Sri P.Rajaram

1

IN THE COURT OF THE V ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, VIJAYAWADA

PRESENT: SRI P. RAJARAM

V ADDL. CHIEF METROPOLITAN MAGISTRATE, VIJAYAWADA

Thursday, this the 24th day of May, 2024

C.C.No.162/2016

Between:

Agri Gold Farm Estates India Pvt Ltd., Having its Corporate Office at D. No. 40-6-3, Nimmagadda Soma Sankara Rao St, Old Revenue Colony, M.G. Road, Labbipet, Vijayawada., Rep.by its Authorized Person Sri Sivaraju Narasimha Rao, S/o.Satyanarayana Rao (late), aged 43 years, working as Accounts Officer, Resident of Vijayawada.

... Complainant.

And

Bijenepalli Radha Krishna Murthy, S/o.Poornachandra Rao, Hindu, aged about 52 years, Properties, R/o.D.No.4-7-10, Sri Radha Krishna Nilayam, Koritipadu, Beside Kodanda Ramalayam, Gandhi Center, Guntur-522 007.Vijayawada

... Accused.

This case coming on 24.05.2024 for final hearing before me in the presence of Sri. A.V.L.N. Sarma, Advocate for the complainant and of Sri Yalamanchili Seshagiri Rao, Advocate for the accused, and having stood over for consideration till this day, and upon hearing both sides, this Court delivered the following:

JUDGMENT

1.The complainant herein filed complaint against the accused for the offence punishable under Section 138 of N.I.Act.

2. The case of the complainant in nutshell is that:

(i) The complainant is a company dealing in the business of

Real Estate having landed properties in the states of Andhra Pradesh and Karnataka having corporate office D. No.40-6-3, Nimmagadda

Soma Sankara Rao St, Old Revenue colony, M.G. Road, Labbipet,

Vijayawada. The complainant and accused are entered an

Memorandum of Understanding and at that time that the accused was represented that he is authorized person for the farmers of

Yerraguntapalli Agraharam and Peddavaram Village farmers of

Prakasam Dist as mentioned in the MOU dated 11-07-2011, agreeing that the accused will get it registered the lands of an extent of

Ac.1748.67 cents inclusive of both villages and the accused received total amount of Rs.75,00,000/- (Rupees Seventy Five Lakh only) from 2 the complainant by way of three cheques bearing No.874789, 874790 and 874791 dated 11.07.20211 of the Karur Vysya Bank Ltd., Bunder

Road Branch, Vijayawada, each worth of Rs.25,00,000/- (Rupees

Twenty Five Lakh only). The accused have to get the compliance of the M.O.U at clause No.4 of the said M.O.U that the accused shall complete the registration process in favour of the complainant or it s nominee with in 90 (Ninety Days) from the date of the M.O.U dated 11.07.2011. But the accused have failed to complete the registration processes of the lands as per the M.O.U and the accused expressed his willingness not to perform his part of the M.O.U and agreed to return the amount with interest at the rate of 12%p.a., as per the M.O.U.

(ii) That the pursuant to the repeated demands made by the complainant the accused issued an A/c payee cheque vide Cheque bearing No.080626 dated 30.01.2014 for Rs.95,81,096-00 (Rupees

Ninety Five Lakshs Eighty One Thousand and Ninety Six only) in favour of the complainant payable on I D B I Bank, Ring Road, Guntur towards full payment of the above due. While issuing the aforesaid cheque the accused represented that he had made necessary funds arrangement to honour the cheque on presentation for collection. The complainant believing the representation of the accused deposited the said cheque for collection on 01.02.2014 in their bankers. The Karur Vysya bank

Ltd., Bunder Road Branch, Vijayawada. But to the complainant utter surprise and the said cheque was bounced back by the accused banker

IDBI Bank, Ring Road Branch, Guntur, vide their return memo dated 03.02.2014 with an endorsement “Funds Insufficient”.

(iii) The accused intentionally issued the said cheque without sufficient funds in his account and intentionally failed to honor the cheque without any reasonable cause and dishonored the same, which renders the accused liable and punishable under section 138 and 142 of N.I. Act.

(iv) That the complainant got issued a legal notice through their counsel to the accused on 14.02.2014 by way registered post and through D.T.D.C. courier demanding the accused to pay the dishonoured cheque amount with in fifteen days after receipt of the said notice. The accused received the notice. The accused received the notice sent through courier on 15.02.2014 and after knowing the contents thereon that the accused internationally refused to receive 3 the notice sent through registered post and the same was returned with an endorsement “Party Refused” dated 17.02.2014. The accused received the notice and got issued reply notice dated 01.03.2014 through his counsel with all false contentions. The complainant observed the mandatory provisions under Section 138 of N.I. Act.

Hence the complainant is constrained to file this complaint.

(v) Hence the complainant is constrained to file this complaint.

That the aforesaid circumstance clearly speaks that the accused issued the aforesaid cheque without having sufficient funds in his account and intentionally failed to arrange funds to honor the cheque and knowing fully well that the said cheque will be returned unpaid and therefore, the accused is liable to be punished under section 138 and 142 of

Negotiable Instruments Act.

3.Cognizance was taken for the offence under Section 138 of

N.I.Act. On appearance of the accused, copies of documents supplied as contemplated U/s.207 Cr.P.C.

4.When the accused examined U/s.251 Cr.P.C. for the offence U/s.138 of N.I.Act, read over the substance of accusation and explained to him in Telugu, he pleaded not guilty for the said offence and claimed to be tried.

5.The complainant himself examined as PW.1 and eleven documents were marked as Exs.P1 to P11.

6.After closure of the complainant evidence, the accused was examined under Section 313 Cr.P.C., by explaining the incriminating circumstances appearing against him in the evidence of the complainant. But he denied the same stating that he did not commit any offence.

7.Heard the arguments of the learned Counsel for the complainant and learned Counsel for the accused. Both the counsels filed written arguments.

8.Now the point for determination is: -

Whether the complainant proved its case against

the accused for the offence U/s.138 of N.I.Act?

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POINT:- 9.The learned counsel for the complainant submitted that the complainant is the company i.e., M/s.Agri Gold Farm Estates India

Private Limited, M.G. Road,Vijayawada represented by its authorised person, M. Syam Prasad, dealing in the business of real-estate in the state of Andhra Pradesh and Karnataka . The complainant company and accused are enter into a memorandum of understanding on 11.07.2011 agreeing that the accused is being represented the authorised person for the farmers of the Yerraguntapalli agraharam and Peddavaram village farmers of Prakasam District agreeing that the accused will get it registered the lands of an extent of Ac.1748.67 cents and he received an amount of Rs.75,00,000/- from the complainant company by way of three cheques dt.11.07.2011 each worth of Rs.25,00,000/-. As per the M.O.U the accused shall complete the registration process in favour of the complainant within 90 days from the date of the M.O.U. i.e., 11.07.2011. The accused failed to perform of his part of M.O.U. and agreed to return the amount with interest. Pursuant to repeated demands, the accused issued a check bearing number 080626 dt.30.01.2014 for Rs.95,81,000-096/- towards full payment. The said cheque was deposited for collection on 01.02.2014 and it was bounced back on 03.02.2014 with an endorsement funds insufficient. Then the complainant issued legal notice through its counsel to the accused on 14.02.2014 demanding him to pay the cheque amount the accused received the said notice and issued reply notice with false allegations. The accused did not comply with the demand then the complainant company constrained to file the present complaint against the accused. The authorised person of the complainant company was examined as PW.1 and Exs.P1 5 to P11 were marked through him. The evidence of PW.1 coupled with the documents Exs.P1 to P11 clinchingly proves the case of the complainant company and prays to punish the accused.

10.On the other hand, the learned counsel for the accused submitted that the complainant company at the time of execution of

M.O.U. has obtained a blank signed cheque from the accused towards security for the amount of Rs.75,00,000/- and misused the said cheque with a bad intention to gain money from the accused and got filed the present case against him. The complainant company harassed and threatened the accused to settle the case through compromise and put fear on the accused an amount of Rs.20,00,000/- was received from the accused. The complainant company failed to discharge the burden casts on it and prays to acquit the accused.

11.It is the case of the complainant company represented by its authorised person M. Syam Prasad that the company is dealing in the business of real-estate having landed properties in the states of

Andhra Pradesh and Karnataka having corporate office, Vijayawada.

The company and the accused were entered a memorandum of understanding and executed a deed of M.O.U. on 11.07.2011. The accused as a first party was represented as authorised person for the farmers of Yerraguntapalli Agraharam and Peddavaram village farmers, Prakasam District. The accused agreed that he will get it registered the lands of the farmers of an extent of Ac.1748.67 cents and received an amount of Rs.75,00,000/- from the company. As per clause(4) of M.O.U. the accused shall complete the process of registration in favour of the complainant within 90 days. But he failed to complete the said process. The accused agreed to return the amount with interest to the complainant company. After repeated 6 demands the accused issued a cheque for Rs.95,81,000-096/- vide cheque No.080626 dt, 30.01.2014 towards full payment of the due amount. The said cheque was deposited for collection and it was bounced back with an endorsement funds insufficient. The company got issued a statutory notice demanding the accused to pay the amount under the cheque. The accused received the notice and gave reply notice with false allegations and failed to repay the amount of the cheque. Hence, the present complaint is filed against the accused.

12.On the other hand, the version of the accused is that on 11.07.2011 the accused received total amount of Rs.75,00,000/- from the complainant by way of three cheques each worth of

Rs.25,00,000/-. On the same day the complainant company has obtained a blank signed cheque from him towards security for the amount of Rs.75,00,000/-. The complainant company with a bad intention to gain money from the accused got filled up the blanks by misusing the cheque and filed the present case against him. The authorised person who examined as PW.1 is not competent witness to give evidence on behalf of the company to harass him the present complaint is filed with false allegations.

13.Basing on the rival contentions the initial and legal burden lies upon the complainant to establish the transaction covered under Ex.P2 cheque and issuing of statutory notice by complaining the mandatory ingredients.

To prove that the accused committed the offence u/s.138 of N.I.Act, at first the complainant has to prove:

a) That there was legally existing enforceable debt between the complainant and the accused;

b) The complainant has to prove in order to discharge the debt, the accused issued cheque in his favour; 7

c) The complainant has to prove that the cheque issued by the accused was dishonoured;

d) The complainant has to prove that even after dishonour of said cheque and issuing legal notice by the complainant, the accused failed to pay the cheque amount.

Sec. 139 – N.I. Act presumption in favour of holder

i) “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 for the discharge of any debt or other liability”.

ii) “A cheque has been presented to the bank within a period of six months from the date on which it is drawn are within the period of its validity, whichever is earlier”.

iii)“The cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is in sufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.” iv) “The payee are 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 15 days of the receipt of information by him from the bank regarding the return of cheque as unpaid”.

v) “The drawer of said 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 receipt of the said notice”.

vi) “As and when the complainant could prove the above referred ingredients, a presumption U/sec. 139 arises that holder of the cheque received it in discharge of debt or other liability and regarding passing of consideration U/Sec.118 A N.I. Act. States as under”.

8 vii)“It shall be presumed, unless the contrary is proved,that the holder of a cheque received the cheque of the nature referred to in section 138 N.I. Act for the discharge, in whole or in part, of any debt or other liability”.

“ Sec.118 A N.I. Act states” as – every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.

14.Admitted facts need not be proved: Both the parties did not dispute the following facts. They are

I)The complainant is a company dealing in the business of real-estate having landing properties in the states of Andhra Pradesh and Karnataka having corporate office at Vijayawada.

ii)The accused is the authorised person representing the farmers of Yerraguntapalli Agraharam and Peddavaram Village,

Prakasam district.

iii)The accused on behalf of the farmers approached the complainant company and entered into memo of understanding dt.11.07.2011.

iv)The accused received total amount of Rs.75,00,000/- from the complainant company by way of three cheques bearing

No.874789, 874790 and 874791 dt.11.07.2011 each worth of

Rs.25,00,000/-.

15.In order to prove the legally enforceable debt the authorised person of the complainant company namely M. Syam Prasad examined as PW.1 by filing his chief examination affidavit by the reiterating the facts mentioned in the complainant. The following documents are marked through PW.1. 1) Ex.P1 is a notarised copy of M.O.U., between 9 the company and accused dt.11.07.2011, 2) Ex.P2 is the cheque dt.30.01.2014, 3) Ex.P3 is the cheque return memo dt.03.02.2014, 4)

Ex.P4 is the office copy of legal notice along with postal receipt dt.14.02.2014, 5) Ex,P5 is the courier acknowledgement (internet copy), 6) Ex.P6 is the returned registered cover, 7) Ex.P7 is the reply notice dt.01.03.2014, 8) Ex.P8 is the notarized copy of certificate of incorporation, 9) Ex.P9 is the authorization letter issued in the name of

PW.1, 10) Ex.P10 is the bank statement in the name of company and

11) Ex.11 is the photo copy of receipt for Rs.20,00,000/- dt. 14.04.2018 notarized copy (marked subject to objection).

16.During cross examination PW.1 testified that he was not present at the time of transaction and at the time of executing M.O.U., He doesn’t remember the date in which he started acting as on authorised person in this case. He knows the contents of the legal notice/Ex.P4.

The accused gave reply notice./Ex.P7 on 01.03.2014. The body of the cheque and the signature are differing in respect of writing . He knows the complainant company orally demanded the accused to pay the amount since 2012. The company did not initiate legal action against the accused or on the farmers by filing civil suit or a criminal case except the present case.

17.The learned counsel for the accused suggested that the cheque/Ex.P2 issued by the accused is for collateral purpose and it was pressed into service by mentioning huge amount and filed the present case with false allegations and the accused was threatened for which he paid Rs.20,00,000/- to him and passed a receipt in token of payment of Rs.20,00,000/- by way of DD and the accused is not personally liable in this case. The above suggestions were denied by him.

10 18.From the threshold it is the contention of the accused that the complainant company obtained a blank cheque from the accused towards security for the amount Rs.75,00,000/- advanced to him and with an evil intention the complainant company got filled up the cheque for Rs.95,81,096-00 and filed the present complaint against the accused to get wrongful gain from him. The accused further contended that the complainant company has to file a suit in civil court for its remedy as per law instead of filing the present case against the accused . There is no legally enforceable debt between the accused and the complainant company.

19.At the stage, it is better to go through the recitals of M.O.U., /Ex.P1. The M.O.U., is executed on 11.07.2011 Vijayawada between the accused as first party and the company as second party.

Fourteen clauses were incorporated in the said M.O.U., Clause No.(4) discloses that the 1st party/authorised person shall complete the registration process in favour of the 2nd party within 90 days from the date of M.O.U., Clause (14) discloses that the both the parties agreed that the 2nd party is entitled to take appropriate legal action under both civil and criminal laws against 1st party or his principles whenever any dispute arises. From Ex.P1 M.O.U., it is clear that any dispute arises during the course of action the complainant company has at liberty to initiate action in both civil and criminal laws against the accused are his principals.

20.It is also pertinent to go through the details in the statement of account /Ex.P10 of complainant company. It goes to show that on 14.07.2011 an amount of Rs.75,00,000/- was debited and three cheques vide Nos.874789, 874790 and 874791.

11 21.The averments in the complaint goes to show that an amount of

Rs.75,00,000/- was given to the accused by the complainant by way of three cheques each worth of Rs.25,00,000/- bearing Nos.874789, 874790 and 874791 on 11.07.2011.

22.According to PW.1 the company orally demanded the accused to pay the amount since 2012 atlast the accused gave Ex.P2 cheque for

Rs.95,87,096/- on 30.01.2014 and the said cheque was bounced with a reason that funds insufficient.

23.The accused contended that Ex.P2 cheque was taken from the accused by the complainant company on 14.07.2014 i.e., the advance amount of Rs.75,00,000/- given to the accused. The complainant company conveniently filled up the blanks of the cheque/Ex.P2 and pressed the same into service and filed the present case.

24.At the stage, it is better to go through the contents of reply notice /Ex.P7. It goes to show that in the month of April 2013 complainant company has requested the accused to issue latest blank cheques. The accused obtained new cheque book and issued two blank cheques. But the complainant company forged and fabricated the cheque and presented the same on 01.02.2014 and further the accused is ready and willing to complete his part of performance under

M.O.U., within six months. The accused is ready and willing to settle the dispute amicably and peacefully. The contents in Ex.P7 goes to show that the accused gave two blank cheques to the complainant company in the year 2013. Ex,.P2 cheque was not given at the time of

M.O.U., towards security.

12 25.The accused is also disputing the receipt/Ex.P11 which was passed by PW.1 in token of payment of Rs.20,00,000/- by way of DD.

According to PW.1 the matter was referred to Lok-adalat for amicable settlement. At the Lok-adalat the matter was not settled totally and the accused agreed to pay Rs.20,00,000/- by way of DD to the company towards the amount under Ex.P2 cheque. The accused is contended that by playing coercion and fraud played against him for which he paid Rs.20,00,000/- to the company. In the reply notice/Ex.P7 it is mentioned that the accused is ready and willing to settle the matter amicably. It can be said that the accused ready and willing to settle the matter amicably. Hence, the contention raised by the accused can not be taken into consideration.

26.The accused stated in his written arguments that the complainant company utilised the signed blank cheque/Ex.P2 of accused and pressed into service. The very statement indicates that

Ex.P2 cheque was given by the accused. When there is no denial of signature of the accused on Ex.P2 cheque, then the presumptions under section 118 and 139 of Negotiable Instrument Act are drawn in favour of the complainant that Ex.P2 cheque was issued on 30.01.2014 towards discharge of the debt. Now the burden shifts on the accused to prove contrary by placing the probable evidence which is sufficient to rebut the presumptions. There is no rebuttable evidence brought on record by the accused . The accused is also not diligent enough to explain how Ex.P2 cheque was issued to the complainant in blank and for what reason. In the absence of any material evidence the onus of disproving Ex.P2 cheque was not discharged by the accused. So, there is no probable evidence put forth by the accused to rebut the presumption.

13 27.This court relied on the authority reported “in 2019 SCR 966,

Uttamram Vs. Devendhar Singh fudan and another”. Wherein the Lordship held cross examination of prosecution witnesses, without leading evidence, not sufficient to rebut presumption of consideration in favour of complainant and the burden is on the accused to rebut presumption that cheque was not issued for any debt or other liability.

No evidence leads by the accused to rebut the presumption. So, the accused failed to rebut the presumption of consideration. The accused in this case did not discharge the burden casts on him. When the presumption U/Sec. 118 and 139 N.I. act were drawn in favour of the complainant, the factors relating to the want of documentary evidence in the form of receipt or account or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not. Mere creation of doubt is not sufficient. There is no probable and acceptable evidence brought on record by the accused to rebut the presumptions.

28.In view of the discussion and the authority relied on, the court is of considered of opinion that the accused has failed to rebut the presumptions drawn in favour of the complainant U/Secs.118 & 139

N.I. act with regard to issuing of Ex.P2 cheque towards discharge of legally enforceable debt. Therefore, the complainant company clinchingly proved the case against the accused for the offence punishable U/Sec.138 N.I. act beyond the reasonable doubt.

Accordingly the accused is conviction U.Sec.255(2) Cr.P.C.

This Judgment directly typed on computer to my dictation by the stenographer Gr.III corrected on computer and pronounced by me in the open court this the 24th day of May 2024.

V ADDL. CHIEF METROPOLITAN MAGISTRATE-

VIJAYAWADA

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29.At the time of pronouncing Judgment, Accused called absent and the learned Counsel for the accused filed a petition U/s.317 of

Cr.P.C and the same is dismissed. Issue NBW against the accused on payment of process.

Judgment is pronounced. In the result, the accused is convicted U/s.255(2) of Cr.P.C for the offence punishable U/s.138 of

NI Act. To hear the accused on quantum of sentence and to pass sentence. The matter is adjourned to 26.06.2024.

V ADDL. CHIEF METROPOLITAN MAGISTRATE

VIJAYAWADA

Appendix of Evidence

Witness examined

For complainant For Accused

PW1: M. Syam Prasad --None--

DOCUMENTS MARKED

FOR COMPLAINANT

Ex.A1:Notarised copy of MOU between complainant and accused dt.11.07.2011 (marked subject to objection) Ex.A2:Cheque, dt.30.01.2014 Ex.A3:Cheque return memo, dt.03.02.2014 Ex.A4:O/c. Of legal notice along with Postal receipt, dt.14.02.2014. Ex.A5:Courier acknowledgment (Internet copy) Ex.A6:Returned registered cover Ex.A7:Reply notice, dt.01.03.2014 Ex.A8:Notarised copy of certificate of incorporation Ex.A9:Authorization letter issued in my name. Ex.P10:Bank statement in the name of company. Ex.P11:Receipt photo copy dt.14.04.2018

FOR ACCUSED

-Nil-

V Addl Chief Metropolitan Magistrate,

Vijayawada.

15 Dt.19.08.2024

30.The learned counsel for the accused filed a memo stating that the accused is directed to be present before this court as per the orders passed by the Hon’ble High Court of A.P. vide Crl. Petition

No.5418/2024 dt.13.08.2024, accordingly the accused is present

before this court and prays to consider the copy of the order enclosed

with the memo.

31.Perused the copy of the order, which was down loaded from the official web site of High Court of A.P. at Amaravathi, enclosed with the memo. Wherein the Hon’ble High Court of A.P. directed the petitioner as mentioned in para 13 as “ The petitioner is directed to appear

before the learned magistrate within Seven (07) days from the date of

receipt of the copy of order. On such appearance, the learned

magistrate may here with, on quantum of sentence and pass

appropriate orders according to law. The non bailable warrant issued against the petitioner/accused shall stand suspended. On passing sentence, the petitioner is at liberty to file necessary application

U/sec.389(1) Cr.P.C. On filing such application, the learned Magistrate shall dispose of the same on the same day, as per law”.

32.This court pronounced judgment on 24.05.2024 by convicting the accused U/sec.255(2) Cr.P.C. for the offence punishable U/sec.138 N.I.

Act. Non bailable warrant was given on 24.05.2024 and posted the matter to hear the accused on quantum of sentence and to pass sentence and adjourned the matter to 26.06.2024. Again the matter was posted to 27.06.2024 from 26.06.2024 to hear the accused on quantum of sentence. Again the matter is adjourned to 29.08.2024 from 27.06.2024. to hear the accused on quantum of sentence. At the stage the learned counsel for the accused filed the copy of the order passed by the Hon’ble High Court of A.P. vide Crl. Petition

No.5418/2024, dt.3-08-2024.

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33.Since the non-bailable warrant issued against the petitioner/accused by this court was suspended by the Hon’ble High

Court of A.P. and a direction is given to the accused for his appearance

before this court within Seven (07) days from the date of the receipt of

copy of order, the accused appeared before this court.

34.Upon questioning the quantum of sentence the accused pleaded mercy on the grounds that he is aged about 70 years and he has bodily ailments such as B.P., Sugar, heart ailments. His wife, who is having aged about 68 years is also suffering from B.P., Sugar and knee pains.

She under went knee surgery at Guntur hospital. My wife is a home maker and she depends upon my lively hood. I never committed any offence at any point of time and he was cheated by the people of complainant company.

35.Basing on the above submissions made by the accused, this court took a lenient view in this regard.

36.In the result, the accused is found guilty for the offence punishable U/sec.138 Negotiable Instruments Act and convicted

U/sec.255(2) Cr.P.C. and he is sentenced to under go simple imprisonment for one year and to pay a fine of Rs.10,000/- in default the accused shall under go a simple imprisonment for one month.

37.The accused appraised of right of appeal. He also advised to take the assistance of legal aid if necessary.

38.The bonds and bail bonds shall be in force for a period of six months.

V Addl. Chief Metropolitan Magistrate, Vijayawada.

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Calendar in CC.No.162/2016 on the file of V Addl. Chief Metropolitan

Magistrate, Vijayawada.

OffenceTaken Apprehen-ReleaseCommence-Close of trial Sentence or on filesion of on Bailment of trialOrders accused 03.02.201425.03.2014-- --06.03.201925.03.2024Convicted on 24.05.2024 Sentenced on 19.08.2024

Explanation for delay: This case was taken on file on 25.03.2014 U/s.138 of N.I.Act. On 13.02.2017 accused was present and copies of documents furnished. On 16.06.2017 accused was examined U/s.251 Cr.P.C. On 06.03.2019 PW.1 examined in chief and he was cross examined On 25.03.2024 complainant side evidence closed. On 21.12.2022 the accused was examined U/s.313 Cr.P.C. On 10.01.2023 defence side evidence closed. On 02.02.2023 arguments heard. On 19.08.2024 Judgment pronounced. Hence, the delay.

Calendar Case No.162/2016 on the file of V Addl. Chief Judicial Magistrate, Vijayawada.

Agri Gold Farm Estates India Pvt Ltd., Having its Corporate Office at D. No. 40-6-3, Nimmagadda Soma Sankara Rao St, Old Revenue Colony, M.G. Road, Labbipet, Vijayawada., Rep.by its Authorized Person Sri Sivaraju Narasimha Rao, S/o.Satyanarayana Rao (late), aged 43 years, working as Accounts

Officer, Resident of Vijayawada. ... Complainant.

Description of the accused: Bijenepalli Radha Krishna Murthy, S/o.Poornachandra Rao, Hindu, aged about 52 years, Properties, R/o.D.No.4-7-10, Sri Radha Krishna Nilayam, Koritipadu, Beside Kodanda Ramalayam, Gandhi Center, Guntur-522 007.Vijayawada …. Accused

Offence: Dishonour of Cheque for insufficient funds Sec. Of Law : U/s.138 of N.I.Act. Finding: Accused found guilty.

Result: Judgment is pronounced. In the result, the accused is convicted U/s.255(2) of Cr.P.C for the offence punishable U/s.138 of NI Act. To hear the accused on quantum of sentence and to pass sentence. On the date of conviction judgment dt.24.05.2024 accused called absent and thereafter matter is adjourned to 26.06.2024 for passing quantum of sentence of the accused and thereafter 19.08.2024 accused appeared before the court and sentence is passed against him i.e., accused is sentenced to under go simple imprisonment for one year and to pay a fine of Rs.10,000/- in default the accused shall under go a simple imprisonment for one month. The accused appraised of right of appeal. He also advised to take the assistance of legal aid if necessary. The bonds and bail bonds shall be in force for a period of six months.

Note: Fine amount has been paid.

V ADDL. CHIEF METROPOLITAN MAGISTRATE

VIJAYAWADA

Copy submitted to: The Hon’ble Metropolitan Sessions Judge, Vijayawada.IL// 18

1

IN THE COURT OF SESSIONS JUDGE, MAHILA COURT, VIJAYAWADA.

PRESENT: SRI PILLI RAJA RAM

Sessions Judge, Mahila Court, Vijayawada.

Thursday, this the 13th day of March, 2025

Sessions Case No.34/2022

(P.R.C.No.46/2021 Order dated 07.01.2022 on the file of VI Metropolitan Magistrate, Vijayawada, in Crime No.141/2018, U/Secs.370(A)(2) of I.P.C and Sections 3, 4 & 7 of Immoral Traffic (Prevention) Act of Machavaram P.S.)

Complainant:The State rep. by Inspector of Police, Machavaram Police Station, Vijayawada. Represented by:Smt.G.Radha, Addl. Public Prosecutor, Mahila

Sessions Judge’s Court, Vijayawada

Accused:1) Challa Sirisha @ Gobbey Sirisha @ Vankayalapati Sirisha @ Sandhya @ Gobbey @ Siri, W/o.Late Nageswara Rao, 32 years, Yadava, D.No.31-4-9, Gadde Purnachandra Rao Street, Maruthi Nagar, Vijayawada, native of Khammam.

2) Gudeseva Jaya Krishna, S/o.Nagaraju, 28 years, Surya Balija, D.No.1-82, near Saibaba Temple, Ramalayam Street, Ramavarappadu, Vijayawada.

3) Vankayalapati Srinivasa Rao, S/o.Kameswara Rao, 48 years, Brahmin, 28-13-12A, Boddapativari Street, Gandhi Nagar, Vijayawada. Represented by:Sri K.Venkatesh Sarma, Advocate for Accused Nos.1 to 3.

FORM B

[ Rule 67(2) ]

Date of Offence:11.03.2018 Date of F.I.R:11.03.2018 Date of Charge Sheet:29.10.2018 Date of Framing of Charges:13.03.2024 Date of commencement of:19.03.2024 evidence Date on which judgment is:05.03.2025 reserved Date of the Judgment:13.03.2025 2

Date of the Sentencing Order, if:13.03.2025 any

Accused Details: Rank of the Accused:No.1 Name of Accused:Challa Sirisha @ Gobbey Sirisha @ Vankayalapati Sirisha @ Sandhya @ Gobbey @ Siri, Date of Arrest:12.03.2018 Date of Release on Bail:24.03.2018 Offences charged with:370(A)(2) of I.P.C and Secs. 3,4&7 of I.T.P Act. Whether Acquitted or Convicted:Acquitted Sentence Imposed:In the result, Accused Nos.1 to 3 are found not guilty for the offences punishable under Section 370(A)(2) of IPC and Sec.3,4 & 7 of I.T.P Act and they are acquitted under Sec- tion 235(1) of Cr.P.C. The bail bonds of ac- cused Nos.1 to 3 shall be in force for a pe- riod of 6 months as contemplated under Sec.437-A Cr.P.C.

Period of Detention Undergone:12.03.2018 to 24.03.2018 during Trial for purpose of section 468 of B.N.S.S,2023.

Accused Details: Rank of the Accused:No.2 Name of Accused:Gudeseva Jaya Krishna Date of Arrest:12.03.2018 Date of Release on Bail:24.03.2018 Offences charged with:370(A)(2) of I.P.C and Secs. 3,4&7 of I.T.P Act. Whether Acquitted or Convicted:Acquitted Sentence Imposed:In the result, Accused Nos.1 to 3 are found not guilty for the offences punishable under Section 370(A)(2) of IPC and Sec.3,4 & 7 of I.T.P Act and they are acquitted under Sec- tion 235(1) of Cr.P.C. The bail bonds of ac- cused Nos.1 to 3 shall be in force for a pe- riod of 6 months as contemplated under Sec.437-A Cr.P.C.

Period of Detention Undergone:12.03.2018 to 24.03.2018 3 during Trial for purpose of section 468 of B.N.S.S,2023.

Rank of the Accused:No.3 Name of Accused:Vankayalapati Srinivasa Rao Date of Arrest:13.03.2018 Date of Release on Bail:24.03.2018 Offences charged with:370(A)(2) of I.P.C and Secs. 3,4 & 7 of I.T.P Act. Whether Acquitted or Convicted:Acquitted Sentence Imposed:In the result, Accused Nos.1 to 3 are found not guilty for the offences punishable under Section 370(A)(2) of IPC and Sec.3,4 & 7 of I.T.P Act and they are acquitted under Sec- tion 235(1) of Cr.P.C. The bail bonds of ac- cused Nos.1 to 3 shall be in force for a pe- riod of 6 months as contemplated under Sec.437-A Cr.P.C.

Period of Detention Undergone:13.03.2018 to 24.03.2018 during Trial for purpose of section 468 of B.N.S.S,2023.

This Sessions Case coming on 05.03.2025 for final hearing before me in the presence of Additional Public Prosecutor, on behalf of the prosecution, and of Sri K.Venkatesh Sarma, Advocate for Accused Nos.1 to 3 and the matter having stood over for consideration till this day, this Court delivered the following :-

J U D G M E N T

The State represented by the Inspector of Police, Machavaram Police Station filed the Charge Sheet against the Accused Nos.1 to 3 to prosecute them for the offences punishable U/Secs.370A(2) of I.P.C and sections 3,4,5 and 7 of I.T.P Act, in Cr.No.141/2018 of Machavaram P.S.

2. The case of the prosecution as per charge sheet is that:

(a) On 11.03.2018 at 16.00 hours, on credible information as the prostitution is going at the house of Accused No.1 situated at D.No.31-4-9, Gadde Poornachandra

Rao Street, Maruthi Nagar, Vijayawada, P.W.7-Md.Saherunnisa Begum, Inspector of 4

Police, Machavaram P.S conducted raiding along with staff i.e., P.W.2-G.Usha Rani,

WPC 3223, L.W.2-P.Rambabu,PC 2760 and L.W.3-M.Karthik, PC 2697 and mediators i.e., P.W.3-N.Venkata Sudhakar, P.W.4-T.Venkateswara Rao and caught red handed the Accused No.1 who is organizing the prostitution along with Accused

No.2 and also P.W.1-K.Uma Maheswari, taken them into custody, seized three cell phones and cash of Rs.9,000/- from the possession of Accused No.1, one cell phone and cash of Rs.400/- from the possession of the Accused No.2, and two cell phones from the possession of victim woman in the presence of mediators under the cover of mediators report.

(b) P.W.7 returned to the Machavaram P.S along with the arrested Accused

Nos.1 and 2 and seized property, registered the above mediators report as a case in

Crime No.141/2018, under sections 3,4,5 & 7 of I.T.P Act, 1956 and Section 370A(2) of I.P.C, submitted the copies of F.I.R to the concerned, took up investigation, examined P.W.1, 2,5 and L.Ws.2 and 3 and recorded their statements, produced the

Accused Nos.1 and 2 for judicial remand and admitted P.W.1 in Vasavya Mahila

Mandali, Vijayawada on 12.03.2018. On 13.03.2018, P.W.7 examined P.W.6 and

L.W.6-A.Durga Pradesh, L.W.8-V.Lakshmi Naidu and recorded their statements,

Basing on the evidence of P.W.6, L.Ws.6 & 8, P.W.7 arrested the Accused No.3 on 13.03.2018 and produced him before the court of judicial remand. As per the orders of the Hon’ble I Metropolitan Magistrate,Vijayawada, the victim woman was handed over to her uncle under acknowledgment from Vasavya Mahila Mandali, Vijayawada.

L.W.11-Dr.Siva Sankar Reddy, Medical Officer, Government General Hospital,

Vijayawada issued medical certificate of P.W.1. After completion of entire investigation, P.W.7 filed the charge sheet.

3. This Case was taken on file for the offence punishable U/Sec.370A(2) of I.P.C and Sections 3,4,5 & 7 of I.T.P Act by the learned VI Metropolitan Magistrate,

Vijayawada, against the Accused Nos.1 to 3.

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4.On appearance of the Accused Nos.1 to 3, copies of the case record relied upon by the prosecution were furnished to them as contemplated U/Sec.207 Cr.P.C.

5.The learned Magistrate having satisfied and found that there is a prima facie material available against the accused Nos.1 to 3 and took cognizance for the offence punishable U/Sec.370A(2) of I.P.C and Sections 3,4,5 and 7 of I.T.P Act are exclusively triable by the Sessions Court, he committed the case vide P.R.C

No.46/2021, U/Sec.209 of Cr.P.C. In turn, the Hon’ble Metropolitan Sessions Judge,

Vijayawada, taken the case for the offence punishable U/Secs.370A(2) of I.P.C and sections 3,4 & 7 against Accused Nos.1 to 3 by allotting Sessions Case No.34/2022, made over the same to this Court, for disposal according to law.

6.Charges U/Sec.370A(2) of I.P.C and sections 3,4 & 7 of I.T.P Act are framed against the Accused Nos.1 to 3, same were read over and explained to them in telugu, but the accused Nos.1 to 3 pleaded not guilty and claimed to be tried.

Accordingly, trial has commenced.

7.In order to prove the case, prosecution cited 12 witnesses, but examined only 7 witnesses. P.W.1 is the victim, P.Ws.3 and 4 are mediators for arrest of accused

Nos.1 to 3 and seizure of material objects, P.W.5 is said to be house owner of

Accused No.1, P.W.6 is said to be neighbour of scene of offence, P.Ws.2 and 7 are said to be police officials at the time of conducting the raid on the accused.

8.After completion of evidence of prosecution, Accused Nos.1 to 3 were examined U/Sec.313 of Cr.P.C with regard to the incriminating circumstances appearing against them in the evidence of prosecution witnesses and answers given by Accused for each question was recorded separately in Telugu. Accused Nos.1 to 3 did not examine any witnesses on their side.

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9.Heard the arguments of the learned Addl. Public Prosecutor and the learned counsel for Accused Nos.1 to 3.

10. The point that would germane for consideration herein is:

Whether the prosecution proved the guilt against Accused Nos.1 to 3

for the charges under sections 370A(2) of I.P.C and sections 3, 4 & 7 of

I.T.P Act, beyond reasonable doubt ?

POINT:

11.The learned Addl. Public Prosecutor argued that though all the material witnesses did not support the case of the prosecution, the sole testimony of evidence of P.W.7/Investigating Officer is sufficient to convict the accused. Hence, prays to convict the accused. On the other hand the learned counsel for accused argued that except the sole testimony of the Investigating Officer all the material witnesses did not support the case and it is not safe to convict the accused basing on the sole testimony of P.W.7. Hence, prays the court to acquit the accused.

12.In order to prove the case of prosecution, the prosecution examined seven witnesses out of 12 witnessed cited. P.W.1 is the victim woman, P.Ws.3 and 4 are said to be mediators for apprehension of the accused and seizure of the material objects, P.W.5 is said to be house owner where Accused No.1 is residing and doing prostitution, P.W.6 is said to be eye witness to the incident and P.W.2 is the police official who participated in the raid and P.W.7 who conducted entire investigation and filed the Charge Sheet. The learned Addl. Public Prosecutor has given up the evidence of L.W.2-P.Rambabu, PC 2760, L.W.3-M.Karthi, PC2697 and L.W.11-Siva

Shankar Reddy, Medical Officer, Government General Hospital, Vijayawada. L.W.6-

Atkuri Durga Prasad reported that he is bed ridden and L.W.8-V.Lakshmi Naidu reported died.

13.P.W.1, victim woman, testified that she does not know about facts of the case, she did not support the prosecution case and turned hostile. Her statement recorded 7 under section 161 Cr.P.C was marked as Ex.P1. During the cross examination by the learned Addl. P.P, she denied the suggestion that accused are running brothel den and they engaged her for the purpose of prostitution and accused earning money for their wrongful gain.

14.P.W.5, house owner who let out the home for Accused No.1, testified that in the year 2018, he let out the house to the Accused No.1. On 11.03.2018, the Circle

Inspector of Police came to his house and informed to him that prostitution was going on at his house, which was let out to Accused, for which, he replied that he did not know. He further deposed that he asked the accused to vacate the house and she vacated the house. Nothing is elicited from his evidence that Accused No.1 has stayed in his house.

15.P.W.6 said to be eye witnesses, did not support the case of prosecution and turned hostile. During the cross examination by the learned Addl.P.P, his statement recorded under section 161 Cr.P.C is marked as Ex.P6. The evidence of this witness is not useful to the case of the prosecution.

16.P.W.3, said to be the mediator, testified that he did not know the accused and victim. He further deposed that in the year 2018, he went to the police station on his personal work where police obtained his signatures on some papers, but he did not know the contents therein. Ex.P2 is his signature on the mediators report dated 11.03.2018 at about 4.00 p.m., and Ex.P3 is his signature on mediators report dated 13.03.2018 at about 3.00 p.m., During the cross examination by the learned Addl.

P.P., he denied the suggestion on 11.03.2018 and 13.03.2018, he and P.W.4 along with police went to the house situated at D.No.31-4-9, Maruthi Nagar, Vijayawada where the accused and victim were present, on enquiry accused admitted their guilt of offence about the prostitution and Inspector of Police prepared the mediators report in their presence.

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17.P.W.4, said to be the another mediator, testified that he did not know the accused and victim. He further deposed that in the year 2018, he went to the police station on his person work where police obtained his signatures on some papers, but he did not know the contents therein. Ex.P4 is his signature on the mediators report

dated 11.03.2018 at about 4.00 p.m., and Ex.P5 is his signature on mediators report

dated 13.03.2018 at about 3.00 p.m., During the cross examination by the learned

Addl. P.P., he denied the suggestion on 11.03.2018 and 13.03.2018, he and P.W.3 along with police went to the house situated at D.No.31-4-9, Maruthi Nagar,

Vijayawada where the accused and victim were present, on enquiry accused admitted their guilt of offence about the prostitution and Inspector of Police prepared the mediators report in their presence.

18.P.W.2 is the woman constable and she stated that on 11.03.2018 at about 4.00 p.m., herself, C.I of Police, two men PCs, two mediators went to the house situated at D.No.31-4-9, Maruthi Nagar, Gadde Purnachandra Rao Veedhi,

Vijayawada where the C.I of Police and staff went to the 2nd floor of the house and found one lady/Accused No.1 sat in the hall and that C.I of Police asked Accused

No.1 and that Accused No.1 confessed the guilt of the offence in their presence.

Then C.I of Police knocked the door, then one lady/P.W.1 and one gent/Accused

No.2 were present in the bed room, they admitted their guilt of offence, and that C.I of Police seized Rs.9,000/- cash, three cell phones from A1; two cell phones and

Rs.400/- from Accused No.2; two cell phones from the victim. During the cross examination, she denied the suggestion that accused never admitted her guilt and she did not visit the scene of offence and no prostitution was going on.

19.P.W.7 is the Investigating Officer stated that on 11.03.2018 at about 4.00 p.m., she along with mediators and staff proceeded to the Door No.31-8-9, caught one lady/Challa Sirisha, on questioning her, she gave confessional statement. Then she seized three cell phones under M.Os.1 to 3 and cash of Rs.9,000/- under M.O.4 from the possession of Accused No.1; one cell phone under M.O.5 and cash of Rs.400/- 9 under M.O.6 from the possession of Accused No.2; two cell phones from the possession of victim woman under M.Os.7 and 8 under the cover of Ex.P7- mediators report. He further deposed that basing on the mediators report, he registered a case in Crime No.141/2018 under sections 370(a)(ii) I.P.C and sections 3,4,5 & 7 of I.T.P Act under Ex.P8-F.I.R, recorded the statements of witnesses, got drafted the rough sketch of scene of offence under Ex.P9, victim girl was admitted in shelter home. He further deposed that on 13.03.2018, he examined P.W.6, L.W.6-

A.Durga Prasad, L.W.8-V.Lakshmi Naidu and recorded their statements, arrested the accused No.3 , seized two cell phones under M.Os.9 and 10 from his possession in the presence of mediators under the cover of Ex.P10-mediators report. After receipt of medical reports from L.W.11-Siva Shankar Reddy, he filed the Charge Sheet.

During the cross examination, P.W.7 admitted that when they go to the 2nd floor of the building, they have seen that one lady and gent sat in the hall. He denied the suggestion that he manipulated the Ex.P7-mediators report with the active support of mediators, he conducted table investigation in this case and Accused

Nos.1 to 3 did not indulge illegal activities much less for the offences shown in F.I.R and Accused Nos.1 to 3 were falsely implicated in this case.

20.According to the Investigating Officer/P.W.7, after receipt of reliable information, he along with Mediators i.e., P.Ws.3 and 4 and staff i.e., L.W.2-

P.Rambabu, PC 2760, L.W.3-M.Karthik,PC 2697 and P.W.2 went to the house of

P.W.5 and conducted raid, there they caught Accused No.1-Challa Sirisha redhandedly and seized M.Os.1 to 3 (three cell phones) and M.O.4-cash of

Rs.9,000/- and recorded her confessional statement. He also seized M.O.5-Cell phone and M.O.6-cash of Rs.400/- from Accused No.2. He also seized two cell phones under M.Os.7 & 8 from victim woman/P.W.1 and the entire proceedings were reduced into writing in the presence of mediators/P.Ws.3 and 4 by way of Ex.P7- mediators report dated 11.03.2018 at 4.00 p.m., He further stated that he recorded the statement of P.W.1/victim woman, L.W.2-P.Rambabu, PC 2760, L.W.3-

M.Karthik,PC 2697, P.W.2 and P.W.5, but surprisingly P.W.5 who is the owner of the 10 house did not speak anything about the raid and recording of the statement of

L.Ws.2, 3, P.Ws.1 and 2 in his presence by P.W.7. He stated that his statement was recorded by P.W.7/Investigating Officer on the next day in the police station. It appears that conducting raid and preparation of Ex.P7-mediators report in the scene of offence is doubtful. P.W.7, in his cross examination, admitted that in para 2 of 8th line in Ex.P7-mediators report dated 11.03.2018 it is noted as “when they go to the second floor of the building, they have seen one lady and gent sat in the hall” whereas P.W.2, Woman P.C who participated in the raid restified that when P.W.7, herself and other staff went to the second floor of the house, they noticed that one lady/Accused No.1 sat in the hall. When P.W.2, P.W.7 and their men went to the house where they alleged brothel den was running for raid, the persons participated in the said raid shall depose the similar facts but the evidence of P.W.2 contradicts the evidence of P.W.7 in respect of caught hold of lady/Accused No.1 and one male person/Accused No.2. If really, they conducted raid about the alleged offence or crime, they must notice the persons who were present at the time of raid, hence, the discrepancy of noticing persons defers from the evidence of P.Ws.2 and 7 with each other. When the discrepancy is there, it is the duty of the prosecution to clear the discrepancy by examining the other witnesses whose names are cited and who participated in the said raid. The prosecution did not choose to examine L.W.2-

P.Rambabu, PC 2760, L.W.3-M.Karthik,PC 2697. The reasons for non-examination of said witnesses to prove the cases is best known to the prosecution. Hence, the entire evidence about caught hold of Accused Nos.1 and 2 and P.W.1 under the cover of mediators report/Ex.P7 dated 11.03.2018 and recover of M.Os.1 to 3 and 4 to 6 creates a doubt in the mind of the Court. The evidence of P.W.7 also creates a doubt about the arrest of Accused No.3 in the presence of mediators i.e., P.Ws.3 and 4 and drafting of the mediators report dated 13.03.2018/Ex.P10 and seizure of

M.Os.9 & 10. Though the learned Addl.P.P argued that basing on the sole testimony of Investigating Officer/P.W.7 is sufficient to convict the Accused Nos.1 to 3 in the case, but to rely on the sole testimony of P.W.7 is unsafe to come to a conclusion to convict the accused.

11

21.In this case, except the evidence of PWs.2 and 7 there is no material evidence against the accused Nos.1 to 3 to prove the guilt of Accused Nos.1 to 3 and the victim girl and the mediators were not supported the case of prosecution and they turned hostile. Hence, in view of the facts and circumstances of the case, I do not find any incriminating material against the accused Nos.1 to 3. The house owner was examined as P.W.5 but he did not support the prosecution case. M.Os.1 to 3, 5, 7 to 10 cell phones and M.Os.4 and 6 are the cash of Rs.9,000/- and Rs.400/- seized but

P.W.7 failed to conduct further investigation to connect the cell phones and cash whether it belongs to accused or not. Hence, mere seizure of M.O.1 to 10 is not sufficient unless they are connected to victim i.e., P.W.1 or accused. The evidences of P.Ws.2 & 7 who police officials are not sufficient to convict the accused. So considering all these aspects the prosecution has not proved the case of the accused for the offence under Sec.370(A)(2) of IPC and Sec.3, 4 and 7 of I.T.P. Act.

Accordingly the point is answered against the prosecution.

22. In the result, Accused Nos.1 to 3 are found not guilty for the offences punish- able under Section 370(A)(2) of IPC and Sec.3,4 & 7 of I.T.P Act and they are acquit- ted under Section 235(1) of Cr.P.C. The bail bonds of accused Nos.1 to 3 shall be in force for a period of 6 months as contemplated under Sec.437-A Cr.P.C.

M.Os.1 to 3, 5, 7 to 10 i.e., Oppo Cell Phone, Samsung Cell Phone, Samsung

Keypad Phone, Motorola J3 Phone, Opp Cell phone, Red Mi Phone, I Phone and

Samsung J2 Model shall be auctioned and the sale proceeds of the same shall be confiscated to the State after appeal time is over, M.O.4-cash of Rs.9,000/- and

M.O.6-cash of Rs.400/- shall be confiscated to the State after appeal time is over.

Unmarked property if any shall be destroyed after appeal time is over.

Typed to my dictation by Steno Gr.II, corrected and pronounced by me in the open Court on this the 13th day of March, 2025.

Mahila Sessions Judge, Vijayawada.

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LIST OF PROSECUTION/DEFENCE/COURT WITNESSES:

A.Prosecution:

RANKNAMENATURE OF EVIDENCE

(Eye Witness, Police Witness, Expert Witness, Medical Witness, Panch Witness, Other Witness) P.W.1K.Uma MaheswariEye Witness P.W.2G.Usha RaniPolice Witness P.W.3N.Vekata SudhakarPanch Witness P.W.4T.Venkateswara RaoPanch Witness P.W.5V.Kameswara RaoEye Witness P.W.6N.PratapEye Witness P.W.7Md.SaheraPolice Witness

B.Defence Witnesses, if any:

RANKNAMENATURE OF EVIDENCE

(Eye Witness, Police Witness, Expert Witness, Medical Witness, Panch Witness, Other Witness) -Nil-

C.Court Witnesses, if any:

RANKNAMENATURE OF EVIDENCE

(Eye Witness, Police Witness, Expert Witness,Medical Witness, Panch Witness, Other Witness) -Nil-

LIST OF PROSECUTION/DEFENCE/COURT

[ Rule 67(3) ]

A.Prosecution: Sl.Exhibit NumberDescription No.

1.Ex.P.1/P.W.1161 Cr.P.C Statement of P.W.1

2.Ex.P.2/P.W.3Signature of P.W.3 on mediators report dt 11.03.2018

3.Ex.P.3/P.W.3Signature of P.W.3 on mediators report dt 13.03.2018

4.Ex.P.4/P.W.4Signature of P.W.4 on mediators report dt 11.03.2018

5.Ex.P.5/P.W.4Signature of P.W.4 on mediators report dt 13.03.2018

6.Ex.P.6/P.W.6161 Cr.P.C Statement of P.W.6

7.Ex.P.7/P.W.7Mediators report dt 11.03.2018 at 4.00 p.m.

8.Ex.P.8/P.W.7F.I.R in Cr.No.141/2018, U/Secs.370(a)(ii) of I.P.C and Secs.3,4,5 & & of I.T.P Act.

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9.Ex.P.9/P.W.7Rough Sketch dated 11.03.2018

10.Ex.P.10/P.W.7Mediators report dt 13.03.2018

B.Defence: Sl.Exhibit NumberDescription No. - Nil -

C.Court Exhibits: Sl.Exhibit NumberDescription No. -Nil-

D.Material Objects: Sl.Material ObjectDescription No.Number 1M.O.1/P.W.7Oppo Cell Phone 2M.O.2/P.W.7Samsung Cell Phone 3M.O.3/P.W.7Samsung Key Pad Phone 4M.O.4/P.W.7Cash of Rs.9,000/- 5M.O.5/P.W.7Motorola J3 Phone 6M.O.6/P.W.7Cash of Rs.400/- 7M.O.7/P.W.7Oppo Phone 8M.O.8/P.W.7Red Mi Phone 9M.O.9/P.W.7I Phone 10M.O.10/P.W.7Samsung Cell Phone

Mahila Sessions Judge, Vijayawada.

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TABULAR FORM TO BE APPENDED FOR THE JUDGMENT AS PER RULE 67 OF CRIMINAL RULES OF PRACTICE IN SESSIONS CASE NO.34/2022 ON THE FILE OF SESSIONS JUDGE, MAHILA COURT-CUM-V ADDITIONAL DISTRICT AND

SESSIONS JUDGE, VIJAYAWADA.

1.Serial No.:--

2.Sessions Case No.:34/2022

3.P.R.C.No.:46/2019

4.Name of the Police Station,: Crime No. and offence.

5.Description of the Accused:

6.Date of Offence:11.03.2018

Date of Complaint:11.03.2018

Date of apprehension of:A1-12.03.2018 AccusedA2-12.03.2018 A3-13.03.2018

Date of release of accused:A1-24.03.2018 A2-24.03.2018 A3-24.03.2018

Date of Committal Order in:07.01.2022 lower Court

Date of commencement of trial:19.03.2024

Closure of trial:05.03.2025

Date of Judgment in this Court:13.03.2025

7.Result: In the result, Accused Nos.1 to 3 are found not guilty for the offences punishable under Section 370(A)(2) of IPC and Sec.3,4 & 7 of I.T.P Act and they are acquitted under Section 235(1) of Cr.P.C. The bail bonds of accused Nos.1 to 3 shall be in force for a period of 6 months as contemplated under Sec.437-A Cr.P.C. M.Os.1 to 3, 5, 7 to 10 i.e., Oppo Cell Phone, Samsung Cell Phone, Samsung Keypad Phone, Motorola J3 Phone, Opp Cell phone, Red Mi Phone, 15

I Phone and Samsung J2 Model shall be auctioned and the sale proceeds of the same shall be confiscated to the State after appeal time is over, M.O.4- cash of Rs.9,000/- and M.O.6-cash of Rs.400/- shall be confiscated to the State after appeal time is over. Unmarked property if any shall be destroyed after appeal time is over.

8.Explanation for delay: In Committal Court: The case was taken on file on 4.10.2019. Copies were furnished to the accused under Section 207 Cr.P.C on 03.12.2021. The case was committed to the Court of Sessions, Vijayawada under Section 209 Cr.P.C on 07.01.2022. Hence, the delay.

In this Court: This case was made over to this Court by the Metropolitan Sessions Judge, Vijayawada vide S.C No.34/2022 on 23.02.2022. Accused Nos.1 to 3 are present on 13.03.2024. Charges are framed against Accused Nos.1 to 3 for the offence punishable U/Sec.370(A)(2) of I.P.C and Sec.3,4 & 7 of I.T.P Act on 13.03.2024. P.Ws.1 to 4 are examined on 19.03.2024, P.Ws.5 & 6 are examined on 26.03.2024 and P.W.7 is examined on 04.12.2024. Accused Nos.1 to 3 are examined U/Sec.313 Cr.P.C on 30.12.2024. Heard the arguments on both sides on 05.03.2025. Judgment is pronounced on 13.03.2025. Hence, the delay.

Mahila Sessions Judge, Vijayawada.

Copy submitted to: The Hon’ble Registrar (Judicial), High Court of Andhra Pradesh, Nelapadu at Amaravathi, Guntur District.

IN THE COURT OF THE IV ADDL. SENIOR CIVIL JUDGE – CUM – V

ADDL.CHIEF METROPOLITAN MAGISTRATE At VIJAYAWADA

PRESENT: SRI P. RAJARAM

IV ADDL. SENIOR CIVIL JUDGE, VIJAYAWADA

V ADDL. CHIEF METROPOLITAN MAGISTRATE

Wednesday, this the 22nd day of May, 2024

C.C.No.387/2016

Between:

Shaik Khajavali, S/o. Mastan, Muslim, age 44,D. No.FF BI, Vandana Apartment, beside Sindhu Bhavan Brundavan Colony, Labbipet, Vijayawada-10.

... Complainant.

And

Vemavarapu Prabhakara Rao, S/o. Umamaheswara Rao, Aged 53, D.No.76-53-113/3,Second Floor, Old B Colony, Bhavanipuram, Vijayawada, Krishna District.

... Accused.

This case coming on 22.05.2024 for final hearing before me in the presence of Sri K. Venkatesh Advocate for the complainant and of Sri M. Syam Advocate for the accused, and having stood over for consideration till this day, and upon hearing both sides, this Court delivered the following:

JUDGMENT

1.The complainant herein filed complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments

Act.

2.The case of the complainant in nutshell is that:

I)The accused borrowed an amount of Rs.2,50,000/- (Rupees two lakh fifty thousand) on 10.01.2012 in cash from him at Vijayawada for the purpose of his family expenses and executed a promissory note on the same day and agreeing to repay the same with interest at 24% p.a.

to him payable on demand either to him or to his order.

ii) Inspite of several demands for repayment of the above said legally enforceable debt at last accused had issued cheque bearing

No.479622 dated 10.04.2014 for Rs.1,90,000/- (Rupees one lakh ninety thousand) drawn on Indian Overseas Bank, Park road Branch,

Vijayawada, Krishna District respectively towards part payment of the above said legally enforceable debt.

Iii) When presented the said cheque for encashment in to his State

Bank of India, Labbipet Branch, Vijayawada, and the same was returned along with an endorsement “Insufficient Funds” vide return memos dated 17.04.2014. Thus the accused issued the above said cheque to the complainant without having sufficient funds in his account in the bank, knowing fully well the consequences thereof within thirty days of receipt of information from the bank regarding the return and dishonour of the above said cheque as unpaid, a registered composite legal notice dated 13.05.2014 through his advocate sent to the accused calling up on the accused to the payment of the above said amount covered by the above said cheque within 15 days from the date of receipt of the above said registered legal notice. The accused received the legal notice on 15.05.2014 and failed to make the payment within 15 days after the knowledge of notice thereon.

iv) Thus the accused issued the above said cheque to the complainant without having sufficient funds in his account in the bank, knowing fully well the consequences thereof. Therefore the accused has not only cheated the complainant but also committed the offence under section 138 of the N.I. Act, as amended and as such he is liable to be punished to the maximum and in spite of it his liability to pay the above said cheque amount still continues.

v) That the complainant has filed the complaint within one month from the date of expiry of 15 days grace time given under the notice for the payment of the said amount covered by the above said cheque.

the said cheque was presented for collection by the complainant in his bank, i.e., State Bank of India Branch, Vijayawada, and as such the

Honourable Court has got jurisdiction to cognize the offence.

3.Cognizance was taken for the offence under Section 138 of

N.I.Act. On appearance of the accused, copies of documents supplied as contemplated U/s.207 Cr.P.C.

4.When the accused examined U/s.251 Cr.P.C. for the offence

U/s.138 of N.I.Act, read over the substance of accusation and explained to him in Telugu, he pleaded not guilty for the said offence and claimed to be tried.

5.The complainant himself examined as PW.1 and 5 documents were marked as Exs.P1 to P5.

6.After closure of the complainant evidence, the accused was examined under Section 313 Cr.P.C., by explaining the incriminating circumstances appearing against him in the evidence of the complainant. But he denied the same stating that he did not commit any offence.

7.The accused reported no defence evidence and no documents were marked.

8.Heard the arguments of the learned Counsel for the complainant and learned Counsel for the accused. Both the counsels filed written arguments.

9.Now the point for determination is: -

Whether the complainant proved its case against the

accused for the offence U/s.138 of N.I.Act?

10.To prove that the accused committed the offence u/s.138 of

N.I.Act, at first the complainant has to prove:

a) that there was legally existing enforceable debt between the complainant and the accused;

b) that in order to discharge the debt, the accused issued cheque in his favour;

c) that the cheque issued by the accused was dishonoured;

d) that even after dishonour of said cheque and issuing legal notice by the complainant, the accused failed to pay the cheque amount.

POINT:-

11.The learned counsel for the complainant submitted that the accused borrowed Rs.2,50,000/- on 10.01.2012 from the complainant and executed promissory note/Ex.P1 in the presence of two attestors and scribe. In spite of several demands for repayment of the legally enforceable debt the accused issued Ex.P2 cheque on 10.04.2014 for

Rs.1,90,000/- towards part payment. The said cheque was presented for collection and the same was returned with an endorsement in sufficient funds dt.17.04.2014. Then the complainant issued a legal notice dt.13.05.2014 through his counsel demanding the accused for the payment covered by the cheque within 15 days from the date of receipt of a legal notice. Though the accused received the legal notice on 15.05.2014 failed to make the payment. Then the complainant filed the present complaint against the accused. The complainant himself examined as PW.1 and also one of the attestor of Ex.P1 pronote was examined as PW.2. Exs.P1 to P5 were marked through PW.1.

The evidence of the complainant/PW.1 and PW.2 coupled with the documents marked as Exs.P1 to P5 clinchingly proves the case of the complainant and prays to punish the accused.

12.On the other hand the learned counsel for the accused submitted that the accused is a Government employee and he has no need to borrow the amount from the complainant and he did not give any cheque to the complaint at any point of time. The complainant has no financial capacity to lend the amount to the accused under the promissory note. The accused did not receive the statutory legal notice/Ex.P4, since the notice send to the wrong address of the accused.

13.The learned counsel for accused further submitted that the complainant is the benami of one Siva Reddy and the complainant took the promissory note and cheque of the accused from the said

Siva Reddy, where he was running chits and got filed the present case by misusing the pronote and cheque. The inconsistant evidence between PW.1 and PW.2 shows that there is no legally enforceable debt in existence between the complainant and accused and the complainant failed to discharge the legal burden lies on him and the accused proved his case beyond all reasonable doubt and prays to acquit the accused.

14.The complainant contended that the accused borrowed a sum of

Rs.2,50,000/- on 10.01.2012 and executed a promissory note/Ex.P1 in his favour and on several demands he failed to pay the said debt.

Finally, the accused issued a cheque /Ex.P2 on 10.04.2014 for

Rs.1,90,000/- towards part payment. When the said cheque was presented for clearance it was dishonoured for want of Sufficient funds.

The same was intimated to the accused by issuing a statutory legal notice/ Ex.P4 demanding him to pay the amount under the cheque/Ex.P2. The said notice was received and the accused failed to pay the debt. Hence the complainant constrained to file the present case against the accused.

15.On the other hand the version of the accused is that the complainant was the Benami to one Siva Reddy who is running private chits. The complainant took the promissory note and cheque of the accused from the said Siva Reddy and brought the said pronote and cheque into existence by misusing the same and got filed the present case against him. He never borrowed any amount from the complainant and never executed the pronote/Ex.P1 in favour of the complainant and he never gave the cheque/Ex.P2 to the complainant.

The complainant has no capacity to lend the amount Rs.2,50,000/- to him. The complainant filed this complaint with false allegations, without complying the mandatory provisions for issuing of statutory notice.

16.Basing on the rival contentions, the initial and legal burden lies upon the complainant to establish the transaction under Ex.P1/pronote and issuing of cheque /Ex.P2 and issuing of statutory notice/Ex.P4 by complying the mandatory ingredients.

At this stage it is better to reproduce what Sec.139 & 118

of NI Act speaks:

Sec. 139 – N.I. Act presumption in favour of holder

i) “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 for the discharge of any debt or other liability”.

ii) “A cheque has been presented to the bank within a period of six months from the date on which it is drawn are within the period of its validity, whichever is earlier”.

iii)“The cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is in sufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.” iv) “The payee are 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 15 days of the receipt of information by him from the bank regarding the return of cheque as unpaid”.

v) “The drawer of said 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 receipt of the said notice”.

vi) “As and when the complainant could prove the above referred ingredients, a presumption U/sec. 139 arises that holder of the cheque received it in discharge of debt or other liability and regarding passing of consideration U/Sec.118 A N.I. Act. States as under”.

vii)“It shall be presumed, unless the contrary is proved,that the holder of a cheque received the cheque of the nature referred to in section 138 N.I. Act for the discharge, in whole or in part, of any debt or other liability”.

“Sec.118 A N.I. Act states” as – every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.

17.In order to prove the legally enforceable debt, the complainant filed the chief examination affidavit by reiterating the facts mentioned in the complaint and examined as PW.1. The promissory note dt.10.01.2012/Ex.P1, cheque dt.10.04.2014/Ex.P2, cheque return memo/Ex.P3 dt.17.04.2014, office copy of legal notice/Ex.P4 dt.14.05.2014 and postal track report/Ex.P5 are marked through him.

18.During cross examination PW.1 testified that his annual income in the year 2012-2013 was merely 4 to 5 lakhs and he did not file the bank statement to show that he has capacity all balance in his bank account relating to the year 2012-2013. He further testified that there are corrections and overwritings in Ex.P1 pronote and the no explanation was written for the corrections on the over lead of Ex.P1 pronote. He further testified that a served acknowledgement received from the accused and the same was handover to his counsel.

19.PW.1 categorically stated that the accused borrowed

Rs.2,50,000/- on 10.01.2012 for his family expenses and executed

Ex.P1 pronote in the presence of attestors namely Sk. Mastan vali, Y.

Durga Rao and the scribe Ch.V. Ramana Murthy at his residence

Vijayawada. He admitted that there are corrections and over writings in the pronote/Ex.P1 and no explanation was written for the corrections, on the over leaf of Ex.P1 pronote. He further stated that he got issued legal notice through his counsel to the accused on 13.05.2014 and the accused received the said notice and acknowledged the same. But no such served acknowledgement was filed in the complaint. The postal track report is only filed with the complaint. He further testified that his annual income was 4 to 5 lakhs in the year 2012-2013 and he was not an incometax assessee in the said year. The learned counsel for the accused suggested that the complaint is not maintainable on the ground that the statutory notice was not served upon the accused and the complainant intentionally shown wrong address of the accused and no transaction took place between himself and the complainant at any point of time and the complainant took the promissory note and cheque from one Siva

Reddy and he misused the the pronote and cheque by got filed the present complaint only to harass him and that the complainant has no capacity to lend the amount covered under Ex.P1 pronote. The above suggestions were denied by him.

20.To support the case of the complainant, the complainant has examined one of the attestor namely Sk. Mastanvali, S/o.Khasim Saheb of Ex.P1 pronote as PW.2. He stated that the accused called him to his house at Bhavanipuram, Vijayawada. He noticed another person in the house of the accused namely Durgarao. They went to the house of the complainant at Brundavan Colony. One person filled up the particulars in the promissory note. Firstly the accused signed across the revenue stamp in the pronote. At the request of the accused he himself and

Durga Rao signed as attestors of Ex.P1 pronote. In their presence the complainant gave Rs.2,50,000/- to the accused. During the cross examination he testified that he has no relation with the complainant and he has no acquaintance with the complainant prior to the transaction covered under Ex.P1 pronote. He further testified that the complainant was introduced to him by the accused. He does not know where the accused was working by them. He knows that the accused was worked in Malaria Department.

21.The learned counsel for the accused suggested PW.2 that he has never seen the accused at any point of time and that he is being the relative of the complainant he came to the court to give evidence in his favour and he has no facial acquaintance with the accused and he himself and other attestor along with the complainant pressed Ex.P1

Pronote into service and filed the present complaint. The above suggestions were denied by him.

22.The evidence of PW.2 goes to show that the complainant was introduced to him by the accused on the date of the transaction covered under Ex.p1 pronote. The other witness was also introduced by the accused at his house on the date of the transaction covered under Ex.P1 pronote. Surprisingly, PW.2 speaks that though he has no relation with the complaint, at the request of the complainant he appeared before the court to give evidence. It goes to show that PW.2 has acquaintance with the complainant prior to the transaction covered under Ex.P1 pronote. The evidence of PW.2 further goes to show that he paid much attention to prove the transaction covered under Ex.P1 pronote than the complainant/PW.1. If really PW.2 has much acquaintance with the accused he would have known about the details of the accused much less the cadre in his department.

23.The learned counsel for the accused from the threshold contending that the complainant has no financial capacity to lend

Rs.2,50,000/- to the accused covered the transaction covered under

Ex.P1 pronote. P.W.1 in his cross examination admitted that he earned

Rs.4 to 5 lakhs in the year 2012-2013 and he did not file any document like bank statement to show that he has capacity or balance in his account in the year 2012-2013. The learned counsel for the complainant submitted that there is no need to the complainant to file statements of accounts to prove the capacity of the complainant while lending the amounts. The learned counsel for the accused relied

on the authority reported in 2019 (2) ALT Crl. 1 (SC),

Basalingappa Vs. Mudi Basappa wherein his lordship held

that when the financial capacity of complainant is being questioned, it was incumbent on the complaint to have explained his financial capacity. Mere saying by the complainant that his annual income was merely 4 to 5 lakhs in the year 2012-2013 is not sufficient. When the accused has taken a plea that the complainant has not capacity to lend the amount covered under Ex.P1 pronote, the burden lies on the complainant to disprove the contention of accused by filing the documentary evidence like bank statement and other material to show that he has the amount or bank balance by the time he lending the amount to the accused. But the complainant failed to file the same.

24.The other contention of the accused is that he did not receive the statutory legal notice. The address mentioned in Ex.P4 legal notice as door NO.76-53-113/3, 2nd floor, old B- Colony, Bhavanipuram,

Vijayawada. Whereas the article delivered at Kamakoti Nagar, S.O. on 15.05.2014. In the complaint as well as in the chief examination affidavit, it was mentioned that the accused received the legal notice on 15.05.2014. In the complaint, in the list of documents columns it was mentioned that served postal acknowledgement dt.15.05.2014 received by the accused was filed. Whereas the complainant filed postal track report along with complaint. The said postal track report was marked as Ex.P5. Ex.P5 goes to show it was delivered at

Kamakoti Nagar, S.O. on 15.05.2014. The contention of the accused is that for the purpose of issuing statutory legal notice/Ex.P4 his address was created in Vijayawada by the complainant and the said notice was intentionally sent to him, thus the complainant failed to fulfil the mandatory provision of issuing legal notice to his proper address. PW.1 in his cross examination admitted that the accused was produced

before the court on execution of NBW. It is an admitted fact that the

accused was arrested and produced before the court on 31.10.2018 on execution of NBW and he was enlarged on bail vide Crl.M.P.

No.1286/2018 in CC.387/2016. The address of the accused in the bail petition was shown as employee R/o. Dr. No.1-132/1, Sanivarapupet,

Eluru, West Godavari District. It was also mentioned in the said petition that he could not receive summons from the court and he has no knowledge about the case. From the evidence of PW.1 it is clear that the complainant has no knowledge about the service of legal notice on the accused.

25.When the accused denying about the service of registered notice against him the burden lies on the complainant to establish that

Ex.P4 legal notice was served against him by examining the postal authorities. But the complainant did not choose to the examine any of the postal authorities. What things prevented the complainant for non -examination of the authorities and the best reasons known to the complainant only.

26.In the above fatal circumstances, in absence of valid demand statutory notice and the service of notice on the accused, the cause of action could not arose to attract the commission of offence punishable

U/s. 138 N. I. Act. Further, the complainant failed to prove the transaction covered under Ex.P1 pronote with regard to passing of consideration and source of income. In the above said circumstances, the case of the accused is believable that Ex.P1 promissory note and

Ex.P2 cheque were issued in blank to another person in other transaction and the complainant pressed those instruments in service in his name and got filed the present complaint. Therefore, the court is of the opinion that the court has entertained a doubt with regard to transactions covered under Ex.P1 pronote and Ex.P2 cheque that the accused did not borrow amount from the complainant and issued Ex.P2 cheque in the name of the complainant.

27.Therefore, the complainant is failed to establish the transaction covered under Ex.P1 pronote and Ex.P2 cheque for the offence punishable U/sec.138 N.I. Act and the accused is entitled for acquittal.

Accordingly the point is answered.

28.In the result, the accused is found not guilty for the offence punishable U/Sec.138 of N.I. act and he is acquitted U./Sec.255(1)

Cr.p.C. The bail bonds of the accused shall be in force for a period of six months from the date of this judgment as contemplated

U/sec.437(a) Cr.P.C.

This Judgment directly typed on computer to my dictation by the stenographer Gr.III corrected on computer and pronounced by me in the open court this the 22nd day of May 2024.

V ADDL. CHIEF METROPOLITAN MAGISTRATE-

VIJAYAWADA.

Appendix of evidence Witnesses examined

For Complainant: For defence:

PW.1SK. Khajavali -- Nil -- PW.2Shaik Mastan Vali

Documents marked

For Complainant:

Ex.P110.01.2012Original Promissory note got executed by the accused in favour of the complainant at the time of lending of the amount. Ex.P210.04.2014Original Cheque issued by the accused in favour of the complainant for the part payment.

Ex.P317.04.2014Returned endorsement got issued by the accused Bank. Ex.P413.05.2014 Office copy of the Legal notice issued by the counsel

for the complainant to the accused about the

returned of the cheque. Ex.P5Postal acknowledgment card from the accused.

For defence: --Nil--

V ACMM, VJA

Calendar in CC.No.387/2016 on the file of V Addl.Chief Metropolitan Magistrate, Vijayawada. OffenceTaken on ApprehenRelease Commence-Close of Sentence file-sion of on Bailment of trialtrialor Orders accused 17.04.2014 04.12.2015 ----11.03.202425.03.2024 22.05.2024

Explanation for delay: This case was taken on file on 04.12.2015 U/s.138 of N.I. Act. On 04.11.2018 accused was present and copies of documents furnished. On 31.01.2019 accused was examined U/s.251 Cr.P.C. On 14.03.2019 PW.1 examined in chief and he was cross examined on 11.03.2024. On 18.03.2024 PW.2 examined in chief and he was cross examined on 25.03.2024. On 25.03.2024 complainant side evidence closed. On 01.04.2024 the accused was examined U/s.313 Cr.P.C. On 01.04.2024 no defence side evidence. On 02.05.2024 arguments heard. On 22.05.2024 Judgment pronounced. Hence, the delay.

Calendar Case No.387/2016 on the file of V Addl.Chief Metropolitan Magistrate, Vijayawada.

Shaik Khajavali, S/o. Mastan, Muslim, age 44,D. No.FF BI, Vandana Apartment, beside Sindhu Bhavan Brundavan Colony, Labbipet,

Vijayawada-10. ... Complainant.

Description of the accused:

Vemavarapu Prabhakara Rao, S/o. Umamaheswara Rao, Aged 53, D.No.76-53-113/3,Second Floor, Old B Colony, Bhavanipuram, Vijayawada, Krishna Distric.

Offence: Dishonour of Cheque for insufficient funds

Sec. Of Law : U/s.138 of N.I.Act.

Finding: Accused found not guilty.

Result : In the result, the accused is found not guilty for the offence punishable U/Sec.138 of N.I. act and he is acquitted U./Sec.255(1) Cr.p.C. The bail bonds of the accused shall be in force for a period of six months from the date of this judgment as contemplated U/sec.437(a) Cr.P.C.

V ADDL.CHIEF METROPOLITAN MAGISTRATE-

CUM-IV ADDL.SENIOR CIVIL JUDGE

VIJAYAWADA

Copy submitted to: The Hon’ble Metropolitan Sessions Judge, Vijayawada.IL

1

IN THE COURT OF THE IV ADDL. CIVIL JUDGE (SENIOR DIVISION) – CUM -

V ADDL. CHIEF JUDICIAL MAGISTRATE , VIJAYAWADA

PRESENT: SRI P. RAJARAM

IV ADDL. CIVIL JUDGE (SENIOR DIVISION) - CUM - V ADDL. CHIEF

JUDICIAL MAGISTRATE , VIJAYAWADA

Monday, this the 30th day of September, 2024

C.C.No.260/2016

Between:

TATA MOTORS Finance Limited., a Company incorporated under the provisions of the Companies Act, 1956 and having its registered office at Nanavati Mahalaya, 18, Homi Mody Street, Fort, Mumbai-400001 and inter alia having its office at Building A, 2nd floor, Lodha 1-think Techno Campus, off. Pokharan Road, Than (West)-400601 having its Territory Office, Tata Motor’s Finance Ltd., First Floor, Gayathri Complex, Benz Circle, Vijayawada-8, rep.by its Authorized Signatory Mr. Y.Bhanu Prakash, S/o.Veerbhadar Rao, Aged about 37 years, R/o.Vijayawada.

... Complainant.

And

Shaik Zameer, C/o.Moula Saheb, Muslim, R/o.D.No.11/1/198/40, Santhi Nagar, Kovur (M), Nellore-524137.

... Accused.

This case coming on 05.07.2024 for final hearing before me in the presence of Sri V. Lakshmi Kanth, Advocate for the complainant and of Sri M. Suresh Kumar Advocate for the accused, and having stood over for consideration till this day, and upon hearing both sides, this Court delivered the following:

JUDGMENT

1.The complainant herein filed complaint against the accused for the offence punishable under Section 138 of N.I.Act.

2.The case of the complainant in nutshell is that:

I) that the complainant is a Finance Institution having its Head Office at

Tata Motors Finance Limited, Nanavati Mahalaya, 18, Homi Mody Street, Fort,

Mumbai-400001 and inter alia having its office at Building A, 2nd floor, Lodha 1- think Techno Campus, off. Pokharan Road, Thane (West)-400601 having its

Territory Office, Tata Motor’s Finance Ltd., First Floor, Gayathri Complex, Benz

Circle, Vijayawada-8.

ii) the Complainant is a reputed financial institution and extends vehicle

Loans to its Customers. Mr.P. Srinivasa Rao approached the Complainant company for financial assistance and applied for Vehicle Loan. The Complainant

Company accepted to extend the financial assistance to Mr.P. Srinivasa Rao and accordingly disbursed the Loan amount of Rs.60,00,000/- after executing the 2 necessary and required Loan documents by the accused and Mr.P. Srinivasa

Rao vide bearing Loan Agreement No. 103409. The accused promised to repay the amount along with interest in equated monthly installments. The complainant opened an account in the name of the accused and an amount of

Rs.23,47,071.44/- is payable as on dated 25.08.2015. The complainant submits herewith attested true copies of the statement of account for kind perusal of the

Hon’ble Court.

iii) the accused issued a cheque for Rs.23,47,071.44/- bearing No.687845,

dated 25.08.2015 drawn on ING VYSYA Bank Nellore Branch, towards

partial/Full of the Loan account. The complainant presented the said cheque to their Banker ICICI Bank Ltd., M.G. Road, Vijayawada for collection on 25.08.2015 the complainant informed from their banker that the cheque issued by the accused was dishonoured as “Account Blocked”. The accused has issued the cheque deliberately with malafide intention of cheating and defrauding the complainant company. Hence, the complainant company got issued a Legal

Notice dt.22.09.2015 through Regd. Post demanding the accused for payment of the amount covered under the dishonored Cheque. But the accused was returned the notice with a false endorsement. The Complainant submits herewith office copy of the Legal Notice and postal return cover for the kind perusal of this

Hon’ble Court. Hence the complainant company is constrained to file this

complaint.

iv)The complainant company submits that the accused issued the above said cheque to the complainant without having sufficient funds in her account in the bank, knowing full well the consequences thereof and thus the accused not only cheated the complainant company, but also committed the offence Under

Section 138 of N.I. Act as amended and as such the accused is liable to be punished to the maximum and inspite of it, the liability of the accused to pay the above said cheque amount still continues along with the liability of the payment of to the complainant company.

3.The complainant was examined on sworn statement and the offence was taken on cognizance against the accused u/s.138 of Negotiable Instruments Act and issued summons to the accused. The accused appeared and copies of documents were furnished to the accused on which the complainant relied in this case u/s.204(3) Cr.P.C.

3

4.Cognizance was taken for the offence under Section 138 of N.I.Act. On appearance of the accused, copies of documents supplied as contemplated

U/s.207 Cr.P.C.

5.When the accused examined U/s.251 Cr.P.C. for the offence U/s.138 of

N.I.Act, read over the substance of accusation and explained to him in Telugu, he pleaded not guilty for the said offence and claimed to be tried.

6. During trial, the complainant was examined as PW1 and Exs.P1 to P7 were marked. CW.1 was examined and Exs.X1 and X2 were marked. Written arguments filed on behalf of the accused.

7.After closure of the complainant evidence, the accused was examined under Section 313 Cr.P.C., by explaining the incriminating circumstances appearing against him in the evidence of the complainant. But he denied the same stating that he did not commit any offence.

8.Heard both sides.

9. Upon considering the averments of the complaint, documents and oral evidence let in by the complainant and accused. Submissions made by the learned counsels on either side, the point for determination is “whether the

complainant established the guilt of the accused for the offence punishable

u/s.138 of Negotiable Instruments Act beyond the reasonable doubt?”

10.Heard the arguments of the learned Counsel for the complainant and learned Counsel for the accused.

11.Now the point for determination is: -

Whether the complainant proved its case against the accused for the

offence U/s.138 of N.I.Act?

12.To prove that the accused committed the offence u/s.138 of N.I.Act, at first the complainant has to prove:

a) that there was legally existing enforceable debt between the complainant and the accused;

b) in order to discharge the debt, the accused issued cheque in his favour;

c) that the cheque issued by the accused was dishonoured;

d) that even after dishonour of said cheque and issuing legal notice by the complainant, the accused failed to pay the cheque amount.

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POINT:-

13.The contention of the complainant is that the complainant is a finance company limited having its head office at Tata Motors Finance

Limited Mumbai having its territory office at Gayathri Complex, Benz

Circle, Vijayawada represented by a signatory namely A.S. Ganesh Babu.

One P. Srinivasa Rao approached the complainant company and applied loan to purchase a used vehicle ( lorry) i.e., Ashok ley land 2516 taurus.

The complainant company accepted the proposal of P. Srinivasa Rao and agreed to extend financial assistance. Accordingly the complainant company has disbursed the loan amount of Rs.6,00,000/- to P. Srinivasa

Rao after executing necessary documents. The accused herein stood as guarantor to the loan availed by P. Srinivasa Rao. The said P. Srinivasa

Rao promised to repay the amount along with interest in 35 monthly installments at the rate of Rs.23,100/-p.m.. The borrower/P. Srinivasarao committed default in repayment of monthly installment as agreed and he was absconded. The complainant company approached the accused herein and demanded the accused for repayment of the loan amount as the accused stood as gurantor to the loan availed by P. Srinivasa Rao.

Despite several demands made by the complainant company the accused issued a cheque/Ex.P2 for Rs.23,47,071/- dated 25.08.2015 drawn on ING

Vysya Bank, Nellore Branch towards full and final settle ment of the loan account and it was dishonoured as account blocked. The same was intimated to the accused by issuing a statutory legal notice and demanded to pay the amount under Ex.P5 legal notice. The said notice was returned with false endorsement and failed to pay the debt covered under Ex.P2 cheque.

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14.On the other hand, the accused is contended that he did not open the account number364010097830, ING Vysya Bank Limited Nellore

Branch, Nellore at any point of time. The signatures on Ex.P2 cheque does not belong to him. Moreover, he did not issue any cheque much less under Ex.P2 cheque at any point of time to the complainant company to discharge the legally enforceable debt for the debt of P. Srinivasa Rao.

With false allegations the present complaint is filed against him.

15.Basing on the above contentions, the initial and legal burden lies upon the complainant the establish transaction covered under Ex.P2 cheque and the issuing of statutory legal notice under Ex.P4 by complying the mandatory ingredients.

16.To prove the case of the complainant one A.S. Ganesh Babu who is the authorized signatory of complainant company filed the chief examination affidavit by reiterating the facts mentioned in the complaint.

Exs.P1 to P7 were marked through him. In his cross examination he testified that one P. Srinivasa Rao approached the company for obtaining loan to purchase a vehicle. He entered into agreement by agreeing the terms and conditions the accused stood as guarantor for the loan account of P. Srinivasa Rao. He admitted that he cannot say the chasis number and Engine Number of the said lorry. P. Srinivasa Rao did not hand over the vehicle to the company from 2008 to 2015. The vehicle is not traced out. A police complaint was given against P. Srinivasa Rao at Nellore

Police Station.

6

17.He further admitted that the complainant company initiated arbitration proceedings against P. Srinivasa rao and the accused.

Arbitration award was also passed. The accused issued Ex.P2 cheque for

Rs.23,47,071/- on 25.08.2015. He doesn’t know the account number 364010097830 to whom it belongs. He denied the suggestion put to him that the cheque covered under Ex.P2 was given by P. Srinivasa Rao as security and he filled up the blanks and presented the same for collection and the present case is filed. He also denied the suggestion put to him that Ex.P6/hypothecation cum guarantee agreement is a fabricated document and his signature and the signature of the accused was not obtained in the presence of witness. He denied a suggestion put to him that P. Srinivasa Rao and the accused have received notices from the

District Legal Services Authority Nellore on 14.09.2019. He also denied a suggestion put to him that P. Srinivasa Rao did not purchase any vehicle from the company and that the complainant, P. Srinivasa Rao and other members of the company misused the amount said to have been sanctioned i.e., Rs.6,00,000/- towards loan and to get wrongful gain from the accused the present case is being foisted.

18.At the stage, it is better to go through the terms and conditions of hypothecation cum guarantee agreement/Ex.P6 dt.23.07.2008. The signatures of one P. B. Srinivasarao as borrower and S.Jameer as guarantor were appointed on Ex.P6 loan – cum – Hypothecation agreement. Annexure-I of Ex.P6 goes to show the details of the borrower, guarantor, details of the purchased asset, details of loan, repayment schedule and date and place of the agreement. As per Ex.P6 the agreement was executed on 23.07.2008 for Rs.6,00,000/- the agreeing to 7 repay the loan amount in 35 monthly installments for Rs.23,400/- for installment.

19. Ex.P1 is the statement of accounts stands in the name of the borrower/P. Srinivasa Rao goes to show that on 27.10.2008 an amount of

Rs.23,400/- was paid out of 35 installments. He paid only one installment.

Except the oral testimony of PW.1 no document is placed before the court to show that the complainant company has issued notice by the company or through its counsel demanding P. Srinivasa Rao for committing default of paying monthly installments. The evidence of PW.1 goes to show that the vehicle purchased by P. Srinivasa Rao in the year 2008 was not traced till filing of the complaint. Except the oral testimony of PW.1 no peace of paper is filed before the court to show that the complainant had taken steps to trace out the vehicle by presenting a complaint before police station at Nellore. If the vehicle is not traced from the custody of the borrower/P. Srinivasa Rao no company is left the borrower idle, without initiating or taken steps for recovery of the vehicle from him..

20.When the principal borrower failed to repay the amount due i.e., EMI to the complainant company, the complainant company could have been issued legal notice to the principal borrower and to the guarantor. No peace of paper is placed before the court to show that the complainant company demanded the borrower as well as the guarantor to repay the

EMI due fell to the company. PW1 in his cross examination testified that the complainant company already filed arbitration O.P. against the borrower P. Srinivasa Rao and the accused Shaik Zameer and get the award against them. Except the oral testimony no peace of paper is 8 placed before the court to show that they obtained arbitration award against the borrower and the accused. If really, the complainant company got an award against the borrower and accused what things prevented the complainant to file the said award for the best reasons known to the complainant.

21.According to PW.1, the borrower/P. Srinivasa Rao committed default in repayment of EMI of the loan agreement and he was absconded. Later the company approached the accused and demanded the accused for repayment of the loan amount of P. Srinivasa Rao In spite of repeated demands the accused issued a cheque/Ex.P2 on 25.08.2015 towards full and final settlement of the loan account of P. Srinivasa Rao. When the borrower was absconded the company doing finance business would not keep quiet without initiating action for tracing out the borrower. If really the borrower/P. Srinivasa Rao absconded subsequent to the date of execution of Ex.P6/loan cum hypothecation guarantee agreement how the complainant company initiated arbitration proceedings against P. Srinivasa

Rao and the accused and how the company got the award. Thus PW.1 failed to answer the question.

22.According to PW.1 the guarantor/accused issued a cheque/Ex.P2 on 25.08.2015 drawn on ING Vysya Bank, Nellore Branch towards full and final settlement of the loan of P. Srinivasa Rao. The version of the accused is that he did not open any account in ING Vysya Bank, Nellore

Branch at any point of time and that the alleged cheque/Ex.P2 and the signature in it does not belong to him.

9

23.To substantiate the contention of the accused he summoned the branch manager. The branch Manager B. Satish was examined as court witness /CW.1. He deposed that the account number 364010097830 ING

Vysya Bank Limited Nellore Branch stands in the name of account holder

M. Raja. The said account was open on 15.10.2007 and it was closed on 18.05.2012. The name of the account holder is M. Raja S/o. Mahalingam,

Gandhi Nagar, Guduru Nellore District. A copy of customer information form and driving licence and statement of account for the period 20.10.2007 to 25.02.2021 was produced and marked as Ex.X1 and X2.

The account number 364010097830 stands in the name of M. Raja. It was opened on 20.10.2007 the said account was closed on 18.05.2012 for non maintenance of minimum required balance.

24.Now coming to Ex.P2 cheque, it goes to show that SB account number 364010097830 was mentioned in the said cheque containing the signature of the accused. Ex.X1 and X2 goes to show that the account was opened by one M. Raja. When the said account stands in the name of the said Raja, the cheque book would have given to the said Raja by the

ING Vysya Bank. If such is the case, how the accused signed on Ex.P2 and handed over the same to the complainant company towards discharging the debt for full and final settlement of the loan taken by P.

Srinivasa Rao? When M. Raja is a account holder of the account 364010097830 and closed the said account on 18.05.2012, how the complainant company obtained Ex.P2 cheque from the accused on 25.08.2015. When the accused denies about the account and his signature on Ex.P2 cheque, the burden heavily lies the complainant company to disprove the contention of the accused by placing positive 10 evidence before the court. No steps have been taken by the complainant to disprove the case of the accused. When the accused is not the account holder of Ex.P2 cheque the question of issuing Ex.P2 cheque towards discharging the legally enforceable debt of P. Srinivasa Rao doesn’t arise.

When the accused disputed his signature on Ex.P2 cheque the initial burden lies on the complainant to prove that the signature on Ex.P2 cheque belongs to the accused by sending Ex.P2 cheque along with admitted signatures of the accused to forensic laboratory for comparison of signatures. The complainant company did not take steps to that effect.

25.When the account stands in the name of one M. Raja how the signature of the accused was present in Ex.P2 cheque is a million dollar question. It indicates that Ex.P2 cheque was not given by the accused to the complainant at any point of time towards discharging the loan amount of P. Srinivasa Rao. No doubt the obligation of the guarantor/accused is

Co-extensive with the principle borrower of a debt alike hypothecation loan cum guarantee agreement. But no suitable steps have to be taken by the complainant company to discharge the debt of the borrower from the guarantor. When the accused is not the account holder and the cheque book is not given to him, how Ex.P2 cheque was given to the company towards discharging the legal enforceable debt is the question to be answered by the complainant. It goes to show that the complainant company either to forged the signature of accused in Ex.P2 cheque by fixing the accused for the liability of the debt of the P. Srinivasa Rao.

26.In the above said circumstances the case of the accused is believable that he never issued Ex.P2 cheque to the complainant company 11 for the debt of P. Srinivasa Rao. Therefore the complainant is utterly failed to establish the transaction beyond all reasonable doubt for the offence punishable U/Sec.138 N.I. Act and the accused is entitle for acquittal. Accordingly the point is answered.

27.In the result the accused is found not guilty for the offence punishable U/Sec. 138 N.I. Act. He is acquitted U/Sec.255 (1) Cr.P.C.

The bail bonds of the accused shall be in force for a period of six months.

This Judgment directly typed on computer to my dictation by the stenographer Gr.III corrected on computer and pronounced by me in the open court this the 30th day of September, 2024.

Sd/-

IV ADDL. CIVIL JUDGE (SENIOR DIVISION) – CUM -

V ADDL. CHIEF JUDICIAL MAGISTRATE ,

VIJAYAWADA

Appendix of evidence Witnesses examined

For Complainant: For defence:

PW.1A. Siva Ganesh Babu

Documents marked

For Complainant:

Ex.P103.11.2015True copy of the statement of account in the name of accused.

Ex.P2 25.08.2015 Cheque for Rs.23,47,071.44/- bearing No.687845 drawn in ING VYSYA Bank, Nellore Branch, issued in favour of the complainant by the accused.

Ex.P301.09.2015Return memo issued by the complainant bankers.

Ex.P422.09.2015Office copy of legal notice

Ex.P5 30.09.2015Return cover

Ex.P623.07.2008Attested copy of Loan cum hypothecation cum guarantee agreement.

Ex.P719.07.2016Notarized copy of GPA Holder.

For defence : -- Nil--

CW-1 : B. Satish

Ex.X1 : Account opening form along with Driving license of M. Raja.

12

Ex.X2 : Statement of account of M. Raja dt,26.02.2021.

V ACJM, VJA

13

Calendar in CC.No.260/2016 on the file of IV Addl. Civil Judge (Senior Division) - Cum - V Addl. Chief Judicial Magistrate, Vijayawada.

OffenceTaken on ApprehenRelease Commence-Close of Sentence file-sion of on Bailment of trialtrialor Orders accused 01.09.2015 02.02.2016 ----26.07.202221.03.2024 30.09.2024

Explanation for delay: This case was taken on file on 02.02.2016 U/s.138 of N.I.Act. On 19.04.2016 accused was present and copies of documents furnished. On 07.06.2019 accused was examined U/s.251 Cr.P.C. On 26.07.2022. PW.1 examined in chief and he was cross examined on 23.08.2022. On 29.05.2023 complainant side evidence closed and on 21.03.2024 defence evidence closed. The accused was examined U/s.313 Cr.P.C. On 14.07.2023. On 20.06.2024 arguments heard. On 30.09.2024 Judgment pronounced. Hence, the delay.

Calendar Case No.260/2016 on the file of V Addl.Chief Metropolitan Magistrate, Vijayawada.

TATA MOTORS Finance Limited., a Company incorporated under the provisions of the Companies Act, 1956 and having its registered office at Nanavati Mahalaya, 18, Homi Mody Street, Fort, Mumbai-400001 and inter alia having its office at Building A, 2nd floor, Lodha 1-think Techno Campus, off. Pokharan Road, Than (West)-400601 having its Territory Office, Tata Motor’s Finance Ltd., First Floor, Gayathri Complex, Benz Circle, Vijayawada-8, rep.by its Authorized Signatory Mr. Y.Bhanu Prakash, S/o.Veerbhadar Rao, Aged about 37 years,

R/o.Vijayawada. ... Complainant.

Description of the accused:

Shaik Zameer, C/o.Moula Saheb, Muslim, R/o.D.No.11/1/198/40, Santhi Nagar, Kovur (M), Nellore-524137.

Offence: Dishonour of Cheque for insufficient funds

Sec. Of Law : U/s.138 of N.I.Act.

Finding: Accused found not guilty.

Result : In the result, the accused is found not guilty for the offence punishable U/Sec.138 of N.I. Act and he is acquitted U/Sec.255(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months.

SSS S IV ADDL. CIVIL JUDGE (SENIOR DIVISION) – CUM -

V ADDL. CHIEF JUDICIAL MAGISTRATE ,

VIJAYAWADA

Copy submitted to: The Hon’ble Metropolitan Sessions Judge, Vijayawada.IL 14 15

VIJAYAWADA

IN THE COURT OF THE IV ADDL. SENIOR CIVIL JUDGE – CUM – V

ADDL.CHIEF METROPOLITAN MAGISTRATE At VIJAYAWADA

PRESENT: SRI P. RAJARAM

IV ADDL. SENIOR CIVIL JUDGE, VIJAYAWADA

V ADDL. CHIEF METROPOLITAN MAGISTRATE

Thursday, this the 23rd day of May, 2024

C.C.No.46/2023

Between:

Kommuri Ramana, S/o.Venkanna, Hindu, aged about 43 years, Properties/Business, R/o.D.No.42-2/1-159, 1stLine, Devi Nagar, Vijayawada.

... Complainant.

And

Kotharu Srinivasa Rao, S/o.Gangadhara Rao, Hindu, aged about 45 years, Business/Appraiser in the Federal Bank Ltd., Prakasam Road, Vijayawada, R/o.D.No.42-2/1-122, 1st Line, 5th Cross Road, Devi Nagar, Vijayawada-520 003.

... Accused.

This case coming on 23.05.2024 for final hearing before me in the presence of Sri Goli Narasimha Rao, Goli Rama Devi Advocates for the complainant and of Sri Mohammad Aarif Advocate for the accused, and having stood over for consideration till this day, and upon hearing both sides, this Court delivered the following:

JUDGMENT

1.The complainant herein filed complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments

Act.

2.The case of the complainant in nutshell is that:

I)The accused borrowed an amount of Rs.12,00,000/- (Rupees

Twelve Lakh only) from the complainant on 12.08.2018 for his business purpose, agreeing to repay the said amount together with interest @ 24% per annum either to the complainant or his order on demand and executed a promissory note to that effect at Devi Nagar, Vijayawada, on receiving the consideration amount.

ii) In spite of several requests and demands made by and on behalf of the complainant, the accused did not choose to discharge the debt due under the aforesaid promissory note and postponing the same on one pretext or the other. But at last, the accused issued a cheque bearing No.084882, dated 30.12.2020 for Rs.15,00,000/- (Rupees

Fifteen Lakh only), in favour of the complainant, drawn on the Federal

Bank Ltd., Vijayawada Branch, towards part payment of the above said debt, representing that the cheque will be honoured on its presentation.

iii)The complainant presented the above said cheque for encashment through his banker Union Bank of India, Enikepadu

Branch, Vijayawada on 30.12.2020 and the said cheque was bounced by the accused banker and was returned to the complainant along with memo dated 01.01.2021 with an endorsement “Funds Insufficient”.

iv)Thereupon, the complainant got issued a legal notice to the accused by registered post with acknowledgment due and also under speed post on 06.01.2021 informing him about the dishonour of the cheque. The said notice was returned with endorsement “Intimation” and “not claimed” dated 15.01.2021. But, the accused did not comply with the demand. As such, the accused is liable to be prosecuted for the offence punishable under section 138 of the Negotiable

Instruments Act. Hence, the complaint.

3.Cognizance was taken for the offence under Section 138 of

N.I.Act. On appearance of the accused, copies of documents supplied as contemplated U/s.207 Cr.P.C.

4.When the accused examined U/s.251 Cr.P.C. for the offence

U/s.138 of N.I.Act, read over the substance of accusation and explained to him in Telugu, he pleaded not guilty for the said offence and claimed to be tried.

5.The complainant himself examined as PW.1 and his witness as

PW.2 and five documents were marked as Exs.P1 to P5.

6.After closure of the complainant evidence, the accused was examined under Section 313 Cr.P.C., by explaining the incriminating circumstances appearing against him in the evidence of the complainant. But he denied the same stating that he did not commit any offence.

7.The accused reported no defence evidence and no documents were marked.

8.Heard the arguments of the learned Counsel for the complainant and learned Counsel for the accused.

9.Now the point for determination is: -

Whether the complainant proved its case against the

accused for the offence U/s.138 of N.I.Act?

POINT:-

10.To prove that the accused committed the offence u/s.138 of

N.I.Act, at first the complainant has to prove:

a) that there was legally existing enforceable debt between the complainant and the accused;

b) that in order to discharge the debt, the accused issued cheque in his favour;

c) that the cheque issued by the accused was dishonoured;

d) the even after dishonour of said cheque and issuing legal notice by the complainant, the accused failed to pay the cheque amount.

Sec. 139 – N.I. Act preseumption in favour of holder

i) “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 for the discharge of any debt or other liability”.

ii) “A cheque has been presented to the bank within a period of six months from the date on which it is drawn are within the period of its validity, whichever is earlier”.

iii)“The cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is in sufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.” iv) “The payee are 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 15 days of the receipt of information by him from the bank regarding the return of cheque as unpaid”.

v) “The drawer of said 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 receipt of the said notice”.

vi) “As and when the complainant could prove the above referred ingredients, a presumption U/sec. 139 arises that holder of the cheque received it in discharge of debt or other liability and regarding passing of consideration U/Sec.118 A N.I. Act. States as under”.

vii)“It shall be presumed, unless the contrary will proved,that the holder of a cheque received the cheque of the nature referred to in section 138 N.I. Act for the discharge, in whole or in part, of any debt or other liability”.

Sec.118A N.I. Act states as – every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.

11.The learned counsel for the complainant submitted that the accused borrowed Rs.12,00,000/- on 12.08.2018 from the complainant and executed a promissory note/Ex.P1 at Vijayawada. In spite of several demands for repayment of the legally enforceable debt the accused issued Ex.P2 cheque on 30.12.2020 for Rs.15,00,000/- towards part payment. The said cheque was presented for collection and the same was returned with an endorsement funds insufficient dt.01.01.2021, then the complainant issued legal notice on 06.01.2021 through his counsel informing him about the dishonour of the cheque and demanding the accused for the payment covered by the cheque/Ex.P2 from the date of receipt of legal notice. The said notice was returned with an endorsement intimation and not claimed dt.15.01.2021. But the accused did not comply with the demand.

Then the complainant constrained to file the present complaint against the accused. The complainant himself examined as PW.1 and also one of the attestor of Ex.P1 pronote was examined as PW.2. Exs. P1 to P5 were marked through PW.1. The evidence of complainant/PW.1 and

PW.2 coupled with the documents i.e., Exs.P1 to P5 clinchingly proves the case of the complainant and prays to punish the accused.

12.On the other hand the learned counsel for the accused submitted that the accused has no necessity to borrow the amount from the complainant and the complainant has no capacity to lend the amount covered under Ex.P1 pronote and the accused did not give any cheque to the complainant at any point of time. The accused did not receive the statutory legal notice/Ex.P4. There is no legally enforceable debt in existence between the complainant and accused and the complainant failed to discharge the legal burden lies on him and prays to acquit the accused.

13.It is the case of the complainant that the accused borrowed a sum of Rs.12,00,000/- on 12.08.2018 and executed promissory note/P1 in his favour and on several demands the accused failed to repay the said debt. Finally the accused issued a cheque/Ex.P2 on 30.12.2020 for Rs.15,00,000/- towards part payment. When the said cheque was presented for collection it was dishonoured for funds insufficient. The same was intimated to the accused by issuing a statutory legal notice/Ex.P4 demanding him to repay the amount under the cheque/Ex.P2. The said notice was returned unserved with an endorsement intimation and the accused failed to repay the debt hence he constrained to file the present case against the accused.

14.On the other hand, the version of the accused is that the complainant has no capacity to lend the amount covered under Ex.P1 pronote. The complainant himself fill the blanks in Ex.P2 cheque conveniently for the purpose of this case. The hand writing in Ex.P2 cheque is different the complainant did not file a peace of evidence i.e., bank statement and other document to show that he has capacity to lend the amount covered under Ex.P1 pronote. The complainant filed this complaint with false allegations and without complying the mandatory provisions for issuing of statutory notice.

15.Basing on the rival contentions, the intial and legal burden lies upon the complainant to establish the transaction covered under Ex.P1 pronote and issuing of cheque/Ex.P2 and issuing of statutory notice/Ex.P4 by complying the mandatory ingredients.

16.In order to prove the legally enforceable debt, the complainant filed the chief examination affidavit by reiterating the facts mentioned in the complainant and examined as PW.1. The promissory note (certified copy/Ex.P1) dt.12.08.2018, cheque/Ex.P2 dt.30.12.2020, cheque return memo/Ex.p3 dt.01.01.2021, Office copy of legal notice/Ex.P4 dt.06.01.2021 and unserved return notices (two in number)/Ex.P5 dt.15.01.2021 were marked through him.

17.During cross examination PW.1 testified that he is doing fruit business in a shop at Prabhas College. No door number was allotted to the shop. No tax was levied for APGST and CST for his business. He further testified that except Ex.P1 pronote there is no other document to show that he lent Rs.12,00,000/- to the accused. He is an income tax assessee. He doesn’t know whether he has shown Rs. 12,00,000/- he has shown the debt of Rs. 12,00,000/- in the income tax returns or not. He further testified that the attestors and scribe of Ex.P1 pronote belongs to accused. In earlier occasion the accused resided near his house. He doesn’t know where the accused is residing now.

18.The learned counsel for the accused suggested that the writings on the cheque/Ex.P2 do not belong to the accused and the accused handed over the cheque book including the leaf/Ex.P2 cheque to the bank in the year 2015 itself and the attestors, scribe of Ex.P1 promissory note belongs to the accused and one Mangamma who is the wife of the complainant run the chit business in which the wife of the accused joined as a subscriber, when she committed default of the chit amount, Mangamma obtained cheques from the accused towards security for the debt of the wife of the accused. The above suggestions were denied by him.

19.To support the case of the complainant the complainant has examined one of the attestor namely Lankapalli Srinivasa Rao of Ex.P1 pronote as PW.2. He stated that the accused borrowed Rs.12,00,000/- on 12.08.2018 for his business purpose and executed Ex.P1 pronote.

The accused received consideration amount in his presence and

Pinnamaneni Prasad Babu and other attestor and scribe Lanka Bhadra

Raju. Whereas in his cross examination he testified that the complainant Ramana is doing fruit business at Prabhas college. He is also a fruit vendor at Prabhas College. He has acquaintance with the complainant. He doesn’t know the particulars of this scribe of pronote.

He does not remember the day in which the transaction took place under Ex.P1 pronote. He does not know the residence of executant/accused of Ex.P1 pronote the distance between his house and the house of the complainant is nearly 3 to 4 kilometers. He doesn’t know the name of the other attestor of Ex.P1 pronote. The learned counsel for the accused suggested that he does not know anything about the facts of the case and no transaction took place in his presence at any point of time and the same was denied.

20.The evidence of PW.1 goes to show that the accused borrowed

Rs.12,00,000/- and executed Ex.P1 pronote in his favour on 12.08.2018. According to PW.2 the accused borrowed Rs.12,00,000/- on 12.08.2018 and executed pronote in favour of the complainant. The consideration was passed to the accused in the presence of Prasad

Babu/ attestor, scribe/ Lanka Bhadra Raju and himself. According to

PW.2 he himself and the complainant/PW.1 doing fruit business at

Prabhas college in the same place. That itself goes to show that PW.2 has much acquaintance with the complainant/PW.1 . Contrary to that

PW.1 in his cross examination testified that PW.2 and the other attestor and the scribe of Ex.P1 pronote belongs to the accused.

21.The learned counsel for the accused submitted that the wife of the complainant obtained a blank signed cheque from the accused for the debt of his wife. The complainant conveniently filled up the blanks in Ex.P2 cheque and filed the present complaint and it cannot be considered as an instrument and it does not attract one of the ingredients contemplated U/sec.138 of N.I. Act.

22.On the other hand, the learned counsel for the complainant submitted that it is not mandatory to fill up the blanks of the cheque by the payee of the cheque and further submitted that even if a cheque issued as security pursuant to a financial transaction it cannot be considered as a worthless peace of paper and every circumstance.

Hence it is appropriate to go through the recitals of Ex.P2 cheque.

Admittedly, it appears that this signature on the cheque/Ex.P2 and the blanks filled up (writings) by using two different inks.

23.The learned counsel for the accused argued that the complainant failed to produce documentary evidence like statement of bank account. When the accused questioned the complaint about his financial capacity. It is upon the complaint to be explained, about his financial capacity. Except the oral testimony of PW.1/Complainant there is no other documentary evidence placed to show that the complainant has capacity to lent the amount covered under Ex.P1 pronote.

24.According to the complainant/PW.1, accused has borrowed

Rs.12,00,000/- from him and executed Ex.P1 pronote in his favour on 12.08.2018. When the accused denied about passing of consideration from the complainant covered under Ex.P1 pronote, it is for the complainant to prove about passing consideration to accused. The accused raised a probable defence about the financial capacity of the complainant, the burden shifts to the complainant to prove that he has financial capacity. The accused need not entered into witness box to prove his case. The accused has a right to maintain silence till the contrary is proved. The cases like this nature, the burden heavily lies on the complainant to prove the case against the accused beyond all reasonable doubt. When the onus having shifted to the complainant, he will be obliged to prove the existence of debt liability as a matter of fact and his failure to prove would result in dismissal of his case.

25.When the accused questioned the capacity of the complainant to lent the amount covered under Ex.P1 pronote the onus is on the complainant to produce the statement of the bank account or other documentary evidence to prove that he has certain amount in his custody on the date of lending the amount. PW.1 in his cross examination admitted that he is an income tax assessee and the amount lent to the accused does not reflect in the income tax returns filed by him. Except his oral testimony, no documentary evidence such as statement of accounts from the bank did not produce before the court. The failure of production of statement of accounts from the bank by the complainant creates a doubt in the mind of the court about the financial capacity of the complainant towards passing consideration to the accused covered under Ex.P1 pronote. According to PW.1, the attestors and scribe of Ex.P1 pronote or the men of the accused. Whereas PW.2 states that he himself and pW.1 are doing business in the same place at Prabhas College Vijayawada. If really

PW2 is the henchmen of accused, now PW2 say that he is doing fruit business at the place of the complainant/PW.1. If really accused borrowed amount and executed Ex.P1/pronote in the presence of complainant, PW2, other attestor and scribe how he could say that he does not know the name of the scribe and how he could say that he does not remember the day on which the transaction took place.

Hence, it creates a doubt in the mind of the court about the presence of PW.2 at the time of execution of pronote/Ex.P1.

26.Thus it can be safely said that the complainant failed to discharge the burden lies on him about to prove his financial capacity covered under Ex.P1 pronote . In the above said circumstances the evidence of PW.1 and 2 is discarded and the case of the accused is believable that Ex.P1 promissory note and Ex.P2 cheque were pressed into service in the name of the complainant and filed the present case.

The complainant has failed to prove the source of income of complainant and to transaction covered under Ex.P1 pronote with regard to passing of consideration. Therefore, the court has entertained a doubt with regard to transactions covered under Ex.P1 pronote and Ex.P2 cheque.

27.Therefore, the complainant is failed to establish the transaction covered under Ex.P1 pronote and Ex.P2 cheque beyond all reasonable doubt for the offence punishable under Section 138 of NI. Act. The accused is entitled for acquittal. Accordingly the point is answered.

28. In the result, the accused is found not guilty for the offence punishable U/Sec. 138 N.I. Act and he is acquitted under section 255(1)

Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from the date of this judgment as contemplated U/Sec.437

(a) Cr.P.C.

This Judgment directly typed on computer to my dictation by the stenographer Gr.III corrected on computer and pronounced by me in the open court this the 23rd day of May 2024.

V ADDL. CHIEF METROPOLITAN MAGISTRATE-

VIJAYAWADA.

Appendix of evidence

Witnesses examined

For Complainant: For defence:

PW.1Kommuri Ramana -- Nil -- PW.2L. Srinivasa Rao

Documents marked

For Complainant:

Ex.P112.08.2018Certified copy of Promissory note executed by the accused in favour of complainant for Rs.12,00,000/- on 12.08.2018 (Marked Subject to objection). Ex.P230.12.2020Cheque bearing No.084882 of Federal Bank, Vijayawada Branch issued by the accused for Rs.15,00,000/- in favour of complainant dated 30.12.2020. Ex.P301.01.2021Cheque return memo.

Ex.P406.01.2021Office copy of the Legal notice issued by the complainant to the accused. Ex.P515.01.2021Unserved return notices with endorsement unclaimed (2 in no.s)

For defence:

--Nil--

V ACMM, VJA

Calendar in CC.No.46/2023 on the file of V Addl.Chief Metropolitan Magistrate, Vijayawada.

OffenceTaken on ApprehenRelease Commence-Close of Sentence file-sion of on Bailment of trialtrialor Orders accused 01.01.2021 16.04.2021 ----19.07.202329.08.2023 23.05.2024

Explanation for delay: This case was taken on file on 16.04.2021 U/s.138 of N.I.Act. On 17.12.2021 accused was present and copies of documents furnished. On 19.04.2023 accused was examined U/s.251 Cr.P.C. On 19.07.2023 PW.1 examined in chief and he was cross examined on 14.08.2023. On 29.08.2023 PW.2 examined in chief and on the same day he was cross examined. On 21.09.2023 complainant side evidence closed. On 26.09.2023 the accused was examined U/s.313 Cr.P.C. On 30.10.2023 no defence side evidence. On 01.12.2023 arguments heard. On 23.05.2024 Judgment pronounced. Hence, the delay.

Calendar Case No.46/2023 on the file of V Addl.Chief Metropolitan Magistrate, Vijayawada.

Kommuri Ramana, S/o.Venkanna, Hindu, aged about 43 years, Properties/Business, R/o.D. No.42-2/1-159, 1st Line, Devi Nagar,

Vijayawada. ... Complainant.

Description of the accused:

Kotharu Srinivasa Rao, S/o.Gangadhara Rao, Hindu, aged about 45 years, Business/Appraiser in the Federal Bank Ltd., Prakasam Road, Vijayawada, R/o.D.No.42-2/1-122, 1st Line, 5th Cross Road, Devi Nagar, Vijayawada-520 003.

Offence: Dishonour of Cheque for insufficient funds

Sec. Of Law : U/s.138 of N.I.Act.

Finding: Accused found not guilty.

Result : In the result, the accused is found not guilty for the offence punishable U/Sec. 138 N.I. Act and he is acquitted under section 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from the date of this judgment as contemplated U/Sec.437 (a) Cr.P.C.

V ADDL.CHIEF METROPOLITAN MAGISTRATE-

CUM-IV ADDL.SENIOR CIVIL JUDGE

VIJAYAWADA

Copy submitted to: The Hon’ble Metropolitan Sessions Judge, Vijayawada.IL