1 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP
IN THE COURT OF THE XIII METROPOLITAN MAGISTRATE ::
ANAKAPALLE
PRESENT: Sri M. VENKATESWARA RAO
XIII METROPOLITAN MAGISTRATE, ANAKAPALLE
Monday, this the 28 th day of October, 2019
C.C. No.121/2018
Old CC No.344/2013
Between:
Dadi Venkata Appa Rao, S/o Subrahmanyam, Hindu, Aged 37 years, residing at D.No.20-8-19/2, Jaggarao, Bungalow, Vizag Road, Anakapalle Mandal
.. Complainant.
AND
Tirumala Dasu Krishna Mohan, S/o. Hindu, Aged 57 years, residing at Sai Aditya Enclave, Second Floor, Flat No.2, Aditya Nagar, Desapatrunipalem, Parawada Mandal, Visakhapatnam District.
. .. Accused.
This case coming on 23-10-2019 for final hearing before me in the presence of Sri K.V.N. Srinivasa Rao, Advocate for the Complainant and of Sri B. Bala Sankara Rao, Advocate for the accused and the matter having stood over for consideration till this day and upon hearing arguments on both sides, this Court delivered the following:
J U D G M E N T
1.The complainant -Dadi Venkata Apparao filed the complaint against the accused for offence punishable u/sec. 138 of NI Act.
2. The brief facts of the allegations against the accused as mentioned in the complaint are as follows:
(a)The accused borrowed an amount of Rs.3,00,000/- from the complainant on 05-01-2012 to meet the family expenses and to discharge sundry debts agreeing to repay the same with an interest @ 24% p.a and he executed a demand promissory note in favour of the complainant on the same date. Later, on repeated demands from the end of the complainant, the accused issued a cheque bearing
No.012012, dated 27-12-2012 for an amount of Rs.1,80,000/- drawn on State Bank of
Hyderabad, Visakhapatnam Steel Township Branch, Visakhapatnam in favour of the 2 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP complainant towards the part payment of the amount due under above said promissory note.
(b)The complainant presented the said cheque for collection in Bank of India, Anakapalle Branch, Visakhapatnam on 28-12-2012 but the same was returned unpaid with an endorsement “Funds Insufficient” vide memo dated 28-12-2012.
Thereupon, when he informed the same to accused, the accused requested the complainant to represent the cheque again in the 1st week of February 2013, and as such he represented the same in Bank of India, Anakapalle Branch, Visakhapatnam on 04-02-2013 and the same also was returned with an endorsement “Funds Insufficient” vide memo dated 04-02-2013. Then the complainant got issued a statutory notice dated 02-03-2013 to the accused. The accused received the same but he did not comply the demand nor replied to the notice. Therefore, the accused committed the offence punishable u/sec.138 of NI Act and liable to be convicted for the said offence.
3. The cognizance was taken for the offence punishable U/sec.138 of
Negotiable Instrument Act (in short N.I. Act) against the accused on 06-11-2013 by the
Hon'ble V Metropolitan Magistrate's Court, Anakapalle and renumbered as CC
344/2013.On appearance of the accused, the copies of the case documents were furnished to the accused as contemplated u/s.207 of Cr.P.C.
4.Later, as per the orders of the Hon'ble District Court dated 24-08-2017 communicated in Dis.No.7264 dated 24-08-2017, the case was transferred to this Court and renumbered as C.C No.121/2018.
5.The accused was examined U/s.251 of Cr.P.C. The accused denied the contents of the compliant and the documents. The accusation against the accused for the offence punishable U/s. 138 of NI Act was read over and explained to him in Telugu, for which, he denied the accusation, pleaded not guilty and claimed to be tried.
6.To bring home the guilt of the accused, on behalf of the complainant,
P.W.1 to P.W.3 were examined and Exs.P1 to P6 and Ex.X.1 to X.3 were marked.
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7. After closure of the complainant's side evidence, the accused was examined U/s.313 Cr.P.C. He denied the incriminating evidence appeared against him on record and reported that he would adduce defence evidence.
8. I have heard the arguments of the both sides. The complainant and accused filed their respective memorandum of written arguments. I have gone through the entire evidence on record and memorandum of written arguments filed on behalf of the complainant and accused.
9.Now, the points for consideration are :
1. Whether the accused issued Ex.P.2 cheque towards the discharge of legally enforceable debt or other liability ?
2. Whether the complainant made a demand for the Ex.P.2 cheque amount to the accused through a statutory notice as contemplated under clause (b) of the proviso to section 138 NI
Act within in the prescribed time and as per law ?
3. Whether the complainant could able to bring home the guilt of
the accused beyond all reasonable doubt?
Point No. 1. : Whether the accused issued Ex.P.2 cheque towards
the discharge of legally enforceable debt or other
liability ?
10.The learned complainant's counsel argued that the accused borrowed an amount of Rs. 3,00,000/- under Ex.P.1 and later, he issued Ex.P.2 cheque towards part payment of the amount due under Ex.P.1, and when Ex.P.2 is presented for collection, the same was returned unpaid with endorsement Funds Insufficient. He further argued that in consequent to the return of Ex.P.2 cheque, the complainant got issued a statutory notice, the same was served on the accused but he did not choose to sent any reply and therefore, the same draws an adverse inference against the accused. He further argued that the complainant adduced evidence of P.W.1 to P.W.3 coupled with
Ex.P.1 to P.6 as well as Ex.X.1 to X.3 and the same establishes the Ex.P.2 cheque was returned unpaid due to the reason of Insufficient Funds in the account of the accused as well as the Ex.P.2 was drawn on the account of the accused. Therefore, the complainant could able to establish the material ingredients of offence u/sec.138 of NI 4 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP
Act and further, the accused could not discard the evidence of prosecution witnesses and rebut the presumption u/sec.138 of NI Act.
11.Per contra, the learned defence counsel argued that the accused never borrowed the alleged amount from the complainant under Ex.P.1 and he never issued
Ex.P.2 in discharge of the said due amount in part, and further argued that as per
Sec.101 of Indian Evidence Act, the burden of proof lies upon the person who ascerts the fact to such person cannot depend on the weakness of the other person. He further argued that the answers elicited in cross examination of P.W.1 to P.W.3 establishes there is no truth in the version of the complainant and thus, the accused is entitled to be acquitted.
12.I have gone through the evidence on record. The complainant himself is examined as P.W.1 and examined the bank officials as P.W.2 and P.W.3. Apart from the oral evidence, the complainant placed reliance on Exs. P.1 to P.6 and Ex.X.1 to X.3.
P.W.1 filed the evidence affidavit and the same is treated as a examination in chief. The evidence affidavit of P.W.1 is nothing but the material averments of the complainant.
13.The evidence of P.W.1 discloses that he lend Rs.3,00,000/- to the accused on 15-01-2012 under Ex.P.1 and the accused having received the consideration executed Ex.P.1 on the even date at the residence of P.W.1 at Anakapalle and agreed to pay the same together with interest @ 24% p.a. I have gone through Ex.P.1. The recitals of Ex.P.1 go to show Tirumaladasu Krishna Mohan i.e., accused herein borrowed an amount of Rs.3,00,000/- from Dadi Venkata Apparao i.e., complainant on 05-01-2012 and he agreed to discharge the said loan amount with interest @ 24% p.a.
the Ex.P.1 contains the signature as well as thumb impression of the borrower. One T.
Madhavi and one Phani Bushan stood as witnesses to the Ex.P.1 transaction and one
Nookaraju scribed it. The accused denied the execution of Ex.P.1 in favour of P.W.1.
However, he has not taken steps to challenge the same.
14.The suggestion put to P.W.1 disclose that the signature and thumb impression of Ex.P.1 belongs to the accused. It is suggested to P.W.1 that the accused borrowed Rs.30,000/- from one Murali and he gave empty signed promissory note and 5 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP cheque as security to him but the complainant here misused the same. Though launch the present prosecution since the complainant and Murali are friends. The said suggestion itself establishes the signature on Ex.P.1 and P.2 are that of the accused. In the said circumstances, the contention of the accused that he did not execute Ex.P.1 is not at all tenable.
15.Further, though he set up the defence that he executed the promissory note and cheque in question in favour of one Murali but the same is not established through acceptable evidence. It is not in dispute that the accused is an employee in
Steel Plant. In the said circumstances, if really the complainant misused the documents what prevented the accused to keep quite without initiating the legal action against the complainant is not spelled out in the entire cross examination. Furthermore, even though it is suggested in cross examination that the accused cleared the alleged loan to
Murali but the date of discharge is not spelled out.
16.Except the alleged vague contention that he did not executed Ex.P.1 in favour of the complainant but there is not material to substantiate the same. The evidence of P.W.1 is consistent that the accused borrowed an amount under Ex.P.1 on 05-01-2012 in the presence of attestors and the scribe and accused had received the consideration under Ex.P.1. The evidence of P.W.1 gets corroboration from the contents of Ex.P.1. Where the complainant establishes the execution of the Negotiable
Instrument, the presumption u/sec.118 NI Act comes into operation. In the said circumstances, the burden lies upon the borrower / accused to prove there is no financial transaction between the complainant and accused as alleged but the accused could not discharge the said burden and could not rebut the presumption u/sec.118 of
NI Act. It is specific contention of the accused that the complainant did not choose to examine the attestors and scribe and the same itself to hold Ex.P.1 is a doubtful document.
17.Per contra, the learned complainant’s counsel argued that since there is no need to examine them as the burden lies upon the accused to rebut the presumption u/sec.118 of NI Act. The non examination of scribe and attestors is not the fatal to the 6 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP case of the complainant. He further argued that if really the accused has not executed
Ex.P.1 in favour of the complainant he would have taken steps against the complainant but silence on the part of the accused, the admission on the part of the accused and there is no force in the argument of the accused as regards the non examination of attestors and scribe is fatal to the complainant. It is well settled law that the promissory note is not an un attestable document.
18.Further, the suggestion put to P.W.1 itself shows the signature and thumb mark appears on Ex.p.1 is that of the accused. In the said circumstances, the burden lies upon the accused to prove the contention that he raised in cross examination.
However, he could not substantiate the same. In the light of the evidence brought on record and the defence of the accused the non examination of scribe and attestors is not much fatal to the prosecution. Further, the burden lies upon the accused to show there is no existence of legally enforceable debt and therefore, viewed from any angle there are no merits in the version of the accused.
19.The learned defence counsel strenuously argued that as per Sec.101 of
Evidence Act, the burden lies upon the person who ascerts the facts but not on the person who denies it and in view of the said settled law, the burden lies upon the complainant to establish the facts ascerted in the complaint. On the other hand, the learned complainant’s counsel argued that Sec.139 of NI Act raises the rebutable presumption that the cheque was issued for the purpose mentioned in the said section and therefore, there is no force in the argument of the learned defence counsel. It is well settled law that Sec.139 of NI Act draws a presumption that the cheque was issued in whole or in part of discharge of any legally enforceable debt or other liability. The burden lies upon the accused to rebut the presumption. No doubt in general Sec.101 of
Evidence Act lay downs that the person who ascerts the facts must prove it but where the law/statue raise a presumption, the burden shifts to the person on whom the burden lies upon Sec.139 of NI Act is a statutory presumption and therefore, it prevails over the general law of Sec.101 of Evidence Act.
7 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP
20. Therefore, there is no force in the argument of the learned defence counsel that the burden lies upon the complainant to prove the existence of legally enforceable debt. Furthermore, it is well settled law that the accused need not come to witness box to rebut the presumption u/sec.139 of NI Act and he could place reliance on the material brought on record. In the present case, the accused neither adduce evidence nor could able to elicit material admissions from the mouth of P.W.1 to show
Ex.P.1 is not a valid and true transaction. Therefore, having considered the evidence of
P.W.1 coupled with Ex.P.1, I hold that the accused could not disprove the version to set up in the cross examination. On the other hand, the complainant could able to establish satisfactorily that Ex.P.1 is a true and genuine document and the same binds the accused.
21.The evidence of P.W.1 discloses that accused issued Ex.P.2 cheque dated 27-12-2012 towards the discharge of the due amount under Ex.P.1 and when he presented the same for collection but it was returned unpaid with endorsement Funds
Insufficient. The evidence further discloses that he informed the the return of Ex.P.2 cheque to the accused and on the assurance of the accused represented the same cheque for second time in the first week of February 2013 but the same was returned unpaid on 04-02-2013 with endorsement Funds Insufficient.
22. In order to substantiate the same, he placed reliance on Ex.P.2 to P.4 and the evidence of P.W.2 and P.W.3 coupled with Ex.X.1 to X.3. I have gone through
Ex.P.2 cheque. The contents of Ex.P.2 cheque go to show T. Krishna Mohan issued
Ex.P.2 for Rs.1,80,000/- in favour of D. Venkata Apparao and it bears dated 27-12-2012.
The Ex.P.3 memo disclose that the Ex.P.2 cheque was returned for reason of Funds
Insufficient and Ex.P.3 is dated 28-12-2012. Whereas the contents of Ex.P.4 discloses that Ex.P.2 cheque was returned for reason Funds Insufficient vide Ex.P.4 return memo
dated 04-02-2013. As stated above, the accused has not disputed the signature on
Ex.P.2 cheque. Moreover, the bank concerned has not returned Ex.P.2 cheque on the ground the signature is not talied and with regard to other reasons except reason Funds
Insufficient. Therefore, the evidence of P.W.1 gets corroboration from contents of 8 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP
Ex.P.2 to P.4 that Ex.P.2 was draws on the account of accused and the same was returned unpaid due to reason of Funds Insufficient in the account of the accused.
23.The complainant further examined the bank officials to substantiate and to corroborate the evidence of P.W.1. The evidence of P.W.2 discloses that he is working as manager and authorized to appear before the court under Ex.X.1 Authorized letter.
The evidence further discloses that as per Ex.X.2 statement of the account of the complainant Ex.P.2 was presented for collection on 28-12-2012. The same cheque was dishonoured on the ground of Insufficient Funds. The learned defence counsel cross examined P.W.2 nothing was elicited to disprove the evidence of P.W.2. Furthermore, the evidence of P.W.2 gets corroboration from the contents of Ex.X.1 and X.2.
Therefore, the evidence of P.w.2 gets corroboration from the contents of Ex.X.1 and X.2.
Therefore, the evidence of P.w.2 coupled with Ex.X.1 and X.2 establishes P.W.2 is empowered to appear before the court and the Ex.P.2 cheque was returned on the ground of Insufficient Funds and the same is reflected in Ex.X.2 statement of account.
24. It is germane at this juncture to refer Sec. 139 of Indian Evidence Act which lays down that where the person summons to produce document gives evidence that he is subjected to cross examination. Therefore, even u/sec.139 of Indian
Evidence Act, the contention of the learned defence counsel is not tenable. The evidence of P.W.3 discloses that the accused is having an account in their branch, that
Ex.P.2 cheque is one of the leaves of the cheque book issued to the accused and as per Ex.X.3 statement of account of the accused Rs.100/- was deducted towards cheque dishonour charges on 09-01-2013 and 4-02-2013 and the out standing balance as on 09-01-2013 is Rs.123/- and on 04-02-2013 is Rs.200/-, and that Ex.P.3 and P.4 memos are issued from their branch. The evidence of P.W.3 gets corroboration from the contents of Ex.P.3 and P.4 as well as Ex.X.3.
25.The learned defence counsel argued that P.W.3 did not produce cheque issue register and the absence of cheque issue register leaves reasonable doubt as regards the issuance of cheque book to the accused. The said contention is not tenable in view of the specific evidence of P.W.3 that after implementation of CB system cheque 9 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP issue system is dispensed. The Ex.P.2 cheque is dated 27-12-2012 and the same was presented for collection on 28-12-2012 as well as on 04-02-2013. It is undisputable fact that as on the dates CBS system has come into operation. Therefore, the mere non production of cheque issue register does not effect the evidence of P.W.3. The learned defence counsel further challenged Ex.P.3 on the ground that it does not contain the service branch seal.
26. Further, on perusal of Ex.P.3 does not cluster clear that the same was prepared on the letter head of SBH and it appears rubber stamp and contains the signature of the authorized person. In the said said circumstances, the contention of the accused is not tenable. Moreover, the complainant issued Ex.P.5 notice basing on the return of cheque presented on second time basing on Ex.P.4 memo. The bare perusal of Ex.P.4, it contains the signature of the authorized person and the seal of the concerned branch. Therefore, viewed from any angle there are no merits in the contention of the learned defence counsel as regards Ex.P.3 and P.4 are not genuine documents. Furthermore, as per Sec.146 of NI Act where the memo /slip of banker is produced as an evidence to prove the dishonour of cheque the crucial of presume the cheque is dishonoured for the reason mentioned therein. As stated above, Ex.P.4 contains the seal of the service branch and the signature of the authorized person. The accused could not discard the evidence of P.W.2 and P.W.3 as well as contents of
Ex.P.3 and P.4.
27.Therefore, having considered the relevant provision of law and the contents of Ex.P.3 and P.4, I hold that the cheque was presented for collection and the same was returned unpaid with endorsement Funds Insufficient vide memos under
Ex.P.3 and P.4. It is not the case of the accused that Ex.P.2 cheque was not drawn on the account of the accused. As stated above, the suggestions put to P.W.1 in cross examination that Ex.P.2 was drawn on the account of the accused and the evidence of
P.W.1 to P.W.3 coupled with Ex.P.3 and P.4 further establishes that Ex.P.2 was returned unpaid due to the reason of Funds Insufficient in the account of accused. Therefore, the 10 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP complaint is able to establish satisfactorily that Ex.P.2 was drawn on the account of the accused and the same was returned unpaid for the reason of Funds Insufficient.
28.The learned defence counsel further argued that the complainant has no financial capacity to lend the amount of the accused and as he has not mentioned the said amount in Income Tax returns, the same becomes unaccounted amount and therefore, there lacks material evidence to show the debt under Ex.P.1 is a legally enforceable debt. The evidence of P.W.1 discloses that he is a farmer. The same s not shattered in cross examination. Further, it is the specific evidence of P.W.1 that he is not an Income Tax Assessee. In the said circumstances, the question of disclosure of the amount in Income Tax Returns does not arise. Furthermore, Except the formal and blunt suggestion that the complainant has no financial capacity to lend Rs.3,00,000/- under Ex.P.1 to the accused nothing was elicited to disprove the evidence of P.W.1 and presumptions u/sec.118 of NI Act.
29.Furthermore, the evidence on record discloses that P.W.1 and accused are known to each other and out of such acquaintance, he lend the amount to the accused under Ex.P.1. Though the accused set up the alleged defence that he executed promissory note and issue cheque in favour of one Murali, P.W.1/complainant misused the same to file the present case. He stated about accused is not a layman but he is an employee in Steel Plant. In the said circumstances, the complainant would have misused the alleged empty cheque and promissory note, the accused would have taken steps against the complainant but the silence on the part of the accused is a valid ground to cover the said defence is a mere defence set up to get rid of the prosecution.
30.The learned defence counsel further argued that there is no endorsement on the rear side of Ex.P.1 to the fact that Ex.P.2 was issued towards the part payment of the amount due under Ex.P.1 and therefore, the same establishes Ex.P.2 was issued towards the part payment of the debt under Ex.P.1. It is true there is no such endorsement on Ex.P.1. The complainant’s counsel submitted that if the cheque is
honoured, the same itself is a valid endorsement but since the cheque is not honoured it
cannot be inferred that the payment is made, and in the said circumstances, the lack of 11 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP endorsement on Ex.P.1 is not at all a tenable ground to lead inference that Ex.P.2 was not issued for discharge of the due amount in Ex.P.1. I found some force in the argument of the learned complainant’s counsel. As stated above, the burden lies upon the accused to raise probable defence to rebut the presumption u/sec.139 of NI Act.
However, the accused could not rebut the presumption since he could not raise a probable defence. The mere absence of endorsement on Ex.P.1 is not at all a valid and tenable ground to raise a probable defence. Therefore, I hold that there is no force in the argument of the learned defence counsel in this regard.
31.The learned defence counsel further argued that as per the version of the complainant, the statutory notice is dated 02-03-2013 and he filed the acknowledgement to show the service of notice but Ex.P.6 does not contain the date of service on the accused and therefore, it is not possible to calculate the time to file the complaint, in such circumstances, the present complaint is barred by limitation. It is well settled law that the complainant must issue a statutory notice within 30 days from the date of receipt of notice from the bank regarding the dishonour of cheque and he must file the complaint within 30 days from the lapse of 15 days time provided to the accused.
32. I have gone through the Ex.P.5 and P.6. Ex.P.5 is dated 02-03-2013.
Ex.P.4 is dated 04-02-2013. Therefore, Ex.P.5 is within period of 30 days. Ex.P.6 does not bare the date at the signature of the recipient of the notice. Further, the acknowledgement card bares the stamps of service post office though the contents are not legible and possible. It is suggested to P.W.1 that the complaint is not issued the legal notice in the stipulated time and therefore, the complaint is not maintainable.
However, he could not cross examine P.W.1 on Ex.P.5 or Ex.P.7 except the said formal and blunt suggestion. The evidence of P.W.1 is consistent that he got issued Ex.P.5 notice on 02-03-2013 and the same was served on the accused vide Ex.P.6. The accused has not disputed the service of Ex.P.5 notice but disputed the date of the notice. In the said circumstances, the burden lies upon the accused to show the notice is not dispatched in time. It is needless to say that the complainant produced the postal receipt along with the statutory notice and it bares the date of dispatch as 02-03-2013.
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33.Further, there is no contra evidence on regard to show the notice is not dispatched within 30 days of receipt of acknowledgment regarding the dishonour of cheque. Moreover, the accused though stated in examination u/sec.313 Cr.P.C that he would lead defence evidence but he did not lead any defence evidence. There is no specific case put up in Sec.313 Cr.P.C examination. The suggestion put to P.W.1 in cross examination shows the accused disputed the dispatch of Ex.P.5 notice in the prescribed time but nothing was elicited to prove the same. Therefore, having considered the evidence of P.W.1 and the contents of Ex.P.5 and P.6, I hold that the
Ex.P.5 notice was sent with the stipulated period as prescribed u/sec.138 (b) of NI Act and there is no tenable grounds to contain the complaint is not maintainable.
34.The learned defence counsel further argued that the burden lies upon the complainant to examine the postal department officials to prove he service of notice.
On the other hand, the learned complainant’s counsel argued that since the notice is served on the accused and there is no dispute as regard to the service of notice, the complainant need not examine the postal authorities. It is true where there is a dispute as regard to the service of the notice then only the presence of postal department concerned is required to prove the service of notice. In the present case, the service of notice is not disputed but the issuance of the notice in time is in dispute. However, the accused could not substantiate that the notice is not sent within the prescribed time.
Therefore, there is no force in the argument of the learned defence counsel as regard the non examination of postal department person would effect the case of the complainant.
35.The learned complainant’s counsel argued that the accused did not enter the witness box and did not lead any defence evidence, and therefore, it draws an inference against the accused. Per contra, the learned defence counsel argued that the accused need not enter the witness box and he can place reliance on the material brought on record. There is no dispute in the said preposition of law. However, the evidence on record discloses that the notice was served on the accused but the accused did not sent proper and suitable reply. In the said circumstances, it can be 13 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP infer the same is a strong and tenable circumstances to inference that there are merits in the version of the complainant. Furthermore, as stated to above, the accused could not discredit the evidence of P.W.1 to P.W.3 and the contents of Ex.P.1 to P.6 as well as
Ex.X.1 to X.3.
36.The evidence of P.W.1 to P.W.3 is consistent through out and gets corroboration from the contents of the documents exhibited on behalf of the complainant. The accused could not substantiate the defence is set up in cross examination. The record discloses the accused submitted in Sec.313 Cr.P.C that he would lead defence evidence and sought several adjournments but did not adduce defence evidence. Therefore, having considered the material evidence brought on record, I hold that the accused executed Ex.P.1 in favour of the complainant and Ex.P.2 cheque was issued towards discharge of the legally enforceable debt under Ex.P.1, and
Ex.P.2 was returned unpaid on the ground of Funds Insufficient and therefore, the complainant has satisfactorily established that the Ex.P.2 was issued towards discharge of legally enforceable debt. Therefore, the point is answered accordingly, in favour of the complainant and against the accused.
Point No. 2. Whether the complainant made a demand for the Ex.P.2 cheque amount to the accused through a statutory notice as contemplated under clause (b) of the proviso
to section 138 NI Act within in the prescribed time and as
per law ?
37.There is no dispute as regards the service of notice and the accused has not disputed the signature appears on Ex.P.6 acknowledgement card. Furthermore, no material admissions was elicited in cross examination of P.W.1 as regards the non service of notice on accused. Therefore, there is no dispute as regards the service of notice on accused. I have gone through the contentions of Ex.P.5 notice. The complainant made a specific demand from the entire cheque amount within 15 days from the date of receipt of notice. The contents of Ex.P.5 notice discloses all the material aspects like Ex.P.1 transaction, issuance of Ex.P.2 cheque, the presentation and dishonour of Ex.P.2 cheque for reason Funds Insufficient. Therefore, the contents of
Ex.P.5 notice met all legal requirements and the same is valid notice. Therefore, the 14 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP evidence of P.W.1 coupled with Ex.P.5 and P.6 established the complainant issued statutory notice in accordance with law. Therefore, the point is answered in favour of the complainant and against the accused.
Point No.3. Whether the complainant could able to bring home the
guilt of the accused beyond all reasonable doubt?
38.As per finding on Point No.1, the accused issued Ex.P.2 cheque towards discharge of the legally enforceable debt under Ex.P.1 and the same was returned unpaid with endorsement “Funds Insufficient”. As per the finding on point No.2, the complainant got issued statutory notice as required under section 138 (b) of NI Act and the service of notice can be raised in view of Ex.P5. The evidence of P.W.1 establishes
Ex.P.2 was presented in time and the same was returned unpaid. Further, the accused has not disputed the time framed events like presentation of cheque in time, issuance of notice in time and presentation of complaint within prescribed time. The said time bound events are not in dispute. Further, the accused did not lead defence evidence and could not rebut the presumption u/sec.139 of NI Act. The suggestions and defence took in Sec.313 Cr.P.C is found to be not reliable and same is rejected. Therefore, having considered the entire evidence on record, I hold that the complainant could able to prove the material ingredients of Sec.138 of NI Act and the same is proved beyond all reasonable doubt. Therefore, the accused is liable to be convicted for the said offence u/sec.138 of NI Act. Accordingly, point is also answered in favour of the complainant and against the accused.
39.In the result, the accused is found guilty for the offence u/Sec.138 of N.I
Act and he is convicted for the said offence u/sec.255 (2) Cr.P.C.
Dictated to the Personal Assistant, transcribed by her, corrected and
pronounced by me in the open court, this the 28 th day of October, 2019.
XIII Metropolitan Magistrate Anakapalle
40. The accused is examined as regard to the sentence. He stated that his wife is suffering from sever diabetes and breast cancer. He further submitted that he has knees problem and he has three children who are not yet settled and thus, he prayed the mercy of the court. Since the offence is under Negotiable Instrument Act, I 15 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP am not inclined to invoke P.O Act. However, taking into consideration the facts and circumstances and submission of accused, I took a balanced view in sentencing the accused. Accordingly, accused is sentenced to undergo simple imprisonment for a period of one year and further sentenced to pay fine of Rs.3,000/- (Rupees Three
Thousand only) in default to undergo simple imprisonment for a period of 30 days. The accused is informed of his right to prefer appeal against the calendar and judgment. The remand period if any undergone by the accused is given set off u/sec.428 Cr.P.C. A free copy of judgment is made available.
Typed to dictation, corrected and pronounced by me in the open court, this the 28 th day of October, 2019
XIII Metropolitan Magistrate Anakapalle
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant:- For accused:-
PW-1 : Dadi Venkata Apparao NIl
PW-2 : G. Kumar
PW-3 : V. Appalaraju
DOCUMENTS MARKED:
For Complainant:-
Ex.P-1 : Promissory note dated 05-01-2012 16 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP
Ex.P-2 : Cheque bearing No. 012012 dated 27-12-2012 drawn on SBH, Steel Town shop Branch
Ex.P.3 : Cheque return memo dated 28-12-2012 issued by SBH, Service Branch, Visakhapatnam.
Ex.P.4 : Cheque return memo dated 04-02-2013 issued by SBH, Service Branch, Visakhapatnam.
Ex.P.5 : Office Copy of Legal notice dated 02-03-2013
Ex.P.6 : Postal acknowledgment
Ex.X.1 : Authorization letter
Ex.X.2 : System Generated account copy of the complainant
Ex.X.3 : System Generated account copy of the accused
For accused: Nil
MATERIAL OBJECTS MARKED: -Nil-
XIII Metropolitan Magistrate Anakapalle 17 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP
CALENDAR AND JUDGMENT
CALENDAR OF CASE TRIED BY THE XIII METROPOLITAN MAGISTRATE,
ANAKAPALLI
DISTRICT OF: VISAKHAPATNAM Date of OffenceReport or ApprehensiReleasedCommenceClose of Sentence or Complain-on of on bailment of trialtrialOrder antaccused 20-03-201318-04-2013--25-01-201726-06-28-10-2019 2019
Name of the Court: XIII Metropolitan Magistrate, Anakapalli.
Calendar Case No.: C.C. No.121/2018 (Old CC No.344/2013)
Complainant: Dadi Venkata Appa Rao, S/o Subrahmanyam, Hindu, Aged37 years, residing at D.No.20-8-19/2, Jaggarao, Bungalow, Vizag Road, Anakapalle Mandal
Particulars of : Tirumala Dasu Krishna Mohan, S/o. Hindu, Aged 57 years, accusedresiding at Sai Aditya Enclave, Second Floor, Flat No.2, Aditya Nagar, Desapatrunipalem, Parawada Mandal, Visakhapatnam District.
Offence: Under Section 138 of N.I.Act
Finding: GUILTY
Result: The accused is examined as regard to the sentence. He stated that his wife is suffering from sever diabetes and breast cancer. He further submitted that he has knees problem and he has three children who are not yet settled and thus, he prayed the mercy of the court. Since the offence is under Negotiable Instrument Act, I am not inclined to invoke P.O Act. However, taking into consideration the facts and circumstances and submission of accused, I took a balanced view in sentencing the accused. Accordingly, accused is sentenced to undergo simple imprisonment for a period of one year and further sentenced to pay fine of Rs.3,000/- (Rupees Three
Thousand only) in default to undergo simple imprisonment for a period of 30 days. The accused is informed of his right to prefer appeal against the calendar and judgment. The remand period if any undergone by the accused is given set off u/sec.428 Cr.P.C. A free copy of judgment is made available.
18 C.C. No.121/2018/ dt.28.10.2019/ XIII MM /AKP
Explanation for : The cognizance was taken for the offence punishable U/sec.138 of Delay Negotiable Instrument Act (in short N.I. Act) against the accused on 06-11-2013 by by the Hon'ble V Metropolitan Magistrate's Court,
Anakapalle and renumbered as CC 344/2013.On appearance of the accused, the copies of the case documents were furnished to the accused as contemplated u/s.207 of Cr.P.C. As per the orders of the
Hon'ble District Court dated 24-08-2017 communicated in
Dis.No.7264 dated 24-08-2017, the case was transferred to this
Court and renumbered as C.C No.121/2018. Accused was examined
U/sec.251 Cr.P.C on 28-09-2016. On 25-01-2017 P.W.1 was examined and Ex.P.1 to P.6 were marked. On 27-02-2019 P.W.2 and P.W.3 were examined and Ex.X.1 to Ex.X.3 were marked. On 05-07-2019 the accused was examined u/sec.313 Cr.P.C examination and on 23-10-2019 heard arguments. Judgment was
pronounced on 28-10-2019. Hence, the delay.
Fine Amount of Rs.3,000/- paid by the accused and sentence is suspended till 25-11-2019 vide Crl.M.P No.4800/2019 dated.
28-10-2019
XIII Metropolitan Magistrate Anakapalle