Bangalore District Court
Smt. Geetha D vs Smt. Azra Sakina Khan @ Azra Khan on 19 May, 2018
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 19th day of May, 2018
PRESENT: SRI MADHVESH DABER,
B.COM., L.L.B(SPL).,
XIX ADDL.C.M.M., BENGALURU.
Case No: C.C.No.1540/2015
Complainant: Smt. Geetha D
W/o. R. Thyagaraj,
Aged about 43 years,
R/at No.608, 15th Cross,
15th 'A' Main, 4th Sector,
H.S.R. layout,
Bengaluru - 560 102.
Accused: Smt. Azra Sakina Khan @ Azra Khan,
D/o.Syed Ghainuddin Shasha,
Aged about 45 years
Flat No.204, 1st Floor,
Rosary Apartments, St. Johns Road,
Bengaluru - 560 051.
Also at:
No.57, 1st Floor,
Narayan Pillai Street,
Off. Commercial Street,
Bengaluru - 560 001.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 19th May 2018
2 C.C.No.1540/2015
JUDGEMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s.138 of N.I.Act.
2. The brief facts of the complaint are that;
The Complainant contends that the Accused has availed a sum of Rs.95,00,000/- from Complainant, promising her to secure a property for her at No.197, Unity Nagar, 11th Main Cross, Rachenahalli Nagar, Anjanadri Layout, KEB Colony, S.R.K. Post, Bengaluru. It is contended that in order to own possess her own property the Complainant believing the words of the Accused, paid the amount of Rs.95,00,000/- to the Accused. But the Accused went on postponing the matter on one or the other ground. She did not transfer the property in the name of Complainant nor returned an amount of Rs.95,00,000/- to the Complainant. So the Complainant has serious apprehension that the Accused would cheat her. It is further contended that the Accused executed a receipt for having received a sum of Rs.95,00,000/- and the said receipt was executed on 19.6.2012. 3 C.C.No.1540/2015 On repeated requests the Accused in order to discharge the said amount, issued following cheques in favour of the Complainant
i) Cheque bearing No.350487 dtd.5.12.2013 drawn on ICICI Bank Ltd., Bengaluru Contonment branch, Bengaluru for Rs.60,00,000/-
ii) Cheque bearing No.003781 dtd.12.12.2013 drawn on Bank of Baroda, Brigade Road, Bengaluru for Rs.20,00,000/-
iii) Cheque bearing No.003782 dtd.12.12.2013 drawn on Bank of Baroda, Brigade Road, Bengaluru for Rs.15,00,000/-
3. So in order to repay the amount of Rs.95,00,000/- the Accused has issued these there cheques. But on presentation the above said cheques have been returned dishonoured to the Complainant with endorsement that "funds insufficient" and "account blocked". Thereafter the Complainant got issued a notice dtd.23.12.2013 through her advocate, calling upon the Accused to make payment of the cheques amount. But the said notices have not been received by the Accused. So Complainant after having complied all the legal formalities, filed this complaint against the Accused.
4 C.C.No.1540/2015
4. Soon after filing of the complaint, cognizance of the offence was taken. Matter was registered as P.C. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case. Summons was issued as against the accused. The accused appeared through her Counsel and she was enlarged on bail. Substance of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
5. The complainant got examined herself as PW1 and she got produced 13 documents Ex.P1 to Ex.P13 and closed her side.
6. After closure of the complainant side evidence, Statement of the accused u/Sec.313 of Cr.P.C. was recorded. The accused denied the incriminating evidence in toto and chosen to lead her defence evidence. The Accused got examined herself as DW1 and 12 documents Ex.D1 to Ex.D12 were marked from her side.
7. Arguments heard. I have perused the entire records. 5 C.C.No.1540/2015
8. Now, the points that arise for my consideration are as under:
i) Whether the Complainant proves that the accused in discharge of legally enforceable debt, issued 3 cheques for total sum of Rs.95,00,000/- which on presentation came to be dishonoured and she has failed to honour the notice and not paid the amount and thereby, committed offence u/Sec.138 of N.I. Act?
ii) What order?
9. My findings to the above points for consideration are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
:R E A S O N S:
10. Point No.1 :- In order to prove her case, the Complainant namely Smt. Geetha D entered into the witness- box and filed an affidavit in lieu of examination-in-chief and reiterated the complaint averments and got examined herself as PW-1 and also got marked documents Ex.P1 to Ex.P13. Per contra, the Accused got examined herself as DW1 and 12 documents Ex.D1 to Ex.D12 marked from her end. 6 C.C.No.1540/2015
11. During arguments the learned Counsel for the Complainant vehemently contended that the Accused has received Rs.95,00,000/- from the Complainant by assuring that she would provide a house property bearing No.197 situated at Anjanadri Layout, Bengaluru. But she could not get the property in favour of the Complainant. Hence, in order to repay the said amount of Rs.95,00,000/-,the Accused issued 3 cheques which on presentation came to be dishonoured for the reason "funds insufficient" and "Account Blocked". Hence, after complying all the legal formalities, the Complainant has filed this complaint. It is contended that Ex.P.10 is an important document which is executed by Accused for having received Rs.95,00,000/-. It is contended that the cheque and signature of Accused on the cheques are not disputed. As per the contention of the Accused, she had taken only Rs.5,00,000/- and repayment was also made. But in order to prove the same, the Accused has not led cogent and convincing evidence. She has not rebutted the presumption u/Sec.139 of N.I. Act. No defence is set up.
7 C.C.No.1540/2015
12. It is not clear as to why the Accused kept quiet till Complainant got issued a notice. Moreover, the Accused has not put forth acceptable defence to substantiate her defence. If at all a signature over Ex.P.10 was forged, the Accused could have issued notice to the Complainant. In this regard no convincing evidence is led. Moreover, Accused has signed in different manner each time. She has put signatures deliberately to cause loss to the Complainant. So the learned Counsel for the Complainant prayed to compare all the documents and draw an adverse inference against the Accused. With regard to the notice Ex.P.7 is concerned, the notice was issued to the correct address of the Accused. There was due service on the Accused. The learned Counsel for the Complainant submitted that there is no substance in the contention of the Accused that the notice was not duly served. So the learned Counsel for the Complainant prayed to convict the Accused.
13. Per contra, the learned Counsel for the Accused submitted that the entire transaction is in civil nature. So the provisions of Sec.138 of N.I. Act are not at all applicable. There is 8 C.C.No.1540/2015 no pleading as to on what date Rs.95,00,000/- was paid. In this regard, no document is produced. No witnesses are examined. The evidence of Complainant is full of infirmities and it does not inspire confidence in the case of the Complainant. Moreover, agreement of sale is not produced. Source of income is disputed. Source of income is not pleaded. It is not the case of the Complainant that she gathered money of Rs.95,00,000/- from her brother and paid to the Accused. In fact the Complainant has not visited the property. She has not verified it. No enquiry was made about its owner etc. So the learned Counsel for the Accused contended that no prudent man would do it. Why she has not given not to the Accused to execute the registered sale deed. It is not clear why the money was not given through cheque/DD and why it was paid through cash. Moreover, nobody would keep such a huge amount of Rs.95,00,000/- in house.
14. It is further argued that the Complainant has not explained as to why she had kept so much of money in the house. Moreover, when she had no money with her, there was no occasion for her to obtain money form her brother so as to give it 9 C.C.No.1540/2015 to Accused. Similarly, it is contended that the signature on cheque is in different ink and other contents are in different ink. The agreement Ex.P.10 is not executed on valid stamp paper. It is not executed in time. The stamp was purchased somewhere else other than where the parties were residing. The signatures over Ex.P.10 differ from each other. The style, font size, date, alphabets and pen pressure are different. Moreover, in the Income Tax Returns her income is shown as only Rs.3-4 lakhs per annum. It is doubtful how could she gather Rs.95,00,000/- to pay it to the Accused. There is no reference in the Income Tax Returns about payment of Rs.95,00,000/- to Accused. There is no reflect of payment of Rs.95,00,000/-in Ex.P.12. Moreover, auditor is not examined. The notice is not served upon the Accused. PW1 admits in the cross-examination that the notice was not served upon the Accused.
15. So the learned Counsel for the Accused contended that there are so many infirmities in the evidence of Complainant which render her case doubtful. The Accused by leading defence evidence and by producing the documentary evidence, rebutted 10 C.C.No.1540/2015 the presumption u/Sec.139 of N.I. Act. Hence, learned Counsel for the Accused prayed to acquit the Accused. In support of his arguments, he has relied upon the following rulings;
i) 2012 (2) AIR Kar.R. 649 T.T. Naveen Kumar
V/s. B. Somegowda
ii) 2014(2) SCC 236 John K. Abraham V/s. Simon
C. Abraham & another
iii) 2015 (1) SCC 99 2015 K. Subramani Vs. K.
Damodara Naidu
iv) LAWS (BOM) 2009 9 25 Priya Bhobe V/s. Speer
Finance Pvt. Ltd.
16. I have carefully gone through the principles of above rulings relied upon by the learned Counsel for the Accused. Keeping in mind the principles of above rulings, I have examined the evidence on record.
17. It is trite principles of law that the presumption u/Sec.139 of N.I. Act is initially in favour of the Complainant that the cheque was issued for discharge of a legally recoverable debt or liability. However, the said presumption is rebuttable 11 C.C.No.1540/2015 presumption. The Accused has to rebut the said presumption by taking a probable defence. The presumption can be rebutted even by eliciting facts from the cross-examination of PW1 or by leading defence evidence. For that Accused need not enter into the witness-box. Even the question of legally recoverable debt or liability can also be contested. Whether the presumption is rebutted or not? depends on facts and circumstances of each case. This principle is laid down by Hon'ble Supreme Court in AIR 2010 SC 1898 Rangappa V/s. V. Mohan. In the light of above principles of law now I have to see whether the presumption is rebutted or not? and Complainant has proved his case or not?
18. On appreciation of entire oral and documentary evidence on record, it transpires that the Complainant has contended that she was intending to purchase a property. The Accused approached her for getting a property for her and received a sum of Rs.95,00,000/- from the Complainant. So also she has executed a Receipt for having received Rs.95,00,000/-. But she could not get the property for the Complainant. Hence, for repayment of Rs.95,00,000/- she issued three cheques Ex.P.1 12 C.C.No.1540/2015 to Ex.P.3 which on presentation came to be dishonoured for the reason "funds insufficient" and "account blocked". Hence, after exhausting all legal remedies, the Complainant has filed this complaint against the Accused.
19. The defence of the Accused is posed in cross- examination of PW1 and same has been stated by Accused in her evidence, who has been examined as DW1. The sum and substance of the defence of the Accused is that no transaction has taken place in between Complainant and Accused as alleged by the Complainant. It is contended that she has not at all assured the Complainant of getting a house property for Rs.95,00,000/-. In fact the Complainant is stranger to her. She has not at all issued any cheque as alleged in the complaint.
20. It is the specific case of the Accused that the Complainant has filed a false case against her with a malafide intention in order to enrich herself by misusing the cheque issued to the husband of the Complainant Sri R. Thyagaraj as a security transaction for the loan transaction for Rs.5,00,000/- which had taken place in May 2010. It is the case of the Accused 13 C.C.No.1540/2015 that the husband of the Complainant collected 6 blank cheques and pro-notes for collateral purpose. Husband of the Complainant paid Rs.5,00,000/- on the understanding that the said amount shall be repaid within 24 months @ 21,000/- per month. Though the Accused paid back entire amount of Rs.5,00,000/- with interest, but inspite of repeated requests and demands, the husband of the Complainant has not returned the blank cheques issued by Accused as collateral security. The Complainant and her husband went on postponing returning of the said cheques on one or the other ground. In this regard she issued a Legal Notice on 2.12.2013 which was not served upon the Complainant.
21. It is also alleged that in April 2012 husband of the Complainant broken glasses of saloon of the Accused and in this regard, a complaint was lodged to the Commercial Street Police Station. Further another complaint came to be lodged on 5.12.2013 in the same police station bearing NCR No.264/2013 seeking repayment of the said cheques. It is also contended that the Accused has lodged a complaint against the husband of 14 C.C.No.1540/2015 Complainant on 12.12.2013. So it is the sum and substance of the contention of the Accused that there was transaction for Rs.5,00,000/- only and in this regard the Complainant and her husband had received 6 cheques which were misused by both the Complainant and her husband and got filed a false complaint against the Accused.
22. In fact the evidence of the Accused is supported by the documents Ex.D1 to Ex.D12. On perusal of Ex.D3 it reveals that the same has been issued by the Sub-Inspector, Commercial Street, Police Station in respect of the complaint lodged by the Accused against the husband of Complainant on 5.12.2013 alleging he had not returned the cheques. Further in the complaint annexed with Ex.D3, dtd.5.12.2013 it is clearly mentioned that the husband of the Accused has retained her cheques with him and he was not returning them. Further Ex.D4 is the complaint dtd.12.12.2013 lodged by Accused against Sri Thyagaraj Reddy alleging that he had retained 6 cheques along with him even though the Accused had repaid entire amount of Rs.5,00,000/- which was taken by her. In the said complaint it is 15 C.C.No.1540/2015 clearly mentioned that two blank cheques, the details of which she has forgotten were also taken by the husband of the Complainant. That apart, Ex.D6 and Ex.D7 (a) are same documents. In the said documents also there is reference of cheque misused by the husband of the Complainant. The postal receipts for having sent the notice to Thyagaraj as per Ex.D6, are produced at Ex.D6(a) and Ex.D6(b). Ex.D8 is the order sheet in PC No.532/98 filed by Accused against Thyagaraj Reddy. In the said order sheet the proceedings up to 15.7.2015 are mentioned. The said case was got registered on the basis of complaint lodged by Accused against Thyagaraj as per Ex.D9. The Ex.D9 is the complaint lodged by the Accused against Thyagaraj in the 11th ACMM wherein she has clearly made reference of misuse of cheque of ICICI Bank and also two other banks details of which the Complainant has forgotten, which clearly goes to show that she was making reference of the cheques of the present case which belong to Bank of Baroda. So looking from all these documents it is abundantly clear that rebuttal of the presumption u/Sec.139 of N.I. Act has taken place. Further the 16 C.C.No.1540/2015 Accused has produced the bank statement as per Ex.D11 in support of her case.
23. It is pertinent to note that the Complainant has produced hand loan agreement in support of her case to show that after receiving Rs.95,00,000/- the Accused has executed the said hand loan agreement in the year 2012. However, on perusal of said hand loan agreement as per Ex.P.10, it goes to show that the said stamp paper for hand loan agreement was purchased on 22.3.2010. Here it is to be noticed that if at all the Accused had executed the hand loan agreement in the year 2012 as per Ex.P.10, there was no occasion for the Complainant to purchase the same in the year 2010. So the mentioning of date of 22.3.2010 on the Ex.P.10 and the execution date being 19.6.2012, it creates doubt regarding the genuineness of Ex.P.10. So I am of the opinion that Ex.P.10 cannot be solely believed to hold that the Complainant had given a loan of Rs.95,00,000/-.
24. It is true that the Complainant has produced the Income Tax Returns as per Ex.P.11 to Ex.P.13. But simply on the basis of those documents, it cannot be stated that the Complainant has 17 C.C.No.1540/2015 proved her case beyond reasonable doubt. Because standard of proof required for Complainant is proof beyond reasonable doubt. On the other hand, standard of proof required for Accused is preponderance of probabilities. It is enough for the Accused to show before this court that her case is probable, whereas the Complainant has to prove her case beyond reasonable doubt. So merely on the basis of production of ITR it cannot be said that the Complainant has proved her case beyond reasonable doubt.
25. Moreover, on perusal of Income Tax Returns it goes to show that Ex.P.11 to Ex.P.13 are pertaining to three different assessment years. It is usual practice that the return for an assessment would be filed immediately after expiry of assessment year. But here the ITR from 2013-16 were filed on different dates within span of 9-10 days. On perusal of Ex.P.11 to Ex.P.13 it transpires that they were filed on 9.5.2016 and 17.5.2016. The income of the Complainant for those years is ranging from 2-4 lakhs. Filing of returns within the span of 9-10 days and the annual income of Complainant being 2 - 4 lakhs is admitted by 18 C.C.No.1540/2015 Complainant in her cross-examination. So such being the facts how could it be believed the Complainant would lend an amount of Rs.95,00,000/- to Accused. So the case of the Complainant based on Ex.P.10 and Ex.P.13 cannot be solely believed to hold that the Complainant has proved her case beyond reasonable doubt.
26. It is true that the police complaint filed by Accused have been filed after the cheques were presented for encashment. But under present circumstances, that itself is not a ground to hold that the entire case put forth by Accused is improbable. On the said basis it cannot be held that the Complainant's case is true. On the other hand, as per the case of the Accused Thyagaraj had given hand loan of Rs.5,00,000/- in 2010. Ex.P.10 stamp paper was also purchased in 2010. So it probabalises the case of the Accused that the stamp paper Ex.P.10 was given to husband of Complainant in 2010. Except minor contradictions there are no compelling reason to discard the valuable evidence given by Accused. No admission was extracted from the mouth of DW1 to be favourable to the Complainant. So I am of the 19 C.C.No.1540/2015 opinion that the presumption u/Sec.139 of N.I. Act stood rebutted.
27. Now the onus shifts upon the Complainant to prove his case beyond reasonable doubt. Admittedly, Rs.95,00,000/- is a big amount. No one would lend such a huge amount without there being any document in support of the same. If the transaction had taken place exactly on 19.6.2012, the loan agreement Ex.P.10 ought to have been executed on the same day or on a subsequent short date. But stamp paper Ex.P.10 is of the year 2010 which strongly creates doubt in the case of the Complainant. No witness is examined in support of the transaction. It is the allegation of the Complainant that he paid the amount to the Accused since she wanted to purchase a property through her. But she has not verified the antecedents, title and other details of the said property.
28. It is to be noticed that a big amount was allegedly paid to the Accused. If that is so she could have insisted upon the Accused to get executed the Sale Deed. She could have issued a notice to the Accused to execute Sale Deed. So this circumstance 20 C.C.No.1540/2015 also creates doubt in the version of Complainant. Moreover, in the complaint, notice and evidence she has stated as if she herself gave an amount of Rs.95,00,000/- to the Accused. But for the first time in the cross-examination she has stated that she brought that amount from her elder brother that too without pleading it, which cannot be believed.
29. Moreover, the amount of Rs.95,00,000/- being huge amount, the same should have been transferred either by cheque or DD. Moreover, nobody would keep such a huge amount in the house without there being any occasion. Here the Complainant has not stated as to for what reason she kept such a huge amount in cash with her. Moreover, she improved her version by stating that she brought the said amount from her brother which is also contradictory statement creating doubt in the case of the Complainant. So all these circumstances go to show that the case of the Complainant is unbelievable and unacceptable one. Added to this the Complainant admitted that there is difference of ink in the contents of cheques Ex.P.1 to Ex.P.3. That apart she herself admits that notice as per Ex.P.7 was not served upon the 21 C.C.No.1540/2015 Accused. So the ingredients of Sec.138 of N.I. Act are not proved. Considering all these aspects, I am of the opinion that the Complainant has failed to prove her case beyond reasonable doubt.
30. Though the Complainant has produced Ex.P.11 to Ex.P.13 to show that there is reference in them about the payment of Rs.95,00,000/- to Accused, but in the cross-examination Complainant herself admits that there is no reference of payment of Rs.95,00,000/- in Ex.P.11 to Ex.P.13. She also admits that those documents were prepared by auditor as per her instruction. So these circumstances create doubt even with regard to genuineness of Ex.P.11 to Ex.P.13 which are Income Tax Returns. So these documents cannot be said to be supportive to the case of the Complainant. They are doubtful documents and cannot be solely believed to be supportive to the case of the Complainant.
31. Lastly, but not least it is rightly argued by the learned Counsel for the Accused that the transaction between Complainant and Accused is civil in nature. So it is rightly argued that the cheques were not issued for legally recoverable 22 C.C.No.1540/2015 debt. So looking from any angle the Complainant has failed to prove her case beyond reasonable doubt. So I am of the opinion that the cheques Ex.P.1 to Ex.P.3 were not issued for discharge of legally recoverable debt or liability. They are not issued for the amount mentioned therein. Hence, Accused is entitled for benefit of doubt. Accordingly, I answer point No.1 in the Negative.
32. Point No.2:- In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (1) of Cr.P.C., the accused is hereby acquitted of the offence punishable u/Sec.138 of N.I. Act.
The bail bond and surety bonds of the accused stand cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 19th day of May, 2018) (MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru. 23 C.C.No.1540/2015 ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1 Smt. Geetha D Witnesses examined on behalf of the Accused: D.W.1 Sri Azra Sakina Khan Documents marked on behalf of the Complainant:
Ex.P.1 to Ex.P.3 Cheques Ex.P.1(a) to Ex.P.3(a) Signature of the Accused Ex.P.4 to Ex.P.6 Bank endorsements Ex.P.7 Copy of the legal notice Ex.P.7(a) & Ex.P.7(b) Postal receipts Ex.P.8 & Ex.P.9 Unserved Postal Cover Ex.P.8(a) & Ex.P.9(a) Notices kept in the cover Ex.P.10 Hand loan Agreement Ex.P.11 to Ex.P.13 Income Tax Returns Documents marked on behalf of the Accused:
Ex.D.1 Legal Notice
Ex.D.2 Unserved postal cover
Ex.D.2(a) Notice kept in the cover
Ex.D.3 Endorsement issued by the police
Ex.D.4 Copy of complaint
Ex.D.5 Postal Acknowledgement Due Card
Ex.D.6 Legal Notice
Ex.D.6(a) & Ex.D6(b) Postal receipts
Ex.D.7 Unserved postal cover
Ex.D.7(a) Notice kept in the cover
Ex.D.8 Certified Copy of Order sheet in PCR
No.53298/2013
Ex.D.9 Certified Copy of Complaint in PCR 53298/2013
Ex.D.10 Certified Copy of Order Sheet in PCR
No.53298/2013
Ex.D.11 & Ex.D.12 Bank statements
XIX ADDL.C.M.M., Bengaluru.
24 C.C.No.1540/2015