1 C.C.No.

447 of 2016 Dated:26-12-1017

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT : NELLORE.
Present : Sri Shaik Atheeque Ahmad,
Judicial Magistrate of I Class,
Special Mobile Court, Nellore.

Tuesday, the Twenty Sixth (26th) day of December, Two thousand

and Seventeen.

CALENDAR CASE No.447 of 2016

Deepala Chenchamma, w/o Subrahmanyam, aged 41 years, Property
Owner, resident of No.8-373, Thadikala Bazaar, Nellore city.

.. Complainant ..

-Versus-

Konagaluru Kameshwara Rao, S/o Late Masoom, aged 45 years, Resident

of No.24/2/1056, Military Colony, Dargamitta, Nellore city.

.. Accused ..

This case is coming on 20-12-2017 for final hearing before me in

the presence of Sri R.Neelakanta Prasad, Advocate for the

Complainant and of Sri K.Ravikumar, Advocate for the accused,

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 Section 138 of Negotiable

Instruments Act (hereinafter it is referred as N.I. Act)

2. The case of the complainant is as follows:-The accused

borrowed sum of Rs.11,00,000/- (Rupees eleven lakhs only) on

14-04-2015 for his needs and business purpose from the complainant

and executed a demand promissory note on the same day in favour of

the complainant agreeing to repay the same together with interest at

24% p.a., and duly delivered the same to her. After repeated demands
 2 C.C.No.447 of 2016 Dated:26-12-1017

made by the complainant, to discharge the above said legal debt, the

accused issued a cheque bearing No.015684, dated: 16-4-2016 drawn

on Indian Overseas Bank, Dargamitta, Nellore, with a request to present

the said cheque on 4-6-2016. Accordingly, when the complainant

presented the said cheque for collection on 4-6-2016 at her bank

account in State Bank of India, Main Branch, Railway Feeders Road,

Nellore, the said cheque was dishonored with an endorsement “05-

KINDLY CONTACT DRAWER DRAWEE BANK AND PLEASE PRESENT AGAIN”

under a Banker’s memo Dated: 4-6-2016. At the request of the acuused,

the complainant again presented the said cheque on 8-6-2016, but the

said cheque was returned with the same endorsement under banker's

memo Dated:10-06-2016 that “05- KINDLY CONTACT DRAWER DRAWEE

BANK AND PLEASE PRESENT AGAIN”. Then the complainant got issued a

statutory legal notice on 15-6-2016 to the acucsed demanding him to

pay the cheque amount of Rs.14,00,000/- within 15 days of receipt of

the legal notice, but the accused got managed to return the same un-

served. The accused with a dishonest intension to evade the cheque

amount issued the above said cheque. Therefore, the accused

committed offence Under section 138 r/w 142 of the Negotiable

Instruments act. Hence, the complaint.

3. This case was taken on file by my learned predecessor for

the offence punishable under section 138 of N.I. Act against the accused.

4. On appearance of the accused before this Court, copies of

the case documents were furnished to him as contemplated under

Section 207 of Criminal Procedure Code (herein after referred as Cr.P.C.,).

The accused was examined under Section 251 Cr.P.C., by explaining the

substance of accusation for the offence U/sec.138 of N.I. Act made

against him in Telugu, for which he denied the same and pleaded not

guilty and claimed to be tried.

 3 C.C.No.447 of 2016 Dated:26-12-1017

5. To prove her case, the complainant was herself examined

as P.W.1 and got marked Ex.P1 to Ex.P6.

6. Ex.P1 is the original Cheque bearing No.015684, dated:

16-4-2016 for Rs.14,00,000/- drawn on Indian Overseas Bank, Nellore.

Ex.P2 is Original Promissory Note, dated: 14-4-2015 for Rs.11,00,000/-.

Ex.P3 is Cheque Return Memo, dated: 4-6-2016 issued by Branch

Manager, State Bank of India, Main Branch, Nellore. Ex.P4 is the Cheque

Return Memo, dated: 10-6-2016 issued by Branch Manager, State Bank

of India, Nellore. Ex.P5 is office copy of Legal Notice, dated: 15-6-2016

along with Postal Receipt. Ex.P6 is unserved postal cover.

7. After closure of the complainant’s side evidence, the accused

was examined under Section 313 Cr.P.C., by explaining the incriminating

material stood against him in the evidence of complainant, to which the

accused denied and reported that he has defence evidence on his

behalf. The accused got examined himself as D.W.1 and got marked

Ex.D.1 to Ex.D.8. In support of his case, the accused got summoned and

got examined the Deputy Branch Manager of State Bank of India, Nellore

Town Branch as D.W.2 and got marked Ex.D.9 on his behalf. Ex.D1 is the

copy of receipt for redemption of mortgaged property vide Document

No.5249/2014, dated: 6-12-2014 obtained from Me-Seva, Mulapet,

Nellore. Ex.D2 is the copy of Complaint, dated: 14-3-2016 sent to

Superintendent of Police, Nellore. Ex.D3 is copy of Complaint, dated:

10-6-2016 sent to Superintendent of Police, Nellore. Ex.D4 is receipt

issued by the office of Superintendent of Police, Nellore, dated:

27-6-2016. Ex.D5 is copy of Complaint, dated: 27-6-2016 sent to

Superintendent of Police, Nellore. Ex.D6 is two positive photos along with

C.D., Ex.D7 is Computer generated copy of vehicle registration search.

Ex.D8 is certified copy of Plaint in O.S.No.484/2016 on the file of

Honourable Principal Senior Civil Judge, Nellore, Subsequently made over

 4 C.C.No.447 of 2016 Dated:26-12-1017

to the Court of Honourable I Additional Senior Civil Judge Court, Nellore.

Ex.D9 is the computer generated copy of Statement of Account relating

to the complainant i.e., Deepala Chenchamma for account

No.30779435024.

8. Heard arguments on both sides. Both side counsels also filed

written arguments. Perused the entire material available on record.

9. The counsel for complainant mentioned in the written

arguments all the contents of the complaint and further mentioned that

in the cross-examination the P.W.1 told that she gave the amount to the

accused by way of Rs.500/- and Rs.1000/- denomination notes. There are

no bank transactions with regard to the payment paid to the accused. It

is further mentioned in the written arguments that the accused

examined D.W.1 and got marked Exs.D1 to D8. In the cross-examination

the accused/D.W.1 admitted his signature on Ex.P1 cheque. He denied

the signature on Ex.P2 promissory note. But actually, the signature on

Ex.P2 promissory note belongs to the accused. The accused intentionally

denied his signature on Ex.P2 promissory note.

10. The counsel for accused argued and mentioned in the

written arguments that to disprove the case of complainant the accused

got examined himself as D.W.1 and got marked Exs.D1 to D8 and also

got summoned and got examined the Deputy Branch Manager of

complainant's Bank as D.W.2 and got marked Ex.D9. It is further

mentioned in the written arguments that the complainant failed to prove

her capacity to lend such huge amount of Rs.11,00,000/- to the accused.

P.W.1 in her cross-examination deposed that the accused is not her

relative and her caste man. She does not know the native place of

account. It is unbelievable that nobody can lend such huge amount

without much acquaintance. It is further mentioned in the written

 5 C.C.No.447 of 2016 Dated:26-12-1017

arguments that the interest claimed from 14-04-2015 to 16-04-2016 at

24% P.A., is false and there is no legally enforceable debt to issue Ex.P1.

By examining himself as D.W.1 and got examining D,.W.2 and got

marking Exs.D1 to D9, the accused has disproved the case of

complainant and the accused proved that one Jangala Salaja to whom he

issued three signed blank cheques, got filed this case through the

complainant by using one of the said cheques. The counsel for accused

relied on the following decisions reported in :- (1) Acq. D.C.C.812;

(2) Acq. D.C.C.669 and (3) Acq. D.C.C. 715.

11. Now the points for determination are:-

1) Whether the accused issued the Ex.P1 cheque in

favour of complainant for discharging a legally
enforceable debt or other liability?

2) Whether the complainant has complied with all the

legal formalities as per the provisions of Sec.138 r/w
142 of Negotiable Instruments Act?

3) Whether the complainant proved the case against

the accused for the offence Punishable U/Sec.138 of
Negotiable Instruments Act, 1881 beyond reasonable
doubt?

12. Point No.1:- The case of the complainant is that on

14-04-2015 the accused borrowed Rs.11,00,000/- from the complainant

agreeing to repay the same with interest at 24% P.A., and executed

Ex.P2 promissory note. On repeated demands made by the

complainant, the accused issued Ex.P1 cheque to discharge the debt due

under Ex.P2 promissory note. When the complainant presented the

Ex.P1 in her Bank account the same was returned dishonoured and
 6 C.C.No.447 of 2016 Dated:26-12-1017

returned with endorsement “Kindly contact Drawer Drawee Bank and

Please Present again”. The accused knowing fully well that there are no

sufficient funds in his Bank account issued Ex.P1 cheque and thereby

committed the offence U/Sec.138 of N.I. Act. As stated supra to prove

her case the complainant examined herself as P.W.1 and got marked

Exs.P1 to P6.

13. The contention of the accused is that he never borrowed any

amount from the complainant and never executed Ex.P2 cheque in

favour of complainant. He issued three signed blank cheques to one

Jangala Sailaja in the property transactions with her and the said

Janagala Sailaja got filed this case through the complainant by filling up

one of the said cheques. To disprove the case of complainant and to

prove his contention, as stated supra, the accused got examined himself

as D.W.1 and got marked Exs.D1 to D8. The accused also got examined

D.W.2 and got marked Ex.D9, apart from cross-examining the P.W.1.

14. A perusal of evidence on record, P.W.1 in her chief-examination

affidavit re-iterated the contents of her complaint. In her cross-

examination she stated that she is doing business in Prawns. Herself and

her husband are doing business and getting about Rs.30,000/- monthly

income. She denied the suggestion that she is not doing prawns

business and she is running a petty tiffin stall in front of her house. She

further stated that she got one son and one daughter. Her son is a

Scooter mechanic and working in a mechanic shed. The distance

between her house and the house of accused is about 15 k.m. The

accused is not her relative and he is not her caste man. She does not

know the native place of accused. The accused is a Painter. She knows

the accused through her husband. She does not know about the family

details of accused. She denied the suggestion that she had no capacity
 7 C.C.No.447 of 2016 Dated:26-12-1017

to lend Rs.11,00,000/- to the accused. She does not one Kishore. She

denied the suggestion that the accused issued a Signed Blank Cheque to

one Jangala Sailaja, w/o Kishore, resident of Batwadi palem, Nellore in

connection with house site sale transaction and in that connection a

mediation was held in the presence of one Mungamuri Gopi and at that

time the said Jangala Sailaja handed over to her the signed Blank

Cheque issued by the accused to said Jangala Sailaja and got filed this

Case through her. She further denied the suggestion that on the

Complaint of accused to the Superintendent of Police, Nellore, who in

turn forwarded the same to the Sub Divisional Police Officer, Nellore

Town and when the S.D.P.O., Nellore called Jangala Sailaja and her

husband Kishore, the said Sailaja gave the signed Blank Cheque in her

possession to her and got filed this false Case through her. She denied

the suggestion that the accused is not due any amount to her and there

is no legally enforceable debt under Ex.P1.

15. P.W.1 denied the suggestion that Ex.P2 was created by

Jangala Sailaja with the help of one Rolla Ashok who is her cousin and

the said Ashok is a Document writer. P.W.1 further stated that she does

not know who are the attestors on Ex.P2. She does not know who

attested Ex.P2. She denied the suggestion that the signatures on Ex.P2

not belongs to the accused. She stated that the accused asked her to

present the Cheque after two months of his issue. She did not send any

notice to the accused after Ex.P3. She does not remember whether she

demanded the accused to pay the money after Ex.P3 and before Ex.P4.

She denied the suggestion that she sent Ex.P6 postal cover to a different

door number than that mentioned in Ex.P2 purposefully. She further

stated that she has not filed any document to show that she has

properties. She and her husband are supplying prawns to the vendors in

the market. They have no ponds of prawns. She further stated that she
 8 C.C.No.447 of 2016 Dated:26-12-1017

use to purchase prawns from one Ramakrishna, Narayana of Amuluru

village and Beeramgunta village. The accused has not paid any amount

towards interest to her from 14-4-2015 to 16-4-2016. The interest

accrued from 14-4-2015 to 16-4-2016 at 24% per annum on

Rs.11,00,000/- is Rs.3,00,000/-. She denied the suggestion that the

interest claimed by her from 14-4-2015 to 16-4-2016 at 24% per annum

on Rs.11,00,000/- is false and she claimed excessive interest and the

actual interest comes to Rs.2,64,000/- only.

16. P.W.1 further denied the suggestion that in the month of

March, 2016 the Sub Divisional Police Officer, Nellore called one Jangala

Sailaja and her husband Kishore and she also accompanied them to

attend before S.D.O.P., Nellore with regard to a Complaint sent by the

accused to the Superintendent of Police, Nellore, dated: 14-3-2016

stating that the said Sailaja sold away his properties to one Khader

Basha, son of Masthan Saheb by taking advantage of depositing of

original title deeds by the accused towards registered mortgage deed

vide document No.4968/2014 by taking Rs.3,00,000/- from her. She

denied the suggestion that she went to the Police Station along with

Sailaja and her husband Kishore in the above aspect. She also denied

the suggestion that the accused also mentioned in his Complaint to the

Superintendent of Police about Ex.P1 Cheque and another Cheque

bearing No.015685 stating that the said Sailaja obtained signed blank

Cheques from him and the said Sailaja sold away the property of

accused to one Khader Basha without the knowledge of accused. She

further denied the suggestion that again in the month of June, 2016 the

Sub Divisional Police Officer, Nellore called Sailaja and her husband with

regard to another Petition sent by the accused with regard to the above

house property mortgaged by him and she also accompanied Sailaja in

that aspect stating that Sailaja sold the property to Khader Basha under
 9 C.C.No.447 of 2016 Dated:26-12-1017

a registered sale deed vide Document No.3006/2016 of Sub Registrar,

Nellore. She does not know whether one Rolla Ashok who prepared the

mortgage deed in the name of Jangala Sailaja is the same person who

attested Ex.P2. She does not know whether the said Jangala Sailaja filed

a suit in O.S.No.484/2016 on the file of Honourable I Additional Senior

Civil Judge’s court, Nellore claiming Rs.10,00,000/- from one Shaik

Khader Basha and in that suit she stated that she purchased the

property from the accused in this case. She is present in the photo

shown to her. The said photo is taken when she was present near a foot

wear shop by the side of the Court. She admitted that the said photo

was taken on 30-10-2017 after she attended the court and going to her

house in the evening. She stated that she does not know whether the

husband of the said Sailaja by name Kishore is also present in the photo.

She does not know the person who is on the scooter in that photo. She

denied the suggestion that she is living by working in other houses as a

servant-maid and getting Rs.1,000/- per month and she has no capacity

to lend such huge amount of Rs.11,00,000/- to the accused. She denied

the suggestion that to cause loss to the accused, the said Sailaja got

filed this Case against the accused taking undue advantage of signed

blank Cheque issued by the accused to said Sailaja. She denied the

suggestion that she is not doing prawns business and she is not having

any property and she is giving false evidence. She denied the suggestion

that the accused is not due any legally enforceable debt to her and she

filed this case at the instigation of Jangala Sailaja.

17. The accused/D..W.1 deposed that he lives by doing cooli

work. He does not know the Complainant in this Case. He came to know

about filing of this Case after he received summons from this Court. He

saw the Complainant for the first time in the Court only. When he came

to Court for first time after receiving summons and when the
 10 C.C.No.447 of 2016 Dated:26-12-1017

Complainant came to Court and he saw her, she was brought by one

Jangala Sailaja, wife of Jangala Kishore Kumar. He had money dealings

with Jangala Sailaja with regard to selling of his house to her. He

received Rs.3,00,000/- from Jangala Sailaja and mortgaged his house by

executing registered mortgage deed on 16-6-2014 vide document

No.4968/2014. He re-paid the said amount of Rs.3,00,000/- to said

Sailaja on 6-12-2014 vide document No.5249/2014. Subsequently he

came to know that the said Jangala Sailaja sold away his house to one

Khadar Basha. When he asked Sailaja about she selling his house in spite

of he cleared the debt due to her under mortgage deed, she stated that

she will negotiate about the same subsequently. Later she did not

respond. He gave a representation to the Superintendent of Police,

Nellore on 14-3-2016. Later on the instructions of Superintendent of

Police, Nellore the Inspector of Police, IV th town police station called

him and Sailaja and her husband Kishore. In the presence of Inspector of

Police the said Sailaja stated that he is due more than Rs.4,00,000/-.

Along with Sailaja the Complainant also came to Police Station. By that

time he does not know the Complainant. The said Sailaja assured to

settle the issue amicably before the Inspector of Police. At the time he

borrowed Rs.3,00,000/- from the said Sailaja he gave three blank signed

Cheques and three signed blank promissory Notes to her as security.

When the Inspector of Police asked her about the signed blank

Promissory Notes and Cheques, she postponed the same on some

pretext or other. As the said Sailaja did not return his signed blank

Cheques and signed blank Promissory Notes again he gave a

representation to the Superintendent of Police, Nellore on 10-6-2016. But

he gave that representation to the Superintendent of Police on

13-6-2016. Then the Superintendent of Police, Nellore directed the Sub

Divisional Police Officer, Nellore to enquire into the matter. The Sub
 11 C.C.No.447 of 2016 Dated:26-12-1017

Divisional Police Officer, Nellore called him, Sailaja and her husband

Kishore Kumar and also the Iv th town Inspector of Police, Nellore. Even

in the presence of Sub Divisional Police Officer, Nellore the said Sailaja

stated that she will settle the issue but she protracted the matter. Again

on 27-6-2016 he met the Superintendent of Police, Nellore. In between

the enquiry by the Inspector of Police, IV th town, Nellore and the Deputy

Superintendent of Police, Nellore, the said Sailaja came to his house

along with some ladies and raised dispute and beat him. At that time the

said Sailaja asked him to approach one Mungamuru Gopi and settle the

dispute. But he did not go to said Mungamuru Gopi. Again the said

Sailaja came to his house along with some persons and raised dispute.

Then he called Police through 100 dial number. Police came to his house.

By that all were left. Again on 27-6-2016 he sent a requisition to the

Superintendent of Police, Nellore against the said Sailaja and her

husband along with previous petitions copies. He also filed photos to

show that the Complainant was talking with the husband Sailaja by

name Kishore on 30-10-2017 at 4.30 p.m., Subsequently the said Khader

Basha and Sailaja disputed with the site transaction. In that aspect the

said Sailaja filed a Civil Case against the said Khader Basha in

O.S.No.484/2016 on the file of Honourable I Additional Senior Civil

Judge’s court, Nellore. In the Plaint copy filed in O.S.No.484/2016 it is

mentioned that the site property was purchased from him. He does not

know the Complainant in this Case. The Complainant filed this Case at

the instance of Sailaja. There is no legally enforceable debt between him

and the Complainant. He got marked Exs.D1 to D8 as described above.

In his cross-examination he stated that the signature on Ex.P1 belongs to

him. The signatures shown to him on Ex.P2 Promissory Note not belongs

to him. He denied the suggestion that Exhibits D1 to D8 are no way

concerned to this Case. He further denied the suggestion that Jangala

 12 C.C.No.447 of 2016 Dated:26-12-1017

Sailaja and her husband Jangala Kishore are no way concerned to this

Case. He denied the suggestion that he borrowed Rs.11,00,000/- from

the Complainant under Ex.P2 and to discharge the debt due under the

same he issued Ex.P1 to her and now he is deposing false with a view to

evade the amount due to the Complainant. He stated that he has not

received the legal notice got issued by the Complainant. He denied the

suggestion that he managed the postal authorities and got returned the

legal notice got issued by the Complainant. He denied the suggestion

that purposefully to create confusion he filed Exhibits D1 to D8 in this

Case.

18. D.W.2 deposed that he is working as Deputy Branch Manager,

Nellore Town Branch, Railway Feeders Road, Nellore. He received

summons from Court to give evidence in this case. He brought the

statement relating to the account No.30779435024 relating to the

complainant in this case by name Deepala Chenchamma. He brought the

statement of above account from1-6-2009 till date. As per Ex.D.9 in the

account of Deepala Chenchamma the maximum balance is Rs.8,455/-

only from 1.6.2009 to 4.6.2016. The counsel for complainant has not

cross-examined D.W.2 and reported no Cross-examination.

19. In this case the accused admitted his signature on Ex.P1.

Once the accused admitted his signature on the cheque, presumption

U/Sec.139 of N.I. Act comes in favour of the accused. Then the burden is

on the accused to rebut the presumption. To rebut the presumption

U/Sec.139 of N.I. Act the accused examined himself as D.W.1 and got

marked Exs.D1 to D8. The accused also got examined the Dy. Manager

of the Banker of complainant and got marked Ex.D9 apart from cross-

examining the P.W.1. The accused denied his signature on Ex.P2

promissory note. To prove the execution of Ex.P2 promissory note the

 13 C.C.No.447 of 2016 Dated:26-12-1017

complainant examined herself. But she could not examine any other

witness to prove the execution of Ex.P2 promissory note. Moreover P.W.1

in her cross-examination categorically stated that she does not know

who are the attestors of Ex.P2. She never stated that the accused

himself brought the attestors. A perusal of Ex.P2 promissory note there

are two attestors to the same. When the accused denied his signature

on the promissory note, the intial burden is on the complainant to prove

the same. But as stated supra the complainant/P.W.1 failed to examine

either the attestors or the scribe of Ex.P2 promissory note. Therefore the

complainant failed to prove the execution of Ex.P2 promissory note by

the accused with sufficient material.

20. The contention of the accused is that the complainant has no

such capacity to lend such huge amount of Rs.11,00,000/ to him and he

had no such acquaintance with the complainant to lend such huge

amount by her to him. In her cross-examination P.W.1 stated that she

and her husband are doing business and getting Rs.30,000/- monthly

income. She further stated that her son is a scooter mechanic and

working in a mechanic shed. In this case the accused got summoned the

Bank account of the complainant/P.W.1. D.W.2, who is the Deputy

Manager of State Bank of India, Nellore Branch, where the complainant

is holding her account, categorically deposed that as per the account of

complainant the maximum balance maintained by her is only Rs.8,455/-

from 01-06-2009 to 04-06-2016. The family conditions of the

complainant and the facts and circumstances in this case are creating a

doubt with regard to the capacity of complainant to lend such huge

amout of Rs.11,00,000/- to the accused. Here it is pertinent to note that

P.W.1 in her cross-examination stated that the accused is not her relative

and he is not her caste man. She does not know the native place of

accused. She does not know the family details of the accused. She
 14 C.C.No.447 of 2016 Dated:26-12-1017

knows the accused through her husband. But she did not got examine

her husband as a witness. When the complainant had no such

acquaintance with the accused even to know his family details and when

he is not her relative, how she lend such huge amount of Rs.11,00,000/-

to him is not explained by the accused. No prudent person will lend such

huge amount of Rs.11,00,000/- to a person on a promissory note even

without talking any security and even without knowing his family details.

These facts and circumstances are creating a doubt with regard to the

case of complainant.

21. As per the case of complainant the accused borrowed

Rs.11,00,000/- from her on 14-04-2015 agreeing to repay the same with

interest at 24% P.a., and executed Ex.P2 in her favour. To discharge the

said debt the accused issued Ex.P1 cheque on 16-04-2016. In her cross-

examination P.W.1 stated that the accused has not paid any amount

towards interest to her from 14-04-2015 to 16-04-2016. She further

stated that the interest accrued from 14-04-2015 to 16-04-2016 at 24%

P.A., on Rs.11,00,000/- is Rs.3,00,000/- She denied the suggestion that

the interest claimed by her from 14-04-2015 to 16-04-2016 at 24% P.A.,

on Rs.11,00,000/- is false and she claimed excessive interest and the

actual interest comes to Rs.2,64,000/- only. This court observed that the

interest on Rs.11,00,000/- from 14-04-2015 to 16-04-2016 at 24% P.A.,

comes to Rs.2,65,467/- only. Then the total debt due on Ex.P2 as on

16-04-2016 comes to Rs.13,65,467/- only. But the Ex.P1 is for

Rs.14,00,000/- The complainant has not explained why Ex.P1 was drawn

for excessive amount. It is clearly appearing that the Ex.P1 was not

drawn basing on Ex.P2. In such case it cannot be said that the amount

mentioned in Ex.P1 is a legally enforceable debt. In a decision reported

in 2014(1) Acquittal 393 (Bom.) in Crl. Misc. Application No.54 of

2008, in between Anant Bondre vs., Alfred David & Another,

 15 C.C.No.447 of 2016 Dated:26-12-1017

decided on 04-12-2013, the Hon'ble High Court of Bombay (Panaji

Bench) observed that

“33. Basing on the entire evidence on record the

learned trial court has come to the conclusion that the
complainant could not prove his case beyond doubt and
the accused could rebut the presumption. Considering
the case of the accused and testing the same on
touchstone of entire evidence on record, I am of the
view that by preponderance of probabilities, the
accused has been able to prove that the cheque
amount is more than the actual debt. In such
circumstances, it cannot be said that the trial
court committed an error in holding that the
complainant could not prove his case. The accused
is therefore, been rightly acquitted of the offence
punishable under Section 138 of the Act. No
interference with the impugned judgment and order is
called for, even it is felt that another view is possible.”

In the present case at hand as discussed supra the Ex.P1 cheque

amount is more than the actual amount due by the accused as on that

date. Hence, in view of the legal position in the above decision, I am of

the opinion that the complainant could not prove her case.

22. In this case the facts and circumstances are raising a cloud

of suspicion over the case of complainant. On the other hand Exs.D1 to

D8 showing that there were some civil disputes between one Jangala

Sailaja and the accused. Though Exs.D1, D2, D5 are marked subject to

objection, Ex.D4 clearly shows that the accused gave a complaint to the

Superintendent of police against the said Jangala Sailaja with regard to

creating a false document with regard to the property covered under

Ex.D1. Exs.D1 to D5 and D8 relates to the period from 06-12-2014 to

23-11-2016. P.W.1 in her cross-examination admitted that she is present

in Ex.D6 photos. She further stated that the said photo was taken when

she was present near a foot wear shop by the side of the court. She

categorically admitted that the said photo was taken on 30-10-2017

 16 C.C.No.447 of 2016 Dated:26-12-1017

after she attended the court and going to her house in the evening. She

stated that she does not know whether the husband of the said Sailaja

by name Kishore is also present in the photo. She does not know the

person who is on the scooter in that photo. A perusal of Ex.D6 photos

one person is sitting on scooter bearing No.AP 26 AD 1205 and talking

with the complainant. Ex.D7 is showing that the said scooter belongs to

one J.Kishore Kumar. These facts and circumstances are clearly

buttressing the contention of the accused that the present complaint is

got filed by the said Jangala Sailaja and her husband J.Kishore Kumar.

The facts and circumstances in this case are appearing in favour of the

contention of the accused that he issued signed blank cheques to the

said Jangala Sailaja and this complaint is got filed by the said Salaja

through the complainant.

23. The counsel for accused relied on decisions reported in (1)

Acq. D.C.C. 812, in between Mutyala Veerraju vs., C.N.Reddi and

another, in Criminal Appeal No.670 of 1996, decided on 13-03-1997, of

our Hon'ble High Court and (2) Acq. D.C.C. 715, in between M/s

Yankay Drugs and Pharmaceuticals Ltd., vs., M/S Citi Bank, in Criminal

Petition Nos.214 and 215 of 2001, decided on 20-04-2001 of our

Hon'ble High Court. I have gone through the above two decisions. The

facts and circumstances in the cases of those decisions are different

from the facts and circumstances of the present case at hand. Hence

with due respect to the above decisions, I am of the opinion that those

decisions are not applicable to the facts of present case at hand.

24. It is well settled principle of law that in the case of Sec.138

of N.I. Act the complainant has to prove his case beyond reasonable

doubt, whereas the burden on the accused to rebut the presumption in

favour of the complainant is only preponderance of probabilities. In view

 17 C.C.No.447 of 2016 Dated:26-12-1017

of my above discussion and in the facts and circumstances of the case, I

am of the opinion that the accused has successfully rebutted the

presumption U/Sec.139 of N.I. Act and the complainant has failed to

prove that the accused issued Ex.P1 cheque to discharge legally

enforceable debt due under Ex.P2. This point is answered accordingly in

favour of the accused and against the complainant.

25. POINT NO.2:- In this case the accused contented that the

complainant has not got issued statutory notice to his correct address

and failed to comply Sec.138(b) of N.I. Act. A perusal of material on

record, the complainant got mentioned in Ex.P5 the address of accused

as “Kongaluru Kameswara Rao, S/o Late Massum, D.No.24/2/1056,

Military colony, Dargamitta, Nellore.” The same address is mentioned on

the cover of Ex.P6. The Ex.P6 was returned with postal endorsement

“Address not found, want of new door number. Hence returned”. In Ex.P2

the address of the accused is mentioned as “Konagaluru Kameswara

Rao, S/o Late Masum, D.No.24-6-632, Military Colony, Dargamitta,

Nellore”. Though the complainant mentioned the address of accused as

mentioned on Ex.P6 in the complaint, as per the the served postal

acknowledgement available on the record the summons issued by this

court was served on the accused on the address “Kongaluru Kameswara

Rao, S/o Masum, Door No.24-2-1024, Military colony, Dargamitta,

Nellore.” It is appearing that the door number mentioned on Ex.P6 is

completely different that mentioned on Ex.P2 and mentioned on the

postal acknowledgement sent on the process of summons. The counsel

for accused argued that the complainant purposefully sent the legal

notice to wrong address. The counsel for accused relied on a decision

reported in Acq. D.C.C. 669, in between Shashi Finance Corporation

vs., Super Shine Abrasives (P) Ltd., Hyderabad & Ors., in Criminal
 18 C.C.No.447 of 2016 Dated:26-12-1017

Appeal No.48 of 2000, decided on 22-08-2003, in which our Hon'ble

High Court observed that

“8. Exhibits P-11, P-12 and P-13 are the returned

postal covers. The endorsement made on Ex. P-11
shows that the factory was closed and whereas the
endorsement made on Exs. P-12 and P-13 shows
that the addressee left. As seen from the
complaint, the accused were residing presently at
Door No. 12-1-331/149 (MPL, No. 529), Dattatray a
Colony, Asifnagar-South, Hyderabad-500028. But
as seen from Exhibits P-12 and P-13, notices were
sent to the address bearing H. No. 3-104, Divya
Shanti Apartments, Ameerpet, Hyderabad-5000 16.
Hence, on the face of the record it is clear that the
complainant had not sent the notices to the correct
address of the accused. Therefore, presumption
under Section 27 of the General Clauses Act
cannot be drawn. The lower Court after considering
the entire evidence on record rightly held that
there was no constructive service of legal notice on
the accused as contemplated under Section 138(d)
of the Act. It is a mandatory provision and it is
not only the duty of the complainant to send
the notice, but also see that it is served on
the accused. Of course, if the accused
refused to receive the same, then it is
deemed service of notice. That is entirely a
different aspect. The return of a cover by
registered post sent to a wrong address
cannot be said to be a deemed service.
Therefore, the lower Court rightly held that there
was no constructive service of legal notice on the
accused as contemplated under Section 138(d) of
the Act.".

In the present case at hand the notice was sent to the accused on the

D.No.24/2/1056. But the summons was served on the accused on

D.No.24/2/1024. Even in the Ex.P2 the D.No., is mentioned as 24-6-632.

In view of the legal position discussed above, I am of the considered

opinion that the legal notice was not sent to proper address and the
 19 C.C.No.447 of 2016 Dated:26-12-1017

complainant has not complained with Sec.138(b) of N.I. Act properly.

Thus I am of the opinion that the complainant has failed to comply all

the legal formalities laid down U/Sec.138 r/w 142 of N.I. Act. This point is

answered accordingly in favour of the accused and against the

complainant.

26. POINT NO.3:- In view of my finding on point Nos.1 and 2

and in the facts and circumstances of the case, I am of the considered

opinion that the complainant has failed to prove her case against the

accused for the offence U/Sec.138 of Negotiable Instruments Act, 1881

beyond reasonable doubt and hence this complaint is liable to be

dismissed. Consequently, the accused is entitled for acquittal. This point

is answered accordingly in favour of the accused and against the

complainant.

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

offence punishable U/sec.138 of Negotiable Instruments Act, 1881

and he is acquitted U/Sec.255 (1) Cr.P.C., The bail bonds of the accused

shall be in force for six months U/Sec.437A Cr.P.C., and thereafter they

shall stands cancelled.

Typed by me personally, corrected and pronounced by me in the

open court on this the 26th day of December, 2017.

Sd/-Sk.Atheeque Ahmad
Judicial Magistrate of I Class,
Special Mobile Court, Nellore.

APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant:

P.W1: Deepala Chenchamma.

For Accused:

D.W.1: K.Kameswar Rao.

D.W.2: B.Kutumba Rao.

 20 C.C.No.447 of 2016 Dated:26-12-1017

DOCUMENTS MARKED

For Complainant:

Ex.P1 : Original Cheque bearing No.015684, dated 16-4-2016 for

Rs.14,00,000/- drawn on Indian Overseas Bank, Nellore.
Ex.P2 : Original Promissory Note, dated 14-4-2015 for Rs.11,00,000/-.

Ex.P3 : Cheque Return Memo, dated 4-6-2016 issued by Branch

Manager, State Bank of India, Main Branch, Nellore.

Ex.P4 : Cheque Return Memo, dated 10-6-2016 issued by Branch

Manager, State Bank of India, Nellore.
Ex.P5 : Office copy of Legal Notice, dated 15-6-2016 along with Postal
Receipt.

Ex.P6 : Unserved postal cover.

For Accused:

Ex.D.1 The copy of receipt for redemption of mortgaged property vide

Document No.5249/2014, dated 6-12-2014 obtained from Me-
Seva, Mulapet, Nellore(subject to objection).
Ex.D.2 The copy of Complaint, dated 14-3-2016 sent to Superintendent
of Police, Nellore(marked subject to objection).
Ex.D.3 Copy of Complaint, dated 10-6-2016 sent to Superintendent of
Police, Nellore(marked subject to objection).
Ex.D.4 Receipt issued by the office of Superintendent of Police, Nellore,
dated 27-6-2016.
Ex.D.5 Copy of Complaint, dated 27-6-2016 sent to Superintendent of
Police, Nellore(marked subject to objection).
Ex.D.6 Two positive photos along with C.D.(marked subject to
objection).
Ex.D.7 Computer generated copy of vehicle registration
search(marked subject to objection).
Ex.D.8 Certified copy of Plaint in O.S.No.484/2016 on the file of
Honourable Principal Senior Civil Judge, Nellore. Subsequently
made over to the Court of Honourable I Additional Senior Civil
Judge Court, Nellore.
Ex.D.9 The computer generated copy of Statement of Account relating
to Deepala Chenchamma for account No.30779435024.

MATERIAL OBJECTS MARKED:

-NIL-
Sd/- S.A.A.
J.M.F.C.,
Spl. M.C., NLR.,

// True copy //

Judicial Magistrate of I Class,

Special Mobile Court, Nellore.