Bangalore District Court
Smt.Tabasum vs Sri. Kaleemulla on 14 March, 2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY.
Dated this the 14th day of March , 2017,
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No.13155/2015
Complainant : : Smt.Tabasum
W/o Mohammed,
House Wife,
Aged about 38 years,
R/at No.442, 2nd Cross,
Munikalappa Garden,
Kammanahalli Main Road,
Bangalore-560033.
(By H.R. Krishna & H.C. Krishna, Advs.)
V/s.
Accused : Sri. Kaleemulla,
S/o Noor Khan,
Occupation: Business,
Residing at No.758,
Bharth Nagar,
Thanisandra,
Bangalore-560077.
(By Sri.P.R.Bhat and Associates, Adv.)
Date of Institution : 21-05-2015.
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Accused is pleaded not guilty.
Final Order : Accused is Convicted.
Date of Order : 14.03.2017.
2 C.C.No.13155/2015
The complainant filed the private complaint u/s 200 of
Cr.P.C alleging that, the accused person has committed an
offence punishable u/S 138 of the N.I.Act.
REASONS
The brief facts of the complainant case is as follows:-
2. Both the complainant and accused are known to each
other last 4-5 years. The accused introduced to this
complainant through her husband one Mr.Sattar, the accused
and complainant had become very close friendship and on 2nd
week of December 2013 the accused approached the
complainant for financial help of Rs.3,00,000/- as hand loan
for immediate requirement of his sister marriage. As per the
assurance of the accused had obtain the said amount by way of
cash on 15.12.2013 and the accused had assured that the
amount will be repaid within one year. After lapse of one year
the complainant approached and demanded the accused for
refund of amount in the last week of December 2014. The
accused evaded on one or the other reasons. On 12.01.2015
after strong demand for repayment of the said amount the
accused issued a post dated cheque bearing No.032392 dated
26.03.2015 for Rs.3,00,000/- drawn on ICICI Bank, Jayanagar
3 C.C.No.13155/2015
branch, Bangalore. As per the assurance of accused the
complainant presented the said cheque through Corporation
Bank, Banasawadi Branch, Bangalore. But the said cheque
returned unpaid with endorsement "Insufficient Funds" on
28.03.2015. The complainant got issued legal notice to the
accused on 13.04.2015 the notice sent through RPAD was duly
served to the accused but inspite of receipt of notice the
accused did not replied or complied the notice and thus the
accused had committed an offence punishable under Section
138 of Negotiable Instruments Act and punish the accused in
accordance with law and award compensation under Section
357 of Cr.P.C. in the ends of justice.
3. The accused had appeared contest this case by
denying the entire case of the complainant at the time of
recording plea of accusation. In support of the case of
complainant examined as PW.1 got marked Ex.P1 to Ex.P5 and
this PW.1 has been fully cross examining by the accused
counsel and thus the complainant closed her side evidence.
4. There afterwards the accused person examined under
Section 313 Cr.P.C. statement in which he totally denied the
entire case of complainant in support of the denial lead his side
defense evidence as DW.1 filed by way of affidavit and got
4 C.C.No.13155/2015
marked Ex.D1 and this DW.1 has been fully cross examining
by the complainant counsel and thus the accused closed his
side evidence.
5. Before addressing argument on merit upon the
application filed by the advocate for accused under Section 45
of Indian Evidence Act for comparison of the contents of Ex.P1
cheque and signature along with admitted contents signature
of the accused. After contest this Court was allowed
application and appointed the FSL Authority for their
investigation and submit report. Accordingly the Truth Labs
Forensic services Bangalore has been appointed out and send
the required documents for their investigation. But on
07.09.2016 they have sent a letter stating that natural
variation and disguise can not be ascertained etc,. Hence once
again this Court send few more old admitted signatures and
writings of the accused on their request. There afterwards the
said FSL authority without the investigation sent back entire
documents stating that they could not able to give their report
since their authority is in busy etc. Hence the advocate for the
accused has not taken further steps for comparison of the
contents of Ex.P1 cheque and signature of the accused.
5 C.C.No.13155/2015
6. I have heard the arguments of complainant counsel on
merit.
7. In support of the case of the accused the learned
counsel for the accused submitted written argument in
Kannada and relying on the one decision reported in 2014(3)
DCR 760 and thus the accused counsel prays for acquittal of
the accused.
8. In order to prove the case of complainant the
complainant filed affidavit by way of chief examination as PW.1
in which she reiterated the complaint contention got marked
Ex.P1 cheque and identified signature of the accused as
Ex.P1a. This cheque has been admitted by the accused same
is belongs to him. But the same was not given to the complaint
but to husband of complainant as security towards loan
amount borrowed from the complainant husband etc,. Ex.P2 is
the endorsement issued by the bankers stating that Ex.P1
cheque was dishonored due to Insufficient Funds. Ex.P3 is the
copy of the legal notice this notice does not contain the
signature of the complainant except her counsel. Ex.P4 is the
RPAD postal receipt for having sent the legal notice to the
accused. Ex.P5 is the postal acknowledgment to show the legal
notice sent to the accused duly served but he did not choosed
6 C.C.No.13155/2015
to replied or complied the notice and thus advocate for
complainant argued that the complainant had fulfilled all the
ingredients of the offence punishable under Section 138 of
Negotiable Instruments Act and hence he prays for convict the
accused in accordance with law.
9. The accused has denied the entire case of complainant
in support of his denial he filed affidavit in lieu of chief
examination as DW.1. In which he has stated that complaint is
a stranger and he has not borrowed any amount from the
complainant. After receipt of legal notice as per Ex.p3 there
was a panchayat held at that time he has seen the complainant
at the 1st time. His parents have four male children and no
female children for that got marked Ex.D1 is the family tree by
way of affidavit. Further stated that during the January 2013
you obtained hand loan of Rs.1,25,000/- from one Mohammed
with a condition to pay 5% monthly interest at that time as per
the demand of said Mohammed he given one blank signed
cheque one blank signed bond paper and one on demand
promissory note was filled in the amount column only
Rs.1,25,000/- and remaining columns were left blank and also
in original GPA pertaining to his side given to him as security.
He repaid the said loan amount up to date interest to him and
7 C.C.No.13155/2015
he demanded further sum of Rs.20,000/- and he refused to pay
the same but he handed over the Ex.P1 cheque to his wife and
got it filled up the cheque and filed this case and he has not
committed an offence as alleged by the complainant. In
support of the case of accused the accused neither examined
said Mohammed not to produce any other corroborative
evidence to support his defense. In the cross examination of
DW.1 he admitted that the husband of complainant is his
friend but he did not know the complainant is his wife and he
repaid the amount borrowed from the complainant husband in
the 4th month of 2015 with interest and after repayment of the
said amount he asked the return his security documents but
he did not return the same. But he admitted that Ex.P1
cheque in signature found on the cheque belongs to the
accused. For misusing of Ex.P1 cheque has not taken any
action against the complainant or her husband. As per the
defence taken by the accused the accused counsel cross
examining the PW.1 in which she denied the contention of
accused and the amount given to the accused she drawn the
amount from the bank and she denied that she is not at all
paid any amount to the accused and also she did not know
which hall sister of accused marriage was taken place but she
is also received the marriage invitation card but she has not
8 C.C.No.13155/2015
produced the same and she denied that the contents of Ex.P1
cheque is not belongs to the accused and also denied that the
accused not at all obtained any amount and also denied that
there was a panchayat taken after issuance of demand notice
in the panchayat she agreed to return the security documents
to the accused but she did not return the same. Except total
denial of the case of complainant the accused failed to given
rebuttal evidence to the case of complainant by producing
cogent and convincing evidence before this Court. As such
what ever the written argument submitted by the advocate for
accused and the ruling relied by the accused counsel in
2014(3) DCR 760 (Vijaya Kundanlal Sharma V/s Satyawan
Bhikaji Jadhav and Another) in which at Bombay High Court
held that " Liability to repay unaccounted cash amount is not
legally enforceable liability with the meaning of explanation to
Section 138 of N.I. Act-No interference-Acquittal is justified".
But in this case as per the defence taken by the accused has
not given corroborative evidence but he admitted that Ex.P1
cheque and the signature found on the cheque is belongs to the
accused, but the complainant has not produced the sources of
income to her but has admitted by the accused he obtained
loan amount of Rs.1,25,000/- with interest at the rate of 5%
from the complainant husband, itself is goes to shows that the
9 C.C.No.13155/2015
accused is liable to pay the cheque amount in question to the
complainant in accordance with law. Accordingly I proceed to
pass the following.
ORDER
The complaint u/s. 200 Cr.P.C., filed by the complainant is hereby allowed.
The accused is convicted for the offence punishable u/s.138 of NI Act.
The accused is sentenced to pay a fine of Rs.3,05,000/-. Out of the said fine amount, the complainant is entitled to an amount of Rs.3,00,000/- i.e. the cheque amount in question has been awarded as compensation to the complainant and the remaining amount of Rs.5,000/- is ordered to adjusted to the State Exchequer in the same shall be paid by the accused to the complainant within a period of 30 days from the date of this order. Failing which, the accused persons shall undergo Simple Imprisonment for a period of one year.
Supply free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 14th day of March, 2017) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
10 C.C.No.13155/2015ANNEXURE Witnesses examined for the Complainant:
PW.1 : Smt. Tabasum Witness examined for the accused:
DW.1 Kaleemulla Khan List of Documents marked for the Complainant:
Ex.P1 : Cheque Ex.P1a : Signature of the accused Ex.P2 : Bank Endorsement Ex.P3 : Copy of the Legal notice Ex.P4 : Postal Receipt Ex.P5 : RPAD Postal Acknowledgment
List of Documents marked for the accused:
Ex.D1 : G. Tree
XXII ACMM, Bangalore.