1 C.C.No.172 of 2017; Dated:09.10.

2019
Spl. Mobile Court, Nellore.
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.

Wednesday, the Ninth (9th) day of October, Two thousand and

Nineteen

CALENDAR CASE No.172 of 2017

Anna Venkata Krishna Rao, S/o Venkateswarlu, aged 40 years, Business,
Resident of 6-1-392, Singarajuvari Street, Pappula Street, Nellore – 2.

.. Complainant ..

-Versus-

Pothuru Somasekhar, S/o Satyanarayana, aged 41 years, Business,

C/o.R.K.Xerox, Sri Rajeswari Towers, Near Chandana Brothers, Trunk
Road, Nellore. Resident of D.No.1-2-150, Sankaramma Street, Pullama
Satram, Nawabpet, Narukuru Road, Nellore.

.. Accused ..

This case is coming on 04.10.2019 for final hearing before me in

the presence of Sri P.Venu Gopal, Advocate for the Complainant

and of Smt. R.N.Suneetha and Sri G.Vinay Kumar Reddy,

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

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

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

borrowed an amount of Rs.11,00,000/- from the complainant on

10.06.2015 for his necessities and executed a demand promissory note

agreeing to repay the same with interest at 18% per annum within short
 2 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
period. Later, on repeated demands made by the complainant, the

accused issued a cheque bearing No.853680, dated: 01.05.2017 for

Rs.11,00,000/- drawn on Syndicate Bank, Nawabpet Branch, Nellore in

favour of complainant towards part discharge of the said debt. When the

complainant presented the above said cheque in his Bank account on

12.05.2017 in Canara Bank, Main Branch, Jonnalagaddavari Street,

Nellore for collection, the same was dishonoured due to ‘funds

insufficient’ and issued return memo dated: 17.05.2017 to that effect.

Then the complainant got issued a legal notice, dated: 25.05.2017

calling upon the accused for payment of cheque amount within 15 days

from the date of receipt of the said notice. The said notice was served to

the shop address of accused. But he did not comply the demand made

by the complainant. Therefore, the accused knowing fully well issued the

above said cheque without having sufficient funds in his bank account.

Hence, the complaint.

3. This case was taken on file for the offence punishable U/Sec.138

of N.I. Act.

4. In this case N.B.W., was pending against the accused as he did

not turn up even after receiving summons from this court. The accused

was produced before this court on 21.08.2019 under execution of N.B.W.,

issued against him. On production of the accused before this court

copies of case documents were furnished to him as contemplated

U/Sec.207 Cr.P.C., and he 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.

5. During the course of trial, on behalf of the complainant, he

himself was got examined as P.W.1 and also got examined the scribe of
 3 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
Promissory note under Ex.P1 and Ex.P2 endorsement as P.W.2. The

complainant also got examined one independent witness as P.W.3. Ex.P1

to Ex.P12 were got marked on behalf of the complainant.

6. Ex.P1 is certified copy of Promissory Note, dated:10.06.2015 for

Rs.11,00,000/- executed by accused in favour of complainant. Ex.P2 is

certified copy of payment endorsement, dated:01.05.2017 on Ex.P1

Promissory Note. Ex.P3 is original Cheque, dated:01.05.2017 for

Rs.11,00,000/- bearing No.853680 drawn on Syndicate Bank, Nellore

Branch. Ex.P4 is Cheque Return Memo, dated:15.05.2017 issued by

Canara Bank, Nellore Branch. Ex.P5 is Office Copy of Legal Notice,

dated:25.05.2017 along with Postal Receipt. Ex.P6 is served Postal

Acknowledgment. Ex.P7 is unserved returned Postal Cover with Postal

Endorsement ”continuously absent”. Ex.P8 is certified copy of Decree in

O.S.No.230/2018, dated:17.04.2019 on the file of Hon'ble I Additional

Senior Civil Judge’s Court, Nellore. Ex.P9 is certified copy of Judgment in

O.S.No.230/2018, dated:17.04.2019 on the file of Hon'ble I Additional

Senior Civil Judge’s Court, Nellore. Ex.P10 is registration copy of

Registered Settlement deed, dated:05.09.2018 vide document No.9597

of 2018 of Joint Sub Registrar II, Nellore. Ex.P11 is the original

proceedings issued by Manager (Marketing) NDCMPU Limited, Nellore

vide No.18/M/gr/MKT/DLR/2000, dated 13.11.2001. Ex.P12 is the receipt

issued by Nellore Municipal Corporation, dated: 20.04.2019.

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 side

witnesses, to which the accused denied and reported that he has no

defence evidence on his behalf.

 4 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
8. Heard arguments on both sides. Perused the entire material on

record.

9. The counsel for the complainant argued that by examining

himself as P.W.1 and also got examining P.Ws.2 and 3 and got marking

Exs.P1 to P12 the complainant has proved his case. The counsel for

complainant further argued that the accused admitted his signature on

Ex.P1 promissory note and Ex.P3 cheque. In such case presumptions

U/Secs.118 and 139 of N.I. Act comes in favour of the complainant. The

burden is on the accused to rebut the said presumptions. The accused

failed to rebut the said presumptions. The counsel for the complainant

argued that the complainant proved his case beyond reasonable doubt

and hence the accused is liable for the offence U/Sec.138 of N.I. Act.

10. The counsel for the accused argued that the complainant has

failed to prove his financial capacity to lend such huge amount of

Rs.11,00,000/- to the accused. Admittedly the accused is owning

housing complex consisting of 11 portions, in such case there is no

necessity for the accused to borrow amount from the complainant, who

is one of the tenants of accused. On the other hand the complainant is

running a small tiffin center and he has no such source of income to lend

Rs.11,00,000/- to the accused. The counsel for the accused argued that

the accused gave one signed blank cheque and one signed blank

promissory note to his wife towards security on the advice of elders,

when disputes arose between the accused and his wife. The wife of

accused by misusing the said cheque and promissory note got filed this

false case through complainant to harass the accused due to disputes

with the accused. The counsel for the accused further argued that the

signature on Ex.P2 not belongs to the accused. The counsel for accused
 5 C.C.No.172 of 2017; Dated:09.10.2019
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argued that the complainant has failed to prove his case beyond

reasonable doubt and hence the accused is entitled for acquittal.

11. Now the points for determination are:-

1) Whether the accused issued the Ex.P3 cheque in favour of

complainant for discharging 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 for presenting the complaint in
the court?

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 the accused

borrowed an amount of Rs.11,00,000/- from the complainant on

10.06.2015 for his necessities and executed original of Ex.P1 promissory

note agreeing to repay the same with interest at 18% per annum within

short period. Later, on repeated demands made by the complainant, the

accused issued Ex.P3 cheque towards part of the said debt. When the

complainant presented the above said cheque in his Bank account on

12.05.2017 the same was dishonoured due to ‘funds insufficient’. Then

the complainant got issued Ex.P5 legal notice. The said notice was

served to the shop address of accused, but the accused did not comply

the same. Hence the complainant filed this complaint. To prove his case,

as stated supra, the complainant himself got examined as P.W.1 and also

got examined P.Ws.2 and 3 and got marked Exs.P1 to P12.

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

from the complainant. The complainant is his tenant. Due to disputes

between him and his wife, on the advice of elders, he gave a signed

blank cheque and a signed blank promissory note to his wife towards

security for the properties given by him under Ex.P10. His wife by
 6 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
misusing the said signed blank cheque and signed blank promissory note

created Exs.P3 and P1 and got filed this case through the complainant to

harass him.

14. A perusal of evidence on record, the complainant/P.W.1 in his

chief-examination affidavit re-iterated the contents of his complaint. In

his cross-examination he stated the following material points:- He is

residing in the house of accused on rent for 9 years. The house in which

he is residing is a residential house and there are totally 11 houses. He is

selling milk pockets and also running petty shop. He is earning

Rs.60,000/- per month. He and his wife are running business. He knows

the accused since 9 years when he joined in the house of accused. The

accused is running a book stall. Accused has got two children. The

accused is getting monthly rent of Rs.40,000/- from all his 11 houses.

Since one year the accused is not residing with his wife. Previously the

accused and his wife were residing in one of the houses in the said

complex. The accused and his wife resided in the upstairs portion in the

complex. One week prior to Ex.P1, the accused asked him to lend money.

He had money in his house to give under Ex.P1. He lent money under

Ex.P1 to the accused at 11:00 A.M., At that time the wife of accused was

also present. The scribe by name Madhusudhan Rao is known to him and

also to the accused. The attestor by name Sudhakar Reddy is known to

him. He lent amount to the accused in Rs.1000/- currency notes in 6

bundles and in Rs.500/- currency notes in 10 bundles. He has not asked

the wife of accused to attest Ex.P1. The accused promised to pay the

amount within four months. The accused issued Ex.P3 cheque to him at

his house and he brought filled up cheque. He is not an income tax

assessee. He is running tiffin stall under name and style Lakshmi Krishna

Tiffin center. He admitted that on the back of Ex.P1 the endorsement is

with regard to giving of cheque, but not with regard to payment

 7 C.C.No.172 of 2017; Dated:09.10.2019
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endorsement. The Said Madhusudhan Rao is the scribe under Ex.P2. In

Ex.P2 the name of scribe is not mentioned. Except he, accused and

Madhusudhan Rao none others were present when Ex.P2 endorsement

was made. He denied the suggestion that there is difference in the

signatures on Ex.P1 than that of Ex.P10 and Ex.P3. He denied the

suggestion that in the mediation with his wife, the accused gave a

singed blank cheque and a singed blank promissory note to his wife as

security for the properties given by him under Ex.P10 and taking undue

advantage of disputes between the accused and his wife, the wife of

accused got filed this case through him to harass the accused. Now the

wife of accused is collecting rents. He denied the suggestion that he has

no capacity to lend such huge amount of Rs.11,00,000/- to the accused

and due to that only he is not an income tax assessee. He denied the

suggestion that no consideration was passed under Ex.P1. He denied the

suggestion that the signature on Ex.P2 endorsement not belongs to

accused. He admitted that in Ex.P11 there is no mention that he is

getting money. He admitted that in Ex.P11 there is no mention about the

Commission that was getting by him. He denied the suggestion that

Exs.P11 and P12 are not proving his financial capacity.

15. P.W.2 in his chief-examination affidavit mentioned that he knows

the complainant and the accused in this case. He knows the accused

from his school days. The complainant is a tenant in one portion of the

accused building. The complainant is doing Tiffin and Milk business near

by to his house at Pappula street and getting about Rs.50,000/- and

Rs.60,000/- per month towards income from his said business. On

10.06.2015 the accused borrowed a sum of Rs.11,00,000/- from the

complainant and executed a promissory note Ex.P1. He is the scribe of

Ex.P1 Promissory note. One P.Sudhakar Reddy is the attestor of Ex.P1

 8 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
Promissory note. On 10.06.2015 the accused received a sum of

Rs.11,00,000/- from the complainant at the complainant's house and

signed on Ex.P1 promissory note in the presence of him, the attestor

P.Sudhakar Reddy and the wife of accused. On 01.05.2017 the accused

issued a cheque for Rs.11,00,000/- drawn on Syndicate Bank, Nawabpet

Branch, Nellore towards part payment of Ex.P1 Promissory note debt.

The accused signed on the part payment endorsement under Ex.P2 on

the back side of Ex.P1 Promissory note. In his cross-examination he

stated the following material points:- He is doing Real Estate Business.

He knows the accused as he was Junior to him in his School days. He

knows the Complainant as he used to go to his petty shop. Now he is

residing in A.C.Nagar area of Nellore City. He used to go to the shop of

Complainant regularly for purchasing milk from the shop of complainant.

On 10.06.2015 the Complainant lend Rs.11,00,000/- to the accused in

his presence and the accused received the amount and signed on a

Promissory Note. He went to the house of Complainant on the date of

execution of Promissory Note at the request of accused. At the time of

execution of Ex.P1 the Complainant, the wife of complainant, accused,

the wife of accused, one Sudhakar Reddy and he were present. He has

put his signature on Ex.P1 at the scribe column. He again acted as scribe

for Ex.P2 transaction. On the date of Ex.P2 the accused has not paid any

amount but gave a Cheque to the Complainant. He can not say

descriptive particulars of the Cheque given by accused to Complainant.

At the time of Ex.P2 he, Complainant, wife of Complainant, accused were

only present. He has not put his signature as scribe on Ex.P2. He

admitted that the accused has got 11 houses and getting rents and also

running a Book Shop. He denied the suggestion that due to disputes of

accused with his wife, the wife of accused gave a signed blank Cheque

and a signed blank Promissory Note belongs to the accused to the

 9 C.C.No.172 of 2017; Dated:09.10.2019
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Complainant and got filed this Case and he is supporting them to harass

the accused. He denied the suggestion that in his presence no money

transaction took place in between Complainant and the accused and he

filled up Exs.P1 and P2 just before filing of this Case. He denied the

suggestion that the signature on Ex.P2 not belongs to the accused and

he created the same to support the Complainant and the wife of

accused.

16. P.W.3 in his chief-examination affidavit mentioned that he knows

the complainant and the accused in this case. The complainant is doing

Tiffn and Milk business in front of his apartment since 20 years. The

complainant has good business in the said locality and the complainant

is getting income of Rs.50,000/- to Rs.60,000/- per month in business

and the complainant is financially sound person. He used to purchase

tiffin and milk in the shop of the complainant. The accused is having

residential building with 11 portions nearby his house and the accused

let out the said portions to various tenants including the complainant. In

his cross-examination he stated the following material points:- He is

running Gunny Bags Business. He knows the Complainant since 20

years, but he has no relationship with him. He knows the accused as he

used to go to Shop of accused for taking Xerox. The Complainant has no

own house. The Complainant is running a Shop in a Bunk. He has not

seen the Accounts of Complainant. He has no idea whether the

Complainant has filing Income Tax Returns. The accused is owning 11

houses and getting rents and also running a Shop. He denied the

suggestion that the Complainant has no such income as mentioned in

his Chief Affidavit and he is giving false evidence to support the

Complainant as he used to purchase Milk from complainant.

 10 C.C.No.172 of 2017; Dated:09.10.2019
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17. In this case there is no dispute that Ex.P3 cheque belongs to

the bank account of accused. The accused admitted his signature on

Ex.P1 cheque and on Ex.P1 Promissory note. His contention is that he

gave signed blank cheque and signed blank promissory note to his wife

as security for the properties given by him under Ex.P10 at the advance

of elders, when disputes arose between him and his wife. His further

contention is that taking undue advance of disputes between him and

his wife, his wife got filed this case through the complainant to harass

him. When once the accused has admitted his signatures on Exs.P1 and

P3, presumptions U/Secs.118 and 139 of N.I.Act comes in favour of the

complainant. The burden is on the accused to rebut the said

presumptions.

18. To rebut the presumptions U/Secs.118 and 139 of N.I.Act, the

accused has not adduced any evidence, but relied on the cross-

examination of P.Ws.1 to 3. As per the cross-examination of P.Ws.1 to 3,

the contention of accused is that his wife got filed this case through the

complainant by using the signed blank cheque and signed blank

promissory note given by him to his wife as security for the properties

given by him under Ex.P10 on the advice of elders, when disputes arose

between him and his wife. The further contention of the accused is that

the signature on Ex.P2 endorsement not belongs to him. P.W.2, who is

the scribe of original of Ex.P1 categorically stated that in his presence

the accused received Rs.11,00,000/- from the complainant and executed

Ex.P1 promissory note. He further deposed that on 01.05.2017 the

accused issued Ex.P3 cheque in favour of complainant in his presence

towards part payment of amount due under Ex.P1 and endorsed on the

reverse of Ex.P1, which was marked as Ex.P2 and he scribed the same.

In the cross-examination of P.W.2 no useful material to the case of

accused could be elicited. Here it is pertinent to note that in the cross-

 11 C.C.No.172 of 2017; Dated:09.10.2019
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examination of P.W.1 it was suggested that the accused gave a signed

blank cheque and a signed blank promissory note to his wife towards

security for the properties given by accused to his wife under Ex.P10. It

was not suggested when the accused gave signed blank promissory note

and signed blank cheque to his wife. If the accused has given signed

blank cheque and signed blank promissory note to his wife prior to

Ex.P10 towards security, he would have not executed Ex.P10 on

05.09.2018 as he already received Ex.P5 legal notice in this case on

26.05.2017 itself under Ex.P6 acknowledgment. As Ex.P3 cheque was

presented in the Bank even prior to 15.05.2017 as per Ex.P4 cheque

return Memo. giving signed blank cheque and signed blank promissory

note by accused to his wife at the time of Ex.P10 does not arise. Further

the accused contended that the signature on Ex.P2 endorsement not

belongs to him. But he has not taken any steps to prove his contention.

More over even after receiving Ex.P5 legal notice under Ex.P6

acknowledgement, the accused has not given any reply notice. There is

no explanation from the accused in this aspect. All these circumstances

are falsifying the contention of the accused that he gave signed blank

cheque and signed blank promissory note to his wife towards security.

The evidence of P.Ws.1 and 2 coupled with the documentary evidence

proving the case of complainant that on 10.06.2015 the accused

borrowed Rs.11,00,000/- from the complainant and executed original

promissory note of Ex.P1 and issued Ex.P3 cheque under Ex.P2

endorsement.

19. The counsel for accused argued that the complainant has failed

to prove his financial capacity to lend such huge amount of

Rs.11,00,000/- to the accused. She further argued that admittedly the

accused has got 11 portions housing complex and getting rents and in
 12 C.C.No.172 of 2017; Dated:09.10.2019
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such case there is no necessity for the accused to borrow amount from

the complainant. A perusal of Ex.P11, it shows that the complainant has

got Agency from Nellore District Co-Operative Milk Producers Union

Limited, Nellore for selling milk on commission on 13.11.2001. Ex.P11

shows that since long time the complainant is selling milk in large scale.

Generally a small milk vendor will not take agency for selling milk.

Ex.P11 clearly showing that the complainant is getting income by selling

milk in large scale. P.W.3, who is an independent witness also deposed

that the complainant is getting Rs.50,000/- to Rs.60,000/- per month in

his business. In the cross-examination of P.W.3, no enmity with the

accused could be elicited. The only suggestion put to P.W.3 is that as he

is purchasing milk from complainant he is giving false evidence to

support him. There is no need for P.W.3 to come to court to give false

evidence against accused. The evidence of P.W.3 shows that the

business of complainant is fetching much income to the complainant. As

discussed supra Ex.P2 endorsement containing the cheque number of

Ex.P3 and name of the bank on which the same was drawn. Ex.P2 clearly

proving that the accused issued Ex.P3 cheque towards part discharge of

amount due under Ex.P1 Promissory note. In these circumstances I am

unable to accept the argument of counsel for accused. In the above

discussed facts and circumstances of the case, I am of the opinion that

the accused failed to raise probable defence to disprove Exs.P1, P2 and

P3.

20. It is well settled principle of law that to rebut the presumption

U/Sec.139 of N.I. Act the accused has to raise probable defence. As

stated supra in this case the accused failed to raise probable defence

and thereby failed to rebut the presumptions in favour of complainant. In

such case it leads to the conclusion that the accused issued Ex.P3
 13 C.C.No.172 of 2017; Dated:09.10.2019
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cheque to discharge the legally enforceable debt due under Ex.P1

promissory note.

21. The counsel for the accused relied on a decision of Hon'ble

Apex Court in between Basalingappa vs., Mudibasappa, decided on

09.04.2019, in which it was observed that “We are of the view that when
evidence was led before the court to indicate that apart from loan of Rs.6

lakhs given to the accused, within 02 years, amount of Rs.18 lakhs have been

given out by the complainant and his financial capacity being questioned, it

was incumbent on the complainant to have explained his financial capacity.

Court cannot insist on a person to lead negative evidence.” I have gone

through the above decision. In the case of above decision as per

complaint the complainant lent hand loan of Rs.6,00,000/- and neither

in the complaint nor in Chief-examination the complainant stated the

date of giving the loan to the accused. Further the evidence in the above

case indicate that apart from loan of Rs.6,00,000/- given to the accused,

within 02 years amount of Rs.18 lakhs was given by the complainant to

others. In those circumstances the Hon'ble Apex Court rendered the

above judgment. But in the present case at hand it is proved that the

accused executed Ex.P1 promissory note after receiving consideration

and he issued cheque under Ex.P3 to discharge the part of said debt

under Ex.P2 endorsement. Further in this case the complainant also filed

a Civil suit against the accused basing on original of Ex.P1 and in that

case the accused remained absent and he was set exparte. The said suit

was decreed as per Exs.P8 and P9. The accused has not stated the steps

taken by him to get set aside of exparte decree passed against him as

per Exs.P8 and P9. In these circumstances, with due respect to the

above decision relied upon by the counsel for accused, I am of the

opinion that the same is not applicable to the facts of present case.
 14 C.C.No.172 of 2017; Dated:09.10.2019
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22. The counsel for the accused relied on another decision of

Hon'ble Apex court in between K.Subramani Vs., K.Damodara

Naidu, decided on 13.11.2014, in which it was observed that “ The

source claimed by the complainant is savings from his salary and an amount

of Rs.5 lakhs derived by him from sale of site No.45 belonging to him.

Neither in the complaint nor in the chief-examination of the complainant, is

there any averment with regard to the sale price of site No.45. The sale deed

concerned was also not produced. Though the complainant was an income

tax assessee he had admitted in his evidence that he had not shown the sale

of site No.45 in his income tax retun. On the contrary the complainant has

admitted in his evidence that in the year 1997 he had obtained a loan of

Rs.1,49,205 from LIC. It is pertinent to note that the alleged loan of Rs.14

lakhs is claimed to have been disbursed in the year 1997 to the accused.

Further the complainant did not produce bank statement to substantiate his

claim. The trial court took into account the testimony of the wife of the

complainant in another criminal case arising under Sec.138 of the NI Act in

which she has stated that the present appellant-accused had not taken any

loan from her husband. On a consideration of entire oral and documentary

evidence the trial court came to the conclusion that the complainant had no

source of income to lend a sum of Rs.14 lakhs to the accused and he failed to

prove that there is legally recoverable debt payable by the accused to him. In

our view the said conclusion of the trial court has been arrived at on proper

appreciation of material evidence on record.... ” I have gone through the

above decision. In the case of above decision the complainant was an

Income Tax assessee and he admitted that he has not filed Bank

statement to substantiate about obtaining of loan from L.I.C., In those

circumstances the Hon'ble Apex Court rendered the above judgment.

But in the present case at hand in the cross-examination of P.W.1 he

categorically stated that he is not an Income Tax assessee. Further it is

proved that the accused executed Ex.P1 promissory note after receiving

consideration and he issued cheque under Ex.P3 to discharge the part of

said debt under Ex.P2 endorsement. Further in this case the complainant
 15 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
also filed a Civil suit against the accused basing on original of Ex.P1 and

in that case the accused remained absent and he was set exparte. The

said suit was decreed as per Exs.P8 and P9. The accused has not stated

the steps taken by him to get set aside of exparte decree passed against

him as per Exs.P8 and P9. In these circumstances, with due respect to

the above decision relied upon by the counsel for accused, I am of the

opinion that the same is not applicable to the facts of present case.

23. The counsel for the accused relied on a decision of Hon'ble

High court of Judicature at Hyderabad reported in 2017(2) ALD

(Crl.) 981 in between Kanakamedala Venkata Krishna Prasad Vs.,

Peram Sai Swarupa and another, decided on 20.12.2016, in which it

was observed that “Learned court below also observed, he admitted that he
is Income Tax assessee and also admitted that he used to mention of all

financial transactions in his returns. However, he failed to produce his

income tax returns. In such case, what prevent him to mention the debt

covered under Ex.P1 though his income returns. On the other hand, in his

cross-examination, he clearly admitted that he has not mentioned the debt

recovered under Ex.P1 transaction in income tax returns. So, it is fatal to the

appellant/complainant keeping in view the decision relied on by the accused

reported in 2009 Crl.LJ 3777 wherein the amount advanced is large amount

and is not repayable within few months. The failure to disclose amount in

income tax returns or books of accounts of the complainant may be sufficient

to rebut the preumption under section 139 of the said Act” In the present

case at hand, P.W.1 in his cross-examination categorically stated that he

is not an Income Tax assessee. The accused has not adduced any

evidence to the contrary. The facts and circumstances in this case are

different from the facts and circumstances in the case of above decision.

Hence with due respect to the above decision, I am of the opinion that it

is not applicable to the facts of present case.

 16 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
24. In view of my above discussion and in the facts and

circumstances of the case, as the accused failed to raise probable

defence, the accused failed to rebut the presumptions U/Secs.118 and

139 of N.I. Act. The material on record proving that Ex.P3 cheque was

issued for a legally enforceable debt due by the accused to the

complainant. The point is answered accordingly in favour of the

complainant and against the accused.

25. Point No.2:- When once it is proved that the accused issued

Ex.P3 cheque in favour of the complainant to discharge legally

enforceable debt, the next question that has to be decided is whether

the complainant has followed all the provisions laid down under Section

138 r/w 142 of N.I. Act for presenting the complaint into the court.

26. A perusal of the material on record, Ex.P3 cheque is dated:

01.05.2017. The complainant presented the Ex.P1 cheque in his bank

and the same was returned dishonoured on 15.05.2017 with

endorsement “Funds Insufficient” as per Ex.P4. The complainant got

issued legal notice to the accused through Registered Post on

25.05.2017 as per Ex.P5. The same was served on the accused on

26.05.2017 as per Ex.P6 acknowledgement. The cause of action arose

on 10.06.2017 i.e., after 15 days service of statutory notice. The

complaint was filed in the court on 30.06.2017 i.e., within one month of

arising cause of action. Considering the dates mentioned above and the

material on record, I am of the opinion that the complainant has followed

all the provisions of Sec.138 r/w 142 of N.I.Act while presenting the

complaint into the court. This point is answered accordingly.

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
 17 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
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 on my laptop, corrected and pronounced

by me in the open court on this the 9th day of October, 2019.

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

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 wife and two

children. Now his wife is residing separately with his children due to

disputes between them. He is eking out his livelihood by doing cooli

work. 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 One Year for the offence

Punishable U/sec.138 of Negotiable Instruments Act, 1881.

Further the accused shall pay an amount of Rs.11,00,000/-,

being the cheque amount, to the complainant towards

 18 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
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 Three (3) months.

32. The remand period of accused from 21.08.2019 to till date shall

be given set off U/Sec.428 Cr.P.C.,

33. The accused is appraised of his right of appeal and also

availability of free legal aid for the purpose of appeal.

34. The office is directed to submit copy of this Judgment to Hon'ble

District Legal Services Authority, Nellore as per Dis.No.719,

dated:31.05.2019 of Hon'ble District Legal Services Authority, Nellore.

Typed by me personally on my laptop, corrected and pronounced by

me in the open court on this the 9th day of October, 2019.

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

APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant:- For Accused:-

P.W1: A.Venkata Krishna Rao (Complainant) NIL

P.W.2: P.Madhusudhan Rao.

P.W.3: T.Krishnaiah

DOCUMENTS MARKED

For Complainant:-

Ex.P1 : Certified copy of Promissory Note, dated:10.06.2015 for

Rs.11,00,000/- executed by accused in favour of
complainant.
Ex.P2 : Certified copy of payment endorsement, dated:01.05.2017
on Ex.P1 Promissory Note.
Ex.P3 : Original Cheque, dated:01.05.2017 for Rs.11,00,000/-
bearing No.853680 drawn on Syndicate Bank, Nellore
Branch.
Ex.P4 : Cheque Return Memo, dated:15.05.2017 issued by Canara
 19 C.C.No.172 of 2017; Dated:09.10.2019
Spl. Mobile Court, Nellore.
Bank, Nellore Branch.
Ex.P5 : Office Copy of Legal Notice,dated:25.05.2017 along with
Postal Receipt.
Ex.P6 : Served Postal Acknowledgment.

Ex.P7 : Unserved returned Postal Cover with Postal Endorsement

”continuously absent”.
Ex.P8 : Certified copy of Decree in O.S.No.230/2018,
dated:17.04.2019 on the file of Hon'ble I Additional Senior
Civil Judge’s Court, Nellore.
Ex.P9 : Certified copy of Judgment in O.S.No.230/2018,
dated:17.04.2019 on the file of Hon'ble I Additional Senior
Civil Judge’s Court, Nellore.
Ex.P10 : Registration copy of Registered Settlement deed,
dated:05.09.2018 vide document No.9597 of 2018 of Joint
Sub Registrar II, Nellore.
Ex.P11 : Original proceedings issued by Manager (Marketing)
NDCMPU Limited, Nellore vide No.18/M/gr/MKT/DLR/2000,
dated 13.11.2001.
Ex.P12 : Receipt issued by Nellore Municipal Corporation, dated:
20.04.2019.
For Accused:- NIL

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