IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: JANGAREDDIGUDEM
PRESENT: Sri M.Venkateswara Rao,
Judicial Magistrate of First Class, Jangareddigudem
Frizxday, this the 28th day of December, 2018
Calender Case No.60 of 2017
Between :
Maddipati Bulliraju, S/o.Kasiviswanadham, Aged 40 years, Cultivation, Main Road, Jangareddigudem Village, West Godavari District. …Complainant.
and
Mannina Srinivasu, S/o.Sambasiva Rao, C/o.Sri Lolla Tatarao library, Viswamohan Complex, Vinayak Center, R/o.Rajahmundry – 3. …Accused.
This case is coming before me for consideration in the presence of Sri
TSN Murthy, Learned counselfor complainant and of Sri N.Seetharam, learned counsel for the accused, and having stood over till this day for consideration, this
Court delivered the following :
J U D G M E N T
1.This is a private complaint filed against the accused person for the offence punishable under Section 138 of Negotiable Instruments Act, (hereinafter for short the NI Act), praying the Court to punish the accused U/sec.138 of NI Act, according to law.
2.The case of the complainant, in brief, is that, on 15-04-2015 the accused took an amount of Rs.10,00,000/- for the purpose of his business purpose and executed a promissory note agreeing to repay the same with interest at the rate of 12% per annum. On repeated demands made by the complainant the accused issued a Cheque dated 26-06-2016 drawn on Bank of Baroda, Hukumpeta Branch of
Rajahmundry for Rs.8,00,000/-.
3.It is further the case of complainant that the complainant presented the cheque for collection, but, the same was dishonoured with an endorsement of “Insufficient Funds”. The complainant issued legal notice on 26-07-2016 demanding the accused to arrange for payment of bounced cheque amount within the fifteen days, but, the same was returned with Postal Endorsement of “Left
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017
Without Instructions”. But, the accused failed to pay the amount inspite of such notice. Hence, the complainant prays the Court to punish the accused according to law, and to order for payment of cheqe amount to the complainant.
4.Case is taken on file for the offence Punishable U/sec.138 of NI Act. On appearance of accused copies furnished to accused, as required under Section 207 of Cr.P.C. Accused is examined under Section 251 of Cr.P.C explaining the accusation punishable U/Sec.138 of NI Act, and accused pleaded not guilty and claimed to be tried.
5.During course of trail, on behalf of the complainant, the complainant himself is examined as P.W.1 and got marked Exs.P.1 to P.12, and also got examined the scribe as P.W.2. After closure of complainant’s evidence, the accused is examined U/Sec.313 Cr.P.C., but the accused denied the incriminating evidence and reported defence evidence. On behalf of accused, the accused himself was examined as D.W.1 and got marked Exs.D.1 to D.3.
6.Heard both sides. Perused the record.
7.Now, the point for determination is…
Whether the complainant proved the guilt of the accused beyond reasonable doubt for an offence punishable U/sec.138 of Negotiable Instruments
Act _ ?
8.In this case the complainant is examined as P.Ws.1 and 2 and got marked Exs.P.1 to P.12. Ex.P.1 is original cheque issued by the accused; Ex.P.2 is account payee slip; Ex.P.3 is cheque return memo, Ex.P.4 is Office Copy of Legal
Notice issued to accused; Ex.P.5 is returned notice along with cover; Ex.P.6 is
Certificate of Promissory Note; Ex.P.7 is Pattadar Pass Book of Maddipati Sujatha
Sree, W/o.Bulli Raju; Ex.P.8 is Pattadar Pass Book of Maddipati Akhil Mohan,
S/o.Bulli Raju; Ex.P.9 is Certified Copy of Extract of 1-B Register, it stands in the name of P.W.1; Ex.P.10 is Certified Copy of Extract of 1-B Register, it stands in the
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017 name of his Son M.Akhil Mohan; Ex.P.11 is Certified Copy of Extract of 1-B Register, it stands in the name of P.W.1 wife Maddipati Sujatha Sree; and Ex.P.12 is Certified
Copy of Registered Sale Deed, in favour of P.W.1.
9.In order to appreciate rival contentions of both parties, it will be appropriate at this stage to read sections 118 (a), 138 and 139 of the Act.
Sec.138 of NI Act:. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of in- formation by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017 may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation. - For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability.
10.Sec.118 NI Act: 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
11.Sec.139 of NI Act: Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt, or other liability.
12.Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act. Moreover, the presumptions are purely rebuttable presumptions and not conclusive. To attract those presumptions it is mandate on the part of complainant to prove his prima-facie case and it is his initial and legal burden.
13.But, in regard to legally enforceable debt is concerned before proceeding to consider whether the complainant has discharged his initial burden in the above respect, the principles enunciated by the Hon’ble Apex court in “Krishna
Janardhan Bhat vs. Dattatraya G. Hegde”, reported in 2008 (2) A.L.T. (Crl.) 170
(SC) may be borne in mind. The relevant observations may usefully be extracted hereunder:
“Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Act. Section 13 (1) of the act defined ‘negotiable instrument’ to mean “a promissory note, bill of exchange or cheque payable either to
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017 order or to bearer”.
Section 138 of the Act has three ingredients, viz.,:
(i) that there is a legally enforceable debt;
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; and
(iii) That the cheque so issued had been returned due to insufficiency of funds.”
“The proviso appended to the said section provides for compliance of legal
requirements before a complaint petition can be acted upon by a court of law.
Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under section 139 of the Act. It merely raises presumption in favour of a holder
of the cheque that the same has been issued for discharge of any debt or other
liability.”
“The courts below, as noticed herein before, proceeded on the basis that
Section 139 raises a presumption in regard to existence of a debt also. The
courts below, in our opinion, committed a serious error in proceeding on the
basis that for proving the defence the accused is required to step into the
witness box and unless he does so he would not be discharging his burden.
Such an approach on the part of the courts, we feel, is not correct.” “An
accused for discharging the burden of proof placed upon him under a statute
need not examine him.” “He may discharge his burden on the basis of the
materials already brought on records. An accused has a constitutional right to
maintain silence. Standard of proof on the part of an accused and that of the
prosecution in a criminal case is different”.
14.From the above, it is clear that the existence of legally recoverable debt is not a matter of presumption under sec.139 of the Act and the presumption that can be drawn under Sec.139 of the Act, cannot be drawn in regard to existence of a debt also in as much as, it merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. Therefore in view of the contention of the accused from the beginning that he did not issue
Ex.P.1 cheque towards discharge of any legally enforceable debt to the complainant, it is for the complainant to establish that the legally enforceable debt is in existence.
15.The law laid down by the Hon’ble Apex court is to the effect that the material need to be placed by the accused for rebutting such presumption shall not be comparable with the evidence required to be adduced on the side of the prosecution. The prosecution is expected to prove their case beyond reasonable
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017 doubt, whereas the defence case can be proved by preponderance of probabilities. If he is able to create a dent in the evidence of the prosecution or a doubt in the mind of the court that is sufficient and he is entitled to the benefit of doubt. He can wins on the ground of probabilities. He need not come into the witness box and prove his case. He can prove his case by drawing inspiration from the material placed before the Court by the prosecution.
16.Relating to above aspect in a decision reported in 2008 CRI.L.J. 1172 (SUPREME COURT) in between Krishna Janardhan Bhat Vs. Dattatraya G.Hegde in which their Lordships held that “In case of dishonour of cheque it cannot be said
that for proving the defence the accused is required step into the witness box
and unless he does so he would not be discharging his burden.” From the above it is clear that the accused has every right to use the evidence adduced on behalf of complainant to rebut the presumption u/s 118 and 139 of Negotiable
Instruments Act.
17.Thus, to prove the guilt of the accused for the offense punishable under section 138 of Negotiable Instrument Act the complainant needs to prove that:
(1)Cheque that was issued by the accused presented for collection within the period of its validity.
(2)That the cheque was dishonoured by the bank authorities for one of the reasons which attract the offence under section 138 of Negotiable Instruments Act, 1881.
(3)That the drawee issued notice under section 138 of Negotiable Instruments Act, 1881 within the statutory period in respect of cheque dishonored.
(4)That the drawer received the said notice, but failed to make any payment covered by the dishonoured cheque with in stipulated time as mentioned in section 138 of Negotiable Instruments Act, 1881.
(5)That the complaint was filed within the period of limitation in the court having jurisdiction.
(6)A prima-facie proof that the cheque was issued in discharge of any legally enforceable subsisting debt.
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017
18. Therefore if all the above ingredients were proved by the complainant or in other words if all the above points were answered positively in favour of the complainant and against the accused the presumption under section 139 of
Negotiable Instruments Act, 1881 comes in to play and the burden of proving the case shifted to the accused and he has to rebut the presumption arises under section 139 of Negotiable Instruments Act, 1881 in favour of the complainant.
19.The initial burden to prove his case lies on the complainant before raising presumption U/Sec.118 and 139 of NI Act. The Complainant himself is examined as P.W.1 and he got marked Ex.P.1 to P.7. In his evidence P.W.1 reiterated contents of his complaint. P.W.1 deposed that accused borrowed Rs.10,00,000/- from him on 15.04.2015 and executed Ex.P.6 promissory note and to discharge the said amount, the accused gave Ex.P.1 Cheque for Rs.8,00,000/- and the same is returned unpaid with endorsement “Funds Insufficient” and in spite of statutory notice the accused failed to pay the cheque amount, as such the accused committed the offence punishable U/Sec.138 of NI Act. Further, the evidence of P.W.2 who is Scribe of Ex.P.6 promissory note is also establishing that on 15.04.2015 accused borrowed
Rs.10,00,000/- from the complainant and executed Ex.P.6 – Promissory note in favour of complainant.
20.The evidence of P.W.1 is corroborated by Ex’s.P-1 to P- 6 documentary evidence. Ex.P-6 promissory note is showing that accused borrowed Rs.10,00,000/- from the complainant, Ex.P-1 cheque is showing accused issued the same for discharge of said due amount on 26.06.2016 for Rs.8,00,000/- from his account,
Ex.P.3 is Cheque return memo is showing that the cheque was returned with an endorsement that “Funds Insufficient”. The learned counsel for accused cross examined P.Ws.1 and 2 in respect of execution of Ex.P.6 – Promissory note, but, nothing was elicited to doubt the evidence of P.W.1 and PW.2 as to borrowing
Rs.10,00,000/- from complainant and as to execution of Ex.P.6 – Promissory note by accused in favour of complainant.
21.The contention of learned counsel for accused is that the complainant has no capacity to lend such huge amount and that the P.W.1 did not show the debt in his tax returns, as such, the accused is entitled for acquittal.
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017
22.The learned counsel for accused relied on a citation in case of K.Ashok
Kumar Goud Vs. Sreeramulu and another reported in 2017 (1) ALT (Crl.) 320 (AP). But, the above citation is also not applicable to the facts and circumstances of the present case. In this case the evidence of P.w.1, P.w.2 and Ex.P.6 – Promissory note are establishing beyound all reasonable doubt that the accused borrowed
Rs.10,00,000/- from the complainant and executed Ex.P.6 – Promissory note.
Further, during cross examination of P.W.1 it was elicited that P.W.1 was not a income tax assessee. Further, it was elicited during cross examination that his
Income was Agricultural income, as such no need to pay Income Tax. Further Ex.P.2 to P.11 are corroborating with the evidence of PW.1 as to his capacity. It is settled principle of law that agricultural income is not taxable. Therefore, the question of showing the income in tax returns does not arise. Therefore, in view of the above reasons, this Court is of the considered opinion that the citation is not applicable to the facts and circumstances of the present case.
23.Further, the learned counsel for accused relied on a citation in case of
K.Venkata Krishna Prasad Vs. P.Sai Swaroopa and another reported in 2017 (1)
ALT (Crl.) 257 (AP). But, the above citation is also not applicable to the facts and circumstances of the present case. In this case the evidence of P.w.1, P.w.2 and
Ex.P.6 – Promissory note are establishing beyound all reasonable doubt that the accused borrowed Rs.10,00,000/- from the complainant and executed Ex.P.6 –
Promissory note. Further, it was elicited during cross examination that his Income was Agricultural income, as such no need to pay Income Tax. Further Ex.P.2 to P.11 are corroborating with the evidence of PW.1 as to his capacity. It is settled principle of law that agricultural income is not taxable. Therefore, the question of showing the income in tax returns does not arise. Therefore, in view of the above reasons, this
Court is of the considered opinion that the citation is not applicable to the facts and circumstances of the present case.
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017
24.Further, the learned counsel for accused relied on a citation in case of
Vijay Vs. Laxman and another reported in 2014 (1) ALT (Crl.) 342. The above citation is also not helpful to the accused in view of facts and circumstances of this case and the facts and circumstances of the above citation are entirely different.
25.Further, the learned counsel for accused relied on a citation in case of
P.Chennakesava Rao Vs. P.Lakshmi Narasaiah reported in 2017 (2) ALT (Crl.) 279 (AP), wherein the Hon’ble High Court of AP was pleased to held that when the accused is able to rebut the presumption the burden will shift on complainant. But, the above citation is not applicable to the facts and circumstances of the present case, as the complainant is not money lender in this case and that the Telangana
Money Lending Act is not applicable in Andhra Pradesh. Further, in the said case there was no document to show that the accused borrowed the said amount apart from the Cheques. But, in the present case the promissory note was proved to have been executed by the accused in favour of complainant. Further, the Hon’ble High
Court of A.P in case of Ratakonta Raghunaidu Vs. Kolla Sivaram Prasad and another reported in 2003 (2) ALD (Crl.) 956 (AP), was pleased to define the definition of Money Lender and held that, “the definition of Money Lender envisages only those persons whose regular business is to advance money and not those who advance money casually.” The above citation is equally applicable to the present case. There is no material produced by the accused to establish that the complainant doing regular business of money lending. Therefore, the casual lending by complainant to known persons cannot be termed as money lending. In view of the above reasons this Court of the considered opinion that above citation is not applicable to the facts and circumstances of the present case.
26.During cross examination of P.W.1 it was elicited by the learned counsel
for accused that Further, it was elicited during cross examination that his Income was
Agricultural income, as such no need to pay Income Tax. Further Ex.P.2 to P.11 are corroborating with the evidence of PW.1 as to his capacity. Therefore, in view of
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017 the above reasons showing the above debt amount which was earned by P.W.1 in his agricultural operations. Therefore, the question of showing the said debt in tax returns does not arise.
27.Further contention of the learned counsel for accused is that the accused did not receive legal notice, as such, there is no cause of action. On the other hand, the learned counsel complainant that Ex.P.5 – Legal notice was returned and that the complainant received Ex.P.5 – Postal unserved cover with an endorsement of “Left Without Instructions, Hence returned”, as such, the service of notice is sufficient.
28.With regard to service of notice, the Hon'ble High court of AP in
case of Kukatla Kotaiah and another Vs. District Collector reported in 2005(4)
ALD 214, in para 14 was pleased to held that...
“14. With regard to service of notice by registered post, I am of the considered opinion that merely because the addressee is not available for service the sender of the notice cannot be put to a disadvantage. The addressee is bound to take care to see that the mail addressed to him is received by some one in his abode. Otherwise, a person who wants to avoid service of notice by registered post can make himself scarce and plead that there is no due service. A person who leaves his house has to make arrangements for receipt of mail addressed to him. If he does not do so he should take the risk for his absence and reap the consequences for his lapse. He cannot have a special advantage in respect of mail sent to him by registered post, by leaving the house without making arrangements for receiving the mail addressed to him, because in respect of the letters addressed to him, sent by ordinary post or certificate of posting, in spite of his absence, a presumption would be raised that that letter is received by him. The sender of a letter by registered post cannot be put to a disadvantage for the lapse of the addressee not making arrangements for receipt of the mail addressed to him. So petitioners, for their failure to make arrangements for receipt of mail addressed to them, during their absence, have to blame themselves but cannot take advantage thereof and claim a benefit.”
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017
29.Further in case of P.Parameswaran Unni Vs. G.Kannan and another reported in 2017 (2) ALT (Crl.) 366 (SC), the Hon’ble Supreme Court was pleased to held that, once notice sent by registered post and if it is returned with endorsement of “refused or not available in the house or house locked or shop closed or addressee not in station” has to be construed as due service U/Sec.27 of General Clauses Act.
30.In this case it is not the evidence of accused as D.W.1 that the address mentioned in Ex.P.5 – Postal unserved cover is not belongs to him. The entire evidence of accused as D.W.1 did not disclose that the address mentioned in Ex.P.5 – Postal unserved cover is not belongs to him. So, in view of above citation, the
Ex.P.6 Postal cover returned unserved with endorsement of “Left Without
Instructions, Hence returned”, can be held sufficient service.
31.Therefore, in view of the above reasons, it can be safely held that the accused borrowed an amount of Rs.10,00,000/- from the complainant and executed
Ex.P-6 promissory note and to discharge the said debt he gave Ex.P-1 cheque for
Rs.10,00,000/- from his account and the same was returned unpaid with an endorsement that “Funds Insufficient” and the accused failed to pay the cheque amount in spite of knowledge of dishonour his cheque. Thus, the evidence of Pws.1 and 2 coupled with the documentary evidence on record is categorically establishing that the accused borrowed Rs.10,00,000/- from complainant and executed Ex.P.6 promissory note and to discharge she issued Ex.P.1 cheque and it was dishonored, but the accused failed to pay the amount within 15 days of knowledge of dishonour of cheque.
32.Therefore in view of above discussion, all the ingredients were proved by the complainant and against the accused. Therefore, the presumption under section 139 of Negotiable Instruments Act, 1881 comes in to play and the burden of proving the case shifted to the accused and he has to rebut the presumption arises under section 139 of Negotiable Instruments Act, 1881 in favour of the complainant.
The presumption referred to in Section 139 of the N.I. Act is a mandatory
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017 presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court.
33.The accused herself was examined as D.W.1 and his evidence is that he used to borrow Rs.50,000/- to Rs.1,00,000/- from one Parimi Hari Charan, who is resident of Kovvuru and used to pay the same and in said transaction he have given his Promissory Notes and Cheques to him and the said Cheque and Promissory notes are filed in the name of the complaint and filed this case and that he never borrowed any Promissory Note and there is no legally enforceable debt. During
Cross examination admitted that the signatures shown to him on the promissory note and cheque filed in this case are belongs to him and that Ex.P.1 is his Cheque.
Except self serving statements the accused as DW.1, he did not produce any material evidence to prove he used to borrow Rs.50,000/- to Rs.1,00,000/- from one
Parimi Hari Charan, who is resident of Kovvuru and used to pay the same and in said transaction he have given his Promissory Notes and Cheques to him and the said
Cheque and Promissory notes are filed in the name of the complaint and filed this case and that he never borrowed any Promissory Note and there is no legally enforceable debt. Therefore, in view of the above discussion this Court holds that the contention of accused as D.W.1 is not proved by any cogent evidence.
34.Therefore, in view of above discussion and for the reasons stated above this court holds that the accused failed to prove his contention by producing any cogent evidence. No sufficient material is elicited or produced to prove the contention of accused. Thus the accused failed to prove his defense and failed to rebut the presumption U/sec.118 and 139 of Negotiable Instrument Act.
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017
35.Further contention of accused is that his Surname is “Manne” and not “Mannena”, in complaint his surname was mentioned as “Mannena”, as such the accused is entitled for benefit of it and entitled for acquittal. The counsel for the accused argued that if really the accused was present at the time of scribing Ex.P.6 promissory note, correct surname could have mentioned in Ex.P.6 “Manne” and mentioning his surname as “Mannena” is creating a reasonable doubt on the presence of accused at the time of scribing the said promissory note. The accused filed Ex.D.1 – Attested copy of Aadhar card; Ex.D.2 – Attested copy of PAN Card; and
Ex.D.3 – Attested copy of Driving license, it shows that the surname of accused is “Manne”. The learned counsel for complainant argued that since there is no dispute as to the identity of accused mere wrong mentioning the surname of accused as “Mannena” would not cause any prejudice to the accused and on the other hand, the accused himself got it mentioned in Ex.P.6 – Promissory note that his surname was “Mannena”. This Court examined the evidence of accused as D.W.1 and Exs.D.1 to
D.3 and Ex.P.6. It was mentioned in Ex.P.6 that the surname of accused as “Mannena”, whereas, according to Exs.D.1 to D.3 the surname of accused was mentioned as “Manne”. But, merely mentioning the surname name of accused as “Mannena” instead of “Manne” would not cause any prejudice to the accused, as there is no dispute with regard to identity of accused. On the other hand, the evidence of P.W.1, P.W.2 and Ex.P.6 – Promissory note establishing that the accused executed the same and that P.W.2 scribed the said promissory note. Therefore, in view of the above reasons this Court is of the considered opinion that merely mentioning the surname name of accused as “Mannena” instead of “Manne” would not cause any prejudice to the accused, as there is no dispute with regard to identity of accused.
36.Further contention of learned counsel for accused is that Ex.P.4 – Legal notice is defective as the amount borrowed was mentioned as Rs.10,00,000/-, whereas, in words it was mentioned as “Ten Thousand Only”. On the other hand, the
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017 learned counsel for accused argued that it is clear in Ex.P.4 – Legal notice that the amount borrowed by accused was Rs.10,00,000/-, as such, mentioning “Ten
Thousand Only” in words will not make the legal notice defective. On perusal of
Ex.P.4 – Legal notice it was clearly mentioned that the accused borrowed
Rs.10,00,000/-. However, it was mentioned in words as “Ten Thousand Only”. It is settled principle of law that the document has to be read in toto and on reading the
Ex.P.4 – Legal notice in toto, it makes clear that the accused borrowed
Rs.10,00,000/-. Therefore, it can be said that mentioning “Ten Thousand Only” is a typographical mistake and when the document in toto showing that accused borrowed Rs.10,00,000/-, the said typographical mistake cannot take away the evidence of P.W.1, P.W.2 and Ex.P.6, which is proving that the accused borrowed
Rs.10,00,000/- from complainant.
37.Further contention of learned counsel for accused is that the P.W.1 admitted on several occasions during his cross examination that his residence address was mentioned as Kovvur in his previous filed cases and in the documents filed by him, as such, lending amount at Jangareddigudem is appearing to be improbable. On the other hand, the learned counsel for complainant argued that the residence of complainant would not give jurisdiction to file complaint and that the presentation of cheque has to be taken into consideration to see whether this Court has jurisdiction or not. The settled principle of law to give jurisdiction is the Bank in which the cheque was presented. In this case Ex.P.1 – Cheque was presented
before State Bank of India, Jangareddigudem within the jurisdiction of this Court.
Further, evidence of P.W.1, P.W.2 and Ex.P.6 are establishing that the accused borrowed amount from complainant at Jangareddigudem and executed Ex.P.6 –
Promissory note. Therefore, in view of the above discussion and for the reasons stated above, this Court is of the considered opinion that merely the previous address of complainant was mentioned as Kovvur, it will not fatal to the case of complainant.
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017
38.On the other hand, as earlier discussed the evidence of P.Ws.1 and 2 coupled with documentary evidence under Exs.P-1 to P-12 clearly establishing that accused borrowed an amount of Rs.10,00,000/- and executed Ex.P.6 promissory note and that the accused issued Ex.P.1 for discharge of said due amount for
Rs.8,00,000/- from his account and the same was returned unpaid with an endorsement that “Funds Insufficient” and the accused failed to pay the cheque amount in spite of knowledge of dishonour of his cheque.Thus the evidence of
P.Ws.1 to 3 coupled with documentary evidence under Exs.P-1 to P-12 is consistent, cogent and convincing to show that the accused issued a cheque having knowledge that his account does not bear sufficient funds and he failed to pay cheque amount in spite of knowledge of dishonour of the same within 15 days. Thus, the complainant proved beyond all reasonable doubt that the accused committed the offence punishable U/Sec. 138 of Negotiable Instruments Act. Point is answered accordingly.
39.In the result, Accused is found guilty for the offence punishable under
Section 138 Negotiable Instrument Act and accordingly he is convicted under Section 255 (2) of Cr.P.C for the offence punishable U/sec.138 of Negotiable Instrument Act.
Typed to my dictation by Stenographer Grade III, corrected and pronounced by me in open Court, this the 28 th day of December, 2018.
Sd/- M.Venkateswara Rao
Judicial Magistrate of I Class,
Jangareddigudem.
40.On being questioned with regard to the sentence of imprisonment to be awarded, accused submitted that he is having large family members and they are dependents on him. The accused further submitted that he is a poor man and he cannot pay huge fine and requested this Court to impose less fine. Since the offence is economical offence this Court feels that the accused is not entitled for benefit of provisions of PO Act. Having regard to the facts and circumstances of the case and in view of the gravity of the offence committed by the accused person and also considering the submission of accused, this Court considers that sentencing the
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017 accused as under would meet ends of justice.
41.In the result, accused is found guilty for the offence punishable under
Section 138 of Negotiable instrument Act and accordingly he is convicted under
Section 255 (2) of Cr.P.C for the offence U/sec.138 of Negotiable Instrument Act and he is sentenced to suffer simple Imprisonment for Six (6) Months and also sentenced to pay fine of Rs.6,000/- (Rupees Six Thousand Only) and in default to pay fine amount to suffer S.I. for one month. Total fine of Rs.6,000/-.
42. The accused is not in remand during trail, as such no order as to set-off
U/Sec.428 of Cr.P.C is passed. The accused is explained his right of appeal against this judgment before the Hon’ble Sessions Court, West Godavari, Eluru and as to his right of free legal aid. Office is directed to give free copy of Judgment to the accused forthwith and obtain acknowledgement. PA is directed to upload judgment forthwith in NJGD.
Pronounced by me in the open court dated this the 28 th day of December, 2018.
Sd/- M.Venkateswara Rao
Judicial Magistrate of I Class,
Jangareddigudem.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAIANNT : P.W.1::Maddipati Buliraju (Complainant) P.W.2::Kolukuluri Satyanarayana (Scribe)
FOR DEFENCE : D.W.1::Manne Srinivas (Accused)
DOCUMENTS MARKED
FOR COMPLAINANT / BANK :
Ex.P.1/26-06-2016:Cheque issued by the accused in my favour. Ex.P.2/ 01-07-2016:Account payee slip. Cheque return memo from State Bank of India, Ex.P.3/02-07-2016: Jangareddigudem. Office copy of legal notice issued to accused. Ex.P.4/ --: Ex.P.5/28-07-2016:Returned notice along with cover. Ex.P.6/15-04-2015:Promissory note. Ex.P.7/ --:Pattadar Pass Book of Maddipati Sujatha Sree, W/o.Bulli Raju.
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017
Ex.P.8/ --:Pattadar Pass Book of Maddipati Akhil Mohan, S/o.Bulli Raju. Ex.P.9/ 24-12-2018:Certified Copy of Extract of 1-B Register, it stands in the name of P.W.1. Ex.P.10/24-12-18:Certified Copy of Extract of 1-B Register, it stands in the name of P.W.1’s Son M.Akhil Mohan. Ex.P.11/24-12-18:Certified Copy of Extract of 1-B Register, it stands in the name of P.W.1’s wife Maddipati Sujatha Sree Certified Copy of Registered Sale Deed, in favour of Ex.P.12/30-07-15: P.W.1. FOR DEFENCE :
Ex.D.1/ --:Attested Copy of Aadhar Card of D.W.1. Ex.D.2/ --:Attested Copy of PAN Card of D.W.1. Ex.D.3/ --:Attested Copy of Driving License of D.W.1.
Id/- M.V.R. J.F.C.M., Jangareddigudem.
// True Copy //
Judicial Magistrate of I Class,
Jangareddigudem.
Judicial Magistrate of I Class Court, Jangareddigudem.
Calender Case No.60 of 2017
CALENDAR AND JUDGEMENT
Calender Case No.60/2017 tried by the Judicial Magistrate of I Class, Jangareddigudem, West Godavari District. --------------------------------------------------------------------------------------------------------
Date of offence:26-06-2016 Date of Compliant :13-10-2016 Taken on file:12-01-2017 Released on bail: -- Commencementof:22-08-2017 Trail Close of Trail:27-12-2018 Date of Judgment:28-12-2018 Explanation for delay:The complainant dragged the matter by filing successive petitions U/Sec.311 of Cr.P.C. Name of the Complainant :
Maddipati Bulliraju, S/o.Kasiviswanadham, Aged 40 years, Cultivation, Main Road, Jangareddigudem Village, West Godavari District.
Name of the Accused: Mannina Srinivasu, S/o.Sambasiva Rao, C/o.Sri Lolla Tatarao library, Viswamohan Complex, Vinayak Center, R/o.Rajahmundry – 3.
Offence :U/Sec.138 of N.I. Act. Finding :Found guilty. Sentence of Order:
In the result, accused is found guilty for the offence punishable under Section 138 of Negotiable instrument Act and accordingly he is convicted under Section 255 (2) of Cr.P.C for the offence U/sec.138 of Negotiable Instrument Act and he is sentenced to suffer simple Imprisonment for Six (6) Months and also sentenced to pay fine of Rs.6,000/- (Rupees Six Thousand Only) and in default to pay fine amount to suffer S.I. for one month. Total fine of Rs.6,000/-. The accused is not in remand during trail, as such, no order as to set-off U/Sec.428 of Cr.P.C is passed. The accused is explained his right of appeal against this judgment before the Hon’ble Sessions Court, West Godavari, Eluru and as to his right of free legal aid. Office is directed to give free copy of Judgment to the accused forthwith and obtain acknowledgement. PA is directed to upload judgment forthwith in NJGD.
Sd/- M.Venkateswara Rao
Judicial Magistrate of I Class,
Jangareddigudem. Copy submitted to:
The Hon’ble I Additional District Judge, West Godavari, Eluru (Through Compaq Disk).
// True Copy //
Judicial Magistrate of I Class,
Jangareddigudem.