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IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,
SPECIAL MOBILE COURT : NELLORE
Present : N.LAVANYA,
Judicial Magistrate of I Class,
Special Mobile Court, Nellore.
Dated this the Fifteenth (15 th) day of April, 2025
CALENDAR CASE No.584/2016
Makkena Ankaiah Chowdary, S/o Veera Swamy, Hindu, age not known, D.No.27-10-999, Vengamamba Layout, NTR Nagar, Nellore City-2.
... Complainant
-Versus-
Pamuru Prabhakar, S/o Subbarayudu, age not known, Flat No.123-A, Telecom Nagar, Behind Amaravathi Restaurant, Serilingam Palli, Hyderabad-500032.
Flat No.213, Ground Floor, Telecom Nagar, Gachi Bouli, Serilingam Palli, Hyderabad-500032.
... Accused
This case is coming on 28.3.2025 for final hearing before me in the presence of Sri P.Sankaraiah, Advocate for complainant and of Sri T. Vijay Kumar, Advocate for accused, andhaving stood over for consideration till this day, this Court delivered the following:-
:: J U D G M E N T ::
This is a complaint filed on behalf of the complainant against the accused for the offence punishable under Section 138 r/w 142 of Negotiable Instruments Act (hereinafter it is referred as N.I. Act).
2. The brief facts of complaint are as follows:
The accused herein borrowed sum of Rs.10,00,000/ (Ten lakhs only) from the complainant and executed a promissory 2 note on the even date agreeing to repay the same with interest @ 24% P.A.
b) Inspite of repeated demands made by the complainant, the accused issued a cheque bearing No.000071, dated 02.06.2016 for Rs.10,00,000/- drawn on HDFC Bank Ltd.,
Ramachandrapuram Branch, Medak District, Nellore towards discharge of the said promissory note debt to the complainant.
c) The complainant presented the said cheque for collection on 27.06.2016 through his banker Andhra Bank, Main
Branch, Nellore. But the said cheque was dishonoured on the ground of “Funds Insufficient”.
d) On return of the said cheque, the complainant got issued a legal notice as contemplated under law on 23.07.2016 calling upon the accused to pay the amount due under the said cheque within 15 days from the date of receipt of the notice.
The accused received the same and issued reply legal notice,
dated 08.08.2016 with false allegations. The accused has issued
the said cheque knowing well about the account position in the bank, he has committed an offence under Sections 138 and 142 of the Negotiable Instruments Act. Hence, the complaint to punish the accused for the offences, under section 138 r/w 142 of N.I. Act.
e) The complainant complied all the formalities as envisaged under law i.e., issuing the legal notice on 23.07.2016 within 30 days of the return of the said cheque and filing the complaint within 30 days after the expiry of the statutory stipulated period. Thus, the complaint is well within time.
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3.This case was taken on file for the offence punishable
U/Sec.138 r/w 142 of N.I. Act against the accused.
4. On appearance of the accused before this Court, copies of case documents were furnished to him as contemplated
U/Sec.207 of Criminal Procedure Code (hereinafter it is referred as Cr.P.C.,) and he was examined under Section 251 Cr.P.C., by explaining the substance of accusation U/sec.138 of N.I. Act made against him in Telugu, for which he denied the same and pleaded not guilty and claimed to be tried.
5. During the course of trial, on behalf of the complainant,
P.Ws.1 & 2 are examined and got marked Exs.P1 to P6. On behalf of the accused, DW1 and DW2 are examined and Exs.D1 to D4 marked.
6. After closure of the complainant’s side evidence, the accused was examined under Section 313 Cr.P.C., by explaining the incriminating material stood against him in the evidence of complainant, to which the accused denied and he reported that he has no defence evidence on his behalf.
7. Heard arguments on both sides. Perused the written arguments filed on behalf of complainant and accused. Perused the entire material available on record.
8. The counsel for complainant argued by examining PWs.1 and 2 and got marking Exs.P1 to P6 the complainant has proved its case that the accused borrowed Rs.10,00,000/- on the strength of promissory note agreeing to repay with interest @ 24% P.A., and towards discharge of debt, the accused issued a 4 cheque bearing No.000071, dated 02.06.2018 for Rs.10,00,000/-, and on presenting the cheque in Andhra Bank, Main Branch,
Nellore, for collection 1st time on 03.06.2016 and the same was returned and dishonoured on the ground of "Funds Insufficient", further on the request of Accused the complainant presented the same cheque 2nd time on 24.06.2016 and the same was dishonoured on the same ground of "Funds Insufficient". The accused admitted that Ex.P1/Cheque and Ex.P6/Promissory note were scribed by himself. He categorically admitted in his cross examination he did not issued any notice to complainant to return the cheques and promissory notes. It is further humbly submitted that the Accused contended that the complainant has no financial capacity to lend an amount of Rs.10,00,000/- to the
Accused. The financial capacity of the complainant was proven in the evidence of PW.1, the complainant deposed in his cross examination that he is an Income Tax Assessee and he is running business of Gas Agency in his wife's name and also running a transport business in the name and style of Vigneswara Logistics and the said logistics has an OD (Over Draft) Account in the same bank and branch in which his SB (Savings Bank) account is existed. The complainant further deposed in his cross examination that he shown the debt given to the Accused in the
Income Tax returns of Vigneswara Logistics. It is further submitted that the Accused admitted the scribe of the Ex.P1 and
Ex.P6 and his signatures on the same. Hence the burden of proving is rebuttal on the Accused that the cheque had not been issued for the discharge of the legally enforceable debt or liability. In this context the Accused utterly failed to prove that 5 the Accused had not issued cheque to discharge the legally enforceable debt of the promissory note in his evidence. The complainant proved his case with the cogent and coherent evidence of PW1 and PW2 and by filing all the necessary documents Ex.P1 to Ex.P6. The accused failed to prove his case by not producing any relevant, cogent documentary evidence, so that the stand taken by the accused is false one. Hence, the accused is liable to be punished.
9.The counsel for the accused by way of written arguments argued that the accused never borrowed any amount from the complainant and never issued any cheque to the complainant towards discharge of the debt. He argued that with business transactions carried on with the complainant, he delivered four pronotes each for Rs.10,00,000/- and one pronote for
Rs.5,00,00/- and also delivered five cheques, four each for
Rs.10,00,000/- and one for Rs.5,00,000/- as a security and that the complainant failed to keep up his obligation in the said business transaction and that the complainant by misusing the pronotes and cheques delivered by the accused to him, fabricated the pronotes and cheques and got filed the complaints to gain wrongfully. At the first instance, complainant presented the cheque bearing No.000071 for clearing. In the said cheque the cheque amount in figures was shown as Rs.1,00,000/-, but it in words shown as ten lakhs. The Bank returned the said cheque with endorsement "cheque returned irregularly drawn amount in words”. So, later by adding "0" at the end of Rs.1,00,000/- in cheque No.000071 the complainant again represented the said cheque, and therefore the cheque was materially altered and 6 therefore unenforceable in law, which clearly shown in ExD4. He further argued that it is the consistent stand of the accused that the complainant has no capacity to lend Rs.10,00,000/-. It is the evidence of PW1 that he used to do gas business in the name of his wife. Except self-serving and interested evidence of PW1, the wife of the complainant is not examined to prove the said aspect.
No documentary evidence is placed before this court to prove the said aspect. The counsel for the accused also relied upon some of the citations i.e., (2024) 4 CRIMINAL COURT CASES 743(SC) in between M/s Rajco Steel Enterprises Vs Kavitha Staff & another; (2023) 1 CRIMINAL COURT CASES 130 (SC) between
Rajaram, S/o Sriramula Naidu Vs Maruthachalam; (2023) 3
CRIMINAL COURT CASES 171 (AP) between M. Kalpana Vs Balaji
Finance; (2024) 1 CRIMINAL COURT CASES 644 (Kerala) between
Senthil Kumar Vs State of Kerala & another; (2019) 5 SCC 418 (SUPREME COURT DEVISION BENCH) between BASALINGAPPA VS
MUDIBASAPPA and (2020) 3 Civ Court Cases 533(MADRAS HIGH
COURT (MADURAI BENCH, SINGLE BENCH Sundaraj Vs Lukose.
Hence, prays to acquit the accused.
10.Now the points for determination are:-
1) Whether the accused issued the Ex.P1 cheque in favour of complainant for discharging a legally enforceable debt or other liability?
2) Whether the complainant proved the case against the accused for the offence Punishable U/Sec.138 of Negotiable Instruments Act, 1881 beyond reasonable doubt?
Point No.1:
11.On behalf of the complainant, the complainant himself examined as PW1 and in support of his case he also examined one D. Ramanaidu as PW2. In his chief-examination affidavit he 7 reiterated the contents of his complaint. He got marked Exs.P1 to P6. Ex.P1 is the original cheque bearing No.000071 HDFC
Bank Ltd., Ramachandrapuram Branch, Medak District,
Telangana, dt.02-06-2016 along with xerox copies. Ex.P2 is
Bankers Memo, dt.24.06.2016. Ex.P3 is the office copy of legal notice, dt.21-07-2016. Ex.P4 is served Acknowledgments (2) from the accused, dt.26-07-2016. Ex.P5 is copy of Reply notice, dt.09-08-2016. Ex.P6 is the Promissory note, dt.06-03-2016.
12.During cross-examination, PW1 stated that he is an advocate, enrolled recently. Earlier he used to do gas
agencies business in the name of his wife and also Lorry
transport business in the name of his wife. He admitted
that he don’t do any business in his name and he don’t
have any income in his name. He denied the suggestion that he don’t have financial capacity to give debts. His annual
income is Rs.10 lakhs. He filed I.T. returns. I haven’t
shown the money given to the accused in his I.T. returns
but he had shown them in his firm. He own 5 acres of agricultural fields, in which he raise cotton and paddy. He
admitted that he hasn’t filed any documentary proof to
show that he has financial capacity to give lakhs of debt.
He hasn’t filed civil suit as the accused was untraceable.
He admitted that the date of debt was not mentioned in
complaint and as well as in Ex.P3. No endorsement was
made on pronote regarding part payment. He hasn’t filed
bank statements regarding withdrawal of Rs.20 lakhs
which he given to accused. He took housing loan prior to
2 months of giving money to the accused. Rs.30 lakhs
8 loan was sanctioned. He denied the suggestion that banks will not release the entire amount in housing loan prior to construction of house. He stated that he don’t know whether there is difference in the ink in the date and other contents in
Ex.P1 and he don’t know whether there is difference in hand writing in Ex.P1. He known the accused since 2012. He don’t know the names of wife and kids of the accused. He knows father and brother name of the accused. He has proof to
show that he took bank loan, but he hasn’t filed the same
before the court. He presented Ex.P1 in Andhra bank now
known as union bank. His account is SB account. He gave debt
in the name of Vigneswara Logistics and it is a
Partnership Firm which was established in 2008. He was
the Managing Partner of Vigneswara Logistics in 2008, till
2016. He don’t know who Anil is. He denied that himself and
Anil are family friends. He denied that the accused joined as his business partner at the instance of one Anil. He also denied that himself and one Anil started a web site in the name of World
Food Trade llp. He denied that the accused transferred
Rs.11,88,000/- to him i.e., Rs.5,40,000/- on 18-11-2014,
Rs.4,85,000/- on 17-12-2014, Rs.1,63,000/- on 27-1-2015. He denied that the accused transferred the above amount to him at the instance of Anil. The accused owes Rs.20,00,000/- to him. He don’t know whether news article was published in N3 when the accused was arrested on execution of NBW. He denied that he made false publications against the accused. He denied that he published the photo of accused in N3 channel. He admitted that the accused sent reply to his legal notice. He denied that the 9 accused borrowed Rs.45,00,000/- from him under 5 pronotes. He admitted that the accused demanded back his cheques and pronotes in the reply notice given by him. He also admitted that he hadn’t given reply to the reply notice given by the accused.
He denied that he requested the accused to join as partner in food trade by investing Rs.45,00,000/-, and that he will get
Rs.45,00,000/- profit in 6 months. He denied that the accused agreed to join as a partner at the instance of Anil. He denied that he took pronotes and cheques from the accused for business. He admitted that one Thirupathi Naidu is his cousin who is an advocate in Nellore Bar Association. He denied all the formal suggestions putforth by the learned counsel for accused.
13.This Court perused the evidence of PW2 D.Ramanaidu who is an attestor to Ex.P6/Promissory note and who is an eye witness for the transaction between the complainant and the accused filed his chief affidavit in lieu of his chief examination.
During his cross examination, he stated that he is a
Commission Agent for Rice Business. He does not know the
number of cash bundles handed over by complainant to
the accused. He denied the suggestion that he is a stock witness in N.I. Act cases. He denied that PW1 is his relative. He
stated that the total amount was Rs.20 lakhs
(Rs.10,00,000/- + Rs.10,00,000/-). He stated that he saw
wife of PW1 handing over cash to the accused, but he do
not remember in which bag PW1's wife brought the cash.
He know PW1 since 20 years. He has business
transactions with PW1. He denied all the formal suggestions putforth by the learned counsel for the accused.
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14. The accused is examined as DW1 by way of chief affidavit in lieu of his chief examination, and got marked Exs.D1 to D3.
Ex.D1 is Business statement of M/s. WORLD FOOD TRADE LLP showing the Complainant is dealing with the said firm. Ex.D2 is
Statement of Account of the Accused that amounts transferred to the complainant. Ex.D3 is Publication published in Nellore News
Network ie., N3 News at the instance of the Complainant to defame the accused. (Subject to Objection).
(a) He deposed that he never borrowed Rs.10,00,000/- from the complainant and executed a promissory note in favour of the complainant, and it is false to state that he had issued cheque/Ex.P1 for Rs.10,00,000/- to the complainant for repayment of the due amount. He deposed that the complainant had started an international business with his childhood friend one Mr.Anil with an intention to associate with one M/s. WORLD
FOOD TRADE LLP., and he has posted the same in his website i.e., www.worldfoodtrade.in, as he being the Director, and in the process of the same he might have invested amounts long back and unable to comply his part of obligation and dropped from the said business, but still he is continuing his website as if he is associated with M/S.WORLD FOOD TRADE LLP.
(b) He further deposed that after broken the business relations between Mr.Anil and the complainant, the above said
Anil came into contact with him, made him believe that there is an opportunity of the Global business and believing the same himself and his friends orally entered into agreement with an intention to start the business tie up with M/s.WORLD FOOD
TRADE LLP., and accordingly they invested considerable 11 amounts, and coming to know the same the complainant along with some other persons on 3rd March, 2016 approached him and being the person already got acquainted and received amounts from him proposed to invest a sum of Rs.45,00,000/- with an understanding to return the same within six months. The
Complainant approached him along with one Advocate by name
Tirupathi Naidu, who is none other than the cousin of the complainant and requested to execute five pronotes, i.e., four pronotes for Rs.10,00,000/- and one Pronote for Rs.5,00,000/- and also received 5 cheques for said amounts, towards security for the proposed investment and agreed to handover those negotiable instruments, when the movement the complainant arrange money, but the complainant intentionally insisted him to issue the pronotes and cheques with a promise to transfer the money by way of RTGS and said Advocate also advised to issue the cheques and pronotes, and accordingly without receiving any amounts he issued the cheques and pronotes. Later, the complainant started to avoid without paying money as promised by him and when he demanded either to pay money or to return the negotiable instruments, the complainant turned to show his original colors and committed extortion with a demand to pay money making liable to him on behalf of the aforesaid Anil or else threatened to see the end of him and also threatened to misuse the cheques and promissory notes by converting into valuable security, upon which, he intimated stop payment to his banker. The complainant stated to his relative that he has no other way to recover his loss from said Anil, as such intentionally he has played a foul game and misused the cheques.
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(c)He further deposed that the complainant did not have financial capacity to lend such huge amounts. He did not produce any documentary proof that he is having the amounts.
At the instance of the above said Anil he had transferred a total amount of nearly Rs.11,88,000/- on different dates i.e., on 18.11.2014 Rs.5,40,000/-; on 17.12.2014 Rs.4,85,000/- and on 27.01.2015 Rs.1,63,000/-. The Complainant made false publications against him when he was arrested in execution of
NBW. He published his photo in N3 Channel. The complainant foisted false cases against him to get money from him for losses incurred by the complainant and Anil in business. The
Complainant had filled up the dates with the assistance of his kith and kin.
15.In his cross examination, DW1 stated that he know the complainant since 2016. He admitted that he himself
scribed the Ex.P1/Cheque, and both the promissory notes.
As per the said promissory notes the complainant has
given him Rs.10,00,000/-. But witness adds that the
complainant promised to pay the said amount through
RTGS but the complainant failed to do so, and hence he
hasn't received any amount from the complainant. The
said promissory note was executed by him on 06.03.2016.
He hasn’t sent any notice to the complainant. He studied up to
Graduation. He do real estate business in Hyderabad. He gave reply to the notice sent by the complainant. He don't know that cheque bounce cases were filed against him by the complainant.
He denied that he was aware of the cases filed against him and also the Non-Bailable Warrant issued against him. He denied 13 that he has acquaintance with the complainant prior to 2016 itself. He don't remember the exact date when he had sent money to the complainant, and he don't remember whether he had mentioned the same in his chief examination or not. He is aware of the contents of Ex.D2. Anil is his childhood friend who is native of Gudur. He don't have any evidence to show the existence of Anil. Anil was sub-junior to him. He denied that Anil never told me to transfer money to the complainant. He denied that Anil never existed between him and complainant. He admitted that the cheque given by him bounced due to insufficient funds. After that he went to Bank and gave Stop notice, but he hasn’t given any notice to the complainant. He stated that he is aware that the complainant tried to encash the cheques, and hence he went to bank and requested "stop payment". He don't remember the dates in Ex.D2. He don't remember the exact amount mentioned in his chief examination.
He don't know whether there is variation of accounts in Ex.D2 and his chief examination. The entire transactions took place prior to 2016. World Food Trade is a company, and its website was in existence in 2014-15 but at present there is no such company in that name. He was director in that company in 2015-16. It is a Chennai based company. The complainant
was also a Director in World Food Trade as per the
website in 2014-15, but he don't have evidence to prove
the same. He denied that the complainant was never a part of
World Food Trade. Non-Bailable Warrant was executed against him by one Balaji Nagar P.S. He don't know whether news regarding his arrest was published in N3 news or not. He 14 denied all the formal suggestions putforth by the learned counsel
for complainant.
16.In support of his case, he got examined one Senior
Manager of Andhra Bank (presently Union Bank of India), Main
Branch, Nellore where the account of complainant is existed as
DW2. Through him Ex.D4 Statement of Account of Complainant, of Andhra Bank, Nellore was marked. He deposed that he received summons from Court, and hence he brought documents i.e., Statement of Account of complainant from 2013-2014 to 2016-2017 which is marked as Ex.D4. He further stated that
the complainant took housing loan. Rs.10 lakhs was
credited in two spells in complainant's account. No other
huge amounts were credited into complainant's account
except the said Rs.10 lakhs of housing loan. He again
deposed that as per Ex.D4 there were no withdrawals of
Rs.10 lakhs or Rs.20 lakhs in the month of March, 2016 or
prior to 6 months of March, 2016. The deposited Rs.10
lakhs of housing loan amount was nowhere withdrawn as
per Ex.D4.
In his cross examination, DW2 stated that as per Ex.D4 there were total transactions for Rs.8 lakhs in the year 2013- 2014. As per Ex.D4 Rs.68,79,000/- for the year 2014-2015,
Rs.17,13,000/- for the year 2015-2016 and Rs.8,14,000/- for
the year 2016-2017 was credited into complainant's
account i.e., total transaction for amount of Rs.1 crore from 2013 to 2017. On an average Rs.25 lakhs transactions were done per year. Complainant also has OD Account for transactions in addition to the present account.
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17.The ingredients of Section 138 of the Negotiable
Instruments Act are as follows:
1) The cheque should have been issued for the discharge, in whole or part to any debt or other liability.
2) A cheque should have been presented within a period of six months or within its validity period whichever is earlier.
3) The payee or holder in due course should have issued a notice in writing to the drawer within 30 days of the receipt of information by him from the bank regarding the return of the cheque is unpaid.
4) After receipt of the said notice from the holder in due course, the drawer should have failed to pay the cheque within 15 days of receipts of the said notice.
18.As per sections 101 and 102 of the Indian Evidence Act, the burden of proof of guilt of the accused lies on the prosecution i.e., on the complainant. The prosecution shall prove the same to the satisfaction of the Court on the principle of preponderance of probability. Whereas, the accused is entitled to rebut the presumptions under Sections 118 and 139 of NI Act by cogent evidence and to prove his defence to the satisfaction of the Court in terms of Section 103 of Evidence Act on the principle of preponderance of probability. The accused has rebutted the presumptions by cross-examining PW1 and proved his defence.
19.On perusal of the entire evidence on record, it is the case of the complainant that he gave Rs.10,00,000/- cash to the accused with interest @ 24% p.a., under promissory note/Ex.P6.
Inspite of his demands the accused issued cheque/Ex.P1 bearing
No.000071, dt.02.06.2016. When the said cheque was sent for clearance, it was dishonoured on the ground of “Funds
Insufficient”. So, the accused has issued the said cheque knowing well about the account position in the bank, and has 16 committed an offence punishable under Sections 138 and 142 of the Negotiable Instruments Act.
20.Per contra, the case of the accused is that he never borrowed amount under Ex.P6/Promissory note and he never issued Ex.P1/cheque for discharge of the said debt. He stated that in a business transaction, four pronotes for Rs.10,00,000/- and one Pronote for Rs.5,00,000/- and 5 cheques for said amounts, towards security for the proposed investment was taken by the complainant. But no consideration was passed under said promissory notes. The complainant by misusing the pronotes and cheques delivered by the accused to him, fabricated the pronotes and cheques and got filed the complaints to get wrongful gain.
21.Though the accused admitted his signatures on Ex.P1 and
Ex.P6, he denied that the said Ex.P1 was issued towards the discharge of Ex.P6 debt. He vehemently contended that those are given towards investment of the business. The accused seriously disputed with regard to the source of income and financial capacity of the complainant to lend such huge amount of Rs.10,00,000/-. When the accused made a specific plea of financial capacity, it is the duty of the complainant to prove his capacity in lending such huge amount to the accused.
22.As seen from Ex.P6/Promissory Note which is the root cause of this case, no doubt it clearly shows that it was executed on 06.03.2016 for Rs.10,00,000/- in favour of the complainant with interest @ 24% p.a.
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When coming to the source of income to the complainant, at first instance he stated that he do not do any business in his name and he has no income in his name, but stated that earlier he used to do gas agencies business and also lorry business in the name of his wife. But PW1 did not file even a single scrap of paper to establish either his or his wife’s source of income. PW2 who is one of the attestor to Ex.P6 and eye witness for the transaction between PW1 and accused also deposed that he knew PW1 for 20 years as he has business transactions with
PW1, which clearly shows that PW1 was involved in some business. Subsequently, PW1 in his cross examination stated that he was the Managing Partner of Vigneswara Logistics from 2008 till 2016. The version of PW1 is not constant and there are variations in his evidence, which is difficult to believe his version.
When coming to the financial capacity of PW1 in lending such huge amount of Rs.10,00,000/- to the accused, the complainant/PW1 stated that he was sanctioned housing loan for an amount of Rs.30,00,000/- two months prior to lending amount to accused, and from the said Rs.30,00,000/-, PW1 withdrew
Rs.20,00,000/- and gave to the accused. PW1 stated that he has not filed bank statement to that effect. Now let us see whether the version of PW1 is supported by any oral or documentary evidence. The Branch Manager of Andhra Bank where the account of complainant/PW1 is holding is examined as DW2, and he stated that the complainant/PW1 took housing loan, and
Rs.10,00,000/- was credited to his account in two spells. Except the said housing loan of Rs.10,00,000/- no other huge amounts were credited to the account of PW1. The version of DW2 clearly 18 shows that only Rs.10,00,000/- was sanctioned towards housing loan, but not Rs.30,00,000/- as stated by PW1. On perusal of
Ex.D4 statement of account of PW1, it shows that huge amount of Rs.5,00,000/- was credited on 11.01.2016 and another
Rs.5,00,000/- on 27.01.2016. Except these two amounts there is no other huge amount credited or withdrawn from the account of
PW1 prior to two months of lending amount to the accused. So, the version of PW1 that he was samctioned housing loan of
Rs.30,00,000/- among which he lent Rs.20,00,000/- to the accused seems to be untrustworthy and unbelievable. PW1 surprisingly changed his version and stated that he gave debt to the accused in the name of Vigneswara Logistics, which is a parnership firm. Let us believe for a moment that PW1 gave debt to the accused from the firm account. Then what prevented him in not filing the statement of firm account before Court to establish that the amount was given to the accused from the firm account, and what prevented him from examining any of the partners of the said firm to prove the said fact.
23.To support the case of PW1, he got examined PW2 who is the eye witness during lending amount to accused and one of the attestor to Ex.P6, he stated that the wife of PW1 brought
Rs.20,00,000/- (Rs.10,00,000/- + Rs.10,00,000/-) in a bag and handed over to accused, but he cannot say in which bag does wife of PW1 brought the cash. Moreover, PW1 failed to examine his wife in whose name the gas agency and lorry business stands, to support his case.
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24.As seen from Ex.D1 Statement of M/s.World Food Trade
LLC, it clearly shows that the complainant is dealing with the said business, and the account number from which payments are been made clearly discloses the account number of the complainant. So it clears that the complainant has been involved in the said business and he has business transactions with M/s.World Food Trade LLC., and that the contention of the accused that there are business transactions with the complainant, and in that course of business only the complainant took promissory notes and cheques from the accused is to be believed.
On perusal of Ex.D2 statement of accused, it discloses that some amounts have been transferred to the complainant on different dates. The accused deposed that at the instance of one
Anil he had transferred a total amount of nearly Rs.11,88,000/- on different dates i.e., on 18.11.2014 Rs.5,40,000/-; on 17.12.2014 Rs.4,85,000/- and on 27.01.2015 Rs.1,63,000/-.
Whereas PW1 denied that the accused transferred Rs.11,88,000/- to him i.e., Rs.5,40,000/- on 18-11-2014, Rs.4,85,000/- on 17-12- 2014, Rs.1,63,000/- on 27-1-2015. He denied that the accused transferred the above amount to him at the instance of Anil. But at seen from Ex.D2 statement of account of accused it clearly discloses that the above said amounts have been transferred from the account of accused to the account of complainant. So, it clearly shows that the version of complainant is not believable.
25.PW1 stated that he is an Income Tax Assessee and he filed
I.T. returns. He further stated that he hasn’t shown the money given to the accused in his I.T. returns, but stated that he had 20 shown them in his firm. When PW1 shown the debt amount in any of the I.T. Returns, what prevented him in filing the same into the Court. PW1 also admitted that he hasn’t filed any documentary proof to show that he has financial capacity to give lakhs of debt.
26.On careful reading of the evidence of PW1 and DW1 it is clear that the DW1/accused had admitted the signature on
Ex.P1/Cheque and signature on Ex.P6/Promissory Note.
Notwithstanding, the admission made by the accused, when the accused raises the financial capacity of the complainant, he has to discharge the burden by leading the cogent evidence. In the case of burden of proof, the onus of proof would be shifted to the parties. At this stage it is necessary to refer the judgment of the
Hon'ble Supreme Court in the case of Basalingappa vs.
Mudibasappa reported in (2019) 5 SCC 418, wherein the
Hon'ble Supreme Court has categorically stated that when the
financial capacity has been questioned, it was incumbent on the complainant to explain his financial capacity. Unless he explained the financial capacity, it is presumed that the said loan transaction did not taken place.
In the present case on hand, the complainant utterly failed to prove his financial capacity and the source of income to lend such a huge amount of Rs.10,00,000/- by way of any documentary evidence.
27. In view of my above discussion, and facts and circumstances of the case stated supra, I am of the considered opinion that there are cloud of doubts which have not been 21 unveiled by the prosecution. There are many contradictions, omissions, latches and discrepancies in the evidence of prosecution witnesses. As the Complainant failed to prove the case, it is established that Ex.P1 was not issued for a legally enforceable debt. This point is answered accordingly in favour of the accused and against the complainant.
28. Point No.2:-
In view of my discussion on point No.1 supra, and in the facts and circumstances of the case, I am of the considered opinion that the complainant has not proved its case against the accused for the offence U/Sec.138 r/w 142 of Negotiable
Instruments Act, 1881 beyond reasonable doubt. This point is answered accordingly in favour of the accused and against the complainant.
29. In the result, the accused is found not guilty for the offence punishableU/Sec.138 r/w 142 of Negotiable
Instruments Act, 1881 and he is acquitted U/Sec.255 (1)
Cr.P.C.. The bail bonds of the accused shall remain in force for 6 months as required under section 437-A Cr.P.C and thereafter shall stands cancelled.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open court on this the 15th day of April,
2025.
Sd/-N.Lavanya
Judicial Magistrate of I Class,
Special Mobile Court, Nellore.
22
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant:-
PW1: M. Ankaiah Chowdary PW2: D. Rama Naidu
For Accused:
DW1:P. Prabhakar DW2: R. Gupteswar Rao
DOCUMENTS MARKED
For Complainant:
Ex.P1:Original cheque bearing No.000071 HDFC Bank Ltd., Ramachandrapuram Branch, Medak District, Telangana, dt.02-06-2016 along with xerox copies. Ex.P2: Bankers Memo, dt.24.06.2016. Ex.P3: Office copy of legal notice, dt.21-07-2016. Ex.P4: Served Acknowledgments (2), dt.26-07-2016. Ex.P5: Copy of Reply notice, dt.09-08-2016. Ex.P6: Promissory note, dt.06-03-2016.
For Accused:-
Ex.D1: Business statement of M/s. WORLD FOOD TRADE LLP showing the Complainant is dealing with the said firm. Ex.D2: Statement of Account of the Accused. Ex.D3: Publication published in Nellore News Network ie., N3 News at the instance of the Complainant to defame the accused. (Subject to Objection). Ex.D4: Statement of Account of complainant, Andhra Bank, Nellore.
Id/-N.Lavanya J.M.F.C., Spl. M.C., NLR.