Bangalore District Court
Mr. Mohammed Syed Enayathullah vs A-1) Malja Tours International on 14 September, 2015
IN THE COURT OF THE XVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED : THIS THE 14TH DAY OF SEPTEMBER 2015
PRESENT: LAKSHMINARAYANA BHAT.K., B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
C.C.NO: 19285/2013
Complainant: Mr. Mohammed Syed Enayathullah.,
Represented by his SPA holder
Mr. Mohammed Sadiq Khader Pasha.,
Aged about 40 years,
Residing at No: 12,
Anjaneyappa Layout,
1st Main, Maruthi Nagar,
Yelahanka
Bangalore-560 064.
(Represented by Mr. Baba Jan.,
Advocate)
V/s.
Accused : A-1) Malja Tours International,
No.23, 1st Floor,
More Road,
Frazer Town,
Bangalore-560 006.
A-2) Mr. Safdar Pasha,
Managing Director,
Marhabaa Harman Tours
International,
No.23, 1st Floor, More Road,
Frazer Town,
Bangalore-560 006.
(Represented by Mr. Mohammed
Thoufeed., Advocate)
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
2 C.C.NO:19285/2013
Final order Accused is found guilty
Date of order: 14/09/2015
JUDGMENT
The complaint was filed against the accused for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter in short referred as N.I. Act.).
2. After filing of the complaint, cognizance of the offence was taken. After recording sworn statement in pursuance of summons, presence of the accused was secured and he was enlarged on bail. The substance of accusation was recorded and the accused pleaded not guilty.
3. To prove the complaint averments, the SPA holder of the complainant was examined as P.W.1 and has produced documents marked as per Ex.P.1 to Ex.P.12. The statement of the accused under Section 313 of Cr.P.C was recorded. The accused has not led any evidence in defence.
4. Heard the arguments. The accused and his counsel remained absent and therefore defence side argument was taken as nil.
5. After analyzing the averments made in the complaint, oral and documentary evidence placed on record and after hearing the arguments, 3 C.C.NO:19285/2013 at this stage the points that arise for my determination are:-
1) Whether the complainant has proved Ex.P.2 cheque issued by the accused in discharge of his liability came to be dishonoured and even after service of notice, the accused had failed to pay the amount and thereby he is guilty of the offence punishable under Section 138 of N.I.Act?
2) What order?
6. My findings on the aforesaid points are as under:-
POINT NO.1 : In the Affirmative, POINT NO.2 : As per final order, for the following:-
REASONS
7. POINT NO.1:- As per the complaint averments, the accused and his family members are poise Muslims and were intending to undertake Haj pilgrimage. During October 2011 the accused approached the complainant and claimed he is the Managing Director of Marhabaa Harman Tours International. The accused has induced the complainant to enter into a package deal with them for pilgrimage to Mecca and Medina at the cost of Rs.2,40,000/- for two persons. The accused had explained to the complainant that they are going to invest Rs.2,40,000/- amount paid by the complainant in gold business. Therefore, if they fail to arrange pilgrimage, they would return the amount with compensation. Accordingly, the complainant had booked package tour with the accused 4 C.C.NO:19285/2013 at the cost of Rs.2,40,000/- for two persons. The complainant submits in accordance with the aforesaid agreement he claimed to have paid a sum of Rs.2,20,000/- through cheque and Rs.20,000/- way of cash, in all Rs.2,40,000/- to the accused. It is also alleged the accused had issued a valid receipt for these payments. The complainant and his wife started to make arrangements for their proposed Haj pilgrimage. The complainant has stated in the month of October 2012 the accused announced that he could not arrange the Haj pilgrimage and in discharge of his liability offered to refund the money paid by the complainant along with compensation of Rs.50,000/-. The accused alleged to have issued cheque bearing No: 883118 dated 23/11/2012 in favour of the complainant drawn on ICICI Bank, R.T.Nagar Branch, Bangalore. The complainant has presented the said cheque, but as per memo dated 2/2/2013 it was returned unpaid with an endorsement "Funds Insufficient". The complainant got issued legal notice dated 16/2/2013 calling upon the accused to make payment of the dishonoured cheque amount. The said notice was duly served on the accused on 19/12/2013. After service of notice, the accused has neither made payment nor sent any reply. The complainant in his affidavit filed in lieu of examination-in-chief deposed as per the averments made in the complaint.
8. In defence, the accused has specifically denied the complainant has paid Rs.20,000/- by cash. It is further submitted the accused 5 C.C.NO:19285/2013 claimed to have repaid Rs.2,20,000/- amount to the complainant. The accused has disputed service of demand notice sent on behalf of the complainant. For the aforesaid reasons he has disputed his liability to make payment of Ex.P.2 dishonoured cheque amount.
9. Amongst the documentary evidence placed on record, Ex.P.2 is the cheque issued by the accused dated 23/11/2012 for Rs.2,90,000/- in favour of the complainant drawn on ICICI Bank, R.T.Nagar Branch, Bangalore. The accused during cross-examination of the complainant has admitted the said cheque pertains to his Bank account. He has not disputed his signature appearing in the said cheque. As per Ex.P.3 and Ex.P.4 memo dated 2/2/2013 the said cheque returned unpaid with an endorsement "Funds Insufficient". Ex.P.6 is the statutory demand notice sent on behalf of the complainant intimating dishonour of the cheque and calling upon the accused to make payment of the cheque amount. The said notice was duly served on the accused as per Ex.P.8 to Ex.P.11 postal acknowledgements. Ex.P.12 is the copy of Bank passbook appearing in the name of the complainant issued by State Bank of India, Yelahanka Branch, Bangalore. As per this document, as per entry dated 5/5/2012 a sum of Rs.2,20,000/- has been encashed by the accused Marhabaa Harman Tours International. The contents of Ex.P.12 Bank passbook entry is in consonance with Para No:2 of Ex.P.6 demand notice, Para No:4 of the complaint and Para No:2 of the affidavit filed by 6 C.C.NO:19285/2013 the complainant in lieu of his examination-in-chief regarding Rs.2,20,000/- given to the accused through above referred cheque. Ex.P.5 is the receipt dated 4/5/2012 issued by the accused at the time the complainant had made payment of Rs.2,20,000/- through cheque. In this receipt, there is specific reference regarding the payment was made through cheque as referred in the complaint and Ex.P.12 copy of Bank passbook.
10. The accused has not disputed issuance of Ex.P.5 receipt in favour of the complainant. The complainant has alleged the accused had assured they are investing the amount paid by the complainant in gold business and taking hotels on lease in Mecca and Medina and if they get more benefit in the above business, they have assured to arrange to give more than Rs.50,000/- to each person as compensation. In the event the accused had made repayment of Rs.2,20,000/- to the complainant, there was no necessity or occasion for him to issue Ex.P.2 cheque in favour of the complainant for Rs.2,90,000/-. Therefore, the evidence on record and other attending circumstances shows the accused has agreed to make payment of additional amount of Rs.50,000/- towards compensation since has failed to arrange Haj tour and in terms of the agreement issued Ex.P.2 cheque for Rs.2,90,000/-.
11. In the entire cross-examination of the complainant, the accused did not dispute his liability to make payment of Rs.2,40,000/- 7 C.C.NO:19285/2013 to the complainant. He has failed to prove the repayment of Rs.2,20,000/- to the complainant as suggested during cross-examination of the complainant. As per Section 139 of N.I. Act, there is a legal presumption in favour of the complainant that unless the contrary is proved Court shall presume that the cheque had been issued in discharge of any debt or liability. In the case on hand, by producing Ex.P.12 copy of the Bank passbook, the complainant has proved he has made payment of Rs.2,20,000/- to the accused through cheque. The evidence on record shows the accused in discharge of his liability to make repayment of Rs.2,40,000/- had issued Ex.P.2 cheque for Rs.2,90,000/- dated 23/11/2012 drawn on ICICI Bank, R.T.Nagar Branch, Bangalore. As per Ex.P.3 and Ex.P.4 memo issued by the Bank, the said cheque came to be dishonoured and even after service of notice he has not even chosen to send any reply disputing his liability. Even during the course of trial, the accused has not led any positive evidence to substantiate his defence. Mere tendering suggestion during cross- examination of the complainant regarding discharge of debt or repayment of amount is not sufficient. The burden to prove discharge of the liability is upon the accused. The accused has failed to elicit any damaging admission from the mouth of the complainant regarding repayment of Rs.2,20,000/- to the complainant. In this regard, I have referred Judgment reported in AIR 2010 Supreme Court 1898 in Rangappa V/s. Mohan case. In Para No.14 of the Judgment Hon'ble 8 C.C.NO:19285/2013 Apex Court held, it is a settled proposition that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubt about existence of legally enforceable debt or liability, the prosecution can fail. That on applying the aforesaid proposition of law, the accused during cross- examination of the complainant has miserably failed to put forward a probable defence and to prove his defence by placing prima facie evidence. The complainant has fulfilled all the ingredients of an offence punishable under Section 138 of N.I. Act. The accused has failed to rebut the presumption appearing in favour of the complainant under Section 139 of the Act. Therefore, the case of the complainant has to be accepted. Hence, for the aforesaid reasons my findings on Point No.1 is in the affirmative.
12. POINT NO.2:- In view of my findings on Point No.1., the accused is liable to be convicted for the offence punishable under Section 138 of N.I. Act. Hence, I proceed to pass the following:-
ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is sentenced to pay fine of Rs.3,10,000/- (Rupees Three Lakhs 9 C.C.NO:19285/2013 Ten Thousand Only) and in default shall undergo simple imprisonment for 1 (One) year.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.2,90,000/- (Rupees Two Lakhs Ninety Thousand Only) cheque amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.20,000/- (Rupees Twenty Thousand Only) is defrayed to the State for the expenses incurred in the prosecution. (Dictated to the Stenographer directly on the computer and print out taken on this the 14th day of September 2015).
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.10 C.C.NO:19285/2013
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Mohammed Sadiq Khader Pasha.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Special Power of attorney.
Ex.P.2 : Cheque No: 883118 dated 23/11/2012 for
Rs.2,90,000/-.
Ex.P.2(a) : Signature of the accused.
Ex.P.3 and 4 : Bank endorsements.
Ex.P.5 : Payment receipt.
Ex.P.6 : Office copy of demand notice.
Ex.P.7 : Postal receipts.
Ex.P.8 to 11 : Four postal acknowledgements.
Ex.P.12 : Copy of passbook.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
- Nil -
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
- Nil -
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.11 C.C.NO:19285/2013
(Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is sentenced to pay fine of Rs.3,10,000/- (Rupees Three Lakhs Ten Thousand Only) and in default shall undergo simple imprisonment for 1 (One) year.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.2,90,000/- (Rupees Two Lakhs Ninety Thousand Only) cheque amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.20,000/- (Rupees Twenty Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XVIII A.C.M.M., BANGALORE.