Spl. Mobile Court, Ongole Page No.1
IN THE COURT OF JUDICIAL MAGISTRATE OF I st CLASS,
SPL. MOBILE COURT – CUM – IV-AJCJ(JUNIOR DIVISION),
ONGOLE.
PRESENT: Kum. A.Salomi,
Judicial Magistrate of I-Class,
Spl. Mobile Court – cum – IV-AJCJ, Ongole.
Friday, this the 17th day of January, 2025
Calendar Case No.439 of 2017
Between :
Gollapothu Kodhanda Rao, S/o.Venkaiah, aged about 37 years, Fish Business, Fish Market, Damodhara Sanjeevaiah Market, Shop No.12, Beside A.P.S.R.T.C Depot, Ongole, Prakasam District.
… Complainant AND
Panamala Hari Prasad, S/o.Manmadha Rao, aged about 40 years, Fish Business, Fish Market, Damodhara Sanjeevaiah Market, Shop No.2, Beside APSRTC Depot, Ongole, Prakasam District. … Accused
This case is presented before me on 08.01.2025 for final hearing in the presence of Sri. I.Venkateswarlu, learned counsel for
Complainant, and of Sri. V.Tirumala Krishna Yadav, learned counsel for
Accused, and upon hearing the arguments on both sides and after perusing the material available on record and having stood over for consideration till this day, this Court delivered the following:
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// J U D G M E N T \\
1. This complaint is filed by the complainant U/sec.138 of
Negotiable Instrument Act, 1881, (for brevity ‘the NI Act’) with the following allegations:-
2. The averments of the case of the Complainant as set out in the complaint in brief as follows:-
(a) That, on 25.03.2012 to 07.11.2012 accused purchased the fishes from the complainant, as part of the business as per the books of account maintained by the complainant by 09.10.2012 the accused owned of Rs.3,00,000/-. In-spite of several demands made by the complainant, accused had issued a cheque bearing No.385736 for Rs.3,00,000/- on 09.10.2012 drawn on ING Vysya Bank Limited, Ongole towards part payment of the amount due by accused.
(b) It is his further case that, he presented the above said cheque for collection through his banker i.e., Union Bank of India on 30-11-2012 for collection, and on 03.12.2012 the said ING Vysya Bank
Limited, Ongole returned the cheque with an endorsement of “Funds
Insufficient”and the same was issued with a memo on 30.11.2012.
Thereafter, the complainant got issued a legal notice to the accused through registered post with acknowledgment on 21.12.2012 requesting him for payment of the cheque amount, and accused got returned the said legal notice by managing the postman with an endorsement that no such addressee. Therefore, the complainant constrained to file this complaint
U/sec.138 of Negotiable Instrument Act, against the accused.
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3. The complaint was taken on file by my Learned Predecessor for the offence Punishable U/sec.138 Negotiable Instrument Act, 1881, against the accused.
4. After serving of summons, on appearance of accused before this court, the copies of documents were furnished to the accused as required U/sec.207 Cr.P.C.
5. Then, the accused was examined U/sec.251 Cr.P.C and the substance of accusation levelled against him, in the complaint was read over and explained to him in Telugu for which, he denied the same and pleaded not guilty and claimed to be tried.
6. The record was transferred from II-A.M.M, Court, Ongole, as per the proceedings of the Hon’ble Prl. District and Sessions Judge, Ongole in Dis.
No.912 dt.05.02.2016 and renumbered in this court as CC No.439/2017.
7. In order to prove the case of the complainant, he examined himself as PW1, and Exs.P1 to P7 were marked, on his behalf, the details of which are mentioned at the appendix of evidence.
8. After closure of complainant side evidence and the accused was examined U/sec.313 Cr.P.C and the incriminating material against him in the evidence of PW1 was explained to him in Telugu, for which, he denied the same and reported defence evidence.
9.Accused himself examined as DW1. No documents were marked on his behalf.
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10. Heard arguments on both sides. Perused the material on record.
To avoid repetition the arguments of both the counsels shall be dealt with in the foregoing Paragraph while discussing the relevant facts and evidence.
11. Now the point of determination is:-
(a) Whether there existed any legally enforceable debt between the complainant and the accused?
(b) Whether the accused issued cheque for in discharge of such legally enforceable debt?
(c) Whether the accused is able to rebut the evidence of the complainant? and If so, what extent?
(d) Whether the complainant could be able to bring home the guilt of accused for the offence charge U/sec.138 of Negotiable Instrument Act, 1881?
Before appreciating the evidences and merits of the complaint, it
would be appropriate to refer to the basic ingredients of Section 138 of
Negotiable Instrument Act which are as follows;-
U/Sec.138 of Negotiable Instrument Act 1881, makes dishonor of cheque for an offence in order to establish an offence U/sec.138 of NI Act, the following ingredients must be favour by the complainant.
1. The cheque was drawn by the accused on account maintained by him for payment of money and the same is present for payment with in the period of 3 months from the date on which it is drawn are with in the period of its validity
2. The cheque was drawn by the accused for discharge of any legally enforceable debt or other reliability.
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3. The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honor the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank.
4. A demand of the said amount has been made by the complainant being payee of the cheque i.e., complainant herein by a notice in writing given to the accused with in 30 days of the receipt of information of the dishonor of the cheque from the bank.
5. The accused failed to make the payment of the said amount of money within 15 days from the date of the receipt of notice.
Since the above points are interrelated to each other, this court is inclined to discuss the same together.
12.To fulfill above said five ingredients, during the course of trial on behalf of the complainant. The complainant was examined as PW1 and he deposed that, the averments of this complaint that accused purchased fishes for Rs.3,00,000/- on credit basis from 25.03.2012 to 07.11.2012 in the name of his father tag I.e., PMR, and the same was entered in his account books and it was filed by the PW1 and it was marked as Ex.P1 and
P2, accused issued cheque bearing No.385736 on 09.10.2012 for
Rs.3,00,000/- drawn on ING Vysya Bank Limited Ongole on 30.11.2012 it was marked as Ex.P2. The complainant presented the said cheque for collection at Union Bank of India, and the said cheque was returned for funds Insufficient it was informed to him by his banker through a memo on 03.11.2012 marked as Ex.P4. Thereafter, he got issued a legal notice on 21.12.2012 to accused to his address, office copy of legal notice is marked
Spl. Mobile Court, Ongole Page No.6 as Ex.P5, demanding the accused for payment of amount covered under
Ex.P3 dishonoured cheque and the said notice was returned unserved on 28.12.2012 with an endorsement “No Such addressee” as evident from
Ex.P7/returned postal cover. Therefore, he nowhere go, he filed this complaint against the accused on 04.03.2013.
13.The rival contention of the accused has seen from his evidence as DW1, complainant is a stranger to him and he had not issued cheque to complainant, he gave his cheque to One Sami Suresh, the said Sami Suresh gave his cheque to the complainant and got filed this complaint against him, he also deposed that, One Sami Suresh also filed a complaint against him in this court. He further deposed that, complainant had no financial capacity to lend amount to him or others. This complaint is filed against him with false averments. In support of his contention accused relied on the judgment of the Hon’ble Supreme Court inM/s. Rajco Steel enterprises Vs. Kavitha saraff and another
In this case the apex court held that, no valid documentary evidence could be produced to show that, the said cheque was issued in discharge of a legally enforceable debt. In this case the complainant failed to show the legal enforceable debt or other liability for issuance of cheque then the Hon’ble Apex court upheld the dismiss the petition.
14.From the above said inconsistent defence of accused he is not denying that Ex.P3 cheque belongs to him and admitting his signature on
Ex.P3.
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15.The learned counsel for the complainant argued that, by examining himself as PW1 and by marked Exs.P3 to P6. The complainant has proved the 1st, 3rd and 5th ingredients has stated above that the complainant has presented the said Ex.P3 cheque drawn on account of accused with his bank, but it was returned for the reason Funds
Insufficient. Later, the complainant also demanded the accused to repay the amount due under dishonoured cheque by issuing Ex.P5 notice which was returned “Unserved” with an endorsement “no such addressee”.
The learned complainant counsel vehemently argued that, accused was residing in the same address he managed the postal authorities and he further contended that accused filed petition U/sec.315 Cr.P.C., the address shown in that petition and Ex.P5 notice address was same. However, accused neither paid the amount nor gave any reply. Complainant counsel argued that, under Ex.P1 and P2 accused take fishes from complainant. The contention of the complainant is the amount due under Ex.P1 and P2 is legally enforceable debt, accused issued Ex.P3 cheque in his favour. Hence, accused is liable for the offence U/sec.138 of NI Act.
16.The learned counsel for the accused argued that there is no legally enforceable debt. The learned defence counsel further contended in
Ex.P1 and P2 books nowhere accused name was mentioned. The learned defence counsel further argued that, Ex.P3 was issued to One Sami Suresh, the complainant obtained the cheque from Sami Suresh and also the signature in Ex.P3 is not belongs to accused. Further, accused counsel contended that, accused had no account in ING Vysya Bank, Limited. There
Spl. Mobile Court, Ongole Page No.8 are strike-offs in Ex.P1 and P2. The learned defence counsel vehemently argued that, there is no signature of the persons and whose names was mentioned in Ex.P1 and P2, entire cross examination of PW1 is revolved around the above said contention of accused.
17.Perused the evidence of PW1 shows that nowhere it was suggested to PW1 in the cross examination by accused that Ex.P3 cheque was not drawn on his account, the said account does not belongs to him,
Ex.P4 cheque return memo clearly shows that, Ex.P3 was drawn on the account of accused and it was returned dishonoured for the reason “Funds
Insufficient” not “Signature Differs”. As per U/sec.146 of N.I Act Ex.P4 is a genuine document and accused is not denied Ex.P4 and it has to be informed that accused is admitting that Ex.P3 has drawn on his account.
Thus, the complainant could prove the issuance of Ex.P3 cheque issued by accused to him.
18.Therefore, accused is under an obligation to rebut the said statutory presumption drawn in favour of the complainant because the presumption is not in itself evidence but only make a prima-facie for a party for whose benefit exists.
19.It is settled legal position that the reverse onus clause
U/sec.139 of N.I Act becomes operative once the signature on the cheque is admitted and in such situation obligation shifts upon accused to discharge presumption imposed upon him. However, the standard of proof which is required to rebut the statutory presumption U/sec.138 r/w 139 of the N.I
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Act by the accused is the “Preponderance of probabilities”. The accused is not required to prove his case beyond all reasonable doubt.
20.The core contention of the accused is Ex.P1 and P2 are not come under legally enforceable debt, and also accused contended that there is no signature of accused in Ex.P1 and P2. On careful scrutiny of Ex.P1 and
P2 there was no signature of accused in Ex.P1 and P2 as it is the account books maintained by the complainant/PW1 who purchased the fishes on credit basis. The Judgment filed by the learned defence counsel is no where applicable to this case, as in this case the account books which was maintained by PW1 for his business purpose is filed by him. Even though it is a bunch of papers but it is the papers which was used as accounts for
PW1 business. The learned complainant counsel argued that there is no particular books has to used for accounts. In Ex.P1 and P2 there is a names, who was taken fishes from him on credit basis. Even assume the names in
Exs.P1 and P2 are not the persons who purchased fishes then how come the members in Exs.P1 and P2 are not taken action against PW1 for misusing their names for business purpose. In Exs.P1 and P2 there is only name and amount and also date was mentioned. As PW1 is the seller of the fishes due to that he only maintain the account to give voucher to the persons who purchased the fishes and also accused raised defence that there is no account on the name of accused in Exs.P1 and P2 and the same is admitted by PW1. Whereas, PW1 mentioned in his chief affidavit that, accused borrowed fishes in the name of his father tag i.e., PMR, on perusal of the
Exs.P1 and P2 in the name of PMR there was many transactions was
Spl. Mobile Court, Ongole Page No.10 occurred. The learned defence counsel nowhere posed any suggestion with regard that, accused purchased fishes in the name of PMR and also not posed suggestions with regard to accused nowhere borrowed fishes on credit basis in the name of PMR, it proves that, issuance of Ex.P3 under
Exs.P1 and P2 is legally enforceable debt. Here this court highlighted
U/sec.138 of NI Act definition that “any debt or liability is come under legally enforceable debt”. Here, Ex.P1 and P2 debt is other debt the same is come under legally enforceable debt then accused issued Ex.P3 to clear legally enforceable debt. Here this court relied on the dicta of Hiten Sagar
and another Vs IMC Limited and another vs and another 2001(3)
MHLJ 659 “any liability occurred in the section is only to mean that any kind of liability of the drawer and not any other’s liability, unless the payee, the drawer, and the original debtor entered into any agreement to that effect.” Thereby the plea of accused having no weigh and failed to rebut the statutory presumptions u/sec.118 and U/sec.139 of NI Act.
21. The Second Defence:-
The 2nd defence raised by the accused is that, he gave his cheque to One Sami Suresh. It is elicited from his evidence as DW1 that he had not give any complaint against PW1 and also did not issued any legal notice to Sami Suresh for misusing his cheque and that except his oral evidence, there is no other proof to say that he gave his blank cheque to
Sami Suresh. DW1 admitted that, he was accused in CC No.435/2017 which was filed by Sami Suresh. Moreover Sami Suresh already filed a case against accused by using the cheque which was issued by accused, when
Spl. Mobile Court, Ongole Page No.11 only one cheque was given to Sami Suresh the same was used by him to file the complaint against the accused. How came accused signature cheque arrived in the hands of complainant is nowhere explained by accused. Even assume for a moment that accused had nowhere issued cheque, as an ordinary prudent man no person will be kept quite for misusing cheques which was given for security purpose. Thereby the plea of accused having no weigh and failed to rebut the statutory presumptions u/sec.118 and
U/sec.139 of NI Act.
22.The learned counsel for the accused further contended that,
PW1 had not stated his source of income in the complaint or in his evidence and PW1 also did not filed any Civil suit for recovery of money which itself clearly proves that PW1 is not solvent person to pay court fee if he file the
Civil Suit for recovery of amount and by simply pay Rs.2/- Stamp fee, he filed this complainant. In this regard it is pertinent to note that it was held by the Hon’ble High Court of A.P in case of Dr. Battula Parameswara
Reddy v/s Charity International Trust, Chittoor town rep. by its
Secretary C. Karunakara Babu(died) & Others 2015 (3) ALT (Crl.)
141 A.P that mere non filing of the suit by itself is not substantial and cogent that there was no legally enforceable debt that it was held by the
Hon’ble High Court that
“The object and intention of these penal provisions of
Chapter XVII (Sections 138–147), in particular, Sections 138 & 139 (besides civil remedy), are to prevent issuing of cheques in playful manner or with dishonest intention or with no mind to honour or without sufficient funds in
Spl. Mobile Court, Ongole Page No.12 the account maintained by the drawer in Bank and induce the Payee/Holder or Holder in due course to act upon it. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. Since a cheque that is dishonoured may cause uncountable loss, injury or inconvenience to the Payee due to the later’s unexpected disappointment, these provisions incorporated are in order to provide a speedy remedy to avoid inconvenience and injury to the Payee and further to encourage the culture of use of cheques and enhancing credibility of the instruments as a trustworthy substitute for cash payment and to inculcate faith in the efficacy of Banking operations.”
23.Therefore in view of the above observations of the Hon’ble High
Court this court has not considering the above contention of the accused that since the Civil suit was not filed by the complainant, it can be inferred that Ex.P1 and P2 is not genuine document and thus there is no legally enforceable debt between complainant and accused to issue Ex.P3 cheque and also that complainant is not having financial capacity to lend the amount to accused.
24. This court relied on the decision of the Hon’ble Apex Court in
ROHIT BHAI JIVANLAL PATEL VS. STATE OF GUJARAT
“held that to be drawn presumption U/sec.139 of NI Act the onus shifted to the accused and unless the accused has discharged the onus by bringing on record such facts and circumstances as to saw the “Preponderance of Probability” filling in his favour, in view of the complainant case could not have been raised for want of evidence regarding the source of funds for advancing
Spl. Mobile Court, Ongole Page No.13 loan to the accused which should establish relevant for consideration had been as a way to accused has produced on record such facts/material/circumstances which could be of a reasonable probable defence.”
25.Further it was observed by the Hon’ble Supreme court in the case of Basalingappa vs. Mudibasappa, (2019) 5 Scc 418 relied on by the accused himself that “where the accused is able to rebut the case of the complainant, then only complainant due arise to prove his case and the presumptions held not valuable and this benefit vanishes and the complainant is standard on his own legs, when the accused is unable to rebut , this is not required and the case may be disposes of only at this stage the court is look into the capacity of the complainant. The capacity of the complainant has not the parameters at initial burden but only with the accused rebuts the case of the complainant then the complainant must establish its capacity to lend the amount.”
26.Therefore this court cannot be find any force in the above said contention of accused with regard to the financial capacity of the complainant. Thereby the plea of accused having no weigh and failed to rebut the statutory presumptions u/sec.118 and U/sec.139 of NI Act.
27. The Third Defence:-
The 3rd defence raised by the accused is that, the complainant had not sent Ex.P5. Thereby the complainant failed to fulfill the mandatory ingredients U/sec.138(e) of NI Act. The learned defence counsel high- lightened the admission of DW1.
Spl. Mobile Court, Ongole Page No.14 “it is true I file U/sec.315 Cr.P.C petition on 03.12.2024 and in that petition I mentioned my address is shop NO.2, Damodara Sangeevaiah fish market………”.
The address which was admitted by DW1 is the same address on
Ex.P5. As seen from Ex.P7 return postal cover, it was returned with an endorsement “no such addressee”. Perusal on the record also shows that summons of this case and also warrant execution against accused is the same address of Ex.P5 and also, the learned counsel for the accused is contended that complainant failed to examine the postman to prove endorsement on Ex.P7 who is its author. However, in view of the admission of the address shows in Ex.P7 returned postal cover, as his address by accused this court is of the opinion that the burden is on the accused disprove the endorsement on Ex.P7/returned postal cover, but accused is fixing burden on the complainant by cleverly arguing before the court and suppressing the admission in his evidence. In this regard it is pertinent to note that since accused is not denying the address shown in Ex.P5 notice.
As per sec. 27 General Clause Act, it is deemed that the accused is residing in the address to which Ex.P4 notice was sent. Further the main purpose of giving statutory notice of the accused is to give an opportunity to pay the dishonoured cheque amount within 15 days receipt of notice, but no other- way and when accused is strongly denied the case of complainant but he did not borrowed the fishes for credit basis and did not issue the cheque, which he failed to prove the “Preponderance of Probabilities”, simply for the reason that legal notice was not served on accused or that it was issued to
Spl. Mobile Court, Ongole Page No.15 own address of the accused the entire case of complainant cannot be vitiated.
28.It was held by the Hon’ble supreme court in the case of
C.C. Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555 “It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clause Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation.”
29.Here it is not the case of the accused that if he received the
Ex.P5 notice, he would have repaid the cheque amount. Hence in view of the above judgment, this court also do not find any force in the contention of the accused that Ex.P5 notice was not received by him. Thereby the plea of accused having no weigh and failed to rebut the statutory presumptions u/sec.118 and U/sec.139 of NI Act.
30.The learned defence counsel for the accused further argued that, the presumption U/sec.139 of NI Act is a legal presumption which is to
Spl. Mobile Court, Ongole Page No.16 be raised when the complainant proves the existence of legally enforceable debt.
31.In view of the elaborated discussion held above, the complainant was successfully raised the presumption U/sec.139 of the Act, when the onus shifted to the accused, he failed to discharge the same by bringing on record of such facts and circumstances to show the “Preponderance of Probabilities” titling in his favour. Thereby, the accused failed to bring on record that, why he failed to take recourse for the return of his signed cheques from PW1 which he issued as a security purpose, and failed to take any action against the complainant.
32. Thereby this court in “TRIYAMBAK S. HEDGE VS. SRIPAD 2022(1) CIVIL COURT CASES 098(S.C.)” “when the signature on cheque is not disputed presumption would arise section 139 of the Act in favour of the complainant who was holder of the cheque, said presumption remains till contrary is proved. To rebut the presumption U/sec.139 of the Act the accused should raise his defence at the time of his first available opportunity to the accused, when such contention also not put forth in statement recorded U/sec.313 Cr.P.C accused also did not choose to examined himself or any witnesses in his record the case put forth by the accused does not satisfy the requirement of rebuttal even if tested on touch stone of “Preponderance of probability.”
Now turning on the merits of the accused at hand, as can be seen from the material available on record, though the accused either admitted or denied his liability. But it is the initial burden on the complainant to prove the basic facts for raising the statutory presumption in
Spl. Mobile Court, Ongole Page No.17 terms of section 139 of NI Act., for that purpose as discussed in earlier point in detail the complainant has proved all the mandatory ingredients u/sec.138 of NI Act, and it is not the contention of the accused that he has not issued Ex.P1 and P2 and denied his signatures.
33. In LAILA FINANCE LTD., HYDERABAD VS. S.A.ENGINEERING
SERVICES, VIJAYAWADA [2012 (2) ALD (Crl.) 298 (AP)] Our Hon’ble
High Court, while considering the presumption U/sec.139 of NI Act held inter alia thus:
“9. The presumption u/sec.139 of Act is rebutable presumption, but the burden of proving that a cheque had not been issued in discharge of a debt or liability is on the accused.”
34. Recently in SHREE DANESHWARI TRADERS VS. SANJAY JAIN
AND ANOTHER [2020 (2) ALD (Crl.) 742 (SC)]The Hon’ble Supreme
Court had inter alia considered the provisions of section 138 and 139 of the
NI Act and held manifestly, thus:
“16. Under section 138 of the Negotiable Instruments Act,
Once the cheque is issued by the drawer a presumption under section 139 of the NI Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred under section 138 of the NI Act is for the discharge in whole or in part of any debt or other liability”.
35.The standard of proof which is required to rebut the statutory presumption U/sec.138 r/w 139 of the act by the accused is by
Spl. Mobile Court, Ongole Page No.18 “preponderance of probabilities” the accused has not required to prove his case beyond reasonable doubt. However mere possible explanation or denial of legally enforceable debt or issuance of cheque is except from the accused in a case U/sec. 138 of NI Act, but it must be more than a possible explanation by way of rebutable evidence.
36.It was held by the Hon’ble Apex court in Vijay Vs. Laxman and other reported in 2014(1) ALT (Crl.) 342 SC when accused has to rebut the presumption U/sec.139, the standard of proof for doing so is that of “preponderance of probabilities which means an ordinary prudent man thinks, in a given circumstances. In other words the defence raised by way of rebutable evidence must be probable and capable of being accepted by the court. Sec.139 of the act is an example of a reverse onus clause that has been included in furtherance of legislative objective of improving and credibility of negotiable instruments, in the absence of compelling justifications, reverse onus clause usually imposed an evidentiary burden and not a persuasive burden.”
37.From the above discussion this court has come to the conclusion that accused failed to establish by “Preponderance of Probabilities” a probable defence that there existed no legally enforceable debt between himself and complainant and Ex.P3 was misused by One Sami Suresh and also that complainant has no financial capacity to lend the amount. Thereby accused failed to rebut the presumption drawn against him and infavour of complainant. On the other hand the evidence of PW1 with Ex.P1 and P2 capable for presumption U/sec.118 and 139 of NI Act clinchingly proved that
Spl. Mobile Court, Ongole Page No.19 accused committed the offence U/sec.138 of NI Act. Hence it can be said that complainant is able to establish the guilt of accused for the offence u/sec.138 of NI Act
38.Before concluding the matter, it is necessary to refer to the judgment of the Hon’ble S.C rendered in SUGANTHI SURESH KUMAR
VS. JAGADESSAN [2002(2) SCC 420], wherein, while considering the inadequate sentence imposed on the accused charged u/sec.138 of the NI
Act, the Hon’ble Supreme Court expressed its displeasure about the courts imposing a flea-bite sentence on such accused and in that process it was inter alia held thus:
“12. No drawer of the cheque can be allowed to take dishonor of the cheque issued by him light heartedly. The very object of enactment of provisions like section 138 of the NI
Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount at-least during the pendency of the case.”
39. Again in R.VIJAYAN v. BABY [AIR 2012 SC 528] The Hon’ble
Supreme Court, inter alia while considering the aspect of awarding compensation to the complainant out of the fine amount imposed on the accused held thus:
“As the provisions of chapter 17 of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special
Spl. Mobile Court, Ongole Page No.20 circumstance, in all cases of conviction, uniformly exercise the power to levy fine up-to twice the cheque amount(keeping in view the cheque amount and the simple interest there on at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way restitution in regard to the loss on account of dishonor of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest there on at a reasonable rate.
Uniformity and consistency in deciding similar cases by different courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice.”
40. Yet again SOMNATH SARKAR v. UTPAL BASU MALLICK [AIR 2014 SC 771]. The Hon’ble Supreme court inter-alia while considering the aspect of awarding compensation to the complainant from out of the fine amount imposed on the accused held thus:
“The second aspect relates precisely to the need for appreciating that the power to award compensation is not available under section 138 NI Act. It is only when the court has determined the amount of fine that the question of paying compensation out of the same would arise. This implies that the process arises two stages. First, when the court
Spl. Mobile Court, Ongole Page No.21 determines the amount of fine and levies the same subject to the out limit, if any, as is the position in the instant case.”
In view of aforesaid discussions, this court holds that, the complainant is able to establish the guilt of the accused for the offence
U/sec.138 of NI Act and thereby, the accused is liable for Punishment.
41. In the result, and for the reasons indicated above, this court find that, accused is found guilty for the offence punishable U/sec.138 of the N.I
Act. Accordingly, accused is convicted under section 255(2) of Cr.P.C.
Typed to my dictation directly on computer by the Stenographer, corrected and pronounced by me in open Court, this the, 17 th day of January, 2025.
Sd/- A.Salomi
Judicial Magistrate of I Class,
SMC-cum-IV-AJCJ Ongole.
42. Quantum of sentence:
When the accused is questioned on the quantum of sentence informing that, as per negotiable Instrument act, 1881 he can be sentenced imprisonment for a term, which may be extended to T wo(2) years or with finewhich maybe extended to Twice the amount of cheque or with both.
43. For which the accused pleaded that:
Accused have a old age mother and recently his daughter had died. He is the sole bread winner of the family. Hence, he prays to take lenient view in imposing sentence.
Spl. Mobile Court, Ongole Page No.22
44. Having due regard to the nature of the offence proved against the accused, which is a socio-economic offence affecting the very credibility of the transactions being made through cheques which in turn also have great impact on the society at large, this Court is not inclined to invoke the provisions of Section 360 of the Cr.P.C. or the provisions of the Probation of Offenders Act, 1958.
having bearing in mind the avowed and laudable object of the provisions of the
NI Act.
Having due regard to the law lay down in the judgments of the
Hon’ble Supreme Court rendered in SUGANTHI SURESH KUMAR VS.
JAGADESSAN, in R.VIJAYAN VS. BABY, and in SOMNATH SARKAR VS.
UTPAL BASU MALLICK(referred to Supra), the accused is hereby to sentenced to undergo Simple imprisonment for a period of One (1) Y ear and also to pay a fine of Rs.3,60,000/-( Rupees three lakhs sixty thousand only)and in default thereof, to suffer Simple imprisonment for a period of One(1) Month. Out of the said amount of fine, a sum of
Rs.3,55,000/- (Rupees three lakhs fifty five Thousand only) is directed to be paid to the complainant towards compensation and rest of the fine amount of Rs.5,000/-(Rupees Five thousand Only) is directed to be remitted to the state within 30 daysfrom this day. As can be seen from the record, it is axiomatic that, the accused was in judicial custody on 31.08.2021 to 06.09.2021, i.e., (7 days), which fact is also affirmed by the learned counsel for the accused in open court. Hence, the accused is entitled to claim set-off as contemplated under section 428 of Cr.P.C. Office
Spl. Mobile Court, Ongole Page No.23 is also directed to furnish a copy of this judgment to the accused free of cost forthwith and the accused is hereby directed to collect the same without fail.
45.The accused is hereby informed that, he has got a right of appeal to assail this judgment before the Hon’ble Superior Court and in that regard he can also approach the Hon’ble District Legal Service Authority,
Ongole for seeking legal aid if he is inclined and so advised. A copy of this judgment shall also be submitted to the Hon’ble District Legal Services
Authority, Ongole, in deference to the instructions of our Hon’ble High court contained in circular No.3/2018 in R.O.C No.228/SO/2018, dt 15.03.2018.
Typed to my dictation directly on computer by the Stenographer , corrected and pronounced by me in open Court, this the, 17 th day of January, 2025.
Sd/- A.Salomi
Judicial Magistrate of I Class,
SMC-cum-IV-AJCJ Ongole.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT:- FOR DEFENCE:-
PW1: G.Kodhanda Rao DW1: P.Hari Prasad
EXHIBITS MARKED
FOR COMPLAINANT :-
Ex.P1Account book from 23.03.2012 to 22.06.2012 containing 140 pages.
Ex.P2Account book from 22.06.2012 to 09.11.2012 containing the 140 pages.
Ex.P3Original cheque bearing NO.385736 dt.09.10.2012.
Ex.P4InG Vysya Bank, Ongole return memo dt.30.11.2012 with endorsement of Funds Insufficient.
Ex.P5Office copy of legal notice dt.21.12.2012.
Spl. Mobile Court, Ongole Page No.24
Ex.P6Postal Receipt bearing No.RN636195101IN dt.21.12.2012
Ex.P7Return Postal cover Dt.28.12.2012.
FOR DEFENCE : NIL
MATERIAL OBJECTS
– Nil –
Sd/- A.Salomi
Judicial Magistrate of I Class,
SMC-cum-IV-AJCJ Ongole.
// True Copy //
Judicial Magistrate of I Class,
SMC-cum-IV-AJCJ, Ongole.
Spl. Mobile Court, Ongole Page No.25
CALENDER AND JUDGMENT
IN THE COURT OF JUDICIAL MAGISTRATE OF I st CLASS,
SPL. MOBILE COURT – CUM – IV-AJCJ(JUNIOR DIVISION),
ONGOLE.
PRESENT: Kum. A. Salomi,
Judicial Magistrate of I-Class,
Spl. Mobile Court – cum – IV-AJCJ, Ongole.
Friday, this the 17th day of January, 2025
Calendar Case No.439 of 2017
Between :
Gollapothu Kodhanda Rao, S/o.Venkaiah, aged about 37 years, Fish Business, Fish Market, Damodhara Sanjeevaiah Market, Shop No.12, Beside A.P.S.R.T.C Depot, Ongole, Prakasam District.
… Complainant AND
Panamala Hari Prasad, S/o.Manmadha Rao, aged about 40 years, Fish Business, Fish Market, Damodhara Sanjeevaiah Market, Shop No.2, Beside APSRTC Depot, Ongole, Prakasam District. … Accused
Charges under section(s) : U/sec. 138 of NI Act.
Date of occurrence:09-10-2012 Date of report:11-02-2013 Date of appearance:19-02-2015 Date of release on bail:06-09-2021 Date of commencement of trial:11-11-2022 Date of closure of trial:21-06-2024 Date of hearing :08-01-2025 Date of Judgment:17-01-2025
Spl. Mobile Court, Ongole Page No.26
Result of the Case : In the result, and for the reasons indicated above, this court find that, accused is found guilty for the offence punishable U/sec.138 of the N.I Act. Accordingly, accused is convicted under section 255(2) of Cr.P.C. Theaccused is hereby sentenced to undergo Simple imprisonment for a period of One (1) Y ear and also to pay a fine of
Rs.3,60,000/-( Rupees Three lakhs sixty thousand only)and in default thereof, to suffer Simple imprisonment for a period of One(1)
Month. Out of the said amount of fine, a sum of Rs.3,55,000/- (Rupees
Three lakhs fifty five Thousand only) is directed to be paid to the complainant towards compensation and rest of the fine amount of
Rs.5,000/-(Rupees Five thousand Only) is directed to be remitted to the state within 30 daysfrom this day. As can be seen from the record, it is axiomatic that, the accused was in judicial custody on 31.08.2021 to 06.09.2021, i.e., (7 days), which fact is also affirmed by the learned counsel for the accused in open court. Hence, the accused is entitled to claim set-off as contemplated under section 428 of Cr.P.C. Office is also directed to furnish a copy of this judgment to the accused free of cost forthwith and the accused is hereby directed to collect the same without fail.
The accused is hereby informed that, he has got a right of appeal to assail this judgment before the Hon’ble Superior Court and in that regard he can also approach the Hon’ble District Legal Service Authority,
Ongole for seeking legal aid if he is inclined and so advised. A copy of this judgment shall also be submitted to the Hon’ble District Legal Services authority, Ongole, in deference to the instructions of our Hon’ble High Court contained in circular No.3/2018 in R.O.C No.228/SO/2018, dt 15.03.2018.
Compensation amount of Rs.3,55,000/- :- Not Paid
Fine amount of Rs.5,000/-:- Paid
Explanation for the delay :The case was taken on file on 14.03.2013. On 19-02-2015 case copies furnished to the accused. On 30-12-2016 accused was examined u/sec.251 Cr.P.C, accusation u/sec.138 of N.I Act, have been framed, read over and explained to him in Telugu, for
Spl. Mobile Court, Ongole Page No.27 which he pleaded not guilty and claimed to be tried. Later, the record was transferred from II-A.M.M, Court, Ongole, as per the proceedings of the
Hon’ble Prl. District and Sessions Judge, Ongole in Dis. No.912 dt.05.02.2016
and renumbered in this court as CC No.439/2017. On 31.08.2021 accused was produced through PC No.2447 of Ongole I-Town P.S, on execution of
NBW in this case for the offence U/sec.138 of N.I Act, and sent the accused to judicial custody. On 11.11.2022 on behalf of complainant, PW1 was examined, Exs.P1 to P7 were marked. After closure of the complainant side evidence. On 02.07.2024 accused was examined u/sec.313 Cr.P.C by explaining the incriminating portion of complainant evidence, in question form, in Telugu, for which he denied, reported defence evidence. On 02.12.2024 accused was examined as DW1 and no exhibits are marked on defence side. On 02.01.2025 accused counsel reported that, no further defence evidence and then posted for arguments, and on 06.01.2025 heard arguments on complainant side and posted for accused counsel side arguments and 08.01.2025 head arguments on accused side. On 17.01.2025
Judgment pronounced in open court. Hence the delay.
Sd/- A.Salomi
Judicial Magistrate of I Class,
SMC-cum-IV-AJCJ Ongole.
Copy Submitted to:-
1) The Hon’ble I-Addl. District & Sessions Judge, Prakasam District, Ongole.
2) The Hon’ble Secretary, District Legal Service Authority, Ongole.
// True Copy //
Judicial Magistrate of I Class,
SMC-cum-IV-AJCJ, Ongole.