IN THE COURT OF HONBLE X SPECIAL MAGISTRATE ::

CYBERABAD
AT HASTHINAPURAM

C.C.NO.224 OF 2014

Between:

Tata Sai Complainant

And

Mohd.Asif ..Accused

WRITTEN ARGUMENTS SUBMITTED BY COMPLAINANT

May it please your honour,

1.The Complainant filed a above case against the Accused for the
Offence committed by him under sec-138 of N.I.Act for non-
compliance of the Provisions of N.I.Act.

2.The Facts of the case are that:

(a) The Complainant and Accused are making friendly
relationship and due to the said friendly acquaintance the
Accused requested the Complainant to lend an amount of
Rs.5,00,000/- as a hand loan to meet his family needs and further
agreed to repay the same within a short period and promised to
execute a Promissory note.
(b) The Complainant due to the said acquaintance accepted the
request of the Accused and lend a sum of Rs.3,00,000/- to the
Accused in the month of October,2012 which was arranged from
his family members and the Accused executed a Promissory Note
on 15th October, 2012.
(c) As the Accused failed to repay the same within a short
period as agreed by him and on demand of the Complainant the
Accused issued a (2) Cheques bearing No.117809, dt,02-11-2013
for an amount of Rs.2,00,000/-, and another cheque vide cheque
bearing No.010857, dt.01-02-2014 for an amount of Rs.1,00,000/-
both cheques drawn on State Bank of India, Manikonda Main
Road, Puppalaguda, Rayadurg Branch, Cyberabad.
(d) And on presentations with the Complainant banker i.e., State
Bank of Hyderabad, Jillelaguda Branch, Hyderabad, both cheques
were dishonored for the reason of Funds Insufficient on 29 th
March, 2014 and the same was informed to Complainant by his
banker on 4th April, 2014.
(e) As the Accused failed to make the re-payment best efforts
made by the Complainant, the Complainant got issued a legal
notice by way of Regd. Post with Ack. Due on 05-04-2014 calling
upon the Accused to repay the cheques amounts within a period
of 15 days from the receipt of notice but the Accused neither give
the reply to the notice nor pay the amounts as such the
Complainant filed a case against the Accused as per law.

3. To substantiate the case of the Complaint, the Complainant

examined himself as PW1 and the documents marked as ExP1 to
P8 on his behalf.

Exhibit P1- Original Cheque No.117809 for Rs.2,00,000/- Dt.02 nd

November, 2013
Exhibit P2- Original Cheque Return memo, Dt.29th March, 2014
Exhibit P3- Original Cheque No.010857 for Rs.1,00,000/- Dt.01st
February, 2014
Exhibit P4- Original Cheque Return memo, Dt.29th March, 2014
Exhibit P5- Original Promissory Note for Rs.3,00,000/- Dt.15 th
October, 2012
Exhibit P6- Office Copy of Legal Notice, Dt.05th April, 2014
Exhibit P7- Original Postal Receipt, Dt.05th April, 2014
Exhibit P8- Original Intimation Letter, Issued by Postal Authorities,
Dt.05th May, 2014
And further the Complainant examined a two more witness
PW2 is Mr.M.Nareder Goud who is the witness to the ExhibitP-5
(Promissory Note, Dt.15-10-2002) and PW3 is Mr.M.Ranjith Kumar
who is the Scriber of the ExhibitP-5.
The PW-2 and PW-3 are also supported the case of the PW-1 that
the Accused borrowed an amount from the Complainant at his
house and executed a promissory note in their presence along
with his one more witness namely G.Siva Prasad who is the friend
of Accused.

Though the Accused is Examined under Sec-313 of Cr.P.C on

27th October, 2014 stated that there is a Defence Evidence on his
behalf, no Defense is Produced by the Accused either by way of
Oral or Documentary Evidence to rebut the presumption under
Sec-139 of N.I.Act.

The Complainant (PW1) was Cross-examined by the Accused

Counsel on 15th September, 2014.

During the course of Cross-examination of the PW1: By mere

making a suggestions made by the Accused Counsel the PW1
stated that It is not true to suggest that my father advanced the
amount to the accused by obtaining the cheques and as a benami
the present complaint is filed through me against the Accused .
It is not true to suggest that blank cheques were obtained by my
father and after filling up the same present complaint is filed
through me. It is not true to suggest that ExP1 the date is altered
by me by changing from 2012 to 2013.

Except this no leading questions or no suggestions put forth

by the Accused Counsel with regard to the subject cheques how
the cheques is came into the possession of the Complainants
father, execution of cheque and even not dispute that the
signatures bears on the Ex-P1,Ex-P3 and Ex-P5 is not pertains to
him and no explanation is given in Sec-313 Examinations and it is
settled principle of law that by putting mere suggestions is not
sufficient to prove the same without providing any cogent
evidence on the Defence side.
 And as if the subject cheques is in the custody of the
Complainant why the Accused did not take any steps for return of
those cheques by giving a legal notice is not explained properly.

The Accused has taken a contradictory statements

during the Cross of PW-1 and PW-3 that the Accused
suggested to the PW-1 that Complainants father
advanced the amount to the accused by obtaining the
cheques and as a benami the present complaint is filed
through you against the accused? For which the PW-1
denied the suggestion that It is not true to suggest that
my father advanced the amount to the accused by
obtaining the cheques and as a benami the present
complaint is filed through me against the Accused . It
is not true to suggest that blank cheques were obtained
by my father and after filling up the same present
complaint is filed through me. It is not true to suggest
that ExP1 the date is altered by me by changing from 2012
to 2013.
And during the course of cross Examination of PW-3 on
suggestion put forth by the Accused Counsel the PW-3
stated that the Cheques were obtained as a security, so,
when the Accused taken a contradictory statements in the
Cross examination of PW-1 and PW-3 in a different manner
as he likes, for which it is very crystal clear that there is a
legally enforceable liability on part of the Accused as such
the Accused issued a subject cheques towards discharge
of his liability is very clear.
And If there is any doubt in the mind of the Accused he
should take steps by calling a Bank Manager or to send it for
Expert Opinion.

And it is not the case of the Accused that no notice was

served upon on him.
 The burden is on the Accused to prove that there is no
legally enforceable liability is existing.

The Exhibit-P5 Promissory Note itself indicates that there is a

legally enforceable liability and the Accused did not choose to
examine the one of his friend Sri.G.Siva Prasad who is stood as
witness in it.

And even the Counsel did not touch the documents and no
questions were asked about execution of the cheque, signatures
on Ex-P1,P3 and P5(promissory note) and with regard to service of
notice as such adverse inference can be drawn against the
Accused.

The Complainant has fulfilled the ingredients of sec-138 of

N.I.Act.
Sec-138.Dishonour of cheque for insufficiency etc.,
of funds in the account:-
Where any chque drawn by a person on an account maintained by
him with a banker for payment of any amount of money to
another person from out of that account for the discharge, in
whole or in part, of any debt or other liability, is returned by the
bank unpaid, either because of the amount of money standing to
the credit of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be
deemed to have committed an offence and shall, without
prejudice to any other provisions of this Act, be punished with
imprisonment for a term which may extend to two years, or with
fine which may extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this section shall apply
unless:-
 (a) The cheque has been presented to the bank within a
period of three months from date on which it is drawn or
within the period of its validity, whichever is earlier;
(b) The payee or the holder in due course of the cheque, as
the case may be, makes a demand for the payment of the
said amount of money by giving a notice, in writing, to the
drawer of the cheque, within thirty days of the receipt of
information by him from the bank regarding the return of
the cheque as unpaid; and
(c) The drawer of such cheque fails to make the payment
of the said amount of money, to the payee or, as the case
may be, to the holder in due course of the cheque, within
fifteen days of the receipt of the said notice.
Explanation:- For the purpose of this Section, debt or other
liability means a legally enforceable debt or other liability.

INGREDIENTS OF OFFENCE UNDER SECTION-138 OF N.I.ACT

1.The Cheque should have been issued for the discharge, in whole
or part, of any debt or other liability.
2.The Cheque should have been presented within a period of
Three months or within its validity period whichever is earlier.
3.The Payee or holder in due course should have issued a notice
in writing to the drawer within 30 days of the receipt of
information by him from the Bank regarding the return of the
cheque as unpaid.
4.After receipt of the said notice from the holder in due course,
the drawer should have failed to pay the cheque within 15 days of
receipt of the said notice.

In the present case the Complainant fulfilled the essential

ingredients of Sec-138.
The Complainant has proved his case beyond all reasonable
doubts hence the Accused may be punished according to law by
imposing a double of the cheque amount.
 And it is for the Accused to rebut the presumption Under
Sec-139 of N.I.Act.

Sec-139. Presumption in favour of holder: - It shall be

presumed, unless the contrary is proved, that the holder of a
cheque received the cheque of the nature referred to in section-
138 for the discharge, in whole or in part, of any debt or other
liability.
The Accused has taken a contradictory statements
during the Cross of PW-1 and PW-3 that the Accused
suggested to the PW-1 that Complainants father
advanced the amount to the accused by obtaining the
cheques and as a benami the present complaint is filed
through you against the accused? For which the PW-1
denied the suggestion that It is not true to suggest that
my father advanced the amount to the accused by
obtaining the cheques and as a benami the present
complaint is filed through me against the Accused . It
is not true to suggest that blank cheques were obtained
by my father and after filling up the same present
complaint is filed through me. It is not true to suggest
that ExP1 the date is altered by me by changing from 2012
to 2013.
And during the course of cross Examination of PW-3 on
suggestion put forth by the Accused Counsel the PW-3
stated that the Cheques were obtained as a security, so,
when the Accused taken a contradictory statements in the
Cross examination of PW-1 and PW-3 in a different manner
as he likes, for which it is very crystal clear that there is a
legally enforceable liability on part of the Accused as such
the Accused issued a subject cheques towards discharge
of his liability is very clear.
So when the Accused is not proved his case until the
contrary is proved as defined in Sec-139 of N.I.Act the Accused is
liable of the offence committed by him under Sec-138 of N.I.Act.
Sec-118:Presumptions as to negotiable instruments of
consideration:- Until the contrary is proved, the following
presumptions shall be made-
(a) That every negotiable instrument was made or drawn
for consideration, and that every such instrument, when it
has been accepted, endorsed, negotiated or transferred,
was accepted, indorsed, negotiated or transferred for
consideration:
(b) As to date; that every negotiable instrument bearing a
date was made or drawn on such date;
(c) As to time of acceptance; that every accepted bill of
exchange was accepted within a reasonable time after its
date and before its maturity;
(d) As to time of transfer; that every transfer of a
negotiable instrument was made before its maturity;
(e) As to order of endorsements; that the endorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
(f) As to stamps; that a lost promissory note, bill of exchange
or cheque was duly stamped;
(g) That holder is a holder in due course; that the holder of
a negotiable instrument is a holder in due course;
provided that, where the instrument has been obtained
from its lawful owner, or from any person in lawful custody
thereof, by means of an offence or fraud, or has been
obtained from the maker or acceptor thereof by means of
an offence or fraud, or for unlawful consideration, the
burden of proving that the holder is a holder in due course
lies upon him;
NOW THE POINTS FOR CONSIDERATION:

(a) Whether the Complaint filed by the Complainant is

defective?
(b) Whether Presumption under Sec-139 of N.I.Act can
be drawn against the Accused?
(c) Whether the Accused has legally enforceable debt
to the Complainant?
The Accused has raised a points in arguments that:
1) There is no mentioning the date & witness before whom the
promissory note is executed under Ex-P5.

2) The notice is demanded not only for cheque amount but

also for interest.
3) There is no legally enforceable liability.
4) There is no capacity to lend the amount to accused.
5) The Cheque is not issued to the Complainant and it is issued
to the Complainants father and same is filled by his father
and foisted a false case through his son. Further the PW-3 on
suggestion stated that the cheque is taken for security
purpose.
In response to (1)-that, The Legal Notice, Complaint and Chief
Affidavit of PW-1 clearly indicated the Execution of Promissory
note and all the documents were filed at once at the time of filing
of the case and the Ex-P5 Promissory note is also filed along with
the original so it makes part and parcel of the case.
And after closing of PW-1 evidence the case is adjourned for
further evidence of Complainant and the Complainant filed a Chief
Affidavit of PW-2 and 3 and no objection is raised by the counsel
for accused and the Affidavit was accepted and received by this
Honble Court and Cross Examination was conducted by the
Accused Counsel and now at this Junction the Counsel cant take
such a plea at the time arguments once the same is admitted and
made a part and parcel of the case no objection can be raised at
the time of arguments.

It is settled principle of law that once the witness

appeared and lead the evidence again cant said that
permission should be obtained so for which the Honble
High Court of Kerala held in case of Augusty Vs Rajan that:
No list of witness is required LAWS (KER)-1999-2-28
In response to (2) that, the Punjab-Haryana High Court held in
case of Rahul Jain and another VS. Alstom Ltd., that the Legal
notice is not bad in law if it speaks about interest, costs etc.,
And Further our Own High Court held in case of M/s Appolo
Tyres Ltd., Vs. M/s H.M.Tyres and another the court has
considered the view in case of Suman Sethi Vs. Ajay
K.Churiwal and anoter that if a notice, any other sum is
indicated in addition to the amount covered by the
cheque, that does not invalidate the notice and
considered the view that the accused has to lead cogent
evidence during trial in rebutting the presumption and in
proof of his defence is explained by Apex Court in Narayan
Menon Vs. State of Kerala case.

In response to (3), (4) and (5)-that, the Honble Supreme

Court held in AIR 2010 SC 1898 in case of Rangappa Vs.Sri Mohan
case that since the accused did admit that the signature on the
cheque was his, the statutory presumption comes into play and
the same has not been rebutted even with regard to the materials
submitted by the complainant. In the present case also the
Accused did not dispute his signature on Ex-P1, Ex-P3 and Ex-p5
as such Sec-139 of N.I.Act comes into play.
Our own High Court reported in 2002 (1) ALD Cri. 689
observed in case of Waterbase Ltd., Vs. Karuturu
Ravendra, Proprietor that the Court has to draw a
presumption that the drawer of the cheque has issued the
same for legally enforceable debt or liability unless the
contrary is proved.

The Supreme Court of India in case of Hiten P. Dalal Vs.

Bratindranath Banerjee taken a view of Sec-118, Sec-138
and Sec-139 that the accused did not denied nor was it is
dispute that the cheques were dishonoured because of
insufficient funds in the Appellants account with the
drawee and further rely upon three presumptions in
support of its case, namely under sec-118,138 and 139 of
the N.I.Act sec-118 provides inter-alia, that until the
contrary is proved it shall be presumed that every
negotiable instrument was made or drawn for
consideration, and that every such instrument when it has
been accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for
consideration.
And further stated that the accused did not enter the
witness box to support his case that the four cheques in
particular had been given in respectof any arrangement or
in respect of any transaction which did not materialize.

Our own High Court in case of B.Raja Krishnaji Vs. Kadam

Kondoji and State of A.P. observed that on the aspect of
the nature of evidence which the accused is required to be
adduced to rebut the presumption available under sec-
118(a) of the N.I.Act as also under sec-139 thereof in
favour of Complainant.

The Complainant stated in his Cross Examination that he arranged

the amounts from his relatives and lend the amount to the
Accused and when the accused did not denial of borrowing
amount and execution of signatures on the Ex-P1, P3 and P5 Sec-
139 came into play.

And Even if the cheque is given for security purpose the

Honble High Court of Karnataka reported in 2006
Crl.L.J.3760 in case of Umaswamy Vs. K.N.Ramanath held
that the contention that the cheque was issued only as
security is preposterous. Therefore, merely because the
drawer contends that it is issued as security is not a
ground to exonerate the penal liability under sec-138 of
n.i.act.
So the entire burden is on the Accused to rebut the presumption
that he did not received the amount and the cheques is not
belongs to him and the signatures is not pertains to him and no
execution of promissory is made and no service of notice is
served on him is entirely disproved by the accused, unless the
contrary is proved, the Honble Court has considered the case of
the Complainant and punish the accused as per law.

In view of the submissions made by the Complainant, the

Complainant prays before this Honble Court that the Accused
may be pleased punished according to Law for non-compliance of
Sec-138 of N.I.Act and impose fine double of cheque amount with
compensation.

Place:Hasthinapur,
Date :17th November, 2014. Counsel for the
Complainant.

IN THE COURT OF
HONBLE X SPECIAL
MAGISTRATE ::
CYBERABAD
AT HASTHINAPURAM

C.C.NO.224 OF 2014

Between:

Tata Sai

Complainant

And

Mohd.Asif

..Accused

WRITTEN
ARGUMENTS SUBMITTED
BY COMPLAINANT

Filed On:17-11-2014

Filed By: M/s K.Veerabhadra

Rao &
G.Srinivas
Advocates
Counsel for
Complainant

IN THE COURT OF HONBLE X SPECIAL MAGISTRATE ::

CYBERABAD
AT HASTHINAPURAM

C.C.NO.224 OF 2014

Between:

Tata Sai Complainant

And
Mohd.Asif ..Accused

WRITTEN ARGUMENTS SUBMITTED BY COMPLAINANT

May it please your honour,

1.The Complainant filed a above case against the Accused for the
Offence committed by him under sec-138 of N.I.Act for non-
compliance of the Provisions of N.I.Act.

2.The Facts of the case are that:

(a) The Complainant and Accused are making friendly
relationship and due to the said friendly acquaintance the
Accused requested the Complainant to lend an amount of
Rs.5,00,000/- as a hand loan to meet his family needs and further
agreed to repay the same within a short period and promised to
execute a Promissory note.
(b) The Complainant due to the said acquaintance accepted the
request of the Accused and lend a sum of Rs.3,00,000/- to the
Accused in the month of October,2012 which was arranged from
his family members and the Accused executed a Promissory Note
on 15th October, 2012.
(c) As the Accused failed to repay the same within a short
period as agreed by him and on demand of the Complainant the
Accused issued a (2) Cheques bearing No.117809, dt,02-11-2013
for an amount of Rs.2,00,000/-, and another cheque vide cheque
bearing No.010857, dt.01-02-2014 for an amount of Rs.1,00,000/-
both cheques drawn on State Bank of India, Manikonda Main
Road, Puppalaguda, Rayadurg Branch, Cyberabad.
(d) And on presentations with the Complainant banker i.e., State
Bank of Hyderabad, Jillelaguda Branch, Hyderabad, both cheques
were dishonored for the reason of Funds Insufficient on 29 th
March, 2014 and the same was informed to Complainant by his
banker on 4th April, 2014.
(e) As the Accused failed to make the re-payment best efforts
made by the Complainant, the Complainant got issued a legal
notice by way of Regd. Post with Ack. Due on 05-04-2014 calling
upon the Accused to repay the cheques amounts within a period
of 15 days from the receipt of notice but the Accused neither give
the reply to the notice nor pay the amounts as such the
Complainant filed a case against the Accused as per law.

3. To substantiate the case of the Complaint, the Complainant

examined himself as PW1 and the documents marked as ExP1 to
P8 on his behalf.

Exhibit P1- Original Cheque No.117809 for Rs.2,00,000/- Dt.02 nd

November, 2013
Exhibit P2- Original Cheque Return memo, Dt.29th March, 2014
Exhibit P3- Original Cheque No.010857 for Rs.1,00,000/- Dt.01st
February, 2014
Exhibit P4- Original Cheque Return memo, Dt.29th March, 2014
Exhibit P5- Original Promissory Note for Rs.3,00,000/- Dt.15 th
October, 2012
Exhibit P6- Office Copy of Legal Notice, Dt.05th April, 2014
Exhibit P7- Original Postal Receipt, Dt.05th April, 2014
Exhibit P8- Original Intimation Letter, Issued by Postal Authorities,
Dt.05th May, 2014
And further the Complainant examined a two more witness
PW2 is Mr.M.Nareder Goud who is the witness to the ExhibitP-5
(Promissory Note, Dt.15-10-2002) and PW3 is Mr.M.Ranjith Kumar
who is the Scriber of the ExhibitP-5.
The PW-2 and PW-3 are also supported the case of the PW-1 that
the Accused borrowed an amount from the Complainant at his
house and executed a promissory note in their presence along
with his one more witness namely G.Siva Prasad who is the friend
of Accused.

Though the Accused is Examined under Sec-313 of Cr.P.C on

27th October, 2014 stated that there is a Defence Evidence on his
behalf, no Defense is Produced by the Accused either by way of
Oral or Documentary Evidence to rebut the presumption under
Sec-139 of N.I.Act.

The Complainant (PW1) was Cross-examined by the Accused

Counsel on 15th September, 2014.

During the course of Cross-examination of the PW1: By mere

making a suggestions made by the Accused Counsel the PW1
stated that It is not true to suggest that my father advanced the
amount to the accused by obtaining the cheques and as a benami
the present complaint is filed through me against the Accused .
It is not true to suggest that blank cheques were obtained by my
father and after filling up the same present complaint is filed
through me. It is not true to suggest that ExP1 the date is altered
by me by changing from 2012 to 2013.

Except this no leading questions or no suggestions put forth

by the Accused Counsel with regard to the subject cheques how
the cheques is came into the possession of the Complainants
father, execution of cheque and even not dispute that the
signatures bears on the Ex-P1,Ex-P3 and Ex-P5 is not pertains to
him and no explanation is given in Sec-313 Examinations and it is
settled principle of law that by putting mere suggestions is not
sufficient to prove the same without providing any cogent
evidence on the Defence side.

And as if the subject cheques is in the custody of the

Complainant why the Accused did not take any steps for return of
those cheques by giving a legal notice is not explained properly.

The Accused has taken a contradictory statements

during the Cross of PW-1 and PW-3 that the Accused
suggested to the PW-1 that Complainants father
advanced the amount to the accused by obtaining the
cheques and as a benami the present complaint is filed
through you against the accused? For which the PW-1
denied the suggestion that It is not true to suggest that
my father advanced the amount to the accused by
obtaining the cheques and as a benami the present
complaint is filed through me against the Accused . It
is not true to suggest that blank cheques were obtained
by my father and after filling up the same present
complaint is filed through me. It is not true to suggest
that ExP1 the date is altered by me by changing from 2012
to 2013.
And during the course of cross Examination of PW-3 on
suggestion put forth by the Accused Counsel the PW-3
stated that the Cheques were obtained as a security, so,
when the Accused taken a contradictory statements in the
Cross examination of PW-1 and PW-3 in a different manner
as he likes, for which it is very crystal clear that there is a
legally enforceable liability on part of the Accused as such
the Accused issued a subject cheques towards discharge
of his liability is very clear.
And If there is any doubt in the mind of the Accused he
should take steps by calling a Bank Manager or to send it for
Expert Opinion.

And it is not the case of the Accused that no notice was

served upon on him.

The burden is on the Accused to prove that there is no

legally enforceable liability is existing.

The Exhibit-P5 Promissory Note itself indicates that there is a

legally enforceable liability and the Accused did not choose to
examine the one of his friend Sri.G.Siva Prasad who is stood as
witness in it.
 And even the Counsel did not touch the documents and no
questions were asked about execution of the cheque, signatures
on Ex-P1,P3 and P5(promissory note) and with regard to service of
notice as such adverse inference can be drawn against the
Accused.

The Complainant has fulfilled the ingredients of sec-138 of

N.I.Act.
Sec-138.Dishonour of cheque for insufficiency etc.,
of funds in the account:-
Where any chque drawn by a person on an account maintained by
him with a banker for payment of any amount of money to
another person from out of that account for the discharge, in
whole or in part, of any debt or other liability, is returned by the
bank unpaid, either because of the amount of money standing to
the credit of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be
deemed to have committed an offence and shall, without
prejudice to any other provisions of this Act, be punished with
imprisonment for a term which may extend to two years, or with
fine which may extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this section shall apply
unless:-
(d) The cheque has been presented to the bank within a
period of three months from date on which it is drawn or
within the period of its validity, whichever is earlier;
(e) The payee or the holder in due course of the cheque, as
the case may be, makes a demand for the payment of the
said amount of money by giving a notice, in writing, to the
drawer of the cheque, within thirty days of the receipt of
information by him from the bank regarding the return of
the cheque as unpaid; and
(f) The drawer of such cheque fails to make the payment of
the said amount of money, to the payee or, as the case
 may be, to the holder in due course of the cheque, within
fifteen days of the receipt of the said notice.
Explanation:- For the purpose of this Section, debt or other
liability means a legally enforceable debt or other liability.

INGREDIENTS OF OFFENCE UNDER SECTION-138 OF N.I.ACT

1.The Cheque should have been issued for the discharge, in whole
or part, of any debt or other liability.
2.The Cheque should have been presented within a period of
Three months or within its validity period whichever is earlier.
3.The Payee or holder in due course should have issued a notice
in writing to the drawer within 30 days of the receipt of
information by him from the Bank regarding the return of the
cheque as unpaid.
4.After receipt of the said notice from the holder in due course,
the drawer should have failed to pay the cheque within 15 days of
receipt of the said notice.

In the present case the Complainant fulfilled the essential

ingredients of Sec-138.
The Complainant has proved his case beyond all reasonable
doubts hence the Accused may be punished according to law by
imposing a double of the cheque amount.

And it is for the Accused to rebut the presumption Under

Sec-139 of N.I.Act.

Sec-139. Presumption in favour of holder: - It shall be

presumed, unless the contrary is proved, that the holder of a
cheque received the cheque of the nature referred to in section-
138 for the discharge, in whole or in part, of any debt or other
liability.
The Accused has taken a contradictory statements
during the Cross of PW-1 and PW-3 that the Accused
suggested to the PW-1 that Complainants father
advanced the amount to the accused by obtaining the
cheques and as a benami the present complaint is filed
through you against the accused? For which the PW-1
denied the suggestion that It is not true to suggest that
my father advanced the amount to the accused by
obtaining the cheques and as a benami the present
complaint is filed through me against the Accused . It
is not true to suggest that blank cheques were obtained
by my father and after filling up the same present
complaint is filed through me. It is not true to suggest
that ExP1 the date is altered by me by changing from 2012
to 2013.
And during the course of cross Examination of PW-3 on
suggestion put forth by the Accused Counsel the PW-3
stated that the Cheques were obtained as a security, so,
when the Accused taken a contradictory statements in the
Cross examination of PW-1 and PW-3 in a different manner
as he likes, for which it is very crystal clear that there is a
legally enforceable liability on part of the Accused as such
the Accused issued a subject cheques towards discharge
of his liability is very clear.
So when the Accused is not proved his case until the
contrary is proved as defined in Sec-139 of N.I.Act the Accused is
liable of the offence committed by him under Sec-138 of N.I.Act.

Sec-118:Presumptions as to negotiable instruments of

consideration:- Until the contrary is proved, the following
presumptions shall be made-
(h) That every negotiable instrument was made or drawn
for consideration, and that every such instrument, when it
has been accepted, endorsed, negotiated or transferred,
was accepted, indorsed, negotiated or transferred for
consideration:
(i) As to date; that every negotiable instrument bearing a
date was made or drawn on such date;
 (j) As to time of acceptance; that every accepted bill of
exchange was accepted within a reasonable time after its
date and before its maturity;
(k) As to time of transfer; that every transfer of a
negotiable instrument was made before its maturity;
(l) As to order of endorsements; that the endorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
(m) As to stamps; that a lost promissory note, bill of
exchange or cheque was duly stamped;
(n) That holder is a holder in due course; that the holder of
a negotiable instrument is a holder in due course;
provided that, where the instrument has been obtained
from its lawful owner, or from any person in lawful custody
thereof, by means of an offence or fraud, or has been
obtained from the maker or acceptor thereof by means of
an offence or fraud, or for unlawful consideration, the
burden of proving that the holder is a holder in due course
lies upon him;
NOW THE POINTS FOR CONSIDERATION:

(d) Whether the Complaint filed by the Complainant is

defective?
(e) Whether Presumption under Sec-139 of N.I.Act can
be drawn against the Accused?
(f) Whether the Accused has legally enforceable debt to
the Complainant?
The Accused has raised a points in arguments that:
6) There is no mentioning the date & witness before whom the
promissory note is executed under Ex-P5.

7) The notice is demanded not only for cheque amount but

also for interest.
8) There is no legally enforceable liability.
9) There is no capacity to lend the amount to accused.
10) The Cheque is not issued to the Complainant and it is
issued to the Complainants father and same is filled by his
father and foisted a false case through his son. Further the
 PW-3 on suggestion stated that the cheque is taken for
security purpose.
In response to (1)-that, The Legal Notice, Complaint and Chief
Affidavit of PW-1 clearly indicated the Execution of Promissory
note and all the documents were filed at once at the time of filing
of the case and the Ex-P5 Promissory note is also filed along with
the original so it makes part and parcel of the case.
And after closing of PW-1 evidence the case is adjourned for
further evidence of Complainant and the Complainant filed a Chief
Affidavit of PW-2 and 3 and no objection is raised by the counsel
for accused and the Affidavit was accepted and received by this
Honble Court and Cross Examination was conducted by the
Accused Counsel and now at this Junction the Counsel cant take
such a plea at the time arguments once the same is admitted and
made a part and parcel of the case no objection can be raised at
the time of arguments.

It is settled principle of law that once the witness

appeared and lead the evidence again cant said that
permission should be obtained so for which the Honble
High Court of Kerala held in case of Augusty Vs Rajan that:
No list of witness is required LAWS (KER)-1999-2-28

In response to (2) that, the Punjab-Haryana High Court held in

case of Rahul Jain and another VS. Alstom Ltd., that the Legal
notice is not bad in law if it speaks about interest, costs etc.,
And Further our Own High Court held in case of M/s Appolo
Tyres Ltd., Vs. M/s H.M.Tyres and another the court has
considered the view in case of Suman Sethi Vs. Ajay
K.Churiwal and anoter that if a notice, any other sum is
indicated in addition to the amount covered by the
cheque, that does not invalidate the notice and
considered the view that the accused has to lead cogent
evidence during trial in rebutting the presumption and in
proof of his defence is explained by Apex Court in Narayan
Menon Vs. State of Kerala case.

In response to (3), (4) and (5)-that, the Honble Supreme

Court held in AIR 2010 SC 1898 in case of Rangappa Vs.Sri Mohan
case that since the accused did admit that the signature on the
cheque was his, the statutory presumption comes into play and
the same has not been rebutted even with regard to the materials
submitted by the complainant. In the present case also the
Accused did not dispute his signature on Ex-P1, Ex-P3 and Ex-p5
as such Sec-139 of N.I.Act comes into play.
Our own High Court reported in 2002 (1) ALD Cri. 689
observed in case of Waterbase Ltd., Vs. Karuturu
Ravendra, Proprietor that the Court has to draw a
presumption that the drawer of the cheque has issued the
same for legally enforceable debt or liability unless the
contrary is proved.

The Supreme Court of India in case of Hiten P. Dalal Vs.

Bratindranath Banerjee taken a view of Sec-118, Sec-138
and Sec-139 that the accused did not denied nor was it is
dispute that the cheques were dishonoured because of
insufficient funds in the Appellants account with the
drawee and further rely upon three presumptions in
support of its case, namely under sec-118,138 and 139 of
the N.I.Act sec-118 provides inter-alia, that until the
contrary is proved it shall be presumed that every
negotiable instrument was made or drawn for
consideration, and that every such instrument when it has
been accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for
consideration.
And further stated that the accused did not enter the
witness box to support his case that the four cheques in
particular had been given in respectof any arrangement or
in respect of any transaction which did not materialize.

Our own High Court in case of B.Raja Krishnaji Vs. Kadam

Kondoji and State of A.P. observed that on the aspect of
the nature of evidence which the accused is required to be
adduced to rebut the presumption available under sec-
118(a) of the N.I.Act as also under sec-139 thereof in
favour of Complainant.

The Complainant stated in his Cross Examination that he arranged

the amounts from his relatives and lend the amount to the
Accused and when the accused did not denial of borrowing
amount and execution of signatures on the Ex-P1, P3 and P5 Sec-
139 came into play.

And Even if the cheque is given for security purpose the

Honble High Court of Karnataka reported in 2006
Crl.L.J.3760 in case of Umaswamy Vs. K.N.Ramanath held
that the contention that the cheque was issued only as
security is preposterous. Therefore, merely because the
drawer contends that it is issued as security is not a
ground to exonerate the penal liability under sec-138 of
n.i.act.

So the entire burden is on the Accused to rebut the presumption

that he did not received the amount and the cheques is not
belongs to him and the signatures is not pertains to him and no
execution of promissory is made and no service of notice is
served on him is entirely disproved by the accused, unless the
contrary is proved, the Honble Court has considered the case of
the Complainant and punish the accused as per law.

In view of the submissions made by the Complainant, the

Complainant prays before this Honble Court that the Accused
may be pleased punished according to Law for non-compliance of
Sec-138 of N.I.Act and impose fine double of cheque amount with
compensation.

Place:Hasthinapur,
Date :17th November, 2014. Counsel for the
Complainant.

IN THE COURT OF
HONBLE X SPECIAL
MAGISTRATE ::
CYBERABAD
AT HASTHINAPURAM

C.C.NO.224 OF 2014

Between:

Tata Sai

Complainant

And

Mohd.Asif

..Accused
 WRITTEN
ARGUMENTS SUBMITTED
BY COMPLAINANT

Filed On:17-11-2014

Filed By: M/s K.Veerabhadra

Rao &
G.Srinivas
Advocates
Counsel for
Complainant