1
IN THE COURT OF THE IV-ADDL.CHIEF METROPOLITAN MAGISTRATE
VIJAYAWADA
Present: SRI K. SIVA RAMAKRISHNA B.Com., B.L.,
IV-Addl. Chief Metropolitan Magistrate, Vijayawada.
Friday, this the 13th day of December, 2013
CALENDER CASE No. 409 of 2013
Between:-
Ganugapenta Srinivasa Reddy, S/o. Pitchireddy, Age 41 years, R/o. 77-33-23, Shanthinagar, Ajith Singh Nagar, Vijayawada.… Complainant
AND
Goddalla Nancharaiah, S/o. Krishna Murthy, Age 53 years, R/o. Laku Road, Kankipadu, Krishna District…Accused
This case was coming on 12-12-2013 for final hearing before me in the presence of Sri A. Sudhakar, Advocate for complainant; and of Sri P.
Prabhakara Rao, Advocate for accused and having stood over for consideration till this day, this court delivered the following : -
J U D G M E N T
The complainant filed this compliant to prosecute the accused for the offences under sections 138 and 142 of Negotiable Instruments Act alleging that the accused borrowed an amount of Rs.50,000/- from him on 31.12.2009 for his family necessities and executed a pronote (Ex.P.6) in his favour on the even date by agreeing to repay the same with interest @ 24% P.A either to him or his order on demand. On 15.09.2011 he has issued a cheque (Ex.P.1) bearing No. 002049 for Rs.50,000/- to be drawn from his account maintained in Corporation Bank, Kankipadu
Branch towards part payment of the debt due to him under the pronote (Ex.P.6). He presented the cheque (Ex.P.1) in his account maintained in
Andhra Bank, Gandhi Nagar Branch, Vijayawada for collection and the said cheque was returned un-paid with an endorsement that “Funds 2
Insufficient” and the same was informed to him by his bankers with a memo Ex.P.2 dt: 21.09.2011 and that on 30.09.2011 he got issued a lawyer notice to the accused by way of registered post demanding for payment of the amount within 15 days from the date of the receipt of the notice. The lawyer notice was returned to him on 03.10.2011 with an endorsement that intimated and not claimed. The accused did not choose to receive lawyer notice and to pay cheque amount and that the accused is liable to be punished for dishonour of the cheque issued by him due to insufficient of funds in his account.
02. The accused appeared before the Court and he was furnished with copies of documents as contemplated U/Sec. 207 Cr.P.C. The accused was examined U/Sec.251 Cr.P.C. and he denied the case of the complaint U/Sec. 138 R/w.142 of N.I. Act and pleaded not guilty and claimed to be tried.
03. During the course of trial, P.W.1 was examined and Exs.P.1 to P.6 were marked on behalf of the complainant. On the closure of the complainant side evidence the accused was examined U/Sec.313 Cr.P.C.
on the incriminating circumstances appearing against him in the evidence of complainant P.W.1. He denied the same. No witnesses are examined and Ex.D.1 was marked on his behalf.
04.The complainant was examined as P.W.1. Cheque, memo issued for return of cheque, office copy of the lawyer notice, Postal Receipt,
Returned Registered postal cover and Promissory Note were marked as
Exs.P.1 to P.6.
Stamped receipt cum acknowledgment issued by P.W.1 was marked as Ex.D.1.
05.Now the point for determination is:- 3
Whether the complainant proved and established that cheque Ex.P.1 in question was issued by accused to discharge of legally enforceable debt due to him and the same was dishonoured due to insufficient funds in his bank account and whether the accused is liable to be punished for the offence
U/sec.138 R/w.142 of N.I. Act?
As per the evidence of P.W.1 and the contents of Exs.P.1, P.2 and
P.6, the accused borrowed an amount of Rs.50,000/- from him on 31.12.2009 for his family necessities and executed a pronote (Ex.P.6) in his favour on the even date by agreeing to repay the same with interest @ 24% P.A either to him or his order on demand. On 15-09-2011 he has issued a cheque (Ex.P.1) bearing No. 002049 for Rs.50,000/- to be drawn from his account maintained in Corporation Bank, Kankipadu Branch towards part payment of the debt due to him under the pronote (Ex.P.6).
He presented the cheque (Ex.P.1) in his account maintained in Andhra
Bank, Gandhi Nagar Branch, Vijayawada for collection and the said cheque was returned un-paid with an endorsement that “Funds
Insufficient” and the same was informed to him by his bankers with a memo Ex.P.2 dt: 21.09.2011.
Further as per the evidence of P.W.1 and the contents of Ex.P.3 to
P.5, on 30.09.2011 he got issued a lawyer notice to the accused by way of registered post demanding for payment of the amount within 15 days from the date of the receipt of the notice. The lawyer notice was returned to him on 03.10.2011 with an endorsement that intimated and not claimed. The accused did not choose to receive lawyer notice and to pay cheque amount.
06. The accused contented that no notice was served to him as contemplated U/Sec. 138 (b) of N.I. Act and that he is not liable to be prosecuted for the offences U/sec. 138 r/w 142 of N.I. Act.
4
07.According to Section 138 (b) of N.I. Act it is obligatory that notice in writing should be given to the drawyer of the cheque within 30 days of receipt of information by the payee or holder in due course as the case may be from the bank regarding the return of the cheque as unpaid. No particular form of notice is prescribed under proviso (b) of section 138 of N.I. Act. Unless notice is served or deemed to have been served, no cause of action will arise. Unless a notice in writing is received by the drawyer of a cheque the offence would not be constituted. Receipt of notice is absolutely necessary as a pre-condition for constituting such an offence under section 138 of N.I. Act. Very significantly it does not say that it should be sent by registered post or that it should be served by post. When a notice was sent by registered post and address on notice was given correctly and the said notice was returned with endorsement that intimated and not claimed by the addressee, notice would be deemed to be duly served.
The evidence of P.W.1 and the contents of Exs.P.3 to P.5 emphatically reveal that P.W.1 got issued a lawyer notice to the accused within 30 days of receipt of intimation by the banker regarding the return of cheque as un-paid, by way of registered post and the notice sent by way of registered post was returned with an endorsement as intimated and not claimed. In manner of that it is presumed that the notice was duly served to the accused in due course of time and it is not reasonable and sensible to consider the contentions of the accused that no notice was served to him without proving that he is not residing in the given address and the endorsement made on the returned postal cover is false and as such his contentions are liable to be discarded.
08.The accused further contended that the complaint filed by the complainant is not maintainable under law and the same is liable to be dismissed.
5
The evidence of P.W.1 and the contents of Exs.P.1, P.2 and P.6 divulged that the accused borrowed an amount of Rs.50,000/- from
P.W.1 under the pronote Ex.P.6 for his family necessities and agreed to repay the said amount with interest at the rate of 24 % P.A. either to him or his order on demand and later the accused issued a cheque
Ex.P.1 for Rs.50,000/- to be drawn from his bank account towards part payment of the debt due to him under the pronote executed by him and he presented the said in his bank account for collection and the said cheque was returned unpaid with a memo with an endorsement that funds insufficient and he filed this complaint to prosecute him after issuing the statutory notice and that it is not reasonable and justifiable to consider the contentions of the accused that the complaint filed by the complainant against him is not maintainable under law and the same is liable to be dismissed.
09.Further the accused asserted that he tendered and paid
Rs.20,000/- towards full and final settlement of the amount due to the complainant under the cheque and also under the pronote subsequent to issuance of notice and filing of this case.
P.W.1 has acknowledged and conceded in the cross examination that he received Rs.20,000/- from the accused towards full and final settlement of the amount due to him under the cheque and also pronote subsequent issuance of the notice and filing of the complaint.
Under law when a person after receiving notice on dishonour of cheque issued by him, has tender the amount payable by him, he must be deemed to have discharge his obligation and the creditor is bound to accept the tender. Once the complainant agrees to receive the amount towards the liability of the accused during the pendency of the complaint, it amounts to conclude and settle the offence and that the accused could not be said to be guilty of non-payment of the amount.
6
The accused tender the amount payable by him and the complainant agreed to collect the amount towards the liability of the accused during the pendency of the case and he received the amount from the accused towards full and final settlement of the sum due to him under the cheque and also under the pronote and that it amounts to conclude and settle the offence and as such the accused is liable to be acquitted.
10.In the result, accused is found not guilty for the offence Under
Sec.138 R/w.142 of N.I. Act and he is acquitted under Sec. 255(1) Cr.P.C.
(Typed to my dictation to Typist, corrected and pronounced by me in open court, this the 13th day of December, 2013.)
Sd/- K. Siva Ramakrishna,
IV-Addl. Chief Metropolitan Magistrate, Vijayawada.
APPENDIX OF EVIDENCE
Witnesses examined
For Complainant For Defence.
P.W.1: G. Srinivasa ReddyNIL
Documents marked
For Complainant:-
Ex.P.1: Cheque Dt: 15-09-2011 Ex.P.2: Cheque Returned Memo Dt: 21.09.2011 Ex.P.3: Office Copy of Registered legal notice dt: 30.09.2011 Ex.P.4: Postal Receipt Dt: 30.09.2011 Ex.P.5: Returned Registered Notice dt: 03.10.2011 Ex.P.6: Promissory Note dt: 31.12.2009
For Defence:-
Ex.D.1: Stamped Receipt Cum Acknowledge issued by P.W.1.
Sd/- K. Siva Ramakrishna,
IV-Addl. Chief Metropolitan Magistrate, Vijayawada. // TRUE COPY //
IV Addl. Chief Metropolitan Magistrate Vijayawada.
7 8
CALENDER AND JUDGMENT
IN THE COURT OF THE IV ADDL, CHIEF METROPOLITAN MAGISTRATE,
VIJAYAWADA.
CALENDER CASE NO: 409 / 2013
Date of:
1. Offence: 21.09.2011
2. Complaint : 28-10-2011
3. Apprehension of accused : 03.01.2012
4. Commencement of trial : 12.12.2013
5. Closure of Trial : 12-12.2013
6. Judgment : 13.12.2013
07. Name of the complainant :
Ganugapenta Srinivasa Reddy, S/o. Pithireddy, Age 41 years, R/o. 77-33- 23, Shanthinagar, Ajith Singh Nagar, Vijayawada.
8. Name of the accused :
Goddalla Nancharaiah, S/o. Krishna Murthy, Age 53 years, R/o. Laku Road, Kankipadu, Krishna District.
9. Offence : Under Sec. 138 r/w 142 of N.I. Act
10. Finding : Found not guilty
11. Result: The accused is found not guilty for the offence u/s.138 r/w 142 of N.I. Act and he is acquitted U/Sec. 255 (1) Cr.P.C.
12. Explanation for delay : This case was originally taken on file on the file of I ACMM Court, Vijayawada on 12.12.2011. Copies of documents were furnished to the accused on03.01.2012. The case transferred to this court as per the proceedings of the Hon’ble Metropolitan Sessions Judge, Vijayawada in Dis. No. 1145/12.03.2013 and assigned a new number as C.C. No. 409/2013 and on 31.10.2013 the accused was examined U/sec., 251 Cr.P.C. and the trial was commenced on 12.12.2013, PW.1 was examined and Exs.P.1 to P.6 and Ex.D.1 were marked and the complainant’s side evidence was closed on the same day. On 12.12.2013 the accused was examined U/Sec. 313 Cr.P.C. on the incriminating circumstances appearing against him in the evidence of complainant and he denied the same and reported no evidence for his defence and heard the arguments on both sides on 12.12.2013 and judgment pronounced on 13.12.2013. Hence, the delay.
Sd/- K. Siva Ramakrishna,
IV Addl. Chief Metropolitan Magistrate Vijayawada. Copy submitted to:- The Hon’ble Metropolitan Sessions Judge, Vijayawada. // TRUE COPY //
IV Addl. Chief Metropolitan Magistrate Vijayawada.