IN THE COURT OF THE II ADDL. JUDL.MAGISTRATE OF I CLASS,
MANCHERIAL
Present: Sri G.Uday Kumar II Addl. Judl. Magistrate of I Class, Mancherial
Tuesday this the 19th day of May 2015
CC.NO.21 of 2013
Between:-
Tuniki Srinivasa Raju, S/o. Gattam Raju, Age: 45 years, Occ: Business, R/o. Mancherial, District Adilabad. …Complainant.
// AND //
Dr.P.Sriram Reddy, S/o. Mukunda Reddy, Age: 48 years, Occ: Doctor,
R/o. Market Road, Mancherial. ...Accused
This case came before me for final hearing on 19.05.2015 in the presence of Sri. Vodnala Satyanarayana, Counsel for Complainant and Sri. T.Bala Bhaskar, Counsel for the Accused and having stood over for consideration till this day, the Court delivered the following:-
J U D G M E N T
This is a complaint under sec.200 Cr.P.C, filed by the complainant against the accused for the offence U/Sec.138 of N.I. Act.
2.The case of the complainant in brief is that the accused and complainant are acquainted with each other. Due to acquaintance, the accused has taken Rs. 1,00,000/- (Rupees one lakh only) from the complainant in the presence of witnesses, and promised to get the patta of the land bearing Sy.no. 275 measuring 18 gts, situated at Mancherial. But he failed to do the said work. When the complainant insisted for repayment of amount taken by the accused, the accused issued the cheque bearing no.
102899 dated 03.10.2011 in favour of the complainant for Rs. 1,00,000/- (Rupees one lakh only) in discharge of his legally enforceable debt.
3.On presentation of the same for collection of amount in Union Bank,
Mancherial Branch on 10.11.2011, the same was dishonoured on 29.11.2011 for the reason “Account Closed”. Upon which, on 10.12.2011 the complainant got issued a legal notice to the accused. The same was served on the
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accused on 16.12.2011 as per the postal acknowledgment signed by the accused. Later the accused got issued a reply notice dated 29.12.2011 wherein he denied issuing of cheque, and denied his liability. Hence the present case.
4.Initially, the complaint was filed before the Prl. Judicial Magistrate of
First Class, Court, Mancherial.
5. Subsequently, this case was transferred to this court as per the orders of the Hon’ble Chief Judicial Magistrate-cum-Asst. Sessions Judge, Adilabad vide Proce. Dis.No. 286/2012, dated 19.04.2012. This court took cognizance for the offence U/s. 138 of NI Act against the accused and numbered as CC 21 of 2013.
6.On appearance of the accused, copies are furnished to him. He was examined U/s. 251 Cr.P.C., by explaining the substance of the accusation for the offence under sec.138 of NI Act, for which he denied the allegations and pleaded not guilty. Hence posted for trial.
7.In pursuance of his case, the complainant himself got examined as PW1 and one Lagishetty Gopal is examined as Pw2 and got marked Ex.P-1 to
Ex.P8 on his behalf.
8.After the closure of complainant's side evidence, the accused is examined under sec.313 Cr.P.C, explaining incriminating material available on record and he denied the same.
9.The accused is examined as DW1 and one Jugal Kishore Jakotia is examined as Dw2. Ex.D1 and Ex.D2 are marked on his behalf.
10. Heard and perused the record. After hearing the arguments of both side counsels and evidence on record this court felt necessary to determine the following points.
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11Now the points for determinations are :
1) Whether Ex.P1 cheque had been issued in discharge of legally enforceable liability or debt due to the complainant?
2).Whether the accused discharged his burden of proving that Ex.P1 cheque had not been issued for a debt or liability?
3) Whether the accused committed the offence punishable U/s.138 of N.I. Act?
4).To what relief? 12Having heard arguments from both sides and perused the evidence on record, this court decides the matter as follows:-
POINT No.1&2:
13At the out set let me refer to the settled legal position regarding the proof of existence of legally enforceable debt or liability by the complainant in cases under sec.138 NI Act and the presumption under sec.139 of NI Act.
In Rangappa Vs Sri Mohan (three judges bench), (reported in 2010 (2)ALD(Crl.)734(SC)) our Hon'ble Supreme court, while discussing the point `that existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act' …. and ..`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' [ Para. 30 in Krishna Janardhan Bhat (supra)], observed that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.By also referring to Hiten P. Dalal v. Bratindranath Banerjee holding at paras-22 and 23 therein of the obligation on the part of the Court to raise the presumption under 138, 139 and 118 of the N.I. Act, in every case where the factual basis for raising the presumption has been established.
14.Thus, from the above latest judgment of the Apex Court it is clear that when the holder of the cheque establishes that he legally received the cheque from the drawer, the presumption under Section 139 follows to the effect that there existed a legally enforceable debt between the parties and cheque was issued for discharge of said debt. Consequently reverse burden will be on the accused to establish that there existed no legally enforceable debt and cheque was not issued in due discharge of the same.
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15.Though the plea of the accused in Rangappa vs Sri Mohan is that:
the appellant-accused has raised the defence that the cheque in question was a blank cheque bearing his signature which had been lost and that it had come into the hands of the complainant who had then tried to misuse it, the accused's case was that there was no legally enforceable debt or liability between the parties since he had not asked for a hand loan as alleged by the complainant(Para No.5), the hon'ble Apex court hold as under:
“since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play the same has not been rebutted even with regard to the materials submitted by the complainant.”(para No.15).
16.Now, thus, the settled law is that the burden of the complainant is to prove only the factual basis for issuance of cheque infavour of complainant by the accused. Once the complainant succeeds in proving the factual basis which led the accused to issue cheque infavour of the complainant that itself is sufficient to raise presumption available u/s. 139 of NI Act. Then it is for the accused to prove with a probable version that the cheque issued by him to the complainant was not in discharge of legally enforceable debt or liability. Once the accused with his probable version raises suspicious circumstances on the case of the complainant and dislodges the presumption, then the burden shifts to the complainant to prove strictly that there is a legally enforceable debt or liability existing between him and the accused and that the cheque issued by the accused is, in fact, in discharge of said legally enforceable debt or liability.
17.In the light of the above settled legal position, I would like to examine the evidence on record to know how far the complainant could prove the factual basis for issuance of Ex.P1 cheque by the accused to him.
The version of the complainant is that the accused issued Ex.P1 cheque to him in discharge of legally enforceable liability. There is no dispute regarding the fact that Ex.P1 cheque belongs accused. Admittedly Ex.P1 belongs to the accused. Further, the signature appearing on Ex.P1 also admittedly belongs to accused. It is not the case of the accused that he issued Ex.P1/cheque to complainant for some other purpose other than discharge of any legally enforceable liability of debt as contended by the complainant. The very
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defence of the accused is that he never issued Ex.P1/cheque to the complainant. In other words the accused is disputing the very factum of issuance of Ex.P1/cheque to the complainant.
18.The version of the complainant is that the accused issued
Ex.P1/cheque to him towards repayment of the amount paid by him earlier to the accused for obtaining NOC (No objection certificate) from revenue office in respect of a 'laoni patta' land.
19.The complainant herein is examined as PW1. One Gopal is examined as
PW2. The accused got himself examined as DW1. One Jugal Kishoore Jakotia is examined as DW2. Ex.P1 to P8 are marked for complainant. Whereas
Ex.D1 and D2 are marked for defence side. From a careful reading of the entire evidence available on record it comes to know that the accused herein, one Jugal Kishore Jakotia (DW2) and one Devi Satyanarayana are friends. The complainant and accused also got acquitance with each other though Devi Satyanarayana. Jugal Kishore Jakotia is the owner and possessor of land measuring Ac.0.18 guntas in Sy.No. 275 situated on the outskirts of
Mancherial (herein after referred to as 'land'). The said land is a Laoni Patta land. The complainant (PW1) and the said Jugal Kishore Jakotia (DW2) entered into an agreement of sale under Ex.P8. Subsequently, the agreement of sale could not be proceeded with and the sale of the land could not be materialized. The reason for not materializing the above agreement of sale is that 'no objection certificate' to get patta in favour of the purchaser in respect of the land covered by Laoni patta could not be obtained. Jugal
Kishore Jakotia (DW2) could not sell the land and the complainant could not purchase the above land under Ex.P8.
20.It can also be observed from the evidence on record that there is a dispute regarding the payment of Rs.10,00,000/- (Rupees ten lakhs only) by the complainant to Jugal Kishore Jakotia(land owner) towards advance amount of sale consideration under Ex.P8. According to Jugal Kishore Jakotia who is examined as DW2, the complainant did not pay any amount as mentioned in the agreement and that he/DW2 entered into the agreement under ExP8 only for the purpose of obtaining NOC in respect of his laoni patta land. His contention is that not only Ex.P8, there was another agreement, executed in between them on the same day by stating that he got the above agreement (under ExP8) executed infavour of complainant at
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the instance of one Devisatyanarayana to get NOC from RDO and that the agreement under ExP8 between him and the complainant is only a formal agreement. However, after going through the entire evidence, I am of the opinion that this court is not concerned with the issue whether or not the complainant actually paid Rs.10,00,000/- (Rupees ten lakhs only) to Jugal
Kishore Jakotia (DW2) towards advance sale consideration amount under
Ex.P8? and whether or not there were two agreements brought into existence between them?
21.Another dispute which can be seen from the evidence on record and argued by the counsel for the complainant is that the complainant as PW1 is alleging that the said Jugal Kishore Jakotia (DW2) by suppressing the fact that his land, intended to be sold, falls under Laoni Patta and that without disclosing the same to him (PW1) entered into the agreement of sale under
ExP8 with him (PW1/complainant) and took the advance amount. According to the complainant/PW1, subsequent to Ex.P8 agreement, he came to know the fact that the land was covered by Laoni patta. In this regard, the complainant also lodged a report with police Mancherial against Jugal
Kishore Jakotia, accused herein and others, for which a case in Cr.No.
254/2011 for the offence u/s. 417, 420, 423, 506 r/w 34 IPC was registered by police, Mancherial. Whereas the version of Jugal Kishore Jakotia (Dw2/land owner), as could be seen from his evidence, is that the complainant knows the fact that the land was covered by Laoni patta and that knowing well the same, the complainant herein along with one Devi
Satyanarayana approached him (DW2) and entered into agreement with him to obtain NOC from the revenue office with regard to the above land.
According to DW2, he also paid Rs. 50,000/- to the complainant towards expenditure for obtaining NOC from revenue authorities, but, he states that the complainant failed to obtain NOC. However, whether or not, Pw2, who entered into the agreement of sale with complainant to purchase land measuring 250 Square yards, was aware of the fact that the above land was
Laoni patta, is also not an issue before this court. Whether the complainant without knowing or by knowing well the fact that the land was covered by
Laoni patta, entered into agreement of the sale with Dw2, is also not a point for consideration of this court. Not only that, the complainant even without consent of DW2/Kishoore(land owner), entered into agreement of sale with one Gopal(PW2) in respect of part of the above land. Hence he (Dw2) filed a private complaint against the complainant herein and one Devi
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Satyanarayana under Ex.D2. Perusal of Ex.D2 discloses that a private complaint was filed for the offence u/s. 406, 420, 494 and 506 IPC which was referred under sec.156(3) Cr.P.C to police and police Mancherial also registered a case in Cr.No. 287/2011 and issued FIR under Ex.D2. The complainant and Jugal Kishore Jakotia are contending that their respective crimes supra are still pending. However, I am of the opinion that there is no necessity to this court to cause enquiries into these criminal cases to find out the truth of each case. Therefore this court is not concerned with the said issues too. Whether the subsequent agreement of sale between complainant and Pw2 was with or without the consent of land owner/Dw2 is not an issue to be considered by this court.
22. In the light of the above facts and circumstances of the case, now the time has come to examine here what was the role played by the accused in the said land transaction when the land transaction actually took place in between complainant and one Kishore Jakatia (DW2) and why the complainant filed the present case against the accused by leaving other material persons?
23.It can be seen from the evidence that the accused himself is admitting to have acquaintance with the complainant through one Devi
Satyanarayana. He is admitting the fact that Jugal Kishore Jakotia (Dw2) offered to sell his land and that one Devi Satyanarayana brought the complainant to purchase the said land. As per his own admission of the accused, he was present when the agreement took place among Jugal
Kishore Jakotia, Devi Satyanarayana and the complainant regarding the purchase of said land. Further Accused himself is admitting that the said land is 'Laoni Patta land' and it cannot be registered. The accused as Dw1 deposed that the purchaser intended to give and take sale consideration after getting the Laoni Patta converted into regular patta in respect of said land.
24.Accused as DW1 is also speaking about the agreement entered in- between the complainant and one Gopal (PW2) in respect of above said land.
He is also speaking about the complainant having received an amount of
Rs.2,20,000/- (Rupees two lakhs twenty thousand only) from Gopal as advance amount. According to him, as the sale transaction between the complainant and Jugal Kishore Jakotia could not be materialized, the said
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Gopal demanded the complainant for return of advance amount paid by him, but the complainant did not pay the said amount to Gopal. He, in his cross examination, stated that since Devi Satyanarayana acted as mediator to the transaction, and that as the complainant failed to repay Rs. 2,00,000/- (Rupees two lakhs only) to Gopal, he wrote Ex.D1 letter to Devi
Satyanarayana asking him to pay the amount to Gopal (PW2).
25.The land owner Jugal Kishore Jakotia as DW2 gave evidence before this court. He states that he knows the accused for the last 25 years. According to him, he got acquaintance with one Devi Satyanarayana through the accused. He spoke about his having acquaintance with the complainant through one Devi Satyanarayana in the year 2009 itself. Thus DW2, accused and one Devi Satyanarayana got acquaintance with each other and they are not strangers to each other. DW2 is referring to accused by stating that he, prior to signing on the agreement with complainant (under Ex.P8), approached the accused as he (accused) is his family Doctor and that on his(accused) advice only he signed on the agreement. This itself goes to show that the accused was very much present when DW2 signed on the agreement of sale entered with complainant in respect of his land. Even the accused as DW1 himself admitted to have been present at the time of entering of agreement of sale between the complainant and DW2. That apart, DW2 once again referred to the presence of accused regarding the issue of the agreement of sale entered between the complainant and Gopal (PW2). It is the specific evidence of DW2 that he summoned the complainant and one Devi Satyanarayana to the hospital of accused where he(DW2) questioned the complainant in presence of accused as to how the complainant entered into the agreement with Gopal (PW2) in respect of his land (Dw2).The further evidence of Dw2 is that accused advised the complainant and Devi Satyanarayana to return Rs. 2,00,000/- (Rupees two lakhs only) to Gopal.
26.Coming to the evidence of Pw1, the same discloses that one Devi
Satyanarayana and accused acted as mediators in the land transaction between himself and DW2 and both of them, according to him, were also present at the time of agreement of sale. A suggestion given to Dw1, during his cross examination, goes to show that the complainant filed a private complaint against the accused herein, Jugal Kishore Jakotia (Dw2) one Ravi
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Babu, one Koleti Satyanarayana and one Thota Srinvias and that the said private complaint was referred to police Mancherial and that police also registered a case in Cr.No. 254/2011 against the accused herein also for the offence punishable u/s. 417, 420, 423, 506 r/w 34 IPC.
27.From a reading of the entire evidence on record it comes to know that an agreement of sale in respect of land measuring Ac.0-18 guntas in Sy.No.
275 situated on the outskirts of Mancherial tookplace between the complainant and Dw2 the land owner under ExP8 agreement. Another agreement between the complainant and one Gopal (Pw2) also took place subsequently in respect of land measuring 250 Square Yards out of above
Ac.0.18 guntas of land.
28. It is an admitted that the land measuring 0-18 guntas in Survey no.
275 belonging to Dw2 is covered by Laoni patta. It also comes to know that the complainant and owner of the land Dw2, intended to get a mutation proceedings and a regular patta in respect of the above land so as to dispose of the said land. Though the learned counsel for the accused while arguing expressed his doubt regarding the possibility of issuing of patta pass book in respect of the laoni patta lands, it cannot be said strictly that mutation proceedings in respect of land covered by Laoni patta cannot be issued and that patta in respect of purchaser cannot be issued.' Assigned land' within the meaning of Sec.2(1) of Andhra Pradesh Assigned lands (prohibition of transfers) Act 9 of 1977 which defined 'assigned land' as the lands assigned by government to the landless poor persons under the Rules for the time being in force subject to the condition of non-alienation. An applicant can make an application in FORM VI-A to District collector/concerned revenue authority for mutation of the name of the applicant in the record of rights in respect of the land. From a reading of the judgment in Sunkara Sujana Vs
District Collector, Ranga Reddy District & others(reported in 2014(2)ALT1)of our own hon'ble High court, wherein a reference has been made to the observation of the decision in Akkam Anjaiah Vs Dy. Collector and Thahsildar,
Saroornagar mandal case, it can be understood that if the Patta, in respect of land originally assigned under laoni patta, granted under laoni rules, does not contain condition against alienation and in absence of condition of prohibition of alimentation, the name of the purchaser in respect of such land can be mutated in record of rights and Pattadar passbooks and title deeds in his name can be issued. However an exercise by looking into patta granted
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to the land under Laoni Rules is required to be made so as to know whether there was any condition in laoni patta prohibiting alienation of the land. Thus all it depends on the condition mentioned specifically while allotting the land under Laonipatta to assignee. Therefore, it cannot be said that mutation proceedings and a patta passbook can not be issued to a purchaser of the land covered by lavonipatta. Thus the entrustment of work to make the above exercise to obtain patta pass book from concerned revenue authorities in respect of the land covered by laoni patta is not an illegal act nor it can be treated for illegal purpose. This object can not be said to be unlawful object.
29The version of the complainant/PW1 is that the accused assured him to get regular patta in respect of land measuring 0-18 guntas covered by Laoni patta, for which he(accused) also took an amount of Rs. 2,00,000/- (Rupees two lakhs only) from the complainant and finally he failed to do the said work. Even the version of complainant is taken into consideration, in the light of the above judgment, it cannot be said that he paid the above amount to do either an illegal act or for unlawful object. At the same time, it is not the case of the accused that he took bribe from the complainant. Payment made by the complainant to the accused was neither for getting any illegal act done nor for any unlawful object or favour since making effort to get patta pass book in respect of laoni patta lands is not a prohibited act.
Therefore the contention of the counsel for the accused, that payment of amount to accused to get NOC or patta pass book for Laoni patta land from revenue office is an illegal act and the same amounts to bribe and that a bribe cannot be claimed back, is untenable and cannot be accepted. The possession of lose cheque of the accused by the complainant suggests an inference that the accused issued the same towards discharge of legally enforceable liability.
30.The version of the complainant is that the accused told him that he gets the Lavoni patta converted into original patta in respect of the above land and obtained Rs. Two lakhs from him for the said purpose. He paid an amount of Rs.Two lakhs to the accused at his (accused) hospital. But the accused failed to do the said work and when the complainant insisted for the repayment of said amount taken by the accused, the accused issued two cheques to him. He states that accused asked him to present one cheque.
Accordingly, he presented one cheque (ExP1) and that was dis-honoured on the ground “Account Closed” . According to him, hence he did not present the other cheque.
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31.One Gopal as PW2 deposed in support of the complainant and spoke the role of the accused in the transaction. His evidence discloses that on seeing the agreement of sale between complainant and Jakotia, he inclined to purchase a plot out of said land. For the same, he paid initial amount of
Rs.2,40,000/- (Rupees two lakhs forty thousand only) to the complainant towards agreement amount. His evidence further discloses that he came to know that it is not a perfect patta and mutation proceedings in respect of the said land cannot be effected. He states that the accused entered into transaction, convinced the complainant and promised and assured him to get patta infavour of the complainant for which the complainant paid Rs.
2,00,000/- (Rupees two lakhs only) to the accused but the accused did not fulfill his promise. His further evidence is that the accused issued two cheques each for Rs. One lakh to the complainant for encashment.
32. Here the learned counsel for the accused seriously disputed truth of the complainant’s version. The contention of the counsel for the accused is that the complainant did not mention in his complaint about the payment of
Rs. 2,00,000/- (Rupees two lakhs only) to the accused and also about the issuance of two cheques to him. The complainant, in his pleadings, referred to only one cheque and payment of only Rs.1,00,000/- (Rupees one lakh only). He for the first time in the evidence stated about Rs. 2,00,000/- (Rupees two lakhs only) amount and issuance of two cheques. Therefore, according to counsel for the accused, the case of the complainant cannot be believed.
33.Admittedly the complainant did not mention about his having paid
Rs.2,00,000/- (Rupees two lakhs only) to the accused and also the factum of issuance of two cheques to him by the accused. As could be seen from the evidence in cross examination of PW1, he revealed the above factum only when he was asked during cross examination. It is not that PW1 himself voluntarily deposed the said factum and improved his case. When the PW1 was specifically questioned during cross examination, he stated that he paid
Rs.2,00,000/- (Rupees two lakhs only) to the accused at his hospital on 29- 09-2011.These omitted particulars are elicited in cross examination of PW1.
Admittedly the complainant did not mention in his private complaint (registered in Cr.No.254/2011) lodged against the DW2, accused and others about the factum of his having paid Rs.2,00,000/- (Rupees two lakhs only) to
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the accused. His explanation for such omission is that he could not get it mentioned in the private complaint since it was a police case. Regarding the argument of the learned counsel for the accused, it is relevant here to refer to the evidence of accused/ DW1 in his own words thus:
“The wife of one Devi Sathyanarayana is working as ANM in my hospital for the last 20 years. In that process I got acquaintance with Devi Sathyanarayana. I obtained loan of Rs.2 lakhs from the said Devi Sathyanarayana about 15 years ago. I repaid the said loan amount to Devi Sathyanarayana. When I obtained the loan amount from Devi Satyanarayana I issued two cheques to him. Later after repayment of the loan amount I failed to receive the two cheques back as I believed Devi Satyanarayana. Some how the complainant got the said two cheques of mine from the house of Devi Sathyanarayana and used the same and filed the present case.”
34.Thus the accused himself is admitting the factum of complainant having possessed his (accused) two cheque each for Rs.1,00,000/- (Rupees one lakh only), total Rs.2 lakhs. The defence of accused supra makes it clear that there were two cheques belonging to accused and the same were for
Rs.2,00,000/- (Rupees two lakhs)in total. Therefore, in the background of facts and circumstances of the case, I am of the opinion that the failure of the complainant to make mention in his complaint about two cheques of the accused and payment of Rs. 2,00,000/- (Rupees two lakhs only) to the accused, is of no consequence on the case of the complainant.
35.The counsel for the accused argued that Accused also got a reply notice (Ex.P7) issued to the complainant asking him to show the cheque to him.
But, according to the learned counsel, the complainant stated in his evidence that he does not know the contents of the reply notice. He further argued that the complainant being an employee cannot contend that he does not know the contents of the reply notice. In this regard, it has to be seen here that the complainant in his evidence got the reply notice of the accused marked as Ex.P7. He did not suppress the factum of issuance of reply notice by the accused. Cases under sec.138 of NI Act involved technicalities, therefore, though the PW1 is an RTC employee, can not be expected to know all the procedural aspects of such cases. However, mere denial or rebuttal by accused through the reply to the legal notice sent by the complainant is not enough. Accused has to propabilise prove by cogent evidence that there was no debt or liability between them.
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36.Accused/DW1 in his cross examination stated that since Devi
Satyanarayana acted as mediator to the transaction, and that as the complainant failed to repay Rs. 2,00,000/- (Rupees two lakhs only) to Gopal, he wrote Ex.D1 letter to Devi Satyanarayana asking him to pay the amount to Gopal (PW2). The learned counsel for the accused vehemently argued that
Ex.D1 is not concerned with the complainant. It, according to him, refers to the repayment of advance amount of Rs.2,00,000/- (Rupees two lakhs only) to one Gopal (PW2). The contents of the letter is that he (accused) through
Jugal Kishore (DW2) arranged Rs.2,00,000/- (Rupees two lakhs only) directing one Devi Satyam to pay the said amount to Gopal(PW2).
37.Accused in his cross examination stated that he was not indebted any amount to Gopal. According to him, Devi Satyanarayana was also not indebted to him(accused). He further stated that his (accused) amount was not lying with Devi Satyanarayana. When the very allegation is that the complainant without the consent of the land owner (DW2) entered into agreement of sale with one Gopal (PW2) and received Rs.2,20,000/- from the said Gopal, I do not understand what was the necessity to the Accused to give Rs.2,00,000/- (Rupees two lakhs only) to one Devisatyanarayana asking him to pay the same to Gopal (PW2). Accused has neither responsibility nor liability to take such rescue of payment of Rs.2,00,000/- (Rupees two lakhs only) to Gopal on behalf of the complainant. It is the headache of complainant to return the amount to Gopal (PW2). Even Jugal Kishore has no role to return the amount either to Devisatyam or to Gopal. This act of the accused in writing Ex.D1 that as he acted as mediator he took the rescue of payment of the said amount to Gopal does not appears to be probable on his part.
38.The other argument of the counsel for the accused is that the complainant himself filled the blank cheque/Ex.P1 and that the same goes to show that the accused never issued the Ex.P1 cheque to the complainant. No law provided that in a case of any negotiable instrument entire body has to be written by maker or drawer only. What is material is signature of the drawer or maker and not the body writing when there is dispute regarding the signature, it can be presumed that there is an implied consent for filling up the cheque as and when required by the holder and get it encashed.
Complainant as PW1 categorically stated in his evidence that accused asked
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him to present one cheque out of two cheques. Filling of blank cheque by the complainant with the consent of the accused does not amount to material alteration. It is very much acceptable and infact the complainant is entitled to fill the cheque. The judgment In Amolak Textiles Vs. Uphar Fashions reported in 2010(1) ALD (Crl.) (NOC) 10 (Kar.)Ravi Chopra Vs State and another reported in 2009 (1) ALD (Crl.) 13 (Del.) deal with the matter of filling of material particulars in the cheque subsequently and support the above contention. Hence I do not see any force in the argument of the counsel for the accused.
39.Here on the case on hand it is not the defence of the accused that he issued cheque to the complainant for some other purchasers but not in discharge of legally enforceable debt or liability. His very plea is that he never issued ExP1/cheque to the accused. According to him, he issued ExP1 to his friend one Devi Satyanarayana but not to the complainant. Hence the presumption u/s 139 of NI Act cannot be invoked infavour of the complainant.
The counsel for the accused filed the following decisions in support of his defence.
1.2007 (3) ALT (Crl.) 38 A.P.G.Veeresham Vs. Shiva Shankar and another 2.2008 (1) ALT (Crl.) 444 (S.C.) John K. John Vs. Tom Varghese and another 3.2008 (2) ALT 170 (S.C.). Krishna Janardhan Bhatt Vs. Dattatraya Hedge 4.2012 (1) ALT (Crl.) 10 A.P. Shaik Ayaz Vs Abdul Khader and another 5.2012 (2) ALT (Crl.) 9 NRC.Girish Vs. S.Ramaiah
I have gone carefully through all the cited judgments. In G.Veeresham Vs.
Shiva Shankar and another ( reported in 2007 (3) ALT (Crl.) 38
A.P.) , the version of the complainant is that the accused borrowed an amount of Rs, 40,000/- from him as hand loan and issued ExP1/cheque to him towards recharge of loan amount. Whereas, the plea of the accused is that he never borrowed hand loan and the complainant obtained blank cheques from him in-respect of finance business. Our hon’ble High court observed that as the complainant himself admitted the finance business with the accused, the complainant failed to produce any proof of lending of hand loan. But the case of the accused in the present case is that he never issued
ExzP1/ cheque to the complainant. The facts and circumstances of the cited case are not similar in the present case; hence the cited decision is not helpful to the accused. In Shaik Ayaz Vs Abdul Khader and another (reported in 2012 (1) ALT (Crl.) 10 A.P.) the hon’ble High court
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observed that the complainant neither gave any details of the loan nor did he produce any proof relating to the circumstances in which the cheques were issued. The hon’ble court further observed that the very basis of the claim u/s 138 of NI Act was not made out hence recorded the acquittal of the accused. However, the facts and circumstances of the present case are different from the cited case and the citation is not applicable to the present case. In John K. John Vs. Tom Varghese and another ( reported in 2008 (1) ALT (Crl.) 444 (S.C.)) the hon’ble Supreme Court reiterated the settled principal that the presumption u/s 138 of NI Act infavour of holder of the cheque is rebutable presumption and further observed that the complainant in the cited case did not approach the court with the clean hands and his conduct was not that of prudent man in not charging interest towards the amount and in not filing any documentary evidence. In
Krishna Janardhan Bhatt Vs. Dattatraya Hedge ( reported in 3.2008 (2) ALT 170 (S.C.).) though the counsel for the accused cited decision between Krishna Janardhan Bhat, the same is not helpful to the accused inview of the recent Judgment of three Judges bench of hon’ble
Supreme Court in Rangappa Vs Sri Mohan (three judges bench), (reported in 2010 (2)ALD(Crl.)734(SC)). The decision of hon’ble Supreme
Court in Rangappa Vs. Sri Mohan goes to discuss about the presumption under Section 139 of the Act a arising in favour of the complainant.In
B.Girish Vs S.Ramaiah (reported in 2012 (2) ALT (Crl.) 9 NRC) the
hon’ble High court referring to the facts of the case observed that there was
no material on record to show that there was any agreement for payment of interest on the loan amount. It further observed that the accused to rebut the presumption u/s 139 of NI Act., However, the facts of the cited case are not applicable to the facts and circumstances of the case on hand.
40.Now after going through the arguments of the counsel for the accused it becomes clear that he is contending that the accused never issued ExP1 to the complainant. But he issued two cheques to one Devi Satyanarayana about 15 years ago towards the payment loan of Rs.2,00,000/- (Rupees two lakhs only) obtained by him. The version of the accused is that the wife of one Devi Sathyanarayana is working as ANM in his hospital for the last 20 years. In that process he got acquaintance with Devi Sathyanarayana. He obtained loan of Rs.2,00,000/- (Rupees two lakhs only) from the said Devi
Sathyanarayana about 15 years ago. He repaid the said loan amount to Devi
Sathyanarayana. When he obtained the loan amount from Devi
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Satyanarayana he issued two cheques to him. Later after repayment of the loan amount he failed to receive the two cheques back as he believed Devi
Satyanarayana. Some how the complainant got the said two cheques of the accused from the house of Devi Sathyanarayana and used the same and filed the present case. Absolutely there is no material on record to probablise the above version of the accused. The accused, in order to probablize his contention, he did not choose to adduce the evidence of the said Devi
Satyanarayana who is a crucial witness to the accused for the reasons best known to him. Failure of the accused to adduce the evidence of the said Devi
Sathyanarayana is fatal to his defence. From the above discussion it becomes clear that the version of the accused is that he issued ExP1 cheque and another cheque to Devi Satyanarayana and that the complainant somehow got the possession of the two cheques and filed the present case by mis- utilizing ExP1 cheque, is not probable and convincing. Version of the accused is inherently unconvincing. He is a doctor. The convenient and specious plea can not readily and naively be accepted. In doing so the indicate is attributing to himself an improbable artificial and indifferent conduct to claim exculpation from liability. The burden must rest squarely and heavily on the person who wants to attribute to himself such an irresponsible and indifferent conduct.
41.On the other hand, it can be observed that the involvement of accused in every occasion i.e., at the time of agreements of sale between the complainant and accused and regarding the issue of entering the agreement of sale between the complainant and one Gopal. He admitted that he wrote
Ex.D2 which goes to show the extent of involvement of the accused in the transaction. Even the complainant filed a private complainant against the accused regarding the above land issue. All this goes show that the accused was very much present in every affair and occasion that took place between the complainant and Jugal Kishore Jakotia and played important role. In the background of such active role of the accused, it does not appear to be probable that the two cheques including Ex.P1 which were issued to one Devi
Satyanarayana were taken by the complainant and filed the present case.
42.If there are strong reasonable circumstances to probablize the version of the accused that he has not issued the cheque to the complainant towards discharge of any legally enforceable debt or liability, then the failure of the complainant to sate the date of issuance of cheque in complaint and legal
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notice and failure to mention the issuance of two cheques definitely would add and become strength to the defence version. But in absence of probale version of the accused, simply refer to the omissions and discrepancies in the case of the complainant are of no consequence and would not suffice to dislodge the version of the complainant and rebut the presumption.
43.From the foregoing discussion coupled with reasons, this court is of the opinion that the version putforth by the accused does not appear to be probable and is not sufficient enough to rebut the presumption available under sec.139 of NI Act infavour of the complainant. The accused thus failed to probablize his version that the complainant somehow got a blank cheque from one Devi Satyam and utilized the same as Ex.P1 for this case. Accused failed to rebut the presumption under sec.139 of NI Act that he issued the
Ex.P1 cheque in discharge of legally enforceable liability. On the other hand the evidence adduced by the complainant is sufficient to raise the presumption available u/s 139 of NI Act in his favour that the accused issued
ExP1 to him in discharge of legally enforceable liability. Considering all this, this court is of the considered opinion that the accused had issued the Ex.P1 cheque to the complainant in discharge of legally enforceable debt, hence the accused is liable for the same. Thus the point No.1 and 2 are answered in favour of the complainant.
PoinNo.3: Whether the accused committed the offence punishable U/s.138 of N.I.Act?
44. In view of sec.146 of N.I Act, bankers slip is prima facie evidence and it does not require any supporting evidence. Admittedly Ex.P3 the memo issued by the bank authorities discloses that the cheque under Ex.P1 has been dis-honoured due to ACCOUNT CLOSED. When the cheque is returned by a bank with an endorsement 'account closed', it would amount to returning the cheque unpaid because "the amount of money standing to the credit of that account is insufficient to honour the cheque" as envisaged in
Section 138 of the Act.
45. In NEPC Micon Ltd. v. Magma Leasing Ltd. (AIR 1999 SC 1952) the
hon'ble Apex Court observed that the expression “the amount of money
standing to the credit of that account is insufficient to honour the cheque” is a genus of which the expression “that account being closed” is specie.
Hon’ble Supreme court took a view that return of a cheque on account of
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account being closed would be similar to a situation where the cheque is returned on account of insufficiency of funds in the account of the drawer of the cheque and an offence is committed. Therefore the reason ACCOUNT
CLOSED is sufficient reason to constitute offence U/Sec.138 of N.I. Act.
46. Perusal of Ex.P5/Postal receipt and Ex.P7 reply notice of the accused goes to show that the complainant got issued legal notice under Ex.P4 to the address of the accused and the same was served on the accused and he also got reply notice issued.
47.Thus the factum of the accused having received amount from the complainant to obtain patta pass book for laovni patta land from Revenue
Office; proving of the fact that Ex.P1 cheque belongs to the accused and its return unpaid under ExP3 the issuance of legal notice under Ex.P4 by the complainant under ExP5 to P7 and serving of the same on the accused establishes the case of the complainant.
48.The basic ingredients that cheque was given, the same was presented and dishonoured, that a written notice was given and served on the accused but he still failed to pay the cheque amount within 15 days thereafter, are proved by the complainant so as to attract the offence under section 138 of
Negotiable Instruments Act. Hence point No.3 is answered in favour of the complainant.
49.In view of the failure of the accused to dislodge the version of the prosecution and in the light of the discussion of Point No.1 to 3, this court holds that the accused has committed offence U/Sec.138 of N.I. Act.
50.In the result, this court finds the accused guilty for the offence under sec.138 of NI Act. Hence he is convicted U/Sec.255 (2) of Cr.P.C., for the said offence.
Para No. 13 to 50 of the judgment is typed by me on my Laptap and the rest of the judgment is typed by my Steno on my dictation, transcribed by her and after correction, pronounced by me in the open court on this the 19th day of May 2015.
II Addl. Judl. Magistrate of I Class, Mancherial.
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The accused is present in the Court Hall. He is questioned with regard to quantum of sentence. The accused stated that he is Senior Citizen. He is a diabetic patient. Four times he was admitted in the hospital for treatment.
He is a Doctor by profession and serving the people for the last 25 years and prayed to take lenient view.
After hearing the accused with regard to quantum of sentence and on considering the facts and circumstances of the case and the submission of the accused, I sentence the accused to under go Simple
Imprisonment for a period of SIX MONTHS and the accused is also ordered to pay a fine of Rs.5,000/- (Rupees five thousand only) and in- default of payment of fine amount he shall undergo Simple imprisonment for further period of FIFTEEN DAYS for the offence u/s. 138 of NI Act.
The accused is informed about his right to appeal against the judgment of this court.
II Addl. Judl. Magistrate of I Class, Mancherial.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT
Pw1:T.Srinivasa Raju/Complainant Pw2:Lagishetty Gopal/ Known person to complainant
FOR ACCUSED:
Dw1:Dr.Potu Sriram Reddy/Accused Dw2:Jugal Kishore Jakotia
EXHIBITS MARKED
For Complainant:
ExP1 is the Cheque Bearing no. 102899 dated 03.10.2011 ExP2 is the Payment Voucher dated 10.11.2011 ExP3 is the Cheque return memo dated 29.11.2011 ExP4 is the Office Copy of Legal Notice dated 10.12.2011 ExP5 is the Postal receipt No.5826 ExP6 is the Postal Acknowledgment ExP7 is the Reply notice dated 29.12.2011 (ExP1 to ExP7 marked through Pw1 on 17.07.2014) EXP8 is photocopy of agreement of sale (ExP8 marked through Dw2 on 09.04.2015) For Defence: ExD1 is the Photocopy of letter dated 31.01.2011 addressed by accused to Devi Satyanarayana (ExD1 marked through Pw2 on 13.11.2014) ExD2 is the certified copy of FIR in Cr.No. 287/2011 of PS Mancherial registered on the complaint of Jugal Kishore, (ExD2 marked through Dw1 on 02.04.2015) MOs MARKED -NIL-
II ADDL.JUDL.MAGISTRATE OF I CLASS
MANCHERIAL