Bangalore District Court
Mrs.Sameena Nazeem vs Mr.Altaf Ahmed on 3 November, 2018
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 3RD DAY OF NOVEMBER, 2018.
C.C.No.53659/2016
COMPLAINANT : Mrs.Sameena Nazeem,
Wife of Mohd Ghouse NazeemBadsha,
Aged about 49 years,
GPA holder of Mohd ghouse Nazeem
Badsha,
S/o Late Mohammed Ghouse,
Aged about 55 years,
R/at No.2062, 16th D Main,
HAL 2nd Stage, Indiranagar,
Bangalore - 560 038.
.Vs.
ACCUSED : Mr.Altaf Ahmed,
Aged about 55 years,
S/o Late Haji Mohammed Basha,
R/at No.316, 10th Main,
14th Cross, Indiranagar,
II Stage, Bangalore - 38.
****
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2 C.C.No.53659-20162. The complaint case in nutshell is that the complainant is the GPA holder of her husband Mohammed Ghouse Nazeem Badsha. The accused was a tenant under the complainant's husband and he was in default of payment of rent. Accordingly, the complainant filed a suit for ejectment and recovery of arrears of rent and mesne profits and O.S.No.4738/2010 on the file of 25th ACCJ (CCH-23) and the said suit has been decreed. On the basis of the said decree the complainant filed FDP No.14/14 and that has been also decreed. On the basis of said decrees complainant filed an execution petition in Execution Petition No.2506/15. While executing the attachment warrant in the said case, the accused has voluntarily issued cheques bearing No.000003 dtd:20.02.2015 for Rs.5,00,000/-, cheque No.000006 dtd:28.02.2016 for Rs.5,00,000/- and cheque bearing No.000005 dtd:10.03.2016 for Rs.3,92,982/- and all the cheques are drawn at HDFC Bank, M.G.Road, Bengaluru. The complainant further claims that she has presented the said cheques for encashment on 20.02.2016 and 29.02.2016. One cheque has been returned with bank endorsement stating payment stopped by the drawer and another cheque returned with bank endorsement stating "Funds Insufficient" as per memos dtd:23.02.2016 and 01.03.2016 respectively. The complainant caused a legal notice to the accused on 08.03.2016 that has been served to the accused on 09.03.2016. The accused failed to comply with the notice. Hence, filed the complaint.
3 C.C.No.53659-20163. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
4. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.18.
6. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
7. The accused examined himself as D.W.1 along with one witness as D.W.2 in support of his defense and also got marked documents at Ex.D.1 to 4. The accused claimed that GPA Holder Smt.Sameena Nazeer is his Biological sister and their relationship is not cordial sine 2008. The accused admitted the filing of suit in O.S.No.4738/10. The accused admitted that he is the tenant under the complainant and the duration of tenancy is 3 years and rent per month is Rs.30,000/-. The accused also claimed that he has deposited Rs.3,00,000/- as a security deposit that has been written in 4 C.C.No.53659-2016 the rental agreement. The accused further claimed that he has paid the security deposit of Rs.3,00,000/- to the complainant in the presence of one S.J.Khan and Ariff. The complainant's GPA holder is not used to issue receipt when the accused making payment of rent. The accused further claimed that he has handed over the possession to the complainant on 20.12.2013 and on the same day he has paid Rs.12,00,000/- to the complainant as such there was no due whatsoever to the complainant from the accused. The accused further claimed that he has not received the notice in final decree proceedings as such he could not put forth his defense in the said case. The accused further claimed that after filing the execution petition the court ameen and complainant came near to his house and threatened him. As such out of fear he has issued 3 cheques in favour of the complainant and thereafter issued stop payment instructions. The accused further claimed that the complainant has endorsed the receipt of Rs.12,00,000/- in the rental agreement at Ex.D.1 at Ex.D.1(b) endorsement. Accordingly prayed for dismissal of complaint.
8. The counsel for the complainant also filed detailed application under Sec.340 R/w.Sec.195 of Cr.P.C. praying to take the cognizance of the offence against the accused / D.W.1 and D.W.2 under Sec.191, 192 and 193 of IPC.
9. The accused filed detailed objection to the said application.
5 C.C.No.53659-201610. On the basis of above, the points for consideration are that;
1. Whether the complainant made out sufficient grounds to take cognizance against the D.W.1 and 2 for the offence punishable under Sec.191, 192 and 193 of IPC?
2. Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
3. What order?
2. Heard the arguments of complainant. The counsel for the accused filed his written arguments. Perused the materials on record. On that basis my finding on the above points are as under;
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : As per final order for the following;
REASONS
11. Point Nos.1 & 2: - Both these points are interlinked with
each other hence, taken up together for common discussion in order to avoid repetition the repetition in the judgment.
12. The complaint case in nutshell is that the complainant is the GPA holder of her husband Mohammed Ghouse Nazeem Badsha. The accused was a tenant under the complainant's husband and he 6 C.C.No.53659-2016 was in default of payment of rent. Accordingly, the complainant filed a suit for ejectment and recovery of arrears of rent and mesne profits and O.S.No.4738/2010 on the file of 25th ACCJ (CCH-23) and the said suit has been decreed. On the basis of the said decree the complainant filed FDP No.14/14 and that has been also decreed. On the basis of said decrees complainant filed an execution petition in Execution Petition No.2506/15. While executing the attachment warrant in the said case, the accused has voluntarily issued cheques bearing No.000003 dtd:20.02.2015 for Rs.5,00,000/-, cheque No.000006 dtd:28.02.2016 for Rs.5,00,000/- and cheque bearing No.000005 dtd:10.03.2016 for Rs.3,92,982/- and all the cheques are drawn at HDFC Bank, M.G.Road, Bengaluru. The complainant further claims that she has presented the said cheques for encashment on 20.02.2016 and 29.02.2016. One cheque has been returned with bank endorsement stating payment stopped by the drawer and another cheque returned with bank endorsement stating "Funds Insufficient" as per memos dtd:23.02.2016 and 01.03.2016 respectively. The complainant caused a legal notice to the accused on 08.03.2016 that has been served to the accused on 09.03.2016. The accused failed to comply with the notice. Hence, filed the complaint.
13. The accused examined himself as D.W.1 along with one witness as D.W.2 in support of his defense and also got marked documents at Ex.D.1 to 4. The accused claimed that GPA Holder Smt.Sameena Nazeer is his Biological sister and their relationship is 7 C.C.No.53659-2016 not cordial sine 2008. The accused admitted the filing of suit in O.S.No.4738/10. The accused admitted that he is the tenant under the complainant and the duration of tenancy is 3 years and rent per month is Rs.30,000/-. The accused also claimed that he has deposited Rs.3,00,000/- as a security deposit that has been written in the rental agreement. The accused further claimed that he has paid the security deposit of Rs.3,00,000/- to the complainant in the presence of one S.J.Khan and Ariff. The complainant's GPA holder is not used to issue receipt when the accused making payment of rent. The accused further claimed that he has handed over the possession to the complainant on 20.12.2013 and on the same day he has paid Rs.12,00,000/- to the complainant as such there was no due whatsoever to the complainant from the accused. The accused further claimed that he has not received the notice in final decree proceedings as such he could not put forth his defense in the said case. The accused further claimed that after filing the execution petition the court ameen and complainant came near to his house and threatened him. As such out of fear he has issued 3 cheques in favour of the complainant and thereafter issued stop payment instructions. The accused further claimed that the complainant has endorsed the receipt of Rs.12,00,000/- in the rental agreement at Ex.D.1 at Ex.D.1(b) endorsement. Accordingly prayed for dismissal of complaint.
14. Before proceeding further in this case it is just and relevant to note the admitted facts of the case. The complainant Sameena 8 C.C.No.53659-2016 Nazeem is the sister of the accused Altaf Ahmed. Sameena Nazeem is the wife of Late Mohammed Ghouse Nazeem Badsha who had the house property at Bengaluru that has been leased to the accused on monthly rent. Smt.Sameena Nazeem being a GPA holder of her husband Mohammed Ghouse Nazeem Badsha filed this complaint. The complainant filed an Ejectment Suit in O.S.No.4738/2010 on the file of ACCJ (CCH-23) and the said suit has been disposed off as per the judgment dtd:14.06.2013 and on the basis of said judgment the decree has been passed on 13.07.2013. Subsequent to the judgment in O.S.No.4738/2010, the vacant possession of the house property has been handed over to the complainant as on 20.12.2013.
15. The claim made out by the complainant in the complaint that on the basis of aforesaid judgment in O.S.No.4738/2010; the complainant filed F.D.P No.14/14 for determining the damages claimed in the suit and that has been allowed partly as per order dtd:05.09.2015 wherein the court ordered to pay the damages at the rate of Rs.30,000/- p.m. from 13.07.2010 to 20.12.2013. On the basis of said order the complainant filed an Execution case No.2506/2015 to enforce the said order.
16. Now, coming to the disputed facts, the claim of the complainant that the accused has not paid the damages as 9 C.C.No.53659-2016 ordered in F.D.P. Hence, when she obtained attachment warrant and she along with court bailiff went to execute the warrant in the execution cases; the accused has issued 3 cheques as on 11.02.2016. The accused disputed the said claim stating that he has already paid the whatever the amount due in respect of the property from him to the complainant as on 20.12.2013 while handing over the possession to the complainant. The accused also claimed that the complainant has acknowledged the said payment in the rent agreement as per endorsement at Ex.D.1(b). The complainant seriously disputed the said fact claiming that the said endorsement has been created by the accused for the purpose of this case.
17. In view of the aforesaid admitted and disputed facts in this case the only fact to be considered in this case is that whether the accused has made the payment of Rs.12,00,000/- to the complainant in respect of the tenanted house property as on 20.12.2013 while handing over the possession to the complainant as full and final settlement in respect of the arrears of rent or the damages claimed in the suit in respect of rented house or whether the cheque has been issued subsequent to the passing of final decree during the execution proceedings towards the discharge of debt as claimed in the complaint. Hence, the discussion has to be restricted only on the disputed facts and in 10 C.C.No.53659-2016 view of the settled principle of law, no finding is required on the admitted facts. Considering the above facts the burden is on the accused to prove that he has paid the amount due to the complainant as on 20.12.2013 while handing over the possession and thereby he has discharged entire liability.
18. This complainant in support of complaint case examined as P.W.1 and got marked documents at Ex.P.1 to 16. The Ex.P.1 is the GPA, Ex.P.2 and 3 are the cheques, Ex.P.4 and 5 are bank return memos, Ex.P.6 is the O/c of the legal notice, Ex.P.7 is the postal receipt, Ex.P.8 is the postal acknowledgment, Ex.P.9 is the certified copy of the Execution Petition, Ex.P.10 is the certified copy of the order sheet in Execution case No.2506/15, Ex.P.11 is the certified copy of the attachment warrant in Execution Case No.2506/15, Ex.P.12 is the judgment passed in O.S.no.4738/2010, Ex.P.13 is the judgment passed in a RFA No.1463/2013, Ex.P.14 is the order sheet in Execution case No.2506/15, Ex.P.15 is the Vakalath filed by the accused in Execution Case No.2506/15, Ex.P.16 is the copy of the reply notice, Ex.P.17 is the attachment warrant with enclosures in execution petition No.2506/15, Ex.P.18 is the statement of objection filed by the accused in the said execution case.
19. Similarly, the accused examined himself as D.W.1 along with one witness as D.W.2 and in support of his defense has 11 C.C.No.53659-2016 produced the copy of the lease agreement at Ex.D.1, Report and Mahazar of the bailiff at Ex.D.2 and 3 in Execution Case No.2506/15.
20. The complainant presented 2 cheques issued by the accused within its validity. The legal notice has been issued in time and even the complaint is in time. Though the accused disputed that the cheque has been obtained forcibly but admitted the issuance of the cheque in favour of the complainant as well as his signature in the cheque. Hence, as per sec.118 and 139 of N.I.Act, the presumption under Sec.139 of N.I.Act has to be drawn in favour of the complainant that the cheque has been issued towards the discharge of legally enforceable debt. When the complainant made out a case to draw initial presumption under Sec.139 of N.I.Act, the burden shifts on the accused to prove the contrary to the complaint case and to give rebuttal evidence, as such he has to prove the respective contentions taken by him during the defense evidence otherwise the case of the complainant has to be accepted by the court.
21. As already stated earlier, the dispute between the complainant and the accused regarding the house property is an admitted fact. Filing of the Ejectment suit is also not in dispute.
12 C.C.No.53659-2016Handing over the possession of the said house property to the complainant as on 20.12.2013 is also not in dispute. Only dispute in this case is regarding the payment of damages in respect of the house property leased to the accused. At this juncture it is relevant to note the claim of the complainant in suit in O.S.no.4738/10. The complainant produced the judgment at Ex.P.12. The said judgment discloses that the issue No.3 in the said suit is reads as;
"Whether the complainant proves that defendant is liable to pay damages at the rate of Rs.60,000/- p.m.?"
22. The said judgment clearly discloses that the plaintiff claimed the damages from the date of suit till the delivery of the possession of the property at the rate of Rs.60,000/- p.m. The court not decided the said issue with the observation that the issue No.3 to be enquired under Order XX Rule 12 of CPC separately. Hence, there is no finding by the court in O.S.no.4738/10 regarding the damages or mesne profits in respect of the rented premises during the pendancy of the suit. Therefore, while deciding the suit the rent / damages / mesne profits in respect of the rented house during the pendancy of the case or from the date of filing of the suit till the handing over of the possession has not been decided by the court.
13 C.C.No.53659-201623. In view of the finding in O.S.no.4738/10 that the damages to be enquired u/O.XX Rule X of C.P.C, the complainant filed a FDP No.14/14 and in the said FDP the court ordered or directed the accused to pay Rs.30,000/- p.m. from the date of suit till the handing over of the possession of house property. On the basis of said order dtd:05.09.2015, this complainant filed the Execution Case No.2506/15 to recover the said amount. Per contra, the accused claimed that he has paid Rs.12,00,000/- to the complainant as on 20.12.2013 while handing over the possession. It is relevant to note that as on 20.12.2013 the damages / rent / mesne profits have not at all determined by the competent court. Even there is no material on record to show that the complainant and accused were agreed to receive the damages / mesne profits during the pendancy of the suit till the handing over of the possession to the tune of Rs.12,00,000/-. The accused in support of his defense claimed that the complainant has acknowledged the payment of Rs.12,00,000/- in the rent agreement as per endorsement at Ex.D.1(b). However, what is the basis for the accused to pay Rs.12,00,000/- as claimed by him at Ex.D.1(b) is without any explanation.
24. The complainant seriously disputed the endorsement found in Ex.D.1 at Ex.D.1(b). This complainant has seriously disputed her signature found in the said endorsement at Ex.D.1 as well as 14 C.C.No.53659-2016 her signature at Ex.D.1(c). The specific claim of the complainant that the said endorsement has been created and that was an after thought. Hence, the burden is on the accused to prove the said endorsement as well as payment of money as on 20.12.2013. Of course this accused examined one attesting witness to the said Ex.D.1 at Ex.D.1(b) as D.W.2 and he identified the signature at Ex.D.1(c). This evidence sufficiently discloses that he is interested witness and he is the close relative of the accused and he has also actively involved in this case along with accused. Hence, his evidence has to be a examined carefully.
25. It is also relevant to note that the complainant while filing the suit claimed the arrears of rent in respect of rented premises to the tune of Rs.5,80,000/-. The issue No.2 in the suit has been framed regarding the said aspect that reads as;
"Whether the plaintiff proves that the defendant is due in arrears of rent of Rs.5,80,000/-?"
26. The said issue has been answered partly in the affirmative with the observation that during the pendancy of the suit this accused has paid Rs.30,000/- each on 04.07.2012, 13.09.2012 and 16.10.2012, by deducting the said amount the court ordered to pay Rs.4,90,000/- towards the arrears of rent. If it were so, 15 C.C.No.53659-2016 the complainant is entitled for the arrears of rent of Rs.4,90,000/- along with rent from the date of filing of the suit till disposal of the suit. Admittedly the judgment is passed on 14.06.2013. Hence, there is a arrears of rent during the pendancy of the suit from 13.07.2010 to 20.12.2013 that amounts to 41 months that comes to Rs.12,30,000/-. Even if it is accepted that the accused has paid the agreed rate of rent to the complainant while handing over the possession, there also he has to pay Rs.12,30,000/- towards the rent during the pendancy of the suit. It is also relevant to note that the accused is also liable to pay arrears of rent claimed in the suit and the court in the judgment specifically directed the accused to pay Rs.4,90,000/-. If at all this accused has paid Rs.17,20,000/- (Rs.4,90,000/- as decreed in the suit and Rs.12,30,000/- from 13.07.2010 to 20.12.2013) as on 20.12.2013 it would have been accepted that the accused has paid the entire amount as claimed by him.
27. As already discussed above, the defense of the accused is entirely based on the endorsement in the Ex.D.1 at Ex.D.1(b) the said endorsement at Ex.D.1(b) reads as;
"Received cash Rs.12,00,000/- from Althaf Ahmed dt 20.12.2013 by account of NGEF No 438 full and final settlement No due this after".16 C.C.No.53659-2016
28. Of course this endorsement gives an impression that as on 20.12.2013 this accused has paid Rs.12,00,000/- to the complainant as full and final settlement in respect of the rented premises but the complainant has seriously disputed the said endorsement as well as her signature. The specific claim of the complainant that the said endorsement has been created by the accused and D.W.2 for the purpose of this case. When the complainant has seriously disputed the said endorsement along with her signature, the burden shifts on the accused to prove the said endorsement as well as the signature of the complainant at Ex.D.1(d).
29. the accused during the cross-examination of complainant / P.W.1 dated 04.06.2018 confronted the photostat copy of the lease agreement dated 29.10.2007, the complainant / P.W.1 denied the said document and the P.W.1 specifically denied her signatures in the two endorsements found in said agreement. The accused during his evidence dated 14.06.2018 got marked the photostat copy of the aforesaid agreement as Ex.D.1. At this juncture it is relevant to note that the complainant has raised objection to mark the said document claiming that the said document is photostat copy. Considering the two endorsements found in the said agreement the said document is marked at Ex.D.1 subject to objection as Ex.D.1 and similarly the endorsement found in Ex.D.1 at Ex.D.1(a) and (b) also marked subject to objection. The signature at Ex.D.1(d) is marked through D.W.2, if the signature at Ex.D.1(d) has been admitted by the complainant certainly this court ought to have accepted the said 17 C.C.No.53659-2016 endorsement but the complainant / P.W.1 specifically denied the said signature. Hence, without proving the said signature at Ex.D.1(d) the signature of complainant / P.W.1 certainly the said endorsement cannot be accepted.
30. It is also relevant to note that inspite of disputing the signature at Ex.D.1(d) by the complainant, the accused has not made any effort to prove the said signature by obtaining the experts opinion why this accused not chosen to obtain the experts opinion to prove the endorsement at Ex.D.1(b) as well as the signature at Ex.D.1(d) is without any explanation. There are several admitted signatures of complainant / P.W.1 in the case file. Even if the said signature have been compared with the disputed signatures at Ex.D.1(d), the signature at Ex.D.1(d) creates some suspicion particularly the last portion on the right side of the signature. Even on this court, the accused ought to have obtained the experts opinion in respect of Ex.D.1(a), Ex.D.1(b) and Ex.D.1(d). No explanation by the accused that why he has not chosen to obtain the opinion of experts to prove Ex.D.1(d).
31. According to the case of accused and endorsement at Ex.D.1(b), this accused has paid Rs.12,00,000/- to the complainant as full and final settlement. If it was true, then certainly there is no necessity for the complainant to file case in FDP in the year 2014 as the accused claiming the settlement as on 20.12.2013. Further, if really there was a settlement as claimed by the accused between the 18 C.C.No.53659-2016 parties, there is no necessity for the accused to have talks of settlement thereafter. In this context it is useful to refer the admissions given by the D.W.2 during his cross-examination at page No.2, 3rd line onwards stated that;
"It is true that during the pendency of this case I approached the complainant before this court stating that one site is at Nelamangala and by taking the said site asked the complainant to settle the dispute".
32. the aforesaid admission by the D.W.1 sufficiently discloses that during the pendancy of this case this accused alongwith D.W.2 approached the complainant for settlement by selling the site at Nelamangala to the accused. If at all this accused has paid Rs.12,00,000/- as on 20.12.2013, as full and final settlement and if the cheques were forcibly taken by the accused, certainly there is no necessity for the accused to approach the complainant for settlement particularly during the pendancy of this case. In fact, this conduct of the accused falsifies the payment of Rs.12,00,000/- to the complainant as per Ex.D.1(b).
33. It is also relevant to note that this accused has given the reply to the demand notice at Ex.P.16. The legal notice / demand notice issued by the complainant on 08.03.2016 as per Ex.P.6. The postal acknowledgment at Ex.P.8 discloses that the notice has been duly served on 09.03.2016. As per Section 138 (c), the accused is expected to make the payment within 15 days from the receipt of 19 C.C.No.53659-2016 notice. As such the accused ought to have given the reply on or before 24.03.2016 but the reply has been issued on 03.05.2016 that is subsequent to filing of this complaint and this complaint is filed on 26.03.2016. If at all this accused has paid Rs.12,00,000/- as full and final settlement on 20.12.2013, certainly this accused would have made specific assertion on the reply notice. Rs.12,00,000/- is not a paltry amount that one can ignore. Apart from that the accused is claiming that the complainant / P.W.1 has endorsed the payment by the accused. In spite of all these claims the accused has not made out the specific case of payment of Rs.12,00,000/- either in the reply notice or in the objection filed to the execution petition.
34. It is surprising to note that this accused has taken strong defense in the reply notice at Ex.P.16 is that the claim of the accused in the demand notice at Ex.P.6 is barred by limitation as the complainant is claiming the debt of the year 2010. The said claim of the accused at para No.5 of the Ex.P.16 reply notice reads as;
"My client tells me to write to you that legally recoverable debts means recoverable within the limitation period of 3 years, your clients cases pertains 2010 i.e. 6 years back".
35. If really the accused has paid the amount as claimed by him on 20.12.2013 there is no necessity for him to claim that the debt is time barred debt. Even this fact also falsifies the endorsement at Ex.D.1(b).
20 C.C.No.53659-201636. The accused during his evidence claimed that the complainant along with the court bailiff given threat and taken the cheques from him. In the reply notice it is claimed by the accused that the complainant and court bailiff threatened the accused and his family members, at that time wife and children started crying and then the complainant has demanded 3 cheques hence, the accused has issued the cheques for Rs.13,92,982/-. This claim of the accused in the reply notice clearly proves that the accused has issued the cheques for total sum of Rs.13,92,982/- that is for the amount claimed in the complaint. However this accused has taken contradictory stand during the cross-examination of P.W.1 dated 28.10.2017 in page No.4 at 2nd para 4th line onwards it is specifically suggested to P.W.1 that;
"It is false to suggest that after filing the execution petition I along with process staff of the court along with attachment warrant went to the house of the accused in the early hours of the day and without the knowledge of the accused have taken all the cheques involved in this case."
37. In the same paragraph 10th line onwards it is further suggested to P.W.1 that;
"It is false to suggest that after knowing the fact that along with the court process staff I have taken the cheque from the house of the accused without his 21 C.C.No.53659-2016 knowledge he has given the stop payment instructions to his banker."
38. The aforesaid suggestion to P.W.1 discloses that this complainant has taken the cheques without the knowledge of accused from his house. If it were so, the accused must explain where he has kept the cheque and why he has kept the signed cheques at his house. This claim also totally contradicts the defense of the accused regarding the issuance of cheque taken by the accused in his reply as well as defense evidence. Therefore, the accused is not specific about his defense and the accused goes on changing the defence. Further, what actually the reason assigned by the accused to his banker to stop payment of cheque is without any explanation. Why the accused has not produced the copy of stop payment instructions issued to the bank to the court is also without any explanation.
39. It is also relevant to note that the accused during the cross- examination claimed that the cheques have been taken away by the complainant from his house without his knowledge and also in the reply notice and defense evidence claimed that this complainant along with court bailiff have given threat and taken the cheques from him. In spite of that he has not taken any action against the complainant or court bailiff. Admittedly the accused claimed that his relationship with the complainant has been strained since the year 2008. Inspite of that he has not taken any legal action against the 22 C.C.No.53659-2016 complainant and court bailiff. The said conduct of the accused also falsifies the claim of the accused that the cheques have been forcibly obtained by the complainant. The materials on record as discussed earlier falsifies the claim of payment of Rs.12,00,000/- while handing over the possession of rented house to the complainant. Hence, the complainant has voluntarily issued these cheques for Rs.13,92,982/-. All these facts certainly reveals that the accused has issued the Ex.P.1 and 2 cheques voluntarily towards the discharge of legally enforceable debt that is towards the arrears of rent. In view of these facts certainly the evidence of D.W.2 will not come to the aid of accused.
40. During the course of evidence of D.W.2, he has claimed that the accused filed a case in Misc.No.456/2018 on the file of CCH-23 praying to set aside the order passed in FDP No.14/14 but the accused has not claimed the said fact and also no material has been placed before the court to substantiate the said fact.
41. The counsel for the accused has filed written arguments and also filed the copy of order passed in RFA No.1463/2018 dated 09.10.2018 the said order reads as;
"2. The appeallants counsel contended before this court that, the decree passed by the trial Court has already been partially executed and possession of the suit 23 C.C.No.53659-2016 schedule property has already been taken over by the respondent herein.
3. However, the trial Court has committed serious error in adjudicating the arrears of rent without providing opportunity to appellant by striking out the defence taken by the appellant herein. Even in the final decree proceedings also, no opportunity has been given to the appellant to agitate with regard to liability of payment of arrears of rent etc. Therefore, the learned counsel for the appellant submits that, the appellant only challenges the order regarding arrears of rent passed by the trial Court and to that extent he confines the appeal. Therefore, in the above facts and circumstances, though there is inordinate and huge delay in filing application for recalling the order, in my opinion, when the court has yet to adjudicate the rights of the parties on merits, the delay should not come in the way. Therefore, on terms, the application deserves to be allowed.
4. Accordingly, IA Nos.1/2018 and 2/2018 are allowed on cost of Rs.5,000/- (Rupees Five Thousand only) to be payable by the appellant to the respondent. The said delay is condoned and the appeal is restored on to the file."24 C.C.No.53659-2016
42. The aforesaid order clearly discloses that the RFA has been restored for the limited purpose of agitating the arrears of rent. The said finding clearly discloses that the arrears of rent is in dispute and the suit has been restored regarding the arrears of rent. The accused also contended that even in the FDP the opportunity has not been given to him while determining the mesne profits.
43. Similarly the accused has also produced the copy of order passed in W.P.No.28239/18 dated 09.07.2018 the said order reads as;
"Issue emergent notice.
Learned counsel for the petitioner submits that in FDP No.14/2014, which is an exparte order, mesne profits has been determined @ Rs.30,000/- per month to be paid from 13.07.2010 to 20.12.2013. Earlier to that, under the Lease Agreement dated 29.10.2007 (which is produced along with memo dated 09.07.2018), an endorsement has been obtained after paying Rs.12,00,000/- (Rupees twelve lakh) to the respondent herein. In the execution case, which is filed to execute the final decree, without providing an opportunity to the petitioner-judgment debtor, arrest warrant has been ordered. Taking note of the same, issue stay of the order dated 23.06.2018 passed in Ex.No.2506/2015 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru, for a period of eight weeks.25 C.C.No.53659-2016
Call after service of notice."
44. The aforesaid 2 recent orders of the Hon'ble High Court of Karnataka reveals that the appeal filed by the accused challenging the decree passed in O.S.No.4738/2010 in RFA No.1463/2013 has been restored in respect of dispute between the parties regarding the arrears of rent and mesne profits. Hence, the dispute between the parties regarding the arrears of rent and mesne profits has to be adjudicated and it does not reached finality.
45. Admittedly, the claim of the complainant is that Ex.P.2 and 3 cheques have been issued by the accused in favour of the complainant towards the discharge of said arrears of rent. As the said arrears of rent and mesne profits are open for the adjudication certainly at this juncture it cannot be said that the amount stated in the respective cheques are the legally enforceable debts. It is also relevant to note that further proceedings in the execution case No.2506/2015 also has been stayed by the Hon'ble High Court of Karnataka in W.P.No.28239/2018 on the contention of the accused that he has paid Rs.12,00,000/- to the complainant. Under such circumstances certainly the court cannot accept the claim of the complainant that the amount stated in the cheques are deemed to be legally enforceable debt as the dispute between the parties regarding the mesne profits has been reopened and that has not been reached finality.
26 C.C.No.53659-201646. In view of the aforesaid facts at this juncture the court cannot given finding on the application filed by the complainant that the accused has given a false evidence or raised false contention before the court as claimed by the complainant in the application filed under Sec.340 R/w.Sec.195 of IPC.
47. In view of the aforesaid discussions this court is of the humble opinion that though the complainant has proved the issuance of cheque voluntarily by the accused in favour of the complainant as well as failed to prove the endorsement at Ex.D.1(b); the court cannot accept the claim of the complainant in view of the restoration of RFA No.1463/2013 as well as stay of further proceedings in Execution Case No.2506/2015 in W.P.No.28239/2018 it cannot be accepted that the amount stated in the cheque at Ex.P.2 and 3 are the actual amount that amounts to legally recoverable debt. Accordingly this court is of the humble opinion that the complainant has failed to prove his case beyond reasonable doubt. Similarly failed to allow the application filed under Sec.340 R/w Sec.195 of Cr.P.C. Accordingly, the point Nos.1 and 2 are answered in the "Negative".
48. Point No.3:- In view of the findings on the aforesaid points, the Court proceed to pass following:
ORDER Acting under Sec.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable under Sec.138 of Negotiable Instrument Act.27 C.C.No.53659-2016
The application filed by the complainant under Sec.340 R/w.Sec.195 of Cr.P.C. is hereby dismissed.
The bail bond stands cancelled.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 3rd day of November, 2018) (PADMA PRASAD), LVII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mrs.Sameena Nazeem
2. Documents marked on behalf of complainant:
Ex.P.1 : Certified copy of GPA
Ex.P.2 & : Original Cheques
Ex.P.3
Ex.P.2(a) : Signatures of the accused
&
Ex.P.3(a)
Ex.P.4 & : Bank return memos
Ex.P.5
Ex.P.6 : O/c of the legal notice
Ex.P.7 : Postal receipt
Ex.P.8 : Postal acknowledgment
Ex.P.9 : Certified copy of the Execution Petition in
Ex No.2506/2015 along with its affidavit
Ex.P.10 : Certified copy of the order sheet in
Ex.No.2506/2015
28 C.C.No.53659-2016
Ex.P.11 : Certified copy of the attachment warrant
issued in Ex. No.2506/2015
Ex.P.12 : Copy of Judgment in O.S.No.4738/2010
Ex.P.13 : Copy of Judgment in R.F.A.No.1463/2013
Ex.P.14 : Certified copy of the order sheet in
Ex.No2506/2015.
Ex.P.15 : Certified copy of the Vakalath
Ex.P.15(a) : Signature in the Vakalath
Ex.P.16 : Reply dtd:03.05.2016
Ex.P.17 : Certified copy of the Attachment Warrant
issued in Ex.Case No.2506/2015
Ex.P.18 : Certified copy of the Objection in Ex.Case
No.2506/2015
3. Witnesses examined on behalf of Accused:
D.W.1 : Mr.Altaf Ahmed
D.W.2 : A.Syed Areef
4. Documents marked on behalf of Accused:
Ex.D.1 : Lease Agreement dtd:29.10.2007
Ex.D.2 & : Certified copy of Attachment of Property in
Ex.D.3 FDP No.14/14 / Ex.No.2506/15
Ex.D.4 : Vakalath
(PADMA PRASAD)
LVII ACMM, BENGALURU.