1 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
IN THE COURT OF THE SPECIAL MAGISTRATE AT BHEEMUNIPATNAM
Present : Smt P. Vijaya, XIV Addl. Metropolitan Magistrate, FAC: Special Magistrate, Bheemunipatnam. Saturday, this the 22nd day of February, 2020.
C.C.No. 39/2018
(OLD CC.81/2017)
Between:
Chodey Janaki Ramayya Chowdary, S/o. Veeraju Chowdary, Hindu, aged 45 years, Agriculture, R/o. Flat No.202, Trendz Flora, Yendada Road, Rushikonda.
....Complainant.
And:
Smt. Gantela Sumana, Ex.MLA, Hindu, aged about 57 years, Residing at D.No.39- 27-44/7, Vuda colony, Madhavadhara, Visakhapatnam-530018.
.... Accused.
This case coming on 13-02-2020 for fnal hearing before me in the presence of Sri P.Venkateswara Rao Advocate for complainant and of Sri K.Murali Krishna, Advocate for the accused and the matter having been stood over for consideration till this day, this court delivered the following:
J U D G M E N T
1.The Complainant Chodey Janaki Ramayya Chowdary, S/o Veeraju Chowdary, fled this complaint Under Sec.200 of Criminal Procedure Code 1973 for the offence U/sec. 138, r/w. 142 of the Negotiable Instrument Act, 1881.
2. The case of the complainant alleged in brief as follows:
The complainant connection with the purchase of the land an extent of
Ac.30.20 cents covered by Sy.No.8 Part and 236/2 in Mamidilova and
Gandigundam villages in Anandapuram mandal had paid a sum of Rs.27,00,000/-,
Rs.17,00,000/- in cash and an amount of Rs.10,00,000/- through account transfer to the accused and that the complainant had later got the land register by paying the consideration through Demand Drafts/Bankers cheque and that the accused returned the sum of Rs.15,00,000/- to the complainant from out of sum of
Rs.27,00,000/- taken as advance in the mode specifed above in cash to his client and the remaining amount of Rs.12,00,000/- by way of cheque bearing
No.076079, dt. 27-01-2016 drawn on Indian Bank, Seethammapeta Branch, 2 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
Visakhapatnam and later, the complainant presented the said cheque with his banker ie., Syndicate Bank, Yendada branch, Visakhapatnam for collection on 11- 03-2016, but the said cheque was returned with memo containing endorsement as "Insufcient Funds" and the same cheque and memo were returned to the complainant on 11-03-2016 and the same is informed to the accused and she requested him to represent the said cheque and stating that she made arrangement of the funds in her account and accordingly, the complainant represented the said cheque again on 24-03-2016, but the same also dishonoured with memo as "Insufcient Funds" on 28-03-2016 and the complainant again informed the same to the accused and again, she informed the complainant that she arrange the funds in her account and the complainant represented the said cheque on 13-04-2016, but the said cheque was again returned as dishonoured as
Insufcient funds on 13-04-2016 and later, he got issued a registered notice, dt.
25-04-2016 demanding payment of the amount covered by the cheque and after receipt of the said notice, she did not send either any reply or pay the amount.
As the accused has failed to pay the amount covered under the dishonored cheque without having sufcient funds, therefore she is committed an offence
U/sec.138 & 142 of NI Act, for which, she is liable to be punished under the law and prays the court to order for payment of amount to the complainant out of the fne amount imposed on the accused, hence, this complaint.
3.The complaint was taken on fle U/Sec.138 of Negotiable Instruments Act, 1881 by the learned VII Addl. Metropolitan Magistrate, Bheemunipatnam and assigned as C.C.No.81/2017. After appearance of the accused, copies of documents were furnished to her as required under section 207 of Criminal
Procedure Code. The accused was examined under section 251 of Criminal
Procedure Code, by explaining the substances of accusation alleged against the accused for the offence punishable under Section 138 of Negotiable Instruments
Act, 1881 in Telugu, for which the accused denied, pleaded not guilty and claimed 3 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
to be tried. Thus, the case was posted for trial.
4. At that stage, the record is received by transfer from VII Addl. Metropolitan
Magistrate, Bheemunipatnam to this court, as per the Proceedings of Hon’ble
Principal District Judge, Visakhapatnam in Dis.No.1549, dt.22.02.2018.
Accordingly, this case record was received by this Court on transfer from VII Addl.
Metropolitan Magistrate’s Court, Bheemunipatnam and this Court assigned new
CC No.39/2018 and proceeded with the case.
5. In order to prove the same, the complainant Ch.Janaki Ramayya Chowdary got examined as PW1 and Ex.P1 to P8 documents are marked. Sri.R.Ramesh,,
Asst. Branch Manager, Seethammapeta examined as PW2 and Ex.P9 to Ex.P12 are marked. Sri.Mikky Kumar Chowrasya, Branch Manager, Syndicate Bank, Yendada branch got examined as PW3 and Ex.P13, P14 are marked.
Ex.P1 is Original cheque, bearing No.076079 for an amount of
Rs.12,00,000/-, drawn on Indian Bank, Sitammapeta branch, Visakhapatnam, dt.
27-01-2016. Ex.P2 is Original cheque return memo, dt. 11-03-2016 for the cheque bearing No.076079 for an amount of Rs.12,00,000/- drawn on Indian Bank,
Sitammapeta branch, Visakhapatnam. Ex.P3 is Original cheque return memo, dt.
28-03-2016 for the cheque bearing No.076079 for an amount of Rs.12,00,000/- drawn on Indian Bank, Sitammapeta branch, Visakhapatnam. Ex.P4 is Original cheque return memo, dt. 13-04-2016 for the cheque bearing No.076079 for an amount of Rs.12,00,000/- drawn on Indian Bank, Sitammapeta branch,
Visakhapatnam. Ex.P5 is Ofce copy of legal notice, dt. 25-04-2016, which was addressed by the complainant to the accused. Ex.P6 is Receipt, bearing
No.65385202 by DTDC couriers. Ex.P7 is Postal acknowledgment, dt. 28-04-2016.
Ex.P8 is Postal receipt, dt. 26-04-2016. Ex.P9 is Attested copy of Statement of the bank account of the accused from 01-01-2016 to 30-04-2016. Ex.P10 is Attested coy of cheque return memo as Funds Insufcient in the account of G.Sumana.
Ex.P11 is Attested copy of cheque return for shortage of funds. Ex.P12 is Return 4 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
memo, dt. 14-03-2016, 28-03-2016 and other connected documents. Ex.P13 is
Computerized generated account status copy of Ch.Janaki Ramayya Chowdary with attestation of the Branch manager. Ex.P14 is Attested copy of information from the cheque returned register.
6.After closure of the complainant’s side evidence, the accused was examined under Section 313 Criminal Procedure Code by explaining the incriminating evidence of complainant in Telugu, for which she denied the same and reported no defence evidence on her side.
7. Heard both sides.
8. Now the points for consideration are:- (1) Whether the complainant has proved that Ex.P1/Cheque in question was issued by the accused for discharge of whole or part liability of any legally enforceable debt or any other liability?
(2) Whether the complainant has complied with the mandatory provisions of Section 142 of the Act?
(3)Whether the accused has committed any offence under Sec.138 of N.I Act?
9. Point:
The learned counsel for the complainant contended that, the evidence adduced by P.W.1 and coupled with Exs.P1 to P8 are marked. Thus, PW.1 was successfully established that, the cheque in question was issued in discharge of the liability of the accused. He summoned the bank witnesses and examined them as PW2 and PW3 and Ex.P9 to Ex.P14 are marked. Hence, the accused is to be convicted for issuing the cheque which was not honoured due to Insufcient
Funds in the account of the accused.
On the other hand, the learned defence counsel contended that, the burden rests on the complainant to prove that, the cheque in question is said to be issued in connection with discharge of legally enforceable debt and unless he initially prove the same, the presumption cannot come into operation as to the complainant failed to discharge his initial burden, the presumption under any circumstances cannot be operated.
He further contended that, the date of proposed date of sale transaction 5 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
does not disclose in the complaint and the account copy of the complainant does not disclose transfer of amounts to the account of accused. He further argued that, Ex.P6 and Ex.P5 does not disclose the address of the accused and she is not residing there, so, the statutory notice is not served upon the accused. He further argued that, there is no RL number in the Ex.R7, so, the said postal receipts and acknowledgments are not valid and created one. He further argued that, 6th para of Crl.M.P.133/18 is accepted by the PW1 in his cross examination, so, where is the question of return back the amount and accused herein is not a owner of the property, so, the transaction with regard to the sale of the property is created one.
Hence, prayed for dismissal of the same.
10.In the light of the above contentions, the following points would emerge for this Court’s consideration:
Whether the burden of proving the legally enforceable debt is on the complainant/P.W.1 and if the same is not satisfactorily discharged, whether the accused is entitled for an acquittal and what is the effect of presumption under
Section 138 and 139 of the Act.
Even under Section 139 of the Act, it is specifcally stated that “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 for discharging in whole or in part, of any debt or other liability.”
According to Section 139 of N.I Act there is no doubt a presumption that a cheque was issued for a liability. This presumption is not an absolute one and it is a rebuttable presumption.
In the decision reported in Maruti Udyog Limited Vs. Narender [1999 1
SCC.113], the Hon’ble Supreme Court held that in view of the express provisions of Section 139 of the N.I Act, a presumption must be drawn that the holder of the cheque received the cheque of the nature referred to in Section 138, for the discharge of any debt or other liability unless the contrary is proved.
Further in Hiten P.Dalal Vs. V.Bratindranath Benerjee 2001 SCC (Crl.) 960:
6 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
[2001 Crl.L.J. 4647] the Hon’ble Apex Court while dealing with Sections 138 and 139 of N.I Act observed that it is obligatory of the Court to raise this presumption in every case where the factual basis for rising of the presumption has been established. It was further observed that Section 139 is introduced as an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. In this Judgment, the Hon’ble Apex Court distinguished a “presumption” of law and “presumption of fact”. It also held that the obligation on the prosecution may be discharged with the help of presumptions of law of fact, unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
It further observed at paragraph No.23 as under:
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of a “prudent man”.
The above principle was reiterated by the Hon’ble Apex Court in the Judgment in
M.M.T.C. Limited Vs. V.Medehi, chemicals and Pharma (P) limited [AIR 2002
S.C.182]
In AIR 2002 Supreme Court 985 A.V. Murthy Vs. B.S. Naga Basav anna, it was observed in para 5 and 6 of the Judgment that under Section 118 of the Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration.
It was also observed by the Hon’ble Court in 2001(2) ALD (Crl.) 324 (S.C.) in
Hiten P.Dala Vs. Bratindranath Banerjee which it was observed by the Hon’ble
Court in paras, 21, 22, 23 and 32 that: “because both sections 138 & 139 requires that the Court “shall presume” the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras Vs.
A.Valdynatha Iyer, AIR 1958 S.C. 61, it is obligatory on the Court to raise this presumption in very case where the factual basis for the raising of the presumption had been established. “It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provision by which the Court “may presume” a certain state of affairs. Presumptions are rules of evidence and do not confict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the 7 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
help of presumptions of law of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.” “In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw that statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, “after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the proposition that it exists” as per Section 3 of Evidence Act. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man”.
“ In the case of a mandatory presumption “the burden resting on the accused person in such a case would not be light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words ‘unless the contrary is proved’ which occur in this provision make it clear that the presumption has to be rebutted by ‘proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established of when’ upon the materials before it the Court fnds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.”
In the decision reported in B.V.Rangam Vs. B.Govinda Reddy and another in [2004(2) L.S. 187] wherein it was held in paras 10, 11, 21, 23 and 38 it was held that:
“In so far as the burden of proof is concerned, learned counsel for the appellant drawn attention of this Court to Section 139 of the Act and submitted that such a presumption as contemplated under the above provision is not a factual presumption and is a legal presumption, once the cheque is in possession of a complainant, it must be deemed that he had discharged the initial burden as to legally enforceable debt and as such, it is for the accused-respondent to prove that the said cheque was not issued for the purpose of any legally enforceable debt or liability in this regard, learned counsel for the appellant drawn attention of the Court to a decision of the apex Court in Hiten P.” 8 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
11.Therefore, by drawing the statutory presumption under Section 139 of the Act, the appellant-complainant has discharged his initial burden and the burden to prove that the said cheque was not issued against a legally enforceable debt lies with the respondent-accused in view of the decision of the apex Court referred to supra.” “The appellant’s submission that the cheques were not drawn for the “discharge in whole or in part of any debt or other liability” is answered by the word presumption available to the Bank under Section 139 of the Negotiable
Instrument Act. This section provides that:
“Under Section 139, 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 for the discharge, in whole or in part, of any debt or other liability.” “The burden was on the appellant to disprove the presumptions under sections 138 and 139, a burden which he failed to discharge at all. The averment in the written statement of the appellant was not enough. Incidentally, the defence in the written statement that the four cheques were given for intended transactions was not answer given by the appellant to the notice under Section
138. Then, he had said that the cheques were given to assist the Bank for restructuring. It was necessary for the appellant at least to show on the basis of acceptable evidence either that his explanation in the written statement was so probable that a prudent man ought to accept it or to establish that the effect of the material brought on the record, on its totality, rendered the existence of the fact presumed, improbable. In the absence of any such proof the presumptions under sections 138 and 139 must prevail.”
In the decision reported in 2004(2) ALT (Crl.) 254 (A.P.) in Eenadu a daily
Newspaper, Vijayawada Vs. J.Shiva shanker and another wherein it was held in para 12 that:
“In the instant case, the accused simply denied in his reply notice that the cheques issued by him were in relation to the legally enforceable debt, but n(has not) entered the witness box to rebut the presumption. Therefore, the Court below ought to have presumed that the eight cheques were issued in relation to the discharge of legally enforceable debt instead of dismissing the complaints on the ground that the cheques were not issued in relation to legally recoverable debt. Thus, the prosecution in the absence of rebuttable evidence on the above said presumption that the cheques were not issued in relation to legally 9 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
recoverable debt, has proved its case.”
In the rulings reported in 2005(1) ALD (Clr.) 638 (A.P) in V.Munikrishnaiah
Vs. Janakirama Naidu and another wherein by relying upon the ruling reported in
Maruti Udyog Ltd. Vs. Narender (1999) 1 SCC 113.
In MMTC Vs. Medchl. Chemicals and Pharma, 2002(1) ALD 9 (crl.) 585 (SC) = 2002(1) SCC 234, it is held at page 240 as follows.
There is therefore no requirement that the complainant must specifcally allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the Trial”
In K.N.Beena Vs. Muniyappan, 2001(2) ALD (Crl.) 824 (SC) = 2001(8) SCC 458, it is held:
“ Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus, in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable.”
It was further observed by the Hon’ble Court as para 6 that “ In our view the impugned judgment cannot be sustained at all. The judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonoured cheque is on the complainant. It appears that the said judgment rely on the sections 118 and 138 of the Act. Under section 118, unless the contrary was proved that itself to be presumed that unless contrary was proved. The holder of the cheque, it is to be presumed that Negotiable instrument has been made or drawn for consideration. The same view was also held by the Hon’ble Court in 2005(2) ALT (Crl) 57 A.P. in V.Munikrishnaiah Vs.
Janakarama Naiduand another.
''in view of the above, it is clear that the burden to establish for discharge of cheque was not issued towards any legally enforceable debt or liability as on the frst respondent, who is drawer of the dishonoured cheque, but not on the appellant, for the reasons best known to him-frst respondent did not choose to adduce any evidence to rebut the presumption under Sec.138 of the Act. In view of the appellant, so it has to be taken that he dishonoured cheque was issued by the frst respondent towards legally enforceable debt or any liability to the appellant.
In 2006(1) ALD (Crl.) 180 ( A.P.) IN M.G. Brothers Automobiles Ltd., Vs
B.Masthan Reddy and another in which it was held that : “As seen from
Sec.139 of N.I Act, when the issuance of the cheque is drawn the presumption 10 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
shall be drawn that the cheque received the cheque for discharge of whole or part of any debt or any liability. Unless the contrary is proved. Therefore, the burden is on the accused that said cheque was not issued towards any legally enforceable debt.
So, by virtue of above mentioned rulings of Hon’ble Apex Court as itself holds that as it is the legally presumption and once the cheques are in possession of the complainant it must be deemed that he has discharged his initial burden as to the legally enforceable debt. It is for the accused to prove that the cheque as not issued for the purpose of discharge of any legally enforceable debt or liability liens with the accused.
12.Now the point for consideration is complainant has proved that Ex.P1/cheque in question was issued by the accused for discharge of whole or part liability of any legally enforceable debt or any other liability?
As per the above, this is the initial burden of the PW1 under section 101 of the Indian Evidence Act to establish that there is a legally enforceable debt in between the PW1 and accused and for discharge of the said debt, the accused issued Ex.P1/cheque in favour of PW1 for an amount of Rs.12,00,000/-, dt. 27-01- 2016 and he presented the said cheque before his banker ie., Syndicate Bank,
Yendada branch, Visakhapatnam, on 11-03-2016, but the said cheque was returned with memo containing endorsement as "Insufcient Funds" and the same cheque and memo were returned to the complainant on 11-03-2016 and the same is informed to the accused and she requested him to represent the said cheque and stating that she made arrangement of the funds in her account and accordingly, the complainant represented the said cheque again on 24-03-2016, but the same also dishonoured with memo as "Insufcient Funds" on 28-03-2016 and the complainant again informed the same to the accused and again, she informed the complainant that she arrange the funds in her account and the complainant represented the said cheque on 13-04-2016, but the said cheque was again returned as dishonoured as Insufcient funds on 13-04-2016 and later, he got issued a registered notice, dt. 25-04-2016 demanding payment of the amount covered by the cheque and after receipt of the said notice, she did not send either 11 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
any reply or pay the amount.
13. The contention of the defence counsel is that, there is no existence of legally enforceable debt in between the PW1 and accused, so, there is no question of discharge of the same, under that circumstances, the drawing of presumption
U/Sec.118 & 139 of Negotiable Instrument Act not at all play any role in favor of the PW1.
Prior to advertise aforesaid rival stands on either side, this is the duty of the court, to see at frst whether the PW1 discharged his burden successfully with supporting oral and documentary evidence about the existence of legally enforceable debt in between the PW1 and accused and in order to discharge the same, the accused issued the Ex.P1/cheque in favor of the PW1.
14.In order to establish the same, the complainant himself examined as
PW1 and he reiterated the contents of complaint in his evidence in chief and he exhibited Ex.P1 to P8 and submits that he purchased the land an extent of
Ac.30.20 cents covered by Sy.No.8 Part and 236/2 in Mamidilova and
Gandigundam villages in Anandapuram mandal had paid a sum of Rs.27,00,000/-,
Rs.17,00,000/- in cash and an amount of Rs.10,00,000/- through account transfer to the accused and that the complainant had later got the land register by paying the consideration through Demand Drafts/Bankers cheque and that the accused returned the sum of Rs.15,00,000/- to the complainant from out of sum of
Rs.27,00,000/- taken as advance in the mode specifed above in cash to his client and the remaining amount of Rs.12,00,000/- by way of cheque bearing
No.076079, dt. 27-01-2016 drawn on Indian Bank, Seethammapeta Branch,
Visakhapatnam and later, the complainant presented the said cheque with his banker ie., Syndicate Bank, Yendada branch, Visakhapatnam for collection on 11- 03-2016, but the said cheque was returned with memo containing endorsement as "Insufcient Funds" and the same cheque and memo were returned to the complainant on 11-03-2016 and the same is informed to the accused and she 12 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
requested him to represent the said cheque and stating that she made arrangement of the funds in her account and accordingly, the complainant represented the said cheque again on 24-03-2016, but the same also dishonoured with memo as "Insufcient Funds" on 28-03-2016 and the complainant again informed the same to the accused and again, she informed the complainant that she arrange the funds in her account and the complainant represented the said cheque on 13-04-2016, but the said cheque was again returned as dishonoured as
Insufcient funds on 13-04-2016 and later, he got issued a registered notice, dt.
25-04-2016 demanding payment of the amount covered by the cheque and after receipt of the said notice, she did not send either any reply or pay the amount.
Thus, the initial burden was discharged by the PW1 with supporting oral evidence and so also supporting documentary evidence and so also summoning of Bank
Authorities about the proving of presentation of the cheque and dishonor of the same, on the ground of Funds Insufcient.
15. The main stand of the accused is that, in order to establish the subsistence of legally enforceable debt between the PW1 and accused, he did not place any piece of document before this court, so, mere fling of Ex.P13/Bank
Statement of account of PW1 and refecting of Rs.12,00,000/- in the said account is not at all sufcient proof of document for establishing the subsistence of the debt in between them.
In order to strengthen his arguments, he also relied on G.Videsam vs. S.Siva
Sankar and another reported in 2007 (3) ALT, Crl. 38 AP, wherein the Hon’ble High
Court held that, appellant/Complainant specifcally admitted in his cross examination that, he has no proof of lending the amount to the respondent/ accused.
He also relied on Shaik Aayaz-petitioner vs. Abdul Khadar and another- respondents reported in 2011 vol.3 LS 352, wherein the Hon’ble High Court held that, if accused by preponderance of evidence as discharged burden 13 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
contemplated by sec. 139 of Act, the burden would shift to complainant to prove his case, beyond reasonable doubt without help of sec. 139 of Act. Thus, it is primarily for the drawee to show that, cheque was issued in connection with subsisting of debt, onus on part of drawer is in nature of proof in a civil case viz., establishing a fact by preponderance of evidence, whereas complaint shall have to establish his case beyond reasonable doubt.
16.The learned counsel for the accused rightly argued and so also, as per the above preposition of law, the initial burden is always lies on the complainant who knocked the doors of the court and so also it is a settled law. Unless, this initial burden is discharged by the complainant, the presumption available U/sec.
139 of NI Act can’t be made use off against the accused and so also, this is the nature of criminal proceedings, the accused is not expected through his defence by examining the witnesses and placing the evidence at his command. Further, the case of the complainant has to stand or fall on the evidence let in by it. The accused person is given liberty to cross examine the witnesses in support of the case, to discharge the version of the complainant and to prove the version of the complainant is not proved. The same analogy was held in Krishna Janardhan Bhat vs. Dattatreya G.Hegdey reported in 2008 Crl.Law General, 1172 (SC).
17.Thus, as per the above law, once the accused takes the plea that the cheque was not issued for discharge of legally enforceable debt or liability, then the complainant is bound to prove the circumstances, under which, the cheque was given in his favour and what the same was issued in discharge of legally enforceable debt. The learned counsel for the complainant argued that, the complaint itself speaks about the sale transactions of the landed property an extent of Ac.30.20 cents covered by Sy.No.8 Part and 236/2 in Mamidilova, he paid an amount of Rs.27,00,000/- as cash of Rs.17,00,000/- and Rs.10,00,000/- through account transfer and subsequently, the land was registered by paying the consideration through demand drafts and bank cheques and accused had 14 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
returned Rs.15,00,000/- out of the advance amount of Rs.27,00,000/-, but issued cheque for remaining amount of Rs.12,00,000/-, so, the complainant proved that there is a subsistence of debt in between the PW1 and accused and he discharged the same with supporting and oral evidence, but accused did not place any rebuttable evidence to establish his stands.
18.Admittedly, the averments of the complaint is in some confusion and it is also not disclose, whether accused approached the complainant for mediator for selling of the said property or her own property and so also, when the same was done and when the registration was completed with regard to the said lands and once the lands was registered, where is the necessity for return back the amount to the complainant, but in the cross examination of the PW1, the suggestion is that, prior to fling of this complaint, due to acquaintance in between
PW1 and accused, PW1 approached the accused and there is a valid property situated at Yendada village limits and the same can be provided by the accused for lesser price, due to that contacts, PW1 asked the accused to issue empty signed cheque to give the owner of the said property situated at Yendada village limits, since, PW1 do not know how much amount was expected by the owner from the accused as an advance for the said proposed site, as such, she issued the empty signed cheque to the PW1 and she asked 2 to 3 times about the said transaction, but PW1 postponed the same, but due to political affairs, she forgot the same on deposing confdence upon the PW1, but subsequently, she demanded the PW1 to return back the said empty signed cheque, but PW1 stated that it was misplaced in the home and the same will be given whenever it will be traced out.
19.Thus, as per the above suggestions, admittedly with regard to the said sale transactions, the talks were taken place in between the PW1 and accused. If really, she did not receive any amount from the PW1, there is no necessity to issue empty signed cheque in favour of the PW1 and if really, the same is empty 15 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
one, she may intimate to bank authorities as the said cheque should not be
honour and gave instructions to the said authorities. Even, she may address a
legal notice to the PW1 to return back the same. Even the accused is an Ex-MLA and she knows about the consequences of the possession of the empty cheques in the hands of others, what is the fate of the future and so also, what is the legal consequences, but she simply stated that, due to political affairs, she forgot the same by reposing confdence upon the PW1, she did not take any steps, but subsequently demanded, but PW1 postponed the same. Once, there is no denial on the part of the accused as the Ex.P1/cheque is belongs to her and the same was issued by her in favour of the PW1, the presumption U/sec. 139 of the NI Act would arise even drawer would be unsettle the presumption by rebuttable evidence. Though, the learned counsel for the accused did lengthy cross examination, but nothing was elicited from the PW1 and could not elicit any rebuttable evidence from the PW1. Though, it is a fact that, there is no any documentary proof about the giving of the said amount to the accused by the
PW1 and he has to establish about the circumstances as he gave the said amount to the accused and admittedly, PW1 did not place any documentary proof about the transfer of amounts, but his complaint is very much clear that, Rs.17,00,000/- was paid to the accused by way of cash and for the remaining amount, the cheque was issued. Thus, once the accused admitted about the going on mediation in between the PW1 and accused with regard to the purchasing of the properties and accused himself gave the cheque in favour of the PW1, the burden shifts upon her to establish that, the cheque was given as an empty, but to prove the same, nothing is placed before this court and even she did not take any steps to initiate complaint against the PW1 for misuse of the cheque, even she has given the same as an empty and so also, she did not initiate any civil suit for claiming damages or anything against the PW1 and so also, she did not initiate any deformation proceedings as PW1 defame her reputation by initiation of this 16 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
type of complaint against her after receiving of the summons in this complaint.
Further, she did not move any requisition to the Bank Authorities to stop the payment or not to honour the cheque, even accused is an Ex-MLA and having much political power and all powers. The said silence itself speaks that, there is a transaction in between the PW1 and accused with regard to the landed properties and in that connection, she issued the Ex.P1/cheque. In view of the discussions, the accused is unable to elicit rebuttable evidence in the cross examination of the
PW1. The above rulings is placed by the defence counsel are different to the present case facts on the hand.
20.The learned counsel for the accused argued further that, the complainant who is a petitioner in Crl.M.P.133/2018 averred in para No.6 of the afdavit that, accused executed sale deed for part of the land and she has to execute the sale deed for remaining extent and the same was admitted by him and on that ground also, this complaint is dismissed. Admittedly, the PW1 came that petition to amend the complaint with regard to the some averments, but the same was dismissed by this court and it is also fact that, he admitted about the facts of the 6th para of the afdavit in his cross examination, and further he also admitted about the registration of the land in his cross examination, but what is the bar to initiate this complaint for recovery of the remaining amount, because, the para itself speaks that, the part of the land was registered, the same is not at ground for dismissal of the complaint and the stand is not sustainable.
21.This is the another stand of the defence counsel is that, the notice was not served upon the accused, so, this complaint is hit by Sec. 138(B) of NI Act. In order to elicit the same, he did lengthy cross examination. In the cross examination of the PW1, he confronted the Ex.P7/postal acknowledgment, dt. 28- 04-2016 and Ex.P6/Courier service receipt and asked him, whether Ex.P6/receipt can be identifed with regard to the date as 26-04-2016. PW1 answered that, he can’t identify the same, but he admitted that, Ex.P7/postal acknowledgment not 17 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
visible about the month, but it is only visible as 28th, 2016. For which, he suggested to him, Ex.P7/postal acknowledgment clearly visible as date of delivery of the said notice as 28-01-2016 and on the back of the said acknowledgment and returned to the addresser on 30-01-2016, so, the said acknowledgment is no way concerned for the Ex.P5/legal notice and this complaint is barred by limitation. At this juncture, it is essential to gone through the contents of the said document.
Admittedly, the said Ex.P7/acknowledgment not visible with regard to the month, but year as 2016 and date as 28th is clearly visible and infront, 30th is visible, but year and month is not visible, but come to the Ex.P8/Postal receipt clearly shows about the date as 26-04-2016 and so also name of the accused as G.Sumana,
Madhavadara, Marripalem, SO, P.No.530018. Thus, once the Ex.P8/postal receipt clearly shows about the sending of notice to the accused on 26-04-2016 itself, the correction of year in the Ex.P6/courier receipt is not at all considered and basing on the same, the questioning of PW8/postal acknowledgment as month is not visible and it is belongs to the January month does not arise. Further, the stand of the accused is that RL number on the Ex.P8/postal receipt is not refected on the
Ex.P7/postal acknowledgment and the said Ex.P7/postal acknowledgment is no way concerned to the each other. Even, the same is really belongs to the January month and RL number is not refected that Ex.P7 and P8 are connected for the said notices, the burden is on the accused to establish the said fact to summon the postal authorities, whether the said postal acknowledgment is belongs to
January month or April month, but the accused did not take any steps for the same, except arguing that, the same is not visible, so, it is belongs to the January month. Even it is presumed that, the said postal acknowledgment is belongs to
January month, where is the necessity to the PW1 to sent the notice the accused without presentation of the cheque, because, the cheque was presented on 11-03- 2016 itself as per the material available on the record.
22.The learned counsel for the accused also did lengthy cross 18 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
examination as address not mentioned in the Ex.P8/postal receipt and the accused is not residing in the said address, so, the service of notice not at all done upon the accused. In order to establish the same, he also did lengthy cross examination. He suggested to the PW1 that, he managed the postal authorities without service statutory notice to her personally, even he sent the notice. The said suggestion is speaks that, the stand of the accused in one side, as the postal acknowledgment and receipt are not belongs to the Ex.P5/notice, but her stand is another version is that, the notice was sent, but PW1 managed the postal authorities not serve upon the PW1. At this juncture, it is essential to gone through the signature of the accused on the Ex.P7/postal acknowledgment and the signature on the acknowledgment available on the record with regard to the court summons served upon the accused. On comparison of said documents, the signature of the both documents are appears to be one and the same. Further, this is not the stand of the accused, that the said signatures are not belongs to her. Further, the address mentioned in the said Ex.P7/postal acknowledgment and so also address mentioned in the court summons are one and the same. Once, the address mentioned in both are one and the same and accused attended to the court after receiving of the summons, basing on the said address, the plea of the accused as she is not residing in the said address and not served notice upon her is not at all considerable defence.
23. Moreover, once the notice was sent to the correct address of the accused, the presumption is that, the service of notice is deemed as per the Sec.
27 of General Clauses Act. Thus, the plea of the accused as notice was not served upon her is not at all taken in to consideration as follows.
The aspect of presumption of notice under this Act is widely discussed by
Division bench of Hon’ble Apex Court in C.C. Alavi Haji Vs. Palametti Mohamad and another reported in 2007 (6) SCC(555)” held that, there is no need to such make such averements in the complaint for raising presumption as to service of 19 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
notice in the said situation as in view of Sec.27 of the General Clauses Act, and
Sec.114 of Indian Evidence Act, once the notice was sent by Registered post by correctly addressing of the drawer of the cheque, the service of notice is deemed have been effected. Mandatory requirement of the issued of notice in terms of
Sec.138 proviso (b) stands complied with when the notice is sent in the said manner. However, that drawer can be rebut the service of notice by showing that, he had no knowledge and that the notice was brought to his address are the address mentioned on the cover was incorrect or the letter was never tender or the report of the postman was incorrect.
In Indo Aumobiles Vs. Jayadurga Enterprises and others reported in 2008(8) (SCC)529, the Apex Court held that, once the notice has been sent by Registered post with acknowledgement due to a correct address, it must be presumed that the service has been made effective.
It is settled law, that once the notice has been sent by Registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to be effected and the said analogy is also held in recent ruling of Hon’ble Apex
Court in N. Parameswaran Unny Vs. G. Kannan and other reported in 2017(2) ALT (Crl) 366 (SC). Thus, as per the above rulings, there is no doubt in the present case, the notice was sent by registered post by correctly addressing the rulings was placed by the defence counsel is not at all applicable to the present case facts, because Haji case is decided by the Division bench of the Hon’ble Apex
Court. Thus, as per the above rulings, the presumption is that the accused received the notice from the PW1 and he complied the requirement under 138(b) of N.I. Act.
Under Sec.102 of the Indian Evidence Act, the burden of proof in proceeding lies on that person who would fall if no evidence at all for given on either side. As the signature on Ex.P1 not at all disputed.
Further, under Sec.20 of Negotiable Instrument Act, 1981, the person who 20 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
signed the instrument shall be liable upon such instrument. Hence, what is material is signature but not the entire contents of the instrument.
By virtue of the Sec.106 of India Evidence Act, when any fact is specifcally within the knowledge of any persons, the burden of proving the same upon him, hence it is not unreasonable to hold that as the accused failed to bring forth alleged circumstances of issuing only cheque and the same was discharged by him. Hence, it is not To hold that accused issued Ex.P1 cheque in favour of the
PW.1 for the discharge of legally enforceable debt or other liability. If really, the accused did not issue a cheque and it was misused by the PW1, he can claim more amount from the accused and not necessarily for an amount of
Rs.12,00,000/- only. Unless so positive, cogent, clear and worth convincing steps were taken by the accused, the court can presume circumstances against the accused.
24. So, by virtue of the above mentioned rulings, in view of the discussions made supra and on consideration of evidence on the record, as it was established legal principal that the burden to proved it the cheque in question was not issued for discharge of debt or other liability is upon the accused as in the instant case, the accused was unable to rebut the presumption successfully and no endeavor was made by her by adducing any other evidence in rebutting the presumption Under Sec.139 of NI Act. So, in the legal back drop, after looking into the evidence both oral or documentary on record, it is not unreasonable to hold that the accused could not successfully prove that there is no existence of legally enforceable debt as she was unable to rebut the presumption that the said cheque was not issued by her in the discharge of legally enforceable debt or other liability. Thus, the complainant is able to establish that the cheque in question was issued by the accused for discharge of the legally enforceable debt.
21 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
25.Now the points for determination are:
Whether the complainant has complied with mandatory provisions of 142 of NI Act or not? & Whether the accused has committed any offence punishable U/Sec.138 of the Act.
As seen from the evidence on record, Ex.P1/cheque dt. 27-01-2016 was presented on 11-03-2016 and so also within the period of its validity and the same was returned with memo ie., Ex.P12 Cheque return memo on 11-03-2016 and represented on 24-03-2016 and the same was dishonored on 28-03-2016 and even the same is presented in three times, but in the limitation period.
26.As the accused has not rectifed her mistake or negligence and she has in action is not paying the amount due under the Ex.P1/cheque, dt. 27-01- 2016 as she was unable to rebut the presumption U/sec.139 of NI Act, in view of the discussion made, as the accused issued the cheque and the same was dishonored for funds insufcient, as the accused failed to maintain the account with sufcient funds and it caused dishonor of Ex.P1/cheque and accused failed to make payment subsequent to the dishonor within prescribed period is liable for prosecution and penal consequences and it is not unreasonable to hold that the accused committed U/sec.138 of NI Act.
27.Hence, it is evident that, complainant has complied with the mandatory provisions of Sec.142 of NI Act as the accused failed to make any payment due by her under the cheque and as she issued a cheque knowing fully that Insufcient funds, the acts of the accused attracts the penal liability contemplated U/sec.138 of NI Act.
28.In the result, the accused is found guilty for the offence under
Sec.138 & 142 of Negotiable Instrument Act and accordingly, she is convicted under Section 255(2) of Cr.P.C., for the offence under Sec.138 of Negotiable
Instrument Act.
XIV Addl. Metropolitan Magistrate, FAC. Special Magistrate, 22 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
Bheemunipatnam.
29.The accused is heard with regard to the quantum of sentence to be imposed upon her. She submitted that, she is aged about 61 years and suffering with ill health problems and have one daughter and she will look after her affairs.
In view of the facts and circumstances of the case and consideration of submissions by the accused, this court feel that, it is not a ft case to extend the beneft of provisions of the Probation of Offenders Act to the accused, as the penal consequences U/sec.138 of NI Act, have been envisaged has been deterrence so as to enhance the accessibility of the cheques, and an imposition of imprisonment and some fne will meet the ends of justice.
30. In the result, the accused is found guilty for the offence punishable
U/sec.138 of NI Act and she is convicted U/sec.255(2) Cr.P.C., and the accused is sentenced to undergo Simple Imprisonment for a period of one year and she also sentenced to pay fne amount of Rs.5,000/- (Rupees Five thousand only), in default of payment of fne, the accused shall undergo Simple Imprisonment for a period of One Month.
It is informed to the accused about to right to prefer an appeal on this judgment and it is also informed to her about engaging legal aid, if no means to her prefer an appeal.
(Typed to my dictation by the Typist directly on computer system, corrected and
pronounced by me in the open court, this the 22nd day of February, 2020).
Sd/- P.Vijaya,
XIV Addl. Metropolitan Magistrate (FAC) Special Magistrate, Bheemunipatnam
APPENDIX OF EVIDENCE.
NO. of WITNESSES EXAMINED
FOR PROSECUTION: PW1: Ch.Janaki Ramayya Chowdary, Complainant. PW2: R.Ramesh, Asst. Branch Manager, Indian Bank, Seethammapeta Branch, VSP. PW3: Mikky Kumar Chowrasya, Branch Manager, Syndicate Bank, Yendada Branch, Visakhapatnam.
FOR DEFENSE:- NIL - NO. of EXHIBITS MARKED. For Prosecution :
23 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
Ex.P1 is Original cheque, bearing No.076079 for an amount of Rs.12,00,000/-, drawn on Indian Bank, Sitammapeta branch, Visakhapatnam, dt. 27-01-2016. Ex.P2 is Original cheque return memo, dt. 11-03-2016 for the cheque bearing No.076079 for an amount of Rs.12,00,000/- drawn on Indian Bank, Sitammapeta branch, Visakhapatnam. Ex.P3 is Original cheque return memo, dt. 28-03-2016 for the cheque bearing No.076079 for an amount of Rs.12,00,000/- drawn on Indian Bank, Sitammapeta branch, Visakhapatnam. Ex.P4 is Original cheque return memo, dt. 13-04-2016 for the cheque bearing No.076079 for an amount of Rs.12,00,000/- drawn on Indian Bank, Sitammapeta branch, Visakhapatnam. Ex.P5 is Ofce copy of legal notice, dt. 25-04-2016, which was addressed by the complainant to the accused. Ex.P6 is Receipt, bearing No.65385202 by DTDC couriers. Ex.P7 is Postal acknowledgment, dt. 28-04-2016. Ex.P8 is Postal receipt, dt. 26-04-2016. Ex.P9 is Attested copy of Statement of the bank account of the accused from 01-01-2016 to 30-04-2016. Ex.P10 is Attested coy of cheque return memo as Funds Insufcient in the account of G.Sumana. Ex.P11 is Attested copy of cheque return for shortage of funds. Ex.P12 is Return memo, dt. 14-03-2016, 28-03-2016 and other connected documents. Ex.P13 is Computerized generated account status copy of Ch.Janaki Ramayya Chowdary with attestation of the Branch manager. Ex.P14 is Attested copy of information from the cheque returned register.
For Defence : - NIL -
Sd/- P.Vijaya,
XIV Addl. Metropolitan Magistrate, (FAC) Special Magistrate, Bheemunipatnam. Copy submitted to Hon’ble Chief Metropolitan Magistrate, Visakhapatnam.
W 24 Judgment in CC 39 of 18,
Dt. 22.02.20, Spl.Mag/BML.
CALENDAR AND JUDGMENT
IN THE COURT OF SPECIAL MAGISTRATE BHEEMUNIPATNAM
C.C.No.39/2018
(Old CC. 81/2017)
Date of offence27-01-2016 Date of report or complaint26-05-2016 Date of apprehension of the accused28-03-2017 or appearance of the accused in the Court Date of commencement of trial14-03-2019 Date of close of trial13-02-2020 Date of sentence on order22-02-2020 Explanation of delay or remarksThe delay is due to non production of witnesses by the complainant. No witness is retained beyond three days. Name of the ComplainantChodey Janaki Ramayya Chowdary, S/o. Veeraju Chowdary, Hindu, aged 45 years, Agriculture, R/o. Flat No.202, Trendz Flora, Yendada Road, Rushikonda.
Name of the accused Smt. Gantela Sumana, Ex.MLA, Hindu, aged about 57 years, Residing at D.No.39-27-44/7, Vuda colony, Madhavadhara, Visakhapatnam-530018. OffencesUnder Section 138 & 142 of Negotiable Instruments Act Finding Found guilty. SentenceIn the result, the accused is found guilty for the offence punishable U/sec.138 & 142 of NI Act and she is convicted U/sec.255(2) Cr.P.C., and the accused is sentenced to undergo Simple Imprisonment for a period of One year and she also sentenced to pay fne amount of Rs.5,000/- (Rupees Five thousand only), in default of payment of fne, the accused shall undergo Simple Imprisonment for a period of One Month. It is informed to the accused about to right to prefer an appeal on this judgment and it is also informed to her, about engaging legal aid, if no means to prefer an appeal.
Sd/- P.Vijaya,
XIV Addl. Metropolitan Magistrate, FAC: Special Magistrate, Bheemunipatnam.