IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS: KOTHAVALASA
Present: Smt. P.Pradeepa,
Judicial Magistrate of I Class, Kothavalasa.
Monday, the 22nd day of July, 2019.
C.C.No.183/2013
Between:
Sri Damma Venu, S/o.late kannayya, Prop.Zeans Backery., Kothavalasa, Kothavalasa mandal, Vizianagaram District. … Complainant And:
Sri Gurla Murali, S/o.Varahalu, Near Ramalayam Temple, Kothavalasa village, Kothavalasa mandal, Vizianagaram District. … Accused.
This case coming on 02.7.2019for final hearing before me in the presence of Smt.G.P.Latha, Advocate for the Complainant and of Sri Y.Ganesh Naidu, Advocate for the accused, upon hearing of both sides and having stood over for consideration to this date, this Court delivered the following:
J U D G M E N T
01. The complainant filed this complaint against the accused for the offence punishable under Section 138 read with 142 of Negotiable Instrument Act.
02.The brief averments of the complaint are that:
The accused approached the complainant on 22.01.2013, borrowed an amount of Rs.6,00,000/- for the purpose of purchasing land for his real estate business and executed a demand promissory note in favour of the complainant by agreeing to repay the same with interest @ 24% per annum either to the complainant or to his order within short time. Subsequently on several reminders to clear the debt amount due under promissory note, the accused issued a cheque for Rs.6,00,000/- bearing No.551667 dated 22.7.2013 drawn on Andhra
Bank, Kothavalasa Branch, Vizianagaram District. The complainant presented the cheque with prior intimation to the accused before his banker i.e., State Bank of
Hyderabad, Kothavalasa Branch, Vizianagaram District and the same was dishonoured with an endorsement “insufficient funds” in the accused account. On that the banker issued a cheque return memo dated 18.10.2013 to the complainant. The complainant issued a registered legal notice to the accused on 6.11.2013 and the same was acknowledged by the accused on 8.11.2013. The accused issued the cheque knowingly that there are no sufficient funds in his account, with a view to defraud the complainant and thereby deceived the complainant. Therefore, the accused is liable for punishment for the offence punishable under Section 138 read with 142 of Negotiable Instrument Act.
03. On consideration of sworn affidavit and other material, cognizance is taken for the offence punishable under section 138 of Negotiable Instrument Act against the accused and numbered as C.C.No.183/2013 on the file of this court.
04. On appearance of accused, copies of case documents were furnished to the accused as contemplated under section 207 of Code of Criminal Procedure.
05.The accused was examined under section 251 of Code of Criminal Procedure.
The sum and substance of the complaint was read over and explained to him in Telugu, having understood the same, he denied the offence, pleaded not guilty and claimed to be tried.
06.During the course of trial, the Complainant himself examined as P.W.1, the scribe of the promissory note by name Sri M.V.Ramana is examined as P.W.2 and got marked Exs.P.1 to Exs.P.10.
07. After closure of complainant side evidence, the accused was examined under section 313 of Code of Criminal Procedure. All incriminating material available in the evidence of complainant witnesses is explained to him in Telugu, having understood the same, he denied the offence. The accused himself examined as D.W.1 and got marked Ex.D.1 to D.3 on his behalf.
08.Heard arguments on both sides.
09.Now the point for determination is:
Whether the complainant proved the guilt of the accused beyond all reasonable doubt for the offence punishable under section 138 read with 142 of Negotiable Instrument Act or not?
10. The counsel for the complainant submitted that the accused approached him on 22.01.2013 and the accused lent an amount of Rs.6,00,000/- for the purpose of purchasing of land for his Real Estate business and executed a promissory note in favour of the complainant by agreeing to repay the same @ 24% per annum. Even after on oral reminders to clear the amount due under the promissory note, the accused agreed to repay the entire amount, but he did not repay the same and issued a cheque in favour of the complainant on 22.07.2013 for an amount of Rs.6,00,000/- vide cheque bearing No.551667 of Andhra Bank
Branch. On that with the consent of the accused, the complainant presented the cheque before the State Bank of India, Hyderabad at Kothavalasa Branch,later the complainant received a return memo on 18.10.2013. Even after lapse of 15 days, when the accused did not repay any amount to the complainant, on that he filed the complaint before this Court on 19.12.2013. He further submitted that to prove the case of the complainant, the complainant filed Ex.P.1 to Ex.P.10.
Moreover the accused is contesting that the name mentioned in the promissory note is as Gurla Murali, son of Varahalu, but not Gurla Muralidhar, son of
Varahalunaidu. To prove the same, he adduced his evidence and he was examined as D.W.1 and got marked Ex.D.1 to Ex.D.3 to prove that his name is
Gurla Muralidhar Son of Varahalunaidu. At the time of cross-examination of
P.W.1, as well as at the time of cross-examination of D.W.1, the contention of the accused is that there is another person in his village by name Gurla Murali, son of
Varahalu, but the accused did not produce any evidence to show that there is another person by name Gurla Murali, son of Varahalu, as well as he did not produce the said person before the Court to prove the same. On that the signatory on the promissory note as well as cheque, the person whose name mentioned in promissory note as well as in cheque i.e., Gurla Murali, son of
Varahalu is one and the same. Further the contention of the complainant is that the accused borrowed the amount for doing Real Estate business and executed the promissory note and to discharge the liability due under the promissory note, he issued a cheque in favour of the complainant, on that it is very clear before this Court that it is legally enforceable debt. Since the accused issued the cheque for legally enforceable debt and the same was dishonoured at the time of presentation and when the complainant issued the legal notice to the accused for repayment of the cheque amount, when he failed to repay the same, on that he is liable for punishment under section 138 of Negotiable Instrument Act. Hence, the accused may be convicted.
11.On the other hand, the counsel for the accused submitted that the main contention of the accused is that the name mentioned in the promissory note as well as cheque not belongs to him, he never borrowed any amount from the complainant, he never executed any promissory note and he never issued any cheque in favour of the complainant. In fact, the name of the accused is Gurla
Muralidhar, son of Varahalunaidu. To prove the same, he came to the witness box and he adduced his evidence as D.W.1 and got marked Exs.D.1 to Ex.D.3 in his favour, so also the complainant had filed so many complaints against so many persons before this Court and the same was admitted by him at the time of his cross-examination. P.W.1 admitted in his cross-examination that he is running sweets business and he is getting Rs.30,000/- per month. More over in addition to sweets business, he is doing Real Estates business and financial business along with son of his brother’s co-son-in-law by name Anil Kumar and he also filed so may civil suits against so many persons. At the time of cross-examination, he admitted that he did not mention all these transactions in the income tax returns, it itself showing that the above transaction is not covered under legally enforceable debt. When financial transaction is more than Rs.20,000/- it has to be made by way of account payee cheque only. When he failed to pay the amount by way of account payee cheque then the benefit of doubt has to be extended in favour of the accused. To support his version the counsel for the accused relied on the decision reported in Krishna Janardhan Bhat Vs.Dattatreya Hegde.
12.Further the counsel for the accused submitted that on the face of the cheque, it itself, it is very clear that at the column specified for mentioning the date, there is a stamp in the original cheque, but in the served copy issued by the complainant i.e. the Photostat copy of the same was apparently showing that the date mentioned in the specified column is in handwriting. Moreover the ink used for signature on the cheuqe and ink used for filling the blanks in the cheque are quite different one. Further P.W.1 admitted that the accused asked the complainant for lending the amount to him, 10 days prior to the date of Ex.P.6 transaction and the said amount was obtained by the complainant by way of housing loan from State Bank of Hyderabad, Kothavalasa in the year 2012. The complainant did not file any evidence before this Court to show that how he got
Rs.6,00,000/- and how he has given the same to the accused on the date of
Ex.P.6 transaction. Particularly the complainant failed to file any document before this Court to show that he obtained housing loan from State Bank of Hyderabad,
Kothavalasa, as well as, he failed to file the income tax returns before this Court.
When the complainant is doing business in lakhs, certainly he must be an income tax assessee and he must file any one of the documents to prove the said financial transactions. When he totally failed to file the same, the benefit of doubt may extend in favour of the accused. More over in case of Sec.138 of Negotiable
Instrument Act, the heavy burden lies on the complainant to prove the guilt of the accused beyond all reasonable doubt and the accused has to show his case is within preponderance of probabilities. When the complainant failed to prove the case against accused, automatically the accused is entitled for acquittal.
13. To determine the point, this Court is inclined to discuss on several aspects i.e.
1) Whether the complainant has proved the ingredients of the offence punishable under section 138 of Negotiable Instrument Act against the accused beyond reasonable doubt or not?
2) Whether the accused issued cheque No. 551667 dated 22.07.2013 for Rs.6,00,000/- to the complainant towards discharge of the legally enforceable debt or not?
3) Whether the accused has rebutted the presumption under section 139 of Negotiable Instrument Act even by preponderance of probabilities before the Court or not?
4) Whether the accused is liable for punishment under section 138 of Act or not?
14. After gone through with the entire evidence and other material available on record i.e., oral evidence of P.W.1, P.W.2 and D.W.1 and documentary evidence of Exs.P.1 to Ex.P.10 and Exs.D.1 to Ex.D.3, this Court has to look into whether the complainant proved the main ingredients of section 138 of Negotiable
Instrument Act or not.
To satisfy the main ingredients of Section 138 of Negotiable Instruments
Act, the Complainant has to prove that
1. a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account
2. the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
3. that cheque has been presented to bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
4. that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
5. the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
6. the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
15.On thorough study of the ingredients of Section 138 of Negotiable
Instruments Act, the initial burden is on the Complainant to prove that the accused issued a cheque in favour of the complainant for discharging of debt or liability, either it may be in part or whole of the debt, after its presentation before a bank within the valid period and the said cheque was returned with an endorsement from the bank as unpaid, on its return the complainant had issued legal notice by demanding payment of said cheque amount within 30 days from the date of receipt of information from the date of return of the said cheque as unpaid, after receipt of said notice by the accused, if the accused failed to pay the amount within 15 days, on such failure, the complainant filed the complaint within 30 days from the date of lapse of 15 days.
16.In this matter, on hearing on both sides, this Court observed that there is no dispute with regard to return of cheque by the bank as unpaid, issuance of legal notice by the complainant against the accused is within limitation period i.e., within 30 days from the date of receipt of return memo from the bank and filing of the complaint before the Court by the complainant is within the limitation period i.e., within 30 days from the date of failure to make payment by the accused.
17.But here in this matter, the debt due under the promissory note, issuance of cheque in favour of the complainant by the accused as payment of debt due under the promissory note itself is challenged by the accused. The accused raised objections on every aspect i.e., about execution of promissory note, the name mentioned in the promissory note, issuance of cheque in favour of the complainant and the name mentioned on the cheque, the date mentioned on the cheque, which is alleged to be issued in favour of the complainant and alsoabout the financial capacity of the complainant. On which this Court inclined to discuss the points on these aspects. Now for the better appreciation and better conclusion of this matter, now this Court inclined to decide the following points:
1) Whether the name of the executant mentioned in the promissory note, cheque is of the accused/signatory or not?
2) Whether the complainant successfully proved his initial burden i.e. the accused issued cheque in favour of the complainant is for discharging the legally enforceable debt or liability or not?
3) Whether the complainant successfully proved his financial capacity for lending money to the accused as alleged by him or not?
18.Point No.1:
To answer the 1st point i.e. Whether the name of the executant mentioned in the promissory note, cheque is of the accused/signatory or not?
On hearing on both sides and on perusal of the entire evidence of P.Ws 1, 2 and the evidence of D.W.1 as well as on perusal of Exs.P.1 to Ex.P.10 and
Ex.D.1 to Ex.D.3 documents, this Court observed that the version of the complainant is that the accused borrowed an amount of Rs.6,00,000/- from the complainant and executed Ex.P.6 promissory note on 22.01.2013. Even after oral demands when the accused did not pay the amount and on subsequent demands, the accused got issued Ex.P.1 Cheque bearing No.551667 in favour of the complainant on 22.7.2013 for an amount of Rs.6,00,000/- and the same was presented before State Bank of Hyderabad, Kothavalasa Branch and the said cheque was returned by the Bank authorities on 18.10.2013 with an endorsement that “funds insufficient” in the account of payee. On that the complainant got issued Ex.P.3 Registered legal notice dated 06.11.2013. The said notice was received by the accused on 08.11.2013. But the contention of the counsel for the accused is that the name of the executant of Ex.P.1 and Ex.P.6 documents are not of the accused, because the name of the accused is Gurla Muralidhar, son of
Varahala Naidu, but the names mentioned in Ex.P.1 and Ex.P.6 are as Gurla
Murali, son of Varahalu. To prove the same that the accused name is Gurla
Muralidhar, son of Varahala Naidu, at the time of adducing defence evidence, the accused filed three documents before this Court i.e., Ex.D.1 to Ex.D.3. Ex.D.1 is
Secondary School certificate issued by the Board of Secondary Education in favour of Gurla Muralidhar, son of Varahalunaidu, Ex.D.2 is Aadhar card stands in the name of Gurla Muralidhar and Ex.D.3 is copy of complaint and other served copies i.e., Photostat copies of cheque return memo, Photostat copy of acknowledgment, Photostat copy of legal notice filed by Damma Venu in this case, basing on which it is very clear that the name mentioned in Ex.D.3 documents are clearly showing that the complaint filed against the person who is in the name of Gurla Murali, son of Varahalu, but as per Ex.D.1 and Ex.D.2 the name of the accused is Gurla Muralidhar, son of Varahalunaidu.
19.On the other hand, the counsel for the complainant submitted that even though the accused filed some documents before this Court to deviate the case, but the signatures on the Ex.P.1 and Ex.P.6 are one and the same, and it will be clear before this Court when the Court compares the signatures of the accused on Ex.P.1 and Ex.P.6, because they are all seems like one and the same, moreover the signature on Ex.P.5 Acknowledgment and the signatures on other documents are apparently seems like one and the same. Further the accused at the time of cross-examination submitted that some other person in the village is there in the name of Gurla Murali son of Varahalu, but the accused did not produce any such person before the Court, even he failed to file any document to prove that some other person is there in the same village in the name of Gurla
Murali, son of Varahalu, hence the version of the accused is unbelievable and untrustworthy.
20.On hearing on both sides, on perusal of entire documents, more particularly
Ex.P.1 cheque alleged to have been issued by the accused in favour of the complainant, the signature on Ex.P.5 postal acknowledgment, Ex.P.6 Promissory note, the signature on the petitions filed by the accused before this Court are seems to be one and the same apparently. Moreover, the contention of the accused is that he is not the executant of Ex.P.1 and Ex.P.6 documents, because he never borrowed any amount from the complainant as alleged by the complainant. On perusal of Ex.P.7 document dated 23.02.2013 i.e., the legal notice got issued by Gurla Muralidhar, in favour of one Surisetti Satya Prakash in another matter and on perusal of Ex.P.6 certified copy of the complaint filed by
Gurla Muralidhar against Surisetty Satya Prakash, which was numbered as
C.C.372/2015, it is clearly mentioned that the name of the complainant in
C.C.372/2015 as Gurla Muralidhar, son of Varahalu, so also in Ex.P.9 the certified copy of the promissory note dated 27.01.2014 in C.C.372/2015 executed by
Surisetty Satya Prakash and Dhanalakshmi, the name of the accused herein was mentioned as Gurla Muralidhar, son of Varahalu and also in Ex.P.10 i.e., certified copy of memo issued by Bank of Baroda on 03.09.2015, the name of the person is mentioned as Gurla Muralidhar. On over all scrutiny of all these documents, this Court is of opinion that even though the accused is contesting that his name is Gurla Muralidhar, son of Varahalunaidu and all the documents filed by him are clearly showing that his name was mentioned as Gurla Muralidhar son of
Varahalu at some places. If the real contention of the accused is that the name of the accused is mentioned in right manner, but the notice was served against a wrong person and a wrong person is appearing in this matter till date, it is not possible in any case to appear before the Court as mute spectator without contesting the same and without challenging his name as Gurla Muralidhar, son of Varahalunaidu, he has to raise that objection at first instance itself and he has to take action accordingly. But in this matter the accused did not raise his voice till the date of adducing the defence evidence before this Court. When there is a strong contention of the accused is that he is not Gurla Murali, son of Varahalu, but his name is Gurla Muralidhar, son of Varahalunaidu, it is not only sufficient to believe the version of the defence, when the signatures on the promissory note, cheque, acknowledgment and some other documents are tallied with the signature of the accused. Even though the accused is contesting that he is not the person whose name is mentioned in Ex.P.1 and Ex.P.6 documents and when he strongly contested that there is another person in his village in the said name i.e., Gurla Murali, son of Varahalu, as rightly stated by the counsel for the complainant when the accused is contesting one thing, the burden is on the shoulders of the accused to prove that another person is there in the village on the said name. On over all scrutiny of Ex.P.1, Ex.P.5, Ex.P.6 and after hearing on both sides, this Court is of opinion that when the complainant proved his version by stating that Gurla Murali and Muralidhar are one and same and when the accused is contesting that his name is Gurla Muralidhar, son of Varahalu Naidu, the onus shifts to the accused to disprove the version of the complainant. When the accused failed to prove the same, this Court believed the version of the complainant that the executant of the document and the signatory in the document are one and the same. Hence, this point is answered in favour of the complainant.
21.The counsel for the accused raised an objection that the cheque is not genuine one because, the date mentioned in the cheque was in stamped form as well as there are corrections on the face of the cheque itself, on which prior to answer the second point, this Court is inclined to discuss on the point of validity of the cheque, which is subject matter in this case. On thorough scrutiny of the cheque as rightly raised objection by the defence counsel at date column, the date was stamped manner, but on the served copy of the cheque i.e. Photostat copy of the cheque, the date mentioned in written form. Even though the said fact was raised as objection in this matter by the counsel for the accused, but the counsel for the complainant failed to give any clarification with regard to that aspect. More over on the face of the cheque itself, it is apparently seems that at stamp column (which mentions for date of presentation) the month is in over writing manner and no initial of the bank authority was present there. Further the number mentioned in the said stamp also corrected, on further verification the ink used in the stamp, at the time of filling the blanks in the stamp, the writings mentioned in the stamp are in different inks. More over as per the complainant version, the cheque was issued on 22.07.2013 and the same was presented on 24.07.2013, but as per cheque return memo, the said cheque was returned on 18.10.2013, when there is three months delay in returning the cheque by the bank, whether there are repeated presentations of the cheque before the bank on several times or not and the delay of three months is in question in the mind of this Court. When the complainant seeks relief from the Court in criminal matters, the burden is on the shoulders of the complainant to prove his case beyond all reasonable doubt, when he failed to prove the genuineness of the cheque, when he failed to give any explanation about the over writings and date mentioned on the cheque, automatically, the genuineness of the cheque, which is in question becomes untrustworthy in the eye of law, on which this Court is of opinion that the cheque is not trustworthy and not valid one, on which the benefit of doubt extended in favour of the accused.
22.Point No.2:
To answer the second point i.e. Whether the complainant successfully proved his initial burden i.e. the accused issued cheque in favour of the complainant is for discharging the legally enforceable debt or liability or not?
This Court relied on the version of P.W.1 and P.W.2 and Exs.P.1 to Ex.P.10.
As per the version of P.W.1 and P.W.2, the accused borrowed an amount of
Rs.6,00,000/- from the complainant for purchasing land for the purpose of Real estate business and he executed a promissory note in favour of the complainant and the said fact was corroborated with the evidence of P.W.2. He also supported the version of P.W.1 that the accused borrowed an amount of Rs.6,00,000/- from the complainant. In 138 of Negotiable Instrument Act cases, the preliminary burden lies on the complainant to prove that the cheque was issued by the accused in his favour for discharging the debt or liability. Moreover, the debt or liability must be legally enforceable one. As per the evidence of P.W.1 and P.W.2, their version is that the accused issued cheque for discharge of his debt under
Ex.P.6 promissory note. Now the Court has to look into the matter in the lines that the accused issued cheque for legally enforceable debt or not. As per Negotiable
Instrument Act, the presumption existing in favour of the complainant by virtue of sections 118 and 139 of Negotiable Instrument Act, the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant until contrary is proved, such presumption holds good.
Even though the complainant proved his version that the cheque issued in his favour for discharging of legal enforceable debt and the said fact was supported through the evidence of P.W.2, when the complainant himself admitted that he is doing Real Estate business and also finance business, automatically he must be an income tax assessee. In the present case on hand, as per the version of the accused he never borrowed any amount from the complainant, moreover, the complainant has no financial capacity to lend that much of amount because the complainant admitted in his cross-examination that he is running sweet shop business and getting an amount of Rs.30,000/- per month, as well as he has no property at anywhere. Moreover at the time of cross-examination of P.W.1, he admitted that he has lent amounts in lakhs to several persons and filed so many suits before this Court against those borrowers. Moreover he stated that he is doing real estate business and financial business, but for doing such business, he did not get any licence from the concerned authorities. Particularly the complainant contested that he has capacity to give the amount to the accused. As rightly alleged by the counsel for the accused that when the complainant is lending amount to several persons in lakhs, he has to file income tax returns and the said amount, which is being invested in finance business must be reflected in income tax. He must be an income tax assessee. But the complainant did not file any piece of paper before this Court to show that he is an income tax assessee and all the transactions with regard to financial matters are being reflecting in the income tax returns. On perusal of the cross-examination of P.W.1, P.W.1 admitted that he did not mention all the transactions in the income tax returns. It itself is very clear that he is not mentioning anything in income tax returns. Moreover, as per the decisions presented before this Court by the counsel for the accused, basing on the version of the defence counsel, this Court observed that any advance of more than Rs.20,000/- must be by way of account payee cheque only.
To support his version, the counsel for the defence relied on the decision reported in Krishna Janardhan Bhat Vs.Dattatreya Hedgde wherein the Hon’ble
Supreme court held in Para 19 that “ordinarily in terms of Section 269 SS of the Income Tax Act, any advance taken by way of any loan of more than Rs.20,000/- was to be made by way of an account payee cheque only”.
Further the contention of the defence counsel is that when the amount advanced is more than Rs.20,000/-, he has to show the same in the income tax returns for that Financial year, in case of failure to do so, it itself is sufficient to consider as the accused rebutted the presumption under section 139 of
Negotiable Instrument Act. To support the version in those lines, the counsel for the accused relied on the decision reported in Sanjeev Misra Vs. Kaniska
Kapoor @ Nikki wherein the Bombay High Court held in Para 7 that “There may be cases where small amount less than a sum of
Rs.20,000/- is advanced in cash by way of loan, which may be repayable within few days or within few months. A complainant may not show the said amount in the income Tax Return as it is repayable within few days or few months in the same financial year. In such a case the failure to show the amount in the Income Tax Return may not by itself amount to rebuttal of presumption under section 139 of the
Negotiable Instrument Act. If the amount advanced by the complainant to the accused is large amount and is not repayable within a few months, the failure to disclose the amount in Income-Tax return or
Books to of Accounts of the complainant may be rebut the presumption under section 139 of the Negotiable Instrument Act”.
23.Further, the contention of the counsel for the accused is that when the amount advanced by the complainant is unaccounted cash and it is not disclosed in the income tax returns on that ground, the amount advanced by the complainant cannot be considered as legally enforceable debt or liability. To support the version of the counsel for the accused, he relied upon decision reported in Sanjeev Misra Vs. Kaniska Kapoor @ Nikki wherein at para 15 it was held that by Hon’ble High Court of Bombay that “The alleged liability to repay an unaccounted cash amount admittedly not disclosed in the Income Tax Return cannot be a legally recoverable liability. If such liability is held to be a legally recoverable debt, it will render the explanation to section 138 of the said Act nugatory. It will defeat the very object of the section 138 of the Act ensuring that the commercial and mercantile activities are conducted in a healthy manner. The provision of section amount A cheque 138 cannot be resorted to for recovery of an unaccounted issued in discharge of alleged liability of repaying “unaccounted” cash amount cannot be said to be a cheque issued in discharge of a legally enforceable debt or liability within the meaning of explanation of section 138 of the said Act. Such an effort to misuse the provision of section 138 of the said Act has to be discouraged”.
24.Basing on the gist of the decisions filed by the counsel for the accused, basing on the version of the accused, on perusal of the entire documentary and oral evidence this Court observed that P.W.1 in his cross-examination admitted himself that he is doing financial business and Real Estate business, but he has no licence to do so. He further admitted that he advanced loans to so many persons in lakhs as well as the said transactions were not mentioned in income tax returns. As per the decisions filed by the counsel for the defence, they are aptly considerable to this case because in this present case also, the money advanced by the complainant is Rs.6,00,000/- and he did not show the same in the income tax returns. When the complainant failed to show the same in the income tax returns, even though the complainant proved his version that the accused issued the cheque in his favour for enforceable debt or liability, but the complainant failed to file the income tax returns before this Court, it itself is sufficient to consider that the accused rebutted the presumption under section 139 of Negotiable Instrument Act. So also when he failed to file the Income Tax
Returns before this Court to show that he advanced the amount to the accused as alleged by him, it itself is sufficient, not to consider that the amount advanced under the cheque issued by the accused is not for legally enforceable debt. This
Court relied on the decision of the Hon’ble Bombay High Court, basing on it, this
Court is of opinion that in the present case also when the complainant did not show the amount in the Income Tax Returns, it has to be considered as unaccounted and when it is unaccounted, the liability to repay the unaccounted cash amount, admittedly not disclosed in the Income Tax Return cannot be a legally recoverable liability. If such liability is held to be legally recoverable debt, it will render the explanation to section 138 of the Negotiable Instrument Act nugatory. Basing on the verdict of the Hon’ble Bombay High Court, it is aptly considerable to the present case on hand and when it applies to the presence case on hand, this Court can consider that the complainant failed to prove that the accused issued the cheque in his favour for legally enforceable debt or liability. Further in the evidence of P.W.1, this Court observed that P.W.1 stated in his cross-examination that the accused approached the complainant 10 days prior to advance the loan from him and the amount which was taken by way of housing loan from the State Bank of Hyderabad, Kothavalasa was given to the accused. But to prove the same the complainant did not file any piece of paper
before this Courtto show that the complainant obtained housing loan from the
State Bank of Hyderabad, Kothavalasa. Even though the burden to prove the debt, is not totally on the shoulders of the complainant, but the complainant has to prove initial burden with regard to the financial capacity how he advanced that much of huge amount to the accused on the alleged date, as well as the accused issued the cheque to discharge the said debt or liablity.
25.In the present case on hand, when the complainant failed to prove that he has financial capacity to advance Rs.6,00,000/- amount to the accused, on that this Court did not believe the version of the complainant. The other version of the accused is that the date mentioned in date column in Ex.P.1 is in stamped manner, but in the served copy of accused ie., the Photostat copy of Ex.P.1, the date mentioned in date column filled manually (in written form). On that the intention of the complainant is clearly reflecting on the face of the cheque itself.
When the counsel for the accused argued this point before this Court, the counsel
for the complainant did not raise any objection or did not give any proper
explanation with regard to how the date was mentioned manually on the served copy of the Photostat copy of the cheque (Ex.P.1), which was marked as Ex.D.3.
It itself is reflecting the conduct of the complainant to place some facts before this
Court by hiding the real facts.
26.Further this Court is of opinion that in section 138 of Negotiable Instrument
Act cases, when the initial burden is proved by the complainant automatically the accused has chance to place his version before this Court at the time of his 313
Code of Criminal Procedure examination. If his version is considerable and justifiable one, there is no need to the accused to come to the witness box to give evidence to rebut the presumption under section 139 of the negotiable Instrument
Act. Mere answering the questions posed by the Court at the time of 313 code of
Criminal Procedure examination, it itself is sufficient to consider that the initial burden proved by the complainant, is rebutted by the accused with the reasonable and justifiable explanation is given by the accused at the time of 313
Code of Criminal Procedure examination. In this present case on hand, the accused came to the witness box and presented his version by adducing his evidence only to show that his name is Gurla Muralidhar, son of Varahalunaidu but not Gurla Murali, son of Varahalu but as answered in first point this Court believed that basing on the signatures on cheque, promissory note, acknowledgment etc., this Court believed that Gurla Murali and Gurla Muralidhar are one and same and there is no need to give priority to the evidence adduced by the accused before this Court. Mere obtaining signature on the cheque, itself is not sufficient to consider that the cheque issued by the accused towards legally enforceable debt or liability, on that the total burden is on the shoulders of the complainant that the cheque was issued by the accused for legally enforceable debt or liability, but it is not the burden of the accused that in what circumstances he issued the cheque etc. Hence from the above said discussion, this Court did not consider the version of the complainant that he received cheque from the accused for legally enforceable liability. This point is answered accordingly in favour of the accused and against the complainant.
27.Point No.3:
To give answer to 3rd point i.e. Whether the complainant successfully proved his financial capacity for lending money to the accused as alleged by him or not?
As already discussed elaborately in point Nos.1 and 2, this Court is of opinion that the complainant failed to prove his case beyond all reasonable doubt, on which the accused is entitled for acquittal. Accordingly this point is answered.
28.In the result, the accused is found not guilty for the offence under section 138 of Negotiable Instrument Act and accordingly accused is acquitted under section 255(1) Code of Criminal Procedure. The bail bonds of the accused shall be in force for a period of six months under section 437-A of Criminal Procedure
Code. Accused is directed to appear before the Appellate authority if his presence is required before the appellate authority. Accused is further directed to execute self bond for Rs.5,000/- (Rupees five thousand only).
Dictated to the Stenographer Grade III, transcribed by her, corrected and
pronounced by me in open Court, this the 22nd day of July, 2019.
Sd/-Smt.P.Pradeepa,
Judicial Magistrate of I Class,
Kothavalasa.
APPENDIX OF EVIDENCE
Witnesses examined
For complainant For Defence:
P.W.1: Damma VenuD.W.1: Gurla Muralidhar P.W.2: M.V.Ramana
Documents marked
For Complainant :
Ex.P.1 : Account payee cheque issued by the accused on 22.07.2013 for an amount of Rs.6,00,000/- bearing No.551667 Ex.P.2: Cheque return memo issued by the banker dated 18.10.2013 Ex.P.3: Office copy of registered lawyer’s notice dated 06.11.2013 issued by the complainant against the accused. Ex.P.4: Postal receipt dated 06.11.2013 Ex.P.5: Postal acknowledgment dated 08.11.2013. Ex.P.6: Promissory note executed by the accused in favour of the complainant on 22.01.2013 for Rs.6,00,000/- Ex.P.7: Certified copy of registered legal notice dated 23.02.2015 issued by Gurla Muralidhar, S/o.Varahalu through his counsel in favour of Surisetti Satyaprakash, S/o.late Sanyasi naidu of Visakhapatnam. Ex.P.8: Certified copy of the complaint filed by Gurla Muralidhar, S/o. Varahalu against Surisetti Satya Prakash Ex.P.9: Certified copy of the promissory note dated 27.01.2014 executed by Surisetty Satya Prakash and Dhanalakshmi in favour of Gurla Muralidhar, S/o.Varahalu, Kothavalasa. Ex.P.10: Certified copy of the memo dated 03.09.2015 issued by Bank of Baroda, Thummikapalli Branch in favour of Gurla Muralidhara by stating reason for return of the cheque.
For defence:
Ex.D.1: Secondary School certificate issued by the Board of Secondary Education in favour of Gurla Muralidhar, S/o. Varahalunaidu bearing B.B.No.663471. Ex.D.2: Aadhar Card bearing No.656633953108 stands in the name of Gurla Muralidhar of Kothavalasa Village. Ex.D.3: Served copy of complaint and other served copies ie., Photostat copy of cheque, photostat copy of return memo, photostat copy of acknowledgment, photostat copy of legal notice filed by Dhamma Venu.
SD/-Smt.P.Pradeepa,
Judicial Magistrate of I Class,
Kothavalasa.