C.C.No.08 of 2020 : 1 : Dt.24-04-2025
IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS – CUM -
ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) : MANGALAGIRI.
PRESENT: KALIVE SURESH BABU.
Additional Judicial Magistrate of I Class -cum-
Additional Civil Judge (Junior Division), Mangalagiri.
Thursday, this the 24 th day of April, 2025
Calendar Case No.08 of 2020
Between:
Shaik Khaja Ahmad Vali S/o.Mastan Vali, 34 years, .… Complainant R/o.D.No.20-4/1-45B, Jamathota Subbaraju Nagar, Ajith Singh Nagar, Vijayawada.
AND
Pathalam Lakshman Aged 33 years, Private .… Accused Employee, D.No.3-4-11/2, Rajugari Street, Sorangam beside steps, Sitara Center, Vidyadharapuram, Vijayawada.
This case coming for final hearing before me on 10.04.2025 in the presence of Sri D.Narayana Murthy and Smt.V.Bharathi Devi – Learned counsels for the Complainant and of Sri K.Dwaraka Ramesh – Learned counsel for the accused, upon hearing both sides, having stood over for consideration till this day, this Court delivered the following: -
// J U D G M E N T //
This is a complaint filed by the Complainant under Section 190 & 200 of
Criminal Procedure Code against the accused for the offence punishable under Section 138 read with Section 142 of Negotiable Instruments Act,1881 (hereinafter referred to as “the N.I. Act”), to punish the accused, according to law and also to award compensation provided under Section 357 of Criminal Procedure Code(hereinafter being referred to as Cr.P.C).
02. The brief averments of the Complaint are as follows:-
Complainant and Accused herein are pursing their avocation in Pharma.
Out of acquaintance, accused had borrowed amounts from the complainant i.e.,
Rs.1,00,000/- on 16.11.2017 (ATM Withdrawal), Rs.28,000/- on 18.10.2018 (GooglePay
Digitally signed by
K SURESH
K SURESH BABU
1 BABUDate: 2025.04.24 16:46:29 +0530
C.C.No.08 of 2020 : 2 : Dt.24-04-2025
Transfer), Rs.50,000/- on 12.10.2018 (ATM Withdrawal), Rs.60,000/- on 10.10.2018 (ATM Withdrawal), Rs.41,600/- on 25.04.2018 being credit card payment on behalf of accused, in total Rs.2,79,600/- (Rupees Two Lakhs Seventy Nine Thousand Six
Hundred only) from the complainant on above occasions by way of cash and through online transactions to meet his necessities in the presence of common friends namely
Shaik Nagoor Shareef S/o.Peda Naguru, R/o.D.No.42-45-3, Beside road of MKB
School, Luuna Center, Singh Nagar, Vijayawada and Pilla Durga Prasad S/o.Acthyutha
Rao, R/o.Rayaparaju Veedhi, Chtti Nagar, Vijayawada, agreeing to repay the same together with interest at 24% per annum to the complainant. Accused also made part payment of Rs.33,500/- on two occasions i.e., Rs.15,500/- on 02.07.2019 and
Rs.18,000/- on 10.08.2019 through GooglePay and Net Banking transfer, thereby fell due balance amount of Rs.2,46,100/-. Accused had utilized the amounts borrowed from the complainant for purchasing sites at relevant periods at Kanchikacherla Lotus
Venture and Kuntamukkala and for discharging his credit card due. On persistent demands of complainant, accused had issued a cheque bearing No.000602, dt.03.10.2019 for Rs.3,20,000/- drawn on ICICI Bank, Amaravathi Branch, Velagapudi towards part payment out of an amount of Rs.3,26,358/- payable by the accused as on 03.10.2019, had presented the same in his banker i.e., HDFC Bank, Vijayawada for collection on 03.10.2019 and said cheque was dis-honoured due to “Funds Insufficient” under a cheque returned memo dated 04.10.2019. Thereafter, the complainant had got issued a legal notice dated 01.11.2019 by demanding the accused to arrange the cheque amount, was got returned as refused, failed to comply the demand despite intimation was served on 06.11.2019. Hence, complainant had constrained to file the complaint on 20.12.2019.
03.After filing of complaint, cognizance was taken against the accused for the the offence punishable under Section 138 of N.I.Act. Being satisfied that there are prima-facie materials to proceed against accused, summons was issued.
2 Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:46:36 +0530
C.C.No.08 of 2020 : 3 : Dt.24-04-2025
04.After appearance of the accused before the court, copies of case documents were furnished to accused as contemplated under Section 207 Cr.P.C.
05.The accused was examined under section 251 Cr.P.C and explained the substance of accusation for the offence punishable under Section 138 of N.I Act in
Telugu, for which accused had denied the offence, pleaded not guilty and claimed to be tried.
06.In order to prove his case, the complainant had got examined himself as
PW1 and got marked Ex.P1 to Ex.P5. One Shaik Nagul Sharif, third party to the proceedings was examined as PW2 and no document was marked through him.
07.After closure of the evidence on behalf of the Complainant, on 10.03.2025, the accused was examined under Section 313(1)(b) Cr.PC by explaining the incriminating material evidence appears against him in the evidence of complainant and witness. In his statement under Section 313 of the Code of Criminal Procedure Code 1973, the accused had denied the same stating that “Himself and complainant both
had studied Intermediate in SS College, Milk Project, Vijayawada and Medical
Representatives as well. He never gave cheque to the complainant. In the year
2019, complainant took away his cheque from Activa Scooter, filed this
complaint”and reported no evidence to adduce on his behalf.
08.Heard both sides.
09.Now the points for consideration are:-
1. Whether Ex.P1/Cheque in question dated 03.10.2019 for Rs.3,20,000/- (Rupees Three Lakhs Twenty Thousand only) drawn on ICICI Bank,
Amaravathi Branch, Velagapudi was issued by the accused towards partial discharge of debt ?
2. Whether the complainant has proved the guilt of the accused for the offence punishable U/s.138 of NI Act beyond all reasonable doubt or not?
3. To what relief ?
Digitally signed by
K SURESH
K SURESH BABU
3BABU
Date: 2025.04.24
16:46:43 +0530
C.C.No.08 of 2020 : 4 : Dt.24-04-2025
10. POINT No.1:-
It is settled law that the Complainant has to discharge the initial burden cast upon him to show that the cheque in question was given by the accused in discharge of any existing legally enforceable debt or liability. Once he discharges such burden, then the Court has to raise a presumption U/Sec.118(a) and 139 of Negotiable
Instruments Act in favour of the Complainant. Then a reverse burden would cast upon the accused to show that the cheque in dispute was not issued for discharge of any such legally enforceable debt or liability or that he had not issued such cheque at all or that no consideration was passed to him. It is also settled law that both the said presumptions are not conclusive and are rebuttal in nature. The accused has to rebut the said presumptions by producing any evidence on his behalf or by taking aid of defects in the case of the Complainant or the documents. It is settled law that to discharge the burden by rebutting presumptions available U/Sec.118(a) and 139 of the
N.I.Act , the accused need not enter into the witness box and he need not adduce any direct evidence. It is also settled law that when accused is having any such reverse burden, degree of rebuttal evidence that is required to be produced by accused would be preponderance of probabilities. In the light of these principles, the present case is to be decided.
11. There is no dispute with regard to the dishonour of Ex.P1 cheque, which was presented by the complainant into bank for collection. Ex.P2 would goes to show that the complainant had presented the cheque into his bank, same was returned by way of intimation under Ex.P2 that the cheque under Ex.P1 was dishonoured due to “Funds insufficient”. Ex.P3 is Office copy of legal notice dt.01.11.2019. Ex.P4 is returned RP Cover with an endorsement as “Intimation served”, dt.06.11.2019 but not claimed, dt.14.11.2019.
Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:46:50 +0530 4
C.C.No.08 of 2020 : 5 : Dt.24-04-2025 12. The Hon’ble Apex Court in Gimpex Private Limited vs. Manoj Goel, reported in (2022) 11 SCC 705 has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure:- (1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;
(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
13. In K. Bhaskaran v. Sankaran Vaidhyan Balan, reported in (1999) 7 SCC 510 , the Hon’ble Apex Court had summarized the constituent elements of the offence in fairly similar terms by holding:- “Para.14: The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice.”
Digitally signed by
K SURESH
K SURESH BABU
5BABUDate: 2025.04.24 16:46:57 +0530
C.C.No.08 of 2020 : 6 : Dt.24-04-2025
14.Section 140 of the N.I. Act prohibits the drawer of the cheque to raise a defence that he had no reason to believe that when he has issued the cheque, the cheque may be dishonoured on presentation before the Bank.
15.To substantiate his case, the complainant has stepped into witness box and examined as PW.1 and got marked Ex.P1 to Ex.P5. PW1 has reiterated the contents of the complaint in his affidavit filed in lieu of chief examination evidence about lending amount of Rs.1,00,000/- on 16.11.2017 (ATM Withdrawal), Rs.28,000/- on 18.10.2018 (GooglePay Transfer), Rs.50,000/- on 12.10.2018 (ATM Withdrawal), Rs.60,000/- on 10.10.2018 (ATM Withdrawal), Rs.41,600/- on 25.04.2018 being credit card payment on behalf of accused, in total Rs.2,79,600/- (Rupees Two Lakhs Seventy Nine Thousand
Six Hundred only) to the accused, issuance of cheque by the accused towards discharge of his debt and its dishonour for “funds insufficient”, issuance of legal notice to the accused calling upon him to pay the amount covered under cheque and his failure to comply the same. In the cross-examination, PW1 has categorically testified that he has been working as Regional Manager, Hetero Health Care Limited whereas accused is working as Medical representative in different company. He does not remember whether he withdrew Rs.1,00,000/- at a time or Rs.50,000/- each on 16.11.2017.
16.PW1 has categorically admitted that he has no proof to show that
Rs.1,00,000/- withdrawn by him on 16.11.2017 was given to the accused. He pleaded ignorance whether he had mentioned in his chief examination affidavit that in the presence of common friends namely Shaik Nagul Sharif and Pilla Durga Prasad, he gave Rs.1,00,000/- to the accused on 16.11.2017. PW1 has categorically admitted that he has not filed any proof to show that on 18.10.2019 he has transferred Rs.28,000/- through Googlepay to the accused, Rs.50,000/- by withdrawing to the ATM on 12.10.2018, gave to accused. According to PW1, he gave Rs.50,000/- withdrawn from
ATM on 12.10.2018 in the presence of PW2 and one Pilla Durga Prasad.
Digitally signed by
K SURESH
K SURESH BABU
6 BABUDate: 2025.04.24 16:47:04 +0530
C.C.No.08 of 2020 : 7 : Dt.24-04-2025
17.PW1 has categorically admitted that he has not filed any proof to show that on 13.10.2018, he withdrew Rs.60,000/- from the ATM and gave to accused, so also he credited Rs.41,600/- to the account of accused on 25.04.2019. PW1 also categorically admitted that he has not filed any proof into the court to show that accused had agreed to repay Rs.2,79,600/- at the rate of 24 % per annum.
18.PW1 also categorically admitted that he has not filed any proof into the court to show that on 02.07.2019 and on 10.08.2019 respectively, accused had paid
Rs.15,500/- through GooglePay, Rs.18,000/- through Net Banking transfer to his account.
19.PW1 has further categorically admitted that he has not filed any calculation memo into the court along with the complaint showing balance Rs.3,26,358/- as on 03.10.2019 after deducting part payment of Rs.33,500/-. PW1 has categorically admitted that PW2/Shaik Nagul Sharif and Pilla Durga Prasad are his colleagues.
According to PW1, writings of Ex.P1 in respect of name, date, amount in words and in figures were written by him in the presence of accused.
20.PW1 has categorically denied the suggestion that he did not paid
Rs.41,600/- to the accused on 24.04.2019 being credit card payment on behalf of accused, by stealing cheque of accused from his scooter, misused the same, foisted this false complaint with the help of colleagues.
21.PW1 was further chief examined on 27.11.2024 and got marked Ex.P5 which is statement of account for A/c.No.049331050102536 of HDFC Bank,
Satyanarayanapuram Branch from 01.11.2017 to 13.08.2019 and relevant entries were high lated. Coming to the cross-examination, PW1 has categorically admitted that as per Ex.P5/Statement of account, he had withdrawn amount through ATM on number of occasions but said amounts were not transferred to account of accused.
22.It is the version of complainant and also his evidence as PW1 that he gave
Rs.1,00,000/- on 16.11.2017 (ATM Withdrawal), Rs.28,000/- on 18.10.2018 (GooglePay
Transfer), Rs.50,000/- on 12.10.2018 (ATM Withdrawal), Rs.60,000/- on 10.10.2018 7 Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:47:11 +0530
C.C.No.08 of 2020 : 8 : Dt.24-04-2025 (ATM Withdrawal), Rs.41,600/- on 25.04.2018 being credit card payment on behalf of accused in the presence of common friends namely Shaik Nagul Sharif and Pilla Durga
Prasad. Admittedly, they are colleagues of complainant.
23.To substantiate his case, complainant had examined Shaik Nagul Sharif as
PW2 by filing chief examination affidavit in lieu of chief examination and same is replica of chief examination affidavit of PW1. Coming to the cross-examination, PW2 has categorically admitted that he has been working as Area Sales Manager, Riyol,
Vijayawada whereas complainant is working as Manager. According to PW2, he does not remember whether complainant withdrew Rs.1,00,000/- on 16.11.2017 and does not remember name of the bank of ATM and also does not remember how many times complainant withdrew one lakh from ATM on 16.11.2017.
24.PW2 has categorically admitted that he did not mention in his chief examination affidavit when and where complainant gave one lakh to accused on 16.11.2017. According to PW2, in his presence an amount of Rs.28,000/- was transferred through GooglePay on 08.10.2018 but he does not know the particulars of
GooglePay account belonged to the complainant.
25.PW1 has categorically admitted that he does know from which bank ATM complainant withdrew Rs.50,000/- on 12.10.2018 and it is not mentioned in the chief examination affidavit that when Rs.60,000/- was given to accused on 13.10.2018. PW2 categorically admitted that he cannot say credit card number of accused from which accused made payment of Rs.41,600/- on 25.04.2019 and name of the bank credit card. PW2 had categorically admitted that except his oral say there is no proof to show that accused had promised to repay Rs.2,79,600/- with interest at 24 % per annum to the complainant. According to PW2, he came to know through PW1 that accused had made part payment of Rs.33,500/- on two occasions.
26.It is the version of complainant and so also evidence of PW1 that amount borrowed by accused from the complainant was utilized for payments towards sites purchased by him at Kanchakacharla Lotus Venture and Kuntamukkala and for 8 Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:47:18 +0530
C.C.No.08 of 2020 : 9 : Dt.24-04-2025 discharging his credit card due. However, PW2 categorically admitted that he does know extent of plots and in which venture accused had purchased sites at
Kanchakacharla and Kuntamukkala villages.
27.According to PW2, complainant had filled contents of cheque of accused on the request of accused for Rs.3,20,000/- in Ex.P1 after calculating interest @ 24% per annum being full and final settlement amount. PW2 had categorically denied the suggestion that complainant had stealth cheque of accused from his motorcycle, filled it, foisted this false complaint against him.
28. In this scenario, scrutinize the documents relied by complainant in order to examine the compliance of statutory requirements envisaged under Section 138 of N.I.
Act. Ex.P1 is cheque in question dated 03.10.2019. The said cheque was returned unpaid with an endorsement "funds insufficient” as per Ex.P2/cheque returned memo of bank endorsement dated 04.10.2019. Ex.P3 is office copy of legal notice dated 01.11.2019 under which the complainant has demanded the accused for payment of cheque amount and Ex.P4/returned RP cover with an endorsement as “Intimation”, dt.06.11.2019 and “not claimed” dt.14.11.2019. Ex.P5 is the statement of account for
A/c.No.049331050102536 of HDFC Bank, Satyanarayanapuram Branch from 01.11.2017 to 13.08.2019 and relevant entries were high lated.
29. A careful scrutiny of the documents relied by the complainant goes to show that, statutory requirements of Section 138 of N.I. Act have been complied with. The complainant has discharged his initial burden by examining himself as PW1, Shaik
Nagoor Sharif as PW2 and by producing aforesaid documentary evidence. Thus, complainant is entitled to be relied on the statutory presumptions enshrined under
Section 118 read with Section 139 of N.I. Act.
30.It is apposite to refer the decision of the Hon’ble Apex Court in
Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491 at
Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:47:25 +0530 9
C.C.No.08 of 2020 : 10 : Dt.24-04-2025 page 422 has capsulated the law on presumption and burden of proof and held as follows :
“(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities”.
31. The learned counsel for the complainant while advancing arguments has submitted that when once the signature on Ex.P1/cheque in question is not being under dispute, and the presumption under Section 139 having been drawn against the accused, there was nothing available on record to suggest that the accused had discharged his onus of rebutting the presumption. Once the presumption operates, the onus rests on the accused to prove the non-existence of debt/liability and the courts could not have doubted the complainant's case from any point of view.
32. The learned counsel for the complainant has vehemently contended that
Section 27 of the General Clauses Act, gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. He further contended that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed and complainant by 10 Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:47:32 +0530
C.C.No.08 of 2020 : 11 : Dt.24-04-2025 examining himself as PW1 coupled with Exs.P1 to P5 has clinchingly established his case beyond all reasonable doubt and accused has miserably failed to discharge the burden lies on him. He finally argued that the accused can not be said to have raised a 'probable defence' since the case set up in defence was full of inconsistencies and bereft of any evidence. He, accordingly, prays that an order of conviction be passed against the accused and to award compensation.
33.Per contra, it is submitted by the learned counsel for the accused that the complainant has failed to discharge the burden lies on him and so that onus of proof not shifts on to the accused. The bone of contention of the learned counsel for accused while advancing arguments that there is no brevity of contract in between complainant and accused and there is no amount due to be paid by the accused to the complainant,so that there is no legal enforceable debt. Complainant and alleged common friend in whose presence complainant withdrew one lakh from his ATM on 16.11.2017, Rs.50,000/- on 12.10.2018, Rs.60,000/- on 30.10.2018 respectively were given to the accused, categorically admitted that except their oral say, no documentary proof is filed into the court to establish the same. PW1 also categorically admitted that he did not file any proof into the court to show that he credited Rs.41,600/- on 25.04.2019 to the account of accused so also no piece of document is filed into the court to establish that accused had alleged made part payment of Rs.15,500/- and
Rs.18,000/- through GooglePay and Net Banking transfer, in total Rs.33,500/-, after deducting Rs.33,500/-, accused fell due of Rs.2,46,000/- as on 03.10.2019 after calculating interest at the rate of 24 % per annum, accused allegedly fell due of
Rs.3,26,358/-, towards part payment, allegedly issued Ex.P1/Cheque for Rs.3,20,000/- drawn on ICICI Bank, Amaravathi Branch, Velagapudi. Contrary to the version of complainant and evidence of PW1, PW2 who allegedly present at the time of transaction in between complainant and accused categorically admitted that he came to know through complainant that accused had made part payment of Rs.33,500/- on two
K Digitally signed by
K SURESH BABU
SURESH 11Date: 2025.04.24 BABU 16:47:40 +0530
C.C.No.08 of 2020 : 12 : Dt.24-04-2025 occasions and he also categorically admitted that he cannot say credit card number of accused. According to PW1, Ex.P1/Cheque was allegedly given by the accused towards part payment out of Rs.3,26,358/- as on 03.10.2019 whereas PW2 has testified that accused gave Ex.P1/Cheque after calculating interest at the rate of 24 % per annum being full and final settlement of amount which falsifies the evidence of PW1 and
PW2 and lends support to the defence of accused that there is no legally enforceable debt in between complainant and accused. Further, complainant had failed to produce any documentary evidence to substantiate existence of enforceable debt. For discharging the burden of proof placed upon him under a statute need not examine himself. Since legally recoverable debt has not been proved, the presumption drawn in favuor of the complainant stood rebutted. Accused is able to raise a probable defence creating doubt about existence of legally enforceable debt or liability and case of complainant can fail and prayed to acquit the accused. To bolster his contention, relied on following decisions :- M/s.Rajco Steel Enterprises vs. Kavita Saraff and Another of Hon’ble Apex Court.
Sri Dattatraya vs. Sharanappa of Hon’ble Apex Court.
34.It is, thus, apparent that the complainant had received the information about the dishonour of the cheque under Ex.P2 and got issued Ex.P3/Legal notice and and filed this complaint on 20.12.2019 as it was filed satisfying all the three conditions laid down in Section 138 of the NI Act.
35 .In this back drop of the rival contention, this court has given anxious consideration to the materials available on record and the arguments canvased by both counsel. At the outset, it is pertinent to state that accused took defence that complainant stealth cheque of accused from his motorcycle, misused the same, foisted this false complaint with the help of his colleagues and there is no legally enforceable debt in between complainant and himself. Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 12 16:47:47 +0530
C.C.No.08 of 2020 : 13 : Dt.24-04-2025
36.The Hon'ble Apex Court in M/S Kalamani Tex and another V/s P.
Balasubramanian reported in (2021) 5 SCC 283 has held that the Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative, such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him..
Therefore once the drawer has admitted the issuance of cheque as well as on the signature present therein or it is established that signature in cheque belongs to accused, then the presumption envisaged under section 118 and 139 of NI Act, would operate in favour of the complainant.
37.The accused has neither replied to the demand notice nor has led any rebuttal evidence in support of his case. The case set up by him needs to be drawn from the suggestions put during the cross examination and from his reply given in the statement recorded under Section 313 of Cr.P.C. In his statement under Section 313 of the Code of Criminal Procedure Code 1973, the accused had denied the same and stated that “Himself and complainant both had studied Intermediate in SS College,
Milk Project, Vijayawada and Medical Representatives as well. He never gave
cheque to the complainant. In the year 2019, complainant took away his cheque
from Activa Scooter, filed this complaint”.
38.Body of the Cheque is not required to be in the hand writing of the maker of it. Need not necessarily be written by accused, can be in the hand writing of anybody else or typed on a type machine, so long as the accused does not dispute the genuineness of the signature on the cheque. It is not mandatory and no law prescribes that the body of the cheque should also be written by the signatory to the cheque. A cheque could be filled up by anybody if it is signed by the account holder of the cheque
39.Section 27 Section 27 of the General Clauses Act enjoins:of the General Clauses Act enjoins:
Meaning of service by post:—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or
Digitally signed by
K SURESH
13K SURESH BABU BABUDate: 2025.04.24 16:47:54 +0530
C.C.No.08 of 2020 : 14 : Dt.24-04-2025 “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post”.
40. Clause (b) of Section 138 of the N.I. Act clearly postulates making of a demand for the payment of the money due by giving a notice in writing to the drawer of the cheque within thirty days of the receipt of necessary information from the bank concerned regarding the return of the cheque as unpaid. On the other hand Section 27 of the General Clauses Act contemplates that when a document is required to be served by post as per law unless a different intention appears the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post a letter containing the document unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post. It is open to the accused concerned to rebut the presumption by placing necessary evidence.
41.In the instant case, the averment made in the complaint in this regard is:In the instant case, the averment made in the complaint in this regard is:
“The complainant had therefore got issued a regd. Legal notice dt.01.11.2019 demanding the accused for payment of the amount covered under the above said cheque. The accused refused to received the notice. The intimation of notice was served to the accused on 06.11.2019. The accused neither repaid the amount due nor got issued any reply. Thus the accused has committed offence punishable under section 138 of NI Act. The complaint is filed within the period of limitation”.
42.On a scanning of Ex.P3 legal notice got issued by complainant to the address of the accused “Pathalam Lakshman, D.No.3-4-11/2, Rajugari Street,
Sorangam beside steps, Sitara Center, Vidyadharapuram, Vijayawada-520012”. It is evident from Ex.P4/returned R.P covers, same was returned with return endorsement as “Intimation served on 06.11.2019” and “returned n/claimed, dt.14.11.2019, hence returned to sender”. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by
Digitally signed by
K SURESH
K SURESH BABU
14 BABUDate: 2025.04.24 16:48:01 +0530
C.C.No.08 of 2020 : 15 : Dt.24-04-2025 registered post acknowledgment due to the correct address and was returned with an endorsement that “Intimation served on 06.11.2019” and “returned n/claimed, dt.14.11.2019, hence returned to sender”. Further more, this court had sent summons to the accused address shown in the complaint as shown in Ex.P3/Legal notice and same was served personally and accused had made his appearance before this court on 27.06.2022 which shows the conduct of accused in denying the Ex.P3/Legal notice got issued by complainant to his residential address. On facts in hand the requirements of
Section 138 of the Act had been sufficiently complied with.
43. 43.As far as existence of legal enforceable debt is concerned, according toAs far as existence of legal enforceable debt is concerned, according to complainant in Ex.P3/Legal notice, averments of complaint and also his chiefcomplainant in Ex.P3/Legal notice, averments of complaint and also his chief examination affidavit as PW1 that accused had borrowed amounts from the complainantexamination affidavit as PW1 that accused had borrowed amounts from the complainant to meet his needs and necessities in the presence of common friends I.e, Shaik Nagoorto meet his needs and necessities in the presence of common friends I.e, Shaik Nagoor
Sharif and Pilla Durga Rao, by withdrawing Rs.1,00,000/- from ATM on 16.11.2017,Sharif and Pilla Durga Rao, by withdrawing Rs.1,00,000/- from ATM on 16.11.2017, handed over to accused, similarly Rs.28,000/- through GooglePay transfer, Rs.50,000/-handed over to accused, similarly Rs.28,000/- through GooglePay transfer, Rs.50,000/- by ATM withdrawal on 13.10.2018, also paid credit card payments of accused forby ATM withdrawal on 13.10.2018, also paid credit card payments of accused for
Rs.41,600/- on 25.04.2019. It is further case of complainant that accused allegedly madeRs.41,600/- on 25.04.2019. It is further case of complainant that accused allegedly made part payment of Rs.33,500/- i.e.,. Rs.15,500/- through Googlepay transfer on 02.07.2019,part payment of Rs.33,500/- i.e.,. Rs.15,500/- through Googlepay transfer on 02.07.2019,
Rs.18,000/- on 10.08.2019 through Net Banking transfer. After deducting alleged partRs.18,000/- on 10.08.2019 through Net Banking transfer. After deducting alleged part payment of Rs.33,500/-, accused fell due of Rs.2,46,100/-, as on 03.10.2019 along withpayment of Rs.33,500/-, accused fell due of Rs.2,46,100/-, as on 03.10.2019 along with accrued interest at the rate of 24% per annum, after deducting Rs.33,500/- being allegedaccrued interest at the rate of 24% per annum, after deducting Rs.33,500/- being alleged part payment made by accused as discussed above, fell due of Rs.3,26,358/-, out of thepart payment made by accused as discussed above, fell due of Rs.3,26,358/-, out of the same, accused alleged gave Ex.P1/Cheque for Rs.3,20,000/- towards part payment.same, accused alleged gave Ex.P1/Cheque for Rs.3,20,000/- towards part payment.
44. 44.To substantiate the amounts withdrawn by complainant from ATM, placedTo substantiate the amounts withdrawn by complainant from ATM, placed reliance on Ex.P5/Statement of account of complainant lying in HDFC Bank,reliance on Ex.P5/Statement of account of complainant lying in HDFC Bank,
Satyanarayanapuram with A/c.No.04931050102536. On a scanning of Ex.P5/StatementSatyanarayanapuram with A/c.No.04931050102536. On a scanning of Ex.P5/Statement of account, complainant seems to have withdrawn Rs.50,000/- each from his account onof account, complainant seems to have withdrawn Rs.50,000/- each from his account on 16.11.2017, Rs.50,000/- on 12.10.2018, Rs.60,000/- on 13.10.2018. Ex.P5 further shows16.11.2017, Rs.50,000/- on 12.10.2018, Rs.60,000/- on 13.10.2018. Ex.P5 further shows that an amount of Rs.41,600/- was being paid as IB BILLPAY DR-HDFCVE-that an amount of Rs.41,600/- was being paid as IB BILLPAY DR-HDFCVE- 15 Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:48:08 +0530
C.C.No.08 of 2020 : 16 : Dt.24-04-2025 489377XXXXXX5597. On a scanning of Ex.P3/Legal notice, complaint and chief489377XXXXXX5597. On a scanning of Ex.P3/Legal notice, complaint and chief examination affidavit of PW1, there is no whisper that complainant used to withdrawexamination affidavit of PW1, there is no whisper that complainant used to withdraw amounts as alleged in the complaint on respective dates from account bearing No.amounts as alleged in the complaint on respective dates from account bearing No.
04931050102536 lying with HDFC Bank, Satyanarayanapuram.04931050102536 lying with HDFC Bank, Satyanarayanapuram.
45. 45.Coming to the evaluation of evidence available on record, complainant asComing to the evaluation of evidence available on record, complainant as categorically testified that he does not remember whether he withdrew one lakh at a timecategorically testified that he does not remember whether he withdrew one lakh at a time or Rs.50,000/- on two occasions on 16.11.2017 and he pleaded ignorance whether hisor Rs.50,000/- on two occasions on 16.11.2017 and he pleaded ignorance whether his statement of account furnished to his counsel is produced into the court or not. Evidencestatement of account furnished to his counsel is produced into the court or not. Evidence of PW1 is contrary to his version in Ex.P3/Legal notice and complaint wherein heof PW1 is contrary to his version in Ex.P3/Legal notice and complaint wherein he allegedly withdrew Rs.1,00,000/- on 16.11.2017 and gave to accused.allegedly withdrew Rs.1,00,000/- on 16.11.2017 and gave to accused.
46. 46.It is the version of PW1 that he gave amount to accused on 16.11.2017 inIt is the version of PW1 that he gave amount to accused on 16.11.2017 in the presence of PW2 and Pilla Durga Prasad and place of giving amount. Contrary to thethe presence of PW2 and Pilla Durga Prasad and place of giving amount. Contrary to the version of PW1, PW2 during cross examination has categorically admitted that he doesversion of PW1, PW2 during cross examination has categorically admitted that he does not know the name of bank of ATM of withdrawal of Rs.1,00,000/-, he does notnot know the name of bank of ATM of withdrawal of Rs.1,00,000/-, he does not remember whether complainant withdrew one lakh on 16.11.2017, he does not knowremember whether complainant withdrew one lakh on 16.11.2017, he does not know how many times complainant withdrew one lakh from ATM on 16.11.2017 and when andhow many times complainant withdrew one lakh from ATM on 16.11.2017 and when and where complainant gave one lakh to accused on 16.11.2017. It is not specific evidencewhere complainant gave one lakh to accused on 16.11.2017. It is not specific evidence of PW2 that PW1 gave one lakh withdrawn from ATM by PW1 to the accused in hisof PW2 that PW1 gave one lakh withdrawn from ATM by PW1 to the accused in his presence. Admittedly, no piece of document is filed into the court to substantiate case ofpresence. Admittedly, no piece of document is filed into the court to substantiate case of complainant that amounts allegedly withdrawn by him on respective dates contended bycomplainant that amounts allegedly withdrawn by him on respective dates contended by him were handed over to accused.him were handed over to accused.
47. 47. E Even assuming for the sake of arguments, if Rs.41,600/- being allegedlyven assuming for the sake of arguments, if Rs.41,600/- being allegedly paid by the complainant towards credit card payment of accused through his bankpaid by the complainant towards credit card payment of accused through his bank account on 25.04.2019 as true and correct, at least the complainant should have averredaccount on 25.04.2019 as true and correct, at least the complainant should have averred either in Ex.P3/Legal notice or in his complaint as well as in his chief examinationeither in Ex.P3/Legal notice or in his complaint as well as in his chief examination affidavit about credit card number of accused and name of bank of credit card and whataffidavit about credit card number of accused and name of bank of credit card and what prevented the complainant to mention the same. According to PW1, he allegedlyprevented the complainant to mention the same. According to PW1, he allegedly transferred Rs.28,000/- through Googlepay to the accused on 18.10.2018. It is not thetransferred Rs.28,000/- through Googlepay to the accused on 18.10.2018. It is not the 16 Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:48:15 +0530
C.C.No.08 of 2020 : 17 : Dt.24-04-2025 version of PW1 that in the presence of PW2, he made alleged GooglePay. Contrary toversion of PW1 that in the presence of PW2, he made alleged GooglePay. Contrary to the version of PW1, PW2 has testified that in his presence an amount of Rs.28,000/- wasthe version of PW1, PW2 has testified that in his presence an amount of Rs.28,000/- was transferred through GooglePay to the accused on 08.10.201. PW2 has categoricallytransferred through GooglePay to the accused on 08.10.201. PW2 has categorically admitted that he does not know the particulars of GooglePay account belongs to theadmitted that he does not know the particulars of GooglePay account belongs to the complainant. According to complainant as PW1, Ex.P1/Cheque was allegedly given bycomplainant. According to complainant as PW1, Ex.P1/Cheque was allegedly given by the accused towards part payment for alleged debt of Rs.3,26,358/- as 03.10.2019.the accused towards part payment for alleged debt of Rs.3,26,358/- as 03.10.2019.
Contrary to the version of PW1, PW2 has testified that amount for Rs.3,20,000/- wasContrary to the version of PW1, PW2 has testified that amount for Rs.3,20,000/- was mentioned in Ex.P1/Cheque was after calculating interest at the rate of 24 % per annummentioned in Ex.P1/Cheque was after calculating interest at the rate of 24 % per annum being full and final settlement of amount.being full and final settlement of amount.
48. 48.Therefore, it can be said that once the accused is able to rebut theTherefore, it can be said that once the accused is able to rebut the presumption drawn by way of preponderance of probabilities there exists no debt/liabilitypresumption drawn by way of preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence,in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption ‘disappears’ and does notthe burden shifts to the complainant and the presumption ‘disappears’ and does not haunt the accused any longer. The onus having now shifted to the complainant, he willhaunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure tobe obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption underprove would result in dismissal of his complaint case. Thereafter, the presumption under
Section 139 does not again come to the complainant’s rescue.Section 139 does not again come to the complainant’s rescue.
49. 49.Viewed from any angle complainant has failed to prove about allegedViewed from any angle complainant has failed to prove about alleged borrowal of Rs.1,00,000/- on 16.11.2017 (ATM Withdrawal), Rs.28,000/- on 18.10.2018borrowal of Rs.1,00,000/- on 16.11.2017 (ATM Withdrawal), Rs.28,000/- on 18.10.2018 (GooglePay Transfer), Rs.50,000/- on 12.10.2018 (ATM Withdrawal), Rs.60,000/- on(GooglePay Transfer), Rs.50,000/- on 12.10.2018 (ATM Withdrawal), Rs.60,000/- on 10.10.2018 (ATM Withdrawal), Rs.41,600/- on 25.04.2018 being credit card payment on10.10.2018 (ATM Withdrawal), Rs.41,600/- on 25.04.2018 being credit card payment on behalf of accused, in total Rs.2,79,600/- (Rupees Two Lakhs Seventy Nine Thousand Sixbehalf of accused, in total Rs.2,79,600/- (Rupees Two Lakhs Seventy Nine Thousand Six
Hundred only) in the presence of common friends i.e., PW2 and Pilla Durga Prasad,Hundred only) in the presence of common friends i.e., PW2 and Pilla Durga Prasad, admittedly colleagues of the complainant and alleged issuance of Ex.P1/Cheque towardsadmittedly colleagues of the complainant and alleged issuance of Ex.P1/Cheque towards part payment by placing cogent and convincing evidence. The evidence of PW1 andpart payment by placing cogent and convincing evidence. The evidence of PW1 and
PW2 is riddled with number of admissions and contradictions. The decisions cited byPW2 is riddled with number of admissions and contradictions. The decisions cited by learned counsel for the accused would lend support to the contentions raised by him. learned counsel for the accused would lend support to the contentions raised by him.
Digitally signed by
K SURESH
K SURESH BABU
17BABUDate: 2025.04.24 16:48:23 +0530
C.C.No.08 of 2020 : 18 : Dt.24-04-2025
50. 50.On an overall consideration of the material available on record, it is clear thatOn an overall consideration of the material available on record, it is clear that when the accused could dispel the presumption under section 139 of NI Act by elicitingwhen the accused could dispel the presumption under section 139 of NI Act by eliciting true facts in the cross-examination of PW1 and PW2, the burden will shift on thetrue facts in the cross-examination of PW1 and PW2, the burden will shift on the complainant and he has to prove that the cheque in question i.e., Ex.P1 was issuedcomplainant and he has to prove that the cheque in question i.e., Ex.P1 was issued towards discharge of legally enforceable debt or liability. But, the complainant has failedtowards discharge of legally enforceable debt or liability. But, the complainant has failed to establish that Ex.P1/Cheque was issued towards discharge of legally enforceableto establish that Ex.P1/Cheque was issued towards discharge of legally enforceable debt. TThe accused has satisfactory explained under what circumstance his empty signeddebt. he accused has satisfactory explained under what circumstance his empty signed cheque had gone into the hands of the complainant. Hence, this point is answeredcheque had gone into the hands of the complainant. Hence, this point is answered accordingly against the complainant.accordingly against the complainant.
51. POINT NO.2:
The evidence of complainant, witnesses examined on his behalf and documents filed by him has failed to establish that the cheque under Ex.P1 was issued by the accused in partial discharge of debt as alleged by him, was dishonoured.
Therefore, this court came to impeccable conclusion that the complainant has failed to proved the guilt of accused for the offence under section 138 of NI Act. Thus, the accused is entitled for acquittal. This point is answered accordingly.
52. POINT NO.3:
IN THE RESULT, the accused is FOUND NOT GUILTY of the offence under Section 138 of Negotiable Instruments Act and hence he is ACQUITTED under
Section 255(2) of Criminal Procedure Code. The bail bonds of accused shall be in force for a period of Six(6) months as contemplated under Section 437A Cr.P.C.
Typed to my dictation by Stenographer Grade-III in the open court, corrected, digitally signed and pronounced by me on this the 24 th day of April, 2025.
Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:48:30 +0530
ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS-CUM-
ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION),
MANGALAGIRI.
18
C.C.No.08 of 2020 : 19 : Dt.24-04-2025
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution : For Defence: None PW1 : Shaik Khaja Ahmad Vali PW2 : Shaik Nagoor Shareef
DOCUMENTS MARKED
For Prosecution : Ex.P1 : Cheque bearing No.000602 for Rs.3,20,000/- dt.03.10.2019 drawn on ICICI Bank, Amaravathi Branch, Vijayawada. Ex.P2 : Cheque Return memo, dt.04.10.2019. Ex.P3 : Office copy of legal notice, dt.01.11.2019. Ex.P4 : Returned registered notice cover. Ex.P5 : Statement of account for A/c.No.049331050102536 of HDFC Bank, Satyanarayanapuram Branch from 01.11.2017 to 13.08.2019 and relevant entries are high lated. For Defence: None.
Digitally signed by
K SURESH
K SURESH BABU
BABUDate: 2025.04.24 16:48:37 +0530
ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS-CUM-
ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION),
MANGALAGIRI.
19
C.C.No.08 of 2020 : 20 : Dt.24-04-2025
CALENDAR AND JUDGMENT
IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS – CUM –
ADDL. CIVIL JUDGE (JUNIOR DIVISION) : MANGALAGIRI
Calendar in C.C.08 of 2020
Apprehe Date ofReleasedCommencementClosure of Filingnsion ofResult Offenceon bailof trialtrial accused
Prior to 20.12.19 20.12.2019––28.09.202221.03.202524.04.2025
Name of the Complainant : Shaik Khaja Ahmad Vali S/o.Mastan Vali, 34 years, R/o.D.No.20-4/1-45B, Jamathota Subbaraju Nagar, Ajith Singh Nagar, Vijayawada.
Description of the accused: Pathalam Lakshman Aged 33 years, Private Employee, D.No.3-4-11/2, Rajugari Street, Sorangam beside steps, Sitara Center, Vidyadharapuram, Vijayawada.
Nature of Offence : Punishable U/Sec.138 of Negotiable Instruments Act. Pleaded : Not Guilty Finding of the court : Found not guilty.
Sentence or Order: IN THE RESULT, the accused is FOUND NOT GUILTY of the offence under Section 138 of Negotiable Instruments Act and hence he is ACQUITTED under Section 255(2) of Criminal Procedure Code. The bail bonds of accused shall be in force for a period of Six(6) months as contemplated under Section 437A Cr.P.C.
Explanation for the delay:This case was taken on file against accused on 10.01.2020. On 27.06.2022, copies were furnished to accused. On 25.08.2022, accused was examined under Section 251 Cr.P.C. Tiral was commenced on 28.09.2022 and prosecution evidence was closed on 10.03.2025. On 21.03.2025, accused was examined under Section 313(1)(b) Cr.P.C., reported no defence evidence. On 10.04.2025, heard arguments. On 24.04.2025, judgment is pronounced. Hence, the delay. K SURESHDigitally signed by K
SURESH BABU
BABUDate: 2025.04.24 16:51:09 +0530
ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS-CUM-
ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION),
MANGALAGIRI.
Copy submitted to: The Hon’ble Chief Judicial Magistrate, Guntur.
20