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IN THE COURT OF VI ADDL. CHIEF METROPOLITAN MAGISTRATE,
VIJAYAWADA.
PRESENT: Sri M.Hari Narayana,
II Addl. Senior Civil Judge, Vijayawada, FAC VI Addl. Chief Metropolitan Magistrate, Vijayawada.
Friday, dated this the 2nd day of September, 2022.
C.C. No.320/2015
Between:
Botla Chiranjeevi Reddy, s/o Sambasiva Reddy, Hindu, 56 years, Business, r/o H.No.10153, 1st Floor, Hanuman Temple Street, Tulasignagar, Vijayawada.…Complainant.
andP
Mohammad Jaseem Ansari s/o Md. Jamseed, Muslim, 44 years, Business, r/o Flat No.103, Saileela Residency, Street No.4, Kakatiyanagar, Nacharam, Hyderabad. … Accused
This case is coming before me for consideration today after hearing finally on 16.08.2002 in the presence of Sri S.Bala Gopal, Advocate for the complainant and of Sri T.Rama Chandra Murthy and Sri V.Surendra Reddy, Advocates for the accused, after hearing and upon perusing the material on record, this Court delivered the following:
JUDGMENT
1.The complaint is filed under Sec.190(1) and 200 of Cr.P.C. and under
Sections 138 and 142 of Negotiable Instruments Act against the accused by the complainant.
2.The brief facts of the complaint are that the accused along with his father and sisters namely, (1) Mohd. Jamsheed, (2) Smt.Zareena Begum, (3)
Smt Munawwar Sultana Begum, (4) Smt.Farzana Alisha, (5) Smt. Parveena
Begum, (6) Smt. Mobeena Begum (hereinafter would be referred to as ‘the accused and his family members’) have received a sum of Rs.1,00,00,000/ (Rupees One Crore) by way of four cheques i.e., (1).Cheque No.273759 dated 2 01.07.2008 drawn on HDFC Bank for Rs.12,00,000/; (2). Cheque
No.273760 dated 14.07.2008 drawn on HDFC Bank for Rs.5,00,000/; (3).
Cheque No.273761 dated 10.08.2008 drawn on HDFC Bank for
Rs.65,00,000/; and (4). Cheque No.273762 dated 21.01.2009 drawn on
HDFC Bank for Rs.18,00,000/, in the name of his father, namely, Mohd.
Jamsheed towards refundable deposit for the development of land admeasuring 1016 Sq. yards in D. No.40162, 63 & 64, near Benz Circle under Development Agreement dated 08.08.2008. The said
Rs.1,00,00,000/ is refundable to the complainant in two installments i.e.,
Rs.50,00,000/ within 15 days after completion of fourth floor slab and remaining Rs.50,00,000/ within 15 days of taking over the possession.
The accused and his family members paid part payment of Rs.1,00,000/ on 02.12.2012 by way of a cheque drawn on Andhra Bank, Benz Circe
Branch, Vijayawada, out of Rs.1,00,00,000/ to the complainant and agreed to pay the balance amount within six months thereafter.
The accused have been postponing the repayment of the sad amount due to the complainant and on several demands, the accused issued a cheque along with a receipt cum endorsement (undertaking) on 28.08.2013 vide cheque No.265666 dated 21.08.2013 drawn on Axis Bank, Vijayawada for Rs.20,00,000/ towards part payment of Rs.1,00,00,000/ and promised to pay the remaining amount as per the terms of the development agreement dated 08.08.2008 within three months thereafter. When the said cheque was presented, the same was dishonoured due to insufficient funds and the cheque return memo was issued on 04.11.2013, which was informed to the complainant on 05.11.2013. It is stated that the accused issued the said cheque deliberately and intentionally even though he was aware that the said cheque would be dishonoured and as such a legal notice 3 was issued on 27.11.2013 to the accused demanding him to pay the amount due under the cheque and the accused having received the notice on 07.12.2013 failed to discharge the amount due under the cheque .
Having no other alternative the complainant was constrained to file the present complaint with a request to punish the accused.
3.Basing on sworn statement the complaint was taken on file as C.C.
No.345/2014 by the learned II Additional Chief Metropolitan Magistrate,
Vijayawada on 06.03.2014 and thereafter the case was transferred to this
Court where it was numbered as C.C. No.320/2015.
4.On appearance of the accused, case copies were furnished to him as stipulated u/s 207 Cr.P.C. The accused was examined u/s 251 Cr.P.C., with reference to the allegations made in the complaint for which the accused denied the allegations and claimed to be tried.
5.During the course of trial, the complainant examined himself as PW1 and got exhibited ten documents as Exs.P1 to P10. Ex.P1 is receipt issued by the accused and others dated 21.01.2009. Ex.P2 is office copy of registered Legal Notice dated 19.07.2010. Ex.P3 is the reply Notice issued by the accused dated 27.08.2010. Ex.P4 is office copy of Notice issued by accused dated 01.08.2011. Ex.P5 is receipt cum endorsement dated 21.08.2013. Ex.P6 is the cheque issued by the accused dated 21.08.2013.
Ex.P7 is cheque Return Memo issued by the Bank dated 04.11.2013. Ex.P8 is office copy of the registered Legal Notice issued to the accused on 27.11.2013. Ex.P9 is letter issued by the Postal Department confirming the receipt of Ex.P8 by the accused dated 07.12.2013. Ex.P10 is Development
Agreement dated 08.08.2008 executed by the accused and his family members.
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(a)In the cross examination of PW1, two documents were marked on behalf of the accused as Exs.D1 and D2. Ex.D1 is the certified copy of registered
Development Agreement cum G.P.A. dated 21.01.2009. Ex.D2 is certified copy of ReceiptcumEndorsement dated 02.12.2012.
(b)The complainant also examined one of the attestors of Ex.,P5 as PW2 and the Bank Manager as PW3. Through PW3, three documents were marked as Exs.X1 to X3. Ex.X1 is the authorization given to PW3 to give evidence.
Ex.X2 is Account statement of the complainant from 02.04.2008 to 01.04.2009. Ex.X3 is Account statement of the complainant for the period from 04.11.2013.
6.After completion of the evidence of the complainant, the accused was examined u/s 313 Cr.P.C. In the Sec.313 Cr.P.C. examination the accused submitted that the issue was settled between the complainant and his father and his two sisters and he was no way concerned.
7.Heard the learned Counsel for the complainant and the learned
Counsel for the accused. Both the learned Counsel advanced their arguments with reference to the pleadings and evidence adduced by them.
(a)The learned Counsel for the complainant submits that as the cheque issued by the accused was dishonoured due to insufficient funds and in spite of issuance of legal notice, the accused did not choose to pay the amount due under the cheque and as such the accused is liable to be punished under Sec.138 of the Negotiable Instruments Act.
(b)On the other hand, the learned Counsel for the accused submits that there is no privity of contract between the complainant and the accused and that the question of issuance of the cheque in question to discharge the legally enforceable debt does not arise and as such the accused cannot be found guilty for the offence under Sec.138 of the Negotiable Instruments Act 5 inasmuch as the complainant failed to prove that there exists legally enforceable debt. The learned Counsel for the accused further submits that the presumption attached to under Section 139 of the Negotiable
Instruments Act was duly rebutted by the accused duly exhibiting Ex.D1 and D2 and that the complainant filed the complaint by suppressing several important and crucial aspects and as such it is requested to dismiss the compliant.
(c)During the course of arguments both the learned Counsel relied on some citations which will be dealt with in the later part of the judgment.
8.Now the point for consideration is:
Whether the complainant proved the guilt of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act beyond reasonable doubt or not?
9. POINT :
BRIEF FACTS OF THE CASE OF THE COMPLAINANT AND THE
ACCUSED:
Before entering into the merits of the case, a few facts which are
germane to institute the present complaint are as follows :
The father of the accused, accused and his sisters have a house plot in
Vijayawada and they entered into development agreement with the complainant under Ex.P10. In terms of the said agreement, the complainant deposited an amount of Rs.1,00,00,000/ with the father of the accused towards refundable security deposit, as requested by the accused and his sisters, and that the said amount has to be returned to the complainant in two installments at the rate of Rs.50,00,000/ each and that the said development agreement has to be registered. It is the case of the complainant that the accused issued Ex.P6 cheque for a sum of Rs.20,00,000/ to the complainant in terms of the said development agreement (Ex.P10) and that the 6 same was dishonoured when presented for realization. The case of the accused is that the terms of Ex.P10 development agreement was not acteds upon as the same was not got registered even though a specific condition was incorporated to that effect and that another development agreementcumGPA was entered into among them and that the same was registered (Ex.D1). It is also the case of the accused that there was no obligation either on the part of the accused or on the part of his father and sisters to refund Rs.1,00,00,000/ and that as per Ex.D1 they have to refund only Rs.5,00,000/ which was deposited towards security deposit and as such the question of issuing
Ex.P6/cheque for Rs.20 lakhs towards discharge of legally enforceable debt or other liability does not arise. As the cheque in question was dishonoured, the present complaint was instituted in terms of Section 138 of Negotiable
Instruments Act.
WHETHER THE COMPLAINANT PROVED THAT THE DISHONOURED
CHEQUE WAS ISSUED BY THE ACCUSED OR NOT.
To prove the offence under Section 138 of the Negotiable Instruments
Act, the complainant has to prove that Ex.P6/cheque dated 21.8.2013 was issued by the accused to the complainant. A perusal of the entire cross examination nowhere it was suggested that Ex.P6/cheque does not belong to the accused and that it was not issued by him. Even the learned Counsel
for the accused does admit that Ex.P6 cheque belongs to the accused only
and that the signature on it was also made by the accused. However, it is contended that there were money dealings between the complainant and the accused in view of the development agreement entered by the accused, his father and his sisters and in the money dealings, the accused might have handed over his cheque to the complainant and that the said cheque was 7 not issued to discharge any legally enforceable debt. This Court would consider the said aspect at later part of the judgment.
Thus, it is clear that Ex.P6 cheque was issued by the accused to the complainant and that the said cheque was dishonoured when presented for encashment.
WHETHER EX.P10 DEVELOPMENT AGREEMENT WAS NOT REPLACED
WITH ANY OTHER AGREEMENT OF NOT?:
(a)Once the accused admitted that Ex.P6 cheque belongs to him and it contains his signature, the presumption that has to be drawn under
Sec.139 of the Negotiable Instruments Act is that the said cheque was issued for discharge of legally enforceable debt or other liability. However, such presumption is a rebuttable one.
(b)Now the question that falls for consideration is: whether the accused rebutted the presumption that the cheque was not issued for discharge of any debt or other liability and in fact there was no legally enforceable debt or other liability between the complainant and the accused. A perusal of the chief evidence affidavit of PW1, which is replica of the complaint, would disclose that the accused, his father and his five sisters received a sum of
Rs.1,00,00,000/ by way of four cheques (Cheque No.273759 dated 01.07.2008 ; Cheque No.273760 dated 14.07.2008 ; Cheque No.273761
dated 10.08.2008 ; and Cheque No.273762 dated 21.01.2009) issued in
the name of the father of the accused, namely, Sri Mohd. Jamsheed towards refundable security deposit for the development of land admeasuring 1016 Sq. yards situated at Benz Circle, Vijayawada under
Development Agreement dated 08.08.2008, and the said amount has to be refunded in two equal installments and that the 1st installment has to be refunded after completion of 4th floor slab and the balance has to be 8 refunded within 15 days of taking over the possession. The complainant also pleaded that the 4th floor slab was completed on 20.11.2009 and intimated the same to the accused and his family members requesting to refund 50% of the deposited amount i.e., Rs.50 lakhs within 15 days and as the accused failed to repay the same he got issued a legal notice on 18.07.2010 intimating that he has completed the construction of 4th floor slab and demanded the accused and other coowners to refund security deposit for which the accused and other coowners issued a reply seeking six months time. Thus, the learned Counsel for the complainant has submitted that in terms of the development agreement dated 08.08.2008 (Ex.P10) the accused issued the cheque to discharge the refundable security deposit.
(c)However, in the crossexamination, PW1 admitted that there was a registered development agreement cum General Power of Attorney between the complainant and the accused and his family members on 29.01.2009 and the same was marked as Ex.D1. In the entire pleadings as well as in the chief evidence affidavit nothing was mentioned about Ex.D1. A perusal of Ex.P10 (Terms and Condition No.33), the said Memorandum of
Understanding (Ex.P10) has to be registered at Sub Registrar Office,
Vijayawada and in spite of it they did not get it registered. However, a development agreementcumGeneral Power of Attorney dated 21.09.2009 (Ex.D1) was entered into by the accused and his family members and the complainant and they got it registered in the office of SubRegistrar,
Vijayawada.
(d)A perusal of Ex.P10 as well as the admission of the accused would clearly disclose that the complainant paid Rs.1,00,00,000/ to the accused and his family members; and as per terms and conditions No.24 the 9 accused and his family members have to refund 50% of the security deposit i.e., Rs.50,00,000/ within 15 days after completion of the slab of fourth floor and the remaining amount has to be refunded within 15 days after taking over the possession and if he fails to refund the security deposit within the stipulated time they have to refund the same with interest @ 24% per annum. As mentioned above, Ex.P10 was not get it registered in spite of specific stipulation is there to that effect. However, they got registered
Development AgreementcumGPA (Ex.D1) in the place of Ex.P10. In Ex.D1, the above said conditions are clearly absent and that there was no mention about refund of the security deposit of Rs.1,00,00,000/. What all that was mentioned in Ex.D1 (terms and condition No.33) was that an amount of
Rs.5,00,000/ agreed to be kept with the father of accused towards refundable security deposit and condition No.34 would indicate that the said amount of Rs.5,00,000/ was paid by way of cheque bearing
No.273760 dated 14.07.2008 drawn on HDFC Bank, Vijayawada and as per terms and condition No.35 the said amount has to be refunded without interest in two instalments i.e., 1st instalment within 15 days on receipt of notice of the completion of 4th floor slab and remaining 50% has to be refunded within 15 days of taking over the possession of the said property and if they failed to do so, it has to be refunded with interest @ 24% per annum. Thus, the learned counsel for the accused would urge that either the complainant or the accused and his family members never intended to act upon the terms and conditions of Ex.P10 inasmuch as they entered into a new agreement under Ex.D1 in which new conditions were incorporated particularly with regard to the amount that was kept as security deposit and with regard to the refund of the said security deposit amount.
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(e)The learned Counsel for the accused by placing reliance on Ex.D1 would urge that if the parties to a contract agreed to substitute a new contract or to resail or alter the terms of the original contract, the terms and conditions existing in the original contract need not be performed. As observed above, there was a specific stipulation under Ex.P10 that the said development agreement has to be registered and in spite of it they did not get it registered, However, the parties to Ex.P10 entered into another development agreementcumGeneral Power of Attorney under Ex.D1 and they got it registered. As per Ex.P10, Rs.1,00,00,000/ was deposited with the owners towards security deposit and the said amount has to be refunded in two installments whereas in terms of Ex.D1 it was mentioned that only Rs.5,00,000/ was deposited towards refundable security deposit and the said amount has to be refunded in two installments. It is also to be noticed that on the date of registration of Ex.D1, total amount of
Rs.1,00,00,000/ (Rupees One Crore only) was paid to the accused and his family members, when the complainant paid Rs.1,00,00,000/ (Rupees One
Crore only) on the date of executioin of Ex.D1, and if such being the case, as to why it was mentioned in Ex.D1 that the accused and his family members have to refund Rs.5 lakhs only, which was deposited towards refundable security deposit, instead of mentioning that they have to refund
Rs.1,00,00,000/ (Rupees One Crore only). Thus, it is clear that the parties to Ex.P10 Agreement agreed to alter the terms and conditions of the original contract.
(f)As mentioned above, in view of Section 62 of the Indian Contract Act, if the parties to a contract agreed to substitute a new contract , or to rescind or alter the original contract, the original contract need not be performed.
Ex.P10 is substituted with a new contract under Ex.D1 and in those 11 circumstances the accused is not expected to perform the terms and conditions stipulated in the original agreement dated 08.08.2009 vide
Ex.A10. If such being the case, issuance of Ex.P6 cheque towards legally enforceable debt or any other liability much less in terms of Ex.P10 development agreement does not arise.
WHETHER EX.P2 LEGAL NOTICE WAS NOT SENT TO THE ACCUSED:
In the chief evidence affidavit it was mentioned that as the accused has been postponing to refund the security deposit amount of
Rs.1,00,00,000/ in spite of intimating that he completed the entire construction of the building, he got issued Ex.P2 legal notice. A perusal of
Ex.P2 legal notice would indicate that it was addressed to the accused and his father and his sisters on 19.07.2010. The learned Counsel for the accused would urge that Ex.P2 was not at all received by the accused inasmuch as it was never dispatched to the accused. When the said fact was suggested to PW1 in his crossexamination, he categorically stated that he has acknowledgments to show that the said notice was delivered to the accused but the same were not exhibited by him. When it is the specific case of the accused that Ex.P2 was not at all sent by the complainant as to why he remained silent without exhibiting the acknowledgments to show that it was served on the accused. The very silence on the part of the complainant fortifies the contention of the learned Counsel for the accused that Ex.P2 was not at all sent to the accused. Hence, this Court negatives the contention of the learned Counsel for the complainant that in spite of receiving Ex.P2 notice by the accused he maintained silence and the very silence on the part of the accused has to draw an inference that the accused is bound to implement the terms and conditions stipulated under Ex.P10.
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WHETHER THE ACCUSED GOT ISSUED EX.P3 REPLY NOTICE TO
EX.P2 LEGAL NOTICE:
(a)The learned Counsel for the complainant would urge that after completion of the fourth floor of building, he intimated the same to the accused and other coowners requesting the accused to refund 50% of the security deposit amount within 15 days i.e., Rs.50 lakhs in terms of Ex.P10 development agreement and as the accused failed to repay the amount, he got issued a legal notice on 19.7.2010 (Ex.P2) for which the accused and other coowners issued a reply notice vide Ex.P3 in which the accused sought six months time to pay the 1st installment of Rs.50,00,000/ without interest as they are in financial crisis (para no.2 of the chief evidence affidavit). In the previous paragraph, this Court after analyzing the documentary evidence coupled with oral testimony categorically held that
Ex.P2 legal notice was not at all sent to the accused and the same was not received by him and as such the question of issuing the said reply notice does not arise.
(b)Even a perusal of Ex.P3 (reply notice) would indicate that it was issued on behalf of the father the accused, but not for the accused. When
Ex.P3 was very much clear that it was issued on behalf of the father of the accused, how the learned Counsel for the complainant would urge that the accused got issued reply notice requesting six months time to refund the balance amount of security deposit. Therefore, the stand taken by the complainant that by virtue of Ex.P3 the accused admitted the debt in terms of Ex.P10 and pursuant to the said undertaking he issued Ex.P6 cheque to discharge the debt covered under it cannot be accepted. Hence, it is held that the accused is no way concerned to Ex.P3 reply notice.
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WHETHER THE ACCUSED PAID PART PAYMENT OF RS.1,00,000/ IN
TERMS OF EX.P10 DEVELOPMENT AGREEMENT OR NOT:
(a)In the chief evidence affidavit it is specifically stated that the accused and the other coowners while paying part payment of Rs.1,00,000/ as against Rs.1,00,00,000/ by way of cheque No.598001 dated 12.02.2012 drawn on Andhra Bank, Vijayawada agreed to pay the balance amount, as agreed under Ex.P10, within six months. The learned Counsel for the accused would urge that the accused never paid Rs.1,00,000/ and also never agreed to pay the remaining amount in terms of Ex.P10 agreement and that the said story was invented by the complainant to initiate the present suit proceedings.
(b) In the crossexamination of PW1, certified copy of receipt cum endorsement executed by the father of the accused and his two sisters
dated 02.12.2012 was marked as Ex.D2 as PW1 admitted its genuineness.
In Ex.D2 it was mentioned that the accused and other coowners admitted to refund the amount of Rs.1,00,00,000/ and as against the said amount an amount of Rs.1,00,000/ was paid on 02.12.2012 by way of cheque while undertaking to pay the remaining amount as per the terms of the development agreement dated 08.08.2008 within six months. It is the specific case of the accused that he is not a signatory to Ex.D2. A perusal of
Ex.D2 indicates that though it was said to have been executed by the accused and other family members, yet, it did not contain the signature of the accused and that it was signed by the father of the accused and his two sisters. When Ex.D2 is so clear, as to why the complainant in his complaint as well as in his chief evidence affidavit would state that the accused paid Rs.1,00,000/ and agreed to pay the remaining amount of
Rs.99,00,000/ within six months. Thus, it is clear that the complainant 14 projected several facts which are not at all borne on record. Therefore, the contention of the learned Counsel for the complainant that the accused agreed to repay the balance amount of Rs.99,00,000/ under Ex.D2 cannot be accepted.
WHETHER THE ACCUSED NOT EXECUTED EX.P5 OR NOT?
(a)It is the case of PW1 that the accused executed Ex.P5/Receiptcum
Endorsement and handed over to him along with Ex.P6 cheque. On the other hand, the learned Counsel for the accused would submit that he did not hand over Ex.P5 and that the same was created by using blank signed white paper which he handed over to the complainant to enable him to make correspondence with the Government authorities like obtaining permissions or submission of documents on behalf of the owners in relation to Ex.D1 development agreement cum GPA. It is also submitted that when the accused is aware of the consequences if the cheque is dishonoured, he would not have delivered a document indicating the delivery of cheque to the complainant and no prudent person would do so.
(b)The learned Counsel also requested the Court to read the entire document which would clearly indicate that the same was created by using a blank signed white paper. For better appreciation, the relevant portion of
Ex.P5 is extracted hereunder:
“We, Mohd Jamsheed s/o. Mohd Naseeruddin xxxxxx,
Sri Mohd. Jaseem Ansari s/o. Sri Mohd. Jamsheed,xxxxxx
Smt. Zareena Begum xxxxx; Smt.Munawwsar Sultana Begum xxxxxxx; Smt.Farzana Alishaxxxxx; Smt.Parveena Begum xxxx and Smt.Mobeena Begum zxxxxxxx have received a sum of Rs.1,00,00,000/ by way of four cheques xxxxxxxx in the name of Sri Mohd. Jamsheed as per our request from
Mr.Botta Naga Chiranjeevi reddy towards refundable deposit of development of the land xxxxxxxx near Benz Circle 15 xxxxxxxxxxweas agreed to be repaid to Mr.Botta Chiranjeeevi
Reddy in two instalmentsxxxxxxxx. As we are in financial crises we could not repay the same and we have paid a part payment of Rs.1,00,000/ by way of chequexxxxxx out of the
Rs.1,00,00,000/ to Bortta Naga Chiranjeevi Reddy.
Today, I Mohammad Jaseem Ansari s/o. Mohammad
Jamsheed hereby paying another part payment of
Rs.20,00,000/ by way of cheque no.265666 dt.21.08.2013 drawn on Axis Bank, Vijayawada. Further, I promise and undertake to pay the remaining amount as per the terms of development agreement dt.08.08.2008 within three months.
Signed and delivered at Vijayawada on this 21st day of
August, 2013 before the following witnesses :
1. S.M.ALI
2. B.PRAVEEN KUMAR REDDY MOHD.JASEEM ANSARI”
(c)The beginning para of the said document would indicate that the same was executed by the accused and his family members and it was also mentioned in it about payment of Rs.1,00,000/ on 02.12.2013 by the accused and his family members. As observed above, the said payment of
Rs.1 lakh is evident vide Ex.D2. To Ex.D2, the accused is not a party. If such being the case, how the accused would mention in Ex.P5 that he is a party to the said payment. At the end of the said document, it was mentioned that the accused promised to pay the remaining balance amount.
When the said amount was received by all the family members, as to why the accused alone shoulder liability to pay the remaining amount.
(d)In addition to that, in Ex.P5 the details of Ex.P10 development agreement were alone mentioned without mentioning anything about Ex.D1.
As observed above, Ex.D1 was executed in January 2009 whereas Ex.P5 is executed in the year 2013. When a new agreement was entered into under
Ex.D1 replacing Ex.P10, the question of issuing the cheque with reference 16 to Ex.P10 agreement is highly improbable particularly when the criminal liability would be fastened if the cheque is dishonoured.
(e)Further more, PW1 in his crossexamination admitted that he received Rs.1,00,000/ from the father of the accused and his two sisters under Ex.D2 in which it was specifically undertook that they agreed to pay the balance amount within six months. PW1 also admitted in his cross examination that he accepted the contents of Ex.D2. It means that the complainant would receive the balance amount from the father and two sisters of the accused who executed Ex,.D2. In those circumstances handing over Ex.P6/cheque of Rs.20,00,000/ along with Ex.P5 by the accused is highly unbelievable.
(f) The complainant examined one of his attestors to Ex.P5 as PW2. PW2 is none other than the son of the complainant. When the complainant failed to dispel the several suspicious circumstances, much importance cannot be attached to the evidence of PW2.
(g)Under the above circumstances, much importance cannot be attached to Ex.P5 to fasten the liability in view of several suspicious circumstances prevailing in this case and also around Ex.P5 and as such it cannot be said that the same was executed on the day it was said to have been executed and delivered to the complainant.
ANALYSIS OF THE CASE LAWS RELIED ON BY THE COMPLAINANT:
(a)The learned Counsel for the complainant while placing reliance on the judgments reported in the case of M.Abbas Haji vs. T.N.Channakeshava [(2019) 9 SCC 606]; and Anbarasu vs, Mukanchand Bothra (Deceased) &
Another [2020 ACD 1 (MAD)] would contend that the accused has to explain as to how his cheque fell into the hands of the complainant and 17 failure to explain the said circumstances would infer that the same was issued to discharge the legally enforceable debt or liability.
(b)In this case, the learned Counsel for the accused admitted that the cheque belongs to the accused and it contains the signature of the accused.
As the cheque in question belongs to the accused and as no explanation was offered as to how the dishonoured cheque fell into the hands of the complainant it has to be presumed that the same was issued to discharge legally enforceable debt as per the ratio laid down in the said cited judgments. But in this case, there was unregistered agreement (Ex.P10) between the accused and his family members on one hand and the complainant on the other hand and later a registered development agreement cum General Power of Attorney under Ex.D1 was entered between them. In those circumstances, the learned Counsel for the accused would urge that in view of the said transactions between the complainant and the accused and his family members handing over the cheque by the accused in question might have taken place. In the preceding paragraphs of this judgment, this Court upon considering Ex.D1 vis a vis Ex.P10 categorically held that there is no legally enforceable debt between the accused and the complainant. As the accused successfully proved that there exists no legally enforceable debt, merely because the accused did not offer any viable explanation as to how his cheque fell into the hands of the complainant cannot be construed that the same was issued to discharge the legally enforceable debt . In view of the above circumstances, the ratio laid down in the said cited judgments is not applicable to the facts of the present case.
(c)The learned counsel for the accused also relied on the judgments reported in the cases of (1). C.K.Mohini vs. Varghese M.Mathew and another 18 [(2020 ACD 285 (KER)], (2). Don Ayengia vs. State of Assam & Another [(2016) 3 SCC 1], (3). Anil Sachar & Others vs. Shree Nath Spinners Pvt,
Ltd., & Others (AIR 2011 SC 2751), (4). B.Ramachandra Reddy vs. Abid Ali & Others (2007(1) ALD (Cri) 69), (5). I.C.D.S. Ltd., vs. Beena Shabeer &
Others (AIR 2002 SC 3014), (6). Pratap Singh Yadav & Ors Vs. Atal Behari
Panday (2003 CriLJ 705) in support of his contention that even if a cheque that was issued as security for discharge of debt or other liability is dishonoured, the drawer is liable to be punished under Section 138 of the
Negotiable Instruments Act. There is no dispute with regard to the said proposition. But, the question that falls for consideration is whether the cheque in question was issued by the accused as a security for the liability of his father or not.
(d)A perusal of the complaint as well as the chief testimony of PW1 would indicate that Ex.P6/cheque was issued towards discharge of his liability but not issued as a security towards the amount due by the father of the accused. When it is the specific case of the complainant that the accused issued Ex.P6/cheque towards discharge of the debt due to the complainant pursuant to Ex.P10 development agreement, the complainant cannot be permitted to say that the cheque/Ex.P6 was issued by the accused as a security for the debt of his father. In those circumstances the ratio laid down in the cited judgments is not applicable to the facts of the present case.
(e)The learned Counsel for the complainant also relied on the judgments reported in the cases of (1). Triyambak S.Hegde vs. Sripad [(2022 1 SCC 742)], (2) K.S.Ranganatha vs. Vittal Shetty [2022 (1) ALT (Cri) 456. (3).
Sumeti Vij vs. Paramount Tech Fab Industries (AIR 2021 SC 1281), (4).
Gulzar Hussain vs. State of Assam & Anr. [(2020) 1 GAUHATI LAW 19
REPORTS 453], (5). Rohitbhai Jivanlal Patel vs. State of Gujarat & Ors.
(AIR 2019 SC 1876), (6). Shree Daneshwari Trades vs. Sanjay Jain & Anr [(2019) 16 SCC 83], (7). Bir Singh vs. Mukesh Kumar [(2019) 4 SCC 197] and (8). K.N.Beena vs. Muniyappan & Ors. (AIR 2001 SC 2895), and (9).
R.Vijayan vs. Baby & Ors. (AIR 2012 SC 528), in support of his contention that once the cheque was proved to be issued, the presumption that has to be drawn under Section 139 & 118 Negotiable Instruments Act is that the same was issued for discharge of legally enforceable debt. There is no dispute with regard to the ratio laid down in the cited judgments.
(f)However, it is to be noticed that the presumption under Secs.139 and 118 of the Negotiable Instruments Act is a rebuttable presumption. This
Court in the foregoing paragraphs categorically held that the accused rebutted the presumption that Ex.P6 cheque was not issued towards discharge of debt or liability and in fact he proved that there exists no debt between him and the complainant. In those circumstances, the ratio laid down in the said judgments is also not applicable to the facts of the case.
RELEVANCY OF THE EVIDENCE OF PW2 AND PW3:
(a)The complainant also examined one of the attestors of Ex.P5/Receipt cum endorsement executed by the accused on 21.08.2013 , who is none other than his son, as PW2. When the evidence of the complainant does not prove that the accused committed the offence under Section 138 of the
Negotiable Instruments Act, the evidence of PW2 pales into insignificance.
(b)The complainant also examined a Bank official as PW3 to prove that he transferred an amount of Rs.1,00,00,000/ to the account of the father of the accused. As the said fact is not in dispute, it is held that the evidence of
PW3 is of no significance.
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10. CONCLUSION :
For the foregoing discussion, it is held that though the complainant brought on record that the cheque of the accused was dishonoured, yet the accused successfully proved that there exists no debt much less any legally enforceable debt or any other liability between him and the complainant and thereby he rebutted the presumption that is available to the holder of a cheque that he received the same for discharge of debt or other liability in terms of Sec.139 of the Negotiable Instruments Act.
11. RESULT :
In the result, the accused is found not guilty of the offence under
Sec.138 of Negotiable Instruments Act, and is acquitted under Sec.255(1) of
Cr.P.C.
Dictated to the Gr.I Stenographer of this Court, transcribed by her,
corrected and pronounced by me in the open Court, this the 2nd day of September, 2022.
II ADDL. SENIOR CIVIL JUDGE,
FAC VI ADDL. CHIEF METROPOLITAN
MAGISTRATE, VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF
COMPLAINANT: ACCUSED:
P.W.1 : Botta Naga Chiranjeevi Reddy None
P.W.2 : Botta Praveen Kumar Reddy
P.W.3 : Ch.Chandra Sekhar.
DOCUMENTS MARKED ON BEHALF OF
COMPLAINANT :
Ex.P1 : Receipt issued by the accused and others dated 21.01.2009.
Ex.P2 : Office copy of registered Legal Notice dated 19.07.2010.
Ex.P3 : Reply Notice issued by the accused dated 27.08.2010.
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Ex.P4 : Office copy of Notice issued by accused dated 01.08.2011.
Ex.P5 : Receipt cum endorsement dated 21.08.2013.
Ex.P6 : Cheque issued by the accused dated 21.08.2013.
Ex.P7 : Cheque Return Memo issued by the Bank dated 04.11.2013.
Ex.P8 : Office copy of the registered Legal Notice issued to the accused
dated 27.11.2013.
Ex.P9 : Letter issued by the Postal Department confirming the receipt of Ex.P8 by the accused dated 07.12.2013.
Ex.P10: Development Agreement dated 08.08.2008 executed by the accused and others.
ACCUSED :
Ex.D1 : Certified copy of registered Development Agreement “X” Seriescum G.P.A. dated 21.01.2009.
Ex.D2 : Certified copy of ReceiptcumEndorsement dated 02.12.2012.
THROUGH WITNESS PW3 : :
Ex.X1 : Authorization given by Branch Operations Manager.
Ex.X2 : Account statement to the complainant from 02.04.2008 to 01.04.2009.
Ex.X3 : Account statement of the complainant dated 04.11.2013 wherein cheque No.265666 vide Ex.P6.
M.Os. MARKED
Nil –
II ADDL. SENIOR CIVIL JUDGE,
FAC VI ADDL. CHIEF METROPOLITAN
MAGISTRATE, VIJAYAWADA.