Bangalore District Court
Haleema Sadiya vs Fairoz Khan on 4 November, 2024
KABC030666332019
Presented on : 12-09-2019
Registered on : 12-09-2019
Decided on : 04-11-2024
Duration : 5 years, 1 month, 22 days
IN THE COURT OF THE XXI ACJM, BENGALURU
Dated: This the 04th day of November, 2024
Present:
SRI.GIRISH CHATNI, B.A.,LL.B.,(Spl)
XXI ACJM, Bengaluru
C.C.No.21387/2019
Complainant : Mrs.Haleema Sadiya,
D/o Syed Akmal Sameer,
Aged about 20 years,
Residing at No.5/3,
Kembathalli Main Road,
Opp: Thirumala Lotus Apartment,
Pillganahalli, Bangalore - 560 083.
Occupation : Housewife.
(By Sri.T.V.T, Adv)
V/s
Accused : Mr.Fairoz Khan,
S/o Sami Khan,
2 CC.No.21387/2019
Muslim, Major,
Residing at No.609, 29th Main,
12th Cross, B.T.M. 2nd Stage,
Bangalore - 560 076.
(By Sri.Harsha, Adv.)
JUDGMENT
This case emanates from a private complaint filed by the complainant alleging that the accused has committed an offence punishable under section 138 of Negotiable Instruments Act, 1881.
2. THE ESSENTIAL FACTS IN BRIEF.
It is the case of the complainant that, herself and accused were got married as per Shariyath of Islam, on 27.07.2018. It is further contended that, due to serious misunderstanding and incompatibility, the matter was referred before Masjid-E-Quba, BTM 2 nd Stage, Committee members on 16.04.2019, thereafter the members of Masjid committee and other family members made several mediation. It is further contended that, from the day one of the marriage between the complainant and the accused, he was in the habit of mishandling the complainant physically and mentally, due to such 3 CC.No.21387/2019 severe misbehavior and domestic violence, the complainant leading her family life with the accused very fearfully. It is further contended that, even inspite of complainant's obedient behaviour had pronounced Talaq before the Mosque committee members, the complainant further submits that marriage was dissolved by way of Talaq on 16.04.2019. It is further contended that, the accused has issued the cheque towards full and final settlement amount, the accused issued one cheque bearing No.075007 dated 16.06.2019 for a sum of Rs.2,00,000/- drawn on IDBI Bank, Madiwala BTM, 1 st Stage Branch, Bangalore in favour of complainant.
2(i). The complainant has further contended that, she had presented the above said cheque for encashment on 01.07.2019 through its banker at YES Bank Limited, Kasturba Road Branch, Bangalore and the said cheque was returned by the banker with an endorsement "Funds Insufficient" dated: 02.07.2019. It is further contended that, the complainant got issued a Legal notice on 31.07.2019 calling upon the accused to pay the amount covered under the cheque and the same was served to the accused on 02.08.2019. 4 CC.No.21387/2019 Despite service of notice, the accused neither paid the amount covered under the cheque nor replied to the said notice. Therefore, the complainant filed the present complaint against the accused alleging the commission of offence punishable under section 138 of Negotiable Instrument Act.
3. The complainant has led his pre summoning evidence. He has filed his affidavit by way of sworn statement in lieu of oral evidence, in which, he has reiterated the complaint averments. In support of his oral evidence, PW.1 has produced 08 documents, which are marked as Ex.P.1 to Ex.P.8 and closed his side.
4. Prima-facie case has been made out against the accused and has been summoned vide order of the same date. Accused has appeared before the court and has been enlarged on bail. The substance of accusation was read over to him, to which he pleaded not guilty and claimed to be tried.
5. In view of the directions of the Hon'ble Apex Court in a decision reported in (2014) 5 SCC 510 (Indian Bank Association & 5 CC.No.21387/2019 Others V/s Union of India), the affidavit filed in lieu of sworn statement was treated as evidence of complainant. Thereafter, the accused was examined as provided under section 313 of Cr.P.C., by explaining the incriminating evidence available against him. His defence is of total denial one. The accused has examined himself as DW.1. No documents got marked through D.W.1 and closed his side.
6. Heard the learned counsel for complainant. Inspite of providing sufficient opportunities neither the accused nor the counsel appearing on his behalf has addressed arguments on merits.
7. Perused the materials available on record.
8. The following points would arise for consideration.
1. Whether the complainant proves that the accused has issued cheque bearing No.075007 dated:
16.06.2019 for an amount of Rs.2,00,000/- in favour of complainant, in discharge of legally enforceable debt and same was returned unpaid on account of "Funds Insufficient" and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?6 CC.No.21387/2019
2. What Order?
9. My findings on the above points are as under:-
Point No.1: In the "Affirmative"
Point No.2: As per the final orders for the following:
REASONS
10. Point No.1:
Section 138 of the Negotiable Instrument Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence punishable U/s 138 of Negotiable Instrument Act are ;
(I) Drawing up of a cheque by the accused towards payment of an amount of money, for discharge, in whole or in part, of any debt or any other liability.
(ii) Return of the cheque by the Bank as unpaid.(iii) The drawer of the cheque fails to make the payment of the said amount within 15 days of the receipt of notice under the proviso (b) to Section 138.
The explanation appended to the section provides that the debt or other liability, for the purpose of this section means a legally enforceable debt or other liability.
7 CC.No.21387/2019
11. Apart from this, section 139 of Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms;
"It shall be presumed unless the contrary is proved, that - the holder of the cheque received the cheque, of the nature referred to him section 138, for the discharge in whole or in part, of any debt or other liability."
12. Also, Section 118 of the N.I.Act states - Until the contrary is proved, the following presumptions shall be made:--
(a) of consideration:--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;
(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 naturity;
(e) as to order of endorsements:--that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on; 8 CC.No.21387/2019
(f) as to stamp:--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."
13. Thus the Act clearly lays down presumption in favour of the complainant with regard to the issuance of the cheque by the accused towards the discharge of his/her liability in favour of the complainant.
14. Under the scheme of the Act, the onus is upon the accused to rebut the presumptions, which are in favour of the complainant by raising a probable defence.
15. It is a well settled position of law that, the defence of the accused, if is in the nature of a mere denial of the case of the complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not 9 CC.No.21387/2019 appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the complainant.
16. It is also a well settled position of law that once the cheque is proved relating to the account of the accused and if he /she accepts and admits the signature on the said cheuqe, then the initial presumption as contemplated under section 139 of the N.I.Act has to be raised by the court in favour of the complainant.
17. The presumption referred to in section 139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. However, the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the accused by way of rebuttal evidence, must be probable and capable of being accepted by the court.
10 CC.No.21387/2019
18. No doubt the initial mandatory statutory presumption as provided under sections 118 and 139 of N.I.Act are in favour of the complainant. However, they are rebuttable presumptions and the accused expected to rebut the presumption by raising a probable defence.
19. Such being the legal position, it would be pertinent to refer the defence raised by the accused to rebut the presumptions, which are in favour of the complainant. Para No.3 and 5 of the examination-in-chief of the accused filed by way of affidavit speaks out the following grounds as the defence of the accused, which are as follows;
i) The accused has contended that, he had paid a hand loan of Rs.3,90,000/- to the father of the complainant in the year 2018 and the same was deposited into the Savings Bank Accounts i.e., Axis Bank and SBI Bank and both have agreed before the committee that the said amount will be considered as maintenance to the complainant.
ii) The accused has contended that, when the complainant has left her house, she had stolen the disputed cheque from his house.
11 CC.No.21387/2019
iii) The accused has contended that, the complainant did not mention about the disputed cheque or about the full and final settlement amount in the Khulanama.
20. Having gone through the defence raised by the accused, he is not disputing with regard to the cheque belonging to him and signature thereon. His only contention with regard to the issuance of cheque in question is that the complainant had been stolen the cheque when she left the home of the accused. With regard to the said defence will be dealt in the later part of discussion, as of now, the accused has failed to substantiate that how the cheque in question went in possession of the complainant. In this context of matter, it is useful to refer the decision of the Hon'ble Apex Court in APS FOREX SERVICES PRIVATE LTD., V/S SHAKTHI INTERNATIONAL FASHION LINKERS AND OTHERS reported in AIR 2020 Supreme Court 945, wherein, it has been observed and held that once the issuance and the signatures of the cheque/s is admitted, there is always presumption in favour of complainant that there exists legally enforceable debt or liability.
12 CC.No.21387/2019
21. It is also profitable to refer another decision of the Hon'ble Apex Court in P.RASIYA V/S ABDUL NAZEER AND ANOTHER reported in 2022 SCC Online Supreme Court 1131, wherein, it has been observed and held that once the initial burden is discharge by the complainant, that the cheque was issued by the accused and signatures of the accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge or any debt or other liability.
22. Now let me consider the evidence on record as to whether the accused has successfully probablized in rebutting the presumptions, which are in favour of the complainant. The complainant has got examined herself as PW.1 by filing sworn statement by way of affidavit in lieu of oral evidence, wherein, she has reiterated the entire averments made in the complaint. In support of her oral evidence, PW.1 has produced cheque as per Ex.P.1, the signature on the said cheque was identified by PW.1 as that of accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of the Legal notice as per Ex.P.3, postal Receipt as per Ex.P.4, Postal 13 CC.No.21387/2019 acknowledgment card as per Ex.P.5, Wedding Card as per Ex.P.6, Marriage Photo as per Ex.P.7, Khulanama as per Ex.P.8, translated copy of Khulanama as per Ex.P.9. On perusal of the Ex.P.1 to Ex.P.3, it appears that the complainant had complied with the mandatory requirements of section 138 of Negotiable Instruments Act. Therefore, a presumption can be drawn in her favour as contemplated U/s 118 and 139 of N.I.Act. During the course of cross examination of DW.1, the counsel for complainant confronted and got marked Acknowledgment issued by the police authority as per Ex.P.10.
23. On perusal of Ex.P.5, which is the Postal Acknowledgment Card makes it clear that the notice has been received by the accused, I have carefully gone through the examination of the accused U/s 313 of Cr.P.C., wherein, he has admitted that he has received the notice. The statutory notice U/s 138 of N.I.Act leads to an inference that there was merit in the complainants version, apart from raising a probable defence by the accused issuing the reply to the complainant was the first opportunity to the accused to set up his defence. Not replying to the notice, which is duly served is fatal to the defence of the accused. 14 CC.No.21387/2019 Any version taken during the course of the trial amounts to an after thought and the same requires to be consider with a pinch of salt. It is also found from the records that the accused had no impediment to give reply to the notice sent under the provisions of N.I.Act. A ordinary prudent man would immediately issue a reply to the notice alleging his grievances, if the demand notice contains false statement. The said position is settled and fortified in a decision of the Hon'ble Apex Court and the Hon'ble High Court of Karnataka in cases of Rangappa V/s Mohan reported in AIR 2010 Supreme Court 1898, Muralidhar Rao V/s P.Nagesh reported in 2021(2) KLJ 647 and in case of Jayalakshmma V/s Shashikala reported in 2021(2) KCCR 1511.
24. It is not in dispute that the complainant and accused were the husband and wife. On perusal of Ex.P.9, which is the translated copy of Khulanama, wherein, the complainant has sought for divorce from the accused before the committee, wherein, the accused has consented for the same and as per Ex.P.8, there was divorce in between the complainant and the accused. Ex.P.6 and Ex.P.7 are the Invitation Card and Marriage Photo further fortifies that, on 15 CC.No.21387/2019 27.07.2018, the complainant got married with the accused as per the customs prevailing in her community.
25. Para No.1 of the complaint fortifies that, the marriage of the complainant with the accused was dissolved by Khulanama on 16.04.2019. Thereafter, the accused has issued the cheque in question towards full and final settlement for Rs.2,00,000/-. I have carefully analyzed the entire portion of the cross examination of PW.1, she has admitted that, there is no mention with regard to full and final settlement for Rs.2,00,000/- in Ex.P.8 or in Ex.P.9. PW.1 has deposed that the said averments will not be written in Khulanama.
26. Para No.2 of the complaint further fortifies that, the complainant has averred that the cheque has been issued towards the full and final settlement of the Talaq and to discharge the same, the cheque in question is issued for the admitted debt and liability towards the complainant. Comparing it with the averments made in the para No.1 of the complaint, complainant has contended that, the accused has issued the cheque towards full and final settlement of the amount. With regard to the said contentions, the accused has cross 16 CC.No.21387/2019 examined PW.1, wherein, she has deposed that, the accused has not issued the cheque with regard to the admitted debt. On comparing the averments made in the para No.1 and 2 of the complaint in conjoint reading along with the cross examination of the PW.1 and DW.1, it could be gathered that, due to typographical error, the said admitted debt might have been typed. Moreover, para No.2 of the complaint further fortifies that, the complainant has averred that the cheque was issued for the liability towards the complainant. I do not think that much difference will make in the contradictory averments made in the complaint as compared in para No.1 and 2 of the complaint. However, it is the accused, who has to establish how the cheque in question went in possession of the complainant. In that regard, I would like to take note of the defence raised by the accused and proof thereof in that regard.
27. Para No.3 and 5 of the examination-in-chief of the accused filed by way of affidavit speaks about the defence of the accused, wherein, he has contended that, an amount of Rs.3,90,000/- towards maintenance has been deposited into the SB Account of the 17 CC.No.21387/2019 complainant i.e., Axis Bank and SBI Bank. On perusal of the materials on record, no documents have been produced in order to show that, the said amount of Rs.3,90,000/- has been deposited in the SB Account. However, on perusal of the cross examination of DW.1, he himself as admitted that, the said amount of Rs.3,80,000/- has been paid before marrying the complainant. The accused has not produced any Bank Statement in order to show that Rs.3,90,000/- has been deposited in the Bank Account of the complainant and his father. Therefore, the said line of defence raised at para No.3 of the examination-in-chief holds no water.
28. During the course of cross examination of DW.1, Ex.D.10 was confronted and marked through the said witness. On referring Ex.P.10, which is the acknowledgment issued by PSI of Mico Layout Police Station, Bengaluru, wherein, the complainant was got married with the accused and on 05.04.2019, when the matter was before the committee at Masjid, the accused assaulted the complainant by hands and the police authorities have called upon the accused and warned regarding the acts done by the accused. On perusal of Ex.P.10, it 18 CC.No.21387/2019 makes clear that there was meeting at Masjid and the accused has assaulted the complainant.
29. Para No.5 of the examination-in-chief of the accused fortifies that, he has raised defence that normally he kept the signed cheque in his house and the complainant left the house of the accused by making theft of the disputed cheque from his house. On perusal of the materials on record, the accused has failed to substantiate that, the accused was diligent in taking legal action against the complainant for making theft of the cheque in question. No stop payment instructions have been issued to the banker of the accused to stop the payment, in case the cheque is being presented for encashment. Therefore, the accused has failed to prove the said defence by producing sufficient evidence. The accused in the same paragraph of examination-in-chief has contended that, the complainant took Khulanama on 16.04.2019 and the cheque date is on 16.06.2019, the complainant has not mentioned about the cheque in the Khulanama. As discussed in my earlier paragraph of discussion, PW.1 during her cross examination has deposed that, the said fact will not be mentioned in Khulanama.
19 CC.No.21387/2019
30. On perusal of the entire materials available on record, the accused has failed to substantiate his defence. He has failed to explain as to how the cheque in question went in possession of the complainant. Under such circumstances, it would be suffice to hold that the cheque in question has been issued towards liability of the complainant and it is to be accepted that the cheque in question has been issued towards full and final settlement amount.
31. On perusal of the entire cross examination of PW.1, nothing has been elicited from the mouth of PW.1 so as to prove the defence of the accused and also to rebut the presumptions as available U/s 118 and 139 of N.I.Act, which are in favour of the complainant. Therefore, the accused has failed to prove his defence by producing sufficient cogent materials.
32. It is well settled that once the cheque is signed and given to the complainant, it shall be presumed that it has been issued towards the legally enforceable debt. As discussed above, the accused has failed to rebut the presumptions, which are in favour of the 20 CC.No.21387/2019 complainant as contemplated U/s 139 and 118 of Negotiable Instrument Act.
33. On over all perusal of the materials on record, in the absence of cogent, reliable oral and documentary evidence by the accused, he has failed to prove his defence as stated above. Therefore, this court has no hesitation to hold that the complainant is entitled to the benefit of the presumptions available U/s 118 and 139 of the Negotiable Instruments Act. In view of the discussions made above, I answer point No.1 in the "Affirmative".
34. Point NO.2:- In the light of discussions made at point No.1, I proceed to pass the following;
ORDER
By invoking the power conferred under
section 278(2) of B.N.S.S -2023 (Old
Corresponding Section - 255(2) of Criminal Procedure Code), the accused is hereby convicted of the offence punishable U/S.138 of N.I. Act.
21 CC.No.21387/2019
The accused is liable to pay a fine of Rs.2,10,000/- (Two Lakhs Ten Thousand Rupees Only).
If the fine amount is so realized, Rs.2,00,000/- ( Two Lakhs Rupees Only) shall be paid to the complainant as compensation and balance of Rs.10,000/- is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation amount, the accused shall under go simple imprisonment for 01 (One) year.
Bail bond of the accused shall stands canceled.
Supply a free copy of this judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 04 th day of November, 2024.) (GIRISH CHATNI) XXI ACJM, BENGALURU ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : Haleema Sadiya 22 CC.No.21387/2019
2. List of witnesses examined on behalf of the accused:
DW-1 : Fairoz Khan
3. List of documents marked on behalf the
complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Return Memo
Ex.P.3 : Legal Notice
Ex.P.4 : Postal Receipt
Ex.P.5 : Postal Acknowledgment Card
Ex.P.6 : Wedding Card
Ex.P.7 : Marriage Photo
Ex.P.8 : Khulanama
Ex.P.9 : Translation copy of Khulanama
Ex.P.10 : Acknowledgment issued by the
police authority.
4. List of documents marked on behalf of the
accused:
- NIL -
(GIRISH CHATNI)
XXI ACJM, BENGALURU