Bangalore District Court
Mr. Ansar Ali Khan vs S/O Khader Khan on 10 January, 2022
KABC010276162019
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 10th DAY OF JANUARY, 2022
PRESENT
SRI. R. ONKARAPPA, B.Sc,L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU (CCH-63)
Crl. Appeal No. 1896/2018
APPELLANT:/ Mr. Ansar Ali Khan,
ACCUSED S/o Khader Khan,
Aged about 57 years,
R/at No. 367, Mini Ibrahim road,
Robertsonpet, KGF
(By Fiyaz Ahmed, Advocate)
-Vs-
RESPONDENT:/ K.F.S.N. Traders,
COMPLAINANT No. 71/1, 2nd Main road,
New Tharagupet,
Bengaluru-560 002
By its Proprietor
Hasrath Haji Ilyas Jalyawala
(By G.S., Advocate)
JUDGMENT
The present criminal appeal has preferred by the appellant /accused under Section 374(3) of Cr.P.C against 2 Crl.A. 1896/2018 the Judgment dated 10.08.2018, passed by the learned XII Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No. 24749/2016, wherein the said trial Court convicted the appellant for an offence punishable U/s.138 of Negotiable Instrument Act and sentenced him to pay a fine of Rs. 86,000/-. In default to pay fine amount shall undergo simple imprisonment for one month. Out of fine amount of Rs. 84,000/- shall be paid to the complainant by way of compensation, as provided U/s 357 of Cr.P.C. and remaining an amount of Rs. 2,000/- shall be remitted to the State as fine.
2 Along with appeal memo the appellant have filed I.A. No. 1 filed under section 5 of Limitation Act sought for condone the delay of 10 days in file of this appeal.
3 The factual matrix of this appeal are that, the complainant is wholesale dealers in rice, sugar and other food grains at New Tharagupet, Bengaluru and the accused retailers used to placed orders for supply of certain food grains from the complainant and accordingly, the complainant supplied the food grains as per the order placed by the accused and raised bill for a sum of Rs.
3 Crl.A. 1896/2018 84,000/- and the accused had issued a cheque bearing No. 0284 dated 30.05.2016 for a sum of Rs. 84,000/- drawn on Karur Vysya Bank, KGF towards the price of the items supplied to the accused and assured that, said cheque would be honoured on its presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., the Shamaroa Vithal Co-operative Bank Limited, Chamarajpet Branch, Bengaluru, but the said cheque was dishonored with an endorsement as "Funds Insufficient" on 26.08.2016. Thereafter, the complainant has informed the said fact to the accused, but the accused has not responded the same, then the complainant has issued the legal notice through his counsel on 21.09.2016 by way of RPAD to him by calling upon him to repay the cheque in question within 15 days from the date of receipt of the said legal notice and it was duly served upon the accused on 23.09.2016. Despite of service of the legal notice, the accused neither paid the due amount nor replied the legal notice issued by the complainant. Hence, the complainant had constrained to file 4 Crl.A. 1896/2018 a complaint against the accused for the offence punishable under section 138 of N.I. Act.
4 The accused appeared before the trial court and contested the case. To prove the guilt of the accused, the complainant examined himself as P.W.1 and got marked the documents at Ex.P.1 to Ex.P5. The accused denied the incriminating evidence on examined him under Section 313 of Cr.P.C. To substantiate his defence, the accused examined himself as DW1 and got marked Ex.D1 to Ex.D4. The trial court after heard both the parties and considered the material on record the trial court has held that the accused has committed the offence under Section 138 of N.I. Act and sentenced the accused as aforesaid.
5 Against this judgment the accused has preferred the present appeal on various grounds. The same are all herein, judgment of the Trial Court illegal, unlawful and arbitrary. No corroborative evidence to show that the appellant is either proprietor or authorized signatory of Mohammad Ali and company. Mohammad Anwar Khan is the authorized signatory, the same can be found on VAT registered certificate. The appellant have not issued the 5 Crl.A. 1896/2018 cheque in question in the name of Mohammad Ali and company. It is a different entity, since the appellant was doing transaction with the complainant separately in the name of Madani Traders. Cheque in question issued for the security purpose. Ex.P6 document is one of the manipulated document created for the purpose of the case. Failed to consider the facts which are elicited through the PW1. No material evidence on record to prove the case of the complainant. Grave error in convict the accused. Therefore based on the above all grounds the appellant prays for allowing the appeal. Office made a note that appeal is well in time.
6 After service of the notice, the respondent appeared through his counsel. The Trial Court Records have been secured.
7 Heard arguments on both sides. Perused the record.
8 The points that arise for my determination are: 1. Is there an prima facie on I.A. No. 1
to condone the delay as sought for?
2. Whether the complainant established that the disputed 6 Crl.A. 1896/2018 cheque has been issued by the accused for repayment of amount?
3. Whether the trial court has committed any error in law or in fact in convicting the accused?
9 My findings to the above points are as under:-
POINT No.1 :- In the Negative
POINT No. 2 :- In the Affirmative
POINT No. 3 :- In the Negative for
the following:-
REASONS
10 POINT No. 1:- As per the averments available
on the affidavit annexed to the I.A. No. 1 that, due to ill health he could not able to contact his advocate and to give instructions to file the present appeal since he was suffering from viral fever because of the bad weather. The doctor who treated him advised him to take one week bed rest for some more time. After recovering from his ill health, the appellant contacted his advocate. On that day his advocate informed him that to file necessary application for condonation of delay for filing above criminal appeal. To support the same that the accused have not produced any piece of document. Delay is one with 10 days delay. Reason assigned in the affidavit not looked in a natural. If the accused suffered with 7 Crl.A. 1896/2018 any ill health and he need of bed rest as per the advice of the doctor, certainly he could have more document to show that he took a treatment and he was under bed rest as per advice of the doctor. Failure to brought on the same on record by the accused itself not established the prima facie case on his application. Accordingly, the accused failed to explain the delay to preferred an appeal. Hence I answer the point No. 1 in the Negative.
11 POINT Nos.2 and 3:- In order to ascertain the legality on the complaint, I perused the records. That the complainant presented the cheque bearing No. 000284 dated 30.05.2016 as per Ex.P1. He got memo of endorsement stating "Funds Insufficient" on 26.08.2016 as per Ex.P2. Legal notice also issued by the complainant against to the accused dated 21.09.2016 as per Ex.P3. Postal receipt dated 21.09.2016 as per Ex.P4. Postal acknowledgment dated 23.09.2016 as per Ex.P5. Perused the records, the complaint came to be lodged by the complainant before the trial court on 22.10.2016, this much of the case of the complainant have also even not much disputed by the accused.
8 Crl.A. 1896/2018 12 After careful perusal of the records, it obvious that the complainant maintained the complaint at before the trial court well in time and instrument i.e., cheque present by the complainant through his banker for encashment as per Ex.P1 also well in time and thereby documents relied by the complainant valid in nature in accordance with law. As the trial court keenly appreciated all these facts in accordance with Section 138 and 142 of N.I. Act, I am of the opinion that the learned trial Judge adopted a rightful procedure in taking the cognizance against to the accused and disposal of the case on merits, as such there is no infirmity on record to interfere in these aspect. 13 Core substance of the complaint is that, the complainant is wholesale dealers in rice, sugar and other food grains at New Tharagupet, Bengaluru and the accused retailers used to placed orders for supply of certain food grains from the complainant and accordingly, the complainant supplied the food grains as per the order placed by the accused and raised bill for a sum of Rs. 84,000/- and the accused had issued a cheque bearing No. 0284 dated 30.05.2016 for a sum of Rs. 84,000/- drawn on 9 Crl.A. 1896/2018 Karur Vysya Bank, KGF towards the price of the items supplied to the accused and assured that, said cheque would be honoured on its presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., the Shamaroa Vithal Co-operative Bank Limited, Chamarajpet Branch, Bengaluru, but the said cheque was dishonored with an endorsement as "Funds Insufficient" on 26.08.2016. Thereafter, the complainant has informed the said fact to the accused, but the accused has not responded the same, then the complainant has issued the legal notice through his counsel on 21.09.2016 by way of RPAD to him by calling upon him to repay the cheque in question within 15 days from the date of receipt of the said legal notice and it was duly served upon the accused on 23.09.2016. Despite of service of the legal notice, the accused neither paid the due amount nor replied the legal notice issued by the complainant. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under section 138 of N.I. Act. The same contents averred in the complaint have been reiterated by the complainant at 10 Crl.A. 1896/2018 before the Trial Court, when he has examined as PW1. To support his case, PW1 got marked as many as 10 documents as per Ex.P1 to Ex.P5.
14 Even hold the lengthy cross examination by the accused to the PW1 nothing a material elicited that the complainant is not a proprietor of KFSN, he is not doing the grocery business and the complainant not allocated the grocery to the accused as per the oral invoice made by the accused. PW1 voluntarily answered to the question that the accused placed the purchase order through phone earlier to two days transaction in which grocery was allotted by the complainant. No invoice issued except an bill after deliver the grocery to the accused. Denied the suggestion in compliance to section 138(b) of N. I. Act no notice have been issued to the accused. Ex.P1 cheque not issued by the accused at any point of time. Voluntarily answered by the PW1 that the Ex.P1 cheque issued after it was fully filled up. PW1 answered amount paid to the complainant on 06.08.2016 through NEFT not related to the business transaction of Ex.P1.
11 Crl.A. 1896/2018 15 Further the accused in order to rebut the case of the complainant, the accused also examined himself at before the Trial Court as DW1 and got marked Ex.D1 to Ex.D4. In his examination in chief he deposed that Mohammad Ali and company, M.G. Market, Robert Son KGF registered in his brother name as per Ex.D3. Address mentioned in the Ex.P3 legal notice not correct. Sign and address on Ex.P5 not belonged to the accused. From 2014 to 2016 the accused have business transaction with the complainant. In the year of 2014 cheque Ex.P1 issued by the accused in towards to security purpose in relating to business transaction with the complainant. In the year of 2016, the accused have paid Rs. 25,000/- in two times to the complainant through NEFT. To establish the payment of the accused to the complainant, the accused have got marked Ex.D1 and Ex.D2 bank account extract in his favour. Rs. 84,000/- worth of grocery have not purchased by the accused at any point of time. Ex.P1 cheque is the product of mis use.
16 In an cross examination DW1 unequivocally admitted the suggestion, Ex.P1 cheque and Ex.P1(a) 12 Crl.A. 1896/2018 signature belonged to him only. Mohammad Ali and company is the company belonged to the accused DW1 further unequivocally admitted the suggestion, the accused is the authorized signatory to the company of the accused. It elicited through the mouth of DW1 that the DW1 put his signature upon Ex.P1 cheque as per Ex.P1(a). It elicited the accused have the business transaction with KFSN traders from last two years. DW1 answered to the question that he do not know either he himself put a signature upon Ex.P5 postal acknowledgment or his brother put his signature. That the DW1 have the Dal and grains transaction with the KFSN Traders. That the DW1 have purchased the groceries at before the KFSN Traders for 8-10 times, to that respect that the DW1 have the bills. No legal action that the DW1 have taken against to the complainant for demand and for returning of Ex.P1 cheque. Unequivocally admitted the suggestion KGF police have served the summons to his son to the address mentioned in the complaint. Ex.P6 cash bill confronted to the DW1.
17 Over all examined the contention, grounds, cross examination potion of PW1, it is necessary me to record the 13 Crl.A. 1896/2018 facts which are admitted by the accused. As per the accused, the accused have grocery business at before the complainant. The accused have not denied the signature available on Ex.P1 cheque as per Ex.P1(a). Ex.P1 cheque is also belonged to the account of the accused. Further the accused have also not denied the documents which are got confronted to DW1 as per Ex.P6. But case of the accused that, he is not an authorized signatory to put an signature upon Ex.P1 cheque. Except to that an fact even the accused have also not specifically denied, signature available on Ex.P1 cheque not belonging to the accused. But the accused to show the fact that he has not an authorized signatory to Ex.P1, he got marked Ex.D3 VAT certificate, Ex.D4 Delivery note. When meticulous examine the Ex.D3 VAT certificate it can finds Sri. M. Anwar Khan is the proprietor of M/s Mohammad Ali and company. In view of the accused not specifically denied the signature available on Ex.P1 cheque as per Ex.P1(a) and as per the admission made by the DW1 in his cross examination, document got marked as per Ex.D3 will not come to the aid of the accused case.
14 Crl.A. 1896/2018 18 Case on record the accused no where denied any business transaction with the complainant. As the accused used to purchase grocery at before the complainant since from 2014 to 2016, the accused have issued the Ex.P1 cheque as a security purpose and as per the case of the accused, the accused have already paid entire amount which might have accrued upon alleged purchase of groceries. To substantiate the same, the accused have also got marked two bank statements as per Ex.D1 and Ex.D2. When meticulous examined Ex.D1 and Ex.D2 documents, on 06.08.2016, the accused have credited the amount of Rs. 25,000/- and subsequently on 11.07.2016, the accused have credited amount of Rs. 25,000/- to the account of the complainant. As such according to the accused no legally recoverable debt covered upon Ex.P1 cheque. To find out the truth on Ex.D1 and Ex.D2, I go through the complaint lodged by the complainant. According to the complaint the accused have placed order for supply of certain food grains from the complainant and the complainant supplied the food grains as per the order of the accused and raised a bill of Rs. 84,000/-. To that effect the accused have issued a 15 Crl.A. 1896/2018 cheque dated 30.05.2016. No doubt as per Ex.D1 and Ex.D2 documents, the accused have credited the total amount of Rs. 50,000/- to the account of the complainant through NEFT. To show that such amount pertains to this transaction only, the accused have not brought any material evidence on record. Further the accused failed to probabalize the fact that such EX.P1 cheque issued in towards to in connection of purchase of the groceries dated 30.05.2016. on the contrary the complainant in his cross examination voluntarily stated that such amount credit from the account of the accused pertains to other transaction and not for the instant transaction. purchase of the groceries and order placed by the accused in relating to the EX.P1 cheque is entirely different transaction than to the transaction claimed by the accused. The accused in his examination chief itself stated that he used to purchase groceries from the complainant from 2014 to 2016. when the accused have not certain in so far how many times that, the accused purchase the groceries in during the time of 2014 to 2016, the defence set out by the accused would not holds any water and the document as per EX.D1 and EX.D2 would also not 16 Crl.A. 1896/2018 holds any water and not to come to the aid of the accused case. If once the accused realized his entire liability, the accused certainly could have more option to demand and to return back the Ex.P1 cheque from the complainant. To ascertain such an fact, DW1 answered to the question, no legal action that he has taken against to the complainant for demanding to return the Ex.P1 cheque after realize the entire his liability.
19 The evidence of the complainant/ respondent along with documentary evidence clearly and categorically establish all the ingredients of Section 138 of N.I. Act. Moreover, the accused though denied the issuance of cheque in question in favour of the complainant. The statutory presumption under section 139 N.I. Act remained as un-rebutted. Under this circumstance, the learned trial court drawn the presumption in favour of the complainant u/s 139 of N.I. Act that the accused had issued the cheque in question to the complainant towards discharge of legally enforceable debt or liability.
20 In view of the evidence referred above, the legal presumption under Section 139 of N.I. Act has to be raised.
17 Crl.A. 1896/2018 Raising of presumption under Section 139 of N.I. Act is permissible even as per the law laid down by the Hon'ble Supreme Court in the case of Rangappa V/s. Mohan in the decision reported in (2010) 11 SCC 441. Such presumption includes the existence of legally enforceable debt or liability. Therefore, presumption raised to the cheque by the trial court cannot be interfered with.
21 On appreciation of entire evidence, this Court is of the opinion that the accused has failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued cheque/Ex.P1 for a sum of Rs. 84,000/- towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons "Funds Insufficient". Even after service of legal notice, the accused has not paid the cheques amount. Hence, in the considered view of this Court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Such evidence is sufficient to punish the accused for the offence under Section 138 of N.I. Act.
18 Crl.A. 1896/2018 22 Even inspite of go through the records, there is no materials available on records to substantiate neither of the ground which are urged by the appellant in his appeal memo and the trial court rightly appreciated the facts and law upon the case on hand, as the trial court appreciated the facts and law upon the case, I have no hesitation to agree with the observation made by the learned trial judge. In view of such evidence on record, it is of my opinion that appellant failed to establish any illegality or error or infirmity in the judgment and sentence passed by the Learned Trial Court as such, I hold that the trial court has not committed any error, illegality or infirmity in convicting the accused. Accordingly, the Appeal has to be rejected. Thus, I answer point No.2 in the Affirmative and point No.3 in the Negative and proceed to pass the following:
ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
I.A. No. 1 filed under Section 5 of Limitation Act is hereby rejected.
19 Crl.A. 1896/2018 Judgment and sentence dated 10.08.2018 passed by the learned XII ACMM, Bengaluru in CC No. 24749/2016 is hereby confirmed.
Send the copy of the
Judgment along with the records
to the Trial court.
(Dictated to the Stenographer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 10th day of January, 2022).
(R. ONKARAPPA) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.