Smt V. Devi Sai Srivani

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IN THE ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS:: KAVALI.

PRESENT: Smt. V. Devi Sai Srivani

Addl. Judicial Magistrate of First Class, Kavali.

Wednesday, this the 24th day of March,2021

C.C NO.455/2018

Between:

Bandaru Mallikarjuna, S/o. Yarra Kondaiah, Hindu, Aged about 40 years, Resident of Kondapuram Road, Kaligiri Village and Mandal, SPSR Nellore District. … Complainant.

And

K.Subramanyam, S/o. Venkataswamy,Hindu, Aged about 55 years, Employee in SBI Main Branch, Near Railway Station, Gudur Town and Mandal, SPSR Nellore District. … Accused.

This case is coming on 04-03-2021 for final hearing before me in the presence of Sri.P. Sreenivasa Rao, and Sri S.V.Rajendra Prasad, advocates for the Complainant and Sri.CH.Suneel Babu, Advocate for accused upon hearing the arguments on both sides and the matter is having stood over for consideration to this day, this Court delivered the following:

J U D G M E N T

1. This is a private complaint filed under sections 190 and 200 of

Cr.P.C. by the complainant against the accused for the offence under

Secs.138 and 142 of Negotiable Instruments Act 1881.

2. The brief contents of the Complaint are as follows:-

A.The accused had borrowed an amount of Rs.3,40,000/- from the complainant for the purpose of his family necessities on 24.11.2017 and executed a promissory note in favour of the complainant agreeing to repay the same with interest rate of is 24% per annum.

B.Subsequently, after repeated demands made by the complainant to discharge the above said promissory note, the accused 2 issued cheque bearing No.030759 of State Bank of India, Gudur Branch

dated 24.11.2017 for sum of Rs.3,40,000/- towards full and final

payment to the complainant under the above said promissory note.

C.Thereafter the complainant presented the above said cheque at State Bank of India, Kaligiri Branch on 03.02.2018 for collection. But the cheque was returned and bounced with a cheque return memo of

State Bank of India, Kaligiri Branch, dated 03.02.2018 with an endorsement“ Funds insufficient“. The accused having knowledge about insufficient funds in his account, issued the cheque to the complainant with an intention to cause inconvenience to the complainant and thereby has committed offence punishable under Sections-138 and 142 of N.I

Act and played deception punishable under sec.420 IPC.

D.Thereafter the complainant got issued a registered legal notice dated 26.02.2018 calling upon the accused to pay cheque amount within 15 days. The legal notice was served to accused on 27.02.2018 by registered post but he has not given any reply and not complied with the notice. Hence, the complaint.

3.After recording sworn statement, complaint was taken on file. The accused after receipt of summons appeared before this Court and received the copies furnished to him. He was examined under

Sec.251 Cr.P.C. and he denied all the allegations as mentioned in the complaint.

4.The complainant himself got examined as PW1 and the attested of promissory note dated 24.11.2017 is examined as PW2 during the course of trial. Exs.P1 to P5 are marked. On behalf of the accused no oral or documentary evidence is adduced. P.W.1:

B.Mallikarjun. Ex.P1 is the Cheque bearing No.030759 Dt.24.11.2017 for

Rs.3,40,000/-State Bank of India, Gudur Branch, Ex.P2 is the Cheque return memo issued by the State Bank of India Kaligiri Branch 3 dt.03.02.2018, Ex.P3 is the Office copy of the legal notice Dt.26-02-2018 along with postal receipts Ex.P4 is the Served acknowledgment

Dt.27.02.2018 and Ex.P5 is the Original promissory note Dt.24.11.2017 for Rs.3,40,000/-

5.Upon closure of complainant’s side evidence, accused was examined under Sec.313 Cr.P.C., about incriminating evidence appeared against him from complainant side witnesses and he denied the same.

6. Now the points for determination are:--

i. Whether the subject matter of the cheque i.e.,Ex.P1 was

issued by the accused for a legally enforceable debt.?

ii. If so,whether the accused rebutted the presumptions

under the Negotiable Instruments Act, 1881?

iii. Whether the complainant proved the guilty of the

accused beyond all reasonable doubt for the offence

punishable under Sec.138 and 142 of N.I Act 1881?

7.Heard the counsel for the complainant and the counsel for the accused.

8. POINT No.1:-

In order to bring the accused under ambit of S.138 NI Act, the following essentials must be proved:

i. That there is a legally enforceable debt ii. That the cheque was drawn from the bank from the bank for discharge in whole or in part any debt or other liability which pre- supposes legally enforceable debt iii. That the cheque so issued has been returned due to insufficiency funds iv. Whether cheque has been presented to the bank within period of six months/ three months from the date on which it is drawn or within the period of its validity, whichever is earlier; v. The cheque of holder in due course of cheque as case may be makes a demand for the payment of the said amount of the money giving a notice in writing to the accounts within 30 days of the receipt of information from the bank is regarding the return of the cheuqe as anybody; drawer to take face to make payment of said amount of money to the payee or case may be, to the holder in due course, within 15 days of the receipt of the said notice.

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9.The case of the complainant as per the evidence of P.Ws.1 is that the accused had borrowed an amount of Rs.3,40,000/- from the complainant on 24.11.2017 for his family necessities and executed

Ex.P5 promissory note in favour of the complainant on the same day, agreeing to repay the same along with interest @ 24% pa. Subsequently, on repeated demands made by the complainant, accused issued Ex.P1 for Rs.3,40,000/- towards full and final payment of the amount covered under the promissory note. Then, the complainant presented the same for collection on 03.02.2018 which was dishonoured and returned stating “funds insufficient”in the account of the accused, with a cheque return memo under Ex.P2. Then, the complainant got issued a legal notice under Ex.P3 which was served. Postal acknowledgment is Ex.P4. The accused gave no reply and not complied with the notice.

On the other hand, the case of the accused as per the cross- examination of P.Ws.1 is that the accused is drawing salary of

Rs.1,00,000/- approximately and has no necessity to borrow amount from the complainant.

And that no date was mentioned on Ex. P2 cheque return memo and that he has never executed the promissory note and also never issued any cheque in favour of complainant. Hence case is not maintainable.

10.In the back drop of the rival contentions, this court has given anxious consideration to the case papers. A careful scrutiny of the documents relied by the complainant under Ex.P1 to P5 goes to show that, statutory requirements of section 138 of N.I. Act is complied with and this complaint is filed within time. Thus, complainant relied on the statutory presumptions enshrined under section 118 read with section 139 of N.I. Act. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence and rebut the presumption available to the complainant. Let us examine whether 5 accused has successfully rebutted the presumptions of law. It is the specific defence of the accused that, he has not issued any cheque and not executed promissory note in favour of the complainant. But on record except mere putting of suggestions, no material is placed before this court to rebut the presumption.The only evidence that remains

before this court is the evidence of complainant as P.W.1 and 2. Let us

see the evidence of P.W.1 who is the complainant herein.

11.He filed his chief affidavit which is nothing but reiteration of the contents of the complainant. Through P.W.1 his documents under

Exs.P1 to P5 were marked. Ex.P5 is demand promissory note said to have been executed by the accused when he borrowed Rs.3,40,000/- from P.W.1. Ex.P1 is present disputed cheque issued on 24.11.2017 for an amount of Rs.3,40,000/- towards full and final satisfaction of the amount covered under Ex.P5 promissory note. P.W.1 was cross-examined by the counsel for the defence. During the cross-examination it was elicited that the complainant does fruit business and accused is an accountant in Bank. The complainant gets Rs.20,000/- per month. He gave the amount to the accused in his houses at Kaligiri and on the same day the accused executed promissory note and later also issued the cheque. The complainant denied of accused having no necessities in borrowing the amount from him as he is drawing salary of

Rs.1,00,000/- approximately. The complainant admitted of not verifying the cheque return memo. PW1 further denied that the complaint is not maintainable and that accused never issued any cheque.

12.On behalf of the complainant, the attested of Ex. P5 promissory note is examined as PW2. The evidence of PW2 is in same voice with that of PW1. PW2 testified that he is attester of Ex. P5 and that in his presence the accused borrowed amount from the complainant. During the cross examination,PW2 testified that he knew 6 accused since 2014 and he is bank employee. PW2 also testified that he do not know PW1 directly but he was introduced to him by the accused. He acted as attester at the request of accused. PW2 denied that due to disputes between accused and PW1 regarding an amount of

Rs.40,000/-, PW1 fabricated Ex.P5 for Rs.3,40,000/-. He denied that accused never borrowed any amount from the complainant .

13.Altogether, the cross-examination of P.W.1 initially conducted by the defence raised a defence that there is no necessity for the accused to borrow amount from the complainant. But absolutely, the particulars regarding how the said documents went into hands of PW1 and what is the reason the accused did not collect those documents and whether there are any disputes in between P.W.1 and accused and what is the reason to PW1 taking advantage documents and filed the present complaint are not found in the cross-examination. During cross examination of PW2, the learned defence counsel raised a suggestion that Ex. P5 is fabricated document. But the accused has not preferred to sent promissory note for expert to prove that the contents of it are fabricated and that he has not executed the same.

14.Coming to the aspect of non mentioning date on Ex.P2 as raised by defence, to prove the same the accused has not examined any bank official with respect to non mentioning of date on Ex.P2 return memo. In light of Section 146, N.I. Act, a trial court shall presume the fact of dishonour of a cheque on the grounds mentioned in the bank slip or return memo having official marks on production of the same. Thus, as Ex.P2 clearly contains the reasons for the return of Ex.P1 cheque with seal and signature of bank official on it, the said contention is also in favour of complainant.

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15.As seen from the evidence of P.W.1 the counsel for the defence not even denied the capacity of P.W.1 to advance that much of amount to the accused herein. Mere putting suggestions that, the documents were fabricated and that accused has no necessity to borrow amount from complainant is not enough to prove the probabilities in the case of the defence. The counsel for the defence not even tried to elicit the reason why the present complaint was filed by PW1 taking advantage of those documents. As seen from the evidence of P.W.1 there are no disputes in between P.W.1 and the accused to file the present complaint.

16.In decision reported in, AIR 2019 SC 1876, Rohitbhai

Jivanlal Patel Vs. State of Gujarat and Another; wherein it is held that; "(E). Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque -Insufficiency of amount- Plea of issuance of cheques in favour of friend and its misuse by complainant - Failure of accused to show reasonable probability of existence of transaction with his friend- Evidence of friend not supporting his case- Accused not denying his signatures on cheques but attempting to suggest availability of his signatures on blank stamp paper with friend - No cogent reasons for him to sign blank stamp paper- Cheques with all relevant particulars are same cheques forming subject- matter of complainant's case-

Accused liable to be convicted."

17. As seen from the evidence of P.W.1 it is fully supported with

Ex.P1 to P5 to show the transaction covered under Ex.P5 when the accused had borrowed a sum of Rs.3,40,000/- for which he issued Ex.P1 towards full payment covered under Ex.P5 which is for a legally enforceable doubt. The defence which is unbelievable to show his contention with regard to no necessity to accused in borrowing the amount from complainant and the reason for filing the case taking 8 advantage of said documents are all silent in the case of the accused.

As seen from the evidence of P.W.1 coupled with PW2 and Exs.P1 & P6, absolutely, there is no material even to believe the probabilities in the case of the accused. In view of the above discussion, Point No.1 is answered in favour of the complainant.

18. Point No.2:

In view of the findings in Point No.1, the accused who failed to rebut the presumptions under the provision of Negotiable Instrument

Act and failed to discharge his burden that Ex.P1 is not for a legally enforceable debt, this point is also answered in favour of the complainant.

19. Point No.3:

In view of the findings in Points 1 & 2, the evidence adduced by the complainant coupled with his documents shows Ex.P5 is for legally enforceable debt and when the complainant presented Ex.P1 for collection through his account the same was dishonored for the reason funds insufficient in the account of accused under Ex.P2 made the complainant to issue Ex.P3 which is a legal notice demanding the accused to make payment covered under the cheque within 15 days, from the date of receipt of notice which was received by the accused under Ex.P4 further shows that the complainant complied all the necessary ingredients to prove the guilty of the accused for the offence under Sec.138 N.I Act and thereby bring him to home for the present offence. Mere denial of issuing cheque would not be sufficient as it is time and again noted that once the cheque is issued duly signed by the accused, the presumption goes against him as per Sec.139 of the

Negotiable Instruments Act. As absolutely there is no defence to discard the case of the complainant made this court to say that the complainant proved the guilt of the accused beyond all reasonable doubt.

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20.In the result, accused is found guilty for the offence under sec.138 of Negotiable instruments Act and the accused is liable for punishment for the offence under sec.138 of Negotiable Instruments Act.

Typed to dictation to Stenographer-G-III, typed by him, corrected and pronounced by me in open court on this the 24th day of March 2021.

Sd/-V.Devi Sai Srivani

ADDL. JUDL. MAGISTRATE OF FIRST CLASS,

KAVALI.

21. When I questioned about the quantum of sentence the accused reported that I have faced financial difficulties and also Ihave look after the welfare of my entire family and prays to show mercy. As per the records, the accused committed offence under sec.138 of

Negotiable Instruments Act issued cheque for Rs.3,40,000 /- which is a monitory offence. Hence in the circumstances I am not inclined to invoke P.O.Act or section 360 Cr.PC.

22.In the result, accused is found guilty for the offence under

section 138 of Negotiable Instruments Act and accused is convicted

under Section 255 (2) Cr.P.C. Accordingly, he is sentenced to undergo

Simple Imprisonment for a period of 6 months. The accused is ordered

to pay an amount of Rs.3,40,000/- (Rupees Three lakhs Forthy

thousand only), which is Ex.P1 cheque amount to the complainant

towards compensation under Section 357(3) Cr.P.C., The accused is

apprised his right of appeal and legal aid.

Typed to dictation to Stenographer-G-III, typed by him, corrected and pronounced by me in open court on this the 24th day of March 2021.

Sd/-V.Devi Sai Srivani

ADDL.JUDICIAL MAGISTRATE OF FIRST,CLASS,

KAVALI.

APPENDIX OF EVIDENDE

WITNESSES EXAMINED

For Prosecution : For Defence :

P.W.1: Bandaru Mallikarjun - None - 10

DOCUMENTS MARKED

For Prosecution :

Ex.P1:Cheque bearing No.030759 Dt.24.11.2017 for Rs.3,40,000/-State Bank of India, Gudur Branch.

Ex.P2:Cheque return memo issued by the State Bank of India Kaligiri Branch dt.03.02.2018

Ex.P3:Office copy of the legal notice Dt.26-02-2018 along with postal receipts.

Ex.P4:Served acknowledgment dt.27.02.2018.

Ex.P5:Original promissory note dt.24.11.2017 for Rs.3,40,000/-.

For defence: - NIL -

Sd/-V.Devi Sai Srivani

ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS,

KAVALI.

True Copy//

A.J.M.F.C.,Kavali.

1 CC No.37/2018 (NI Act)

IN THE COURT OF THE ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS:

KAVALI.

PRESENT: Smt. V.DEVI SAI SRIVANI, Addl.Judicial Magistrate of first Class,Kavali

This the Wednesday, 17th day of March, 2021

C.C NO.37/2018

Between:

Male Malakonda Reddy, S/o. of Kota Reddy, Hindu, Aged about48 Years, Resident of Door. No.11-33-630, Tufan Nagar,Kavali Town, SPSR Nellore District. ..…… Complainant

And

Pillalla Kameswara Rao, S/o.Kistaiah,Hindu, Aged about 50 years, Employee in panchayat Raj, Kavali Mandal, Residing near Jayausha School Bazar, Santhi Nagar, Kavali Town, SPSR Nellore District. ……. Accused

This case is coming on 03-03-2021 for final hearing before me in the presence Sri. Md.Zakeer Hussain, Advocate for the Complainant and of Sri S.V.Rajendra Prasad, Advocate for accused upon hearing the arguments on both sides and the matter is having stood over for consideration to this day, this Court delivered the following:

J U D G M E N T

1.This is a private complaint filed under sections 190 and 200 of

Cr.P.C. by the complainant against the accused for the offence under Secs.138 and 142 of Negotiable Instruments Act 1881.

2. The brief contents of the Complaint are as follows:-

A. The accused had borrowed an amount of Rs.3,00,000/- from the complainant for the purpose of his family necessities on 26.04.2015 and executed a promissory note in favour of the complainant on the same day. The agreed rate of interest is 24% per annum. Subsequently, on repeated demands made by the complainant accused issued cheque bearing No.611627 dt.

29.08.2017 for a sum of Rs.3,00,000/- drawn on State Bank of India, Kavali towards part satisfaction of the promissory note debt.

2 CC No.37/2018 (NI Act)

B.The complainant presented the same for collection at Canara

Bank, Kavali Branch on 31.08.2017. But the said cheque was dishonoured for the reason funds insufficient in the account of the accused and duly intimated to the complainant by way of cheque return memo dated 01.09.2017.

C.Then, the complainant got issued a legal notice dated 11.09.2017 demanding the accused to make payment of the amount covered under the cheque within 15 days. The accused refused to the receive the said notice and kept quiet without making any payment to the complainant. Hence, the complaint.

3.After recording sworn statement, complaint was taken on file. The accused after receipt of summons appeared before this Court and received the copies furnished to him. He was examined under Sec.251 Cr.P.C. and he denied all the allegations as mentioned in the complaint.

4. On behalf of the complainant, he was examined himself as P.W.1 and Exs.P1 to P4 are marked. On behalf of the accused no oral or documentary evidence is adduced. Ex.P1 is the Cheque bearing No.611627 Dt.29.08.2017 for

Rs.3,00,000/- in State Bank of India, Kavali, Ex.P2 is the Memo of Canara Bank

Dt.01.09.2017, Ex.P3 is the Office copy of the legal notice Dt.11.09.2017, Ex.P4 is the refused noticed Dt.12.09.2017. Ex.P5 is the certified copy of promissory note dt.26.04.2015 executed for Rs.3,00,000/-.

5.Upon closure of complainant’s side evidence, accused was examined under Sec.313 Cr.P.C., about incriminating evidence appeared against him from complainant side witnesses and he denied the same.

6. Now the points for determination are:

i. Whether the subject matter of the cheque i.e., Ex.P1 was

issued by the accused for a legally enforceable debt.?

ii. If so, whether the accused rebutted the presumptions

under the Negotiable Instruments Act, 1881?

iii. Whether the complainant proved the guilty of the accused

beyond all reasonable doubt for the offence punishable

under Sec.138 and 142 of N.I Act 1881?

3 CC No.37/2018 (NI Act)

7.Heard the counsel for the complainant and the counsel for the accused.

8. POINT No 1:-

In order to bring the accused under ambit of S.138 NI Act, the following essentials must be proved:

i. That there is a legally enforceable debt ii. That the cheque was drawn from the bank from the bank for discharge in whole or in part any debt or other liability which pre- supposes legally enforceable debt iii. That the cheque so issued has been returned due to insufficiency funds iv. Whether cheque has been presented to the bank within period of six months/three months from the date on which it is drawn or within the period of its validity, whichever is earlier; v. The cheque of holder in due course of cheque as case may be makes a demand for the payment of the said amount of the money giving a notice in writing to the accounts within 30 days of the receipt of information from the bank is regarding the return of the cheuqe as anybody; drawer to take face to make payment of said amount of money to the payee or case may be, to the holder in due course, within 15 days of the receipt of the said notice.

9.The case of the complainant as per the evidence of P.Ws.1 coupled with Exs.P1 to P5 is that the accused had borrowed an amount of Rs.3,00,000/- from the complainant on 26.04.2015 for his family necessities and executed

Ex.P5 in favour of the complainant on the same day, agreeing to repay the same along with interest @ 24% pa. Subsequently, on repeated demands made by the complainant, accused issued Ex.P1 for Rs.3,00,000/- towards part payment of the amounts covered under the promissory note. Then, the complainant presented the same for collection on 13.12.2017 which was dishonoured and returned for the reason funds insufficient in the account of the accused, with a cheque return memo under Ex.P2. Then, the complainant got issued a legal notice under Ex.P3 which was returned unserved for the reasons the addressee refused to receive notice under Ex.P4.

On the other hand, the case of the accused as per the cross-examination of P.W.1 and his written submissions is that he never borrowed any amount nor executed the promissory note in favour of complainant. And his signature was 4 CC No.37/2018 (NI Act) taken on white paper. There is variation of signature of accused on the stamp as well as at the bottom of Ex. P5 promissory note. As per the copy of promissory note supply to him as well as copy filed before this court along with complaint, the sum was mentioned as Rs.30,000/- on the top of promissory note whereas in Ex. P5 the sum was mentioned as Rs.3,00,000/-. And that the signature of the accused on the cheque was forged one which went into the hands of the complainant. who got filled the present case.

10.In the back drop of the rival contentions, this court has given anxious consideration to the case papers. A careful scrutiny of the documents relied by the complainant under Ex.P1 to P5 goes to show that, statutory requirements of section 138 of N.I. Act is complied with and this complaint is filed within time. Thus, complainant relied on the statutory presumptions enshrined under section 118 read with section 139 of N.I. Act. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence and rebut the presumption available to the complainant. Let us examine whether accused has successfully rebutted the presumptions of law. It is the specific defence of the accused that, he has not issued any cheque in favour of the complainant. Ex.P.1 cheque does not bear his signature and the same is forged one. But on record except mere putting of suggestions, no material is placed before this court to rebut the presumption. The only evidence that remains before this court is the evidence of complainant as

P.W.1. Let us see the evidence of P.W.1 who is the complainant herein.

11.He filed his chief affidavit which is nothing but reiteration of the contents of the complaint. Through P.W.1 his documents under Exs.P1 to P5 were marked. Ex.P5 is certified copy of demand promissory note said to have been executed by the accused when he borrowed Rs.3,00,000/- from P.W.1.

Ex.P1 is present disputed cheque issued on 29.8.2017 for an amount of

Rs.3,00,000/- towards part satisfaction of the amount covered under Ex.P5 promissory note. P.W.1 was cross-examined by the counsel for the defence.

During the cross-examination it was elicited that the complainant knew the 5 CC No.37/2018 (NI Act) accused since 5 years. The complainant gave an amount of Rs.3,00,000/- to the accused which he borrowed from one Ravindra Reddy. Further the learned counsel for the defence put suggestions that the signature on Ex.P1 cheque is not that of the accused and that amount was mentioned as Rs.30,000/- instead of Rs.3,00,000/- to the copy of promissory note given to the accused. Another suggestion as to the debt being not a legally enforceable debt is also put forth by the defence. The complainant has categorically denied all the suggestions put by the defence.

12.Altogether, the cross-examination of P.W.1 and the oral contentions of the accused raised a defence that the signature on the impugned cheque is forged one and Ex.P1 is not for a legally enforceable debt.

But absolutely, no other cogent material is placed on record by the accused except putting mere suggestions.

13. As seen from the evidence of P.W.1 the counsel for the defence even denied the capacity of P.W.1 to advance that much of amount to the accused herein. Before concluding, I find it relevant to cite the case of

Rohitbhai Jivanlal Patel v. State of Gujarat reported in 2019 (5) SCALE

138 In this case, “even after purportedly drawing the presumption under

Section 139 of the N.I. Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. The

Supreme Court observed that this approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant.” 6 CC No.37/2018 (NI Act)

In the instant case, accused failed to elicit facts and circumstances showing the incapacity of complainant in lending Rs.3,00,000/-.

A mere suggestion or question on the financial competence of the complainant will not suffice in rebutting the presumption under section 139, the burden of which remains on the defence.

14.Here, it is also relevant to say one of the point of defence that was found in the cross-examination of P.W.1 is about cheque being forged. The counsel for the defence not even tried to send Ex.P1 to the expert in proving his contention. So, the contention of the accused regarding forgery of EX.P1 is also not proved which further shows the case of the complainant that the accused who borrowed the amount under Ex.P5 executed the said document.

15.Coming to the aspect of mentioning Rs.30,000/- on the top of promissory note copy supplied to the accused instead of Rs.3,00,000/-, this court observed that in Ex.P5 promissory note and on the copy of the same supplied to accused, though figure in top column is mentioned wrong, the body of the said promissory note everywhere contains the words “three lakhs only.”

It is a settled rule under S.18 of NI Act that, words will prevail over figures if stated differently. Therefore, the said plea raised by the defence holds of no use as the words are mentioned clearly as “three lakhs” in all copies of promissory notes on record.

16. As seen from the evidence of P.W.1 it is fully corroborated with

Ex.P1 to P5 to show the transaction covered under Ex.P6 when the accused had borrowed a sum of Rs.3,00,000/- for which he issued Ex.P1 towards part payment covered under Ex.P5 which is for a legally enforceable doubt. Be that as it may, Section 20 of Negotiable Instruments Act enables the complainant to fill up the incomplete cheque. No doubt in the present case the accused has taken the contention of forged signature. However, said aspect is not proved through cogent and consisting evidence and by eliciting the probabilities. Such being the case, the complainant being holder due course, is entitled to complete the cheque. As seen from the evidence of P.W.1 coupled 7 CC No.37/2018 (NI Act) with Exs.P1 & P5, absolutely, there is no material even to believe the probabilities in the case of the accused. It shows the case of the complainant that the accused who borrowed the amount under Ex.P5, issued Ex.P1 which is for a legally enforceable debt. In view of the above discussion, Point No.1 is answered in favour of the complainant.

17. Point No.2:

In view of the findings in Point No.1, the accused who failed to rebut the presumptions under the provision of Negotiable Instrument Act and failed to discharge his burden that Ex.P1 is not for a legally enforceable debt, this point is also answered in favour of the complainant.

18. Point No.3:

In view of the findings in Points 1 & 2, the evidence adduced by the complainant coupled with his documents shows Ex.P5 is for legally enforceable debt and when the complainant presented Ex.P1 for collection through his account the same was dishonored for the reason funds insufficient in the account of accused under Ex.P2 made the complainant to issue Ex.P3 which is a legal notice demanding the accused to make payment covered under the cheque within 15 days, from the date of receipt of notice which was refused by the accused under Ex.P4 further shows that the complainant complied all the necessary ingredients to prove the guilty of the accused for the offence under Sec.138 N.I Act and thereby bring him to home for the present offence. As absolutely there is no defence to discard the case of the complainant and there is no reply from the accused why he refused to receive the notice made this court to say that the complainant proved the guilty of the accused beyond all reasonable doubt.

19.In the result, accused is found guilty for the offence under sec.138 of Negotiable instruments Act and the accused is liable for punishment for the offence under sec.138 of Negotiable Instruments Act.

Typed to dictation to Stenographer-G-III, typed by him, corrected and

pronounced by me in open court on this the 17th day of March 2021.

Sd/- V.DEVI SAI SRIVANI,

ADDL. JUDL. MAGISTRATE of 1st CLASS,KAVALI.

8 CC No.37/2018 (NI Act)

20. When I questioned about the quantum of sentence the accused reported that he is not having wife and have to look after his unmarried daughter and prays to mercy.

As per the records, the accused committed offence under sec.138 of Negotiable Instruments Act issued cheque for Rs.3,00,000/- which is a monitory offence. Hence in the circumstances I am not inclined to invoke

P.O.Act or section 360 Cr.PC.

21.In the result, accused is found guilty for the offence under

section 138 of Negotiable Instruments Act and accused is convicted

under Section 255 (2) Cr.P.C. Accordingly, he is sentenced to undergo

Simple Imprisonment for a period of 6 months. The accused is ordered

to pay an amount of Rs.3,00,000/-, which is Ex.P1 cheque amount to

the complainant towards compensation under Section 357(3) Cr.P.C.,

The accused is apprised his right of appeal and legal aid.

Typed to dictation to Stenographer-G-III, typed by him, corrected and pronounced by me in open court on this the 17th day of March 2021.

Sd/- V.DEVI SAI SRIVANI,

ADDL. JUDICIAL MAGISTRATE, OF FIRST CLASS,

KAVALI.

APPENDIX OF EVIDENDE

Witnesses Examined

For Prosecution : For Defence :

P.W.1 : M. Malakondareddy - None -

DOCUMENTS MARKED

For Prosecution : Ex.P1: Cheque bearing No.611627 Dt.29.08.2017 for Rs.3,00,000/- in State Bank of India, Kavali. Ex.P2: Memo of Canara Bank Dt.01.09.2017 Ex.P3: Office copy of the legal notice Dt.11.09.2017 Ex.P4: Refused noticed Dt.12.09.2017 Ex.P5: Certified copy of promissory note dt.26.04.2015 executed for Rs.3,00,000/-.

For defence:- Nil.

Sd/- V.DEVI SAI SRIVANI,

ADDL. JUDICIAL MAGISTRATE, OF FIRST CLASS,

KAVALI. // True Copy//

A.J.M.F.C.,KVL.

1 CC No.604/219

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS,KAVALI.

PRESENT : Smt V. DEVI SAI SRIVANI

Additional Judicial Magistrate of I Class, Kavali

Thursday, this the 18th day of March, 2021

CALENDAR CASE No.604/2019

(Crime No.193/2019 of Kavali Rural P.S.)

Between:-

State represented by Inspector of Police, Kavali Rural P.S. …Complainant.

And

1. Alamuri Brahmaiah, S/o. Jan Saidulu, 22 years, Caste by Musilm, Anjaneepuram Village, Piduguralla Mandal, Guntur District

2. Ragipati Mallaiah, S/o. Yalamandaiah, 31 years, caste by SC.Madiga, Karampudi Village and Mandal, Guntur District.

3. Vasanthavarapu Sreenu @ Sreenivasarao, S/o. Chenchaiah, 43 Years, Caste by Rajaka, Balachandranagar, Karampudi Town, Guntur District.

4. Gundla Badharaiah, S/o.Badaraiah,55 years, Cast by Gouda, Karampudi Village and mandal, Guntur District. … Accused.

This case is coming on 15.03.2021 before me for final hearing in the presence of Assistant Public Prosecutor for the complainant and of

Sri.P.Sreenivasa Murthy, Counsel for the accused and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The accused persons 1 to 4 arrayed before this court for the offence punishable U/Secs.353,379 IPC and Section. 21(1),(4) of

MMRADA in Cr.No.193/2019 of Kavali Rural PS.

2. The brief facts of the prosecution case are that:

A. On 26.09.2019 around 2.00 am, PW3-T. Arunakumari, Sub-

Inspector of police, Kavali Rural PS has received credible information that 2 CC No.604/219 lorries bearing No. AP 07 TJ 1545 and AP 07 TJ 2545 on transporting sand illegally from Nellore-Kavali road opposite to Blue-moon dabha at NH-16.

Immediately she left police station along with her staff LW2-G.

Ravichandra Kumar, LW3-D. David Das, PW2-G. Yesebu, LW5-P. Dasarada

Ramaiah, LW6-U.Venkata Krishnaiah and LW7- G. Ramesh and proceeded to Blue-moon dabha and stated vehicle checking. At about 2.45 am when the said two lorries are coming, PW3 stopped them and asked for records. Then the lorry drivers got down, pushed the police staff and fled away by causing obstruction to law full duties.

B.The police caught hold of them and Pw3 on repeated questioning of their identity, they confessed as A1 and A2. PW3 on enquiring A2, he deposed that ” he was living as lorry driver since 3 years and at present he is working with the lorry of A3. As per the instructions of his owner he used to transport sand, coal and paddy and unloaded the same to concerned customer. Some times he used to load them without bills or permits. While so I along with A3 on 25.09.2019 reached to Nellore at Jonnavada reach and loaded the sand in the lorry bearing No. AP 07 TJ 1545. During midnight A3 paid case to labors and got transported the sand unknowingly and illegally towards

Ongole and instructed him that he would inform him the place of unloading on phone. Like wise in anther lorry bearing No AP 07 TJ 2545, they decided to proceed after midnight, I.e, on 26.09.2019 while coming with loads the police caught them”.

C.Then PW3 handed over A1 to her staff and keeping him at distance he secured A2 and enquired him. A2 confessed as follows.

” he has been working as lorry driver since 12 years and in order to earn more money, on the information given by A4, he agreed to do illegal sand transportation. Since year he is working with the lorry of A4 and on 3 CC No.604/219 his instructions on 25.05.2019 he along with A4 proceeded with lorry bearing No. AP 07 TJ 2545 to load sand illegally and reached to

Jonnavada sand reach and proceeded towards Ongole and A4 would instructing him the place of unloading.

D. During the course of investigation PW3 examined as PW1-R.

Siva, PW2, LW2,3 and 5 to 7 at the scene of offence. PW3 visited scene of offence, prepared rough sketch and conducted enquiry and as such

Prima – Facie case is made out against A1 to A4 U/s. 353,379 IPC and 21(1), (4) of MMDARA Act and against A3 & A4, U/s. 379 IPC, Sec.21(1) (4) of MMDR Act. Pw3 sent A1 and A2 to Judicial remand. During further investigation, on 03.10.2019 A3 and A4 surrendered before PW3 and admitted their guilt. PW3 enquired and confirmed the identity of A3 and

A4 and issued notices under Sec. 41(a) Crpc. PW3 got auctioned the sand seized through Mandal Executive Magistrate, Kavali. After completion of investigation, PW3 filed charge sheet.

3.Basing on the material available on record, this case was taken on file for the offence punishable under U/Sec.353 IPC against A1 and A2, Sec.379 r/w34 IPC and S.21(1),(4)of MMDR Act against A1 to A4.

4. On appearance of the accused, copies of documents are furnished to A1 to A4 as contemplated under section 207 Cr.P.C.

5. The accused persons were examined u/s. 239 Cr.P.C. and charges have been framed against A1 and A2 for offence U/s. 353 IPC and also agaisnt A1 to A4 for the offence U/Secs. 379 IPC and S. 21(1), (4) of MMDR Act and same was read over and explained to them in

Telugu for which they pleaded not guilty and claimed to be tried.

6. During the course of trial the prosecution has examined

P.Ws.1 to 3 and Exs.P-1 to P-5 are marked on behalf of the prosecution.

Upon closure of the prosecution side evidence A1 to A4 were examined 4 CC No.604/219

U/Sec. 313 Cr.P.C., and they denied the incriminating evidence and reported no defence evidence. Defence evidence was closed.

7. Heard the learned Assistant Public Prosecutor and the learned Defence Counsel.

8.Now the point for consideration is:

i. Whether A1 and A2, in furtherance of their common intention on 26-09-19 at about 2.45 am assaulted or used criminal force to deter PW3 and staff who are a public servant from discharging their duty and

thereby committed an offence U/s. 353 IPC?

ii. Whether A1 to A4 has committed theft of sand in two lorries from Penna river, Jonnawada sand reach without any consent and thereby committed an

offence punishable U/s. 379 IPC r/w s.34 of IPC?

Iii. Whether A1 to A4 without any prior permission from concerned authority illegally transporting sand from Penna river and thereby committed offence U/s.

21(1), (4) of MMDR Act?

9. The case of the prosecution is that on 26.09.2019 at 2.45 am

A1 and A2 obstructed PW3 and her staff from discharging their duty while the accused where illegally transporting sand. A1 to A4 who are the drivers and owners of two lorries bearing No. AP 07 TJ 1545 and AP 07 TJ 2545 committed theft of sand and illegally transporting the same without prior permission from the concerned department. Hence this crime was registered.

10. To prove the contention of the prosecution, 3 witnesses were examined on its behalf. Out of them, P.Ws. 1 is the mediator to the arrest and seizure mahazaranama, PW2 is police who assisted PW3 and

PW3 is the main IO. P.W.1 turned hostile and did not support the case of the prosecution. The evidence before this court is that of P.Ws.2 and 3.

5 CC No.604/219

11. The evidence of PW3 who did investigation and registered this case, testified that, a.on 26.09.2019 on credible information herself, P.W.2, LWs.2 and 3, 5 to 7 left the P.S. and reached to Blue Moon Daba which is under the area of Musunur village and starting vehicle checking on N.H-16 from 2.15 a.m. At about 2.45 A.M. two lorries bearing Nos.AP 07 TJ 1545 and

AP 07 TJ 2545 are coming one by one. Then she stopped both the lorries and asked the drivers about records. Then the drivers of both lorries got down and thrown away their staff and fled away. Then she caught hold of the above said two drivers with the assistance of staff and questioned about their identity. On questioning they revealed their identity as A1 and A2 herein. On further enquiry they voluntarily confessed their guilt as mentioned in police proceedings. On further enquiry A1 and A2 confessed that as per the instructions of their owners i.e., A3 and A4 they used to transport sand, coal and paddy and unloading the same as per their instructions. While so, on the instructions of their owners on 25.09.2019 at evening hours they reached to Nellore at Jonnawada reach and loaded the sand in their lorries without knowing to anybody and proceeding illegally towards Ongole. They also confessed that their owners will inform them over phone about where to unload the sand.

b.As per their confession PW3 questioned them about their licences and vehicle records to the above said lorries. A1 informed that he is not having any valid licence and showed the Xerox copy of vehicle records. Then A2 produced the vehicle records and his licence but he did not show any records or permission pertaining to the sand. Then she verified all the records and asked them to show their mobile phones.

Then A1 produced one black mobile phone from his pant pocket and informed that he along with A2 used to contact their owners about the 6 CC No.604/219 transportation of the sand illegally and where to transport the sand.

Then she verified the cell phone and found SIM card in the said phone.

Then she arrested A1 and A2 and seized both lorries with the sand and the mobile phone of A1 under cover of police proceedings/Ex.P2 as no one were available as mediators at that place. Then she left the place along with arrested person and seized the property and reached to the police station and registered police proceedings as a case in crime

No.193/2019 for the offence under section 353, 379 IPC and 21(1)(4) of

Mines and Minerals Act and submitted original FIR/Ex.P3 to this Hon’ble

Court and copies to all officers concerned.

c.Then she left the P.S. along with staff and reached to the scene of offence situated on the western margin of Nellore-Ongole Road opposite to Blue Moon Daba, Musunur. she observed the scene and prepared he rough sketch/Ex.P4.Then she secured P.W.1 at the scene, she examined him and recorded the statement under section 161 Cr.P.C, then she left the place and reached the P.S. and examined P.W.2, L.W.2,

L.W.3, LWs.5 to 7 in the police station and recorded their statements under section 161 Cr.P.C. Then after completion of all formalities she forwarded A1 and A2 to this Hon’ble Court for judicial remand. During the course of investigation on 03.10.2019, A3 and A4 surrendered before her in the police station and she issued notices under section 41(a)

Cr.P.C. with the instructions. She produced the case property before this

Hon’ble court and the same was entered in CPR No.293/2019 and

returned for safe custody. After completion of investigation, she filed charge sheet. M.Os.1 and 2 are the two lorries bearing registration

Nos.AP 07 TJ 1545, AP 07 TJ 2545 along with sand. M.O.3 is cell phone.

12.The evidence of PW2 who assisted PW3 in the entire police proceedings is in consonance with PW3 evidence.

7 CC No.604/219

POINT i:

13.The basic ingredients of an offence u/s 353 IPC can be culled out as follows; a. Accused assaults or uses criminal force b. The assault or criminal force is used to deter the public servant from discharge of duty as public servant.

It is inherent in section 353 IPC that intention to deter the public servant must be accompanied by use of criminal force or assault.

Assault again is the making of any gesture, or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person. Criminal force on the other hand is use of force with intent to commit any offence, annoyance etc. Again a person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other.

14.It will, thus, be seen that in order to attract the penal provisions of section 353 IPC prosecution must necessarily prove use of force or assault. The use of force, if intentional, would make out the offence of criminal force and if such criminal force or assault is used against any public servant with an intent to deter such public servant from discharging his duty as public servant an offence u/s 353 IPC can be said to have been committed.

15.Coming to the evidence, now PW2 and 3 testified that when they stopped the lorries and asked for records, A1 and A2 threw the staff and tried to fled away. But except the evidence of PW2 and 3, none of the other police staff who have been thrown by A1 and A2 were not examined by the prosecution. And the mediator in this case also turned hostile. Therefore, this court is of opinion that the evidence of PW2 and 3 8 CC No.604/219 alone is not sufficient to bring home the guilt of A1 and A2 for offence under section 353 IPC. Thus A1 and A2 are given benefit of doubt. Hence point no.1 is answered against prosecution.

16. POINT ii & iii:

For the sake of convenience this court inclined to answer points 2 and 3 together as the incidents are interlinked regarding commission of theft of sand by accused persons and transporting it illegally. In this case, except the evidence of PW2 and 3 there is no other cogent evidence in support of prosecution version. Moreover, the evidence of PW2 and 3 mainly involves about the confessional statements of accused persons and based on that they have investigated. But the said confessional is hit by S.25 Indian Evidence Act and therefore not admissible in evidence. There is no other independent witness supporting the prosecution case to believe the evidence of PW3.

Hence points 2 and 3 are also answered against prosecution.

17.The evidence on record is not crystal clear, strong and blemish free to base conviction. It has been held in Rang Bahadur

Singh Vs. State of UP, AIR 2000 SC 1209 that the time-tested rule is that acquittal of a guilty should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt, a conviction cannot be passed on the accused.

18.In the light of the discussions made above, the inevitable conclusion, therefore is that prosecution has failed to bring home the charges levelled against the accused persons beyond the pale of reasonable doubt and accordingly, accused persons are entitled to acquittal.

9 CC No.604/219 19.In the result, A-1 and A-2 are found not guilty for the offence punishable U/s. 353 IPC and they are acquitted U/ s 248(1) Cr.P.C. And A- 1 to A-4 are found not guilty for the offence punishable U/s 379 IPC & 21(1),(4) of Mines & Minerals Development & Regulation Act, 1957 and they are acquitted U/ s 248(1) Cr.P.C. The bail-bond of accused persons and sureties shall stand discharged on expiry of six months from today vide., the spirit of the provisions U/S. 437-A CrPC. M.O.1 was given to petitioner/owner Vasanthavarapu Sreenu (A3) vide Order in

Crl.M.P.No.578/2020, dt.16.6.2020. M.O.2 was given to petitioner/owner

Gundla Badharaiah(A4) vide Order in Crl.M.P.No.579/2020, dt.17.6.2020 and the said orders shall holds good. MO3 shall be auctioned and sale proceeds be confiscated to State.

Typed to my dictation by the Stenographer-G-III, corrected and

pronounced by me in open court this the 18th day of March, 2021.

Sd/-V.Devi Sai Srivasni

ADDL.JUDL.MAGISTRATE OF FIRST CLASS,

KAVALI

APPENDIX OF EVIDENDE

Witnesses Examined

For Prosecution : For Defence :

P.W.1: Ramula Siva - None - P.W.2: G.Yesebu P.W.3: T.Aruna Kumari.

DOCUMENTS MARKED

For Prosecution : For Defence :

Ex.P1: 161 Crpc statement - Nil - Ex.P2: Police proceedings. Ex.P3: Original FIR Ex.P4: Rough sketch of the scene of offence.

MATERIAL OBJECTS MARKED

MO1 : lorries bearing registration No.AP 07 TJ 1545. MO2 : lorries bearing registration No.AP 07 TJ 2545. MO3 : Cell Phone.

Sd/-V.Devi Sai Srivasni

AJMFC,KVL.

// True Copy//

AJMFC,KVL.

1

IN THE COURT OF THE ADDL. JUDICIAL MAGISTRATE OF FIRST

CLASS: KAVALI.

PRESENT: Smt. V.DEVI SAI SRIVANI, Addl.Judicial Magistrate of first Class,Kavali

Wednesday, this the 31st day of March, 2021

C.C NO.628/2015

Between:

Janjanam Siva Krishna S/o. Veeraiah, aged 25 years, Hindu, working as a A/C Technician, Jonnayagunta, Old Town, Kavali SPSR Nellore District. … Complainant.

And

Malu Venkateswara Reddy, S/o. Not known to the complainant C/o. Bollineni Diagnostics Center, Christian pet 2 nd lane,Kavali

SPSR Nellore District. ... Accused.

This case is coming on 30-03-2021 for final hearing before me in the presence Sri. N.S.Kiran Kumar, Advocate for the Complainant and of Sri. G. Rajendra Vara Prasad, Advocate for accused upon hearing the arguments on both sides and the matter is having stood over for consideration to this day, this Court delivered the following:

J U D G M E N T

1.This is a private complaint filed under sections 190 and 200 of Cr.P.C. by the complainant against the accused for the offence under

Secs.138 and 142 of Negotiable Instruments Act 1881.

2. The brief contents of the Complaint are as follows:-

A. The accused had borrowed an amount of Rs.1,75,000/- from the complainant by way of hand loan. Subsequently, on repeated demands made by the complainant accused issued cheque bearing

No.040581 dt. 15.06.2014 for a sum of Rs.1,75,000/- drawn on State

Bank of Hyderabad, Kavali towards discharge of said debt.

2

B.The complainant presented the same for collection at State

Bank of India, Kavali Branch on 28.06.2014. But the said cheque was dishonoured for the reason funds insufficient in the account of the accused and duly intimated to the complainant by way of cheque return memo dated 30.06.2014.

C.Then, the complainant got issued a legal notice dated 07.07.2014 demanding the accused to make payment of the amount covered under the cheque within 15 days. The accused refused to the receive the said notice and kept quiet without making any payment to the complainant. Hence, the complaint.

3.After recording sworn statement, complaint was taken on file.

The accused after receipt of summons appeared before this Court and received the copies furnished to him. He was examined under Sec.251

Cr.P.C. and he denied all the allegations as mentioned in the complaint.

4. On behalf of the complainant, he was exdamined himself as

P.Ws.1 and Exs.P1 to P5 are marked. On behalf of the accused no oral or documentary evidence is adduced. P.W.1: J. Siva Krishna. Ex.P1v is the

Cheque bearing No.040581 Dt.15.06.2014 for Rs.1,75,000/- in State Bank of Hyderabad, Kavali, Ex.P2 is the Counter of Foil (pay in slips), Ex.P3 is the Cheque return memo Dt. 30.06.2014 of State bank of Hyderabad,

Ex.P4 is the Office copy of the legal notice dt.07.07.2014 along with postal receipts, Ex.P5 is the Unserved notice as accused refused.

5.Upon closure of complainant’s side evidence, accused was examined under Sec.313 Cr.P.C., about incriminating evidence appeared against him from complainant side witnesses and he denied the same.

6. Now the points for determination are:

i.Whether the subject matter of the cheque i.e., Ex.P1 was issued by the accused for a legally enforceable debt.?

3 ii. If so, whether the accused rebutted the presumptions under the Negotiable Instruments Act, 1881?

iii. Whether the complainant proved the guilty of the accused beyond all reasonable doubt for the offence punishable under Sec.138 and 142 of N.I Act 1881?

7.Heard the counsel for the complainant and the counsel for the accused.

8. POINT No 1:-

In order to bring the accused under ambit of S.138 NI Act, the following essentials must be proved:

i. That there is a legally enforceable debt ii. That the cheque was drawn from the bank from the bank for discharge in whole or in part any debt or other liability which pre-supposes legally enforceable debt iii. That the cheque so issued has been returned due to insufficiency funds iv. Whether cheque has been presented to the bank within period of six months/three months from the date on which it is drawn or within the period of its validity, whichever is earlier; v. The cheque of holder in due course of cheque as case may be makes a demand for the payment of the said amount of the money giving a notice in writing to the accounts within 30 days of the receipt of information from the bank is regarding the return of the cheuqe as anybody; drawer to take face to make payment of said amount of money to the payee or case may be, to the holder in due course, within 15 days of the receipt of the said notice.

9.The case of the complainant as per the evidence of P.Ws.1 coupled with Exs.P1 to P5 is that the accused had borrowed an amount of

Rs.1,75,000/- from the complainant by way of hand loan. Subsequently, on repeated demands made by the complainant, accused issued Ex.P1 for Rs.1,75,000/- towards discharge of said debt. Then, the complainant presented the same for collection on 28.06.2014 which was dishonoured and returned for the reason funds insufficient in the account of the accused, with a cheque return memo under Ex.P3. Then, the complainant 4 got issued a legal notice under Ex.P4 which was returned unserved for the reasons the addressee refused to receive notice under Ex.P5.

On the other hand, the case of the accused as per the cross- examination of P.W.1 is that the accused purchased 2 Air conditioners from one Murali. At the time of purchase the said Air conditioners, the accused has hand over the empty cheques to said Murali as security towards the payment of Air conditioners. There arose differences between the accused and the said Murali for repair of Air conditioners.

The complainant is not having any capacity to lend such an amount to the accused. And that he has no necessity to borrow Rs.1,75,000/- from the complainant and that it is not legally enforceable debt. The accused further contends that the complainant and the said Murali colluded together and filed this case by using empty cheque possessed by Murali for wrongful gained.

10.In the back drop of the rival contentions, this court has given anxious consideration to the case papers. A careful scrutiny of the documents relied by the complainant under Ex.P1 to P5 goes to show that, statutory requirements of section 138 of N.I. Act is complied with and this complaint is filed within time. Thus, complainant relied on the statutory presumptions enshrined under section 118 read with section 139 of N.I. Act. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence and rebut the presumption available to the complainant. Let us examine whether accused has successfully rebutted the presumptions of law. The plea of the accused was that he did not borrow Rs. 1,75,000/- from the complainant as hand loan. His further plea was that, the empty cheque issued by him to one Murali in a transaction between them is misused by the complainant and subsequently he himself filled-up the cheque before presenting the same for encashment and filed this case. And that the 5 complainant has not brought on record any evidence of lending such hand loan of Rs.1,75,000/- and that he had no capacity to lend also. The accused's case was that there was no legally enforceable debt or liability between the parties since he had not asked for a hand loan as alleged by the complainant. And that his signature on the impugned cheque is forged. To prove his version and to raise probabilities, the accused relied on the cross examination of PW1. For substantiating the version of complainant, there is the evidence of P.W.1 who is the complainant herein. Let us see the evidence of PW1 whether he initially proves the existence of legally enforceable debt or not.

11.He filed his chief affidavit which is nothing but reiteration of the contents of the complaint. Through P.W.1 his documents under Exs.P1 to P5 were marked. Ex.P1 is present disputed cheque issued on 15.6.2014 for an amount of Rs.1,75,000/- towards discharge of hand loan. P.W.1 was cross-examined by the counsel for the defence. During the cross-examination it was elicited that the complainant knew the accused through Sreenu who is electrician. The complainant gave an amount of Rs.1,75,000/- to the accused which he withdrawn from SBI and also secured from his friends. Further the learned counsel for the defence put suggestions that the complainant is not having any capacity to lend that amount. Another suggestion as to the debt being not a legally enforceable debt is also put forth by the defence. The complainant has categorically denied all the suggestions put by the defence.

12.Referring to G. Veeresham vs S. Shiva Shankar And

State in Criminal Appeal No.358 of 2003, Decided On, 26 June 2007

by Hon’ble Andhra Pradesh High Court. It was held that the complainant is having burden to prove the existence of legally enforceable debt when the 6 accused has by way of probable defence proved the probabilities in his favour either by examining himself or with the help of evidence already on record.

13.Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'.

Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.

14.Coming back to the facts in the present case, the specific case of the complainant is that the accused borrowed an amount of Rs.

1,75,000/-from him as hand loan and towards discharge of the said hand loan, Ex. P1 cheque came to be issued in his favour. It is the plea of the accused that he never borrowed Rs. 1,75,000/- as hand loan from the 7 complainant and that the cheque in issue was actually given by him to one Murali and not the complainant herein.

15.The complainant while being examined as PW.1 specifically admits in the cross-examination that he has no proof of lending Rs. 1,75,000/- to the accused as hand loan. Instead, he testifies that he has drawn that amount from

SBI and also from friends. But no bank statements or any witness is examined on his behalf to prove the same. It is crystal clear from the evidence of the complainant that he has not placed on record any material to speak of his lending Rs. 1,75,000/- to the accused as hand loan. He did not even say the date, month or year of the said hand loan. It is admitted by PW.1, he works as

AC mechanic and also runs mechanic shop. The accused purchased 9 Acs from one Murali. He knows Murali since 2013 and he came to know about accused only through one Sreenu who is electrician. PW1 further admits that he do not have any money transaction with the accused. This shows that the complainant and the accused are having no close relation. If the evidence of the complainant is scrutinized with this back ground, it is highly unbelievable that the complainant would lend Rs. 1,75,000/- as hand loan to the accused. The basic fact of lending Rs. 1,75,000/- as hand loan to the accused has not been proved by the complainant.

16.Referring to the ruling by the Supreme Court inM.S. Narayana

Menon @ Mani v. State of Kerala and Anr . 2006 (3) Crimes 117 (S.C.),

“wherein it has been held that whether in the given facts and circumstances of a case, the initial burden has been discharged by an accused would be a question of fact. It was a matter relating to appreciation of evidence. Once the accused discharges the initial burden placed on him, the burden of proof would revert back to the complainant. For rebutting the presumptions under Sections 118 and 139 of the N.I. Act, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon and the standard of proof evidently is preponderance of probabilities.

8

17.In the instant case, the accused is able to probabilize his defence through the cross-examination of PW.1. The very fact that the complainant has not placed on record any material to speak of the lending of Rs. 1,75,000/- as hand loan to the accused is sufficient to infer that the accused is able to rebut the presumptions available in favour of the complainant under Sections 118 and 139 of the N.I. Act. Therefore, since the complainant fails to prove his initial case of existence of legally enforceable debt, the benefit of doubt goes to the accused. In view of the above discussion, Point No.1 is answered in favour of the accused.

18. Point No.2:

In view of the findings in Point No.1, the evidence of the complainant particularly in the cross-examination shows the probabilities in favour of the accused to believe his version that Ex.P1 is not for a legally enforceable debt. Hence, this point is also answered in favour of the accused.

19. Point No.3:

In view of the findings in Points 1 & 2 the evidence of the complainant side itself shows the case of the defence and the complainant who failed to comply the provision of the Negotiable

Instrument Act to bring the accused under the provisions of Sec.138 of

N.I Act to prove the guilty of the accused beyond all reasonable doubt.

Accordingly, this point is also answered against the complainant.

20. In the result , accused is found not guilty for the

offence Under section 138 of Negotiable Instruments Act

accordingly, he is acquitted Under section 255(1) Cr.P.C. The bail

bond of the accused be remained in force for another six months

from today, vide., the spirit of the provisions U/S.437-A Cr.P.C.

Typed to my dictation by the Stenographer-G-III, corrected and

pronounced by me in open court this the 31st day of March, 2021.

Sd/-V.Devi Sai Sriavani

ADDL. JUDL. MAGISTRATE of 1 st CLASS, KAVALI.

9

APPENDIX OF EVIDENDE

Witnesses Examined

For Prosecution : For Defence :

P.W.1 : Janjanam Siva Krishna - None -

DOCUMENTS MARKED

For Prosecution :

Ex.P1: Cheque bearing No.040581 Dt.15.06.2014 for Rs.1,75,000/- in State Bank of Hyderabad, Kavali, Ex.P2: Counter of Foil (pay in slips), Ex.P3: Cheque return memo Dt. 30.06.2014 of State bank of Hyderabad, Ex.P4: Office copy of the legal notice dt.07.07.2014 along with postal receipts. Ex.P5: Unserved notice as accused refused.

For defence:- Nil.

Sd/-V.Devi Sai Sriavani

ADDL. JUDICIAL MAGISTRATE, OF FIRST CLASS,

KAVALI.

//True Copy//

AJMFC,KVL.

- 1 - CC No.149/2018

IN THE COURT OF ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS,

KAVALI.

Present: Smt V.Devi Sai Sri Vani, Addl. Judicial Magistrate of First Class, kavali.

Wednesday, the 24th day of March, 2021.

CALENDAR CASE No.149/2018

Between:-

The State of A.P. through Sub-Inspector of Police, Kavali II Town Police Station …Complainant

A N D

Kaliki Sai Kumar Reddy S/o.Srinivasulu Reddy, Hindu, Aged about 26 years, Reddy by caste, Santhi Nagar, Excise P.S.Road, Kavali Town. … Accused

This case is coming before me on 23.03.2021 for final hearing in the presence of learned Additional Public Prosecutor and Sri K.Elisha Babu, 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 accused is arrayed before this court for the offence punishable

U/s. 379 or 411 of IPC in Cr.No.15/2018 of Kavali II Town Police Station.

1. The brief factual matrix of prosecution case is as follows :-

(a) The S.H.O. Kavali II Town PS filed charge sheet against the accused person alleging that on the intervening night of 17/18-01-2018, some unknown offender has committed theft of Breed She Buffalo & its calf, worth of

Rs.60,000/- of defacto complainant/PW.1/Alurui Radha and decamped with booty. Then PW1 went to Police station and gave a report.

(b) Basing on the report of PW1, PW.4/N.L.Narayana, Head Constable,Kavali

II Town PS registered this case U/s.379 of IPC in Cr.No.15/2018 on 26.01.2018 and took up investigation. PW.4 examined four witnesses and recorded their statements. He visited of the scene of offence.

(c) During the course of investigation PW.4 arrested the accused near

Budagamagunta Colony Road on Udayagiri road, Kavali on 27-01-2018 and - 2 - CC No.149/2018 recovered stolen property I.e., Breed She Buffalo & its calf from the possession of the accused in the presence of Pw.2/Nagineni Anil Kumar and PW.3/Shaik

Nazeer under cover of mahazarnama duly attested by mediators and accused send to judicial custody. Later PW.4 handed over the same to PW.1 for safe custody under proper acknowledgment. Later the further investigation took place by LW.8/S.V.Raju, the then Sub-Inspector of Police, Kavali II Town P.S.,, who verified the investigation done by PW.4 and after completion of entire investigation, Lw.8 filed charge sheet against the accused. Hence the charge.

2. Case was taken on file U/s. 379 or 411 of IPC against accused. On appearance of accused, copies of documents were furnished to him as contemplated U/S 207 of Cr.P.C. and he was examined U/s 239 of Cr.P.C.

Charges U/s. 379 or 411 of IPC was framed. Accused pleaded not guilty and claimed to be tried.

3.During the course of trial, prosecution examined P.W.1 to P.W.4 and got marked Exs. P1 to P7. The prosecution has given up the evidence of

Lws.2 to 4 and 8 namely Aluri Lakshmi Reddy, Koncha Venkata Rami Reddy,

Charla Naresh and S.V.Raju. Nobody was examined on behalf of the accused.

On the closure of prosecution evidence, accused was examined u/s. 313 of

Cr.P.C. Accused denied the incriminating circumstances as false and reported no defence witnesses.

4.Heard both sides.

5.Now the point for consideration is i. Whether accused on the intervening night of 17/18.01.2018 committed theft of Breed She Buffalo & its calf belongs to Pw.1 and thereby committed offence under section 379 of IPC, as alleged?

ii. Whether accused has retained the Breed She Buffalo & its calf , inspite of knowing it to be a stolen property and thereby committed offence under section 411 of IPC, as alleged?

- 3 - CC No.149/2018

6. POINTS 1 & 2:-

To prove the case against the accused persons for the offence U/s.

379 or 411 of IPC the prosecution has examined the PW1 to 4 and got marked

Ex.P1 to Ex.P7.

A.P.W.1,who is the informant in this case testified that on 17.01.2018 at about 10.00p.m., she tied his buffalo beside her house and went to sleep.

On the next day morning at around 5.00 a.m., she woke up and noticed that her buffalo was missing. She searched for it but invain and gave a report to police. The police thereafter informed her about recovery of buffalo and handed over the said buffalo to her under the receipt in Ex.P2.

B.PWs.2 and 3, who are the mediators for arrest of accused and seizure of stolen property, turned hostile without supporting the case of prosecution.

C.PW.4, who is investigating officer in this case testified that On 26.01.2018 at 1.30 PM basing on the report of PW1 he registered this case in crime No.15/2018 U/s.379 IPC of kavali II town police station and submitted original FIR/Ex.P5 to this Hon’ble court and copies to all officers concerned .

He examined Pw1 and Lw2 i.e., A. Lakshmireddy in the police station and recorded their statements U/s.161 Crpc. Then he left the PS along with PW1 and visited the scene of offence situated in the open place near by the house of Pw1 in Santhi Nagar Kavali. He observed the scene and prepared rough sketch/Ex.P6. No incriminating materials were found at the scene. He examined Lw3 K. Venkataramireddy, Lw4/cherla Naresh at the scene and recorded their statements U/s.161 Crpc. He tried to examine some more witness at the scene but none came forward to speak about the occurrence.

On 27.01.2018 he received credible information about the presence of accused. Immediately he secured PWs2 and 3 as mediators and left the PS along with available staff and reached Budamgunta Colony road center at 1.00

PM and noticed one male person in suspicious manner. On seeing them he tried - 4 - CC No.149/2018 to skulk away. He caught hold of him with the assistance of his staff and on enquiry he revealed his identity as accused herein. Further he voluntarily confessed his guilt as mentioned in mahazaranama. On further enquiry he showed a Buffalo and its calf and confessed that these are the she Buffalo and its calf which he committed theft in Santhi Nagar near by his house in the intervening night of 17/18.01.2018. Then he verified the said property belongs in crime No.15/2018 of Kavali II town police station. After informing the grounds of arrest he arrested him and seized the said property under cover of mahanzaranama/Ex.P7 before the above said mediators and got attested by them. He left the place along with arrested accused and seized property and came to PS and forwarded the arrested accused to this Hon’ble court for

Judicial remand after completing all formalities. He handed over the seized properties to PW1 under proper acknowledgement. I.e, Ex. P2. After completion of entire investigation LW8-Sri.S.V. Raju the then Sub-Inspector of police Kavali II town police station filed charge sheet.

During cross examination, PW4 admitted that the occurrence in this case happened on intervening night 17/18.01.2018. The police station is in 2 K.m distance from scene of offence. He received complaint on 26.01.2018.

He have mentioned in column No.8 of FIR about the delay in lodging I.e, only after search of buffalo and its calf the report was lodged. He admitted of not mentioning the scribe name in the mahazarnama and that in the rough sketch there is no mention about west, East and South direction in compass marked.

He further stated that only north direction will be mentioned generally and based on which the other direction will be noted. He admitted that when the calf is left out, the buffalo will immediately follow it generally. He denied that the buffalo and calf have tried to escape from the owner and there by when the owner I,e. Pw1 found them missing he reported this case to police. He denied of filing this case only for statistical purpose and investigation is not at all done. It is not true to suggest that Pw2 and 3 who are mediators in this case are the neighbours of Pw1. He denied that he have arrested the accused by - 5 - CC No.149/2018 taking signatures of mediators in mahazaranama in police station and that the contents of mahazarnama are false.

7.From the perusal of the evidence of the Pws. 1 and 4, it appears that the offence alleged against the accused persons is u/sec 379 or 411 of IPC.

There is no denial of the fact that no such occurrence took place.

8.It is to be noted here that the prosecution has to prove the following essential ingredients of the Section 379 or 411 IPC

S.378 of IPC defines theft, “Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft. Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2.—A moving effected by the same act which affects the severance may be a theft. Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4.—A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5.—The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.” Section 411. Dishonestly receiving stolen property. —Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

9.On perusal of entire evidence on prosecution side, this court found that Pw.1 was unable to identify the offenders who has committed the alleged incident and her evidence coupled with evidence of Investigating Officer discloses the commission of theft. And that stolen property is recovered in this case and that the said buffalo and its calf is the stolen property. But their evidence is not establishing that the accused committed theft of above stolen property.

- 6 - CC No.149/2018

10.And even if confession recorded by IO which lead to discovery of stolen articles is taken into evidence u/s.27 Evidence Act, it is only corroborative piece of evidence and not substantive. In Mustkeen V/s State

of Rajasthan AIR 2011 SC 2769; S.K.Yousuf V/s State of West Bengal

AIR 2011 SC 2283)- held “Even when such permissible information is admitted in evidence, it does not constitute substantive evidence. It can only be corroborative evidence to show that the accused was aware of the whereabouts of the weapon. It is only when the knife is otherwise proved to have been used in the commission of the offence, does the fact discovered becomes relevant as a piece of corroborative evidence.”

11.As per S.25 of Indian Evidence Act confession before police is irrelevant even though accused confessed his commission of theft before police. In the instant case although the confession is recorded from accused person and it lead to discovery of stolen property, the same was not corroborated by evidence of panch witnesses. As there are no eye witnesses to prove that the accused committed theft of buffalo and its calf from PW1, hence prosecution failed to prove guilt of accused for the offence under section 379 of

IPC and accordingly accused persons are entitled for acquittal.

12.Now coming to S.411 IPC, it is to be seen whether the prosecution has prove beyond reasonable doubt that the buffalo and its calf are recovered from the possession of accused. Here the only evidence available on record is that of IO. His version is not having any corroboration with mediators. And the evidence of PW1 says only about theft of buffalo by unknown offender and it is silent about person having possession of stolen property. Thus there is no incriminating evidence on record to bring accused under the ambit of S.411

IPC. Accordingly, benefit of doubt is given for the accused.

13.In the result, the accused is found not guilty of the offence punishable U/Secs.379 or 411 of IPC, and accordingly, the accused is acquitted for the same U/Sec.248(1) Cr.P.C. The bail-bonds of the accused and his sureties shall stand discharged on expiry of six months from today vide., the - 7 - CC No.149/2018 spirit of the provisions U/S. 437-A CrPC. The stolen propety i.e., buffalo and its calf were already handed over to PW.1/A.Radha, shall hold good after expiry of appeal time.

Typed to dictation to Stenographer-G-III, typed by him, corrected and pronounced by me in open court on this the 24th day of March 2021.

Sd/-V.Devi Sai Srivani

ADDL. JUDL. MAGISTRATEFIRST CLASS,

KAVALI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1: Aluri Radha - NIL - P.W.2: Nagineni Anil Kumar P.W.3: Shaik Nazeer P.W.4: N.L.Narayana, the then H.C., Kavali II Town P.s.,

EXHIBITS MARKED:

FOR PROSECUTION:

Ex. P1: Report of PW.1. Ex. P2: Receipt of PW.1 dt.28.01.2018 for return of property Ex. P3: Signature of PW.2 on arrest and seizure mahazarnama dated 27.01.2018 Ex. P4: Signature of PW.3 on arrest and seizure mahazarnama dated 27.01.2018 Ex. P5: First Information Report in Cr.No.15/2018 Ex. P6: Rough sketch of the scene of offence Ex. P7: Arrest seizure mahazarnama for arrest of accused dated 27.01.2018.

FOR DEFENSE: NIL

MATERIAL OBJECTS: NIL

Sd/-V.Devi Sai Srivani

ADDL.JUDL. MAGISTRATE OF FIRST CLASS

KAVALI.

// True Copy//

A.J.M.F.C.,KVL.