Sri.Kantipudi Srihari

1

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF THE

FIRST CLASS CUM III ADDL. JUNIOR CIVIL JUDGE : KAKINADA

Present : Kantipudi Srihari

III Additional Judicial Magistrate of the First Class, Kakinada.

Monday, the 25th day of June, 2018.

C.C. No. 121 of 2016

Between

Tirumalaraju Veera Venkata Suryanarayana Varma, S/o Satyanarayanaraju, 38 years, cultivation, Kshaktriya, D.No.2-273/1, Kongodu, Karapa Mandal.

Karapa Police Station. .. Complainant

And

Gangajinappa, S/o Marappa, 45 years, business, Baraguru (V), Neeramangala Taluk, Maralakunta (P), Bangalore Rural District, Karnatka State.

Neeramangala P.S. .. Accused

This case coming on 22-06-2018 for final hearing before me in the presence of SriM.V.J. Rama Gopal, Advocate for the complainant and of Sri V. Srinivas and Sri K. Uday Kumar, Advocates for accused upon perusing the material on record and upon stood over for consideration till this day, this Court delivered the following:

JUDGEMENT

1. This is a complaint filed by the complainant under Section 200 of

Code of Criminal Procedure (for short, 'Cr.P.C') against the accused for the offence punishable under Section 138 of Negotiable Instruments Act 1881 (for short 'the Act').

2. The brief averments of the complaint are as follows:

a) The accused agreed to sell an extent of Ac.18.00 cents of land to the complainant and entered into an agreement of sale on 15.07.2013 for a consideration of Rs.2.50 crores and the complainant paid Rs.1.00 crore as an advance and obtained agreement of sale from the accused. Though the complainant was ready and willing to pay the balance sale consideration and to obtain sale deed, accused did not come forward to execute the sale deed and evading to execute the same on one pretext or the other. Subsequently matter was placed before elders and that accused agreed to pay a sum of Rs.1,25,00,000/- (Rupees one 2 crore and twenty five lakhs only) to him towards full and final settlement and accordingly on 20.08.2015 the accused and the complainant entered into a compromise agreement cancelling the agreement, dt:15.07.2013.

The accused issued four cheques bearing Nos.431313, 431314, 431375 and 431316, dt:20.08.2015 for Rs.10.00 lakhs each drawn on State Bank of Mysore, Dobbespet Branch, Bangalore Rural District towards part satisfaction of the amount payable to the complainant. The complainant presented the said cheques on 6.10.2015 and 27.10.2015 for collection, the same were dishonoured with an endorsement ‘account closed’.

Thereupon the complainant got issued a legal notice, dt:04.11.2015 demanding him for payment of cheque amount within 15 days. The accused received the said notice and got issued a reply, dt.09.12.2015 with false and untenable allegations. Hence, the complaint.

3. On perusal of the entire complaint and the sworn statement by the complainant, all the allegations attracts ingredients of the offence punishable under Section 138 of the Act were made out against the accused, cognizance was taken for the offence punishable under Section 138 of the Act and accordingly, summons were issued to the accused.

4. On appearance of the accused, copies of documents were furnished to him as required under Section 207 Cr.P.C., and accused was examined under Section 251 Cr.P.C., for the offence punishable under Section 138 of the Act puttingforth the substance of the accusation made against him, for which the accused denied having committed the offence, pleaded not guilty and claimed to be tried.

5. To prove the case, the complainant examined himself as P.W-1 and got marked Ex.P.1 and P.11.

6. After completion of complainant’s side evidence, the accused was examined under Section 313 Cr.P.C., puttingforth the incriminating material that appears against him from the evidence of P.Ws. 1 and 2.

On behalf of the accused, he was examined as D.W.1 but no documents were marked.

7. Heard both sides and perused the material on record.

3

8. The point for determination is “Whether the complainant has

succeeded in proving the offence under Section 138 of the Act

against the accused beyond all reasonable doubt.”

9. POINT:- The learned counsel for the complainant contended that the accused agreed to sell an extent of Ac.18.00 acres of land, entered into an agreement of sale on 15.07.2013 for a consideration of Rs.2.50 crores, thereupon the complainant paid one crore rupees as advance and obtained agreement of sale from the accused. He further contended that though the complainant was ready and willing to pay balance sale consideration, the accused did not come forward to execute the sale deed, the matter was placed before the elders, the accused agreed to cancel the agreement by paying Rs.1,25,00,000/- to the complainant towards full and final settlement. He further contended that accordingly on 20.08.2015 the complainant and the accused entered into an agreement and thereupon the accused issued four cheques bearing Nos.

431313, 431314, 431375 and 431316, dt:20.08.2015 for Rs.10 lakhs each. He further contended that when the complainant presented the said cheques through his banker the same were returned with an endorsement that ‘account closed’. He further contended that when the complainant got issued a mandatory notice, dt:04.11.2015 to the accused and the accused after receipt of the same gave a reply, dt.09.12.2015 with all false allegations without paying any amount of cheques and hence the accused is liable to convicted for the offence punishable under section 138 of the Act.

10.The basic ingredients of Section 138 of the Act which are as follows.

(a) The accused issued the cheque on an account maintained by him with a Bank.

(b) The said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.

Explanation. - For the purposes of this section, "debt or other liability" means a “legally enforceable debt or other liability." 4

(c) The said cheque had been presented to the Bank within the period of its validity.

(d) The aforesaid cheque when presented for encashment, was returned unpaid/dishonoured either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank.

(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.

Note.- Notice of dishonour is unnecessary when the party entitled to notice cannot after due search be found (See section 98, Negotiable

Instruments Act).

(f) The Drawer of the cheques failes to make the payment within 15 days of the receipt of aforesaid legal notice of demand.

12. The complainant is examined as P.W.1 and got marked Exs.P1 to

P.11. P.W.1 deposed before this court that in view of the agreement,

dt:20.08.2015, the accused issued four cheques for Rs.10,00,000/- each

on 20.08.2015 and the same were returned as the account was closed.

He further deposed that even after receipt of notice, except giving reply under Ex.P7, the accused did not pay the amount. Ex.P1 is the agreement, dt:20.08.2015 and Exs.P2 to P5 are the four cheques allegedly issued by the accused in favour of the complainant and Exs.P8 to P11 are the cheque return memos, dt:06.10.2015 and 27.10.2015.

On perusal of Ex.P1 agreement, the accused herein agreed to pay

Rs.1.25 crores to the complainant towards full and final settlement of all the claims and in the said agreement it is mentioned that the accused issued four cheques on 20.08.2015 for Rs.10,00,000/- each in favour of the complainant. According to the terms of the Ex.P1 agreement the previous agreement of sale, dt:15.07.2013 is cancelled and the same was returned to the accused. Ex.P6 is the notice got issued by the complainant to the accused and Ex.P7 is the reply got issued by the accused. According to the reply under Ex.P7, the accused stated that while he was travelling in a bus from Bengaluru to his village, he lost a handbook in which the cheque bearing Nos. 431313, 431314, 431375 5 and 431316, dt:20.08.2015 and some other documents pertaining to his house property were lost and he lodged a complaint before the

Dobbespet police to that extent. He also submitted a complaint with the

Manager, State Bank of Mysore, Dobbespet about the missing of above said cheque leaves and closed his account. In Ex.P7 he denied all other allegations made by the complainant in the notice under Ex.P6. Though several opportunities were given to the accused, he did not cross examine P.W.1 to prove his contentions raised in his reply notice under

Ex.P7. After making his first appearance through his counsel the accused not cooperated with this court for his examination under Section 251 Cr.P.C., and thereafter this court got issued Non Bailable Warrant against the accused on 20.10.2016. Thereafter he was arrested and produced before this court in the month of July, 2017. On his production, the accused was examined under Section 251 Cr.P.C., and he pleaded not guilty and claimed to be tried. Thereafter the accused did not come forward even for cross examination of P.W.1. In the month of

January, 2018, after several adjournments, when there is no representation on behalf of the accused, this court after waiting till 4.00 p.m., when the learned counsel for the accused represents that he has no instructions from the accused, the cross examination of P.W.1 is closed by treating as NIL. Thereafter the evidence of complainant is closed and posted the matter for the examination of accused under

Section 313 Cr.P.C., and issued NBW against the accused again. At last the accused was again produced through the Advocate Commissioner and he was examined under Section 313 Cr.P.C., and he reported that he has evidence. As the accused could not produce sufficient sureties, he is in remand. During the remand period, the accused is examined as D.W.1 and deposed that he do not know the complainant and he admitted that he has 4 acres of land in the name of his father and denied the agreement as alleged by the complainant. D.W.1 the accused deposed that no advance was given in view of the alleged agreement and no settlement took place before the elders and all the allegations mentioned in the complainant as well as in the chief affidavit of P.W.1 are all false.

He further deposed that they never entered into any compromise much less on 20.08.2015. He further deposed that he never issued any cheque to the complainant but he gave cheque to one Manju of

Karnataka and he did not issue any cheques as mentioned in the 6 complaint. He further deposed that no transaction took place between himself and the complainant. During the course of cross examination he denied even the issuance of reply notice under Ex.P7 and deposed that he never lost his cheques at any point of time and denied all other suggestions about purchasing of stamp on 04.07.2015 in Karnataka in his name and also denied his signature and thumb impression on Exs.P1 and P2 to P5.

a)The accused on the one hand in Ex.P7 stated that the alleged cheques under Exs.P2 to P5 are lost while hewas travelling from one place to another place and on the other hand during the course of cross examination as D.W.1 deposed that he never lost any cheques and even denied the reply notice under Ex.P7. The entire case of the accused from the beginning is quite conflicting in nature and he never been convinced this Court and the accused is not cooperating with this court at any point of time from the date of his first appearance and even before the date of his appearance. The accused being native of another State, this court appointed Advocate Commissioners at the request of the learned counsel

for the complainant and got secured his presence before this court. On

one point of time after his arrest, he was released his sureties

Rs.25,000/- each and at the second time on his arrest when this court grants bail, he could not produce any sureties and not even produced any persons who issued surety in the last occasion. Therefore, from the beginning the conduct of the accused is not on convincing and not at all cogent. According to the complainant/P.W.1, Ex.P7 is the reply notice got issued by the accused wherein the accused pleaded that the alleged

Exs.P2 to P5 cheques were lost and he also made a report before police concerned. Whereas the accused as D.W.1 deposed before this court that he never got issued any reply and no cheques were lost at any point of time. Though he denied his signature and thumb impression in Exs.P1 and P2 to 5, it is the burden on the part of the accused to prove the same.

Section 139 of the Negotiable Instruments Act provides a presumption in favour of the complainant when the accused admitted his signature and thumb impression on the cheque, the debt is presumed to be the legally enforceable debt. In this case, the accused denied his 7 signature. When the presumption is in favour of the complainant and when the complainant produced Ex.P1 agreement and Exs.P2 to P5 cheques the onus shifts on the accused to prove his case. But the accused did not raise his little finger to prove his respective contentions.

The accused did not even cross examine the P.W.1 though the petition filed under Section 311 Cr.P.C. is allowed to reopen and recall P.W.1.

13. Now, I would like to consider whether the legal requirement for proof of section 138 of the Act have been fulfilled or not. Exs.P2 to P5 cheque bearing Nos. 431313, 431314, 431375 and 431316,

dt:20.08.2015 for Rs.10 lakhs each were issued in favour of the

complainant by the accused. Exs.P8 to P11 are the cheque return memos through which Exs.P2 to P5 were presented in the bank account of the complainant for encashment within the validity period. According to the Exs.P8 to P11 memos, the cheques were dishonoured for account closed. Therefore, it is clear that the complainant has got knowledge of closing of his account, for which Exs.P2 to P5 were dishonoured and thereafter the complainant had issued Ex.P6 legal notice, dt:04.11.2015 to the accused and Ex.P7 is the reply notice got issued by the accused.

It is not the case of the accused that he did not receive any notice from the complainant but he denied the suggestion that he got issued reply notice. Therefore, it is clear that the legal notice is sent with in the prescribed period and hence the accused has to pay the amount mentioned in Exs.P2 to P5 to the complainant but the said amount is not paid by the accused. Hence, the cause of action arose and this complaint is filed well within the time as mandated under Section 138 of the Act.

14. In criminal cases the burden of proof is always on the prosecution and the standard of proof is beyond reasonable doubt. This is not such a case. In criminal law for the complainant or the prosecution as the case may be to establish the case against the accused beyond all reasonable doubt. The said general rule of criminal law has no application for the cases falling under section 138 of the Act in view of the safeguard provided under section 138 of the Act. In a prosecution under section 138 of the Act all that the prosecution needs to prove is the issuance of cheque by the drawer, its presentation within the period of its validity, issuance of statutory notice, demanding payment of cheque amount and 8 failure on the part of drawer to make the payment within 15 days of receipt of notice. The burden of proving that the cheque was not issued for discharge of any debt or other liability is on the accused. Till the accused discharges the said onus or burden, the onus will never shift back to the complainant and the presumptions in his favour will be in operation. [See Ratakonda Raghu Naidu v. Kolla SivaramPrasad, 2003 (2) ALD (CrI) 956].

15. By adducing the oral evidence in addition to the producing of documentary evidence, the complainant proved his case. Moreover, the accused could not disprove the allegations made against him.

Accordingly it is clear that the drawer of a cheque shall be deemed to have committed an offence punishable under section 138 of the Act as the aforesaid ingredients are satisfied.

16. In view of the aforesaid discussion, I hold that the complainant could establish the guilt of the accused beyond all reasonable doubt for the offence under section 138 of the Act and he is accordingly liable for punishment.

17. In the result the accused is found guilty and convicted under

Section 255(2) of the Cr.P.C. for the offence punishable under Section 138 of the NI Act.

Dictated to the Gr.III Stenographer, transcribed by him, corrected, and

pronounced by me in the open Court, on this the 25th day of June, 2018.

III ADDL. JUDICIAL MAGISTRATE OF THE FIRST CLASS

CUM III ADDL. JUNIOR CIVIL JUDGE,

KAKINADA

9

18. When questioned the accused on the quantum of punishment, the accused submitted that I want 10 or 15 days time to settle the matter and seeks to take lenient view. Having due regard to the nature of the offence proved against the accused, considering the evidence adduced by the accused during the proceedings and considering the requisition made by the accused this Court is inclined to take a lenient view in awarding punishment.

19. In the result, the accused is found guilty of the offence under section 138 of Negotiable Instruments Act, 1881, and he is accordingly convicted under section 255 (2) Cr.PC. The accused is sentenced to suffer simple imprisonment for a period of One year and shall also pay a fine of Rs.49,65,000/- (Rs.9,65,000+40,00,000/-) (Rupees forty nine lakh and sixty five thousand only) by calculating 9% p.a. interest from the date of cheques on the cheques amount. In default of payment of fine, Accused shall undergo simple imprisonment for a period of one month. On realization of the fine amount and on expiry of appeal time, an amount of Rs.49,55,000/- (Rupees forty nine lakh and fifty five thousand only) is ordered to be paid to the complainant from out of that fine amount as compensation as contemplated under section 357(1)(b)

Cr.P.C. The remand period of the accused i.e., 15.06.2018 to till today i.e., 25.06.2018 shall be set off under section 428 Cr.P.C. The accused is hereby informed that he has got a right of appeal to assail this

Judgment.

III ADDL. JUDICIAL MAGISTRATE OF THE FIRST CLASS

CUM III ADDL. JUNIOR CIVIL JUDGE,

KAKINADA

10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT:

PW.1 : Tirumalaraju Veera Venkata Suryanarayana Varma

FOR DEFENCE:

D.W.1 : Gangajanappa

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P1 : Cancellation Agreement, dt:20.08.2015

Ex.P2 : Cheque No.431313, dt:20.08.2015

Ex.P3 : Cheque No.431314, dt:20.08.2015

Ex.P4 : Cheque No.431316, dt:20.08.2015

Ex.P5 : Cheque No.431315, dt:20.08.2015

Ex.P6 : Office copy of notice, dt:04.11.2015

Ex.P7 : Reply notice, dt:09.12.2015

Ex.P8 : Returned memo, dt:06.10.2015

Ex.P9 : Returned memo, dt:06.10.2015

Ex.P10: Returned memo, dt:27.10.2015

Ex.P11: Returned memo, dt:27.10.2015

FOR ACCUSED : Nil

III ADDL. JUDICIAL MAGISTRATE OF THE FIRST CLASS

CUM III ADDL. JUNIOR CIVIL JUDGE,

KAKINADA

11

CALENDAR

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF THE FIRST CLASS

KAKINADA

C.C.No.121/2016

Date of Offence : 20.08.2015 Date of Report of Complaint : 29.01.2016 Date of Apprehension of accused : 15.06.2018 Date of release of accused : Till today accused is in Sub Jail, Kakinada. Date of commencement of trial : 22.11.2017 Date of Closure of trial : 11.06.2018 Date of Sentence of Order : 25.06.2018

Explanation of delay and remarks : Due to non-production of Witnesses

Address and particulars of Complainant Tirumalaraju Veera Venkata Suryanarayana Varma, S/o Satyanarayanaraju, 38 years, cultivation, Kshaktriya, D.No.2-273/1, Kongodu, Karapa Mandal. Karapa Police Station.

Address and particulars of Accused Gangajinappa, S/o Marappa, 45 years, business, Baraguru (V), Neeramangala Taluk, Maralakunta (P), Bangalore Rural District, Karnatka State. Neeramangala P.S.

Offence : Under Section 138 of N.I. Act., Plea of accused : Pleaded guilty. Finding : Found guilty. Sentence:- In the result, the accused is found guilty of the offence under section 138 of Negotiable Instruments Act, 1881, and he is accordingly convicted under section 255 (2) Cr.PC. The accused is sentenced to suffer simple imprisonment for a period of One year and shall also pay a fine of Rs.49,65,000/- (Rs.9,65,000+40,00,000/-) (Rupees forty nine lakh and sixty five thousand only) by calculating 9% p.a. interest from the date of cheques on the cheques amount. In default of payment of fine, Accused shall undergo simple imprisonment for a period of one month. On realization of the fine amount and on expiry of appeal time, an amount of Rs.49,55,000/- (Rupees forty nine lakh and fifty five thousand only) is ordered to be paid to the complainant from out of that fine amount as compensation as contemplated under section 357(1)(b) Cr.P.C. The remand period of the accused i.e., 15.06.2018 to till today i.e., 25.06.2018 shall be set off under section 428 Cr.P.C. The accused is hereby informed that he has got a right of appeal to assail this Judgment.

III ADDL. JUDICIAL MAGISTRATE OF THE FIRST CLASS

CUM III ADDL. JUNIOR CIVIL JUDGE,

KAKINADA.

Copy to:-

1. The Hon’ble Chief Judicial Magistrate-cum-Prl. Senior Civil Judge, Rajahmahendravaram.

2. Copy to the accused.

3. Copy to D.L.S.A., Rajamahendravaram.

1

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF THE

FIRST CLASS : KAKINADA

Present : Kantipudi Srihari

III Additional Judicial Magistrate of the First Class, Kakinada.

Wednesday, the 22nd day of June, 2018.

C.C. No. 149 of 2016

Between

Jalagadugula Varalakshmi, W/o Nageswararao, 39 years, Property owner, R/o D.No.22-4-10 GGH, F.N. Quarters, Frazerpeta, Kakinada.

Kakinada 1 Town P.S. Limits. .. Complainant

And

Chukka Sitaratnam, S/o veerraju, 45 years, Employee as G Clerk in GGH, Kakinada, D.No.7-8-12, R/o Indrapalem, Kakinada.

Indrapalem P.S. Limits. .. Accused

This case coming on 12-06-2018 for final hearing before me in the presence of Sri V. Raja Babu, Advocate for the complainant and of Sri K.S.N. Murthy, Advocate for accused upon perusing the material on record and upon stood over for consideration till this day, this Court delivered the following:

JUDGEMENT

1. This is a complaint filed by the complainant under Section 200 of

Code of Criminal Procedure (for short, 'Cr.P.C') against the accused for the offence punishable under Section 138 of Negotiable Instruments Act 1881 (for short 'the Act').

2. The brief averments of the complaint are as follows:

a) The accused along with one Ch. Mary jointly borrowed an amount of Rs.4,50,000/- from the complainant on 14.01.2015 agreeing to repay the same with interest @24% p.a., and they jointly executed a demand promissory note on the same day. After repeated demands, the accused issued a cheque bearing No.449038, dt:13.02.2016 drawn on

Vijaya Bank, G.G.H., Branch, Kakinada. The complainant presented the same on 16.02.2016 for collection, the same was dishonoured due to insufficient funds and the said information was received by the complainant through a memo, dt:16.02.2016. Thereupon the 2 complainant got issued a legal notice, dt:25.02.2016 demanding him for payment of cheque amount within 15 days. The accused received the said notice and did not pay the cheque amount. The complainant further submits that as there is a mistake crept in the notice, dt:25.02.2016, she also got issued another notice on 15.03.2016 rectifying the typographical mistake and the said notice was returned as not claimed on 28.03.2016.

3. On perusal of the entire complaint and the sworn statement by the complainant, all the allegations attracts ingredients of the offence punishable under Section 138 of the Act were made out against the accused, cognizance was taken for the offence punishable under Section 138 of the Act and accordingly, summons were issued to the accused.

4. On appearance of the accused copies of documents were furnished to him as required under Section 207 Cr.P.C., and accused was examined under Section 251 Cr.P.C., for the offence punishable under Section 138 of the Act puttingforth the substance of the accusation made against him, for which the accused denied having committed the offence, pleaded not guilty and claimed to be tried.

5. To prove the case, the complainant examined herself as P.W-1 and got marked Ex.P.1 and P.7 and also examined one Meesala Rajani as

P.W-2 to support her case.

6. After completion of complainant’s side evidence, the accused was examined under Section 313 Cr.P.C., puttingforth the incriminating material that appears against him from the evidence of P.Ws. 1 and 2.

On behalf of the accused, she was examined as D.W.1 but no documents were marked.

7. Heard both sides and perused the material on record.

8. The point for determination is “Whether the complainant has

succeeded in proving the offence under Section 138 of the Act

against the accused beyond all reasonable doubt.” 3

9. POINT:- The learned counsel for the complainant contended that the accused along with his wife Ch. Mary jointly borrowed an amount of

Rs.4,50,000/- from the complainant, executed a demand promissory note in favour of the complainant on 14.01.2015 and to discharge the said loan a cheque bearing No.449038 dated 13.02.2016 for

Rs.4,00,000/- was issued to the complainant and when the same was presented, the said cheque was dishonoured when the same was presented through complainants Banker at Kakinada. The learned counsel further contended that after receipt of return endorsement the complainant got issued legal notice dt. 25.02.2016 demanding him for payment of cheque amount within 15 days. The accused received the said notice and did not pay the cheque amount. The complainant further submits that as there is a mistake crept in the notice, dt:25.02.2016, she also got issued another notice on 15.03.2016 rectifying the typographical mistake and the said notice was returned as not claimed on 28.03.2016, but failed to repay the cheque amount nor issued any reply and the entire averments made in the complainant are concern to the purview of Sec.138 r/w.Sec.118 and 139 of the Act and hence, the accused is held liable for the punishment provided under section 138 of the Act.

10. The learned counsel for the accused contended that the complainant and the accused are colleagues and the accused also earning salary and she has no need to borrow any amount from the complainant. He further contended that the complainant is having no financial capacity to lend such a huge amount and when some disputes were cropped up in between the complainant and the accused during the course of their employment, the complainant forged the signatures of the accused, created the promissory note and cheque and filed this false case against the accused and prayed to dismiss the complaint.

11. The basic ingredients of Section 138 of the Act which are as follows.

(a) The accused issued the cheque on an account maintained by him with a Bank.

4

(b) The said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.

Explanation. - For the purposes of this section, "debt or other liability" means a “legally enforceable debt or other liability."

(c) The said cheque had been presented to the Bank within the period of its validity.

(d) The aforesaid cheque when presented for encashment, was returned unpaid/dishonoured either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank.

(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.

Note.- Notice of dishonour is unnecessary when the party entitled to notice cannot after due search be found (See section 98, Negotiable

Instruments Act).

(f) The Drawer of the cheques failes to make the payment within 15 days of the receipt of aforesaid legal notice of demand.

12. Before answering the respective contentions, this Court perused the entire evidence adduced on behalf of both the parties. PW1 is the complainant reiterated the averments made in the complaint. During the cross-examination P.W.1 deposed that she is a government employee working in GGH, Kakinada, her husband is a bank employee. P.W.1 further admits that she has no documentary proof to show that such an amount lend to the accused except the promissory note and she also admits that the accused is her colleague. P.W.2 who is the attestor to the Ex.P1 promissory note deposed that in her presence the complainant lent the money to the accused and she witnessed passing of consideration and execution of promissory note. In all P.W.2 supported the version of P.W.1. During the course of cross examination, P.W.2 admits that she is neighbour to her house and she witnessed the passing of consideration of Rs.4,50,000/-. She further deposed that in her presence Ex.P1 promissory note was executed.

5

a) The accused as D.W.1 in his examination in chief denied all the averments made by the complainant and deposed that some disputes cropped up in between himself and the complainant during the course of their employment, the complainant forged his signatures and created promissory note and cheque, there is no iota of truth in the allegations.

During the course of cross examination D.W.1 admits that he is working as Junior Assistant in the GGH, Kakinada and the complainant is also working in the same department. During the course of cross examination, D.W.1 denied that himself and his wife Ch. Mary borrowed amount and he did not issue any cheque to the complainant but admitted the receipt of Ex.P4 notice from the complainant and also admits that he did not give any reply nor submitted any report before the police with respect to the disputes as mentioned in her examination in chief.

13. It is the case of the accused that the signatures in Exs.P1 and P2 are not belongs to him and he did not borrow any amount much less

Rs.4,50,000/-. His case is that P.W.1 forged his signatures on Exs.P1 and P2 and created as if borrowed an amount of Rs.4,50,000/- and as if he issued the said cheque in view of the discharge of the said amount.

Whereas the case of the complaint is that the accused himself along with wife Ch. Mary came to her borrowed an amount of Rs.4,50,000/- on 14.01.2015 in the presence of P.W.2 and another attestor, executed

Ex.P1 promissory note and hence it has to be believed that the accused borrowed the said amount. To support the case of the complainant, she filed Ex.P1 promissory note and examined P.W.2 who is one of the attestors. When the case of the accused that the signature is not that of him, the burden is on the accused to prove that his signatures were forged by the complainant. The accused even did not raise his little finger to send the documents to the expert for comparison with his admitted signatures. In the absence of proving the burden on the accused it is deemed that the signatures are that of the accused and cannot be denied. To support the case of the complainant, the oral evidence of P.Ws.1 and 2 coupled with the documentary evidence of

Exs.P1 and P2 filed. Whereas accused could not placed any other evidence except bare denial signatures on Exs.P1 and P2.

14. The complainant proved that Ex.P1 was executed by the accused.

The presumption under section 139 of the Act would arise only when the 6 issue of cheque is admitted by the accused and that cheque was issued towards discharge of legally enforceable debt. Here in the present case on hand the complainant successfully proved that Ex.P1 executed by the accused by placing the oral evidence of P.W.2 coupled with the documentary evidence Ex.P1. Now, I would like to consider whether the legal requirement of Section 138 of the Act have been fulfilled or not.

Ex.P2 cheque bearing No.449038, dt.13.02.2016 was issued in favour of the complainant by the accused and Ex.P3, dt:16.02.2016 is the cheque return memo through which Ex.P2 was presented in the bank account of the complainant for encashment within the validity period. According to the said memo, the cheque was dishonoured for insufficient funds. So, it is clear that the complainant got knowledge of dishonour of Ex.P2 cheque, thereafter she got issued Ex.P4 legal notice, dt:25.02.2016 to the accused. Ex.P5 is the postal acknowledgment, Ex.P6 is the rectification notice to the notice, dt:25.02.2016 and Ex.P7 is the postal receipt of Ex.P6 notice. Ex.P5 clearly shows that the accused received the notice, dt:25.2.2016 acknowledging the receipt of notice. It is not the case of the accused that he did not receive the notice and therefore it is clear that the legal notice is sent within the prescribed period.

Therefore, the accused has to pay an amount mentioned in Ex.P2 cheque i.e., Rs.4,00,000/- to the complainant but the amount was not paid by the accused. Hence, the cause of action arose of this complaint was filed within the period of limitation after waiting sufficient statutory period as granted under Section 138 of the Act. Therefore, the complaint is very well within the time.

15. By adducing the oral evidence in addition to the producing of documentary evidence, the complainant proved her case. Moreover, the accused even though examined himself as D.W.1 could not disprove the allegations made against him. Accordingly it is clear that the drawer of a cheque shall be deemed to have committed an offence punishable under section 138 of the Act as the aforesaid ingredients are satisfied.

16. In view of the aforesaid discussion, I hold that the complainant could establish the guilt of the accused beyond all reasonable doubt for the offence under section 138 of the Act and he is accordingly liable for punishment.

7

17. Today when the matter called, the complainant and accused present before this Court and the complainant represented that the accused paid the entire cheque amount and she wanted to withdraw the case. In view of the said representation by the complainant, after ascertaining the voluntariness of the said representation, this Court inclined to take a lenient view though the accused is liable to be punished.

18. In the result the accused is found not guilty and acquitted under

Section 255(1) of the Cr.P.C. for the offence punishable under Section 138 of the NI Act.

Dictated to the Gr.III Stenographer, transcribed by him, corrected, and

pronounced by me in the open Court, on this the 22nd day of June, 2018.

III ADDL. JUDICIAL MAGISTRATE OF THE FIRST CLASS,

KAKINADA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT:

PW.1 : Jalagadugula Varalakshmi PW.2 : Meesala Rajani

FOR DEFENCE:

D.W.1 : Chukka Sitaratnam

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P1 : Demand promissory note executed by accused along with one Ch. Mary Mani in favour of complainant for Rs.4,50,000/- on 14.01.2015. Ex.P2 : Cheque issued by accused, dt.13.2.2016. Ex.P3 : Cheque return memo, dt.16.02.2016 Ex.P4 : Office copy of legal notice issued by complainant, dt.25.2.2016 Ex.P5 : Postal acknowledgment, dt:01.03.2016 Ex.P6 : Office copy of rectification notice, dt.25.02.2016. Ex.P7 : Postal receipt

FOR ACCUSED : Nil

III ADDL. JUDICIAL MAGISTRATE OF THE FIRST CLASS,

KAKINADA

8

CALENDAR

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF THE FIRST

CLASS KAKINADA

C.C.No.149/2016

Date of Offence : 13.02.2016 Date of Report of Complaint : 24.03.2016 Date of Apprehension of accused : -- Date of commencement of trial : 14.06.2017 Date of Closure of trial : 16.05.2018 Date of Sentence of Order : 22.06.2018

Explanation of delay and remarks : Due to non-production of witnesses Address and particulars of Complainant

Jalagadugula Varalakshmi, W/o Nageswararao, 39 years, Property owner, R/o D.No.22-4-10, GGH, F.N. Quarters, Frazerpeta, Kakinada. Kakinada 1 Town P.S. Limits.

Address and particulars of Accused

Chukka Sitaratnam, S/o veerraju, 45 years, Employee as G Clerk in GGH, Kakinada, D.No.7-8-12, R/o Indrapalem, Kakinada.

Offence : Under Section 138 of N.I. Act., Plea of accused : Pleaded not guilty. Finding : Found guilty.

9

Sentence:-

III ADDL. JUDICIAL MAGISTRATE OF THE FIRST CLASS,

KAKINADA

Copy to:-

1. The Hon’ble Chief Judicial Magistrate-cum-Prl. Senior Civil Judge, Rajahmahendravaram.

2. The Accused

1

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF THE

FIRST CLASS : KAKINADA

Present : Kantipudi Srihari III Addl.J.F.C. Magistrate, Kakinada.

Friday, the 22nd day of June, 2018.

C.C.No.151/2017

Between:-

State: Represented by S.I of police

I Town L&O Police station, Kakinada .. Complainant

And

Danduprolu Venkatesh @ Konda, S/o Peda Sathibabu 19 years, C/Agnikula Kshatriya, D.No.2-71, Kothapeta, Balusuthippa (V) of Katrenikona Mandal, R/o D.No.23-1-7, Perraju Veedhi, Prezerpeta,

Warf road, Kakinada. .. Accused.

This case coming on this day before me in the presence of Sri Assistant Public Prosecutor for the state and accused present in person and having been admitted the offence, this Court delivered the following:-

J U D G M E N T

1. The State represented by Sub-Inspector of Police, I Town L&O Police

Station, Kakinada filed charge sheet against the accused in Cr.No.21/2017 for the offence punishable under sections 338 of Indian Penal Code 1860 (herein after referred as I.P.C for the sake of brevity) and Section 3 r/w 181 and 130 r/w 177 of M.V. Act on its file.

2. The brief averments in the charge sheet are as follows:-

a) On 11.02.2017 evening at about 5.30 p.m., injured L.W.1

Kasinikota Suresh went to Balaji Cheruvu centre on his Hero Honda

Splendor motor cycle bearing No. AP-29/H. 6961 and while returning to home and when he reached near the main gate of GGH, Kakinada accused rider of Bajaj Avenger Motor cycle bearing No. AP-26/AR.1444 drove in a rash and negligent manner at high speed and without blowing horn and dashed against the motor cycle of L.W.1 from his behind. Due to which he fell down on the road and sustained bleeding injuries on his right foot and was shifted to GGH, Kakinada.

3. Basing on the Hospital intimation of injured L.W.1 Suresh,

L.W.7H.C.2503, OP PS, GGH, Kakinada recorded his statement on 11.02.2017 and basing on the same L.W.8 T. Ramakrishna, S.I. of Police, 1 2

Town L&O P.S., Kakinada registered a case in Cr.No.21/2017 under Sections 337 IPC and took up investigation in this case, and after investigation police filed chargesheet.

4. This case was taken on file for the offence Under sections 338 IPC and

Sec.3 r/w 181 and 130 r/w 177 of M.V. Act, against the accused.

5. On appearance of the accused, Copies of documents were furnished to him as required U/sec. 207 of Cr.P.C.

6. Accused was examined U/sec.251 Cr.P.C. by explaining the substance of accusation for the offence under sections 338 IPC and Sec.3 r/w 181 and 130 r/w 177 of M.V. Act, for which he admitted the offence, pleaded guilty and also stated that he would never commit any offence in future.

Considering the submission made by the accused, this court feels that his admission of guilt is voluntary and without any coercion.

7. In the result, the accused is found guilty for the offences punishable under sections 338 IPC and Sec.3 r/w 181 and 130 r/w 177 of M.V. Act on his own admission and accordingly the accused is convicted under section 241 Cr.P.C. The accused is required to be heard on the quantum of sentence to be imposed against him.

8. Quantum of sentence on the admission of the accused :

a) The accused when asked about the quantum of sentence to be imposed against him, he pleaded mercy of the court.

b) Considering the nature of the offence proved against the accused and in the facts and circumstances of the case this court is not inclined to invoke the beneficial provisions of Probation of Offenders Act, 1958 in favour of the accused.

c) However considering the mercy pleaded by the accused and submission put forward by him this court is of the opinion that it is a fit case to take lenient view. The circumstances do justify considering leniently.

3

9. In the result, the accused is found guilty for the offence punishable under sections 338 IPC and Sec.3 r/w 181 and 130 r/w 177 of M.V. Act on his own admission and accordingly he is convicted under section 241 Cr.P.C., for the offence punishable under Section 338 IPC., and he is sentenced to pay a fine of Rs.500/- (Rupees five hundred only) in default of payment of fine to undergo simple imprisonment for a period of one week for the said offence and he is convicted under section 241 Cr.P.C., for the offence punishable under Section 130 r/w 177 of M.V. Act, and he is sentenced to pay a fine of Rs.100/- (Rupees one hundred only) in default of payment of fine to undergo simple imprisonment for a period of 7 days for the said offence. The bail bonds of accused shall be in force for a period of six months as contemplated under Section 437-A Cr.P.C.

Typed to my dictation by the Gr.III Stenographer, corrected and

pronounced by me in the open court, on this the 22nd day of June 2018.

III Addl.J.F.C.Magistrate,

KAKINADA.

No oral or documentary evidence is adduced on either side.

III Addl.J.F.C.Magistrate,

KAKINADA.

4

CALENDAR

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF

THE FIRST CLASS KAKINADA

C.C.No. 151/2017

Date of Offence : 11.02.2017

Date of Report or Complaint : 12.02.2017

Date of Apprehension of accused : ----

Date of release of accused : ----

Date of commencement of trial : ----

Date of Closure of trial : ----

Date of Sentence of Order : 22-06-2018

Explanation of delay and remarks : No delay

State: Represented by Sub-Inspector of Police, 1 Town L&O Police Station, Kakinada. … Complainant

And

Danduprolu Venkatesh @ Konda, S/o Peda Sathibabu 19 years, C/Agnikula Kshatriya, D.No.2-71, Kothapeta, Balusuthippa (V) of Katrenikona Mandal, R/o D.No.23-1-7, Perraju Veedhi, Prezerpeta, Warf road, Kakinada. … Accused

Offence : Under Sections 338 IPC

Sec.3 r/w 181 and 130 r/w 177 M.V. Act

Plea of accused : Pleaded guilty.

Finding : Found guilty.

Sentence :

In the result, the accused is found guilty for the offence punishable under sections 338 IPC and Sec.3 r/w 181 and 130 r/w 177 of M.V. Act on his own admission and accordingly he is convicted under section 241 Cr.P.C., for the offence punishable under Section 338 IPC., and he is sentenced to pay a fine of Rs.500/- (Rupees five hundred only) in default of payment of fine to undergo simple imprisonment for a period of one week for the said offence and he is convicted under section 241 Cr.P.C., for the offence punishable under Section 130 r/w 177 of M.V. Act, and he is sentenced to pay a fine of Rs.100/- (Rupees one hundred only) in default of payment of fine to undergo simple imprisonment for a period of 7 days for the said offence. The bail bonds of accused shall be in force for a period of six months as contemplated under Section 437-A Cr.P.C.

III Additional J.F.C.Magistrate, Kakinada.

IN THE COURT OF THE II ADDITIONAL JUNIOR CIVIL JUDGE:: KAKINADA

PRESENT:- Sri K.Siva Sankar, II Addl.Junior Civil Judge-cum-II Addl., J.F.C.Magistrate, Kakinada. Friday, the 14thday of July, 2017.

E.P.No.46/2015 in O.S.452/2014

BETWEEN:

Garimella Venkata Suryanarayana Sarma Address - aged 63 years, Ex-ward councilor,

Resident of D.No. 7-4-1, B.T.S. Apartments - B -3, Ramaraopet, Kakinada. ...DHr

AND

Balantrapu Suryanarayana Murthy Address - aged 53 years, Document writer, Resident of D.No. 70-4-8, Opposite to SRMT guest House, Sarada Nagar, GFCL Road, Kakinada - 5. ...JDr

The petitioner/DHr filed the Execution Petition under Order .Order 21 Rule 37 CPC and Sec.55CPC

This petition is coming before me in the presence of Sri.G.V.R.Sarma, Advocate for Petitioner/D.Hr and the matter having stood over for consideration till this day, this court delivered the following:

O R D E R

D.Hr filed. F.S.memo. Full Satisfaction is recorded. In the circumstances, this

E.P. is terminated.

Sd/- Sri.K.Siva Sankar,

II Addl.Junior Civil Judge,

KAKINADA.

No Oral documentary evidence is adduced on either side.

Sd/-K.Siva Sankar,

II AJCJ

Petition presented on: 4.10.2018. Petition filed on: 12.11.2018.

IN THE COURT OF THE II ADDITIONAL JUNIOR CIVIL JUDGE:: KAKINADA

PRESENT:- SMT K.NAGA LAKSHMI, II ADDITIONAL JUNIOR CIVIL JUDGE, KAKINADA. Tuesday, this the 26 ith day of Feburary, 2019.

E.P.No. 221/2018 in O.S

Interest: On Rs.1,50,000/- @ 6% p.a., from 3.3.2018 to 3.10.2018-Rs. 5,250 – 00 –------------------------- Total : - Rs.2,33,950 - 00 --------------------------- On petition a court fee of Rs.1/- is paid.

Cause of action for the E.P. Petition arose an order to J.Dr under Order 21, Rule 48 and Sec.60 CPC to order attachment of the salary of the J.Dr and send for attached amount and pass such orders and within the jurisdiction of this court.

This petition is coming before me in the presence of Sri P.Venkateswara Rao, Advocate for Petitioner/D.Hr and of Sri P.Srini Babu, Advocate for J.Dr and the matter having stood over for consideration till this day, this court DOTH ORDER AND DECREE:

1). That the petition be and the same is hereby Full Satisfactions is recorded and E.P. is terminated.

2). That there be no order as to costs.

IN THE COURT OF THE IV ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE

KAKINADA.

Present : Sri Sai Ram Potharlanka, IV Addl. J.F.C.Magistrate, Kakinada.

Tuesday, this the 19 th day of November, 2019.

C.C.No.212/2017

Between:

State: Represented by Inspector of police,

III Town L&O Police Station, Kakinada.....Complainant.

AND

Mortha Prakasa Rao, S/o.Moshe, Age; 58 Years, Caste: SC-Madiga, D.No.2-2-48, Kothapeta, Jagapathinagaram, Kirlamudi Mandal, Driver of APSRTC Bus bearing No.AP28Z.1515, Kakinada,

Bus Depot, (Staff No.E.490011)....Accused

This matteris coming on this day before this Court for hearing in the presence of Sri. T.Srinivasa Murthy Assistant Public Prosecutor for the prosecution and Sri. B.Mulayya Advocate for the accused and the matter having been stood over for consideration till this day, this Court delivered the following::

O R D E R

The police filed Death Certificate of Accused and the same is verified and found correct. Hence, the case against the Accused is abated. Accordingly, the case is disposed off.

Pronounced by me in open Court on this the 19th day of November, 2019.

Sd/-Sai Ram Potharlanka

IV Additional Judicial First Class Magistrate cum IV Addl. Junior Civil Judge

KAKINADA.

APPENDIX OF EVIDENCE

Number of witnesses examined for prosecution:

P.W.1/dt.17.07.2019:Vallu Durga Prasad

P.W.2/dt.24.07.2019:Bandi Sridhar

P.W.3/dt.24.07.2019:Balasadi Muralikrishna

P.W.4/dt.31.07.2019:Gona Siva Sankar

P.W.5/dt.31.07.2019:Sk.Jawahar Vali

P.W.6/dt.05.08.2019:Srikakulapu Prasad

P.W.7/dt.09.08.2019:Palaka Ramakrishna

Number of Exhibits Marked for Prosecution:

Ex.P.1/P.W.1 :Report given by P.W.1.

Ex.P.2/P.W.2:Red marked portion of 161 Cr.P.C. Statement

Ex.P.3/P.W.3:Statement u/s.161 Cr.P.C.

Ex.P.4/P.W.4:Statement u/s.161 Cr.P.C.

Ex.P.5/P.W.5:Statement u/s.161 Cr.P.C.

Ex.P.6/P.W.6:Statement u/s.161 Cr.P.C.

Ex.P.7/P.W.7:Statistical Return particulars of the Crime

Vehicle.

No Material Objects were marked for Prosecution side:

No witness is examined and no exhibit is marked for defence side.

No material objects were marked on behalf of Defence.

Sd/-Sai Ram Potharlanka

IV Additional Judicial First Class Magistrate cum IV Addl. Junior Civil Judge

KAKINADA.