Bangalore District Court
Town vs R/At No.5/3 on 19 November, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 19th DAY OF NOVEMBER, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.51832/2017
Smt. Tahira Begum Mohammed Aslam
Aged about 30 years,
W/o. Sri. Mohammed Aslam
R/at No.2A, No.31, Norris Road, Richmond
COMPLAINANT Town, Bengaluru - 560 025.
Reptd by her Special Power of Attorney -
Mr. Raashid Sherif
Sri. Syed Mahmood - Proprietor
M/s. Star Collections
S/o. Sri. Syed Shafi,
ACCUSED R/at No.5/3, Baitul Maal Road, 1st Street,
Shivaji Nagar, Bengaluru - 560 001.
Also at ; No.20, Lakshman Mudaliar Street,
nd
2 Cross, Commercial Street, Bengaluru -
560 001.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.51832/2017
JUDGMENT
The complainant has approached this court through her Special Power of Attorney holder with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the accused is the proprietor of M/s.Star Collection and engaged in the business of selling the readymade ladies apparels. The accused had approached the complainant seeking financial assistance of Rs.3 lakhs towards working capital through the monitoring agency M/s. Rehbar Fin Consultants (P) Ltd. The complainant had lent Rs.3 lakhs to the accused. Towards repayment of the principle amount borrowed, the accused being the proprietor of M/s.Star Collections had issued cheque bearing No.719345 dated 22.12.2016 for Rs.3,00,000/- drawn on M/s.Axis Bank Ltd., (KT) branch, Bengaluru in favour of the complainant.
3. It is further case of the complainant that as per the assurance of the accused, the complainant presented the said cheque for encashment within its validity through her banker - Union Bank of India, St. John's Church Road, Bengaluru, which was returned dishonoured for the reason "funds insufficient" on 27.12.2016 and the same was 3 C.C. No.51832/2017 communicated to the complainant by her banker on 28.12.2016. Thereafter the complainant got issued legal notice dated 27.01.2017 through RPAD to the two addresses of the accused demanding the repayment of the cheque amount. The notice so sent to the 1st address of the accused was returned on 02.02.2017 with a postal endorsement "insufficient address, returned to sender". The notice sent to the second address was duly served on the accused on 02.02.2017. In spite of the service of notice, the accused had not opted to comply with the demand made in the said notice and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these grounds prayed for punishment to the accused and for grant of compensation in favour of the complainant as per law in the interest of justice and equity.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the P.A holder of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was issued to her.
4 C.C. No.51832/20175. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the Special Power of attorney holder of the complainant is examined as CW.1 and got marked as many as seven documents as per Ex.P1 to P7 and closed the evidence. After closure of the complainant's evidence, statement of the accused U/s.313 of Cr.PC was recorded. The accused has denied the incriminating circumstances found in the evidence of CW.1 as to commission of the offence alleged. The accused has not opted to place any oral evidence or documentary evidence on his behalf in spite of the opportunities given and thereby evidence of the parties concluded.
7. Heard the arguments of the learned counsel for the respective parties.
8. On perusal of the entire material available in the file and also on hearing the arguments of the learned counsels, the points that would arise for consideration are :-
5 C.C. No.51832/20171) Whether the complainant further proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?
9. The above points are answered as under;
Point No.1 : In Negative,
Point No.2 : In Negative,
Point No.3 : In Negative,
Point No.4 : As per the final order,
for the following.......
REASONS
10. Point Nos.1 to 3 : Since point Nos.1 to 3 are inter linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court at this stage itself. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the 6 C.C. No.51832/2017 complainant and accused are known to each other and the accused is the Proprietor of M/s.Star Collections and had approached Rehbar Financial Consultancy seeking financial assistance in the year 2014. The accused admitted the availment of Rs.2 lakhs from the complainant through Rehber Financial Consultancy. It is also admitted fact that the cheque in question belonged to the accused and signature found therein is that of the accused. There is no dispute as to bouncing of the cheque for the reason "funds insufficient" and also compliance of technical requirements of Sec.138 of N.I. Act in filing the present complaint. The accused has also not disputed the capacity of CW.1 as SPA holder of the complainant in presenting and prosecuting this case.
11. With the above referred undisputed facts, now the facts in dispute are analyzed, as already stated the accused had denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act, while recording his plea for the said offence and also denied the incriminating circumstances at the time of recording his statement U/s.313 of Cr.PC. The accused has not put up any positive case on his behalf either at the time of recording his plea or at the time of recording his statement U/s.313 of Cr.PC. However on going through the cross-examination of the complainant, it is clear that the accused has denied the 7 C.C. No.51832/2017 case of the complainant as to any due amount, issuance of cheque in favour of the complainant towards discharge of any liability/debt as put up by the complainant in toto. It is found to be a specific defence of the accused that he had availed loan of Rs.2 lakhs from the complainant in the year 2014 through Rehber Financial Consultancy and he had repaid Rs.2,29,885/- towards said borrowed amount through account. At the time of giving said loan, the complainant had taken one signed blank cheque of the accused for the security purpose. Though the accused had repaid the borrowed amount, the complainant and CW.1 colluding together filled up the said cheque and misused the same and filed this false case to extract more money and to trouble the accused and accordingly on these grounds prayed for his acquittal in the interest of justice and equity.
12. Relying on the oral and documentary evidence, the learned counsels for respective parties vehemently argued as to the contention of the parties. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed 8 C.C. No.51832/2017 that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further recently the Hon'ble Apex court in Crl. A. No.803/2018 - (Krishna Rao Vs Shankare Gowda) reiterated the above principle. Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheques in question were issued for consideration on the date found therein.
9 C.C. No.51832/201713. In the light of the rival contention of the parties, at the out set the oral and documentary evidence are analyzed, as already stated it is noticed that there is no dispute as such as to compliance of technical requirements of Sec.138 of N.I. Act in filing the complaint. In this regard, the complainant being CW.1 reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination-in-chief in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that, the complainant has produced Special Power of Attorney dated 28.02.2017, cheque dtd.22.12.2016, bank endorsement dated 27.12.2016, office copy of legal notice dated 27.01.2017, two postal receipts dated 27.01.2017 for having sent the notice by registered post to the two addresses of the accused, one postal acknowledgement for having service of the notice on the accused by RPAD and one returned RPAD envelop as per Ex.P1 to P7 respectively.
14. Admittedly, Ex.P2-cheque dtd.22.12.2016 belonged to the accused and signed by him and the same was dishonoured on 27.12.2016 for the reason "funds insufficient"
as found in Ex.P3-bank endorsement. The contents of Ex.P4 to P7 i.e office copy of the legal notice, postal receipts, postal acknowledgement and returned RPAD envelop are analyzed, it 10 C.C. No.51832/2017 is clear that after dishonour of the cheque as found in Ex.P3, the complainant got issued legal notice on 27.01.2017 by registered post to the two addresses of the accused and notice sent to the first address found to be returned with a postal endorsement "insufficient address" on 02.02.2017 as found in Ex.P7 and notice sent to the second address was found to be served on the accused on 02.02.2017 as found in Ex.P6. The complainant has filed the complaint on 17.03.2017. Therefore on going through these documents as argued by the learned counsel for the complainant, it is clear that the complainant had presented the cheque within its validity and got issued statutory notice after dishonour of the cheque within statutory time and presented the complaint after lapse of 15 days from the date of service of notice on the accused and within 30 days thereafter as required under law. Ex.P1--SPA deed reveals the authority of CW.1 to file and prosecute the complaint on behalf of the complainant. Therefore these documents are analyzed, they prima facie disclose as to compliance of requirements of Sec.138 of N.I. Act in filing the present complaint.
15. Therefore on conjoint reading of entire oral documentary evidence, their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as argued by the learned counsel for the complainant, in the light of the 11 C.C. No.51832/2017 dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the cheque in question was issued towards discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein.
16. As argued by the learned counsel for the accused, it is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. Act and the accused admits the cheque in question, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts to the shoulder of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also well settled principle that in order to rebut the presumption it is not imperative on the part of the 12 C.C. No.51832/2017 accused to step into the witness box and he may discharge his burden on the basis of the material already brought on record and on the basis of the facts elicited in the cross- examination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank Ltd., Vs M/s.Subaiah Gas Agency and others), ILR 2009 (2) 1633 - (Kumar Exports Vs Sharma Carpets), AIR 2008 (SC) 1325 (Krishna Janardhan Bhat Vs. Dattathraya G. Hegde), 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another) and AIR 2010 (SC) 1898 - (Rangappa Vs. Mohan). Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
17. In view of the specific defence taken by the accused, as against the claim of the complainant, now the evidence available on file is analyzed, except the cross- examination of CW.1, there is no any other evidence available on behalf of the accused. As already stated in spite of the opportunities given, the accused has not stepped into witness box, so as to substantiate his defence. As argued by the learned counsel for the complainant, it is 13 C.C. No.51832/2017 noticed that though the accused had contended that he had availed Rs.2 lakhs from the complainant and repaid the said amount by paying Rs.2,29,885/-, he had not produced any piece of documents in that regard. Apart from that, it is also to be noted that the accused claims the payment of the said amount through account. This being the fact, the accused could have produced the said available document to substantiate his defence. But he has not opted to produce the same before this court for the reason best known to him. In this angle, the defence of the accused is found to be not sustainable one.
18. In the light of the claim made by the complainant, as argued by the learned counsel for the accused, it is noticed that the averments made in the legal notice as well as in the complaint are not clear and the same are found to be vague. The complainant nowhere stated as to when exactly she had paid the amount to the accused and in what mode. Absolutely no documents are being produced as to lending of Rs.3 lakhs as claimed by the complainant. As already stated the accused has specifically contended that he had availed only Rs.2 lakhs and not Rs.3 lakhs as put up by the complainant. In spite of the said defence, the complainant has not produced any documents to show the lending of Rs.3 lakhs to the accused as contended. At this juncture, the evidence of CW.1 as to the very transaction is 14 C.C. No.51832/2017 analyzed, as argued by the learned counsel for the accused, it clearly appears that CW.1 has no knowledge of the transaction at all, though he claims that he had participated in the transaction. The evidence of CW.1 during his cross- examination makes it very clear that he does not aware as to when the complainant lend the amount to the accused, in which place and in what mode. It is also noticed that even CW.1 is not aware as to what was the rate of interest agreed. Further the evidence of CW.1 also reveals that the complainant has stated as to receipt of profit amount alone and not principle amount from the accused, but the complainant had not revealed as to how much amount she had received from the accused in the form of profit. However one thing is certain that the complainant had received some amount from the accused. But the complainant nowhere disclosed the said fact for the reason best known to her.
19. Further it is also clear from the evidence of CW.1 that the complainant had met the CW.1 in Rehber Financial Consultancy at the first time in 2014 and thereafter only in January or February 2017 for the second time. It is clear from the evidence of CW.1 that except these two times, there was no meeting of the complainant and CW.1. Under these attending circumstances, on going through the evidence of CW.1, it is crystal clear that he is not aware of 15 C.C. No.51832/2017 the real facts and the transaction in question. Therefore on the basis of his evidence it cannot be held that the loan transaction as put up by the complainant is proved.
20. Added to the above aspects, it is also to be noted that during cross-examination CW.1 has specifically stated that " DgÉÆæAiÀÄÄ gÀºÀ§gï ¥Éå£Á¤ìAiÀįï PÀ£ïì¯ÉÖ¤ì¬ÄAzÀ 18,00,000 gÀÆ¥Á¬ÄAiÀÄ£ÀÄß ¸Á®ªÁV ¥ÀqÉzÀÄPÉÆArzÀÄÝ D PÀÄjvÀÄ gÀºÀ§gï ¥Éå£Á¤ìAiÀįï PÀ£ïì¯ÉÖ¤ìAiÀÄ ¥ÀgÀ CVæªÉÄAmï£ÀÄß PÀÆqÀ §gÉzÀÄPÉÆnÖzÁÝgÉ. DgÉÆæAiÀÄ ¨ÉÃgÉ ¨ÉÃgÉ ¢£ÁAPÀUÀ¼ÀAzÀÄ gÀºÀ§gï ¥Éå£Á¤ìAiÀįï PÀ£ïì¯ÉÖ¤ì¬ÄAzÀ MlÄÖ 18,00,000 gÀÆ¥Á¬ÄAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ. ¸ÁQë ¥ÀÅ£ÀB ºÉüÀÄvÁÛgÉ DgÉÆæAiÀÄÄ gÀºÀ§gï ¥Éå£Á¤ìAiÀįï PÀ£ïì¯ÉÖ¤ìAiÀÄ°è ¸Á®zÀ CfðAiÀÄ£ÀÄß ¤ÃrzÀÄÝ gÀºÀ§gï ¥Éå£Á¤ìAiÀįï PÀ£ïì¯ÉÖ¤ìAiÀĪÀgÀÄ ¨ÉÃgÉ ¨ÉÃgÉAiÀĪÀjAzÀ DgÉÆæUÉ MlÄÖ 18,00,000 gÀÆ¥Á¬ÄAiÀÄ£ÀÄß PÉÆr¹zÀÄÝ DgÉÆæAiÀÄÄ D jÃw ºÀt ¥ÀqÉzÀªÀgÀ ¥ÀgÀ CVæªÉÄAl£ÀÄß ¸ÀºÀ §gÉzÀÄPÉÆnÖzÁÝgÉ JAzÀÄ. gÀºÀ§gï ¥Éå£Á¤ìAiÀįï PÀ£ïì¯ÉÖ¤ìAiÀĪÀgÀÄ AiÀiÁªÀ AiÀiÁªÀ ªÀåQÛUÀ½AzÀ J¥Éë¥ÉëÄÖ ºÀtªÀ£ÀÄß DgÉÆæUÉ MzÀV¹PÉÆnÖzÀÝgÀÄ JA§ÄzÀ£ÀÄß £À£ÀVÃUÀ ºÉüÀ¯ÁUÀĪÀÅ¢®è. ¸ÁQë ¸ÀéEZÉѬÄAzÀ ºÉüÀÄvÁÛgÉ CzÀ£ÀÄß zÁR¯Áw £ÉÆÃr ºÉüÀ¨ÉÃPÀÄ." This version of CW.1 reveals that the accused had availed in all Rs.18 lakhs from different persons through Rehber Financial Consultancy and in that regard even the accused had executed agreement in favour of the person who lend the amount and also in favour of the Rehber Financial Consultancy for having taken loan amount. Further it is also clear that the accused had even 16 C.C. No.51832/2017 submitted the loan application to the Rehber Financial Consultancy. This being the fact, CW.1 could have produced the said material documents before the court to substantiate the claim of the complainant. But the complainant has not opted to produce the said material document before the court.
21. Added to the above aspects, it is also noticed from the evidence of CW.1 that there was agreement between the complainant and the accused in connection with the loan transaction and CW.1 himself was the witness for the said document. But the said material document is also not produced before this court. Further it is also noticed from the evidence of CW.1 that in addition to the execution of loan agreement in favour of the complainant, the accused had also executed stock hypothecation agreement for security purpose for which also CW.1 is witness. It is also clear that the said stock hypothecation agreement is with CW.1. But again the said document is also not produced before the court. Therefore on going through the evidence of CW.1, it is clear that the existing material documents relating to the transaction in question are not produced by the complainant. In this angle, as argued by the learned counsel for the accused, adverse inference has to be drawn against the complainant as to her claim. The non- production of available material documents create doubt in 17 C.C. No.51832/2017 the mind of the court and one cannot totally rule out the contention of the accused in toto. It is needless to say when the doubt is created as to the claim of the complainant, the benefit of which goes to the accused. No doubt as argued by the learned counsel for the complainant, in this case the accused had not opted to issue reply to the legal notice and not opted to step into the witness box to substantiate his defence. Further admittedly cheque belonged to the accused and signed by him and the complainant is entitle for statutory presumption U/s.118 and 139 of N.I. Act. But it is pertinent to note that just because the accused had not issued reply to the statutory notice and not stepped into the witness box, the case of the complainant cannot be accepted in toto only on the basis of statutory presumption. When the accused has come up specific contention, the complainant ought to have produced material available documents to substantiate the claim of the complainant. The non- production of available material documents goes to the very root of the claim of the complainant and the claim of the complainant gets clouded with suspicion.
22. Thus for the reason discussed above, this court is of the considered view that though the complainant is entitled for presumptions U/s.139 and 118 of N.I. Act, the same are found to be rebutted by the accused by placing probable defence. Further as discussed, it is found that the 18 C.C. No.51832/2017 complainant has suppressed the real facts and avoided the production of available material documents. Under these attending circumstances, it is very difficult to accept the case of the complainant only on the basis of the presumptions. As already analyzed, the defence put up by the accused cannot be totally brushed aside. In the relied ruling of our Hon'ble High Court reported in 2013 (1) DCR 326 - (Nandini Agro Fertilizers Vs D. Satish) it was held that "If there are circumstances to prove the probable defence, that itself is sufficient to dismiss the complaint". Hence considering all these aspects, this court is of the considered view that the case of the complainant is surrounded with suspicion and has not come to the court with clean hand. Therefore the complainant has failed to prove the commission of the offence punishable U/s.138 of N.I. Act as against the accused and so also issuance of cheque in question towards discharge of whole or any part of debt/liability as put up by her. Therefore, Point Nos.1 and 2 are required to be answered in negative. It is needless to say that when the complainant has failed to prove Point Nos.1 & 2 in his favour as contended, it goes without saying that she is not entitled for any relief as sought for in this case. Therefore Point Nos.1 to 3 are required to be answered in negative and answered accordingly.
19 C.C. No.51832/201723. Point No.4: For the reasons discussed in connection with Point Nos.1 & 2 this court proceed to pass the following....
ORDER Acting under Section 255(1) of Cr.PC accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused stands
cancelled. The cash security of Rs.3,000/-
is deposited by the accused is ordered to be refunded in his favour in accordance with law, if refund voucher is furnished.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 19th day of November, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 20 C.C. No.51832/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Raashid Sherif
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Special Power of Attorney
Ex.P2 : Cheque
Ex.P3 : Bank endorsement
Ex.P4 : Legal Notice
Ex.P5 : Postal receipt (two nos.)
Ex.P6 : Postal acknowledgement
Ex.P7 : Returned RPAD cover
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU