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IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGECUM
I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,
AT: MANTHANI
PRESENT: SMT MOOLA SWATHI GOUD
I Additional Junior Civil Judgecum I Additional Judicial Magistrate of F.C, Manthani.
Friday, this the 29 th Day of September, 2023
C.C.NO.198 OF 2015
BETWEEN:
Ramadugu Padmavathi, W/o.Maruthi Rao, Age:55 years, Occ: House hold R/o.Manthani Village and Mandal.
...Complainant.
AND
Mandapalli Venkateshwar Rao, S/o.Pallappa Rao, Age:50 years, Occ: Business, R/o.H.No.148/F/1, Gouds Colony, New Maruthinagar, Kothapet, Saroornagar Mandal, Ranga Reddy District, Hyderabad.
...Accused.
The case is coming before me for final hearing in the presence of Sri Raghotham Reddy Advocate, Learned Counsel for Complainant and Sri K.Shashikanth Advocate, Counsel for the Accused and upon hearing the argument of both sides, upon considering the material available on record and the matter having stood for consideration till this day, this court doth the following:
::JUDGMENT::
1.Originally a Complaint Under Section 200 Cr.P.C was filed in the
Court of Prl.Judicial Magistrate of First Class, Manthani by the Complainant
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Ramadugu Padmavathi against the Accused Mandapalli Venkateshwar Rao for the offence punishable Under Section 138 of Negotiable Instruments Act (herein after called as NI Act).
2.The facts necessary for adjudication of this case are briefly stated as under: 2 (i) The Husband of the Complainant and Accused are known to each other and the Complainant on the request of her husband advanced an amount of Rs.50,00,000/ to the Accused, for his business necessities at her residence i.e., Manthani and the Accused immediately executed a promissory note in favour of the Complainant in the presence of witnesses and issued
Three cheques towards discharge of legal debt and also executed Notarized affidavit in favour of the complainant on 05.12.2014 acknowledging the fact of borrowing of said loan of said loan of Rs.50,00,000/. The three cheques are: 1. Cheque bearing No.26995 for an amount of Rs.20,00,000/.2.
Cheque bearing No.26994 for an amount of Rs.20,00,000/. 3. Cheque bearing No.26996 for an amount of Rs.10,00,000/, drawable from Deccan
Grameena Bank, CN Colony of Kamanpur Mandal. That the Complainant presented the said three cheques on 01.03.2015 through her account maintained at SBH, Manthani Branch for realization and the said three cheques were bounced and Deccan Grameena Bank issued a memo intimating the said fact to SBH Manthani and subsequently, the SBH
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Manthani served a letter to the Complainant on 03.03.2015 stating that the said three cheques were bounced to "Insufficient Funds".
2(ii) On 20.03.2015 the Complainant got issued statutory notice as contemplated u/Sec.138 of N.I Act and also issued legal notice demanding the Accused to pay an amount of Rs.50,00,000/ with in 15 days from the date of receipt of the legal notice and the Accused willfully absented himself from his house and the said cover returned unserved back to the
Complainant by endorsing that intimation was served to Accused on 23.03.2015 but the Accused failed to pay the amounts of cheques on or
before 06.04.2015 as such the Complainant has got cause of action to file
this present Complaint on 07.04.2015 under the N.I Act. The Accused by not paying the amount covered by cheques within 15 days from the date intimation of legal notice, he rendered himself liable for prosecution u/Sec.138 of N.I Act.
3.The Learned Prl.Judicial Magistrate of First Class, Manthani after perusal of the Complaint, sworn statement and the documents filed along with the Complainant, took cognizance against the Accused for the offence
Under Section 138 of Negotiable Instruments Act and issued summons to
Accused and the case was numbered as C.C No.198 of 2015 on the file of
Prl. Judicial Magistrate of First Class, Manthani. The Accused filed a Petition u/Sec.205 Cr.P.C, dated:07.11.2022 to dispense his presence and represented to attend before this Court through Counsel K.Satyanarayana
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Advocate. The said petition was allowed on 07.02.2023 by dispensing his personal attendance and K.Satyanarayana Advocate is permitted to represent on behalf of Accused till the disposal of main case. Subsequently, the case was posted for u/Sec.251 Cr.P.C examination and on 01.04.2023 as per the orders of Hon’ble Chief Judicial Magistrate, Peddapalli vide Dis
No.1032, dated.26.12.2022, the case is transferred to the I Addl. Junior Civil
JudgecumJudicial Magistrate of First Class, Manthani. Later the Accused
was examined u/Sec.251 Cr.P.C examination through Jitsi App and substance of accusations levied against him, read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried. Hence, the
Trail.
4.The Complainant in order to establish her case she got examined as
PW1. The Complainant as PW1 in her examination chief affidavit had reiterated the contents as mentioned by her in her complaint, therefore, narration of those factual matrix over again will not serve any useful purpose. The Complainant had exhibited Ex.P1 to Ex.P7 as documentary evidence.
5. The list of documents exhibited are as follows.
Ex.P.1 is the Original Cheque bearing No.269924, dated:05.12.2014 for an amount of Rs.20,00,000/ of Deccan Grameena Bank, Centenary Colony. Ex.P.2 is the Original Cheque bearing No.269925, dated:05.12.2014 for an amount of Rs.20,00,000/ of Deccan Grameena Bank, Centenary Colony.
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Ex.P.3 is the Original Cheque bearing No.269926, dated:05.12.2014 for an amount of Rs.10,00,000/ of Deccan Grameena Bank, Centenary Colony. Ex.P.4 is the Office copy of Legal Notice, date:20.03.2015.
Ex.P.5 is the S.B.I Bank voucher pertaining to letter of intimation. Ex.P6. is the notarized affidavit executed by the Accused . Ex.P7. is the Original Promissory Note, dated: 05.12.2014.
6.During the cross examination, PW1 testified that she know the accused through her husband and she is a house hold. She stated that accused used to real estate business and she does not know about the extents of ventures of plots and she stated she gave a hand loan of
Rs.50,00,000/ to the accused by way of cash and she has no idea in which denomination she has given to the accused. She further stated that out of love and affection her father gave her amount, but she does not remember the exact amount and she deposed that she does not know whether a hand loan given to the accused out of the amount which her father gave to her and even she did not mentioned the same in her complaint or in her chief evidence affidavit and she even stated that she does not know about the filing of the IT returns and she stated that her husband also filed a case against the accused in this Court vide C.C No.197/2015. PW1 even do not remember the date on which date her husband gave a hand loan of
Rs.65,00,000/ to the accused and she stated that her husband was present at the time of subject transaction. She admitted that Ex.P1 to Ex.P3 were issued for additional security and she deposed that she does not remember
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the witnesses who witnessed the Ex.P7 and also she cannot say the scribe of Ex.P7. She stated that she has not filed any Recovery of Money suit on the strength of Ex.P7. PW1 further deposed that she does not remember the date and time when accused approached her for hand loan and she does not remember when she arranged Rs.50,00,000/ to the accused and she stated that she has not filed any cheque return memo pertaining to Ex.P1 to
Ex.P3 and she admitted that legal notice was not served on the accused which was sent by her.
7.She denied a suggestion that she has not handed over an amount of
Rs.50,00,000/ to the accused so did not mention in I.T returns, that the amount is not accountable it cannot be permitted under law, that she has not shown any source of income, that she has not filed any case against the accused on the strength of Ex.P7 because it is a forged one and she may not recover the amount or she may loose the case for which she filed the present case only on the basis of Ex.P1 to Ex.P3. She denied suggestion
Ex.P1 to Ex.P3 were not bounced due to Insufficiency of funds, that there is no cause of action for the present case and no legal notice was served on the accused which in statutory period. PW1 denied that her husband who also worked as Real Estate agent along with the accused some how managed to get the cheques from his office and a false case was foisted against the accused by misusing those cheques. She denied a suggestion that to file a complaint under N.I Act a notice should be served on the accused or cause
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of action should arose when the Accused refuses to legal notice, that the
Accused was not residing in the given address and a legal notice was sent on false address, that she had filed a false case against the Accused.
8.After closure of the complainant’s evidence, the Accused was examined under Section 313 Cr.P.C enabling him to explain the incriminating circumstances appeared against him in the evidence of Complainant for which the Special Vakalath Holder appearing on behalf of the Accused denied the truthfulness of evidence stating that accused is no way concerned with the case, that the cheque does not belongs to him, that he did not issued the cheques and a false case was foisted against him.
9.Heard the Learned Counsel for the Complainant and Learned Counsel
for the Accused.
10. The Learned Counsel for the Complainant in his arguments argued that the husband of Complainant and Accused are known to each other and on the request of her husband advanced an amount of Rs.50,00,000/ to the accused for his business necessities and executed a promissory notice in favour of complainant. On the same day Accused in the presence of witnesses issued 3 cheques as an additional security towards discharge of legal debt to the Complainant. On 05.12.2014, Ex.P1 to Ex.P3 were issued and also executed an Ex.P6 acknowledging the fact of borrowing the said
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loan of Rs.50,00,000/ from the Complainant and also execution of Ex.P7.
When the Complainant presented Ex.P1 to Ex.P3 on 01.03.2015 the cheques were bounced in Deccan Grameena Bank which issued a memo intimating the said fact to S.B.H, Manthani and subsequently S.B.H,
Manthani served a letter i.e., Ex.P5 to the Complainant on 03.03.2015 stating that Ex.P1 to Ex.P3 were bounced due to “Insufficient funds” and thereafter a legal notice was issued to the Accused vide Ex.P4, despite the
Accused willfully absent from his house and Postal Authorities returned the same cover unserved back to the Complainant by endorsing that intimation was served to the Accused on 23.03.2015, though intimation of legal notice through Postal Authorities was given to Accused but he failed to pay the cheque amount and Ex.P4 prove the fact that notice was issued to the
Accused and once the cheque is dishonoured on it’s presentation, the presumption under Section 139 of N.I Act would come into picture and
Accused shall be liable for prosecution under Section 138 of N.I Act as the presumption is in the favour of the Complainant and it shall be presumed that the cheques were issued by the Accused and were received by the
Complainant for discharge of legally enforceable debt in whole or in part of any debt or other liability and the documents exhibited by the Complainant in her evidence would demonstrate the fact of issuance of cheques and dishonour of the cheques and therefore the Learned Counsel for the
Complainant prays the Court to punish the Accused under Section 138 of
N.I Act.
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11.Per contra, the Learned Counsel for the Accused orally argued and also filed Written arguments and relied on citations stating that the
Complainant had utterly failed to establish that there was a legally enforceable debt and in discharge of such legal enforceable debt the Accused has issued Ex.P1 to Ex.P3. It was vehemently argued by the Learned
Counsel for the Accused that Ex.P1 to Ex.P3 were not issued for discharge of legally enforceable debt and was issued as additional security. It was also argued that the Complainant clearly admitted that she did not file cheque return memo showing the cause of dishonour of cheque and he further argued that cheques could be returned for various reasons such as
Insufficient Funds, refer to drawer, account closed, stop payment etc., He argued that in the absence of cheque return memo no cause of action can be inferred under Section 138 of N.I Act. Unless cheque return memo is filed, the factum of dishonour cheque will not be proved which is basis for issuance of statutory notice. It was also argued that once the cheques in question were issued for additional security, she cannot be prosecuted for the offence under Section 138 of N.I Act.
12.The Learned Counsel for the Accused relied on the following citations.
1. J.Subba Rao V/s T.Buchi Reddy 2002(2) ALT cr.195
2. Basalingappa V/s Mudibasappa (2019) SCC 418.
3. V.S.Krishnan V/s V.Narayan 1990(1) Madras Page No.75
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4.2001(1) ALT crimes Page No.216.
5. Vempati Balaji V/s D.Viajaya Gopal Reddy 1999(2) ALT Crl. Page
No.93.
6. Ganesh Das V/s Narendra Kumar 1999 Crimes Page No.3362
7. 1997(1) ALT Crl. Page No.956.
8. Vijaya Narender Rao Bidmalkar V/s Ramanavathar Mandal Agarwal 2002(3) Crimes Page No.677.
9. Raj kumar V/s Sukumaran 2002(4) crime 289
10. 1997 Cr.L.J 4275.
13.In the present case the Learned Counsel for the accused challenged the financial capacity of PW1. It is true that in all cases, Complainant has no obligation to prove her financial capacity. But, when the case of the
Complainant is that she lent money to the accused by cash and that the accused issued cheques in discharge of the liability, and if the accused challenges the financial capacity of the Complainant to advance the money, despite the presumption under Section 139 of the Act, the Complainant has the obligation to prove her financial capacity or the source of the money. The obligation in that regard would arise only when her capacity or capability to advance the money is challenged by the accused. In the present case the
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accused has challenged the financial capacity of PW1 to lend an amount of
Rs.50,00,000/. On the other hand PW1 claims that she has lent
Rs.50,00,000/ to the accused by way of cash. Under such circumstances, it is for PW1 to establish her financial capacity and source of income to lend such an amount at the relevant point in time. During the cross examination,
PW1 admitted that her father out of love and affection gave her some amount but she does not remember the exact amount and she does not know whether she gave a hand loan to the accused out of the amount which her father gave to her and she does not remember the source of amount which she procured for payment to the accused. Admittedly, no proof is filed to show from where the said amount was collected by the PW1. There is nothing on record to show that PW1 had the financial capacity to lend such an amount in cash. When the PW1 herself is not able to show the source of income to lend a loan of Rs.50,00,000/ in cash at relevant point in time, it is difficult to believe that she lent Rs.50,00,000/ to the accused in cash.
14.The Learned Counsel for the Accused also submitted that the PW1 even failed to establish the lending of loan and execution of promissory note by the Accused. Further there is no evidence that the accused executed
Ex.P7 and no transactions as alleged took place between the Accused and the PW1 and a false story was created by the Complainant for the purpose
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of extracting money from the Accused. Hence, it was prayed by the Learned
Counsel for the Accused to acquit the Accused by dismissing the Complaint.
15.On the consideration of the contentions of both parties and on material on record, the following points that arise for determination are as follows:
1. Whether the Complainant could establish that the cheques
Ex.P1 to ExP3 were issued for discharging of legally enforceable debt
by the Accused from the account maintained by the Accused.
2. Whether the Accused had rebutted the presumption under
Section 118 and 139 of N.I Act.
3. To what order?
16.The sum and substance of the case of the Complainant is that the
Accused had issued 3 cheques vide Ex.P1 to Ex.P3 in discharge of loan of
Rs.50,00,000/. When the cheques Ex.P1 to Ex.P3 were presented in the bank by the Complainant it was returned for the reason “INSUFFICIENT
FUNDS” and statutory notice was issued to the accused and despite receipt of legal notice the Accused had failed to repay the cheque amount within the stipulated time, therefore she is before the Court to prosecute the case against the Accused under Section 138 of N.I Act.
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Point No.1 and 2:
17. Before proceeding to the merits of the case, it is important to lay down the basic requirements of Section 138 of the NI Act,1881. In Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000)2 SCC 745, the
Hon’ble Supreme Court has held that to establish the offence under Section
138 of N.I Act, the Complainant must fulfill all the essential ingredients of the offence, as highlighted below:
First Ingredient: The cheque was drawn by a person on an account maintained by him/her for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient:The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
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Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of the notice.
18. In addition to the above, the conditions stipulated under Section 142
N.I Act have to be fulfilled. It becomes imperative to mention that Section 139 of the N.I Act provides a statutory presumption in favour of the Drawee that the Cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with Section 118 of N.I Act which states that every Negotiable Instrument is presumed to have been drawn and accepted for consideration. That said, what follows is that trial Under Section138 N.I Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence begins not from the home of the Complainant story but from the point of the Accused. The presumptions carved out in favour of the Complainant are those of law and not those of facts.
18.1. Sec.118 of the Negotiable Instrument Act is as follows:
Presumptions as to Negotiable Instruments:Until the contrary is proved, the following presumptions shall be made:
(a) of consideration, that every Negotiable Instrument was made or drawn for consideration, and that every such instrument, when it has been accepted,
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indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date, that every Negotiable Instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance, that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer, that every transfer of a Negotiable Instrument was made before its maturity;
(e) as to order of indorsements, that the indorsements appearing upon a
Negotiable Instrument were made in the order in which they appear thereon;
(f) as to stamps, that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course, that the holder of a Negotiable
Instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or accept or thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
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18.2. Further, it is a settled position that when an Accused has to rebut the presumption under Section 139 N.I Act, the standard of proof for doing so is that of "preponderance of probabilities". It has been held by the Hon'ble
Supreme Court in Rangappa v. Sri. Mohan, (2010) 11SCC441 that the presumption contemplated under Section 139 of the N.I Act includes the presumption of the existence of a legally enforceable debt. To rebut the statutory presumption under Section 139 N.I Act, the standard of proof is that of the preponderance of probabilities, by which the Accused is required to raise a probable defence. To rebut the presumption, it is open to the
Accused to rely on evidence led by him/her, or the Accused can also rely on the materials submitted by the Complainant or the circumstances upon which the parties rely to raise a probable defence. It has been held by the
Hon’ble Supreme Court in Basalingappa vs. Mudibasappa (2019) 5 SCC
418 that to rebut the presumption, the Accused can also rely on the materials submitted by the Complainant to raise a probable defence. The
Accused by crossexamining the Complainant can rebut the presumption of issuance of cheque in discharging of any debt or other liability. The inference of preponderance of probabilities can be drawn not only from the material brought on record but also by reference to the circumstances. The Accused by crossexamining the Complainant can rebut the presumption of issuance of cheque in discharging of any debt or other liability. The Accused can prove the nonexistence of a consideration by raising a probable defense and if the Accused is
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proven to have discharged the onus of proof showing that the existence of consideration was doubtful or improbable, the onus would shift on the Complainant who will be obligated to prove it as a matter of fact and upon her failure to prove would disentitle her for the grant of relief under Section 138 of the N.I Act.
18.3.The Hon'ble Apex Court betweenMSR Leathers Vs.
S.Palaniappan reported in (2013) 1 SCC 177 held that there are three distinct conditions precedent, which may be satisfied before the dishonor of the cheque can constitute an offence and become punishable.
(1). The cheque ought to have been presented to the bank within a period of 6 months (3 months) from the date on which it is drawn or within the period of its validity, whichever is earlier.
(2). The payee or the holder in due course of the cheque, as the case may be ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within the 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
(3). The drawer of the cheque should have failed to make the payment of the said amount of money to the payee or as the case may be to the holder in due course of the cheque within 15 days of the receipt of the said notice.
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It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Sec.138 as clauses(a), (b) and (c) thereof that an offence under Sec.138 can be said to have been committed by the person issuing the cheque.
18.4. In Krishna Janardhan Bhat Vs. Dattatraya G.Hegde 2008(2) ALT (Crl.) 170 wherein the Hon’ble Supreme Court held that a fact is said to be proved when, after considering the matters before it. The court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the
Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
18.5. InHiten P.Dalal Vs Bratindranath Banerjee AIR 2001 SC 3897 wherein the Hon’ble Supreme Court held that the words ‘unless the contrary is proved’ which occur in this provision make it clear that the presumption has to be rebutted by ‘proof’ and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it
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exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.
18.6. The explanation appended to Section 138 of N.I Act explains the meaning of the expression debt or other liability. This expression means a legally enforceable debt or other liability. Section 138 of the N.I Act treats and regards a dishonoured cheque as an offence provided if the cheque has been issued by the drawer in discharge of any debt or other liability, which is legally enforceable. The explanation to Sec.138 of N.I Act, leaves no manner of doubt that in order to attract an offence u/Sec.138 of N.I Act, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque, i.e., drawal of the cheque in discharge of existing or past adjudicated liability which is sine qua non for bringing an offence within the four corners of Section 138 of the N.I Act. The proviso appended to the section 138 of N.I Act provides for compliance of legal requirements
before a complaint can be acted upon by the Court of law.
18.7. Thus, as laid down in the catena of decisions it is an established law that the onus lies upon the Accused to rebut the presumption and to establish that cheque in question was not given in respect of any debt or liability, with the standard of proof being the preponderance of probability.
Therefore, it becomes critical to examine whether the explanation of the
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Accused coupled with the evidence on record is sufficient to dislodge the presumption envisaged by Sections 118 & 138 of N.I Act.
18.8. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence u/Sec.138 N.I Act. This criminal liability can be attached by proving each of the elements of the section under which the liability is sought to be enforced.
19.In the case at hand, the presentation of cheques in question for encashment and dishonour of cheques for the reason Insufficient funds is not in dispute as it is a matter of record proved by Ex.P1 to Ex.P3 (Cheques) and Ex.P5 (Bank voucher). The cheques were dated 05.12.2014 and dishonoured on 03.03.2015 which shows that Ex.P1 to Ex.P3 cheques were presented within their validity period and were bounced due to
Insufficiency of funds. Further it was contended by Complainant that Ex.P1 to Ex.P3 were issued towards additional security for discharge of legal debt.
The pertinent question which requires determination are whether complainant has capacity to lend an amount of Rs.50,00,000/ to the accused. The accused contended that the Complainant has no other source of income and she has no landed properties and she advanced loan in the year 2014 whereas her husband retired from service in the year 2010. The
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accused further contended that the Complainant failed to examine the witness of Ex.P7 and failed to prove the authenticity of Ex.P7.
20.Applying the preposition of law as laid down in Mudibasappa Vs
Basalingappa, it is open for the accused to rely on evidence led by him or the Accused can also rely on the materials submitted by the Complainant inorder to raise a probable defence. Inference of perponderence of probabilities can be drawn not only from the materials brought on record by the parties, but also by reference to the circumstances upon which they rely.
That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. It is not necessary for the Accused to come in the witness box to support his defence. Applying the presposition of law as noted above in facts of the present case, Complainant/PW1 in her evidence admitted her husband retired as a Teacher in the year 2010. It was also brought in the evidence that PW1 gave a hand loan of Rs.50,00,000/ to the
Accused by way of cash and she has no idea in which denomination she has given to the Accused and she even stated that out of love and affection her father gave an amount and she does not remember the exact amount and also the source of amount from where she procured. There was no satisfactory reply given by the Complainant and thus, the evidence on record is a probable defence on behalf of the Accused, which shifted the burden on the Complainant to prove her financial capacity and other facts. When it was
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questioned on behalf of the Accused which puts a heavy burden on the
Complainant to prove the financial capacity as she is a house hold.
21. On conscentious scrutinization of the material evidence available on record, the PW1 advanced hand loan in huge sum and even she is not in a position to speak how she procured such huge amounts besides that even
PW1 did not choose to examine the alleged attested witnesses of promissory note i.e., Ex.P7 and the entire testimony of PW1 does not reveal in whose presence the alleged amount were lend to the accused and the non examination of the said witnesses is serious infirmity in the case of the
Complainant and culminating doubts and the evidence adduced on behalf of the Complainant is not at all sufficient to arrive at a conclusion that the
Complainant has fulfilled the essesntial ingredients of Section 138 of N.I Act.
22.In the backdrop of the above discussion this Court is of the considered view that Complainant has failed to prove the requirements under Section 138 of N.I Act beyond reasonable doubt and establish her source of income and financial capacity. Further the accused was successful in rebutting the presumption in favour of the Complainant under Section 139 of N.I Act by raising a probable defence in his favour.
I Addl.JCJcumJMFC, Manthani.
C.C. No.198 of 2015Page No.23 of 24Date:29.09.2023.
23. IN THE RESULT, the Accused is not found guilty for offence punishable u/Sec.138 of N.I Act and consequently he is acquitted u/Sec.255(1) Cr.P.C. The bail bonds of the Accused shall be cancelled after expiry of appeal period and sureties are discharged.
Typed to my dictation by Stenographer GrIII, corrected and pronounced by me in the open Court on this the 29 th day of September, 2023.
Sd/ I Additional Junior Civil JudgeCum I Additional Judicial Magistrate of First Class, Manthani.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT FOR ACCUSED
PW1 Ramadugu Padmavathi Nil
EXHIBITS MARKED ON BEHALF OF COMPLAINANT.
Ex.P.1 is the original Cheque bearing No.269924, dated:05.12.2014 for an amount of Rs.20,00,000/ of Deccan Grameena Bank, Centenary Colony. Ex.P.2 is the original Cheque bearing No.269925, dated:05.12.2014 for an amount of Rs.20,00,000/ of Deccan Grameena Bank, Centenary Colony. Ex.P.3 is the original Cheque bearing No.269926, dated:05.12.2014 for an amount of Rs.10,00,000/ of Deccan Grameena Bank, Centenary Colony. Ex.P.4 is the Office copy of Legal Notice, date:20.03.2015. Ex.P.5 is the S.B.I Bank voucher pertaining to letter of intimation. Ex.P6. is the Notarized affidavit executed by the Accused. Ex.P7. is the Original Promissory Note, dated: 05.12.2014.
I Addl.JCJcumJMFC, Manthani.
C.C. No.198 of 2015Page No.24 of 24Date:29.09.2023.
EXHIBITS MARKED ON BEHALF OF ACCUSED.
NIL
Sd/ I Additional Junior Civil JudgeCum I Additional Judicial Magistrate of First Class, Manthani.
I Addl.JCJcumJMFC, Manthani.