1
CC. No.1511/2017
IN THE COURT OF THE ADDL. JUNIOR CIVIL JUDGE – CUM - ADDL.JUDL.
MAGISTRATE OF FIRST CLASS AT MADHIRA.
Dated this the 12th day of February, 2025
Present: Sri T. Karthik Reddy Addl. Junior Civil Judge -Cum - Addl. Judicial Magistrate of First Class Madhira.
CC. No. 1511 OF 2017
Between: Thata Dharma Rao, S/o. Kailasam, Age: 55 years, Occ: Business, R/o Wyra Town and Mandal, Khammam District
….....Complainant.
And
Smt. Gade Uma Devi, W/o Madhava Rao, Age: 30 years, Occ: Home Maker, R/o Venkata Krishna Complex, Ramalayam Veedhi, Wyra Town and Mandal, Khammam District. …. Accused
This case coming before me for final hearing on 25.09.2024 in the presence of T.Venkat Rao, Advocate for the Complainant and Sri V.Koteswara Rao, Advocate for the Accused; upon perusing the material papers on record, upon hearing the arguments of both sides and having stood over for consideration till this day this court delivered the following:
J U D G M E N T
1. This is a complaint filed under section 138 read with 142 of the Negotiable
Instruments Act 1881 read with section 200 Code of Criminal Procedure (Cr.P.C) 1973, against the accused, for the offence punishable U/Sec.138 of the Negotiable Instruments
Act 1881 (hereinafter be referred to as N.I. Act).
2.The gist of the complaint is that, the complainant has acquaintance with the accused and out of such acquaintance, the accused, approached the complainant on 20.09.2016 and borrowed an amount of Rs.6,75,000/- (Rupees Six Lakhs Seventy Five
Thousand Only) from the complainant for her family necessities and the accused 2
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executed a promissory note on the same day in favor of the complainant and promised to repay the same together with interest @ 24% per annum either to the complainant or to his order on demand.
3.That the complainant made several oral demands for the repayment of the entire borrowed amount with interest, but the accused postponed the payment on one pretext or the other. Finally, on 21.08.2017 the accused issued a cheque bearing No.026599, in favor of complainant, drawn on Axis Bank Limited, Khammam Branch, for Rs.
6,00,000/- towards part payment of above said debt.
4.The complainant further submits that he presented said cheque in his bank at
Andhra Bank, Wyra Branch, Khammam District, for the realization of cheque amount and was waiting for its realization. But, the cheque issued by the accused was returned, dishonored due to ACCOUNT CLOSED on 19.09.2017. To that effect the
Andhra Bank, Wyra Branch, Khammam, gave memorandum dated 19.09.2017along with returned cheque to the complainant
5.The complainant after receipt of the returned cheque and memo from his banker, got issued a legal notice through registered post with the acknowledgment due on 03.10.2017 to the accused calling for the repayment of said entire cheque amount, within fifteen days from the date of receipt of legal notice and the said notice was served on 06.10.2017. But the accused failed to repay the cheque amount.
6.The complainant filed sworn affidavit incorporating the contents as mentioned by him in his complaint.
7.Upon consideration of the complaint and sworn affidavit, the cognizance as per
Sec.190(1)(a) r/w. Sec 200 of Cr.P.C., for the offence punishable U/sec.138 of NI Act was taken against the accused by my learned Predecessor and the accused was 3
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summoned and she appeared before the court and she was examined under Sec.251 of
Cr.P.C., the substance of accusation for the offence punishable U/Sec.138 of NI Act, was stated to the accused and after notifying the substance of accusation and on question of plea of guilt the accused pleaded not guilty and claimed to be tried. Hence, the trial
8.The complainant in order to prove his case got himself examined as PW1 and he filed his examination in chief affidavit incorporating the contents as stated in the complaint. Therefore, reiteration of those factual matrix will be a redundant task and does not serve any useful purpose. PW1 got exhibited Ex.P1 to Ex.P5 as documentary evidence as mentioned. Ex.P1: is the cheque bearing No.026599 for Rs.6,00,000/- dated 21.08.2017, Ex.P2: is the cheque return memo by branch manager, Andhra Bank, Wyra
dated 19.09.2017, Ex.P3: is the office copy of the legal notice dated 03.10.2017, Ex.P4:
is the postal acknowledgment due dated 06.10.2017, Ex.P5: is the original pro-note
dated 20.09.2016 for the amount of Rs.6,75,000/-
9.During the cross examination of the PW-1 , he testified that the PW.1 is into wine shop business. PW1 is not into finance business. PW1 admitted that he filed a NI
Act case vide CC.No.1513/2017 in the file of Hon’ble Addl. JCJ-Cum-AJMFC Court,
Madhira, against one Mrs.P. Laxmi who is the mother of the accused in this case. In the above CC.No.1513/2017 the consideration on the cheque amount was Rs.
6,50,000/- only. In the present case the consideration passed on the Ex.P5 i.e., a promissory note is for Rs. 6,75,000/-. PW1 admitted that the considerations in the present case and the above mentioned CC.No. 1513/2017 were passed to the accused and her mother in the year 2016. PW1 specified the loan transactions in his income 4
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tax returns for the respective financial year 2016-17 for which the assessment year is 2017-18. PW1 denied that he intentionally posted the said demand notice/Ex.P3 to the wrong address of the accused so as to file a criminal case against her. In the month of
October, 2017 he filed this complaint against the accused in this court. PW1 admitted that at the time of filing the said complaint against the accused he did not annex the
Ex.P5 or a photo copy of the Ex.P5 along with the complaint. PW1 stated the he does not know whether the cheque was dishonored due to the closure of the bank account of the accused. PW1 stated the he does not know whether the bank account of the accused was closed 2 years prior to the submission of the cheque in the bank.
10.PW1 admitted that he approached the accused twice in the month of August, 2017 for the repayment of the debt in lieu of the instrument/Ex.P5 but he did not receive the payment from her and on 21.08.2017 the accused issued a cheque in his favor for payment of consideration which is due on Ex.P5. PW1 stated that he does not have acquaintance with one Mr. Cheepu Venkateswarlu. The Ex.P5 was scribed by one
Mr. Saidulu. The attesting witnesses for the Ex.P5 are one Mr. Cheepu Venkateswarlu and Papaganti Krishnaiah and they came on behalf of the accused. PW1 stated that he does not know whether the attester of Ex.P5 Cheepu Venkateswarlu filed a cheque dishonor case vide CC.No. 1512/2017 against the husband of the accused. PW1 denied that he is just a pawn in the hands of the said Cheepu Venkateswarlu and he filed a false case against the accused at the behest of Cheepu Venkateswarlu and the witness adds that he filed a case against the accused so as to recover his money which is due from her based on Ex.P5. PW1 denied that he forged the Ex.P5 with the help of Cheepu Venkateswarlu so as to support his case. PW1 denied that the said Ex.P5 is ante-dated to the said Ex.P1. PW1 denied that on the said Ex.P5 the signature of the 5
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accused was forged. PW1 denied that there is no legally enforceable debt between him and the accused. PW1 denied that he did not reflect the cash transactions in his income Tax returns for the assessment year 2017-18. PW1 denied that he does not have financial capacity to afford such transactions with the accused and he is ready to file his income Tax returns as and when required by this court. PW1 denied that he concocted story against the accused so as to gain un-lawfully. PW1 denied that he is deposing as false witness.
11.After closure of the complainant’s evidence, the accused was examined U/sec.
313 of Cr.P.C., enabling her to explain personally the incriminating circumstances appearing against her in the evidence of the complainant for which the accused denied the truthfulness of the evidence and she stated that the complainant filed a false case against her, and the accused reported no defence.
12.The counsel for the complainant filed the written arguments and reiterated the contents of the complaint. The counsel for the accused filed the counter written arguments along with few citations to support his contention rebutting the written arguments filed by the counsel for the complainant. Written arguments filed on both sides and perused the same.
13.On consideration of the contentions of both parties and the material on record, the following points that arise for determination are as follows:-
1. “Whether the complainant could establish that the cheque (Ex.P1) was issued for discharging of legally enforceable debt and that the accused committed an offence punishable u/sec.138 read with 142 of N.I Act, 1881?”
2. “Whether the accused rebutted the presumption under Sec’s.118 and 139 of
N.I., Act, 1881?” 6
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3. To what relief?
14.Answer to Points 1 and 2:
Before dwelling in to the facts of the present case, it would be pertinent to
discuss the legal standards required to be met by both sides in the light of the Hon’ble
Supreme Court decision in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities
Ltd., (2000) 2 SCC 745.
15. To establish the offence under Section 138 read with 142 of NI Act, the complainant must fulfill all the essential ingredients of the offence, as mentioned below:
First Ingredient: As per Section 138 of NI Act 1881, the cheque must be drawn by a person on an account maintained by him/her for payment of money and the same is presented for payment within a period of 6 months from the date on which it is drawn or within the period of its validity whichever is earlier; {As per the RBI notification given in the year 2012, the validity period of the cheque is limited to 3 months}
Second Ingredient: The cheque was drawn by the drawer for discharge of a legally enforceable debt or other liability;
Third Ingredient: 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;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonor of cheque from the bank; {As contemplated under section 138(b) of NI Act 1881} 7
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Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice. {As contemplated under section 138(c) of NI Act 1881, which gives rise to the cause of action to file a written complaint against the drawer (accused) of the cheque by following the procedure mentioned under section 142 of NI Act 1881}
16.In addition to the above, the conditions stipulated under Section 142 of NI Act 1881 have to be fulfilled.
17.To rebut the statutory presumption under Section 139 NI Act, the standard of proof is that of the preponderance of probabilities, by which the accused is required to raise a probable defence, so as to create an iota of doubt, regarding the claim of the complainant.
18. To rebut the presumption, it is open to the accused to rely on evidence led by him/her, or the accused can also rely on the materials submitted by the complainant or the circumstances upon which the parties rely in order to raise a probable defence, as specified by the Hon’ble Apex Court in Basalingappa v. Mudibasappa, (2019) 5 SCC 418.
19. The inference of preponderance of probabilities can be drawn not only from the material brought on record but also by reference to the circumstances.
20. The accused by virtue of cross-examining the complainant can rebut the presumption of issuance of cheque in discharging of any debt or other liability.
21.The accused can prove the non-existence of a consideration by raising a probable defense and if the accused is proved to have discharged the onus of proof showing that the existence of consideration was doubtful or improbable, the onus would shift on the complainant who will be obligated to prove it as a matter of fact 8
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and upon his failure to prove would dis-entitle him for the grant of relief under
Section 138 of the NI Act.
22.For better appreciation, the contents of the Section’s 118 and 139 of NI Act 1881 are replicated below.
Section 118:- Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:—
(a) of consideration:—that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
(b) as to date:—that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance:—that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer:—that every transfer of a negotiable instrument was made
before its maturity;
(e) as to order of endorsements:—that the endorsements appearing upon a negotiable instrument were made in the order in which they appear then on;
(f) as to stamp:— that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course:—that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an 9
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offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
Section 139. Presumption in favor of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section138 for the discharge, in whole or in part, of any debt or other liability.
23. Traversing the evidence available on the record, even though the presumptions under sections 118 and 139 of the NI Act 1881 are in the favor of the complainant, they are rebuttable presumptions and the accused was successful enough to rebut the presumptions at least by the benchmark of the preponderance of the probabilities and he was successful enough to disprove the existence of the legally enforceable debt and the financial capacity of the accused to lend such huge amount.
24.In Sanjay Mishra v. Kanishka Kapoor, 2009 SCC OnLine Bom 290, wherein it was held that when there is a categorical admission on the part of the complainant that the amount advanced was not disclosed in income tax returns which would be unaccounted amount and it cannot be said that the liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of the explanation to
Sec.138 of NI Act as such the debt is not recoverable. It was also held by the Hon'ble
Bombay High Court that the amount allegedly lent to the accused by the complainant is unaccounted and not shown in the income tax returns for the relevant year, hence, it is sufficient to hold that the accused was able to rebut the presumption U/Sec.139 of
NI Act by eliciting true facts in the cross examination. When the amount is not legally recoverable, it is difficult to hold that the cheque was issued towards legally enforceable debt invoking presumption U/Sec.139 of NI Act. From not showing the entries in Income Tax Returns, the Court can draw an inference in favor of the 10
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accused, and against the complainant. In the case before us, the complainant is a white ration card holder, and did not adduce any evidence to prove his financial capacity to lend such huge amount of Rs Forty Lakhs, and neither submitted any income tax returns to support his claim.
25.The Hon’ble Apex Court between Rangappa Vs. Sri Mohan reported in (2010) 11
SCC 577 held that once the cheque relates to the account of the accused and he accepts and admits the signature on the said cheque, then initial presumption as contemplated U/Sec.139 of NI Act has to be raised by the court in favor of the complainant. The presumption referred to in Sec. 139 of N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances, but the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence.
26.In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court and in the present case; the accused was successful enough to rebut the presumption as the complainant categorically admitted that he is not having any money lending license and he did not file any income tax returns. Hence the version of the complainant that he lent money of Rs.6,75,000/- (Rupees Six Lakhs Seventy Five Thousand Only) to the accused cannot be trusted upon as there are critical doubts raised on the financial capacity of the complainant. Hence this conduct of the complainant makes this Court to draw an adverse inference regarding the claim of the complainant that the accused borrowed money from him.
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27.Furthermore, the complainant during his cross examination admitted that he filed a NI Act case vide CC.No.1513/2017 in the file of Hon’ble Addl. JCJ-Cum-AJMFC
Court, Madhira, against one Mrs.P. Laxmi who is the mother of the accused in this case. In the above CC.No.1513/2017 the consideration on the cheque amount was Rs.
6,50,000/- only. In the present case the consideration passed on the Ex.P5 i.e., a promissory note is for Rs. 6,75,000/-. PW1 admitted that the considerations in the present case and the above mentioned CC.No. 1513/2017 were passed to the accused and her mother in the year 2016. PW1 further stated that he specified the loan transactions in his income tax returns for the respective financial year 2016-17 for which the assessment year is 2017-18. However, no such documentary evidence was placed before this Court, to substantiate the oral claim of the Complainant, that he filed income tax returns for the financial year 2016-2017.
28.It can be inferred from the above admissions made by the PW.1 that, in the year 2016, he lend on interest basis an amount of Rs 13,25,000/- (Rupees Thirteen
Lakhs Twenty Five Thousand Only) in total i.e., Rs. 6,50,000/- to the mother of the accused and Rs 6,75,000/- to the accused in the year 2016, and such cash transactions were not reflected in his Income Tax returns filed for that respective year.
Furthermore, the complainant doesn’t have any valid money lending license as per the
Telangana Money Lenders Act, 1349 F.
29.Furthermore as per the section 58 of Indian Evidence Act 1872 which is replicated below, the admitted fact need not be proved.
Section 58 of Indian Evidence Act 1872: Facts admitted need not be proved.
No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by 12
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any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
30.Failure of the complainant to answer the questions pertaining to the financial capacity of the complainant and the conduct of the complainant is in such nature that he is into money lending business without valid license and it is an offence as per the
Telangana Money Lenders Act and the base for the issuance of cheque i.e., suit promissory note is not a valid transaction or a legally enforceable one in lieu of the explicit bar under the Telangana Money Lenders Act. Few provisions of the Telangana
Money Lenders Act 1349 F ( Act No. V of 1349 F), are discussed below.
31.Moreover, as per the Telangana Money Lenders Act, as per section ‘3’ of the above Act, “Money lenders to get their names registered” and in failure to do the same, it is a punishable offence as per section 3(5)(b) of the said Act. As per section 9(2) of the said Act, if it is proved the plaintiff is a money lender, without license, the court shall dismiss the suit.
32.As per Section 2(4) of The Telangana Money Lenders Act, 1349 F, the term “loan” is defined as : Loan means a loan secured or unsecured, advanced an interest in cash or in kind, and shall include every transaction which is in substance a loan, but shall not include the following:-
(a) a deposit of money or other property in a Post Office or in a bank or in a company or with a co-operative society;
(b) a loan to or by and deposit with, any society or association registered under any law; 13
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(c) a loan advanced by Government or by any local authority authorized by
Government;
(d) a loan advanced by a bank, a co-operative society or a company;
(e) a sum of money advanced on the basis of a negotiable instrument as defined in [the Negotiable Instruments Act, 1881] other than a promissory note;
(f) a loan advanced to an agricultural laborer by his employer;
(g) a loan advanced by one trader to another trader in the ordinary course of business, in accordance with practice in trade;
(h) a sum of money payable to a trader by a person other than a cultivator or a laborer for articles sold on which interest is charged by reason of non-payment on due date;
The term principal is defined U/Sec 2(5) as:- ”principal” means the amount of loan actually advanced to the debtor;
The term interest is defined U/Sec 2(6) as:- “interest” includes the return to be made expressly or impliedly in excess of the actual amount of loan advanced;
The term interest is defined U/Sec 2(7) as:- “money lender” means a person including a pawn-broker, who, within the meaning of this Act, only advances loan in the ordinary course of his business or does so along with other business, and shall also include the legal representative of such person and the person claiming to be his representative on the ground of succession or assignment or otherwise;
33.Section 3: Money Lenders to get their names registered:
(1) Every officer who has been authorized by Government under this Act shall maintain a register of money-lenders in such form and with such particulars as may be 14
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prescribed, such register shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872.
(2) Every money-lender, in order to get his name registered, shall present an application in writing in the prescribed form to the competent officer and the said officer shall on such application being presented, register the applicant‘s name and grant a license in the prescribed form and written prescribed period:
34.Provided that the licensing authority may, if he has reason to believe that a money-lender is of undesirable conduct, refuse to grant or to renew a license and shall record the reasons therefor. Where the licensing authority is a Tahsildar an appeal from his order shall lie to the Collector and to the [Board of Revenue] where the licencing authority is a Collector. The decision of the appellate authority shall be final.
(3) Every person making an application under sub-section (2) shall pay such licence fee not exceeding twenty-five rupees, as has been fixed for the district concerned.
(4) A licence issued under sub-section (2) shall be valid for one year from the date of issue.
(5) (a) No money-lender shall carry on in any district he business of money-lending without obtaining a licence provided for in sub-section (2);
(b) If any person contravenes the provisions of clause (a), he shall be punished with rigorous imprisonment for a term which may extend to six months or with fine or with both. The fine imposed shall, in case of default, be recoverable as arrears of land revenue. The Collector shall have power to award punishment under this clause. An appeal against his order shall lie to the Sessions Judge;
(c) An offence under this sub-section shall be cognizable and bailable.
(6) [XXX] 15
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35.On the bare perusal of above mentioned section 3 of Telangana Money Lenders
Act, 1349 F “Money Lenders to get their names registered” and as per S. 3(5)(a) no money lender shall carry on in any district the business of money lending without obtaining a license as provided for in S.3(2).
As per S. 3(5)(b) if any person violates the mandate of S.3(5)(a) it attracts a penal punishment.
Section 9: Procedure of Court in suits for recovery of loans.
Notwithstanding anything contained in any law for the time being in force, in every suit relating to a loan:
(1) the Court shall frame and decide the issues whether the money-lender is a money- lender as defined in sub-section (7) of section 2, and whether he has complied with the provisions of section 3 and of clauses (a) and (b) of sub-section (1) of section 5 and sub-sections (1) and (2) of section 6; (2) if it is proved that the plaintiff is a money-lender as defined in sub-section (7) of section 2, but does not hold a licence granted under section 3, the Court shall dismiss his suit; (2-A) if it is proved that the money-lender has not complied with the provisions of clause (a) of sub-section (1) of section 5, or of sub-section (1) of section 6, or of section 8 and the plaintiff‘s claim is established in whole or in part, the Court may, in the circumstances of the case, disallow the whole or any portion of the interest due and may disallow the cost wholly or in part; (3) if it is proved that the money-lender has not furnished the debtor with a statement of account in accordance with the provisions of clause (b) of sub-section (1) of section 16
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5 or of sub-section (2) of section 6, the Court shall, in computing the amount of interest, exclude the interest in respect of every period for which the money-lender has not furnished the debtor with the statement of account: Provided that if the money- lender has, after the prescribed time, furnished the statement of account and the Court is satisfied that there was sufficient cause for not furnishing the statement earlier, the
Court may, inspite of such default, include such period or periods for computing the interest.
Explanation:- If a money-lender has maintained his account and delivered the statement of account in the prescribed form and manner, it shall, inspite of any error or omission, be presumed that he has complied with the provisions of clauses (a) and (b) of sub-section (1) of section 5 and of sub-section (1) and (2) of section 6, if the Court is of opinion that such error or omission is accidental or immaterial and that the accounts are maintained in good faith.
As per S.9(2) of the Act, if it is proved that the plaintiff is a money lender as defined in S.2(7), but does not hold a license granted under section 3, the court shall dismiss the suit.
36. Hence in lieu of the above discussion the promissory note i.e., Ex.P5 which forms the basis for the issuance of Ex.P1 to the complainant by the accused isn’t found to be a valid transaction in lieu of the explicit bar under Telangana Money Lenders
Act. Hence it can be inferred that the cheque i.e., Ex.P1 is not issued for a legally enforceable debt, in lieu of explicit bar on conducting money lending business without valid license, the claim of the complainant/PW1 fails.
37. Thus this Court opines that the accused has successfully, rebutted the presumptions which are in the favour of the complainant and now the onus shifts on 17
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the complainant to establish the facts pertaining to the existence of the legally enforceable debt for the issuance of the cheque, which the complainant failed to do so.
38.The counsel for the complainant filed the decision of the Honorable High Court of Himachal Pradesh, decided on 12.01.2024, vide criminal appeal number 556 of 2016, in the case of Satyaveer Singh Vs Suraj, 2024 SCC OnLine HP 252 wherein the
Honorable High Court, held that, presumptions under section 118(a), 139 of NI Act are
in the favor of the complainant, and further discussed on the aspects pertaining to the
Section 269SS of the Income Tax Act 1961 and the Honorable High Court further dwelled into the aspect of money lending. This Court, is not inclined to accept the plea of the counsel of complainant, that there exists a legally enforceable debt. However, the Honorable Supreme Court in the case of Rangappa vs. Sri Mohan, (2010) 11 SCC 441 clearly stated that, these presumptions are rebuttable in nature, and the accused was successful enough to rebut the presumptions in favor of the complainant and casted a serious doubt regarding the existence of a legally enforceable debt and regarding the financial capacity of the complainant.
39.The case of the complainant has to stand on its own footing rather than on the weakness in the other side case. Even The accused counsel was successful, enough to impeach the credibility of the complainant/PW-1, as envisaged under the Section 155(3) of the Indian Evidence Act, 1872, during the cross-examination of PW-1, and raised critical doubts pertaining to the existence of the legally enforceable debt and the financial capacity of the complainant, which created a huge hindrance to the case of the complainant.
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40.On careful scrutiny of the judicial precedents cited supra and the facts at hand, it is crystal clear that the complainant could not successfully prove his case by proving that the cheque Ex.P1 was issued by the accused in favor of complainant, in discharge of legally enforceable debt. Hence, the point No.1 is answered in favor of the accused and against the complainant and as the accused could raise a probable doubt with regard to the existence of legally enforceable debt by rebutting the presumption available to the complainant U/Sec .139 NI Act, thus, point No.2 is answered in favor of the accused and against the complainant.
41.Answer to point No.3:- For the aforesaid reasons and findings in Points No.1 and 2, this Court proceeds to pass the following result:-
In the result, the accused is found not guilty for the offence punishable
U/Sec.138 of NI Act and consequently he is acquitted U/Sec.255 (1) of Cr.P.C 1973.
The personal bond and the surety bond of the accused shall stand canceled after the lapse of appeal period.
Typed to my dictation on a computer by Stenographer Grade-III, corrected and pronounced by me in the open court on this the 12th day of February, 2025.
ADDL. JUDL. MAGISTRATE OF FIRST CLASS,
MADHIRA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution:For Defence: Nil.
PW.1: T.Dharma Rao
EXHIBITS MARKED
Prosecution:
Ex.P1: is the cheque bearing No.026599 for Rs.6,00,000/- dated 21.08.2017, 19
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Ex.P2: is the cheque return memo by branch manager, Andhra Bank, Wyra dated 19.09.2017, Ex.P3: is the office copy of the legal notice dated 03.10.2017, Ex.P4: is the postal acknowledgment due dated 06.10.2017, Ex.P5: is the original pro-note dated 20.09.2016 for the amount of Rs.6,75,000/-
Defence: --Nil--
Material Objects: -Nil-
ADDL.JUDL. MAGISTRATE OF FIRST CLASS,
MADHIRA.