CC NO.64/ 2019 dt.23.04.2025 1 AJFCM, Gudivada
IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS – CUM – ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) ::
GUDIVADA
Present: Smt. P. Gayathri,
Additional Judicial Magistrate of First Class,Gudivada
Wednesday, this the 23rd day of April, 2025.
CALENDER CASE NUMBER 64 OF 2019
Between: Maturi Durga Prasad, S/o Venkata Siva Rama Rao, Aged 39 years, Hindu, Flour Mill, R/o 2/91, Dronadulavari Street, Gudivada …. Complainant.
And
Kagitam Uday Bhaskar @ Uday Bhaskara Rao, S/o Krishna Murthy, aged 46 years, Hindu, R/o Mutly Health Superviosr, District Medical Health Office, Near Old Bus Stand, Eluru, West Godavari …. Accused.
This case is coming up for final hearing before me on 16.04.2025 in the presence of Sri.N.Prabhakara Rao, learned Counsel for Complainant and Sri M.Sanjeev Kumar, learned Counsel for the accused and having stood over for consideration till this day, this Court delivered the following:-
J U D G M E N T
1.The complainant filed this case against the accused alleging that the accused had committed an offence punishable under section 138 of
Negotiable Instruments Act, 1881 (“N.I. Act” for brevity).
2. The allegations in the complaint filed under section 200 Code of
Criminal Procedure (“Cr.P.C.” for brevity) are that on 10.02.2016 the accused borrowed an amount of Rs.2,00,000/- (Rupees Two lakhs only) from the
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complainant and executed a promissory note in favour of the complainant repayable with interest at 24%, per annum either to the complainant or to his order on demand.
3.It is further submitted that on 28.07.2016, the accused again borrowed an amount of Rs.2,00,000/- (Rupees Two lakhs only) from the complainant and executed a promissory note in favour of the complainant repayable with interest at 24%, per annum either to the complainant or to his order on demand.
4.It is further submitted that the complainant demanded the accused to repay the amounts due under promissory notes. It is further submitted that on 20.11.2018 the accused issued a cheque bearing
No.774570 drawn on City Union Bank Ltd., Gudivada branch for Rs.
4,00,000/-(Rupees four lakhs only) towards partial discharge of the debt due under the above promissory note.
5.The complainant further submitted that on 22.11.2018, the said cheque was presented by him for encashment with his banker Karur Vysya
Bank of Gudivada branch and the same was dishonored with an endorsement "Funds insufficient" vide memo dated 23.11.2018.
6.The complainant further submitted that he got issued statutory legal notice under section 138(b) of the NI Act on 03.12.2018 demanding the accused to pay the cheque amount.
7.The complainant further submitted that the accused received the said legal notice on 05.12.2018, despite receiving notice, he did not issue any reply and he did not pay the cheque amount to the complainant. Hence, this complaint is filed by the complainant. The complainant prayed this court to punish the accused under section 138 of NI Act and to award compensation.
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8.Basing upon the sworn affidavit of the complainant and material available on record, as primafacie accusation against the accused is well founded, this Court took cognizance of the offence against the accused for the offence punishable under section 138 NI Act. Summons was issued to the accused.
9.Pursuant to the receipt of the summons, accused appeared before this Court. The copies of all the documents relied on by the complainant were supplied to him as required under section 207 Cr.P.C.
10. The accused was examined under section 251 of the Cr.P.C. The accusation made against the accused for the offence punishable under section 138 of NI Act, read over and explained to him in Telugu. The accused pleaded not guilty and claimed to be tried.
11.During the course of trial, on behalf of complainant, the complainant got himself examined as P.W.1 and got marked Ex.P.1 to
Ex.P.7.
12.After completion of the evidence for prosecution, the accused was examined under section 313 of Cr.P.C. and all the incriminating evidence appearing against him from the evidence of the prosecution witnesses was read over and explained to him in Telugu. The accused denied and refused the correctness of incriminating circumstances with which he was confronted and reported that he has defense evidence.
13.The accused examined himself as D.W.1 with the permission of the court and marked Exs.D.1. to D.3(which are marked subject to objection at the time of marking)
14.Heard the learned Counsel for the complainant and the learned
Counsel for the Accused. Perused the record.
15.In order to prove his case, the complainant got examined himself as P.W.1 by filing his affidavit in lieu of examination-in-chief. P.W.1 reiterated
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the contents of complaint and deposed that the accused borrowed on 10.02.2016 an amount of Rs.2,00,000/- (Rupees two lakhs only) from the complainant under Ex.P.1/promissory note and on 28.07.2016 again borrowed an amount of Rs.2,00,000/- (Rupees two lakhs only) from the complainant under Ex.P.2/promissory note and issued Ex.P.3/cheque bearing
No. 774570 drawn on City Union Bank Ltd., Gudivada branch. P.W.1 further deposed that he presented cheque with his banker State Bank of India,
Pamarru branch, but the said cheque was dishonored for the reasons ‘Funds insufficient’ along with Ex.P.4 memo dt.23.11.2018.
16.P.W.1 further deposed that on 03.12.2018, he issued a statutory legal notice to accused demanding him to repay the cheque amount and the office copy of legal notice marked as Ex.P.5/ legal notice. P.W.1 further deposed that the accused who received the said notice under Ex.P.6/Served acknowledgment, neither issued any reply nor repay the cheque amount.
17.He also filed the written statement filed by the accused in O.S.
No.33 of 2019 on the file of the learned Principal Civil Judge(Junior Division),
Gudivada in support of his case with regard to the defence taken by the accused and also the certified copy of the decree of the said suit.
18.During his cross examination, he admitted that even though the accused did not repay the debt due under Ex.P.1, he again lend amount under Ex.P.2. He denied that he executed oppudala pathram in the presence of the accused and his wife agreeing that if he filed any civil suits or criminal cases against the accused, he will face criminal action, he denied other questions.
19.In order to rebut the version of complainant, the accused examined himself as D.W.1 with the permission of the court and marked as
Exs.D.1 to D.3.
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20.The accused as D.W.1 in his examination in chief deposed that on 10.02.2016 he went to PHC center, Yellamarru and thereafter, he went to
Machilipatnam on duty for bringing medicens and vacines. He further deposed that during the night hours of 27.07.2016, he went to Chennai to hand over the samples on 28.07.2016 and he returned to Eluru during the afternoon hours of 29.07.2016. He further deposed that during the night hours of 19.11.2018, he went to Chennai to handed over the samples on 20.11.2018 and he returned to Eluru during the afternoon hours of 22.11.2018.
21.He further deposed that due to the above said mentioned reasons he was not present in his village on the respective dates and he never executed any documents in favour of the complainant and marked
Exs.D.1 to D.3.
22.During his cross examination he admitted that he contested
O.S.No.33/2019 filed by the complainant filed his written statement and he
admitted the written statement shown to him and same is marked as Ex.P.8.
He further admitted that the present defence took by him in the present case was not taken in the civil suit.
23.He further admitted that in Ex.D.2 which was issued on 20.11.2018 does not reflect, he was directed to go to Chennai. He further admitted that in Ex.D.1 which was issued on 28.07.2016 does not reflected, he was directed to go to Chennai. He admitted that he did not file any documentary proof to show that he went to Machilipatnam on 10.02.2016. He admitted that he did not prefer any appeal against the judgment and decree passed in O.S.No.33/2019, he denied other questions.
24.The learned counsel for the complainant during the course of arguments submitted that the complainant by adducing cogent and reliable evidence established that the accused borrowed an amount of Rs.2,00,000/- (Rupees two Lakhs only) from the complainant under Ex.P.1 and another
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amount of Rs.2,00,000/- (Rupees two Lakhs only) from the complainant under Ex.P.2. She further submitted that the accused issued cheque i.e.,
Ex.P.3 in partial discharge of the debts due under Exs.P.1 and P.2 and it was dishonoured. She further submitted that the complainant issued statutory notice to the accused under Section 138(b) of N.I. Act, the accused received the same, but neither issued reply notice nor repay the cheque amount.
25.She further submitted that mere denial of issuance of cheque is not sufficient to discharge the burden casts upon the accused as provided under Section 139 of N.I. Act. He further submitted that the complainant had examined himself as P.W.1 and as per Ex.P.1 to Ex.P.8, clearly established that the accused borrowed money from the complainant and in partial discharge, he issued Ex.P.3/cheque and the same was dishonoured, as such, the complainant proved that the accused issued Ex.P.3/cheque to discharge legally enforceable debt, due under Ex.P.1 and Ex.P.2/promissory notes.
She further submitted that Exs.D.1 to D.3 relied by the are no where related to his defence it is not his defence in O.S.No.33/2019. She further submitted that the accused failed to rebut the case of the complainant which was proved by him and sought conviction of the accused with maximum punishment and to award compensation.
26.Per contra, the learned counsel for the accused during the course of arguments submitted that the accused has no acquaintance with the complainant and he never borrowed any amount from the complainant under Exs.P.1 and P.2. He further submitted the accused never executed
Exs.P.1 and P.2 in favour of the complainant and never issued Ex.P.3 cheque in partial discharge of the debt due under Exs.P.1 and P.2.
27.He further submitted that on the date of alleged execution of
Exs.P.1 and P.2/promissory notes he was attending his duties at
Machilipatnam and went to Chennai on duty on alleged dates of execution i.e., 10.02.2016 and 28.07.2016. He further submitted that on the date of
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alleged issuance of cheque i.e., 20.11.2018, he went to Chennai on duty. He further submitted that the same is established to Exs.D.1 to D.3.
28.He further submitted that the complainant without knowing the absence of the accused on alleged dates filled up the Exs.P.1 to P.3 ie.., he executed Ex.P.1 on 10.02.2016, Ex.P.2 on 28.07.2016 and Ex.P.3/cheque on 23.11.2018.
29.He further submitted that by adducing Exs.D.1 to D.3 is able to rebut the presumption under Section 139 of N.I. Act in favour of the complainant. He further submitted that as there is no legally enforceable debt due under Exs.P.1 and P.2, as such, dishonoured of Ex.P.3/cheque does not attract for the offence punishable under Section 138 of N.I. Act. He further submitted that the accused is able to rebut the presumption in favour of the complainant by preponderance of possibilities, as such, the accused cannot be convicted and sought for acquittal of the accused.
30. Now the points for determination are:
1.Whether the dishonored cheque bearing No.774570 drawn on City Union Bank Limited, Gudivada branch was issued by the accused in favour the complainant towards the discharge of legally enforceable debt?
2.Whether the complainant established the guilt of the accused beyond all reasonable doubt for the offence punishable under Section 138 N.I.Act?
3.Whether the accused is liable for conviction for offence punishable under Section 138 N.I. Act?
31. Point no:1
The accused is charged and tried for the offence punishable under section 138 of N.I. Act. Section 138 of Negotiable Instruments Act, 1881 reads as under:
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“ 138 Dishonour of cheque for insufficiency, etc., of funds in the
account. —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 debt or other liability, is returned by the bank unpaid, 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
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
(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.
Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.
32.The Hon’ble Supreme Court of India in M/s. Gimpex Private
Limtied vs. Manoj Goel, 2022 (1) ALT (Crl) 65 (A.P.), summarized the following ingredients of the offence punishable under section 138 N.I. Act.
(I)The drawing of a cheque by person on an account maintained by him with the banker for the payment of any amount of money to another from the account;
(ii)The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii)Presentation of the cheque to the bank;
(iv)The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is
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insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account;
(v)A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt; and
(vi)The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
33.Further,the Hon’ble Supreme Court of India in Triyambak S
Hegde Vs Sripad, 2022 (1) SCC 742, summarized the following principles in regard to the presumptions that may be raised under section 118 and 139 of
N.I.Act and the rebuttal thereof :
1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
5. It is not necessary for the accused to come in the witness box to support his defence.
34.Thus, as per the above two referred judgments, the complainant has to prove that the cheque which was dishonoured was issued towards discharge of legally enforceable debt and the accused can rebut the same by preponderance of possibility without adducing evidence either oral or documentary, but can rely upon the reference to circumstances relied by the
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complainant and can also to rebut the presumptions arise in favour of the complainant under section 138 of N.I.Act.
35.It is to be determined whether any legally enforceable debt existed for repayment towards the debt and Ex.P.3/cheque was allegedly issued by the accused.
36.On considering the material on record and as per the submissions of the both learned counsel, it is an admitted fact that the signatures on Ex.P.3/cheque and Exs.P.1 and P.2/promissory notes belongs to the accused. The case of the complainant is that the accused borrowed an amount of Rs.2,00,000/- (Rupees two Lakhs only) each from him under
Exs.P.1 and P.2/ promissory notes and issued Ex.P.3/cheque in partial repayment of the said amount. The further case of the complainant is that,
Ex.P.3/cheque was dishonoured due to funds insufficient in the account of accused.
37.The defense of the accused is that he never executed any documents in favour of the complainant as he was in his duty on the dates of alleged execution of Exs.P.1 and P.2 and issuance of Ex.P.3 cheque.
38.As per the submissions of the learned counsel for the accused and as per the cross examination of P.W.1, Ex.P.3/cheque is that of the accused. Furthermore, he did not dispute his signature on Ex.P.3.
39. The Hon’ble Supreme Court of India in Basalingappa V/s
Mudi Basappa, 2019(5) SCC 418, pleased to hold that signature on the cheque having been admitted by the accused , then the presumption shall be raised under section 139 that cheque was issued in discharge of debt or liability.
40.Further the Hon’ble Supreme Court of India in P.Rasiya Vs
Abdul Nazer and Another, 2022 SCC. Online SC 1131, pleased to hold that
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when the issuance cheque and signature were not in dispute, it had to be presumed that the cheque was issued for discharge of debt or liability.
41.Further the Hon’ble Supreme Court of India in Rajesh Jain v
Ajay Singh, 2023 SCC OnLine SC 1275, in para 38 pleased to hold that
“38 . As soon as the complainant discharges the burden to
prove that the instrument, say a cheque,was issued by the
accused for discharge of debt, the presumptive device under
Section 139 of the Act helps shifting the burden on the
accused. The effect of the presumption, in that sense, is to
transfer the evidential burden on the accused of proving that
the cheque was not received by the Bank towards the
discharge of any liability. Until this evidential burden is
discharged by the accused, the presumed fact will have to be
taken to be true, without expecting the complainant to do
anything further “
42.Further the Hon’ble Supreme Court Of India in Ajitsinh Chehuji
Rathod Vs State Of Gujarat & Anr, 2024 INSC 63, in para 14 pleased to hold that
“ 14. Section 118 sub-clause (e) of the N.I. Act provides a
clear presumption regarding endorsements made on the
negotiable instrument being in order in which they appear
thereupon. Thus, the presumption of the endorsements on
the cheque being genuine operates in favour of the holder in
due course of the cheque in question which would be the
complainant herein. In case, the accused intends to rebut
such presumption, he would be required to lead evidence to
this effect.” 43.Thus as per the presumption under section 139 of N.I. Act and as per the law laid down by the Hon’ble Supreme Court of India in
Basalingappa V/s Mudi Basappa, 2019(5) SCC 418 and P.Rasiya Vs
Abdul Nazer and Another, Criminal Appeal No’s 1233-1235 of 2022,
decided on 12.08.2022,Rajesh Jain v Ajay Singh, 2023 SCC OnLine SC
1275 and Ajitsinh Chehuji Rathod Vs State Of Gujarat & Anr, 2024 INSC
63, as the accused did not dispute his signatures on Ex.P.3/cheque, the burden shifts on the accused to prove that he did not issue Ex.P.3/cheque
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towards discharge of the debt due to the complainant under Exs.P.1 and
P.2/promissory notes.
44.As discussed above, the presumption under section 139 of N.I
Act has already been raised against the accused. The accused is duty bound to present probable defence.However, the accused denied that he issued
Ex.P.3/cheque to the complaint for repayment of Rs.4,00,000/-( Rupees four lakhs only) in partial discharge of debt. The defence of the accused is that he never executed any documents in favour of the complainant.
45. At this juncture it is pertinent to consider the arguments submitted by the learned counsel for the accused through the cross examination of the complainant as P.W.1 and by the evidence of the accused as D.W.1, the accused is able to create doubt with regard to the nature of transaction and the circumstance under which the accused issued Ex.P.3.
46.Even if for the sake for the arguments, it is believed that cheque in question was not issued by the accused to the complainant for the loan borrowed by him under the promissory notes and to discharged the same, what made the accused to question the same when he received legal notice from the complainant.
47.At this juncture it is pertinent to consider the cross examination of
PW.1 with regard to the served acknowledgment i.e., Ex.P.6. In the cross- examination the complainant admitted that the signature of the receive Ex.P.6 and the signatures of executed Exs.P.1 and P.2 seems to be different.
48.Such admission has no relevance with regard to the service of statutory notice to the accused as it is not the defence of the accused that he did not receive the notice and the learned counsel for the accused did not even remotely suggested about non-receipt of legal notice by the accused.
49.At this juncture, it has to considered that the complainant also issued statutory notice Section 138(b) of NI Act to the accused, when the
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cheque was dishonoured, the accused who received the same did not issue any reply notice to the complainant and also questioned the complainant’s possession of Exs.P.1 and P.2/ promissory notes and Ex.P.3 cheque.
50.Further, the inaction of accused questioning the complainant and failure to the issue reply notice to the complainant discredits his defence that he never handed over the Exs.P.1 to P.3 to the complainant.
51.At this juncture it is apposite to consider the another defence of the accused that he was not present either on 10.02.2016, 28.07.2016 and on 20.11.2018 at Gudivada i.e., on the date of execution of Exs.P.1 and P.2 promissory notes and the date of issuance of Ex.P.3/cheque to the complainant as alleged by the complainant and the same was proved by
Ex.D.1 to Ex.D.3.
52. Further the accused in ordered to prove his absence on the dates of alleged execution of Exs.P.1 to P.3 relied upon Exs.D.1 to D.3, they are not helpful to the accused as he did not stated the same in his written statement in OS.No.33/2019 filed by the complainant against him.
53. It is also pertinent to consider the arguments submitted by the learned counsel for the complainant that it is not the case of the accused that he never resided at Gudivada on the said dates or at relevant point of time.
It is further contention of the complainant that mere filing of Exs.D.1 to D.3 is not sufficient, as the authorities was issued the same were not examined by the accused and no documents were filed by the accused in support of
Ex.D.1 to Ex.D.3.
54.Merely deposing during examination in chief of the accused as
DW.1 that he never executed Exs.P.1 to P.3 in favour of the complainant without taking the defence of the same in O.S.No.33/2019 at the earliest is not enough to rebut the presumption in favour of the complainant under
Section 139 of the N.I. Act, unless supported by substantive proof. When the
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accused knows that a cheque and promissory notes signed by him is in the possession of the complainant, and claims that he never handed over the cheque and promissory notes, his failure to take timely legal action undermines his defence. Hence, his inaction falsifies his claim that the cheque was not issued in discharge of a liability. Thus, it cannot be said that the accused is able to rebut the presumption favour of the complainant under section 139 of N.I.Act by raising the defence.
55.It is an admitted fact except Exs.D.1 to D.3, the accused did not file any other document in support of the said documents. Further a perusal of the judgment passed against the accused in O.S.No.33 of 2019 and his written statement in the said suit on the file of learned Principal Civil
Judge(Junior Division), Gudivada, it is not the defence of the accused is that
he was not the present on the date of execution of Exs.P.1 and P.2 and on the date of issuance of Ex.P.3 cheque, but he was deputed on his official duty and he attended the same and he was not present at Gudivada.
56.Thus, Ex.D.1 to Ex.D.3 are off no help to the accused in support of his defence that he was not present in Gudivada either on 10.02.2016, 28.07.2016 and 20.11.2018.
57.Nevertheless, it has to be considered that the complainant also issued statutory notice Section 138(b) of N.I. Act to the accused, when the cheque was dishonoured, the accused who received the same did not issue any reply notice to the complainant questioning the possession of the same and did not dispute his presence on the relevant dates in Gudivada.
58.It is not out of context to consider the other argument submitted by the learned counsel for the accused that by raising a defence about the presence of accused in Gudivada on the date of execution of Ex.P.1 and
Ex.P.2, and other defences, the accused is able to rebut the presumption under 139 of the N.I.Act.
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59.However, the Hon’ble Supreme Court of India in Raja Ram, S/o
Sree Ramulu Naidu (deceased) through Lrs.Vs. Maruthachalam(since
deceased through Lrs), 2023 Live Law (SC)46 by relying upon the judgment of in Supreme Court Basavlingappa Vs. Mudibasappa (2019) 5
SCC 418 pleased to hold that to rebut the presumption raised the under section 138 of N.I.Act which is a rebuttable presumption. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It has further been held that to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. It has been held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
60.Further, the Hon’ble High Court of A.P. in M.Vidhyavathi vs.
Chandriah @ Chandra Babu and another, 2010 (1) ALT (Crl.) 347 (A.P.),
was pleased to hold that the word unless contrary is proved in Section 139 of the N.I. Act would mean that there must be a pleading and evidence to substantiate the same, and mere explanation is not sufficient for discharging the burden placed on the accused.
61.The Hon’ble Supreme Court of India in M/s. Kalamani Tex and another vs. P. Balasubramanian, 2021 SCC OnLine SC 75, was pleased to hold that the accused has to rebut the presumption under Section 139 of the
NI Act by “preponderance of probability” and not mere possibility.
62.The Hon’ble Supreme Court of India in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106, was pleased to hold that- ”21. On perusing the order of the trial court, it is noticed that the trial court proceeded to pass the order of acquittal on the mere ground of “creation of doubt”. We are of the
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considered view that the trial court appears to have proceeded on a misplaced assumption that by mere denial or mere creation of doubt, the appellant had successfully rebutted the presumption as envisaged by Section 139 of the NI Act. In the scheme of the NI Act, mere creation of doubt is not sufficient.”
63.The Hon’ble Supreme Court of India in K.S.Ranghanadha
Vs.Vittal Setty, 2022(1) ALT.Crl.SC.456 please to hold that, the onus is an accused right probable defence and standard of proof rebutting the presumption on preponderance of possibility.
64.Thus, as per the law laid down by the Hon’ble Supreme Court of
India in above referred cases as discussed above, the defences raised by the accused, no way helpful to the accused to rebut the presumption in favour of the complainant raised under Section 139 of the N.I. Act as mere creation of doubt is not sufficient.
65.In the present case, the accused did not put forth any evidence to show that he is not liable to the complainant or indebted to the complainant, except denying the delivery of Exs.P.1 to Ex.P.3 to the complainant by him and also claiming his absence on the date of the execution of Exs.P.1, P.2 and issuance of Ex.P.3 at Gudivada and also questioning the financial capacity of the complainant during the cross-examination of the complainant, the accused did not able to raise probable defence to rebut the presumption aroused in favour of the complainant and hence the said defences raised by the accused is of no help to the accused in support of his defence.
66.In view of the above discussion, the accused was not able to raise doubts about the non-existence of legally enforceable debt under
Ex.P.3/cheque, as the same is not issued for the consideration passed under
Exs.P.1 and P.2/promissory notes and also the complainant has no financial capacity to lend the amount to him.
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67.Furthermore, the accused did not rebut the presumption raised under section 139 of the NI Act in favour of the complainant that he did not issue Ex.P.3/cheque to discharge the debt due under Exs.P.1 and
P.2/promissory notes.
68.On the other hand, the complainant is able to establish that the dishonored cheque i.e., Ex.P.3 was issued by the accused to the complainant towards the discharge of legally enforceable debt due under promissory note by adducing cogent and relevant evidence which is not rebutted by the accused. This point is answered accordingly.
69.Point No.2:
In view of foregoing discussion in point no.1, it is manifest that the complainant is successful in establishing the guilt of the accused for the offence punishable under section 138 of NI Act beyond all reasonable doubt.
The point is answered accordingly.
70.Point No.3:
In view of forgoing discussion at points nos.1 and 2, it is proved that the accused committed the offence punishable under section 138 of NI
Act.
71.In the result, the accused is found guilty under section 255(2)
Cr.P.C for the offence punishable under section 138 of the Negotiable
Instruments Act, 1881 and accordingly he is convicted for the said offence.
Directly typed to my dictation by the Stenographer, corrected and corrected by me in open Court, on this the 23rd day of April, 2025
CC NO. 64/2019 dtd.23.04.2025 18 AJFCM,Gudivada
Additional Judicial Magistrate of First Class,
Gudivada.
Hearing on Sentence:
72.At this juncture it is apposite to consider the record that this case was posted for judgment on 07.03.2024. The accused who is having knowledge about the pronouncement of judgment did not appear before court on 07.03.2024 and there was no representation on behalf of the accused.
Hence, this court issued NBW against the accused for his non appearance on 07.03.2024 without pronouncing the judgment.
73.On 05.12.2024 the NBW was cancelled as per orders in
Crl.MP.No.264/2024. Later, the case was heard and posted for judgment on
21.04.2025. Again on 21.04.2025, the accused was called absent and no representation on behalf of the accused, this court adjourned the case 23.04.2025 by giving one more opportunity. However, the accused again did not appear before this court and no representation on behalf of the accused.
74.This shows his reluctant attitude towards this court which hampers the adjudication of this matter. Hence, the right of hearing on quantum of sentence of the accused is forfeited.
75.The object of Negotiable Instruments Act is to enhance the usage of cheque and the credibility of the instrument. A lenient view would make the people in general and the payee in particular, lose faith in the efficacy of the banking system and all transactions by way of cheques would be in a state of haywire. This is not a fit case to take a lenient view.
76.The accused is sentenced to undergo simple imprisonment for a period of two years and shall pay a fine of Rs.4,00,000/- (Rupees four lakhs only) ie., double the cheque amount. In default of payment of fine, the accused shall undergo simple imprisonment for a period of one month. An amount of Rs.3,90,000/- (Rupees three lakhs and ninety thousand only) out
CC NO. 64/2019 dtd.23.04.2025 19 AJFCM,Gudivada
of fine shall be paid as compensation to the complainant and remaining amount of Rs.10,000/- (Rupees ten thousand only) as a fine.
77.As the accused convict who has knowledge about pronoucment of judgment did not appear before this court, hence issue NBW against the accused to undergo the imposed punishment. The concern Station House
Officer is directed to execute the NBW issued against the accused and to produce before this court to receive his conviction.
78.As the convict was absent, this court has no opportunity to inform the convict that he has right to prefer appeal against this Judgment before the
Hon’ble Principal District and Sessions Judge’s Court, Krishna at
Machilipatnam.
The office is directed to serve the copy of Judgment to the accused, forthwith on his appearance.
Additional Judicial Magistrate of First Class,
Gudivada.
Appendix of Evidence
Witnesses examined
For Complainant: For Accused:
1.P.W.1: Maturi Durga PrasadD.W.1: Kaitham Uday Bhaskar
Exhibits marked on behalf of Complainant:
1.Ex.P.1 :Certified copy of promissory note dated 10.02.2016 for an amount of Rs.2,00,000/- 2.Ex.P.2 : Certified copy of promissory note dated 28.07.2016 for an amount of Rs.2,00,000/- 3.Ex.P.3 :Original Cheque bearing No.774570 dated 20.11.2018 drawn on City Union Bank Ltd., Gudivada branch for an amount of Rs.4,00,000/-(Rupees four lakhs only) 4.Ex.P.4 :Cheque return memo dated 23.11.2018
CC NO. 64/2019 dtd.23.04.2025 20 AJFCM,Gudivada
5.Ex.P.5 :Office copy of legal notice dated 03.12.2018 6.Ex.P.6 : Served acknowledgment 7.Ex.P.7 : Certified copy of Decree in O.S.No.33/2019 on the file of Prl.Junior
Civil Judge(Junior Division ) Court, Gudivada
8.Ex.P.8 :Served written statement in O.S.No.33/2019 on the file of Principal
Civil Judge(Junior Division ) Court, Gudivada(marked by the DW.1
during his cross-examination)
Exhibits marked on behalf of Defence:
1.Ex.D.1 :Letter issued by District Medical and Health Officer, West Godavari District, Eluru dated 28.07.2016 deputing the accused to handed over the stools specimen to King Institute of Preventive Medicine, Guindy 2.Ex.D.2 :Letter issued by District meidcal and Health Officer, West Godavari District, Eluru dated 28.07.2016 deputing the accused to handed over the stools specimen to King Institue of Preventive Medicine, Guindy 3.Ex.D.3 :The copy of attendance register issued by Medical Officer Primary Health center, Yalamarru
Material Objects marked:
…NIL …
Additional Judicial Magistrate of First Class,
Gudivada.
CC NO. 64/2019 dtd.23.04.2025 21 AJFCM,Gudivada
Calendar and Judgment
Calendar Case No:64/2019 ON THE FILE OF
ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS: GUDIVADA
1.::25.11.2018 Date of Offence
2.::10.01.2019 Date of Report/Complaint
3.Date of Apprehension::----
4.Date of Release::----
5.Commencement of trial::19.01.2022
6.Date of Closure of trial::16.11.2022
7.Date of Judgment::23.04.2025
8.Name of the Complainant::Maturi Durga Prasad, S/o Venkata Siva Rama Rao, Aged 39 years, Hindu, Flour Mill, R/o 2/91, Dronadulavari Street, Gudivada
9.Name of the Accused::Kagitham Uday Bhaskara Rao,S/o. Late Krishna Murthy, Employee, Hindu, C/o Sana Konda(Tapi Mastrey),Nimma Thotta, Gudivada, Krishna District.
10.Section of Law::Under Section 138 of N.I. Act.
11.Plea of Accused::Pleaded Not guilty.
12.Finding of the court::Found guilty.
13. SENTENCE: IN THE RESULT, accused is found guilty for the offence punishable under Section 138 of N.I. Act and he is convicted under section 255(2) of the Cr.P.C. Accordingly, the accused is sentenced to undergo simple imprisonment for a period of two years and shall pay a fine of
Rs.4,00,000/- (Rupees four lakhs only) ie., double the cheque amount. In default of payment of fine, the accused shall undergo simple imprisonment for
CC NO. 64/2019 dtd.23.04.2025 22 AJFCM,Gudivada
a period of one month. An amount of Rs.3,90,000/- (Rupees three lakhs and ninety thousand only) out of fine shall be paid as compensation to the complainant and remaining amount of Rs.10,000/- (Rupees ten thousand only) as a fine.
14. Explanation for Delay: this case was taken on file and numbered as CC.64/2019. On 03.05.2019, case copies furnished to the accused and the accused was examined under Section 251 of Cr.P.C. on 24.12.2021. Trial commenced in this case on 16.02.2022 and on 24.11.2022, the complainant side evidence is closed and posted for Section 313 Cr.P.C examination. On 13.12.2022, the accused was examined under section 313
Cr.P.C and posted for defence side evidence and on 11.05.2023, the accused was examined as D.W.1 and accused side evidence is closed on 16.08.2023 and the matter is posted for Argument. Both side arguments heard on 16.04.2025 and Judgment pronounced on 23.04.2025. Hence, the delay. As the accused convict who has knowledge about pronouncement of judgment did not appear before this court, hence issue NBW against the accused to undergo the imposed punishment. The concern Station House
Officer is directed to execute the NBW issued against the accused and to produce before this court to receive his conviction. As the convict was absent, this court has no opportunity to inform the convict that he has right to prefer appeal against this Judgment before the Hon’ble Principal District and
Sessions Judge’s Court, Krishna at Machilipatnam. The office is directed to
serve the copy of Judgment to the accused, forthwith on his appearance.
Additional Judicial Magistrate of First Class,
Gudivada.
Copy submitted to:-
The Hon’ble I Additional Sessions Judge, Machilipatnam.
CC NO. 64/2019 dtd.23.04.2025 23 AJFCM,Gudivada
Note: At this juncture it is apposite to consider the record that this case was posted for judgment on 07.03.2024. The accused who is having knowledge about the pronouncement of judgment did not appear before court on 07.03.2024 and there was no representation on behalf of the accused. Hence, this court issued NBW against the accused for his non appearance on 07.03.2024 without pronouncing the judgment.
On 05.12.2024 the NBW was cancelled as per orders in
Crl.MP.No.264/2024. Later, the case was heard and posted for judgment
on 21.04.2025. Again on 21.04.2025, the accused was called absent and no representation on behalf of the accused, this court adjourned the case 23.04.2025 by giving one more opportunity. However, the accused again did not appear before this court and no representation on behalf of the accused.
This shows his reluctant attitude towards this court which hampers the adjudication of this matter. Hence, the right of hearing on quantum of sentence of the accused is forfeited.
The object of Negotiable Instruments Act is to enhance the usage of cheque and the credibility of the instrument. A lenient view would make the people in general and the payee in particular, lose faith in the efficacy of the banking system and all transactions by way of cheques would be in a state of haywire. This is not a fit case to take a lenient view.