Smt K.Sunitha

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IN THE COURT OF THE V ADDL.CHIEF METROPOLITAN

MAGISTRATE :VIJAYAWADA

Present: Smt K.SUNITHA,

V ADDL.CHIEF METROPOLITAN MAGISTRATE , Vijayawada

Tuesday, dated this the 24th day of January, 2017

C.C.No.145/2016

Between:

Muddada Ramu ...Complainant

And

Peethala Siva Kumar ... Accused

This case coming on 16.1.2017 for final hearing

before me in the presence of Sri M.Siva, Advocate for the complainant and of

Sri K.Dwaraka Ramesh, Advocate for the accused, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T;

1.This is a complaint filed by the complainant U/s.190 & 200 of the

Code of Criminal Procedure, 1973 against the accused for the offence punishable under Section 138 of Negotiable Instruments Act 1881.

2.The case of the complainant is that the accused borrowed an amount of Rs.1,50,000/- from him on 9.7.2014 and also an amount of

Rs.1,00,000/- on 28.7.2014 for family expenses and executed two promissory notes on respective dates in his favour agreeing to repay the amount with interest at 24% p.a. It is stated that on repeated demands the accused issued a cheque bearing No.011681 on 14.5.2015 drawn on The Durga Cooperative

Urban Bank Limited, Vijayawada, for Rs.2,00,000/- towards part payment of the debt due under promissory notes. The complainant presented the said cheque through his account in State Bank of Hyderabad, chittinagar branch,

Vijayawada for collection on 14.5.2015, but the same was returned dishonoured by the accused banker with endorsement "funds insufficient" through cheque return memo dated 16.5.2015 intimated to the complainant by his banker. It is stated that the accused had issued the cheque and induced the complainant to present the same for collection, but failed to arrange funds 2 for encashment and committed the offence punishable under section 138 and 142 of N.I. Act. Hence the complaint.

3.After recording the sworn statement of the complainant, the case was taken U/s.138 of N.I. Act against the accused and registered as

C.C.559/2015 by the learned Chief Metropolitan Magistrate, Vijayawada. Later it was transferred to this Court and renumbered as C.C.145/2016.

4.The accused appeared before the court in pursuant to the summons served on him was supplied with copies as required U/s.207 Cr.P.C.

He was examined u/s.251 Cr.P.C. on the substance of accusation for the offence U/s.138 of N.I.Act, he pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the complainant, the complainant by name Muddada Ramu is examined as P.W.1, and also examined the scribe by name M.Chenchaiah and second attestor Gujjari Appa

Rao as Pws 2 and 3. He also got marked Exs.P1 to P7.

6.After completion of the evidence on the side of the complainant, the accused was examined under Section 313 Cr.P.C., and he denied the incriminating material leveled against him. The accused did not adduce any oral and documentary evidence on his behalf.

7.Heard the counsels for complainant and the accused.

8.Now the points for determination are: -

1) Whether Ex.P3 cheque has been issued by the accused towards discharge of legal liability?

2)Whether Ex. P3 cheque was dishonoured on its presentation for insufficient funds?

3)Whether the complainant complied mandatory provisions of Section138(a) to (c) of N.I. Act?

4)Whether the complainant proves beyond reasonable doubt that accused without having necessary funds in his account issued Ex. P3 cheque towards discharge of his liability and failed to make payment to the complainant after its dishonour within stipulated period and thereby committed an offence punishable under Section 138 of the N.I. Act?

9. POINT No.1:-

According to the complainant examined as P.W.1, the accused borrowed Rs.1,50,000/- from him on 9.7.2014 and also an amount of

Rs.1,00,000/- on 28.7.2014 for family expenses and executed two promissory 3 notes on respective dates in his favour, agreeing to repay the amount with interest at 24% p.a. It is further stated that after repeated demands made by him the accused issued a cheque bearing No.011681 for Rs.2,00,000/- dated 14.5.2015 drawn on The Durga Cooperative Urban Bank Limited, Vijayawada towards the part payment of the above said debt.

10.In support of his oral testimony the complainant also got marked

Ex.P1 promissory note dated 9.7.2014 for Rs.1,50,000/- and Ex.P2 promissory note dated 28.7.2014 for Rs.1,00,000/- and Ex.P3 cheque bearing No.011681 datd 14.5.2015 for Rs.2 lakhs drawn on The Durga cooperative Urban Bank

Limited, Vijayawada besides other documents exhibited by him.

11.The complainant also examined the scribe of Ex.P2 promissory note and first attestor of Ex.P1 promissory note as PW2 and second attestor of

Ex.P1 promissory note as PW3. In their chief-affidavits, Pws 2 and 3 corroborated the respective transactions under Exs.P1 and P2 deposing that the said transactions took place in their presence. It is the evidence of PW2 that one Gujjari Appa Rao i.e., PW3 acted as attestor and Aepuganti Sai

Krishna as scribe along with him for Ex.P1 promissory note dated 9.7.2014 and one Peethala Rajeswari and P.Lakshmi acted as attestors for Ex.P2 promissory note. So also, it is the evidence of PW3 that Ex.P1 transaction took place in his presence and one Aepuganti Sai Krishna acted as scribe and one

Chenchaiah as another attestor along with him.

12.The counsel for the complainant submitted written arguments and argued that the accused did not adduce any evidence and on the other hand, the complainant could prove that the debt is legally enforceable debt by adducing oral and documentary evidence. The counsel for the accused also filed written arguments submitting that Ex.P1 promissory note is devoid of consideration and it is clear from the evidence of Pws 1 to 3 that Ex.P1 promissory note is fabricated and the complainant failed to discharge the initial burden, so as to shift the burden to the accused.

13. Sec.118(a) of N.I.Act states that: every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. Under Section 139 of the Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge, in whole or in part, of any debt or other liability.

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14.In the decision in Rangappa Vs. Mohan, reported in AIR 2001 SCC 2895, it was held that under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument(including a cheque) had been made or drawn for consideration. Under Section 139, the

Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus, in compliance under section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However the burden of proving that a cheque had not been issued for a debt or liability is on the accused.

The apex Court held that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so, is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence, which creates doubts about the existence of a legally enforceable debt or liability, the prosecution fail, 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.

It was also held that once the signature in the cheque has been admitted, the presumption is that the cheque has been issued for legally enforceable debt or liability, which is a rebuttable presumption. It can be proved by way of placing reliance on the prosecution materials by the accused to prove the defence or examining independent witness. The burden of the accused is to prove his defence by preponderance of probabilities and not by beyond reasonable doubt.

15.The accused did not adduce any direct evidence, as such, his defence is to be elicited from the cross-examination of PWs 1 to 3. It was suggested to Pws 1 to 3 in cross-examination that Exs.P1 to P3 in blank form were obtained from the accused towards security for chit transaction, so also, the signatures of wife and mother of the accused were obtained as attestors on blank promissory notes. It is clear from the said suggestion that the signatures on Exs.P1 and P2 promissory notes on Ex.P3 cheque are not disputed by the accused.

16.In view of admission of his signatures by accused on Exs.P1 and

P2 promissory notes and on Exs.P3 cheque in the light of the proposition of

Law laid down in case of Rangappa Vs. Mohan, , there arises a presumption 5 in favour of the complainant and against the accused that the promissory notes and cheques were issued by the accused in favour of the complainant for valid consideration and also the cheques in question were issued by the accused in discharge of his legally enforceable liability in terms of provisions of Section 118 and 139 of N.I. Act. It is well settled legal position that the aforesaid presumptions are rebuttable in nature and for rebuttal of the same it is not necessary for the accused to step into the witness box and he can rebut the same even by way of cross examination of the complainant's evidence and also by relying upon the material placed on record by the complainant.

The degree of proof required from the accused is preponderance of probabilities and the accused is not required to prove his defence beyond reasonable doubts. It is to be examined whether the accused has successfully rebutted the aforesaid presumptions in the light of evidence led on behalf of both the parties.Now, the burden is on the accused to show by preponderance of probabilities from the material and the evidence adduced by the complainant that ExP1 and P2 Promissory notes and ExP3 cheque in blank form are obtained from the accused towards security for chit transaction.

17.Coming to the cross examination of Pw1 i.e. Complainant, it is deposed by him that at present he had no avocation but previously worked as mutha worker. He has stated that the accused is a meat vendor and know him since long time. His evidence reveals that he does not know who scribed ExP2

Promissory note so also that ExP1 Promissory note was scribed by one Sai krishna as per the recitals there in. He deposes that one Chenchaiah subscribed his signature on ExP2 Promissory note as attestor. He admits that different colour ink pens are used in writing body portion and signature of the scribe in ExP1 Promissory note. He would state that he does not know where the accused got scribed ExP1 Promissory note. He denied the suggestion that

Ex.P3 cheque appear to be filled by three different persons and date is written with black ink pen and other columns filled with blue ink pen. It is his evidence that the accused himself gave filled cheque to him with his signature. His evidence discloses that he does not know who scribed ExP1 and

ExP2 Promissory notes.

18.PW1 denied the suggestion that the accused had not borrowed any amount from him and as a mutha worker he had no financial capacity to lend any amount. He deposes that he got own house, sundry shop and had monthly rental income of Rs 20,000/- over the house and got capacity to lend 6 amount. He denied the suggestion that he was conducting private chits and obtained ExP1 to P3 in blank form from the accused towards security for chit transaction with the signatures of the wife and mother of the accused on blank Promissory note as attestors. He further denied the suggestion that himself in collusion with M.Chenchaiah and Gujjari Apparao fabricated ExP1 to

P3 with the help of blank Promissory notes and cheques.

19.It is evident from the aforesaid evidence of PW1 that no suggestion was given to him regarding the properties deposed by him disputing his lending capacity except the mere suggestion that he had no lending capacity so also in regard to the private chits. In Sharada finance

Corporation v. L.Laxman Goud reported in 2004 (1) ALD (CRL.) 596, it is held that a mere suggestion to the complainant that he obtained a blank cheque from the accused without placing any other material to substantiate it is not sufficient to rebut the presumptions available in favour of the drawee/ payee of a cheque under Section 139 of the N.I Act. It is further held that once a fact has been stated by the witness and the same is neither denied nor disputed by the accused, it can be said that such a fact is admitted.

20.PW2 is examined as scribe of ExP2 Promissory note dated 28.7.2014 and first attestor to ExP1 Promissory note dated 9.7.2014. But in cross examination it is his evidence that he does not know who scribed ExP1 and P2 Promissory notes. He has stated that himself and one Gujjari Apparao subscribed their signatures on Promissory note dated 9.7.2014. He admits that he was not present at the time of scribing ExP1 Promissory note. He deposes that he subscribed his signature on scribed Promissory note brought to him.

However he denied the suggestion that himself along with the complainant and Gujjari Apparao misused the blank Promissory notes and cheques obtained from the accused towards chit transaction. He also deposes that he does not know the contents of his chief affidavit and signed the same at the request of the complainant.

21. PW3 deposes that he does not know whether the complainant is conducting private chits. He has stated that he does not know who scribed

ExP1 Promissory note as he was not present at the time of scribing ExP1

Promissory note. But he also denied the suggestion that himself along with the complainant and PW2 misused the blank Promissory notes and cheques obtained from the accused towards chit transaction. It is his evidence that he put his signatures on his chief affidavit after he read the contents therein.

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22.The counsel for the accused in the written arguments filed submitted that it is clear from the evidence of PW1 i.e., complainant that he does not know where Exs.P1 and P2 were executed and who scribed the said promissory notes, which creates doubt as to the execution of Exs.P1 and P2 and shows that devoid of consideration. It is argued that though PW1 denied the suggestion a perusal of Ex.P3 cheque clearly shows that two different ink pens were used and also contains three different handwritings to establish that cheque was fabricated. The counsel for the accused further argued that it is also the evidence of PW2 that he does not know who scribed Exs.P1 and

P2 promissory notes, so also, it is the evidence of PW3 that he does not know who scribed Ex.P1 promissory note from which it is clear that Ex.P1 promissory note is fabricated elsewhere and later obtained the signature of PW3 on it, as such, execution of Ex.P1 promissory note is not proved. It is argued that as the complainant could not prove the execution of Exs.P1 and P2 promissory notes, presumptions under the provisions of N.I. Act cannot be proved in his favour.

23.It is also argued by the defence counsel that it is crystal clear from the writings of Ex.P3 cheque that the complainant himself fabricated and misused the empty signed cheque and the court has got power to examine the same by invoking section 73 of Indian Evidence act and the complaint filed is not maintainable. It is also contended by the counsel for the accused that the blank cheque will not come within the definition of cheque and it is clearly proved by the accused that the cheque in dispute was tendered by him to the complainant's father towards security purpose, as such, the accused is entitled to clean acquittal. It is also argued that Ex.P5 legal notice was not served on the accused in compliance of ingredients of section 138 N.I. Act and complaint is not maintainable.

24.In the light of the arguments of the defence counsel on perusal of

Exs.P1 and P2 promissory notes dated 9.7.2014 and 28.7.2014, it is found that

PW2/M.Chenchaiah was shown as 1st attestor to Ex.P1 promissory note dated 9.7.2014 and scribe of Ex.P2 promissory note dated 28.7.2014. It is admitted case of the accused as per the suggestions given to PW1 i.e., complainant in cross-examination that the attestors to Ex.P2 promissory note dated 28.7.2014 namely Peethala Rajeswari and P.Lakshmi are none other his mother and wife. In their chief-affidavits, both Pws 2 and 3 namely 8

M.Chenchaiah and Gujjari Appa Rao corroborated the recitals of Exs.P1 and P2 promissory notes.

25.In cross-examination also, PW2/M.Chenchaiah categorically deposed that himself and Gujjari Appa Rao i.e., PW3 subscribed the signatures on Ex.P1 promissory note dated 9.7.2014 for Rs.1,50,000/-. Ex.P1 promissory note is found to be scribed by one A.Sai Krishna and it is revealed from the evidence of PW2 that he was not present at the time of scribing Ex.P1 promissory note. It is categorically deposed by him that he put his signature on the scribed promissory note brought to him. It is also pertinent to observe that it is also the evidence of PW1 i.e., complainant in his cross-examination that he does not know where the accused got scribed Ex.P1 promissory note.

The evidence of PW3 that he does not know who scribed Ex.P1 promissory note also in corroboration to the evidence deposed by Pws 1 and 2 that the accused himself got scribed Ex.P1 promissory note dated 9.7.2014 and signatures of Pws 2 and 3 were obtained subsequently.

26.It is evident that the accused could not elicit any probabilities from the cross-examination of Pws 1 to 3 to disprove the transaction under

Ex.P2 promissory note dated 28.7.2014. As it is elicited from the evidence of

Pws 1 to 3 that the accused himself brought the scribed promissory note under Ex.P1 dated 9.7.2014 and obtained the signatures of Pws 2 and 3 subsequently, he is estopped to contend that Ex.P1 promissory note is fabricated. Moreover, both Pws 2and 3 denied the suggestion that Exs.P1 and

P2 are fabricated with the help of blank promissory notes and cheques given towards security of the chit transaction. The accused could not show from the evidence of Pws 1 to 3 that PW1 i..e, complainant was conducting any private chits, so as to show by preponderance of probabilities that Exs.P1 and P2 promissory notes in blank form were given towards security of chit transaction.

27.In respect of Ex.P3 cheque, the counsel for the accused relied on several decisions regarding the recitals of cheque mentioned hereunder.

a)Avon Organics Limited, Hyderabad Vs. Poineer Products Limited, New Delhi and others, reported in 2003(2) ALD (Crl.) 219 (AP).

It is held that if a person delivers the cheque without putting the actual amount payable, it does not constitute the cheque within the meaning of Sections 5 and 6 and if consent is not given for which the amount is being drawn, it amounts to material alteration and cannot be enforced even though it is issued for legal liability.

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b) R.Indrasena Reddy, v.M.Prabhavathi and another in

Criminal Appeal No.439 of 2005, dated 17.8.2012 of Hon'ble A.P. High

Court.

It is held that the presumption, which is available under Section 139 of the N.I. Act can be rebutted by producing necessary evidence or he can also rely upon the evidence produced by the complainant and the material available on record without examining himself. The burden can be discharged by the accused on the basis of preponderance of possibilities. In the present case, the accused has not disputed her signature on Ex.P-1, the cheque. But according to her, the blank cheque was issued in favour of Ushodaya Finance Company in which complainant's son is a partner and the complainant misused the same for filing the complaint and she further pleaded that she has not borrowed any amount from the complainant and he has no capacity to lend the amount. Admittedly, the accused was working as a teacher as on that date and if really she has issued a cheque for Rs.1,90,000/- she would have written the blanks in the said cheque with her own hand writing. Thus, the complainant has scribed the same in his hand- writing supports the contention of the accused that she issued two blank cheques in favour of Ushodaya Finance Company. The above circumstances create a doubt with regard to lending of the money by PW.1 to the accused and the accused issued the cheque in favour of the complainant. Thus, the accused by relying upon the evidence produced by the complainant could able to rebut the presumption available under Section 139 of the N.I. Act by preponderance of possibilities. Thus, the trial Court has rightly held that the complainant has failed to establish the offence under Section 138 of the N.I. Act and rightly dismissed the complaint basing on the material available on record.

c) Sammeta Srihari Vs. State of A.P. in Crl. Appeal No.312 of 2008 vide Judgment dated 4-6-2014, decided by Hon'ble Dr. Justice B.Siva Sankara Rao.

It is held that - From the respective versions, coming to other probabilities, it is admitted by PW.1 that as unable to get over from appearance to a naked eye on a look at the Ex.P1 cheque, the cheque was filled with different writings of one pen for signature, admittedly of accused, another persons writing of the amount in words and figures with other pen and with overwriting even without initial of drawer for numeric 1 in of Rs.1,25,000/- and , after numeric 1 and no , after 25 and before 000; another persons writing of the name of payee and account number and another pen writing for date of cheque with other pen. When it was suggested that blank cheques obtained from accused as per practice of complainant and accused never borrowed from him such huge amount and one of the blank cheques was misused by fabrication for wrongful gain and without consent of accused and by material alteration. The complainant voluntarily deposed that the accused and her husband came to him and her husband filled all the contents therein and accused signed and they issued the duly filled cheque. Same is also belied from PW.1s cross-examination that more than three pens were used with more than three persons writings. From the above, it appears that the version of PW.1 is also untrue. To probablise the defence version and to say there is material alteration, had it been the version of PW.1, authorising to fill under Section 20 of the N.I. Act, the accused might not have the defence of material alteration, but for all the above, trial Court had rightly arrived at the 10 conclusion and thus for this Court with reference to the settled propositions in the factual matrix there is nothing to interfere with the trial Courts acquittal judgment, but for dismissal of the appeal by confirming it. Accordingly the point 1 is answered.

d) G. Veeresham vs S. Shiva Shankar, decided by the Hon'ble High Court of A.P., vide Judgment dated 26.6.2007.

It is held that In the instant case, the first respondent/accused is able to probabilize his defence through the cross-examination of PW.1. The very fact that the appellant/complainant has not placed on record any material to speak of the lending of Rs. 40,000/- as hand loan to the first respondent/accused is sufficient to infer that the first respondent/accused is able to rebut the presumptions available in favour of the appellant/complainant under Section 118 and 139 of the N.I. Act. The trial Court considered the evidence brought on record in right perspective and found the first respondent/accused not guilty for the offence under Section of the N.I. Act. I do not see any flaw in the judgment impugned in the appeal.

e) C.Antony Vs. K.Raghavan Nair, in Criminal Appeal No.1748 of 1996

dated 1.11.2002, decided by Hon'ble Supreme Court,

It is held that the cheque in question was filled up by the appellant and brought to the office of Vijaya Kumar could not be accepted because of the difference of the ink used in writing of the name and amount in the cheque and the ink used in the signature portion of the cheque. This is showed the case of the appellant that he had given a blank cheque signed was more probable.

28. As it is seen from the recitals of Ex.P3 cheque the date at the top is mentioned with blank ink pen and whereas the other recitals including the signature of the accused are written with blue ink pen. But, except the mere suggestion given to complainant i.e., PW1 and denied by him, the accused could not elicit any evidence to show that Ex.P3 cheque was fabricated by the complainant. It is also categorically deposed by PW1 i.e., complainant that the accused himself gave filled cheque with his signatures. It is not the case of the accused that he gave Ex.P3 cheque by mentioning the date and the signature. The accused could not show any probability that the complainant himself filled or got filled the blank cheque issued by him towards security of chit transaction. Even if it is assumed that blank cheque was filled by the complainant, no prudent man would use the different colour pens in filling the cheque with different writings in fabrication.

29.In D.Achyutareddy Vs State of A.P reported in 2010 (1)

A.L.D (Criminal) 59 (A.P) it is held that cheque need not necessarily be written by the accused and it can be in the writing of anybody also or typed on a machine and that the cheque can be filled by anybody if it is signed by 11 the account holder of the cheque. In the light of proposition of law laid down above there is no merit in the contention of the defence counsel. The Law laid down in the above referred decisions cited by the counsel for the accused is not applicable to the facts of this case as accused could not show by probable evidence that the complainant had no lending capacity and further Exs.P1 to

P3 were obtained from him towards security of the chit transaction. To sum up, the accused has failed to rebut the presumptions arising in favour of the complainant that the cheque in question was issued by accused for valid consideration and in discharge of his legally enforceable liability towards the complainant even by preponderance of probabilities.

Point No.1 is answered accordingly.

30. Point Nos.2 to 4:-

In order to prove the case u/s 138 of N.I. Act, the complainant was required to establish that the cheques were issued by accused in discharge of his legally enforceable liability towards the complainant and the same were dishonoured on presentation on account of insufficiency of funds in the bank account of accused and despite service of legal notice of demand within the meaning of proviso (b) to Section 138 of the

NI Act, the accused had failed to make the payment of cheques amount in question to the complainant within stipulated period of 15 days.

31.The complainant examined as PW1, also got marked Ex.P4 cheque return memo dated 16.5.2015 issued by State Bank of Hyderabad,

Service Branch, Vijayawada with endorsement 'funds insufficient' and Ex.P5 office copy of legal notice dated 22.5.2015, Ex.P6 postal receipt dated 22.5.2015 and Ex.P7 returned registered notice cover of the accused dated 23.5.2015 with endorsement 'refused'. There is no dispute between the parties either regarding the presentation of cheques in question or regarding the dishonour of the same due to insufficient funds. It is the argument of the counsel for the accused that Ex.P5 legal notice was not sent to the correct address of the accused. But, there is no whisper in the cross-examination of

PW1 giving any suggestion attacking the validity of legal notice on the ground that it was not sent to correct address. It is only suggested to PW1 that the complainant had no reference of Ex.P5 legal notice and return of notice under

Ex.P7. But denial of the said suggestion by the complainant could not fetch any probabilities in favour of the accused regarding Ex.P5 legal notice. As such, the contention of the defence is not tenable and the complainant could 12 prove that Ex.P5 legal notice was sent to the correct address of the accused and refused endorsement under Ex.P7 is deemed to be proper service.

Therefore, the factum of service of legal notice and non-payment of the cheque amount in question by the accused to the complainant are also not in dispute.

32.From the evidence adduced by both sides on record it is disclosed that the complainant could prove the ingredients of Sec.138 N.I. Act to show that the debt covered under Ex.P3 cheque is legally enforceable debt and the accused failed to rebut the presumptions drawn in favour of the complainant

U/s.118 (a) and 139 of N.I.Act by any cogent evidence. It has been established that having issued Ex.P3 cheque towards discharge of debt due under Exs.P1 and P2 promissory notes, the accused failed to make payment of the dishonoured cheque under Ex.P3 within 15 days of the receipt of Ex.P5 legal notice to the complainant, as such he is liable for punishment for the offence punishable U/s.138 r/w 142 of Negotiable Instrument Act.

The points Nos.2 to 4 are answered accordingly.

33.In the result, the accused is found guilty for the offence under

Section 138 r/w 142 of N.I.Act. and he is convicted U/s.255(2) of Cr.P.C.

Directly typed to my dictation by the Personal Assistant, corrected and pronounced by me in open Court, this the 24th day of January, 2017.

V ADDL.CHIEF METROPOLITAN MAGISTRATE,

VIJAYAWADA

34.Heard the accused in regard to quantum of sentence.

The accused stated that his wife and children are dependent on him and he is suffering from chronic disease namely Psoriasis and also from High Blood

Pressure and Diabetis and pleaded to take lenient view against him.

35.Having regard to the fact that the accused deliberately issued cheque without sufficient amount in his account, it is not a fit case to invoke the provisions of probation of offenders act, but inclined to take lenient view in consideration of the plea taken by him.

36.In the result, the accused convicted U/s.255(2) Cr.P.C. for the offence U/s.138 r/w 142 N.I. Act is sentenced to suffer simple imprisonment for 13 a period of one(1) year and to pay a fine of Rs.5,000/- (Five thousand only) in default to suffer simple imprisonment for three (3) months. The accused has not undergone any remand period to invoke the benefit under section 428

Cr.P.C.,.

37.The accused is informed of his right to prefer appeal and also to approach Mandal Legal Services Committee, Vijayawada for legal aid to engage a counsel if he has got no means.

Directly typed to my dictation by the Personal Assistant, corrected and pronounced by me in open Court, this the 24th day of January, 2017.

V ADDL.CHIEF METROPOLITAN MAGISTRATE,

VIJAYAWADA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:

PW1 : M.Ramu PW2 : M.Chenchaiah PW3 : G.Appa Rao

For Defence:

-None-

DOCUMENTS MARKED

For Complainant:

Ex.P1 : 9.7.2014 : Promissory note for Rs.1,50,000/- Ex.P2 : 28.7.2014 : Promissory note for Rs.1,00,000/- Ex.P3 : 14.5.2015 : Cheque bearing No.011681 drawn on Durga Cooperative Urban Bnak, Vijayawada Ex.P4 : 16.5.2015 : Cheque return memo issued by State Bank of Hyderabad, Vijayawada Ex.P5 : 22.5.2015 : Office copy of legal notice Ex.P6 : 22.5.2015 : Postal receipt Ex.P7 : 23.5.2015 : Returned registered notice cover

For Defence: -Nil- V ADDL.CHIEF METROPOLITAN MAGISTRATE,

VIJAYAWADA

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Calendar in C.C.No.145/2016 on the file of V Addl. Chief Metropolitan

Magistrate, Vijayawada.

OffencTaken ApprehensReleaCommenceClosure Date of Sentenc eon fileion of se on ment of trialof trialJudgmee or accusedBailntOrder 16.5.19.10.19.10.15--18.10.1614.12.124.1.17 24.1.17 556 Explanation for delay: Originally this case was taken on file under section 138 of N.I.Act in the Court of C.M.M., Vijayawada as C.C.No.559/2015. Subsequently the case was transferred to this Court as per the proceedings of Hon'ble Prl. District and Sessions Judge, Krishna, Machilipatnam. This record is received in this Court and renumbered as C.C.No.145/2016. The accused appeared before this Court and he was examined under section 251 Cr.P.C on 2.6.16 and he denied the offence. P.W.1 was examined on 18.10.16 and Exs,P1 to P7 got marked. On 16.11.16 Pw2 was examined and on 21.11.16 PW3 examined and on 25.1116 accused examined under Sec.313 and on 14.12.16 defence evidence closed. On 5.1.17 heard the arguments of complainant side and written arguments filed. On 16.1.17 defence side written arguments filed. Judgment was pronounced on 24.1.2017.

Judgment in Calendar Case No.145/2016 on the file of V Addl. Chief Metropolitan Magistrate, Vijayawada.

Muddada Ramu, S/o Mutyalu, Hindu, age 58 years, R/o D.No.5-6-59/70, ambedkar Nagar, Thammina Krishna Street, Beside Sairam Theatre, Vijayawada-9.

...Complainant

And

Peethala Siva Kumar, s/o late Sitharamaiah, Hindu, age 35 years, R/o D.No.4-28-1/29, Pendem Ramulu Street, T.M.H.High School, Tannerpet, Vijayawada-9.

... Accused

Offence: Dishonour of Cheque for insufficient funds Sec. Of Law : U/s.138 of N.I.Act. Finding : Accused found guilty. Result: In the result, the accused convicted U/s.255(2) Cr.P.C. for the offence U/s.138 r/w 142 N.I. Act is sentenced to suffer simple imprisonment for a period of one(1) year and to pay a fine of Rs.5,000/- (Five thousand only) in default to suffer simple imprisonment for three (3) months. The accused has not undergone any remand period to invoke the benefit under section 428 Cr.P.C.,. V Addl. Chief Metropolitan Magistrate,

Vijayawada.

Copy submitted to: The Hon’ble Metropolitan Sessions Judge, Vijayawada.I L

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IN THE COURT OF THE V ADDL.CHIEF METROPOLITAN

MAGISTRATE : VIJAYAWADA

Present: Smt K.SUNITHA,

V ADDL.CHIEF METROPOLITAN MAGISTRATE , Vijayawada

Friday, dated this the 23rd day of September, 2016

C.C.No.205/2012

Between:

Kuncham Savitri .... Complainant

And

Elipilla Venkateswara Rao.... Accused

This case coming on 7-9-2016 for final hearing before me in the presence of Sri B.Hari Bau, Advocate for the complainant and of Sri B.Atchuteswar, Advocate for the accused, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T;

1.This is a complaint filed by the complainant U/s.190 & 200 of the Code of Criminal Procedure, 1973 against the accused for the offence punishable under Section 138 of Negotiable Instruments

Act 1881.

2.It is the case of the complainant that the accused along with his wife by name Elipilla Lakshmi approached her and borrowed Rs.1,00,000/- on 25.1.2011 to meet family expenses and executed a promissory on the same day, agreeing to repay the amount with interest at 24% p.a., either to the complainant or her order on demand. On the same day, the accused also issued a cheque bearing No.828905 for Rs.1,00,000/- drawn on Andhra

Bank, Chitti Nagar Branch, Vijayawada with a specific instruction to the complainant to present the cheque in case of his failure to 2 pay back the amount with interest within the first week of

February,2011. On the instructions of the accused, the complainant has presented the cheque on 14.2.2011 for collection in her account in the bank, but the same was returned dishonoured for the reasons “funds insufficient” and “payment stopped by the drawer.”

3.It is further case of the complainant that she got issued demand legal notice dated 18.2.2011 to which accused got issued reply notice dated 28.2.2011 with false and untenable allegations.

Hence, the Complainant.

4.After recording the sworn statement of the complainant, the case was taken U/s.138 of N.I. Act against the accused and registered as C.C.No.466/2011 by the II Addl. Chief

Metropolitan Magistrate, Vijayawada. Later it was transferred to this Court and renumbered as C.C.No.205/2012.

5.The accused appeared before the Court in pursuant to the summons served on him. He was supplied with copies as required

U/s.207 Cr.P.C. On examination under Section 251 Cr.P.C., putting the substance of accusations leveled against him, the accused denied the accusations leveled against him and pleaded not guilty for the offence under Section 138 of the N.I.Act and claimed to be tried.

6.During the course of trial, the complainant by name Kuncham

Savitri is examined as PW1 and second attestor of promissory note by name Kumbha Ramu is examined as PW2 and scribe by name Banka Seshagiri Rao as PW3. She got marked Exs.P1 to P8.

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7.After completion of the evidence on the side of the complainant, the accused was examined under Section 313 Cr.P.C.

He denied the incriminating material leveled against him as false.

The accused by name Elipilla Venkateswara Rao is examined as

DW1 and also examined his wife by name Elipilla Lakshmi as DW2 and got marked Ex.D1. The evidence of DW2 in chief was eschewed, as she did not appear for cross-examination.

8.Heard the counsels for complainant and the accused.

9.Now the points for determination are: - "1) Whether complainant proves that Ex. P1 cheque has been issued by accused towards discharge of legal liability?

2) Whether complainant proves that Ex. P1 cheque was dishonoured on its presentation for insufficient of funds?

3) Whether complainant complied mandatory provisions of Section138(a) to (c) of N.I Act?

4) Whether complainant proves beyond reasonable doubt that accused without having necessary funds in his account issued Ex. P1 cheque towards discharge of his liability and failed to make good to the complainant after its dishonour within stipulated period and thereby committed an offence punishable under Section 138 of the N.I. Act?

10. POINT Nos.1 to 4:-

The complainant examined as PW1 reiterated the contents of the complainant in her chief affidavit. She has stated that the accused along with his wife approached her and borrowed

Rs.1,00,000/- from her on 25.1.2011 and executed promissory note on the same day. It is stated that the accused also issued a cheque bearing No.828905 for Rs.1,00,000/- drawn on Andhra

Bank, Chittinagar Branch, on 25.1.2011 itself to the complainant with a 4 specific instruction to present the said cheque in case he fails to repay the amount within the first week of February,2011.

Accordingly, the complainant had presented the said cheque for collection on 14.2.2011 in her account in the bank, but the same was returned dishonoured for the reasons 'funds insufficient and payment stopped by the drawer'. The accused got issued reply notice dated 28.2.2011 for the demand legal notice stated 18.2.2011 got issued by the complainant.

11. The complainant exhibited the promissosry note dated 25.1.2011 as Ex.P1, dishonoured cheque bearing No.828905,

dated 25.1.2011 as Ex.P2, Cheque dishonour memo issued by

Andhra Bank,Kothapet branch, Vijayawada, dated 14.2.2011 as

Ex.P3, Covering letter issued by the Andhra Bank, Kothapet branch, Vijayawada, dated 14.2.2011 as Ex.P4. She also got marked office copy of legal notice dated 18.2.2011 as Ex.P5, and

Certificate of posting receipt dated 19.2.2011 as Ex.P6, Returned registered notice cover of the accused dated 23.2.2011 as Ex.P7, and his reply notice dated 28.2.2011 as Ex.P8.

12. The complainant also examined the second attestor and scribe of Ex.P1 promissory note as Pws 2 and 3. They also corroborated with the complainant as to the execution of Ex.P1 promissory note and issue of cheque under Ex.P2 by the accused in their chief-affidavits. It is also stated by them that they were informed by the complainant that the cheque presented for collection as per the instructions of accused was returned dishonoured.

13. The accused examined him as DW1 stated in the chief- affidavit that he along with his wife borrowed an amount of 5

Rs.1,00,000/- each from the complainant in the month of January, 2010. At that time, the complainant collected one promissory note for

Rs.1,00,000/- scribed by him in regard to the description of the value of the amount, other details kept blank and containing his signature, one cheque bearing No.828905 drawn on Andhra Bank,

Chittinagar branch, Vijayawada issued by him, one promissory note for Rs.1,00,000/- scribed by him in regard to the description of the value of the amount, other details kept blank and containing the signature of his wife and cheque bearing

No.828909 drawn on Andhra Bank, Chittinagar branch, Vijayawada issued by his wife Elipilla Lakshmi.

14. DW1 i.e., the accused categorically denied the receipt of amount of Rs.1,00,000/- from the complainant on 25.1.2011 and also the execution of the promissory note and issue of cheque under Exs.P1 and P2 on that day. It is also stated that on the pressure and harassment of the complainant and her friend by name Banka Nagamani in the month of March, 2010, the accused and his wife were forced to discharge the debt due to the complainant and thus total amount of Rs.2,00,000/- was transferred from their joint account to the account of the complainant through the cheque bearing No.828910 dated 31.3.2010. It is stated that the complainant did not return the promissory note and cheques in her custody kept as collateral security and further demanded an extra amount of Rs.50,000/- even after the discharge of the debt due to her for return of the documents. It is also stated that the accused and his wife accepted to pay Rs.40,000/- as against the demand of Rs.50,000/- for return of the documents from the complainant, having got good reputation in the Society. It is further stated that the accused and his wife jointly paid the said amount of Rs.40,000/- to 6 the complainant from April, 2010 to November, 2010 at Rs.5,000/- per month. It is stated that the complainant did not return the documents kept as collateral security even after the payments as such the accused and his wife reported the matter in

II-Town Police Station, Vijayawada and a case in Cr.No.69/2011

dated 12.2.2011 under sections 447 and 509 IPC was also

registered against the complainant.

15. Ultimately, it is the defence of the accused that the complainant fabricated Ex.P1 promissory note and Ex.P2 cheque in connivance with the attestors and scribe to get wrongful gain.

It is also stated that the complainant also organized a press meet with baseless allegations against the accused and his wife and got published the same in Sakshi Telugu Daily News Paper on 11.2.2011 and the accused condemned the said allegations vide publication on 13.2.2011. He got marked Ex.D1 press statement given by the complaiant in Sakshi Telugu News Paper dated 11.2.2011.

16. Now it is to be examined whether the complainant has proved the ingredients of the offence under Section 138 N.I. Act.

The Hon'ble Supreme Court in Kusum Ingots & Alloys Pvt. Ltd.

vs. Pennar Peterson Securities Ltd. & others reported in

AIR 2000 SC 954 in paragraph 10 mentioned the following five ingredients as follows :--

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;

(ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, which is earlier;

(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is 7 insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within 15 days of the receipt of information by him form the bank regarding the return of the cheque as unpaid;

(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of said notice."

17. The oral evidence of Pws 1 to 3 coupled with Exs.P1 to P8 primafacie proves the ingredients of Section 138 of N.I. Act. Ex.P2 cheque bearing No.828905 dated 25.1.2011 shows that the said cheque was drawn on an account maintained by the accused in

Andhra Bank, Chittinagar branch, Vijayawada which is not in dispute. As such, the first ingredient of the offence stands proved.

As the signature on Ex.P1 promissory note and Ex.P2 cheque is admitted by the accused, the presumption raised under section 139 of N.I. Act that issuance of cheque in discharge of legal liability is also stands proved. It is evident from the evidence adduced by the complainant as PW1 that Ex.P2 cheque was presented to her bank i.e., Andhra Bank, Chittinagar branch,

Vijayawada within a period of six months from the date mentioned on it and under Exs.P3 and Ex.P4 cheque return memo, the cheque was dishonoured with endorsement 'insufficient funds' and 'payment stopped by drawer' which discloses that the cheque was returned unpaid. Ex.P5 legal notice and Ex.P6 certificate of posting receipt, so also Ex.P7 returned notice and Ex.P8 reply notice proves that the demand notice was issued to the accused and served on him on the correct address. It is also evident that the accused did not make the payment of cheque amount within 15 days from receipt of legal notice, which is also not controverted 8 by him. So the complainant has discharged the initial burden of proving his case beyond reasonable doubt by satisfying the above referred ingredients of Section 138 N.I. Act.

18. Since the accused has admitted his signatures on the cheque, prima facie, it is proved that the cheque was issued to the complainant by the accused towards debt or liability.

Consequently, the presumption under Section 118(a) and 139 of

N.I. Act would also arise in favour of the complainant.

There is a presumption in favour of the complainant u/s 118

(a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.

Further, Section 139 of the Negotiable Instruments Act, provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability. After the establishment of the fact that cheque was issued by the accused and specific statement of the complainant, the burden to rebut the presumption raised under

Section 139 N.I. Act shifts to the accused.

19. It is held in K.Rajendran Vs A.J.Yuvaraj Reddy and another reported in 2012(2) A.LD (Criminal) 682 (AP) that if the accused admitted the signature on cheque, the burden is on accused to prove as to why he issued the said cheque and under what circumstances it was issued.

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20. Now, the onus is upon the accused to come up with probable defence to rebut presumption raised against him and put the burden back on the complainant.

21. It is an established principle of law that presumption raised under Section 139 and 118 N.I. Act can only be rebutted by leading cogent evidence. The accused can examine his own witnesses and can also cross examine the complainant and his witnesses. In “Kumar Exports Vs. Sharma Carpets” reported in (2009) 2 SCC 513 it was held by Hon'ble Supreme Court as follows:- "To rebut the statutory presumptions, an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated."

22. The Apex Court in Narayan Menon Vs State of Kerala, reported in AIR 2006 SC3366 held that once the complainant shown that the cheque was drawn by the accused on the account maintained by him with a banker for payment of any amount in favour of the complainant from out of that account for its discharge and the same when presented returned by the Bank unpaid for insufficiency of funds or exceeds arrangement, such person shall be deemed to have been committed an offence under

Section 138 of N.I. Act. What Section 139 of the Act speaks of the presumption against the accused to rebut is the holder of a cheque received the cheque of the nature referred in Section 138 of the Act for discharge of debt. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said 10 purpose, the evidence adduced on behalf of the complainant could be relied upon. Accused need not enter into the witness box and examine other witnesses in support of his defence. Accused need not disprove the prosecution case in its entirety. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".

23. In the decision in Rangappa Vs. Mohan, reported in AIR 2001 SCC 2895, it was held that under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable

Instrument(including a cheque) had been made or drawn for consideration. Under Section 139, the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus, in compliance under section 138, the Court has to presume that the cheque had been issued for a debt or liability.

This presumption is rebuttable. However the burden of proving that a cheque had not been issued for a debt or liability is on the accused.

The apex Court held that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so, is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence, which creates doubts about the existence of a legally enforceable debt or liability, the prosecution fail, 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.

It was also held that once the signature in the cheque has been admitted, the presumption is that the cheque has been issued for legally enforceable debt or liability, which is a rebuttable presumption. It can be proved by way of placing 11 reliance on the prosecution materials by the accused to prove the defence or examining independent witness. The burden of the accused is to prove his defence by preponderance of probabilities and not by beyond reasonable doubt.

24. In the instant case at hand, the accused adduced evidence on his behalf in support of his defence. In view of the dictum laid down above, he is at liberty to rebut the presumption under section 139 N.I. Act by placing reliance on the evidence adduced by the prosecution and also the material submitted besides his evidence. As per the defence taken by him, he along with his wife borrowed amount of Rs.1,00,000/- each from the complainant in January, 2010 and discharged the said debt in March, 2010, so also paid extra amount of Rs.40,000/- to the complainant against her demand. He denied the execution of Ex.P1 promissory note and Ex.P2 cheque on 25.2.2011 contending that the said documents are obtained from him towards collateral security of the debt due by him in the month of January, 2010. Therefore, the cross-examination of the complainant examined as PW1 is to be looked into for the defence of the accused.

25. In the cross-examination, the complainant i.e., PW1 deposes that she got the amount of Rs.1,00,000/- out of sale of the house property given by her mother to her, as she sold the said house for an amount of Rs.15,00,000/-. She would state that she got good acquaintance with the accused residing in the same street.

According to her, the accused and his wife came to her house and asked her to lend money on 25.1.2011 and executed promissory note in the presence of Pila Lokeshwara Rao, Kumba Ramu and

Banka Seshagiri stating that amount will be repaid by 25.2.2011 and also issued Ex.P2 cheque on 25.1.2011 itself.

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26. PW1 also admits that an amount of Rs.2,00,000/- was transferred by the accused to her account in the year, 2010, but the said amount was in regard to the transaction of that year. It is her evidence that she cannot give the cheque number for

Rs.2,00,000/- remitted in her account. She also deposes that the present cheque case is prior to the cheque realized for an amount of Rs.2,00,000/- on 31.3.2010. She also admits that she received an amount of Rs.5,000/- continuously from the accused from

March, 2010 onwards. However, she denied the suggestion that she used the old cheque given for collateral security and there is no legally enforceable debt in between herself and accused. She also denied the suggestion that a Panchayat was held for the earlier transaction and interest amount was settled for Rs.50,000/- payable by the accused to her.

27. From the aforesaid evidence of complainant it is clear that the accused got earlier monitory transactions with complainant and also paid an amount of Rs.2,00,000/- to her in the year, 2010 by way of account transfer. It is only suggested to her by the accused that she lent money to the accused on 4.1.2010 and used the cheque issued for that debt in the presence case. However,

PW1 denied the said suggestion and nothing was elicited through her evidence to show that the accused and his wife borrowed money from her on 4.1.2010 and amount of Rs.2,00,000/- remitted by the accused was in respect of the said debt. As per the version of the accused, blank promissory notes and cheques containing the signatures of himself and his wife were obtained by the complainant towards collateral security and used them in filing the complainant. But no such suggestion was given to the complainant, so also, in regard to the mode of alleged discharge as contended by the accused in his chief-affidavit.

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28. Pws 2 and 3 stick to their version as to the execution of Ex.P1 promissory note by the accused in favour of the complainant in their cross-examination. They were subjected to cross- examination by the defence meticulously, but nothing was elicited to discredit their testimony. On the other hand, they categorically deposed that the accused received Rs.1,00,000/- from the complainant informing that he will pay the entire amount within 15 days, and executed promissory note. Both of them denied the suggestion that taking advantage of the promissory note in her custody, the complainant filed false case against the accused.

29. Coming to the evidence of DW1 i.e., the accused, he categorically admits that signatures on Exs.P1 and P2 belongs to him. It is also his evidence that civil suits filed by the complainant against himself and his wife are also pending on the file of III Addl.

Senior Civil Judge, Vijayawada and both of them were contesting

the said suits. He also deposes that he got issued Ex.P8 reply notice 17 days after the publication of statement under Ex.D1. It is his evidence that in Ex.P8 reply notice, he has mentioned that he borrowed amount and subsequently discharged the amount.

He would state that he does not know the mode of discharge mentioned in the reply notice by his counsel. He admits that in

Ex.D1 publication, the complainant has stated that he borrowed

Rs.4,00,000/- from her and repaid only Rs.2,00,000/-, out of

Rs.4,00,000/-.

30. It is clear from the evidence adduced by the defence that absolutely, there is no evidence on record with regard to the alleged discharge of debt due to the complainant, except the bare contention. It is also evident that the accused did not take any steps to get the return of documents alleged to have given to the complainant towards collateral security or got issued any notice to 14 the complainant for the return of the said documents. It is also disclosed from his evidence that he got issued Ex.P8 reply notice after giving press statement under Ex.D1 by the complainant, which is after though and to evade the payment of debt due under

Ex.P2 cheque.

31. It is the argument advanced by the counsel for complainant that the suggestions given by the defence would suggest the affinity between the complainant and the accused and further the evidence adduced by the accused is not reliable. It is also the argument that the accused could not elicit any probabilities from the cross-examination of Pws 1 to 3 to disprove their evidence by preponderance of probabilities in rebutting the presumption under section 139 N.I. Act. As such, the accused is liable to be convicted for the offence under Section 138 N.I. Act.

32. The counsel for the accused argued that the evidence of the complainant in cross-examination discloses that the accused paid

Rs.2,00,000/- to her from which it is clear that with the help of discharged promissory note and the cheque issued towards collateral security, a false complaint is lodged against the accused.

33. But it has been revealed from the aforesaid testimony of Pws 1 to 3 that the amount was lent to the accused on 25.2.2011 on execution of Ex.P1 promissory note and the cheque under Ex.P2.

The said testimony of Pws 1 to 3 is not controverted by the defence. From the suggestions given to Pws 1 to 3, it has been elicited that there is every probability of lending money to the accused, as any of the circumstances were elicited by the defence to show that accused discharged the debt due under Ex.P1 promissory note. Except the bare suggestions given to the 15 complainant and Pws 2 and 3, and denied by them, the defence could not elicit any probabilities from their cross-examination to show that Ex.P2 cheque was issued by the accused in blank form towards collateral security of the earlier debt.

34. It is also the contention of the accused and suggestion given to the complainant and denied by her that due to differences with the complainant, Ex.P2 cheque was created. But the accused did not adduce any evidence to show that he had any such differences with the complainant except the fact that disputes arose with the complainant when the accused and his wife failed to discharge the debt due under Ex.P1 promissory note and she further gave statement under Ex.D1. As such, the said contention of the defence is not tenable and Ex.D1 relied upon him is in admissible in evidence and no way helpful to the defence taken by him.

35. In K.N.Beena Vs. Muniyappan & Another reported in

AIR 2001 SC 2895 at paragraph 7, it was observed: In this case admittedly the accused has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denial of averments in his reply dated 21.5.1993 were sufficient to shift the burden of proof on to the complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The accused had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The accused not having led any evidence could not be said to have discharged the burden of proving that the cheque was not issued for a debt or liability.

36. In Sharada Finance Corporation Vs. Laxman Goud, reported in2004 (1) ALD (CRL.) 596, it is held that a mere 16 suggestion to the complainant that he obtained a blank cheque from the accused without placing any other material to substantiate it is not sufficient to rebut the presumptions available in favour of the drawee/payee of a cheque under section 139 of the N.I.Act. It is further held that once a fact has been stated by the witness and the same is neither denied nor disputed by the accused, it can be said that such a fact is admitted.

37. In the case at hand also, the accused could not place any material to substantiate his contention that Ex.P1 promissory note and Ex.P2 cheque in blank form were given to the complainant towards collateral security. As such, it cannot be said that the accused could rebut the presumption under section 139 N.I. Act to hold that Ex.P2 cheque was not issued towards discharge of legally enforceable debt.

38. For the foregoing discussion, it is held that the complainant discharged the burden of proving the legally enforceable debt beyond reasonable doubt. Whereas the accused could not rebut the presumption under section 139 N.I. Act drawn in favour of the complainant by preponderance of probabilities. Therefore, it is held that the complainant could prove the guilt of the accused for the offence under Sec.138 of N.I. Act beyond all reasonable doubt.

Accordingly, Points are answered.

39.In the result, the accused is found guilty for the offence under Section 138 r/w 142 of N.I.Act. and he is convicted U/s.255 (2) of Cr.P.C.

Directly typed to my dictation by the Personal Assistant, corrected and pronounced by me in open Court, this the 23rdday of September, 2016.

17

Sd/- K.SUNITHA

Rao V Addl. Chief Metropolitan Magistrate, Vijayawada.

40.Heard the accused in regard to quantum of sentence.

41.The accused stated that he is having little children.

42.It is found from the evidence adduced on record that the accused deliberately evaded to make payment of cheque issued by him in favour of the complainant without having sufficient funds in his account and also stopped payment. Therefore, I did not find any merit to invoke the provisions of Probation of

Offenders Act and 360 Cr.P.C. and also to take lenient view.

43.In the result, having considered the plea, the accused convicted U/s.255(2) Cr.P.C. for the offence U/s.138 r/w 142 N.I.

Act is sentenced to suffer simple imprisonment for a period of SIX (6) Months and to pay a fine of Rs.10,000/- (rupees ten thousand only) in default to suffer simple imprisonment for three (3) months.

44.The accused is informed of his right to prefer appeal and also to approach Mandal Legal Services Committee,

Vijayawada for legal aid to engage a counsel if he has got no means.

Directly typed to my dictation by the Personal Assistant, corrected and pronounced by me in open Court, this the 23rdday of September, 2016.

Sd/- K.SUNITHA

18

Rao V Addl. Chief Metropolitan Magistrate, Vijayawada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:

PW1:Kuncham Savitri PW2:Kumbha Ramu PW3:Banka Seshagiri Rao

For defence: DW1. Elipilla Venkateswara Rao DW2:Elipilla Lakshmi (Eschewed)

DOCUMENTS MARKED

For Complainant:

Ex.P1 : dt.25.1.2011: Promissory note Ex.P2 : dt.25.1.2011:Cheque bearing No.828905 drawn on Andhra Bank, Chittinagar branch, Vijayawada Ex.P3 : dt.14.2.2011: Cheque dishonour Memo issued by Andhra Bank, Chittinagar branch, Vijayawada Ex.P4 : dt.14.2.2011: Covering letter issued to the complainant by Andhra Bank, Chittinagar branch, Vijayawada Ex.P5 : 18.2.2011 : O/c of legal notice Ex.P6 : 19.2.2011 : Certificate of posting receipt Ex.P7 : 23.2.2011 : Returned cover Ex.P8 : 28.2.2011 : Reply notice got issued by accused.

FOR DEFENCE:

Ex.D1 : 11.2.2011 : Original Sakshi News Paper(Article published in the press meet organized by the complainant).

Sd/- K.SUNITHA

V Addl. Chief Metropolitan Magistrate, Vijayawada.

19 // True Copy //

V Addl. Chief Metropolitan Magistrate,

Vijayawada.

Calendar in C.C.No.205/2012 on the file of V Addl. Chief Metropolitan

Magistrate, Vijayawada.

OffenceTaken on AppreheReleaCommenClosure Date of Sentence filension of se on cement of trialJudgmeor Order accusedBailof trialnt 25-1-1123-6-118-9-11--12-4-12 5-2-1623-9-16 23-9-16 Explanation for delay: Originally this case was taken on file under section 138 of N.I.Act in the Court of the II Addl. Chief Metropolitan

Magistrate, Vijayawada as C.C.No.416/2011 and transferred to this

Court and renumbered as C.C.205/2012, vide Dis.No.2429, dt.11.6.12 and posted to 3.8.12. On 8.9.11 accused was present and copies of documents furnished. The accused was examined u/s.251 Cr.P.C. On 1.11.12 PW1 was examined and Exs.P1 to P8 marked and Pws 2 and 3 were also examined evidence closed on 4.6.14. On 16.6.14 the accused was examined u/s.313 Cr.P.C.,. On 31.7.14 DW1 was examined and DW2 chief-affidavit filed on 28.11.14. On 7.9.16 arguments heard. On 23.9.2016 Judgment pronounced.

20

Judgment in Calendar Case No.205/2012 on the file of V Addl. Chief Metropolitan Magistrate, Vijayawada.

Smt.Kuncham Savitri, D/o Somulu, Hindu, age 40 years, R/o D.No.4-2-173, Anjaneya Swamy Vagu, Kothapet, Vijayawada.

.... Complainant

And

Elipilla Venkateswara Rao, S/o Adinarayana, Hindu, age 35 years, business, R/o D.No.4-2/4-55, Idgah Mahal Road,

Chittinagar, Vijayawada-520001. .... Accused

Offence: Dishonour of Cheque for Insufficient Funds and Payment stopped by drawer Sec. of Law : U/s.138 of N.I.Act. Finding : Accused found guilty. Result: In the result, having considered the plea, the accused convicted U/s.255(2) Cr.P.C. for the offence U/s.138 r/w 142 N.I. Act is sentenced to suffer simple imprisonment for a period of SIX (6) Months and to pay a fine of Rs.10,000/- (rupees ten thousand only) in default to suffer simple imprisonment for three (3) months.

Sd/- K.SUNITHA

V Addl. Chief Metropolitan Magistrate, Vijayawada. Copy submitted to: The Hon’ble Metropolitan Sessions Judge, Vijayawada. // True Copy //

V Addl. Chief Metropolitan Magistrate,

Vijayawada.

21

In the Court of V Addl. Chief Metropolitan Magistrate, Vijayawada.

C.C.205/2012

Plea of the accused convicted U/s.255(2) Cr.P.C.

NAME: RELIGION:

Father's Name: CALLING:

VILLAGE: AGE:

MANDAL: DATE: 23-9-2016

1. Do you wish to say anything in regard to quantum of sentence? Ans:

2. Do you have means to engage the counsel to prefer appeal? Ans:

22

IN THE COURT OF THE V ADDL.CHIEF METROPOLITAN MAGISTRATE :

VIJAYAWADA

Present: Smt K.SUNITHA,

V ADDL.CHIEF METROPOLITAN MAGISTRATE , Vijayawada

Friday, dated this the 27th day of January, 2017

C.C.No.150/2016

Between:

Mulpuri Rama Gopala Rao .... Complainant

And

Chunduri Ashok Rao.... Accused

This case coming on 18.1.2017 for final hearing before me in the presence of Sri S.Bala Gopal, Advocate for the complainant and of Sri

S.D.Srinivasa Rao, Advocate for the accused, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T;

1. This is a complaint filed by the complainant U/s.190 & 200 of the Code of

Criminal Procedure, 1973 against the accused for the offence punishable under Section 138 of Negotiable Instruments Act 1881.

2. It is the case of the complainant that the accused borrowed an amount of

Rs.3,00,000/- from him on 31.12.2012 for his business improvement and executed a promissory note in his favour, agreeing to repay the amount with interest at 24% p.a, either to the complainant or to his order on demand.

3. It is stated that on several demands, the accused had issued a cheque bearing No.945879 dated 13.3.2014 for Rs.3,00,000/-, drawn on Karnataka

Bank Limited, Main branch, Vijayawada, towards part-payment of the debt due under the promissory note. The complainant presented the said cheque through his account in Federal Bank, Service branch, Vijayawada for collection on 13.3.2014, but the said cheque was returned dishonoured by the banker with endorsement "funds Insufficient" on 15.3.2014. Thereupon, the complainant got issued legal notice dated 24.3.2014 to the accused demanding for payment of cheque amount through registered post. The accused received the said notice on 25.3.2014, but did not give any reply nor choose to comply with the demand of the complainant. Hence the complaint.

4. After recording the sworn statement of the complainant, the case was taken U/s.138 of N.I. Act against the accused and registered as

C.C.No.816/2014 by the Chief Metropolitan Magistrate, Vijayawada. Later it was transferred to this Court and renumbered as C.C.No.150/2016.

5. The accused appeared before the court in pursuant to the summons served on him was supplied with copies as required U/s.207 Cr.P.C.,. He was examined u/s.251 Cr.P.C. on the substance of accusation for the offence U/ s.138 of N.I.Act, to which, he pleaded not guilty and claimed to be tried.

6. During the course of trial, the complainant by name Mulpuri Rama Goapla

Rao, was examined as P.W.1. He got marked Exs.P1 to P6.

7. After completion of the evidence on the side of the complainant, the accused was examined under Section 313 Cr.P.C., and he denied the incriminating material leveled against him as false. The accused namely

Chunduri Ashoka Rao was examined as DW1, but no documentary evidence was adduced on his side.

8.Heard the counsels for complainant and the accused.

9.Now the points for determination are: - "1) Whether Ex. P2 cheque has been issued by accused towards discharge of legal liability?

2) Whether Ex. P2 cheque was dishonoured on its presentation for insufficient of funds?

3) Whether complainant complied mandatory provisions of Section138

(a) to (c) of N.I. Act?

4) Whether complainant proves beyond reasonable doubt that accused without having necessary funds in his account issued Ex. P2 cheque towards discharge of his liability and failed to make payment to the complainant after its dishonour within stipulated period and thereby committed an offence punishable under section 138 of the N.I. Act?

10. POINTS NO.1 to 4:-

As per the case of the complainant examined as PW1, the accused borrowed an amount of Rs.3,00,000/- from him on 31.12.2012 for his business improvement and executed a promissory note in his favour, undertaking to repay the amount with interest at 24% p.a, either to the complainant or to his order on demand. It is stated that the promissory note was scribed by Shaik Shafi and attested by A.V.Ramana. It is stated in further that on several demands, the accused had issued a cheque bearing

No.945879 dated 13.3.2014 for Rs.3,00,000/-, drawn on Karnataka Bank

Limited, Main branch, Vijayawada, towards part-payment of the debt due under the promissory note.

11.It is further stated that the complainant presented the said cheque through his account in Federal Bank, Service branch, Vijayawada for collection on 13.3.2014, but the said cheque was returned dishonoured by the banker with endorsement "funds insufficient" on 15.3.2014. Thereupon, he said to have got issued legal notice dated 24.3.2014 to the accused demanding for payment of cheque amount through registered post. The accused received the notice on 25.3.2014 and kept quiet without complying the demand.

12.The complainant also got marked Ex.P1 Promissory note, dated 31.12.2012, Ex.P2 cheque bearing No.945879, dated 13.3.2014 for

Rs.3,00,000/- drawn on Karnataka Bank Limited, Main branch, Vijayawada, issued by the accused. Ex.P3 is cheque return memo, dated 15.3.2014 issued by Federal Bank, Vijayawada with endorsement funds insufficient,

Ex.P4 office copy of the legal notice, dated 24.3.2014 and Ex.P5 Postal acknowledgement of the accused, dated 26.3.2014. Ex.P6 Postal acknowledgement of the accused served through Court.

13.The counsel for the complainant submitted that the complainant examined himself as PW1 and got marked Exs.P1 to P5 in support of his case.

It is stated that the evidence of complainant as to the execution of promissory note, issue of cheque and dishonor of the same and also legal notice could not be rebutted by the accused during the cross-examination. It is further argument of the counsel for the complainant that the accused failed to establish his defence that the complainant is conducting private chits and obtained two blank signed promissory notes and cheques towards collateral security of the chit bid amount. It is submitted that the accused admitted his signature on Ex.P1 promissory note, as well as Ex.P2 cheque and the complainant succeeded in proving the guilt of the accused beyond all reasonable doubt and the accused is liable for conviction for the offence under section 138 of N.I. Act.

14.The counsel for accused submitted that it is admitted by PW1 i.e., complainant that he received payments from the accused and also received

Rs.25,000/ from his employee by name Sailaja- subsequent to filing of the complaint, from which it is evident that the said payments are made by the accused towards chit transaction. It is also argued that the accused could adduce the probable evidence to show that Exs.P1 and P2 are fabricated by the complainant with the help of blank promissory note and cheque given towards security of chit transaction by the accused. It is further argued that the complainant could not prove that Ex.P2 cheque was issued towards discharge of legally enforceable debt, hence the accused is entitled to acquittal for the offence Under section 138 of N.I. Act.

15.The five essential ingredients for completing the offence under

Section 138 of the Act are :

i) Drawing of the cheque, ii) Presentation of the cheque with the bank, iii) Returning of the cheque unpaid by the drawee bank, iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and

v) Failure of the drawer to make payment within 15 days of the receipt of the notice.

16.The accused examined as DW1 admitted his signatures on Ex.P1 promissory note and Ex.P2 cheque confronted to him in his cross- examination. In view of admission of his signatures by accused on Exs.P1 promissory note and on Ex.P2 cheque in the light of the proposition of Law laid down in case of Rangappa Vs Mohan, reported in AIR 2010 SC 1898, there arises a presumption in favour of the complainant and against the accused that the promissory note and cheque was issued by the accused in favour of the complainant for valid consideration and also the cheque in question was issued by the accused in discharge of his legally enforceable liability in terms of provisions of Section 118 and 139 of N.I. Act. It is well settled legal position that the aforesaid presumptions are rebuttable in nature and for rebuttal of the same it is not necessary for the accused to step into the witness box and he can rebut the same even by way of cross examination of the complainant's evidence and also by relying upon the material placed on record by the complainant. The degree of proof required from the accused is preponderance of probabilities and the accused is not required to prove his defence beyond reasonable doubt.

17. In Kumar Exports Vs. Sharma Carpets, reported in (2009) 2 SCC 513, the apex Court held that the accused in a trial under Section 138 of the

Negotiable Instruments Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions, an accused is not expected to prove his defence beyond reasonable doubt, as is expected of the complainant in a criminal trial.

18. The point falls for consideration is whether the accused has successfully rebutted the aforesaid presumptions in the light of evidence led on behalf of both the parties.In the case at hand, as per the evidence adduced by the accused as DW1, the complainant is conducting private chits at Vijayawada, and he is one of the chit holder for chit of Rs.5 lakhs commenced from 1.1.2013 to 12.8.2014 for a term of 20 months with monthly installment at

Rs.25,000/-. It is further evidence of DW1 that he paid monthly installments of the said chit to the complainant without fail and he was declared as chit bidder on 1.10.2013. It is stated that DW1 was paid the chit bid amount by the complainant at Vijayawada in the presence of one Jampala Sailaja and at that time, the complainant obtained two blank signed promissory notes and cheques from him towards collateral security of chit bid amount.

19.It is the further evidence of DW1 that subsequently, he paid the monthly installments regarding the chit in cash when the complainant visited his shop. He has stated that the remaining monthly installments amount was deposited in the account of the complainant bearing No.032210011886379 in

Andhra Bank, Krishnalanka Branch, Vijayawada. According to DW1, he has deposited Rs.13,000/- on 20.4.2013, Rs.2,000/- on 24.7.2013, Rs.10,000/- on 24.12.2013. He would state that he fell due an amount of Rs.25,000/- towards balance of chit installments and also Rs.5,000/- imposed towards interest in total Rs.30,000/- due to the complainant as penalty. He further deposes that subsequent to filing of the complaint, he has deposited

Rs.25,000/- in the account of one Jampala Sailaja, staff of the complainant on 30.12.2014, as per the directions of the complainant.

20.It is contended by DW1 i.e., accused that he never borrowed huge amount from the complainant and Ex.P1 promissory note and Ex.P2 cheque were got pressed into service by the complainant in connivance with his kith and kin. He has stated that he never saw the faces of attestors and the scribe of Ex.P1 promissory note. In view of the above said version of the accused, now the burden is on him to prove by preponderance of probabilities that the complainant is conducting private chits and the accused subscribed chit with him and Exs.P1 and P2 in blank form were obtained from him by the complainant towards collateral security of the chit monthly installments fell due by him. The accused is at liberty to elicit the said probabilities either from the cross-examination of the complainant examined as PW1 or by adducing any independent evidence.

21.It is admitted evidence of DW1 i.e., the accused in his cross- examination that he is running iron shop by name Lalitha Iron and Hardware at Ghantasala Village since 1996 and also conducting Cement and Paints business in the said shop. It is disclosed that he has no dealership for iron business and he was purchasing the iron in Retail from Vijayawada for the said business. He deposes that his annual business turn over is around Rs.90 lakhs and submitting sales tax and income-tax returns. But he has not produced any documentary evidence in support of his business turn over at

Rs.90 lakhs per annum. Regarding chit transaction alleged by him. It is the evidence of DW1 that he has no documentary evidence for the alleged chit business conducted by the complainant and also for his subscription,except his oral testimony. He also admits that he has not produced any documentary evidence for alleged payment of chit installments. But he reiterates that he got evidence for the credit of some of the chit installment amounts in the account of the accused and also the credit of Rs.25,000/- in the name of J.Sailaja, employee of the complainant.

22.DW1 in his further cross-examination denied the suggestion that the amounts credited by him in the account of the complainant and his employee relates to the interest amount over Ex.P1 debt and he has not made any other payments towards principal and balance interest amount to the complainant. He also denied the suggestion that he has borrowed

Rs.3,00,000/- from the complainant on 31.12.2012 and executed Ex.P1 promissory note and issued Ex.P2 cheque dated 13.3.2014 in favour of the complainant towards discharge of the debt under Ex.P1.

23.It is evident from the aforesaid evidence of DW1 that he had no documentary proof for the alleged chit transaction with the complainant. It is his contention that the suppression of payments made by him to the complainant and his employee namely J.Sailaja probablizes his case that the said payments were made towards monthly installments of chit. In the light of the defence of the accused, the evidence of PW1 i.e.,complainant in cross- examination is subject to scrutiny. His evidence discloses that he is doing travels business, having travels office opposite to Andhra Hospitals,

Vijayawada and one lady by name Sailaja is working in his office. He has stated that he has no business dealings with the accused. It is also his evidence that the accused did not subscribe any chit for Rs.5 lakhs with him on 1.1.2013 and he is not conducting any chits.

24.The Complainant i.e., PW1 admitted that the accused deposited

Rs.13,000/- on 20.4.2013 and Rs.10,000/- in his account on 24.12.2013 and further deposited Rs.2,000/- on 24.7.2013. He has admitted that the accused deposited Rs.25,000/- in the account of his employee namely Jampala Sailaja in Andhra Bank, A.S.Nagar Branch, Vijayawada on 30.12.2014. It is categorically deposed by him that the above referred amounts were deposited by the accused towards interest for Ex.P1 debt. He has denied the alleged chit transaction with the accused and also that he obtained two blank promissory notes and two cheques containing the signatures of the accused towards surety.

25.As regards Ex.P1 transaction, it is the evidence of PW1 that promissory note was executed at his travels office, scribed by one Sk.Shafi came to his office to hire a taxi and the attestor was brought by the accused himself. It is also his evidence that Ex.P2 cheque was filled by the accused himself. He has denied the suggestion that the accused did not borrow Rs.3 lakhs from him and the accused fell due an amount of Rs.30,000/- to him towards chit installments and due amount of Rs.5,000/- offered by the accused after payment of Rs.25,000/- was refused by him.

26. As the complainant had denied that he is engaged in chit fund transaction, it was essential for the accused to examine the members of chit fund transaction to prove existence of any chit fund transaction between complainant and accused but that has not been done by the accused. The accused has also not filed any document to show the existence of chit fund transaction or repayment of so called loan amount of Rs.3,00,000/ to the 0 0 1 F complainant. The accused has further alleged that the payments admitted by the complainant shows that cheque in question was issued as a blank security cheque along with Ex.P1 Promissory note which was signed in blank at the time of taking chit bid amount. But the accused did not produce the details of alleged monthly chit installment amounts so also the number of installments paid by him and also due by him. Except the payments admitted by the complainant , the accused did not let in any evidence to show that he had made any other payments. Had the accused had business turnover of Rs 90 lakhs as contended by him, he would not have fell due any amount to the complainant towards alleged installment amounts. It is also not his case that he had any disputes with the complainant or any ill motive attributed against him to fabricate the documents. It is also evident that the accused did not take any steps to get the return of documents alleged to have given to the complainant towards collateral security or got issued any notice to the complainant for the return of the said documents. The accused could not bring any evidence on record probable to show as to the non-existence of consideration. Moreover, as the accused has failed to prove the existence of any chit fund transaction between him and the complainant in this case the contention of the accused is not tenable.

27. The defence has not disputed the fact that Ex.P2 cheque was drawn on account maintained by the accused so also Ex.P3 cheque return memo dated 15.3.2014 issued by Federal Bank, Vijayawada with endorsement funds insufficient for dishonour of the cheque. Ex.P4 office copy of the legal notice,

dated 24.3.2014 and Ex.P5 Postal acknowledgement of the accused, dated

26.3.2014 shows that legal notice was served on the accused. The accused denied signature on Ex.P5 postal acknowledgement as well as on Ex.P6 postal acknowledgement for service of summons through Court marked through him shows that he deliberately denied the signatures thereon. But he admits that the address mentioned in Ex.P5 postal acknowledgement belongs to him and is correct. As such, Ex.P4 legal notice sent to correct address is valid notice served on the accused. It is evident that the accused neither gave reply nor paid the dishonoured cheque amount within stipulated time. It is also held in Rangappa Vs. Mohan, reported in AIR 2010 SCC 1898, thatthe very fact that the accused failed to reply to statutory notice under Sec.138 leads to inference that there was merit in the complainant's version. Therefore, the complainant had merit in his version.

28. Foregoing discussion made above, shows that the complainant could satisfy the ingredients of Sec.138 of N.I. Act and proved that the accused issued Ex.P2 cheque towards discharge of legally enforceable debt under

Ex.P1 without sufficient funds in his account and failed to comply the demand for repayment within 15 days from the date of receipt of the legal notice.

Whereas the accused could not rebut the presumption under sec.118 and 139 of N.I. Act drawn in favour of the complainant by adducing evidence by preponderance of probabilities. Therefore, it is held that the complainant could prove the guilt of the accused for the offence under Sec.138 of N.I. Act beyond all reasonable doubt.

Accordingly, Points 1 to 4 are answered.

29. In the result, the accused is found guilty for the offence under Section 138 r/w 142 of N.I.Act. and he is convicted U/s.255(2) of Cr.P.C.

Directly typed to my dictation by the Personal Assistant, corrected and

pronounced by me in open Court, this the 27th day of January, 2017.

Rao V Addl. Chief Metropolitan Magistrate, Vijayawada.

30.Heard the accused in regard to quantum of sentence.

31.The accused stated that his two children and parents are dependent on him and pleaded to take lenient view.

32.It is found from the evidence on record that the accused deliberately evaded to make payment of cheque issued by him in favour of the complainant without having sufficient funds in his account. Therefore, I did not find any merit to invoke the provisions of Probation of Offenders Act.

However, having regard to the circumstances pleaded by the accused, it is considered to take lenient view against him in imposing sentence of imprisonment.

33.In the result, the accused convicted U/s.255(2) Cr.P.C. for the offence

U/s.138 r/w 142 N.I. Act is sentenced to suffer simple imprisonment for a period of ONE (1) YEAR and to pay a fine of Rs.10,000/- (rupees ten thousand only) in default to suffer simple imprisonment for one (1) month. The accused is entitled to the benefit of set off under section 428 Cr.P.C. He was in judicial custody from 30.12.2014 to 2.1.2015.

34. The accused is informed of his right to prefer appeal and also to approach Mandal Legal Services Committee, Vijayawada for legal aid to engage a counsel if he has got no means.

V Addl. Chief Metropolitan Magistrate, Vijayawada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:

PW1:Mulpuri Rama Goapla Rao

For Defence: DW1 : Chunduri Ashoka Rao

DOCUMENTS MARKED

For Complainant:

Ex.P1 : dt.31.12.2012 : Promissory note

Ex.P2 : dt.13.3.2014 : Cheque bearing No.945879

Ex.P3 : dt.15.3.2014 : Cheque return memo

Ex.P4 : dt.24.3.2014 : Office copy of legal notice

Ex.P5 : dt.26.3.2014 : Postal acknowledgement

Ex.P6 : : Postal acknowledgement(served through Court)

For Defence: -Nil- V Addl. Chief Metropolitan Magistrate, Vijayawada.

Calendar in C.C.No.150/2016 on the file of V Addl. Chief Metropolitan

Magistrate, Vijayawada.

OffenceTaken on ApprehensReleaCommenceClosure Date of Sentenc fileion of se on ment of trialof trialJudgmene or accusedBailtOrder 13-3-1429-10-1425-3-152-1-124-10-164-1-1727-1-1727-1-17 5

Explanation for delay: Originally this case was taken on file under section 138 of N.I.Act in the Court of the Chief Metropolitan Magistrate, Vijayawada as C.C.No.816/14 and transferred to this Court and renumbered as C.C.150/16, vide Dis.No.6263, dt.11.8.16 and posted to 6.10.16. On 25.3.15 accused was present and copies of documents furnished. On 30.12.15 accused was examined u/s.251 Cr.P.C. On 24.10.16 PW1 was examined and Exs.P1 to P5 marked. On 21.12.16 PW1 was examined in cross and Ex.P6 marked. On 4.1.17 evidence closed on 31.3.16 and the accused was examined u/s.313 Cr.P.C.,. On 10.1.17 complainant side arguments heard. On 18.1.17 arguments of defence side heard. On 27.1.17 Judgment pronounced.

Judgment in Calendar Case No.150/2016 on the file of V Addl. Chief Metropolitan Magistrate, Vijayawada.

Mulpuri Rama Gopala Rao, S/o Raghavaiah, Hindu, age 64 years, business, R/ o D.No.41-4-64, Metla Bazar, Near Andhra Bank, Krishnalanka, Vijayawada. .... Complainant

And

Chunduri Ashok Rao, S/o Ranga Rao, Hindu, age 45 years,

R/o Ghantasala, Ghantasala Mandal, Krishna District..... Accused

Offence: Dishonour of Cheque for Insufficient Funds Sec. of Law : U/s.138 of N.I.Act. Finding : Accused found guilty. Result: In the result, the accused convicted U/s.255(2) Cr.P.C. for the offence U/s.138 r/w 142 N.I. Act is sentenced to suffer simple imprisonment for a period of ONE (1) YEAR and to pay a fine of Rs.10,000/- (rupees ten thousand only) in default to suffer simple imprisonment for one (1) month. The accused is entitled to the benefit of set off under section 428 Cr.P.C. He was in judicial custody from 30.12.2014 to 2.1.2015.

Rao V Addl. Chief Metropolitan Magistrate, Vijayawada. Copy submitted to: The Hon’ble Metropolitan Sessions Judge, Vijayawada.

FORM NO.23

Proceedings of the V Additional Chief Metropolitan Magistrate, Vijayawada (Section 256 Cr.P.C Proceedings)

Present Smt.K.Sunitha (V Additional Chief Metropolitan Magistrate, Vijayawada)

Tuesday, this the 28th day of February, 2017

Calendar Case No.320/2016

Offence: Under Section 138 of Negotiable Instrument Act

Complainant: Tadiparti Ratna Sri, W/o Parapati Anil, R/o Flat No.2, aged about 27 years, Anuradha Apartment, Sri Nagar Colony, Swamy Vivekananda Statue, Vijayawada, Krishna District.

Accused:Ch.Lakshmi Priya, D/o Janardhana Rao, Hindu, age 27 years, R/o D.No.3-40-28/A, Pharmacist, Government General Hospital, Narasaraopet, Guntur District.

Date of Offence: 5.7.2014

Date of Complaint: 23.8.2014 of I A.C.M.M., Court, Vijayawada as C.C.No.742/14.

Transfer to this Court on 11-8-2016 (New

Number in C.C.No.320/2016 assigned in this

Court).

Date of Hearing: 28-2-2017.

The case was called for hearing today to which it had been posted/ adjourned.

O R D E R

Complainant called absent and no representation. P.F. not paid for summons to accused for several adjournments inspite of notice issued. It appears that the complainant is not interested to prosecute the case. Hence, the complaint is dismissed u/s.256 Cr.P.C.,. Accused is acquitted.

V Additional Chief Metropolitan Magistrate,

Seal: Vijayawada.

FORM NO.39

Proceedings of the V Additional Chief Metropolitan Magistrate, Vijayawada (Section 257 Cr.P.C Proceedings)

Present Smt.K.Sunitha (V Additional Chief Metropolitan Magistrate, Vijayawada)

Tuesday, this the 28th day of February, 2017

Calendar Case No.544/2016

Offence: Under Section 138 of Negotiable Instrument Act

Complainant: HDFC Bank Ltd., Rep. by its Asst. Manager, Authorized Officer and G.P.A.Holder, Sethu Myneni, S/o Prasada Rao, Hindu, age 34 years, HDFC Bank House, Tikkle Road, M.G.Road, Vijayawada-520010.

Accused:Adusumalli Venkata Maheswara Rao, S/o Sri Rangam, Hindu, D.No.5-29, Near Mandapum Area Konidena, K.Rajupalyam, Ballikurava, Narasaraopet, Guntur-523301.

Date of Offence: 8.12.2015

Date of Complaint: 21.1.2016 of II A.C.M.M., Court, Vijayawada as C.C.No.357/16.

Transfer to this Court on 11-8-2016 (New

Number in C.C.No.544/2016 assigned in this

Court).

Date of Hearing: 28-2-2017.

The case was called for hearing today to which it had been posted/ adjourned.

O R D E R

Complainant absent and condoned on petition u/s.256 Cr.P.C.,.

Summons to accused pending. Petition filed u/s.257 Cr.P.C., is allowed. The complainant is permitted to withdraw the complaint. The complaint is dismissed as withdrawn. The accused is acquitted.

V Additional Chief Metropolitan Magistrate,

Seal: Vijayawada.