Display_pdf - 2019-06-27t084827.425

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 .. -VersusKonagaluru 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 “05KINDLY 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 unserved. 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 crossexamination 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 crossexamining 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 crossexamination 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 MeSeva, 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 objection).

Ex.D.7

Computer generated copy of 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.

photos

along

with

C.D.(marked vehicle

subject

registration

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.

to