Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.1
IN THE COURT OF JUDICIAL MAGISTRATE OF I st CLASS,
SPL. MOBILE COURT – CUM – IV-AJCJ(JUNIOR DIVISION),
ONGOLE.
PRESENT: P.Bhanu Sai, II-Addl. Judicial Magistrate of I-Class, Ongole FAC / Judicial Magistrate of I-Class, Spl. Mobile Court – cum – IV-AJCJ, Ongole.
Tuesday, this the 12 th day of November, 2024
Calendar Case No.134 of 2016
Between :
Navuluri Anjaiah S/o.Bhushaiah, aged about 49 years, R/o.Mangamoor Donka, Ongole, Prakasam District.
… Complainant AND
Goddati Prasad Kumar S/o.Narasimha Rao, aged about 48 years R/o.Isukavagu Centre, Chimakurthy, Prakasam District. … Accused
This case is presented before me on 05.11.2024 for final hearing in the presence of Sri. A.Hari Babu, learned counsel for Complainant, and of Sri.G.Nagi Reddy, learned counsel for Accused, and upon hearing the arguments on both sides and after perusing the material available on record and having stood over for consideration till this day, this Court delivered the following:
// J U D G M E N T \\
1. This complaint is filed by the complainant U/sec.138 of
Negotiable Instrument Act, 1881, (for brevity ‘the NI Act’) with the following allegations:-
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2. The averments of the case of the Complainant as set out in the complaint in brief as follows:-
(a) That, on 13.08.2011 accused borrowed an amount of
Rs.2,50,000/- from complainant for his business purpose, and got executed a promissory note, agreeing to repay the same with an interest @ 24% per annum. In-spite of several demands made by the complainant, accused had issued a cheque bearing No.390969 for Rs.1,50,000/- on 24.06.2013 drawn on ING Vysya Bank, Ongole towards part payment of the amount due by accused under the promissory note dated 13.08.2011.
(b) It is his further case that, he presented the above said cheque for collection through his banker i.e., Bank of India on 27.06.2013 for collection. It was returned with an endorsement of “Account Closed” and the same was issued with a memo on 28.06.2013. Thereafter, the complainant got issued a legal notice to the accused through registered post with acknowledgment on 27.07.2013 requesting him for payment of the cheque amount, and accused received the register notice on 01.08.2013 but the accused did not gave any reply to the legal notice. Therefore, the complainant constrained to file this complaint U/sec.138 of Negotiable
Instrument Act, against the accused.
3. The complaint was taken on file by my Learned Predecessor for the offence Punishable U/sec.138 NI Act against the accused.
4. After serving of summons, on appearance of accused before this court, the copies of documents were furnished to the accused as required U/sec.207 Cr.P.C.
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.3
5. Then, the accused was examined U/sec.251 Cr.P.C and the substance of accusation levelled against him, in the complaint was read over and explained to him in Telugu for which, he denied the same and pleaded not guilty and claimed to be tried.
6. In order to prove the case of the complainant, he examined himself as PW1, and One Kalluri Butchaiah examined as PW2, and Exs.P1 to
P7 were marked, on his behalf, the details of which are mentioned at the appendix of evidence.
7. After closure of complainant side evidence and the accused was examined U/sec.313 Cr.P.C and the incriminating material against him in the evidence of PW1 and PW2 was explained to him in Telugu, for which, he denied the same and reported defence evidence. On behalf of the defence, accused got himself examined as DW1.
8. Heard arguments.
The Learned Counsel for the complainant filed written arguments and also submitted oral arguments that the complainant was able to prove the guilt of the accused through the evidence and though accused tried to rebut the presumptions, he failed to do so and though he had taken different pleas of defence, to evade the liabilities of one and all and inspite of his efforts to rebut the evidence he had not succeeded, thus the accused is entitled for conviction and as such, prayed to convict the accused.
On the other hand the learned defence counsel submitted his arguments stating that, by the date of issuing the cheque to PW1, the
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.4 account of the accused was already closed in the year 2007 itself thereby, the present complaint is not maintainable. Further, the learned defence counsel submitted that, there is no source of income to the complainant to lent the amount to the accused. Thereby, there is a difference of ink in the columns of the cheque, which clearly shows that, the present case was falsely foisted against the accused. The accused also contended that, the complainant herein is doing money lending business, though the cheque got marked under Ex.P2 it was in the name of the proprietorship concerned in the name and style of M/s. S.V. Exports but the complainant failed to show the proprietorship concerned as a party to the present complaint. Thereby, the present complaint is not maintainable. The another defence raised by the accused as per his chief examination affidavit that, the cheque was issued for security purpose and it was manipulated by the complainant and thereby prays to dismiss the complaint.
9.Here it is pertinent to mention that, though the Hon’ble Apex
Court in Catena of Judgments opined that, the accused should come in the witness box and deposed his evidence by way of chief examination. But in the year 2022 the accused had filed his chief examination affidavit before my learned predecessor and the same was recorded and since then the case was posted for cross examination of the accused, later due to the absence of the accused this court got issued Non Bailable Warrant against him. Thereby, there is no opportunity for me to go back, when the accused is produced before this court on execution of NBW, hence proceeded further. Further, as per sec.461, 462 of Cr.P.C., there is no embargo on
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.5 receipt of the chief examination affidavit of the accused to vitiate entire trial proceedings. Hence, inclined to consider the contents of chief examination affidavit of the accused as his evidence to save the valuable time of the court since the case is of 2016.
To support the contention of both sides, both counsel’s had filed several citations. On behalf of the complainant the following citations was filed.
1. Bir Singh Vs. Mukesh Kumar.
2. Suman Devi Vs. Chhatarpal.
3. Jagdev Singh Vs. Sudhir Nichal.
4. Manish Gupta Vs. M/s. Uday Estate Pvt. Ltd and others.
5. Satyaveer Singh Vs. Suraj.
6. Rajesh Jain Vs. Ajay Singh.
7. P.Rasiya Vs. Abdul Nazer.
8.Tedhi Singh Vs. Narayan Dass Mahant.
On behalf of the accused the following citations was filed by him.
1. Prem Raj Vs. Poonamma Menon and another 2024 (3) ALD (Crl.) 281 (SC).
2. Urban Co-operative Credit Society, Borsad Vs. State of Gujarat and another 2004 (2) ALD (Crl.) 54 (Guj).
3. Smt. Pushpa Devi Vs. Smt. Sushila.
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.6
10. Now the point of determination is:-
(a) Whether there existed any legally enforceable debt between the complainant and the accused?
(b) Whether the accused issued cheque for in discharge of such legally enforceable debt?
(c) Whether the accused is able to rebut the evidence of the complainant? and If so, what extent?
(d) Whether the complainant could be able to bring home the guilt of accused for the offence charge U/sec.138 of Negotiable Instrument Act, 1881?
Since the above points are interrelated to each other, this court is inclined to discuss the same together.
11.To prove the case of the complainant, the complainant was examined as PW1/N.Anjaiah, in his chief affidavit stated that, the accused borrowed an amount of Rs.2,50,000/-/- on 13.08.2011 for his business purpose i.e., M/s. S.V. Exports by executing a promissory note i.e,. Ex.P1, and agreeing to repay the same with interest @ 24% per annum either to complainant, or to his order on demand. In-spite of several demands made by complainant to the accused, but accused did not repay the said debt, and subsequently he issued a cheque bearing No.390969 dt.24.06.2013 i.e.,
Ex.P2/Cheque for an amount of Rs.1,50,000/- drawn on ING Vysya Bank,
Ongole Branch, to the complainant towards part payment of the said promissory note debt. On 27.06.2013 he presented the said cheque for collection through his banker i.e., ING Vysya Bank, Ongole Branch, and the said cheque was returned with a memo dt.28.06.2013 i.e., Ex.P3, with an endorsement that “Account closed”.Thereafter, the complainant got
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.7 issued a legal notice to the accused on 27.07.2013 i.e., Ex.P4, and the same was issuance of legal notice I.e, Ex.P5 and postal acknowledgment dt.01.08.2013 i.e., Ex.P6. He filed civil suit O.S 558/2014 on the file of the
Hon’ble Addl. Senior Civil Judge Court, Ongole and the same was decreed in
his favour on 02.02.2015 i.e., Ex.P7. Therefore, the complainant constrained to file this complaint U/sec. 138 of NI Act against the accused and punished according to law.
12.PW2/K.Butchaiah, in his chief examination affidavit stated that,
On 13.08.2011 accused borrowed an amount of Rs.2,50,000/- from the complainant for his business purpose by executing a promissory note agreeing to repay the same with an interest @ 24% per annum either to the complainant or to his order on demand. He was present at the time of Ex.P1 transaction. The accused executed a promissory note in favour of the PW1 on the same day itself. On request of both parties One Uppalapati Anjaiah scribe the said promissory note and he is the first attestor and N.Vasu Vara
Kumar is the Second attestor of Ex.P1.
13.To rebut the complainant case, accused himself examined as
DW1.
14.DW1/G.Prasad Kumar, in his chief examination affidavit submitted that, he do not know PW2, Vasu Vara Kumar and U.Anjaiah, he never borrowed an amount of Rs.2,50,000/- on 13.08.2011, and he did not executed any promissory note in favour of PW1 in the presence of witnesses. Later, PW1 never demanded to him to pay the amount. On 24.06.2013 he did not issue any cheque bearing No.390969 for
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.8
Rs.1,50,000/- of ING Vysya Bank, Ongole branch towards part payment of the Ex.P1/Promissory note amount. In the year 2007 Challagolusula
Ramanjaneyulu participated society elections, at that time the he borrowed an amount of Rs.20,000/- from PW1, at that time PW1 received one empty promissory note and empty cheque from him as security purpose. Previously he does business in the name and style of S.V. Exports, Chimakurthy, and he is having an account in ING Vysya Bank, Ongole and the same account was closed on 07.04.2007. He filed the letter issued by the Branch Manager
ING Vysya, Ongole. later, PW1 filed a civil suit O.S No.558/2014 before the
Hon’ble Addl. Senior Civil Judge’s court, Ongole, and in that suit he was
exparte.
15. Before appreciating the evidences and merits of the complaint, it would be appropriate to refer to the basic ingredients of Section 138 of
Negotiable Instrument Act which are as follows;-
a) The accused issued the cheque on an account maintained by them with a Bank.
b) The said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability. Explanation. - For the purposes of this section, "debt or other liability" means a “legally enforceable debt or other liability."
c) The said cheque had been presented to the Bank within the period of its validity i.e. 3 months now (previously 6 months).
d) The aforesaid cheque when presented for encashment, was returned unpaid/dishonoured either because of the amount of money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged
to be paid from that account by an agreement made with that Bank.
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.9
e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
f) The Drawer of the cheque fails to make the payment within 15 days on the receipt of aforesaid legal notice of demand.
So, it is clear that, the drawer of a cheque shall be deemed to have committed an offence punishable U/sec.138 Negotiable Instrument
Act,1881, only when the aforesaid ingredients are satisfied.
16. Now, this court would like to consider whether the legal requirement for proof of section 138 of Negotiable Instrument Act, 1881, have been fulfilled or not?
17. THE FIRST DEFENCE:-
The first defence raised by the learned defence counsel that by the date of issuance of the alleged cheque by the accused the, his Bank account was already closed i.e., in the year 2007 itself thereby, the ingredients U/sec.138 of NI Act was not satisfied. Accordingly, the present complaint is not maintainable for which this court relied on the decision of the Hon’be Apex court in Lakshmi Dyechem Vs. State of Gujarat 2012 Lawsuit (SC) 782 wherein it was held that signature not tallied, image not found and account closed etc., are also grounds that the dishonour of the cheque. Thereby, the plea of the accused that account closed doesn’t comes under the purview of Sec.138 of NI Act is not maintainable as a valid defence. Accordingly, the point is answered in favour of the complainant.
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.10
18. THE SECOND DEFENCE:-
The second defence raised by the accused is that, there is no source of income to PW1 to lent the amount to the accused, for which he had relied on the admitted portion in the cross examination of PW1 that, he had not filed any income tax returns, during the year of lending amount to the accused. Thereby, PW1 is not in a position to explain whether he was in possession of Rs.2,50,000/- as on 13.08.2011. Though, to support his evidence PW2 got examined by the complainant he had failed to prove the source of income of PW1. Hence, the evidence of PW2 is not useful to the case of complaint. But on the careful scrutiny of the contents of chief examination of accused as DW1, he admitted about issuance of his empty signed promissory note and cheque towards security for the amount lent by the complainant to One Challagolusula Ramanjaneyulu, which clearly shows that, the complainant having source of income to lent the amount either to accused or to the 3rd party. Here this court relied on the decision supplied by complainant wherein of the Hon’ble Apex Court in Tedhi Singh Vs.
Narayan Dass Mahant, held that “It is the burden on the accused to establish that there is no consideration received and make a “probable defence’ to establish his/her case, but the same should not be initiated by him as the complainant need not confirm the presumption of consideration at his/her first instance during the proceedings u/sec.138 of N.I Act, 1881”.
Thereby the defence raised by the accused is not sustainable as he failed to rebut the presumption U/s 118 and 139 of the Act which
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.11 presumes that himself admitted that he had issued the cheque towards the security of debt.
To support the same this court relied on the decision of
THE HON’BLE APEX COURT IN TRIYAMBAK S. HEDGE VS. SRIPAD
2022(1) CIVIL COURT CASES 098(S.C.) “when the signature on cheque is not disputed presumption would arise section 139 of the Act in favour of the complainant who was holder of the cheque, said presumption remains till contrary is proved. To rebut the presumption U/sec.139 of the Act the accused should raise his defence at the time of his first available opportunity to the accused, when such contention also not put forth in statement recorded U/sec.313 Cr.P.C., the case put forth by the accused does not satisfy the requirement of rebuttal even if tested on touch stone of preponderance of probability.”
Also relied on Bir Singh Vs. Mukesh Kumar, wherein it was held that, “Even a blank cheque leaf, voluntarily singed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of NI Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In Jagdev Singh Vs.
Sudhir Nichal’s held that, The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption.
If he fails to do so, the court can straightaway proceed to convict him, subject to the satisfaction of the other ingredients of section 138. Also relied on theRajesh Jain Vs Ajay Singh, it was opined that, “when the court concluded that the signature had been admitted, the court ought to
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.12 have inquired into either of the two questions (depending on the method in which accused has chosen to rebut the presumption): has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque. In P.Rasiya Vs. Abdul
Nazer, held that, “It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for discharge, in whole or in part, of any debt or other liability.” Therefore, once the initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under section 139 of NI Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in while or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case, it is for the accused to prove the contrary. Admittedly the Accused herein failed in the above aspect, accordingly the point is answered in favour of complainant.
19. THE THIRD DEFENCE:-
The third defence raised by the accused is that, the complainant is doing money lending business without having any license which was admitted by himself in his cross examination that “It is true I use to lent amount to others for interest, as I am doing money lending business”.
Thereby, the amount alleged to be lent to the accused is not legally
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.13 enforceable one to recover the same U/sec.138 of NI Act for which the learned counsel for complainant had relied on Rajvir Singh Vs. Geetha
Devi (2019) 2 B.C 603 page“Wherein the Hon’ble Apex Court held that, the provisions of registration of money lenders Act apply only to the suits and not to the complaint filed U/sec.138 of N.I Act”. Thereby, this court cannot dismiss the complaint as not maintainable on the ground that, the complainant is not registered money lender. Further, though, the accused raised the probable defence of money lending business by the complainant but failed to file any scrap of documents to establish the source of transaction by the complainant, by way of lending amount. Thereby, the defence raised by the accused holds no water. Accordingly, the point is answered in favour of complainant.
20. THE FOURTH DEFENCE:-
The fourth defence raised by the accused is that, there is difference of color of ink with respect to the filling of the columns of the cheque and the same is admitted by PW1 in his cross examination that “It is true name, amount in words and in numerical’s, account number in Ex.P2 is in Blue ink. Whereas, the signature is in Black ink”. Thereby, it is the plea of accused that in view of the admission of PW1 there are material alterations in the cheque by the complainant render the complaint is liable to the dismissed.Here, the learned defence counsel relied on Smt. Pushpa
Devi Vs Smt. Sushila “on the ground that the cheques were not filled by the respondent as she only knew how to sign. A bare look on both the cheques revealed that the body of the cheques was not filled by the person
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.14 who had signed it and also more than one pen had been used to fill the cheques in question. Hence complaint is liable to be dismissed”.But, when the accused himself admitted that, he had issued his signed cheque towards his security to One Challagolusula Ramanjaneyulu, it is his burden that the said cheque was not issued towards any discharge of legally enforceable debt to PW1.Here, this court placed reliance on
Ananda K. Karkera Vs. Yadav S.Amin AIR Online 2023 KAR 1814,
wherein it was held that “ When once the accused admitted that the cheque was signed by him but denied the transaction. It is well settled law that once cheque and signature are admitted by the drawer of the cheque, it is presumed that holder of the cheque received the cheque for discharging whole or in part of any debt or liability and such presumption is rebuttable by proving to the contrary. Mere denial of transaction and absence of any cogent evidence to show that cheque was not issued in discharge of loan was not sufficient to rebut the transaction. In absence of rebuttal on presumption u/sec.118 and 139, there is proof of commission of the offence”.
Also relied on the decision of Hon’ble High Court of Delhi in
CRLA No.1248/2019 in Amit Jain Vs. Sanjeev Kumar Singh and
another dated:16.08.2024, while placing reliance on the Basalingappa Vs.
Mudibasappa 2019 (5) SCC 418 that “ the burden of proof rests on the accused to establish a credible defence. The mere lack of document or questions about the complainant’s financial ability are not enough to over come this presumption. The presumption u/sec.139 of N.I Act cannot be
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.15 rebutted by mere denials or by exploiting in the complainant’s case. The accused must provide solid evidence to prove that the cheque was not issued to settle any debt or liability”.
But in the present case except raising the defences the accused had failed to prove that he had not issued Ex.P2/cheque for discharge of the amount under Ex.P1/Promissory note. Thereby the accused failed to established that why he failed to take any legal recourse against the complainant when his signed cheque was manipulated, being a person of ordinary prudence. On the other hand, the complainant proved the issuance of the cheque by the accused in discharge of the legally enforceable debt relying on the presumptions u/sec.139 of N.I Act. Accordingly, the point is answered in favour of the complainant.
21. THE LAST DEFENCE:-
The last defence raised by the accused is that, though the cheque under Ex.P2 was in the name of M/s. S.V.Exports but the complainant has shown the accused only as the party to the present complaint without showing the proprietorship concern. Thereby, the present complaint is not maintainable for which accused relied on the Prem Raj Vs.
Poonamma Menon and another 2024 (3) ALD (Crl.) 281 (SC)
“As between the civil and the criminal proceedings, we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.16 consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.” Also relied on Urban Co-operative Credit Society,
Borsad V. State of Gujarat and another 2004 (2) ALD (Crl.) 54 (Guj.)
“Negotiable Instrument Act, 1881 – section 138 -Cheque issued by Director of a company after the account of the company in the bank is closed –
Accused cannot be found guilty under section 138 – The cheque should be issued ‘on an account maintained”. for which it is the contention of the learned counsel for complainant that, when the legal entity of the accused is sole proprietorship concerned and when the accused had not denied the issuance of cheque and his proprietorship firm, thereby mere not showing the proprietorship firm as a party to the proceedings is not a sole ground to dismiss the case of the complainant for which the complainant had placed reliance of Suman Devi Vs. Chhatarpal “The very factum of the petitioner not having even raised any objection or challenge to the complaint or the summoning order on the ground, either that petitioner was arraigned in individual capacity or that the proprietorship firm was not arraigned, the settled law being that in case of a proprietorship concern, the same would not come within the ambit of section 141 of NI Act as it is only the sole proprietorship, who is liable. Taken from any which way this petition would not succeed.”
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.17
In the present except raising the several defences the accused had failed to prove that he had not issued Ex.P2/cheque for the discharge of cheque under Ex.P1/Promissory note. When it is the contention of the accused that his empty cheques and promissory notes issued to One
Challagolusula Ramanjaneyulu was manipulated by PW1, what prevented him to take legal recourse against PW1 and C.Ramanjaneyulu, being the man of ordinary prudence and admittedly no evidence was adduced on behalf of the accused about his steps for the return of his signed cheques and promissory notes from the complainant, which holds the presumption in favour of the complainant as good and the accused miserably failed to rebut the said presumption. Accordingly, the point is answered in favour of the complainant.
22.Now turning on the merits of the accused at hand, as can be seen from the material available on record though the accused either admitted or denied his liability. But it is the initial burden on the complainant to prove the basic facts for raising the statutory presumption in terms of section 139 of NI Act., for that purpose as discussed in earlier points in detail the complainant had proved all the mandatory ingredients u/sec.138 of NI Act, and it is not the contention of the accused that he has not issued the Ex.P2/Cheque.
23. It is also apposite to refer the dicta of our Hon’ble High Court rendered in SARDAR HARVINDER SINGH Vs. CHOBROLU HUTASANA
RAO [2016 (2) ALT (Crl.) 85 (AP)] wherein while considering the object
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.18 of the NI Act, and sections 138, 139, 141 and 142 thereof, it was held inter alia thus:
“…..showing undue sympathy to accused and imposing a sentence, which is not appropriate to the gravity of the offence, is not justified. The fact that, a decree was obtained in a civil is no ground to impose a sentence, which is not commensurate to the gravity of the offence.
It is not a case, where the amount covered by the cheque has been paid. Therefore, in the well considered view of this court, the sentence imposed in a case of this nature by the trial court does not sub-serve the object of the enactment of the provision as the sentence imposed is not of such nature as to give a proper effect to the object of the legislation. Having regard to the facts and the legal position obtaining, this court is of the view that the sentence of fine imposed against the accused by the trial court does not give proper effect to the object of the legislation and that the sentence of fine in a sum of
Rs.10,000/- coupled with in default sentence imposed defeats the very object of the enactment of section 138 NI
Act for more particularly when the accused had not admittedly paid the cheque amount till date.
Therefore, this court holds that the sentence imposed in this particular case against the accused is grossly inadequate.”
24.Keeping in mind the law laid down in the aforementioned judgment discussed above and turning to the facts of the case at hand, a careful consideration of the entire evidence of the complainant as PW1 and also that of PW2 coupled with Ex.P1 to P7 abundantly manifests that their
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.19 evidence is very categorical, consistent, reliable, and trustworthy and same inspires the credibility and confidence of the court to the effect that the complainant by name Navuluri Anajaiah lent a sum of Rs.2,50,000/- to accused, on 13.08.2011 agreed with an interest @ 24% per annum from the complainant and after receipt of the said cash consideration the accused executed Ex.P1/Promissory note in his favour, and that later on the demand by him the accused issued Ex.P2/Cheque for a sum of
Rs.1,50,000/- towards part payment of the said debt when the said cheque was presented in the bank for collection and the same was returned unpaid with an endorsement “Account closed” with return memo i.e., Ex.P3.
Subsequently, the complainant got issued a legal notice to the accused on 27.07.2013 i.e., Ex.P4, and the same was issuance of legal notice I.e,
Ex.P5 and postal acknowledgment dt.01.08.2013 i.e., Ex.P6. Later, he filed civil suit O.S 558/2014 on the file of the Hon’ble Addl Senior Civil Judge
Court Ongole and the same was decreed in his favour on 02.02.2015 i.e.,
Ex.P7 .
25. For the reasons discussed herein before and in the light of the
Judgments referred to herein above and viewed from any angle of the matter, I am of the considered and humble view that the complainant is successfully able to prove the guilt of the accused beyond all reasonable doubt for the offence punishable under Section 138 of the NI Act and consequently the accused is liable to be convicted and sentenced for the offence under Section 138 of the NI Act. The point is accordingly answered in the affirmative.
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.20
26. In the result, the accused is found guilty for the offence punishable U/sec.138 of the NI Act, and he is convicted U/sec.255(2) of
Cr.P.C.
Typed to my dictation directly on computer by the Stenographer, corrected and pronounced by me in open Court, this the, 12 th day of November, 2024.
Sd/- P.Bhanu Sai
II-Addl. Judicial Magistrate of I-class, Ongole, FAC / Judicial Magistrate of I Class, SMC-cum-IV-AJCJ Ongole.
27. Quantum of sentence:
When the accused is questioned on the quantum of sentence informing that, as per negotiable Instrument act, 1881 he can be sentenced imprisonment for a term, which may be extended to T wo(2) years or with finewhich maybe extended to Twice the amount of cheque or with both.
28. For which the accused pleaded that:
I am sugar patient, due to that I lost my two legs thumb fingers, and I have kidney problem also. I have children's they are studying. Hence, prays the Hon’ble Court to take lenient view in imposing sentence.
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.21
29.Having due regard to the nature of the offence proved against the accused, which is a socio-economic offence affecting the very credibility of the transactions being made through cheques which in turn also have great impact on the society at large, this Court is not inclined to invoke the provisions of Section 360 of the Cr.P.C. or the provisions of the Probation of
Offenders Act, 1958. However considering the mitigating circumstances put forth by the accused and his financial status, health. The accused is hereby sentenced to suffer simple imprisonment for a period of Twenty
Two(22) Days and also directed topay a fine of Rs.1,55,000/- (Rupees
One Lakh and Fifty Five thousand only). Out of the said amount of fine, a sum of Rs.1,50,000/- (Rupees One lakhs and fifty Thousand only) is directed to be paid to the complainant towards compensation within 30 days from this day and the rest of the fine amount of Rs.5,000/- (Rupees
Five thousand only) is directed to be remitted to the State forthwith. As seen from the record accused is in judicial custody from 22.10.2024 till date and the same is affirmed by accused and his counsel in open court.
Accordingly, accused is convicted and sentenced to undergo Simple imprisonment for Twenty Two days (22) days for the offence U/sec.138 of NI Act. Since the Accused is in Judicial Custody from 22.10.2024 to 12.11.2024 i.e., 22 days. Hence, the said period is give set off under section 428 of Cr.P.C. Office is also directed to furnish a copy of this
Judgment to the accused on free of cost forthwith and the accused is hereby directed to collect the same without fail. The Superintendent, District Jail,
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.22
Ongole is hereby directed to release forthwith if not required in any other case.
30.The accused is hereby informed that, he has got a right of appeal to assail this judgment before the Hon’ble Superior Court and in that regard he can also approach the Hon’ble District Legal Service Authority,
Ongole for seeking legal aid if he is inclined and so advised. A copy of this judgment shall also be submitted to the Hon’ble District Legal Services
Authority, Ongole, in deference to the instructions of our Hon’ble High court contained in circular No.3/2018 in R.O.C No.228/SO/2018, dt 15.03.2018.
Typed to my dictation directly on computer by the Stenographer , corrected and pronounced by me in open Court, this the, 12 th day of November, 2024.
Sd/-P.B.S
II-Addl. Judicial Magistrate of I-class, Ongole, FAC / Judicial Magistrate of I Class, SMC-cum-IV-AJCJ Ongole.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT:- FOR DEFENCE:-
PW1: N.Anjaiah DW1: G.Prasad Kumar PW2: K.Butchaiah
EXHIBITS MARKED
FOR COMPLAINANT :-
Ex.P1:- Certified copy of promissory note executed by the accused in his favour of Rs.2,50,000/- dt.13.08.2011.
Ex.P2:- Cheque bearing No.390969 drawn on ING Vysya Bank, Ongole by the accused in his favour of Rs.1,50,000/- dt.24.06.2013.
Ex.P3:- Cheque return memo dated 28.06.2013 issued by the ING Vysya
Bank, Ongole in respect of dishonor of Ex.P2 for the reason account closed.
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.23
Ex.P4:- Office copy of legal notice dt.27.07.2013 that was issued on his behalf by his advocate and addressed to the accused.
Ex.P5:- Postal receipt dt.27.07.2013 in respect of issuance of legal notice to the accused by his advocate.
Ex.P6:- Postal Acknowledgment dt.01.08.2013.
Ex.P7:- Certified copy of the Judgment and decree in O.S.558/2014, dt.02.02.2015 on the file of the Hon’ble Addl. Senior Civil Judge’s
Court, Ongole.
FOR DEFENCE : NIL
MATERIAL OBJECTS
– Nil –
Sd/-P.B.S
II-Addl. Judicial Magistrate of I-class, Ongole, FAC / Judicial Magistrate of I Class, SMC-cum-IV-AJCJ Ongole.
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.24
CALENDER AND JUDGMENT
IN THE COURT OF JUDICIAL MAGISTRATE OF I st CLASS,
SPL. MOBILE COURT – CUM – IV-AJCJ(JUNIOR DIVISION),
ONGOLE.
PRESENT: P.Bhanu Sai, II-Addl. Judicial Magistrate of I-Class, Ongole, FAC / Judicial Magistrate of I-Class, Spl. Mobile Court – cum – IV-AJCJ, Ongole.
Tuesday, this the 12 th day of November, 2024
Calendar Case No.134 of 2016
Between :-
Navuluri Anjaiah S/o.Bhushaiah, aged about 49 years, R/o.Mangamoor Donka, Ongole, Prakasam District.
… Complainant AND
Goddati Prasad Kumar S/o.Narasimha Rao, aged about 48 years R/o.Isukavagu Centre, Chimakurthy, Prakasam District. … Accused
Charges under section(s) : U/sec. 138 of NI Act.
Date of occurrence:24-06-2013 Date of report:12-09-2013 Date of appearance:29-01-2015 Date of commencement of trial:05-03-2019 Date of closure of trial:24-10-2024 Date of hearing :05-11-2024 Date of Judgment:12-11-2024
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.25
Result of the Case : In the result, and for the reasons indicated above, this court find that, accused is found guilty of the offence punishable under section 138 of N.I Act. Accordingly, accused is convicted under section 255(2) of Cr.P.C. The accused is hereby sentenced to suffer simple imprisonment for a period of Twenty Two(22) Days and also directed to pay a fine of Rs.1,55,000/- (Rupees One Lakh and Fifty Five thousand only). Out of the said amount of fine, a sum of Rs.1,50,000/- (Rupees One lakhs and fifty Thousand only) is directed to be paid to the complainant towards compensation within 30 days from this day and the rest of the fine amount of Rs.5,000/- (Rupees Five thousand only) is directed to be remitted to the State forthwith. As seen from the record accused is in judicial custody from 22.10.2024 till date and the same is affirmed by accused and his counsel in open court. Accordingly, accused is convicted and sentenced to undergo Simple imprisonment for Twenty two days (22) days for the offence U/sec.138 of NI Act. Since the Accused is in
Judicial Custody from 22.10.2024 to 12.11.2024 i.e., 22 days. Hence, the said period is give set off under section 428 of Cr.P.C. Office is also directed to furnish a copy of this Judgment to the accused on free of cost forthwith and the accused is hereby directed to collect the same without fail.
The Superintendent, District Jail, Ongole is hereby directed to release forthwith if not required in any other case.
The accused is hereby informed that, he has got a right of appeal to assail this judgment before the Hon’ble Superior Court and in that regard he can also approach the Hon’ble District Legal Service Authority, Ongole for seeking legal aid if he is inclined and so advised. A copy of this judgment shall also be submitted to the Hon’ble District Legal Services authority,
Ongole, in deference to the instructions of our Hon’ble High Court contained in circular No.3/2018 in R.O.C No.228/SO/2018, dt 15.03.2018.
Compensation amount of Rs.1,50,000/- : Not Paid
Fine amount of Rs.5,000/- paid by the accused on 12.11.2024 vide Challan
CFMS Transaction ID 80150022852024.
Spl. Mobile Court, Ongole CC.No.134 of 2016, Page No.26
Explanation for the delay :The case was taken on file on 07.11.2013. On 29.01.2015 case copies furnished to the accused. On 19.02.2015 accused was examined u/s.251 Cr.P.C, accusation u/sec.138 of
NI Act, have been framed, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. Later, the entire record is transferred from II-AMM Court, Ongole to this Court as per the directions of the Hon’ble Prl. District & sessions Judge, Ongole communicated in
Dis. No.912 dt.15.02.2016, and the same was renumbered this court as
CC. No.134/2016 and posted to 10.05.2016. On behalf of complainant, PW1
and PW2 were examined, Exs.P1 to P7 were marked. After closure of the complainant side evidence, on 09.12.2021 accused was examined u/sec.313
Cr.P.C by explaining the incriminating portion of complainant evidence, in question form, in Telugu, for which he denied, reported defence evidence. On 15.12.2022 accused was examined as DW1. After that, the accused taking number of adjournments for cross of DW1. On 25.05.2023 this court issued
NBW against accused on his non appearance of this court. On 22.10.2024 accused was produced before this court on execution of NBW by the Advocate
Commissioner, this court send the accused to Judicial Remand. On 24.10.2024 the defence evidence is closed and posted for arguments, and on 05.11.2024 heard arguments on both sides. On 12.11.2024 Judgment
pronounced in open court. Hence the delay.
Sd/-P.B.S
II-Addl. Judicial Magistrate of I-class, Ongole, FAC / Judicial Magistrate of I Class, SMC-cum-IV-AJCJ Ongole.
Copy Submitted to:-
1) The Hon’ble I-Addl. District & Sessions Judge, Prakasam District, Ongole.
2) The Hon’ble Secretary, District Legal Service Authority, Ongole.