IN THE COURT OF PRINCIPAL SESSIONS JUDGE
AT: BHADRADRI KOTHAGUDEM
THURSDAY, THIS THE TWENTIETH DAY OF APRIL, 2023
Present: P. Chandra Sekhara Prasad ,
Principal Sessions Judge,
Bhadradri Kothagudem,
CRIMINAL APPEAL No.51/2019
From Which Court the:Judicial Magistrate of First Class, appeal is preferred Bhadrachalam
LowerCourtCase:CC No.21 of 2014 Number
Description of Appellant: Keesara Jagadeesh Reddy, S/o Narayana Reddy, aged about 59 years, R/o H.No.4-62/16, Yellareddyguda village, Narkatpally Mandal, Nalgonda District,
Descriptionofthe: 1. Badam Ramesh Reddy, Respondent S/o Nagi Reddy, aged about 42 years, Business, R/o Laxmipuram Village, Burgampahad Mandal, Khammam District.
2. The State, Through Public Prosecutor, Kothagudem
SentenceorOrder:The accused was found guilty for the passed by the Loweroffence under section 138 of the Court Negotiable Instruments Act, 1881 and he was convicted and sentenced him to undergo Simple Imprisonment for a period of SIX months and is directed to pay fine of Rs.5,000/-. In default of payment of fine he shall suffer simple imprisonment for a period of one month and he is further directed to pay compensation of Rs.10,00,000/- under section 357 (3) Cr.P.C., to the
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complainant within one month.
Whetherconfirmed,:
REVERSED
modified or reversed
This appeal is coming on 11.04.2023, before me, for hearing in the presence of Sri Swamy Ramesh Kumar, Advocate for the Appellant/Accused; Sri A. Ramesh, advocate for the 1st respondent/complainant; and of Sri P. Radha Krishna Murthy, Public Prosecutor for the State; and upon perusal of the material papers on record; and the case having been heard and stood over for consideration till this day, this Court delivered the following judgment:
::J U D G M E N T::
1.This is a Criminal Appeal filed under Section 374 (3) of
Cr.P.C., by the appellant/accused questioning the judgment and sentence passed by the Judicial Magistrate of First Class,
Bhadrachalam, in CC No.21 of 2014 dated 03.04.2019, for the offence under Section 138 of Negotiable Instruments Act, 1881.
The brief facts of the case are, as follows:
(i)On 10.09.2010, out of acquaintance, the accused borrowed Rs.5,00,000/- from the complainant, with a promise to repay the same with interest @ 24% per annum and on his persistent demands, the accused issued a cheque bearing
No.297786 dated 26.03.2013, for Rs.8,00,000/- drawn on
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Andhra Bank, Bhadrachalam, towards discharge of said legally enforceable debt. When the complainant presented the said cheque, the same was returned along with a memo on 26.03.2013, stating that ‘no such account’. On 28.03.2013, the complainant got issued legal notice to the accused. Despite receipt of legal notice, the accused did not pay cheque amount.
Hence, the complaint.
(ii)The case was taken on file, for the offence under
Section 138 of Negotiable Instruments Act, 1881 and numbered as CC No.21 of 2014, on the file of Judicial Magistrate of First
Class, Bhadrachalam. On appearance of the accused in the
Court, he was furnished with copies of the documents, as contemplated under Section 207 of Cr.P.C. He was examined under Section 251 of Cr.P.C, for which the accused pleaded not guilty and claimed to be tried.
(iii)During course of trial, on behalf of the complainant,
P.Ws-1 and 2 were examined and P-1 to P-7, were exhibited.
After closing evidence on the complainant side, the accused was examined under Section 313 Cr.P.C, explained the incriminating material found against him. He denied the same.
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On behalf of the accused, D.W-1 was examined and D-1 to D-4 were exhibited.
(iv)The learned Judicial Magistrate of First Class,
Bhadrachalam, after hearing arguments, on both sides and appreciation of oral and documentary evidence adduced by both of them, has found the accused guilty for the offence under Section 138 of Negotiable Instruments Act,1881 and sentenced him to undergo Simple Imprisonment for a period of
SIX months and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment for a period of ONE month and is further directed to pay a compensation of Rs.10,00,000/- to the complainant within one month, by judgment dated 03.04.2019.
2.Aggrieved by the same, the appellant/accused preferred this appeal challenging the judgment and sentence passed by the court below, on the ground that the trial court failed to appreciate the evidence on record, in proper manner and failed to appreciate the evidence produced by the accused and that erroneously gave conviction to the accused and that the complainant failed to prove the legally enforceable debt and that no notice was served on the accused and that Ex.P-1 and
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P-2 are not genuine and that there was no cause of action and that the mandate requirements of Section 138 are not made out and as such the judgment and sentence passed by the trial court is liable to be set aside.
3.This Court heard the learned counsels appearing for the appellant/accused and the respondent/complainant.
4. Now, the points that arise for determination are as follows:
1. Whether the complainant (the 1 st
respondent herein) has proved the guilt of
the accused (appellant herein) for the
offence punishable under Section 138 of
the Negotiable Instruments Act, 1881,
beyond reasonable doubt?
2. Whether the impugned judgment
dated 03.04.2019 of the trial court in
recording the conviction of the
appellant/accused suffers from any
infirmity or irregularity or illegality and
calls for any interference by this court?
3. To what result?
5.POINT No.1:It is the specific case of the complainant (P.W-1) that on 10.09.2010, out of acquaintance, the accused borrowed Rs.5,00,000/- from him, for his family necessities, by
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executing a promissory note (Ex.P-1) with a promise to repay the same with interest @ 24 % per annum and later, on his persistent demands, he issued a cheque (Ex.P-2) bearing
No.297786 dated 26.03.2013, for Rs.8,00,000/- towards discharge of said debt and when he presented the said cheque (Ex.P-2), for encashment, the same was dishonored with an endorsement as “no such account” and it was informed to him under memos (Ex.P-3 and P-4) and that finally, he got issued legal notice (Ex.P-5). Ex.P-6 is the postal receipt and Ex.P-7 is the postal acknowledgment.
6.The learned counsel appearing for the accused contends that there was no legally enforceable debt and that the statutory notice as required under Section 138 (b) of Negotiable
Instruments Act, 1881 was not served on the accused and that the essential ingredients to attract the provisions under Section 138 of Negotiable Instruments Act, 1881 are not made out and as such the accused is entitled for acquittal.
7.It is pertinent to see as to how far the complainant (P.W-1) has established the essential ingredients to attract the provision
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under Section 138 of Negotiable Instruments Act, 1881 against the accused. The main points that arise for consideration are as follows:
1. Whether the accused has executed the
promissory note (Ex.P-1) and issued
cheque (Ex.P-2) towards discharge of debt,
covered under Ex.P-1 and whether there is
legally enforceable debt or liability?
2. Whether the statutory notice issued under
section 138 (b) of Negotiable Instruments
Act, 1881 was served on the accused?
3. Whether the complainant has proved his
case and established the guilt of the
accused for the offence under section 138
of Negotiable Instruments Act 1881 beyond
all reasonable doubt?
8.The complainant (P.W-1) has filed an affidavit in lieu of his chief examination under section 145 (1) of Negotiable
Instruments Act, 1881. The evidence of P.W-1 is nothing but replica of contents of complaint. The evidence of P.W-1 reveals that on 10.09.2010, the accused borrowed Rs.5,00,000/- from him, by executing a promissory note (Ex.P-1) and later, on his demands, the accused issued a cheque (Ex.P-2) bearing
No.297786 dated 26.03.2013, for Rs.8,00,000/- towards discharge of said debt and that when the said cheque (Ex.P-2)
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was presented, the same was returned with an endorsement as “no such account”.
9.In support of his contention, the complainant (P.W-1) also examined, one more witness as P.W-2, who is said to be one of the attestors to promissory note (Ex.P-1). His evidence is also on the same lines as that of the evidence of P.W-1.
10.The learned counsel appearing for the accused contends that presumption under Section 139 is rebuttal and standard of proof is not same, as is for the proof of criminal charge. On this point, he has relied upon following citations:
1.Kamal General Store V. Kishore Lal Vij reported in 2009 (2) ALD (NOC) 18 (HP).
2.Shaji V. Ignatious reported in 2009 (2) ALD (Crl.) (NOC) 15 (Ker.)
11.No doubt, the accused is not disputing his signatures on the promissory note (Ex.P-1) and cheque (Ex.P-2). It is well settled, that as the signatures on the cheques are admitted to be that of the accused, the presumption envisaged in section 118 of
Negotiable Instruments Act, 1881 could legally be inferred that
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the cheque was drawn for consideration on the date, which the cheque bears. Section 139 of Negotiable Instruments Act, 1881 enjoins on the count to presume that the holder of the cheque received it for the discharge of any debt or liability as held by the
Hon’ble Supreme Court, in the case of K. Bhaskaran V.
Sankaran Vaidhyan Balan and another1 .It is also observed in the said citation that the burden on the accused to rebut the presumption.
12.In a citation of Hiten P. Dalal V. Bratindranath
Banerjee2 wherein it was held that:
“(B) Negotiable Instruments Act, 1881-Ss.138, 139, 118- Presumptions under-Nature of–Standard of requisite proof for rebuttal-Held, it is obligatory on the court to presume the liability of the drawer for the amount of the cheque in every case where the factual basis for such presumption is established-Such a presumption can be rebutted by the drawer by proving on evidence that the holder of cheque had not received the same towards the discharge of any liability-Such rebuttal does not have to be conclusively established-The court must either believe the defence to exist or consider its existence to be reasonably probable-But mere explanation given by drawer, although plausible, held, would not suffice-On facts, held, the appellant drawer failed to discharge the burden of proof to rebut statutory presumptions-Evidence Act, 1872, Ss.114, 101-103, 3 and 4-Criminal Trial-Presumption of innocence-Presumptions under Ss.118,138, and 139 of Negotiable Instruments Act, if in conflict with-Words and Phrase-“Shall presume”, may presume”.
1 2000 (1) ALT (Crl.) 42 (SC), 22001 Supreme Court Cases (Cri.) 960
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13.Thus, it is clear that such a presumption can be rebutted by the drawer by proving on evidence that the holder of cheque had not received the same towards the discharge of any liability and such rebuttal does not have to be conclusively established and that the court must either believe the defence to exist or consider its existence to be reasonably probable.
14.In view of clear provision of Section 139 of Negotiable
Instruments Act 1881 and catena of decisions of the Honourable
Apex court, the burden heavily lies on the accused to prove that there is no subsisting liability. The accused may prove non- existence of consideration and debt by leading direct evidence or bring on record something, which is probable for getting burden of proof shifted to the complainant and the accused may also reply upon circumstantial evidence or presumptions of facts, as under section 114 of Evidence Act, or even averments in complaint, case set out in statuary notice and evidence adduced by complaint during trial as held by the Hon’ble Supreme Court, in the case of Krishna Janardhan Bhat V. Dattatraya G.
Hegde3.
3AIR 2008 Supreme Court 1325 (1)
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15.The contention of the accused is that the subject promissory note (Ex.P-1) and cheque (Ex.P-2) were not issued towards discharge and that he lost a bag containing blank signed promissory note and cheques, while checking Devastanam buses as transport agent. The accused was examined as D.W-1. His evidence reveals that on 15.03.2003, while he was checking
Devastanam buses, on behalf of Sri Sitarama Chandra Swamy wari Devastanam as its Transport Agent, he lost his bag containing signed blank demand promissory notes and cheques meant for transport use pertaining to A/c No.PCD-14 of Andhra
Bank, Bhadrachalam branch and SB A/c No.AG238 of State Bank of Hyderabad, Bhadrachalam branch.
16.D.W-1 also deposes that he enquired about his bag and later on 18.03.2003, he has approached his bankers and informed the matter and closed the account on 18.03.2003 and that thereafter, on 22.03.2003, he approached the police
Dummugudem and lodged a complaint about missing of bag containing blank signed demand promissory notes and cheques and that the SHO PS Dummugudem acknowledged his report
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under receipt (Ex.D-2) No.41 of 22.03.2003, and later, the Sub-
Inspector of police gave a certificate (Ex.D-3) dated 07.06.2003 to the effect that the bag was not traced. Ex.D-1 is the current account pass book of Andhra Bank of the accused.
17.Admittedly, Ex.D-2 is prior to cheque (Ex.P-2) dated 26.03.2013. There is clear mention, in Ex.D-2 and D-3 that the accused lost bag containing singed cheques and promissory notes and that the same was not traced.
18.It is suggested to D.W-1 that he never lost his bag and that he did not give report to the police on the same day, for which
D.W-1 denied the said suggestions. On the other hand, the complainant did not dispute about Ex.D-2 and D-3. Absolutely, there is no cross-examination on the said documents. There is nothing to discard the said documents (Ex.D-1 to D-4). Except vague suggestions, nothing has been elicited to disbelieve the testimony of D.W-1 that the lost the cheques.
19.The accused has pleaded and put suggestions to the complainant (P.W-1) that the complainant has no capacity to lend money. P.W-1 has admitted that he did not mention source of
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Rs.5 Lacks, mode of payment whether by way of cash or cheque and that he did not file any document to show he had financial capacity to lend such amount. However, P.W-1 denied the suggestion that he has no financial capacity to and Rs.5 Lakhs, he did not file any document to show his nature of business, source of income and his capacity to lend such amount during said period, as contended by the learned counsel appearing for the accused.
20.Considering the oral and documentary evidence adduced by the complainant (P.W-1) and the accused (D.W-1), it is crystal clear that the accused has discharged his burden by placing acceptable evidence that there was no money transaction in between the complainant and the accused and that the holder (complainant) of cheque had not received the same, towards the discharge of any liability and thereby the accused has proved non-existence of consideration and debt by leading direct evidence. The accused has discharged his burden of proof and the burden has shifted to the complainant (P.W-1).
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21.The contention of the accused is that the complainant has not filed any proof of documents to show that he was due to the complainant. On this point he has relied upon the following citations:
1. Sayeed Iqbal Vakil V. Javed Abdul Latif Shaikh and another reported in 2009 (2) ALD (Crl.) (NOC) 28 (Bom.);
2. Jagdish V. Satyanarayan reported in 2009 (2) ALD (Crl.) (NOC) 30 (MP);
3. A. Boosanrao V. Purushottmdas Pantani and anotherreported in1998 Crl.L.J 906(AP).
22.In the instant case also, the complainant has miserably failed to his financial capacity, nature of his business and that he was having cash of Rs.5 Lakhs as on the date of asserted transaction. This aspect is also evident that no legal enforceable debt is in existence and that the accused has issued cheque in question towards discharge of asserted liability.
23.The learned counsel appearing for the accused vehemently contends that notice was not served on the accused person and
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that complainant had not complied with the requirement of giving notice in terms of clause (b) of proviso to section 138 (b) of Negotiable Instruments Act, 1881.
24. A reading of proviso (c) to Section 138 of Negotiable
Instruments Act, 1881, is manifestly clear that the criminal liability can be fastened on the accused person only if he has not complied with paying the amount within 15 days from the date of receipt of the notice. Otherwise such criminal liability cannot be put oil his shoulders. Therefore, the main cause of action for putting the wheel of criminal prosecution in motion arises only from the date of receipt of the notice by the drawer or from the date of his knowledge of the notice or from the date of his refusal to receive the notice.
25.In case of Subash Chander V. Pritam Singh4 wherein it was held that:
“there was necessity to the complainant to prove facts constituting sending of notice and its receipts and that presumption as to service of notice or deemed service is not matter of course in all cases”.
42003 Crl.L.J 2157 J&K
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26.In the case on hand, the contention of the complainant is that on 28.03.2013, he got issued legal notice (Ex.P-5) to the accused and that the accused refused the said notice on 08.04.2003. Ex.P-6 is the postal receipt and Ex.P-7 is the un- served postal cover with an endorsement as refused.
27.It is the specific case of the accused that the notice (Ex.P-
5) was sent to wrong addressed by showing door number as “4- 62/16” and that his correct addresses is “4-62/104.” The accused has filed his Aadhar card (Ex.D-4) to prove his residential address. On Ex.D-4, the residential address of the accused is mentioned as “H.No.4-62/104, Ramnagar Colony,
Yellareddyguda, Narkatpally Mandal, Nalgonda”.
28.As seen from the legal notice (Ex.P-5), postal receipt (Ex.P-
6) and un-served postal cover (Ex.P-7), the address was mentionedas“H.No.4-62/16,RamnagarColony,
Yellareddyguda, Narkatpally Mandal, Nalgonda District”. No evidence is adduced by the complainant that the address shown, in legal notice (Ex.P-5) and on postal cover (Ex.P-7) is the correct address of the accused. On the other hand, the
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complainant is not disputed the address of the accused shown, on his Aadhar card (Ex.D-4). In absence of any evidence, it cannot be said that the legal notice (Ex.P-5) was sent to the correct address of the accused.
29.The learned counsel appearing for the accused contends that the complainant also did not examine the postal authorities to establish that the accused refused to receive the notice.
30.In case of Jayachandran V. Baburaj5 wherein it was held that:
“the complainant has failed to examine the postman to establish that accused has refused to receive the notice.”
31.In the instant case on hand, the endorsement of the postal authorities on un-served postal cover (Ex.P-7) shows that the same was returned as “refused”. In such circumstance, it is open to the complainant to establish that when the postman went to the address shown on postal cover to serve the same, the accused was present there physically and refused to receive the same, by examining the postman and the neighbours. But 51998 Crl.L.J 3671 (Ker)
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such effort has not been taken by the complainant, before the trial court to satisfy proviso (c) to Section 138 of Negotiable
Instruments Act, 1881. There is nothing to show that the postman offered to serve notice to the accused and that he refused to receive the same. Therefore, it can be safely conclude that the notice was not sent to the accused, at his correct address. If the accused had been served the legal notice, he would have issued suitable reply notice, as rightly contended by the learned counsel appearing for the accused.
32.In the case of Himanshu V. B. Shivamurthy & Another6, the factual matrix involved in said is that the complainant filed a complaint under Section 138 of the Negotiable Instrument Act, 1881, against the director of a company who is the authorized signatory on behalf of the company and issued a cheque in discharge of the liability of the company in favour of the complainant. In the said complaint the company was not arraigned as accused. No demand notice was served upon the company. Under such factual backdrop the Hon'ble Supreme
Court held that in the absence of the company being arraigned 6(2019) 3 SCC 797
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as accused, prosecution of appellant/accused is not maintainable. As there was no demand notice, against company and proceedings under Section 138 of the Negotiable
Instrument Act, 1881, was not applied with, the complaint under Section 138 of Negotiable Instruments Act, 1881, was quashed by the Supreme Court.
33. In the instant case, no notice was at all served upon the accused. Therefore, the written complaint is premature and cognizance on the basis of such complaint was bad, as held by the Hon’ble Apex Court in the case of M/s. Rahul Builders V.
M/S. Arihant Fertilizers & Another7. In the said decision, it was held by the Hon'ble Supreme Court that service of notice is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main Section would not. Unless a notice is served in conformity with Proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable. The statue envisages application of 7(2008) 2 SCC 321
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the penal provision. A penal provisions should be construed strictly; the condition precedent where for his service of notice.
34. In a decision of the Hon’ble Division Bench of Orissa High
Court in Kailash Chandra Mishra V. Ajitsinh Ulhasrao
Babar & Others8. In the said case the registered envelope containing demand notice was returned to the complainant with the postal endorsement, "the addressee was always found absent". It was contended on behalf of the complainant that the demand notice ought to be held to be a deemed service upon the accused. The Hon’ble Division Bench of the Orissa High
Court rejected such contention holding, inter alia, that such submission was wholly untenable in law and cannot be accepted at all in the reason that notice must be served upon the addressee as per the mandatory requirement to constitute an offence under Section 138 of the Negotiable Instrument Act, 1881. Merely because of an endorsement on the un-served cover containing the noting that "the addressee was absent and the notice was returned un-served" cannot be a ground to 8MANU/OR/0484/2011
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constitute that there is a deemed service of notice upon the petitioner.
35.In respect of a penal provision, before a penalty can be levied, the procedures laid down therein must be complied with.
For construction of a penal provision, it is trite; the golden rule of literal interpretation should be applied. The difficulty which may be faced by the complainant is of no consequence, as held in the following citations:
(i)Commissioner, Central Excise and Customs Mumbai & Ors V. ITC Ltd & Ors. reported in (2007) 1 SCC;
(ii)SSS Loha Marketing Private Limited V. Bibby Financial Services India Private Limited: 2013 SCC Online Cal 2027;
(iii)Opto Circuit India Limited V. Axis Bank & Ors: (2021) 6 SCC 707;
(iv)Taylor vs. Taylor & Taylor V. Keily : (1875) 1 ChD
(v) S.L Kapoor V. Jagmohan & Ors: (1980) 4 SCC 379;
(vi) Harilal Shaw V. State of West Bengal: 89 CWN 557
(vii)Martin burn Ltd. V. The Corporation of Kolkata: AIR 1966 SC 529;
(viii) Ahmedabad Municipal Corporation V. Ahmedabad Green Belt Khedut Mandal: (2014) 7 SCC 357;
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36. Undoubtedly, the Section 138 of the Negotiable Instrument
Act, 1881 is a penal provision where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any different or other liability and the said cheque is dishonoured or returned by the bank unpaid due to insufficient fund. The
Section is subject to the following proviso:
"Provided that nothing contained in this section shall apply unless-
(a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."
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37. Section 141 deals with the provision in respect of the offences under Section 138 by companies. Section 141 runs thus:- 141 Offences by companies. -- (1)If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in sub- section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation: For the purposes of this section:-
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(a)"company" means anybody corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.]
38.Section 142 of Negotiable Instruments Act, 1881, lays down the circumstances when court can take cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881. According to Section 142 (1) of Negotiable Instruments
Act, 1881 no court shall take cognizance of any offence punishable under section 138 of Negotiable Instruments Act, 1881 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque.
Clause (b) of sub-Section 1 of Section 142 of Negotiable
Instruments Act, 1881 states that such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138. Thus, cause of action for lodging a complaint under Section 138 of the
Negotiable Instruments Act arises when the drawer of cheque fails to make payment of the said amount of money to the payee within 15 days of the receipt of said notice.
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39.On scanning the material evidence placed by both parties, it is evident that the complainant has miserably failed to show that there was legally enforceable debt and that the accused has issued the cheque (Ex.P-2) in question towards discharge of said asserted debt. Further, the complainant has also failed to establish that the statutory notice as required under Section 138 (b) of Negotiable Instruments Act, 1881, was served on the accused.
40.For the foregoing reasons and in view of findings on the above point, the complainant has miserably failed to establish that the accused has executed the promissory note (Ex.P-1) and that he has issued cheque (Ex.P-2) towards discharge of debt and that there is legally enforceable debt or liability and that the statutory notice issued under section 138 (b) of Negotiable
Instruments Act, 1881 was served on the accused.
41.In view of findings on the above point, it is crystal clear that the essential requisites have not complied to make out the offence under section 138 of Negotiable Instruments Act, 1881, against the accused. Therefore, this Court held that the
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complainant has failed to establish the guilt of the accused, for the offence under section 138 of Negotiable Instruments Act, 1881, beyond reasonable doubt.
42.On the other hand, the accused is able to establish the probable defence that he has lost his bag containing blank signed promissory notes and cheques and that the complainant secured one of the cheques and promissory notes, fabricated the same and filed the case against him, as contended by the learned counsel appearing for the accused.
43.The complainant (the 1st respondent herein) has failed prove the guilt of the accused (appellant herein) for the offence punishable under Section 138 of the Negotiable Instruments
Act, 1881, beyond reasonable doubt. Accordingly, this point is answered, in favour of the accused and against the complainant.
44.POINT No.2:In view of conclusion on point No.1, this court is of the considered view and found that the learned
Judicial Magistrate of First Class, Bhadrachalam, has failed to
appreciate the evidence on record properly and came to a
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Dated 20th day of April, 2023
wrong conclusion; and as such the interference of this court is necessary, in the judgment and sentence, passed by the trial.
Accordingly, this point is answered.
45.POINT No.3:In view of the findings on above points, the impugned judgment of the trial court needs to be set aside.
Hence, the appeal is liable to be allowed. Accordingly, the point is answered.
IN THE RESULT : The appeal of the appellant/accused is allowed by setting aside the judgment of conviction passed by the learned Judicial Magistrate of First Class, Bhadrachalam, in
CC No.21 of 2014 dated 03.04.2019.
Accordingly, the appellant/accused is acquitted under
Section 255 (1) of Cr.P.C, for the offence under Section 138 of
Negotiable Instruments Act, 1881. The bail bonds of the accused shall stand cancelled after SIX months and that he is set at liberty, forthwith.
Fine amount of Rs.5,000/-, as imposed by the trial Court, was paid by the accused under receipt No.14433 dated
Page 28 of 31 Crl. Appeal No.51 of 2019
Dated 20th day of April, 2023
03.04.2019 and the said fine amount, is ordered to be returned to the accused. Further, the accused is also entitled for return of his deposited amount, if any.
Typed to my dictation, corrected and pronounced by me in open Court on this the 20th day of April, 2023.
Principal Sessions Judge
Bhadradri Kothagudem