsel contended that it is not a valid cheque it is fabricated one by obtaining them in illegal means it is not tenable under law 25 and it cannot be said that it was issued for enforceable debt.

It is the duty of P.W.2 to take steps to transfer the pronote in favour of her husband to give validity to the said liability but they failed to do so. In such circumstances this court finds that what ever contention taken by the accused counsel has force with regard to cheque said to be issued in the name of second complainant’s husband for the said enforceable debt of second complainant without any valid endorsement for transfer of debt. But no such thing was found on Ex.P.10 for that the said liability a cheque said to be issued in favour of first complainant cannot be treated as enforceable debt though she took a plea that it was presented in a joint account does not fulfill the requirement under Section 138 of

N.I.Act with regard to enforceable debt. She admitted that

Ex.P.10 is barred by limitation as on the date of cross examination. She has not withdrawn the amount from her bank which was alleged to have lent to the accused. She never maintain such huge amount in her bank account either in the year 2016, 2017 or 2018. If itself clearly shows that she has not withdrawn from the bank she lend the amount from the amounts available in their house is really ridiculous, a person is holding ration card where the income was shown 26

Rs/3,00,000/- per annum even considering the plea of P.W.1 that his salary is about Rs.3,00,000/- per month and his wife salary about Rs.50,000/- per month together it comes to

Rs.3,50,000/- per month like wise an annual income goes to

Rs.42,00,000/- but not Rs.1,00,00,000/-, It cannot expected from a person who is said to be capable to hold

Rs.1,00,00,000/- in his or her house or jointly in their house.

More over the monthly income after family expenditure can be considered only an amount of Rs.1,50,000/- or

Rs.2,00,000/- even considering the same it amounts to

Rs.24,00,00/- as savings even considering the same keeping

Rs.1,00,00,000/- in the house as savubgs is not believable, it is out of preponderance of probability.

18.She admitted that her husband used to sent

Rs.20,000.00 to Rs.30,000.00 every month to the accused towards amount payable to her for chit . she adds that her husband used to send those amounts towards subscription of chit run by the accused. It is denied that the accused never run chits and that her husband never sent amount towards subscription of chit to the accused. Initially she worked as

Sub-Editor / Reporter in Eenadu. She had joined in Eenadu

News Paper in the year 1998. At the time of her joining as 27

Sub-Editor/Reporter her monthly salary is Rs.5,000.00. She admitted that in their ration card their annual income was shown as Rs.3,00,000.00. It is denied that the amount

Rs.50,00,000.00 mentioned on the head of Ex.P.10 in figures and the remaining writings in the blanks of Ex.P.10 promissory note are not with one and the same pen and not in one colour of ink. Ex.P.10 transaction took place in

Dolphin Hotel. On perusal of Ex.P.10 the hand writing and ink on amount and date column different from the body of the pronote for which it is contended by the accused counsel that they subsequently filled up and they are fabricated by obtaining them by illegal manner. It is admitted that she has no idea who scribed Ex.P.10 promissory note (even perusal of

Ex.P.10 promissory note).For which this courts finds that it clearly indicates that she has no idea with regard to Ex.P.10 transaction and it was not taken place in her presence . She further admitted that She did not show the amount alleged to have lent to the accused in her Income tax returns as she has lent the said amount to the accused. It is very essential to show that they have submitted the same in Income Tax

Returns but they failed to do so as such with regard to huge amount of Rs.1,00,00,000/- it cannot be believable unless 28 cogent evidence is adduced by the complainants. In the present case except promissory note Ex.P.1 and Ex.P.10 no other evidence is adduced to show that they are in possession of Rs.1,00,00,000/- and it was lent to the accused.

Hence, this court finds that there is no probability to lend such huge amount to accused by the complainant with their moderate source of income. She further admitted that her son filed a case under Section 138 of N.I.Act against the accused at Hyderabad. Itself clearly indicates that without such financial capacity how they able to give such huge amount to accused and more over her son also filed criminal case for dishonour of cheque clearly shows that they are fabricated the cheque which are obtained by illegal means.

19.On seeing the evidence of P.W.3 in his chief examination confirmed that he is the scribe of promissory note, accused borrowed an amount of Rs.1,00,00,000/- two demand promissory notes were executed for Rs.50,00,000/- each agreed to repay at interest rate of 18% per annum, the transaction took place on 18.11.2018 at Dolphin Hotel,

Visakhapatnam in the presence of himself, accused, B.Srinu,

P.Vykunta Rao and the complainant the blanks are filled by him obtained signatures on revenue stamp affixed thereto, 29 later B.Srinu and P.Vykunta Rao attested. P.W.3 in his cross examination stated that he is working as advocate clerk in the office of Akella Venkata Suryanarayana, Advocate since 2018 till date. He studied upto 10th class. He went to

Dolphin HOtel at the request of 1st complainant on the date of transaction. By the time he reached the Dolphin Hotel the complainants 1 and 2, the accused and her husband were present. The 1st complainant got One crore rupees and gave the said amount to the accused. The denomination of currency paid by the complainant to the accused in 500 rupee denominations. The accused and her husband and 1st complainant counted the bundles of cash but not each currency notes. One Vykunta Rao and Srinu are the attestors came to there after his arrival, the 1st complainant told him and introduced them as Vykunta Rao and Srinu who were working in the same Hotel. He reached the hotel by 10.00 A.M. and the transaction completed by 12.30 noon.

The witnesses of Ex.P.1 and P.10 promissory notes were also present at the time of the said transaction. He further stated that the attestors of Ex.p.1 and P.10 has signed in his presence with their own pens. He has not received summons from this court in this case at the request of complainant 30

No.1 I came to the court to give evidence on his behalf. The evidence of P.W.3 has no force unless P.Ws.1 and 2 establish the case of prosecution by producing cogent evidence and showing the probability of holding a huge amount of

Rs.1,00,00,000/- in their custody and it was lent to the accused , when they failed to establish the same the question of other aspects like denomination, using pens to put signatures and other aspects with regard to present at the time of transaction does not arise. More over from the evidence of P.W.3 it cannot be established about possession of Rs.1,00,00,000/- with complainants as such it cannot be said that is is a supporting evidence to P.W.1 and P.W.2.

20.Wherein P.W.4 in chief examination stated that he is the attestor of promissory notes accused borrowed

Rs.1,00,00,000/- executed two promissory notes for an amount of Rs.50,00,000/- each agreed to repay at interest at the rate of 18% per annum, transaction took place at Dolphin

Hotel, Visakhapatnam on 18.11.2018 in the presence of accused, complainants, and himself, B.Srinu, V.Radha Krishna where accused signed on revenue stamps of pronotes, Srinu and himself attested two promissory notes. P.W.4 in cross examination stated that he studied upto Graduation in 31

Commerce. At present he has been working as I.T.Manager in Radiation Blue Hotel, Rushikonda, Visakhapatnam. In the year 2018 he used to work as I.T.Manager in KEYs Hotel, near

Leela Mahal Theater, Visakhapatnam. He has not received any summons from this court to give evidence in this case.

At the request of complainant No.1 he came to the court to give evidence on his behalf. The complainant No.1 telephoned him in the last week. His duty hours in Keys

Hotel in the year 2018 is 9.00 A.M. to 6.00 P.M. The accused Vijayalakshmi and Siddhardh counted the amount.

They have taken two to three hours for counting cash. They have counted the bundles but not each currency notes, all the amounts in five hundred rupee denominations. By the time of his arrival, the complainants, accused Vijayalakshmi,

Sidhardh and writer Radha Krishna were present there. The entire transaction took place in the presence of the above persons. The complainant did not inform him who gave evidence in this case before the court. He is having acquaintance with the 1st complainant since the year 2008.

He is worked in Dolphin HOtel also since the year 2008 to 2016 as I.T. Executive.By that time the 1st complainant is the General Manager of Dolphin Hotel,Visakhapatnam.

32

The promissory notes Ex.P.1 and P.10 were filled up one after one on that day. The accused handed over the promissory notes to the scribe for scribing those documents. Though they stated in support of P.Ws.1 and 2 but initial burden laid on P.Ws.1 and 2 were not discharged in accordance with law with regard to financial capacity of P.Ws.1 and 2 to hold such huge amount of Rs.1,00,00,000/- in their house where their total income said to be Rs.3,50,000/- per month without deductions of their monthly expenditure in such circumstances, it cannot be believed about holding of

Rs.1,00,00,000/- in their house, it is most improbable. In the circumstances, this court finds that P.Ws.1 and 2 failed to discharge their initial burden of proof with regard their financial capacity to hold Rs.1,00,00,000/- in their house. In the present case the accused contended that cheques are fabricated by obtaining them by using illegal method as such they are not filled in one ink and also contended that the cheques are not valid cheque which are said to be issued to first complainant for the debt of first and second complainants along with interest thereby three cheques are said to be issued one for the liability of Ex.P.1 promissory note another for the liability of Ex.P.10 promissory note 33 another cheque was issued for said interest arose out of

Ex.P.1 and Ex.P.10 promissory notes but all are issued in the name of first complainant, this type of issuing cheques does not come with in the purview of Section 138 of N.I.Act, thereby they didn’t come under Section 118 and 139 of N.I.

Act to draw a shall presumption issuing cheque for the liability under Ex.P.10 said to be delivered to second complainant but it was delivered to first complainant, has no force in the eye of Law even it is meant for joint account, in such circumstances this courts finds that as the complainant filed the complaint case pertaining to three cheques together doesn’t come within the purview of Section 138 of N.I.Act as such the question of drawing the presumption under Section 139 and 118 of N.I.Act does nor arise, filing the complaint for three cheques together in one complaint creates a doubt with regard to enforcement of liability under Section 138 of N.I.Act and benefit of doubt goes in favour of accused, this is not the case filed separately for the three cheques said to be drawn by the accused in favour of both the complainants, in such circumstances this court finds that complainant failed to establish their case which cheque was given for which pronote to discharge which complainant's liability. There is a 34 ambiguity in the complaint itself hence this complaint doesn’t come within the purview of Section 138 of N.I.Act, as such the question of presumption under Section 118 and 139 of

N.I.Act does not arise. More over the complainants failed to establish their financial capacity to lend such huge amount of

Rs.1,00,00,000/- to accused as such this court finds that the complainants 1 and 2 failed to establish that there is a existence of enforceable debt between accused and themselves, as such this court finds that this case does not comes within the purview of Section 138 of N.I.Act and the question of presumption under Section 139 and 118 of N.I.Act does not arise.

21. For which the complainant would like to rely upon the case law reported in Supreme Court of India

Rohitbhai J Patel vs The State Of Gujarat on 15 March,

2019 2023 LiveLaw (SC) 866

Wherein it was held that Section 138 of N.I.Act read with 118 and 139 of N.I.Act the ingredents shall be satisfied, the presumption rightly drawn the cheque in question was drawn for consideration and holder of the cheque receive the same in discharge of an existing debt, onus thereafter shift to accused presumption mere denial would not fulfil the requirement of rebuttal, the case is not applicable to present case, as the complainant failed to discharge their initial burden of proof to establish their financial capacity to prove that they are in possession of Rs.1,00,00,000/- on the date of 35 execution of two pronotes and that was lend to accused but no evidence is adduced in the circumstances question of rebuttable evidence does not arise more over the complainants P.Ws.1 and 2 admitted about their income it does not exceed Rs.3,50,000/- for month, in such circumstances separate evidence need not be produced by the accused to rebut the case of complainant, to establish to draw the presumption under Section 139 of N.I.Act and 118 of N.I.Act.

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE

JURISDICTION ARAVIND KUMAR; J., S.V.N. BHATTI; J.October 09, 2023

CRIMINAL APPEAL NO. 3126 OF 2023 ( Special Leave Petition (Cri.) No. 12802 of 2022)

Rajesh Jain versus Ajay Singh

Negotiable Instruments Act, 1881 Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section

138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact Independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly. (Para 55)

Negotiable Instruments Act, 1881 When the Courts have concluded that the signature in the cheque has been admitted and its execution has been proved, then the Courts should inquire into either of the two questions: 1. Has the accused led any defense evidence to prove and conclusively 36 establish that there existed no debt/liability at the time of issuance of cheque? 2. In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the 'particular circumstances of the case? (Para 56)

Negotiable Instruments Act, 1881 Once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. (Para 45)

Negotiable Instruments Act, 1881 - The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. (Para 62)

Indian Evidence Act, 1872 Burden of Proof There are two senses in which the phrase 'burden of proof' is used in the Evidence Act. One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the 37 latter is called the 'evidential burden' and it shifts from one side to the other. (Para 29) Indian Evidence Act, 1872; Section 101 and 102 'legal burden' and 'evidential burden' The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side. While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. (Para 30)

Presumption - Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or compulsory presumptions ('shall presume'). (Para 32)

Presumption - The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption 38 or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved. (Para 33)

This case law is not applicable to present case as the complainant 1 and 2 failed to establish to their financial capacity to lend such huge amount of Rs.1,00,00,000/- and three cheques are issued after fulfilling the liability under Ex.P.1 and Ex.P.10, in such circumstances this court finds that it was not explained by the complainant No.2 why cheque is issued to first complainant by the accused for the liability under Ex.P.10 which is said to be enforceable debt of complainant No.2 and in such circumstances this court finds that it does not come under purview of Section 138 of N.I.Act and the question of Section 139 and 118 of N.I.Act does not arise as there is no legally enforceable debt. Existing between accused and complainants No.1 with regard to Ex.P.10 more particularly.

Supreme Court of India

T.P. Murugan(Dead) Through Lrs vs Bojan on 31 July,

2018

Equivalent citations: AIR 2018 SUPREME COURT 3601,

2018 (8) SCC 469, 2018 CRI LJ 4315, 2018

This case law is not applicable to present case as the complainant failed to discharge the initial burden of proof by showing their financial capacity to lend the huge amount of Rs.1,00,00,000/- but they failed to place any cogent evidence to establish the same, they have shown Rs.11,81,114/- in the assessment year 2018-2019 as their annual income like wise they have shown Rs.9,00,821/- as their annual income in the assessment year 2017-2018, like wise they have shown Rs.9,73,128/- in the year 2016-2017, like wise their income was shown very meagre comparatively the amount said to be existing with them was about Rs.1,00,00,000/- as such it cannot be said that they discharged the initial burden of proof, hence the question of shall presumption does not arise with regard to issuance of cheque for enforceable debt.

39 .Supreme Court of India

Kishan Rao vs Shankargouda on 2 July, 2018

Equivalent citations: AIR 2018 SUPREME COURT 3173,

2018 (8) SCC 165, 2018 CRI LJ 3613,

Wherein it was held that Section 139 of N.I.Act the presumption of debt or liability is rebuttal presumption evidence should be adduced instantly, this case is not applicable to present case as P.W.1 and 2 failed to establish their case by adducing cogent coherent evidence, hence question of Section 139 and 118 of N.I.Act does not arise.

Supreme Court of India

Rahul Sudhakar Anantwar vs Shivkumar Kanhiyalal

Shrivastav on 21 October, 2019 It was held that the

content of appellate that cheque was issued in the

name of firm was removed from the official table is not

convincing nor same is supported by any evidence,

appellate-accused has not satisfactorily rebutted

statutory presumption not ground warranting

interference with conviction of appellate-accused

under Section 138 of N.I.Act, this case law is not

applicable to present case as accused though taken a

plea of the theft of cheques as one of the defence but

his prime objection is that the complainants have no

financial capacity to lent an amount of

Rs.1,00,00,000/- then initial burden still on the

complainant to place cogent evidence to establish

their financial capacity but they failed to do so, hence

question of liability under Section 138 of N.I.Act does

not arise.

Equivalent citations: AIR 2019 SUPREME COURT 5520,

AIRONLINE 2019 SC 1326,

SUPREME TODAY

2006 0 Supreme(AP) 1388 1 ALD(C) 801; 2007 2 ALT

(Crí) 104:

Andhra Pradesh High Court 40

CHINTHALA CHERUVU vs STATE OF ANDHRA PRADESH

-

Criminal Procedure Code - Section 482-Indian Penal

Code - Sections 420, 468, 271, 506 17 34-Defacto-

complainant - Cheques-Negotiable Instruments Act

-Sections 138 and 142 - Dishonoured of cheque

Cheating - Seek to Quash the criminal proceedings

Alleged inter alia in the charge sheet that A-2 is the

wife of A-l and both of them together have been

running business as partners under name and style of

Venkata durga Fertilisers at Paloncha - Defacto-

complainant G. Chenna Reddy mediated between

accused-petitioners and the ryots for supply of

pesticides and fertilizers to ryots and as a security, he

handed over Tour blank cheques containing his

signatures drawn on co-operative Bank under secount

and also promissory notes to accused-petitioners For

crop season 2000-2001 the complainant purchased

pesticides and fertilizers worth Rs. 10,26,000- (Rs.

3,26,0007-+ Rs. 7,00,000/- respectively and after

getting the yield, farmers supplied 1000 quintals of

cotton in ten lorries worth Rs. 16,00,000/- on credit to

their account. Similarly, for the crop season 2001-

2002, the farmers were given pesticides and fertilizers

worth in all rs. 15,00,000/- (Rs. 6,00,0007- Rs.

9,00,0007-respectively) and the farmers after harvest

supplied 1200 quintals of cotton in 12 lorries worth

Rs. 15,00,000/- and 390 bags of paddy at Rs. 400/- per

bag worth Rs. 1,56,000/- dried chillies 40 quintals at

Rs. 2,500/- अलप पड . 1,00,000/- Held, Considered view

that the offences punishable under section 468 and

471 of 1 PC are not all attracted having regard to the

matrix of the case Insofar as second petitioner is

concerned, it is alleged that she is the partner of firm

no whisper whatsoever against her either in the

statement recorded by the Investigating Officer or in

charge sheet filed against accused Merely on ground

that she is a partner of the firm, she has been sought

to be added Obviously, understanding was in between

first petitioner and defacto-complainant, who

41

represents A-1 and the other farmers cited as

witnessed in the charge sheet - No allegation

whatsoever qua second petitioner attracting any other

offences mentioned in the charge sheet The case

against the second petitioner shall have to be

quashed - For above reasons, criminal petition is

allowed in part and case against the 2nd petitioner is

quashed - In so far as offences under Sections 468 and

471 IPC are concerned, case against, Ist petitioner is

quashed - However, in so far as the offences under

Sections 420 and 506 IPC are concerned, the case

against the 1st petitioner cannot be quashed Criminal

Petition partly allowed.

This case is also not applicable to present case as the

complainant failed to establish their financial capacity

and why the cheque is said to be issued in the name

of complainant No.1 where they contended that it was

issued for the liability arose under Ex.P.10 which is

said to be executed by the accused for the said loan

amount said to be given by the complainant No.2 ,

hence the question of Section 138, 139 and 118 of

N.I.Act does not attract.

22. On the other hand the accused counsel submitted two case laws as under

Madras High Court

Angu Parameswari Textiles (P) Ltd. And ... vs Sri

Rajam & Co. on 24 January, 2001

4. Section 138 of the Negotiable Instruments Act reads that where any cheque was drawn for payment of any amount of money for the discharge in whole or any part of any debt or other liability and the same is dishonoured by the Bank, the person who drew the cheque shall be punishable. Therefore, the cheque drawn should be towards the discharge of either the whole debt or part of the debt. If the cheque is more than the amount of the debt due, I am afraid, Section 138 cannot be attracted. This is a case where the cheque amount was more than the amount due on the date when the cheque was presented. The presentation of the cheque and subsequent 42 dishonour alone raises a cause of action. When the cheque cannot be said to be drawn towards the discharge of either the whole or part of any debt or liability, Section 138 is not attracted. On this sole ground, the complaint is liable to be quashed and is accordingly quashed. The petition is, therefore, allowed, connected Crl.M.P. Nos. 9221 and 9222 of 2000 and Crl.M.P. No. 455 of 2001 are closed.

Delhi High Court

M/S Alliance Infrastructure Project ... vs Vinay Mittal

on 18 January, 2010

13. In Central Bank of India & Another vs. Saxons Farms & Others 1999(8) SCC 221, the Hon‟ble Supreme Court observed that the object of the notice under Section 138(b) of Negotiable Instrument Act is to give a chance to the drawer of the cheque to rectify his omission and also to protect the honest drawer. If the drawer of the cheque is asked to pay more than the principal amount due from him and that amount is demanded as the principal sum payable by him, it is not possible for an honest drawer of the cheque to meet such a requirement.

14. In Suman Sethi vs. Ajay K. Churiwala, 2000 (2) SCC 380, the Hon‟ble Supreme Court held that where the notice also contains a claim by way of cost, interest etc. and gives breakup of the claim of the cheque amount, interest, damages etc., which are separately specified, the claim for interest, cost etc. would be superfluous and these additional claims being severable would not invalidate the notice. It was further held that if an ominous demand is made in a notice as to what was due against a dishonoured cheque, the notice might fail to meet the legal requirement and may be regarded as bad. The same consequence, in my view, would follow where the principal sum demanded in the notice is more than the actual amount payable to the payee of the cheque as principal sum. In the present case, while demanding Rs.49,47,600/- vide notice dated 19.12.2008, the complainant did not even indicate that the actual amount due to him was only Rs.32,97,600/- and he called upon the complainant to pay the whole of the amount of the cheque without even trying to justify the demand made by him.

43

15. In K.R.Indira vs. Dr.G.Adinarayana, 2003 (3) JCC(NI) 273, a consolidated notice was sent in respect of four cheques. Two of which were issued to him in the name of the husband and the two were in the name of the wife. It was noted by the

Hon‟ble Supreme Court that the cheque amounts were

different from the alleged loan and the demand made was not of the cheque amount but was of the loan amount. It was held that the complainant was required to make demand for the amount recovered by the cheque which was conspicuously absent in the notice and, therefore, the notice was imperfect. The same would be the legal effect when a part-payment against a cheque is made, after its issue. The amount covered by the cheque would necessarily mean the

principal amount due to the payee after giving credit for the

par-payment received by him and, therefore, if the notice does not specifically demand that particular amount, it would not be a valid notice and would not fasten criminal liability on account of its non-compliance.

16. In Rahul Builders (supra), the outstanding amount due to the appellant from respondent No.1 was Rs.8,72,409/. Respondent No.1 issued a cheque of Rs.1 lakh in favour of the appellant, which, on presentation was dishonoured. A notice was thereafter sent by the appellant to respondent No.1 informing him about dishonour of the cheque and asking him to remit the amount of Rs.8,72,409/-. It was noted that the amount which respondent No.1 was called upon to pay was the outstanding amount of the bills, i.e. Rs.8,72,409/- and the noticee was to respond that demand by offering the entire sum of Rs.8,72,409/-. It was further noted that there was no demand to pay the sum of Rs.1 lakh which was the amount of the cheque and what was demanded was the entire sum of Rs.8,72,409/- and not a part of it. In these circumstances, it was held that there was no demand for payment of the cheque amount. The decision of the High Court holding that the notice was invalid, was upheld by the

Hon‟ble Supreme Court.

17. For the reasons given in the preceding paragraphs, I hold that the complaint, subject matter of Crl.M.C.No.2225/2009 is liable to be quashed because the complainant presented the cheque for encashment of the whole amount of 44

Rs.49,47,600/- though the amount due to him on the date of the presentation of the cheque was Rs.32,9600/- and he also demanded the whole of the amount of Rs.49,47,600/- as

principal sum without even indicating the principal amount

due to him under the cheque was Rs.32,97,600/- and without even referring to the part- payment of Rs.16,50,000/- which he had received by RTGS on 7.10.2008. The criminal complaint, subject matter of Crl.M.C.2224/2009 is liable to be quashed as the complainant presented the cheque for encashment of whole of its amount of Rs.31,91,650/- though he had already received a sum of Rs.10,50,000/- before presentation of the cheque and the principal amount due to him on the date of presentation of the cheque was only Rs.21,41,650/-.

Ordered accordingly.These two case laws are applicable to present case where he raised objection with regard to issuing of cheques for more than the existing debt of promissory note said to be executed as such it is contended that such extra amount mentioned in the cheques does not comes within the purview of Section 138 of N.I.Act. In the present case pronote said to be executed for Rs.1,00,00,000/- but cheques are said to be issued for Rs.1,11,45,000/-.

23.This court would like to relay upon the case law with regard to financial capacity of the complainants and its affect. The financial capacity of the complainant as a defence in cases under the Negotiable Instruments Act, 1881 (NI Act) was significantly recognized in the landmark Supreme Court case of "John K. Abraham v.Simon C. Abraham" [(2014) 2 SCC 236]. This judgment introduced the idea that the financial capacity of the complainant can be a valid defence in cases involving dishonour of cheques under Section 138 of the NI Act. Key Supreme Court Judgments on the Financial Capacity Defence:

John K. Abraham v. Simon C. Abraham (2014 In this case, the accused (Simon C.Abraham) argued that the complainant (John K.Abraham) did not have the financial capacity to lend the amount mentioned in the dishonored cheque. The Supreme Court, while acquitting the accused, ruled that the complainant must prove that he had the financial capacity to 45 lend such a large sum. The court emphasized that The complainant must prove that the loan or financial transaction took place as claimed and that they had the financial means to advance the loan amount, The accused can raise a valid defense by questioning the complainant's financial capacity, thereby casting doubt on the genuineness of the transaction. While the presumption under Section 139 of the NI Act is that the cheque was issued for a legally enforceable debt or liability, this presumption is rebuttable. The accused can present evidence to rebut the presumption, such as questioning the complainant's financial capacity.

In another case law reported in Basalingappa v. Mudibasappa [(2019) 5 SCC 418**: In this case, the Supreme Court reiterated that while the statutory presumption under Section 139 NI Act favors the complainant, the accused can rebut this presumption by questioning the complainant's financial capacity. If the accused can raise a reasonable doubt about the existence of the debt or liability, the presumption is nullified, and the complainant must then establish the existence of a legally enforceable debt. The court emphasized that:

* The standard of proof for the accused is preponderance of probabilities, not beyond reasonable doubt.

* If the accused successfully questions the financial capacity, the complainant must provide proof to substantiate the loan.

This Court ruled that when the fact of Kumar Exports v. Sharma Carpets ((2009) 2 SCC 513]**: The court held that once the accused raises a probable defence, such as questioning the complainant's financial capacity, the presumption under Section 139 is no longer absolute. The court observed that in the absence of credible evidence to support the financial capacity of the complainant, the accused can succeed in rebutting the statutory presumption.Upon the considering the case law it is very clear that once accused raised objection with regard to financial capacity of the complainants to lend such huge amount of Rs.1,00,00,000/- the intial burden of proof does not shift to accused unless and until it is proved by the complainant with regard to their financial capacity by 46 adducing cogent and coherent evidence. The accused need not place any evidence to rebut the case of the complainant as it is premature case and the initial burden was not shifted. Hence, this court finds that the accused successfully rebut the case of complainant by putting objection with regard to their financial capacity to lend such large amount Rs.1,00,00,000/- where they failed to establish the same.

24.Taking into consideration the overall circumstances of this case, The complainants were failed to produce any cogent and coherent evidence to establish that they are capable to lend an amount of Rs.1,00,00,000/- to accused and they are having financial capacity to do so and also failed to establish why cheque is issued to complainant No.1 for the said debt of complainant No.2 as such the three cheques does not comes with in the purview ofSection 138 of N.I.Act as such it cannot be considered under Section 139 and 118 of

N.I.Act to draw shall presumption with regard to issuing cheque and enforceable debt. Hence, this court finds that the complainants havemiserably failed to prove their case beyond all reasonable doubt against accused and the complainant failed to discharge initial burden of proof under sections 139 and 118 of NI Act with regard to financial capacity of the complainants and it is legally enforceable debt in several cases as discussed supra which is binding on this court.and this court finds that the evidence of 47 complainant does not inspired any confidence to punish the accused under Section 138 of N.I.Act.

25.In the light of above discussion, I answered this point in favour of the accused accordingly.

Point No. 2

26.In the result Accused is found not guilty for the offence under section 138 of NI act and she is acquitted U/s.255 (1)

Cr.P.C. / Sec. 278 (1) BNSS for the offence U/s.138 of

Negotiable Instrument Act 1881. The bail bonds of accused shall be in force for a period of six months as contemplated under section 437-A of Cr.P.C.

Prepared in my laptop by me corrected and pronounced by me in open Court, this the 17th day of February , 2025.

VI SPECIAL MAGISTRATE,

VISAKHAPATNAM.

48

APPENDIX OF EVIDENCE

No. of witnesses examined for:

Complainant side:For defence side:

P.W.1 : Venkiteela Rajendra Prasad None

P.W.2 : Smt. Gada Kalpana

P.W.3 : Vadlamani Radha Krishna

P.W.4 : Ponnana Vykunta Rao

DOCUMENTS MARKED FOR

COMPLAINANTS:

Ex.P.1 is the original promissory note dt.18.11.2018 executed by the accused in favour of complainant for an amount of

Rs.50,00,000/-,

Ex.P.2 is the original cheque bearing number 029518 dt.21.08.2021 issued by the accued in favour of complainant for an amount of Rs.50,00,000/- drawn on Union Bank of

India,Lakshmipuram Branch, Guntur towards partial discharge of the debt due under Ex.P.1 promissory note, 49

Ex.P.3 is the cheque return memo dt.27.08.2021 issued by

Union Bank of India, Seethammadhara Branch,

Visakhapatnam with an endorsement ''Funds Insufficient'',

Ex.P.4 is the original cheque bearing number 029519 dt.21.08.2021 issued by the accued in favour of complainant for an amount of Rs.50,00,000/- drawn on Union Bank of

India, Lakshmipuram Branch, Guntur towards part payment of the amount due to the complainant and complainant's wife,

Ex.P.5 is the cheque return memo dt.27.08.2021 issued by

Union Bank of India, Seethammadhara Branch,

Visakhapatnam pertaining to Ex.P.4 cheque with an endorsement ''Funds Insufficient''.

Ex.P.6 is the original cheque bearing number 029520 dt.21.08.2021 issued by the accued in favour of complainant for an amount of Rs.11,45,000/- drawn on Union Bank of

India, Lakshmipuram Branch, Guntur towards part payment of the amount due to complainant and complainant No.2,

Ex.P.7 is the cheque return memo dt.27.08.2021 issued by

Union Bank of India, Seethammadhara Branch, 50

Visakhapatnam pertaining to Ex.P.5 cheque with an endorsement ''Funds Insufficient'',

Ex.P.8 is the office copy of statutory notice dt.16.09.2021 got issued by the complainant to the accused through complainant's advocate along with postal receipts bearing

No.RN817542170IN and RN817542183IN dt.16.09.2021,

Ex.P.9 is the postal acknowledgment dt.18.09.2021,

Ex.P.10 is the original promissory note dt.18.11.2018 executed by the accused in favour of complainant for an amount of Rs.50,00,000/-.

Ex.P.11 is the salary certificate dt.30.09.2018 for the month of September, 2018 issued by Deputy Manager, Accounts of

Dolphin Hotels,

Ex.P.12 is the salary certificate dt.31.10.2018 for the month of October, 2018 issued by Deputy Manager, Accounts of

Dolphin Hotels,

Ex.P.13 is the salary certificate dt.30.11.2018 for the month of November, 2018 issued by Deputy Manager, Accounts of

Dolphin Hotels, the Management of Dollphin Hotels,

Visakhapatnam credit complainant salary to his account 51 after deductin of Income Tax payable to the Income Tax

Department,

Ex.P.14 is the copy of complainant's Income Tax returns issued by complainant's chartered Accountant for the assessment for the year 2015-2016,

Ex.P.15 is the copy of complainant's Income Tax returns issued by complainant's chartered Accountant for the assessment for the year 2016-2017,

Ex.P.16 is the copy of complainant's Income Tax returns issued by complainant's chartered Accountant for the assessment for the year 2017-2018,

Ex.P.17 is the copy of complainant's Income Tax returns issued by complainant's chartered Accountant for the assessment for the year 2018-2019,

Ex.P.18 is the salary certificate dt.19.08.2023 of second complainant for the month of September, 2018 to November, 2018 issued by Chief Manager-HR, Ushodaya Publications,

Visakhapatnam, The Management of Ushodaya Publications credit second complainant salaty to her account after deduction of Income Tax payable to Income Tax Department, 52

Ex.P.19 is the copy of income tax returns by second complainant's chartered account for the assessment year 2015-2016,

Ex.P.20 is the copy of income tax returns by second complainant's chartered account for the assessment year 2016-2017,

Ex.P.21 is the copy of income tax returns by second complainant's chartered account for the assessment year 2017-2018,

Ex.P.22 is the copy of income tax returns by second complainant's chartered account for the assessment year 2018-2019

FOR DEFENCE:

No documents marked on behalf of accused.

VI SPECIAL MAGISTRATE,

VISAKHAPATNAM.

53

CALENDER AND JUDGMENT

District of: Visakhapatnam.

CALENDER CASE TRIED BY VI SPECIAL MAGISTRATE COURT, 

VISAKHAPATNAM.

(CC 518/2022)

Date of Taken onApprehensioReleased Commence­Close of Sentence Offence Filen of accusedon bailment of trialtrialor order 21.08.202117.02.2021 05.05.202230.05.20225.11.20224.4.202417.02.2025 2 EXPLANATION FOR DELAY: Originally this case was taken on file by the court of I Addl. Chief Metropolitan Magistrate Court, Visakhapatnam as

CC.No.518/2022, there after this case was transferred to this court. Accused

appeared before this court on 05.05.2022. On 23.06.2022 copies were furnished to her. On 26.09.2022 the accused was examined under section 251 Cr.P.C., PW.1 filed his chief examination affidavit on 25.11.2022 and got marked Ex.P1 to Ex.P3. On 05.12.2022 PW.1 was further chief examined and got marked Ex.P.4 to P.9. On 28.03.2023 P.W.1 cross examined in part. On 23.05.2023 P.W.1 is further chief examined and Ex.P.10 marked and chief evidence of P.W.2 filed and it is confirmed through her. On 08.05.2023 P.W.1 cross examined. On 13.06.2023 P.W.2 cross examined partly. On 03.07.2023 P.W.2 cross examined. On 17.07.2023 P.W.3 evidence affidavit filed and it is confirmed through him. On 08.08.2023 P.W.3 cross examined. On 16.08.2023 P.W.4 filed his chief evidence affidavit and it is confirmed through him. On 30.08.2023 P.W.4 cross examined. On 28.12.2023 P.W.1 recalled for further chief examine and Ex.P.11 to P.22 are marked. On 29.02.2024 both P.Ws.1 and 2 crossexamined. On 14.03.2024 the complainant's counsel reported no further evidence. On 27.03.2024 the accused examined under Section 313 Cr.P.C and reported defence evidence. On 04.04.2024 the defence counsel reported no defence evidence. On 05.02.2025 both side arguments heard and posted the matter for judgment on 17.02.2025.

CALENDER CASE NO.518/2022 ON THE FILE OF VI SPECIAL 

MAGISTRATE COURT, VISAKHAPATNAM

Description of the Complainant:

1. Vankiteela Rajendra Prasad.

S/o.Gandhi Naidu, Aged 64 years, D.No.18-13-4, Hill Crest Apartments, Seethammadhara north extension, Visakhapatnam.

2.Gada Kalpana W/o. Vankiteela Rajendra Prasad, aged 58 years, D.No.18-13-4, Hill Crest Apartments, Seethammadhara north extension, Visakhapatnam.

54

Description of the Accused: Pulivarthi Vijayalakshmi, W/o.Anne Sidhartha Chowdary,aged 48 years, D.No.3­2911/1, Beside P.F.Office, 13­5­199. SrivatsaResidency, Krishna Nagar, Guntur, presently at Vidya nagar, 4th late, left 2nd cross, D.No.4­5­27/11A, Adj to gold's gym, Guntur ­ 522007. Offence: Dishonor of cheque. Section of law: 138 of N.I.Act. Finding:Accused is found not guilty for the offence Under Section 138 of N.I.Act. Result:In the result accused found not guilty and she is acquitted U/s.255 (1) Cr.P.C./ Sec.278 (1) BNSS for the offence U/s.138 of Negotiable Instrument Act.

VI SPECIAL MAGISTRATE

VISAKHAPATNAM.

1

APVS040003042025

IN THE COURT OF THE VII SPECIAL MAGISTRATE AT VISAKHAPATNAM

Present: Sri D.Viswanadham VII Special Magistrate, Visakhapatnam.

Wednesday, 11th day of February, 2026.

STC.No:444/2025

Between: Ganapatibhotla Surya Vijaya Sree, W/o G.Rama Narayana, R/o D.No.49-54-3/17/7, SF 302 Balayya Sastry Layout, Near Port Stadium East Gate, Seethammadhara, Visakhapatnam. … Complainant

AND Bheesetti Rama Surya Narayana, S/o Satyanarayana, R/o D.No.60-32-137/1, Janatha colony, Malkapuram,

Visakhapatnam. ... Accused

This case is coming for pronouncement of Judgment on this 11th day of February, 2026 after hearing the arguments of Sri.G.Rama Chandra Raju advocate for the

Complainant and Sri.K.Maheswara Rao advocate for the accused and having stood over for consideration till this date and this court delivered the following.

Judgment

1) This is a complaint filed U/s 190 (1) (a) and 200 crpc for an offence punishable U/s 138 and 142 of the NI Act. The facts of the case of the complainant in brief is that the complainant is the absolute owner of Flat No.III A in 3rd floor of

Divya Shakti Apartments, D.No.49-53-20/24 situated at Sy Nos.16/6 and 16/7 Part of Allipuram Extension Ward. In the month of March, 2023 the accused approached the complainant and expressed his desire to purchase the above said flat and after negotiations the sale price was fixed at Rs.41,05,500/-. Thereafter, the accused requested the complainant and her husband to come to Sub Register Office, 2

Dwarakanagar, Visakhapatnam for executing a registered sale deed on 12.04.2023.

Accordingly, the complainant and her husband appeared at Sub Register Office wherein the accused obtained the signatures of the complainant in the sale deed papers in which the accused mentioned that the accused paying the sale consideration by way of two cheques bearing No.000003 and 000004 dt.12.04.2023 drawn on HDFC Bank, Seethammadhara branch, Visakhapatnam for

Rs.21,05,500/- and Rs.20,00,000/- respectively. Though the accused mentioned the dates of cheques as 12.04.2023 in the said sale deed but the accused did not mention the said dates on the cheques and kept blank and informed the complainant to present the same by putting dates on it and when he inform that sufficient funds are available in his account, believing the words of the accused, the complainant signed the sale deed, but the accused did not taken delivery of the said flat from the complainant inspite of several requests. On 22.11.2024 the complainant sent an Email to the accused by stating about the payment of municipal taxes and electricity consumption bills and maintenance of scheduled flat by the complainant and demanded the accused to pay the sale consideration and reimburse the expenses incurred by the complainant. Then the accused requested the complainant to present the said cheques on 11.12.2024 by putting dates on it as 11.12.2024 as sufficient funds will be available by 11.12.2024 and at request of the accused the complainant presented the above said cheques for clearance on 11.12.2024 in her bank i.e., Andhra Pradesh Grameena Vikas Bank,

Seethammadhara branch, Visakhapatnam, but the said cheques were dishonoured and returned to the complainant along with memos dt.12.12.2024 with an endorsement as Funds Insufficient. Later on the complainant came to know that the accused executed a registered sale deed in favour of one Buddha Gowtham on 15.04.2023 itself i.e., within three days from the date of the above said sale deed, then on 27.12.2024 the complainant got issued a demand legal notice to the accused by demanding the accused to pay the amount covered by the cheques within 15 days of the date of service of the notice, the said notice was received by the accused on 28.12.2024, but the accused failed to pay the amount demanded in the notice, since the accused issued the cheques without having any intention to 3

honour the cheques, the accused has rendered himself liable to be prosecuted for

the offence committed U/s 138 of NI Act. Hence, the present complaint is filed, and prayed the court to allow the complaint to punish the accused in accordance with the law, and also requested the court to award compensation U/s 357 crpc.

2) The following documents have been filed along with the complaint, they are, 1) Original cheque dt.11.12.2024 bearing No.000003 for an amount of

Rs.21,05,500/-, 2) Another original cheque dt.11.12.2024 bearing No.000004 for an amount of Rs.20,00,000/-, 3) Original Cheque return memo dt.12.12.2024, 4)

Another original cheque return memo dt.12.12.2024, 5) Office copy of the demand legal notice dt.27.12.2024, 6) Postal receipt dt.27.12.2024, 7) Another postal receipt dt.27.12.2024, 8) Certified extract of registered sale deed dt.12.04.2023, 9) Postal track consignment dt.28.12.2024 and 10) Another postal track consignment dt.28.12.2024 have been placed before the court in support of the case of the complainant. By taking into consideration of all the above said documents coupled with the averments made in the complaint, the Hon’ble I Addl. Chief Metropolitan

Magistrate court, Visakhapatnam has taken cognizance of the offence U/s 138 of NI

Act against the accused.

3) In the mean while this matter was transferred to this court for its disposal as per the law, the accused appeared before the court on receiving summons issued by the court and copies of the case papers were furnished to the accused and he was also examined U/s 274 BNSS by explaining the allegations made in the complaint and recorded the statements made by the accused, since the accused pleaded not guilty of the offence U/sec 138 of NI Act and claimed to be tried by stating that it is a fact that the complainant is the owner of the said flat and he agreed to purchase the said flat from the complainant for an amount of

Rs.41,05,500/- in the month of March, 2023, and that later on he informed the complainant and her husband to come to sub register office of Dwarakanagar on 12.04.2023 for execution of the said sale deed, and that he himself and the complainant put their signatures on the said sale deed, but he did not observe that 4 an averment was made in the sale deed as if the sale consideration was paid to the complainant by him through cheques, and that he never issued any such cheques for Rs.21,05,500/- and for Rs.20,00,000/- in favour of the complainant without putting dates on it, and that the complainant did not hand over keys of the said flat even after execution of the sale deed, and that he never saw the Email sent by the complainant, and that he never promised to arrange sufficient funds in his account by informing the complainant to present those cheques on 11.12.2024, and that he do not know about the dishonour of those two cheques, and that he never executed any such registered sale deed in favour of Budda Gowtham by selling the above said flat on 15.04.2023, and that no such demand legal notice was came to his address, but he saw the notice sent by the complainant through whatsapp, and that the complainant informed him as the demand legal notice was sent to him through whatsapp, but in fact no such notice was received by him through whatsapp, and that the address to which the demand legal notice was sent by the complainant is his own residential house address and his mother is residing there and he is residing in Seethammadhara, and that he never committed any such offence U/s 138 of NI Act.

4) During the course of trial, the complainant namely Ganapatibhotla Surya

Vijaya Sree, W/o G.Rama Narayana filed her evidence in chief as PW1 by reiterating all the material allegations made in the complaint and Ex.P1 to P10 were marked on behalf of the complainant in support of her case. One Ganapathibotla

Rama Narayana, S/o Late G.Venkata Satyanarayana gave his evidence as PW2 on behalf of the complainant in support of her case by stating that he is a retired

Deputy General Manager of Dredging Corporation of India, he retired from his services in the month of May, 2011, he is the husband of the complainant in this case, the accused in this case is the Principal of Sri Navodaya Junior College,

Balayya Sastry layout, the flat of his wife in Divya Shakti Apartment was proposed to sell by them, then the accused approached to them for purchase of the above said flat for Rs.41,05,500/-, accordingly a registered sale deed was executed by his wife in favour of the accused, at the time of registration the accused gave two 5 cheques one for Rs.21,05,500/- and another for Rs.20,00,000/- by writing the amounts both in numericals and words as well as the name of the payee, but no dates are mentioned on those two cheques and promised to maintain sufficient amount to accept those cheques within 10 or 15 days as he has to receive some amounts from Shriram Chits and other sources and also asked them to present the same as and when he gives instruction, but the accused did not inform them whether he made ready funds in his account and did not ask them to present, he visited the house of the accused on several times, whenever he asked the accused to pay the sale consideration the accused used to give assurance that he will receive funds shortly, he being the husband of the complainant in this case used to go to the accused to demand him to arrange necessary funds for presentation of those cheques, they trusted the accused in accepting those cheques as the accused is being a principal, the accused also informed them that he will repay the agreed sale consideration by way of sale of the said flat to another person, one

Srinivasa rao, who is residing to opposite to their house, informed them that the accused sold the said flat to one Budha Gowtham of Anakapalli within 3 days from the date of the said sale deed, then he asked the accused that why he sold flat without paying the sale consideration to them, for which the accused stated that they need not to worry about it as he looked after the payment of the agreed sale consideration to them within 11.12.2024, then he issued E-mail to the accused on behalf of his wife requesting him to make ready required funds to honour the cheques as they will present the said cheques for collection by 11.12.2024 and also requested him to pay the maintenance charges of the flat and interest on the sale consideration along with actual sale consideration, but he has not received any response from the accused, he also stated that otherwise he will proceed legally against the accused, for which the accused requested by phone not to take any legal action against him as he is ready to compromise with them, but he did not come for compromise, then they presented the said cheques on 11.12.2024 for collection by putting the date on it after taking xerox copies of those undated cheques, but the said cheques were dishonoured due to the reason of lack of funds in the account of the accused on 12.12.2024, then they approached a lawyer and 6 filed the present case against the accused. The copy of the G-mail which was sent by him to the accused along with a certificate U/s 65B of Indian Evidence Act was marked as Ex.P11.

5) The PW’s 1 & 2 were examined in cross by the opposite party. After closing the recording of further oral evidence on behalf of the complainant, the accused was examined U/s 313 crpc by explaining the incriminating circumstances appears in the evidence of Pw’s 1 & 2 and recorded the statements made by the accused. At this stage also the accused denied the entire case of the complainant as false by stating that it is a fact that he gave two cheques to the complainant by putting his signature, and amount and without mentioning the date and name of the payee on it at the time of execution of a sale deed in favour of the complainant towards sale consideration of Rs.41,05,500/- of a flat belongs to the complainant in this case, but he never instructed the complainant to present the said cheques when he inform them to present the same after arranging sufficient funds in his account, and that no such E-mail was received by him, but the said E-mail was received to his school E-mail I.D and the same was checked by him recently, and that he never instructed the complainant to present the said cheques for collection, and that he do not know about the dishonour of the said cheques, but he sold the said flat to one Budda Gowtham only at the request of the complainant, and that no such demand legal notice was came to his address, but he admitted that he is residing in the given address, and that the entire evidence given by the PW2 is stated as false, and that the complainant did not hand over the keys of the said flat to him and he also informed the complainant to register the said flat in anyone’s name, and that the complainant also agreed to pay the registration charges of the said sale deed to him, and that he never committed any such offence U/s 138 of NI

Act. Since the accused pleaded that he is not having witnesses to be examined on his behalf, this matter was posted for arguments.

6) During the course of arguments, heard the arguments of the learned counsel for the complainant and accused. The learned counsel for the complainant 7 submitted his arguments by stating that the complainant could able to established the execution of sale deed, vide Ex.P8, by the accused in favour of the complainant for an amount of Rs.41,05,500/- to purchase a flat belongs to the complainant and the issuance of Ex.P1 and P2 cheques by the accused in favour of the complainant towards payment of the above said sale consideration as contemplated in Sec.138 of NI Act and the presentation of the said cheques for collection and issuance of a demand legal notice, vide Ex.P5, in writing demanding the accused to pay the amount covered by the said cheques when they were dishonoured due to the reason of “Funds Insufficient” and the failure of the accused in payment of the amount covered by those cheques despite of issuance of such demand legal notice as contemplated in proviso (a) to (c) to Sec.138 of NI Act. The learned counsel for the complainant further argued that the accused admitted so many aspects in his examination U/s 351 BNSS such as his residential address to which the demand legal notice was sent by the complainant, the legally enforceable debt, the issuance of cheques etc. The learned counsel for the complainant further submitted that the complainant also complied with all the ingredients of sec 138 of NI Act by presenting the cheques for collection in her bank account and by issuing a demand legal notice, vide Ex.P5, to the accused and by filing the complaint against the accused within the limitation period as contemplated in proviso (a) to (c) of the sec 138 of NI Act when the accused failed to pay the amount covered by the cheques within 15 days of the receipt of the notice. On the other hand the accused could not able to disprove the case of the complainant by adducing any oral evidence or by producing any documentary evidence to rebut the presumptions provided U/s 118 and 139 of NI Act by bringing any material on record to establish his probable defence. Hence prayed the court to allow the complaint against the accused and also requested to grant compensation U/s 357 crpc. The learned counsel for the complainant also filed his written arguments.

7) On the other hand the learned counsel for the accused also submitted his arguments by stating that the case of the complainant as false and that it is a fact that he gave two cheques to the complainant by putting his signatures, and amount 8 and without mentioning the date and name of the payee on it at the time of execution and registration of a sale deed by the complainant in his favour towards sale consideration of Rs.41,05,500/- of a flat belongs to the complainant in this case, but he never instructed the complainant to present the said cheques only when he inform the complainant to present the same after arranging sufficient funds in his account, and that no such E-mail was received by him, but the said E-mail was received to his school E-mail I.D and the same was checked by him recently, and that he never instructed the complainant to present the said cheques for collection, and that he do not know about the dishonour of the said cheques, but it is a fact that he sold the said flat to one Budda Gowtham only at the request of the complainant, and that no such demand legal notice was came to his address, but he admitted that he is residing in the given address, and that the entire evidence given by the PW2 is stted as false, and that the complainant did not hand over the keys of the said flat to him and he also informed the complainant to register the said flat in anyone’s name, and that the complainant also agreed to pay the registration charges of the said sale deed to him, and that he never committed any such offence

U/s 138 of NI Act.

By taking into consideration of all the above said material on record, the following questions have been arose for consideration:-

1) Whether the accused has committed an offence U/s 138 of NI Act?

2) To what relief?

Point No.1:

8)In view of the above said rival contentions of the complainant and the accused, I am of the considered view that it is necessary to recape the sec 138, 118 and 139 of NI Act for proper appreciation of the evidence on record coupled with the ingredients of sec 138 and the presumptions provided U/s 118 and 139 of NI Act in order to come to a just conclusion that whether the accused in this case has committed an offence U/sec 138 of NI Act.

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Sec 138:Dishonour of cheque for insufficiency etc., of funds in the account:-

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge in whole or in part of any debt or other liability is returned by the bank unpaid either because of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provision of this act be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both.

Provided that nothing contained in this section shall apply unless -

(a) The cheque has been presented to the bank within a period of 6 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, within 30 days of the receipt of the 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 holderin due course of the cheque within 15 days of the receipt of the said notice.

Explanation:For the purposes of this section “debt or other liability” means a legally enforceable debt or other liability.

Sec 118: Presumptions as to negotiable instruments :- Until the contrary is proved the following presumptions shall be made -

(a) Of consideration – That every negotiable instrument was made or drawn for consideration, and that every such instrument when it 10 has been accepted indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration.

(b) as to date; that every negotiable instrument bearing a date was made or drawn on such date…………..

Sec 139: Presumptions in favour of holder of a cheque – It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in sec 138 for discharge, in whole or in part, of any debt or other liability.

9)The analysis of sec 138 of NI Act shows that in order to constitute an offence

U/s 138 of NI Act, the cheque shall be issued by the accused by drawing the same on a bank in which he / she is having an account in favour of the complainant in order to discharge an amount in due and in turn the complainant must have presented the same in his bank within a period of 6 months or within a period mentioned in the cheque, whichever is earlier from the date mentioned in it and it must have been dishonoured for the reasons shown in Sec.138 of NI Act. On dishonour of the cheque, the payee of the cheques should cause a demand legal notice in writing within 30 days from the date of dishonour of the cheque demanding to pay the amount covered by the cheques within 15 days from the date of service of the notice. If the drawer of the cheque fails to pay the amount covered by the cheque within 15 days from the date of service of the notice then the cause of action arises for filing a complaint.

10) In the present case, the complainant pleaded and gave her evidence as

PW1 by stating that she is the absolute owner of Flat No.III A in 3rd floor of Divya

Shakti Apartments, D.No.49-53-20/24 situated at Sy Nos.16/6 and 16/7 Part of

Allipuram Extension Ward. In the month of March, 2023 the accused approached her and expressed his desire to purchase the above said flat and after negotiations the sale price was fixed at Rs.41,05,500/-. Thereafter, the accused requested her and her husband to come to Sub Register Office, Dwarakanagar, Visakhapatnam 11 for executing a registered sale deed on 12.04.2023. Accordingly, she herself and her husband appeared at Sub Register Office wherein the accused obtained her signatures in the sale deed papers in which the accused mentioned that the accused paying the sale consideration by way of two cheques bearing No.000003 and 000004 dt.12.04.2023 drawn on HDFC Bank, Seethammadhara branch,

Visakhapatnam for Rs.21,05,500/- and Rs.20,00,000/- respectively, vide Ex.P1 and

P2. Though the accused mentioned the dates of cheques as 12.04.2023 in the said sale deed but the accused did not mention the said dates on the cheques and kept blank and informed her to present the same by putting dates on it and when he inform that sufficient funds are available in his account, believing the words of the accused, she signed on the sale deed, but the accused did not taken delivery of the said flat from her inspite of several requests. On 22.11.2024 she sent an Email to the accused by stating about the payment of municipal taxes and electricity consumption bills and maintenance of scheduled flat by her and demanded the accused to pay the sale consideration and reimburse the expenses incurred by her.

Then the accused requested her to present the said cheques on 11.12.2024 by putting dates on it as 11.12.2024 as sufficient funds will be available by 11.12.2024 and at request of the accused she presented the above said cheques for clearance on 11.12.2024 in her banker i.e., Andhra Pradesh Grameena Vikas Bank,

Seethammadhara branch, Visakhapatnam, but the said cheques were dishonoured and returned to her along with memos dt.12.12.2024, vide Ex.P3 and P4, with endorsement as Funds Insufficient. Later on she came to know that the accused executed a registered sale deed in favour of one Buddha Gowtham on 15.04.2023 itself i.e., within three days from the date of the above said sale deed, then on 27.12.2024 she got issued a demand legal notice, vide Ex.P5, to the accused by demanding the accused to pay the amount covered by the cheques within 15 days of the date of service of the notice, the said notice was received by the accused on 28.12.2024, Ex.P9 and P10 postal track consignments are the proof of service of the said notice on the accused, but the accused failed to pay the amount demanded in the notice, since the accused issued the cheques without having any intention to honour the cheques, the accused has rendered himself liable to be 12 prosecuted for the offence committed U/s 138 of NI Act. Hence, the present complaint is filed.

11) As per the recitals of the Ex.P1, itis an original cheque bearing

No.000003 dt.11.12.2024 drawn on account bearing No.50100547144548 in HDFC

Bank, Kancharapalem branch, Visakhapatnam by B.Rama Surya Narayana, who is the accused in this case in favour of G.Surya Vijaya Sree, who is the complainant in this case, for an amount of Rs.21,05,500/-, Ex.P2 is another original cheque bearing No.000004 dt.11.12.2024 drawn on account bearing No.50100547144548 in HDFC Bank, Kancharapalem branch, Visakhapatnam by B.Rama Surya

Narayana, who is the accused in this case in favour of G.Surya Vijaya Sree, who is the complainant in this case, for an amount of Rs.20,00,000/-, Ex.P3 is cheque return memo dt.12.12.2024 under which a cheque bearing No.000003 was returned unpaid as it was dishonoured due to the reason of Funds Insufficient, Ex.P4 is another cheque return memo dt.12.12.2024 under which a cheque bearing

No.000004 was returned unpaid as it was dishonoured due to the reason of Funds

Insufficient, Ex.P5 is office copy of the demand legal notice dt.27.12.2024 under which the complainant demanded the accused to pay the amount covered by the cheques dishonoured, Ex.P6 is an original postal receipt dt.27.12.2024 of an R/p cover bearing No.RN602291055IN containing the demand legal notice was booked,

Ex.P7 is another original postal receipt dt.27.12.2024 of an R/p cover bearing

No.RN602291041IN containing the demand legal notice was booked, Ex.P8 is certified copy of a registered sale deed executed by the complainant in this case in favour of the accused in this case dt.12.04.2023 for an amount of Rs.41,05,500/-,

Ex.P9 is postal track consignment of an R/p bearing No.RN602291055IN containing the demand legal notice appears as delivered to the addressee on 28.12.2024 along with a certificate U/s 65B of the Indian Evidence Act and Ex.P10 is another postal track consignment of an R/p bearing No.RN602291041IN containing the demand legal notice along with a certificate U/s 65B of the Indian

Evidence Act. appears as delivered to the addressee on 28.12.2024.

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12) As per the Proviso (a) to Sec.138 of NI Act the Cheque has to be presented for collection within 6 (six) months from the date on which it was drawn or within the period of its validity whichever is earlier. As per the recitals of Ex.P1 and P2 Cheques, its valid period is mentioned as three months, they were drawn on 11.12.2024. The date of presentation of the cheques into the bank of the complainant is mentioned in the complaint, legal notice and cheque return memos

as 11.12.2024, but, as per the Ex.P3 and P4 cheque return memos it appears that

the date of return of the Ex.P1 and P2 cheques is shown as 12.12.2024. So, that the presentation of the Cheques can be said as made within the limitation period.

13) As per the Proviso (b) to Sec.138 of NI Act, the complainant being the payee of the cheque should makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. As per the recitals of the office copy of the demand Legal Notice, vide Ex.P5, dt.27.12.2024, the payee of the cheque, who is the complainant herein, has to make a demand for the payment of the amount covered by the cheques by giving a notice in writing to the drawer of the Cheques, who is the accused herein, within thirty days from the date of the receipt of information by him from the bank regarding the return of the Cheques unpaid. As per the recitals of the Memos, vide

Ex.P3 and P4, under which the said Cheques were returned to the complainant, such information was received by the complainant is on 12.12.2024 and the date of issuance of the demand Legal notice, vide Ex.P5, is 27.12.2024. The date of receipt of the said legal notice by the accused at his business address as well as residential addresses is 28.12.2024 which is evidencing by the postal track consignments, vide Ex.P9 and P10. So that the demand in writing as contemplated in Proviso (b) to Sec 138 of NI Act has also been made within time.

14) The Proviso (c) to Sec.138 of NI Act says that the accused being the drawer of such cheque fails to make the payment of the said amount of money to the complainant being the payee of the cheque within 15 days of the receipt of the 14 said notice, then, the cause of action will arise to file a complaint against the drawer of the cheque. As per the recitals of demand legal notice, vide Ex.P5, and postal track consignments, vide Ex.P9 and P10, and as per the statements made by the accused during the course of his examination U/s 274 and 351 BNSS, the service of the said demand legal notice can be said as deemed as effected on the accused on 28.12.2024 when it was dispatched to the correct address of the accused, the date of filing of the complaint before the Hon’ble I Addl. Chief Metropolitan

Magistrate, Visakhapatnam is 31.01.2025. As per the oral evidence of the

complainant as Pw-1, the present complaint was stated as filed when the accused did not come forward to pay the amount demanded in the legal notice within 15 (fifteen) days from the date of service of the demand Legal Notice. If the above mentioned dates of service of Notice and filing of the complaint are taken into consideration, then it can be said that the complaint was filed within time after observing the said grace period of 15 days from the date of service of the demand legal notice on the accused.

15) As per the above said oral evidence of the complainant as PW1 and another witness examined on behalf of the complainant as PW2 coupled with the documentary evidence, vide Ex.P1 to P11, as discussed above it appears that the complainant could able to made out the prima facie case that the accused in this case drawn the Ex.P1 and P2 cheques on his account in HDFC Bank,

Kancharapalem branch, Visakhapatnam for the payment of an amount of

Rs.21,05,500/- and Rs.20,00,000/- to the complainant out of the said account of the accused for discharge of the amount in due to the complainant under Ex.P8 certified copy of a registered sale deed executed by the complainant in this case in favour of the accused in this case dt.12.04.2023 for an amount of Rs.41,05,500/-.

The presentation of the cheques, vide Ex.P1 and P2, in the bank account of the complainant for collection and making of a demand in writing to pay the amount covered by the cheques by issuing a demand legal notice in writing when the cheques were dishonoured due to the reason of “Funds Insufficient”, which comes under purview of Sec.138 of NI Act, are also appears as made out in 15 compliance of proviso (a) to (c) of Sec 138 NI Act. It is also made out that the present complaint is filed after observing the grace period of 15 days when the accused failed to pay the amount demanded in the legal notice within 15 days after receipt of the notice.

16) Moreover, it is not the case of the accused that the accused is not having any such Saving Bank account in HDFC Bank, Kancharapalem branch,

Visakhapatnam on which the Ex.P1 and P2 Cheques were appears as drawn by the accused in this case, so also it is not the case of the accused that the complainant is not having a saving bank account in Andhra Pradesh Grameena

Vikas Bank, Seethammadhara branch in Visakhapatnam in which the Ex.P1 and P2

Cheques were stated as presented for collection by the complainant but dishonoured due to the reason of Funds Insufficient which is coming under the purview of the Sec 138 of NI Act. The compliance of the conditions of the Provisos

(a) to (c) of Sec 138 of NI Act is also appears as not in dispute. In view of all the above said reasons, it can be fairly held that the complainant had complied with all the mandatory requirements of sec 138 and proviso (a) to (c) to sec 138 r/w sec 142 of the NI Act.

17) PW1 was examined in cross at length but no contra evidence is established in that cross examination on the above mentioned aspects. With regard to service of notice on the accused, the complainant pleaded in the complaint and in the demand legal notice and gave her evidence as Pw-1 by stating that the demand legal notice was sent to the accused by R/P to his correct addresses. As per the postal track consignments, vide Ex.P9 and P10, it appears that the demand legal notices which were sent to the accused by R/p were delivered to the accused on 28.12.2024. The accused did not say that he never resided in the given address or never had business in the given address to which the demand legal notices were sent by the complainant. Moreover, the accused himself stated in his examination

U/s 274 and 351 BNSS that he is residing in the same address to which the demand legal notice was sent by the complainant. Therefore, the demand legal 16 notices can be said as sent to the correct addresses of the accused. It is a well established law that as per Sec.27 of the general clauses Act the service of notice can be presumed as effected when it is dispatched to the correct address for service. The above said opinion is also expressed by the Apex Court of India in a case of C.C.Allavi Haji V/s Palapetty Muhammed and another decided on 18.05.2007 the apex court held that where the payee dispatches the legal notice by registered post with correct address of the drawer of the cheque then the principle incorporated in sec 27 of the General clauses act would be attracted and service of such notice has to be deemed as effected.

18)Now, the another question before the court is that whether the benefit of presumption provided U/sec 118 and 139 of NI Act can be extended to the complainant in this case to say that the cheques, vide Ex.P1 and 2, have been drawn for consideration by the accused and the same were received by the Pw-1 from the accused to discharge of the amount in due to the complainant. As per the

Sec 118 and 139 of NI Act and its related case law is as follows. Sec 118 of NI Act lays down that until the contrary is proved it shall be presumed that every negotiable instrument was made or drawn for consideration. Sec 139 of NI Act contemplated that unless the contrary is proved it shall be presumed that the holder of the cheque received the cheque of the nature referred to in sec 138 for discharge in whole or in part of any debt or other liability.

19) In Basalingappa V/s Mudibasappa which is decided on 09.04.2019, the apex court has summarized the position of law after taking note of earlier judgments of that court in cases of 1) M/s Narayana Menon V/s State of Kerala and others cited in (2006 SCC Manu 2881), 2) Krishna janardhan Bhat V/s G

Dattatreya Hegde cited in (2008 SCC Manu 0503), 3) Kumar Exports V/s

Sharma Carpets cited in (2010 (11) SCC 441) by holding that “once the execution of the cheque is admitted, the sec 139 of NI Act mandates a presumption that the cheque was issued for discharge of any debt or other liability, the presumption U/s 139 is a rebuttable presumption and the onus is on the accused to raise a probable 17 defence, the standard of proof for rebutting the presumption is preponderance of probability.”

20) In a recent case in M/s Kalamani Tex V/s P Balasubrahmanyam cited in (2021 (5) SCC 283) the apex court held that “once the signature on the cheque/negotiable instrument is established then the reverse onus clause becomes operative. In such a situation the obligation shifts upon the accused to discharge the presumption imposed upon him.” In Rohit Bhai Jeevan Lal Patel V/s State of Gujarat cited in (2019 (18) SCC 106) the apex court held that “once the signature on the cheque is admitted by the accused then the trail court ought to have presumed that the cheque is issued for consideration and to discharge legally enforceable debt and further held that the trail court is fell in error when it called upon the complainant to explain the circumstances under which the appellants/accused were liable to pay, and such approach of trail court is directly in the teeth of established legal position.”

21) As per the ruling given by their Lordships in the above mentioned case law, when once the signature on the cheques and promissory notes being negotiable instruments is established or once the signature on such Negotiable

Instruments is admitted by the accused as belongs to him or once the execution of such Negotiable Instruments is admitted by the accused or primafacie established with the facts and circumstances brought on record, then the benefit of the presumption U/sec 118 and 139 of NI Act has to be extended to the payee or holder of the Negotiable Instruments like the Promissory Note and the Cheques. But, in the case on hand the Ex.P1 & P2 cheques and the signatures therein are not in dispute, but the only dispute is with regard to passing of consideration from the accused to the complainant.

22) In the case on hand as per the statements made by the accused during the course of his examination U/sec 274 and 351 BNSS, the accused made an admission as it is a fact that he gave two cheques to the complainant by putting his 18 signatures and amount but without mentioning the date and name of the payee on it at the time of execution of a sale deed in favour of the complainant towards sale consideration of Rs.41,05,500/- of a flat belongs to the complainant in this case. In view of the defence taken by the accused during the course of cross examination to the PW1 also it appears that the accused is not disowning the Ex.P1 and P2 cheques and the signatures thereon. Because, in the said cross examination to

PW1, no suggestion is given to the PW1 by denying the Ex.P1 and P2 cheques and the the signatures thereon as its drawer as not belongs to the accused. In the absence of any such suggestion it can be fairly held that the Ex.P1 and P2 cheques and the signatures thereon are admittedly belongs to the accused. Apart from that when I compared the purported signatures of the accused on the Ex.P1 and P2 with the admitted signatures of the accused available under the statements made by him during the course of his examination U/s 274 and 351 BNSS I observed that those signatures are similar in nature and looks alike, so that, the signatures on Ex.P1 and Ex.P2 can be said as non other than the signatures of the accused in this case.

23) Apart from the above said facts, as per the evidence in chief of the complainant as PW1 coupled with the documentary evidence, vide Ex.P1 and P2 cheques, it appears that the complainant could able to made out her case that the

Ex.P1 and P2 Cheques were issued by the accused in favour of the complainant for an amount of Rs.21,05,500/- and Rs.20,00,000/- on 11.12.2024 on a demand made by the complainant to repay the amount in due towards the amount in due to the complainant as sale consideration under Ex P8 sale deed.

24) In view of the observations made by this court with regard to the cheques, vide Ex.P1 and P2, and the signatures therein as belongs to the accused, as per the facts and circumstances discussed in the paras mentioned supra as well as when this court found that there is sufficient oral evidence and documentary evidence to say that the Ex.P1 and P2 cheques were issued by the accused in favour of the complainant in order to discharge the amount in due to the complainant towards sale consideration under original of Ex.P8 sale deed which is 19 admittedly got executed from the complainant for sale of her house property as shown in Ex.P8 sale deed, the ruling given by the Apex Court of India in its judgments, as mentioned supra, can be said as squarely applicable to the present case also to extend the benefit of presumptions provided U/sec 118 and 139 of NI

Act to presume that the Ex.P1 and P2 cheques have been drawn for consideration and it was received by the complainant to discharge of legally enforceable debt until and unless a contra evidence is established.

25) Apart from the case law as mentioned supra, in catena of other cases also the apex court has repeatedly observed that in the proceedings under sec 138 of NI Act, the complainant is not required to establish either the legality or enforceability of the debt or liability since he can avail the benefit of presumption

U/s 118 and 139 of NI Act in his favour. It is also further observed that by virtue of the presumptions under the above said section of law, the burden is on the accused to establish that the cheque in question was not issued towards legally enforceable debt or liability.

26) Now it has to be seen whether the accused could able to discharge his burden by raising any probable defence to establish that there is no legally enforceable debt in between the complainant and accused and that the cheques, vide Ex.P1 and P2, never been issued by the accused in favour of the complainant to discharge part of the amount in due to the complainant. For which the learned counsel for the accused cross examined the PW’s 1 & 2 at length. In that cross examination he asked so many questins to PW’s 1 & 2 to make the court to believe the defence taken by the accused that the Ex.P1 and P2 cheques never been drawn for consideration.

27) From the above said oral evidence of the PW’s 1 and 2 coupled with the documentary evidence, vide Ex.P1 & P2 cheques and Ex.P8 certified copy of sale deed dt.12.04.2023 it appears that the complainant could able to made out her case as the accused issued the Ex.P1 and P2 Cheques, one is for Rs.21,05,500/- and 20 another is for Rs.20,00,000/- mentioning the amount both in figures and words but without mentioning the date, in favour of the complainant towards sale consideration to purchase the Flat No.IIIA of the complainant in 3rd floor of Divya

Shakti Apartments bearing D.No.49-53-20/24 in Sy.No.16/6 and 16/7 of the complainant which is the part of the Allipuram Extension ward under a registered sale deed on 12.04.2023 for sale consideration of Rs.41,05,500/-, vide Ex.P8, without mentioning the date on those cheques and requested to present the same by mentioning the date by the complainant himself which would be inform the same later on. But, it was mentioned in the sale deed, vide Ex.P8, as if the sale consideration was paid by way of the said two cheques bearing No.000003 and 000004 dt.12.04.2023 and later on postponed the payment on pretext or the other till the date of presentation of the said cheques i e., 11.12.2024 on which date the accused was stated as asked her to present the cheques for collection.

28) In the meanwhile the PW1 and PW2 came to know that the accused executed a registered sale deed for the above said property in favour of one

Buddha Gowtham, S/o Chiranjeevi Padmanabham, R/o Polimera Street,

Gavarapalem of Anakapalli within three days from the date of execution of the

Ex.P8 sale deed when the accused was questioned about it, he gave an assurance that payment of the agreed sale consideration will be paid to the complainant within 11.12.2024. A notice was also issued to the accused through G-mail, vide Ex. P11, requesting him to make ready of required funds in his account to honour those cheques and also to pay maintenance charges and interest on the sale consideration, but, when the accused did not give any response to the said G-mail the complainant presented the Ex.P1 and 2 cheques for collection on 11.12.2024 in the account of the complainant in Andhra Pradesh Grameena Vikas Bank,

Seethammadhara branch in Visakhapatnam, but the said cheques were dishonoured due to the reason of funds insufficient and returned to the complainant on 12.12.2024 under Ex.P2 and P4 cheque return memos. Thereafter, a demand legal notice was stated as issued to the accused under Ex.P5 by sending the same to the accused as well as to the above said Budda Gowtham under a registered 21 post with acknowledgment due. As per the Ex.P6 and P7 postal receipts and as per the Ex.P9 and P10 postal track consignments it appears that the said demand legal notice was served on the accused and Budda Gowtham on 28.12.2024. But no payment of the amount covered by the Ex.P1 and P3 cheques was made by the accused to the complainant even after service of the said demand legal notice, hence the present complaint is filed by stating that the accused committed an offence U/s 138 of NI Act.

29) Now coming to the facts and circumstances elicited by the accused in his cross examination to the PW’s 1 and 2 the learned counsel for the accused elicited through the PW1 that she is a B.Sc graduate and retired employee of BNSL, she retired from her service in the year 2013, in the month of April, 2013 the accused approached to her husband and intended to purchase Flat No.3A in 3rd Floor of

Divya Shakti Apartment situated backside of IV Town P.S, Visakhapatnam, the accused also brought a drafted sale deed for purchase of the above said flat and in that way the accused became familiar to her, they are not residing in the above said flat by the time of proposal made by the accused to purchase it, they are residing in

Seetharama Heights situated at Balayya Sastry Layout, the accused gave two cheques by mentioning the amounts therein in her name on the same day of registration of sale deed for purchase of her flat, one cheque was given for

Rs.21,05,000/- and another cheque was given for Rs.20,00,000/-, in Ex.P8 sale deed the dates of issuance of the above said cheques are mentioned as 12.04.2023 drawn on HDFC Bank, the accused requested her to submit those cheques for collection whenever the accused asked to do so as there is no sufficient funds in the account of the accused by that time.

30) It is further elicited from the PW1 that the accused in this case asked her to pay the amount covered by the above said two cheques through E-mail on 27.11.2024, the accused also gave a reply to the above said Email by asking her to present the above said two cheques for its collection on 11.12.2024, the downloaded copies of the above said Email and reply given by the accused are not 22 filed in this case, but they are available with her, the lock and keys of the above said flat were not handed over to the accused as the accused did not pay the total sale consideration, the challans for registration of the sale deed were taken by the accused himself, the dates of Ex.P1 and P2 are written by her husband.

31) It is elicited from the evidence in cross of the PW2 that they mentioned in their complaint as they sent G-mail to the accused, they also mentioned in the lawyer notice about the sending of G-mail to the accused, he is one of the witnesses to the registration of the sale deed of the property of his wife, he himself and his wife signed the said sale deed after understanding all its contents, the said sale deed is containing the date of registration, the accused in this case gave two undated cheques one is for Rs.20,00,000/- and another is for Rs.21,05,500/-, the possession of the property was not delivered to the accused after its registration since the accused himself gave an assurance that he will take possession of the property only after payment of the entire sale consideration, but the said condition is not mentioned in the sale deed, from the date of registration of the said sale deed they used to ask the accused to pay the sale consideration, he met the accused frequently after the registration of the sale deed prior to 22.11.2024 and requested him to pay the sale consideration, by that time the accused gave an assurance that he will pay the entire sale consideration on or before 11.12.2024.

32) It is further elicited from the evidence in cross of the PW2 that in the G- mail they also asked the accused to pay the municipality tax, electricity bills and maintenance charges, he himself sent the above said G-mail to the accused by drafting by himself, he himself mentioned the dates on the Ex.P1 and P2 cheques, since his wife, who is the complainant in this case, having shivering due to advanced age he assisted her to write the date on the cheques, though the writing of the numericals in the dates mentioned in Ex.P1 and P2 cheques are appears as different but those dates were written by him, the accused himself advised to write the dates on the Ex.P1 and P2 cheques, after sending the G-mail to the accused the accused had a talk with him verbally by saying that there is no use to go for 23 litigation and the accused is going to compromise the said matter, in that way he could able to understand that accused might have stated so after going through the

G-mail sent by him to him.

33) If all the above said facts and circumstances which have been elicited through Pw’s 1 and 2 in their cross examination as mentioned above and as per the statements made by the accused during the course of examination U/sec 274 and 351 BNSS as stated in paras mentioned supra it appears that the accused in this case purchased the house property of the complainant by having a registered sale deed, vide Ex.P8, from the complainant on 12.04.2023 without paying the sale consideration of Rs.41,50,000/- but in the said sale deed it was stated as if he paid the entire sale consideration of Rs.41,50,000/- by way issuance of the two cheques one is bearing No.000003 for Rs.21,50,000/- and another cheque bearing

No.000004 for Rs.20,00,000/-, vide Ex. P1 & P2, on 12.04.2023 itself but in fact no such consideration was passed from the accused to the complainant. According to the statements made by the accused during the course of his examination U/sec 274 and 351 of BNSS it appears that the said fact is also admitted by the accused.

As per the Ex.P11 ‘G-mail’ message dt.22.11.2024 also disclosing the fact of the liability of the accused towards the complainant with regard to the sale transaction of the property of the complainant to the accused and the demand made by the complainant to the accused to pay the sale consideration as if the accused is in due of the said sale consideration and the accused also agreed to pay the same to the complainant at a later date. In such circumstances, the contention of the accused as he never advised to the complainant to present the Ex.P1 & P2 for collection and the complainant presented the same without his knowledge etc,.not at all give raise any doubt with regard to the case of the complainant and if at all the presentation of those cheques for collection without the prior permission of the accused after the issuance of those cheques for consideration, which is not in dispute, even then also the presentation of the Ex.P1 & P2 cheques cannot be said as made not in accordance with the law U/sec 138 of NI Act, because, the accused can be said as 24 consented for its presentation when they were issued to discharge his liability being the sale consideration under Ex.P8 sale deed dt.12.04.2023.

34) None of the above mentioned facts and circumstances which have been brought on record during the course of cross examination to Pw’s 1 & 2 are giving raise any probable defence taken by the accused as suggested to prosecution witnesses during the course of cross examination. It may be true that no registration of a sale deed will generally be made by the registrar if no sale consideration is passed from the purchaser to the seller as suggested to the Pw-1 and argued by the counsel for the accused. But in the case on hand the sale, vide Ex.P8, sale deed was registered on 12.04. 2023. As per the recitals of the sale deed it appears that the passing of sale consideration is stated as mentioned as paid through cheques on 12.04.2023 by mentioning the said cheque numbers as 000003 and 000004, but, in fact as per evidence given by the Pw’s 1 & 2 and as per the statements made by the accused during the course of his examination U/sec 274 351 of BNSS it appears that such an averment of passing of sale consideration was made and got the Ex.P8 sale deed was executed on that day when the accused promised to pay the said sale consideration later on by arranging sufficient amount in his account to honour the Ex.P1 & P2 Cheques whenever they were presented for collection. Therefore, from the above said material on record the sale deed, vide

Ex,P8 sale deed might have been registered though the sale consideration was in fact not passed physically from the accused to the complainant but which was shown as made on paper with the consent of the accused. Therefore, the mentioning of the passing of sale consideration in the sale deed and its registration on 12.04.2023 itself will not give raise any probable doubt with regard to the existence of legally enforceable debt in between the accused and complainant in respect of passing of sale consideration.

35) As per the statements made by the accused during the course of his examination U/s 274 BNSS it appears that the accused is not disputing that the complainant is owner of the flat with regard to which was agreed to be purchased 25 by him from the complainant for an amount of Rs.41,05,500/- in the month of

March, 2023 and asking the complainant and her husband to come to sub registrar office of Dwarakanagar on 12.03.2023 for execution of a sale deed under Ex.P8. It is also not in dispute that the accused also signed the said sale deed along with the complainant.

36) In such circumstances the contention of the accused that he did not observe that there is an averment in the sale deed as the sale consideration was stated as paid by him to the complainant through cheques and that he never issued any such cheques one for Rs.21,05,500/- and another for Rs.20,00,000/- in favour of the complainant without mentioning the dates on it appears as not believable, because, in Ex.P8 sale deed it was categorically stated that the accused paid the sale consideration of Rs.41,05,500/- through two cheques bearing No.000003 for

Rs.21,05,500/- and 000004 for Rs.20,00,000/-, the said sale deed might have been registered by the sub registrar by virtue of the above said recital in the sale deed. It appears that now the accused is trying to take a false plea may be in order to evade his liability towards the complainant. When the accused admittedly signed the sale deed along with the complainant it has to be presumed that the accused signed the

Ex.P8 sale deed by accepting its contents. Though the accused now denied that he never issued the above said two cheques in favour of the complainant by taking a false plea in his examination U/s 274 and 351 BNSS, the document which was admittedly signed by him will not speak false.

37) The another contention of the accused that the keys of the above said flat was not handed over to him even after execution of the sale deed, vide Ex.P8. The said fact is also admitted by the complainant as PW1 and another witness examined on behalf of the complainant as PW2 stated that possession of the property was not delivered to the accused till date. The reason for non delivery of the possession of the property is stated as that since the accused did not come forward to pay the sale consideration by arranging sufficient funds to honour the above said cheques given by him. The above said explanation given by the PW1 26 and PW2 for non delivering of the possession of the property to the accused appears as justifiable one as no prudent women like the complainant would deliver the possession of the property without receiving the sale consideration from the purchaser.

38) The accused appears as took double standard with regard to the fact of the sale of the property covered by the Ex.P8 sale deed to one Buddha gowtham.

Because, he stated in his examination U/s 274 BNSS that he never sold the said property to one Buddha Gowtham. But when coming to his statement made U/s 274

BNSS he again stated that he sold the said flat to one Buddha Gowtham only at the request of the complainant. The above said double standard of the accused in the sale of the flat of the complainant to one Buddha Gowtham itself shows that the accused is intentionally avoiding his liability towards the complainant under Ex.P8 sale deed. Because, when the accused sold away the property of the complainant basing on the Ex.P8 sale deed without paying the sale consideration to the complainant, the same transaction made by the accused with Budda Gowtham can be said as mischief towards the complainant.

39) With regard to the service of the notice which is stated as issued through

E-mail by the husband of the complainant, who gave his evidence in this case as

PW2, demanding the accused to pay the sale consideration by arranging sufficient funds in his account. Though the accused stated that he never received any such notice through E-mail in his examination U/s 274 BNSS, but when coming to the statement made by him in his examination U/s 351 BNSS he categorically stated that the said E-mail which was sent to his school E-mail Id was seen by him as it was checked recently. But no reply was given by him either to the complainant or to her husband, who sent the said notice through E-mail, by denying his liability towards the complainant. If at all the accused is not liable to pay the sale consideration of the Ex.P8 sale deed, he would have given a proper reply after receiving the said notice through E-mail. The above said circumstance itself is sufficient to believe that the accused is liable to pay the sale consideration to the 27 complainant under Ex.P8 sale deed and Ex.P1 and P2 cheques were received to discharge his liability under Ex.P8.

40) With regard to the service of the demand legal notice which is stated as given to the accused in writing after dishonour of the Ex.P1 and P2 cheques demanding him to pay the amount covered by those cheques, though the accused denied as no such notice was came to his address, but when admitted that he is residing in the given address, the service of the demand legal notice on the accused can be presumed as effected and now the accused might have been given a false evidence in order to avoid his liability towards the complainant.

41) The accused simply stated that the entire evidence of the PW2 as false, but nothing is elicited in his cross examination to show that how the evidence of the

PW2 is false. On the other hand the evidence of the PW2 appears as corroborating with the evidence of PW1 in all the aspects and no contra evidence is found in the evidence given by the PW1 and PW2. The another contention of the accused is that the complainant agreed to pay the registration charges of the said sale deed to him.

There is no such averment in the sale deed. But if at all the complainant agreed to pay any such registration charges it is a different aspect with regard to which the accused may claim it separately by initiating any proceeding under the Ex.P8 sale deed to collect the registration charges from the complainant, but in the case on hand when the Ex.P1 and P2 cheques and the signatures therein are admittedly belongs to the accused and the same are admittedly issued towards the sale consideration of Ex.P8 sale deed and failed to pay the same to the complainant by arranging sufficient funds in his account to honour those cheques and when he failed to pay the same within stipulated time even after dishonour of the above said cheques, then the accused can be held liable for punishment U/s 138 of NI Act.

42) Whatever other facts elicited from the PW1 and PW2 in their evidence in cross appears as not having the standard of proof of preponderance of probability of the defence taken by the accused both in his cross examination to PW’s 1 and 2 28 as well as the defence taken by him during the course of his examination U/s 274 and 351 BNSS as discussed above. So that it can be fairly held that no material is brought on record either by direct evidence or by way of cross examination to Pws 1 and 2 to rebut the presumptions provided U/s 118 (a) and 139 of NI Act. So that the presumptions provided under the above said section of law can be said as still available in favour of the complainant to say that the accused executed the Ex.P8 sale deed for consideration of Rs.41,05,500/- and shown the same as if the said amount was paid to the complainant through two cheques under Ex.P1 and P2 though in fact no such consideration was paid to the complainant as the accused agreed to pay the same later on by arranging sufficient funds in his account and asked the complainant to present the Ex.P1 and P2 cheques whenever he made ready such funds in his account, so that, the Ex.P1 and P2 cheques can be said as supported by consideration and they were issued to discharge legally enforceable debt in between the complainant and accused under Ex.P8 sale deed and those cheques can be said as issued by the accused to discharge the said legally enforceable debt under Ex.P8 sale deed.

43) In view of the above said reasons, I am of the considered view that the complainant could able to established that there is a legally enforceable debt in between the complainant and accused and that the issuance of the Ex.P1 and P2 cheques by the accused in favour of the complainant is held as issued in order to discharge such legally enforceable debt. It also appears that the accused could not able to rebut the presumptions provided U/s 118 and 139 of the NI Act by raising a probable defence as per the reasons discussed in the paras mentioned supra. The facts and circumstances which were brought on record by way of cross examination to PW’s 1 & 2, as discussed in the paras mentioned supra, cannot be said as standard of proof of preponderance of probability of the defence taken by the accused during the course of cross examination to PW’s 1 & 2 and for rebutting the presumptions.

29

44) By taking into consideration of all the above said reasons it can be fairly held that the cheques, vide Ex.P1 and P2, and the signatures therein has been considered as that of the accused and that they can be said as drawn for consideration and those cheques can also be said as received by the complainant from the accused in order to discharge the amount in due under Ex.P8 sale deed which can be said as legally enforceable debt in between the complainant and accused. The dishonour of the cheques, vide Ex.P1 and P2, due to the reason of “Funds Insufficient” as per the Ex.P3 and P4 cheque return memos, the service of the demand legal notice under Ex.P5 can be treated as effected on the accused by virtue of postal receipts, vide Ex.P6 and P7, and postal track consignments, vide

Ex.P9 and P10. In the said circumstances, the non payment of the amount covered by the cheques, vide Ex.P1 and P2, as demanded in the demand legal notice within the stipulated statutory period of 15 days is considered as an offence U/s 138 of NI

Act. Since the defence taken by the accused as discussed in the paras mentioned supra is found as not established and the other reasons brought on record during the course of cross examination to PW’s 1 & 2 are found as not in favour of the accused as they have been found as not meeting the standard of preponderance of probability of the defence taken by the accused and the reverse onus cast upon the accused can be said as not been discharged. Consequently, the accused is held as committed an offence punishable U/s 138 of NI Act. Accordingly, the Point No.1 is answered.

Point No.2:

In the result the accused is found guilty of the offence U/s 138 of NI Act and convicted U/s 278 (2) BNSS. After hearing the convict about the quantum of sentence to be imposed against him as provided U/s 138 of NI Act, the convict is sentenced to undergo a simple imprisonment of one (1) year and with fine of

Rs.41,65,500/- (Forty One Lakh Sixty Five Thousand Five Hundred Rupees only) out of which Rs.41,55,500/- (Forty One Lakh Fifty Five Thousand Five Hundred

Rupees only) is ordered to be paid to the complainant as compensation U/s 395

BNSS and the remaining amount of Rs.10,000/- (Ten Thousand Rupees only) is 30 ordered to be remitted into the government account, in default, the convict has to undergo further simple imprisonment of three (3) months. The remand period if any is ordered to be set off. The bail bonds and surety bonds if any are ordered to be cancelled after appeal time is over. The convict is also informed that he is having a right of appeal to the Hon’ble District Judge court, Visakhapatnam against this

Judgment within 30 days from the date of this Judgment.

The above Judgment is dictated to the Personal Assistant in Type to dictation.

I corrected and signed it and pronounced in the public court on this 11th day of

February, 2026.

VII Special Magistrate, Visakhapatnam.

APPENDIX OF ORAL EVIDENCE

On behalf of the Complainant

PW1 - Ganapatibhotla Surya Vijaya Sree (Complainant) PW2 - Ganapatibhotla Rama Narayana

On behalf of the Accused

Nil...

APPENDIX OF DOCUMENTARY EVIDENCE

On behalf of the Complainant

Ex.P1 - Original cheque dt.11.12.2024 bearing No.000003 for an amount of Rs.21,05,500/-

Ex.P2 - Another original cheque dt.11.12.2024 bearing No.000004 for an

amount of Rs.20,00,000/- Ex.P3 - Cheque return memo dt.12.12.2024 Ex.P4 - Another cheque return memo dt.12.12.2024 Ex.P5 - Office copy of the demand legal notice dt.27.12.2024 Ex.P6 - Postal receipt dt.27.12.2024 Ex.P7 - Another Postal receipt dt.27.12.2024 Ex.P8 - Certified copy of sale deed dt.12.04.2023 for Rs.41,05,500/-

Ex.P9 - Postal track consignment along with a certificate U/s 65B of Indian

Evidence Act 31

Ex.P10 - Another Postal track consignment along with a certificate U/s 65B

of Indian Evidence Act Ex.P11 - Downloaded copy of G-mail dt.22.11.2024 (Through PW2)

On behalf of the Accused

Nil...

VII Special Magistrate, Visakhapatnam.

32

CALENDAR AND JUDGMENT

IN THE COURT OF VII SPECIAL MAGISTRATE, VISAKHAPATNAM.

Date of Offence12-12-2024 Date of Report/Complaint31-01-2025 Date of Commencement of trial 04-09-2025 Date of closure of trial 08-12-2025 Date of sentence or order 11-02-2026 Calendar and Judgment Case No. STC.444/2025 Name and address of the Ganapatibhotla Surya Vijaya Sree, W/o Complainant G.Rama Narayana, R/o D.No.49-54-3/17/7, SF 302 Balayya Sastry Layout, Near Port Stadium East Gate, Seethammadhara, Visakhapatnam. Name and address of the accused Bheesetti Rama Surya Narayana, S/o Satyanarayana, R/o D.No.60-32-137/1, Janatha colony, Malkapuram, Visakhapatnam. Section of Law Under Sec. 138 of NI Act Finding of Court Accused found guilty

Sentence or Order of Court

In the result the accused is found guilty of the offence U/s 138 of NI Act and convicted U/s 278(2) BNSS, the convict is sentenced to undergo a simple imprisonment of one (1) year and with fine of Rs.41,65,500/- (Forty One Lakh Sixty

Five Thousand Five Hundred Rupees only) out of which Rs.41,55,500/- (Forty One

Lakh Fifty Five Thousand Five Hundred Rupees only) is ordered to be paid to the complainant as compensation U/s 395 BNSS and the remaining amount of

Rs.10,000/- (Ten Thousand Rupees only) is ordered to be remitted into the government account, in default, the convict has to undergo further simple imprisonment of three (3) months. The remand period if any is ordered to be set off.

The bail bonds and surety bonds if any are ordered to be cancelled after appeal time is over. The convict is also informed that he is having a right of appeal to the

Hon’ble District Judge court, Visakhapatnam against this Judgment within 30 days

from the date of this Judgment.

VII Special Magistrate, Visakhapatnam.

1

APVS040000662025

IN THE COURT OF THE VII SPECIAL MAGISTRATE AT VISAKHAPATNAM

Present: Sri D.Viswanadham VII Special Magistrate, Visakhapatnam.

Thursday, 05th day of February, 2026.

STC.No:1499/2024.

Between: Veluvarthi Indira, D/o V.S.Prakasa Rao, R/at D.No.43-14-14, T.S.N.Colony, Visakhapatnam. … Complainant

AND

1) Vasupalli Ramesh, S/o Subbarao

2) Vasupalli Deva Matha, W/o Ramesh, R/at D.No.2-78, Doddipatla, Kaikaluru, Pallivada,

Krishna District. ... Accused No.1 and 2

This case is coming for pronouncement of Judgment on this 05th day of February, 2026 after hearing the arguments of Sri.N.Sanni Babu advocate for the

Complainant and Sri.K.Apparao advocate for the accused and having stood over for consideration till this date and this court delivered the following.

Judgment

1) This is a complaint filed U/s 190 (1) (a) and 200 crpc for an offence punishable U/s 138 and 142 of the NI Act. The facts of the case of the complainant in brief is that the accused No.2 on her behalf and on behalf of the accused No.1 issued a cheque bearing No.625474 dt.20.05.2024 for an amount of Rs.6,50,000/- in favour of the complainant by drawing it on an account of the accused No.2 in

Canara Bank, Kaikaluru branch, Krishna District towards the discharge of part of the amount in due under a promissory note dt.20.09.2022 under which the accused

No.1 and 2 have stated as jointly borrowed an amount of Rs.6,50,000/- from the complainant on 20.09.2022 by executing a demand promissory note jointly in favour 2 of the complainant. The said cheque was stated as presented by the complainant in her saving bank account for collection on two occasions i.e., on 20.05.2024 and on 02.07.2024 in UCO Bank, Dwarakanagar Branch, Visakhapatnam, but the said cheque was dishonoured on both the occasions due to the reason of “Funds

Insufficient” and returned to the complainant with memos dt.21.05.2024 and dt.03.07.2024, when the accused did not choose to repay the amount covered by the cheque when it was dishonoured despite of repeated demands, finally a demand legal notice was issued to the accused No.1 and 2 on 11.07.2024 by demanding the accused No.1 and 2 to pay the amount covered by the cheque within 15 days of the date of service of the notice, the said notices were returned unserved on 25.07.2024 with postal endorsement as “Unclaimed”, but the accused

No.1 and 2 failed to pay the amount demanded in the notice, since the accused

No.2 on behalf of accused No.1 issued the cheque without having any intention to

honour the cheque, the accused No.1 and 2 have rendered themselves liable to be

prosecuted for the offence committed U/s 138 of NI Act. Hence, the present complaint is filed, and prayed the court to allow the complaint to punish the accused

No.1 and 2 in accordance with the law, and also requested the court to award compensation U/s 357 crpc.

2) The following documents have been filed along with the complaint, they are, 1) Original Promissory note dt.20.09.2022 for an amount of Rs.6,50,000/-, 2)

Original cheque dt.20.05.2024 bearing No.625474 for an amount of Rs.6,50,000/-,

3) Original Cheque return memo dt.03.07.2024, 4) Office copy of the demand legal notice dt.11.07.2024 and 5) Two returned R/p covers dt.25.07.2024 have been placed before the court in support of the case of the complainant. By taking into consideration of all the above said documents coupled with the averments made in the complaint, the Hon’ble I Addl. Chief Metropolitan Magistrate court,

Visakhapatnam has taken cognizance of the offence U/s 138 of NI Act against the accused No.1 and 2.

3

3) In the mean while this matter was transferred to this court for its disposal as per the law, the accused No.1 and 2 appeared before the court on receiving summons issued by the court and copies of the case papers were furnished to the accused No.1 and 2 and they were also examined U/s 251 crpc by explaining the allegations made in the complaint and recorded the statements made by the accused No.1 and 2, since the accused No.1 & 2 pleaded not guilty of the offence

U/sec 138 of NI Act and claimed to be tried by stating that they borrowed only an amount of Rs.3,50,000/- from the complainant for the purpose of prawns business and at the time of borrowal of the above said amount they gave their house documents to the complainant as a security, and that they stopped the said business after sustaining loss, and that in the meanwhile their son’s leg was removed by way of operation and they were in hospital, so that, they requested the complainant to sell their house and adjust the sale proceeds to the loan which was given by the complainant to them, and that they never issued any such cheque in favour of the complainant in this case, and that the complainant obtained three blank signed cheques and three blank signed promissory notes from them as a security at the time of borrowing Rs.3,50,000/- by them from the complainant, and that now the complainant misused the same and filed the present case against them, and that they do not know about the dishonour of the said cheque, and that no such demand legal notice was came to their address, but they admitted that they are residing in the same address to which the demand legal notice was sent by the complainant, and that at about one month ago when the complainant demanded them to repay the amount in due to her then they informed her that they will repay the borrowed amount of Rs.3,50,000/- to the complainant in installments within one year and the complainant agreed for the same, but the complainant filed the present case and they received notice from the court, and that they never committed any such offence U/s 138 of NI Act.

4) During the course of trial, the complainant namely Veluvarthi Indira, D/o

V.S.Prakasa Rao filed her evidence in chief as PW1 by reiterating all the material allegations made in the complaint and Ex.P1 to P6 were marked on behalf of the 4 complainant in support of her case and Ex.P7 is marked by the complainant through the cross examination of the DW1. One Yethirajyam Srinivasa Rao, S/o

Late Nooka Raju filed his evidence in chief as PW2 on behalf of the complainant in support of her case by stating that he is well acquainted with the facts of this case, on 20.09.2022 both the accused in this case have jointly executed the Ex.P1

Promissory note in favour of the complainant in this case by receiving an amount of

Rs.6,50,000/- from the complainant in his presence and in the presence of another attester and scribe. So that, the PW2 attested the Ex.P1 Promissory note as one of the attesters.

5) The PW’s 1 & 2 were examined in cross by the opposite party. After closing the recording of further oral evidence on behalf of the complainant, the accused No.1 and 2 were examined U/s 313 crpc by explaining the incriminating circumstances appears in the evidence of Pw’s 1 & 2 and recorded the statements made by the accused No.1 and 2. At this stage also the accused No.1 and 2 denied the entire case of the complainant as false by stating that they never borrowed any such amount from the complainant and never executed any such demand promissory note jointly in favour of the complainant, and that they borrowed only an amount of Rs.3,50,000/- from the complainant and repaid the same, and that they have to pay only Rs.30,000/- towards interest to the complainant in this case, and that the complainant demanding them to pay the said interest amount by taking the custody of their house document, and that they gave a blank signed promissory note, three blank signed cheques, one blank signed NJ Stamp paper and their house documents to the complainant as a security at the time of borrowal of the said amount of Rs.3,50,000/-, and that they never issued any such cheque in favour of the complainant, and that they do not know about the dishonour of the said cheque, and that no such demand legal notice was came to their address and that they were in hospital due to the ill health of his son, but they admitted that they are residing in the same address to which the demand legal notice was sent, and that the entire evidence given by the PW2 is false, and that they were in hospital as on the date of alleged execution of the promissory note, and that the complainant filed 5 false case against them, and that they never committed any such offence U/s 138 of NI Act. Since the accused No.1 and 2 pleaded that they are having witnesses to be examined on their behalf, this matter was posted for accused side evidence.

6) The accused No.1 in this case namely Vasupalli Ramesh, S/o Subbarao

Late gave his evidence as DW1 by stating that he never borrowed any debt from the complainant in this case on 20.09.2022, prior to the carona pandemic he borrowed an amount of Rs.3,50,000/- only from the complainant and the same was already repaid to the complainant, his son was admitted in Vellore hospital for operation for his bone cancer on 06.09.2022 and he was in hospital till 30.09.2022 as he was underwent for bone cancer operation, the medical report of Christian

Medical College, Vellore, Department of Patriotic Orthopedics dt.30.09.2022 given in respect of the medical treatment of his son was marked as Ex.R1, three blank signed cheques and the original document of his house site in Doddipatla village and three blank signed promissory notes and a blank signed NJ stamp paper worth of Rs.100/- were given to the complainant as a security at the time of borrowal of money of Rs.3,50,000/- prior to the carona pandemic, though he repaid the above said amount but the complainant did not return the above said documents to him just because he could not able to pay interest on the above said amount, the above said blank NJ stamp paper was signed by him as well as his wife, the above said three blank signed cheques were signed by his wife, the said three blank signed promissory notes were signed by himself and his wife, one P.Anu Kumar was present at the time of repayment of the said principal amount of Rs.3,50,000/- to the complainant, if the court permits him to examine the said P.Anu Kumar he is ready to examine him, the complainant agreed to return the above said documents if he pay Rs.30,000/- towards interest.

7) After closing of recording of oral evidence of the accused, this matter was posted for arguments. During the course of arguments, heard the arguments of the learned counsel for the complainant and accused. The learned counsel for the complainant submitted his arguments by stating that the complainant could able to 6 established the borrowal an amount of Rs.6,50,000/- by the accused No.1 and 2 jointly from the complainant on 20.09.2022 by executing a demand promissory note, vide Ex.P1, jointly in favour of the complainant and the issuance of Ex.P2 cheque by the accused No.2 as contemplated in Sec.138 of NI Act and the presentation of the said cheque for collection and issuance of a demand legal notice, vide Ex.P4, in writing demanding the accused No.1 and 2 to pay the amount covered by the said cheque when it was dishonoured due to the reason of “Funds

Insufficient” and the failure of the accused in payment of the cheque amount despite of issuance of the such demand legal notice as contemplated in proviso (a) to (c) to Sec.138 of NI Act. The learned counsel for the complainant further submitted that the complainant also complied with all the ingredients of sec 138 of

NI Act by presenting the cheque for collection in her bank account and by issuing a demand legal notice, vide Ex.P4, to the accused and by filing the complaint against the accused No.1 and 2 within the limitation period as contemplated in proviso (a) to (c) of the sec 138 of NI Act when the accused No.1 and 2 failed to pay the cheque amount within 15 days of the receipt of the notice. On the other hand the accused could not able to disprove the case of the complainant even though by adducing his oral evidence and by producing his documentary evidence, but the same could not rebut the presumptions provided U/s 118 and 139 of NI Act by bringing any material on record to establish his probable defence. Hence prayed the court to allow the complaint against the accused and also requested to grant compensation U/s 357 crpc.

8) On the other hand the learned counsel for the accused submitted that the

PW1 stated that she is having two daughters and she herself taking care of their maintenance and she is living separately from her husband, she resigned her job at about three years ago, her salary was of Rs.25,000/- and at present she is working as an LIC agent, so that, the complainant has no financial capacity to lend an amount of Rs.6,50,000/- to the accused. The learned counsel for the accused further argued that in Ex.P2 cheque the name of the drawer is not printed, so that, it cannot be said that to whom the Ex.P2 cheque is belongs to, there is no signature 7 of the A1 on the Ex.P2 cheque, the complainant also did not state that the account in which the Ex.P2 cheque was drawn as a joint account of the A1 and A2, no banker was examined on behalf of the complainant to prove the above said fact, in the absence of any such clarification the question of maintainability of the Ex.P2 cheque will not arose. The learned counsel for the accused further argued that the

Ex.P2 cheque was given by the A2 only and the Ex.P2 cheque is not belongs to A1 and A1 is no way concerned to the Ex.P2 cheque, so that, the present case is not maintainable against A1. In support of the version of the accused, the learned counsel for the accused also quoted a Judgment of Ashok Kumar V/s Praveen

Kumar and another decided by the Hon’ble High Court of Himachal Pradesh and a

Judgment of Jugesh Sehgal V/s Shamsher Singh Gogi decided by the Hon’ble

Apex Court of India. The learned counsel for the accused further argued that complainant stated in her evidence in cross that she became familiar to the accused through one Amar, but the said Amar is not examined as a witness in this case, no documents relating to LIC policy of the accused are filed in this case, the

PW1 admitted in her evidence in cross that the accused gave the original patta of his vacant house site, but the same is not mentioned anywhere in the pleadings of the complainant, the PW1 admitted that A1 himself came to her house in

Visakhapatnam and handed over the Ex.P2 cheque to her and also admitted that the A1 alone put his signature on the Ex.P2, but as per averments of Ex.P2 cheque it was signed by A2 only, PW2 stated in her evidence in cross that his father and father of the complainant are familiar to each other and in that way he became familiar with the complainant, PW1 stated that PW2 is not her relative and her colleague brought the PW2 to act as witness, PW2 stated that 1st attester of the

Ex.P1 promissory note is the relative of the accused and they brought him to the house of the complainant, but the same is not stated by the PW1, so that, there is no corroboration in between the evidence of the PW’s 1 and 2. The learned counsel

for the accused further argued that from the beginning it is the case of the accused

that he borrowed only an amount of Rs.3,50,000/- from the complainant, Ex.R1 shows that they were hospital in between 06.09.2022 to 30.09.2022, three blank signed cheques and three blank signed promissory notes and one blank signed NJ 8 stamp paper were given by the accused to the complainant as a security at the time of borrowal of Rs.3,50,000/- and now the same were misused by the complainant and filed the present case, the Ex.P7 pendrive containing the audio conversation of the complainant and A1 also supports the version of the accused only, but the complainant mischievously filed the present case with an intention to grab more money from the accused, no demand legal notice was served on the accused.

Therefore, by taking into consideration of all the above said aspects, the learned counsel for the accused prayed the court may be pleased to acquit the accused in the interest of justice. The learned counsel for the accused also filed his written arguments.

By taking into consideration of all the above said material on record, the following questions have been arose for consideration:-

1) Whether the accused has committed an offence U/s 138 of NI Act?

2) To what relief?

Point No.1:

9)In view of the above said rival contentions of the complainant and the accused, I am of the considered view that it is necessary to recape the sec 138, 118 and 139 of NI Act for proper appreciation of the evidence on record coupled with the ingredients of sec 138 and the presumptions provided U/s 118 and 139 of NI Act in order to come to a just conclusion that whether the accused in this case has committed an offence U/sec 138 of NI Act.

Sec 138:Dishonour of cheque for insufficiency etc., of funds in the account:-

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge in whole or in part of any debt or other liability is returned by the bank unpaid either because of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with that bank, such person shall be 9 deemed to have committed an offence and shall without prejudice to any other provision of this act be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both.

Provided that nothing contained in this section shall apply unless -

(a) The cheque has been presented to the bank within a period of 6 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, within 30 days of the receipt of the 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 holderin due course of the cheque within 15 days of the receipt of the said notice.

Explanation:For the purposes of this section “debt or other liability” means a legally enforceable debt or other liability.

Sec 118: Presumptions as to negotiable instruments :- Until the contrary is proved the following presumptions shall be made -

(a) Of consideration – That every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration.

(b) as to date; that every negotiable instrument bearing a date was made or drawn on such date…………..

Sec 139: Presumptions in favour of holder of a cheque – It shall be presumed, unless the contrary is proved, that the holder of a cheque received the 10 cheque of the nature referred to in sec 138 for discharge, in whole or in part, of any debt or other liability.

10)The analysis of sec 138 of NI Act shows that in order to constitute an offence U/s 138 of NI Act, the cheque shall be issued by the accused by drawing the same on a bank in which he / she is having an account in favour of the complainant in order to discharge an amount in due and in turn the complainant must have presented the same in his bank within a period of 6 months or within a period mentioned in the cheque, whichever is earlier from the date mentioned in it and it must have been dishonoured for the reasons shown in Sec.138 of NI Act. On dishonour of the cheque, the payee of the cheques should cause a demand legal notice in writing within 30 days from the date of dishonour of the cheque demanding to pay the amount covered by the cheques within 15 days from the date of service of the notice. If the drawer of the cheque fails to pay the amount covered by the cheque within 15 days from the date of service of the notice then the cause of action arises for filing a complaint.

11) In the present case, the complainant pleaded and gave her evidence as

PW1 by stating that the accused No.2 on her behalf and on behalf of the accused

No.1 issued a cheque bearing No.625474 dt.20.05.2024 for an amount of

Rs.6,50,000/-, vide Ex.P2, in her favour by drawing it on an account of the accused

No.2 in Canara Bank, Kaikaluru branch, Krishna District towards the discharge of part of the amount in due under a promissory note dt.20.09.2022, vide Ex.P1, under which the accused No.1 and 2 have stated as jointly borrowed an amount of

Rs.6,50,000/- from her on 20.09.2022 by executing a demand promissory note jointly in her favour. The said cheque was stated as presented by her in her saving bank account for collection on two occasions i.e., on 20.05.2024 and on 02.07.2024 in UCO Bank, Dwarakanagar Branch, Visakhapatnam, but the said cheque was dishonoured on both the occasions due to the reason of “Funds Insufficient” and returned to her with memos dt.21.05.2024 and dt.03.07.2024, vide Ex.P3, when the accused did not choose to repay the amount covered by the cheque when it was 11 dishonoured despite of repeated demands, finally a demand legal notice, vide

Ex.P4, was issued to the accused No.1 and 2 on 11.07.2024 by demanding the accused No.1 and 2 to pay the amount covered by the cheque within 15 days of the date of service of the notice, the said notices were returned unserved on 25.07.2024 with postal endorsement as “Unclaimed”, vide Ex.P5 and P6, but the accused No.1 and 2 failed to pay the amount demanded in the notice, since the accused No.2 on behalf of accused No.1 issued the cheque without having any intention to honour the cheque, the accused No.1 and 2 have rendered themselves liable to be prosecuted for the offence committed U/s 138 of NI Act. Hence, the present complaint is filed.

12) As per the recitals of the Ex.P1, itis an original promissory note dt.20.09.2022 for Rs.6,50,000/- executed by V.Devamatha and V.Ramesh, who are the accused in this case, in favour of V.Indira, who is the complainant in this case,

Ex.P2 is an original cheque bearing No.625474 dt.20.05.2024 drawn on account bearing No.4480101003955 in Canara Bank, Kaikalur branch by V.Devamatha, who is the accused No.2 in this case in favour of V.Indira, who is the complainant in this case, for an amount of Rs.6,50,000/-, Ex.P3 is cheque return memo dt.03.07.2024 under which a cheque bearing No.625474 was returned unpaid as it was dishonoured due to the reason of Funds Insufficient, Ex.P4 is office copy of the demand legal notice dt.11.07.2024 under which the complainant demanded the accused to pay the amount covered by the cheque dishonoured, Ex.P5 is returned

R/p cover with postal endorsement as Unclaimed dt.20.07.2024, Ex.P6 is another returned R/p cover with postal endorsement as Unclaimed dt.20.07.2024 and

Ex.P7 is a pendrive containing the conversation made by the accused No.1 with the complainant in this case through a cell phone.

13) As per the Proviso (a) to Sec.138 of NI Act the Cheque has to be presented for collection within 6 (six) months from the date on which it was drawn or within the period of its validity whichever is earlier. As per the recitals of Ex.P2

Cheque, its valid period is mentioned as three months, it was drawn on 20.05.2024.

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The date of last presentation of the cheque into the bank of the complainant is mentioned in the complaint and legal notice as 02.07.2024, but, as per the Ex.P3 cheque return memo it appears that the date of return of the Ex.P2 cheque is shown as 03.07.2024. So, that the presentation of the Cheque can be said as made within the limitation period.

14) As per the Proviso (b) to Sec.138 of NI Act, the complainant being the payee of the cheque should makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. As per the recitals of the office copy of the demand Legal Notice, vide Ex.P4, dt.11.07.2024, the payee of the cheque, who is the complainant herein, has to make a demand for the payment of the amount covered by the cheque by giving a notice in writing to the drawer of the Cheque, who is the accused No.2 herein, within thirty days from the date of the receipt of information by her from the bank regarding the return of the Cheque unpaid. As per the recitals of the Memo, vide Ex.P3, under which the said Cheque was returned to the complainant, such information was received by the complainant is on 03.07.2024 and the date of issuance of the demand Legal notice, vide Ex.P4, is 11.07.2024. The date of return of the said legal notice by the accused No.1 and 2 is 20.07.2024. So that the demand in writing as contemplated in Proviso (b) to Sec 138 of NI Act has also been made within time.

15) As per the Proviso (c) to Sec.138 of NI Act, the accused being the drawer of such cheque fails to make the payment of the said amount of money to the complainant being the payee of the cheque within 15 days of the receipt of the said notice, then, the cause of action will arise to file a complaint against the drawer of the cheque. As per the recitals of demand legal notice, vide Ex.P4, and returned

R/p covers, vide Ex.P5 and P6, and as per the statements made by the accused

No.1 and 2 during the course of their examination U/s 251 and 313 crpc, the service of the said demand legal notice can be said as deemed as effected on the accused 13

No.1 and 2 on 20.07.2024 when it was dispatched to the correct address of the accused, the date of filing of the complaint before the Hon’ble I Addl. Chief

Metropolitan Magistrate, Visakhapatnam is 23.08.2024. As per the oral evidence of the complainant as Pw-1, the present complaint was stated as filed when the accused did not come forward to pay the amount demanded in the legal notice within 15 (fifteen) days from the date of service of the demand Legal Notice. If the above mentioned dates of service of Notice and filing of the complaint are taken into consideration, then it can be said that the complaint was filed within time after observing the said grace period of 15 days from the date of service of the demand legal notice on the accused.

16) As per the above said oral evidence of the complainant as PW1 and another witness examined on behalf of the complainant as PW2 coupled with the documentary evidence, vide Ex.P1 to P7, as discussed above it appears that the complainant could able to made out the prima facie case that the accused No.2 in this case drawn the Ex.P2 cheque on her account in Canara Bank, Kaikaluru branch for the payment of an amount of Rs.6,50,000/- to the complainant out of the said account of the accused No.2 for discharge of part of the amount in due to the complainant under a promissory note, vide Ex.P1. The presentation of the cheque, vide Ex.P2, in the bank account of the complainant for collection and making of a demand in writing to pay the amount covered by the cheque by issuing a legal notice in writing when the cheque was dishonoured due to the reason of “Funds

Insufficient”, which comes under purview of Sec.138 of NI Act, are also appears as made out in compliance of proviso (a) to (c) of Sec 138 NI Act. It is also made out that the present complaint is filed after observing the grace period of 15 days when the accused failed to pay the amount demanded in the legal notice within 15 days after receipt of the notice.

17) Moreover, it is not the case of the accused that the accused No.2 is not having any such Saving Bank account in Canara Bank, Kaikaluru branch, on which the Ex.P2 Cheque was appears as drawn by the accused No.2 in this case, so also 14 it is not the case of the accused that the complainant is not having a saving bank account in UCO bank, Visakhapatnam branch in which the Ex.P2 Cheque was stated as presented for collection by the complainant but dishonoured due to the reason of Funds Insufficient which is coming under the purview of the Sec 138 of NI

Act. The compliance of the conditions of the Provisos (a) to (c) of Sec 138 of NI Act is also appears as not in dispute. In view of all the above said reasons, it can be fairly held that the complainant had complied with all the mandatory requirements of sec 138 and proviso (a) to (c) to sec 138 r/w sec 142 of the NI Act.

18) PW1 was examined in cross at length but no contra evidence is established in that cross examination on the above mentioned aspects. With regard to service of notice on the accused No.1 and 2, the complainant pleaded in the complaint and in the demand legal notice and gave her evidence as Pw-1 by stating that the demand legal notice was sent to the accused No.1 and 2 by R/P to their correct addresses. As per the returned R/p covers, vide Ex.P5 and P6, it appears that they were returned with an endorsement as Unclaimed. The accused did not say that they never resided in the given address to which the demand legal notices were sent by the complainant. Moreover, the accused stated in their examination

U/s 251 and 313 crpc as they are residing in the same address to which the demand legal notices were sent by the complainant. It is an well established law that as per Sec.27 of the general clauses Act the service of notice can be presumed as effected when it is dispatched to the correct address for service. The above said opinion is also expressed by the Apex Court of India in a case of C.C.Allavi Haji

V/s Palapetty Muhammed and another decided on 18.05.2007 the apex court held that where the payee dispatches the legal notice by registered post with correct address of the drawer of the cheque then the principle incorporated in sec 27 of the General clauses act would be attracted and service of such notice has to be deemed as effected.

19)Now, the another question before the court is that whether the benefit of presumption provided U/sec 118 and 139 of NI Act can be extended to the 15 complainant in this case to say that the cheque, vide Ex.P2, had been drawn for consideration and the same was received by the Pw-1 to discharge of the amount in due to the complainant under Ex.P1 promissory note. As per the Sec 118 and 139 of NI Act and its related case law is as follows. Sec 118 of NI Act lays down that until the contrary is proved it shall be presumed that every negotiable instrument was made or drawn for consideration. Sec 139 of NI Act contemplated that unless the contrary is proved it shall be presumed that the holder of the cheque received the cheque of the nature referred to in sec 138 for discharge in whole or in part of any debt or other liability.

20) In Basalingappa V/s Mudibasappa which is decided on 09.04.2019, the apex court has summarized the position of law after taking note of earlier judgments of that court in cases of 1) M/s Narayana Menon V/s State of Kerala and others cited in (2006 SCC Manu 2881), 2) Krishna janardhan Bhat V/s G

Dattatreya Hegde cited in (2008 SCC Manu 0503), 3) Kumar Exports V/s

Sharma Carpets cited in (2010 (11) SCC 441) by holding that “once the execution of the cheque is admitted, the sec 139 of NI Act mandates a presumption that the cheque was issued for discharge of any debt or other liability, the presumption U/s 139 is a rebuttable presumption and the onus is on the accused to raise a probable defence, the standard of proof for rebutting the presumption is preponderance of probability.”

21) In a recent case in M/s Kalamani Tex V/s P Balasubrahmanyam cited in (2021 (5) SCC 283) the apex court held that “once the signature on the cheque/negotiable instrument is established then the reverse onus clause becomes operative. In such a situation the obligation shifts upon the accused to discharge the presumption imposed upon him.” In Rohit Bhai Jeevan Lal Patel V/s State of Gujarat cited in (2019 (18) SCC 106) the apex court held that “once the signature on the cheque is admitted by the accused then the trail court ought to have presumed that the cheque is issued for consideration and to discharge legally enforceable debt and further held that the trail court is fell in error when it called 16 upon the complainant to explain the circumstances under which the appellants/accused were liable to pay, and such approach of trail court is directly in the teeth of established legal position.”

22) As per the ruling given by their Lordships in the above mentioned case law, when once the signature on the cheque and promissory note being negotiable instruments is established or once the signature on such Negotiable Instruments is admitted by the accused as belongs to him or once the execution of such

Negotiable Instruments is admitted by the accused or primafacie established with the facts and circumstances brought on record, then the benefit of the presumption

U/sec 118 and 139 of NI Act has to be extended to the payee or holder of the

Negotiable Instruments like the Promissory Note and the Cheque.

23) In the case on hand as per the statements made by the accused No.1 and 2 during the course of their examination U/sec 251 and 313 crpc, they did not specifically deny the purported signatures on Ex.P1 promissory note and Ex.P2 cheque as not belongs to them. Moreover, they stated that they gave blank signed cheques and promissory notes to the complainant as a security at the time of borrowal of Rs.3,50,000/- from the complainant. In view of the defence taken by the accused during the course of cross examination to the PW1 also it appears that the accused is not disowning the signatures on Ex.P1 promissory note and Ex.P2 cheque. Because, in the said cross examination to PW1, she was suggested by saying that the complainant obtained blank signed cheques and promissory notes from the accused at the time of borrowal of an amount of Rs.3,50,000/- as a security and now the same were misused to file the present case. In view of the defence taken by the accused during the course of evidence in chief of DW1 also the accused No.1 stated that they gave blank signed cheques and promissory notes to the complainant as a security at the time of borrowal of an amount of

Rs.3,50,000/- and now the same were misused to file the present case by the complainant. Therefore, now an inference can be drawn that the signatures on

Ex.P1 promissory note and Ex.P2 cheque can be said as admitted by the accused 17 as belongs to them. Apart from that when I compared the purported signatures of the accused on the Ex.P1 and P2 with the admitted signatures of the accused available under the statements made by her during the course of their examination

U/s 251 and 313 crpc and under the evidence in chief of DW1, I observed that those signatures are similar in nature and looks alike, so that, the signatures on

Ex.P1 can be said as non other than the signatures of the accused No.1&2 in this case and the signature on Ex.P2 cheque can be said as non other than the signature of the 2nd accused in this case.

24) Apart from the above said facts, as per the evidence in chief of the complainant as PW1 coupled with the documentary evidence, vide Ex.P1 promissory note and Ex.P2 cheque, it appears that the complainant could able to made out her case that the Ex.P2 Cheque was issued by the accused No.2 in favour of the complainant for an amount of Rs.6,50,000/- on 20.05.2024 towards discharge of the amount in due to the complainant on a demand made by the complainant to repay the amount in due under the above said promissory note, vide

Ex.P1.

25) In view of the observations made by this court with regard to the promissory note, vide Ex.P1, and cheque, vide Ex.P2, and the signatures therein as belongs to the accused, as per the facts and circumstances discussed in the paras mentioned supra as well as when this court found that there is sufficient oral evidence and documentary evidence to say that the Ex.P2 cheque was issued by the accused No.2 in favour of the complainant, the ruling given by the Apex Court of

India in its judgments, as mentioned supra, can be said as squarely applicable to the present case also to extend the benefit of presumptions provided U/sec 118 and 139 of NI Act to presume that the Ex.P2 cheque has been drawn for consideration and it was received by the complainant to discharge of legally enforceable debt until and unless a contra evidence is established.

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26) Apart from the case law as mentioned supra, in catena of other cases also the apex court has repeatedly observed that in the proceedings under sec 138 of NI Act, the complainant is not required to establish either the legality or enforceability of the debt or liability since he can avail the benefit of presumption

U/s 118 and 139 of NI Act in his favour. It is also further observed that by virtue of the presumptions under the above said section of law, the burden is on the accused to establish that the cheque in question was not issued towards legally enforceable debt or liability.

27) Now it has to be seen whether the accused No.1 and 2 could able to discharge their burden by raising any probable defence to establish that there is no legally enforceable debt in between the complainant and accused and that the cheque, vide Ex.P2, never been issued by the accused No.2 in favour of the complainant to discharge part of the amount in due to the complainant under Ex.P1 promissory note. For which the learned counsel for the accused cross examined the

PW’s 1 & 2 at length. In that cross examination he raised so many grounds to make the court to believe the defence of the accused that the Ex.P1 promissory note and

Ex.P2 cheque never been executed and drawn for consideration and that they came into the hands of the complainant in the manner as suggested by the counsel

for the accused to PW1 in her cross examination.

28) As per the Ex.P1 it is an original promissory note dt.20.09.2022 appears as executed by the accused in this case in favour of the complainant for an amount of Rs.6,50,000/-. As per the recitals of the Ex.P1 promissory note it appears that the accused No.1 and 2 have acknowledged their liability to pay an amount of

Rs.6,50,000/- to the complainant. The oral evidence of the complainant as PW1 is also corroborating the recitals of the Ex.P1 promissory note to say that the accused 1 and 2 have acknowledged their liability towards the complainant by executing the

Ex.P1 promissory note by receiving an amount of Rs.6,50,000/-. The oral evidence of the independent witness namely Y.Srinivasa rao (PW2) also corroborating the oral evidence of the PW1 as well as the recitals of the Ex.P1 promissory note in 19 respect of the passing of consideration of Rs.6,50,000/- from the complainant to the accused No.1 and 2 under Ex.P1 promissory note in his presence. The signature of the PW2 on Ex.P1 promissory note further strengthened the case of the complainant as the transaction in between the complainant and accused have taken place in the presence of PW2. Therefore, from the fair reading of the recitals of the Ex.P1 promissory note coupled with the oral evidence of the PW’s 1 and 2 it appears that the complainant could able to established the existence of legally enforceable debt in between the complainant and accused under Ex.P1 promissory note.

29) When coming to the recitals of the Ex.P2 cheque it appears that it was issued by the 2nd accused in this case in favour of the complainant on 20.05.2024 by mentioning the amount in it as of Rs.6,50,000/- both in figures and words. As per the statements made by the accused during the course of their examination U/s 251 and 313 crpc it appears that admittedly the Ex.P2 cheque and signature therein are admittedly belongs to the 2nd accused. If all the above said facts and circumstances are taken into consideration when the Ex.P2 cheque was appears as drawn on

Canara Bank, Kaikaluru branch in Krishna District, an inference can be drawn that the accused No.2 is having a saving bank account in the above said bank and it is not the case of the accused that the 2nd accused is not having any such saving bank account with cheque facility in the above said Canara Bank, Kaikaluru branch.

30) On the other hand the accused while cross examining the PW’s 1 and 2, he took a defence that no such promissory note, vide Ex.P1, was executed by the accused and no such cheque, vide Ex.P2, was issued in favour of the complainant on the given date and that a false case is filed against the accused by fabricating the promissory note which is containing the signatures of the accused 1 and 2 and the cheque, vide Ex.P2, which is containing the signature of the 2nd accused by filling up its blanks later on. When coming to the statements made by the accused during the course of their examination U/s 251 and 313 crpc it appears that it is the contention of the accused that they borrowed only an amount of Rs.3,50,000/- from 20 the complainant to do business with prawns by keeping the documents of their house with the complainant as a security and further stated that the complainant also obtained three empty signed promissory notes and three empty signed cheques from them as a security and now filed a false case against them.

31) If the above said statements made by the accused during the course of their examination U/s 251 and 313 crpc coupled with the suggestions given by the accused to the PW1 in her cross examination are taken into consideration it appears that admittedly the Ex.P2 cheque and signature therein are belongs to the accused No.2 and in the same way it is also not in dispute that the signatures in

Ex.P1 promissory note as its executents are also belongs to the accused No.1 and

2. Though the accused did not give any suggestion specifically to the PW1 that a false case is filed by using one of those three blank signed promissory notes and three blank signed cheques which were stated as obtained by the complainant from them at the time of lending only an amount of Rs.3,50,000/- as a security, but, when the combined reading of the statements made by the accused in their examinations

U/s 251 and 313 crpc and the suggestions given to the PW1 in her evidence in cross an inference can be drawn that the accused is presuming that the present case is filed by using one of such blank signed promissory notes and blank signed cheques which were stated as given by them to the complainant at the time of borrowal of Rs.3,50,000/- as a security. But nothing is placed before the court to show that accused have given such blank signed cheques and blank signed promissory notes to the complainant as a security for the borrowed amount of

Rs.3,50,000/-. No prudent man or women will keep quiet without obtaining any acknowledgment for handing over of such blank signed cheques and blank signed promissory notes to the complainant. Therefore, in the absence of any such evidence, the mere allegation made by the accused about the handing over of such blank signed cheques and blank signed promissory notes to the complainant cannot be believed.

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32) In the same way, though the accused cross examined the complainant as

PW1 and one of the attesters to the Ex.P1 promissory note as PW2 at length but nothing is brought on record to believe that the Ex.P1 promissory note and Ex.P2 cheque are one of the above said three blank signed promissory notes and three blank signed cheques alleged to have been given to the complainant at the time of lending an amount of Rs.3,50,000/- to the accused. On the other hand as per the nature of the Ex.P1 and P2 documents it appears that the Ex.P1 was signed by the accused 1 and 2 after completing its scribing, so also, the 2nd accused issued the

Ex.P2 cheque in favour of the complainant for an amount of Rs.6,50,000/- on 02.05.2024 by writing the amount both in figures and words.

33) The accused shown one of the reasons for non execution of the Ex.P1 promissory note on the given date i.e., 20.09.2022 is that his son was hospitalized for bone cancer in Christian Medical College, Vellore, so that, there is no possibility for them to come all the way to the Visakhapatnam to execute the Ex.P1 promissory note on 20.09.2022. In support of their contention, Ex.R1 is got marked through the first accused as DW1. As per the Ex.R1 it appears that it is a medical report issued by Senior Resident Doctor namely Raja Kumar Bhairava, Department of Pediatric Orthopedics and according to which the name of the patient is

V.Subash Dev, who is claimed as son of the accused, aged about 12 years, joined in the above said hospital on 06.09.2022 with a complaint of pain in right ankle and underwent treatment for Right Ankle Medial Malleolar Screw on 28.09.2022 and a medical investigation was made on the said child on 12.08.2022, on 06.09.2022 and on 30.09.2022 and review is recommended after three months. If the above said dates are taken into consideration as shown in the medical report, vide Ex.R1, it appears that there is no possibility to believe that the accused are in the Christian medical college, vellore on 20.09.2022 for getting the treatment to their child. Apart from that it is not the case of the accused that they continuously remained in

Christian Medical college vellore from 12.08.2022 to 30.09.2022 which is the last on which single pad dressing is made to the child of the accused. In such a case though the child of the accused was treated in the Christian medical college, Vellore 22 for pain in right Ankle and since it is not the case of the accused they were in the said medical college continuously till the last visit to the hospital i.e., 30.09.2022 there is every possibility for the accused to execute the Ex.P1 promissory note by coming to the house of the complainant in Visakhapatnam and by borrowing money from the complainant.

34) The accused while giving his evidence as DW1 he stated that he borrowed only an amount of Rs.3,50,000/- from the complainant prior to the carona pandemic and gave three blank signed cheques and three blank signed promissory notes to the complainant as a security at the time of borrowal of the said amount of

Rs.3,50,000/- and later on he repaid the said amount to the complainant, but the complainant did not return the blank signed cheques and blank signed promissory notes and demanded to pay Rs.30,000/- towards interest. He further stated that the above said three blank signed promissory notes were signed by him along with his wife, the 2nd accused herein, and the three blank signed cheques were signed by his wife alone, but, no acknowledgment of repayment of Rs.3,50,000/- to the complainant is filed by the accused and any acknowledgment of handing over of any such blank signed promissory notes and blank signed cheques to the complainant as a security is also not filed in this case. On the other hand as per the conversation recorded in the pendrive, vide Ex.P7, in between the complainant and accused it appears that the amount of Rs.3,50,000/- alleged to have been borrowed by the accused from the complainant is admitted by the accused as not yet been paid to the complainant and agreed to repay it to the complainant within one year. If all the above said facts and circumstances are taken into consideration it appears that absolutely there is no evidence to say that the accused gave three blank signed cheques and blank signed promissory notes to the complainant at the time of borrowal of Rs.3,50,000/- as a security and that there is also no evidence of repayment of the said amount of Rs.3,50,000/- to the complainant.

35) As per the own evidence of the accused as well as the statements made during the course of examination U/s 251 and 313 crpc it appears that there is no 23 dispute with regard to the signatures of the accused No.1 and 2 on Ex.P1 promissory note as its executents, so also, it is not in dispute that the Ex.P2 cheque and the signature therein as its drawer is belongs to the 2nd accused. Admittedly the accused borrowed Rs.3,50,000/- prior to the Carona Pandemic from the complainant. But no proof is filed for repayment of the said amount of Rs.3,50,000/- to the complainant though the same is pleaded by the accused in their examination

U/s 251 and 313 crpc and the first accused also stated in his evidence in chief as

DW1. But the conversation in Ex.P7 clearly shows that the accused have taken a false plea of repayment of Rs.3,50,000/- to the complainant, because, the said conversation reveals that the accused agreed to repay it to the complainant within one year. In Ex.P1 promissory note an amount of Rs.6,50,000/- is shown in it as if it is borrowed by the accused and in Ex.P2 cheque the amount mentioned therein is of Rs.6,50,000/- as if it is issued by the 2nd accused in favour of the complainant towards part payment of the amount in due under Ex.P1 promissory note. As per the conversation recorded in the Ex.P7 pendrive it can be understood that before the eruption of carona pandemic the accused borrowed an amount of Rs.3,50,000/- from the complainant, the eruption of carona pandemic is in the year 2020 and it also appears that nothing is paid by the accused to the complainant either towards the principal amount or interest. In such circumstances it is not a surprise to say that the complainant got a promissory note for an amount of Rs.6,50,000/- which includes interest on the above said Rs.3,50,000/- and the Ex.P2 cheque was obtained for the very same amount from the 2nd accused, who is the wife of the 1st accused and having a bank account with cheque facility. Therefore, if all the above said facts and circumstances are taken into consideration the existence of legally enforceable debt in between the complainant and accused can be said as well established.

36) In sec 138 of NI Act where any cheque drawn by a person on an account maintained by him/her with a banker for payment of any amount of money to another person from out of that account for discharge in whole or in part of any debt or other liability is returned by the bank unpaid either because of money 24 standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with the bank, such person shall be deemed to have committed an offence. In the case on hand the above said highlighted words in sec 138 of NI Act appears as playing a pivotal role and if those words are taken into consideration in the present case the liability of the accused under Ex.P1 promissory note and Ex.P2 cheque towards the complainant can be treated as debt or other liability, because, though it is the case of the complainant that she lent an amount of Rs.6,50,000/- to the accused on 20.09.2022 under Ex.P1 promissory note and Ex.P2 cheque was issued for the very same amount by the accused towards part payment of the amount in due, but as per the conversation in between the complainant and accused in Ex.P7 pendrive shows that actually the complainant lent an amount of

Rs.3,50,000/- to the accused before the eruption of the carona pandemic i.e., in the year 2020 and now filed the present case as if the accused issued the Ex.P2 cheque in her favour towards part payment of the amount in due towards the complainant under Ex.P1 promissory note. Of course in the above said Ex.P1 promissory note an amount of Rs.6,50,000/- is mentioned as in due by the accused to the complainant as on 20.09.2022 and Ex.P2 cheque is stated as issued by the accused towards the part payment of the amount in due under Ex.P1 promissory note. But if the interest payable by the accused to the complainant on the amount of

Rs.3,50,000/- which is admittedly borrowed by the accused from the complainant as per the conversation in Ex.P7 pendrive is calculated from the year 2020 then it can be presumed that the accused might have executed the Ex.P1 promissory note for such an amount of Rs.6,50,000/- which includes the interest on actual borrowal of amount of Rs.3,50,000/- and the Ex.P2 cheque can also be presumed as issued by the 2nd accused in order to discharge part of the amount in due towards the complainant.

37) The learned counsel for the accused while submitting his arguments stated that the complainant is not having financial capacity to lend an amount of

Rs.6,50,000/- to the accused as she is having two daughters and she herself taking 25 care of their maintenance and that she is living separately from her husband and she resigned her job at about three years ago and her salary was of Rs.25,000/- and at present she is working as an LIC agent etc. But the above said arguments made by the learned counsel for the accused is not sustainable, because, in Rohit

Bhai Jeevan Lal Patel V/s State of Gujarat case, the Hon’ble Apex Court of

India held that once the signature on the cheque is admitted by the accused then the trial court ought to have presumed that the cheque is issued for consideration and to discharge legally enforceable debt and further held that the trial court is fell in error when it called upon the complainant to explain the circumstances under which the Appellants/accused were liable to pay and such an approach of trial court is directly in the teeth of established legal position.

38) The learned counsel for the accused further argued that in Ex.P2 cheque, the name of the drawer is not printed, so that, it cannot be said that to whom the

Ex.P2 cheque is belongs to, there is no signature of the A1 on the Ex.P2 cheque, the complainant also did not say the account in which the Ex.P2 cheque was drawn as a joint account of A1 and A2, no banker was examined on behalf of the complainant to prove the above said fact, in the absence of any such clarification the Ex.P2 cheque can be said as not maintainable. The above said argument of the learned counsel for the accused is also appears as not sustainable, because, when the Ex.P2 cheque and signature therein is admitted by the accused as they are belongs to the 2nd accused in this case, the non printing of the name of the 2nd accused on the cheque cannot be said as fatal to the case of the complainant and the question that to whom the Ex.P2 cheque is belongs to does not arise.

39) It may be true that the Ex.P2 cheque is not containing the signature of the

A1 and whether the account on which the Ex.P2 cheque was drawn is not stated by the complainant whether it is a joint account of the accused No.1 and 2 or not and no banker was examined as a witness to establish that whether the account on which the Ex.P2 cheque was drawn is a joint account or not. But all the above said facts are cannot be said as material facts to invalidate the issuance of the Ex.P2 26 cheque by the 2nd accused in favour of the complainant and the same cannot be said as reasonable grounds for the 2nd accused to avoid her liability towards the complainant under Ex.P2 cheque. Because, since the signature of the A1 is not there on Ex.P2 cheque as its drawer the A1 can be said as not responsible for issuance of the Ex.P2 cheque though the account on which the said cheque was drawn is joint account of A1 and A2 or not. Since the A2 alone was drawn the Ex.P2 cheque as contemplated in sec 138 of NI Act and issued in favour of the complainant, the liability of the A2 towards the complainant under Ex.P2 can only be fixed but not the liability of the A1.

40) The learned counsel for the accused further argued the Ex.P2 cheque was given by the A2 only and the Ex.P2 cheque is not belongs to A1, A1 is no way concerned to the Ex.P2 cheque, so that, the present case is not maintainable against the A1. The above said argument of the learned counsel for the accused is sustainable, because, since the Ex.P2 cheque is issued by the 2nd accused by drawing the same on her account as contemplated U/s 138 of NI Act, the 1st accused in this case cannot be held responsible for the dishonour of the Ex.P2 cheque and in such circumstances the 2nd accused only can be held responsible for dishonour of the Ex.P2 cheque and her failure to pay the amount covered by the said cheque to the complainant even after issuance of a demand legal notice in writing.

41) With regard to the familiarity in between the complainant and accused, the learned counsel for the accused submitted that the complainant stated in her evidence in cross that she became familiar to the accused through one Amar, but the said Amar is not examined as a witness in this case, no documents relating to

LIC policy of the accused are filed in this case. The above said argument of the learned counsel for the accused appears as not sustainable, because, the first accused while giving his evidence as DW1 categorically stated his familiarity with the complainant as he borrowed an amount of Rs.3,50,000/- prior to the carona pandemic and repaid the same to the complainant in the presence of Anu Kumar, 27 but no such Anu Kumar is examined in this case as a witness in support of the contention of the accused. The accused also stated in his evidence in cross that he obtained 15 LIC policies from the complainant in this case in the name of his workers as the complainant is an LIC agent and in that way he became familiar with the complainant and he further stated that he know the complainant in this case from the year 2018 onwards.

42) As the learned counsel for the accused submitted that the PW1 stated in her evidence in cross that the 1st accused himself came to her house in

Visakhapatnam and handed over the Ex.P2 cheque to her, the Ex.P2 cheque is admittedly containing the signature of the 2nd accused, then there will not be any difference in handing over of the Ex.P2 cheque by the 1st accused which is containing the signature of the 2nd accused. But the another submission made by the learned counsel for the accused that PW1 made an admission that A1 alone put his signature on the Ex.P2 cheque appears as not correct, because, as per the statement made by the PW1 at Page No.7 of her deposition she stated that she do not remember whether the Ex.P2 cheque is signed by first accused in her presence or not and further stated that first accused brought a single cheque to her house. As per the subsequent statements made by the PW1 in her evidence in cross though the PW1 stated that the first accused alone put his signature on the Ex.P2 cheque, but subsequently she again stated that the Ex.P2 cheque is not containing the signature of the A1 and further stated that the signature on the Ex.P2 cheque as its drawer is of the 2nd accused. In the case on hand, the 1st accused is the husband of the 2nd accused. As per the version of the Accused No.1 and 2 itself, the Ex.P2 cheque is having the signature of the 2nd accused as its drawer. Since the Ex.P2 cheque and signature therein is admittedly belongs to the 2nd accused, the above said statements made by the PW1 cannot be said as fatal to the case of the complainant.

43) The evidence of the PW2 cannot be said as disbelieved because of her father and father of the complainant are familiar to each other and in that way he became familiar with the complainant as stated by the PW2 in his evidence in 28 cross. The fact that the PW1 stated that PW2 is not her relative and her colleague brought the PW2 to act as a witness and PW2 stated that the first attestor of the

Ex.P1 promissory note is the relative of the accused and they brought him to the house of the complainant cannot be said as fatal to the case of the complainant, because, it is quiet natural that if at all the attestors are the known persons to the complainant and accused no adverse inference can be drawn for engaging such persons as witnesses to the transaction under Ex.P1 promissory note. The PW1 might have not stated in her evidence in cross with regard to the familiarity in between her father and father of the PW2 and PW2 stated as not her relative and accused themselves brought him to the house of the complainant, but the same cannot be treated as a controversial evidence. In fact nothing is asked to the PW1 in her evidence in cross with regard to her relationship or friendship or familiarity with the PW2. Therefore, just because of the above said reason that there is no corroboration in between the evidence of PW1 and PW2.

44) The cross examination of the learned counsel for the accused to the

PW’s 1 and 2 shows that nothing is elicited from the evidence in cross of PW’s 1 and 2 which are having standard of proof of preponderance of probability of the defence taken by the accused and whatever the facts elicited in their evidence in cross appears as supporting to the case of the complainant, but none of those facts and circumstances are having any standard of proof of preponderance of probability of the defence taken by the accused to rebut the presumptions available in favour of the complainant U/s 118 and 139 of the NI Act in respect of the Ex.P1 promissory note and Ex.P2 cheque.

45) In view of the above said reasons, I am of the considered view that the complainant could able to established that there is a legally enforceable debt in between the complainant and accused and that the issuance of the Ex.P2 cheque by the accused in favour of the complainant is held as issued in order to discharge such legally enforceable debt. It also appears that the accused could not able to rebut the presumptions provided U/s 118 and 139 of the NI Act by raising a 29 probable defence as per the reasons as discussed in the paras mentioned supra.

The facts and circumstances which were brought on record by way of cross examination to Pw- 1 & 2, as discussed in the paras mentioned supra, cannot be said as standard of proof of preponderance of probability of the defence taken by the accused during the course of cross examination to Pw-1 & 2 and for rebutting the presumptions. Consequently, the accused is held as committed an offence punishable U/s 138 of NI Act. Accordingly, the Point No.1 is answered.

Point No.2:

In the result the accused No.1 is found not guilty of the offence U/s 138 of NI

Act and acquitted U/s 255 (1) crpc, whereas the accused No.2 is found guilty of the offence U/s 138 of NI Act and convicted U/s 255 (2) crpc. After hearing the convict about the quantum of sentence to be imposed against her as provided U/s 138 of

NI Act, the convict is sentenced only with fine of Rs.4,05,000/- (Four Lakh Five

Thousand Rupees only) out of which Rs.4,00,000/- (Four Lakh Rupees only) is ordered to be paid to the complainant as compensation U/s 357 crpc and the remaining amount of Rs.5,000/- (Five Thousand Rupees only) is ordered to be remitted into the government account, in default, the convict has to undergo a simple imprisonment of six (6) months. The remand period if any is ordered to be set off. The bail bonds and surety bonds if any are ordered to be cancelled after appeal time is over. The convict is also informed that she is having a right of appeal to the Hon’ble District Judge court, Visakhapatnam against this Judgment within 30 days from the date of this Judgment.

The above Judgment is dictated to the Personal Assistant in Type to dictation.

I corrected and signed it and pronounced in the public court on this 05th day of

February, 2026.

VII Special Magistrate, Visakhapatnam.

30

APPENDIX OF ORAL EVIDENCE

On behalf of the Complainant

PW1 - Veluvarthi Indira (Complainant) PW2 - Yethirajyam Srinivasa Rao

On behalf of the Accused

DW1 - Vasupalli Ramesh (Accused No.1)

APPENDIX OF DOCUMENTARY EVIDENCE

On behalf of the Complainant

Ex.P1 - Original promissory note dt.20.09.2022 for Rs.6,50,000/- Ex.P2 - Original cheque dt.20.05.2024 bearing No.625474 for an amount of Rs.6,50,000/- Ex.P3 - Cheque return memo dt.03.07.2024 Ex.P4 - Office copy of the demand legal notice dt.11.07.2024 Ex.P5 - Returned R/p cover Ex.P6 - Another returned R/p cover Ex.P7 - Pendrive (Through DW1 cross)

On behalf of the Accused

Ex.R1 - Medical report of Christian Medical college, Vellore, Department of

Patriotic Orthopedics dt.30.09.2022

VII Special Magistrate, Visakhapatnam.

31

CALENDAR AND JUDGMENT

IN THE COURT OF VII SPECIAL MAGISTRATE, VISAKHAPATNAM.

Date of Offence03-07-2024 Date of Report/Complaint23-08-2024 Date of Commencement of trial 23-05-2025 Date of closure of trial 23-09-2025 Date of sentence or order 05-02-2026 Calendar and Judgment Case No. STC.1499/2024 Name and address of the Veluvarthi Indira, D/o V.S.Prakasa Rao, Complainant R/at D.No.43-14-14, T.S.N.Colony, Visakhapatnam. Name and address of the accused 1) Vasupalli Ramesh, S/o Subbarao

2) Vasupalli Deva Matha, W/o Ramesh, R/at D.No.2-78, Doddipatla, Kaikaluru, Pallivada, Krishna District. Section of Law Under Sec. 138 of NI Act Finding of Court Accused No.1 found not guilty Accused No.2 found guilty

Sentence or Order of Court

In the result the accused No.1 is found not guilty of the offence U/s 138 of NI

Act and acquitted U/s 255 (1) crpc, whereas the accused No.2 is found guilty of the offence U/s 138 of NI Act and convicted U/s 255 (2) crpc, the convict is sentenced only with fine of Rs.4,05,000/- (Four Lakh Five Thousand Rupees only) out of which

Rs.4,00,000/- (Four Lakh Rupees only) is ordered to be paid to the complainant as compensation U/s 357 crpc and the remaining amount of Rs.5,000/- (Five

Thousand Rupees only) is ordered to be remitted into the government account, in default, the convict has to undergo a simple imprisonment of six (6) months. The remand period if any is ordered to be set off. The bail bonds and surety bonds if any are ordered to be cancelled after appeal time is over. The convict is also informed that she is having a right of appeal to the Hon’ble District Judge court,

Visakhapatnam against this Judgment within 30 days from the date of this

Judgment.

VII Special Magistrate, Visakhapatnam.

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE :: YELLAMANCHILI

Present: Sri D.Viswanadham,

Assistant Sessions Judge, Yellamanchili.

Wednesday, the 17 th day of October, 2017

Sessions Case No.38/2013

Between :

State represented by the Inspector of Police, Yellamanchili Circle.

...Complainant.

A n d :

Kuramadasu Ramana, S/o Suryarao, 30 years, Yadava, Coolie, Devavaram Village, Nakkapalli Mandal, Visakhapatnam District.

...Accused.

This Sessions Case is coming before me on 04-08-2017 for final hearing in the presence of

Smt. P.V.N.Jayalakshmi, Additional Public Prosecutor for the complainant and Sri P.V.Ramana,

Advocate on behalf of the accused, upon hearing the arguments on both sides and having stood over for consideration till this day, this court delivered the following.

J U D G M E N T

The accused in this cse namely Kuramadasu Ramana, S/o Suryarao, aged about 30 years,

Yadava by caste resident of Devavaram Village in Nakkapalli Mandal in Visakhapatnam District is prosecuted by the State represented by the Circle Inspector of Police, Yellamanchili Circle for the offnec U/Sec.376, 420, 506 IPC of Nakkapalli Police Station basing on a report given by one

Chellapu Sesharao of Devavaram village which was registered as an FIR in Cr.No.47/2011 by the

SHO of Nakkapalli Police Station namely Ch.Rudra Sekhar.

2.The case of the prosecution is that the accused is the brother of the wife of the defacto complainant namely Chellapu Sesharao; the wife of the defacto complainant is no more; the defacto complainant is having tow daughters namely Chellapu Devi aged about 16 years, herein after called as victim, and Chellapu Prameela aged about 9 years.; all of them are living by doing coolie work; the accused used to visit the house of the defacto complainant frequently during his absence and used to have sexual intercourse with the victim, who is dumb, by force under the guise of promise to marry her; resulting, she became two months pregnancy; on suspecion, the defacto complainant asked victim about the visiting of the accused to their house frequently; then the victim informed him that the accused forcibly had intercourse with her and further stated that he also threatened her and her sister Prameela to kill if they disclose the same to anybody, so that they did not inform the same to anybody earlier; later the defacto complainant approached the village elders and informed the same; then the village elders convened a panchayath on 23. 3. 2011 to pasify the issue; in the above said meeting the victim shown the accused by holding his hand in the presence of the village elders; when the village elders asked the accused,that whyhe spoiled her, for which the accused stated that he is not responsible for the pregnancy of the victim and left that place by stating that no body can do anything to him and asked them to do what they like. Then the defacto complainant gave a report to the SHO of Nakkapalli PS on 24. 3. 2011 against the accused.

After registering the same as an FIR in Cr.No.47/2011 the then Circle Inspector of Police

Yellamanchili Circle namely K.Praveen Kumar took up investigation in this case by visiting the scene of offence place, prepared a rough sketch and examined about 9 witnesses and recorded their statement U/Sec.161 Cr.P.C. The said Praveen Kumar (C.I) sent the victim girl to the K.G.Hospital,

Visakhapatnam for medical examination, accordingly she was examined by Dr. M.Anand Kumari,

Professor of Obst & Gynaec. K.G.Hospital, Visakahpatnam. The said Praveen Kumar arrested the accused in this case on 25. 3. 2011 at Narayanapuram Village in the presence of two mediators namely Chellapu Suryarao and Kona Somulu and sent him to the Govt. Hospital, Yellamanchili for potential test and later on he produced the accused before the JFCM Court, Yellamanchili for remand. After receiving the opinion from the Doctors who examined to the victim and the accused and after completion of the investigation a charge sheet was filed in this case against the accused.

Later on the victim was blessed with one male child; then the victim along with her baby and the accused in this case have been sent to the FSL, Hyderabad by K.Rama Rao, the then Inspector of

Police of Yellamanchili Circle, for DNA examination with the assistance of a woman constable of

Nakkapalli P.S. In turn the Assistant Director of FSL, Hyderabad namely B.Phani Bhushan, who conducted DNA Test on the victim girl, her baby and accused has issued a report, vide Ex: P4

DNA/218/13 dt.3.12.2013, after receipt of the said report from the FSL, Hyderabad a suplimentary charge sheet was filed in this case.

3.The learned Judicial Fist Class Magistrate Court, Yellamanchili has taken cognizance of the offence against the accused under Sec.376, 420 and 506 IPC and committed the same to the

Sessions Division, Visakhapatnam as the offence U/Sec.376 is exclusively triable by the Sessions

Judge, inturn the Hon’ble District Judge, Visakhapatnam made over the case to this court for its

disposal in accordance with the provision of law. Accordingly summons were issued against the accused and charges were framed against him for the offence under Sec.376 and 506 IPC and read over the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried.

4.During the course of trial Pws.1 to 15 were examined on behalf of the prosecution and Exs.P.1 to P.8 are marked in support of the case of the prosecution. P.W.1 is defacto complainant, PW2 is the victim girl, PW3 is sister of the victim girl, PW4 is brother of the defacto complainant, PWs.5 to 9 are the independent witnesses, PW.10 is Dr. P.Sivaiah, Medical officer of the Community Health Centre, Yellamanchili, PW.11 to 13 namely M.Malleswara Rao, K.Praveen

Kumar and K.Rama Rao, who worked as the then Inspector of Police of Yellamanchili Circle,

PW.14 is Ch.Rudra Sekhar, the then Station House Officer of Nakkapalli P.S., P.W.15 is

Dr.M.Ananda Kumari, Asst. Professor of K.G.Hospital, Visakhapatnam.

5.Among the documentary evidence Ex.P.1 is attested copy of the report given by P.W.1 dt.

24.3.2011, Ex.P.2 is attested copy of Confessional Statement of the Accused, Ex.P.3 is Attested copy of Potency Certificate issued by the Government Doctor, Yellamanchili for the accused, Ex.P.4 is

FSL Report , Ex.P.5 is attested true copy of rough sketch of scene of offence place, Ex.P.6 is the attested copy of FIR in Cr.No.47/2011, Ex.P.7 is attested copy of certificate issued by Dr.

M.Anandakumari for the victim, Ex.P.8 is attested copy of Final Opinion given by Dr.

Anandakumari. (NOTE:- At this juncture, I want to mention the reason for marking of attested copies of the above said documents as Exhibits is that before I assumed the charge of this court, the entire material part of this case was stated as misplaced by the then bench clerk namely Smt Aruna Sreenivas. After my joining in this court in the month of May 2015, when I tried to take up this case for trial as it is an oldest one on the file of this court, the present bench clerk informed me about the missing of material part of this case including the originals of the above said documents by the then bench clerk. For which an enquiry was conducted as per the instructions of the then Hon'ble District Judge, Visakhapatnam, in PR No.189-A/2016 and submitted a report by fixing the responsibility on the then bench clerk namely Smt. Aruna Srinivas Sr. Asst. In the meanwhile, the Hon'ble

District and Session Judge Visakhapatnam permitted this court to reconstruct the material part of the record with the help of the record available with the prosection and the accused as per the proceedings of the Hon'ble

District Court, Visakhapatnam in PR No.189-A/2016 Dt. 02-04-2016. Accordingly the above said attested copies of documents which are now marked as Exhibits as mentioned above by obtaining the same from the prosecuting agency after due notice to the opposite party and proceeded with the trial of this case.)

6.After closing the recording of the oral evidence on behalf of the prosecution the accused was examined U/Sec.313 Cr.PC by explaining incriminating circumstances appears in the evidence of prosecution witnesses and explained the same in Telugu for which the accused denied the same as false except the fact of giving of a report to the police against him by the defacto complainant and further stated that this case was filed against him as per the advise given by the village elders. Except which the accused did not say anything but he further stated that he is not having any witnesses to be examined on his behalf. Then this matter was posted for arguements.

7.The learned additional prosecutor who is representing to the state and the counsel for the accused have advanced their respective arguements. The learned addl.PP relied on the following judgments of supreme court of india to convict the accused for the charges framed against him.

They are: 1. Yedla srinivas rao Vs State of AP (Supreme court judgment dt.29-09-2006.) 2. S tate of Himachal

Pradesh Vs Lekhraj and another (Supreme court judgment dt.02-11-1999) , 3. State of Haryana Vs Bastiram, (Supreme court judgment dt.02-04-2013) and 4. Lakshmi alias lakshmi kantha kamath Vs state of West Bengal, (Culcutta Hight Court Judgment dt.16-09-2015).

8.The judgments relied on the learned counsel for the accused for his acquital are as follows: 1. State of Rajastan Vs Darshan Singh alias Darshan lal, (Supreme Court Judgment dt.21-May-2012),

2. Subayyah Vs State represented by inspector of police, all women police station, Palayampottai, tirunalvelli

Dst. (Judgment of Madras High Court Dt.04-08-2014). 3. State of Gujarat Vs Jayanti Bhai, Soma Bhai kanth (Judgment of the High Court Of Gujarat,dt.30-04-2015). 4. Perela Veerayyah S/o Mangaiah Vs State of A.P, represented by it Public Prosecutor High Court of A.P, Hyderabad (cited in 2008 (1) ALT (Crl) P.270 (DB(AP).

9. Now the point for conseideration is:

Whether the prosecution could able to establish the guilt of the accused for the offence

U/Sec 376 and 506 I.P.C behind all reasonable doubt?

10.In this case, the presecution version is that the victim girl is a dumb woman and that she is also a mentally retarded one. Her mother is no more, her father used to attend cooly work by leaving his two daughters including the victim girl at their house in Devavaram Village in

Nakapally mandalam. The victim girl is having a sister younger than her naming Chelappu Parimala (P.W3). The accused in this case namely Kuramdas Ramana had sexual intercourse with the victim in her house itself by taking advantage of the loneliness of the victim in her house and her dumbness and retarded mental condition and ultimately the victim girl concieved pregnancy and when the accused disclamined the pregnancy of the victim before the village elder as he was not responsible for it then the giving of a report to the police by the father of the victim being the natural guardian against the accused and refferring to the victim girl to the KGH Visakhapatnam for her medical examination and the refferring of the accused to the Govt. Hospital Yellamanchili after his arrest for potentiality test and later on when the victim girl gave birth to a child, the reference of victim girl, her child and the accused to the FSL Hyderabad for DNA test have been followed.

11. P.W1 Chellapu Sesharao, who is the defacto complainant herein and father of the victim, deposed before the court by stating that his daughter, the victim girl herein, was refferred to

KGH, Visakhapatam for medical examination and she was also refferred to FSL, Hyderabad along with her new born baby and the accused for DNA test during the course of the investigation of the case by the police. P.W12 K.Praveen Kumar, the then inspector of police, Yellamanchili, who deposed before the court by stating that during the course of the investigation he refferred the victim girl to the KGH Visakhapatnam and he also refferred the accused in this case to the Govt. Hospital,

Yellamanchili for their medical examination and recieved Ex:P7 and P8 which are the priliminary and final opinion of the doctor who examined the victim girl medically, and the potentiality test certificate, vide Ex:P3, issued by the doctor who medically examined the accused.

12. P.W13, K.Ramarao, the then inspector of police, Yellamanchili who succeeded to his predecisor i.e, P.W12 deposed before the court by stating that he sent the victim girl, her baby and the accused to Forensic Laboratory, Hyderabad for DNA test by escorting a woman head constable after obtaining permission from the court, thereafter he was transferred and further investigation was conducted by his successor H.Malleshwar rao, Circle Inspector of Police,

Yellmanchili (P.W11) who succeeded the P.W13 stated before the court that on 13-07-2014 he recieved the report of the DNA test made on the accused, the victim and her baby by

FSL,Hyderabad and filed a supplimentary charge sheet in this case.

13. Dr.T.Sivaiah, the then Civil Assitant Surgeon in Govt.Hospital,Yellamanchili, stated that he medically examined the accused in this case and found that he is potent to participate in sexual activities. Hence he issued potentiality certificate, vide Ex:P3 . Dr.M.Anandakumari, P.W15 who is working as Asst.Professor in gynacology in Andhra Medical College, KGH, Visakhapatanam stated that she medically examined the victim girl in this case as per the requisition of the police of

Nakkapalli Village, she found that the victim girl was pregnant of 11 to 12 weeks by that time.

Accordingly she issued a priliminary report, vide Ex:P7.

14. P.W15 further stated that she collected samples from the victim like swabs from external meatus, swabs from vaginal walls, swabs from cervix, smear of external meatus, smear of vaginal walls, smear of cervix, pubic hair and nail clipings and preserved the same for chemical examination and handed over the same to the police. She also conducted pregnancy test Ultra sound examination. After recieving the report from the RFSL, Visakhapatnam on the samples collected by her from the victim girl, which were sent by the concerned police to the RFSL for chemical examination, then she gave her final opinion, vide Ex: P8.

15.As per Ex: P7, it is a certificate issued by P.W15 and after conducting Gynaec examination and other investigations on the victim girl, she opined that there is no evidence to say that the victim did not have recent sexual intercourse. She is pregnant at the time of the examination. The Ex:P7 also discloses the samples were collected by the P.W15 from the victim girl for chemical examination. The Ex:P8 certificate also issued by the P.W15 after reciept of the report from the RFSL, Visakhapatnam, she gave the Ex:P8 certificate by opining that semen and spermatozoa are not detected. There is no evidence to say that the victim did not have recent sexual intercourse and the victim was pregnant at the time of examination. Ex: P3, which is the potency certificate issued by P.W10, according to which it appears that the accused was examined by P.W10 in this case and in that examination the accused was found as potent.

16. The P.Ws 10 to 13 and 15 were examined in cross at length on the aspect of the referance of the victim girl and the accused to the hospitals for their medical examination and with regard to medical examination made by the Dr. M.Anandakumari (P.W15) by collecting the samples from the victim girl and medical examination made by Dr. T.Sivaiah to the accused and with regard to issuance of a potentiality certificate, vide Ex: P3. But no contradictory evidence could be established in their evidence in cross. Hence, the oral evidence of P.Ws 1, 10 to 13 coupled with Ex:

P3,P7 and P8 established the facts of examination of the victim girl and the accused medically and in that medical examination the accused was found as potent and the victim girl was found as pregnant by that time and there is no evidence to say that she did not have recent sexual intercourse.

17.Now the question before the court is whether the prosecution could able to connect the accused with the offence that the accused had sexual intercourse with the victim under threat to the victim and her sister in order to attract the offence U/Sec. 376 and 506 I.P.C? Pw.2, who is victim in this case deposed on oath by stating that the Shesarao (Pw.1) is her father, Parimala (Pw.3) is her younger sister. She know the accused in this case. After death of her mother, the accused in thes case used to comes to their house oftenly and forcefully enjoyed her sexually under threat to kill her and sister. First she informed the same to her father, then her father raised a dispute before village elders against the accused. She shown the accused by holding his hand to the village elders.

When the accused stated that he was no way concerned to her and that he never spoiled her, then herself and their father went to the police station to give a report against the accused. Pw.2 further deposed before the court by stating that she informed all the above said facts to the police through her father. In turn the police recorded her statement by examining her.

18. Before recording the statement of the Pw.2 the learned Addl. P.P submitted that the Pw.2 as a dumb witness and she could not speak out. Then I started to make an enquiry with her by puttung some questions with regard her name, address, her profession and religion etc., in view of the answers given by the witness by way of nodding her head and also by giving sounds through her mouth to the qwestions and the suggestions put by the court. This court observed that this witness is in a position to understsnd the questions and suggestions put by the court and accordingly she gave her answers by way of nodding her head, hands and also by giving sounds from her mouth.

Accordingly, the learned Addl.P.P as will as the defence counsel are directed to elicit the fact from the witness by way of questions and suggestions.

19.At this juncture the learned Addl.P,P further submitted that this witness is not in a position to give her evidence verbally and as per the Proviso to Sc.119 of the Indian Evidence Act the court shall take the assistance of an interpreter or a special educator in recording the statement and such statement shall be vdiographed. Therefore, the learned Addl.P.P requested the court to appoint an interpreter special educator to record the evidence of this witness. Being satisgied with the representation made by the learned Addl.P,P an interpreter or a Special Educator to interpret the signs made by the witness was hereby permitted to be appointed and vdeographer is also permitted to be engaged to videograph the signs made by the witness in the interest of justice. No such vidiography was provided by the prosecution, but an interpreter by name Sri. N.V.N. Trinadh Rao

S/o late N.Kasi Viswanadham aged 55 years working as teacher for Deaf and Dumb in Omkar and

Lions Educational Society for the Deaf and Dumb of Lasence Bay Coloney Peda Waltair.

Accordingly the above mentioned evidence in chief of Pw.2 was recorded with the assistance of the above said Interpreter.

20.The PW2 gave her evidence in cross examination with the assistance of the translator by stating that her mother is no more she studied upto 6th class in the government school of thier village; tests were conductd on her in an hospital to know her age; her speech is not being understood by others; but she denied that her speech and expressions were not understood by her father and village elders. In view of the above said statements made by PW2 it can be understood that except her father and her villagers no other persons could understand her speech and expressions. In the above said statement of PW2 it appears that there is a truth, because, the father who is having an opportunity to observe the PW2 from her childhood and the villagers of the PW2 who are also having an opportunity to deal with the PW2 in day in and day out then certainly they would become familiar with the speech and expressions of the PW2. When PW2 stated that her statement was recorded by the police with the assistance of her father and police also stated that with the assistance of the father of PW2 her statement was recorded, hence it appears that it is quite probable to believe the version of the prosecution.

21.PW2 further deposed by admitting the suggestion given by the counsel for the accused as it is true that her speech and expressions are being understood by the translator. Therefore, according to the accused also the translator who is appointed in this case is in a position to understand the speech and expression of the PW2 (victim). The victim further deposed that she was asked by the police about the offene committed by the accused against her; no translator like todays translator was present at the time of the examination made by the police. The victim denied the suggestion that her statement to the police is not valid as no videographer was arranged at the time of recording her statement by the police.

22.It may be true that no videographer was arranged at the time of recording of the statement of the victim by the police. Just because of which it is not proper to thrown away the entire evidence of the victim girl given before the court. In her evidence in cross itself, as discussed in the paras mentioned supra, she categorically stated that her speech and expression is being understood by her father. This court also held that there is a probability to believe the version of the victim with regard to the understanding of the father of the victim in respect of her speech and expression and she further stated that her speech and expression were recorded by the police with the help of her father.

All the above said facts clearly shows that when the police could able to record the statement of the victim through the person who was in a position to understand her speech and expression the mere absence of videography at the time of recording of the statement of the victim does not make any difference to treat the statement of the victim as invalid.

23.The victim further stated in her evidence in cross through the assistance of the translator that she know the accused married another lady; she herself, her father and sister did not attend the marriage of the accused. The above said evidence given by the victim appears as given by her as an answer to a suggestion given by the counsel for the accused. Therefore, according to the said suggestion the accused married another lady subsequent to the incident of his having sexual intercourse with the victim and making her to be pregnant and due to the said reason only the victim, her father and sister did not attend the marriage of the accused though he closely related to them.

24.The victim further stated in her cross examination that her father was in Kakinada during the period when the offence was committed against her, herself and her sister also used to go to

Kakinada and stay along with their father; she do not know the date on which the accused spoiled her. Basing on the above said statements of the victim, the learned counsel for the accused argued that there is a possibility for the victim to have intercourse with some other person while she was staying at Kakinada along with her father. The above said contention of the Learned counsel for accused is not proper and there is no reasonability to believe his version as it is not the case of the accused that the victim is having such a character by having sexual intercourse with so many persons.

25.The victim denied the suggestion given by the learned counsel by the accused by stating that it is not true to say that she has not stated to the village elders and to the police about the accused as he spoiled her and that she never stated so to the police with the assistance of her father and that the accused never spoiled her and that now she is giving false evidence. In contravention of the above said denials of suggestion given by the learned counsel for the accused no evidence is adduced on behalf of the accused. Therefore, in the absence of any such rebuttal evidence it is not possible to believe the version of the accused as suggested by him that as the victim girl is giving false evidence.

26.When I gone through the oral evidence of the PW1 who is the father of the victim girl it appears that the oral evidence of the PW1 is corroborating to the oral evidence of the victim girl.

Because, the PW1 also stated that his daughter, who is the victim girl herein, is aged about 16 years and she is a dumb woman. The accused in this case is his relative. The Chellapu Parimala is his younger daughter and they are residing in Devavaram Village in Nakkapalli Mandal by doing coolie work. While so, he observed in the month of January and February 2011 that her daughter (the victim girl herein) was not having her regular mences, then he took her to a doctor in Kakinada at whom the victim was getting treatment regularly for the problem of flowing of Saliva unmindedly from her mouth who stated that due to the heat of using of medicine for the above said problem the mences of the victim might have been stopped, so that he gave medicine for that purpose for one month and after using the said medicine when he again took the victim to the said doctor then the said doctor after conducting medical examination on the victim girl he confirmed that she was pregnant and advised to abort the said pregnancy.

27.The PW1 further deposed that when he made an enquiry with the victim about the person who caused her pregnant, the victim informed him by way of signs that the accused in this case by name Ramana had sexual intercourse with her for two to three times in thier house itself by sending her sister Parimila outside by giving money to purchase some eatables. The PW1 also stated that his neighbours also informed him about the visiting of the accused to thier house daily in his absence.

Since the accused is son of his maternal uncle he felt that the accused might have come to his house only to look after his children as he is nearest relative to him.

28.The PW1 further deposed that he raised dispute before the village elders namely

Kona Narasimha Murthy, Chellapu Surirao and Devara Satyanarayana; when the above said elders asked the victim girl to show the person that who caused her pregnant then the victim caught hold the hand of the accused in this case who was also present in the meeting along with his younger brother and she also explained the village elders by way of signs that how the accused had intercourse with her in her house itself. The PW1 further deposed that when the village elders asked to marry the victim the accused first agreed to marry her and he also agreed to give some land to the victim, but later on there was no response from the accused, hence he gave report to the police under Ex.P1.

29.The Learned Counsel for the accused cross examined the PW1 at length in that cross examination he elicited through PW1 that Chellapu Parimila is his 3rd daughter, Chellapu Suribabu is his younger brother, Kollu Varalakshmi is his relative who is also called as Chinnamma, one

M.Kasulu is his neighbour, one D.Satyanarayana is TDP leader of thier village, Chellapu Suryarao is his Dayadi, Kona Narasimhamurthy is TDP leader of thier village, Salapu Surya Rao is called as his brother by courtesy and Kona Somulu is called as uncle by courtesy. All the above said persons are the witnesses to this case examined on behalf of the prosecution except the Salapu Surya Rao and Kona Narasimhamurthy, whose evidence was given up by the Learned Additional Public

Prosecutor. The Learned Counsel for the accused argued that all the above said persons are one way or other are related to the victim in this case. Therefore, submitted that their evidence cannot be relied on. The above said contention of the Learned counsel for the accused is not sustainable to discard their entire oral evidence just because of their relationship with the victim girl.

30.The Learned Counsel for the accused further elicited from PW1 in his cross examination that the wife of the PW1 is no more as she died in the year 2008; she is none other than the daughter of his maternal uncle; she gave birth to the victim at her parent’s house; a son and two daughters including the victim girl in this case were born to his wife through him; his son is no more; the victim girl is his eldest daughter; the date of her birth was recorded in Panchayat records; no nurse was attended at the time of birth of his eldest daughter; she was not joined in any school or in a school ment for children of dumb and deaf. He has not given any documentary evidence realting to the age of the victim girl to the police. He do not know the age of the victim girl and it is known by his wife alone. Since his wife is no more he cannot say the age of the victim girl.

31.In view of the above said statement made by PW1 in his evidence in cross it appears that the accused is not disputing the relationship of the victim girl with PW1 as father and daughter and he is also not disputing with regard to the number of children the PW1 had through his wife etcetera. But, when the PW1 stated that he do not know the age of the victim girl though he stated in his evidence in chief as 16 years and in the absence of any documentary evidence like school record or certificate issued by a doctor though she was stated as examined by a doctor, it is not possible to believe that the victim girl is aged about 16 years as on the date of incident and absolutely there is no evidence in support of the case of the prosecution with regard to the age of the victim girl.

32.The PW1 denied the suggestion that no assistant was present at the time of recording the statement of the victim girl by the police to translate her views and expressions; that the victim girl was never examined by the police; that he never stated to the police about the giving of money by the accused to his younger daughter to purchase chocolates and that the names of the neighbours are also not stated to the police and that he worked at an Advocate in Kakinada; that he never stated to the police as the accused agreed to give some land to the victim girl and to marry her before the village elders; that he cannot say who are visiting his house in his absence since he is reisiding in

Kakinada; that the accused never had any sexual intercourse with the victim girl and that he never promissed to marry her and to give land to the victim girl and that a false case was foisted against the accused as false.

33.The Sec.161 Cr.PC statement of the PW1 is corroborating the oral evidence of the

PW1. There may be some ommissions in the statement of the PW1 given to the police in their enquiry and such missing of writing the statements by the police may be due to the fault of the police for which it is not proper to say that there is a subsequent development of the case of the prosecution in the evidence of the PW1.

34.The Learned Counsel for the accused further elicited through PW1 in his cross examination that the accused as his nephew and he is a married one; the report given by the police under Ex.P1 was scribed by an Advocate; he cannot say that how many times the accused has sexual intercourse with his daughter as he has not seen it; the accused is the follower of YSR

Congress Party. The above said statements made by the PW1 in his cross examination appears as no way contradicting his evidence in chief and the mere fact of the accused as the follower of YSR

Congressh party it is not possible to say that the version of the prosecution as not corect and a false case was foisted against him. Therefore, in view of all the above said reasons it appears that the oral evidence of PW1 is corroborating the evidence of victim girl with regard to the committing of the offence against the victim girl U/Sec.376 IPC

35.PW3 by name Chellapu Parimila gave her evidence before the court on oath by stating that the victim girl in this case is her elder sister, the PW1 is their father, the accused in this case is her maternal uncle, she also know the other witnesses in this case as they belongs to

Devavaram Village. The PW3 further stated that in the year 2008 her mother died, then the accused came to their house first time in the year 2011; their father used to go coolie work; she herself and her elder sister are used to remain at their house; the accused used to give money to her to purchase chocolates and used to ask her to go and purchase chocolates; accordinlgy she used to go out of house to purchase chocolates; the accused used to close the doors of their hosue whenever she left her house to go out; after some time, the accused used to ask her to come to their house to tie up the

Chudidhar of her sister while she was playing outside after purchasing of the chocolates.

36.The PW3 further deposed that some times she used to come to their house in the middle immediately after purchasing the chocolates then she used to observe the sound of the TV as it was kept in high pitch of sound and also used to observe the accused and her sister while sitting in thier house and some times she used to observe the accused through a window of their house while closing the mouth of the victim with clothes and while giving kissings to her elder sister i.e., the victim herein.

37.The PW3 further deposed that she came to know after some time that her elder sister became pregnant, then her father raised a dispute before the village elders, accordingly a meeting was conducted by the village elders. In the said meeting her sister and the accused in this case were present and her sister shown the accused as responsible for her pregnancy; when the elders questioned the accused, he replied that he is no way responsible for her pregnancy and asked her father to do what he likes to do, then only her father gave a report to the police against the accused.

38.PW3 was examined in cross at length but no contradictory evidence could be established. On the other hand she stated that her school is situated at a distance of half Kilometer from her house all her colleagues are studying 10th class, she stopped her education in the year 2011-12, she do not know whether her parents attend the marriage of the accused. She do not remember the month and date on which the accused had sexual intercourse with her sister in their house. She has not handedover the clothes of her sister to the police. She do not remember the date and month of visit of the accused to their house. They used to go to Kakinada Church along with thier father and used to sleep in the Church itself on the occassion of Christmas. All the above said facts elicited through the PW1 in cross examination by the counsel for the accused appears as no way helpful to the accused to establish that she is innocent of the offence alleged against him.

39.On the other hand, the PW3 further stated that except the accused no other person would come to thier house and denied the suggestion that the accused is no way responsible for the pregnancy of her sister and that he never come to their house and that she never stated to the police about keeping the cloth in the mouth of the victim by the accused and not stated to the police about the arrival of the accused to their house in the year 2012 and that their father used to go to Kakinada to attend the Church as false. Except the mere suggestions no evidence is adduced on behalf of the accused to say that some other persons have also used to visit the house of the victim girl etcetera.

Therefore, the over all evidence of the PW3 both in her evidence in chief and cross appears as corroborarting with the oral evidence of the Pws.1 and 2 with regard to the visit of the accused to their house in the absence of her father on number of occassions and had such sexual activity with the victim girl by closing the doors by sending the PW3 outside of the house by giving money to purchase eatables and with regard to the observation made by the PW3 both the accused and victim girl inside of their house remaining lonely by keeping the sound of the TV in high pitch etcetera.

40.PW4, Ch.Suribabu stated before the court on oath that the accused in this case is son of his maternal uncle, the PW1 is elder brother, Pws.2 and 3 are daughters of PW1. He further stated that himself and his elder brother resided in the same house but in different portions which are situated side by side. His elder brother used to go out for coolie work by leaving his daughters at his house. The accused used to come to thier house from the year 2011 onwards. On one day in the year 2011 he came to know through his elder brother that the accused spoiled his elder daughter, then a dispute was raised before the village elders and then the elders asked the accused that why he spoiled the victim girl, but the accused stated that he do not know anything, but when the elders asked the victim girl to show the person who was responsible for her pregnancy then she caught hold the hand of the accused by stating that he spoiled her. The PW4 denied the suggestion given by the counsel for the accused in his cross examination that the accused is no way concerned to the victim girl and that he has not committed any offence towards her as false.

41.K.Varalakshmi (PW5) who is the resident of Devavaram Village, Nakkapalli Mandal stated that she know Pws.1 to 4 and the accused in this case. She further stated that house of the

PW1 is situated on the back side of thier house. Accused is nephew of PW1 and she came to know about the spoiling of the victim girl by the accused in this case and a meeting was held in thier village before the village elders with regard to that aspect, later she came to know that a case was filed against the accused by the father of the victim girl

42.M.Kasulu (PW6) is the resident of Devavaram Village, Nakkapalli Mandal stated

before the court on oath that he know the Pws.1 to 5 and the accused in this case. The accused is the

nephew of the PW1. He is the neighbour to the PW1 at about 5 to 6 years ago on one day a meeting was held in thier village with regard to the aspect that the daughter of the PW1 was spoiled by the accused he heard from their villagers that accused in this case spoiled the victim girl.

43.Devara Satyanarayana (PW7) is the Sarpanch of the Devavaram Gram Panchayat from the last 3 years. He stated before the court on oath that he know the Pws.1 to 6, one

Ch.Suryarao, Kona Narasimhamurthy and Kona Somulu, he also know the accused in this case. He further stated that in the year 2011 on one day the father of the victim girl in this case came to him and informed that the accused in this case has spoiled his elder daughter and asked him to arrange a meeting with the village elders. Accordingly, a meeting was held in which the accused was also asked to come to the meeting, in the said meeting the victim girl was asked to say that what was happened to her, then the victim girl caught hold the hand of the accused and shown him to them.

Since the victim girl is a dumb woman and unable to speak out, she could not able to express her feelings outside.

44.The PW7 further deposed that when he asked the accused that he should be held responsible for spoiling the victim girl as she shown him, for which the accused tried to escape by saying that he do not know anything and left the meeting, then they advised the father of the victim to give a report to the police against him. The PW7 denied the suggestion given by the counsel for the accused that he did not state to the police about his asking to the victim girl to show the person responsible to spoil her and about the caught holding of the hand of the accused by the victim girl in the said meeting and that the accused is a strong follower of YSR Congress Party so that a false case was got foisted against him etcetera as false.

45.Kona Somulu (PW8) who is also the resident of Devavaram Village, Nakkapalli

Mandal has deposed before the court by stating that in the month of March, 2011 on one day a dispute was raised before the village elders by the father of the victim girl stating that the accused spoiled his daughter. He was also present in the said meeting and asked the victim girl to show that who spoiled her, then the victim girl shown the accused in this case by caught holding his hand.

When they questioned the accused that why he did so, then the accused stated that he was no way concerned to the victim and that he never spoiled her. Then according to their advise a report was given by the father of the victim girl to the police against the accused. The PW8 furether deposed that the accused has made a confession before him and one Chellapu Surya Rao as per Ex.P2. In his cross examination the PW8 further stated that the Ex.P2 was recorded by one of the police personal. Therefore, the Ex.P2 which is stated as a confessional statement made by the accused in the presence of PW8 and Ch.Suryarao (PW9) cannot be said that the Ex.P2 is having any evidentiary value, because it was recorded by the police constable though in the presence of two mediators like PW8 and PW9.

46.Ch.Suryarao, (PW9) also stated before the court on oath in the same lines as like the

PW8 by stating that at about 6 years ago on one day a dispute was raised before the village elders with regard to the fact that the accused in this case spoiled the victim girl, he is also one of the elders and present in the said meeting on that day and when they asked the victim girl to show the person who spoiled her, then she shown the accused in this case by caught holding his hand in the presence of all the village elders since the victim girl is not in a position to speak out and cannot express her views but the accused stated that he never committed any offene against the victim but later he admitted his guilty of spoiling the victim girl in the absence of her father in thier house and he also agreed to give 26 cents of land to the victim girl and he also made a confession in his presence and in the presence of PW8 before the police.

47.In view of the oral evidence of the witnesses as recorded in the paras mentioned supra the PW7 to PW9 are the witnesses who spoken about the holding of the metting in thier presence being village elders with regard to the spoiling of the victim girl by the accused and with regard to the showing the accused by the victim girl as the person who spoiled her because the victim could not express her views in words due to the reason of her dumbness.

48.According to the oral evidence of the Pws.4 to 6 it appears that they are only the hearsay witnesses about the holding of the meeting in thier village with regard to the spoiling of the victim girl by the accused. But, all of them stated that their houses are situated near by the house of the victim girl and they also observed the visiting of the accused to the house of the victim girl in the absence of her father oftenly from the year 2011 onwards.

49.If the oral evidence of the Pws.4 to 9 are read together with the oral evidence of the

Pws.1 to 3 it appears that the oral evidence of all the above said witnesses are corroborating with each other to understand that the accused being the close relative of the victim girl used to visit her house in the absence of her father and used to enjoy her sexually by sending the younger sister of the victim girl (PW3) by giving money to her to purchase eatables and also by taking advantage of the absence of the father of the victim girl in the house as he used to go out for coolie work and as a result his sexual activities with the victim girl she got pregnancy which is established by the medical report, vide Exs.P7 and P8.*

50.Of course, the FSL report shows that a DNA test was conducted on the victim girl, her baby and the accused and a final opinion was given by the Scientific Officer of FSL, Hyderabad as the accused is not the biological father of the baby born to the victim girl. Of course, the said

Scientific Officer is not examined before the court eithr on behalf of the prosecution or on behalf of the accused. Basing on the said FSL, Report vide Ex.P4 the Learned Counsel for the accused argued that the accused has to be treated as innocent of the offences alleged against him and that he is entitled to be acquitted by having benefit of doubt.

51.Undisputedly, the Ex.P4 FSL, Report which is disclosing that a DNA Test was conducted on the victim girl, her baby and the accused when they were admittedly taken to the FSL,

Hyderabad by the prosecuting agency and accordingly, the Scientific Officer has issuedthe Ex.P4 report by opining that the accused is not the biological father of the baby born to the victim girl.

But, in view of the oral evidence of the victim girl before the court on oath which is corroborated by the oral evidence of her father and sister as Pws.1 and 3 coupled with the oral evidence of other independent witnesses as discussed in the paras mentioned. It appears that there is unequivocal evidence before the court to believe that the accused had sexual intercourse with the victim girl in her house by taking advantage of her lonliness and dumbness and later on disclaimed the pregnancy of the victim has not belongs to him, though once he made an admission before the village elders about his sexual relationship with the victim girl and agreed to give Ac.0.20 cents of land to her.

52.It is not the case of the prosecution that any other person of the Devavaram Village also having free access to the house of the victim girl to presume that the accused alone is not responsible for the pregnancy of the victim girl and there are other persons who should also be held responsible for it. The contention of the counsel for the accused that since the victim girl and her sister also usedto go to Kakinada along with their father and used to sleep in the Church ofthe

Kakinada in the nights onthe occassion of Christmas, there is a possibility of having sexual intercourse by other persons with the victim girl inthe said Church of Kakinada is also appears as not tenable when it is not the contention of the accused that the victim girl is having such a nature of character.

53.It is not out of place to say that this is the case of the year 2011 but it was numbered as Sessions Case in the year 2013 that is after lapse of two years and thereafter the original material part of the record was misplaced, due to which the case could not be taken up for trial for a longer period till the month of June, 2016 when the record was reconstructed with the permission of the

Hon’ble District Judge, Visakhapatnam and supplied true copies to the accused for commencing the

trial. Of course, an enquiry was ordered against missing of the said material part of the record and after completion of discrete enquiry conducted by the Presiding officer of this court a report was submitted to the Hon’ble District Judge, Visakhapatnam by fixing responsibility against the then

Bench Clerk namely Smt.Aruna Srinivas for further action against her.

54.If the above said episode with regard to the missing of the material part of record is taken in to consideration it appears that the said missing of material records might have been made intentionally in order to let the accused to escape from the alleged offences scot free. If the above said circumstances is taken in to consideration then any amount of doubt can be entertained with regard to the opinion given by the Scientific Officer of the FSL, Hyderabad. The Ex.P1 which is the opinion of the Scientific Officer of the FSL, Hyderabad also cannot be said that it is free from any such manipulation being influnced either by the accused or by any other person interested towards the accused. Therefore, in view of the above said reasons I feel that it is not just and proper to discard the entire oral evidence of the prosecuting witnesses especially the victim girl in this case who categorically stated that it is the accused person in this case who spoiled her by having sexual intercourse with her in her house and made her pregnant and whose evidence is corroborated by the oral evidence of her sister PW3 who is an eye witness of the visiting of the accused to their house so oftenly and spending with the victim girl lonely by closing the doors and by giving kisses to the victim girl etc., which have been observed by PW3 personally. The oral evidence of the other witnesses i.e., Pws.4 to 6 also established the visiting of the accused to the house of the victim girl and heard about the spoiling of the victim girl by the accused and the evidence of Pws.7 to 9 established that victim girl identified the accused and shown him to the village elders in a meeting held by them at request of the father of the victim girl i.e., PW1 as the person who is responsible for her pregnancy by having sexual intercourse with her.

55.As per Sec.375 a man is said to commit rape who has sexual intercourse with a woman under a circumstance i.e., with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. It is one of the six circumstances under which a man is said to have committed rape by having sexual intercourse with a woman.

56.In the case on hand, the victim girl is admittedly not only dumb woman but also a mentally retard woman as per the observation made bythe court during the course of recording of her evidence inthe public court. In such circumstances, though the victim girl appears as given her consent for such sexual intercourse with the accused but the said consent of the victim cannot be said as free consent and she gave such consent by understanding the nature and consequences of having such sexual intercourse with the accused due to the reason that first of all she is dumb woman and also mentally retarded and not in a position to restrain the accused either by shouting loudly or by using physical force by understanding the consequences of such sexual activity.

Therefore, by taking in to consideration of all the above said facts and circumstances, it can be said that the accused had committed an offence of rape against the victimg girl and such an activity of the accused with the victimg girl would certainly attract by Sec.376 IPC.

57.The accused was also charged with the offence U/Sec.506 IPC for criminal intimidation. According to which who ever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Sec.506 IPC defined the word criminal intimidation by saying that “who ever threatens other with any injury to his person, reputation or property, or to the person or reputition of any one in whom that person is interested, with an intention to cause harm to that person, or to cause that persons to do any act which he is not legally bound to do or to ommit to do any act which that person is legally entitled to do so as the means of avoiding the execution of such threat, commits criminal intimidation”.

58.In the case on hand, the Pws.2 and 3 have categorically stated in their evidence

before the court on oath that the accused after having such a sexual intercourse with the victim girl

have categorically threatened the victim girl and her sister not to disclose the same to any other person if they desist to do so he would kill them. The father of the victim girl (PW1) also stated

before the court on oath that he was informed by their daughters that the accused threatened them to

kill if they disclose the fact of his sexual activity with the victim girl to any body else, so that they did not venture to inform the same to him or to any other person earlier.

59.The Pws.1 to 3 were examined in cross at length by the counsel for the accused on the said aspect of the threat alleged to have been given by the accused to the Pws.2 and 3 but no contradictory evidence could be established. The evidence of Pws.1 to 3 on that aspect is cogent and coherent. Therefore, the oral evidence of the Pws.1 to 3 clearly established the offence threat given by the accused to the Pws.2 and 3 and the same is attracted by Sec.506 IPC.

60.The Judgment of the cases relied on by the learned counsel for the accused which have been cited as follows i.e., 1. Yedla srinivas rao Vs state of AP (Supreme court judgment dt.29-09-2006.) 2.

S tate of Himachal Pradesh Vs Lekhraj and another (Supreme court judgment dt.02-11-1999) , 3. State of Haryana

Vs Bastiram, (Supreme court judgment dt.02-04-2013) and 4. Lakshmi alias lakshmi kantha kamath Vs state of

West Bengal, (Culcutta Hight Court Judgment dt.16-09-2015) are not helpful to the case of the accused to acquit him by giving benefit of doubt of the offence alleged against him as the facts and circumstances under which those pronouncements are made are entirely different from the facts and circumstances of the present case.

61.Therefore, in view of the reasons discussed in the paras mentioned supra, I am of the considered view that there is satisfactory evidence before the court to connect the accused with the pregnancy of the victim girl as the accused had sexual intercourse with the victim girl, who is being a dumb and mentally retarded woman, and thereby caused pregnancy to her and also threatened the victim girl and her sister to kill them if they disclose the said fact of his sexual intercourse with the victim girl with anybody else. Hence, the prosecution can be said as established guilt of the accused for the offence U/Sec.376 and 506 IPC beyond all reasonable doubt. Hence, I inclined to convict the accused for the said offences.

62.Accordinlgy, the accused is found guilty of the offence U/Sec.376 and 506 IPC.

Hence, he is convicted for the said offences U/Sec.235 (2) Cr.PC.

Dictated to my Personal Assistant, transcribed by him, corrected and pronounced by me in open

court on this 17th day of October, 2017.

ASSISTANT SESSIONS JUDGE,

YELLAMANCHILI.

APPENDIX OF EVIDENCE

LIST OF WITNESSES EXAMINED

For Prosecution For Defence-None-

P.W.1/Chellapu Sesharao

P.W.2/Chellapu Devi

P.W.3/Chellapu Parimila

P.W.4/Chellapu Suribabu

P.W.5/Kolli Varalakshmi

PW.6/M.Kasulu

PW.7/Devara Satyanarayana

PW.8/ K.Somulu

P.W.9/ Ch.Suryarao

P.W10/ Dr.T.Sivaiah

P.W11/H.Malleswararao

P.W12/ K.Praveen Kumar

P.W13/ K.Ramarao

P.W14/Ch.Rudra Sekhar

P.W15/ Dr.M.Ananda Kumari.

LIST OF DOCUMENTS MARKED

For Prosecution:

Ex.P.1/Attested copy of Report given by PW1

Ex.P.2/Attested copy of confession statement

Ex.P.3/Attested copy of Potency certificate

Ex.P.4/RFSL Report

Ex.P.5/Attested True Copy of Rough sketch

Ex.P.6/ Attested Truce Copy of FIR in Cr.No.47/11

Ex.P.7/ Attested True copy of certificate issued by Dr.Manandakumari

Ex.P.8/ Attested True copy of Final opinion given by Dr.M.Anandakumari

For Defence:

NIL

ASSISTANT SESSIONS JUDGE

YELLAMANCHILI

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE :: YELLAMANCHILI

Present: Sri D.Viswanadham,

Assistant Sessions Judge, Yellamanchili.

Wednesday, the 17 th day of October, 2017

Sessions Case No.38/2013

(PRC.33/2011 Addl. J.F.C. Magistrate, Yellamanchili in Cr.No.47/2011 of Nakkapalli Police

Station).

1. Name of the Complaint

The State Represented by the Sub-Inspector of Police, Nakkapalli Police Station.

2. Name of the Accused.

Kuramadasu Ramana, S/o Suryarao, 30 years, Yadava, Coolie, Devavaram Village, Nakkapalli

Mandal, Visakhapatnam District.

Cheedika Village, Nakkapalli Mandal.

3. Charges: U/Sec.376, 506 IPC

4. Date of Offence: 24.03.2011

5. Date of complaint : 24.03.2011

6. Date of apprehension of : 30.11.2011

Accused.

7. Date of Committal : 14.12.2011

8. Whether the accused is in jail : Accused is on bail.

or on bail

9. Date of commencement of trial: 17.01.2017

10. Date of close of trial: 22.05.2017

11. Date of Judgment : 17.10.2017

12. Prosecution conducted by : Smt. P.V.N.Jayalakshmi, Additional Public Prosecutor

13. Accused defended by : Sri P.V.Ramana, Advocate on behalf of the accused,

14. Explanation for delay in: NIL

Committal Court 15 Finding of the Court : ================In the result, the accused is hereby found not guilty for the offence U/Sec.498-A, 306 IPC, hence he is acquitted U/Sec.235 (1) Cr.PC. The bail bonds and surety bonds of the accused are ordered to be cancelled. The unmarked case property if any is ordered to be destroyed, if they are not having any value, after appeal time is over.

ASST. SESSIONS JUDGE,

YELLAMANCHILI.