Bangalore District Court
Mrs. Asma vs Mr. P. Abdul Wahid on 23 November, 2022
KABC0C0212252019
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA L, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 23RD DAY OF NOVEMBER, 2022.
C.C.NO.55873/2019
COMPLAINANT : Mrs. Asma
W/oMohammed Sameer
Aged about 34 years
Residing at No.157, near total Gas
Bunk, Venkateshapuram,
Bengaluru5600045.
Vs.
ACCUSED : Mr. P. Abdul Wahid
S/o P. Abdul Azees
Aged about 42 years,
Residing at No.26, 9th cross,
Anwer Layout, K.G.Halli,
Bangalore560045.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.55873/2019
2. The factual matrix of the case are as follows: The complainant averred that, the accused and wife of the accused are her family friends well known to each other, from longtime, have both requested for hand loan by saying that, brotherinlaw of accused is a land developer engaged in land dealings with an assurance to pay good returns as monthly profits on it, accordingly, she paid sum of Rs.6,40,000/ to the accused, out of her savings amount and chit amount at different intervals, on it receipt, the accused acknowledged it in an accounts note book as a hand loan, but, after receipt of it, accused failed to keep his promises and failed repay an amount paid by her or assured profits, accordingly, she demanded the accused to pay back her amount, accordingly the accused towards discharge of the loan amount had issued cheque bearing No.211267 dated 14.06.2019 drawn Union Bank of India cantonment branch for sum of Rs.6,40,000/ in her favour with an assurance that, cheque would be honored, on it presentation.
3. Further, the complainant claims to have presented the cheque for encashment as per the instruction of the accused, but, it came to be dishonored for "Insufficient 3 C.C.No.55873/2019 Funds" vide memo dated 15.06.2019 issued by her banker Bank of Baroda, immediately, she approached K.G. Halli Police, but, they issued NCR, accordingly, she claims to have issued a demand notice to accused on 28.06.2017 by RPAD, but, it came to be returned as unserved for insufficient address/not known on 04.07.2019, however, it is deemed to have been served, but, inspite of service of legal notice the accused failed pay cheque amount, the accused failed pay cheque amount, accordingly, the complainant prays to punish the accused in accordance with law and to award compensation double the cheque amount.
4. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offense punishable under Sec.138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the o/p/u/s. 138 of N.I. Act.
5. In pursuance of summons, the accused appeared through his counsel, he was enlarged on court bail, further, substance of plea was recorded, the accused 4 C.C.No.55873/2019 pleaded not guilty and he claimed to be tried, the complainant in order to prove his case got examined herself as P.W.1 and placed reliance on Ex.P1 to P4. Upon closure of complainant side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused denied the incriminating materials on record, and got examined himself DW1.
6. Heard the counsel for the complainant, on the other hand inspite of sufficient opportunity given for defence arguments, neither the accused nor his counsel represented, hence defence arguments was taken as nil.
7. Perused the materials on record, the following points arise for my determination.
Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
What Order?
8. My findings to the above points are follows;
Point No1: In the Affirmative.
5C.C.No.55873/2019 Point No.2: As per final order for forgoing;
REASONS
9. POINT No:1: The accused denied the alleged borrowal of Rs.6,40,000/ from the complainant at different intervals as well as issuance of cheque bearing No.211267 dated 14.06.2019 for sum of Rs.6,40,000/ infavour of complainant and also service of demand notice, that apart, the accused claimed that, the complainant is stranger to him, so, the burden is on the complainant to prove the financial transaction as well as issuance of cheque towards of discharge of legally enforcible debt and compliance of Sec.138(a) to (c) of N.I Act.
10. The complainant in order to prove her case got herself examined as PW1 reiterated the complainant averments in her examination chief affidavit that, accused is her family friend had assured her to pay profits on the amount of Rs.6,40,000/, accordingly, as per the assurance she claims to have paid sum of Rs.6,40,000/ as a hand loan to the accused, in turn, the accused has acknowledge the receipt in a accounts note book, but, the accused not kept up his promises, however, issued Ex.P1 6 C.C.No.55873/2019 cheque for sum of Rs.6,40,000/, but, on it presentation, it came to be dishonored as per Ex.P2 for "funds insufficient" on 15.06.2019, immediately, she and her mother lodged complaint against the accused before K.G.Halli Police, but, the Police have issued NCR to her, accordingly, she claims to have caused demand notice on 28.06.2019 the accused, but, it came to be returned with a shara insufficient address/not known, however, she claimed that, it is deemed service, hence this complaint.
11. Per contra, the accused subjected the PW1 for cross examination, firstly, he denied the service of demand notice, on the ground that, he resides in Door No.7 Gandhi Nagar, K.G.Halli, but, the complainant had sent demand notice to wrong address which was not of his address, therefore, complainant has not complied Sec.138(b) of N.I Act, but, on careful perusal of the materials on record, Ex.P4 sent to the address i.e., Door No.26 9th Cross Anwer Layout K.G.Halli, Bangalore, as per Ex.P4 the notice returned unserved with a shara insufficient address/not known, however, the accused has not produced any document to show that his residential address as stated in his examination chief affidavit, 7 C.C.No.55873/2019 accused has appeared to the court in pursuance of service of summons issued to very same address mentioned in Ex.P4, the court summons also got returned with a shara "left", immediately, the accused voluntarily appeared before the court by getting advancing the case on 26.02.2020, therefore, the legal notice sent to correct and proper address of the accused, more so, the accused not brought out any materials to show that, the address mentioned in examination chief as his permanent address, so, in absence of any contrary document with regard to his permanent resident, the contention of non service cannot be acceptable, since, he appeared before the court in pursuance of summons issued by this court to very same address as mentioned in Ex.P4, accordingly, though Ex.P4 returned unserved with a shara not known/ insufficient address, but, in view of his appearance it can be easily inferred that, the complainant has correctly sent legal notice to the proper address of the accused, so, once it is dispatched to the correct and proper address of the accused, then court has to be presumed the service of demand notice as per 27of General Clauses Act, even though, the notices returned unserved with a shara not known/ insufficient address, unless and until contrary is 8 C.C.No.55873/2019 proved, but, in contrary except denial of service of demand notice accused has not brought out any material to show that, he never resided in the address shown in Ex.P4 as well as cause title, therefore, the contention of the accused about non service of demand notice is not acceptable, accordingly, the complainant has complied Sec.138(a) to (c) of N.I Act.
12. Further, so far as, transaction is concern, the accused denied the financial transaction and claimed that complainant is stranger to him, but, the accused during the course of cross examination has posed several questions to the PW1 about, when she paid claimed amount, how did she accumulate sum of Rs.6,40,000/, what are all the documents she collected at the time of advancement of loan and sources of income, but, during the course of cross examination of PW1 accused not all denied Ex.P1 cheque and signature Ex.P1(a) not that of him, but, for the first time during his cross examination though he admits Ex.P1 cheque belongs to him, but, denies Ex.P1(a) signature, however, the complainant relied upon Ex.P2 endorsement, it clearly discloses cheque came to be dishonored for "funds insufficient", but, not 9 C.C.No.55873/2019 "signature differs", therefore, the accused though denied Ex.P1(a) is not belongs to him, but, in view of Ex.P2 bank endorsement an inference can be drawn that, Ex.P1(a) signature found on Ex.P1 is none other than the accused, because, the banker of the accused did not object signature found on Ex.P1 with specimen signature of accused available with it, accordingly, Ex.P1(a) is none other than the accused, at this stage to support the above view court is relying upon the decision of Hon'ble Apex Court L.C. Goel Vs. Mr. Suresh Joshi and others reported in 1999 (3) SCC 376, wherein, it is held that, "The cheque bounced not an account of the fact that, signature on cheque was not tallying with the specimen signature of appellant kept with the bank, but, on account of insufficient funds, had the signature on cheque been different, the bank would have returned the same with the remark that, the signature on cheque was not tallying with the appellant specimen signature kept with the bank. The memo's issued by the bank clearly show that, signature of the appellant on 10 C.C.No.55873/2019 cheque was not objected to by the bank, but, same was returned with the remark insufficient fund. This circumstances shows that, the signature on cheque was that of appellant".
13. Accordingly, the complainant has proved Ex.P1 and P1(a) belongs to the accused undoubtedly, therefore, once the complainant proved Ex.P1 and P1(a) belongs to the accused, then it is mandatory upon the court to draw presumption infavour of complainant as per Sec.139 R/W 118(a) of N.I Act that, the complainant had received Ex.P1 cheque towards discharge of legally enforcible debt, even though the accused has denied the issuance of Ex.P1 cheque for lawful consideration as it is mandatory upon the court to draw presumption infavour of the complainant, at this stage, it is worth to note the decision of Hon'ble Apex Court that, Rangappa V/s Mohan wherein, it is held that;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 11 C.C.No.55873/2019 of N.I. Act has to be raised by the court infavour of the complainant. The presumption referred to in Sec.139 of N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
14. Accordingly, initial presumption has been drawn infavour of the complainant that, accused has drawn Ex.P1 infvaour of the complainant for sum of Rs.6,40,000/, however, it is a rebuttable presumption, therefore, the onus is on the accused to rebut the presumption, further, mere plausible explanation is not sufficient to rebut the presumption, the accused must brought out probable materials either from the materials produced by the complainant or through his evidence, at this stage, it is worth to note the decision of Hon'ble Apex Court with regard to standard of proof for rebutting presumption i.e., Sumethi Viz Vs. M/s. Paramount Tech. Fab. Industries, held that, " To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, 12 C.C.No.55873/2019 the court may either believe that the consideration and debt didn't exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they didn't exist".
15. The learned counsel for the accused vehemently argued that to prove the loan transaction the complainant has not produced any document on record and also not stated the exact dates of payment, either in her complainant or affidavit, further, the evidence of PW1 is full of improvements, therefore, in absence of documents the complainant has failed to prove the loan transaction as well as issuance of cheque towards discharge of alleged loan, accordingly, prays to acquit the accused, that apart, the complainant has not prayed for conviction of the accused U/S 138 of N.I Act, but, prayed to convict the accused U/S 420 of IPC, accordingly, this court can not convict the accused u/s 138 of N.I. Act without proper prayer to that effect.
13C.C.No.55873/2019
16. Per contra, the counsel for the complainant argued that, the complainant has stated categorically in her evidence that, Rs.2,00,000/ each on 16.03.2018 and on 25.08.2018 respectively, further sum of Rs.1,40,000/ on 30.08.2018 and sum of Rs.1,00,000/ to the accused on 25.12.2018 totally she has stated advancement of Rs.6,40,000/ on cheque itself as a document for payment of Rs.6,40,000/, that apart, the accused not explained how his cheque Ex.P1 gone into the hands of complainant without his signature, therefore, accused has to prove how his cheque gone into the hands of complaint, further, the accused has not denied the financial capacity of the complainant, accordingly, prays to convict the accused.
17. So, considering the rival contentions with the material on the record, it clearly reveals that, though the accused claimed the complainant is stranger to him, but, he admitted the complaint given by the complainant and mother of the complainant to K.G.Halli Police as per Ex.P5 and 6 marked in connected case C.C. No.55874/2019, however, he denied the financial transaction, but, admitted Ex.P1 cheque belongs to him, 14 C.C.No.55873/2019 but, significantly he is silent about his cheque that, how Ex.P1 gone into the hands of complainant.
18. Further, the complainant stated that, she approached the K.G.Halli PS for alleged repayment of claimed amount, the accused not at all disputed it, however, contended that, it is false complaint, but, what for it was lodged and what was his claim before the Police on Ex.P1, nothing has brought out, inspite of the complainant mother got marked Ex.P6 and 7 in connected C.C.No. 55874/2019 on her side, therefore, mere denial and claiming it as false is not at all enough to believe the defence, but, the accused must produce materials to show had he taken any action against the complainant for having custody of his cheque and also complaining before the Police, even though he knew the custody of his cheque, hence, case of the complainant cannot be doubted about the transaction and issuance of cheque to complainant for claimed amount.
]
19. That apart, the learned counsel for the accused vehemently argued that, the complainant not produced any documents to prove her financial capacity or to show 15 C.C.No.55873/2019 that, she pledged golden ornaments at Muttoot Finance and out of saved amount, as such, failed to prove her financial capacity, accordingly, debt claimed by the complainant is doubtful and does not exist, however, on careful perusal of entire cross examination of PW1, the accused posed several questions with regard to financial sources to complaint, how did she arranged the Rs.6,40,000/ she categorically stated out of her savings, pledge of golden ornaments at Muttot finance Nagavara and amount saved for getting the house for lease, inspite of specific evidence to that effect accused not denied financial sources to her as well as capacity of the complainant to advanced the alleged amount, hence, question of producing the documents for financial capacity would arise only after denying the financial capacity, therefore, non production of document to show financial capacity is not fatal to the case of the complainant.
20. The accused in counter to complainant evidence got examined himself as DW1, wherein, he denied the financial transaction claimed herein and contended that, a false complaint allegedly lodged by the complainant and 16 C.C.No.55873/2019 her mother before K.G. Halli PS as per Ex.P6 and 7 marked in connected case, but, not at all stated, how his cheque gone into the hands of the complainant, for that, accused is fully silent, as held supra, to rebut the presumption, the accused must prove that claimed debt did not exist and he does not drawn the cheque for consideration, but, he simply denied the transaction by suggesting that, he had issued blank cheque to complainant, so, issuance of cheque in question infavour of the complainant not disputed, but, disputed the signature, however, what for he issued Ex.P1 cheque to a stranger not at all explained, therefore, nothing has produced to prove his innocence that, he doesn't drawn the Ex.P1 cheque for consideration in rebutting the presumption drawn infavour of complainant u/s 139 r/w 118(a) of N.I Act, hence not helpful to prove innocence.
21. so, considering the rival contentions with the materials on record the over all materials on records it clearly reflects that, though the accused denied the financial transaction receipt of Rs.6,40,000/ from the complainant, but, admitted the cheque Ex.P1 belongs to him, however, he denied the, issuance cheque to her, but, 17 C.C.No.55873/2019 when issued, what for issued, how his cheque gone into hands of the complainant not been explained, instead he denies his signature found on Ex.P1, however, Ex.P1 got dishonored for "Funds Insufficient", but, not "signature differs", if at all, the Ex.P1(a) not that of him, his banker could have issued endorsement as "drawer signature differs", as such, it can be easily inferred that, Ex.P1(a) is that of accused, further, the accused except denying the complainant case nothing has elicited that, complainant was a stranger to him, how cheque given to her for different purpose, but, not for consideration, therefore, absolutely nothing materials on record to disprove the presumption, therefore, the accused failed to prove the debt claimed by the complainant did not exist and he does not have drawn Ex.P1 infavour of the complainant, hence, the complainant has proved the complaint of Sec.138(a) to (c) and the financial transaction as well as issuance of cheque in question of sum of Rs.6,40,000/, further, the learned counsel by referring to the prayer claimed in complainant argued that, the complainant not at all sought to punish the accused U/S 138 of N.I Act, accordingly, complainant can no be convicted U/S 138 of N.I Act, but, on perusal of complaint, though the 18 C.C.No.55873/2019 complaint not sought exclusively to punish the accused U/S 138 of N.I Act, but, sought specifically to convict the accused under law and prayed to impose fine double the cheque amount as well as sought to pass an award, which, clearly goes to show that, complainant sought punishment under law by relying upon Ex.P1, therefore, the intension of the complainant is clear to punish the accused U/S 138 of N.I Act, as such, to on failure to pay the cheque amount within stipulated time, the accused liable to be punished U/S 138 of N.I. Act, accordingly, accused is found guilty of an o/p/u/s 138 of N.I. Act.
22. So, far as sentence and compensation is concern, an o/p/u/s.138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principal of law with facts and circumstances of the case, which clearly reveals that, accused by assuring profits had availed the loan of Rs.6,40,000/ from the complainant on different intervals, so far not repaid any amount to the complainant, further, there is no claim with respect to interest, therefore, considering the nature of transaction, duration of pendency, litigation expenses, I am opinion 19 C.C.No.55873/2019 that, if sentence of fine of Rs.7,45,000/ is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.7,45,000/, out of that, the complainant is entitled for sum of Rs.7,40,000/, as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/, is to be appropriated to the state, in case of default, the accused shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
23. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted for an offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.7,45,000/, (Rupees Seven lakh fourty five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount 20 C.C.No.55873/2019 received, Rs.5,000/, is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C., the complainant is entitled for Rs.7,40,000/.
The bail bond and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 23rd day of November, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mrs. Asma
2. Documents marked on behalf of complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : Office copy of the legal notice
Ex.P.4 : Returned postal cover
21
C.C.No.55873/2019
Ex.P.4(a) : Returned postal cover opened in the
open court and notice therein marked
3. Witnesses examined on behalf of Accused:
NIL
4. Documents marked on behalf of Accused:
NIL (M.Vijay), XXXIII ACMM, BENGALURU.