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IN THE COURT OF THE I ADDL. JUDL. MAGISTRATE OF I CLASS:
BHIMAVARAM.
Present:- Sri K.Balakoteswara Rao,
II Addl. Judl. Magistrate of I Class, Bhimavaram.
FAC : I Addl. Judl. Magistrate of I Class, Bhimavaram.
Thursday, this the 17 th day of December, 2020.
C.C.No.484/2017
Between:
Smt.Sunkara Kanaka Durga, W/o.Bullabbai, aged 45yrs, Housewife & Properties, R/o.Srungavruksham village,
Palakoderu Mandal, W.G...Complainant
And
Smt.Midde Varalakshmi, W/o.Nageswara Rao, aged 30yrs, Hindu, Housewife, R/o.D.No.11.177/1, Near Srirama statue, Near Railway Station, Srungavruksham village,
Palakole Mandal, W.G...Accused
This case coming before me on 14.12.2020 for final hearing in the presence of Sri M.Harischandrudu, Advocate for the complainant and that of Sri V.Gopala Krishna Rao, Advocate for accused, and having heard arguments of both sides through Video Conference by applying Blue Jeans, and having stood over for consideration to this day, this court delivered the following:
J U D G M E N T
1.This is a complaint filed by the complainant under Sec.190 of
Cr.P.C and Sec.138 and 142 of Negotiable Instruments Act, 1881 (for short the ‘NI Act’) 2
2.The brief facts of the case of the complainant are that:
(i)The accused borrowed an amount of Rs.1,50,000/- from the complainant on 02.02.2015 for the purpose of her family welfare and for discharge of her sundry debts, agreeing to repay the same with interest at Rs.2/- per hundred per month. On believing the words of accused, the complainant gave an amount of Rs.1,50,000/- to the accused. On the same day, she had executed promissory note in favour of the complainant.
(ii)Thereafter the complainant demanded the accused to pay the amount due under the promissory note. On repeated demands made by the complainant, the accused had issued cheque to the complainant for Rs.2,00,000/- bearing No.272891 dt.28.04.2017 drawn on Andhra
Bank, Srungavruksham Branch towards part payment of the debt. The complainant presented the said cheque for collection in his account in
State Bank of India, H.B Colony Branch, Bhimavaram on 06.05.2017, but the said cheque was returned unpaid for the reason ‘funds insufficient’ vide cheque return memo dt.08.05.2017.
(iii)The complainant got issued a legal notice dt.13.05.2017 through her counsel to the accused, but the accused intentionally avoided to receive the said notice and got it returned on 16.05.2017. Hence, this complaint and the complainant pray that the accused is liable for punishment under Sec.138 of NI Act.
3.This case is taken on file under Sec.138 of NI Act against the accused. On appearance of accused before this court, copies of all documents furnished to her as contemplated under Sec.207 of Cr.P.C.
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4.The accused was examined under Sec.251 of Cr.P.C and the substance of accusation leveled against her under Sec.138 of NI Act was read over and explained to her in Telugu, for which the accused denied and pleaded not guilty and claimed to be tried.
5.In order to prove the case of the complainant, the complainant herself is examined as P.W.1 and got marked the documents on her behalf i.e. Ex.P1 to P8.
6.After closure of the complainant side evidence, the accused was examined under Sec.313 of Cr.P.C. The substance of incriminating evidence is read over and explained to her in Telugu, for which she denied the same.
7.Accused herself examined as D.W.1 and got marked Ex.D1 to D5 on her behalf.
8.Perused the written arguments filed on both sides.
9.Perused the material on record.
10.Now the point for determination is
Whether the complainant proved the guilt of accused for
the offence punishable under Sec.138 of NI Act beyond all
reasonable doubt?
POINT
11.In nutshell, it is the case of the complainant is that the accused borrowed an amount of Rs.1,50,000/- from the complainant on 02.02.2015 for the purpose of her family welfare and for discharge of sundry debts agreeing to repay the same with interest at Rs.2/- per hundred per month. On believing the words of the accused, the 4 complainant gave an amount of Rs.1,50,000/- to the accused. On the same day, the accused had executed Ex.P1 promissory note in favour of the complainant. Thereafter the complainant demanded the accused to repay the amount due under the promissory note. On repeated demands made by the complainant, the accused had issued
Ex.P2 cheque to the complainant for Rs.2,00,000/- bearing No.272891, dt.28.04.2017 drawn on Andhra Bank, Srungavruksham Branch towards part payment of the debt. The complainant presented the said cheque for collection in his account in State Bank of India, H.B Colony
Branch, Bhimavaram branch, but the said cheque was returned unpaid for the reason ‘funds insufficient’ vide Ex.P4 cheque return memo dt.08.05.2017 issued by the State Bank of India, Bhimavaram. The complainant got issued legal notice dt.13.05.2017 through her counsel as in Ex.P5 to the accused and that the accused intentionally avoided to receive the notice and got it returned. Ex.P5 is the office copy of legal notice and Ex.P6 is returned postal cover of accused.
12. Whereas, the specific case of the accused is that there is no consideration was passed towards the Ex.P1 and P2. The accused further stated that she did not excute any Ex.P1 promissory note and
Ex.P2 cheque in favour of P.W.1 and that she had given Ex.P1 promissory note and Ex.P2 cheque to one Harischandrudu for security purpose and the said Harischandrudu and P.W.1 colluded with together and filed false case against the accused for wrongful gain. So, in view of the above, more particularly defence set up by the accused that the complainant filed a false case against the accused, she prays to acquit her.
13. After considering the pleading of both parties and on perusal of the evidence adduced by the PW1, now it has to be considered how far the complainant proved the case against the accused, for the offence punishable under section 138 of the N.I Act and at this juncture, it is to be pertinent to mention the provisions of law i.e. Sec.138 of N.I Act.
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Section 138 of the NI Act which reads as follows; i. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; ii. The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; iii. That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier; iv. That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; v. The payee or the holder in due course of the cheque 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 information by him from the bank regarding the return of the cheque as unpaid; vi. The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
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14.After careful consideration of the provision of Section 138 of the
Act, it is clearly reveals that there must be a debt or other liability legally enforceable, the cheque must be given by the debtor in favour of creditor in discharging of the said debt or liability, in whole or in part and the said cheque should be returned by the banker for insufficient funds to the credit of the drawer to honour the cheque.
15.To substantiate the case of the complainant, she got herself examined as PW1 and got marked Exs.P1 to P8 to support her case.
16. The complainant who examined as PW1, deposed that the accused borrowed an amount of Rs.2,00,000/- from the complainant complainant on 02.02.2015 for the purpose of her family welfare and for discharge of sundry debts agreeing to repay the same with interest at Rs.2/- per hundred per month. On believing the words of the accused, the complainant gave an amount of Rs.1,50,000/- to the accused. On the same day, the accused had executed Ex.P1 promissory note in favour of the complainant. Thereafter the complainant demanded the accused to repay the amount due under the promissory note. On repeated demands made by the complainant, the accused had issued Ex.P2 cheque to the complainant for
Rs.2,00,000/- bearing No.272891, dt.28.04.2017 drawn on Andhra
Bank, Srungavruksham Branch towards part payment of the debt. The complainant presented the said cheque for collection in his account in
State Bank of India, H.B Colony Branch, Bhimavaram branch, but the said cheque was returned unpaid for the reason ‘funds insufficient’ vide Ex.P4 cheque return memo dt.08.05.2017 issued by the State
Bank of India, Bhimavaram. The complainant got issued legal notice dt.13.05.2017 through her counsel as in Ex.P5 to the accused and that the accused intentionally avoided to receive the notice and got it returned. Ex.P5 is the office copy of legal notice and Ex.P6 is returned postal cover of accused.
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17.The counsel for the complainant submitted that the evidence of
PW1 is quiet corroborated with the contents of the complaint. He added, the evidence of PW1 coupled with Ex.P1 to Ex.P8 clearly established that the accused had issued Ex.P2 cheque with regard to discharge her liability under Ex.P1 promissory note debt. Hence, the complainant proved the ingredients of the Section 138 of N.I Act under
Ex.P2 cheque which was issued by the accused for the legal enforceable debt, as such this court raised presumption in favour of the complainant that the cheque under Ex.P2 had issued for the legally enforceable debt and even Section 118 of the N.I Act also raised a presumption in favour of the complainant as ExP2 cheque was issued by the accused in favour of the complainant for consideration, as such the complainant proved the guilt of the accused. Hence, the accused is liable for punishment as per law.
18. The learned counsel for the complainant vehemently argued that once the complainant has proved prima facie case i.e., Ex.P2 cheque was issued for repayment of debt, this court has to raise presumption under section 139 of the Act in favor of the complainant as the cheque was issued for legal enforceable debt or liability and the presumption and the section 139 of the Act mandates the presumption that the cheque pertains to legally enforceable debt. However, this presumption is a rebuttable in nature and the onus is then on the accused to raise a probable defence.
19. Here, it is pertinent to mention the provisions of Section 139 of the Act which reads as follows.
Presumption in favour of holder:- It shall be presumed – Unless the contrary is proved, that the holder of a cheque received the cheuqe of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
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20.On careful consideration of the provision of the Section 139 of the
Act, it reveals that there is a presumption in favour of the holder of the cheque that the cheque was issued for legally enforceable debt and the presumption under section 139 of the Act is not a general presumption, but it is a mandatory presumption which can be raised in favour of the complainant, but the accused is entitled to rebut the said presumption and what is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances, but the fact remains that a mere plausible explanation is not accepted from the accused and it must be more than plausible explanation by way of rebuttable evidence, and moreover the defence raised by the accused by way of rebuttable evidence it must be probable and capable of being accepted by the Court.
21. On considering the pleadings of the accused, now it has to be considered how far the accused has rebutted the presumption which raised in favour of the complainant.
22.The main attack of the accused in the cross examination of P.W.1 is that P.W.1 has no capacity to lend amount. It is the case of the complainant that she had sold her Ac.0-50 cents of land to others and thereafter o the request of accused, she had lent an amount of
Rs.1,50,000/-. The counsel for the accused elicited from the P.W.1 in her cross examination that she had filed the civil and criminal cases against the others i.e. O.S.No.255/2016 against one Akula Koteswara
Rao on the file of Hon’ble Senior Civil Judge’s Court, Bhimavaram and
C.C.No.158/2015 on the file of Principal Junior Civil Judge’s Court,
Bhimavaram, O.S.No.138/2015 on the file of Hon’ble Senior Civil
Judge’s Court, Bhimavaram against Vuraganti Kasturi, O.S.No.2/2014
on the file of Principal Junior Civil Judge’s Court, Bhimavaram against
Kondeti Udaya Raghu Ramesh, O.S.No.9/2018 on the file of I Addl.
Junior Civil Judge’s Court, Bhimavaram against Kadamale Chandra
Sekhar and C.C.No.460/2017 on the file of II Addl. Judl. Magistrate of I 9
Class Court, Bhimavaram, C.C.No.1225/2015 on the file of II Addl. Judl.
Magistrate of I Class Court, Bhimavaram against Pilladi Veera Venkata
Trinadh and contended that one Harischandrudu who is Home Guard was running private chits and the P.W.1 is the agent of him. He obtained blank promissory notes and cheques from bidders and after payment of amounts also, he did not return the same to them by saying false stories. Thereafter he had misused the same and filed false case through P.W.1. The accused is one of the victim in the hands of P.W.1 and Harischandrudu.
23.To prove the case of accused, she had filed Ex.D1 and D2 I.e .mini books, which were allegedly had given by Harischandrudu. To prove her version, she had filed a petition for obtaining the specimen signatures of said Harischandrudu. After obtaining the said signatures, the accused had sent the same to Truth Labs for their opinion. But she did not file the said opinion. Further she has failed to secure the same and examine the expert. Further she failed to summon the said
Harischandrudu and to examine him on her behalf to elicit the facts.
She failed to take such legal steps. Without taking such legal steps, it cannot be said that the handwritings on Ex.D1 and D2 pertains to said
Harischandrudu. So, without establishing the same, it cannot be said that he was running private chits and that he obtained blank cheques and promissory notes from the bidders, for which he handed over the said blank cheques and pronotes to P.W.1 and filed the false cases against the bidders. Thus, this Court does not believe the version of the accused. Further the counsel for the accused did not elicit about her capacity i.e. 1. Whether the P.W.1 really sold her property, 2. To whom it was sold, 3. When and where the transaction was took place and 4. What is the consideration.
24.Further the counsel for accused elicited from the cross examination of P.W.1, she had filed several cases against her borrowers. As I already discussed supra, the accused failed to establish 10 that the P.W.1 filed the false cases against the people, with the collusive support of Harischandrudu. So, it seems that P.W.1 has capacity to lent such amount to D.W.1.
25.According to the accused, in one hand, she had given blank cheques and pronotes to said Harischandrudu for security purpose and after repaying the entire chit amount, he did not return it to D.W.1 by saying that those were misplaced, whenever it traced out, he would return it to D.W.1. If it is to be true, who prevented her to take legal steps against the said Harischandrudu as well as P.W.1 after receipt of court summons. She had lodged report against the said
Harischandrudu i.e. Ex.D4 on 01.08.2018. Whereas the Court summons were served on her through advocate commissioner on 23.09.2017. It seems that she has waited almost one year to take action against the said Harischandrudu. What circumstances prevented her to take legal action him immediately after her knowledge. In this regard, her case is silent. Even she did not offer her explanation before this Court.
26.On the other hand, the accused stated that the signatures on
Ex.P1 and P2 does not belongs to her. If the signatures on Ex.P1 and P2 not belongs to her, she ought to have taken legal steps i.e. to send the same to expert. Her case is silent about taking of such legal steps.
27.The learned counsel for accused vehemently argued that the mandatory provisions under Sec.138(b) of NI Act is not complied.
According to P.W.1, she sent Ex.P5 legal notice to the accused with addressthat“MiddeVaralakshmi,W/o.NageswaraRao,
R/o.D.No.11.177/1, Near Sreerama Statue, near Railway Station,
Srungavruksham, Palakoderu Mandal. According to complainant, the accused intentionally did not receive the notice. Hence, it was returned on 16.05.2017. This Court perused the record and noticed 11 that accused received the summons from this Court through advocate commissioner on the same address “Midde Varalakshmi,
W/o.Nageswara Rao, R/o.D.No.11.177/1, Near Sreerama Statue, near
Railway Station, Srungavruksham, Palakoderu Mandal” and acknowledged the same on 23.09.2017, which is mentioned in Ex.P5 legal notice. The Court summons are subsequent to the Ex.P5 legal notice. Proof of service of summons, he filed the commissioner report.
On the said commissioner report also contains the same address. On that aspect also, the accused failed to elicit that and even she did not give any suggestions to P.W.1 during her cross examination and she also failed to produce any cogent evidence while she adducing evidence on her behalf.
28.From this fact, service of the notice to the accused can be presumed under Section 27 of General Clauses Act, 1897. The said
Section reads thus:
"Section 27- Meaning of service by post: Where any Central
Act 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."
As per the above Section, service of notice can be presumed in respect of a letter containing a document which was addressed prepaid and posted by registered post. In the instant case, all the requirements are established. As already noted supra, the correct 12 address of the accused is a proven fact. Ex.P.6—returned postal cover shows that P.W.1 sent to the accused by registered post by prepaying the requisite postal stamps. Hence the complainant has complied with all the requisites under Section 27 of the General Clauses Act and thereby the presumption under Section 27 comes into operation.
It is true that the presumption is a rebuttable presumption in view of the clause "unless the contrary is proved" employed in Section 27 but it must be noted, the accused has not effectively rebutted the presumption. The accused failed to furnish cogent and convincing evidence to show that the accused was not residing in the address mentioned in Exs.P.5. The Hon'ble Apex Court has rendered the following judgments on the presumption of service of notice under
Section 138(b) of N.I. Act in terms of Section 27 of General Clauses Act and Section 114 of Indian Evidence Act.
i) In C.C.Alavi Haji1, the Full Bench of the Apex Court held thus:
"Para 15: Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the court to draw presumption or inference either under Section 27 of the GC Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with." ii) Similar view was expressed in Indo Automobiles2, as follows:
"Para 8: Admittedly, notice under Section 138(b) of the
Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting to the correct address of the respondents. The High Court had 13 quashed proceedings on the ground that although notice through registered post and also under certificate of posting were sent by the appellant complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not be found to be valid.
Para 9: In K. Bhaskaran v. Sankaran Vaidhyan Balan [(1999) 7
SCC 510 : 1999 SCC (Cri) 1284] it has been held that the context of Section 138(b) of the Negotiable Instruments Act invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the Act because he must be presumed to be the loser in the transaction, and provision itself has been made in his interest and if a strict interpretation is asked for that would give a handle to the trickster cheque drawer. It is also well settled that once notice has been sent by registered post with acknowledgment due to a correct address (emphasis supplied), it must be presumed that the service has been made effective." iii) The same ratio has been reiterated by the Apex Court in
N.Parameswaran Unni3, wherein it was held thus:
"Para 11: A bare reading of Section 138 of the NI Act indicates that the purport of Section 138 is to prevent and punish the dishonest drawers of cheques who evade and avoid their liability. As explained in clause (b) of the proviso, the payee or the holder of the cheque in due course is necessarily required to serve a written notice on the drawer of the cheque within fifteen days from the date of intimation received from the bank about dishonour.
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Para 12: It is explicitly made clear under clause (c) of Section 138 of the NI Act, that this gives an opportunity to a drawer of the cheque to make payment within fifteen days of receipt of such notice sent by the drawee. It is manifest that the object of providing clause (c) is to avoid unnecessary hardship. Even if the drawer has failed to make payment within fifteen days of receipt of such notice as provided under clause (c), the drawer shall be deemed to have committed an offence under the Act and thereafter the drawee would be competent to file complaint against the drawer by following the procedure prescribed under Section 142 of the Act.
Para 13: It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stand complied, if notice is sent in the prescribed manner.
However, the drawer is at liberty to rebut this presumption."
Thus the Apex Court has pellucidly expounded the object of issuing notice under Section 138 of N.I Act and the circumstances when presumption of service of notice can be drawn inspite of the fact the notice was not physically served on the accused. The drawing of presumption arises when notice is sent by registered post to the correct address. When these facts are established, the presumption is a concomitant one. Applying the above precedential jurisprudence, it is clear that in the instant case service of notice on accused is a presumed fact, which was not rebutted by the accused. Hence the mandatory requirement under Section 138(b) of N.I. Act was amply complied.
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29.In the light of the above said Hon’ble Full Bench Judgment, I am obliged to follow the above said judgment and I hold that notices are served.
30.It is the further contention of the accused is that there is no consideration received under Ex.P1 and P2 and there is no creditor and debtor relationship between the complainant and the accused. To prove the version of the P.W.1, she herself examined as P.W.1 and she testified that Ex.P1 promissory note was executed by D.W.1 after receiving the consideration by her. Except, suggestions nothing was elicited. Thus, the execution of Promissory note and passing of consideration is established. Hence the version of the defence is not considerable.
31.After foregoing discussion and on considering the oral and documentary evidence, I am of the considered view that the accused had failed to rebut the presumption as Ex.P1 and P2 promissory note and cheque was executed by her and that accused issued Ex.P2 cheque to discharge the liability of Ex.P1 promissory note. Moreover the accused failed to place any cogent and reliable evidence that she did not receive any amount under Ex.P1 promissory note from the
P.W.1 and after receipt of said amount, she had executed Ex.P1 promissory note in favour of the P.W.1. To discharge the said debt, the accused had issued Ex.P2 cheque in favour of the complainant and that the complainant proved the case against the accused that Ex.P2 cheque was issued as legally enforceable debt.
32.The learned counsel for accused argued that, in a criminal proceeding, the presumption of innocence pleaded by the accused is a constitutional right. The complainant has to prove the case beyond reasonable doubt and the complainant failed to prove the guilt of the 16 accused beyond the reasonable doubt. Hence, the accused should be acquitted.
33.Though the accused pleaded the right of the presumption of innocence, whereas, the special acts like Negotiable Instruments Act,
Sec.139 and also Sec.118 of NI Act is clearly contemplated that it shall be presumed unless the contrary is proved that the holder of the cheque received a cheque for a legally enforceable debt. If such provision raised presumption in favour the complainant, but failed to rebut the presumption under Sec.139 of NI Act.
34.Inference to preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference of the circumstances upon which they relies. Even the accused has not placed any material evidence or acceptable evidence
before this court that P.W.1 fabricated Ex.P1 and P2 by forging her
signature or the accused did not take any legal steps against P.W.1 after receipt of legal notice or summons or her appearance before the
Court and the P.W.1 filed this false against the accused herein.
35.This Court also discussed supra Ex.P1 to P8. Though the learned defence counsel cross examined P.W.1 at length, but nothing was elicited nor put forth any valid and cogent reasons before this court to disbelieve the version of P.W.1 and the accused failed to rebut the presumption under Sec.139 of the NI Act and as per the Judgment of the Hon’ble Supreme Court in Crl.M.P.No.1020/2010 held between
Rangappa vs. Sri Mohan wherein the Hon’ble Supreme Court categorically stated about the presumption under Sec.139 and 118 of
NI Act.
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36.Therefore, in the foregoing discussion, this Court has no hesitation to come to the conclusion that the complainant proved the guilt of the accused for the offence punishable under Sec.138 of NI Act beyond all reasonable doubt. Accordingly, the accused is liable for conviction.
37.In the result, Accused is found guilty for the offence under
Sec.138 of NI Act. Accordingly, she is convicted under Sec.255(2)
Cr.P.C.
Typed to my dictation by Stenographer Gr.III directly, corrected and pronounced by me in open court, this the 17th day of December, 2020.
II ADDL. JUDL. MAGISTRATE OF I CLASS,
BHIMAVARAM
FAC/I ADDL. JUDL. MAGISTRATE OF I CLASS,
BHIMAVARAM.
Hearing on sentence
38.The brief submission of the learned counsel for accused is that the evidence on record did not establish the case of complainant and finally prayed to take lenient view.
39.The court examined the accused in his counsel presence through video conference. The brief contention of the accused is that she is a heart patient and that she is having small kids and she has to look after them. She further stated that her husband was arrested in another case yesterday, so no one is to take care of her children if she is sent to jail. Hence, prays to take lenient view.
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40.The court perused the material on record and above statements.
41.The Hon’ble Supreme Court of India in Ankush Shivaji Gaikwad
Vs. State of Maharasthra 2013 (6) SCC 770, observed that the the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The Hon’ble
Supreme Court of India further observed that it is mandatory duty on the Court to apply its mind to the question of compensation in every criminal case for awarding or refusing the compensation.
42.Sec.357 of Cr.P.C provides that while passing judgment, the Court may order whole or any part of fine recovered to be applied towards compensation in defraying the expenses properly incurred in prosecution and in a payment to any person of compensation for any loss or injury caused by the offence.
43.The Court is undertaking below exercise by referring to ‘affray’ to demonstrates what could be the object in imposing fine in the light of punishment provided in ‘affray’ in 1860. Sec.159 of IPC provides the offence of ‘affray’ and Sec.160 of IPC provides that ‘whoever commits an ‘affray’ shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both.”
44.It seems that in the year 1860 for the simple offence of ‘affray’, the fine is prescribed upto Rs.100/-, which is very very huge amount in those days and affording Rs.100/- in those days is very difficult one except for few. It seems that the object behind is to collect the fine is also deterrent, measure apart from imprisonment, also to award compensation to victim, to recover the prosecution expenses and also income to the State.
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45.Thus, the court in view of the above judgment and relevant provisions of compensation, is of the view that the Court must borne in mind the payment capacity of the accused, generally, all these amounts to be assessed and recovered from the accused, when the accused has no payment capacity, then it is to be resorted to order the
State to pay the compensation. That, generally, imposing meager fines or ordering the State to pay the compensation to victims without ordering may amount to burdening the ex-chequer of the State and letting away the accused without understanding and following the object of imposing fine.
46. The accused stated that there is no civil suit is pending between the accused and complainant with regard to above said debt. The
Court, considering the above circumstances, holds that, it is a fit case to award compensation to the victim in view of the evidence on record and findings of this Court. The complainant did not adduce the payment capacity of the accused during hearing on the sentence.
47. The court, considered the evidence on record, nature of acts of the accused, her age, back ground and the debt amount concerned, inclined to award the following imprisonment and fine to partly defray the prosecution expenses to commensurate with the offence to meet the ends of justice.
48. Looking to the above contentions of accused and nature of offence involved in the case, the provisions of Probation of Offenders Act is not applicable for the offence under Sec. 138 of N.I. Act.
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49. In the result, accused is sentenced to undergo Rigorous
Imprisonment for a period of ONE YEAR for the offence under Sec. 138 of the Negotiable Instruments Act and to pay a fine of Rs.2,10,000/- to be paid by the accused, out of Rs.2,10,000/- the amount of
Rs.2,00,000/- is awarding for compensation. The Compensation amount is to be paid by the accused to the Complainant within Two months from the date of this judgment. The amount of Rs.10,000/- is to be paid by the accused as fine for defraying the prosecution expenses, in default, to suffer simple imprisonment for TWO MONTHS for the offence under Section 138 of the Negotiable Instruments Act.
50.The accused had not undergone any remand period to give set off under Sec.428 of Cr.P.C.
51.Accused is appraised of her right of appeal against the judgment of conviction before the appellate court and free legal aid.
II ADDL. JUDL. MAGISTRATE OF I CLASS,
BHIMAVARAM
FAC/I ADDL JUDL. MAGISTRATE OF I CLASS,
BHIMAVARAM.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT: - FOR ACCUSED:-
P.W.1:Sunkara Kanaka DurgaD.W.1 : Midde Varalakshmi
EXHIBITS MARKED
FOR COMPLAINANT
Ex.P1:Original promissory note dt.02.02.2015 executed by accused in favour of complainant
Ex.P2:Original cheque bearing No.272891 dt.28.04.2017 issued by accused 21
Ex.P3:Original counter foil dt.06.05.2017
Ex.P4:Original cheque return memo dt.08.05.2017 issued by complainant bank
Ex.P5:Office copy of legal notice dt.13.05.2017
Ex.P6:Original returned cover of accused dt.16.05.2017
Ex.P7:Bank linked registration form for BC corporation concerning beneficiary Midde Varalakshmi
Ex.P8:Copy of proceedings of Collector/Chairman, the District Back Ward class service cooperative society Ltd., in the name of Midde Varalakshmi
FOR ACCUSED:
Ex.D1:Original Chit collection book dt.5.9.2014 issued by M.Harischandrudu with his hand writing
Ex.D2:Original Chit collection book dt.5.1.2015 issued by M.Harischandrudu and complainant in their hand writings
Ex.D3:Original Notice dt.1.12.2018 sent to husband of accused by counsel for complainant
Ex.D4:Office copy of Petition dt.1.1.2018 sent to Government Officials by accused against complainant and M.Harischandrudu
Ex.D5:Certified copy of Attachment petition dt.26.2.2018 along with documents filed against the complainant in O.S.No.32/2018 on the file of
Senior Civil Judge’s Court, Bhimavaram
MATERIAL OBJECTS
NIL
IIAJFCM, BVRM
FAC/I AJFCM, BVRM.
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FORM No.72
Calendar and Judgment
District of West Godavari
Calendar of cases tried by the I Additional Junior Civil Judge -cum-
Judicial Magistrate of First Class Court, Bhimavaram.
Judgment in Calendar Case No.484/2017
Nature of Offence: U/Sec.138 of N.I. Act.
Date of Judgment: 17.12.2020
Appre Report ofhensioRelea CommenceClosure ofSentence Offencecomplainan ofse on ment of trialtrialor order ntaccusbail ed 28.04.1709.06.17----31.08.1813.03.2017.12.2020
Explanation for the delay: The delay is due to non-appearance of the accused and non production of witnesses.
1. Name of the Complainant:
Smt.Sunkara Kanaka Durga, W/o.Bullabbai, aged 45yrs, Housewife & Properties,R/o.Srungavruksham village, Palakoderu Mandal, W.G.
2. Name of the accused and description :
Smt.Midde Varalakshmi, W/o.Nageswara Rao, aged 30yrs, Hindu, Housewife, R/o.D.No.11.177/1, Near Srirama statue, Near Railway Station, Srungavruksham village, Palakole Mandal, W.G.
Finding: Accused found guilty.
Sentence: In the result, accused is found guilty for the offence under
Sec.,138 of NI Act and accordingly she is convicted under Sec.255 (2)
Cr.P.C.
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Accused is sentenced to undergo Rigorous Imprisonment for a period of ONE YEAR for the offence under Sec. 138 of the Negotiable
Instruments Act and to pay a fine of Rs.2,10,000/- to be paid by the accused, out of Rs.2,10,000/- the amount of Rs.2,00,000/- is awarding for compensation. The Compensation amount is to be paid by the accused to the Complainant within Two months from the date of this judgment. The amount of Rs.10,000/- is to be paid by the accused as fine for defraying the prosecution expenses, in default, to suffer simple imprisonment for TWO MONTHS for the offence under Section 138 of the Negotiable Instruments Act.
The accused had not undergone any remand period to give set off under Sec.428 of Cr.P.C.
Accused is appraised of her right of appeal against the judgment of conviction before the appellate court and free legal aid.
II ADDL. JUDL. MAGISTRATE OF I CLASS,
BHIMAVARAM
FAC/I ADDL JUDL. MAGISTRATE OF I CLASS,
BHIMAVARAM.