IN THE COURT OF THE SPECIAL MAGISTRATE-1 AT VISAKHAPATNAM
Present : Sri K.Nagendra Raju, B.A.B.L., Special Magistrate-III FAC Special Magistrate-1, Visakhapatnam.
Monday, the11th day of November, 2013
C.C.NO.275/2011
1. Serial number of the case : C.C.No.275/2011 (Old C.C.12/2009 of II Addl Chief Metropolitan Magistrate, Visakhapatnam).
2. Date of commission of offence : 03.09.2008
3. Name of the complainant : Sri Sarvasiddi Satyanarayana, S/o.late Lakshmi Narayana, Hindu, aged 45 years, residing at D.No.30-15-144/A, Dabagardens, Visakhapatnam.
4. Name of the accused : Nutakki Venugopal Rao, S/o.N.Prasada Rao, Hindu, residing at D.No: 18-15-144, 2nd Floor, Opposite to Subbirami Reddy Complex, Dabagardens, Visakhapatnam.
5. Offence complained off of proved : U/Sec.138 of Negotiable Instruments Act 1881.
6. Plea of the accused and examination : Accused pleaded not guilty. If any.
This case is coming on 19-8-2013 for final hearing before me in the presence of Sri
B.Trinadha Rao and Sri E.Srinivasa Rao, Advocate for the complainant and of Sri V.V.Ravi
Prasad and J.V.Rama Krishna, Advocate for the accused and on 7-11-2013 in the presence of both parties the matter having stood over till this day for consideration and this court delivered the following:
JUDGMENT
7. This is a complaint against the accused for the offence under Sec.138 and 142
N.I.Act.
In brief the case of the complainant as set out in the complaint is thus:
8. The complainant is owner of the building bearing D.No.30-15-144/A, Dabagardens, Visakhapatnam and accused is the tenant of the ground floor and 1st floor of the said building. The accused being an employee of Steel Plantof Visakhapatnam, requested the (2) complainant to enter into lease agreement in the name of his wife Nutakki Chenchulatha.
Accordingly the complainant entered in to a lease agreement dated 27-1-2007 with the wife of accused, leasing out ground floor and 1st floor. The accused agreed to pay monthly rent of
Rs.25,000/- P.M and additional amount of Rs.5,000/- for 1st floor. There is a clause under the lease agreement that the lessee can sublet the premises to sub-lessees. In the month of
September, 2008 the accused sublet one shop to Sky Shop and received an amount of
Rs.2,00,000/- as advance and another shop to Software shop and took advance of Rs.36,000/- from the said shop on behalf of his wife. The accused used to manage the premises and receiving the rents from subtenants and in turn the accused used to issue cheques to the complainant towards payment of rents. On 3-9-2008 the accused issued two cheques in favour of the complainant. One is cheque bearing No.521360 for Rs.1,18,116/- and another is cheque bearing No.000003 for Rs.22,700/- drawn on City Union Bank Ltd., Dabagardens,
Visakhapatnam. The said two cheques were issued to discharge legally enforceable liability towards payment of advance amount etc., to the complainant. The complainant presented the said two cheques in Bank of Baroda, Dabagardens, Visakhapatnam, on 3-9-2008, but the said two cheques are bounced due to “INSUFFICIENT FUNDS” in the account of the accused and memos dt.4-9-2008 were issued by the bank to that extent. The complainant issued a statutory notice under section 138 of N.I.Act dated 3-10-2008 demanding the accused to pay the amounts under the two cheques. The accused received the legal notice, but did not choose either to pay any amount to the complainant or to give any reply to the complainant. Hence the complaint.
9. The complaint was originally filed before the II Addl. Chief Metropolitan Magistrate,
Visakhapatnam, and after taking cognizance of the offence U/Sec.138 r/w 142 of N.I.Act against the accused, the case was registered as C.C.12/2009 and summons was issued to the accused. After appearance of the accused before the Court, copies of documents are furnished to the accused as required U/s.207 Cr.P.C. The accused was examined U/Sec. 251
Cr.P.C and the accused pleaded not guilty and claimed to be tried. After filing of the evidence affidavit of complainant as P.W.1, the case is transferred to this court and renumbered as C.C.275/2011. The complainant has examined himself as P.W.1 and also examined B.Kanaka Ramana, Sr.Clerk, City Union Bank, Dabagardens as P.W.2 and produced 13 documents which are marked as Exs.P.1 to P.13.
10. After completion of complainant’s evidence the accused was examined U/Sec.313 Cr.P.C with regard to the incriminating material produced against him and the accused denied the same to be correct. The accused in support of his defence examined himself as
D.W.1 and produced 5 documents, which are marked as Exs.D.1 to D.5.
(3) 11. Heard Arguments on both sides. Written arguments are submitted on behalf of the complainant.
12. The point that arise for determination is that: Whether the complainant has
proved the guilt of the accused for the offence u/sec.138 of N.I.Act beyond
reasonable doubt?
13. In order to prove the guilt of accused for the offence U/sec.138 of N.I.Act the following ingredients shall be proved by the complainant.1) that the accused has issued two cheques from his bank account for discharge of the debt or other liability 2) that the cheques so issued had been return due to “INSUFFICIENT FUNDS” 3) that a statutory notice in writing was issued demanding the accused for payment of the amount under the cheques 4 ) that the accused failed to make the payment within 15 days after receipt of the notice.
14. The complainant S.Satyanarayana in order to prove his case has produced oral evidence by examining himself as P.W.1 and also examined the bank official i.e., Sri
B.Kanaka Ramana, Sr.Clerk, City Union Bank, Dabagardens, as P.W.2 and produced 13 documents which are marked as Ex.P.1 to P.13. The case of the complainant as per his pleadings as well as his oral evidence is that he is the absolute owner of the building bearing
D.No.30-15-144/A, Dabagardens, Visakhapatnam, and he leased out the property nearly 4600 sft consisting of 4 shop rooms, i.e., two in the ground floor and two in the 1st floor to the accused on payment of rent of Rs.30,000/- per month. The accused being Employee in
Visakhapatnam Steel Plant, requested the complainant to enter in to the lease agreement in the name of his wife Nuttakki Chenchulatha. On the request of accused the complainant entered into a lease agreement with the wife of the accused on 27-1-2007 on payment of a monthly rent of Rs.30,000/- i.e.,25,000 + 5,000/-. The Accused used to run M/s.Nuttakki
Enterprises in one shop room and he leased out the other shop rooms to some other sub- tenants. The accused used to manage the premises and receiving the rents from sub-tenants and in turn the accused used to issue cheques to the complainant, towards payment of rent.
15. In the month of September 2008 the accused sublet a portion of 1st floor premises to
Sky Shop and received Rs.2,00,000/- as advance and let out another portion to software shop and received Rs.36,000/- towards advance on behalf of his wife. Further according to P.W.1 on 3-9-2008 the accused issued two cheques Ex.P.1 bearing No.521360 for Rs.1,18,116/- and
Ex.P.2 cheque bearing No.000003 for Rs.22,700/- drawn on City Union Bank Ltd.,
Dabagardens, in his favour to discharge legally enforceable liability towards payment of advance amount etc.
(4)
16. The complainant presented the said two cheques in Bank of Baroda Visakhapatnam, on 3-9-2008 for collection, but the said two cheques are bounced for the reason “INSUFFICIENT FUNDS” in the account of the accused. Ex.P.3 and P.4 are the return memos issued by the bank on 4-9-2008. Further case of the complainant is that he got issued a statutory notice under Ex.P.5 on 3-10-2008 demanding the accused to pay the amounts covered under the two cheques Ex.P.1 and P.2 within 15 days from the date of receipt of the said notice and the accused received the said notice vide acknowledgment Ex.P.6, but failed to pay any amount to the complainant nor sent any reply to him, on that the present complaint is filed by the complainant. The other documents produced by the complainant are Ex.P.7 to
P.13. Ex.P.7 is a copy of agreement of sale dt.27-1-2007 executed by the complainant in favour of the accused for the 2nd floor of the building, Ex.P.8 is copy of Telegraphic notice sent by the complainant to the accused, cancelling agreement of sale, Ex.P.9 is the copy of registered sale deed dt.28-8-2008 executed by the complainant in favour of one M.Srinivas in respect of 2nd floor of the building, Ex.P.10 is the copy cancellation of sale agreement Ex.P.7.
Ex.P.11 and 12 are copies of photographs of the complainant and his son and Ex.P.13 is the letter dt.2-9-1008 issued by the complainant to the accused. The other evidence produced by the complainant through P.W.2 B.Kanaka Ramana, Sr.Clerk, City Union Bank, Dabagardens
Visakhapatnam is that the accused got savings account No.124019 in that bank and the two cheques were return on 4-9-2008 and Ex.P.3 and 4 cheque return memos are issued by the said bank.
17. The submissions of the learned counsel for complainant are that accused is the husband of the lessee of the complainant who took lease of ground floor and first floor of the building. The accused being employee in steel plant took lease in the name of his wife and used to manage the premises, sublet the shops to sub-lessees and collected advances and rents from sub-lessees and used to issue cheques to the complainant towards rents. The accused issued two cheques Ex.P.1 and P.2, on 3-9-2008 in favour of the complainant on behalf of his wife and those two cheques are bounced on 4-9-2008 due to “INSUFFICIENT
FUNDS” vide Ex.P.3 and P.4. The accused even after receipt of statutory notice Ex.P.5 failed to pay the cheque amounts and even failed to send any reply. The further submissions of learned counsel for complainant are that the accused who issued two cheques on behalf of his wife for the amounts payable by his wife, to the complainant, is under an obligation to fulfill the said liability which is legally enforceable by the complainant and the complainant by producing satisfactory evidence has proved all the ingredients of Sec138 of N.I.Act. The further submissions are that since the accused is admitting issue of two cheques under Ex.P.1 and P.2 in favour of the complainant, legal presumptions U/sec.118 and 139 of N.I.Act shall be drawn in this case and onus of proof shifts to the accused to rebut the above legal presumptions by producing cogent evidence and relied open the following decisions:
(5)
The decision of the Hon’ble Supreme Court of India in the case Rangappa Vs. Sri Mohan 2010(4) Supreme 169 where in it was held that the presumption mandated by section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a Civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position 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 liability, the prosecution can fail. As clarified in the citations, the accused can rely 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/her own.
In the case of P.R.Shankar Rao Vs Joseph reported in 2001 (2) ALD Cri 137, wherein the Hon’ble High Court of Madras heldthat the requirement for offence to be made out under this section 138 is that the cheque must be drawn “for the discharge, in whole or in part, of any debt or other liability”. This section does not say that the cheques should have been drawn for the discharges of any debt or other liability of the drawer towards the payee. Even in section 139 of the Negotiable Instruments Act, by which a legal presumption is created, the parliament has only fixed the presumption that the cheque was issued “for the discharge, in whole or in part, or any debt or other liability”. This would mean that the debt or other liability includes the due from any other person. It is not necessary that the debt or liability should be due from the drawer himself. It can be issued for the discharge of any other man’s debt or liability. Legally enforceable debt or liability would have a reference to the nature of the debt or liability and not the person against whom the debt or liability can be enforced.
In the case of Gummadi Industries Ltd Vs Khushroo F.Engineer M/s Zen reported in 1998 (2) ALD Cri 738, where in the Hon’ble High Court of Madras held that Section 138 of the Act would indicate that the debt or liability towards which the cheque is issued, should be a legally enforceable debt or liability. This would have reference to the nature of the debt or liability and not to the person against whom the debt or liability would be enforced.
(6)
This is clear by the use of the words “any debt or liability” which would include a cheque drawn by one person towards a legally enforceable debt or liability of another person. The significant omission of the words “of that person” after the words “any debt or liability” would indicate the intention of the Parliament.
18. The above decisions are supporting the contention of the complainant. Since the accused in this case is admitting the issuance of two cheques Ex.P.1 and Ex.P.2 in favour of the complainant, presumption U/sec.118 of N.I.Act, that until the contrary is proved that those cheques are drawn for consideration and another presumption U/sec.139 of N.I.Act, that unless contrary is proved that the complainant holder of the cheques Ex.P.1 and P.2 received those two cheques for the discharge in whole or in part of any debt or other liability, shall be drawn. The above presumptions are rebuttable presumptions and the onus of proof shifts to the accused, to prove that cheques Exs.P.1 and P.2 were not issued for discharge of any debt or liability which is legally enforceable, by producing cogent evidence; however the standard of proof required is that of preponderance of probabilities.
19. The defence of the accused in this case is that he is not the tenant of the complainant, but only his wife Chenchulatha is the lessee of complainant and his father, and hence only his wife is liable to pay the rents for the lease hold shops to the complainant. Further the complainant shall have proceeded against the wife of accused only, either for eviction or for recovery of arrears of rents if any. The accused is not the agent of his wife and there is no liability on the accused to pay any rent or advance to the complainant and Ex.P.1 and P.2 cheques were not issued by the accused either towards arrears of rents or towards advance as alleged by the complainant. Further contention of defence is that there was in consistency in the pleadings and the oral testimony of complainant P.W.1 with regard to the purpose of issuing the cheques Exs.P.1 and P.2 and the complainant is not certain whether the cheques
Ex.P.1 and P.2 were issued either towards arrears of rent or advance if any. Further defence is that in case of advance it will be paid only at the time of commencement of lease. Since the lease of the ground floor and 1st floor is in existence between the father of complainant and wife of accused from the year 2002 by way of a registered lease deed and it was renewed in for the year 2007 by the complainant and the wife of accused, the question of payment of any advance in the year 2008 does not arise. No arrears of rent is due to the complainant from the
Accused and there is no debt or legally enforceable other liability on the part of the accused towards the complainant. Since there is no legally enforceable debt or other liability, dishonour of cheques Ex.P.1 and P.2 does not come with in the purview sec.138 of N.I.Act.
The complainant taking advantage of cheques issued for some other purpose filed this complaint. The complainant failed to disclose the details of liability or debt in the complaint and hence the complaint is defective. The evidence adduced by the complainant is contrary to (7) his pleadings and in view of the above infirmities the case of the complainant cannot be believed and the accused is entitled for acquittal. The learned Counsel for defence relied upon the following decisions.
In the case of Muthu Kumaran Vs.Pariya swamy decided on 29-3-2012, by the
Hon’ble High court of Madras, downloaded from Indian Kanoon –
http://indiankanoon.org/doc/157775289/ in which Hon’ble High court of Madras followed the decisions of the Hon’ble Supreme Court of India in the case of Rangappa Vs. Sri Mohan reported in (2010) 11 SSC 441 where in it was held, that further more, whereas prosecution must prove the guilt of the accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.
A Statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative.
In the case of K.Kumaravel Vs. R.P.Rathinam decided on 8 th December 2010, by the Honourable High Court of Madras, where in it was held that to attract liability U/s.138 of Negotiable Instruments Act cheque should have been drawn to discharge a legally enforceable debt or liability. In other words if a cheque has been given not for a legally enforceable debt or liability, the court cannot come to the conclusion the drawer of the cheque has committed an offence.
20. The accused in this case in order to prove his defence and to rebut the legal presumptions under sec.118 and 139 of N.I.Act has examined himself as D.W.1 and produced 5 documents which are marked as Ex.D.1 to D.5. D1 is undertaking letter given by the complainant dt.15-9-2008, Ex.D.2 is copy of plaint in OS 394/2009, Ex.D.3 is registered lawyer’s notice got issued by the complainant dt.25-12-2008, Ex.D.4 is copy of lease deed dt.14-8-2002 in between father of complainant and wife of accused for a period of 5 years from 1-9-2002 to 31-8-2007. Ex.D.5 is zerox copy of lease deed dt.31-1-2007 in between the complainant and wife of accused for 33 months from 28-1-2007 to 27-10-2010.
21. The oral testimony of accused D.W.1 is that there is no privity of contract between him and the complainant and he is no way connected to the agreement of tenancy between his wife and the complainant and he is not an agent of his wife. Further according to the accused, he is not liable to pay any amount, to the complainant, much less arrears of rents.
Further the complainant filed suit OS.394/2009 on the file of the Principal Senior Civil Judge
Visakhapatnam, for recovery of arrears of rents of Rs.2,40,000/- for 8 months from May (8) 2008 to December 2008 @ Rs.30,000/- for month. The complainant filed another suit OS 717/2010 for eviction of wife of accused from ground floor and 1st floor of the building and both the suits are pending. According to the accused, two cheques Ex.P.1 and P.2 were not given to the complainant towards arrears of rents and the complainant did not mention the reason for giving those cheques in the complaint. Further according to the accused the rent payable by his wife is only Rs.12,500/- per month as per lease agreement Ex.D.5 dt.31-1- 2007.
22. Further according to the accused the complainant executed an agreement of sale original of Ex.P.7 dt.27-1-2007 agreeing to sell 2nd floor of the building for Rs.26,00,000/- to the accused and Rs.6,00,000/- was paid to the complainant as advance, and remaining
Rs.20,00,000/- shall be paid in four installments @ Rs.5,00,000/- per year. Further according to the accused, a condition is stipulated in the sale agreement that time is essence of the contract. The accused also admitted that the complainant issued a Telegraphic notice Ex.P.8 to the effect that as the accused failed to pay the installment of Rs.5,00,000/- due by 27-1- 2008 till the date of notice 4-9-2008, he is cancelling the agreement of sale Ex.P.7, on the ground of default in payment. Further according to the accused that matter was settled between him and the complainant and the agreement of sale Ex.P.7 was cancelled by execution of a cancellation deed original of Ex.P.10 and the complainant sold away the 2nd floor to a third party Sri M.Srinivas who was brought by the accused himself, by executing a sale deed original of Ex.P.9 dt.28-8-2008.
23. Further according to the accused both the documents i.e., sale deed original of Ex.P.9 and cancellation of sale agreement were executed on 28-8-2008 and the accused also attested the sale deed as 1st witness and after, all the persons put their signatures on both the documents, the registration of the documents was stopped on that date, as the complainant did not appear before the registrar for registration of the sale deed and the registration was rescheduled to 4-9-2008. Further according to the accused on 2-9-2008 the complainant placed a demand with him that his wife should surrender the lease of 1st floor of building and to make over the subtenants to him. Further according to the accused as the lease under
Ex.D.5 dt.31-1-2007 permits the lessee to sub-let the premises, his wife who is the lessee, let out a part of the 1st floor to shift wave Info Technologies and another part to w.w.w.sky shop
Pvt Ltd and received advance of Rs.36,000/- and Rs.2,00,000/- respectively from the sub lessees. Further according to the accused, the complainant also demanded him that his wife shall pay advances of Rs.2,00,000/- and Rs.36,000/- taken from the subtenants to him, deducting all dues including arrear of rents if any from subtenants as on that day. Further according to the accused by 2-9-2008 w.w.w.sky shop was due an amount of Rs.81,800/- towards arrears of (9) rent, water, and electricity bills to his wife and similarly shift Wave Technology was due to pay an amount Rs.13,300/- ,towards arrears of rents, water and electricity charge etc. to his wife, deducting the amounts due from the sub-lessees i.e. Rs.81,880/- from the advance of
Rs.2,00,000/- the balance comes to Rs.1,18,116/- and deducting Rs.13,300/- from advance of
Rs.36,000/- the balance becomes Rs.22,700/-.
24. Further according to the accused, he was in he0lp less situation because by that time, his agreement was cancelled, more over he brought the buyer who already taken demand draft for Rs.15,00,000/- towards balance of consideration, under those circumstances and on such force and coercion made by the complainant he was compelled to issue two cheques
Ex.P.1 for Rs.1,18,116/- and Ex.P.2 for Rs.22,700/- to the complainant, though there was no personal contract or obligation on him towards the complainant. Further according to the accused since his wife is tenant under complainant his wife has to fulfill the demand of the complainant for surrendering lease of 1st floor during the pendency of lease period and he has no personal responsibility to pay any amount to the complainant under the said two cheques and he gave those two cheques in helpless predicament.
25. Further according to the accused, the complainant did not turn up for registration on 4-9-2008 though he and his wife agreed to fulfill the demand of the complainant. Further according to the accused the complainant entertains a suspicion that the accused has taken huge amounts in the deal under Ex.P.9 towards his commission and demanded the accused to pay an amount of Rs.11,00,000/-. Further according to accused, he paid Rs.11,00,000/- to the complainant under two receipts, one is for Rs.5,00,000/- and another for Rs.6,00,000/-, but he did not file those receipts as he is contemplating to file those receipts in the Civil suits.
The sale deed in favour of M.Srinivas was registered on 15-9-2008 under the original of
Ex.P.9. Further according to the accused he requested the complainant to return back the cheques Ex.P.1 and P.2, but the complainant told him that he would return those cheques soon as they were kept some where. Further according to the accused, on his request, the complainant gave a letter Ex.D.1 on 15-9-2008 that he received money under two cheques and that he will not claim anything under the two cheques. Further according to the accused the complainant after receiving money only signed on the letter Ex.D.1, but complainant is disputing this letter Ex.D.1 stating that it is created by the accused for the purpose of this case. The accused also admitted that there are interpolations and erasures in Ex.D.1 and stated that it was handover by the complainant to him in that condition and when he insisted for the signature of the complainant at the corrections, the complainant told him that his signature at the bottom acknowledges those corrections.
(10)
26. On perusing the evidence produced by the accused, together with the facts elicited form P.W.1 during his cross examination, it is clear that the accused took two different defences. One is that the cheques Ex.P.1 and P.2 were not issued for discharge of any debt or other liability, denying his personal liability to pay any amount to the complainant and dishonour of those cheques does not come under the purview of Section138of N.I.Act. 2) payment of money to the complainant after issue of cheques. So for as liability is concerned even according to the accused his wife is lessee under the father of the complainant since the year 2002 for ground floor and 1st floor of the building under original Ex.D.4 lease deed dt.14-8-2002 and his wife Nuttakki Chenchulatha entered into another lease agreement with the complainant herein, under original of D.5 dt.31-1-2007 for 33 months from 28-1-2007 to 27-10-2010. The rent was Rs.20,000/- P.M under the lease deed dt.14-8-2002 Ex.D.4 for two shops in the ground floor and two shops in the 1st floor, where as rent was reduced to
Rs.12,500/- for the same premises i.e., ground and 1st floor with clause No.10 giving liberty to lessee to sublet the premises to any third party without consent of the lessor under the original of ExD.5.
27. According to the accused his wife let out one portion on the 1st floor to w.w.w.sky shop and has taken an advance of Rs.2,00,000/- and another portion in the 1st floor to shift wave technology and received Rs.36,000/- as advance. Even according to the accused, after execution of the sale deed in favour of M.Srinivas by the complainant in respect of 2nd floor on 28-8-2008 and by executing cancellation deed, cancelling the agreement of sale Ex.P.7 in favour the accused, the complainant did not appear before the Registrar, for that reason registration of those documents was stopped on that day and on 2-9-2008 the Complainant made a demand that the wife of the accused shall surrender lease of 1st floor and makeover the subtenants to him and to pay the advance amounts i.e., Rs.2,00,000/- and Rs.36,000/- received from the subtenants by the wife of the accused and under the circumstances existing by that time, the accused and his wife agreed to comply the demand of the complainant and to surrender lease of 1st floor and to pay the advance monies collected from the subtenants, deducting the outstanding dues from the subtenant, to the complainant.
28. According to the accused he issued Ex.P.1 cheque for Rs.1,18,116/- deducting
Rs.81,880/- out of Rs.2,00,000/- advance collected from w.w.w.sky shop and issued Ex.P.2 cheque for Rs.22,700/- deducting Rs.13,300/- from advance of Rs.36,000/- taken from shift wave technologies, to the complainant. Ex.P.13 letter addressed by the complainant is also confirming the same that Ex.P.1 and P.2 cheques are issued for payment of the balance of advance monies collected from subtenants by the wife of accused deducting the outstanding dues from the advances.
(11)
29. Though the amounts are payable by the wife of the accused to the complainant, but the accused come forward and issued two cheques Ex.P.1 and P.2 being balance of advance money collected from the subtenants to the complainant, land owner while surrendering the lease of the 1st floor as per the demand of the complainant. Issue of two cheques Ex.P.1 and
P.2 by the accused for the liability of his wife also comes under the purview of sec.138 of
N.I.Act as per the decision of the Hon’ble High court of Madras In the case of Gummadi
Industries Ltd Vs Khushroo F.Engineer M/s Zen reported in 1998 (2) ALD Cri
738 and in the case of P.R.Shankar Rao Vs Joseph reported in 2001 (2) ALD Cri 137, in which it was held “that for the discharge whole or in part of any debt or other liability U/s.139 of N.I.Act this would mean that the debt or other liability includes the due from any other person. It is not necessary that debt or other liability should be due from the drawer himself. It can be issued for the discharge of any other man’s debt or liability, legally enforceable debt or liability would have a reference to the nature of the debt or liability and not the person against whom the debt or liability can be enforceable.
30. Since the accused is admitting the issue of two cheques Ex.P.1 and P.2 in favour of the complainant towards payment of advance money collected from subtenants by deducting existing dues, on behalf of his wife, it comes under the purview of Sec.138 of N.I.Act because the accused issued those cheques for the discharge of liability of his wife due to the complainant which is also legally enforceable by the complainant, after surrender of lease by the wife of the accused. Hence the first defence taken by the accused that Ex.P.1 and P.2 were not issued in discharge of any debt or other liability and dishonor of those cheques does not come under the purview of Sec.138 of N.I.Act is not correct.
31. According to the complainant he got issued Ex.P.5 legal notice dt.3-10-2008 demanding the accused for payment of cheque amounts within 15 days from the date of receipt of the notice and the accused received the notice on 4-10-2008 and failed to pay the amount and even failed to send any reply to him. So far as the second defence of the accused that he paid Rs.11,00,000/- to the complainant on the demand of the complainant under two receipts one is for Rs.5,00,000/- and another is for Rs.6,00,000/- and the complainant issued
Ex.D.1 letter is concerned the accused did not choose to produce the alleged receipts passed by the complainant for Rs.5,00,000/- and Rs.6,00,000/- on the ground that those receipts will be filed in civil suits. Even according to the accused there are interpolations and corrections and erasures in Ex.D.1 and those interpolations and corrections are not attested by the complainant. The submissions of the learned counsel for complainant are that Ex.D.1 is created by the accused for the purpose of this case and it was not proved. No questions were put to the complainant during his cross examination about the contents of Ex.D.1. The accused even did not choose to examine D.Rambabu who singed as witness on Ex.D.1 to prove the contents of the said document.
(12) 32 In the absence of examining the witness D.Rambabu, and in view of unattested interpolation and erasures in Ex.D.1 this court find that Ex.D.1 cannot be relied upon.
Moreover Ex.D.1 does not contain any recital about receipt of money covered under the cheques Ex.P.1 and P.2 from the accused on any specific date. There by the accused miserably failed to prove that he paid the amounts covered under Ex.P.1 and P.2 to the complainant, after issue of statutory notice Ex.P.5. Hence the second defence taken by the accused that he paid the cheque amounts is also not proved.
33. Considering the entire material evidence produced by both the parties this court finds that the accused miserably failed to rebut the legal presumption U/sec.139 of N.I.Act by showing preponderance probabilities that the case of the defence is more probable than the case set out by the complainant. Since the accused failed to rebut the legal presumption drawn U/Sec.139 of N.I.Act he cannot escape from his liability for offence U/Sec.138 of
N.I.Act.
34. The complainant has proved all the ingredients of Sec.138 of N.I.Act and proved the guilt of the accused for offence U/sec.138 of N.I.Act beyond reasonable doubt. The point is decided accordingly in favour of the complainant and against the accused.
35. In the result the accused is found guilty for the offence punishable under sec.138 of
N.I.Act and the accused is convicted under sec.255 (2) Cr.P.C for the offence under section 138 of N.I.Act.
Typed to my dictation, corrected and pronounced by me in open court on 11th day of
November 2013.
Special Magistrate-III, FAC Special Magistrate-I, Visakhapatnam.
Dated.11-11-2013
Accused is questioned about imposing of sentence on him by explaining him the maximum imprisonment, or quantum of fine or both, prescribed U/Sec.138 of N.I.Act. The accused represented that he is an employee and in case of imprisonment and sends him to Jail he will loose his job, and he can pay fine, if fine is imposed. It is further represented that a civil suit relating to money is pending between the parties and taking into consideration of the said suit, impose a lesser fine.
(13)
Considering the nature of offence and quantum of money under the cheques, this court finds that it is not a fit case to release the accused under PO Act.
Considering the circumstances stated by the accused, this court finds that since the accused is an employee it is not desirable to impose sentence of imprisonment on him and imposing of fine would meet the ends of Justice in this case.
In view of the observations made by the Hon’ble Supreme Court of India in the case of R.Vijayan Vs Baby and other reported in 2012 (2) ALT (Crl) 233 SC, the accused is sentenced to pay a fine of Rs.2,50,000/- (Rupees Two lakhs and fifty thousand only) for the offence U/Sec.138 of N.I.Act and in default under go SI for 6 months. Out of the fine amount collected from the accused a sum of Rs.2,00,000/- (Rupees Two lakhs only) shall be paid to the complainant, towards compensation U/Sec.357 (1) (b) Cr.P.C after the Appeal or Appeal time is over.
The accused is informed about his right to prefer appeal with in 30 days to the
Sessions Court and to get a free copy of Judgment, which will be given today.
Special Magistrate-III, FAC Special Magistrate-I, Visakhapatnam.
APPENDIX OF AVIDENCE
1.List of witnesses examined on behalf of Complainant:
P.W.1 Sri S.Satyanarayana P.W.2 Sri B.Kanaka Ramana
2. List of witnesses examined on behalf of the accused:
D.W.1 N.Venugopal Rao
3. List of court witnesses examined. NIL
4. List of documents marked on behalf of Complainant:
Ex.P.1 Original cheque for Rs.1,118,116/- dt.3-9-2008
Ex.P.2 Original Another cheque dt.3-9-2008 for Rs.22,700/- (14)
Ex.P.3 Cheque return memo dt.4-9-2008
Ex.P.4 Another cheque return memo dt.4-9-2008
Ex.P.5 Office copy of legal notice. Dt.3-10-2008
Ex.P.6 Postal acknowledgment dt.4-10-2008
Ex.P.7 Photo stat copy of Sale Agreement dt.27-1-2007
Ex.P.8 Xerox copy of Telegram dt.4-9-2008
Ex.P.9 Xerox copy of Sale deed dt.28-8-2008
Ex.P.10 Xerox copy of cancellation of sale agreement dt.28-8-2008
Ex.P.11 Xerox copy of photo
Ex.P.12 Xerox copy of photo
Ex.P.13 Xerox copy of letter addressed by the complainant dt.2-9-2008
5. Document marked on behalf of accused:
Ex.D.1 Undertaking Letter dt.15-09-2008
Ex.D.2 Served copy of plaint in OS 394/2009
Ex.D.3 Zerox copy of Registered lawyer’s notice dt.25-12-2008
Ex.D.4 Photostat copy of deed of lease dt.14-8-2002
Ex.D.5 Photostat copy of lease deed dt.31-01-2007
6.Document marked by the court witnesses: NIL
Special Magistrate-III, FAC Special Magistrate-I, Visakhapatnam.
CALENDAR AND JEDGMENT
DISTRICT : : VISAKHAPATNAM
IN THE COURT OF THE SPECIAL MAGISTRATE-1, VISAKHAPATNAM
C.C.NO.275/2011
DATE OF OFFENCE:
1. Report of complaint : 18.11.2008
2. Apprehension of accused : 29.07.2009
3. Release of Bail : -
4. Commencement of trail : 25.01.2012
5. Close of trail : 04.02.2013
6. Sentence of order : 11.11.2013
EXP LANATION FOR THE DELAY:
The delay is due to non-production of witnesses by the complainant.
JUDGMENT IN CALENDAR CASE NO: C.C.No.275/2011 (Old C.C.No.12/2009 on the file of II Addl Chief Metropolitan Magistrate’s court, Visakhapatnam), on the file of I
SPECIAL MAGISTRATE COURT, VISAKHAPATNAM.
COMPLAINANT:
Sri Sarvasiddi Satyanarayana, S/o.late Lakshmi Narayana, Hindu, aged 45 years, residing at D.No.30-15-144/A, Dabagardens, Visakhapatnam.
ACCUSED:
Nutakki Venugopal Rao, S/o.N.Prasada Rao, Hindu, residing at D.No: 18-15- 144, 2nd Floor, Opposite to Subbirami Reddy Complex, Dabagardens, Visakhapatnam.
OFFENCE: Dishonour of cheque for insufficiency of funds and etc., punishable under section 138 of Negotiable Instruments Act.
FINDING : Accused is found guilty, for the offence under section 138 of Negotiable Instruments Act, 1881.
SENTENCE : In the result the accused is found guilty for the offence punishable under sec.138 of N.I.Act and the accused is convicted under sec.255 (2) Cr.P.C for the offence under section 138 of N.I.Act. the accused is sentenced to pay a fine of Rs.2,50,000/- (Rupees Two lakhs and fifty thousand only) for the offence U/Sec.138 of N.I.Act and in default under go SI for 6 months. Out of the fine amount collected from the accused a sum of Rs.2,00,000/- (Rupees Two lakhs only) shall be paid to the complainant, towards compensation U/Sec.357 (1) (b) Cr.P.C after the Appeal or Appeal time is over. The accused is informed about his right to prefer appeal with in 30 days to the
Sessions Court and to get a free copy of Judgment, which will be given today.
Special Magistrate-III, FAC Special Magistrate-I, Visakhapatnam.