Bangalore District Court
Approached The Hebbal Police Station ... vs The Accused Requested To Present The ... on 28 December, 2022
1 CC.30252/2019( J)
KABC030939482019
Presented on : 27-12-2019
Registered on : 27-12-2019
Decided on : 28-12-2022
Duration : 3 years, 0 months, 1 days
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 28 th Day of December-2022
Present: Lokesh Dhanapal Havale. B.A.L.L.B.,
XV Addl.C.M.M., Bengaluru.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.30252/2019
2.Name of the Complainant: Sri. Naveen. G,
S/o M. Ganesh
Aged about 30 years,
R/at No.100,
Sri. Shambulingeshwara Layout,
Cholanayakanahalli,
R. T Nagar Post,
Bangalore-560 032.
3.Name of the accused: Sri. Aslam Pasha
S/o Ghouse Mohiuddin,
Aged about 41 years,
R/at No.14/1, Ground Floor,
2nd cross, Near Pavithra Bar Road,
Kanakanagar, R.T Nagar,
Bangalore- 560 032.
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4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C., accused
is Convicted.
7.Date of final Order 27.12.2022.
* * *
This complaint is filed U/Sec.200 of Cr.P.C. against the
accused for the offence punishable U/Sec.138 of the Negotiable
Instruments Act, 1881.
2. The facts of the complaint in brief are as under:
The complainant and the accused knew each other. The
accused approached the complainant in the month of February
2018 in respect of the schedule property bearing New Municipal
No.51, (Formerly site No.14, Portion of old assessment No.32, new
assessment No.31, Katha No.86, Cholanayakanahalli village,
Bengaluru North Taluk, Banglaore) total measuring 840 sq feet
along with RCC roofed with two bedrooms house on the ground
floor A.C Sheet house on the first floor with all civic amenities.
He transferred Rs.1,00,000/- on 05.03.2018 and Rs.1,00,000/- on
06.03.2018 totally Rs.2,00,000/- to the accused. The sale
transaction failed and the accused executed MOU on 9.11.2018 in
respect of return of amount of Rs.2,00,000/-. The accused took
time on one or the other reason but failed to pay the amount. The
complainant approached the Hebbal Police station and lodged the
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complaint on 11.04.2019 against the accused and the accused
admitted the transaction on 17.06.2019. In order to discharge the
legal liability of Rs.2,00,000/-, the accused assured to repay
Rs.50,000/- by cash and issued three cheques bearing Nos.114826
dated 5.7.2019, No.114828 dated 5.8.2019 & No.114829 dated
10.9.2019 for a sum of Rs.50,000/- each drawn on ICICI Bank,
Malleshwaram branch, Bangalore for total amount of Rs.1,50,000/-.
On presentation of cheque bearing No.114826 dated 5.7.2019 for
encashment, it was returned dishonoured with endorsement
'Insufficient Funds" on 9.7.2019 and it was intimated to the
accused. The accused requested to present the said cheque on
23.7.2019 and as per the instruction of accused, cheque was
presented on 23.07.2019. It was returned dishonoured with shara
'Funds Insufficient' on 24.7.2019. The complainant informed the
accused about the dishonour of the said cheque. The accused
requested to present all the three cheques on 11.09.2019. The
complainant presented all the 3 cheques through his banker Dena
Bank, Cholanagar branch, Bangalore. They were returned
dishonoured with shara 'Funds Insufficient' on 12.09.2019. The
complainant issued legal notice on 24.09.2019. The legal notice
sent by RPAD was duly served on the accused on 30.09.2019. The
accused did not pay the amount even after the expiry of 15 days.
The accused thereby committed an offence punishable U/s.138 of
the N.I.Act.
3. After the institution of the complaint, the cognizance
was taken and it has been registered as PCR No.14340/2019. The
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sworn statement of the complainant has been recorded and on the
basis of sworn statement and other materials on hand, the criminal
case has been registered against the accused and summons was
issued to accused. In response to the service of summons, the
accused appeared through his learned counsel and got enlarged
on bail. The prosecution papers were supplied to the accused and
the substance of the accusation was read over and explained to
the accused in Kannada. He pleaded not guilty and claimed to be
tried.
4. During trial the complainant examined himself as PW-1
and got marked Ex.P1 to P17. The statement of the accused U/s.
313 of Cr.P.C. was recorded. The accused has not lead evidence
and no documents got marked on his behalf.
5. Heard the arguments. On perusal of the entire
materials on record, the points that arise for my consideration are
as under;
1. Whether the complainant proves that the
accused issued 3 cheques bearing Nos.114826
dated 05.07.2019, No.114828 dated
05.08.2018 and 114829 dated 10.09.2019
Rs.50,000 each drawn on ICICI Bank,
Malleswaram Branch, Bangalore towards the
discharge of legally enforceable debt/liability
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and on its presentation for encashment, it was
dishonored with an endorsement "Funds
Insufficient" and even after the service of
legal notice, the accused has not paid the
amount within 15 days and thereby accused
committed an offence punishable U/Sec.138 of
N.I. Act, 1881?
2. Whether the accused rebuts the
presumption U/s.139 of the N.I.Act?
3. What order?
6. My answers on the above points for consideration are
as under:
Point No.1 : Affirmative
Point No.2 : Negative
Point No.3 : As per final order for the following;
REASONS
7. Point No.1 and 2 :- The points are taken together for
the common discussion to avoid repetition of facts and evidence. It
is necessary to discus the provisions U/s. 118(a) and 139 of the
Act., 1881 at this stage.
"118. Presumptions as to negotiable
instruments. - Until the contrary is
proved, the following presumptions shall
be made:-
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(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;"
"139. Presumption in favour of
holder.- It shall be presumed, unless the
contrary is proved, that the holder of a
cheque received the cheque of the nature
referred to in section 138 for the
discharge, in whole or in part, of any
debt or other liability."
8. On plain perusal of the provision U/s. 118(a) and 139
of the N.I.Act., it can be seen that initially the presumptions
constituted under these two provisions are in favour of the
complainant. However the presumptions are rebuttable and it is
open to an accused to raise a defence to rebut the statutory
presumptions. An accused can raise a defence, wherein the
existence of legally enforceable debt or liability can be contested.
9. It is also well established that an accused need not
examine himself for discharging the burden of proof placed upon
him under a statute. He may discharge his burden on the basis of
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the materials already brought on record. An accused has
constitutional rights to remain silent. The standard of proof on
part of the accused and that of the prosecution in a Criminal Case
is different. The prosecution must prove the guilt of an accused
beyond all reasonable doubts, the standard of proof so as to prove
a defence on the part of an accused is preponderance of
probabilities.
10. Under the light of position of the law, I have perused
the complaint and the evidence placed on record. The complainant
in support of his claim made in the complaint has adduced
evidence by examining himself as PW-1 and he got marked Ex.P1
to 17. PW-1 filed his evidence affidavit on oath and reiterated the
complaint averments. Ex.P1 to Ex.P3 are the cheques bearing
Nos.114826 dated 05.07.2019, 114828 dated 05.08.2019 and
114829 dated 10.09.2019 each for Rs.50,000/- drawn on ICICI
Bank, Malleshwaram Branch, Bengaluru issued in favour of the
complainant. Ex.P1(a) to 3(a) are the signatures of the accused.
Ex.P4 to 6 are the pay in slips. Ex.P7 to 9 are the Bank Memos
with shara "Funds Insufficient" dated 12/09/2019. Ex.P10 is the
office copy of Legal Notice dated 24/09/2019 issued by the
complainant to the accused demanding repayment of the cheque
amount to the addresses of the accused. Ex.P11 is the postal
receipt for having sent the legal notice to the accused. Ex.P12 is
the postal acknowledgment for having served the notice on the
accused on 25.09.2019.
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11. Ex.P13 is the Bank statement of the complainant. On
perusal of Ex.P13, it is found that the complainant transferred
Rs.1,00,000/- to the account of the accused on 5.3.2018 and
Rs.l,00,000/- on 6.3.2018. Ex.P14 is the MOU dated 9.11.2018
executed by the accused in favour of the complainant. On perusal
of Ex.P14, it is found that there is mention of the property
transaction between the Nasreen Taj and Sadiqa Khanum, who is
the wife of the accused. There is reference of the registered sale
agreement dated 26.2.2018, which is at Ex.P15 and the registered
cancellation of agreement of sale dated 7.11.2018, which is at
Ex.P16. As per Ex.P14 the accused agreed to pay Rs.2,00,000/- to
the complainant and also agreed to issue security cheques for
Rs.2,00,000/- within 15 days from the date of agreement.
12. On perusal of the documents, it is clear that the
cheques at Ex.P1 to 3 bearing Nos.114826 dated 05.07.2019,
114828 dated 05.08.2019 and 114829 dated 10.09.2019 each for
Rs.50,000/- drawn on ICICI Bank, Malleshwaram Branch,
Bengaluru issued in favour of the complainant was presented
within its validity. Ex.P7 to 9 are the Bank Memos with shara
"Funds Insufficient" dated 12.09.2019. The office copy of Legal
Notice dated 24/09/2019 at Ex.P10 was issued by the complainant
to the accused demanding repayment of the cheque amount to the
addresses of the accused within time from the date of issuance of
memos. The accused disputed the service of notice in cross
examination of PW.1. The counsel for the accused cross examined
in respect of the signature in Ex.P12, which is postal
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acknowledgment. PW.1 clearly answered that the signature in
Ex.P12 belongs to the mother of accused. It is pertinent to note
that the accused did not dispute the address mentioned in the
notice at Ex.P10 and acknowledgment at Ex.P12. Further during
the cross examination, it was suggested to PW1 that the address in
the notice is not the correct address of accused. PW.1 voluntarily
stated that the address mentioned in the notice is the same
address as that of the address in the agreement at Ex.P15. On
perusal of the sale agreement at Ex.P15, cancellation of agreement
of sale at Ex.P16 and MOU at Ex.P14, it is clear that it is the
same address as that of the address in the notice at Ex.P10,
complaint and the postal acknowledgment at Ex.P12 and the
accused is signatory to those agreements. Therefore it is clear that
the address in the notice is the correct address of the accused. In
the case of C.C. Alavi Haji v. Palapetty Muhammed reported
in (2007) 6 SCC 555, the Hon'ble Supreme Court held that when
the notice is sent by registered post by correctly addressing the
drawer of the cheque, the mandatory requirement of issue of
notice in terms of clause (b) of proviso to Section 138 of the Act
stands complied with. It is needless to emphasise that the
complaint must contain basic facts regarding the mode and
manner of the issuance of notice to the drawer of the cheque. In
the case of N. Parameswaran Unni v. G. Kannan reported in
(2017) 5 SCC 737 the Hon'ble Supreme Court held that it is clear
from Section 27 of the General Clauses Act, 1897 and Section 114
of the Evidence Act, 1872 that once notice is sent by registered
post by correctly addressing to the drawer of the cheque, the
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service of notice is deemed to have been effected. However, the
drawer is at liberty to rebut this presumption The accused failed
to rebut the presumption. Therefore on the basis of evidence on
record, this Court is of the opinion that the notice issued by the
complainant was served on the accused on 25.09.2019 as per
Ex.P12. Even otherwise as per the Judgment of the Hon'ble
Supreme Court of India in the case of C.C.Alavi Haji Vs.
Palapetty Muhammed and Another reported in (2007) 6 SCC
555, wherein it has been held by the Hon'ble Supreme Court of
India para No.17 as under;
17. It is also to be borne in mind
that the requirement of giving of notice is a
clear departure from the rule of Criminal Law,
where there is no stipulation of giving of a
notice before filing a complaint. Any drawer who
claims that he did not receive the notice sent by
post, can, within 15 days of receipt of
summons from the court in respect of the
complaint U/s.138 of the Act, make payment of
the cheque amount and submit to the
Court that he had made payment within 15 days
of receipt of summons (by receiving a copy
of complaint with the summons) and, therefore,
the complaint is liable to be rejected. A person
who does not pay within 15 days of receipt of the
summons from the Court along with the
copy of the complaint u/s.138 of the Act,
cannot obviously contend that there was no proper
service of notice as required u/s.138, by ignoring
statutory presumption to the contrary u/s.27 of the
11 CC.30252/2019( J)
G.C. Act and Section 114 of the Evidence Act. In
our view, any other interpretation of the
proviso would defeat the very object of the
legislation. As observed in Bhaskaran's case
(supra), if the 'giving of notice' in the context of
Clause (b) of the proviso was the same as
the 'receipt of notice' a trickster cheque
drawer would get the premium to avoid receiving
the notice by adopting different strategies and
escape from legal consequences of Section 138 of
the Act.
In a nutshell it can be said that the statutory notice is an
opportunity given to the accused to make payment and avoid the
consequences of 138 of N.I.Act. In the case on hand, the summons
issued by the Court to the said address of the accused returned
with shara 'refused', which is deemed service of summons as per
the order sheet dated 17.2.2020. The complaint was filed on
05.11.2019. Therefore the complaint is within limitation. The
accused also did not dispute the cheque and signature in it.
Therefore, the documents on record clearly show that the
complainant has complied the ingredients of Section 138(a) to (c)
of the N.I.Act. Therefore the presumptions U/s.118 and 139 of the
N.I.Act arise in favour of the complainant. The presumptions are
rebuttable and the burden is on the accused to rebut the
presumptions. The presumption is that the cheque was issued for
legally enforceable debt/ liability. However actual existence debt or
liability can be contested.
12 CC.30252/2019( J)
13. The counsel for the accused relied on the following
citations.
a) The Hon'ble Supreme Court in Krishna Janardhan Bhat
v/s Dattatraya Hegde reported in (2008) 4 SCC 54 held
that Sec.139 of N.I Act merely raises presumption in favour
of the holder of the cheque that the said cheque has been
issued for discharge of any debt or other liability and the
existence of legally recoverable debt is not a matter of
presumption u/sec.139 of N.I Act. It was also held that
stepping into witness box by the accused not imperative for
rebuttal of presumption. The question whether presumption
stood rebutted or not must be determined keeping in view
the other evidence on record. Where chances of false
implication cannot be ruled out, the background fact and
the conduct of the parties together with their legal
requirement are required to be taken into consideration. The
Courts must be on guard to see that merely on the
application of presumption as contemplated u/sec.139 of N.I
Act, the same may not lead to injustice or mistaken
conviction. It was also held that the accused need not
examine himself and he may discharge his burden on the
basis of materials already brought on record. It was also
held that the standard of proof required on the part of an
accused and that of prosecution is different. Where as the
prosecution must prove the guilt of the accused beyond all
reasonable doubt, the standard of proof required on the part
of accused is preponderance of probabilities.
13 CC.30252/2019( J)
b) The Hon'ble Supreme Court in M/S Narayana Menon @
Mani v/s State of Kerala and Another reported in (2006)
SCC 39 held that the initial burden of proof is on the
accused to rebut the presumption u/sec.118 and 139 of N.I
Act by raising a probable defence. If he discharges the said
burden, the onus thereafter shifts on to the complainant to
prove his case. The burden of proof on the accused is not
heavy. He need not disprove the prosecution case in its
entirety. He can discharge the burden on the basis of
preponderance of probabilities prove direct or circumstantial
evidence. For the said purpose he can also rely upon
evidence adduced by the complainant.
c) The Hon'ble High Court of Kerala in Gopan. G v/s
Tonny Verghese reported in LAWS (KER)-2007-11-37
held that the burden of rebutting the presumption u/sec.139
of NI Act will be shifted to the accused only when the
complainant discharged his initial burden. Even if the initial
burden is discharged by the complainant, the accused can
rebut the presumption either by adducing direct evidence or
even by relying on broad improbabilities of the prosecution
case including the improbable evidence of the prosecution.
14. However in the recent judgments of the Hon'ble
Supreme Court the aspect of presumptions and burden of proof has
been settled.
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a) The Hon'ble Supreme Court in Rangappa Vs. Mohan
reported in (2010)11 SCC 441 held as under:
26. In light of these extracts, we are in agreement
with the respondent-claimant that the presumption mandated
by Section 139 of the Act does indeed include the existence
of a legally enforceable debt or liability. To that extent, the
impugned observations in Krishna Janardhan Bhat (supra)
may not be correct. However, this does not in any way cast
doubt on the correctness of the decision in that case since it
was based on the specific facts and circumstances therein.
As noted in the citations, this is of course in the nature of a
rebuttable presumption and it is open to the accused to raise
a defence, wherein the existence of a legally enforceable
debt or liability can be contested. However, there can be no
doubt that there is an initial presumption, which favours the
complainant.
27. Section 139 of the Act is an example of a
reverse onus clause that has been included in furtherance of
the legislative objective of improving the credibility of
negotiable instruments. While Section 138 of the Act
specifies a strong criminal remedy in relation to the
dishonour of cheques, the rebuttable presumption under
Section 139 is a device to prevent undue delay in the course
of litigation. However, it must be remembered that the
offence made punishable by Section 138 can be better
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described as a regulatory offence since the bouncing of a
cheque is largely in the nature of a civil wrong whose
impact is usually confined to the private parties involved in
commercial transactions. In such a scenario, the test of
proportionality should guide the construction and
interpretation of reverse onus clauses and the
accused/defendant cannot be expected to discharge an
unduly high standard or proof.
28. In the absence of compelling justifications,
reverse onus clauses usually impose an evidentiary burden
and not a persuasive burden. Keeping this in view, it is a
settled position 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 doubts about the existence of a legally
enforceable debt or liability, the prosecution can fail. As
clarified in the citations, the accused can rely on the
materials submitted by the complainant in order to raise
such a defence and it is conceivable that in some cases the
accused may not need to adduce evidence of his/her own.
b) The Hon'ble Supreme Court in T. Vasantha Kumar V/s
Vijaya Kumari reported in (2015) 8 SCC 378 held as under:-
16 CC.30252/2019( J)
Therefore ,in the present case since the cheque as well
as the signature has been accepted by the
accused/respondent,the presumption under sec.138 would
operate. Thus the burden was on the accused to disprove
the cheque or the existence of any legally recoverable debt
or liability. To this effect, the accused has come up with a
story that the cheque was given to the complainant long
back in 1999 as a security to a loan; the loan was repaid
but the complainant did not, return the security cheque.
According to the accused, it was that very cheque used by
the complainant to implicate the accused. However, if may
be noted that the cheque was dishonoured because the
payment was stopped and not for any other reason. This
implies that the accused had knowledge of the cheque being
presented to the bank, or else how would be accused have
instructed her banker to stop the payment. Thus, the story
brought out by the accused is unworthy of credit, apart
from being unsupported by any evidence.
c) The Hon'ble Supreme Court of India in its latest case
of M/s. Kalamani Tex v. P. Balasubramanian reported in
(2021) 5 SCC 283 observed at para No.14 to 18 as under:-
14. Adverting to the case in hand, we find on a
plain reading of its Judgment that the trial Court completely
overlooked the provisions and failed to appreciate the
statutory presumption drawn under Section 118 and Section
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139 of NIA. The Statute mandates that once the signature(s)
of an accused on the cheque/negotiable instrument are
established, then these 'reverse onus' clauses become
operative. In such a situation, the obligation shifts upon the
accused to discharge the presumption imposed upon him.
This point of law has been crystalized by this Court in
Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18 SCC
106 in the following words:
"In the case at hand, even after purportedly drawing
the presumption under Section 139 of the NI Act, the trial
Court proceeded to question the want of evidence on the
part of the complainant as regards the source of funds for
advancing loan to the accused and want of examination of
relevant witnesses who allegedly extended him money for
advancing it to the accused. This approach of the Trial
Court had been at variance with the principles of
presumption in law. After such presumption, the onus
shifted to the accused and unless the accused had discharged
the onus by bringing on record such facts and circumstances
as to show the preponderance of probabilities tilting in his
favour, any doubt on the complainant's case could not have
been raised for want of evidence regarding the source of
funds for advancing loan to the appellant-accused....."
15. Once the 2nd Appellant had admitted his
signatures on the cheque and the Deed, the trial Court
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ought to have presumed that the cheque was issued as
consideration for a legally enforceable debt. The trial Court
fell in error when it called upon the Complainant-
Respondent to explain the circumstances under which the
appellants were liable to pay. Such approach of the Trial
Court was directly in the teeth of the established legal
position as discussed above, and amounts to a patent error
of law.
16. No doubt, and as correctly argued by senior
Counsel for the appellants, the presumptions raised under
Section 118 and Section 139 are rebuttable in nature. As
held in M.S.Narayana Menon Vs. State of Kerala, (2006) 6
SCC 39, which was relied upon in Basalingappa (supra), a
probable defence needs to be raised, which must meet the
standard of "preponderance of probability", and not mere
possibility. These principles were also affirmed in the case
of Kumar Exports (supra), wherein it was further held that a
bare denial of passing of consideration would not aid the
case of accused.
17. Even if we take the arguments raised by the
appellants at face value that only a blank cheque and signed
blank stamp papers were given to the respondent, yet the
statutory presumption cannot be obliterated. It is useful to
cite Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, 36
where this court held that:
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"Even a blank cheque leaf, voluntarily signed and
handed over by the accused, which is towards
some payment, would attract presumption under
Section 139 of the Negotiable Instruments Act, in
the absence of any cogent evidence to show that
the cheque was not issued in discharge of a
debt."
18. Considering the fact that there has been an admitted
business relationship between the parties, we are of the
opinion that the defence raised by the appellants does not
inspire confidence or meet the standard of 'preponderance of
probability'. In the absence of any other relevant material, it
appears to us that the High Court did not err in discarding
the appellants' defence and upholding the onus imposed
upon them in terms of Section 118 and Section 139 of the
NIA.
d) The Hon'ble Supreme Court of India in its latest case of
Jain P Jose v/s Santhosh reported in SLP Crl.5241/2016 dated
10.11.2022 observed by referring to its earlier Judgments in
Vasanth Kumar v/s Vijaya Kumari, Rangappa v/s Mohan and
Kalamani Tex and Another v/s P. Balasubramanian that the
complainant is entitled to the benefit of presumption u/sec.139 of
N.I Act that the cheque was issued for discharge of legally
enforceable debt or liability.
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Therefore on perusal of the Judgments, it is clear that if the
cheque and signature are admitted, the presumption arises that the
cheque was issued for legally enforceable debt/liability. The
presumption is rebuttable. The accused has to raise a probable
defence and prove it by adducing evidence, which must meet the
standard of preponderance of probabilities. Unless the same has
been done, doubt can not be raised on the case of the
complainant. An accused need not examine himself for discharging
the burden of proof placed upon him under a statute. He may
discharge his burden on the basis of the materials already brought
on record. An accused has constitutional rights to remain silent.
The standard of proof on part of the accused and that of the
prosecution in a Criminal Case is different. The prosecution must
prove the guilt of an accused beyond all reasonable doubt and the
standard of proof so as to prove a defence on the part of an
accused is preponderance of probabilities.
15. The accused did not lead defence evidence. It is the
defence of the accused as set up by the counsel for the accused in
the cross examination of PW1 that the complainant has no concern
to the property of Nasreen Taj and the agreement of sale executed
by her in favour of the wife of the accused by name Sadiqa
Khanum. There was dispute in respect of the property bearing site
No.14 between the complainant and the Nasreen Taj. The sale
deed was not executed by Nasreen Taj in favour of Sadiqa
Khanum. As the prospective buyer of the property for more value
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was found, the complainant got the agreement of sale cancelled
and Nasreen Taj paid Rs.6,00,000/- to Sadiqa Khanum and the
complainant assured to pay Rs.4,00,000/- received by him under
the sale agreement but he failed to pay the said amount to Sadiqa
Khanum. The MOU alleged to have been executed by the accused
in favour of the complainant as per Ex.P14 is created and
fabricated. There is no transaction between the accused and the
complainant. The accused has no liability to pay any amount to
the complainant. The cheques have been issued by the accused as
security in favour of Nasreen Taj and the said cheques have been
misused by complainant. When the accused and his wife asked for
return the cheques, it was told to them that the said cheques were
destroyed after cancellation of the agreement of sale. The signature
of the accused in Ex.P14 is forged. The accused gave complaint in
Hebbal police station against the complainant for non payment of
Rs.4,00,000/- to his wife by name Sadiqa Khanum and therefore
the cheques of the accused have been misused.
16. The complainant lead further evidence and deposed
that Nasreen Taj has been residing in the site No.14 bearing
Municipal No.51, which is belonging to him. The said property
belongs to his family and he is the original owner. Therefore
himself and Nasreen Taj Executed registered agreement of sale on
27.2.2018 in favour of the wife of accused by name Sadiqa
Khanum. The sale consideration is Rs.46,00,000/- and the wife of
the accused paid Rs.6,00,000/- out of which Rs.2,00,000/- was
paid by way of cheque of Canara Bank Chikkabidarikallu branch
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to Nasreen Taj and Rs.4,00,000/- was paid by way of cheques of
of Canara Bank Chikkabidarikallu branch of Rs.2,00,000/- each to
him. He signed the agreement as consenting witness. The time
period for getting execute the sale deed is 3 months. The wife of
the accused did not have the knowledge of transaction and
therefore the accused negotiated on behalf of his wife. He also
signed as a witness in the agreement. The cheques given by wife
of the accused are encashed by him. Thereafter the accused came
to him and asked for the amount to process the bank loan. The
paid Rs.1,00,000/- on 5.3.2018 and Rs.1,00,000/- on 6.3.2018 by
way of bank transfer to the account of the accused. He already
produced the bank statement. The wife of the accused did not
come forward for getting execute the sale deed even after lapse of
3 months. He went to the house of the accused at the address
mentioned in the agreement. He enquired them and they told that
the bank loan was not processed and they are unable to buy the
property. He told them to cancel the agreement of sale. He told
them that he would repay Rs.4,00,000/- after deducting
Rs.2,00,000/- taken by the accused. The wife of the accused did
not agree as the amount of Rs.6,00,000/- was her PF amount.
When he enquired the accused, the accused told him that he did
not tell about receipt of Rs.2,00,000/- by him in his house. The
accused requested him to repay entire amount of Rs.6,00,000/-
and agreed to execute the necessary documents. On 07.11.2018
himself and Nasreen Taj transferred Rs.6,00,000/- through RTGS to
the account of wife of the accused. The wife of the accused
executed cancellation of agreement of sale and the accused signed
23 CC.30252/2019( J)
it as a witness. On 9.11.2018 the accused executed document in
his favour in respect of the amount due to him. The MOU at
Ex.P14 was prepared by the accused and the accused asked him to
sign. The MOU is on bond paper and not on the stamp paper,
which did not bear franking and therefore he refused to sign.
Thereafter the accused brought it on 23.11.2018 after franking on
the bond paper. He signed the same. The accused agreed to give
the cheques within 15 days from the date of MOU. The accused
failed to pay the amount as per MOU. He filed complaint in
Hebbal Police station on the basis of MOU. The accused came to
the police station on 17.06.2019. He called him out side the police
station and issued 3 cheques for Rs.50,000/- each and assured to
pay Rs.50,000/- by way of cash later. The said cheques are
cheques in question. The said cheques have been dishonoured on
presentation for encashment.
17. The complainant produced Ex.P15 to 17 in support of
his further evidence. Ex.P15 is the agreement of sale dated
26.02.2018 executed by Nasreen Taj in favour of Sadiqa Khanum
in respect of the site No.14 as discribed in the schedule therein.
On perusal of Ex.P15 it is found that the total sale consideration is
Rs.46,00,000/- out of which Rs.6,00,000/- has been paid by the
Sadiqa Khanum to Nasreen Taj and the complainant. Out of
Rs.6,00,000/- Rs.2,00,000/- was paid to Nasreen Taj by way of
cheque and Rs.4,00,000/- was paid to complainant by way of 2
cheques of Rs.2,00,000/- each, which is described in para No.2 of
the Ex.P15. The complainant signed Ex.P15 as consenting witness
24 CC.30252/2019( J)
confirming the contents of the agreement. The accused signed
Ex.P15 as the witness. Ex.P16 is the Cancellation of sale deed
dated 07.11.2018 exdcuted by Sadiqa Khanum in favour of Nasreen
Taj. On perusal of Ex.P16, it is found that Nasreen Taj repaid
Rs.6,00,000/-, which is the advance amount under Ex.P15, to
Sadiqa Khanum for cancellation of Ex.P15. The complainant signed
Ex.P16 as consenting witness confirming the contents of the
cancellation agreement. The accused signed Ex.P16 as the witness.
Ex.P17 is the encumbrance certificate showing the property
transaction between Nasreen Taj and Sadiqa Khanum. There is
reference of Ex.P15 and Ex.P16.
18. During further cross examination of PW.1, the counsel
for the accused set up further defence stating that the wife of the
accused by name Sadiqa Khanum arranged purchaser for higher
price on her side and therefore Nasreen Taj agreed to pay more
amount to the wife of the accused and accordingly Sadiqa Khanum
took the amount. The accused did not issue the cheques for
discharge of any liability and the said cheques were obtained by
the complainant from the accused forceably in the police station.
The said cheques were misused to file the present case.
19. On perusal of the defence set up in the cross
examination of PW.1, it appears that the defence is vague,
inconsistent and contradictory. It is the defence of the accused at
the first point of time that the cheques were given as security to
Nasreen Taj for property transaction and the same were misused.
25 CC.30252/2019( J)
When the accused and his wife asked for return the cheques, it
was told to them that the said cheques were destroyed after
cancellation of the agreement of sale. However at the second point
of time the version changed and it is the defence that the cheques
have been forcibly taken by the complainant from the accused in
Hebbal Police Station and the same were misused. Apart from that
the accused did not issue notice to either Nasreen Taj or the
complainant to return the cheques. The accused did not even
bother to issue stop payment instructions to the bank in respect of
the said cheques. All the cheques have been dishonoured for the
reason 'Funds Insufficient'. Therefore the defence of the accused in
respect of issuance of cheques is neither probable nor acceptable.
20. The accused admitted the sale agreement at Ex.P15
and cancellation of sale agreement at Ex.P16. However during the
cross examination of PW.1, the right of the complainant over the
property described in Ex.P15 and 16 was questioned. It is
pertinent to note that the transaction and the giving and taking of
money under Ex.P15 and 16 is undisputed. Admittedly the wife of
accused gave Rs.4,00,000/- by way of cheques to the complainant
under Ex.P15. It is also pertinent to note that the complainant is
not a mere witness to the said agreements. The complainant is
consenting witness to both the agreements and the accused is
witness to both the agreements. Therefore he has no locus standi
to challenge the right of complainant over the property as
described in the agreements. Further it is beyond the scope of
purview of this Court. The wife of the accused gave advance
26 CC.30252/2019( J)
amount of Rs.6,00,000/- under the agreement of sale at Ex.P15
and received Rs.6,00,000/- at the time of cancellation of the
agreement of sale at Ex.P16. It is the mere suggestions of the
counsel for the accused that the accused has to give Rs.4,00,000/-
apart from the amount of Rs.6,00,000/- received by the wife of
the accused as the wife of the accused arranged purchaser for
higher value. Mere suggestions are not sufficient. The documentary
evidence on record in respect of the property transaction between
complainant, Nasreen Taj and wife of the accused by name Sadiqa
Khanum. Therefore the defence of the accused is neither probable
nor acceptable.
21. The counsel for the accused cross examined PW.1 in
respect of the transaction and in respect of the execution of
Ex.P14. The complainant produced Ex.P13, which is the bank
statement, in order to substantiate the debt of Rs.2,00,000/-. On
perusal of Ex.P13, it is clear that the amount of Rs.2,00,000/- was
transferred by the complainant to the accused by way of account
transfer as alleged in the complaint. There is no cross examination
on this aspect. The amount received by the accused is merely
denied by way of suggestions put to PW.1. Mere suggestions are
not sufficient to prove the defence. Therefore the transfer of
amount of Rs.2,00,000/- by the complainant to the accused is
proved. It was elicited in the cross examination of PW.1 in respect
of Ex.P14 that he knew the contents of Ex.P14. He admitted that
there is no mention in Ex.P14 that Rs.2,00,000/- was taken by the
accused for the process of loan and the sale agreement was
27 CC.30252/2019( J)
cancelled as the said amount was not repaid. He also admitted
that the cheques are given as security. Ex.P14 was executed on
9.11.2018. He did not know as to when the stamp paper was
purchased. When it was asked to PW.1 that the stamp paper was
purchased on 23.11.2018, he answered that as the accused would
not be available, it was typed and signatures are taken after
obtaining the stamp paper and he voluntarily stated that only after
typing the document the franking will be done in the office of Sub
Registrar. It was suggested to PW.1 that Ex.P14 is created and
signature of the accused in Ex.P14 is forged. On perusal of Ex.P14,
it is clear that it is not E stamp paper and it is a bond paper of
Rs.2/- wherein the agreement was typed on 9.11.2018 and the
parties have signed and thereafter franking was done in the office
of Sub-Registrar for the value of Rs.100/- on 23.11.2018. Therefore
the explanation given by the complainant in his evidence is
sufficient to explain the discrepancy pointed out by the counsel for
the accused. Moreover it is pertinent to note that the accused
challenged Ex.P14 to the created by forging his signature. However
the accused has not taken any action against the complainant for
having created Ex.P14 by forging the signature of the accused. It
is also pertinent to note that the notice has been served on the
accused but the accused did not issue reply notice by taking any
of the defences taken by him during the cross examination of
PW.1. He merely denied service of notice however as per the
discussion made aforesaid in respect of service of notice it is very
much clear that the notice has been served. Therefore there is
nothing on record to accept the defence of the accused as probable
28 CC.30252/2019( J)
and therefore the accused failed to prove his defence in order to
rebut the presumption u/sec.139 of N.I Act raised in favour of the
complainant.
22. Apart from that it was elicited in the cross
examination of PW.1 that he did not produce any document to
show that he has right over the property in the transaction. He
also did not produce the complaint filed by him against the
accused in the Hebbal Police Station, NC acknowledgment and the
statement given by the accused in the police station. It was also
elicited in the cross examination of PW.1 that he had no hurdle to
mention the facts stated in the further examination in chief in the
notice, complaint and examination in chief affidavit. On perusal of
the evidence on record, it is found that the said documents have
not been produced and marked in the evidence. However the said
documents have been produced by the complainant along with
memo in support of the arguments in favour of the complainant.
Further the non mentioning of the facts stated in the further
examination in chief of PW.1 in the notice, compliant are not fatal
to the case of the complainant as the said facts have come on
record in the form of documentary evidence adduced by the
complainant.
23. On perusal of the entire materials on record and the
chronology of events, it is found that as per the original MOU
dated 4.11.2017 entered into between Nasreen Taj, Syed Sadiq as
first party and complainant as second party settled their dispute
29 CC.30252/2019( J)
and amicably agreed to sell the property. The said MOU is
produced at the time of arguments to show that the complainant
has right in the property. However as discussed aforesaid the said
aspect has no bearing on the case. The accused admitted Ex.P15
and 16. Ex.P15 is the sale agreement dated 26.2.2018. The amount
of Rs.2,00,000/- was transferred by the complainant to the accused
on 5.3.2018 and 6.3.2018 as per bank statement at Ex.P13. The
cancellation agreement at Ex.P16 is dated 7.11.2018. The accused
disputed Ex.P14 but he failed to prove his defence that it was
created by forging his signature. The MOU at Ex.P14 is dated
9.11.2018. The complainant also produced the NC
acknowledgment, complaint dated 10.04.2019 and statement given
by the accused before the police on 11.4.2019 and 17.6.2019 along
with memo at the time of arguments. They also show that the
complainant filed the complaint and accused agreed to pay the
amount and accordingly issued the cheques. Though the said
documents have not been marked they can be taken into
consideration in support of the arguments on the side of the
complainant. Even if the documents produced at the time of
arguments are not considered at all, the burden is on the accused
to rebut the presumption u/sec.139 and 118 of N.I Act as the
cheques and signatures are admitted. The accused failed to rebut
the presumption by leading cogent evidence. He failed to prove
the defence by preponderance of probability either by leading
direct evidence or by relying on the evidence of the complainant.
30 CC.30252/2019( J)
24. The issuance of cheques and signatures on the cheques
at ExP.1 to 3 are admitted. It attracts the ratio laid down by the
Hon'ble Supreme Court of India in its decisions reported in 2011
(11) SCC - 441 - Rangappa V/s.Sri.Mohan, in SCC 2015 (8)
Page No.378 - T.Vasanthakumar V/s.Vijayakumari and in
(2019) 18 SCC 106 Rohit Bhai Jeevanlal Patel V/s. State of
Gujarath and another. The ratio is that the cheque shall be
presumed to be for consideration unless and until the court forms
a belief that the consideration does not exist or considers the non-
existence of consideration was tenable that a prudent man would
under no circumstances act upon the plea that the consideration
does not exist.
25. It is the defence of the accused that he issued signed
blank cheques. The counsel for accused cross examined PW.1 but
nothing worth was elicited. On perusal of Ex.P1 to 3, it is found
that the signatures and the contents are written with same ink.
However even if the blank signed cheques were given and they
were filled up later, it attracts the ingredients u/sec.138 of N.I
Act. As per Section 20 of the N.I.Act, if the person signs and
delivers Negotiable Instrument and it is left incomplete and
thereby he authorizes the holder to complete the Negotiable
Instrument and thereby he is liable for the amount mentioned in
the Negotiable Instrument. In the Judgment rendered by the
Hon'ble Supreme Court of India in Bir Singh V/s.Mukesh Kumar
reported in AIR 2019 SC 2446, it was held by the Hon'ble Apex
Court that "If a signed blank cheque is voluntarily presented to a
31 CC.30252/2019( J)
payee, towards some payment, the payee may fill up the amount
and other particulars. This in itself would not invalidate the
cheque. The onus would still be on the accused to prove that the
cheque was not in discharge of a debt or liability by adducing
evidence. Even a blank cheque leaf, voluntarily singed and handed
over by the accused, which is towards some payment, would
attract presumption under Section 139 of the Negotiable
Instruments Act, in the absence of any cogent evidence to show
that the cheque was not issued in discharge of a debt."
26. For the reasons mentioned herein above, it is
crystallized that the accused has utterly failed to prove that there
was no existence of legally enforceable debt/liability between him
and the complainant and he has not at all issued the instant
cheques towards the discharge of legally enforceable liability of
Rs.1,50,000/-. On the other hand, the complainant has proved that
the accused issued the cheques for the legally enforceable liability;
the cheques were dishonored due to the reason 'Funds Insufficient'
and the notice issued by him was served on the accused. The
complainant proved his case beyond reasonable doubts. The
accused failed to rebut the statutory presumptions U/s.118(a) & (b)
and 139 of the N.I.Act. Accordingly the accused is found guilty for
the offence punishable U/s.138 of the N.I.Act. Hence, I proceed to
answer the Point No.1 in Affirmative and Point No.2 in the
Negative.
32 CC.30252/2019( J)
27. Point No.3 : In view of the reasons assigned in Point
No.1 and 2 and considering the facts and circumstances of the
case, I proceed to pass the following:-
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine of Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.1,70,000/- (Rupees One Lakh Seventy Thousand Only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for three months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.1,000/- furnished by the accused shall be refunded to him after expiry of appeal period.
Furnish free copy of the judgment to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 28th day of December-2022.) (Lokesh Dhanapal Havale), XV Addl. CMM., Bangalore.
33 CC.30252/2019( J) ANNEXURE Witnesses examined for the Complainant:-
PW.1 : Sri. Naveena. G Documents marked for the Complainant:-
Ex.P1 to 3 : 3 Cheques Ex.P1(a)to 3(a) : Signatures of the accused Ex.P4 to 6 : Pay in slips Ex.P7 to 9 : Bank endorsements Ex.P10 : Office copy of the legal notice Ex.P11 : Postal receipt Ex.P12 : Postal acknowledgment Ex.P13 : Bank Statement Ex.P14 : MOU dated 9.11.2018 Ex.P15 : Agreement of Sale dated 26.02.2018 Ex.P16 : Cancellation of agreement of sale dated 7.11.2018 Ex.P17 : Encumbrance Certificate Witnesses examined For Defence:-
NIL Documents marked for Defence:-
NIL (Lokesh Dhanapal Havale), XV Addl.CMM., Bengaluru.
34 CC.30252/2019( J) 28/12/2022 (Judgment Pronounced in the Open Court Vide Separate Order sheet) ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine of Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.1,70,000/- (Rupees One Lakh Seventy Thousand Only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for three months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.1,000/- furnished by the accused shall be refunded to him after expiry of appeal period.
Furnish free copy of the judgment to the accused.
XV Addl.CMM., Bengaluru.