Bangalore District Court
Mohammed Yaseer vs Hameed Basha on 9 July, 2025
KABC020112192018
IN THE COURT OF ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY.
(SCCH-6)
Present: Smt. Chetana S.F.
B.A., L.L.B.,
IV Addl., Small Cause Judge & ACJM,
Court of Small Causes,
Bengaluru.
CC. No.2213/2018
DATED THIS The 9th DAY OF JULY, 2025
COMPLAINANT/S Mr. Mohammed Yaseer,
S/o. Mr. Ameer Hamza,
Age 35 years,
No.1669, 2nd Floor,
East end 'A' Main,
39th Cross road,
9th Block, Jayanagar,
Bangalore-560 069.
(By Sri. N. Thejesh - Advocate)
-Vs-
ACCUSED Mr. Hameed Basha,
Aged about 36 years,
S/o. Mr. Abdul Rahman,
No.001, Unnathi Citadel,
5th Phase, Ayodya Nagar,
J.P.Nagar 5th Phase,
Bangalore-560 078.
SCCH-6 2 CC No.2213/2018
And also at
C/o. Future Group (old heritage
fresh)
No.18/1, 10th Main road,
Pasadena, Beside Rani Sarala
Devi School, Ashoka Pillar road,
1st Block, Jayanagara East,
Jayanagara,
Bengaluru-560 011.
Baruve Ripponpete,
Thirthahalli road,
Hosanagara Taluk,
Hosanagara,
Shimoga District.
(By Sri.M.V.Parameswarappa -
Advocate)
-: J U D G M E N T :-
This is a complaint filed by the complainant U/Sec.200 of
Cr.P.C. for the offence punishable under Sec.138 of the N.I.
Act as against the accused praying to punish the accused for
the said offence.
2. The case of the complainant is that, accused being a
close friend of complainant used to visit complainant home
often. Based on this acquaintance in the first week of January
2015, accused approached the complainant for financial
SCCH-6 3 CC No.2213/2018
assistance and borrowed amount from 05.01.2015 to
21.03.2025 i.e., on 05.01.2015 for Rs.6,50,000/-, On
18.01.2015 for Rs.2,00,000/-, on 06.02.2015 for
Rs.1,00,000/-, on 20.02.2015 for Rs.1,50,000/-, on
05.03.2015 for Rs.1,50,000/-, on 18.03.2015 for
Rs.1,00,000/- and on 21.03.2015 for Rs.5,00,000/- by way of
cash, in total amount of Rs.18,50,000/- and accused had
promised to repay the amount within 21.03.2016 and accused
voluntarily offered to pay 12% p.a. interest on aforesaid
amount till realization of the same, but accused failed to repay
the said amount. After repeated requests and reminders by
complainant, accused paid part principal amount of
Rs.2,84,118/- out of Rs.18,50,000/-. Thereafter, accused
has issued cheque bearing No.014031 dated 21.02.2018 for
Rs.15,65,882/- drawn on ICICI Bank, J.P. Nagar Branch,
Bengaluru. The complainant presented the said cheque
namely Corporation Bank, Rajajinagar Branch, Bengaluru on
22.02.2018 for collection to the bank, but the said cheque
returned as "Account Closed" on 23.02.2018. The
SCCH-6 4 CC No.2213/2018
complainant issued legal notice on 20.03.2018 to the accused.
The said notice sent through RPAD address and same was
served to accused on 22.03.2018. The accused has not issued
any reply to the notice and has not bothered to pay the said
cheque amount. Accordingly, the accused has committed an
offence punishable under Sec.138 of N.I Act. Hence, this
complaint.
3. After recording the sworn statement of the complainant
by way of affidavit and also verifying the documents,
cognizance was taken against the accused for the offence
punishable under Sec.138 of N.I. Act. The accused appeared
before this Court through his counsel and enlarged on bail
and his plea was recorded. The accused pleaded not guilty
and claimed to be tried. Hence, the case was posted for
evidence of the complainant.
4. The complainant got examined himself as PW.1 and
examined three witnesses as PW.2 to PW.4 and got marked
21 documents as Exs.P.1 to P21. Thereafter, the case was
posted for recording the statement of accused under Sec.313
SCCH-6 5 CC No.2213/2018
of Cr.P.C. In the statement U/s. 313 Cr.P.C., the accused has
denied all the incriminating evidence appearing against him
and claimed to be tried and accused examined himself as
DW.1 and got marked 11 documents as Exs.D1 to D11.
5. Heard the arguments of both side and Perused the
records.
6. The following points arise for my consideration:
1.Whether the complainant proves that the 014031 dated 21.02.2018 for a sum of Rs.15,65,882/- drawn on ICICI Bank, J.P. Nagar Branch, Bengaluru issued by the accused has been dishonored on the ground of 'Account Closed' on 23.02.2018 and even after receiving the intimation regarding the dishonor of cheque failed to pay the cheque amount within the stipulated period and thereby the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
-: R E A S O N S :-
7. POINT NO.1:- In view of the present legal position as held by our Hon'ble High Court as well as Apex Court of SCCH-6 6 CC No.2213/2018 India in a catena of decisions as well as relevant provisions of the Act, this court has to see whether the complainant has complied all the requirements as contained in Sec.138 of NI Act so as to bring home the guilt of the accused for the alleged offence. If so, whether the accused is able to rebut the legal presumption available to the complainant under Sec.139 of the Act by adducing probable defense or not. However, it is held by the full bench of our Apex Court in the case of Rangappa Vs. Mohan reported in 2010 (1) DCR 706 that;
"The Statutory presumption mandated by sec.139 of the Act, does indeed include the exis- tence of a legally enforceable debt or liability. However, the presumption U/S 139 of the Act is in the nature of a rebuttable presumption and it is open for the accused to raise a defence wherein the existence of a legally enforceable debt or liabil- ity can be contested".
8. Therefore, in view of the above decision, once the cheque is admitted, the statutory presumption would SCCH-6 7 CC No.2213/2018 automatically fall in favour of the complainant that, the alleged cheque was issued for discharge of an existing legally enforceable debt or liability against the accused and the burden will shift on to the accused to rebut the same.
INGREDIENTS OF OFFENCE AND DISCUSSION:-
9. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First Ingredient: The cheques were drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
SCCH-6 8 CC No.2213/2018 Second Ingredient: The cheques were drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheques were returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;SCCH-6 9 CC No.2213/2018
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
-APPRECIATION OF EVIDENCE-
10. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled. Notably, there is no dispute at bar about the proof of only first, third, and fifth ingredient. The complainant had proved the original cheque vide Ex.P.1 which the accused person had not disputed as being drawn on the account of the accused. It was not disputed that the cheque in question was presented within its validity period. The cheque in question was returned unpaid vide return memo dated 23.02.2018 vide Ex.P.2 due to the reason, "Account Closed". The complainant had proved the service of legal demand notice dated 20.03.2018 vide Ex.P.3 by bringing on record the postal SCCH-6 10 CC No.2213/2018 receipts vide Ex.P.4 to 6, Ex.P.7 is the postal cover, Ex.P8 is the postal acknowledgments, Ex.P.9 is the acknowledgment of debt, Ex.P.9(a) is the signature of PW.2 and Ex.P.9(b) is the signature of PW.3, Ex.P.10 is the scanned certified copy, Ex.P.11 is the Bank Statement, Ex.P.12 to Ex.P.14 are the Income Tax returns for the year 2011 to 2014, Ex.P.15 and Ex.P.16 are the Form No.26 for the year 2014-2015 and 2015-
2016, Ex.P.17 is the Loan Account Statement, Ex.P.18 is the Account Statement, Ex.P.19 is the Certificate under Section 65(b) of Evidence Act, Ex.P.20 and Ex.P.21 are the Salary bills for the year 2011 & 2012. Thus, there is a dispute only with regard to the second ingredient to the offence. As such, the 1st,3rd,4th& 5th ingredient of the offence under section 138 of the NI Act stands proved.
11. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debtor any liability. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI SCCH-6 11 CC No.2213/2018 Act, once the accused admits signature on the cheque in question, certain presumption are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
12. The combined effect of these two provisions is a presumption that the cheque is drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
13. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under SCCH-6 12 CC No.2213/2018 Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence.
14. The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. In this case, the arguments raised by the Ld. counsel for the accused to rebut the presumption are discussed below:
15. On perusal of cross-examination of the PW.1 accused has taken the specific defence that, he has never borrowed any loan of Rs.18,50,000/- from the complainant and has never issued the cheque in question for the repayment of the said loan. It is the specific defence of the accused that, accused has purchased the Car bearing No.KA- 51-MD-6497 in the name of the complainant as he was not the SCCH-6 13 CC No.2213/2018 income tax assessee and accused has borrowed loan of Rs.5,00,000/- from the TVS Bank in the name of PW-1 for the purchase of the Car and has given Rs.1,50,000/- in cash to the complainant. Further, every month accused used to pay the bank EMI of Rs.17,100/- and thereafter he was in possession of the Car, for one year three months and he has paid the EMI for almost for one year. Accused has given the cheque for the purpose of clearing the loan. But as the Car loan was not cleared, the TVS Company have seized the Car from him on 16.09.2015. He has given signed blank cheque to the complainant for clearance of the loan and the same was misused by the complainant and filed this false complaint. Further, it is the defence of accused that, he has never executed the stamp paper and affixed signature as per Ex.P.9 loan agreement. In support of his contention, accused has produced the Car seizure letter as per Ex.D.1 and Car service documents as per Ex.D.2 and Ex.D.3 and his bank statements as per Ex.D.4 and Ex.D.5 rental agreement, Aadhar Card and Gold pledged receipts as per Ex.D.5 to Ex.D.11. The learned SCCH-6 14 CC No.2213/2018 counsel for the accused cross-examined PW.1 with regard to his occupation and the income since 2006, but accused has not disputed about the financial capacity of the PW-1. Further, learned counsel for the accused cross-examined PW.1 with regard to the date and time and the place where the complainant is alleged to have lend the loan for which, PW.1 at one time stated that, on 05.01.2015, he has lend the loan of Rs.6,50,000/- in Gopalanmahal, near Bannerghatta. Further, PW.1 stated that in March 2015, he has given Rs.5,00,000/- at one time and Rs.1,00,000/- at another time and in February, he has lend Rs.1,50,000/- two times. Further, when PW.1 was cross-examined as to from where abouts the source of the funds for the alleged loan, PW.1 stated that, he has saved money from his salary since 15 years and has kept the same in his house and given the same and he has not mentioned about the above said loan transaction in his income tax. Further, PW.1 admitted that, at the time of lending of the loan, he has not taken any documents and no documents were executed. In March 2015, accused has executed Ex.P.9 loan SCCH-6 15 CC No.2213/2018 agreement and given to him. But on the other hand, accused has entirely denied the execution of the Ex.P.9 and also the signature alleged to be his signature. Though PW.1 examined two witnesses by name Mahammed Shake as PW.2 and Gopal Nayak as PW.3 witnesses to the Ex.P.9 who were the attesting witnesses to the document. But inspite of sufficient opportunity given to the accused counsel, accused has not cross-examined PW.2 and PW.3. Hence, the evidence of the PW.2 and PW.3 has remained unchallenged. Nevertheless, when accused has seriously disputed the signature in the Ex.P.9 acknowledgment of debt. The burden is on the complainant to prove that, signature in Ex.P.9 is of the accused, but complainant has not made any attempt to prove that signature in Ex.P.9 is that of the accused by filing proper and necessary application to send the same to the FSL. Though PW.2 and PW.3 in their affidavit deposed that, both complainant and the accused have executed the acknowledgment of debt in their presence and they have affixed their signature as one of the attesting witness and SCCH-6 16 CC No.2213/2018 identified their signature, but none of them have deposed that accused have affixed his signature to Ex.P.9 in their presence and none of them have identified the accused signature. Even, the accused has seriously disputed his signature in Ex.P.9 under such facts and circumstances, it is the burden on the complainant to prove that signature in Ex.P.9 is that of the accused. But complainant has failed to prove the signature in Ex.P.9 is that of the accused.
16. Apart from all these as per the complainant, he went on lending the loan from January to March in cash and only after lending of the alleged loan of Rs.18,50,000/-, accused is alleged to have executed the document. Ordinarily no prudent man could lend the loan of such huge amount that to in cash, without taking any documents in proof of the same.
17. Apart from this, when PW.1 being highly qualified, what prevented him to transfer the amount through the bank and why he has not transferred the amount through the bank, no reasons has been given in this regard.
SCCH-6 17 CC No.2213/2018
18. On the other hand, when PW.1 was cross-examined with regard to the purchase of the Car in his name by the accused and payment of amount towards the down payment for the purchase of the Car. PW.1 admitted that, accused has purchased the Car in his name in the year 2015. PW.1 further admitted that, accused himself has made down payment for the purchase of the Car. Even PW.1 has admitted that as there was no sufficient documents in the name of the accused, car was purchased in his name. Further, PW.1 admitted that, Car was purchased by obtaining the Car loan from the TVS evidence. Further PW.1 also admitted that, some times, accused used to pay the EMI of the Car and sometimes, he used to pay the Car EMI. Further even PW.1 admitted that, the Car was with the accused. Further PW.1 also admitted that, he also used the Car for going for trips. Further, when PW.1 was asked whether he has the documents to show that he has paid the Car EMI. PW.1 categorically stated that, he do not have any documents to show that, he has paid the EMI. If at all, PW.1 has paid the EMI of the Car certainly PW.1 would SCCH-6 18 CC No.2213/2018 in possession of the documents. Even PW.1 stated that, he did not remember as to how many EMI, he has paid. Thus is is clear that he has not paid any EMI towards the Car loan. As such, he did not have any documents to show the same and even he did not remember how much EMI he has paid.
19. Further PW.1 admitted that, the said Car has been seized by the finance Company, as loan was not cleared. Hence it is clear that, there was a dispute and difference of opinion between the PW.1 and the accused with regard to the clearance of the loan taken by the accused in the name of the complainant. Further it is not the case of the complainant that, he has repaid the entire Car loan or he has repaid the car loan partially by himself and for the repayment of the said Car loan, accused is liable to pay said loan amount. Even PW.1 has not stated clearly as to whether he has repaid the entire Car loan or not and whether the said finance have taken any further action for the repayment of the Car loan from him. The case of the complainant is entirely different from that of the Car loan. When accused has borrowed the car loan in the SCCH-6 19 CC No.2213/2018 year 2015 in the name of the PW.1 and has not repaid the Car loan fully, then why further PW.1 has lent the loan to the accused.
20. As per complainant, he has paid the loan of Rs.18,50,000/- to the accused from January 2015 to March 2015 and accused has purchased the Car by borrowing the Car loan in the name of the PW.1 in the year 2015 itself. As per Ex.D.2 and Ex.D.3, tax invoices with respect to the Car service it is dated 06.01.2015. Thus it is clear that, Car was purchased by the accused in the name of the PW.1 before 06.01.2015 and the present transaction alleged by the complainant entirely relates to the purchase of the Car in the name of the PW.1 by the accused. Accused has purchased the Car by borrowing the loan in the name of the PW.1, then how could PW.1 once again lend loan of such huge amount that to in a cash to the accused, which is highly believable and unacceptable. Ordinarily, no prudent man would allow any person to take the loan in his name and thereafter once again lend huge amount of Rs.18,50,000/- in cash. In view of the SCCH-6 20 CC No.2213/2018 admissions made by the PW.1 with respect to the defence of the accused, the defence taken by the accused appears to be mere probable than the case of the complainant.
21. Moreover, the suppression of the purchase of the Car in the name of the PW.1 by borrowing the loan in the name of the PW.1 and the payment made by the accused towards the EMI of the Car loan by the PW.1 clearly amounts to the suppression of the material facts.
22. Apart from this, PW.1 he himself by putting the suggestion in the cross-examination of the DW.1 that, accused was paying Rs.21,000/- on every month for about nine months and thereafter, accused paid Rs.50,000/-, Rs.25,000/-, Rs.20,000/- and Rs.50,000/- and in total Rs.2,84,114/-, thereby admitted the receipt of the amount. Though PW.1 contended that, those amounts were paid by the accused towards the part payment of the alleged loan transaction, payment of Rs.21,000/- itself every month for about 9-10 months it appears that, accused was paying the EMI or the Car. Even DW.1 in his cross-examination clearly SCCH-6 21 CC No.2213/2018 stated that he has paid the amount of Rs.2,84,114/- to the complainant towards the repayment of the Car EMI and he has also made payment towards the down payment. It is pertinent to note here that this fact is not denied by the complainant atleast by putting single suggestion. All these facts makes the defence of the accused more probable.
23. Apart from this, accused has produced Ex.D.8 and Ex.D.9 to show that he has borrowed the loan from the Mutoot Finance, he and his wife have borrowed the loan from the Mutoot Finance for the purpose of repayment of the Car loan. Ex.D.8 to Ex.D.11 shows that, he has borrowed the loan from the Mutoot finance for the purpose of repayment of the Car loan.
24. Further, accused has taken the specific defence that notice sent to the accused has not been duly served. In this regard, on perusal of the Ex.P.7 return postal cover it was returned with the shara no such person and the notice sent to the second address has been returned with an acknowledgment as served. PW.1 in his cross-examination SCCH-6 22 CC No.2213/2018 admitted that, as on the date of the alleged loan transaction, accused was residing at J.P.Nagar, 5th Phase and further PW.1 admitted that, accused was not residing in the address mentioned in the plaint. Further PW.1 clearly admitted that, he has not produced any documents to show that he sent the notice to the accused at the third address. On perusal of the Ex.P.8, the address mentioned in the Ex.P.8 bears J.P.Nagar, 5th Phase and accused has not denied the address mentioned in the Ex.D.8 acknowledgment and the address stated by the accused as J.P.Nagar, 5th Phase is the same address mentioned in the plaint and even the address stated by the DW.1 before the Court in her oral evidence is same that of the address mentioned in the complaint and Ex.P.3 notice. Hence, when the accused has not at all denied the address mentioned in the complaint and the notice as wrong address and when complainant has produced the acknowledgment as per Ex.P.8 which shows that, notice has been duly served to the accused in the address mentioned therein.
25. Moreover, in this regard, it has been held by the SCCH-6 23 CC No.2213/2018 Hon'ble Apex Court in the case of M/S Indo Automobiles Vs. M/S. Jaidurga Enterprises reported in 2008 (2) DCR 499 and also as provided under Sec.27 of the Mysore general clauses Act, 1897. When a notice is sent to the correct address of the addressee, even if the same is returned unserved due absence or non-claiming or refusal of the addressee, the same amounts to deemed service. Moreover, the very purpose of giving statutory notice to provide an opportunity to the accused/drawer to make payment of the cheque amount and escape from the criminal prosecution. The non-service of the notice would be ground only in the case of the accused admitting the liability under the cheque and pleading only exemption from the criminal prosecution for non payment of the cheque amount. Thus this defence of the accused is of no consequence in the present case as he is totally denying the liability under the said cheque.
26. Thus, defence taken by the accused appears to be more probable and accused has successfully rebut the presumptions available in favour of the complainant and SCCH-6 24 CC No.2213/2018 proved his defence on preponderance of probabilities. Conclusion:
27. In view of the above, complainant has failed to establish the passing of the consideration and the cheque in question was issued by the accused for the repayment of the above said loan. On the other hand, accused has proved his defence that, he has purchased the Car by borrowing the loan in the name of the complainant and he has made the down payment and has paying EMI's and also towards the repayment of the Car loan. Accused has issued the cheques in question and the same were misused by the PW.1 and filed this false case by preponderance of probabilities. Therefore, the accused is held to have not committed an offence punishable under Sec.138 of N.I. Act. Accordingly, Point No.1 is answered in the NEGATIVE.
28. POINT NO.2:- In view of my answer to point No.1, I proceed to pass the following:-
SCCH-6 25 CC No.2213/2018
-: O R D E R :-
Acting under Section 278(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, accused is acquitted for the offence punishable under Section 138 of NI Act.
The bail and surety bond of the accused and surety shall stand canceled.
(Dictated to the Stenographer, transcribed and computerized by her. After her typing, corrected, signed and then pronounced by me in open Court this the 9 th day of July, 2025).
(CHETANA S.F.) IV Addl., Small Cause Judge & ACJM, Court of Small Causes, Bengaluru.
ANNEXURE List of witnesses examined for the Complainant:
PW.1 :- Mohammed Yaseer PW.2 :- Mohammed Rafq Shaikh PW.3 :- Gopal N. Naik PW.4 :- Ranjith Kumar
List of witnesses examined for the accused:-
DW.1 : Hameed Basha R.A. SCCH-6 26 CC No.2213/2018 List of documents marked for the Complainant:-
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Bank Endorsement
Ex.P.3 : Legal Notice
Ex.P.4 - 6 : Postal Receipts
Ex.P.7 : Postal cover
Ex.P.8 : Postal Acknowledgment
Ex.P.9 : Acknowledgment of debt
Ex.P.9(a) : Signature of PW.2
Ex.P.9(b) : Signature of PW.3
Ex.P.10 : Scanned certified copy
Ex.P.11 : Bank Statement
Ex.P.12 - 14 : Income Tax returns for the year
2011-12, 2012-13 and 2013-14.
Ex.P.15 & 16 : Form No.26AS for the year 2014-15
and 2015-16.
Ex.P.17 : Loan Account Statement
Ex.P.18 : Account Statement
Ex.P.19 : Certificate U/s.65(b) of Indian
Evidence Act
Ex.P.20 & 21 : Salary details for the year 2011 &
2012
List of documents marked for the accused:-
Ex.D1 : Letter of Authority issued by TVS Credit Service Limited.
Ex.D2 & D3 : Tax Invoices SCCH-6 27 CC No.2213/2018 Ex.D4 : Statement of account Ex.D5 : Bank Statement Ex.D6 : Rental agreement Ex.D7 : Aadhar Card Ex.D8 - Ex.D11 : Loan sanction letters (CHETANA S.F.) IV Addl., Small Cause Judge & ACJM, Court of Small Causes, BENGALURU. SCCH-6 28 CC No.2213/2018 SCCH-6 29 CC No.2213/2018