Y.J Padmasree

1 C.C.No.379/2015, dt 11.04.2017

IN THE COURT OF THE JUDICIALMAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT::NELLORE.

Tuesday, this the 11th day of April, 2017

Present : - Smt. Y.J.Padmasree, Judl.Magistrate of I Class, Special Mobile Court, Nellore.

Calendar Case No.379/2015

Between:

M/s. Shri Ram City Union Finance Ltd., rep. By its Office Assistant/Authorised person Sri Sk.Abdul Subhan, Muslim aged about 29 years, 16/537

I.B.Road, Nellore.... Complainant

Vs.,

Konjeti Ramesh S/o.Koteswara Rao, Hindu, aged about 40 years residing at D.No.4-796 krishna Mandiram street

Usman Saheb peta, Nellore... Accused

This case is coming on 07.04.2017 before me for hearing in the presence of Sri Sk.Abdul Samath, the learned advocate for the complainant and Sri M.Ramesh Babu, the learned advocate 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

This is a complaint filed on behalf of the complainant against the accused for the offence punishable under Sections 138 and 142 of

Negotiable Instrument Act (For easy reference it will be referred as

N.I.Act herein after)

2.The case of the complainant is as follows: The complainant company is a Limited company registered under Companies

Act under the name and style of M/s.Shri Ram City Union Finance

Limited. The complainant company is rendering financial assistant towards trade finance to the general public. The accused borrowed a sum of Rs.5 lakhs on 13.05.2013 and executed a loan agreement bearing No.NELL2TF1305130001 in favour of complainant on the even date and agreed to pay the same with interest @19% p.a. The accused 2 C.C.No.379/2015, dt 11.04.2017 has to discharge the above said debt within 24 equated monthly instalments at the rate of Rs.28,750/- p.m. and commencing from 15.06.2013 and last instalment date by 15.05.2015. The accused has paid 9 full equated monthly instalments an amount to the complainant company but the accused has became due remaining equated monthly instalments to the complainant. As per the terms and conditions of the loan agreement, the accused has to discharge the loan amount. But inspite of repeated demands, the accused did not pay above said debt.

Basing on the loan agreement and promissory note executed by the accused in favour of the complainant, referred the claim to Sole

Arbitrator Sri Md.Rasheed Basha, Nellore on 01.04.2015 for a sum of

Rs.5,13,792/- in Arbitration case No.226/2015 and award also passed on 20.06.2015.

(b).Thereafter accused came to complainant’s office and settled the matter and issued cheque bearing No.000120 drawn on Karur Vysya

Bank Ltd., Brindavanam, Nellore for Rs.5,43,000/- on 17.07.2015 in favour of the complainant company towards the part payment of the amount due under the above said debt. The complainant presented the above said cheque for collection in its bank i.e., City Union Bank, Nellore on 23.07.2015 but the said cheque was returned as dishonoured by the

Karur Vysya Bank Ltd., Brindavanam, Nellore with an endorsement “funds insufficient” along with a memo, dated 24.07.2015. The complainant got issued a legal notice on 04.08.2015 calling upon him to pay the above said amount. The accused received the said notice on 07.08.2015 but he neither gave reply nor complied the demand of the complainant. Hence the accused had issued the said cheque towards amount due to the complainant under loan agreement which is legally enforceable debt and failed to pay the amount in spite of knowledge of dishonour and also knowledge of notice. Thus, the accused is liable to be punished under section 138 of N.I. Act.

3 C.C.No.379/2015, dt 11.04.2017 3.This case was taken on file by this court under section 138

N.I Act against the accused.

4.On appearance of the accused, copies of the documents were furnished to him as required under Section 207 Cr.P.C.

5.Accused was examined under Section 251 Cr.P.C, by explaining the substance of accusation u/s.138 read with 142 of N.I.Act made against him Telugu, for which he denied the same and pleaded not guilty, claimed to be tried in accordance with the law.

6.During the course of trial, on behalf of the complainant, the complainant himself examined as PW1 and in support of the case of complainant, Ex.P1 to Ex.P11 are marked.

7.After closure of the complainant’s side evidence, accused was examined under Section 313 Cr.P.C., by explaining incriminating material stood against him in the evidence of complainant, to which the accused denied and reported defence evidence on his behalf. Accused himself examined as DW1 and Ex.D1 to Ex.D3 are marked.

8.Heard the arguments of both the sides and perused the entire material available on record.

9.Now, the points for determination are:

1) Whether there was a legally

enforceable debt between the complainant

and accused as on the date of issuance of

Ex.P1 cheque?

2) Whether Ex.P1 cheque was issued by

the accused to the complainant in

discharge of legally enforceable debt?

10.The learned counsel for the complainant submitted that the complainant followed all the mandatory requirements under section 138 of NI Act. Further accused admitted signature on Ex.P1 cheque, hence burden lies on the accused to rebut the presumption u/s.139 of NI 4 C.C.No.379/2015, dt 11.04.2017 Act but accused failed to rebut the said presumption. Hence prayed the court to convict the accused.

11.POINT No.1 and 2: To prove its case, the complainant places reliance on the evidence of PW1 and Ex.P1 to Ex.P11. PW1 is the office Assistant/Authorised person of the complainant company who has given authorisation by the complainant company to deal with the case and he deposed that on 13.05.2013 accused availed trade finance for an amount of Rs.5 lakhs from his company by executing the loan agreement and agreeing to repay the same with interest @19% p.a. in 24 monthly instalments @ Rs.28,750/- per month commencing from 15.06.2013 and ended on 15.05.2015 and the accused has paid 9 full equated monthly instalments amount to the complainant company but the accused became due remaining equated monthly instalments to the complainant and as per the terms and conditions of the loan agreement, the accused has to discharge the loan amount, but inspite of repeated demands made by complainant, the accused has not paid the above said debt.

12. PW1 further deposed that basing on the loan agreement and promissory note, referred the claim to the sole Arbitrator on 01.04.2015 for a sum of Rs.5,13,792/- in Arbitration Case No.226/15 and award also passed on 20.06.2015 and to settle the matter, accused issued a cheque bearing No.000120 for Rs.5,43,000/- drawn on Karur

Vysya Bank Ltd., Brindavanam, Nellore in his favour and the same were presented for collection through its bank i.e., City Union Bank, Nellore on 23.07.2015 but the said cheque was returned with an endorsement “funds insufficient” along with a memo, dated 24.07.2015 and thereafter, he got issued a legal notice on 04.08.2015 to the accused demanding to pay the amount but the accused received the notice on 07.08.2015, but not complied the demand. Hence he filed the complaint.

5 C.C.No.379/2015, dt 11.04.2017 13.To prove his contention that there was a legally enforceable debt between the complainant and accused, PW1 relied upon Ex.P10 and Ex.P11. Ex.P10 is the certified copy of promissory note executed by the accused in favour of complainant company which shows that accused received the loan of Rs.5 lakhs and executed a promissory note in favour of complainant company agreeing to repay the same with interest @19% p.a. Further Ex.P11 i.e., loan agreement which goes to shows that the accused obtained loan from the complainant's company and executed loan agreement in favour of the complainant company.

14.The main contention of the accused is that he never issued Ex.P1 cheque to the complainant company on 17.07.2015 for settlement of arbitration case and at the time of granting loan the complainant company obtained 24 blank signed cheques from him and by using the one of the blank signed cheques, the complainant company filed the present complaint.

15.It is an admitted fact that the accused obtained loan of

Rs.5 lakhs on 13.05.2013 from the complainant's company and executed a loan agreement and also demand promissory note agreeing to repay the same with interest @19% p.a. During cross-examination it was suggested to PW1 by using one of the signed blank cheque issued by the accused the present complaint was filed for which PW1 denied the said suggestion. Further accused did not deny the signature on Ex.P1 cheque as well as signature on Ex.P10 promissory note. Once accused admitted the signature on Ex.P1 cheque the presumption under section 139 of NI

Act shall be drawn.

16.To rebut the presumption accused himself examined as

DW1 and Ex.D1 to Ex.D3 are marked through him. The evidence of DW1 shows that himself, Chakrapani and Chalapathi obtained loan from the complainant's company jointly and executed a promissory note and at the time of granting loan the complainant company obtained 24 blank 6 C.C.No.379/2015, dt 11.04.2017 signed cheques from him. The evidence of DW1 further shows that at the time of granting loan the complainant company deducted

Rs.10,000/- towards process fee and also Rs.20,000/- towards Sriram Life

Insurance and he paid 10 full monthly instalments to the company and thereafter as he committed default and basing on the two cheques the complainant company filed case against him under section 138 of NI Act in C.C.No.171/2015 before this court. The evidence of DW1 further shows that he never issued Ex.P1 cheque to settle the arbitration case.

To prove his contention he relied upon Ex.D1 to x.D3. Ex.D1 i.e., vouchers shows that he paid instalment to the complainant's company and Ex.D2 shows that he paid insurance of Rs.20,000/- and obtained life insurance certificate.

17. Though DW1 stated that complainant’s company deducted an amount of Rs.20,000/- towards Shiram life insurance, but there is no proof to show that complainant company deducted the said amount from the loan amount.

18. During cross-examination DW1 clearly admitted that he obtained loan from the complainant' company and executed a loan agreement and also pronote in favour of complainant's company. Though

DW1 stated during chief examination himself and one Chankrapani and

Chalapathi jointly obtained loan from the complainant company coming to the cross-examination he admitted that they are stood as guarantors only. Though DW1 stated that Rs.10,000/- is deducted by the complainant at the time of granting loan towards process fee but there is no documentary evidence to prove the said fact. Moreover DW1 during cross-examination admitted that he has not filed any proof to show that he paid an amount of Rs.10,000/- as processing fee to the complainant's company. More over DW1 admitted during cross-examination that he received loan amount of Rs.5 lakhs by presenting the cheque bearing

No.026171 issued by the complainant’s company.

7 C.C.No.379/2015, dt 11.04.2017 19.Further Ex.D3 statement of account copy shows that he paid 9 monthly instalments only. However it is admitted fact that the accused paid 9 full monthly instalments and 10 part instalment. Further during 313 Cr.P.C. examination accused stated that he paid entire amount to the company but there is no documentary proof to show that he paid entire amount.

20.Further the contention of the accused is that the amount mentioned in C.C.No.171/2015 includes in the Ex.P1 cheque amount and the same was admitted by the PW1 during his cross-examination.

Merely because the cheque amount in CC.No.171/2015 included in the

Ex.P1 cheque amount, it cannot be said that no cause of action arises.

Once accused received the notice and did not comply with the same automatically cause of action arises. As already stated supra that it is not the case of the accused that he did not obtain the loan from the complainant's company. Further the accused had not even reply to the notice sent by the complainant's company since that would have an opportunity to raise the defence at an earlier stage. Further more the accused has not taken any steps by issuing legal notice to the bank authorities not to honour the cheque if it was presented by the complainant's company without his knowledge.

21.Further even it is assumed for a movement that Ex.P1 was issued towards security on the borrowing amount, still it attracts the offence punishable under section 138 of NI Act, as per the recent judgment of the Hon'ble Apex Court in the case of “Sampelly

Satyanarayana Rao Vs. Indian Renewable Energy

Development Agency Limited in criminal Appeal No.867/2016,

dated 19.09.2016, it is held that

If on the date of the cheque liability or debt exists or the amount has became legally recoverable, the section is attracts and not other wise. Reference to the facts of the present case it clearly show that though the word security is used in clause 3.1(iii) 8 C.C.No.379/2015, dt 11.04.2017 the agreement, the said expression refers to the cheques being towards repayment of instalments. The repayment became due under the agreement, the movement of the loan is advanced and the instalment falls due. It is undisputed that the loan was duly disbursed on 28 th February, 2002 which was prior to the date of the cheque. Once the loan was disbursed and instalment have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under section 138 of the Act. The cheques undoubtedly represent the outstanding liability.

22.In the present case on hand, it is not case of accused that no loan was obtaining from the complainant company and Ex.P1 was not belongs to him. As such in view of the above referred decision of the

Hon'ble Apex Court, even if Ex.P1 was issued towards security, it will not

absolve the accused from his liability. Though accused relied upon

Ex.D1 to Ex.D3 they are no way helpful to the case of the accused.

23.Further the complaint has followed the mandatory requirements under section 138 of NI Act. Ex.P11 loan agreement shows that the accused obtained loan from the complainant's company and executed a promissory note under Ex.P10. Accused issued Ex.P1 cheque for settlement of arbitration case. When the said cheque was presented by the complainant's company through their banker the same was returned with an endorsement of funds insufficient under Ex.P2. After receiving memo the complainant's company got issued statutory legal notice on 04.08.2015 to the accused which is within 30days of the receipt of Ex.P2 as provided under section 138(b) of NI Act. Ex.P4 shows that the said notice was served on the accused on 07.08.2015.

Therefore, the complainant filed the present complaint on 31.08.2015, which is one month of the date on which the cause of action arises as provided under section 142(b) of NI Act. The complainant has followed all the mandatory requirements under section 138 of NI Act.

24.Hence after going through the evidence of PW1 and Ex.P1 to Ex.P11, it is held that complainant's company has proved that accused obtained loan from the complainant's company and executed 9 C.C.No.379/2015, dt 11.04.2017 loan agreement under Ex.P11 and also executed a demand promissory note under Ex.P10 and to settle the said loan amount accused issued cheque under Ex.P1 as such there was a legally enforceable debt between the complainant and accused as on the date of Ex.P1 cheque.

Accused has not been rebutted the presumption under section 139 of NI

Act that cheque was not issued in discharge of legally enforceable debt.

Further the accused failed to place the probable defence.

25.Thus, in view of the above discussions coupled with the evidence of PW1 and Ex.P1 to Ex.P11, the complainant's company clearly established the ingredients under section 138 of NI Act.

Accordingly both the points are answered in favour of the complainant.

26.In the result, the accused is found guilty for the offence under Section 138 of NI Act and accordingly he is convicted under

Section 255(2) Cr.P.C. for the offence under section 138 of NI Act.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 11th day of April, 2017

Judl. Magistrate of I Class, for Special Mobile, Nellore.

11.04.2017

When the accused is questioned about the quantum of sentence that can be imposed against him, accused submitted that his health condition is not good and he is working as a clerk privately and he is having wife and children and he is sole bread winner of his family. Hence prayed the court to take lenient view.

After considering the facts and circumstances and also submissions made by accused, this is a complaint relating to financial transactions and hence, this is not a fit case to invoke the benevolent provision of Probation of Offenders Act or Section 360 Cr.P.C., to the accused. Hence after considering the submissions made by accused and 10 C.C.No.379/2015, dt 11.04.2017 also after taking into consideration that an award is passed in arbitration case against the accused, I feel that the following sentence would meet the ends of justice.

Hence accused is sentenced to undergo simple imprisonment for a period of 6(six) months.

The remand period of the accused if any undergone during trial and also during remand period shall be set off under Section 428 Cr.P.C.

The accused informed about his right of appeal against this udgment before the Hon’ble District Court, Nellore and he reported means to engage a counsel to prefer an appeal.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 11th day of April, 2017.

Judicial Magistrate of I Class

For Special Mobile, Nellore

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant: For Accused:

PW1: Sk.Abdul Subhan DW1: Konjeti Ramesh

DOCUMENTS MARKED

For Complainant:

Ex.P1:Original cheque bearing No.000120, dated 17.07.2015 for an amount of Rs.5,43,000/- issued by the accused in favour of the complainant’s company.

Ex.P2:Return memo dated 24.07.2015.

Ex.P3:Office copy of legal notice, dated 04.08.2015 along with postal receipt

Ex.P4:On line copy to show that notice served on the accused

Ex.P5:Certified copy of authorization, dated 03.10.2010.

Ex.P6:Certified copy of incorporation

Ex.P7:Certified true copy of minutes of the meeting dated 22.06.2010.

11 C.C.No.379/2015, dt 11.04.2017 Ex.P8: Certified copy of the Award in Arbitration Case No.226 of 2015, dated 20.06.2015

Ex.P9: Copy of statement of account

Ex.P10 :Certified true copy of promissory note, dated 13.05.2013.

Ex.P11 :Certified true copy of loan agreement.

For Accused:

Ex.D1 : Vouchers (10 in number)

Ex.D2 : Original copy of life insurance issued by the Shri Ram Life

Insurance company

Ex.D3 : Statement of account issued by Karur Vysya Bank, Nellore.

MATERIAL OBJECTS MARKED:

-NIL-

Judl. Magistrate of I Class, for Special Mobile, Nellore.

1 C.C.No.513/2015, dt 21.04.2017

IN THE COURT OF THE JUDICIALMAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT::NELLORE.

Friday, this the 21st day of April, 2017

Present : - Smt. Y.J.Padmasree, Judl.Magistrate of I Class, Special Mobile Court, Nellore.

Calendar Case No.513/2015

Between:

Chinni Sudhakar S/o.Nagaraju Hindu, aged about 26 years native of 2-9-72 Konetikayyalu, Kovur village and Mandal, SPSR Nellore District presently residing at D.No.6-3-278 Sri Krishna Devaraya Nagar Badvel village and Mandal,

YSR Cuddapah District.....Complainant

Vs.,

Mupparaju Ramesh Naidu Mother of Rathnamma hindu, aged 34 years residing at D.No.2-9-38 Konetikayyalu Street Opp. Yalllasari Purandar Reddy House Kovur village and Mandal SPSR Nellore District.… Accused

This case is coming on 19.04.2017 before me for arguments in the presence of Sri O.Abbai Reddy, the learned advocate for the complainant and Sri M.Sundaraiah Yadav, the learned Advocate for the accused, upon hearing both the sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This is a complaint filed on behalf of the complainant against the accused for the offence punishable under Sections 138 and 142 of

Negotiable Instrument Act (For easy reference it will be referred as

N.I.Act herein after)

2.The case of the complainant is as follows: The accused is the friend of complainant and asked him to give an amount of

Rs.75,000/- by way of hand loan to discharge his housing loan debt amount on 14.08.2014. Then the complainant withdrawn an amount of

Rs.72,000/- from his HDFC bank account through ATM Centre situated at 2 C.C.No.513/2015, dt 21.04.2017 Trunk road, Nellore on the same day and it was given to accused. On the same day in turn the accused has paid the said amount to DHFL Vysya company to discharge his housing loan debt amount situated at Mayuri

Hotel Back side, Pogathota, Nellore and the complainant also accompanied with the accused and the accused has promised to repay the said amount within short time.

(b)Again the accused has requested the complainant to give an amount of Rs.10,000/- by way of hand loan to pay his chit amount, the complainant transferred an amount of Rs.10,000/- from his State

Bank of India account to his account on 19.08.2014.

(c)Again the accused has also requested the complainant to give an amount of Rs.15000/- by way of hand loan to pay his chit amount, the complainant transferred an amount of Rs.15000/- from his

State Bank of India account to his account on 09.09.2014. The accused has promised to the complainant that he will pay the above said three amounts within short time and thereby accused has indebted an amount of Rs.97,000/- to the complainant.

(d) Thereafter, to discharge of the above said debt due to the complainant, the accused issued a cheque bearing No.000020, dated 09.02.2015 for a sum of Rs.80,000/- drawn on HDFC Bank, Trunk Road,

Nellore branch in favour of the complainant. The complainant presented the said cheque for collection in his bank account at State Bank of India,

Nellore, Town branch, Nellore on 07.05.2015 and the same was dishonoured and returned to the complainant on 08.05.2015 by his banker, along with accused banker's cheque return memo, dated 08.05.2015 for the reason of funds insufficient.

(e) The complainant got issued a legal notice on 05.06.2015 to the accused through registered post with ack. Due but the complainant has not received either served acknowledgment card or 3 C.C.No.513/2015, dt 21.04.2017 unserved registered legal notice cover so far and on enquiry the postal authorities given in writing that the notice was served to the accused.

Hence the accused had issued the said cheque towards amount due to the complainant under hand loan which are legally enforceable debt and failed to pay the amount in spite of knowledge of dishonour and also knowledge of notice. Thus, the accused is liable to be punished under section 138 read with 142 of N.I. Act.

3.Originally, the case was filed on the file of learned II Addl.

Judl. Magistrate of I Class, Nellore and on the point of jurisdiction and the same returned to the complainant. Later the complainant presented the above said complaint before this court and this court taken on file for the offence under section 138 NI Act and the same was numbered as

C.C.No.513/2015.

4.On appearance of the accused, copies of the documents were furnished to him as required under Section 207 Cr.P.C.

5.Accused was examined under Section 251 Cr.P.C, by explaining the substance of accusation u/s.138 of N.I.Act made against him in Telugu, for which he denied the same and pleaded not guilty, claimed to be tried in accordance with the law.

6.During the course of trial, on behalf of the complainant, the complainant himself examined as PW1 and got marked Ex.P1 to Ex.P6.

7.After closure of the complainant’s side evidence, accused was examined under Section 313 Cr.P.C., by explaining incriminating material stood against him in the evidence of complainant, to which the accused denied and reported no defence evidence on his behalf, hence defence evidence was closed.

8.Heard the arguments of both the sides and perused the entire material available on record and also perused the written arguments filed by the learned counsel for accused.

4 C.C.No.513/2015, dt 21.04.2017 9.Now, the points for determination are:

1) Whether there was a legally

enforceable debt between the complainant

and accused as on the date of issuance of

Ex.P1 cheque?

2) Whether Ex.P1 cheque was issued by

the accused to the complainant in

discharge of legally enforceable debt?

10.The learned counsel for the complainant submitted that the accused did not deny the signature on Ex.P1 cheque. Hence burden is on the accused to rebut the presumption. But accused failed to rebut the presumption u/s.139 of NI Act and complainant followed all the requirements under section 138 of NI Act. Hence prayed the court to convict the accused.

11. On the other hand, the learned counsel for the accused submitted that there is a material alteration in date portion on Ex.P3 legal notice and also there is no signature of the counsel on Ex.P3 and the complainant failed to follow the mandatory requirements under section 138 of NI Act and. Hence prayed the court to dismiss the complaint.

12.POINT No.1 and 2: To prove its case, the complainant places reliance on the evidence of PW1 and Ex.P1 to Ex.P6. The evidence of PW1 shows that accused asked him to give an amount of Rs.75,000/- by way of hand loan to discharge his housing loan debt amount on 14.08.2014 and he had withdrawn an amount of Rs.72,000/- from his bank i.e., HDFC Bank through ATM centre situated at trunk road, Nellore and the said amount was given to the accused and on the same day in turn the accused paid the said amount to DHFL Vysya company to discharge his housing loan debt amount situated at Mayuri hotel back side Pogathota, Nellore and he also accompanied with him and the accused promised to repay the said amount within short time. PW1 further stated that again the accused requested him to give an amount 5 C.C.No.513/2015, dt 21.04.2017 of Rs.10,000/- by way of hand loan to pay his chit amount. Then he transferred an amount of Rs.10,000/- from his account to the account of the accused on 19.08.2014.

13.PW1 further stated that accused again requested him to give an amount of Rs.15,000/- by way of hand loan to pay the chit amount and then he transferred an amount of Rs.15,000/- from his State

Bank account to the account of the accused on 09.09.2014 and accused thereby indebted total an amount of Rs.97,000/-.

14.PW1 further stated that accused issued cheque bearing

No.000020, dated 09.02.2015 for a sum of Rs.80,000/- drawn on HDFC

Bank, trunk road, Nellore to discharge the said debt amount and accordingly he presented the cheque through his banker on 07.05.2015 but the said cheque was returned on the ground of insufficient of funds along with a memo, dated 08.05.2015 and thereafter he got issued legal notice to the accused on 05.06.2015 calling upon him to pay the said amount but the accused did not comply the same.

15.The contention of the accused is that accused never borrowed an amount of Rs.20,000/- from the complainant and Ex.P1 cheque was issued to the complainant for security purpose only. As seen from the cross-examination of PW1 and written arguments filed by the learned counsel for the accused there is no denial for borrowing amount of Rs.72,000/- from the complainant as a hand loan. Further accused did not deny the signature on Ex.P1 cheque.

16.Though the accused contended that he issued Ex.P1 cheque for security purpose but he has not denied the signature on

Ex.P1 cheque. Once the accused admitted his signature the presumption under section 118 of NI Act shall apply with regard to the consideration, the date, the time of acceptance and the holder is holder in due course.

6 C.C.No.513/2015, dt 21.04.2017 Further the presumption under section 139 of NI Act also came into operation.

17.To rebut the presumption no evidence is placed by the accused and nothing was elicited during the cross-examination of PW1.

At this juncture it is pertinent to look at the observation of Hon'ble

Supreme Court in a case Rangappa Vs., Mohan reported in AIR 2010

SUPREME COURT 1898.Wherein it was held in para 7 that “In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered.” 18.As per the above referred decision once accused admitted his signature on cheque the burden lies on him to rebut the presumption that there was no legally enforceable debt between himself and PW1. As already stated supra, no evidence is placed by the accused to rebut the presumption. Further the accused has not taken any steps by issuing the legal notice to the bank authorities not to honour the cheque if it was presented by the complainant and no report was lodged against the complainant in this regard.

19.The another contention of the accused is that there is a correction in date portion of Ex.P3 legal notice and also there is no signature of the counsel on Ex.P3 legal notice. A bare perusal of Ex.P3 legal notice shows that there is a correction on the date portion but as seen from the postal receipt which was annexed to the Ex.P3 legal notice it was sent on 05.06.2015 and the same date was corrected on Ex.P3 legal notice. Further as seen from the Ex.P6 letter issued by the postal department the said legal notice was delivered on 06.06.2015. Hence, 7 C.C.No.513/2015, dt 21.04.2017 the correction on date portion in Ex.P3 legal notice is not a material alteration and it is not fatal to the case of the complainant. Further merely because there is no signature on Ex.P3 legal notice, it cannot be said that it is not valid one. As already stated supra, as per Ex.P6, it was duly served on the accused. The learned counsel for the accused contended that Ex.P6 does not contain the seal of the postal department. A bare perusal of the Ex.P6, though there is no seal on it but there is signature of issuing authority i.e., Inspector complaints,

Postal Department and the said fact is not denied by the accused. Hence the contention of the learned counsel for the accused has no force in this regard.

20.Further the evidence of PW1 shows that he withdrawn the said amount of Rs.72,000/- from ATM on 14.08.2014 and the said amount was given to the accused on the same day. To prove his contention the complainant placed reliance on the Ex.P5 i.e., HDFC bank statement of PW1. A bare perusal of Ex.P5 shows that PW1 withdrawn total amount of Rs.72,000/- on 14.08.2014 from his account. Further the evidence of PW1 shows that on 19.08.2014 an amount of Rs.10,000/- was transferred and again on 09.09.2014 an amount of Rs.15,000/- was transferred to the account of the accused. To prove the same the complainant places reliance on Ex.P4 bank statement of PW1 as per

Ex.P4 statement it clearly shows that on 19.08.2014 an amount of

Rs.10,000/- transferred and again on 09.09.2014 an amount of

Rs.15,000/- transferred. Hence as per Ex.P4 and Ex.P5 the complainant withdrawn the amount of Rs.72,000/- as well as an amount of

Rs.25,000/- from his account. However the said fact was not denied by the learned counsel for the accused during the cross-examination by way of any specific suggestions.

21.Hence after going through the evidence of PW1 and Ex.P1 to Ex.P6, it is held that the complainant proved that the accused 8 C.C.No.513/2015, dt 21.04.2017 borrowed an amount of Rs.97,000/- from the complainant as a hand loan and to discharge the said debt the accused issued Ex.P1 cheque as such there was a legally enforceable debt between the complainant and accused as on the date of Ex.P1 cheque. Accused has not been rebutted the presumption under section 139 of NI Act even from the material supplied by the complainant that the cheque was not issued in discharge of legally enforceable debt and he failed to raise the probable defence.

Hence both points 1 and 2 are answered in favour of the complainant against the accused.

22.In view of the above discussions coupled with the evidence of PW1 and Ex.P1 to Ex.P6, the complainant has clearly established all the ingredients u/s.138 of NI Act.

23.In the result, the accused is found guilty for the offence under Section 138 of NI Act and accordingly he is convicted under

Section 255(2) Cr.P.C. for the offence under section 138 of NI Act.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 21st day of April, 2017.

Sd/- Y.J.Padmasree

Judl. Magistrate of I Class, for Special Mobile, Nellore.

21.04.2017

When the accused is questioned about the quantum of sentence that can be imposed against him, he submitted that he is having small children and also health condition of the accused is not good, hence prayed the court to take lenient view.

After considering the facts and circumstances and also submissions made by accused, this is a complaint relating to financial transactions and hence, this is not a fit case to invoke the benevolent provision of Probation of Offenders Act or Section 360 Cr.P.C., to the accused. Hence after considering the submissions made by accused, I feel that the following sentence would meet the ends of justice.

9 C.C.No.513/2015, dt 21.04.2017 In the result, accused is sentenced to undergo simple imprisonment for a period of 3(three) months and also to pay compensation of Rs.80,000/- under section 357(3) Cr.P.C. which is equivalent to Ex.P1 cheque. In default of payment of said compensation, he shall further under go simple imprisonment for a period of 3(three) months. The said compensation imposed under Section 357(3) Cr.P.C is to be given to the complainant after expiry of appeal time.

The remand period of the accused if any undergone during trial and also during remand period shall be set off under Section 428 Cr.P.C.

The accused informed about his right of appeal against this judgment before the Hon’ble District Court, Nellore and he reported means to engage a counsel to prefer an appeal.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 21st day of April, 2017.

Sd/- Y.J.Padmasree

Judl. Magistrate of I Class, for Special Mobile, Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant: For Accused:

PW1: Chinni Sudhakar -none-

DOCUMENTS MARKED

For Complainant:

Ex.P1:Original cheque bearing No.000020, dated 09.02.2015 for an amount of Rs.80,000/- issued by the accused in favour of complainant.

Ex.P2:Return memo, dated 08.05.2015

Ex.P3:Office copy of legal notice, dated 05.06.2015 along with postal receipt.

Ex.P4:SBI Bank statement of complainant

Ex.P5:HDFC bank statement of complainant

Ex.P6:Letter issued by the postal authorities, dated 23.07.2015.

10 C.C.No.513/2015, dt 21.04.2017

For Accused: -NIL-

MATERIAL OBJECTS MARKED:

-NIL-

Sd/- Y.J.Padmasree

Judl.Magistrate of I Class, for Special Mobile, Nellore.

//True copy//

Judl.Magistrate of I Class, for Special Mobile, Nellore.

1 C.C.No.153/2016, dt 25.04.2017

IN THE COURT OF THE JUDICIALMAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT::NELLORE.

Tuesday, this the 25th day of April, 2017

Present : - Smt. Y.J.Padmasree, Judl.Magistrate of I Class, Special Mobile Court, Nellore.

Calendar Case No.153/2016

Between:

Natha Nageswara Rao S/o.Late Subrahmanyam Hindu, aged about 51 years employee, residing at Ushmanshaib Pet

Nellore city.....Complainant

Vs., Gangapatnam Chandan Kumar S/o.Doss, Hindu, aged about 35 years residing at D.No.26-1-154 Gayathri Nagar, 4th cross road, Behind Sarojini Nursing Home Clinic, A.K.Nagar, Nellore-4.… Accused

This case is coming on 24.04.2017 before me for arguments in the presence of Sri Ch.Venkata Krishna, the learned advocate for the complainant and Sri C.V.Ratnam, the learned Advocate for the accused, upon hearing both the sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This is a complaint filed on behalf of the complainant against the accused for the offence punishable under Sections 138 and 142 of

Negotiable Instrument Act (For easy reference it will be referred as

N.I.Act herein after)

2.The case of the complainant is as follows: The mother of the accused by name Chemudugunta Hemalatha borrowed a sum of

Rs.5 lakhs from the complainant on 05.11.2012 for her necessities and executed promissory note in his favour agreeing to repay the same with interest @36% p.a. either to the complainant or to his order on demand and on the same day the accused also executed a surety letter stating that he will stand as surety. Later complainant came to know that the mother of the accused died on 04.01.2014 and after knowing the same, the complainant got issued a legal notice calling upon the accused and 2 C.C.No.153/2016, dt 25.04.2017 legal heirs of deceased Chemudugunta Hemalatha to repay the promissory note amount with interest. After receipt of the said legal notice accused approached the complainant and issued a post dated cheque bearing No.839409, dated 10.12.2015 for Rs.5 lakhs drawn on

Corporation Bank, Nellore and later he got issued reply notice with all false allegations. Hence the complainant filed suit in O.S.No.419/2015 on the file of Prl. Senior Civil Judge's Court, Nellore against the accused and legal heirs of the mother of accused and the same is pending.

(b) The complainant presented the said cheque for collection in his account i.e., Karur Vysya Bank, Nellore for collection on 21.12.2015. But the cheque was returned on 23.12.2015 with an endorsement “payment stopped by drawer”. On receiving the memo, the complainant got issued a legal notice to accused on 13.01.2016 in two addresses by demanding the amount covered under the cheque

dated 10.12.2015. The accused received one notice and another notice

was returned with an endorsement not claimed. Hence the accused had issued the said cheque towards amount due to the complainant under surety letter which is legally enforceable debt and failed to pay the amount in spite of knowledge of dishonour and also knowledge of notice.

Thus, the accused is liable to be punished under section 138 read with 142 of N.I. Act.

3.This case was taken on file by this court for the offence under section 138 of NI Act against the accused.

4.On appearance of the accused, copies of the documents were furnished to him as required under Section 207 Cr.P.C.

5.Accused was examined under Section 251 Cr.P.C, by explaining the substance of accusation u/s.138 of N.I.Act made against him in Telugu, for which he denied the same and pleaded not guilty, claimed to be tried in accordance with the law.

3 C.C.No.153/2016, dt 25.04.2017 6.During the course of trial, on behalf of the complainant, the complainant himself examined as PW1 and got marked Ex.P1 to Ex.P8.

7.After closure of the complainant’s side evidence, accused was examined under Section 313 Cr.P.C., by explaining incriminating material stood against him in the evidence of complainant, to which the accused denied and reported no defence evidence on his behalf, hence defence evidence was closed.

8.Heard the arguments of both the sides and perused the entire material available on record.

9.Now, the points for determination are:

1) Whether there was a legally

enforceable debt between the complainant

and accused as on the date of issuance of

Ex.P1 cheque?

2) Whether Ex.P1 cheque was issued by

the accused to the complainant in

discharge of legally enforceable debt?

10.The learned counsel for the complainant submitted that the complainant followed all the requirements under section 138 of NI

Act. He further submitted that though the mother of the accused borrowed the amount of Rs.5 lakhs but accused issued surety letter on the same day and to discharge the said debt he issued Ex.P1 cheque as such there is a legally enforceable debt between the complainant and accused. Hence prayed the court to convict the accused.

11. On the other hand, the learned counsel for the accused submitted that no consideration was passed under Ex.P6 promissory note and the complainant failed to prove that there is legally enforceable debt between the complainant and accused. Hence prayed the court to dismiss the complaint.

12.POINT No.1 and 2: To prove its case, the complainant places reliance on the evidence of PW1 and Ex.P1 to Ex.P8. The 4 C.C.No.153/2016, dt 25.04.2017 evidence of PW1 shows that on 05.11.2012 the mother of the accused by name Chemudugunta Hemalatha borrowed a sum of Rs.5 lakhs for her necessities from him and executed promissory note in his favour agreeing to repay the same with interest @36% p.a. On the same day, accused also executed surety letter stating that he stood as a surety.

The evidence of PW1 further shows that the mother of the accused died on 04.01.2014 and after knowing the same he got issued legal notice to the accused and legal heirs of the deceased Chemudugunta Hemalatha to repay the said debt due under the promissory note and after receipt of the legal notice accused approached him and issued post dated cheque bearing No.839409, dated 10.12.2015 for Rs.5 lakhs drawn on

Corporation, Bank, Nellore and later the accused got issued reply notice with false allegations and thereafter he filed a suit in O.S.No.419/2015 on the file of Prl. Senior Civil Judge, Nellore against the accused and legal heirs of the mother of the accused.

13.The evidence of PW1 further shows that he presented the said cheque for collection through his banker on 21.12.2015 but the said cheque was returned with an endorsement payment stopped by the drawer along with memo, dated 23.12.2015 and later he got issued legal notice to the accused on 13.01.2016 and accused received notice and he did not comply the same. Hence he filed the complaint.

14. The contention of the accused is that his mother borrowed Rs.5 lakhs from the complainant and executed a promissory note and she died on 04.01.2014 and later complainant insisted for the payment of the said amount and he issued surety letter and also cheque to the complainant. Thereafter within one week he obtained loan and repaid the entire amount to the complainant. But complainant falsely filed the present complaint for wrongful gain.

15.It is an admitted fact that the mother of the accused borrowed an amount of Rs.5 lakhs from the complainant and executed a 5 C.C.No.153/2016, dt 25.04.2017 promissory note in his favour. As per the evidence of PW1 on the date of execution of pronote i.e., on 05.11.2012 by the mother of the accused, accused executed a surety letter that he stood as a surety on behalf of his mother. But the contention of the accused is that there is no date on Ex.P7 surety letter and the same was executed by the accused only after death of his mother. Though there is no date on Ex.P7 surety letter, accused not denied the execution of surety letter i.e., Ex.P7. Further accused admitted that he issued Ex.P1 cheque for the discharge of the said debt under Ex.P6 promissory note.

16.The contention of the accused is that after issuing Ex.P1 cheque within one week he obtained the loan and repay the entire amount to the complainant. But except his oral contention there is no documentary proof to show that he repaid the entire amount. Though no consideration was received by the accused but as per Ex.P7 surety letter accused stood as a surety on behalf of his mother that he will repay the entire amount borrowed by his mother, hence there is a legally enforceable debt between the complainant and accused.

17. Further accused did not deny his signature on Ex.P1 cheque once the accused admitted his signature on Ex.P1 cheque, the presumption u/s.118 and 139 of NI Act came into operation which is in favour of holder. Further signing of Ex.P1 cheque was not at all disputed by the accused by giving any specific suggestion. Once complainant discharged his initial burden, it is for the accused either to support of his plea or to defeat the case of the complainant. To rebut the presumption u/s.139 of NI Act no evidence is placed by the accused. Further during the cross-examination it was suggested to PW1 that after the death of mother of accused, PW1 threatened the accused and forcibly obtained

Ex.P7 surety letter for which PW1 denied the said suggestion.

18.During 313 Cr.P.C. examination accused admitted that after the death of his mother he executed Ex.P7 surety letter and 6 C.C.No.153/2016, dt 25.04.2017 thereafter complainant made a galata with him for repayment of said amount, on that he issued Ex.P1 cheque and the same was repaid after one week by obtaining loan and also he insisted for the complainant to return the Ex.P1 cheque. As already stated supra, there is no documentary proof to show that he repaid the entire amount to the complainant and accused did not adduce any evidence to that effect.

Hence the contention of the accused remained as bare statement.

19.Though accused stated that he repaid the entire amount but he has not taken any steps by issuing legal notice to the complainant for return of the Ex.P1 cheque and also he has not lodged any report to the police against the complainant in this regard. Accused failed to rebut the presumption and shake the credibility of the complainant that he did not issue Ex.P1 cheque in discharge of legally enforceable debt. As accused admitted the execution of Ex.P7 surety letter, on behalf of his mother and also issued cheque towards amount borrowed by his mother, hence there is a legally enforceable debt between himself and complainant.

20.Admittedly no reply notice was issued by the accused for the statutory notice dated 13.01.2016. When accused has taken a plea that he repaid the entire amount within a period of one week after issuance of Ex.P1 cheque, he would have got issued reply notice denying the said facts, since that would have opportunity to raise the defence at an early stage.

21.At this juncture it is pertinent to look at the observations of Hon'ble Apex Court in a case Rangappa vs., Mohan reported in AIR 2010 SUPREME COURT 1898. Wherein in para 9 it was held that:

“Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by 7 C.C.No.153/2016, dt 25.04.2017 Section 139 of the Act. With respect to the facts of the present case, it must be clarified that contrary to the trial court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of 'stop payment' instructions sent by the accused to his bank in respect of a post-dated cheque, irrespective of insufficiency of funds in the account.” 22.Further it is settled view that the reason for dishonour of cheque irrelevant and cannot be taken into account. Once the cheque issued by the drawer, a presumption under section 139 of NI Act must follow and despite presentation of cheque in the bank and thereafter issuing a notice of a demand, the amount remained unpaid, the drawer of the cheque can be held responsible under section 138 of NI Act.

23.Therefore, in the light of the above discussions and reasons, the complainant proved that the accused issued Ex.P1 cheque in discharge of legally enforceable debt under Ex.P7 surety letter. Hence both points 1 and 2 are answered in favour of the complainant and against the accused.

24.In view of the above discussions coupled with evidence of

PW1 and Ex.P1 to Ex.P8 that the complainant clearly established all the ingredients as required under Section 138 of NI Act. Hence, the accused has committed an offence punishable under Section 138 NI Act by issuing cheque knowing fully well that payment stopped by him.

25.In the result, the accused is found guilty for the offence under Section 138 of NI Act and accordingly he is convicted under

Section 255(2) Cr.P.C. for the offence under section 138 of NI Act.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 25th day of April, 2017.

Judl. Magistrate of I Class, for Special Mobile, Nellore.

8 C.C.No.153/2016, dt 25.04.2017 25.04.2017

When the accused is questioned about the quantum of sentence that can be imposed against him, he submitted that he is having small kids aged about 3 and 4 years respectively and health condition of his father is not good. Hence prayed the court to take lenient view.

After considering the facts and circumstances and also submissions made by accused, this is a complaint relating to financial transactions and hence, this is not a fit case to invoke the benevolent provision of Probation of Offenders Act or Section 360 Cr.P.C., to the accused. Hence after considering the submissions made by accused, as the civil case is pending between the parties, I feel that the following sentence would meet the ends of justice.

Hence accused is sentenced to undergo simple imprisonment for a period of 6(six) months and also to pay a fine of Rs.10,000/- (Rupees ten thousands only) and in default of payment of fine he shall further under go simple imprisonment for a period of 2 (two) months.

The remand period of the accused if any undergone during trial and also during remand period shall be set off under Section 428 Cr.P.C.

The accused informed about his right of appeal against this judgment before the Hon’ble District Court, Nellore and he reported means to engage a counsel to prefer an appeal.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 25th day of April, 2017.

Judl. Magistrate of I Class, for Special Mobile, Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant: For Accused:

PW1: Natha Nageswara Rao -none- 9 C.C.No.153/2016, dt 25.04.2017

DOCUMENTS MARKED

For Complainant:

Ex.P1:Original cheque bearing No.839409, dated 10.12.2015 for an amount of Rs.5,00,000/- issued by the accused in favour of complainant.

Ex.P2:Return memo, dated 22.12.2015

Ex.P3:Office copy of legal notice, dated 13.01.2015 along with postal receipt.

Ex.P4:Served acknowledgment

Ex.P5:Returned unserved cover

Ex.P6:Certified copy of pronote, dated 05.11.2012 executed by the mother of accused

Ex.P7:Certified copy of surety letter executed by accused

Ex.P8:Certified copy of plaint in O.S.419/2015 on the file of

Principal Senior Civil Judge's court, Nellore.

For Accused: -NIL-

MATERIAL OBJECTS MARKED:

-NIL-

Judl.Magistrate of I Class, for Special Mobile, Nellore.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, KOVUR.

Present : Smt. Y.J. Padmasree,

Principal Junior Civil Judge, Kovur.

Monday, this the 10th day of April, 2023.

Original Suit No.237/2019

Oriti Penchala Prasad. … Plaintiff.

Vs.

Marella Bangaraiah. … Defendant.

This suit is coming on 29.03.2023 before me for final hearing in the presence of Sri P.Sunil Kumar, learned counsel for the plaintiff and of Smt G.Seshamma, learned counsel for the defendant, upon perusing the material papers on record, after hearing on both sides and having stood over for consideration till this day, this Court delivered the following :

J U D G M E N T

This is a suit filed by the plaintiff against the defendant for recovery of sum of Rs.2,82,132/- based on two promissory notes dated 21.11.2017 said to have been executed by defendant in favour of plaintiff for a sum of

Rs.1,00,000/- each.

2. The averments of the plaint in brief are as follows:

On 21.11.2017 the defendant borrowed a sum of Rs.2,00,000/- from the plaintiff for his necessities, agreeing to repay the said amount with interest at 24% per annum and on the same day, he executed two promissory notes in favour of plaintiff for Rs.1,00,000/- each. Thereafter, in spite of repeated demands, the defendant did not choose to repay the debt due under the said promissory notes and postpone the same on some pretext or other. Then the plaintiff got issued a legal notice dated 11.06.2018 to the defendant demanding him to repay the above said debt due under above said promissory notes. After receipt of notice, the defendant requested six months time to repay the said debt and accordingly, the plaintiff waited for six months, but the defendant did not repay the amount. So, the plaintiff again issued legal notice dated 11.01.2019 to the defendant, but he received the said notice and did not give any reply. Hence, the plaintiff is constrained to file the suit.

2

3. The defendant filed written statement by denying the averments of plaint. The brief averments of the written statement are as follows :

(i) The plaintiff never lend the amount either to the defendant or to any of the persons. He is a member of fishermen society under the name and style of Gandhi Jana Sangam, Kaligiri Reservoir and most of the members of society belongs to SC and ST community. The plaintiff used to purchase the fishes from the fishermen of the society and in turn he used to market the same. As the members of the society unable to pay the annual lease for the year 2016-17, the plaintiff agreed to adjust the amount for payment of annual lease to the fisheries department and adjusted an amount of Rs.5,00,000/ and as usual the fishermen used to handover the fishes to the plaintiff and as such they discharged the debt. Subsequently, the fishermen did not obilize to handover the fishes to the plaintiff and disputes arose between them and at the intervention of village elders, he executed the promissory note on behalf of members of society and as such the promissory notes came into existence. Subsequent to the execution of promissory notes, as the plaintiff demanded to pay the amount, at the intervention of one Sekharaiah of Jangala Kandriga, who is securing the interest of society, the fishermen handed over their vehicles (3 Autos and 3 Omni Vans) granted under loan by the Government towards promissory notes and as such the society people again discharged the amount by handing over their vehicles to the plaintiff, and the plaintiff agreed to handover the promissory notes to

Sekharaiah, but the plaintiff failed to handover the same either to Sekharaiah or to him. Thereafter the fishermen informed the cheating of plaintiff to the police of Buchireddypalem, who reprimanded the plaintiff and directed him to bring the promissory notes, but he failed to do so, and filed this suit with false allegations.

Further no consideration was passed under the suit promissory notes and nobody were present at the time of getting signatures on the promissory notes.

Hence, prayed the Court to dismiss the suit with costs.

4.Based on the above pleadings, the following issues were settled for trial :

1) Whether the suit promissory notes dated 21.11.2017 is

true, valid and binding on the defendant?

3

2) Whether the plaintiff is entitled for the suit claim as prayed for?

3) To what relief?

5. To prove its case, the plaintiff himself examined as P.W.1 besides examining P.W.2, who said to be attestor of suit promissory notes. Ex.A.1 to

Ex.A.6 marked.

6. On behalf of the defendant, the defendant himself examined as

D.W.1 besides examining D.W.2 and D.W.3, and Ex.B.1 marked.

7.Heard both sides and perused the material on record.

8. Issue No.1

To prove its case, the plaintiff himself examined as P.W.1 and he reiterated the contents of the plaint and stated that on 21.11.2017 the defendant borrowed an amount of Rs.2,00,000/- from him agreeing to repay the same with interest at 24% per annum and executed two promissory notes, each for Rs.1,00,000/- and in spite of repeated demands and also issuance of two legal notices, he did not pay any amount. Hence, he was constrained to file the suit.

9. Similarly the attestor of Ex.A.1 and Ex.A.2 promissory notes deposed about receiving amount of Rs.2,00,000/- by the defendant from the plaintiff on 21.11.2017 and executed two promissory notes each for Rs.1,00,000/- in favour of plaintiff. Then himself and one Ega Venkateswarlu who were present at that time signed on promissory notes as attestors.

10. On the other hand, the defendant himself examined as D.W.1 and he stated that he is the member of the fishermen society under the name and style of Gandhi Jana Sangam, Kaligiri Reservoir and the plaintiff used to purchase the fishes from the fishermen of the society and he in turn used to market the same and as the members of the society unable to pay the annual lease for the year 2016-17, the plaintiff agreed to adjust for payment of annual lease to the fisheries department and accordingly, he adjusted an amount of

Rs.5,00,000/-. He further stated that as usual the fishermen used to handover the fishes to the plaintiff and as such they discharged the debt. Subsequently, the fishermen did not obilize to handover the fishes to the plaintiff due to

4

disputes arose between them and at the intervention of village elders ad also other elders, he executed the promissory note on behalf of members of society and as such the promissory notes came into existence and subsequently at the intervention of one Sekharaiah of Jangala Kandriga, the fishermen handed over their vehicles (3 Autos and 3 Omni Vans) granted to them by the Government towards promissory notes and requested the plaintiff to handover the promissory notes, but the plaintiff did not handover the same and got filed this suit with false allegations and no consideration was passed under Ex.A.1 and Ex.A.2 promissory notes.

11. To support his contention, one Udayagiri Srinu, who said to be member of fishermen society examined as D.W.2 and he stated that he is the member of the society and himself and other fishermen did not oblize to handover the fish to the plaintiff for cheaper rate and disputes arose between them and at the intervention of village elders, the defendant executed a promissory note on behalf of the members of the society and subsequently, the plaintiff demanded to pay the amount or else handover the vehicles and at the intervention of one Gangapatnm chanadrasekharaiah, he handed over his goods carriage vehicle bearing No.AP.26.TL.5374 granted under loan by the

Government along with vehicles of other beneficiaries. Thereafter, the plaintiff agreed to handover the promissory notes, but he failed to handover the same.

Then they reported the matter to the police, Buchireddypalem and in turn the police enquired into the matter and directed the plaintiff to handover the promissory notes, but without handing over the same, the plaintiff got filed suit with false allegations. Further Ex.B.1 ie., online copy of Registration Certificate marked through D.W.2. As seen from Ex.B.1, the date of registration is on 21.12.2018. Ex.B.1 does not reflect the name of plaintiff to show that whether the vehicle is transferred in favour of plaintiff or not.

12. Further to support his contention, the defendant got examined

D.W.3, who said to be Director of Fishermen Society and he also stated in the same lines as that of D.W.2. According to the evidence of D.W.3, he was Director of Kangiri – Duvvuru Reservoir Fishermen Society from 2014 to 2019 and at the intervention of village elders, the defendant executed promissory notes on 5 behalf of members of the society and later as the plaintiff demanded to pay the amount or else handover the vehicles, D.W.2 handed over his Goods Carriage vehicle to the plaintiff and though discharged the amount which was due to the plaintiff, but the plaintiff got filed the present suit with false allegations..

13. As seen from the entire evidence on behalf of both parties, it makes clear that D.Ws.1 and 2 are the members of the fishermen society and

D.W.3 was the Director of the said society. Further it is also an admitted fact that the said society used to supply fishes to the plaintiff and in turn the plaintiff used to sell the same in the market. As seen from the evidence of D.W.1, he executed

Ex.A.1 and Ex.A.2 promissory notes in favour of plaintiff on behalf of members of the society, but no consideration was received by him and to discharge the said debt, they handed over six vehicles, which were granted to them by the

Government and after receiving the said vehicles, the plaintiff did not return the promissory notes, even though they reported the matter to the police. During cross-examination D.W.1 admitted that the signatures on Ex.A.1 and Ex.A.2 are belongs to him and he himself scribed Ex.A.1 and Ex.A.2. Further D.Ws.1 to 3 clearly admitted that there are no disputes between themselves and plaintiff, though they stated during chief examination there were disputes arose between them. According to the evidence of D.W.1, though they handed over the vehicles to the plaintiff, but he did not return the promissory notes and they also lodged a report to the police. To prove the same, no complaint copy is filed.

Further during chief-examination of D.W.2 and D.W.3, they stated differently that as themselves and other fishermen did not oblize to handover the fishes to the plaintiff for cheaper rate, the disputes arose between the society and plaintiff.

Whereas D.W.1 stated that the members of society unable to pay annual lease to the Fisheries Department, the plaintiff adjusted an amount of Rs.5,00,000/- to them. Therefore, the version of D.W.1 quiet different from the version of D.Ws.2 and 3, and they are not consisting with each other.

14. Though D.W.2 relied upon Ex.B.1, but it is no way helpful to the case of the defendant, since it stands in the name of D.W.2 and the date of registration is 21.12.2018 and whereas coming to the evidence, he clearly stated that they handed over the vehicle in the year 2019.

6

15. Further coming to the evidence of P.Ws.1 and 2, they are consisting and corroborating with each other. Admittedly, the defendant admitted his signatures on ExA.1 and Ex.A.2, but has taken a plea that no consideration was passed under it. But the defendant failed to prove that Ex.A.1 and Ex.A.2 were executed by him on behalf of the society. Further there is no evidence on record to show that D.W.2 and two others handed over three vehicles to the plaintiff to discharge the debt under Ex.A.1 and Ex.A.2 promissory notes, except their oral contention. Further D.W.1 admitted that he received the legal notice dated 11.01.2019 under Ex.A.6, but he did not issue any reply notice to the notice issued by the plaintiff by stating all the facts, which are pleaded by him in his written statement. As already stated supra, D.W.1 to D.W.3 stated that they lodged a report at Buchireddpalem police station against plaintiff in respect of the suit transaction, but there is no documentary proof to prove the said fact.

Further D.Ws.1 to 3 stated that there are disputes between themselves and plaintiff, whereas coming to cross-examination they clearly stated that there are no disputes between them. Further there is no necessity to P.W.2 to depose against the defendant, who have no enemical terms with him. Though the defendant relied upon the evidence of D.Ws.1 to 3 and Ex.B.1, but it is no way helpful to this case and he failed to adduce material evidence to prove his plea.

On the other hand, the plaintiff clearly proves by examining himself as P.W.1 and

P.W.2 attestor and relied upon Ex.A.1 to Ex.A.6 that consideration was passed under Ex.A.1 and Ex.A.2. Accordingly this issue is answered in favour of the plaintiff and against the defendant.

16. Issue No.2

The plaintiff stated that having borrowed the amounts, the defendant did not repay the amount in spite of repeated demands made by him. In view of the finding in the above issues, the plea of passing of no consideration under

Ex.A.1 & Ex.A.2 was disbelieved and disproved. So, the plaintiff could thereby prove the execution of Ex.A.1 and Ex.A.2 by the defendant after receipt of consideration thereunder. Therefore, the plaintiff is entitled for the suit amount as prayed for. Accordingly, this issue is answered in favour of the plaintiff and against the defendant.

7

17. Issue No.3

In view of the findings on the above Issues No.1 & 2, the suit is to be decreed in favour of plaintiff and against the defendants.

In the result, the suit is decreed with costs in favour of the plaintiff directing the defendant to pay a sum of Rs.2,82,132/- to the plaintiff together with subsequent interest at the rate of 12% per annum from the date of the suit till the date of decree and with future interest at the rate of 6% per annum from the date of decree till the date of realization on the principal sum of

Rs.2,00,000/-.

Dictated to the Stenographer Grade-III, transcribed by her, corrected and

pronounced by me in the open Court, this the 10 th day of April, 2023.

Principal Junior Civil Judge,

Kovur

Appendix of evidence

Witnesses examined for

Plaintiff:- Defendant:

P.W.1 : Oriti Penchala Prasad. D.W.1: Marella Bangaraiah. P.W.2 : Kommi Ramanaiah. D.W.2: Udayagiri Srinu. D.W.3: Chalamcherla Mallikarjuna.

Exhibits marked for plaintiff:

Ex.A.1: The original promissory note dated 21.11.2017 for Rs.1,00,000/- executed by defendant in favour of plaintiff.

Ex.A.2: The original promissory note dated 21.11.2017 for Rs.1,00,000/- executed by defendant in favour of plaintiff. Ex.A.3: Office copy of legal notice dated 11.06.2018 along with postal receipt. Ex.A.4: Postal acknowledgment. Ex.A.5: Office copy of legal notice dated 11.01.2019 along with postal receipt. Ex.A.6: Postal acknowledgment.

Exhibits marked for defendant:

Ex.B.1: Online copy of certificate of registration stands in the name of D.W.2 in respect of vehicle bearing No.AP.26.TL.5374.

Principal Junior Civil Judge,

Kovur

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1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT : NELLORE.

Monday, this the 28 th day of July, 2014

Present : Smt Y.J.PADMASREE

Judl. Magistrate of I Class, Special Mobile Court, Nellore.

CALENDER CASE NO. 175/2012

(Old Case No.261/2010 on the file of IV AJMFC Court, Nellore)

Between State Sub-Inspector of Police,

Nellore Rural Police Station ...Complainant

And

Golla Balaramaiah S/o.Mulaiah, aged 45 years, Yadava by caste, Madarajugudur village, Nellore Mandal,

Driver of Ape Auto AP 26 Y 9644 ...Accused

1.Syed Nabi Saheb, S/o.Gouse Saheb, aged 85 years, Muslim by caste, Muslim palem, Vaviletipadu village.

2.Nannam Penchalamma W/o.Seenaiah, Aged 34 years, SC-Mala, Vaviletipadu village,

Nellore Mandal. ... Deceased

This case is coming on 25.07.2014 for final hearing before me in the presence of learned Asst. Public Prosecutor for the complainant and of Sri P.Umamaheswar, learned counsel for accused, and having stood over till this day for consideration, this court delivered the following : -

JUDGMENT

The Sub Inspector of Police, Nellore Rural Police Station, filed charge sheet against the accused in Crime No.211/2009 for the offences punishable under

Secs.304-A, 338 and 337 Indian Penal Code (herein after it is referred as I.P.C.)

2. The case of prosecution in nut shell is as follows:-

On 12.06.2009 at about 20.00 hours deceased No.1 Sd.Nabi Sahib, deceased

No.2-Nannam Penchalamma, LW7-Vannam Gir, LW8-Jalula Venkata Sathis and LW9-

A.Manoj Kumar boarded the auto of accused bearing No.AP 26 Y 9644 at Nellore to go to their respective places. At about 21.15 hours when the auto reached near

Akuthota Harijanawada on Nellore-Muthukur road, the accused drove his auto in rash 2 and negligent manner and dashed a stationary water tanker tractor from behind . As a result of which, the deceased No.1 and deceased No.2 and LWs 7 to 9 namely

Vannam Giri, Jajula Venkata Sathish and Aila Manoj Kumar sustained injuries. Out of them the deceased No.1 and deceased No.2 died on the way to the hospital. On the report of defacto complainant, the Station House Officer, Nellore Rural police station, registered the case and investigated into. Thus, the accused has committed the offences punishable under sections 304-A, 338 and 337 I.P.C.

3. The case was taken on file by the learned IV Additional Judicial

magistrate of I Class, Nellore for the offence punishable under section 304-A, 338 and

337 I.P.C. Later the case was transferred to this court as per the proceedings of the

Hon'ble District and Sessions Judge, Nellore in Dis No.4120/2011 and the same was

renumbered as C.C.No.175/2012.

4. On appearance of the accused, copies of the documents were furnished to the accused as required Under Section.207 Criminal Procedure Code 1973.

5. The accused was examined under Section 251 Cr.P.C., explaining the substance of accusation made against him under section 304-A, 338 and 337 IPC in

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

6.During the trial to substantiate its version, the prosecution examined PWs. 1 to 14 and got exhibited P1 to P11. Syed Shukur(LW1) defacto complainant was examined as PW1. Sharukha Chan Begum(LW3) was examined as PW2. Syed

Munwar(LW2) was examined as PW3. Vannam Giri (LW7) injured was examined as

PW4. Aila Manoj Kumar(LW9) injured was examined as PW5. Gandavarapu Krishna

Reddy(LW11) was examined as PW6. Syed Athahar (LW12) was examined as PW7.

Dr.P.Rama Devi(LW19), doctor was examined as PW8. Gangapatnam

Masthanaiah(LW17) was examined as PW9. Gunnam Chandra Mouli (LW16) was examined as PW10. A.Chandra Sekhar Reddy, Motor vehicles Inspector(LW23) was examined as PW11. Dr.P.Srinivas, medical officer (LW20) was examined as PW12.

T.V.Subba Rao, investigating officer(LW24) was examined as PW13. M.Rosaiah, investigating officer(LW26) was examined as PW14. The evidence of Rozdar sameena(LW3) and Palepu Nageswara Rao(LW18) was given up by the learned 3

Assistant Public Prosecutor. The rural police filed a memo stating that LW5-Gerri

Srinivasulu is died hence the evidence of Gerri Srinivasulu(LW5) was closed. As per memo filed by rural police stating that Nannam Achamma(LW6) is aged person and bed ridden unable to attend the court. Further the Rural police filed another memo stating that whereabouts of Jajula Venkata Sathish(LW8), K.Ramaiah(LW10),

G.S.Gopala Krishna(LW22) not known and LW15-Syed Mahaboob Basha went to Dubai at about 2 years back and after perusing the same, their evidence closed by this court. Inspite of specific direction the presence of Dr.G.Muralidhar(LW21) was not secured by the rural police and hence his evidence was closed by this court.

7. After completion of the prosecution side evidence, the accused was examined under Section 313 Cr.P.C., explaining the incriminating material elicited against him in the evidence of prosecution witnesses. The accused denied the same and reported no defence evidence on his behalf. Hence, the defence side evidence was closed.

8. Heard arguments of both sides.

9. Now the points for determination are:

1. Whether the deceased Nos.1 and 2(Syed Nabi Saheb and Nannam Penchalamma) died due to injuries received in a road accident?

2. Whether the injured PW4 and PW5 LW8 and LW10

sustained injuries in a road accident?

3. Whether the accused was the driver of the crime vehicle and he drover the same in a rash and negligent manner and caused alleged accident?

4. Whether the prosecution proved the guilt of the accused for the offence punishable under sections 304-A, 338 and 337 IPC beyond all reasonable doubt?

10. The case of the prosecution is that on 12.06.2009 at about 21.15 hours the accused who was the driver of the auto drove the same in a rash and negligent manner and dashed a stationary water tanker tractor against the deceased. As a result of which, the deceased Nos.1 and 2 namely Syed Nabi Saheb and Nannam

Penchalamma died and LW7 and LW8 namely Vannam Giri and Jalula Venaka Sathish received injuries. Thus, the accused has committed an offence punishable under section 304-A, 338 and 337 I.P.C. The defence of the accused is of total denial. Now 4 the prosecution has to establish the guilt of the accused for the said offences beyond all reasonable doubt.

11. The learned Assistant Public Prosecutor submitted that the evidence on record amply proved the guilt of the accused and as such the accused shall be punished

12. The learned counsel for the accused submitted that the identification of the accused as that of the driver of the crime vehicle and his rash and negligent manner of driving at the time of accident was not proved by the prosecution. Hence, the prosecution failed to prove the case and prayed the court to acquit the accused.

13.POINT Nos 1 and 2: To avoid repeation points 1 and 2 discussed together:

To prove the death of the deceased Nos.1 and 2 and to prove lthe injuries sustained by injured persons i.e., PW4 and PW5 and LW8 and LW10. PW1 is the defacto complainant deposed that the deceased No.1 is his grand father and on 10.05.2012 while the deceased No.1 came to his shop from Gudur to go to his village and he boarded an auto at VRC center and one hour thereafter himself and his friend

Basha started at VRC center to their village when they reached after crossing

Akuthota they noticed that an accident had taken place. He further deposed that in that accident deceased No.1 sustained injuries on his left shoulder and legs and other passengers also sustained injuries and that his grand father died at the hospital while undergoing treatment and he further deposed that some other persons also died in that accident. PW2 and PW3 are the relatives of deceased No.1 deposed about receiving phone call from PW1 and rushed to the hospital and they noticed the dead body of deceased No.1.

14.PW4 who said to be one of the injured deposed that in the year 2009 at about 08.00 p.m. he boarded an auto to go to Vedayapalem and he slept for a while at that time he heard some sound and he woke up and lost his conscious.

After four days he became conscious.

15.PW5 another injured deposed that on 12.06.2009 at about 9.00 p.m. he 5 boarded in an auto bearing No.9644 at VRC center to go to Dhanalakshmipuram.

When the auto reached the Akuthota Harijanawada area the said auto was met with an accident immediately he lost his conscious and he sustained injury on his fore head.

16.PW6 who said to be mediator deposed about his presence at the time of inquest over the dead body of the deceased No.1 and further he deposed that he did not visit the scene of offence and on the request of the police, he signed on scene observation report.

17.PW7 another mediator did not support the case of the prosecution, he turned hostile wholly.

18. PW9 and PW10 are the mediators on the inquest over the dead body of deceased No.2. They deposed that on the request of the police they acted as mediators on the inquest over the dead body of deceased No.2 and opined that the cause of death of deceased No.2 due to injury sustained in road accident.

19.PW8 is one of the medical officer deposed about the conducting post mortem over the dead body of the deceased No.1 and issuance of Ex.P5 i.e., post mortem report of deceased No.1 and opined that the cause of death of deceased

No.1 is due to shock and haemorrage and multiple to vital organs.

20. PW12 is another medical officer deposed about conducting of post mortem over the dead body of Nannem Penchalamma and issuance of Ex.P8 i.e., post mortem certificate and opined that the cause of death of deceased No.2 is shock and haemorrage due to multiple injuries.

21. PW11 Motor Vehicle Inspector deposed about inspection of the crime vehicle and issuance of Ex.P7. He opined that an accident was not due to any mechanical defects of the crime vehicle.

22.PW13 one of the investigating officer deposed about the registration of 6 crime, visiting the scene of offence, observation of scene of offence, preparation of observation report, rough sketch of the scene of offence, examination of witnesses and conducting inquest over the dead body of deceased Nos.1 and 2.

23.PW14 another investing officer deposed about after verifying the investigation conducted by PW13 and filing of his charge sheet.

24.As seen from the evidence of PW6, PW8 to PW13 coupled with documentary evidence, no suggestion was put forth denying the death of deceased

Nos.1 and 2 in the road accident, it is clearly proved that the deceased Nos.1 and 2 died due to injuries received in a road accident, but failed to prove the injuries of PW4 and PW5 in road accident. Hence these points are answered accordingly.

25. POINT No.3:To prove the identity of the accused as that of driver of the crime vehicle and his rash and negligent

PW3 and PW4 who said to be injured deposed about the manner of the accident but they did not identify the driver of the crime vehicle. As already stated that no witness deposed about the accused as that of the crime vehicle and alleged accident occurred due to rash and negligent manner of the driver of the crime vehicle and the same was not established by any one of the prosecution witnesses.

26. To prove the offence under Section 304-A IPC, three essential ingredients are to be established by the prosecution. One is the death of person and other two are identification of the accused and rash and negligent manner of the accused. Even though there is no dispute with regard to the death of the deceased, the prosecution failed to establish the rash and negligent manner of the accused and identity of the accused by adducing to sufficient evidence. Hence, the evidence on record is not sufficient to identify the accused as that of the driver of the crime vehicle and he drove the same in a rash and negligent manner and caused the alleged accident.

Accordingly this point is answered.

27.POINT No.4:

Though the prosecution proved the deceased Nos.1 and 2 died due to injuries received in a road accident but failed to prove the accused was the driver of 7 the crime vehicle at the time of accident and he drove the same in a rash and negligent manner at the time of accident and caused alleged accident.

28. In view of the facts and circumstances of the case this court is of the opinion that the prosecution failed to prove the guilt of the accused for the offences punishable under sections 304-A, 338 and 337 I.P.C. Therefore, the accused is entitled for acquittal.

29. In the result, the accused is found not guilty for the offences under sections 304-A, 338 and 337 IPC and accordingly he is acquitted under section 255(1) Cr.P.C. for the said offence. The bail bonds of the accused shall be inforce for a period of six months under section 437-A Cr.P.C. As no property is produced no order as regards the disposal of case property is passed.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open court, this the 28th day of July, 2014

Judicial Magistrate of I Class

Special Mobile Court, Nellore

APPENDIX OF EVIDENCE

Witnesses examined

FOR PROSECUTION : PW1: Syed Shukur PW2: Sharukha Chan Begum PW3: Syed Munwar PW4: Vannam Giri PW5:Aila Manoj Kumar. PW6: Gandavarapu Krishna Reddy PW7: Syed Athahar PW8:Dr.P.Rama Devi, doctor PW9: Gangapatnam Masthanaiah PW10: Gunnam Chandra Mouli PW11. A.Chandra Sekhar Reddy, Motor vehicles Inspector PW12: Dr.P.Srinivas, medical officer PW13:.T.V.Subba Rao, investigating officer PW14: M.Rosaiah, investigating officer

FOR DEFECNE : NONE.

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DOCUMENTS MARKED

FOR PROSECUTION :

Ex.P1 :Statement of PW1. Ex.P2: Inquest report of deceased No.1. Ex.P3: .Signature of Pw6 on scene observation report Ex.P4: Signature of PW7 on scene observation report. Ex.P5: Post mortem certificate of deceased No.1. Ex.P6: Inquest report of deceased No.2. Ex.P7: Motor vehicles Inspector report. Ex.P8: Post mortem certificate. Ex.P9 : First information Report. Ex.P10: Rough sketch. Ex.P11: Observation Report.

FOR DEFECNE : NIL

MATERIL OBJECTS

NIL

Judicial Magistrate of I Class

Special Mobile Court, Nellore.