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CALENDAR AND JU DGM E NT
IN THE COURT OF FOR RAILWAYS ,
J UDL . MAGISTRATE OF FIRST CLASS
GUNTUR.
C ~ - 150/2013
Apprehen comrnenceme oate of Released Closure Filing sion of -:sul~ l nt of offence on bail of trial Accused t r ial 21/06 / 11 25/ 06/13 01 / 08/ 13 25 103 / 14 I 25/ 06/1 3 Between. Tadigiri Christudas, S/ o.Lukaiah , 55 year s, Ambedkar Nagar, Uppalapadu village, Pedakakani Mandal Gunt ur Di strict I ... Compl ainant . • - And Kakarlamudi Veer ai ah , S/ o.Davaiah, 38 years, Employee in Chaitanya Godavari Grameena Bank, Guntur , R/ o. Pedapudi vilalge, Amarthaluru Mandal, Guntur District. Accused.
Nature of Offence Punishable U/ Sec.13 8 N.I. Act Plea of the Accused Pleaded not guilty Finding of the court Found guilty. Sentence or Order: In the result, the accused is found gui lty for the offenc e punishable Under Section 138 of Negotiable Inst ruments Act. The accused is convicted Under Section 255 (2 ) Cr.P.C and he is sentenced to undeli'go simple imprisonment for a period of six mont hs and pay a fine of Rs.5000 / -(Rupees Five thousand only ) in default Simple Imprisonment for a period of fifteen days. Explanation for the delay: Originally the IV Additional Junior civil Judge's Court , Guntur took this case on file on 11-06-2012. On 09 . 01.201 3 t his case was received by transfer from VI Additional Junior Civil
Judge's Court, Guntur and re numbered as CC:150/13 .
On 04/02/2013 copies of documents furnished to accused and on 28/03/2013 the accused was examined under Sect ion 251 Cr.P.C. Trial was commenced on 25/06/2013 and closed on 01 / 08 / 2013. On 06/11/2013 accused was examined Under Section 313 Cr .P.C. and on 24/03/2014 heard arguments and on 25 / 03 /2 01 4 the Judgment was
pronounced. Hence, there is no avoidable delay.
JUDL. MA GJ ST ~m :ks T CLASS
FOR RAILWAYS, GUNTUR.
Copy Submitted t o:- The Hon'ble Chief Judi cial Magi strate , Guntur.
Fi ne amount Rs.5, 000/-( Rupees Ten thousand only ) paid by Accused .
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~r / ~~ IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLA FOR RAI LWAYS:: GUNTUR .
Present: -Sr i K.K IRAN KUMAR , LL.M, Judl. Magistrate of First Class f or Railways , Guntur . l Tuesday, this the 25 t h day of Ma r ch , 2014 .
c.c . No. 1so /13
Old C.C.273/201 2 on the file of VI Add! . Ju ni or C ivil J udge,
Guntur.
Between: Tadigiri Christudas, S/o.Lukaiah, years, Ambedkar Na gar , 55 Uppalapadu village, Pedakakani Mandal, Guntur District ... Compl ainant. -And Kakarlamudi Veeraiah, S/o.Davaiah, 38 years, Employee in Chai tanya Godavari Grameena Bank, Guntur, R/o.Pedapudi Vilal ge, Amarthal uru
Mandal, Guntur District ... Accused.
This case is coming on 24.03.2014 for hearing before me in the presence of Mr.M.David Luther babu, advocate for complainant and Mr. D. Samuel JOhn, advocate for accused and having stood over for consideration till this day, this court makes the following:
JUDGMENT
This is a private complaint filed by the complainant Under Section's 190 and 200 of Criminal Procedure Code, against sole accused.
2. Brief facts of the complaint, that on 21.06.2011 the accused has borrowed an amount of Rs.50,000/-(Rupees Fifty thousand only) from the complainant for his Agricultural expenses and agreeing to repay the same with interest @ 24 % per annum either to the complainant or to his order on demand and evidencing the same the accused executed a promissory note infavour of the complainant. The complainant further contended that Subsequent ly, on the repeated demands made by the complainant personally, the accused approached the complainant and issued a cheque bearing No.594677 dt.26.09.2011 for Rs.5000/-(Rupees Five thousand only) drawn on Chaitanya Godavari Grameena Bank Vidya Nagar branch, Guntur infavour of the complainant towards the part payment of the debt amount due by the accused under said pronote. The complainant received the cheque and presented the same in his account through his banker i.e., State Bank of India, Uppalapadu Branch, Guntur District for collection. But the said cheque was dishonored by the accused banker for the reasons 'Funds Insufficient". It is further stated that on 30.11.2011 the complainant got issued legal notice to the accused and demandi ng him to pay the amount under the cheque within 15 days of receipt of the legal notice. The accused was intentionally refused the same and returned legal notice was ret urned and the accused flouted his promises made to the complainant and therefore t his Complainant.
3. Originally this case was filed before VI Additional Junior
Civil Judge's Court, Guntur against sole accused, after r ecording
the sworn statement of the complainant, VI AJCJ ' s Court, Guntur, took cogni zance of this complaint on 11.06.2012 and ordered summons to the accused.
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tl as per t he orders of Hon, ble b District Judge ,
4. Su sequen Y Guntur this case was trans fe r red t o J. M. F. c f or Railways, Guntur / and re numbered as cc.150 2013. on appearance of accus ed case copies were furnished to him , t he accused was e xami d Under Secti on 251 of Criminal Pr?cedure Code, expl aining t he n:ubs t ance of acquisition leveled against hi m i n Telugu l anguage for which the accused denied the same and c l aimed to be tried .
complainant case complainant was
5. To substantiate the d as PW 1 and the documents rel i' ed 1·'. e Ex • s . p. 1 to p. 5 · . , examine of complainant. On closing of t he were marked on behalf prosecution evidence the accused exami ned Under section 313 of the_ accused was explaine d the Criminal Procedure Code, incriminating evidence found _against him in the prosecuti on case he denied the same and accused examined in Telugu language, himself as DW.1, no documents marked on his behalf.
Heard both sides The learned counsel for the complainant's contenti on is that 6. all the material requirements to prosecute under section 138 Negotiable Instruments Act are fulfilled, as such accused is liable to be punished Under Section 138 Negotiable Instruments Act and awarded compensation to the complainant.
The learned counsel for accused had contended that the 7. failed to compile the provisions of Negotiable complainant had instrument Act, as such this case is not maintainable.
material on record the points for
8. Considering the determination are:
(l) Whether the complainant succeeded in proving that the accused issued Ex.P.2 cheque towards discharge of legally enforceable liability or debt? (2) Whether the complainant had complied with (b) (c) of Section 138 of Negotiable Instruments Act? (3) Whether the complainant proved his case? During the course of trial, the complainant having invoked 9. the provisions of Section 145 (1) of Negotiable Instruments Act, filed his affidavit with a prayer to treat the same as his examination in chief and the same plea was permitted. As seen from facts incorporated in the said affidavit filed by the complainant who was examined as P.W.1, it is reiteration of facts mentioned in his complaint.
10. Point No.1:- seen from the complaint, evidence of P.W.1 and other As material placed on record, it is alleged and shows that the accused had approached the complainant on 01.12.2009 and borrowed (Rupees Fifty thousand only) for his an amount of Rs.50,000/- family expenses, evidencing the said transaction the accused had Ex. p. 1. Further is it is contended by the issued pronote i.e. , 11.02.2011 the accused had issued Ex.P.2 complainant that on for Rs.64,500/-(Rupees Sixty four cheque bearing No.005536 thousand and five hundred only) towards debt drawn on State Bank of India, Kanchikacherla Branch, Krishna District. The complainant further contended that the said cheque was dishonor ed and r eturned to complainant with a reason " Insufficient Funds". On 05.03.2011 the complainant got issued legal notice under Ex .P.6 to the accused demanding him to pay the cheque amount within 15 days of
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I I ~eceipt of the legal notice, the accused received the same on 22.03.2011 which was sent to the office address of the accused and the other legal notice to his residential address was returned as "seven days absent", the accused flouted his promises made to the complainant.
11. To rebut the contention of the complainant, the accused has choosen to examine himself as DW.1. Further upon perusal of examination of accused under Sec.251 criminal Procedure Code submitted (it is beneficiary to reproduce the relevant portion) "I have borrowed only Rs.10,000 I - only. Similarly the accused did not choose to submit anything in examination under Sec.313 criminal Procedure Code except denying the case of complainant in toto, so only the cross- examination conducted by the learned counsel of accused is crucial to probable the defence of accused.
12. Before adverting to the rival contentions it is Apt to understand the language employed in section 138 of Negotiable Instrument Act, Section 138 of Negotiable Instrument Act has three ingredients, viz. , (I) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt and (iii) that the cheque so issued had been returned due to insufficiency funds. The proviso appended of legal requirements before a complaint or a petition can be acted upon by a court of law.
13. Similarly, the Negotiable Instrument Act contains provisions raising presumptions as regards the negotiable instruments under section 118(a) of the Act as also under section 139 of Negotiable Instrument Act. The said presumptions are rebuttable. Whether the presumption is rebutted or not would depend upon facts and circumstances of each case.
14. Under Section 118 of Negotiable Instrument Act, unless the contrary is proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under section 139 of Negotiable Instrument Act the court has to presume, unless the contrary was proved, that the cheque or holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability. Thus in complaints under section 138 of Negotiable Instrument Act, the Court has to presume that the cheque'had been issued for a debt of liability. This presumption is rebut table. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused.
15. Before adverting to the rival contention it is imperative to have a cursory glance on the latest legal decisions and legal propositions.
16. In K. Bhaskaran V. Sankaran Vaidhyan Bolan, 1999 (2) ALD (Crl.) 801 (SC) = (1999) 7 SCC 510, the apex Court held that "as the signature in the cheque is admitted to be that of the accused, the pres_umption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on th e Court to presume that the holder of the cheque re ceived it for the discharge of any debt or liability. The burden was on the accu se d to rebut the afor es aid p re sumption."
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1. ( Z) A LD (Crl.) 824 (S C)= (2 00 1) S CC ~! 17 . In K.N. Beena V. Muniyappan, 11 • l d that in vi ew of the pr ovi · . . . 458 the apex court he sions contained in Sectio ns 118 ~nd 139, the Court has to presu~e th at th e ~heque had been iss ue d for discharg ing a debt or liability. However, th ~ said pr es um ption co uld ~e rebutted by the accused by proving the contrary. Me re denial or rebuttal by accused in the re pl y to the legal notice sent by the complainant is not_ en~ugh. The accused had to pro ve by co gent ev id ence that there was no debt or liability·
In M.S. Narayana Menon V. State of Kerala, 2006 (2) ALD (Crl.) 317
18. (SC) = (2006) sec 39, the apex cour~ held t~a_t "that initial burd en of proof is on accused to rebut the said presumptions by raising a probable defence. If he discharges the said burden, the onus th ereafte: shifts on to the complainant to prove his case. Whether the initial burden has been discharged by the accused is a question of fact. The accused need not disprove th e prosecution case in entiret y. He can discharge its burden on the basis of prepo nd erance of probabilities through direct or circumstantial evidence. For the said purpose, he can also reply upon eviden ce adduced by the complainant."
In Kumar Exports V. Sharma Carpets, 2009 (1) ALD (Crl.) 468 (SC) = 19. (2009) 2 SCC 513, the apex Court held that "the accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions and accused is not expected to to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial."
In Rangappa v. Sri Mohan, 2010 (2) ALD (Crl.) 734 (SC)= (2010) 11 sec
20. 441, the apex Court held that "when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liabilit y, the prosecution can fail. The accused can reply on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his I her own."
In view of the above said decisions of Hon' ble Apex court, 21. the presumption, which is available under Section 139 of the Negotiable Instrument Act can be rebutted by accused by producing necessary evidence or he can relie upon the evidence produced by the complainant and the material available on record without examining himself. The burden can be di scharged by the accused on the basis of preponderance of probabilities or preponderance of possibilities .
In order to gain the advantage of the legal propositions laid 22. down by Hon'ble apex Court it is for the complainant to prove his case primarily, then only {he burden shifts upon the accused.
But interestingly in this present case, the accus_ed has not 2~ • d1.sputed his signatures P 1 and p.2. Since, the signature of E on x. . . . . accuse 1.n Ex. p. 1 and P 2 . t disputed by the accused, 1. t 1.s d . 1.s no. . f or the accused to d1.'s h tents of compl aint. As observed prove t econ from the arguments and . ati'on of PW.l, the accused has cross examin taken two defences· ,
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/ '\ cc· 1so12013 :~) Ex.P. 2 was not issued towards legally enforceable debt. ' b) Ex.P.1 was executed only for Rs.SOOD/-.
24. It is the contention of the accused that the Ex. P. 2 was not issued towards any legally enforceable debt or liability, Ex. P. 2 was issued towards collateral security, it is the contention of borrowed only Rs.5000/-from the the accused that he has complainant, the complainant having the possess ion of Ex. P. 1 had added "o" at the last of Rs.5000 / - and made it as Rs.50,000/-, on the other hand it is the contention of the complainant that the accused had executed Ex.P.1 for Rs.50,000/-in his own hand writing. In order to get the benefit of the same the learned counsel for accused had invited the attention of this court towards the cross-examination of ow. 1 (it is beneficiary to reproduce the relevant portion) "Ex.P.1 is in my own hand writing". Similarly the learned counsel had invited the attention of this Court towards the Sec.251 Criminal Procedure Code examinatiom. of t he accused (it is beneficiary to reproduce the relevant portion) "I ha ve borrowed only Rs .10, 000 I -" on the whole the learned counsel for accused tried to impress So upon this Court that the accused ·has taken two different defences which are un-believable. At the same time this Court has observed forward to pay Rs.5000/-i .e., cheque that the accused came which was reluctantly refused by the covered amount, but complainant .
As per the record more specifically the accused has taken a 25. defence that Ex .P.1 was only executed for Rs.5000/- and Rs.5000/- was made as Rs.50,000/- by adding "o" at the end. When the accused has taken such defence, then the accused should have opted for certain opinion of an expert of the subject, but ultimately raising an objections did not choose any course to strengthen the said contention. Ultimately, there is no cogent evidence to prove and establish his contention. Moreever the accused has admitted the signature on Ex.P.2 and the transaction, so the burden heavily lies on the accused to establish his contention. But ultimately the accused failed to r ebut the contention or that no evidence is adduced to falsify the contention of the complainant.
At this juncture it is worth to mention Section 2 O of the 26. preciously when a blank cheque is Negotiable Instrument Act, given, the payee can fill it up as he is empowered to do so under section, no law prescribes that the Negotiable Instrument has to be filled by drawer.
Here the point for determination is whether the cheque under 27. Ex. P. 2 was issued towards the discharge of legally enforceable debt or liability, the quantum of amount is not er i ter ia, the discharge of legally enforceable debt issuance of cheque towards or liability plays significance, ultimately bear denying that Ex.p.2 was not issued towards the discharge of Ex.P.1 there is no cogent evidence to convince this Court that Ex.P.2 was not issued towards legally enforceable debt under Ex.P.1.
contention of accused holds merit then If really the 28. definitely the accused might have choosen suitable course to establish his contention and case, but ultimately he failed to do intend to draw the presumption as so, as such this court of Indian Evidence Act, 1872 which emphasized U/Sec.114 (g) evidence which could be and is not creates a presumption that
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produced would, if produced, be ur'l-favourable t ; 0 the person who(~- withholds it.
29. At this juncture it is useful to code the . d t f Ju gmen s o
Hon 'ble Apex Court AIR 2001 SC 3897-Hiten P.Dalal Vs.Bratindranath
Benerjee, AIR 2004 SC 408(B) - Goa Plast (P)Ltd., Vs.Chico Ursula D' Souza, (2006) 6 sec 39-M.S. Narayan Meanon alias Mani _ Vs . State of Kerala & another. Wherein it was held by the Hon' ble Apex Court that the presumption U / ~ec. 13 9 of the ~ct is a presumption of law, it is not a presumption of fact• This presumption has to be raised by the Court in all the cases once the factum of dishonored is established. The onus of proof to rebut this presumption lies on the accused. The standard of such rebuttal evidence depends on the facts and circumstances of each of case. Such evidence must be sufficient, cogent and shoul~ prove beyond any reasonable doubt. Therefore, a mere explanation is not enough to repel this presumption of law.
30. Where ever the person accused of offense Under section 138 of the Negotiable Instrument Act intends to plead that there did not exist legally enforceable debt, it is for him/her to place such material before the court in the form of oral and documentary evidence as is sufficient and adequate to neutralize the presumption provided under section 139 of Negotiable Instrument Act. To rebut the statutory presumptions, accused is not expected to prove his/her defence beyond reasonable doubt. At the same time bare denial of passing consideration would not serve the purpose.
31. The learned counsel for accused had relied on a decision of
Hon'ble High Court of Kerala reported in 2006 Crl LJ 4330 between Supply
house Vs Ullas. On careful perusal of the said authority, the said authority is not applicable to the present case on hand. Since, the facts set out in the said authority are quite different to the present case on hand.
32. Reverting back to the case on hand, upon minute scrutiny this Court without hesitation holds that the accused failed to rebut the burden cast on him, except denying the case of complainant, could not strike on the goal and except putting certain bald suggestions the accused could not create any vacuum to disbelieve the contention of PW.I and above all PW.I had produced and marked Ex.P.l, and P.2, similarly Ex.P.l, and P.2 bears the signature of accused, once the accused has admitted the signature on Ex.P.l the accused had invited the burden on him self. Similarly the accused him self has admitted that he has transactions with the complainant. But to the contra except denying the case of complainant the accused could not convince this court that Ex.P.2 was not issued towards any legally enforceable debt ~r liability. Similarly the accused has not bothered to take any suitable course in order to protect his inter est. If really Ex.P.2 was not _issued towards any debt, then why the accused had shied from choosing ~ny legal course. Moreever the accused has not issued any sta~ding instructions to his banker to not to honour Ex.P . 2. Not a single instant of attempt is attributed by the accused in agitating towards his interest.
33 . It is worth to relie on a judgment of Hon' ble High court of A. P. , Hyderabad reported in 2008(1) ALD Crl. 300, B. Raj _a Krishnaji. vs Kadam Kondoji, in para 28. "it was he ld had the accused delivered a blank
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/ ':1 ~heque, he would have definitely issued a reply to Ex.P3 notice. Failure of the accused in issuing reply is a strong circumstance to demolish the plea taken by him."
34. In the present case also the accused having received the legal notice did not choosen to reply the same till date for the best reasons known to him, accused being a Government employee is well aware of the consequences of issuing cheques and accused being prudent man what is the necessary on his part to issue cheque for excess amount.
35. On the other hand, complainant has produced the required documents i.e., Ex.P.3 to show that the cheque was presented and dishonoured for want of funds, that notice thereof was issued within the time allowed by law. In the present case details of the legal liability have been spoken by PW. 1. Much more, PW. 1 has produced and marked Ex.P.l i.e., Promissory note executed by accused which would create a obligation on the accused.
36. After meticulously scanning both the oral and documentary evidence, as placed on record and ultimately drawing on the presumptions statutorily provided under Sections 118(a) and 139 of the Negotiable Instrument Act, this court has come to an un- avoidable conclusions that the defence taken by accused is not probable, flawed, unbelievable and not convince this Court that Ex. P. 2 was not issued towards legally enforceable debt, as such, this point is accordingly answered infavour of complainant and against accused.
Point 2:- 37. As seen from the cross examination of PW. l, the accused has contended that he has not received any legal notice from complainant, so the accused has contended that the legal notice under Ex.P.4 was not served upon him, to the contra the complainant had produced Ex.P.4 and 5 i.e. Office copy of legal notice along with one postal receipt and un served postal cover. on perusal of Ex. P. 4, it goes to show that it contains postal receipt No.3979, postal seal and it is dated 09.11.2011 of Extension Counter, Guntur and it was dispatched and sent to "To Kakarlamudi Veeraiah, Employee, S/o.Devaiah, R/o.Pedapudi Village, Amarthaluri Manda!, Guntur District". As per the Ex.P.5 i.e., un- served postal cover the reason for non-service "refused". At the same time it is the not the case of the accused that Ex. P. 4 was dispatched and sent to wrong address and above all the accused had not denied the address on Ex.P.5 as his. So an inference is drawn is that Ex.p.4 was sent to the correct address.
38. In the instant case notice demanding amount covered under the dishonored cheque was sent to accused by registered post acknowledgment due on correct address and the acknowledgment was received back duly singed. But the receipt of notice was disputed on the ground that the signature of the accused on the acknowledgment differs from the cheque in question. The Court is of an opinion that here the question is not of signature of addressee/accused but the question is whether it was received or reached at the address mentioned. At the same time the accused has not let in any sought of evidence to disprove that as on the date of Ex.P.4 he was not residing at the address mentioned in Ex.P.4. Dispatch of notice by registered post is also not under challenge and therefore, the relevant fact and presumption that the notice has reached and delivered to the addressee/accused can be raised
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illustration under section 16 (a), so also secti on 114 -._/ illustration ( f) of the 1ndian Evidence Act• Si nce not ice posted - in ordinary course reaches to the addressee/accused the presumption can be raised that t he notices in question di d r each to the addressee/accused and have been delivered to the addressee or any authorized person on his behalf. The notice shall, therefore, · be deemed to have_ been served and much significance cannot be attributed to difference in signature. A person consciously or unconsciously may put different signature. in this case the accused being conscious about anticipated litigation might have scribed differen~ signatures with dishonest and deliberate intention of defeating the provisions and the purpose of issuance of notice.
39. From clause (b) of Section 138 of Negotiable Instruments Act it is clear that the payee or the holder in due course shall make a demand for payment of the amount mentioned in the cheque that is bounced "by giving a notice" in writing, to the drawer of the cheque" under clause (c) if the drawer of the cheque fails to make the payment within 30 days of the "receipt of the said notice" he would commit the offence. Thus, from the combined reading of clause (b) and (c) of Section 138 of Negotiable Instruments Act, it is clear that unless a notice is writing is received by the drawer of such a cheque the offence would not be constituted. Therefore, the receipt of the notice is absolutely necessary as a precondition for constituting such an offence.
40. The act of giving a notice contemplated by Section 138 of Negotiable Instruments Act means actually serving notice in terms of Section 27 of the General Clauses Act 1897. In other words even if there is any ambiguity regarding what constitutes services of notice, under Section 138 of Negotiable Instruments Act. Section 27 of the General Clauses Act 1897 has clarified the position of law. From the reading of Section 27 of the said Act it is clear that any document under Central Act is required to be served by post, as such a service shall be deemed to be effected by delivering the same in the ordinary course of post. It further makes it clear that unless different intention appears as per any Act or regulation, such a service shall be deemed to be effected by properly addressing, pre paying and posting by registered post. In other words if such a document is sent by registered post and if it does not return back it is deemed to have been served. But, such a presumption is a rebuttable presumption and it is always open to the address to prove that in fact he did not receive such a registered post.
41. This Court is relying on decisions of Hon'ble Apex court
In C.C.Alavi Haji Vs. Palapetty Muhammed and another, 2007 (2)
ALD (Crl.) 294 {SC) = (2007) 6 SCC 555 the three Judges Bench of apex Court has held that" There is no need to make such averments in the complaint for raising presumption as to se rve of notice in the said situation as in v ie w of Section 27 of General Clauses Act and S ec tion 114 of Evid ence Act, once the notice is sent by registered post by correctly addr essing the drawer of the cheque, the service of noti ce is deemed to have been eff ecte d. Mandatory requirement of issue of notice in terms of Section 138 proviso (b) stands complied with when the notice is sent in the said manner. However, the drawer can rebut the presumption of service of notice by showi ng that he had no knowledge that the notice was brought to his addr ess or the address mentioned on the cover was incorrect or the letter was never te nd ered or the report of the pos tman was in correct.
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lo{; / ' C(; I 50/2013 Indo Automobi l es vs Jai Durga Enterprises and others, 2008 ~ 2. In (2) ALD (Crl.) 299 (SC) = (2008) 8 sec 529 the apex Court held that "on ce noti ce has been sent by reg istered p os t with ackno wledg ment due to a co rr ec t add ress , it must be presumed that the service has been made eff ect ive."
Following the legal propositions and precedents laid down by 43. the mandatory notice issued by t he the Hon'ble Apex Court, complainant shall be deemed to have been served in view of the of the General Clauses Act, whi ch provisions of Section 27 stipulate that when the envelope is sent to the addressee with proper and correct address by registered post with acknowledgment due, and there is endorsement that the addressee remained absent during delivery time, it has to be construed that it is a deemed service.
To rebut the said presumption the accused did not placed any 44. material on record to establish that on the relevant date and time he was not residing on the said address mentioned on Ex. p. 4. As the accused fail to establish that Ex. p. 4 was not nominated and dispatched to correct address. As such, this point is answered infavour of complainant and against accused.
Point No.3:-
(a) Upon close scrutiny and examining the rival contentions as placed on record by both the sides, this Court has come to an indomitable and in escapable conclusion that accused failed to convince this Court that Ex.P.2 was not issued towards the discharge of legally enforceable debt under Ex. P. 1. So also the accused failed to convince this Court that the complaint had not complied with sec.138 (b) and (c) of Negotiable Instrument Act.
In view of discussions on points 1, and 2 this point is
(b) answered in infavour of the complainant and against the accused.
In the result, the accused is found guilty for the offence 45. punishable Under Section 138 of Negotiable Instruments Act.
Typed to my dictation on computer, corrected and pronounced by me in open court, this the 25 t h day of March, 2014.
Judicial Mag~t~~of I Class For Railways, Guntur.
punishable U/sec.138 of Negotiable Since the offence Instrument Act, prescribes maximum punishment which may extent to which may extend to twice the amount of two years, or with fine the cheque, or with both. As such, this court is of an opinion that provision of Sec.325 of Criminal Procedure Code, 1973 is not applicable to the present case on hand., similarly this court is not inclined to invoke the provision of Sec.360 of Criminal Procedure Code, 1973. Though as per section 255 of Criminal Procedure Code, hearing of the accused on the quantum of sentence is not with in the ambit of the said section. Though the section does not manifest on hearing of the accused on quantum of sentence, still this court is of an opinion that the accused must be given an opportunity for hearing him on quantum of sentence while imposing punishment in ~/t. the interest of Justice.
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·(' ...;;,.. The accused is heard on quant um of sentence, the accused has 46. submitted that he is a Government employee, he is the sol e earning member in his family. He is diabetic patient and his son is persuing B. Tech. The accused ~ad pleaded mer cy and prayed this court to take lenient view and impose only fine .
upon considering the e~tire submission made by the accused, 47. this is not a fit case to invoke the provisions of Probation of Offenders Act, as invoking t he provisions of probation of offenders Act, the purpose of introducing Negotiable Instrument Act would be defeated. Similarly this Court is of an opinion that this case is not a fit case to award compensation under section 357 of Criminal procedure Code. More ever this court is of the opinion that the offence committed by the accused is not against the interest of public at large and does not has any bad impact on the society at large, as it is non-serious offence. On the other hand this Court is an opinion that the complainant has invoked the Provisions of Negotiable Instrument Act in order to get punishment to the accused. Similarly the complainant has other forum to recover the money. Since, the purpose of filing this case is to see the accused get punished, further the essence of this Case is money which is the subject matter of litigation, which can be recovered in other forum, considering the submissions made by accused, this Court is of opinion that this is a fit case to imposing lessor punishment to the accused and the same would not cause any injustice to complainant and would be sufficient to meet the ends of justice.
In the result, the accused is found guilty for the offence 48. punishable Under Section 138 of Negotiable Instruments Act. The accused is convicted Under Section 255 (2) Criminal Procedure Code and he is sentenced to undergo simple imprisonment for a period of six months and pay a fine of Rs. 5000/-(Rupees Five thousand only) in default Simple Imprisonment for a period of fifteen days. The accused shall execute a bond for Rs.5000/- U/sec.437 (I)(A) of Criminal Procedure Code.
Accused is informed about his right of appeal as per the 49. directions of Hon'ble High Court of A.P., as held in the Judgment of Shaik Baba Vs. State of A.P. Reported in 2002(1) ALO (Crl.) 335 A.P. and the accused is also informed that if he has no means to engage an advocate to prefer an appeal, he is at liberty to approach District Legal Service Authority, Guntur for free legal aid.
Typed to my dictation on computer, corrected and pronounced by me in open court, this the 20 th day of March, 2014.
Judicial Magi JJ ~/~'J. ,
For Railways, Guntur.
APPENDIX OF EVIDENCE
WITNESS EXAMINED
FOR PROSECUTION: FOR DEFENCE: P.W.1- T.Christu Dasu DW.1- K.Veeraiah
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DOCl]MgNTs MARKED
FOR PROSECUTION: ~ Ex.Pl- Promissory Note, Dt.21,06,2011 FOR Rs,50,000/-. Ex.P2- Cheque bearing No.0594677, Dt.26. 09, 2011 for Rs.5,000/-. Ex,P3- Cheque r eturn memo, dt.22.11.2011. Ex.P4- Office Copy of legal notice along with one postal receipt, dt.30.11. 2011. Ex.PS- Un-served postal cover,dt.03.12.2011,
FOR DEFENCE:- NIL
JMFC for~t\~'tntur
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