K. Visweswara Rao

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CALENDAR AND JUDGMENT

IN THE COURT OF THE SPECIAL MAGISTRATE – V ,

VISAKHAPATNAM.

C.C.No.1603/2019

(Old C.C.No.4335/2019 of I ACMM Court, Visakhapatnam)

Date of offence : 29.05.2022

Date of complaint or report : 31.07.2019

Date of apprehension : : 07.02.2022

Date of release on bail : ----

Date of commencement of trial : 01.03.2021

Date of closure of trial : 19.04.2022

Hearing of arguments: : 10.05.2022

Date of judgment : 12.05.2022

R E M A R K S : Due to non appearance of witnesses the trial could not be conducted in time. Hence the delay. Description of Complainant

Thangi Hari Narayana, S/o. Late Musali Naidu, Hindu, Door No.9-13-45/2/9, CBM Compound, New Resapuvanipalem, Visakhapatnam – 530003.

Description of Accused

Sanapala Rajagopla Rao, S/o. Late Satyanarayana, Hindu, aged about 51 years, D.No.2-4D-45/2/12, Flat No.301, Sai Tirumala Residency, Sector – 6, MVP Colony, Visakhapatnam – 530017.

Offence : U/sec. 138, r/w 142 of Negotiable Instrument Act

Finding : Found guilty of the offence U/sec.138 r/w 142 of N.I.Act.

Sentence: Accused is convicted U/sec. 255 (2) &(3) Cr.P.C. and sentenced to suffer Rigorous Imprisonment for a period of 09 (Nine) Months and to pay compensation to the complainant U/sec.357 ( 3) Cr.P.C. in a sum of Rs.20,00,000/- [ Rupees Twenty Lakhs only ] which is equivalent to the impugned cheques Exs.P-5 to P8 together with interest thereon at 9% P.A. from the date of cheques i.e., 29.05.2019 within a period of two months from today failing which to under go Simple Imprisonment for a period of one month more.

Sd/- K. Visweswara Rao

Spl. Magistrate – V, Visakhapatnam.

Note: Sentence is suspended as the accused executed bond and furnished sureties.

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IN THE COURT OF THE V SPECIAL MAGISTRATE AT VISAKHAPATNAM.

Present : Sri K.Visweswara Rao, V Special Magistrate

C.C.No.1603/2019 (Old C.C.No.4335/2019 of I ACMM Court, Visakhapatnam)

Friday the 12th day of May 2022

Between :

Thangi Hari Narayana, S/o. Late Musali Naidu, Hindu, DoorNo.9-13-45/2/9,CBM Compound, New Resapuvanipalem, Visakhapatnam – 530003.

…... Complainant

And:

Sanapala Rajagopla Rao, S/o. Late Satyanarayana, Hindu, aged about 51 years, D.No.2-4D-45/2/12, Flat No.301, Sai Tirumala Residency, Sector – 6, MVP Colony, Visakhapatnam – 530017.

...Accused

This case coming on 10.05.2022 for final hearing before me in the presence of Sri. N. Trivikrama Rao ( Vikram) , Advocate for the complainant and of Sri. Y.V. Subba Reddy, S. Padmavathi, Advocates for the accused and having stood over till this day for consideration, the court delivered the following:

J U D G M E N T.

This is a private complaint filed by the complainant against the accused for the offence U/Sec. 138 r/w 142 of N.I. Act alleging as follows:

The complainant is a builder and also doing contract works.

Accused had acquaintance with the complainant and approached the complainant for a loan of Rs.20,00,000/- towards his family necessities and to discharge sundry debts. Accordingly the complainant advanced the said amount to the accused on 04.04.2019 by way of cash at complainant's residence. On receiving the consideration the accused 3 executed four promissory notes for Rs.5,00,000/- each on 04.04.2019 in favour of the complainant agreeing to repay the same together with interest at 24% p.a either to the complainant or to his order on demand.

After receiving the amount the accused did not make any payment despite repeated demands made by the complainant. Finally the accused issued four cheques dated 29.05.2019 bearing Nos.

123841,123842,123843 and 123844 drawn on State Bank of India,

Collector office compound branch, Visakhapatnam for an amount of

Rs.5,00,000/- each towards partial discharge of the promissory notes debt . The complainant presented the said four cheques in his account in

HDFC Bank, Dwarakanagar, Visakhapatnam and those cheques were dishonoured with an arrangement “Exceeds arrangement” on 06.06.2019. Thereafter the complainant got issued a lawyers notice on 28.06.2019 to the accused calling upon him to repay the dishonoured cheque amounts. The accused received the notice on 01.07.2019, but did not choose to give any reply nor paid any amount. The accused issued the cheques knowing fully well that there are no funds in his account only with a view to deceive and cheat the complainant. Thus the accused committed an offence punishable U/Sec. 138 of N.I Act. Hence the complaint.

2) Cognizance of the offence U/Sec. 138 r/w 142 of N.I. Act was taken against the accused by the transferor court.

3) After appearance of the accused before the court, copies of documents were furnished to him. He was examined U/Sec. 251 Cr.P.C on the substance of accusation. He pleaded not guilty and claimed to be tried.

4) In order to prove the case of the complainant P.Ws 1 to 4 were examined and Exs P1 to P14 and Exs X1 to X4 were marked. After closure of the complainant's evidence the accused was examined U/Sec.

4 313 Cr.P.C on the incriminating material. He denied the incriminating material. He did not choose to examine any defence witnesses.

5) Now the points for determination are:

1) Whether there existed a legally enforceable debt between the parties?

2) Whether the impugned cheque was given by the accused for discharge of such legally enforceable debt and it was dishonoured?

3) Whether the complainant served statutory legal notice on the accused properly?

4)Whether the complainant established the guilt of the accused for the offence under section 138 read with 142 of

N.I Act beyond all reasonable doubt?

6) Heard learned counsel for the complainant as well as learned counsel for the accused. Also heard reply arguments. Perused the record.

7] Point No. 1:_ The complainant is examined as P.W1. In the chief-examination he deposed to the same facts as mentioned in the complaint. He was cross examined. In the cross-examination it was suggested to him by the defence counsel that he has no financial competency to lend that much amount to the accused, which was denied. It was further elicited in the cross-examination that P.W1 is an income tax assessee, but he has not shown this transaction covered by the promissory notes in his returns. In the further cross-examination P.W1 deposed that as the consideration was derived by him by selling trees in casuraina topes in cash and it is an agricultural income and it need not be shown in the income tax returns. Learned counsel for the accused contended that even the agricultural income is to be shown in the income returns for the purpose of income tax slab rates and thereafter the assessee can clam exemption. She further relied on a decision of the

High Court of Andhra Pradesh reported in CDJ 2017 AP High Court 071, 5

Kanakamedala Venkata Krishna Prasad Vs. Peram Sai Saroop wherein it was held that as the complainant failed to produce his income tax returns and as he admitted that he did not show the income in the income tax returns it is fetal to the case of the complainant and more so as the income tax returns are also not filed into court. Learned counsel

for the complainant relying on Sec.10.1 of income tax Act contended

that agricultural income is exempt from income tax. Further this court came across a decision of the Supreme Court reported in AIR 2019 SC 1876 Rohit Bhai Jeevan Lal Patel Vs. State of Gujarat. In the said decision in para No.7.1 the Supreme Court referred in approval the finding of a High Court to the effect that if the transaction in question was not reflected in the accounts and income tax returns that would at best hold the assesse or lender liable for action under the income tax laws, but if the complainant succeeds in showing lending of amount, existence of legally enforceable debt cannot be denied. In this case to prove the promissory note the complainant is examined as P.W1 and the scribe of the promissory note was examined as P.W4, which will be discussed infra. Therefore simply because the promissory note debts are not shown in the income tax returns it is not fetal to the case of the complainant and the argument of the learned counsel for the accused relying on the above decision of High Court of Andhra Pradesh is not tenable. In the further cross-examination of P.W1, the defence counsel suggested to

P.W1 that the accused did not borrow any money from him , but on his request as the accused is a government employee, he gave the cheques

for complainant's purpose, which was also denied. Learned counsel for

the accused very rightly contended that no evidence is produced with regard to the legal security purpose by the accused. Further such suggestion amounts to admission of the signature of the accused on the cheques . Consequently presumption U/Sec. 139 of N.I Act operate in 6 favour of the complainant and it is for the accused to rebut. A three

judge bench decision of the Supreme Court in Rangappa Vs. Mohan

AIR 2010 SC 1898 held that presumption mandated U/Sec. 139 of N.I

Act does in deed include the existence of legally enforceable debt or liability. A very recent three Judge bench decision of the Supreme Court in Crl.A.No. 123/2021 dated 10.02.2021 in M/S. Kalamani Tex and another Vs. P. Balasubrahmanyam held in Para No.14 that the statue mandates that onces signature of accused on the cheque or negotiable instrument are established then these reverse onus clauses become operative and in such situation the obligation shifts upon the accused to discharge the presumption imposed upon him.

8] Further apart from the complainant as P.W1 he also examined the scribe of all the promissory notes as P.W4. P.W4 deposed that he acted as scribe of the four promissory notes, the accused borrowed an amount of Rs.20,00,000/- from the complainant on 04.04.2019 and after receiving the said amount the accused executed four demand promissory notes on the same day, each for Rs.5,00,000/- in favour of the complainant agreeing to repay the same with interest at 24% p.a. He also deposed in the chief-examination that A. Srinivasa Rao and Rajasekhar are the attestors to the promissory notes and the transaction took place in the presence of all of them. He was cross examined. In the cross-examination it was elicited that the complainant paid an amount of Rs.5,00,000/- each to the accused under Exs P1 to P4 promissory notes totalling to Rs.20,00,000/-. However it was suggested to P.W4 that no consideration what so ever was paid under the promissory notes in his presence by the complainant to the accused, but he filled in the signed blank promissory notes subsequently. Thus the accused admitted his signatures on the promissory notes

Exs P1 to P4 also. In the above said decision of the Supreme Court in 7

M/S. Kalamani Tex and another Vs. P. Balasubrahmanyam in Para

No.15 the Supreme Court held that once the accused admitted his signature on the cheque and the deed trial court ought to have presumed that the cheques were given as consideration for legally enforceable debt and. In

Para No.16 the Supreme Court also held that bare denial of passing of consideration would not aid the case of the accused. In this case on hand except bare denial of receipt of consideration by the accused the accused did not adduce any evidence what so ever in poof of such denial. Learned counsel for the accused argued that P.W1 admitted in his cross- examination that he knew cash transaction beyond Rs.2,00,000/- cannot be made but through cheques and demand drafts she further argued that as the complainant alleged to have paid the cash of Rs.20,00,000/- to the accused, the transaction is void. At this juncture it is be noticed that a three judge bench decision of the Supreme Court in Rangappa Vs.

Mohan as stated above entertained the case wherein the transaction was hand loan for Rs.40,000/-. Therefore the contention of the defence counsel is impliedly over ruled. Learned counsel for the accused further argned that the bank statement of complainant covered by Ex X2 disclose that there were no transactions in the statement of account of the complainant beyond Rs.3,00,000/- at any point of time. But as already stated the Supreme Court categorically held that if the accused admitted his signatures on the promissory notes and cheques and the complainant proves the execution of the promissory notes legally enforceable debt cannot be denied and consequently financial incompetency of the complainant is insignificant. I therefore hold that the complainant is financially competent. Thus the evidence of the scribe

P.W4 read with the evidence of the complainant as P.W1 is found consistent , corroborative and trust worthy so far as execution of the promissory notes and receipt of consideration there under are concerned. I therefore hold that the promissory notes Exs P1 to P4 are 8 true, valid supported by full consideration and binding on the accused.

Learned counsel for the accused further argued that P.W1 has not filed any document to show as to how he got the amount to pay the same to the accused under the promissory notes. Learned counsel for the complainant argued that P.W1 deposed in the cross-examination that he got the amount from agriculture by selling the trees in casiraina topes for which no documents will be there. Learned counsel for the complainant also argued that Exs P1 to P4 are the authenticated and valid documents to prove payment of consideration to the accused.

Therefore the argument of the defence counsel is not tenable.

Consequently I hold that there existed a legally enforceable debt between the parties. This point is therefore answered in favour of the complainant and against the accused.

9] Point No.2:- It is the case of the complainant that to discharge the legally enforceable debt covered by Exs P1 to P4 promissory notes, the accused gave Exs P5 to P8 cheques for

Rs.5,00,000/- each totalling to Rs.20,00,000/- and when they were presented for encashment all those cheques were dishonoured under

Exs P9 to P12 cheque return memos with an endorsement “ Exceeds arrangements” . To prove the same apart from the complainant as P.W1 he got examined his banker as P.W2 and accused banker as P.W3. P.W2,

Manager, HDFC Bank, Dwarakanagar, Visakhapatnam deposed that the complainant is having account in their branch vide Ex X2 statement of account and Exs P5 to P8 cheques were presented in their branch for clearance on 04.06.2019 and all those cheques were dishonoured under

Exs P9 to P12 cheque return memos respectively as they “exceeded arrangement” and that the cheque return memo were given by their branch. Though he was cross examined nothing fruitful was elicited from him to discredit his testimony given in the chief examination.

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P.W3, Deputy Branch Manager, State Bank of India, Maharanipeta branch , Visakhapatnam deposed that the accused is having account in their branch vide Ex X4 statement of account, Exs P5 to P8 cheque leaves emanated from a cheque book given by their branch to the accused and on 06.06.2019 all the cheques were presented in their branch for encashment, but all of them were dishonoured as the exceeded arrangement. Though he was cross examined nothing tangible was elicited from him to discredit his testimony given in his chief- examination. At this juncture it is very pertinent to have a glance at cheque return memos Exs P9 to P12. All those cheque return memos contain the signatures of the bank official and the seals of the bank which issued it. Thus they full filled the essential ingredients of Sec. 146 of N.I Act. At this juncture it is also relevant to notice that through the suggestions made to P.W1 by the defence counsel that the accused admitted his signature in all the cheques, but to set up a defence theory which is not proved as appreciated supra. Consequently I hold that the accused issued Exs P5 to P8 cheques to the complainant toward discharge of legally enforceable debt covered by Exs P1 to P4 promissory notes and all the cheques were dishonoured under Exs P9 to P12 cheque return memos. I therefore hold that the impugned cheques were given to the complainant by the accused towards discharge of legally enforceable debt and they were dishonoured. Therefore this point is answered in favour of the complainant and against the accused.

10] Point No. 3:- It is the case of the complainant that after the cheques were dishonoured he caused statutory legal notice under Ex P13 which was acknowledged by the wife of the accused under

Ex P14, but the accused did not respond properly. A perusal of the statutory legal notice Ex P13, postal acknowledgement Ex P14 and the complaint disclose the same address of the accused. But the defence 10 counsel contended that the legal notice was not acknowledged by the accused. It may not acknowledged by the accused, but it was acknowledged by the wife of the accused as contended by the complainant counsel. Further as already stated the address of the accused as mentioned in statutory legal notice, postal acknowledgement and the complaint is one and the same. It is a well settled principle of law that when the statutory legal notice was sent to accused to his correct address it is deemed service U/Sec. 27 of General Clause Act. I am fortified with this view by a decision of Supreme Court reported in 2007(2) LS 157 SC CC Alavi Haji Vs. P. Mohammed. The accused did not come up with any of his address other than the above address. I therefore hold that the statutory legal notice is properly served on the accused. This point is also therefore answered in favour of the complainant and against the accused.

11] Point No.4:- In view of my findings on points 1 to 3 supra, I hold that the complainant ably established the guilt of the accused for the offence under Section 138 read with 142 of Negotiable Instrument

Act and that therefore, the accused is liable to be punished suitably. This point is also therefore answered in favour of the complainant and against the accused.

12] In the result, I find the accused guilty of the offence

U/sec. 138 r/w 142 of Negotiable Instrument Act and convict him

U/sec.255(2)&(3) Cr.P.C.

Typed to dictation corrected and pronounced by me in open court on 12th Day of May 2022.

Sd/- K. Visweswara Rao

Spl. Magistrate – V, Visakhapatnam.

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Quantum of Sentence dated:- 12.05.2022 13] The accused is questioned with regard to the quantum of sentence to be imposed on him . He pleaded mercy stating that he is a heart patient, under went heart operation and he has small children. Taking into account the facts and circumstances of the case and the plea of the accused , though I do not consider that the accused is entitled for the benevolent provisions of Probation of Offenders Act, a lenient view is warranted because of the other attending circumstances and the age of the accused. Hence the accused is sentenced to suffer Rigorous Imprisonment for a period of 09 (Nine) months and to pay compensation to the complainant U/sec.357 (3) Cr.P.C., in a total sum of

Rs.,20,00,000/- ( Rupees Twenty Lakhs only ) which is equivalent to the impugned cheques Exs.P-5 to P8 with interest thereon at 9% P.A. from the date of cheques i.e. 29.05.2019 within a period of two months from today failing which, to undergo Simple imprisonment for a period of one month more.

Sd/- K. Visweswara Rao

Spl. Magistrate – V, Visakhapatnam.

Appendix of evidence

Witnesses examined.

For complainant: For Accused: Nil

P.W.-1- Thangi Hari Narayana

P.W.-2- Rajendra Prasad Jonnu, Manager,

HDFC bank, Dwarakanagar brnach, Visakhapatnam.

P.W.-3- B. Sita Rama, Deputy Branch Manager,

Maharanipeta, Visakhapatnam.

P.W.-4- V. Nookaraju.

Documents Marked.

For complainant:

Ex P1. --- Original promissory note dated 04.04.2022 for Rs.5,00,000/-.

Ex P2. --- Another original promissory note dated 04.04.2022 for Rs.5,00,000/-.

Ex P3. --- Another original promissory note dated 04.04.2022 for Rs.5,00,000/-.

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Ex P4. --- Another original promissory note dated 04.04.2022 for Rs.5,00,000/-.

Ex P5. --- Original cheque bearing No. 123841 dated 29.05.2019 for Rs.5,00,000/- drawn on State Bank of India, Maharanipeta branch, Visakhapatnam.

Ex P6. --- Original cheque bearing No. 123842 dated 29.05.2019 for Rs.5,00,000/- drawn on State Bank of India, Maharanipeta branch, Visakhapatnam.

Ex P7. --- Original cheque bearing No. 123843 dated 29.05.2019 for Rs.5,00,000/- drawn on State Bank of India, Maharanipeta branch, Visakhapatnam.

Ex P8. --- Original cheque bearing No. 123844 dated 29.05.2019 for Rs.5,00,000/- drawn on State Bank of India, Maharanipeta branch, Visakhapatnam.

Ex P.9 ---- Cheque return memo dated 06.06.2019 as exceeds arrangement.

Ex P.10 ---- Cheque return memo dated 06.06.2019 as exceeds arrangement.

Ex P.11 ---- Cheque return memo dated 06.06.2019 as exceeds arrangement.

Ex P.12 ---- Cheque return memo dated 06.06.2019 as exceeds arrangement.

Ex P.13 ---- Legal notice dated 28.06.2019.

Ex P.14 ---- Postal acknowledgement.

Ex X1 –-- Authorization. Ex X2 –-- Statement of account of complainant. Ex X3 –-- Authorization. Ex X4 ---- Statement of account of accused.

Documents Marked for accused :- Nil

Sd/- K. Visweswara Rao

Spl. Magistrate – V, Visakhapatnam.

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IN THE COURT OF SPECIAL MAGISTRATE COURT II, AT VISAKHAPATNAM

PRESIDING OFFICER: K. VISWESWARA RAO

SPECIAL MAGISTRATE-V,

F.A.C., SPECIAL MAGISTRATE COURT- II,

VISAKHAPATNAM.

C.C. No. 18/2015

Monday, 30th day of January, 2017 (Old C.C. No. 263/2012, of III MM Court, Visakhapatnam)

This case is coming on for final hearing before me on 25-01-2017, in the presence of Sri. D.V.V.R. Pratap and Smt. R. Sarada, Advocates for the complainant and Sri. Allu Suresh Kumar, Advocate for accused, and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

Name of the ComplainantSiriyala Srinivasa Rao, S/o. Late S. Narasimha Murthy, Hindu, aged 50 years, R/o. Dr.No: 38-14-17/1, Maharani Street, Marripalem, Visakhapatnam.

Name of the Accused Bodu Simhadri Appadu, S/o. Late B. Venku Naidu, Hindu, aged 53 years, R/o. Revallu Village, Lakkavaram (post), Chodavaram Mandalam, Visakhapatnam.

1. This is a private complaint filed by the complainant against the accused for the offence U/sec.138 r/w 142 of Negotiable Instruments Act alleging as follows :

2. For discharging legal debts and family expenditure the accused borrowed an amount of Rs. 2,25,000/-, on 20-05-2009, from the complainant and executed a demand promissory note in his favour on the same day agreeing to repay the same with a interest @ 24% PA, either to the complainant or his order on demand. Subsequently, on repeated requests made by him, accused did not repay a single pie and postponed on one pretext or the other. Finally, accused issued a cheque bearing No: 933318,

dated 12-10-2011, for a sum of Rs. 3,37,500/-, drawn on Andhra Bank,

Chodavaram branch, Visakhapatnam, towards full and final settlement of the above said promissory note debt. When the complainant presented the said cheque in his banker i.e., State Bank of India, Industrial Estate branch,

Visakhapatnam, on 13-10-2011, the same was bounced on the same day due to “insufficient funds” in the account of accused. Immediately the complainant had approached the accused and intimated the same to the accused but he did not pay the cheque amount to him. Later, complainant got issued a statutory legal notice to the accused dated 07-11-2011, and

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accused acknowledge the same on 15-11-2011 but the accused did not choose to pay any amount nor give any reply. Hence, the complaint.

3. Basing on the material available on record, cognizance of the offence U/sec. 138 Negotiable Instrument Act, was taken against the accused. After appearance of the accused before the court, copies of documents were furnished to him U/sec. 207 Cr.P.C.

4.Later, accused was examined U/sec. 251 Cr.P.C., on the substance of accusation for which the accused pleaded not guilty for the offence U/sec. 138 r/w. 142 of NI Act and claimed to be tried.

5. To prove the case of the complainant himself was examined as P.W.1 and complainant banker as PW2 and accused banker as PW3 respectively and got marked Ex.P-1 to ExP-5 and ExX1 to ExX4. PW1 filed evidence affidavit U/sec. 145 (1) Negotiable Instrument Act, wherein he reiterated what he stated in the complaint.

6. After closure of the complainant's evidence , the accused was examined U/sec.313 Cr.P.C., on the incriminating material appearing against him in the evidence of complainants witnesses. He denied the incriminating material. He did not choose to examine any defence witnesses on his behalf.

7. Now the points for consideration are :

1.Whether there existed a legally enforceable debt between the complainant and accused? 2.Whether the impugned cheque was given for discharge of such legally enforceable debt and it was dishonoured for want of sufficient funds in the account of accused? 3.Whether the complainant established the guilt of the accused for the offence U/sec. 138 r/w 142 of N.I. Act beyond all reasonable doubt ?

8. Heard learned counsel for the complainant as well as accused.

Point Nos. 1 to 2 :-

9. The simple case of the complainant is that the accused borrowed a sum of Rs. 2,25,000/-, from him on 20-05-2009, and executed

Ex.P-1 promissory not after receipt of consideration agreeing to repay the same with interest at 24% P.A. either to the complainant or to his order, on demand and despite repeated demands, the accused did not pay any amount, but finally gave Ex.P2 cheque for Rs. 3,37,500/- towards full and final settlement of ExP1 promissory note debt, but when the cheque was

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presented by the complainant in his bank, it was dishonoured because of insufficiency of funds in the account of accused under Ex.P-3 cheque return memo and therefore, the complainant caused statutory legal notice under

Ex.P-4, and it was acknowledged by accused under ExP6 but he did not give any reply nor paid any cheque amount to PW1. On the other hand the plea of the accused is one of complete denial.

10. As could be seen from record it is noticed that the complainant who is examined as PW1 deposed to the same factors in his

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chief examination as mentioned in the complaint without any deviation and such evidence of PW1 remained unchallenged because accused did not cross examine PW1. At this juncture it is also very pertinent to note that accused filed Crl.M.P. 2442/2016, dated 25-11-2016, U/sec. 311 Cr.P.C., to recall

PW1 for the purpose of cross examination and after hearing both sides my predecessor in Office allowed the said petition on 25-11-2016, with some conditions. The conditions appear to be viable. But the accused did not choose to fulfill those conditions and therefore, the said Crl.M.P. 2442/2016, was closed on 02-12-2016. Such, interlocutory order became final as accused neither preferred the matter in revision nor took steps for reopening the evidence of PW1 a-fresh. Therefore, the evidence of PW1 given in chief examination which is quite in conformity with the contents of complaint remained unchallenged.

11.The learned counsel for the complainant argued that as PW1 was not cross examined and his evidence remained unchallenged and the accused failed to rebut the evidence of PW1 consequently the pronote ExP1 and cheque ExP2 stood proved and it is sufficient to prove the case of complainant. He further argued that as the accused did not deny his signatures on pronote ExP1 and cheque ExP2, the presumption U.sec. 139 NI

Act operates in favour of the complainant and such presumption is not at all rebutted by the accused. This arguments of the learned counsel for the complainant is found tenable.

12. However, the learned counsel for the accused argued that sworn statement of the complainant was not taken by Court in the court at the time of taking cognizance of the offence against accused and therefore, the complaint is not maintainable under law. He did not cite any authority for the said proposition. However, this court came across two reported decisions in (1) 2006(1) ALD Crl.31 (Karnataka) between K. Srinivasa VS

Kashinath and (2) 2010(2) LS 40 AP between AVR Murthi VS NV

Ramanamma. In these two decisions it was held that sworn statement may be dispensed with and affidavit of complainant and his witnesses making out prima-facie case is sufficient to take cognizance of the offence against accused U/sec. 138 NI Act. Therefore, the above contention of the learned counsel for the accused is found in-justify.

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13. The learned counsel for the accused further argued that to prove the pronote, the complainant/PW1 did not examine other persons connected to the pronote except himself and to prove the payment of the consideration also he did not examine any one of the attestors or scirbe of pronote ExP1 is essential. First of all it is to be noted that the pronote ExP1 is not a compulsorily attestible document. However, to prove the same examination of scribe may be necessary. But in this case, the unchallenged testimony of PW1 stand proved not only the execution of pronote ExP1 but also passing of consideration thereunder and further, issuance of the cheque-

ExP2 in this case. Therefore, the arguments of the learned defence counsel held not tenable.

14. The learned counsel for accused further argued that the place of execution of pronote ExP1 is not mentioned in the Complaint or

Evidence Affidavit or in the pronote ExP1. He also argued that accused is residing in Narsipatnam and doing cultivation and he also has no necessity to borrow any money, and that calculation of pronote amount and interest are not specifically noted any where. All these factors have no nexus in the light of unchallenged testimony of PW1 which is quite in conformity with the contents of the complaint.

15. The learned counsel for the complainant argued that to prove the pronote ExP1, the unchallenged testimony of PW1 is more than sufficient. As already stated since the evidence of PW1 so far as execution of pronote ExP1 in favour of complainant and passing of consideration there under remained unchallenged. I have no hesitation to hold that the pronote

ExP1 is true, valid binding and supported by consideration. Consequently, I hold that there existed a legally enforceable debt between the parties.

16. The learned counsel for the complainant further argued that to discharge the legally enforceable debt the accused issued ExP2 cheque and it was dishonoured under ExP3 cheque return memo for want of sufficient funds and to prove such dishonour PW1 examined banker of complainant as PW2 and accused banker as PW3. PW2 deposed that complainant is having SB account in their bank and ExX2 is the statement of account of the complainant/PW1 and when ExP2 cheque was presented in their bank for collection on 13-10-2011 it was dishonoured under ExP3

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because of insufficient funds. In the cross examination of PW2, he deposed that he can not say whether the signature on ExP2 cheque belongs to accused or not?

17. PW3 banker of the accused deposed that accused is having account in their bank vide ExX3 statement of account. PW2 further deposed that ExP2 cheque emanated from a cheque book given by their bank to the accused and ExP2 cheque was returned unpaid for want of sufficient funds under ExP3 given by their bank. PW3 was also cross examined. In the cross examination he deposed that ExP2 cheque is M.I.C.R. (magnetic ink character reader) cheque. Though, PW2 banker of complainant deposed that he could not identify the signature of the accused on ExP2 cheque PW3 is the proper person to depose about the validity of cheque including the signature thereon. This witness is not at all cross examined on the signature on the cheque. Therefore, from the evidence of PW2 and PW3 it is evident that cheque ExP2 belongs to accused and he gave the said cheque for discharge of legally enforceable debt to PW1 and on its presentiment the said cheque

ExP2 dishonoured under ExP3 cheque return memo for insufficient funds in the account of accused. The banker of accused i.e., PW3 is the proper person to speak about the authenticity of the signature on the cheque ExP2. PW3 was not at all cross examined on those lines.

18. The learned counsel for the accused further argued that the bankers have not produced any authorization letters and hence their evidence is not valid. He also argued that the bankers produced account opening form ExX3 unasked and therefore, it shows the bias on the part of bankers towards their customer who is complainant in this case. This, argument of learned counsel for the accused is misnomer. So far as non production of the authorization by the bankers to give evidence in this case is concerned, it is not significant in the light of sec. 146 NI Act. Sec. 146 NI Act, envisages that the court shall in respect of every proceedings under this chapter, on production of banks slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved. In this case ExP3 cheque return memo is full fills the essential ingredients U.sec.

146 of NI Act in as much as, cheque return memo contains the signature of

7

the bank official and seal of the bank. Therefore, the production into court by banker ExX3 account opening form is of little consequence. Hence, it is evident that ExP2 cheque belongs to the accused and he gave ExP2 cheque to the complainant for discharge of a legally enforceable debt and the said cheque ExP2 was dishonoured under ExP3 cheque return memo.

Consequently, I hold that there existed legally enforceable debt between the parties and the impugned cheque was given by accused to the complainant for discahrge of legally enforceable debt and it was dishonoured. These two points are therefore answered in favour of the complainant and against the accused.

POINT :3

19. It is the case of complainant that after the cheque ExP2 was dishonoured he caused statutory legal notice under ExP4 which was acknowledged by the accused under ExP5 but he did not respond properly.

The learned counsel for the accused argued that statutory legal notice was not served on the accused and the signature on postal acknowledgement under ExP6 does not belong to accused and that the complainant failed to examine the postal authorities for confirmation of the signature on ExP6 acknowledgment. As already stated PW1 who is complainant deposed in his chef examination that he caused statutory legal noitce to the accused who acknowledged the same under ExP6 but he did not respond properly. Such evidence of PW1 is not at all contraverted in the cross examination. Without contraverrting such material aspects, any amount of argument by the defence counsel is a futile exercise.I therefore, hold that statutory legal notice was in fact served on the accused under ExP6 acknowledgement but accused did not respond properly.

20.The learned counsel for the accused further argued that accused has no capacity even to comply orders of the court in depositing of

Rs. 10,000/- and he has no capacity of repayment even. These factors can not be taken note of at this stage.

21. Lastly, the learned counsel for the accused argued that the complaint is filed beyound the period of limitation and therefore, it is barred by limitation. As could be seen from the record statutory legal notice was served on the accused on 08-11-2011 and the complaint was filed before the

8

court under DDR.No:11282/2011, dated 20-12-2011. Therefore, by mathamatical calculation the complaint is filed well within time and it is not barred by limitation. This arguments for learned counsel of accused is not justified. In that view of the matter and in the light of my findings on points 1 and 2 supra, I hold that the complainant ably established the guilt of the accused for the offence U/sec. 138 r/w 142 of N.I. Act beyound all resonable doubt and therefore the accused is liable to be punished suitably. This point is therefore answered in favour of the complainant and against the accused.

22. In the result, I find the accused guilty of the offence

U/Sec. 138 r/w 142 of NI Act and convict him U/Sec. 255(2) Cr.P.C.

Dictated to the stenographer, transcribed by her, corrected and pronounced by

me in open court, this the Monday, 30th day of January, 2017.

Sd:/ K. Visweswara Rao, Special Magistrate – V, FAC., Special Magistrate -II, Visakhapatnam.

The accused is questioned with regard to the quantum of sentence to be imposed on him. He pleaded mercy stating that he is an agriculturist and a heart patient. Taking into a account the facts and circumstances of the case, though I do not consider that the accused is entitled for benevolent provisions of Probation of Offenders Act a lenient view is warranted because of his age. Hence, the accused is sentenced to suffer Rigorous Imprisonment for a period of 06 [ six ] months and to pay compensation to the complainant U/sec.357(3 ) Cr.P.C, in a sum of Rs. 3,37,500/- [ Rupees three lakhs thirty seven thousand and five hundred only ] which is equivalent to the impugned cheque Exs.P-2 together with interest at 09% P.A., thereon from the date of cheque i.e. 12-10-2011 within a period of two months from today failing which to under go Simple Imprisonment for a period of one month more. Sd:/ K. Visweswara Rao, Special Magistrate – V, FAC., Special Magistrate -II, Visakhapatnam.

APPENDIX OF EVIDENCE No. OF WITNESS EXAMINED FOR

Complainant:-

1. PW1: Siriyala Srinivasa Rao, Complainant.

2. PW2: M.V.H. Somayajulu, Dy. Manager, SBI, Industrial Estate branch, Visakhapatnam (complainant banker).

3. PW3: P. Venkata Ramana Murthi, Chief Manager, Andhra Bank, Chodavaram branch, Visakhapatnam. (accused banker) Defece:- NIL.

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Documents marked For Complainant:- 1.ExP1- original pronote dated 20-05-2009, for Rs. 2,25,000/, executed by accused in favour of complainant. 2.ExP2- original cheque No: 933318, dated 12-10-2011, for Rs. 3,37,500/-, drawn on Andhra Bank, Chodavaram branch, Visakhapatnam. 3.ExP3- cheque return memo dated 13-10-2011 with an endorsement insufficient funds, issued by Andhra Bank. 4.ExP4- office copy of legal notice dated 07-11-2011. 5.ExP5- original postal receipt No: RN 821591893IN dated 08-11-2011. 6.ExP6- Postal acknowledgement dated 15-11-2011.

1. ExX1- authorization letter dated 03-02-2016 given by Chief Manager of PW2's bank i.e., SBI, Industrial Estate branch, Visakhapatnam.

2. ExX2- copy of statement of account of complainant from 05-09-2011 to 23-11-2011 marked through PW2

3. ExX3- copy of account opening form of accused dated 26-12-2002 marked through PW3.

4. ExX4- copy of statement of account of accused dated 19-08-2016, from 04-04-2011 to 13-10-2011, marked through PW3.

Accused: NIL Sd:/ K. Visweswara Rao, Special Magistrate – V, FAC., Special Magistrate -II, Visakhapatnam.

10

CALENDAR AND JUDGMENT

DISTRICT OF VISAKHAPATNAM

IN THE COURT OF SPECIAL MAGISTRATE-II, AT VISAKHAPATNAM

_____________________________________________________________ Date of offence:13-10-2011 Explanation for delay & remarks, Date of Filling:19-05-2012 Received by transfer from Appearance of accused:31-01-2013 Honourable III MMC, Release on bail: --- Visakhapatnam, on 09-03-2015 Commencement of trail:21-05-2014 which was numbered as Close of trail :04-11-2016CC. 263/2012. Hearing of arguments: :25-01-2017 Sentence or order :30-01-2017 Sentence is suspended till 28-02-2017, on executing a bond for an amount Rs. 5,000/-, with two sureties for a like sum as per order in Crl.M.P. 2915/2017, filed U/sec. 389 (3) Cr.P.C., dated 30-01-2013, and the accused is released as he executed the bond as ordered in theabovesaidCrl.M.P. 2915/2017. C.C. No. 18/2015: On the file of Special Magistrate Court II, at Visakhapatnam.

Name of the ComplainantSiriyala Srinivasa Rao, S/o. Late S. Narasimha Murthy, Hindu, aged 50 years, R/o. Dr.No: 38-14-17/1, Maharani Street, Marripalem, Visakhapatnam.

Name of the Accused Bodu Simhadri Appadu, S/o. Late B. Venku Naidu, Hindu, aged 53 years, R/o. Revallu Village, Lakkavaram (post), Chodavaram Mandalam, Visakhapatnam.

OffenceDishonour of cheque for insufficiency of funds punishable U/sec. 138 Negotiable Instrument Act.

FindingFound Guilty

Sentence In the result, I find the accused guilty of the offence U/Sec. 138 r/w 142 of NI Act and convict him U/Sec. 255(2) Cr.P.C. The accused is questioned with regard to the quantum of sentence to be imposed on him. He pleaded mercy stating that he is an agriculturist and a heart patient. Taking into a account the facts and circumstances of the case, though I do not consider that the accused is entitled for benevolent provisions of Probation of Offenders Act a lenient view is warranted because of his age. Hence, the accused is sentenced to suffer Rigorous Imprisonment for a period of 06 [ six ] months and to pay compensation to the complainant U/sec.357(3 ) Cr.P.C, in a sum of Rs. 3,37,500/- [ Rupees three lakhs thirty seven thousand and five hundred only ] which is equivalent to the impugned cheque Ex.P-2 together with interest at 09% P.A.,

11

thereon from the date of cheque i.e., 12-10-2011 within a period of two months from today failing which to under go Simple Imprisonment for a period of one month more.

Special Magistrate – V, FAC., Special Magistrate -II, Visakhapatnam.

1

IN THE COURT OF SPECIAL MAGISTRATE II, AT VISAKHAPATNAM

PRESIDING OFFICER: K. VISWESWARA RAO

SPECIAL MAGISTRATE-V,

F.A.C., SPECIAL MAGISTRATE COURT- II,

VISAKHAPATNAM.

C.C. No. 91/2014

Tuesday, 31st day of January, 2017 (Old C.C. No. 239/2014, of II ACMM Court, Visakhapatnam)

This case is coming on for final hearing before me on 25-01-2017, in the presence of Sri. G. Ramana, Sri. PS Kumari and Sri. GV Lakshmi, Advocates for the complainant and Sri. Y.T.R. Rao and Sri. AM Naidu & Sri MV Lakshmi, Advocates for accused, and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

Pitta Siva Prasad, S/o. Late Venkata Suryanarayana, 1Name of the Complainant Hindu, aged 50 years, R/at. Dr.No: 55-41-1, Ambedkar Nagar, Seethammadhara, Visakhapatnam -13.

Chiliki Venkata Ramana, S/o. Late Appala Swamy, Hindu, aged 2Name of the Accused 53 years, R/at. Dr.No: F3, 1st Floor, Block NO: 19, Gayathrinagar, Pothenamalayyapalem, Visakhapatnam.

1. This is a private complaint filed by the complainant against the accused for the offence U/sec.138 r/w 142 of Negotiable Instruments Act alleging as follows :

2. The accused approached the complainant and requested the complainant to lend an amount of Rs. 2,25,000/- for his family expenditure and clearance of sundry debs on 09-02-2012. The complainant acceded to the request and lent an amount of Rs. 2,50,000/- on the even date i.e., on 09-02-2012. In token of the above transaction the accused executed a demand promissory note in favour of the complainant at the complainants residence and agreed to pay the debt together with interest @ 24% P.A., either to the complainant or to his order on demand. On requests and repeated demands made by the complainant, finally the accused issued a cheque bearing No: 213389, drawn on Vijaya Bank, Maharanipeta,

Visakhapatnam on 12-06-2013 for Rs. 3,00,000/-, towards full satisfaction.

2

The complainant presented the said cheque for collection through his banker i.e., State Bank of India, Visakhapatnam Port Trust branch, Visakhapatnam on the same day but the same was dishonoured by the accused banker i.e.,

Vijaya Bank, Maharanipeta, Visakhapatnam on 15-06-2013, with an endorsement “funds insufficient”. The complainant therefore, got issued a statutory legal notice dated 26-06-2013 to the accused and the same was acknowledged by the accused on 29-06-2013, but the accused did not pay the cheque amount nor give any reply. Thus, the accused committed the offence U/Sec. 138 of NI Act. Hence, the complaint.

3. Basing on the material available on record, cognizance of the offence U/sec. 138 of Negotiable Instrument Act, was taken against the accused by the transferor court. After appearance of the accused before the court, copies of documents were furnished to him U/sec. 207 Cr.P.C.

4.Later, accused was examined U/sec. 251 Cr.P.C., on the substance of accusation for which the accused pleaded not guilty for the offence U/sec. 138 r/w. 142 of NI Act and claimed to be tried.

5. To prove the case of the complainant himself was examined as P.W.1 and complainants banker as PW2 and accused banker as PW3 respectively and got marked Ex.P-1 to ExP-5 and ExX1 to ExX3.

6. After closure of the complainant's evidence, the accused was examined U/sec.313 Cr.P.C., on the incriminating material appearing against him in the evidence of complainants witnesses. He denied the incriminating material. He did not choose to examine any defence witnesses on his behalf.

7. Now the points for consideration are :

1.Whether there existed a legally enforceable debt between the complainant and accused?

2.Whether the impugned cheque was given for discharge of such a legally enforceable debt and it was dishonoured for want of sufficient funds in the account of accused?

3.Whether the complainant established the guilt of the accused for the offence U/sec. 138 r/w 142 of N.I. Act beyond all reasonable doubt ?

3

8. Heard learned counsel for the complainant as well as accused.

Point Nos. 1 to 2 :-

9. The simple case of the complainant is that the accused borrowed a sum of Rs. 2,50,000/-, from him on 09-02-2012, and executed

Ex.P-1 promissory not after receipt of consideration agreeing to repay the same with interest at 24% P.A. either to the complainant or to his order, on demand and despite repeated demands, the accused did not pay any amount, but finally gave Ex.P2 cheque for Rs. 3,00,000/- towards full and final settlement of ExP1 promissory note debt, but when the cheque was presented by the complainant in his bank, it was dishonoured because of insufficiency of funds in the account of accused under Ex.P-3 cheque return memo and therefore, the complainant caused statutory legal notice under

Ex.P-4, and which was acknowledged by the accused under ExP5 but he did not give any reply nor paid any amount to PW1. On the other hand the plea of the accused is one of complete denial.

10. The complainant is examined as PW1. In his chief examination he deposed to the same facts as mentioned in the complaint verbatim. PW1 was cross examined. In the cross examination of PW1, it was simply suggested to him that he has no financial capacity to lend

Rs. 2,50,000/- to accused or anybody, which was denied. The learned counsel for the complainant argued that the said suggestion about the financial incompetency of complainant is denied. The learned defence counsel did not elicit any information in the cross examination of PW1 with regard to the source of income and expenditure which ought to be elicited in the cross examination of PW1. It is true unless other factors are elicited from the cross examination of PW1 with regard to financial incompetency of complainant, mere suggestion is not sufficient to prove that the complainant has no financial competency to lend such amount to accused. Even during the course of arguments also the learned counsel for the accused simply argued that the complainant has no financial competency, which can not be for a moment accepted in the light of failure to elicit any other information with

4

regard to the source of income and expenditure in the cross-examination of

PW1. In the cross examination made to PW1 so far as existence of a legally enforceable debt which is in other words execution of pronote is concerned, it was elicited that complainant did not file any civil suit basing on the pronote for recovery of amount. It is well settled principle of law that it is the will and pleasure of the complainant to file civil suit basing on the pronote or pursue the criminal proceedings or simultaneously both. Simply because complainant did not file any civil suit, no stigma can be attached to the complainant's case.

11. In the further cross examination of PW1 it was suggested to

PW1 that he (PW1) obtained the cheque ExP2 from him secretly out of acquaintance with him and filed this case and that later the accused came to know of the same which was denied. Thus, so far as existence of a legally enforceable debt is concerned except making suggestions to PW1 with regard to financial incompetency and non filing of civil suit which were denied by him, there is no other worth mentioning evidence elicited in the cross examination of PW1. When the accused admitted his signature on the cheque

ExP2, the presumption U/sec. 139 NI Act is in favour of complainant only.

The Honourable Supreme Court made it explicitly clear in a reported decision in 2010 SC 1898 Full Bench , between Rangappa Vs. Mohan that the presumption mandated by Sec. 139 of NI Act does in deed include existence of a legally endorsement debt or liability. In the said decision it was also held that the accused failed to reply to the statutory legal notice U/sec. 138 of NI

Act, and it can led to the inference that there was merit in the complainant version. In the said decision it is also held that if the accused is able to raise a proper defence which creates a doubt about the existence of a legally enforceable debt or liability the prosecution can fail.

12. The counsel for the accused relied on two reported decisions in (1) 2012 (2) ALD (Crl.) 302 (AP) Lakshmi Prabhak VS State of AP

and (2) ILR 2008 KAR 4629; between Shiva Murthy VS Amrutharaj.

Except putting bold suggestions to the complainant as PW1 in the cross

5

examination with regard to pronote there is nothing elicited in the cross examination as already stated. In the decisions cited by the learned defence counsel the accused brought on record evidence both oral and documentary and appreciating such evidence the High Court of Karnataka in the above decision found that the complainant has not established nor proved the exist of a legally enforceable debt against the accused. In the decision of High

Court of AP, it was held that liability is not crystallized by the debt of issuance of cheque. Such facts do not existence in this case in favour of accused and in as much as, no oral or documentary evidence is adduced by accused. No doubt accused is not expected to adduce oral or documentary evidence and he can maintain silence and he can rely on material on record adduced by the complainant. In this case accused did not elicit any material in his favour except putting suggestions which were denied. When the accused took a plea that complainant snatched the cheque secretly from the possession of the accused and filed this case against him, then what prevented the accused to give a report to police against the complainant or give a notice to the complainant to return back the said cheque or convey any Panchayathi in his village or give any stop payment instructions to his banker. The accused did not do either of them, so, giving rise to a reasonable inference about the existence of a legally enforceable debt and issuance of

ExP2 cheque for discharge of such legally enforceable debt.

13. The learned counsel for the accused further argued that the complainant did not examine anybody connected to the pronote Exp1. Since, the accused admitted his signature on cheque ExP2 by virtue of Judgment of the Honourable Supreme Court referred to above the presumption mandated

U/sec. 139 of NI Act does in deed include existence of a legally enforceable debt also.

14. The learned counsel for the accused further argued that on the cheque ExP2, there are only five digits and PW3 in the cross examination deposed that cheque must be with ten digits. To prove the issuance of cheque ExP2 and its dishonour the complainant examined PW2 the

6

complainants banker and PW3 accused banker respectively. PW2 deposed that the complainant is having account in their branch and ExP2 cheque was presented in their bank for clearance but it was returned under ExP3 cheque return memo because of insufficiency of funds. PW2 was cross examined. In his cross examination it was elicited that ExP2 cheque does not bear the signature of the drawer on the back side of the cheque ExP2. This will not in anyway clinch the issue. PW3 accused baker deposed that ExP2 cheque was presented in their bank for collection but it was returned unpaid for want of sufficient funds. PW3 was cross examined. In his cross examine he stated that cheque book covered by ExP2 cheque was given by their bank to the accused in the year 2013. PW3 further deposed that the cheque contains five digits only and change of five digits to ten digits was started 10 years back.

This is also a vague information elicited from the bankers evidence. This information will not in any way help the case of the accused particularly when he admitted his signature on cheque ExP2, more so, when the cheque was dishonoured only for want of sufficient funds but not on any other ground.

This arguments of the learned counsel for the accused is therefore, found not tenable.

15. The learned counsel for the accused argued that to discharge the pronote ExP1 for Rs. 2,50,000/-, accused issued a cheque ExP2 and it is

for the complainant to prove how that cheque ExP2 was given for

Rs. 3,00,000/-. In the complaint itself it was averred that the cheque ExP2 was given for Rs. 3,00,000/- towards full and final settlement of pronote debt

ExP1. So, there is no question of mathematical calculation about the interest that it was accrued. In view of my foregoing reasons I hold that the accused failed to rebut the presumption U/Sec. 139 of N.I Act and consequently I hold that there existed a legally enforceable debt between the parties covered by pronote ExP1 and for discharge of such a legally enforceable debt, ExP2 cheque was given by the accused towards full and final settlement, and such cheque was dishonoured under ExP3 for insufficiency of funds. These

7

two points are therefore, answered in favour of the complainant and against the accused.

POINT NO:3

16. It is the case of the complainant that after the cheque ExP2 was dishonoured he caused statutory legal notice under ExP4 to accused which was acknowledged under ExP5 but there is no proper response from the accused. PW1 was cross examined by the defence counsel to the effect that statutory legal notice was not delivered to the accused actually and by managing the post man in that area such acknowledgement was procured which was denied. It was also suggested to PW1 that “the accused used to

reside in Port quarters, Kailasapuram locality but he never stayed in

the address given in the pronote in the year 2012”. But accused did not file any into court sort of document or scrap of paper showing his present address. A close perusal of ExP5 postal acknowledgement discloses that it was acknowledged by accused with his signature. Learned counsel for the complainant drew the attention of the court to the admitted signature on the cheque ExP2 and disputed signature on ExP5 and urged the court to compare both the signatures with the aid of Sec. 73 of Indian Evidence Act.

This court made such an exercise in the interest of justice and found characteristics of the admitted signature on ExP2 cheque are akin when that of the characteristic of signature on the acknowledgment ExP5. Moreover, the addresses mentioned on pronote ExP1, legal notice ExP4 and the postal acknowledgment ExP5 are one and the same. I therefore, hold that the statutory legal notice was in fact validly served on the accused under ExP5 acknowledgement. In that view of the matter and in the light of my findings on points 1 and 2 supra I hold that the complainant ably established the guilt of the accused for the offence U/sec. 138 r/w 142 of N.I. Act beyound all resonable doubt and therefore, the accused is liable to be punished suitably. This point is also therefore answered in favour of the complainant and against the accused.

8

19. In the result, I find the accused guilty of the offence

U/Sec. 138 r/w 142 of NI Act and convict him U/Sec. 255(2) Cr.P.C.

Dictated to the stenographer, transcribed by her, corrected and pronounced by

me in open court, this the Tuesday 31st day of January, 2017.

Special Magistrate – V, FAC., Special Magistrate -II, Visakhapatnam.

The accused is questioned with regard to the quantum of sentence to be imposed on him. He pleaded mercy stating that he is having two daughters.

Taking into a account the facts and circumstances of the case and the plea of the accused, though I do not consider that the accused is entitled for benevolent provisions of Probation of Offenders Act a lenient view is warranted because of his age. Hence, the accused is sentenced to suffer Rigorous Imprisonment for a period of 06 [ six ] months and to pay compensation to the complainant

U/sec.357(3 ) Cr.P.C, in a sum of Rs. 3,00,000/- [ Rupees three lakhs only ] which is equivalent to the impugned cheque Exs.P-2 together with interest at 09% P.A., thereon from the date of cheque i.e. 12-6-2013 within a period of two months from today failing which to under go Simple Imprisonment for a period of one month more .

Sd:/ K. Visweswara Rao,

SPECIAL MAGISTRATE-V,

F.A.C., SPECIAL MAGISTRATE -II,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE No.

OF WITNESS EXAMINED FOR

Complainant:-

1. PW1:Patta Siva Prasad, Complainant.

2. PW2:K. Purnachadra Rao, Dy. Manager, SBI, Visakhapantam Port Trust branch, Visakhapatnam (complainant banker).

3. PW3:Z. Pratap Singh Naik, Branch Manager, Viajaya Bank, Maharanipeta branch, Visakhapatnam. (accused banker) Defece:-

NIL.

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Documents marked For

Complainant:- 1.ExP1-original pronote dated 09-02-2012, for Rs. 2,50,000/, executed by accused in favour of complainant.

2.ExP2-original cheque No: 213389, dated 12-06-2013, for Rs. 3,00,000/-, drawn of Vijaya Bank, Visakhapatnam.

3.ExP3-cheque return memo dated 15-06-2013, with an endorsement insufficient funds, issued by SBI, Visakhapatnam Port Trust Branch, Visakhapatnam.

4.ExP4- office copy of legal notice dated 26-06-2013.

5.ExP5- Postal acknowledgement dated 29-06-2013.

1. ExX1- authorisation letter dated 25-05-2016 given by Chief Manager of PW2's banker i.e., SBI, Port Trust branch, Visakhapatnam.

2. ExX2- copy of statement of account of complainant from 12-06-2013 to 30-06-2013 marked through PW2.

3. ExX3- copy of statement of account of accused dated nil, from 31-12- 2012 to 03-12-2013, marked through PW3.

Defence:

Nil

Sd:/ K. Visweswara Rao,

SPECIAL MAGISTRATE-V,

F.A.C., SPECIAL MAGISTRATE -II,

VISAKHAPATNAM.

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CALENDAR AND JUDGMENT

DISTRICT OF VISAKHAPATNAM

IN THE COURT OF SPECIAL MAGISTRATE-II, AT VISAKHAPATNAM

_____________________________________________________________ Date of offence:15-06-2013Explanation for delay & remarks, Date of Filling:18-03-2014 Received by transfer from Honourable Appearance of accused:10-04-2015 IIACMM,Visakhapatnam on 22-08-2014 Release on bail: --- which was numbered as CC. 239/2014 Commencement of trail:10-07-2015 Close of trail :17-08-2016 Hearing of arguments:25-01-2017 Sentence or order :31-01-2017 Sentence is suspended till 28-02-2017, on executing a bond for an amount Rs. 5,000/-, with two sureties for a like sum as per order in Crl.M.P. 2933/2017, filed U/sec. 389 (3) Cr.P.C., dated 31-01-2013, and the accused is released as he executed the bond as ordered in the above said

Crl.M.P. 2933/2017.

___________________________________________________________________

C.C. No. 91/2014: On the file of Special Magistrate Court II, at Visakhapatnam.

Name of the ComplainantPitta Siva Prasad, S/o. Late Venkata Suryanarayana, Hindu, aged 50 years, R/at. Dr.No: 55-41-1, Ambedkar Nagar, Seethammadhara, Visakhapatnam -13.

Name of the Accused Chiliki Venkata Ramana, S/o. Late Appala Swamy, Hindu, aged 53 years, R/at. Dr.No: F3, 1st Floor, Block No: 19, Gayathrinagar, Pothenamalayyapalem, Visakhapatnam.

OffenceDishonour of cheque for insufficiency of funds punishable U/sec. 138 of Negotiable Instrument Act.

FindingFound Guilty

Sentence In the result, I find the accused guilty of the offence U/Sec. 138 r/w 142 of NI Act and convict him U/Sec. 255(2) Cr.P.C. The accused is questioned with regard to the quantum of sentence to be imposed on him. He pleaded mercy stating that he is having two daughters. Taking into a account the facts and circumstances of the case and the plea of the accused, though I do not consider that t0he accused is entitled for benevolent provisions of Probation of Offenders Act a lenient view is warranted because of his age. Hence, the accused is sentenced to suffer Rigorous Imprisonment for a period of 06 [ six ] months and to pay compensationtothecomplainant U/sec.357(3 ) Cr.P.C, in a sum of Rs.

11

3,00,000/- [ Rupees three lakhs only ] which is equivalent to the impugned cheque Exs.P-2 together with interest at 09% P.A., thereon from the date of cheque i.e. 12-6-2013 within a period of two months from today failing which to under go Simple Imprisonment for a period of one month more .

Sd:/ K. Visweswara Rao,

SPECIAL MAGISTRATE-V,

F.A.C., SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

CALENDAR AND JUDGMENT

IN THE COURT OF THE SPECIAL MAGISTRATE – V ,

VISAKHAPATNAM.

C.C.No.323/2017

(Old C.C.No.477/2019 of IV ACMM Court, Visakhapatnam)

Date of offence : 28.04.2009

Date of complaint or report : 22.07.2019

Date of apprehension : : 13.12.2019

Date of release on bail : ----

Date of commencement of trial : 15.12.2021

Date of closure of trial : 19.04.2022

Hearing of arguments: : 06.05.2022

Date of judgment : 09.05.2022

R E M A R K S : Due to non appearance of witnesses the trial could not be conducted in time. Hence the delay. Description of Complainant

M/s. HOUSING AND URBAN DEVELOPMENT CORPORATION LIMITED, (HUDCO) A company incorporated under the companies act, being represented by its Deputy General Manager ( Law), S.M Seenivas, S/o. Late S.V. Mallaiah HUDCO, Door No.36-14-1, Veeramachaneni complex, Jammi Chettu centre, Mogalrajapuram, Vijayawada,

Description of Accused

Bandaru Veera Venkata Satya Narayana Murthy, S/o. Late Dharma Raju, Hindu, aged 40 years, D.No.6-87/1, Kowasika Road, Kothapeta, East Godavari District.

Offence : U/sec. 138, r/w 142 of Negotiable Instrument Act.

Finding : Found not guilty of the offence U/sec.138 r/w 142 of N.I.Act.

Sentence: In the result, I find the accused not guilty of the offence

U/sec. 138 r/w 142 of Negotiable Instrument Act and acquit him U/sec.255(1) Cr.PC.

V Special Magistrate, Visakhapatnam.

IN THE COURT OF THE V SPECIAL MAGISTRATE AT VISAKHAPATNAM.

Present : Sri K.Visweswara Rao, V Special Magistrate

C.C.No.323/2017 (Old C.C.No.477/2009 of IV ACMM Court, Visakhapatnam)

Monday the 9th day of May 2022

Between :

M/s.HOUSINGANDURBAN

DEVELOPMENT CORPORATION LIMITED,

(HUDCO) A company incorporated under the companies act, being represented by its Deputy General Manager ( Law), S.M Seenivas, S/o. Late S.V. Mallaiah HUDCO, Door No.36-14-1, Veeramachaneni complex, Jammi Chettu centre, Mogalrajapuram, Vijayawada,

…... Complainant

And:

Bandaru Veera Venkata Satya Narayana Murthy, S/o. Late Dharma Raju, Hindu, aged 40 years, D.No.6-87/1, Kowasika Road, Kothapeta, East Godavari District.

...Accused

This case coming on 06.05.2022 for final hearing before me in the presence of Sri. N.S. Bala Subrahmanyam, Advocate for the complainant and of Sri. B.V.R. Murthy ( Babu) , Advocate for the accused and having stood over till this day for consideration, the court delivered the following:

J U D G M E N T.

This is a private complaint filed by the complainant against the accused for the offence U/Sec. 138 r/w 142 of N.I. Act alleging as follows:

The complainant is a government of India undertaking incorporated under the companies Act having its registered office at “HUDCO BHAVN” IHC complex, Lodhi Road, New Delhi and one of the branches at Visakhapatnam. The accused availed housing loan for flat

No.FF- 1, 1st floor, Sri Krishnanjali Towers, Balaji Towers , Siripuram,

Visakhapatnam for a sum of Rs.6,25,000/- under file No. IHL-VSP-0065 repayable in 180 equal monthly installments at Rs.7,602/- and the complainant released a sum of Rs.6,25,000/- on 02.04.2002. When the accused failed to repay the installments regularly the loan was recalled and a civil suit O.S.No. 1431/2005 on the file of Principal Senior Civil

Judge, Visakhapatnam was filed . During the course of trial the accused

entered into a compromise with the complainant and on his request this case was referred to District Legal Services Authority, Visakhapatnam.

As per the compromise entered by the accused and the other defendant in the suit an award was passed by the District Legal Services authority, vide L.S.A.No. 522/2018 dated 15.07.2008 where under the accused undertook to pay the award amount in 40 equal monthly installments at the rate of Rs.27,576/- and issued post dated cheques for the amount.

The accused has issued a cheque for the month of April 2009 amounting into to Rs.27,576/- drawn on ICICI Bank, Amalapuram vide cheque

No.120610 dated 28.04.2009. When the complainant presented the above cheque with their bankers Axis Bank, Ramnagar branch,

Visakhapatnam for clearance on the next day, the cheque was dishonoured and returned for insufficiency of funds on 02.05.2009. The complainant then intimated the same to the accused in person and through phone the accused promised to arrange repayment but failed to do so. The complainant then got issued statutory legal notice to the accused on 15.05.2009 demanding the accused to repay the dishonoured cheque amount with in 15 days from the date of receipt of the notice. But the notice was returned as door locked, intimation given and finally as not claimed on 01.06.2009. The act of the accused in issuing the cheque without keeping sufficient funds in his account even though the accused has a legal duty to keep sufficient funds, amounts to an offence committed by the accused under the negotiable instrument

Act. The accused purposefully issued the cheque without keeping funds with a view to cause wrongful loss and to get unjust enrichment to himself. Hence the complaint.

2) Cognizance of the offence U/Sec. 138 r/w 142 of N.I. Act was taken against the accused by the transferor court.

3) After appearance of the accused before the court, copies of documents were furnished to him. He was examined U/Sec. 251

Cr.P.C on the substance of accusation. He pleaded not guilty and claimed to be tried.

4) In order to prove the case of the complainant P.Ws.1 and 2 were examined and Exs P1 to P6 were marked. After closure of the complainant's evidence the accused was examined U/Sec. 313 Cr.P.C on the incriminating material. He denied the incriminating material. He did not choose to examine any witnesses on his behalf.

5) Now the points for determination are:

1) Whether there existed a legally enforceable debt between the parties?

2) Whether the impugned cheque was given by the accused for discharge of such legally enforceable debt and it was dishonoured?

3) Whether the complainant served statutory legal notice on the accused properly?

4)Whether the complainant established the guilt of the accused for the offence under section 138 read with 142 of

N.I Act beyond all reasonable doubt?

6) Heard arguments of the learned counsel for the complainant as well as learned counsel for the accused.

7) Point No.1:- Ex P2 award copy was exhibited through

P.W1 who is the deputy general manager of the complainant company. In the chief-examination P.W1 deposed to the same facts as mentioned in the complaint. He was cross examined. In the cross-examination he denied a suggestion that he is not authorized person to give evidence in this case and Ex P1 resolution dated 05.01.2004 is not in force. Learned counsel for the accused argued that this resolution of the year 2004 is not valid. A keen perusal of the resolution Ex P1 disclose that many officers of the rank of zonal officer and regional officers of all the branches were authorized to file suits, complaints etc. Therefore P.W1 being the Deputy General Manager cannot be said that he is not competent to give evidence. Therefore the argument of the defence counsel on this aspect is not tenable. Learned counsel for the accused further argued that bank manager is not examined as witness. The complaint itself is filed represented by the deputy general manager.

P.W1 is the deputy general manager. Therefore it cannot be said that

P.W1 is not authorized to file complaint and to give evidence. To prove the legally enforceable debt between the parties the complainant filed into court Ex P2 copy of the Lok Adalat Award in L.S.No. 522/2008 in

O.S.NO. 1435/2055 on the file of Principal Senior Civil Judge,

Visakhapatnam. Learned counsel for the accused contented that this award copy of Ex P2 is simply a Photostat copy, it is not the original copy, it is not even attested by anybody and therefore the award copy is not maintainable under law. P.W1 in the cross-examination admitted that they have not filed certified copy of the award Ex P2. In the normal course of events and standered practice and procedure, Lok Adalat will supply original award copies to both the parties, but this award copy Ex

P2 is simply a photostat copy. As rightly contented by the defence counsel it is not even certified by anybody. Learned counsel for the accused very rightly contended that it is not as though the original award copy of Ex P2 was lost, stolen or burnt away. Learned counsel for the accused further argued that therefore Ex P2 cannot be relied upon.

This contention of the defence counsel appeared to be bonafide.

8] In addition to that a perusal of the award Ex P2

dated 15.07.2008 contains terms and conditions. A perusal of condition

No.3 in award, categorically disclose that if the first dependent- accused fails to pay 3 monthly installments continuously the plaintiff is at liberty to execute the award for the balance awarded amount by bringing the mortgage property for sale and personally against defendant No.1- accused and defendant No.2 therein. Therefore this award is not exclusively bind the accused to prove existence of legally enforceable debt. More over if the first defendant fails to pay 3 monthly installments continuously the complainant has to bring the mortgaged property to sale and personally against defendant No1-accused and defendant No.2.

Except Ex P2 Photostat copy of the award the complainant did not file into court any scrap of paper to prove existence of legally enforceable debt between the parties. Therefore it is inevitable to hold that the complainant failed to prove existence of legally enforceable debt between itself and the accused. This point is therefore answered against the complainant and in favour of the accused.

9] Point No.2:- It is the case of the complainant that as the accused gave the cheque Ex P3 towards installment amount and when it was presented for encashment it was dishonoured under Ex P4 cheque return memo. To prove this aspect, in the complaint, the Branch

Manager, ICICI Bank, Amalapuram branch is shown as list witness No.2.

Accordingly this court sent summons to the list witness No.2 i.e. Branch

Manager, ICICI Bank, Amalapuram branch. But he did not come to the court. Instead, P.W2 a proxy attended this court. P.W2 is Deputy branch

Manager, ICICI bank, Ramanagar branch, Visakhapatnam. In the chief- examination he deposed that their branch is not having account of both the parties in this case, but their legal department of ICICI Bank,

Hyderabad sent a massage to him to go to this court and give evidence as the cheque Ex P3 was presented in the their branch. He further deposed in the chief-examination that Ex P3 cheque was presented in their branch for clearance on 02.05.2009, but it was dishonoured under

Ex P4 cheque return memo given by its clearing cell, Dwarakangar and that they have not collected cheque dishonour charges. Thus the chief evidence itself of this witness is defective. He was cross examined. In the cross-examination he deposed as follows:-

“ We have not filed into court statement

of account in relation to the cheque and

dishonour of cheque. It is true I did not

receive any summons from this court to

come to the court and give evidence

today. Today I did not bring any

authorization to give evidence in this

case … It is not true to suggest that my

evidence is not valid under law as I did

not bring any authorization and as I did

not receive any summons from this

court. “.

Learned counsel for the accused strenuously argued that without summons from this court P.W2 ventured to come to this court and to give evidence without any authorization from their higher officials and therefore his evidence is not valid. This contention of the defence counsel is highly justified. As extracted above this witness admitted that their bank is not having account of either of the parties he did not receive summons from the court and he did not bring authorization also.

But he tried to give an explanation that their legal department at

Hyderabad sent a massage to him to go to this court and to give evidence as the cheque was presented in their branch. Simply because the cheque was presented in their branch this witness has no right at all to give evidence on behalf of the complainant and without receiving any summons from this court and without any written authorization from his higher officials. Further he contented that the impugned cheque was presented in their branch and they dishonoured it under Ex P4 cheque return memo. In the cross-examination he deposed that except cheque number and amount name of the complainant is not mentioned in the cheque return memo Ex P4. Learned counsel for the accused strenuously argued that this is a defective evidence. In addition to that a perusal of cheque return memo Ex P4 though contains the signature of the bank official and seal of the bank which issued it, it did not contain the name of the complainant or the account number of the complainant.

The cheque number is tallying, but the cheque return memo Ex P4 is addressed to UTI Bank limited. It is not known how this UTI Bank came into the picture. At any rate, the cheque return memo is not addressed to the complainant bank. Therefore the complainant bank cannot rely upon this cheque return memo. Therefore the argument of the learned counsel for the accused is found justified. Learned counsel for the accused further argued that P.W2 is stranger to the document and that the complainant did not file any statement of account of the accused or complainant, and in such an event the court cannot come to the conclusion that the cheque was issued by the accused to the complainant towards discharge of legally enforceable debt. This argument of the defence counsel is also found legal.

10] U/Sec. 146 of N.I Act bank's slip is a premfacia evidence and the court has to presume the fact of dishonour of such cheque, unless and until such fact is disproved. As already stated P.W2 deposed that both the parties are not having account in their branch, he did not receive summons from this court he has not filed written authorization given to him by higher officers to give evidence and a perusal of Ex P4 cheque return memo disclose that it was addressed to

UTI Bank limited and it also did not contain the name of the complainant or the accused and more so in point No.1 supra it was already held that the complainant failed to prove existence of legally enforceable debt between the parties, it is clear that the presumption under 146 of N.I

Act is disproved. Yet learned counsel for the complainant argued that the defence counsel is silent in his argument as to the cheque and that the cheque was not given by the accused. This arguments of the counsel

for the complainant is a fallacy, in as much as, the complainant through

the evidence of P.W2 and through Exs P3 and P4 miserably failed to prove that the impugned cheque was given for discharge of legally enforceable debt. In that view of the matter I hold that the impugned cheque Ex P3 cannot be said that it was given by the accused to the complainant towards discharge of legally enforceable debt, not -with- standing its dishonour. This point is also therefore answered against the complainant and in favour of the accused.

12] Point No.3:- It is the case of the complainant that after the impugned cheque was dishonoured they caused statutory legal notice under Ex P5 but it was returned unserved under Ex P6 postal cover as not claimed. Learned counsel for the accused argued that

Ex P6 postal cover did not accompany postal acknowledgement. But a perusal of the complaint, legal notice Ex P5 and postal cover Ex P6 contain the same address of the accused. The accused did not produce into court any other evidence showing that in fact he was residing elsewhere other than the address mentioned in the above documents. It is a well settled principle of law that if the statutory legal notice is sent to the accused to his correct address by registered post, it is deemed service under Sec.27 of General Clauses Act. A glance at the postal cover Ex P6 disclose that it was “not claimed”. Such endorsement was made by the postal authorities. The very phrase “ Not claimed” disclose that the address was very much present and he refused to receive the postal cover. Consequently I hold that statutory legal notice Ex P5 is deemed to have been served on the accused. This point is therefore answered in favour of the complainant and against the accused.

13] Point No.4:-In view of my findings of points 1 and 2 supra I hold that the complainant miserably failed to establish the guilt of the accused for the offence U/Sec. 138 r/w 142 of N.I. Act and that therefore the accused is entitled to be acquitted. This point is therefore answered in favour of the accused and against the complainant.

14) In the result I find the accused not guilty of the offence

U/Sec. 138 r/w 142 of N.I. Act and acquit him U/Sec. 255 (1) Cr.P.C.

Typed to dictation corrected and pronounced by me in open court on 9th Day of May 2022.

Spl. Magistrate – V, Visakhapatnam.

Appendix of evidence

Witnesses examined.

For complainant:

P.W.-1- S.M. Srinivas

P.W.-2- M. Suresh ( Deputy Manager, ICICI Bank, Deputy Manager)

For Accused: None

Documents Marked.

For complainant:

Ex P1. --- True copy of Resolution of the minuets of the meeting of the board of directions dated 05.10.2004 delegating powers to file the complaint and give evidences.

Ex P2. --- Copy of award in L.S.A.No. 522/2008 in O.S.No.1431/2005 on the file of Principal Senior Civil Judge, Visakhapatnam.

Ex P3. --- Original cheque bearing No. 120610 dated 28.04.2009 for Rs.27,576/- drawn on ICICI Bank, Amalapuram branch, Amalapuram, East Godavari.

Ex P.4 ---- Cheque return memo dated 02.05.2009.

Ex P.5 ---- Legal notice dated 15.05.2009.

Ex P.6 ---- Returned postal cover.

Documents Marked for accused :- Nil

Spl. Magistrate – V, Visakhapatnam.

1

IN THE COURT OF THE V SPECIAL MAGISTRATE AT VISAKHAPATNAM.

Present : Sri K.Visweswara Rao, V Special Magistrate

C.C.No.604/2019 (Old C.C.No.906/2019 of IV ACMM Court, Visakhapatnam)

Tuesday the 17th day of May 2022

Between :

R. Anjaneya Patro, S/o. Late Sarvamangala Patro, 55 years, Private employee, R/o 203, Lalitha Manor Apts, G.R.Nagar, H.B colony, Visakhapatnam – 530022.

…... Complainant

And:

Pilaka Tirumala Reddy, S/o. Ramdas Reddy, Government employee, aged years, r/o D.No.6-18-3D, East point colony, China Waltair, Visakhapatnam – 530017.

...Accused

This case coming on 13.05.2022 for final hearing before me in the presence of Sri. K. Sambasiva Rao and K.N Kiran, Advocates for the complainant and of Sri. M.V. Rama Krishna Reddy, Advocate for the accused and having stood over till this day for consideration, the court delivered the following:

J U D G M E N T.

This is a private complaint filed by the complainant against the accused for the offence U/Sec. 138 r/w 142 of N.I. Act alleging as follows:

The accused borrowed a sum of Rs.3,00,000/- from the complainant on 05.07.2018 for the purpose of his family expenses and clearing sundry debts. Having received the consideration in cash of

Rs.1,00,000/- and Rs.2,00,000/- by way of cheque bearing No. 732238 drawn on Canara Bank, dated 05.07.2018 from the complainant, the accused executed a demand promissory note in favour of the 2 complainant on the same day agreeing to repay the same together with interest at 24% p.a. either to the complainant or to his order on demand.

Subsequently despite repeated demands the accused did not pay any amount towards the promissory note debt. Finally the accused issued a cheque bearing No. 829644 dated 06.09.2018 for Rs.2,12,000/- drawn on Canara Bank, Srikakulam to the complainant towards partial discharge of the debt. The complainant presented the said cheque in his account in Bank of India, MVP colony, Visakhapatnam on 03.11.2018, but the same was returned for insufficiency of funds on 05.11.2018.

Immediately the complainant approached the accused and apprised about the bouncing of the cheque. The accused requested him to wait for 10 days having waited for more than 10 days as the accused did not pay any amount, therefore the complainant got issued statutory legal notice Ex P4 to the accused. The said legal notice was managed by the accused and it was returned. Thus the act of the accused amounts to mischief and cheating for which the accused is liable for punishment under section 138 r/w 142 of N.I Act. Hence the complaint.

2) Cognizance of the offence U/Sec. 138 r/w 142 of N.I. Act was taken against the accused by the transferor court.

3) After appearance of the accused before the court, copies of documents were furnished to him. He was examined U/Sec. 251 Cr.P.C on the substance of accusation. He pleaded not guilty and claimed to be tried.

4) In order to prove the case of the complainant P.Ws 1 to 4 were examined and Exs P1 to P6 and Exs X1 and X2 were marked. After closure of the complainant's evidence the accused was examined U/Sec.

313 Cr.P.C on the incriminating material appearing in the evidence of prosecution witnesses. He denied the incriminating material. He did not choose to examine any defence witnesses.

3

5) Now the points for determination are:

1) Whether there existed a legally enforceable debt between the parties?

2) Whether the impugned cheque was given by the accused for discharge of such legally enforceable debt and it was dishonoured?

3) Whether the complainant served statutory legal notice on the accused properly?

4)Whether the complainant established the guilt of the accused for the offence under section 138 read with 142 of

N.I Act beyond all reasonable doubt?

5] Heard arguments of learned counsel for the complainant as well as learned counsel for the accused.

6] Point No. 1:- The complainant is examined as P.W1. In the chief-examination he deposed to the same facts as mentioned in the complaint. The case was coming up for cross-examination of P.W1 on 19.02.2020 for the 12th adjournment the docket dated 19.02.2020 is as follows:

“ Complainant and accused present.

Passover. P.W1 is present. But defence counsel is

not present even for the 12 th adjournment. Hence

cross-examination of P.W1 is treated as Nil. Issue

summons to L.Ws 2 and 3 by RPAD on batta. Call on

05.03.2020.

Thus the evidence of P.W.1 given in the chief-examination which is in conformity and in consonance with his chief evidence remained unchallenged. The defence counsel did not take steps subsequently for cross examination of P.W1. At this juncture it is to be noticed that the defence counsel cross examined the other witnesses. The complainant examined apart from himself as P.W1, the attestor of the promissory note as P.W4. P.W4 deposed in the chief-examination that he is the first attestor of the promissory note, that the accused executed the promissory 4 note on 05.07.2018 in favour of the complainant after receipt of

Rs.3,00,000/- i.e. Rs.1,00,000/- in cash and Rs.2,00,000/- by way of cheque bearing No. 732238 drawn on Canara Bank of M.V.P colony,

Visakhapatnam dated 05.07.2018 in his presence and another witness by name P. Venkata Rao and scribe by name Donkada Ananda Rao who filled in the printed form. He further deposed that the accused borrowed the amount for the purpose of his family expenses and to discharge sundry debts. He was cross examined. In the cross-examination also this witness deposed that the complainant paid an amount of Rs.1,00,000/- in cash and Rs.2,00,000/- by way of cheque to the accused as consideration under Ex P1 promissory note. He further deposed that he has not verified the contents and signature on the cheque for

Rs.2,00,000/- given by the complainant to the accused and he does not know whether that cheque was encashed by the accused or not. It is not for the attestor to know all these facts. In the cross-examination also as stated above it was elicited by the defence counsel from this witness that the complainant paid cash of Rs.1,00,000/- and cheque for

Rs.2,00,000/- to the accused towards consideration under the promissory note. In the pronote the recitals are also like that. The other cross- examination made to this witness by the defence counsel is formal and insignificant. I therefore hold that the unchallenged testimony of P.W1 is corroborative and consistent with that of the testimony of P.W4 the attestor, so far as execution of the promissory note Ex P1 by the accused in favour of the complainant after receipt of full consideration. Learned counsel for the complainant argued that the evidence of P.W1 remained unchallenged and the signature on the promissory note also proved. Learned counsel for the accused could not repel such a contention. I therefore hold that the promissory note is true, 5 valid, supported by full consideration and binding on the accused.

Consequently I hold that there existed a legally enforceable debt between the parties. This point is therefore answered in favour of the complainant and against the accused.

7] Point No.2:- It is the case of the complainant that despite repeated demands the accused did not repay any amount to him towards promissory note debt, but finally issued Ex P2 cheque for

Rs.2,12,000/- which was dishonoured under Ex P3 cheque return memo for “insufficiency of funds”. This fact is deposed to by P.W1 and it remained unchallenged. In addition to that the complainant examined his banker as P.W2 and banker of the accused as P.W3. P.W2, Officer

Administration in Bank of India, M.V.P colony deposed that the complainant is having account in their branch vide Ex X1 statement of account and Ex P2 cheque came to their branch for clearance on 04.11.2018, but it was dishonoured because of insufficiency of funds under Ex P3 cheque return memo given by their branch. He was cross examined. In the cross-examination he deposed that he did not bring any authorization from his branch manager to give evidence in this case.

To a suggestion that as he did not bring authorization his evidence is not valid, he denied. P.W3, Manager, Canara bank, Srikakulam deposed that the accused is having account in their branch vide Ex X2 statement of account, Ex P2 cheque leaf emanated from a cheque book given by their branch to the accused and Ex P2 cheque did not reach their branch, but as per CTS system the complainant bank noticed that there is no balance in the account of the accused in their branch and therefore they returned the cheque under Ex P3 cheque return memo given by them. The same fact was deposed by this witness in his cross-examination. However he deposed that he cannot say when the accused opened his account in their bank and when the cheque book corresponding to Ex P2 cheque 6 was given to the accused by their branch unless he verify the record.

This information is not germane to the case on hand. Learned counsel for the accused argued that as P.W2 came to the court and gave evidence without authorization his evidence is not valid. Though P.W.2 gave evidence without authorization, P.W3 who is manager himself of the accused bank categorically and in unequivocal terms deposed that though the impugned cheque did not reach their branch. P.W.2's Bank through CTS system verified the balance in the account of the accused in their branch and dishonoured cheque under Ex P3 cheque return memo.

Thus the evidence of P.W2 was qualified by P.W3. Therefore the argument of the defence counsel is unsustainable. In addition to that a glance at cheque return memo Ex P3 disclose that the impugned cheque was dishonoured because of insufficiency of funds and it contain the signature of the bank official and stamp/seal of the bank which issued it.

Thus the cheque return memo Ex P3 full filled the essential ingredients of Sec.146 of N.I Act, in as much as the accused failed to disprove Ex P3 cheque return memo as appreciated supra. Consequently I hold that the impugned cheque Ex P2 was given by the accused to the complainant towards discharge of legally enforceable debt and it was dishonoured.

This point is also therefore answered in favour of the complainant and against the accused.

8] Point No.3 :- It is the case of the complainant that after the cheque was dishonoured he caused the statutory legal notice, under

Ex P4/P5 and the postal cover containing the legal notice, under Ex P6 was returned unserved with postal endorsement as “unclaimed”.

Learned counsel for the complainant contended that the statutory legal notice was sent to the accused by registered post to his correct address.

But learned counsel for the accused argued that the statutory legal notice was not at all served on the accused. A perusal of complaint, 7 promissory note Ex P1, statutory legal notice Ex P4 and the postal cover

Ex P6 disclose the same address of the accused. As already stated

P.W1 deposed in the chief-examination that he caused statutory legal notice to the accused by registered post, but the accused managed to get the legal notice returned. When statutory legal notice was returned unserved with postal endorsement as “unclaimed” it presupposes that really the accused was present and when the post man offered the postal cover, sensing the contents in the postal cover, the accused physically present and unclaimed the postal cover. Further it is a well settled principle of law that when the statutory legal notice was sent to the accused by registered post to his correct address it is deemed service U/Sec. 27 of General Clauses Act. I am fortified with this view by a decision of Supreme Court reported in 2007 (2) LS 157 SC CC Alavi

Haji Vs. Palapetty Mohammed. Consequently I hold that statutory legal notice is deemed to have been served on the accused properly.

This point is also therefore answered in favour of the complainant and against the accused.

9] Point No.4:- In view of my findings on points 1 to 3 supra, I hold that the complainant ably established the guilt of the accused for the offence under Section 138 read with 142 of Negotiable Instrument

Act and that therefore, the accused is liable to be punished suitably. This point is also therefore answered in favour of the complainant and against the accused.

10] In the result, I find the accused guilty of the offence

U/sec. 138 r/w 142 of Negotiable Instrument Act and convict him

U/sec.255(2)&(3) Cr.P.C.

Typed to dictation corrected and pronounced by me in open court on 17th Day of May 2022.

Sd/- K. Visweswara Rao

Spl. Magistrate – V, Visakhapatnam.

8 9 9] Point No.3:- It is the case of the complainant that after the cheque was dishonoured he caused statutory legal notice under Ex P5 to the accused and it was acknowledged by the accused under Ex P6. Learned counsel for the accused argued that the accused did not receive the statutory legal notice. Learned counsel for the complainant demonstrated before the court the signature of the accused on the postal acknowledgement Ex P6 and the promissory notes Exs P1 and P2 and contended that the signature of the accused on all three documents is alike. A bare looking at the three documents and also the statements of the accused U/Secs. 251 Cr.P.C and 313 Cr.P.C disclose that all the characteristics of the signatures are alike. I therefore hold that the statutory legal notice is validly served on the accused and the argument of the Learned defence counsel is not justified. This point is therefore answered in favour of the complainant and against the accused.

10] Point No.4:- In view of my findings on points 1 to 3 supra, I hold that the complainant ably established the guilt of the accused for the offence under Section 138 read with 142 of Negotiable Instrument

Act and that therefore, the accused is liable to be punished suitably. This point is also therefore answered in favour of the complainant and against the accused.

11] In the result, I find the accused guilty of the offence

U/sec. 138 r/w 142 of Negotiable Instrument Act and convict him

U/sec.255(2)&(3) Cr.P.C.

Typed to dictation corrected and pronounced by me in open court on 12th Day of May 2022.

Spl. Magistrate – V, Visakhapatnam.

10

Quantum of Sentence dated:- 17.05.2022

The accused is questioned with regard to the quantum of sentence to be imposed on him . He pleaded mercy stating he is working as deputy executive engineer in electrical department. Taking into account the facts and circumstances of the case and the plea of the accused , though I do not consider that the accused is entitled for the benevolent provisions of Probation of Offenders Act, a lenient view is warranted because of the other attending circumstances . Hence the accused is sentenced to suffer Rigorous Imprisonment for a period of 01 (One) month and to pay compensation to the complainant

U/sec.357 (3) Cr.P.C., in a sum of Rs.2,12,000/- ( Rupees Two Lakhs twelve thousand only ) which is equivalent to the impugned cheque

Ex.P-2 with interest thereon at 9% P.A. from the date of cheque i.e.

06.09.2018 within a period of one month from today failing which, to undergo Simple imprisonment for a period of 15 days more.

Sd/-. K. Visweswara Rao

Spl. Magistrate – V, Visakhapatnam.

Appendix of evidence

Witnesses examined.

For complainant:

P.W.-1- R. Anjaneya Patro

P.W.-2- Y. Sanyay Kumar ( Officer administration, Bank of India)

P.W.-3- K. Shanumk Rao ( Manager, Carana Bank)

P.W.-4- Rayana Chinna Rao ( Attestor)

For accused : None

Documents Marked.

For complainant:

Ex P.1 --- Original promissory note dated 05.07.2018 for Rs.3,00,000/-.

Ex P.2 --- Original cheque bearing No.829644 dated 06.09.2018 for Rs.2,12,000/- drawn on Canara Bank, Srikakulam.

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Ex P.3 ---- Cheque return memo dated 05.11.2018 for insufficiency of funds.

Ex P.4 ---- Legal notice dated 28.11.2018.

Ex P.5 ---- Postal receipt dated 01.12.2018.

Ex P.6 ---- Returned postal cover.

Ex X1 is the statement of account of complainant. Ex X2 is the statement of account of accused.

For Accused: Nil

Sd/-. K. Visweswara Rao

Spl. Magistrate – V, Visakhapatnam.

-// True Copy/-

Spl. Magistrate – V, Visakhapatnam.

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CALENDAR AND JUDGMENT

IN THE COURT OF THE SPECIAL MAGISTRATE – V ,

VISAKHAPATNAM.

C.C.No.604/2019

(Old C.C.No. 906/2019 of IV ACMM Court, Visakhapatnam)

Date of offence : 06.09.2018

Date of complaint or report : 17.01.2019

Date of apprehension : : 02.08.2019

Date of release on bail : ----

Date of commencement of trial : 28.08.2019

Date of closure of trial : 11.04.2022

Hearing of arguments: : 13.05.2022

Date of judgment : 17.05.2022

R E M A R K S : Due to non appearance of witnesses the trial could not be conducted in time. Hence the delay. Description of Complainant

R. Anjaneya Patro, S/o. Late Sarvamangala Patro, 55 years, Private employee, R/o 203, Lalitha Manor Apts, G.R.Nagar, H.B colony, Visakhapatnam – 530022.

Description of Accused Pilaka Tirumala Reddy, S/o. Ramdas Reddy, Government employee, aged years, r/o D.No.6-18-3D, East point colony, China Waltair, Visakhapatnam – 530017.

Offence : U/sec. 138, r/w 142 of Negotiable Instrument Act

Finding : Found guilty of the offence U/sec.138 r/w 142 of N.I.Act.

Sentence: Accused is convicted U/sec. 255 (2) &(3) Cr.P.C. and sentenced to suffer Rigorous Imprisonment for a period of 01 (One) Month and to pay compensation to the complainant U/sec.357 ( 3) Cr.P.C. in a sum of Rs.2,12,000/- [ Rupees Two lakhs twelve thousand only ] which is equivalent to the impugned cheque Ex.P-2 together with interest thereon at 9% P.A. from the date of cheque i.e., 06.09.2018 within a period of one month from today failing which to under go Simple Imprisonment for a period of 15 days more.

Spl. Magistrate – V, Visakhapatnam.

Note: Sentence is suspended as the accused executed bond and furnished sureties.