P.m.m.siddharthi

IN THE COURT OF THE SPECIAL MAGISTRATE COURT-I AT VISAKHAPATNAM

PRESENT: Sri.P.M.M. SIDDHARTHI, B.A,B.L.

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

27th day of January, 2023

C.C.No. 26/16 (C.C.No.2310/14 of I Addl. Chief Metropolitan Magistrate Court, Visakapatnam )

Between :

Korada Shyamala Rao, S/o Asirappadu, Hindu, aged 44 years, Resident of D.No. 18-64, ASR Nagar, Seetammadara, Visakhapatnam.

….Complainant.

AND:

Manoj Kumar, S/o Jains, aged 49 years, Resident of Flat No. 303,

Lakshmi Nilayam Apartment, Salipeta, Visakhapatnam.

…Accused.

*********

This case came final hearing before me on 09-01-2023 for hearing in the presence of Sri. Kolli Krishna Rao, Advocate for the complainant and Sri. V. Soma Sundara Rao, Advocate for the accused, and having stood over for consideration till this day, the Court delivered the following :-

JUDGMENT

1.The present case is filed U/s 138 of Negotiable Instrument 1881 (for short here in after referred as N.I Act against accused).

2.The complainant submits that the accused have approached him for construction of the accused building at Main road, Gopalapatnam and after negotiations both parties come to an conclusion and the accused have agreed to pay an amount to me Rs. 49,73,525/- (Rs. Forty nine lakhs seventy three thousand five hundred and Twenty five only) for complete construction of the accused building along with strong room Dt. 21-06-2011. Same day, he have started contraction work, the accused have given an amount

Rs.13,000/- by the way of cash to me dt. 21-06-2011 have completed the work of the accused building construction according to the terms and conditions and I handover the same to the accused on 31-01-2012, however the accused did not pay the agreed amount till the date, even the accused started a Jewellery shop by name style of Mahaveer Jewelers on 22-04-2012 on building. The accused have issued amount with several installments ie., amount Rs. 40,06,775/- out of Rs. 49,73,525/-. The accused have to pay an amount Rs. 9,66,750/- and interest on the part Rs.6,00,000/- total the accused have to pay Rs. 15,66,750/-. The accused promised pay the said amount within 6 months either to him or his order on demand.

3.The complainant submits that inspite of repeated requests and demands made by him the accused have not issued any amount to him but the accused simply postponing the same on one pretext or the other. He approached the accused at the accused shop and house and he requested the accused with very polite manner the accused have cursed to me in unutterable foul language, and threatened him with knife and dire consequences, If again ask for amount. The accused and the accused people pull out him, he Suffered lot due to the acts of the accused and the accused people attitude and he have fed up and vexed up with the unwarranted attitude of the accused. he lodged a complaint against the accused vexed up with the up warranted attitude of the accused. he lodged a complaint against the accused for above said issue before the Honourable

Police Commissioner, Visakhapatnam on 10-01-2014 with receipt number

33. Later the accused said apology to him before the police station and requested him does not lodge FIR abut that above said issue. Later before the elders of the both parties the accused have promised to settled the amount Rs. 15,66,750/-.

4.The complainant submits that further partial discharge of the above said amount the accused have issued two cheques of the Bank of India,

Visakhapatnam overseas branch, Visakhapatnam, first cheque

dt. 11-08-2014, bearing No. 000008, Rs. 50,000/- and send cheque

dt. 11-08-2014, bearing No. 000009, Rs. 50,000/-.

5.The complainant submits that he have presented the above said two cheques with his bank ie., State Bank of India, Siripuram Junction branch,

Visakhapatnam for collection on dt. 12-08-2014, and the two cheques was returned on the same day ie., 12-08-2014 with an endorsement “Funds Insufficient” vide cheques return memos. And that he informed the same fact to the accused but the accused requested him not to take further steps and requested 30 days time to honour the cheques. Again he presented the above said two cheques with his bank ie., State Bank of India,

Siripuram junction branch, Visakhapatnam for collection on dt. 12-09-2014, and the two cheques were returned on the same day ie., 12-09-2014 with an endorsement “Funds insufficient” vide cheques return memos. But the accused have not paid any amount as such issued notice without keeping sufficient funds in the accused account the accused have issued said two cheques to me knowing fully well he humbly submitted that there are “Funds Insufficient”. Thereby the accused have committed an offence punishable under Sec. 138 & 142 of the NI Act and the accused also the accused acts will attract U/Sec. 420 IPC.

6.The complainant submits that issued legal notice to the accused dt.29-09-2014 to calling upon the accused have to pay the amount of dishonour of above said two cheques within 15 days from the date of receipt of the said notice. Failing which, he will be compelled to initiate criminal action against the accused under the provisions of Sec. 138&142 of NI Act as well as civil suit against the accused for recovery of the entire amount with interest. And that action of the accused in having allowed the cheque to return unpaid goes to show that with criminal intention and in order to defraud me, the accused had intentionally, deliberately and malafidely issued the cheque knowing fully well that the cheque will not be honoured.

Because the funds insufficient. Since the accused had not made any attempts to facilitate the encashment of the same. he was issued legal notice dt. 29-09-2014 to the accused U/Sec. 138 NI Act asking the accused to pay the whole dishonour of cheque amount within 15 days of receipt of the notice. The accused has failed to pay the cheque amount until date even after legal notice was issue to him. The accused therefore has committed an offence punishable fewer than 138 of the NI Act.

7.This case was taken on file by the I Addl. Che if Metropolitan

Magistrate Court, Visakhapatnam for the offence U/s 138 of N.I. Act against

the accused, subsequently the case is received by transfer to this court as per Dis No. 301 dt. 31-03-2016.

8.On receipt of summons accused entered his appearance through his counsel and copies of case documents are furnished to him as Required

U/s 207 of Cr.PC. Later the accused was examined u/s 251 Cr.PC explaining the allegations of the prosecution leveled against him. He denied the prosecution allegations and claimed to be tried.

9.In order to prove the guilt of the accused, the Complainant examined himself as PW.1 got marked Ex.P1 to Ex.P13. He also examined Pws. 2 and 3 are witnesses on his behalf to deposed about the facts of the case. Pw.4 is

Bank Officials to deposed that Ex.X2 is the statement of account of the complainant, Pw.5 is the Bank Officials who deposed about statements of account of the accused. Complainant reported his evidence is closed and the accused was examined U/s 313 Cr.PC explaining the incriminating circumstances that appeared against him. He denied the prosecution evidence as being false and reported he has no defense evidence.

10. Heard both sides and perused the record. Now the point for determination is:

1) Whether the complainant pleaded and proved the essential ingredients of Sec. 138 of N.I. Act?

2) Whether the complainant is able to bring home the Guilt of accused u/s 138 of N.I Act beyond reasonable doubt?

11.Points No. 1&2:

The complainant having examined P.W.1 and got marked Ex.P.1 to

Exs.P.13, Ex.P1 and P2 are the cheques for Rs. 50,000/- each issued by the accused in his favour, Ex.P3 and P4 are the cheque return memos for the above cheques with an endorsement of “Funds Insufficient”, Ex.P6 is the cheque return memo with an endorsement of ‘Funds insufficient”, Ex.P7 is the legal notice, dt.29-09-2014, Exs.P8 and P9 is the Postal receipts, dt. 29- 09-2014, Exs.P10 and P11 is the Return Postal covers with Acknowledgment,

Exs.P12 and P13 is the Police reports. He also examined Pws. 2 and 3 are witnesses on his behalf to deposed about the facts of the case. Pw.4 is Bank

Officials to deposed that Ex.X2 is the statement of account of the complainant, Pw.5 is the Bank Officials who deposed about statements of account of the accused that Ex.P1 and P2 cheques are bounced and Ex.P3 and P4 cheque return memos.

12.It is the case of complainant that the accused approached him that the construction of the building at Main road, After negotiation both parties come to conclusion that the accused have to pay an amount of

Rs.49,73,525/- for complete construction of the accused building, the accused is given an amount of Rs.13,000/- by way of cash, the complainant complected the work of the building construction and handed over the same. The Accused on 31-01-2012 did not pay the agreed amount. The accused has issued amount with several installments ie., amount Rs.

40,06,775/- out of Rs. 49,73,525/-. The accused have to pay an amount Rs.

9,66,750/- and interest on he part Rs. 6,00,000/- total the accused have to pay Rs. 15,66,750/-. The accused promised to pay the said amount within 6 months either to the complainant or to his order on demand. The complainant approach the accused to pay the amount which are indetended and accused misbehavior with him as such he got complainant before the police station. The accused later tendency apology and agreed before elders to settled the amount Rs. 15,66,750/- in that connection he issued two cheques Ex.P1 and P2 which were returned with an endorsement “Funds

Insufficient”. He is also got issued a legal notice and not made any reply thereby the accused committed an offence punishable U/Sec. 138 NI Act.

13.The case of the accused is that there is no legally enforceable debt between complainant and accused and he never executed any cheque issued infavour of the complainant. The complainant not filed any agreement which is for contractual obligation between the parties. The complainant not filed any receipt for part payments Pws.2 and 3 are complainant witnesses, thereby workers and him and they are interested and their evidence cannot be taken into consideration. There is no transaction between accused and complainant and also there is no legally enforcement debt between them, therefore prays the Honourable Court to acquit the accused from the alleged charges.

14. Cause of action: One of the three requirement that constitution

Cause of action is presentation of the cheque and dishonour thereof within the period of its validity or a period of six months. Other three requirements are (a) service of the notice upon the drawer of the cheque to make payment of the amount covered by the cheque and (b) failure of the drawer to make any such payment within the stipulated period of 15 days of the receipt of such a notice. On perusal of the record Ex. P.1 is the original cheque dt. 11-08-2014 issued by the accused infavour of the complainant, that two cheques were presented State Bank of India, Siripuram junction branch, Visakhapatnam on 12-09-2014 within the stipulated period of 6(six) months and that cheque was returned on the same day ie., 12-09-2014 with an endorsement “Funds Insufficient” having knowledge by the accused regarding the dishonour of the cheque he has not made payment within 15 days. Therefore the statutory requirements were fulfilled by the complainant and this case is maintainable.

15.Whether the Complainant proved his case or not?

Sec. 138 of NI Act in its explanation envisages that the cheques which are issued in-pursuance of the legally enforceable debt or other liability. The complainant contends that the accused issued two cheques under Exs.P1 and P2 which were returned under Ex.P5 and P6 due to “Funds Insufficient”, thereby the complainant alleged that the accused committed an offence punishable U/Sec. 138 NI Act. Mere dishonour of cheque does not constitute an offence unless and until the contrary is proved U/Sec. 139 NI Act. The presumption U/Sec. 139 NI Act is mandatory in nature. It shall be presumed unless and until the contradictory is proved that the holder of the cheque received the cheque of the nature referred to “Sec.138 for the discharge in whole or in part of debt or other liability. The above presumption is rebutable, complainant contended that those cheques were issued in discharge of debt. The accused agreed to construct the building in the site to the tune of Rs. 49,73,525/- and he gave cash of Rs. 13,000/- is part payment, later he also made several installment amounts of Rs.40,06,775/- and the accused have to pay an amount of Rs. 9,66,750/- and interest of Rs.

6,00,000/- total to pay Rs. 15,66,750/-.

While appreciating the evidence. “The complainant was examined as

Pw.1 and, categorically deposed in his cross examined “It is true that

there is agreement between him and accused for Rs.49,73,525/-”,

but he did not filed the above agreement into the court”, he did

not field any receipt or any paper pertaining to the payment of Rs.

13,000/- on 21-026-2011. He did not filed any documents that he

handed over the building after construction, he did not filed any

documents for the payments made by the accused. The accused

issued two cheques Rs.50,000/- each under Exs.P1 and P2. He

cannot say that the reasons for issuance of two cheques for the

tune of Rs.50,000/- each”.

The complainant also examined Pw.2 and he also categorically deposed in his cross examination.

“He is working under the complainant he did not know for

what purpose of the complainant filed the case against the accused.

He did not know whether the accused give any blank cheque or

not”.

The complainant further examined Pw.3 who is also categorically deposed that in cross examined.

“He working under the complainant for the last 15 years. He

did not knows for what amount the complainant and accused was

agreed for building construction, he did not know about the

particulars of the issuance of the cheques”.

The entire evidence of the complainant is self contradictory and not supported by Pws. 2 and 3 evidence. The learned accused counsel contended that the notices under Ex.P7 not received by the accused, if he received the said notices he should issue the reply notice denying the facts categorically. The complainant examined Pws.4 and 5 the Bank Officials nothing has been inferred except the showing the return of the cheques.

The complainant miserably failed that he received the cheques in discharge of the debt or liability. There is no single paper to support, the complainant and the accused entered into an agreement for construction of building in site and indebted to tune of Rs.49,73,525/- and made part payments and liability to pay the issuance of these two cheques. The above circumstance the compliant miserably failed to prove his case. I do not fund the accused guilty for the offence U/Sec. 138 NI Act and he is to be acquitted.

In the result: The accused is found not guilty for the offience punishable U/Sec. 138 NI Act and he is acquitted U/Sec. 255 (1) Cr.P.C The bail bonds of accused shall stands canceled. After appeal time is over.

Dictated to the Stenographer and transcribed by her, corrected and

pronounced by me in the open court this the 27th day of January, 2023.

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

Appendix of Evidence

COMPLAINANT SIDE EVIDENCE

P.W.1 Korada Shyamalarao (Complainant)

P.W.2 Ummadi Srinu

P.W.3 G. Simmayya

P.W.4 D. Ananda Rao (DM) (SBI, Siipuram)

P.W.5 Emmanuel Williams (Sr. B M, Bank of India)

Documents marked for the complainant:

Ex. P1 Is the Cheque of the Bank Of India, Overseas Branch, Visakhapatnam- 530013 dt.11-08-2014 bearing No.000008, Rs.50,000/- (Rs. Fifty thousand only), Original marked though Pw.1

Ex. P2 Is the Second cheque of the Bank Of India, Overseas Branch,

Visakhapatnam-530013 dt.11-08-2014 bearing No. 000009, Rs.50,000/- (Rs.

Fifty Thousand only), Original marked though Pw.1

Ex. P3 Is the State Bank of India, Siripuram Junction branch, Visakhapatnam for collection on dt. 12-08-2014, and the cheque was returned on the same day i.e. 12-08-2014 with an endorsement “Funds Insufficient” vide cheque return memo, Original marked though Pw.1

Ex. P4 Is the State bank of India, Siripuram Junction branch, Visakhapatnam for collection on dt. 12-08-2014, and the second cheque was returned on the same day i.e. 12-08-2014 with an endorsement “Funds Insufficient” vide cheque return memo, Original marked though Pw.1

Ex. P5 Is the State Bank of India, Siripuram Junction branch, Visakhapatnam for collection on dt. 12-09-2014, and the two cheques was returned on the same day i.e. 12-09-2014 with an endorsement “Funds Insufficient” vide cheque return memo, Original marked though Pw.1

Ex. P6 Is the State bank of India, Siripuram Junction branch, Visakhapatnam for collection on dt. 12-09-2014, and the two cheques was returned on the same day i.e. 12-09-2014 with an endorsement “Funds Insufficient” vide cheque return memo, Original marked though Pw.1

Ex.P7 Is the Legal notices issued by the complainant to the accused under section 138 of N.I.Act, Office Copy, dt. 29-09-2014 marked though Pw.1

Ex.P8 Is the Postal receipt, Original, dt. 29-09-2014 marked though Pw.1

Ex.P9 Is the Postal receipt, Original, dt. 29-09-2014 marked though Pw.1

Ex.P10 Is the Return Postal cover with Acknowledgment, Original marked though Pw.1

Ex.P11 Is the Return Postal cover with Acknowledgment, Original marked though Pw.1

Ex.P12 Is the Police report, Office copy marked though Pw.1

Ex.P13 Is the Police report, Original, dt. 10-01-2014 marked though Pw.1

Ex.X1 is the Authorization letter marked through P.W.4, dt.18-02-2020

Ex.X2 is the Statement of account of Account of complainant marked through P.W.4

Ex.X3 is the Statement of account of accused marked through P.W.5

Accused side Evidence: Nil

Documents marked for the Accused: Nil

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

CALENDAR AND JUDGMENT

IN THE COURT OF THE SPECIAL MAGISTRATE – I, VISAKHAPATNAM

C.C.NO.26/16

1.Date of offence: 11-08-2014

2.Date of complaint or report:28-10-2014

3.Date of apprehension of accused:02-09-2016

4.Date of release on bail:--

5.Date of commencement of trial ::13-09-2017

6.Date of closure of trial:22-08-2022

7.Date of Judgment:27-01-2023

8.R E M A R K S : Received by transfer from I Addl. Chief Metropolitan Magistrate's Court Visakhapatnam as CC No. 2310/14 which was renumbered CC.No. 26/16. After completion of trial, Judgment was pronounced on 27-01-2023 the accused found not guilty for the offence U/s 138 of NI Act and they are Acquitted U/sec 255(1) Cr.P.C. The bail bonds shall be canceled and unmarked property if any shall be destroyed after appeal time is over.

Complainant Korada Shyamala Rao, S/o Asirappadu, Hindu, aged 44 years, Resident D.No. 18-64, ASR Nagar, Seetammadara, Visakhapatnam

Description of the accused: Manoj Kumar, S/o Jains, aged 49 years, Resident of Flat No. 303, Lakshmi Nilayam Apartment, Salipeta, Visakhapatnam.

Offence Under Section: 138 of NI Act Finding: Found not guilty Sentence: The accused is Acquitted U/sec 255(1) Cr.P.C. The bail bonds shall be canceled and unmarked property if any shall be destroyed after appeal time is over.

Special Magistrate - I Visakhapatnam

IN THE COURT OF THE SPECIAL MAGISTRATE COURT-I AT VISAKHAPATNAM

PRESENT: Sri.P.M.M. SIDDHARTHI, B.A,B.L.

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

27th day of January, 2023

C.C.No. 26/16 (C.C.No.2310/14 of I Addl. Chief Metropolitan Magistrate Court, Visakapatnam )

Between :

Korada Shyamala Rao, S/o Asirappadu, Hindu, aged 44 years, Resident of D.No. 18-64, ASR Nagar, Seetammadara, Visakhapatnam.

….Complainant.

AND:

Manoj Kumar, S/o Jains, aged 49 years, Resident of Flat No. 303,

Lakshmi Nilayam Apartment, Salipeta, Visakhapatnam.

…Accused.

*********

This case came final hearing before me on 09-01-2023 for hearing in the presence of Sri. Kolli Krishna Rao, Advocate for the complainant and Sri. V. Soma Sundara Rao, Advocate for the accused, and having stood over for consideration till this day, the Court delivered the following :-

JUDGMENT

1.The present case is filed U/s 138 of Negotiable Instrument 1881 (for short here in after referred as N.I Act against accused).

2.The complainant submits that the accused have approached him for construction of the accused building at Main road, Gopalapatnam and after negotiations both parties come to an conclusion and the accused have agreed to pay an amount to me Rs. 49,73,525/- (Rs. Forty nine lakhs seventy three thousand five hundred and Twenty five only) for complete construction of the accused building along with strong room Dt. 21-06-2011. Same day, he have started contraction work, the accused have given an amount

Rs.13,000/- by the way of cash to me dt. 21-06-2011 have completed the work of the accused building construction according to the terms and conditions and I handover the same to the accused on 31-01-2012, however the accused did not pay the agreed amount till the date, even the accused started a Jewellery shop by name style of Mahaveer Jewelers on 22-04-2012 on building. The accused have issued amount with several installments ie., amount Rs. 40,06,775/- out of Rs. 49,73,525/-. The accused have to pay an amount Rs. 9,66,750/- and interest on the part Rs.6,00,000/- total the accused have to pay Rs. 15,66,750/-. The accused promised pay the said amount within 6 months either to him or his order on demand.

3.The complainant submits that inspite of repeated requests and demands made by him the accused have not issued any amount to him but the accused simply postponing the same on one pretext or the other. He approached the accused at the accused shop and house and he requested the accused with very polite manner the accused have cursed to me in unutterable foul language, and threatened him with knife and dire consequences, If again ask for amount. The accused and the accused people pull out him, he Suffered lot due to the acts of the accused and the accused people attitude and he have fed up and vexed up with the unwarranted attitude of the accused. he lodged a complaint against the accused vexed up with the up warranted attitude of the accused. he lodged a complaint against the accused for above said issue before the Honourable

Police Commissioner, Visakhapatnam on 10-01-2014 with receipt number

33. Later the accused said apology to him before the police station and requested him does not lodge FIR abut that above said issue. Later before the elders of the both parties the accused have promised to settled the amount Rs. 15,66,750/-.

4.The complainant submits that further partial discharge of the above said amount the accused have issued two cheques of the Bank of India,

Visakhapatnam overseas branch, Visakhapatnam, first cheque

dt. 11-08-2014, bearing No. 000008, Rs. 50,000/- and send cheque

dt. 11-08-2014, bearing No. 000009, Rs. 50,000/-.

5.The complainant submits that he have presented the above said two cheques with his bank ie., State Bank of India, Siripuram Junction branch,

Visakhapatnam for collection on dt. 12-08-2014, and the two cheques was returned on the same day ie., 12-08-2014 with an endorsement “Funds Insufficient” vide cheques return memos. And that he informed the same fact to the accused but the accused requested him not to take further steps and requested 30 days time to honour the cheques. Again he presented the above said two cheques with his bank ie., State Bank of India,

Siripuram junction branch, Visakhapatnam for collection on dt. 12-09-2014, and the two cheques were returned on the same day ie., 12-09-2014 with an endorsement “Funds insufficient” vide cheques return memos. But the accused have not paid any amount as such issued notice without keeping sufficient funds in the accused account the accused have issued said two cheques to me knowing fully well he humbly submitted that there are “Funds Insufficient”. Thereby the accused have committed an offence punishable under Sec. 138 & 142 of the NI Act and the accused also the accused acts will attract U/Sec. 420 IPC.

6.The complainant submits that issued legal notice to the accused dt.29-09-2014 to calling upon the accused have to pay the amount of dishonour of above said two cheques within 15 days from the date of receipt of the said notice. Failing which, he will be compelled to initiate criminal action against the accused under the provisions of Sec. 138&142 of NI Act as well as civil suit against the accused for recovery of the entire amount with interest. And that action of the accused in having allowed the cheque to return unpaid goes to show that with criminal intention and in order to defraud me, the accused had intentionally, deliberately and malafidely issued the cheque knowing fully well that the cheque will not be honoured.

Because the funds insufficient. Since the accused had not made any attempts to facilitate the encashment of the same. he was issued legal notice dt. 29-09-2014 to the accused U/Sec. 138 NI Act asking the accused to pay the whole dishonour of cheque amount within 15 days of receipt of the notice. The accused has failed to pay the cheque amount until date even after legal notice was issue to him. The accused therefore has committed an offence punishable fewer than 138 of the NI Act.

7.This case was taken on file by the I Addl. Che if Metropolitan

Magistrate Court, Visakhapatnam for the offence U/s 138 of N.I. Act against

the accused, subsequently the case is received by transfer to this court as per Dis No. 301 dt. 31-03-2016.

8.On receipt of summons accused entered his appearance through his counsel and copies of case documents are furnished to him as Required

U/s 207 of Cr.PC. Later the accused was examined u/s 251 Cr.PC explaining the allegations of the prosecution leveled against him. He denied the prosecution allegations and claimed to be tried.

9.In order to prove the guilt of the accused, the Complainant examined himself as PW.1 got marked Ex.P1 to Ex.P13. He also examined Pws. 2 and 3 are witnesses on his behalf to deposed about the facts of the case. Pw.4 is

Bank Officials to deposed that Ex.X2 is the statement of account of the complainant, Pw.5 is the Bank Officials who deposed about statements of account of the accused. Complainant reported his evidence is closed and the accused was examined U/s 313 Cr.PC explaining the incriminating circumstances that appeared against him. He denied the prosecution evidence as being false and reported he has no defense evidence.

10. Heard both sides and perused the record. Now the point for determination is:

1) Whether the complainant pleaded and proved the essential ingredients of Sec. 138 of N.I. Act?

2) Whether the complainant is able to bring home the Guilt of accused u/s 138 of N.I Act beyond reasonable doubt?

11.Points No. 1&2:

The complainant having examined P.W.1 and got marked Ex.P.1 to

Exs.P.13, Ex.P1 and P2 are the cheques for Rs. 50,000/- each issued by the accused in his favour, Ex.P3 and P4 are the cheque return memos for the above cheques with an endorsement of “Funds Insufficient”, Ex.P6 is the cheque return memo with an endorsement of ‘Funds insufficient”, Ex.P7 is the legal notice, dt.29-09-2014, Exs.P8 and P9 is the Postal receipts, dt. 29- 09-2014, Exs.P10 and P11 is the Return Postal covers with Acknowledgment,

Exs.P12 and P13 is the Police reports. He also examined Pws. 2 and 3 are witnesses on his behalf to deposed about the facts of the case. Pw.4 is Bank

Officials to deposed that Ex.X2 is the statement of account of the complainant, Pw.5 is the Bank Officials who deposed about statements of account of the accused that Ex.P1 and P2 cheques are bounced and Ex.P3 and P4 cheque return memos.

12.It is the case of complainant that the accused approached him that the construction of the building at Main road, After negotiation both parties come to conclusion that the accused have to pay an amount of

Rs.49,73,525/- for complete construction of the accused building, the accused is given an amount of Rs.13,000/- by way of cash, the complainant complected the work of the building construction and handed over the same. The Accused on 31-01-2012 did not pay the agreed amount. The accused has issued amount with several installments ie., amount Rs.

40,06,775/- out of Rs. 49,73,525/-. The accused have to pay an amount Rs.

9,66,750/- and interest on he part Rs. 6,00,000/- total the accused have to pay Rs. 15,66,750/-. The accused promised to pay the said amount within 6 months either to the complainant or to his order on demand. The complainant approach the accused to pay the amount which are indetended and accused misbehavior with him as such he got complainant before the police station. The accused later tendency apology and agreed before elders to settled the amount Rs. 15,66,750/- in that connection he issued two cheques Ex.P1 and P2 which were returned with an endorsement “Funds

Insufficient”. He is also got issued a legal notice and not made any reply thereby the accused committed an offence punishable U/Sec. 138 NI Act.

13.The case of the accused is that there is no legally enforceable debt between complainant and accused and he never executed any cheque issued infavour of the complainant. The complainant not filed any agreement which is for contractual obligation between the parties. The complainant not filed any receipt for part payments Pws.2 and 3 are complainant witnesses, thereby workers and him and they are interested and their evidence cannot be taken into consideration. There is no transaction between accused and complainant and also there is no legally enforcement debt between them, therefore prays the Honourable Court to acquit the accused from the alleged charges.

14. Cause of action: One of the three requirement that constitution

Cause of action is presentation of the cheque and dishonour thereof within the period of its validity or a period of six months. Other three requirements are (a) service of the notice upon the drawer of the cheque to make payment of the amount covered by the cheque and (b) failure of the drawer to make any such payment within the stipulated period of 15 days of the receipt of such a notice. On perusal of the record Ex. P.1 is the original cheque dt. 11-08-2014 issued by the accused infavour of the complainant, that two cheques were presented State Bank of India, Siripuram junction branch, Visakhapatnam on 12-09-2014 within the stipulated period of 6(six) months and that cheque was returned on the same day ie., 12-09-2014 with an endorsement “Funds Insufficient” having knowledge by the accused regarding the dishonour of the cheque he has not made payment within 15 days. Therefore the statutory requirements were fulfilled by the complainant and this case is maintainable.

15.Whether the Complainant proved his case or not?

Sec. 138 of NI Act in its explanation envisages that the cheques which are issued in-pursuance of the legally enforceable debt or other liability. The complainant contends that the accused issued two cheques under Exs.P1 and P2 which were returned under Ex.P5 and P6 due to “Funds Insufficient”, thereby the complainant alleged that the accused committed an offence punishable U/Sec. 138 NI Act. Mere dishonour of cheque does not constitute an offence unless and until the contrary is proved U/Sec. 139 NI Act. The presumption U/Sec. 139 NI Act is mandatory in nature. It shall be presumed unless and until the contradictory is proved that the holder of the cheque received the cheque of the nature referred to “Sec.138 for the discharge in whole or in part of debt or other liability. The above presumption is rebutable, complainant contended that those cheques were issued in discharge of debt. The accused agreed to construct the building in the site to the tune of Rs. 49,73,525/- and he gave cash of Rs. 13,000/- is part payment, later he also made several installment amounts of Rs.40,06,775/- and the accused have to pay an amount of Rs. 9,66,750/- and interest of Rs.

6,00,000/- total to pay Rs. 15,66,750/-.

While appreciating the evidence. “The complainant was examined as

Pw.1 and, categorically deposed in his cross examined “It is true that

there is agreement between him and accused for Rs.49,73,525/-”,

but he did not filed the above agreement into the court”, he did

not field any receipt or any paper pertaining to the payment of Rs.

13,000/- on 21-026-2011. He did not filed any documents that he

handed over the building after construction, he did not filed any

documents for the payments made by the accused. The accused

issued two cheques Rs.50,000/- each under Exs.P1 and P2. He

cannot say that the reasons for issuance of two cheques for the

tune of Rs.50,000/- each”.

The complainant also examined Pw.2 and he also categorically deposed in his cross examination.

“He is working under the complainant he did not know for

what purpose of the complainant filed the case against the accused.

He did not know whether the accused give any blank cheque or

not”.

The complainant further examined Pw.3 who is also categorically deposed that in cross examined.

“He working under the complainant for the last 15 years. He

did not knows for what amount the complainant and accused was

agreed for building construction, he did not know about the

particulars of the issuance of the cheques”.

The entire evidence of the complainant is self contradictory and not supported by Pws. 2 and 3 evidence. The learned accused counsel contended that the notices under Ex.P7 not received by the accused, if he received the said notices he should issue the reply notice denying the facts categorically. The complainant examined Pws.4 and 5 the Bank Officials nothing has been inferred except the showing the return of the cheques.

The complainant miserably failed that he received the cheques in discharge of the debt or liability. There is no single paper to support, the complainant and the accused entered into an agreement for construction of building in site and indebted to tune of Rs.49,73,525/- and made part payments and liability to pay the issuance of these two cheques. The above circumstance the compliant miserably failed to prove his case. I do not fund the accused guilty for the offence U/Sec. 138 NI Act and he is to be acquitted.

In the result: The accused is found not guilty for the offience punishable U/Sec. 138 NI Act and he is acquitted U/Sec. 255 (1) Cr.P.C The bail bonds of accused shall stands canceled. After appeal time is over.

Dictated to the Stenographer and transcribed by her, corrected and

pronounced by me in the open court this the 27th day of January, 2023.

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

Appendix of Evidence

COMPLAINANT SIDE EVIDENCE

P.W.1 Korada Shyamalarao (Complainant)

P.W.2 Ummadi Srinu

P.W.3 G. Simmayya

P.W.4 D. Ananda Rao (DM) (SBI, Siipuram)

P.W.5 Emmanuel Williams (Sr. B M, Bank of India)

Documents marked for the complainant:

Ex. P1 Is the Cheque of the Bank Of India, Overseas Branch, Visakhapatnam- 530013 dt.11-08-2014 bearing No.000008, Rs.50,000/- (Rs. Fifty thousand only), Original marked though Pw.1

Ex. P2 Is the Second cheque of the Bank Of India, Overseas Branch,

Visakhapatnam-530013 dt.11-08-2014 bearing No. 000009, Rs.50,000/- (Rs.

Fifty Thousand only), Original marked though Pw.1

Ex. P3 Is the State Bank of India, Siripuram Junction branch, Visakhapatnam for collection on dt. 12-08-2014, and the cheque was returned on the same day i.e. 12-08-2014 with an endorsement “Funds Insufficient” vide cheque return memo, Original marked though Pw.1

Ex. P4 Is the State bank of India, Siripuram Junction branch, Visakhapatnam for collection on dt. 12-08-2014, and the second cheque was returned on the same day i.e. 12-08-2014 with an endorsement “Funds Insufficient” vide cheque return memo, Original marked though Pw.1

Ex. P5 Is the State Bank of India, Siripuram Junction branch, Visakhapatnam for collection on dt. 12-09-2014, and the two cheques was returned on the same day i.e. 12-09-2014 with an endorsement “Funds Insufficient” vide cheque return memo, Original marked though Pw.1

Ex. P6 Is the State bank of India, Siripuram Junction branch, Visakhapatnam for collection on dt. 12-09-2014, and the two cheques was returned on the same day i.e. 12-09-2014 with an endorsement “Funds Insufficient” vide cheque return memo, Original marked though Pw.1

Ex.P7 Is the Legal notices issued by the complainant to the accused under section 138 of N.I.Act, Office Copy, dt. 29-09-2014 marked though Pw.1

Ex.P8 Is the Postal receipt, Original, dt. 29-09-2014 marked though Pw.1

Ex.P9 Is the Postal receipt, Original, dt. 29-09-2014 marked though Pw.1

Ex.P10 Is the Return Postal cover with Acknowledgment, Original marked though Pw.1

Ex.P11 Is the Return Postal cover with Acknowledgment, Original marked though Pw.1

Ex.P12 Is the Police report, Office copy marked though Pw.1

Ex.P13 Is the Police report, Original, dt. 10-01-2014 marked though Pw.1

Ex.X1 is the Authorization letter marked through P.W.4, dt.18-02-2020

Ex.X2 is the Statement of account of Account of complainant marked through P.W.4

Ex.X3 is the Statement of account of accused marked through P.W.5

Accused side Evidence: Nil

Documents marked for the Accused: Nil

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

CALENDAR AND JUDGMENT

IN THE COURT OF THE SPECIAL MAGISTRATE – I, VISAKHAPATNAM

C.C.NO.26/16

1.Date of offence: 11-08-2014

2.Date of complaint or report:28-10-2014

3.Date of apprehension of accused:02-09-2016

4.Date of release on bail:--

5.Date of commencement of trial ::13-09-2017

6.Date of closure of trial:22-08-2022

7.Date of Judgment:27-01-2023

8.R E M A R K S : Received by transfer from I Addl. Chief Metropolitan Magistrate's Court Visakhapatnam as CC No. 2310/14 which was renumbered CC.No. 26/16. After completion of trial, Judgment was pronounced on 27-01-2023 the accused found not guilty for the offence U/s 138 of NI Act and they are Acquitted U/sec 255(1) Cr.P.C. The bail bonds shall be canceled and unmarked property if any shall be destroyed after appeal time is over.

Complainant Korada Shyamala Rao, S/o Asirappadu, Hindu, aged 44 years, Resident D.No. 18-64, ASR Nagar, Seetammadara, Visakhapatnam

Description of the accused: Manoj Kumar, S/o Jains, aged 49 years, Resident of Flat No. 303, Lakshmi Nilayam Apartment, Salipeta, Visakhapatnam.

Offence Under Section: 138 of NI Act Finding: Found not guilty Sentence: The accused is Acquitted U/sec 255(1) Cr.P.C. The bail bonds shall be canceled and unmarked property if any shall be destroyed after appeal time is over.

Special Magistrate - I Visakhapatnam

1

IN THE COURT OF THE SPECIAL MAGISTRATE COURT-I AT

VISHAKAPATNAM

PRESENT: Sri.P.M.M.SIDDHARTHI, B.A,B.L.

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

31st day of May, 2023

C.C.No.255/18 (C.C.No.253/18 of Chief Metropolitan Magistrate Court, Visakhapatnam )

Between :

Chekka Sankara Rao, S/o Late Venkata Reddy, Hindu, aged 50 years, residing at D.No. 20-99-76, Jabbar Thota, Visakhapatnam.

….Complainant.

AND:

Teppala Pydiraju, S/o T. Konda, Hindu aged 42 years, residing at D.No. 20-13-1, Paindorapeta, Visakhapatnam.

…Accused.

This case came final hearing before me on 01-05-2023 for hearing in the presence of Sri. K. Yellaji Rao Advocate for the complainant and Sri. C.P. Raju,

Advocate for the accused, and having stood over for consideration till this day, the Court delivered the following :-

JUDGMENT

1.The present case is filed U/sec. 138 of Negoti able Instrument 1881 (for short here in after referred as N.I Act against accused).

2.The complainant submits that the accused have good acquaintance with the complainant since long time, due to the said acquaintance you approached the complainant and requested him to arrange an amount of Rs. 1,20,000/- (Rs. One 2 lakh Twenty thousand only) on 30-01-2017 from the complianant for the purpose of his family expenses and agreed to repay the above debt by way of installments for a period of twelve months Rs. 10,000/- executed a HAMI PATRAM in favour of complainant on the even date, agreeing the same together with interest @ 24%.

p.a., either to complianant or his order on demand. And he issue three cheques for Rs. 10,000/- each 029757, 029758, 029759 drawn on Union Bank of India,

Visakhapatnam, dt. 30-01-2017.

3.The complianant submits that subsequently inspite of repeated demands and requests made by the complainant, the accused did not chose to repay either towards principal amount or interest and he have simply postponing the same on one pretext or the other. Finally the accused issued three cheques No. 029757 of

Rs. 10,000/- dt.20-01-2018, Cheque No. 029758 of Rs. 10,000/-, dt. 20-02-2018 and cheque No.029759, dt. 20-03-2018 for Rs.10,000/- respectively drawn on

Union Bank of India, SSI Finance Branch, Visakhapatnam and the said cheque was presented by the complianant for collection on 20-03-2018 through my banker

Bank of India, Visakhapatnam Service Branch, Bowdara road, Visakhapatnam and the said cheque returned with an endoresment “ACCOUNT CLOSED” vide memos

dt. 22-03-2018, and the same intimated to the accused personally by the

complainant, but the accused kept silent.

4.The complainant submits that he got issued legal notie to the accused on 10-04-2018 through his counsel demanding him to pay amount within 15 days from the date of receipt of the said notice, but the accused neither pay amount nor give reply though the said legal notice served on accused on 11-04-2018 and 3 13-04-2018, but he refused to receive the notice, hence finally the said notice was returned on 20-04-218 wih an endoreemnt “Unclaimed”.

5.The complainant submits that the accused issued cheque by knowingfully well that there is an exceeds arrangemnts in his account with view avoid to pay the debt amount to the complainant, thus the accused shall liable for punish under section 138 and 142 of N.I.Act. Hence, the complainant.

6.This case was taken on filed by the Chief Metropolitan Magistrate Court,

Visakhapatnam for the offence u/sec 138 of N.I Act against the accused, subsequently the case was transferred to this court in Dis No.810 dt. 09-08-2018 and renumbered as C.C.255/18 to dispose the case according to law.

7.On receipt of summons accused entered his appearance through his counsel and copies of case documents are furnished to him as Required U/s 207 of Cr.PC.

Later the accused was examined u/s 251 Cr.PC explaining the allegations of the prosecution leveled against him. He denied the prosecution allegations and claimed to be tried.

8.In order to prove the guilt of the accused, Complainant examined himself as

PW1 and got marked Ex.P1 to Ex.P9. He also examined P.W.2 and P.W.3 who are

Bank officials marked Ex.X.1 to X.6. After prosecution reported his evidence as closed, the accused was examined U/s 313 Cr.PC on 09-02-2023 explaining the incriminating circumstances that appeared against him. He denied the prosecution evidence as being false and reported he has defense evidence. But on 16-03-2023 he stated he has no defence evidence, matter posted for arguments.

4

9. Heard both sides and perused the record. Nowthepointfor determination is:

1. Whether the complainant pleaded and proved the essential ingredients of Sec. 138 of N.I. Act?

2. Whether the complainant is able to bring home the Guilt of accused u/s 138 of N.I Act beyond reasonable doubt?

10. Points No. 1& 2:

The complainant having examined as PW1 and got marked Ex. P1 to P9.

Ex. P1 is the Original promissory note dated 30-01-2017, Ex.P2 is the Original

Hamipatram, dt.30-01-2017, Ex.P3 is the Original Cheque No.029757 for

Rs. 10,000/- dt.20-01-2018, Ex.P4 is the Original Cheque No.029758 for

Rs. 10,000/- dt.20-02-2018, Ex.P5 is the Original Cheque No.029759 for

Rs. 10,000/- dt.20-03-2018, Ex.P6 is the Original Three cheque return memos

Dt. 22-03-2018, Ex.P7 is the Office copy of Legal notice dated 10-04-2018, Ex.P8

is the Original Postal receipt, dt 10-04-2018 and Ex.P9 is the Original Retunred

Postal Cover, dt. 20-04-2018. He also examined P.Ws.2 and 3 Bank Officials of the compliant and accused Bank and or marked Ex.X1 statement of complianant,

Ex.X2 statement copy of Accused, Exs 3,4,5 & 6 Computer Generated Copies of cheque rerturn memos.

11.It is the case of complainant that the accused borrowed an amount of Rs.

1,20,000/- (Rupees One Lakh Twenty thousand only) from the complainant on 30- 01-2017 for the purpose of family expenses in the Ex. P1 pronote in favour of the complianant. And he also filed Ex.P2 original Hamipatram on the same day which is Ex.P2, The complianant submits that subsequently inspite of repeated demands and requests made by the complainant, the accused did not chose to repay either towards principal amount or interest and he have simply postponing the same on one pretext or the other. Finally the accused issued three cheques No. 029757 of

Rs. 10,000/- dt.20-01-2018, Cheque No. 029758 of Rs. 10,000/-, 5

dt. 20-02-2018 and cheque No.029759, dt. 20-03-2018 of Rs.10,000/- respectively

drawn on Union Bank of India, SSI Finance Branch, Visakhapatnam and the said cheque was presented by the complianant for collection on 20-03-2018 through my banker Bank of India, Visakhapatnam Service Branch, Bowdara road,

Visakhapatnam andthe said cheque returned with an endoresment “ACCOUNT

CLOSED” vdie memos dt. 22-03-2018, and the same intimated to the accused personally by the complainant, but the accused kept silent.

12.The complainant submits that he got issued legal notie to the accused on 10-04-2018 through his counsel demanding him to pay amount within 15 days from the date of receipt of the said notice, but the accused neither pay amount nor give reply though the said legal notice served on accused on 11-04-2018, but he refused to receive the notice, hence finally the said notice was returned on 20-04-218 with an endoreemnt “Unclaimed”. The complainant examined himself as PW.1 and along with the PW.2 and 3 who are the Bank Officials. Therefore, the complainant proved his case and prays the Hon’ble court to convict the accused.

13.The case of the accused is that there is no legally enforceable debt between complainant and accused and never executed any pro-note or any cheque infavour of the complainant. The complainant has no capacity to advance such huge amount. The service of the notice is doubt. Therefore, the complaint is liable to be dismissed and prays the Hon’ble court to acquit the accused form the alleged charges.

14. Cause of action: One of the three requirement that constitution Cause of action is presentation of the cheque and dishonour thereof within the period of its validity or a period of six months. Other three requirements are (a) service of the notice upon the drawer of the cheque to make payment of the amount covered by the cheque and (b) failure of the drawer to make any such payment within the stipulated period of 15 days of the receipt of such a notice. On perusal 6 of the record Ex. P.2 is the original Hamipatram dt. 30-01-2017 issued by the accused infavour of the complainant, that cheque was presented UInion Bank of

India, SSI Finance Branch, Visakhapatnam on 20-03-2018 within the stipulated period of 6 (six) months and that cheque was dishonored due to the reason of “ACCOUNT CLOSED” having knowledge by the accused regarding the dishonour of the cheque he has not made payment within 15 days. Therefore the statutory requirements were fulfilled by the complainant and this case is maintainable.

15. Legally enforceable debt:

It is the main contention of the accused that no legally enforceable debt between the parties since the pronote and cheque were fabricated. The attestor and scribe of the pronote are not examined. The attestor and scribe are interested witness. Therefore, the complaint is not maintainable. In this regard, this is not a civil case to prove the execution of the pronote. This complaint is filed u/sec 138 of N.I Act which is criminal in nature. Further, the allegations against accused is that he issued three cheques for Rs. 30,000/- in favour of the complainant which were bounced. Therefore, the complaint is maintainable u/sec 138 of N.I Act. The accused also not denied the signature on the pronote and cheque were not belongs to him. Therefore, there is legally enforceable debt between the parties.

16.Capacity to advance amount by the complainant:

It is the case of the accused that the complainant has no capacity to advance such huge amount of Rs. 1,20,000/- and he did not filed any Income Tax returns. In this regard the preposition is clear the court should have restricted itself without going into those aspects, as it is unnecessary for a criminal court to go into the details whether it is probable to say that such huge amount was lent by the complainant to the accused without knowing the profession or education and his capacity to repay the amount etc., which are beyond the scope of the criminal Court. It is not necessary for aspects of the capacity to lend amount in 7 the cases under Negotiable Instrument Act, the accused can advance that there is no legally enforceable debt with the complainant and also the cheques are not issued by him. These are the major defences available to the accused only about the debt. The capacity to lend the amount is a trivial in nature and cannot be given much relief himself.

17.Service of Notice:

It is the main contention of the accused is that no notice was served upon him. But on perusal of the Ex.P8 the intimation of the postal department,

Superintendent the letter was delievered to addressee on 10-04-2018. Therefore, it is to be presumed the notice is duly served.

18.Burden of Proof:

Whether this complainant proved his case or not? In this regard the complainant himself examined as P.W.1 and categorically deposed about the facts borrowing amount of Rs.1,20,000/- by the accused and execution of the pronote note. The said pronote got marked Ex.P1 and the accused issued three cheques

No. 029757 of Rs. 10,000/- dt.20-01-2018, Cheque No. 029758 for Rs. 10,000/-,

dt. 20-02-2018 and cheque No.029759, for Rs.10,000/- dt. 20-03-2018 which was

retuned with endorsement “ACCOUNT CLOSED”. The cheque were marked as

Exs.P3 to 5 and return memo Ex.P6, later Ex.P9 is duly served on the accused as per the report of the postal department. The complaiannt also examined PW.2 and PW.3 who are Bank Officials. Therefore, the complainant proved his case with the consisting and corroborative evidence of PW.1 to PW.3 and the recitals of

Ex.P1 to P9.

19.To Sum Up:

1) The accused failed to adduce rebuttal evidence with regard to non existence of debt.

2) The accused not given any reply notice nor made any repayment after receiving the notice.

3)Not given any complaint against complainant for with holding cheque without his consent.

8

Therefore, I am of the opinion the complainant proved his case and accused is liable to be convicted for the offence U/s 138 of NI Act.

In the result: The accused found guilty for offence U/s 138 of NI Act 1881, and he is convicted U/s 255(2) Cr.PC.

When accused was questioned about quantum of the sentence U/sec 255(2)

Cr.P.C, he stated that “ I am having Children

I aml coolie Pleaded Mercy”.

The mitigating circumstances submitted by the accused needs sympathy of the court, but the court need to consider the interest of litigating parties and society at large in imposing sentence on the accused for the offence with which accused is found guilty. The accused found guilty for the offence U/s 138 of N.I.

Act. Wherein the legislative prescribed punishment of imprisonment extending to over two years or with fine which may extend to twice the cheque amount or with both. In the present case, Ex. P.3,P4, P5 cheque amount came Rs. 30,000/- (Rupees Thirty Thousand only). It is noted here that had the complaint deposited the amount in bank, he could have fetched interest @ 9% P.A on the principal amount. Therefore, considering the litigation that with stood for over 5 year’s period, it is just and proper to pass the following sentence.

In the Result, the accused is convicted U/s 255(2) Cr.PC for the

offence U/s 138 of NI Act and sentenced to suffer SI for period of

3 (Three) months. The accused further directed to pay compensation of

Rs. 50,000/- to the complainant In default to suffer SI for 2 (Two)

months.

It is needless to say that the liability of the accused would not absolve by suffering default imprisonment of 2(Two) months. The complainant is at liberty to 9 take steps u/s 421 Cr.PC for realization of compensation in case the accused fails to pay the compensation amount.

The remand period undergone if any shall be set-off U/s 428 Cr.PC.

Office is directed to furnish true copy of Judgment to accused forthwith.

The Judgment dictated to the Stenographer and transcribed by him, corrected and pronounced by me in the open court this the 31st day of May, 2023.

Sd/-(P.M.M. Siddharthi)

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

Appendix of Evidence

COMPLAINANT SIDE EVIDENCE

P.W.1 Ch. Sankar Rao (complainant)

P.W.2 Ramohan Rao Bevara (Branch Manager, (Bank of India)

P.W.3 P. Sagar (Asst. Manager)

Documents marked for the complainant:

Ex.P.1 Is the Original Promissory note Rs. 1,20,000/- dt. 30-01-2017 marked through PW1.

Ex.P2 Is the Original Hamipatram dt. 30-01-2017

Ex.P.3 Is the Original cheque No.029757, Rs. 10,000/- dt.20-01-2018 marked through PW1

Ex.P.4 Is the Original cheque No.029758, Rs. 10,000/- dt.20-02-2018 marked through PW1

Ex.P.5 Is the Original cheque No.029759, Rs. 10,000/- dt.20-03-2018 marked through PW1

Ex.P.6 Is the Original Return Memos Three nos, dt. 22-03-2018 marked through PW1

Ex.P.7 Is the Office copy of the Lawyer’s notice dt. 10-04-2018 marked through PW1

Ex.P.8 Is the Original Postal receipt dt. 10-04-2018 marked through PW1

Ex.P.9 Is the Return Postal Cover dt. 20-04-2018 marked through PW1 10

Ex.X1 Is the Statementk copy of Complainant

Ex.X2 Is the Statementk copy of Accused

Exs.X3 to X6 Computer Generated Cpoies of Cheque return memos

Accused side Evidence: Nil

Documents marked for the Accused: Nil .

Sd/-(P.M.M. Siddharthi)

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

//True copy// 11

CALENDAR AND JUDGMENT

IN THE COURT OF THE SPECIAL MAGISTRATE – I, VISAKHAPATNAM

C.C.NO.255/18

1.Date of offence: 20-01-2018, 20-02-2018 & 20-03-2018

2.Date of complaint or report:16-05-2018

3.Date of apprehension of accused:26-03-2019

4.Date of release on bail:--

5.Date of commencement of trial:16-12-2021

6.Date of closure of trial:16-03-2023

7.Date of Judgment:31-05-2023

8.R E M A R K S : Received by transfer from CMM Court

Visakhapatnam as CC No.253/18 which was renumbered C.No.255/18. After completion of trial, Judgment was pronounced on 31-05-2023 the accused found guilty for the offence U/s 138 of NI Act and he is convicted U/s 255(2) Cr.P.C to undergo simple imprisonment for 3 (Three) months and sentenced to pay compensation of Rs.50,000/- (Rupees Fifty Thousand only) to the complainant in default to Suffer SI for 2 (two) months.

The liability of accused would not absolve by suffering default imprisonment of 2 (two) months. The complainant is at liberty to take steps u/sec 421 Cr.P.C. For realisation of compensation in case the accused fails to pay compensation amount.

The remand period undergone if any shall be set-off u/sec 428 Cr.P.C.

Complainant:

Chekka Sankara Rao, S/o Late Venkata Reddy, Hindu, aged 50 years, residing at D.No. 20-99-76, Jabbar Thota, Visakhapatnam.

Description of the accused:

Teppala Pydiraju, S/o T. Konda, Hindu aged 42 years, residing at D.No. 20-13-1, Paindorapeta, Visakhapatnam.

12

Offence Under Section: 138 of NI Act

Finding : Found guilty

Sentence: The accused is convicted U/s 255(2) Cr.PC for the offence U/s 138 of NI Act and sentenced to suffer SI for period of 3 (Three ) months. The accused further directed to pay compensation of Rs.50,000/- (Rupees Fifty Thousand only) to the complainant In default to suffer SI for 2 (two) months.

The remand period undergone if any shall be set-off U/s 428 Cr.PC.

N.B: The sentence imposed on the accused is suspended for 30 days as per orders passed in Crl.MP. 2287/23 on executing a bond for Rs.5,000 /- (Rupees Five Thousand

Only) with one surety. Accused executed the bond accordingly on 31-05-2023.

Sd/-(P.M.M. Siddharthi)

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

//True copy// 13

Dt. 31-05-2023:

When accused was questioned about quantum of the sentence U/sec 255(2)

Cr.P.C, he stated that

ACKNOWLEDGMENT

Received a copy of Calendar and Judgment dt. -------------------------- in

C.C.No.------------------------ on the file of Special Magistrate Court-1, Visakhapantma.

Accused/Advocate for the Accused.

ACKNOWLEDGMENT

Received a copy of Calendar and Judgment dt. -------------------------- in

C.C.No.------------------------ on the file of Special Magistrate Court-1, Visakhapantma.

Accused/Advocate for the Accused.

14

ACKNOWLEDGMENT

Received a copy of Calendar and Judgment dt. -------------------------- in

C.C.No.------------------------ on the file of Special Magistrate Court-1, Visakhapantma.

Accused/Advocate for the Accused.

ACKNOWLEDGMENT

Received a copy of Calendar and Judgment dt. -------------------------- in

C.C.No.------------------------ on the file of Special Magistrate Court-1, Visakhapantma.

Accused/Advocate for the Accused.

ACKNOWLEDGMENT

Received a copy of Calendar and Judgment dt. -------------------------- in

C.C.No.------------------------ on the file of Special Magistrate Court-1, Visakhapantma.

Accused/Advocate for the Accused.

1

IN THE COURT OF THE SPECIAL MAGISTRATE COURT-I AT

VISAKHAPATNAM

PRESENT: Sri.P.M.M.SIDDHARTHI, B.A,B.L.

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

31st day of May, 2023

C.C.No.255/18 (C.C.No.253/18 of Chief Metropolitan Magistrate Court, Visakhapatnam )

Between :

Chekka Sankara Rao, S/o Late Venkata Reddy, Hindu, aged 50 years, residing at D.No. 20-99-76, Jabbar Thota, Visakhapatnam.

….Complainant.

AND:

Teppala Pydiraju, S/o T. Konda, Hindu aged 42 years, residing at D.No. 20-13-1, Paindorapeta, Visakhapatnam.

…Accused.

This case came final hearing before me on 01-05-2023 for hearing in the presence of Sri. K. Yellaji Rao Advocate for the complainant and Sri. C.P. Raju,

Advocate for the accused, and having stood over for consideration till this day, the Court delivered the following :-

JUDGMENT

1.The present case is filed U/sec. 138 of Negoti able Instrument 1881 (for short here in after referred as N.I Act against accused).

2.The complainant submits that the accused have good acquaintance with the complainant since long time, due to the said acquaintance you approached the complainant and requested him to arrange an amount of Rs. 1,20,000/- (Rs. One 2 lakh Twenty thousand only) on 30-01-2017 from the complianant for the purpose of his family expenses and agreed to repay the above debt by way of installments for a period of twelve months Rs. 10,000/- executed a HAMI PATRAM in favour of complainant on the even date, agreeing the same together with interest @ 24%.

p.a., either to complianant or his order on demand. And he issue three cheques for Rs. 10,000/- each 029757, 029758, 029759 drawn on Union Bank of India,

Visakhapatnam, dt. 30-01-2017.

3.The complianant submits that subsequently inspite of repeated demands and requests made by the complainant, the accused did not chose to repay either towards principal amount or interest and he have simply postponing the same on one pretext or the other. Finally the accused issued three cheques No. 029757 of

Rs. 10,000/- dt.20-01-2018, Cheque No. 029758 of Rs. 10,000/-, dt. 20-02-2018 and cheque No.029759, dt. 20-03-2018 for Rs.10,000/- respectively drawn on

Union Bank of India, SSI Finance Branch, Visakhapatnam and the said cheque was presented by the complianant for collection on 20-03-2018 through my banker

Bank of India, Visakhapatnam Service Branch, Bowdara road, Visakhapatnam and the said cheque returned with an endoresment “ACCOUNT CLOSED” vide memos

dt. 22-03-2018, and the same intimated to the accused personally by the

complainant, but the accused kept silent.

4.The complainant submits that he got issued legal notie to the accused on 10-04-2018 through his counsel demanding him to pay amount within 15 days from the date of receipt of the said notice, but the accused neither pay amount nor give reply though the said legal notice served on accused on 11-04-2018 and 3 13-04-2018, but he refused to receive the notice, hence finally the said notice was returned on 20-04-218 wih an endoreemnt “Unclaimed”.

5.The complainant submits that the accused issued cheque by knowingfully well that there is an exceeds arrangemnts in his account with view avoid to pay the debt amount to the complainant, thus the accused shall liable for punish under section 138 and 142 of N.I.Act. Hence, the complainant.

6.This case was taken on filed by the Chief Metropolitan Magistrate Court,

Visakhapatnam for the offence u/sec 138 of N.I Act against the accused, subsequently the case was transferred to this court in Dis No.810 dt. 09-08-2018 and renumbered as C.C.255/18 to dispose the case according to law.

7.On receipt of summons accused entered his appearance through his counsel and copies of case documents are furnished to him as Required U/s 207 of Cr.PC.

Later the accused was examined u/s 251 Cr.PC explaining the allegations of the prosecution leveled against him. He denied the prosecution allegations and claimed to be tried.

8.In order to prove the guilt of the accused, Complainant examined himself as

PW1 and got marked Ex.P1 to Ex.P9. He also examined P.W.2 and P.W.3 who are

Bank officials marked Ex.X.1 to X.6. After prosecution reported his evidence as closed, the accused was examined U/s 313 Cr.PC on 09-02-2023 explaining the incriminating circumstances that appeared against him. He denied the prosecution evidence as being false and reported he has defense evidence. But on 16-03-2023 he stated he has no defence evidence, matter posted for arguments.

4

9. Heard both sides and perused the record. Nowthepointfor determination is:

1. Whether the complainant pleaded and proved the essential ingredients of Sec. 138 of N.I. Act?

2. Whether the complainant is able to bring home the Guilt of accused u/s 138 of N.I Act beyond reasonable doubt?

10. Points No. 1& 2:

The complainant having examined as PW1 and got marked Ex. P1 to P9.

Ex. P1 is the Original promissory note dated 30-01-2017, Ex.P2 is the Original

Hamipatram, dt.30-01-2017, Ex.P3 is the Original Cheque No.029757 for

Rs. 10,000/- dt.20-01-2018, Ex.P4 is the Original Cheque No.029758 for

Rs. 10,000/- dt.20-02-2018, Ex.P5 is the Original Cheque No.029759 for

Rs. 10,000/- dt.20-03-2018, Ex.P6 is the Original Three cheque return memos

Dt. 22-03-2018, Ex.P7 is the Office copy of Legal notice dated 10-04-2018, Ex.P8

is the Original Postal receipt, dt 10-04-2018 and Ex.P9 is the Original Retunred

Postal Cover, dt. 20-04-2018. He also examined P.Ws.2 and 3 Bank Officials of the compliant and accused Bank and or marked Ex.X1 statement of complianant,

Ex.X2 statement copy of Accused, Exs 3,4,5 & 6 Computer Generated Copies of cheque rerturn memos.

11.It is the case of complainant that the accused borrowed an amount of Rs.

1,20,000/- (Rupees One Lakh Twenty thousand only) from the complainant on 30- 01-2017 for the purpose of family expenses in the Ex. P1 pronote in favour of the complianant. And he also filed Ex.P2 original Hamipatram on the same day which is Ex.P2, The complianant submits that subsequently inspite of repeated demands and requests made by the complainant, the accused did not chose to repay either towards principal amount or interest and he have simply postponing the same on one pretext or the other. Finally the accused issued three cheques No. 029757 of

Rs. 10,000/- dt.20-01-2018, Cheque No. 029758 of Rs. 10,000/-, 5

dt. 20-02-2018 and cheque No.029759, dt. 20-03-2018 of Rs.10,000/- respectively

drawn on Union Bank of India, SSI Finance Branch, Visakhapatnam and the said cheque was presented by the complianant for collection on 20-03-2018 through my banker Bank of India, Visakhapatnam Service Branch, Bowdara road,

Visakhapatnam andthe said cheque returned with an endoresment “ACCOUNT

CLOSED” vdie memos dt. 22-03-2018, and the same intimated to the accused personally by the complainant, but the accused kept silent.

12.The complainant submits that he got issued legal notie to the accused on 10-04-2018 through his counsel demanding him to pay amount within 15 days from the date of receipt of the said notice, but the accused neither pay amount nor give reply though the said legal notice served on accused on 11-04-2018, but he refused to receive the notice, hence finally the said notice was returned on 20-04-218 with an endoreemnt “Unclaimed”. The complainant examined himself as PW.1 and along with the PW.2 and 3 who are the Bank Officials. Therefore, the complainant proved his case and prays the Hon’ble court to convict the accused.

13.The case of the accused is that there is no legally enforceable debt between complainant and accused and never executed any pro-note or any cheque infavour of the complainant. The complainant has no capacity to advance such huge amount. The service of the notice is doubt. Therefore, the complaint is liable to be dismissed and prays the Hon’ble court to acquit the accused form the alleged charges.

14. Cause of action: One of the three requirement that constitution Cause of action is presentation of the cheque and dishonour thereof within the period of its validity or a period of six months. Other three requirements are (a) service of the notice upon the drawer of the cheque to make payment of the amount covered by the cheque and (b) failure of the drawer to make any such payment within the stipulated period of 15 days of the receipt of such a notice. On perusal 6 of the record Ex. P.2 is the original Hamipatram dt. 30-01-2017 issued by the accused infavour of the complainant, that cheque was presented UInion Bank of

India, SSI Finance Branch, Visakhapatnam on 20-03-2018 within the stipulated period of 6 (six) months and that cheque was dishonored due to the reason of “ACCOUNT CLOSED” having knowledge by the accused regarding the dishonour of the cheque he has not made payment within 15 days. Therefore the statutory requirements were fulfilled by the complainant and this case is maintainable.

15. Legally enforceable debt:

It is the main contention of the accused that no legally enforceable debt between the parties since the pronote and cheque were fabricated. The attestor and scribe of the pronote are not examined. The attestor and scribe are interested witness. Therefore, the complaint is not maintainable. In this regard, this is not a civil case to prove the execution of the pronote. This complaint is filed u/sec 138 of N.I Act which is criminal in nature. Further, the allegations against accused is that he issued three cheques for Rs. 30,000/- in favour of the complainant which were bounced. Therefore, the complaint is maintainable u/sec 138 of N.I Act. The accused also not denied the signature on the pronote and cheque were not belongs to him. Therefore, there is legally enforceable debt between the parties.

16.Capacity to advance amount by the complainant:

It is the case of the accused that the complainant has no capacity to advance such huge amount of Rs. 1,20,000/- and he did not filed any Income Tax returns. In this regard the preposition is clear the court should have restricted itself without going into those aspects, as it is unnecessary for a criminal court to go into the details whether it is probable to say that such huge amount was lent by the complainant to the accused without knowing the profession or education and his capacity to repay the amount etc., which are beyond the scope of the criminal Court. It is not necessary for aspects of the capacity to lend amount in 7 the cases under Negotiable Instrument Act, the accused can advance that there is no legally enforceable debt with the complainant and also the cheques are not issued by him. These are the major defences available to the accused only about the debt. The capacity to lend the amount is a trivial in nature and cannot be given much relief himself.

17.Service of Notice:

It is the main contention of the accused is that no notice was served upon him. But on perusal of the Ex.P8 the intimation of the postal department,

Superintendent the letter was delievered to addressee on 10-04-2018. Therefore, it is to be presumed the notice is duly served.

18.Burden of Proof:

Whether this complainant proved his case or not? In this regard the complainant himself examined as P.W.1 and categorically deposed about the facts borrowing amount of Rs.1,20,000/- by the accused and execution of the pronote note. The said pronote got marked Ex.P1 and the accused issued three cheques

No. 029757 of Rs. 10,000/- dt.20-01-2018, Cheque No. 029758 for Rs. 10,000/-,

dt. 20-02-2018 and cheque No.029759, for Rs.10,000/- dt. 20-03-2018 which was

retuned with endorsement “ACCOUNT CLOSED”. The cheque were marked as

Exs.P3 to 5 and return memo Ex.P6, later Ex.P9 is duly served on the accused as per the report of the postal department. The complaiannt also examined PW.2 and PW.3 who are Bank Officials. Therefore, the complainant proved his case with the consisting and corroborative evidence of PW.1 to PW.3 and the recitals of

Ex.P1 to P9.

19.To Sum Up:

1) The accused failed to adduce rebuttal evidence with regard to non existence of debt.

2) The accused not given any reply notice nor made any repayment after receiving the notice.

3)Not given any complaint against complainant for with holding cheque without his consent.

8

Therefore, I am of the opinion the complainant proved his case and accused is liable to be convicted for the offence U/s 138 of NI Act.

In the result: The accused found guilty for offence U/s 138 of NI Act 1881, and he is convicted U/s 255(2) Cr.PC.

When accused was questioned about quantum of the sentence U/sec 255(2)

Cr.P.C, he stated that “ I am having Children

I aml coolie Pleaded Mercy”.

The mitigating circumstances submitted by the accused needs sympathy of the court, but the court need to consider the interest of litigating parties and society at large in imposing sentence on the accused for the offence with which accused is found guilty. The accused found guilty for the offence U/s 138 of N.I.

Act. Wherein the legislative prescribed punishment of imprisonment extending to over two years or with fine which may extend to twice the cheque amount or with both. In the present case, Ex. P.3,P4, P5 cheque amount came Rs. 30,000/- (Rupees Thirty Thousand only). It is noted here that had the complaint deposited the amount in bank, he could have fetched interest @ 9% P.A on the principal amount. Therefore, considering the litigation that with stood for over 5 year’s period, it is just and proper to pass the following sentence.

In the Result, the accused is convicted U/s 255(2) Cr.PC for the

offence U/s 138 of NI Act and sentenced to suffer SI for period of

3 (Three) months. The accused further directed to pay compensation of

Rs. 50,000/- to the complainant In default to suffer SI for 2 (Two)

months.

It is needless to say that the liability of the accused would not absolve by suffering default imprisonment of 2(Two) months. The complainant is at liberty to 9 take steps u/s 421 Cr.PC for realization of compensation in case the accused fails to pay the compensation amount.

The remand period undergone if any shall be set-off U/s 428 Cr.PC.

Office is directed to furnish true copy of Judgment to accused forthwith.

The Judgment dictated to the Stenographer and transcribed by him, corrected and pronounced by me in the open court this the 31st day of May, 2023.

Sd/-(P.M.M. Siddharthi)

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

Appendix of Evidence

COMPLAINANT SIDE EVIDENCE

P.W.1 Ch. Sankar Rao (complainant)

P.W.2 Ramohan Rao Bevara (Branch Manager, (Bank of India)

P.W.3 P. Sagar (Asst. Manager)

Documents marked for the complainant:

Ex.P.1 Is the Original Promissory note Rs. 1,20,000/- dt. 30-01-2017 marked through PW1.

Ex.P2 Is the Original Hamipatram dt. 30-01-2017

Ex.P.3 Is the Original cheque No.029757, Rs. 10,000/- dt.20-01-2018 marked through PW1

Ex.P.4 Is the Original cheque No.029758, Rs. 10,000/- dt.20-02-2018 marked through PW1

Ex.P.5 Is the Original cheque No.029759, Rs. 10,000/- dt.20-03-2018 marked through PW1

Ex.P.6 Is the Original Return Memos Three nos, dt. 22-03-2018 marked through PW1

Ex.P.7 Is the Office copy of the Lawyer’s notice dt. 10-04-2018 marked through PW1

Ex.P.8 Is the Original Postal receipt dt. 10-04-2018 marked through PW1

Ex.P.9 Is the Return Postal Cover dt. 20-04-2018 marked through PW1 10

Ex.X1 Is the Statementk copy of Complainant

Ex.X2 Is the Statementk copy of Accused

Exs.X3 to X6 Computer Generated Cpoies of Cheque return memos

Accused side Evidence: Nil

Documents marked for the Accused: Nil .

Sd/-(P.M.M. Siddharthi)

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

11

CALENDAR AND JUDGMENT

IN THE COURT OF THE SPECIAL MAGISTRATE – I, VISAKHAPATNAM

C.C.NO.255/18

1.Date of offence: 20-01-2018, 20-02-2018 & 20-03-2018

2.Date of complaint or report:16-05-2018

3.Date of apprehension of accused:26-03-2019

4.Date of release on bail:--

5.Date of commencement of trial:16-12-2021

6.Date of closure of trial:16-03-2023

7.Date of Judgment:31-05-2023

8.R E M A R K S : Received by transfer from CMM Court

Visakhapatnam as CC No.253/18 which was renumbered C.No.255/18. After completion of trial, Judgment was pronounced on 31-05-2023 the accused found guilty for the offence U/s 138 of NI Act and he is convicted U/s 255(2) Cr.P.C to undergo simple imprisonment for 3 (Three) months and sentenced to pay compensation of Rs.50,000/- (Rupees Fifty Thousand only) to the complainant in default to Suffer SI for 2 (two) months.

The liability of accused would not absolve by suffering default imprisonment of 2 (two) months. The complainant is at liberty to take steps u/sec 421 Cr.P.C. For realisation of compensation in case the accused fails to pay compensation amount.

The remand period undergone if any shall be set-off u/sec 428 Cr.P.C.

Complainant:

Chekka Sankara Rao, S/o Late Venkata Reddy, Hindu, aged 50 years, residing at D.No. 20-99-76, Jabbar Thota, Visakhapatnam.

Description of the accused:

Teppala Pydiraju, S/o T. Konda, Hindu aged 42 years, residing at D.No. 20-13-1, Paindorapeta, Visakhapatnam.

12

Offence Under Section: 138 of NI Act

Finding : Found guilty

Sentence: The accused is convicted U/s 255(2) Cr.PC for the offence U/s 138 of NI Act and sentenced to suffer SI for period of 3 (Three ) months. The accused further directed to pay compensation of Rs.50,000/- (Rupees Fifty Thousand only) to the complainant In default to suffer SI for 2 (two) months.

The remand period undergone if any shall be set-off U/s 428 Cr.PC.

N.B: The sentence imposed on the accused is suspended for 30 days as per orders passed in Crl.MP. 2287/23 on executing a bond for Rs.5,000 /- (Rupees Five Thousand

Only) with one surety. Accused executed the bond accordingly on 31-05-2023.

Sd/-(P.M.M. Siddharthi)

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

IN THE COURT OF THE SPECIAL MAGISTRATE COURT-I AT

VISAKHAPATNAM

PRESENT: Sri.P.M.M.SIDDHARTHI, B.A,B.L.

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

Monday, 15th day of May, 2023

C.C.No.1020/2019 (C.C.No. 13/2019 of II Addl. Chief Metropolitan Magistrate Court, Visakhapatnam )

Between :

Reddipalli Nagamani, W/o late R. Varahala Rao, Hindu,

Aged 54 yrs, residing at Flat. No. 211, Sri Nilayam

Ganesh Nagar, Vadlapudi, Visakhapatnam.

… Complainant.

AND:

P. Dhanalakshmi, W/o T. Ravi Kumar, Hindu, Aged about 34 yrs, Working as

Outsourcing Faculty, Cutting & Sewing Technology Trade, Government I.T.I.,

D.L.T.C., Opp H.P. Gas Agency, Near Hospital Junction, Srikakulam-523168 and residing at Gopi Nagaram Village, Thotada Madhura, Amudalavalasa,

Srikakularm, Dist.

… Accused

This case came final hearing before me on 02-05-2023 for hearing in the presence of Sri D.N. Murthy, Advocate for the complainant and Sri. J.S. Siva

Prasad Advocate for the accused, and having stood over for consideration till this day, the Court delivered the following :-

JUDGMENT

1.The present case is filed U/s 138 of Negotiable Instrument 1881 (for short here in after referred as Negotiable Instrument Act against accused).

2.The complainant submits that the accused and her husband name

Tammineni Ravi Kumar, conducted the chit for an amount of Rs. 4,50,000/- to be payable in 30 monthly installments @ Rs. 15,000/- p.m, from January 2015 to June 2017. And that she joined as a member in the said chit and paid the chit installments from January 2015 to June 2017 by way of transferring the said amounts to the accused bank account from the complainant's bank account. The complainant submits that the accused and her husband received the 30 installments amount from the complainant. The complainant submits that after completion of the chief payments upto June 2017, the accused and her husband declared the complainant as successful bidder in the month of

March, 2017. She further submits that for discharge of the prize amount to the complainant on 24-07-2018, the accused issued the cheque in favour of the complainant for an amount of Rs. 4,00,000/- vide cheque bearing No.

086233, drawn on Vijaya Bank, Srikakularm Branch, Srikakaulam. The complainant presented the cheques on 24-07-2018 and to her bank ie.,

Andhra Bank, Simhachalam Branch, Visakhapatnam for payment, and on its presentation the cheque was returned with an endorsement “Insufficient

Funds”. On 01-08-2018 the said cheque was dishonoured.

3.The complainant further submits that she got issued lawyer’s notice was issued on 06-08-2018, demanding her to pay the amount cover by the cheque. the complainant submits that on 28-08-2018, the accused duly acknowledged the said notice. The complainant submits that the accused failed to pay the amount covered by the cheque within 15 days from the date of receipt of the notice of dishonour of the cheque.

4. The complainant further submits that the accused issued the said cheques without arranging funds in his saving account and he was fully aware of the fact that the cheques would be dishonoured on presentation and consequences for dishonour of the cheques. Hence the accused liable to be punishable under section 138 of Negotiable Instrument Act and Indian Penal

Code and she is liable to be punished.

5.This case was taken on file by the II Addl. Cheif Metropolitan Magistrate

Court, Visakhapatnam for the offence U/s 138 of N.I. Act against the accused, subsequently the case is transferred to this court in Dis No. 633

dt. 24-08-2019 and renumbered as C.C. 1020/19 to disposed the case

according to law.

6.On receipt of summons accused entered her appearance through her counsel and copies of case documents are furnished to her as Required U/Sec.

207 of Cr.PC. Later the accused was examined U/Sec. 251 Cr.PC explaining the allegations of the prosecution leveled against her. She denied the prosecution allegations and claimed to be tried.

7.In order to prove the guilt of the accused, Complainant examined herself as P.Ws.1 and 2 and got marked Ex.P.1 to Ex.P.5. After prosecution reported her evidence as closed, the accused was examined U/Sec. 313 Cr.PC explaining the incriminating circumstances that appeared against her. She denied the prosecution evidence as being false and reported she has defense evidence but not produce any evidence.

8. Heard both sides and perused the record. Now the point for determination is:

1) Whether the complainant pleaded and proved the essential ingredients of Sec. 138 of N.I. Act?

2) Whether the complainant is able to bring home the Guilt of accused u/s 138 of N.I Act beyond reasonable doubt?

9.Points No. 1&2:

The complainant having examined as Pw.1 and got marked Ex. P1 to P5.

Ex. P1 is the Original cheque for Rs.4,00,000/- dated 24-07-2018, Ex.P2 is the cheque return memo, dated 30-07-2018, Ex.P3 is the Legal notice dated 06-08-2018, Ex.P4 is the Postal receipt, dt 06-08-2018. Ex.P5 is the Net downloaded copy delivery of the legal notice (Subject to objections), He examined P.W.2 to support the evidence of Pw.1.

10.It is the case of complainant that the accused and her husband name Tammineni Ravi Kumar, conducted the chit for an amount of

Rs. 4,50,000/- to be payable in 30 monthly installments @ Rs. 15,000/- p.m, from January 2015 to June 2017. And that she joined as a member in the said chit and paid the chit installments from January 2015 to June 2017 by way of transferring the said amounts to the accused bank account from the complainant's bank account. The complainant submits that the accused and her husband received the 30 installments amount from the complainant. The complainant submits that after completion of the chief payments upto June 2017, the accused and her husband declared the complainant as successful bidder in the month of March, 2017. She further submits that for discharge of the prize amount to the complainant on 24-07-2018, the accused issued the cheque in favour of the complainant for an amount of Rs. 4,00,000/- vide cheque bearing No. 086233, drawn on Vijaya Bank, Srikakularm Branch,

Srikakaulam. The complainant presented the cheques on 24-07-2018 and to her bank ie., Andhra Bank, Simhachalam Branch, Visakhapatnam for payment, and on its presentation the cheque was returned with an endorsement “Insufficient Funds”. On 01-08-2018 the said cheque was dishonoured.

Therefore, the complainant proved his case and prays the Hon’ble court to convict the accused.

11.The complainant further submits that she got issued lawyer’s notice was issued on 06-08-2018, demanding her to pay the amount cover by the cheque. the complainant submits that on 28-08-2018, the accused duly acknowledged the said notice. The complainant submits that the accused failed to pay the amount covered by the cheque within 15 days from the date of receipt of the notice of dishonour of the cheque.

12. The complainant further submits that the accused issued the said cheques without arranging funds in his saving account and he was fully aware of the fact that the cheques would be dishonoured on presentation and consequences for dishonour of the cheques. Hence the accused liable to be punishable under section 138 of Negotiable Instrument Act and Indian Penal

Code and she is liable to be punished.

13.The case of the accused is that there is no legally enforceable debt between complainant and accused. There is no valid notice served and mere issuance of cheque is not an offence U/Sec. 138 NI Act, the alleged cheque should be in discharge of the debt or liability. Pw.2 is not the chit member. There is no single piece of paper to showing that there is a chit transaction between the complainant and accused. No bank officials were examined. Therefore the complainant is not maintainable and liable to be dismissed and pays the Hon’ble Court to acquit the accused form the alleged charges.

14. Cause of action: One of the three requirement that constitution

Cause of action is presentation of the cheque and dishonour thereof within the period of its validity or a period of six months. Other three requirements are (a) service of the notice upon the drawer of the cheque to make payment of the amount covered by the cheque and (b) failure of the drawer to make any such payment within the stipulated period of 15 days of the receipt of such a notice. On perusal of the record Ex. P.1 is the original cheque

dt. 24-07-2018 issued by the accused infavour of the complainant, that

cheque was presented Andhra Bank, Simhachalam Branch, Visakhapatnam on 24-07-2018 within the stipulated period of 6 (six) months and that cheque was dishonored due to the reason of “Insufficient Funds” having knowledge by the accused regarding the dishonour of the cheque he has not made payment within 15 days. Therefore the statutory requirements were fulfilled by the complainant and this case is maintainable.

15. Legally enforceable debt:

It is the main contention of the accused that no legally enforceable debt between the parties though the complainant marked Ex.P1 cheque, there is no evidence that the said cheque was issued in discharge of any debt or liability. It is the allegation levelled against the accused that he runs the chit business in that connection the said above cheque has been issued in favour of the complainant, but no single piece of documents with regard to the chit business was filed. There is no evidence that the complainant and accused were participated in the chit transaction. The accused counsel further contended that no Bank Officials were examined to establish the cheque has returned under Ex.P2.

16. On the other hand the complainant counsel contended that the signature on the cheque was not denied, therefore the accused liable to the cheque amount. Upon considering the both sides U/Sec. 138 NI Act is crystal clear there must be debt or other liability legally enforceable debt between the parties. While appreciating the evidence of Pw.1 categorically admitted in her cross examination the cheque transaction has been done with husband of the accused, she do not filed any paper with regard to the chit transaction, she do not remember whether the notice received the accused or not. Pw.2 also categorically admitted in the cross examination that he is not participated in any chit run by the accused. He do not know parties of the chit amount he never attested any document pertaining to chit between the complainant and accused.

17.Therefore the evidence of Pws.1 and 2 contradicting and not corroborated with each other. On the other hand the accused counsel establish his case that issued cheque is not in connection discharge of any debt or liability. Mere issuance of cheque is not an offence U/Sec. 138 NI Act.

No valid notice is also not served and no bank officials were examined. There is no iota of evidence there is chit transaction between complainant and accused and no single documents pertaining to the chit transaction.

18.In the above reasons, I am of the opinion of complainant miserably failed to prove the guilty of the accused.

19.To Sum Up:

1) There is no legally enforceable debt or liability between the complainant and accused.

2) There is no evidence that the accused run the chit business and cheque was issued in that connection.

3)The evidence of Pws 1 and 2 contradicting to each other.

4)No valid notice served.

5)No Bank Officials were examined to establish the return of cheque under Ex.P2.

Therefore, I am of the opinion the accused found not guilty for the offence U/Sec 138 of NI Act. And he is acquitted U/Sec.255(1) Cr.P.C.

CrlMP 38/22

20.The complainant filed petition to pay interim compensation of 20% of the cheque amount. After due enquiry the compliant not proved her case in

CC.1020/19 and compliant was dismissed and the accused is acquitted.

Therefore this petition is closed.

21.In the result. The accused found not guilty for the offence U/Sec. 138

NI Act. The accused is acquitted U/Sec. 255(1) Cr.P.C.

The bail bonds of the accused if any shall be cancelled.

Dictated to the Stenographer and transcribed by her, corrected and

pronounced by me in the open court this the 15th day of May, 2023.

Sd/-(P.M.M. Siddharth)

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

Appendix of Evidence

Witness examined for complainant:

P.W.1. Reddipalli Nagamani (Complainant) P.W.2. K. Raja Rao

Documents marked for complainant:

Ex. P.1 is the Original Cheque Rs. 4,00,000/- B.No. 086233, Dt. 24-07-2018 marked through P.W.1.

Ex. P.2 is the Cheque return memo dt. 30-07-2018 marked through P.W.1.

Ex. P.3 is the Office copy of Legal notice, dt. 06-08-2018 marked through P.W.1.

Ex. P.4 is the Postal receipt dt. 06-08-2018 marked through P.W.1.

Ex. P.5 is the Net download copy the delivery of the Legal notice marked through P.W.1.

Witness examined for the Accused: Nil Documents marked for the Accused: Nil

Sd/-(P.M.M. Siddharth)

SPECIAL MAGISTRATE-I

VISAKHAPATNAM.

CALENDAR AND JUDGMENT

IN THE COURT OF THE SPECIAL MAGISTRATE – I, VISAKHAPATNAM

C.C.NO.1020/19

1.Date of offence: 24-07-2018

2.Date of complaint or report:26-09-2018

3.Date of apprehension of accused:15-07-2019

4.Date of release on bail:--

5.Date of commencement of trial ::01-12-2021

6.Date of closure of trial:13-02-2023

7.Date of Judgment:15-05-2023

8.R E M A R K S : Received by transfer from II Addl. Chief Metropolitan Magistrate's Court Visakhapatnam as CC No. 13/19 which was renumbered CC.No. 1020/19. After completion of trial, Judgment was pronounced on 15-05-2023 the accused found not guilty for the offence U/s 138 of NI Act and she is Acquitted U/sec 255(1) Cr.P.C. The bail bonds shall be canceled and unmarked property if any shall be destroyed after appeal time is over.

Complainant Reddipalli Nagamani, W/o late R. Varahala Rao, Hindu, Aged 54 yrs, residing at Flat. No. 211, Sri Nilayam

Ganesh Nagar, Vadlapudi, Visakhapatnam.

Description of the accused: P. Dhanalakshmi, W/o T. Ravi Kumar, Hindu, Aged about 34 yrs, Working as Outsourcing Faculty, Cutting & Sewing Technology Trade, Government I.T.I., D.L.T.C., Opp H.P. Gas Agency, Near Hospital Junction, Srikakulam-523168 and residing at Gopi Nagaram Village, Thotada Madhura, Amudalavalasa, Srikakularm, Dist.

Offence Under Section : 138 of NI Act Finding: Found not guilty Sentence: The accused is Acquitted U/sec.255(1) Cr.P.C.

The bail bonds shall be canceled and unmarked property if any shall be destroyed after appeal time is over.

Sd/-(P.M.M. Siddharth)

Special Magistrate – I Visakhapatnam.