1
IN THE COURT OF SPECIAL MAGISTRATE VI AT VISAKHAPATNAM
PRESENT : SRI K.KRISHNA RAO,
SPECIAL MAGISTRATEVI, VISAKHAPATNAM.
Tuesday, this the 31st day of October, 2023
C.C. No: 196/2018
(Old C.C.NO.1788/2017 on the file of IACMM, VISAKHAPATNAM)
Between:
Sri Siriki Chitragupta, son of Maheswara Rao, Hindu, aged 51 years, residing at Vysya's White House, S.Kota, Vizianagaram District.
... Complainant
And:
Sri Kannori Prakash, son of Veerabhadra Rao, aged 45 years, residing at Plot No.116, Defence Colony, Sainikpuri, Secunderabad, Rangareddy District
... Accused
This case is coming on for final hearing before me on 30.10.2023 in the presence of Sri V.S.Pavan and P.Rekha Rani, Advocates for the complainant, and of Sri.
K.Poli Naidu, Advocate for accused, and having stood over for consideration till this day, this court delivered the following:
JUDGMENT
1.This is a private complaint filed U/sec. 190 (1) (a) of Cr.P.C., and 200 Cr.P.C., against the accused for the offence punishable U/sec. 138 r/w 142 of Negotiable Instrument
Act. This case was originally filed before the Honourable I Additional Chief Metropolitan
Magistrate Court, Visakhapatnam, and after taking cognizance of the offence U/sec. 138
N.I. Act, against the accused, the case was registered as C.C.1788/2017 and at the stage of summons to accused, this case is received by this court as per the proceedings of the Honourable Chief Metropolitan Magistrate, Visakhapatnam communicated in Dis. No.87
dt: 24.01.2018 by transfer and renumbered as C.C.No.196/2018.
2
2.The brief averments of the complaint are that the accused along with
Kannoori Joan, Kannori Bhindu Madhavi, Kannori Vijayalakshmi, Smt. Vanapalli
Varalakshmi, Sri Guru Suri Devudu and Sri Kannoori Bhanu approached the complainant and represented that all of them are the absolute owners of the property in an extent of
Ac.24.50 cents covered by various survey numbers of Chinthalapudi village, Devarapalli
Mandal, Visakhapatnam District.s They further represented that they are need of money in order to discharge sundry debts of their familes and offered the said properties for sale, and that the complainant along with his wife by name Siriki Hemalatha are also interested to purchase the said property, and after due negotiations the sale price was fixed at
Rs.5,400.00 per cent which comes to a total sale price of Rs.1,32,30,000.00 for the entire property. As per the said negotiations Kannoori Joan, Kannori Vijayalakshmi, Smt.
Vanapalli Varalakshmi, Sri Guru Suri Devudu and Sri Kannoori Bhanu have executed an agreement of sale on 19.1.2015 agreeing to sell the schedule property and received a sum of Rs.15,00,000.00 by way of cash towards advance sale consideration on the date of said sale agreement itself and acknowledged the same through the said agreement. Kannoori
Bhindu Madhavai though initially agreed to sell her part of property in an extent of Ac.5.00, she could not attend on the date of execution of sale agreement and could not sign on the said agreement of sale. When the complainant questioned about her action, all of them including accused stated that she is consented for the said sale and also execution of agreement of sale, but could not present on that day due to her personal avocation and further assured that they will see she would come and execute registered sale deed along with all other members. It is further recited in the agreement of sale that the complainant has to pay Rs.10,00,000.00 out of the balance sale consideration within 10 days and the remaining balance sale consideration has to be paid within four months from the date of agreement of sale. It was further recited in that agreement that in case Kannoori Bhindu
Madhavi, for any reason objected for selling her part of property in an extent of Ac.5.00 out 3 of total extent of Ac.24.50 cents, the said land can be excluded from execution of the registered sale deed and the sale transaction can be proceed with for the remaining extent of Ac.19.50 cents by executing registered sale deed in favour of complainant and his wife after receipt of the balance sale consideration for the property an extent of Ac.19.50 cents only instead of Ac.24.50 cents. Subsequent to the executin of agreement of sale the complainant paid another amount of Rs.13,50,000.00 apart from the advance amount of
Rs.15,00,000.00 paid under the agreement of sale as follows:
An amount of Rs.2,00,000.00 to the accused by way of cheque
An amount of Rs.3,00,000.00 to the accused by way of cash through Akkunaidu and Eswara
Rao at Hyderabad.
An amount of Rs.1,00,000.00 by depositing cash into the account of accused.
An amount of Rs.50,000.00 by way of cash depositing in the account of accused on 3.4.2015.
An amount of Rs.50,000.00 by way of cash depositing in the account of accused on 22.4.2015.
An amount of Rs.1,00,000.00 by way of account transfer from SBI to the account of accused on 7.5.2015.
An amount of Rs.2,50,000.00 by way of account transfer from ICICI Bank to the account of accused on 25.5.2015.
An amount of Rs.50,000.00 by way of cash deposited in the account of accused on 5.6.2015.
An amount of Rs.50,000.00 by way of cash deposited in the account of accused.
An amount of Rs.2,00,000.00 by way of transfer of the amount from the account of
A.V.Ramesh.
The complainant is always ready and willing to perform his part of contract of payment of balance of sale consideration and requested the vendors to come forward to 4 execute registered sale deed in his favour. But all of them used to reply that Kannoori
Bhindu Madhavi is other wise busy and they would also include her to see the entire schedule property can be sold to the complainant. Believing their words, the complainant waited with a pond hope that they will come and execute registered sale deed in terms of the agreement of sale. The entire transaction was looked after by the accused on behalf of all the above vendors and he also acted as attestor to the agreement of sale dt.19.1.2015 and the entire amount of Rs.13,50,000.00 was paid to the accused and that the accused is one of the share holder in the property that was agreed to sell and as such the complainant along with his wife obtained another agreement of sale dt.12.2.2015 from the accused in respect of the property of Guru Suri Demudu which was sell to the accused. The complainant and his wife always ready with the balance of sale consideration payable to the accused and other vendors. The complainant reliably came to know that the vendors of the agreement to sell are making hectic afforts to alienate the property to some third parties by suppressing the agreement of sale executed in favour of the complainant and his wife.
Under those circumstances, the complainant and accused constrained to issue legal notice dt.21.5.2017 calling upon the accused and other vendors demanding to execute the sale deed forth with. After receipt of the said notice the accused approached the complainant and offered for amicable settlement. As per the said settlement the accused have agreed to repay the advance sale consideration Rs.28,50,000.00 together with interest at the rate of 24% per annum which total comes to Rs.40,00,000.00 and that the complainant accepted the request of the accused and agreed to receive the said Rs.40,00,000.00 towards final and full settlement of the above said sale transaction. Out of the agreed payment of
Rs.40,00,000.00 the accused issued two cheques bearing Nos. 514625 and 514626 each for
Rs.5,00,000.00, both dated 10.5.2017 drawn on State Bank of India, Secunderabad branch towards partial discharge of the agreed amount, requesting the complainant to present the said cheques whenever the accused arrange the funds in his account, subsequently the 5 accused has transferred an amount of Rs.23,00,000.00 to the account of the complainant out of the agreed amount of Rs.40,00,000.00 through RTGS vide transaction No.SBINR 52017063000048856 dt.30.6.2017 and promised to repay the remaining amount in the first week of August, 2017 and promised to arrange funds by that time in order to present the above referred two cheques issued by the accused in the first week of August, 2017. The complainant again verified with the accused in the first week of July, 2017 about the arrangement of funds for presentation of the above two cheques and then the accused has promised that those cheques can be presented in the first week of August, 2017.
Accordingly the complainant presented the said two cheques to his banker i.e. ICICI Bank,
RPC, Dwaraka Nagar Branch, Visakhapatnam on 9.8.2017. But those two cheques were dishonoured on 9.8.2017 as ''payment stopped by drawer''. Then the complainant has intimated the same to the accused but he has replied ademently and carelessly, as if he is nothing to do with the said dishonour. Then the complainant got issued registered lawyer's notice dt.4.9.2017 through his counsel to the accused demanding to pay the amount covered under the said two cheques within 15 days from the date of receipt of the said notice. The accused received the said notice and got issued contentious reply dt.23.9.2017 with all false and frivolous allegations without payment of the amounts covered under those cheques. Hence, this complaint.
3.Basing on the material available on record, cognizance of case was taken for the offence U/sec. 138 Negotiable Instrument Act, against the accused. The accused was served with all copies of case documents and was examined U/sec. 251 Cr.P.C. and the substance of accusation is explained to him in Telugu language which he perfectly understood and denied the offence and pleaded not guilty for the offence U/sec. 138 & 142
N.I Act and claimed to be tried.
4.To prove the guilt of the accused, on behalf of the complainant PWs.1 and 2 were examined and Ex.P.1 to Ex.P8 were marked. After closure of the complainant's 6 evidence, the accused was examined under section 313 Cr.P.C. explaining the incriminating material evidence appearing against him, he denied the same. DW.1 is examined and
Ex.D1 to D4 were marked on his behalf.
Heard the arguments on both sides.
5. Now the points for determination are:
i. Whether the accused agreed to repay an amount of Rs.40,00,000/ to the complainant towards settlement of Ex.P7 and Ex.P8 sale agreements transactions and became due to the complainant as legally enforceable debt?
ii. Whether the accused issued Ex.P.1 cheque in favour of complainant towards discharge of legally enforceable debt or liability?
iii. Whether the statutory notice dated 04.09.2017 is served on the accused?
iv. Whether the Complainant has proved the guilt of the accused beyond all reasonable doubt for the offence U/sec. 138 Negotiable
Instrument Act?
6.The provisions of sec. 138 Negotiable Instrument Act clause (a) (b) and © to the provisions there of indicates that a cheque has to be presented to the Bank within a period of six months from the date of which it is drawn or within a period of its validity, whichever is earlier. Clause (b) indicates that the payee or the holder in due course of cheque, has to make demand for the payment of the said cheque amount by giving a notice in writing to the drawerof the cheque within 30 days of the date of receipt of information by him from the bank regarding the return of the cheque as unpaid and clause © provides that if the drawer of the cheque fails to make the payment of said cheque amount to payee or holder in due course of the cheque within 15 days of receipt of said notice, the payee or holder of the cheque may file a complaint U/sec. 142 of the Act in the manner as prescribed within 45 days from the date of service of notice on the drawer of the cheque.
Points 1 & 2 : 7
7.According to the complainant, the accused along with Kannoori Joan, Kannori
Bhindu Madhavi, Kannori Vijayalakshmi, Smt. Vanapalli Varalakshmi, Sri Guru Suri Devudu and Sri Kannoori Bhanu approached the complainant and represented that all of them are the absolute owners of the property in an extent of Ac.24.50 cents covered by various survey numbers of Chinthalapudi village, Devarapalli Mandal, Visakhapatnam District. They further represented that they are need of money in order to discharge sundry debts of their familes and offered the said properties for sale, and that the complainant along with his wife by name Siriki Hemalatha are also interested to purchase the said property, and after due negotiations the sale price was fixed at Rs.5,400.00 per cent which comes to a total sale price of Rs.1,32,30,000.00 for the entire property. As per the said negotiations Kannoori
Joan, Kannori Vijayalakshmi, Smt. Vanapalli Varalakshmi, Sri Guru Suri Devudu and Sri
Kannoori Bhanu have executed an agreement of sale on 19.1.2015 agreeing to sell the schedule property and received a sum of Rs.15,00,000.00 by way of cash towards advance sale consideration on the date of said sale agreement itself and acknowledged the same through the said agreement. Kannoori Bhindu Madhavai though initially agreed to sell her part of property in an extent of Ac.5.00, she could not attend on the date of execution of sale agreement and could not sign on the said agreement of sale. When the complainant questioned about her action, all of them including accused stated that she is consented for the said sale and also execution of agreement of sale, but could not present on that day due to her personal avocation and further assured that they will see she would come and execute registered sale deed along with all other members. It is further recited in the agreement of sale that the complainant has to pay Rs.10,00,000.00 out of the balance sale consideration within 10 days and the remaining balance sale consideration has to be paid within four months from the date of agreement of sale. It was further recited in that agreement that in case Kannoori Bhindu Madhavi, for any reason objected for selling her part of property in an extent of Ac.5.00 out of total extent of Ac.24.50 cents, the said land 8 can be excluded from execution of the registered sale deed and the sale transaction can be proceed with for the remaining extent of Ac.19.50 cents by executing registered sale deed in favour of complainant and his wife after receipt of the balance sale consideration for the property an extent of Ac.19.50 cents only instead of Ac.24.50 cents. Subsequent to the executin of agreement of sale the complainant paid another amount of Rs.13,50,000.00 apart from the advance amount of Rs.15,00,000.00 paid under the agreement of sale as follows:
An amount of Rs.2,00,000.00 to the accused by way of cheque
An amount of Rs.3,00,000.00 to the accused by way of cash through Akkunaidu and Eswara
Rao at Hyderabad.
An amount of Rs.1,00,000.00 by depositing cash into the account of accused.
An amount of Rs.50,000.00 by way of cash depositing in the account of accused on 3.4.2015.
An amount of Rs.50,000.00 by way of cash depositing in the account of accused on 22.4.2015.
An amount of Rs.1,00,000.00 by way of account transfer from SBI to the account of accused on 7.5.2015.
An amount of Rs.2,50,000.00 by way of account transfer from ICICI Bank to the account of accused on 25.5.2015.
An amount of Rs.50,000.00 by way of cash deposited in the account of accused on 5.6.2015.
An amount of Rs.50,000.00 by way of cash deposited in the account of accused.
An amount of Rs.2,00,000.00 by way of transfer of the amount from the account of
A.V.Ramesh.
The complainant is always ready and willing to perform his part of contract of payment of balance of sale consideration and requested the vendors to come forward to 9 execute registered sale deed in his favour. But all of them used to reply that Kannoori
Bhindu Madhavi is other wise busy and they would also include her to see the entire schedule property can be sold to the complainant. Believing their words, the complainant waited with a pond hope that they will come and execute registered sale deed in terms of the agreement of sale. The entire transaction was looked after by the accused on behalf of all the above vendors and he also acted as attestor to the agreement of sale dt.19.1.2015, and the entire amount of Rs.13,50,000.00 was paid to the accused and that the accused is one of the share holder in the property that was agreed to sell and as such the complainant along with his wife obtained another agreement of sale dt.12.2.2015 from the accused in respect of the property of Guru Suri Demudu which was sell to the accused. The complainant and his wife always ready with the balance of sale consideration payable to the accused and other vendors. The complainant reliably came to know that the vendors of the agreement to sell are making hectic afforts to alienate the property to some third parties by suppressing the agreement of sale executed in favour of the complainant and his wife.
Under those circumstances, the complainant and accused constrained to issue legal notice dt.21.5.2017 calling upon the accused and other vendors demanding to execute the sale deed forth with. After receipt of the said notice the accused approached the complainant and offered for amicable settlement. As per the said settlement the accused have agreed to repay the advance sale consideration Rs.28,50,000.00 together with interest at the rate of 24% per annum which total comes to Rs.40,00,000.00 and that the complainant accepted the request of the accused and agreed to receive the said Rs.40,00,000.00 towards final and full settlement of the above said sale transaction. Out of the agreed payment of
Rs.40,00,000.00 the accused issued two cheques bearing Nos. 514625 and 514626 each for
Rs.5,00,000.00, both dated 10.5.2017 drawn on State Bank of India, Secunderabad branch towards partial discharge of the agreed amount, requesting the complainant to present the said cheques whenever the accused arrange the funds in his account, subsequently the 10 accused has transferred an amount of Rs.23,00,000.00 to the account of the complainant out of the agreed amount of Rs.40,00,000.00 through RTGS vide transaction No.SBINR 52017063000048856 dt.30.6.2017 and promised to repay the remaining amount in the first week of August, 2017 and promised to arrange funds by that time in order to present the above referred two cheques issued by the accused in the first week of August, 2017. The complainant again verified with the accused in the first week of July, 2017 about the arrangement of funds for presentation of the above two cheques and then the accused has promised that those cheques can be presented in the first week of August, 2017.
Accordingly the complainant presented the said two cheques to his banker i.e. ICICI Bank,
RPC, Dwaraka Nagar Branch, Visakhapatnam on 9.8.2017. But those two cheques were dishonoured on 9.8.2017 as ''payment stopped by drawer''. Then the complainant has intimated the same to the accused but he has replied ademently and carelessly, as if he is nothing to do with the said dishonour. Then the complainant got issued registered lawyer's notice dt.4.9.2017 through his counsel to the accused demanding to pay the amount covered under the said two cheques within 15 days from the date of receipt of the said notice. The accused received the said notice and got issued contentious reply dt.23.9.2017 with all false and frivolous allegations without payment of the amounts covered under those cheques.
8.According to the accused, the complainant and his wife never come forward to get execution of registered sale deed from him and others though the stipulated period for obtaining registered sale deed is only four months from the date of execution of Ex.P7 agreement to sell dt.19.01.2015 by paying balance of sale consideration to the accused and other vendors. He also contended that the accused and other vendors borrowed loan from the bank of Baroda, Visakhapatnam even prior to Ex.P7 agreement to sell dt.19.01.2015 and that the complainant agreed to discharge the said debt due to the bank and pay the balance of sale consideration to the accused and other vendors, but failed to discharge the 11 debt due by the accused and other vendors to their bank, though they have waited for two years. The bank authorities filed a case before the debts recovery tribunal at
Visakhapatnam bearing OA No.886/2015. The accused received summons in the above said case pending before the tribunal and appeared and that the complainant knows the same, but did not pay any amount to discharge the bank loan. Under those circumstances, the accused and other vendors sold away the scheduled property to Anjani Agro Farms on different dates under different (five) sale deeds on 19.09.2016, 20.09.2016, 21.09.2016, 26.09.2016 and 26.09.2016 in favour of Anjani Agro farms. All the sale transactions are known to the complainant, his wife and middle man Akku naidu and Eswara Rao who negotiated with the accused and others to enter into the agreement of sale on 19.01.2015.
But surprisingly the complainant got issued registered lawyer notice dt.21.05.2017 to the accused and other vendors to execute registered sale deed in his favour and in favour of his wife. Infact, the middle man Akkunaidu approached the accused to settle the matter of agreement for sale after phone conversation dt.21.04.2017, and that the middle man
Akkunaidu requested the accused to settle the matter for a sum of Rs.25,00,000/, which the accused recorded the same and given two cheques bearing Nos.514625 and 514626 drawn on State bank of India, Secundrabad for a sum of Rs.10,00,000/, each cheque for
Rs.5,00,000/ toward full and final settlement, but not for a sum of Rs.25,00,000/ as requested by the middle man sent by complainant . He also submitted that after receiving the said two cheques the complainant did not agree for the above settlement for
Rs.10,00,000/ and then there was a settlement made finally between accused and middleman and complainant for a sum of Rs.23,00,000/ for full and final settlement and that the complainant agreed to handover the original agreement for sale dt.19.01.2015 along with the above said two cheques after payment of the above settlement amount.
Accordingly the accused paid the entire agreed settled amount Rs.23,00,000/ to the complainant on 30.06.2017 by transfer of amount to the account of complainant. But the 12 complainant sent only the agreement to sell dt.19.01.2015 through courier service on 30.06.2017 to the accused and failed to return those cheques. In view of the settlement for the issue between complainant and accused, the accused blocked the said two cheques on 26.05.2017 itself. Thus the complainant has failed to return the two cheques issued by the accused each for Rs.5,00,000/ and misused those cheques with an intention to have wrongful gain against the accused and filed this false case. He also submitted that the accused never approached the complainant after receipt of legal notice dt.21.05.2017 got issued by the complainant and did not issue the cheques in dispute in favour of complainant and did not agree to pay Rs.40,00,000/ towards full and final settlement of the transaction of agreement to sell dt.19.01.2015 as contended by the complainant. As such there is no existence of legally enforceable debt or liability between complainant and accused and that the accused did not issue the cheques in dispute towards alleged discharge of legally enforceable debt or other liability and that the accused got issued reply stating the same to the statutory notice got issued by the complainant. As such the accused did not commit offence under section 138 of N.I Act. Hence, the accused is entitled for acquittal.
9.The learned counsel for complainant contended that the accused admitted the execution of agreement to sell dt.19.01.2015 in favour of complainant and his wife by accused and other vendors and receipt of consideration of Rs.15,00,000/ under the said document from the complainant and also admitted about receipt of Rs.13,50,000/ in total on various dates in various months from the complainant by the accused and other vendors subsequently i.e., in total Rs.28,50,000/ as advance sale consideration. He also contended that the accused admitted about non execution of registered sale deed in favour of complainant and his wife in terms of Ex.P7 agreement to sell dt.19.01.2015, and admitted about the settlement of issue between complainant and accused through the middle man with regard to agreement to sell dt.19.01.2017 and his wife and about payment of
Rs.23,00,000/ through account transfer from the account of accused to the account of 13 complainant in pursuance of the terms with regard to cancellation of agreement to sell dt.19.01.2017 though the accused disputed the quantum of amount returnable by him to the complainant. As such the accused admitted about his liability to pay the balance of sale consideration to the complainant though he disputed the quantum of amount payable to the complainant. He also contended that the accused has admitted about the issuance of Exs.P1 and P2 cheques and his signatures on those cheques. Hence, the presumption under section 139 N.I Act shall be taken in favour of complainant and against the accused that he had issued those cheques towards discharge of legally enforceable liability. He also contended that when the presumption is taken in favour of complainant and against the accused under section 139 N.I Act the initial onus lies on the accused to rebut the presumption that he had issued Ex.P1 and P2 cheques not towards discharge of legally enforceable debt or other liability due to the complainant. He further contended that though the accused himself was examined as DW.1 to rebut the presumption in support of his defence theory, he admitted during the cross examination that by the date of execution of sale deed in favour of Anjani
Agro Farms he has not returned the exact sale consideration Rs.28,50,000/ received from the complainant to him; and further admitted that he has not issued any legal notice either to the complainant or to the middle man PW.2 demanding to return the cheques in dispute.
The accused also admitted that there is no documentary evidence to prove that the complainant has agreed to receive Rs.23,50,000/ towards full and final settlement of the issue. Hence, the defence theory of accused cannot be accepted. He further contended that the accused as DW.1 admitted during the cross examination that the alleged conversation took place between him and Akku naidu through phone and admitted that he has not filed the said phone before the court after commencing trail in this case and before he gave evidence in this case at first instance. Therefore, the CD filed by the accused without producing the phone in which he alleged to have recorded the conversation cannot be accepted, and it has no evidenciary value. Thus the accused has failed to rebut the 14 presumption under section 139 N.I Act. On the other hand, the complainant as PW.1 categorically deposed in support of his contention about failure of the accused in repayment of the settlement amount Rs.40,00,000/ towards cancellation of sale agreement and about issuance of Ex.P1 and P2 cheques by the accused towards partial discharge of settlement amount, and about presentation of those cheques to his banker for clearance and about dishonour of those cheques, and about issuance of statutory notice to the accused demanding to pay the amount covered under those cheques within 15 days from the date of receipt of the said notice; and about failure of the accused to pay the amount even after receipt of the said notice; and about issuance of reply notice got issued by the accused with false contents. He also contended that the complainant examined the middle man Akku naidu as PW.2 in support of his contention who supported the complainants case. He lastly contended that the complainant got marked Ex.P1 to P8 in support of his oral evidence to prove his case, hence, the oral testimony of PW.1 and 2 coupled with Ex.P1 to P8 is sufficient to prove the case of the complainant under section 138 N.I Act. Hence, the accused is liable for conviction.
10.The learned defence counsel contended that though the complainant deposed that the accused approached him and agreed to return advance sale consideration of
Rs.28,50,000/ together with interest i.e., in total Rs.40,00,000/ for cancellation of Ex.P7 agreement of sale dt.19.01.2015 and issued cheques Ex.P1 and P2 each for Rs.5,00,000/ towards part payment of the above agreed amount Rs.40,00,000/ he did not file any document before the court, to prove the same except his oral testimony. Therefore the oral testimony of PW.1 cannot be relied on to prove that the accused agreed to return the advance sale consideration Rs.28,50,000/ together with interest i.e., in total
Rs.40,00,000/ to the complainant. He also contended that though PW.2 filed his evidence affidavit corroborating the evidence of PW.1 supporting the contention of the complainant that the accused agreed to settle the matter by paying an amount of Rs.40,00,000/ to the 15 complainant as the agreement of sale would not be fruitful, he deposed during cross examination that he does not know, for how much amount the matter was settled between the accused and complainant. Thus PW.2 deposed not only contra to his evidence what he deposed in his chief examination, but also contra to the evidence of PW.1 with regard to alleged settlement of amount Rs.40,00,000/. He also contended that PW.2 deposed during cross examination that he does not know where the contents of the evidence affidavit was got typed. Hence his evidence cannot be relied on to prove the case of the complainant that the accused agreed to pay Rs.40,00,000/ to the complainant for settlement of the issue. He also contended that according to the complainant the accused personally approached him after receipt of notice. But PW.1 no where deposed about the presence of PW.2 at the time the accused approached him and agreed to pay Rs.40,00,000/ to settle the issue. On that reason also the evidence of PW.1 and 2 cannot be relied on to prove that the accused agreed to return the advance sale consideration of Rs.28,50,000/ together with interest i.e., in total Rs.40,00,000/ towards cancellation of Ex.P7 and Ex.P8 agreements. He also contended that PW.1 deposed during crossexamination got issued Ex.D1 legal notice dt.21.05.2017 to the accused demanding to execute registered sale deed in terms of Ex.P7 and Ex.P8 sale agreements, and after receipt of the said notice, the accused issued Ex.P1 and P2 cheques. Generally the cheques will be issued with the date when the cheque issued or with post date, but not with anti dates. In the case on hand Ex.P1 and P2 are dt.10.05.2017 even according to the complainant. Admittedly the complainant got issued
Ex.D1 legal notice to the accused on 21.05.2017. If really the accused issued Ex.P1 and P2 cheques after receipt of legal notice Ex.D1 dt.21.05.2017 how it is possible for the accused to issue Ex.P1 and P2 cheques with date 10.05.2017 which is informal. Under those circumstances, the evidence of PW.1 cannot be relied on to prove that the accused issued
Ex.P1 and P2 cheuqes after receipt of Ex.D1 legal notice towards part payment of settlement amount Rs.40,00,000/ alleged to have been agreed by the accused towards 16 cancellation of sale agreements. Thus the complainant has failed to prove the agreed settled amount payable by the accused to the complainant and failed to prove that the accused issued Ex.P1 and P2 towards part payment of the alleged agreed amount of Rs.40,00,000/.
Hence, it can be said that Ex.P1 and P2 cheques were issued not towards discharge of any legally enforceable debt or other liability between complainant and accused. He also contended that the above circumstances strengthen the case of the accused that PW.2 approached the accused and obtained three blank filled cheques from the accused to settle the dispute between complainant and accused on 10.05.2017 and settled the matter for
Rs.23,00,000/ agreeing to return the filled three cheques after payment of Rs.23,00,000/ by the accused towards settlement of the issue i.e., cancellation of sale agreements in Ex.P7 and returned the original of Ex.P7 sale agreement by retaining Ex.P1 and P2 with malafide intention. He also contended that the accused as DW.1 categorically deposed explaining the circumstances under which Ex.P1 and P2 cheques went into possession of the complainant, and PW.1 also deposed during the course of cross examination that PW.2 Akkunaidu and
Eswara Rao went to the accused on 10.05.2017 and met him at Hyderabad and obtained two cheques for Rs.10,00,000/ i.e., each cheque for Rs.5,00,000/ promising to the accused that they will settle the matter between him (PW.1) and accused for an amount of
Rs.25,00,000/ on behalf of executants of Ex.P7 sale agreement and brought those cheques and delivered to him. Thus the above admission of PW.1 itself proves the contention of the accused under what circumstances Ex.P1 and P2 cheques went into possession of the complainant. He also contended that PW.1 further admitted during crossexamination that after receipt of Rs.23,00,000/ from the accused by way of transfer of amount through
RTGS on 30.06.2017 he sent the original of Ex.P7 sale agreement to the accused through courier service. Thus the admission of Pw.1 also supports the contention of the accused that he received Rs.23,00,000/ towards full and final settlement of the issue and returned original of Ex.D7 sale agreement to the accused by retaining Ex.P1 and P2 with a malafide 17 intention. Thus the admission of PW.1 itself is sufficient to rebut the presumption under section 139 N.I Act taken in favour of complainant and against the accused. He also contended that though PW.2 filed his evidence affidavit in chief supporting the contention of the complainant, he deposed during cross examination that they went to Hyderabad and had conversation with the accused before they visited the house of the accused in the month of November and December 2017 which is contra to the evidence of PW.1. PW.2 further deposed during cross examination that the accused issued three filled cheques i.e.,
Ex.P1 and P2 and other cheque which is available with him for Rs.1,00,000/ and it was presented by him for collection and it was dishonoured. It is not the case of the complainant that the accused issued Ex.P1 and P2 cheques with anti dates. Issuance of cheques with anti dates is informal and it is unbelievable, hence the evidence of PW.2 cannot be relied on. He further contended that though the court allowed the petition to recall PW.2 to prove the defence version about conversation between accused and PW.2 at the time of issuance of cheques with regard to settlement of issue between complainant and accused by confronting the CD. PW.2 has avoided to attend before the court inspite of the order of this court. Hence an adverse inference can be drawn against the complainant and in favour of accused with regard to the said conversation took place between accused and PW.1. Thus the complainant has failed to prove the existence of legally enforceable debt or liability between him and accused and failed to prove that the accused issued Ex.P1 and P2 cheques towards partial discharge of the legally enforceable debt or other liability. Hence the accused is entitled for acquittal.
11.It is an undisputed fact that Ex.P7 agreement of sale dt.19.01.2015 was executed by Kanoori Joan, Kanoori Visalakshi, Kanoori Bindu Madhavi, Kanoori Vijaya lakshmi, Vanapalli Veera Lakshmi, Guru Surya demudu, Kanoori Bhavani on receiving advance sale consideration Rs.15,00,000/ and that the accused is acted on behalf of all of the above and signed as first witness on the said sale agreement. It is also an undisputed 18 fact that some of the vendors have not signed on Ex.P7 agreement to sell. It is also an undisputed fact that subsequent to the execution of original of Ex.P7 agreement to sell the accused received consideration Rs.13,50,000/ from the complainant by way of cash,
Account transfer. It is also an undisputed fact that no sale deed was executed in favour of complainant in pursuance of the terms and conditions of original of Ex.P7, though the complainant contended that it was happened due to latches of accused, where as the accused contended that the sale deed was not executed as the complainant has not come forward to obtain sale deed by paying the balance of sale consideration. It is also an undisputed fact that both the parties agreed for cancellation of Ex.P7 agreement to sell dt.19.01.2015.
12.But according to the complainant the accused approached him after receipt of
Ex.D1 notice dt.21.07.2017 got issued by him and agreed to pay an amount of
Rs.40,00,000/ towards full and final settlement of cancellation of Ex.P7 agreement to sell, and issued the cheques in dispute towards part payment of the agreed amount of
Rs.40,00,000/ and also transferred an amount of Rs.23,00,000/ on 30.06.2017 by way of transfer from the account of accused to the account of complainant through RTGS and after consultation of the accused the complainant presented the cheques in dispute to it's banker for collection in the month of August 2017, but those were dishonoured on the reason "payment stopped by drawer".
13.According to the accused, he never directly approached the complainant after receipt of Ex.D1 notice dt.21.05.2017 got issued by the complainant and he did not offer
Rs.40,00,000/ and did not agree to return the advance sale consideration of
Rs.28,50,000/ together with interest for a period of 48 months i.e., in total Rs.40,00,000/ and did not issue the cheques Exs.P1 and P2 in dispute towards alleged part payment of the said amount of Rs.40,00,000/. The main contention of the accused is that Karri Akkunaidu and one Eswara Rao are the mediators between complainant and accused for the entire 19 transaction under Ex.P7 and P8 and that the complainant did not come forward to obtain sale deed as per the conditions and terms of the original of Ex.P7 though the accused waited beyond the stipulated period of four months. Hence, the vendors of the complainant sold away the said property to Anjani Agro farms to discharge their debts due to the bank with the knowledge of the complainant and that the mediators Akkunaidu and Eswara Rao approached the accused at Hyderabad in the month of May 2017 after phone conversation on 29.04.2017 with the accused and promised to settle the matter between complainant and accused if the accused pay Rs.10,00,000/ to the complainant, and accordingly the said
Akkunaidu obtained two filled cheques each for Rs.5,00,000/ in the name of complainant which are in dispute and one filled cheque in the name of Akkunaidu for an amount of
Rs.1,00,000/ on 10.05.2017, and after their return from Hyderabad, the said Akkunaidu informed him that the complainant is not agreeing for settlement of the issue for
Rs.10,00,000/ stating that the complainant is demanding Rs.25,00,000/ for settlement of the issue and then the accused asked the said Akkunaidu that he can pay only
Rs.23,00,000/ to settle the issue. As such the mediators settled the issue for an amount of
Rs.23,00,000/ and agreed to return the cheques and sale agreements originals of Ex.P7 soon after the accused paid the amount of Rs.23,00,000/ to the complainant. Then the accused paid an amount of Rs.23,00,000/ through RTGS on 30.06.2017 as agreed by him.
But the complainant sent only the original of Ex.P7 sale agreement without returning Ex.P1 and P2 cheques through courier service and filed this false case against the accused. He also contended that he got issued reply notice Ex.P6 with true facts after receipt of Ex.P5 statutory notice got issued by the complainant.
14.Thus the accused has admitted the cheques Ex.P1 and P2 and his signatures on those cheques though he disputed the purpose of issuance of cheques and existence of legally enforceable liability between him and the complainant. Therefore the presumption under section 139 N.I Act can be taken infavour of complainant and against the accused 20 that the accused executed Ex.P1 and P2 cheques for consideration. But before taking presumption under section 139 N.I Act against accused and in favour of complainant the initial burden lies on the complainant to prove the existence of legally enforceable liability between him and accused since the accused disputed the existence of legally enforceable liability.
15.To discharge the above initial burden lies on the complainant to prove the existence of legally enforceable liability between him and accused he himself was examined as PW.1 and examined the said mediator Akkunaidu as PW.2 and got marked Exs.P1 to P8.
To prove the contention of the complainant he himself filed his evidence affidavit as Pw.1 reiterating all the contents of the complaint with regard to execution of original of Ex.P7 agreement to sell dt.19.01.2015 in favour of complainant by his vendors and accused and about subscribing the signature of accused on the said document as witness, and about execution of sale agreement dt.12.02.2015 original of Ex.P8 by the accused and his wife in favour of complainant and about payment of Rs.15,00,000/ as advance sale consideration to the accused and other vendors under the original of Ex.P7 on the date of its execution itself and about payment of Rs.13,50,000/ to the accused on different dates by way of depositing cash into the account of accused and by way of cash payment and by way of account transfer subsequent to the execution of original of Ex.P7 agreement to sell, and about his repeated demands to the accused and other vendors to execute sale deed in his favour and in favour of his wife; and about failure of the accused and other vendors in executing the sale deed in pursuance of the originals of Ex.P7 and P8 sale agreements on one pretext or the other; and about the efforts of the accused and other vendors to alienate the property covered under the said agreements to third parties suppressing the said documents; and about issuance of legal notice dt.21.05.2017 to the accused and other vendors calling them to come forward to execute sale deeds in his favour, and about receipt of the said notice by the accused and other vendors and about their failure to execute the 21 sale deed in his favour even after receipt of the said notice, and about approach of the accused to the complainant after receipt of the said notice agreeing to repay the advance sale consideration of Rs.28,50,000/ together with the interest @ 24% per annum and requested the complainant to settle the matter for Rs.40,00,000/ and about his acceptance of the request of accused and also about issuance of the cheques in dispute dt.10.05.2017 each for Rs.5,00,000/ by the accused drawn on State bank of India, Secundrabad branch towards partial discharge of the amount agreed to repay by the accused to the complainant, and about transfer amount of Rs.23,00,000/ by the accused to his account through RTGS bearing transaction No.SBINR52017063000048856 dt.30.06.2017 and about the promise of accused to repay the remaining amount in the first week of August 2017 and about the promise of accused to arrange funds to encash the cheques issued by him (accused), the accused and also about presentation of those cheques by the complainant to his banker
ICICI bank for encashment at the consent and verification by the accused in the last week of
July 2017 about the arrangement of funds to honour the cheques and about dishnour of those cheques on 09.08.2017 on the reason "Payment stopped by drawer" and about issuance of statutory notice dt.04.09.2017 to the accused demanding to pay the amount covered under Ex.P1 and P2 cheques and about service of the said notice on accused and about sending of reply notice dt.23.09.2017 by the accused with all false contents and frivolous allegations without payment of the amount covered under the cheques, and got marked Ex.P1 and P2 cheques dt.10.05.2017 bearing Nos.514625 and 514626 respectively each for Rs.5,00,000/ drawn on State bank of India, Secundrabad branch, Ex.P3 and P4 cheque return memos dt.09.08.2017 issued by ICICI bank limtied RPC Vizag pertaining to
Ex.P1 and P2 cheques respectively, Ex.P5 office copy of statutory notice dt.04.09.2017 got issued by the complainant to the accused through his counsel, Ex.P6 registered reply lawyer notice dt.23.09.2017 got issued by the accused along with postal cover, Ex.P7 is photostat copy of agreement of sale dt.19.01.2015 executed by the vendors of complainant and 22 accused, Ex.P8 is the photostat copy of agreement of sale 12.12.2015 executed by the accused in favour of complainant.
16.PW.2 filed his evidence affidavit corroborating the evidence of PW.1 supporting the contention of the complainant with regard to his acquaintance with the complainant and accused and about his mediation between complainant and accused with regard to the sale transaction and about subscribing his signature on the original of Ex.P8 as witness and about the unfruitfulness of the sale transactions between complainant and accused, and about settlement of the matter between complainant and accused for an amount of Rs.40,00,000/ and that the accused has to pay the said amount to the complainant towards settlement of the said matter, and about issuance of two cheques by the accused in favour of complainant for Rs.5,00,000/ each which were in dispute and about handing over of those cheques by the accused to him (PW.2) and one Eswara Rao; and about handing over of the same inturn by him to the complainant.
17.The main contention of the complainant's he got issued legal notice dt.21.05.2017 to the accused and his other vendors demanding to execute registered sale deed in pursuance of the Ex.P7 agreement to sell dt.19.01.2015 when they have not come forward to execute registered deed in his favour and in favour of his wife inspite of their several efforts and then the accused approached the complainant and requested to settle the matter agreeing to repay the advance sale consideration of Rs.28,50,000/ together with interest i.e., in total Rs.40,00,000/ to him and issued Ex.P1 and P2 cheques each for
Rs.5,00,000/ towards partial discharge of the said agreed amount of Rs.40,00,0000/ promising to pay the remaining balance amount subsequently and requested to present those cheques after he arranged funds in his account. But except the oral testimony of PW.1 and 2 in their chief examination there is no documentary evidence on record to prove that the accused approached the complainant after receipt of legal notice dt.21.05.2017 and agreed to pay an amount of Rs.40,00,000/ towards return of advance sale consideration 23
Rs.28,50,000/together with interest to the complainant for the settlement of issue.
18.Generally, when any person issued cheque to another person it would be issued with the date on which date it was issued or with post date, But nobody would issue cheques with antidate. Even according to the complainant he got issued legal notice Ex.D1 dt.21.05.2017 to the accused demanding to execute sale deed. Admittedly Ex.P1 and P2 are
dated 10.05.2017 which are prior to Ex.D1 notice.
19.The main contention of the accused is that the mediators Akkunaidu and
Eswara rao contacted the accused through phone on 29.04.2017 and after phone conversation the mediators Akkunaidu and Eswara Rao approached him in the month of
May 2017 and agreed to settle the matter for Rs.10,00,000/ and obtained two filled cheques on 10.05.2017 in the name of complainant each for Rs.5,00,000/ and the other filled cheque for Rs.1,00,000/ in the name of Akkunaidu towards his commission to settle the matter between complainant and accused agreeing to return the originals of Ex.P7 and
P8 sale deeds and Ex.P1 and P2 cheques, and later the said Akkunaidu had conversation with him through phone informing that the complainant is not agreeing for settlement of the matter for Rs.10,00,000/ and demanded Rs.25,00,000/ and then the accused requested the mediator to settle the issue for Rs.23,00,000/ and accordingly the matter was settled between complainant and accused for Rs.23,00,000/ and that the complainant agreed to return the cheques Ex.P1 and P2 along with originals of Ex.P7 and P8 sale agreements after transfer of the agreed amount Rs.23,00,000/ to the account of the complainant; and accordingly the complainant transferred the agreed amount
Rs.23,00,000/ to the complainant on 30.06.2017 through RTGS towards settlement of issue and then the complainant sent the original of Ex.P7 sale agreements to the accused through courier service without returning Ex.P1 and P2 cheques and filed this false case.
20.Though the complainant contended that after receipt of Ex.D1 notice dt.21.05.2017 the accused approached him and agreed to settle the matter for 24
Rs.40,00,000/ and issued Ex.P1 and P2 cheques towards part payment of the said agreed amount, he no where mentioned either in the complaint or in his evidence affidavit or in the statutory notice that the accused sent Ex.P1 and P2 cheques through Akkunaidu. But
PW.1 admitted during his crossexamination that Akkunaidu and Eswara Rao went to the accused on 10.05.2017 and met him (accused) at Hyderabad and obtained two cheques for
Rs.10,00,000/ each for Rs.5,00,000/ promising to the accused that they will settle the matter between him and accused for an amount of Rs.25,00,000/, on behalf of executants of Ex.P7 sale agreement and brought those cheques and delivered them to him. Therefore the contents of complainant that the accused approached him after Ex.D1 notice and requested to settle the matter agreeing to repay Rs.40,00,000/ towards full and final settlement of the issue and issued Ex.P1 and P2 cheques towards partial discharge of agreed amount Rs.40,00,000/ cannot be accepted.
21.Pw.2 also admitted during the course of crossexamination that the accused issued three filled cheques without mentioning the dates when they visited the accused at his house at request of the complainant and he can identify the cheques delivered by the accused to them and accordingly he identified those cheques as Exs.P1 and P2 delivered by the accused. He also deposed that the other cheque delivered by the accused for
Rs.1,00,000/ is available with him. He further deposed that he presented the said cheque to his banker for clearance but it was dishonoured. He further deposed that he can bring the said dishonoured cheque to the court. (At that stage the defence counsel requested to differ the crossexamination and accordingly further crossexamination of PW.1 was differed). But subsequently when PW.2 was cross examined further, he did not bring the cheque available with him. He also deposed that he does not remember that he had presented the said cheque to his banker for clearance on 11th or 12 December 2017 and he does not remember that the accused issued Ex.P1 and P2 cheques and the cheque available with him, on 10.05.2017 only. At the other stretch he deposed during his crossexamination denying 25 their visit to the accused in the first week of May 2017. He no where deposed when he and the Eswara rao visited the house of the accused. When the defence counsel questioned
PW.2 about their conversation with the accused on phone 21.04.2019 before their visit to the accused at Hyderabad, he voluntarily adduced that he has telephoned to the accused after their arrival to the Hyderabad and had conversation with the accused in the month of
November or December 2017. Thus the evidence of PW.2 shows that he is trying to suppress the fact when he and Eswara Rao visited the house of the accused. If really PW.2 and Eswara Rao had conversation with the accused before their visit to the house of the accused in the month of November or December 2017 as deposed by him, how it is possible for them to obtain cheques Ex.P1 and P2 with anti date 10.05.2017. Further PW.1 admitted during his crossexamination that Akkunaidu and Eswara rao went to the accused on 10.05.2017 and met him at Hyderabad and obtained two cheques each cheque for
Rs.5,00,000/ in total for Rs.10,00,000/ promising the accused that they will settle the matter for an amount of Rs.25,00,000/ on behalf of executants of Ex.P7 and brought those cheques and delivered to him. If really PW.2 and Eswara rao went to the accused in the month of November or december and obtained the cheques from accused how it is possible for them to deliver those cheques to the complainant in the month of May 2017 i.e., six or seven months prior to their visit to the accused. Further PW.2 no where mentioned in his evidence affidavit in chief about their visit to accused in the month of November or
December 2017. Therefore the evidence of PW.2 cannot be relied on to prove their visit to the accused in the month of November or December, and obtaining of Ex.P1 and P2 cheques from the accused in the month of November or December 2017.
22. Though PW.2 got mentioned in his evidence affidavit supporting the contention of the complainant that the accused agreed to settle the matter by paying an amount of Rs.40,00,000/ as the sale transaction could not be fruitful, during his cross examination he deposed that he doesn't know for how much amount the matter was settled 26 between the accused and complainant. Thus the above evidence of PW.2 clearly discloses that he is trying to suppress the fact and that his evidence what he mentioned in his evidence affidavit in chief with regard to the amount Rs.40,00,000/ alleged to have been agreed by the accused to pay to the complainant is not true and correct.
23.Thus the oral testimony of PW.1 and 2 strengthen the contention of accused that PW.2 and Eswara Rao approached the accused in the month of May 2017 and obtained two filled cheques (Ex.P1 and P2) each for Rs.5,00,000/ in the name of complainant and one cheque for Rs.1,00,000/ in the name of the said Akkunaidu and the same (Ex.P1 and P2) were handedover by the said Akkunaidu (PW.2) to the complainant even prior to Ex.D1 statutory notice. Thus the evidence of PW.1 and 2 further proves that the complainant had returned only original of Ex.P7 to the accused by sending it through courier service without returning Ex.P1 and P2 cheques and filed this complaint taking advantage of availability of those cheques with him though there is no existence of legally enforceable debt or liability between complainant and accused.
24.Further the accused himself as DW.1 deposed that he handedover three cheques to PW.2 and among these cheques two cheques were issued in the name of complainant each cheque for Rs.5,00,000/ and the remaining one cheque was issued in the name of Akkunaidu (PW.2) for an amount of Rs.1,00,000/ towards his remuneration for settlement of dispute between him and complainant, and that (PW.2) presented the cheque issued in his favour for clearance and it was returned. He also deposed that the negotiations for settlement of dispute between him and complainant was commenced through
Akkunaidu and Eswara rao and they will settle the matter for an amount of Rs.23,00,000/ and he sent the same by transferring an amount of Rs.23,00,000/ from his account to the complainant account on 30.06.2017 through RTGS as per the terms of settlement of dispute. He also deposed that PW.2 Akkunaidu and Eswara rao assured him to return the agreement and cheques issued in the name of complainant, immediately after transfer of 27 the settled amount from his account to the complainant account. But he has failed to return the cheques though the agreement was returned through courier service and later the complainant misused the said cheques and filed false case against him with an intention to extract money. In support of his oral testimony he got marked Ex.D1 notice dt.21.05.2017 got issued by the complainant demanding to pay execute deed in respect of the property covered under Ex.P7 agreement. Ex.D2 statement of his bank account for the period from 01.05.2017 to 31.05.2017 issued by his banker S.B.I, Secundrabad branch, Ex.D3 CAS enquiries, Ex.D4 CD in proof of phone conversation took place between him and Akkunaidu recorded by him. The learned defence counsel cross examined DW.1 at length at length, but could not elicit anything in favour of complainant and against accused.
25.It is an undisputed fact that the stipulated period for obtaining sale deed by the complainant as per the terms and conditions of agreement is only four months. But the complainant did not choose to get issue any notice to the accused and his vendors demanding execution of sale deed even after four months till issuance of Ex.D1 dt.21.05.2017 for a period of two years for the better reasons known to him. It is true that the accused admitted during his cross examination that the conversation covered under
Ex.D4 took place through phone, but he has not filed the said phone before the court. He also admitted that he copied the said conversation from his phone to his one desktop and from the the laptop to Ex.D4 . Hence, in view of the failure of accused in producing his phone in which he recorded the conversation no credence can be attached to Ex.D4. As such it has no evidenciary value. It is settled law that the burden lies on the accused in proving his defence theory is not heavy as that of the burden lies on the complainant in proving his case. In view of my above findings and reasons I have no hesitation to come to a conclusion that the complainant has failed to prove that the accused issued Ex.P1 and P2 cheques towards discharge of legally enforceable debt or liability. Thus the accused has succeeded in rebutting presumption taken in favour of complainant and against the accused. Thus I 28 answered the points 1 and 2 accordingly infavour of accused and against the complainant.
Point No.3:
26.According to complainant, he got issued statutory dt.04.09.2017 notice after receipt of cheque return memos dt.09.08.2017 from his banker, demanding the accused to pay the cheque amount and it was served on the accused, but he did not choose to pay the cheque amount.
27.To prove the same, the complainant filed his evidence affidavit as PW.1 reiterating the same and got marked Ex.P3 and P4 cheque return memos, Ex.P5 office copy of statutory notice dt.04.09.2017, and Ex.P6 reply lawyer’s notice dt.23.09.2017. The accused has not disputed the receipt of Ex.P5 notice and Ex.P6 reply notice got issued by him. Under those circumstances, I am of the considered view that the statutory notice was served on the accused.Thus I answered the point accordingly in favour of complainant and against the accused.
Point No.4:
28.In view of my above findings and observations to Point No.1 to 3. I have no hesitation to come to a conclusion that the complainant has failed to prove his case against accused beyond all reasonable doubt for the offence punishable under Section 138 of Act.
29. In the result the accused is found not guilty for the offence punishable under
Section 138 of N.I.Act, so he is acquitted for the same under Section 255 (1) Cr.P.C and he is set at liberty. The bail bonds of accused shall stands discharged after appeal time is over.
Dictated to the Steno and corrected by me and pronounced by me in the open court, on this the 31st day of October, 2023.
VI SPECIAL MAGISTRATE
VISAKHAPATNAM
APPENDIX OF EVIDENCE
Witness Examined:
29
For Prosecution: For Defence:
P.W1: S.Chitragupta D.W.1:Kannori Prakash
P.W.2: Karri Akkunaidu (First attestor in the agreements
Documents Marked:
For Complainant:
Ex.P.1 is the original cheque bearing No.514625 dt.10.05.2017 issued by the accused in favour of complainant for an amount of Rs.5,00,000/ drawn on S.B.I., Secundrabad branch.
Ex.P.2 is the original cheque bearing No.514626 dt.10.05.2017 issued by the accused in favour of complainant for an amount of Rs.5,00,000/ drawn on S.B.I., Secundrabad branch.
Ex.P3 cheque return memo dated 09.08.2017 issued by ICICI bank limited, R.P.C., Vizag pertaining to Ex.P1.
Ex.P4 cheque return memo dated 09.08.2017 issued by ICICI bank limited, R.P.C., Vizag pertaining to Ex.P2.
Ex.P.5 is the Office copy of statutory notice dated 04.09.2017 got issued by complainant to the accused.
Ex.P6 is the registered reply lawyer notice dt.23.09.2017 got issued by accused along with postal cover.
Ex.P7 is the photostat copy of agreement of sale dt.19.01.2015 executed by the accused and others in my favour.
Ex.P8 is the photostat copy of agreement of sale dt.12.02.2015 executed by the accused and others in my favour.
For Defence: “D” Series
Ex.D1 is the legal notice dt.21.05.2017.
Ex.D2 is the statement of my bank account for the period from 01.05.2017 to 31.05.2017 issued by S.B.I, Defence colony branch, Secunderabad.
Ex.D3 is the CAS enquiries.
Ex.D4 is the CD proof of phone conversation took place between me and PW.2 recorded by me (marked subject to objection raised by the counsel for complainant) that witness is 30 not competent person to produce the same and not certified by witness as per provisions of section 65(B) of I.T.Act.
sd/ K.Krishna Rao.
VI SPECIAL MAGISTRATE,
VISAKHAPATNAM.
FORM No.71
Calendar and Judgment
( For use in cases where there is only one accused person ) ( See Rule 253 of Cr.R.P. )
C.C. No: 196/2018
(Old C.C.NO.1788/2017 on the file of IACMM, VISAKHAPATNAM)
Calendar of cases tried by the VI Special Magistrate Court, Visakhapatnam.
Date of Offence: 10.05.2016 Date of Report/Complaint: 20.10.2017 Date of Apprehension: Date of Release on bail: Date of Commencement of trial: 09.10.2018 Date of Closure of trial: 13.09.2023 Date of Judgment: 30.10.2023 Explanation for delay: Delay due to nonservice of summons to accused and nonappearance of the complainant and accused.
Calender Case No.: C.C.No.196/2018
Name of the Complainant: Sri Siriki Chitragupta, son of Maheswara Rao, Hindu, aged 51 years, residing at Vysya's White House, S.Kota, Vizianagaram District.
Name of the Accused: Sri Kannori Prakash, son of Veerabhadra Rao, aged 45 years, residing at Plot No.116, Defence Colony, Sainikpuri, Secunderabad, Rangareddy District.
Advocate for the complainant : Sri V.S.Pavan and P.Rekha Rani
Advocate for the Accused: Sri. K.Poli Naidu
Offence Under Section: U/Section 138 and 142 of NI Act.
Finding of the Court: Accused found not guilty 31
Sentence or Order of the Court:
In the result the accused is found not guilty for the offence punishable under Section 138 of N.I.Act, so he is acquitted for the same under Section 255 (1) Cr.P.C and he is set at liberty. The bail bonds of accused shall stands discharged after appeal time is over.
sd/ K.Krishna Rao.
VI SPECIAL MAGISTRATE
VISAKHAPATNAM