Calendar Case No.290 Of 2016: In The Court Of The Judicial Magistrate Of I Class, Special Mobile Court: Nellore

1

C.C.No.290 of 2016 Dated:11.12.2017

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.

Monday, the Eleventh (11th) day of December, Two thousand and Seventeen

CALENDAR CASE No.290 of 2016 (C.C.No.172/2014

on the file of II Additional Judicial Magistrate of I class, Nellore was returned

on the point of jurisdiction. The same was represented before this court and re-numbered as C.C.No.290/2016)

Shaik Muntaz, w/o Chand Basha, Muslim, aged 35 years, residing at D.No.20-10513, Saluchintala, Nellore city. .. Complainant .. -VersusShaik Ansar @ Anwar, c/o Masood Cars, aged 55years, Muslim, Businessnman, Residing at D.No.8-1-446, beside Madala Balathimmaiah Kalyana Mandapam, Ranganayakulapeta, Nellore city. .. Accused .. This case is coming on 4-12-2017 for final hearing before me in the presence of Sri Patan Shafi Ahamed, Advocate for the Complainant and of Sri G.Ramanamma and Sri D.Ramanaiah, Advocates 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 Instrument Act (hereinafter it is referred as N.I. Act) 2. The case of the complainant is as follows:- The accused and the husband of complainant are running a used cars business in Nellore city and in that relation, the accused borrowed a sum of

2

C.C.No.290 of 2016 Dated:11.12.2017

Rs.1,50,000/- on 10.11.2013 from the complainant as hand loan, agreeing to repay the same by executing a cheque bearing No.556126 dt:5.12.2013 for Rs.1,50,000/- drawn on Punjab National Bank, Nellore branch. In spite of repeated demands, the accused failed to pay the amount under the said cheque within the time. Further, when the complainant presented the said cheque for collection

through her

banker I.e., Vijaya Bank, Nellore on 27.1.2014, the said cheque was dishonoured and returned along with memo. dt:27.1.2014 to the effect that the account of accused was closed. Then the complainant issued a legal notice to the accused on 4.2.2014 to repay the dishonoured cheque amount within 15 days from the date of receipt of the said notice. The accused received the said notice on 7.2.2014 and he neither paid the amount nor issued any reply. Thus, the accused issued cheque with malafide intention to cheat the complainant. Hence, the complaint. 3. This case was originally taken on file by the then II Additional Judicial Magistrate of I class, Nellore for the offence punishable under section 138 of N.I. Act against the accused and assigned number as C.C.172 of 2014. Later, the said C.C.No.172/2014 was returned on the point of jurisdiction. The same was represented before this Court and renumbered as C.C.No.290/2016. 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 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.290 of 2016 Dated:11.12.2017

5. During the course of trial, on behalf of the complainant, the complainant herself was examined as P.W.1 and got marked Ex.P1 to Ex.P4 and also got examined her husband by name Shaik Chand Basha, as P.W.2. 6. Ex.P.1 is the original cheque bearing No.556126, dated: 5.12.2013 for Rs.1,50,000/- drawn on Punjab National Bank, Nellore Branch. Ex.P.2 is the cheque return memo. Dated: 27.1.2014 issued by Punjab National Bank, Nellore to Vijaya Bank. Ex.P.3 is office copy of legal notice, dated: 4.2.2014 along with postal receipt. Ex.P.4 is served postal acknowledgment. 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 and got examined himself as D.W.1 and got marked Ex.D.1 on his behalf. Ex.D.1 is the certified copy of affidavit and petition in I.P.No.3/2014 on the file of Hon'ble Principal Senior Civil Judge’s Court, Nellore. 8. Heard arguments of counsel complainant. The counsel for accused filed written arguments. Perused the entire material available on record. 9. The counsel for complainant argued that by examining P.Ws.1 and 2 and got marking Exs.P1 to P4 the complainant has proved his case. The counsel for complainant further argued that though the accused received Ex.P3 legal notice under

Ex.P4

served postal

acknowledgement, has not got issued any reply notice. The accused simply stated that he has not received legal notice and the signature on Ex.P4 not belongs to him. The address on Ex.P4 is a wrong address. But

4

C.C.No.290 of 2016 Dated:11.12.2017

the accused/D.W.1 in his cross-examination admitted that previously he resided in Ranganayakulapeta by the side of Blathimmayya Kalyana Mandapam, when this case was filed by the complainant. It clearly shows that the accused falsely stated that he has not received any legal notice got issued by the complainant. The counsel for complainant further argued that it was suggested to P.W.1 in the cross-examination that the accused closed his bank account in the year 2010 itself and he never issued cheque. In the cross-examination of P.W.2 it was suggested that the son of accused by name Masood handed over the cheque of his father by forging the signature of his father. These suggestions in the cross-examination of P.Ws.1 and 2 are not put to both P.Ws.1 and 2 and it clearly shows that the accused taken inconsistent pleas. The counsel for complainant further argued that the accused has not taken any steps to prove that the address on Ex.P4 not belongs to him and he also not proved that the signature on Ex.P1 not belongs to him. In such case presumption U/Sec.139 of N.I. Act comes in favour of the complainant. The counsel for complainant further argued that the accused failed to rebut the presumption in favour of complainant and hence he is liable for the offence U/Sec.138 of N.I. Act. 10. The counsel for the accused mentioned in the written arguments that the accused never carried joint business with the husband of complainant, but his son and the husband of complainant had relation in the business. The complainant has no capacity to lend such huge amount and in the complaint, statutory notice and the chiefexamination of P.W.1 it is silent about the source of money and capacity of the complainant. The complainant in her cross-examination stated that she obtained promissory note from the accused when she lend the amount, but in the statutory notice, complaint and chief-examination affidavit she mentioned that she lent hand loan to the accused. There is

5

C.C.No.290 of 2016 Dated:11.12.2017

material alteration in date column of Ex.P1 as one date was strike off and put another date. The signatures on Ex.P1 are not belongs to the accused. As per the version of P.W.1 her husband and the accused did cars business jointly. But P.W.2, who is the husband of accused stated that he did cars business with the son of accused by name Masood. The counsel for accused further mentioned in the written arguments that the accused has not received Ex.P3 statutory notice under Ex.P4 served postal acknowledgement and the address on Ex.P4 not belongs to the accused. The complainant has got mentioned a wrong address. The signature on Ex.P4 is a forged signature. It is further mentioned in the written arguments of the counsel for accused that the summons from the court also not served on the accused. When summons returned unserved, the court usually orders for fresh smmons. But in this case the court straight away issued warrant against the accused. On knowing the issuance of warrant the accused entered his appearance and this is a strange one and it is also one of the handicraft of the complainant. Thus the accused lost his valuable right to answer for statutory notice. The accused prays to exercise power of court conferred U/Sec.73 of Evidence Act to compare the signature on Ex.P4 with the signature on Ex.P1, as well as with the vakalath and deposition recorded in the court. The address on Ex.P4 is the address of the shop of the son of accused. But due to loss in his business the son of accused closed the shop. So it is proved that no one were in the address mentioned on Ex.P4 by the time of Ex.P3. The signature on Ex.P4 is a forged one. The complainant has failed to prove her case beyond reasonable doubt and the complaint is liable to be dismissed. The counsel for accused relied on a decision of our Hon'ble High Court in between Sammeta Srihari Vs., The State of Andhra Pradesh, decided on 04-06-2014. 11. Now the points for determination are:-

6

C.C.No.290 of 2016 Dated:11.12.2017

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 10-112013 the accused borrowed a sum of Rs.1,50,000/- from her as a hand loan for his necessities and to discharge the same, the accused issued Ex.P1 cheque on 05-12-2013. When the complainant presented the said cheque in his bank the same was returned dishonoured under Ex.P2 due to the reason “Account closed”. The complainant got issued legal notice to the accused under Ex.P3, which was served on the accused under Ex.P4. In spite of receiving legal notice the accused did not repay the cheque amount and not replied to the notice. Hence the accused has committed an offence punishable U/Sec.138 of N.I. Act. To prove her case, as stated supra, the complainant got examined herself as P.W.1 and got marked Exs.P1 to P4 and also got examined her husband as P.W.2. 13. On the other hand the contention of the accused is that he never borrowed any amount from the complainant and he never issued Ex.P1 cheque in favour of the complainant. The signatures on Ex.P1 not belongs to him. The accused closed his Bank account in the year 2010 itself. The son of accused handed over the Ex.P1 cheque to the husband of complainant in his business transactions by forging the signature of

7

C.C.No.290 of 2016 Dated:11.12.2017

his father i.e., accused. The further contention of the accused is that he has not received Ex.P3 legal notice and the signature on Ex.P4 served postal

acknowledgement

not

belongs

to

him.

The

complainant

purposefully sent the legal notice to a wrong address and managed to get Ex.P4 served postal acknowledgement. To disprove the case of complainant, the accused got examined himself as D.W.1 and got marked Ex.D1, apart

from relying on the cross-examination of P.Ws.1

and 2. 14. A perusal of evidence on record P.W.1-Shaik Muntaz reiterated the contents of complaint in her chief-examination affidavit. In her cross-examination she stated that she lent the amount to the accused on 10-11-2013 at her house. She obtained promissory note from the accused. She did not remember whether she filed

the said

promissory note into the court or not. The accused executed the promissory note in her favour after taking money from her. She secured money from Dwakra Group and also some money from her husband. She denied the suggestion that the accused had no necessity to take such huge amount of Rs.1,50,000/- from her and she had no capacity to lend such amount. She further stated that there are two signatures of accused on Ex.P1. She again stated that she does not remember exactly. She admitted that there is correction in the date of Ex.P1. She further admitted that the date 16-03-2013 was strike off and the date 05-122013 was mentioned on Ex.P1. She denied the suggestion that the signature at the correction of date not belonged to the accused. She further denied the suggestion that the account of accused was already closed in the year 2010 itself and he never issued cheque to her at any point of time. She denied the suggestion that the signature on Ex.P1 not belongs to the accused. She denied the suggestion that she sent legal notice to a wrong address. She further denied the suggestion that she

8

C.C.No.290 of 2016 Dated:11.12.2017

managed the postal authorities and got obtained the signature of others on Ex.P4 and the signature on Ex.P4 not belongs to the accused. 15. P.W.2-Shaik Chand Basha, who is husband of P.W.1, in his chief-examination affidavit deposed that on 10.11.2013 the accused borrowed a sum of Rs.1,50,000/- from his wife as a hand loan with the mediation of himself and another person by name Shaik Rasool, for his necessities, agreeing to repay the same on her demand and in consideration thereof, the accused issued a cheque bearing NO.556126 for Rs.1,50,000/- dated 5.12.2013 and agreed to clear the cheque amount at the time of presentation. In spite of repeated demands , the accused failed to pay the amount due under the above said cheque within the time mentioned in cheque. When her wife presented the said cheque for collection on 27.1.2014, the same was dishonoured as the account of accused was closed and that a memo dated 27.1.2014 was issued to that effect. Then, his wife issued legal notice dated 4.2.2014 to the accused, the accused received the said notice and did not comply it.

In his cross-examination P.W.2 stated that he knows the son of the

accused by name Shaik Masood. He admitted that he and the said Masood did cars business upto 2 years prior to this case. He further admitted that he and Masood had financial dealings. He denied the suggestion that he lend money to the said Masood and the said Masood handed over a cheque relating to Bank account of his father by forging the signature of his father. He further stated that his wife is a House wife and she is not doing any work. He denied the suggestion that his wife is running chits. He stated that on 10-11-2013 his wife gave Rs.1,50,000/at his house and obtained a promissory note from the accused. He stated that the accused issued cheque on 05-12-2013 to his wife at the shop of accused. He further stated that his wife secured the amount of Rs.1,50,000/- from Podupu group as a leader and also out of the money

9

C.C.No.290 of 2016 Dated:11.12.2017

gave by him. He denied the suggestion that the signature at the top of Ex.P1 at date column by the side of striking of date not belongs to the accused. He stated that he does not know whether the accused closed his account in the year 2010 itself. 16. The accused/D.W.1-Sk.Ansar Basha in his chief-examination deposed that he is resident of Kamakshi Nagar area of Santhapeta of Nellore city. He is residing in that area since 10 years. Now he is not doing any work and depending upon his daughter. He got two sons namely Mansoor, Masood. He used to visit the shop of his son Masood, who is doing second hand cars business near Ranganayakulapeta. On 27.01.2014 his son Masood filed Insolvency petition due to loss in the business in I.P.No.3/2014 on the file of Hon’ble Principal Senior Civil Judge, Nellore. He further deposed that he has not received any notice from this Court in this case. He had not issued any cheque in favour of the complainant and the signature on Ex.P.1 is not of him, and he never issued Ex.P.1 in favour of the complainant. Now, he is depending upon his daughter, as his sons neglected him. Ex.D.1 is the certified copy of affidavit and petition in I.P.No.3/2014 on the file of Principal Senior Civil Judge’s Court, Nellore. In his cross-examination he stated that previously he resided in Ranganayakulapeta area by the side of Balathimmayya Kalyanamandapam. When this case was filed by the complainant he was residing

in

Ranganayakulapeta

by

the

side

of

Balathimmayya

Kalyanamandapam. He stated that he has not filed any document to show his address proof. He stated that he has not given any stop payment instructions to the banker particularly with regard to Ex.P1 cheque. He stated that he has not given any complaint for missing of his cheque i.e., Ex.P1.

10

C.C.No.290 of 2016 Dated:11.12.2017

17. In this case there is no dispute that Ex.P1 cheque was drawn on the bank account of the accused. But the accused denied his signatures on Ex.P1. The specific contention of the accused is that he never issued Ex.P1 cheque to the complainant and his son gave his cheque to the husband of P.W.1 i.e., P.W.2 by forging his signature. A perusal of cross-examination of P.W.1 this suggestion was not put to her. For the first time the accused put the above suggestion to P.W.2. More over in his chief-examination the accused/D.W.1 never deposed that his son forged his signature on his cheque i.e., Ex.P1 and handed over to P.W.2 in his business transactions. The accused even denied his signature on Ex.P4. He contended that he has not received Ex.P3 notice and the complainant managed the postal authorities and got his signature forged on Ex.P4. He further contended that the address on Ex.P4 is wrong. Here it is pertinent to note that in his cross-examination the accused/D.W.1 stated that he resided in Ranganayakulapeta area by the side of Balatimmayya Kalyanamandapam. He categorically stated that when this case was filed by the complainant, he was residing Ranganayakulapeta by the side of Balathimmayya kalyanamandapam. A perusal of address in Ex.P3 and also on Ex.P4 they are one and same in Ranganayakulapeta area besides Balathimmayya Kalyanamandapam. The evidence of the accused/D.W.1 in his cross-examinagtion clearly proves that he was residing in the address mentioned in Ex.P3 and Ex.P4 by the date of issuing statutory notice by the complainant to the accused. It is clearly appearing that the accused has received Ex.P3 legal notice under Ex.P4, but taken a formal plea that he has not received Ex.P3 legal notice by denying his signature on Ex.P4. 18. In the written arguments filed by the counsel for accused in para No.11 it is mentioned as “Further, the summons from court also not served on the accused. It is pertinent to note that, it is usual to the court,

11

C.C.No.290 of 2016 Dated:11.12.2017

when summons returned unserved, the court usually, ordered for fresh summons; in this case, the Hon'ble Court straight away issued warrant against the accused. On knowing the same the accused entered his appearance into the portals of the court, this is a strange one, it is also one of the handicraft of the complainant, thus the accused lost his valuable right to answer for statutory notice.”

At this stage this court observed that this

case was originally filed in the II Additional Judicial Magistrate of I class, Nellore. Summons were sent to the accused through Registered post. The Registered post cover addressed to accused on the address mentioned in the Ex.P3 and also complaint, was returned with postal endorsements “Intimation 25.04.2014” and also “Unclaimed”. The docket order dated: 28-06-2014 shows as follows:- “Complainant called absent. No representation. Accused called absent. No representation. SS of accused by RP returned as intimation on 25-04-2014. Service is held sufficient. Hence Issue NBW against accused on payment of process call on 13-08-2014.”

From the material on record it is clearly appearing that as

the accused has intimation about the issuance of summons and also there is postal endorsement as “Unclaimed” the then II Additional Judicial Magistrate of I class, Nellore ordered for N.B.W., against the accused. But supressing all these material facts, in the written arguments on behalf of accused it is alleged that N.B.W., was ordered when summons were returned unserved and it is also a handicraft of complainant. It is clearly appearing that false allegations are made in the written arguments filed on behalf of accused to get over from the laches of accused by hook or by crook. The material on record disclosing that the accused though received statutory notice under Ex.P3, without giving reply, is making false allegations by taking false plea intentionally. 19. As stated supra the material on record is disclosing that the accused has taken formal plea with regard to non receipt of statutory notice under Ex.P3 sent to his address. More over the accused has not

12

C.C.No.290 of 2016 Dated:11.12.2017

taken any steps to prove that the address mentioned on Exs.P3 and P4 are wrong. He has also not taken any steps to prove that the signature on Ex.P4 is not of him and it is a forged signature. More over his admissions in his cross-examination proves that the address on Exs.P3 and P4 are correct. Hence, as stated above, it is established that the accused received statutory legal notice under Ex.P4. Though the accused received legal notice he did not reply to the same. It is clearly appearing that the accused has taken the plea of forgery of his signatures on Ex.P1 as a afterthought one. The accused failed to establish that the signature on Ex.P1 not belongs to him. On the other hand the complainant by examining herself and also P.W.2 proved that the signatures on Ex.P1 belongs to the accused. When once it is held that the signatures on Ex.P1 belongs to the accused, the presumption U/Sec.139 of N.I. Act comes in favour of the complainant. Then the burden shifts on the accused to rebut the said presumption. 20. To rebut the presumption in favour of complainant, the accused cross-examined P.Ws.1 and 2 and also got himself examined as D.W.1. The accused also filed Ex.D1 to show that his son filed Insolvency Petition showing the complainant as one of his creditors. A perusal of Ex.D1 in the “B" schedule the name of complainant is mentioned at S.No.1 showing that an amount of Rs.1,50,000/- is due to her by the son of accused by name Masood. This material on record is clearly showing that there are financial transactions between the family of accused and the complainant. In the written arguments of counsel for accused it is mentioned that P.Ws.1 and 2 stated in their evidence that at the time of lending money the P.W.1 obtained a Promissory note from the accused, which is contradictory to the pleadings of complainant in the complaint and also in the statutory notice, as it is mentioned as hand loan. No doubt in their cross-examination P.Ws.1and 2 they stated that the

13

C.C.No.290 of 2016 Dated:11.12.2017

accused executed a promissory note at the time of taking money and the same is not filed in this case. But simply on that score the entire case of complainant cannot be brushed out. This court has to consider the entire material as whole and to come to a conclusion.

From the

contents of Ex.D1 and the evidence on record it is appearing that to discharge the debt due by his son to the complainant, the accused handed over his signed cheque to the complainant for Rs.1,50,000/which is to be treated as “other liability”. Even in such case the accused is liable to discharge the amount due under Ex.P1. 21. The accused contended that he closed his account in the year 2010 itself. But he did not place any material on record to that effect. He even did not summon the concerned Bank authorities to prove his contention. From the facts and circumstances of the case it is appearing that after issuing Ex.P1 the accused closed his account. Even if the accused had issued Ex.P1 after closing of his account, it also attracts Sec.138 of N.I. Act. 22. The counsel for accused relied on a decision of our Hon'ble High Court, in Crl.Appeal No.312 of 2008, in between Sammeta Srihari Vs., The state of Andhra Pradesh represented by its Public Prosecutor and another, decided on 04-06-2014, in which it was observed that “1-B. The Apex Court in NARAYAN MENON (4 supra) held that once the complainant shown that the cheque was drawn by the accused on the account maintained by him with a banker for payment of any amount in favour of the complainant from out of that account for its discharge and the same when presented returned by the Bank unpaid for insufficiency of funds or exceeds arrangement, such person shall be deemed to have been committed an offence under Section 138 of N.I. Act. What Section 139 of the Act speaks of the presumption against the accused to rebut is the holder of a cheque received the cheque of the nature referred in Section 138 of the Act for discharge of debt. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the

14

C.C.No.290 of 2016 Dated:11.12.2017

complainant could be relied upon. Accused need not enter into the witness box and examine other witnesses in support of his defence. Accused need not disprove the prosecution case in its entirety. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".

In the above decision the legal position is that to rebut the presumption U/Sec.139 of N.I. Act, the accused can raise probable defence, the standard of reasonability of which is being that of a “Prudent man”. But in

the

present

case

at

hand

as

discussed

about

though

the

accused/D.W.1 received Ex.P3 legal notice under Ex.P4, he did not reply to the same. The accused thereby admitted the transactions covered under Ex.P3. There is no reasonable explanation from the accused for not giving reply notice. It is clearly proved that the accused could not raise probable defence the standard of reasonability of which is being that of a Prudent man. Hence, in the facts and circumstances of the case, with due respect to the above decision, I am of the opinion that the above decision relied upon by the counsel for accused is no way useful to the case of accused. 23. From the above discussion and in the facts and circumstances of the case, I am of the opinion that the accused failed to rebut the presumption U/Sec.139 of N.I. Act in favour of complainant and on the other hand the complainant proved his case beyond reasonable doubt that the accused issued Ex.P1 cheque to discharge a legally enforceable debt or other liability. The point is answered accordingly in favour of the complainant and against the accused. 24. Point No.2:- When once it is proved that the accused issued Ex.P1 cheque in favour of complainant to discharge legally enforceable debt or other liability, the next question that has to be decided is

15

C.C.No.290 of 2016 Dated:11.12.2017

whether the complainant has followed all the legal formalities before filing of this complainant and whether this complainant is within the provisions laid down under Section 138 r/w 142 of N.I. Act. 25. The contention of the accused is that he has not received the legal notice from the complainant. He denied the signature on Ex.P4 stating that it is not belongs to him. As discussed in point No.1 it is proved that the accused has received statutory notice under Ex.P4 served postal acknowledgement. At this stage I have gone through a decision of Hon'ble Apex court rendered by three judges bench reported in 2007 AIR (SCW) 3578, in between C.C.Alavi Haji vs., Palapetty Muhammed in Criminal Appeal No.767/2007 (cited in 2007 Law Suit (SC) 705), decided on 18-05-2007, in which it was observed that “ [16] As noticed above, the entire purpose of

requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal

consequences

of

Section

138.

In

Vinod

Shivappa (supra), this Court observed: One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence

or

negligence

to

be

pardonable,

provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The

16

C.C.No.290 of 2016 Dated:11.12.2017

proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons. [17] It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of

the Act,

make payment

of

the cheque

amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with

the

summons)

and,

therefore,

the

complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. A ct and Section 114 of the Evidence A ct. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the A ct. ”

In the present case at hand even after appearing before this court, the accused neither paid the amount due under Ex.P1 nor even tendered to pay. Hence in view of the legal position in the above decision, I am of the considered opinion that the contention of the accused with regard to non-receipt of statutory notice is untenable.

17

C.C.No.290 of 2016 Dated:11.12.2017

26. A perusal of material on record, Ex.P1 cheque is dated: 05-12-2013. It was presented in the Bank of the complainant i.e., Vijaya Bank, Nellore for three times i.e., on 07-12-2013, 16-12-2013 and 27-012014, as per the stamp on the reverse of Ex.P1. The same was returned by the Bank of accused i.e., Punjab National Bank, Nellore on 27-01-2014 with an endorsement “Account Closed” as per Ex.P2. The complainant got issued legal notice through Registered Post on 04-02-2014 as per Ex.P3. The same was served on the accused on 07-02-2014 as per Ex.P4. The complaint was filed in the court on 11-03-2014. Considering the dates mentioned above and the material on record, I am of the opinion that

the

complainant

has

followed

all

the

legal

formalities

as

contemplated under the provisions of Sec.138 r/w 142 of N.I.Act. This point is answered accordingly in favour of complainant and against the accused. 27. POINT NO.3:- In view of my discussion 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 proved his case against the accused for the offence U/Sec.138 of Negotiable Instruments Act, 1881 beyond reasonable doubt. This point is answered accordingly in favour of the complainant and against the accused. 28. In the result, the accused is found guilty for the offence punishable U/sec.138 of Negotiable Instruments Act, 1881 and he is convicted U/Sec.255 (2) Cr.P.C., Typed by me personally, corrected and pronounced by me in the open court on this the 11th day of December, 2017.

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

18

C.C.No.290 of 2016 Dated:11.12.2017

29. Keeping in view of the nature of the offence that it is a financial transaction and in the facts and circumstances of the case, I am of the opinion that this is not a fit case for applying the provisions of Sec.360 Cr.P.C., or the provisions of probation of offenders Act, 1958. 30.

The accused is questioned with regard to quantum of

sentence to be imposed against him. He stated that he has got two sons and one daughter. He is depending on his daughter for his livelihood. He pleaded mercy of this court. Considering the submissions of the accused, considering his family conditions and in the facts and circumstances of the case, I feel that lenient view can be taken in this case. I take lenient view. 31. The accused is sentenced to undergo Simple imprisonment for a period of Six (6) months for the offence Punishable U/sec.138 of Negotiable Instruments Act, 1881. Further the accused shall pay an amount of Rs.1,50,000/-, being the cheque amount, to the complainant towards compensation U/Sec.357(3) Cr.P.C., within two months from today; in default of payment of compensation to undergo simple imprisonment for a period of two months. 32. The Accused was never in judicial custody in this case. Hence set off U/Sec.428 Cr.P.C., does not arise. 33. The accused is appraised of his right of appeal and also availability of free legal aid for the purpose of appeal. Typed by me personally, corrected and pronounced by me in the open court, on this the 11th day of December, 2017. Sd/-Sk.Atheeque Ahmad. Judicial Magistrate of I Class, Special Mobile Court, Nellore.

19

C.C.No.290 of 2016 Dated:11.12.2017

APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainant: P.W1: Shaik Mumtaz. P.W.2: Shaik Chand Basha. For Accused: D.W.1: Shaik Ansar @ Anwar. DOCUMENTS MARKED For Complainant: Ex.P1

:

Original cheque bearing No.556126, dated: 5.12.2013 for Rs.1,50,000/drawn on Punjab National Bank, Nellore Branch.

Ex.P2

:

Cheque return memo. Dated: 27.1.2014 issued by Punjab National Bank,Nellore to Vijaya Bank.

Ex.P3

:

Office copy of legal notice, dated: 4.2.2014 along with postal receipt.

Ex.P4

:

Served postal acknowledgment.

For Accused: Ex.D.1 : The certified copy of affidavit and petition in IP.No.3/2014 on the file of Principal Senior Civil Judge’s Court, Nellore.

MATERIAL OBJECTS MARKED: -NILSd/- S.A.A. J.M.F.C., Spl. M.C., NLR., // True copy // Judicial Magistrate of I Class, Special Mobile Court, Nellore.