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IN THE COURT OF PRL JUNIOR CIVIL JUDGE- CUM – JUDICIAL MAGISTRATE
OF FIRST CLASS, ADONI.
Present :Smt.K.Hima Bindu
Judicial Magistrate of First Class, Adoni.
Wednesday, this the 29 th day of March, 2023.
C.C.No.81/2018
H.Srinivasa Reddy, S/o.Late.H.C.Veera Reddy, Aged about 56 years, Hindu, Residing at Plot No.5, Tirumala Nagar,
Adoni Town, Kurnool District. … Complainant
Vs
D.Sunil S/o.D.Subbarayudu, Aged about 45 years, Working at Attender, R/o.T.B.P. Colony, Adoni Town, Now working at T.B.P. Section, Opp:- Thasildar Office,
Kosigi (V&M),Kurnool District. .…. Accused
This case is coming on this day for final hearing before me in the presence of Sri. C.Soma Sekhar and Sri.K.Vijaya Bhasker Reddy, Advocates for the complainant and of Sri. A.Rajesh Kumar, learned counsel for accused and having stood over till this day for consider, this court delivered the following :-
J U D G M E N T
This is a complaint filed by the complainant against the accused U/sec.138 and 142 of Negotiable Instruments Act, (in short N.I. Act) r/w Sec.420 of IPC and
Sec. 200 of Cr.P.C.
2. The averments of the complaint in brief are as follows:- That on 22.01.2017 the accused and one M.Surendra Babu S/o. M.Sawarappa have jointly borrowed an amount of RS.1,00,000/- from the complainant and executed a promissory note in favour of the complainant by agreeing to repay the same with interest at the rate of 24% p.a. In spite of several demands made by the complainant to the accused and M.Surendra Babu, neither the accused nor
M.Sruendra Babu paid the principal amount to the complainant. On several further demands made by the complainant, the accused issued a cheque bearing
No.003777, dated 12.02.2018 drawn on Central Bank of India, Adoni branch for 2
Rs.1,00,000/- towards the principal amount. The complainant presented the said cheque on 14.02.2018 in the I.C.I.C.I. Bank Ltd., Adoni branch for collection. But the said cheque was returned unpaid to him with a memo on 16.02.2018 with an endorsement as “Funds Insufficient”. Thereupon the complainant got issued a legal notice on 26.02.2018 to the accused with a demand to pay the cheque mentioned amount within statutory period from the date of receiving of the legal notice. The said legal notice was served upon the accused on 26.02.2018 and he did not choose to sent any reply and he did not come forward to pay the amount. Thereby the accused committed the offence punishable U/sec. 138 of N.I. Act and liable for the same.
3. Sworn affidavit filed in lieu of sworn statement of the complainant and basing on it this case was taken on file U/sec. 138 of Negotiable Instruments Act
before this court.
4. On service of summons to the accused, he appeared before this court and copies of this case were served to the accused as contemplated U/sec. 207 of
Cr.P.C.
5. The accused was examined U/sec.251 Cr.P.C.The sum and substance of the complaint was read over and explained to the accused in Telugu, having understood of the same, the accused denied the offence and claimed to be tried.
6. In order to establish the case of the complainant, the complainant himself was examined as P.W.1 and filed chief affidavit and got marked Exs.P.1 to P.7.
Ex.P.1 is the certified copy of judgment in O.S.No.31/2020 dated 09.05.2022. Ex.P.2 is the original cheque bearing No.003777 dated 12.02.2018 for Rs.1,00,000/-. Ex.P.3 is the original counter folio issued by ICICI Bank Ltd., dated 14.02.2018. Ex.P.4 is the original cheque return memo issued by ICICI Bank ltd, dt.16.02.2018. Ex.P.5 is the office copy of legal notice dated 26.02.2018. Ex.P.6 is the original postal receipt
dated 26.02.2018. Ex.P.7 is the original postal acknowledgment dated 28.03.2018.
7. After closure of the complainant’s evidence, the accused was examined U/ sec. 313 Cr.P.C. and he denied all the incriminating evidence levelled against him in the evidence on record and the accused reported no defence evidence.
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8. Heard arguments on both sides.
9. In addition to the oral arguments, the learned counsel for the complainant and the learned counsel for the accused filed their written arguments along with authorities respectively.
10. The learned counsel for the complainant filed the following authorities in support of his contention.
1. Case Law : 2022 Livelaw (SC) 879.
2. Delhi High Court CrL.Rev.Petition No.: 398/2019. Barun Kumar Vs.S State of NCT of Delhi and another.
3. Criminal Appeal No’s : 1233-1235 of 2022, Law Finder, P.Rasiva V.Abdul Nazer.
4. Criminal Appeal No: 123 of 2021, M/s.Kalamani Tex and another Vs.P.Balasubramaian.
5. 2019, Bir Singh Vs Mukesh Kumar (SC).
11. The learned counsel for the accused in support of his contention filed the following authorities :
1. Engineering control Vs Banday Infratech Pvt.Ltd (Jammu and Kashmir High Court).
2. D.Vinod Shivappa Vs Nanda Belliappa Supreme Court of India, Division Bench.
3. Harman Electronics (p) Ltd and another vs National Panasonic India Limited. On .25.07.2022.
12. Now the point for determination :- “Whether the complainant had proved the guilt of the accused for
the offence punishable Under Section 138 of Negotiable Instruments Act,
1881 beyond all reasonable doubt?
13. Point :
The evidence of P.W.1 is nothing but the replica of the contents of complaint.
A precise reading of Section 138 of Negotiable Instruments Act, 1881 it is learnt that to prove the guilt of the accused for the offence the said proviso stated supra, the complainant needs to prove.
(a) that the cheque, issued by the accused, was presented for collection within the period of its validity.
(b) that the cheque was dishonoured by the bank authorities for one of the reasons which attract the offence U/sec.138 of Negotiable 4
Instruments Act, 1881.
(c) That the drawee issued notice U/sec.138 of Negotiable Instruments act, 1881 within the Statutory period.
(d) That the drawer received the said notice, but failed to make any payment covered by the dishonored cheque with in the stipulated time as mentioned in Section 138 of Negotiable Instruments Acts, 1881.
(e) A prima facie proof that the cheque was issued in discharge of any legally enforceable subsisting debt.
14. Therefore, if all the ingredients stated supra are proved by the complainant or in other words if all the above points were answered positively in favour of the complainant and against the accused, the presumption U/sec. 139 of
Negotiable Instruments Act, 1881 comes in to play and the burden of proving the case shifts to the accused and he has to rebut the presumption arises Under Section 139 of Negotiable Instructs Act, 1881 in favour of the complainant. To prove all the ingredients and to attract the provisions of 138 of Negotiable Instruments Act, 1881 the complainant adduced on his side evidence and the same is discussed here under points wise.
15. POINT A : Whether the cheque that was issued by the accused presented for collection within the period of its validity ?
As per the evidence of P.W.1, Ex.P.2 cheque dated 12.02.2018 which belongs to the accused was presented in ICICI Bank Limited, Adoni branch for collection and the same was returned under Ex.P.4 cheque return memo dated 16.02.2018 due to “Funds Insufficient”. Therefore, it can be safely presumed that the complainant presented Ex.P.2 cheque in the above said bank for collection within the period of limitation from the date mentioned on it.
16. POINT B :- “ Whether the cheque was dishonored by the bank
authorities for one of the reasons which attract the offence punishable
Under section 138 of Negotiable Instruments Act, 1881?
In the present case the complainant presented the cheque for collection through his banker ICICI Bank Limited Adoni Branch and the same was returned under Ex.P.4 cheque return memo dated 16.02.2018 with an endorsement “ Funds insufficient “.
The nomenclature mentioned in cheque return memo plays a vital role to make out 5 the offence Under Section 138 of Negotiable Instruments Act, 1881. On a plain and literal reading of section 138 of Negotiable Instruments Act, 1881, it becomes clear that the section refers to dishonor of cheque on two grounds i.e., (1) due to insufficiency of funds in the account to honour the cheque ; and, 2)that the amount of cheque exceeds the amount arranged to be paid from that account by an agreement made with the bank. In the present case, the Ex.P.2 cheque was returned with an endorsement of “ Funds in sufficient” in the account of the accused which attracts the 1st part of the above provision Under Section 138 of
Negotiable Instruments Act, 1881.
17. POINT C& D:- Whether the notice as contemplated under section
138 of Negotiable Instrument Act, 1881 was issued to the accused within
the period prescribed by law and Whether the drawer received the said
notice, but failed to make any payment covered by the dishonored cheque
within period provided under section 138 of Negotiable Instrument Act,
1881?.
In the present case on hand, the complainant presented the Ex.P.2 cheque for collection in ICICI Bank Limited, Adoni branch and the same is returned with
Ex.P.4 cheque return memo with an endorsement “ Funds insufficient”. Later the complainant got issued Ex.P.5 legal notice to the accused on 26.02.2018 and the said legal notice was served on the accused on 28.02.2018 and apparently the accused failed to make any payment covered by dishnoured cheque within 15 days from the date of receipt of legal notice by him as contemplated U/sec.138 of N.I.
Act, 1881.
18. POINT E : “ Whether the cheque was issued by the accused in discharge of legally enforceable debt or not ?
It is the evidence of P.W.1 that the accused and one M.Surendra Babu jointly borrowed an amount of Rs.1,00,000/- on 22.01.2017 and the accused and
M.Surendra Babu jointly executed the demand promissory note in favour of the
P.W.1. The consideration was received by the accused and one M.Surendra Babu.
The learned counsel for the complainant submitted that the complainant has substantiated the legally enforceable debt existed in between himself and accused and M.Surendra Babu through letting Ex.P.1 which is the certified copy of judgment in O.S.No.31/2020. On the other hand, the learned counsel for the accused which is evident from the suggestions put to P.W.1 during his respective cross-examination is that the accused did not borrowed any amount from the complainant and the 6 hand writing in the cheque is different to the signature in the cheque. The learned counsel for the accused further contended that there is no legally enforceable debt in between himself and the complainant and the accused never borrowed any amount from the P.W.1 and he did not executed any promissory note .
19. The P.W1 in order to prove his contention he has filed Ex.P.1 which is the certified copy of judgment in O.S.No.31/2020 dated 09.05.2022. The P.W.1 stated that on demand made by the P.W.1, the accused issued a cheque for Rs.1,00,000/- under Ex.P.2. Subsequently the Ex.P.2 was presented by the P.W.1 and the same was returned as “Funds insufficient” and the said memo was marked under Ex.P.4
dated 16.02.2018. As per Exs.P.2 and P.4, the P.W.1 got issued the legal notice
dated 26.02.2018 under Ex.P.5 and the acknowledgment dated 28.02.2018 was
marked as Ex.P.7. The learned counsel for the accused cross-examined the P.W.1 at length but there is no iota of evidence received by the accused counsel from the
P.W.1.
20. Basing on the evidential portion whether the complainant proved beyond all reasonable doubt that the accused had issued Ex.P.2 in favour of P.W.1 towards discharge of legally enforceable debt or liability and the same was dishonoured and even after demand notice under the above said cheque and thereby the accused committed an offence punishable U/sec.138 of N.I. Act or not.
21. After considering the Exs.P.1 to P.7 and the oral evidence of P.W.1 and the material available on record held that whether the accused able to raise a probable defence which creates a doubt about the existence of legal enforceable debt or liability. The P.W.1 stated that he is having a medical shop and he is the owner of it. The P.W.1 deposed that as he is running a medical shop, he used to file income tax returns and he is an income tax assessee. The P.W.1 stated that he have not filed the original promissory note into this court but he obtained the decree in O.S.No.31/2020 against the accused and one M.Surendra Babu. The
P.W.1 stated that the promissory note contains the signatures of two persons namely Surendra Babu and Sunil and he gave the amount of Rs.1,00,000/- to the above said persons and the said two persons i.e., accused and M.Surendra Babu jointly obtained the amount of Rs.1,00,000/- from him but he cannot say how much of the amount was shared in between them. The P.W.1 further stated that he have shown the amount of Rs.1,00,000/- in the income tax returns and he have not filed 7 any document before this court to show that he is an income tax assessee.
22. The P.W.1 deposed that he know the accused through one Mruthunjaya and the accused issued cheque to him on 12.02.2018 and he do not know whether the hand writing in the cheque belongs to the accused or not. The P.W.1 stated that in his presence the accused did not written in the cheque but he only gave cheque to him. The P.W.1 denied the suggestion that the hand writing in the cheque is different to the signature in the cheque and so also there is difference of ink in the hand writing and in the signature. The P.W.1 further stated that the accused issued cheque to him at about 6.00 p.m. in the evening hours and he went to the office of the accused and on that the accused issued cheque to him. The P.W.1 admitted that it is a government office and the office will be closed by 5.00 p.m, but the employees will be present after duty hours by remaining there at 6.00 p.m. The
P.W.1 further stated that the cheque was returned on 16.02.2018 and he have issued legal notice to the accused on 26.02.2018. The P.W.1 admitted that in the legal notice the accused address was written as “TBP Division Office, SKD
Colony, Adoni” and in the acknowledgment under Ex.P.7 the address was mentioned as “TBP Section, near Tahsildar Office, Kosigi”. Here the P.W.1 voluntarily stated that as he came to know that the accused was transferred from
Adoni to Kosigi, he have mentioned like that. It was further deposed by the P.W.1 that under Ex.P.6 also the address was mentioned as Kosigi. Here the P.W.1 voluntarily stated that as the accused was working at Kosigi, he have mentioned the same in Ex.P.6. The P.W.1 denied the suggestion that the accused did not borrowed any amount from him and he have filed false case against the accused.
23. The accused has taken a defence that the P.W.1 has not filed any promissory note before this court and hence there is no legal enforceable debt in between the complainant and the accused. At this juncture there is a reasonable doubt arises that whether the accused executed promissory note and received the consideration from the P.W.1 or not.
24. On perusal of Ex.P.1 filed by the P.W.1 which is certified copy of judgment in O.S.No.31/2020 dated 09.05.2020 which clearly shows that the suit was decreed against the accused and one M.Surendra Babu on the file of Hon’ble Principal Junior
Civil Judge’s Court, Adoni and the Hon’ble Court in O.S.No.31/2020 directed the
8 accused and M.Surendra Babu to discharge the suit debt which is related to the promissory note dated 22.01.2017. Hence Ex.P.1 clearly proves that the accused is liable to discharge the suit debt which is related to the promissory note dated 22.01.2017. The P.W.1 further in his evidence also deposed that the promissory note contains the signatures of the accused and M.Surendra Babu and he gave the amount of Rs.1,00,000/- to the accused and M.Surendra Babu. Hence this court held that there is a legal enforceable debt in between the complainant and the accused by virtue of Ex.P.1.
25. The another defence raised by the accused is that the complaint is not maintainable since the statutory demand notice was sent to wrong address. At this juncture on perusal of Ex.P.6 which shows that the postal receipt contains the address as “TBP Division Office, Kosigi” which means that the legal notice was issued to the accused with Kosigi address. Even though the legal notice under
Ex.P.5 it was mentioned the accused address as “TBP Division Office, Adoni” but the said legal notice under Ex.P.5 was posted to the Kosigi address by virtue of Ex.P.6.
Here it is pertinent to note that the legal notice was duly served upon the accused and the acknowledgment was received by the complainant. In other words, the
Ex.P.7 which is the postal acknowledgement dated 28.02.2018 clearly indicates that the accused has received the legal notice with the address “Kosigi” which is the same address mentioned in Ex.P.6. Hence the objections raised by the accused that the legal notice was sent to wrong address is untenable since the accused has received the legal notice by virtue of Ex.P.7. In addition to that, here the defence counsel in the entire evidence of P.W.1 did not denied the signature of the accused on Ex.P.7 which clearly proves that the legal notice was duly served upon the accused. The P.W.1 in his evidence also clearly deposed that since the accused was transferred from Adoni to Kosigi, he have posted the legal notice to the accused with address “Kosigi” and to show that he has addressed to Kosigi, he produced
Ex.P.6 which clearly indicates that the legal notice was sent to the correct address of the accused. Here the learned counsel for the accused has relied on Engineering
Control Vs.Banday Infratech Pvt.Ltd to show that the complaint is not valid since the demand notice was sent to wrong address. But the said authority is not applicable to this present case since the legal notice was served upon the accused with correct address under Exs.P.6 and P.7 and after receiving the acknowledgment, the complainant has filed the complaint by following the norms envisaged U/sec. 138 of 9
N.I. Act. Hence, the contention raised by the accused that the legal notice was sent to the wrong address does not holds good since the accused has received the legal notice and the same was not denied by the accused during the entire evidence of
P.W.1.
26. The another defence raised by the defence counsel is that the writings in the cheque was not written by the accused in the presence of the complainant and the same was deposed by the P.W.1 in his evidence and hence it is not valid. But this argument cannot be accepted because Section 20 of N.I. Act deals with inchoate instruments.
27. As per the contents of S.20 of N.I. Act, It is not objectionable or illegal in law to receive a inchoate negotiable instrument duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully binds the maker of the instrument to the extent it purports to declare. This is explicit from the provisions of
S. 20 of the Negotiable Instruments Act, which reads thus:
"Inchoate stamped instruments:- Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."
28. By the very fact that a document executed is inchoate with regard to some of the material particulars would not render such contract invalid nor make the instrument illegal or inadmissible. Voluntarily, if a person were to deliver an inchoate instrument authorizing the receiver to fill up the material contents as 10 agreed upon, the cheque does not get tainted as inadmissible nor it amounts to tampering with the material particulars.
29. Having regard to the arguments of learned counsel for accused, at this juncture, it is worth to note principles laid down in the judgments of Hon'ble High
Court of Karnataka reported in ILR 2001 Karnataka 4127 (S.R. Muralidar V/s.
Ashok G.Y), wherein it is held:
"No law provides that in case of any negotiable instrument entire body has to be written by maker or drawer only. What is material is signature of drawer or maker and not the body writing hence question of body writing has no significance."
30. At this juncture, this Court also intends to rely on the observation of the
Hon'ble Supreme Court in RangappaVs. Mohan AIR 2010 SC 1898. " Once the
cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to Section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.
31. Relying on the above mandate laid down by three Judge Bench of the
Hon’ble Supreme Court, since Ex.P.2 appears to be drawn on the account of the
accused and the accused did not denied his signature in the cheque, this court is inclined to draw the presumption Under Section 139 of N.I.Act in favour of complainant.
32. The another defence taken by the learned counsel for the accused is that the complainant had no financial capacity. At this juncture the P.W.1 in his evidence deposed that he is running a medical shop and he used to file income tax returns and he is an income tax assessee. The P.W.1 in his evidence stated that he have not filed any document to show that he is an income tax assessee. At this point, here the learned counsel for the complainant filed authority Delhi High Court
Criminal. Rev. Petition No.398/2018 Barun Kumar Vs State of NCT of Delhi
and another, wherein it is held :
“...the entire scheme of the Income Tax Act is for ensuring that all amounts are accounted. If some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under the Income Tax Act, but it does 11 not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. Infractions of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower......"
33. Hence by placing reliance on the above authority, this court holds that mere non filing of income tax returns or mere non filing of document to show that the complainant is an income tax assessee does not give any advantage to the accused/borrower since the provisions of Income Tax Act would be a matter between the revenue and the complainant/defaulter and advantage thereof cannot be taken by the accused/borrower…” Therefore in the present case since because the P.W.1 has failed to file income tax returns but that does not invalidate the case of the complainant.
34. The Supreme Court has observed in a recent Judgment that it is not for the complainant in a case U/sec. 138 of Negotiable Instruments Act to initially lead evidence to show that he had the financially capacity. The division bench of Justice
K.M.Joseph and Justice Rishikesh Rai observed that onus lies with the accused to raise a probable defence in order to rebut the presumptions in cheque bounce cases and that unless a case is set up in the reply notice to the statutory notice, is sent to complainant is not expected to confirm the presumption of consideration by leading evidence.
35. In the present case the accused having received the legal notice under
Ex.P.5 did not issued any reply notice by alleging that the complainant had no financial capacity to lend such huge amount. Further the accused counsel failed to prove his case by rebutting the presumption Under Section 139 of Negotiable
Instruments Act. Hence it can be presumed that the cheque was issued by the accused in favour of the complainant in discharge of legally enforceable debt. More over the accused also did not produce any relevant documents to show that the complainant had no financial capacity.
36. Hence, basing on the above observations made by the Supreme Court unless a case is set up in the reply notice to the statutory notice, the complainant is not necessary to lead evidence to show that he had the financial capacity.
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Presumptions as to Negotiable Instruments Act U/sec.118 : Until the
contrary is proved, the following presumptions shall be made:-
(a)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)That every negotiable instrument bearing a date was made or drawn on such date;
Presumption in favour of holder U/sec. 139 of N.I. Act:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
37. In this context, this court is also relying on the following judgments in decision reported in 2001 (2) ALD (Crl) 234 (SC) between Hitten P.Dalal Vs
Bratindranath Banerjee and another wherein their Lord ships reiterating the law reported in AIR 1964 S.C. 575 between Banwantarai Desai Vs State of Maharastra while dealing with the phrases “ unless contrary is proved” appeared in Sec.139 of
N.I. Act held that “ Presumption has to be rebutted by proof and not by bare explanation which is merely plausible”. Their Lord-ships also held “ that fact is
said to be proved a existence is directly established or when upon the
material before it court found to is exists to be so probable that a
reasonable man what act on the supposition that it exists. Unless,
therefore the explanation is supported by prove the presumption created
by the provision cannot be said to be rebutted”.
38. Further in a decision reported in 2001 (2) (CrL) 824 SC Between
K.N.Beena Vs. Muniyappa and another their Lord ship reiterating the Law
Written in Hiten P.Dala Vs.Bratindranath Banerjee and another held that “
Under Section 139 of N.I. Act the court has to presume unless contrary was proved that holder of cheque received the cheque for discharge in whole or in part of debt or liability. It was further held in all complaints U/sec.138 that court has to presume that cheque has been issued if a debt or liability. However, the burden of proof that cheque has not been issued for a debt or liability is on the accused”.
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39. Further in a decision in 2003 (2) ALD (Crl) 237 A.P. between Sudher
Sabarwal Vs. Anil Prabhakar Nilgirwar and another their Lord-ships held that “ whenever the person accused of offence U/sec. 138 of N.I. Act intends to plead that there is no existing legal enforceable debt it is for him to place such material before the court in the form of oral or documentary evidence which is sufficient and adequate to neutralize the presumption U/sec. 139 of N.I. Act”.
40. Further in a decision reported 2004 (1) ALD criminal 810 A.P.
Between B.V.Rangham Vs.V.Govinda Reddy and another their Lord-ships reiterating the Law written in Hiten P.Dala’s case held that “ Once cheque is in
possession of the complainant it must be deemed that he had discharged
the initial burden relating to legally enforceable debt and as such it is for
the accused to prove that the said cheque was not issued for the purpose
of legally enforceable debtor liability “.
41. The P.W.1 being the holder of the cheque under Ex.P.2 and the P.W.1 has categorically stated that Ex.P.2 was issued by the accused then the burden is on the accused to show that it was not executed by him. The accused did not denied his signature and contents of the cheque and he simply denied that he did not obtained any loan amount but the accused did not produce any material by rebutting the evidence of complainant.
42. At this juncture the learned counsel for the complainant has relied on a decision reported in 2022 LiveLaw (SC) 879, wherein it is held:
Negotiable Instrument Act, 1881; Sections 118, 138, 139 –Once a cheque is issued and upon getting dishonoured a statutory notice is issued, it is for the accused to dislodge the legal presumption available under Section 118 and 139 resply of the N.I. Act.
43. Furtherthe learned counsel for the complainant relied on the following authorities :
(a) Supreme Court, Criminal Appeal No’s : 1233-1235 of 2022, Law
Finder, P.Rasiva V.Abdul Nazer.
Held, presumption under section 139 OF NI Act is a statutory presumption and thereafter, Once it is presumed that cheque is issued in whole or part of any debt or other liability which is in favour of complainant/holder of cheque, it is for accused to prove contrary –Once initial burden is discharged by complainant that cheque was issued by accused and signature and issuance of cheque was not for 14 any debt or other liability.
(b) Supreme Court Full Bench, Criminal Appeal No: 123 of 2021, M/s.
Kalamani Tex and another Vs.P.Balasubramanian.
Statute mandates that once the signature (s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In this judgment also discussed about the Case Law:
( c) 2019, Bir Singh Vs Mukesh Kumar (SC).
“ Even a blank cheque leaf, voluntarily singed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt”.
44. By virtue of the above decisions, the presumption shall be drawn that the accused has issued the cheque in favour of the complainant in discharge of the debt or liability. Our Apex Courts gave so many judgments relating to Section 118 and 139 of Negotiable Instruments Act. It is relevant to note the general Principles pertaining to the burden of proof on the accused especially in a case where the statutory presumption regarding the guilt of the accused has to be drawn. It was held in judgment Kaliram Vs State of Himachal Pradesh 1973 (2) SCC page
No.808, but in another case 1989 (3) SCC page 35 had an occasion to contrary
Section 118-A of Negotiable Instrument Act, the court held that once the execution of promissory note was admitted the presumption U/sec.118-A would arise that it is supported by consideration.
45. But in this case such presumption is rebuttable and the accused can prove the non existence of consideration by raising probable defence. At this occasion, the learned counsel for the accused has relied on the following authorities.
1. Engineering control Vs Banday Infratech Pvt.Ltd (Jammu and Kashmir High Court).
2. D.Vinod Shivappa Vs Nanda Belliappa Supreme Court of India, Division Bench.
3. Harman Electronics (p) Ltd and another vs National Panasonic India Limited. On .25.07.2022.
The above authorities are not applicable to the present case since the circumstances in the above authorities are not the circumstances in the present case.
46. Therefore the complainant has proved that the cheque was issued for 15 discharge of legal enforceable debt. On the other hand no evidence was led by the accused and he did not proved his case that he did not committed any offence
U/sec. 138 of N.I. Act. As per Ex.P.1 the accused is liable to discharge the debt basing on the promissory note which was executed by the accused and one
M.Surendra Babu which is sufficient to prove the case of the complainant that the cheque was issued by the accused in discharge of debt.
47. In the instant case the accused had not let in any strong evidence which would rebut the presumption drawn U/sec. 139 of Negotiable Instruments Act 1881.
Under Section 118 of N.I. Act unless contrary is proved, it is to be presumed that
Negotiable Instrument including a cheque has been made or drawn for consideration U/sec. 138 of N.I. Act. The court has to presume unless the contrary is proved that the holder of the cheque received the cheque for discharge of any whole or in part of a debt or liability. Thus, in complaints U/sec. 138 of N.I. Act the
Court has to presume that the cheque has been issued for a debt or liability. This presumption is rebuttal. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. As contended by the accused, there is no rebuttal evidence to disprove the case of the complainant and thereby the complainant is entitled to take advantage of the presumption U/sec. 118 and 139 of N.I. Act.
48. In the light of the above decisions I am of the considered view that the accused failed to put forth probable defence to rebut the presumption raised
U/sec.139 of N.I. Act 1881 and on the other hand the complainant proved all the essential ingredients to attract the provisions for the offence U/sec.138 of
Negotiable Instruments Act, 1881. In the light of the above said reasons, I am of the considered opinion that the accused is found guilty for the offence U/sec.138 of
Negotiable Instruments Act, 1881 and he is liable for conviction U/sec.255 (2)
Criminal Procedure Code.
In the result, the accused is found guilty for the offence punishable u/Sec.138 and 142 of Negotiable Instruments Act, accordingly, he is convicted
U/Sec.255(2) of Cr.P.C.
Dictated to the Stenographer, transcribed by her, corrected and pronounced
by me in the open Court on this the 29 th day of March, 2023.
16
Judicial Magistrate of First Class,
Adoni.
The accused when questioned as to the quantum of sentence to be imposed against him, he submits that he is having small children and his family is depending upon him and hence prays the Hon’ble court to take a lenient view.
Considering the nature of offence proved against the accused and as the accused deliberately issued the Ex.P.2 cheque without maintaining sufficient funds, if the accused is released under Probation of Offenders Act, it is nothing but traverse of justice and that very object of the legislative mandate of making bouncing of cheque is ruin. Therefore, I am of the view that it is not a fit case to invoke beneficial provisions of Probation of Offenders Act in favour of the accused.
Further our Hon’ble Apex Court in a decision reported in S.Suresh Kumar
Vs.Jagadeeshan (2002) (1) ALD (Crl) 417) held that “ it should be the look out of the trial court Magistrate that the sentence for the offence Under Section 138 of
Negotiable Instruments Act, 1881 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonor of the cheque issued by him light heartedly. The very object of the enactment of the provisions like 138 of Negotiable Instruments Act, 1881 would stand defeated if the sentence is feel baite in nature. It is a different matter, if the accused paid the amount at least during the pendency of the case. Thus in view of the above decision and in the circumstances of this case, I am of the opinion that this is not a fit case to take a lenient view. However taking into consideration of the submissions made by the accused, I feel it is just and proper to sentence as follows:
Therefore, accused is sentenced to undergo simple imprisonment for
a period of four months.
Further the accused is informed about his right of appeal before Hon’ble
Sessions court and also informed about his right to get free legal aid through
Hon’ble Chairman, District Legal Services Authority, Kurnool if he has no means. The
remand period of accused if any under gone by him shall be set off U/sec. 428 of
Criminal Procedure Code.
Dictated to the Stenographer Grade-III, transcribed by her, corrected and
pronounced by me in the open Court on this the 29 th day of March, 2023.
Judicial Magistrate of First Class,
Adoni.
17
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution : For Defence Pw1: H.Srinivasa Reddy -None-
DOCUMENTS MARKED
For Prosecution
Ex.P.1 : Certified copy of judgment in O.S.No.31/2020 dated 09.05.2022. Ex.P.2 : Original cheque bearing No.003777 for Rs.1,00,000/-. Ex.P.3 : Original counter folio issued by ICICI Bank Ltd., dated 14.02.2018. Ex.P.4 : Original cheque return memo issued by ICICI Bank ltd, dt.16.02.2018. Ex.P.5 : Office copy of legal notice dated 26.02.2018.
Ex.P.6 : Original postal receipt dated 26.02.2018.
Ex.P.7 : Original postal acknowledgment dated 28.02.2018.
For Defence: Nil.
Judicial Magistrate of I Class,
Adoni.
18
CALENDAR AND JUDGMENT
IN THE COURT OF JUMNIOR CIVIL JUDGE- CUM - JUDICAL . MAGISTRATE OF
FIRST CLASS, ADONI.
C.C.NO.81/2018
1Date of offence15.03.2018 2Date of complaint20.03.2018 3Date of apprehension of accused-- 4Date of release on bail of accused-- 5Date of commencement of trial21.11.2022 6Date of close of trial07.02.2023 7Date of Judgment29.03.2023
ComplainantH.Srinivasa Reddy,S/o. Late.H.C.Veera Reddy,
Aged about 56 years, Hindu,
Residing at Plot No.5, Tirumala Nagar,
Adoni Town, Kurnool District.
AccusedD.Sunil S/o. D.Subbarayudu, Aged about 45 years, Working at Attender,R/o.T.B.P. Colony,
Adoni Town, Now working at T.B.P.
Section, Opp:- Thasildar Office,
Kosigi (V&M),Kurnool District.
Section of Under sec.138 and 142 of Negotiable Instructions Act r/w LawSec.420 of IPC. FindingAccused found guilty Sentence or In the result, the accused is found guilty for the offence order punishable U/sec. 138 and 142 of Negotiable Instruments and accordingly he is convicted U/sec. 255 (2) of Cr.P.C. Therefore accused is sentenced to undergo simple imprisonment for a period of four months.
JUDL. MAGISTRATE OF FIRST CLASS,
ADONI.
Copy submitted to: The Hon’ble Chief-Judicial Magistrate-cum-
Principal Assistant Sessions Judge, Kurnool.