Bangalore District Court
Aged About 42 Years vs R/O. No.96/2 on 10 September, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 10th DAY OF SEPTEMBER, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.59901/2017
Sri. Sajjad Ahamed
S/o Wahab Sardar
COMPLAINANT Aged about 42 years, R/at No.38, Markam
Road Cross, Tate Lane, Ashoknagar,
Bengaluru - 560 025.
Sri. G.S. Saud Ahmed
S/o. G.S. Nisar Ahmed
ACCUSED R/o. No.96/2, 1st Floor, A-2, Coles Road,
Frazer Town, Bengaluru - 560 005
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.59901/2017
JUDGMENT
The complainant has approached this court with this complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant and accused are known to each other for more than ten years. The accused informed the complainant that he invested nearly Rs.5 lakhs to purchase the property bearing Corporation No.26/1-1 PID No.47-100-26/1-1 situated at Malavalli Ramrao Lane, BBMP Ward No.47, Bengaluru in the year 2012. He further informed that in order to develop the said property he is in need of loan to the tune of Rs.4 lakhs. The accused approached the complainant seeking financial assistance of Rs.4 lakhs promising to repay the same in the month of April 2017 as he had already negotiated for sale of the said property after its development. It is further case of the complainant that considering the good faith and good relationship of the accused, the complainant had lent a sum of Rs.4 lakhs by way of cash on 12.01.2016 as hand loan without interest. In that regard the accused had also executed acknowledgment on non-judicial stamp paper acknowledging receipt of Rs.4 lakhs. After availing the said 3 C.C. No.59901/2017 loan, even the accused handed over the original document relating to the property in the presence of the witnesses.
3. It is further case of the complainant that on 02.04.2017, the complainant had demanded for repayment of the loan for which the accused issued cheque bearing No.496931 dated 12.04.2017 for Rs.4,00,000/- drawn on ICICI Bank, OTC Road, Bengaluru. As per the promise of the accused, the complainant presented the said cheque for encashment through his banker Karnataka Bank Ltd., Ashoknagar branch, Bengaluru on 15.04.2017. But the said cheque was returned dishonoured for the reason "insufficient fund" as per memo dated 15.04.2017. The complainant informed the said fact to the accused and the accused had failed to make payment of the cheque amount. Thereafter the complainant without having any other alternative got issued legal notice dtd.26.04.2017 by RPAD to the accused requesting the accused to repay the loan amount. Though the said notice was duly served on the accused on 28.04.2017, the accused had not opted to comply with the demand made therein and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these grounds, the complainant has prayed for conviction of the accused and for grant of compensation in his favour in accordance with law in the interest of justice and equity.
4 C.C. No.59901/20174. At the time of filing of this complaint there was a delay of 2 days and the complainant has filed delay condonation application U/s.142 (1) (b) of the N.I. Act praying for condonation of the said delay. This court was pleased to order for issuance of notice on the delay condonation application. The said notice returned as "addressee left" and service of notice on the accused held sufficient. By order dated 03.11.2017 this court was pleased to condone the delay. Thereafter cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement 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 ordered to be issued to the accused.
5. 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 complainant himself examined as CW.1 and got marked as many as six documents as per Ex.P1 to P6 and closed his 5 C.C. No.59901/2017 evidence. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused had denied the incriminating circumstances found in the evidence of the complainant and examined himself as DW.1 and closed his evidence and thereby evidence of the parties concluded.
7. The learned counsel for the complainant has filed his written argument. Heard the arguments of the learned counsel for the accused.
8. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt/liability 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?6 C.C. No.59901/2017
9. The above points are answered as under;
Point No.1 : In affirmative,
Point No.2 : In affirmative,
Point No.3 : In affirmative,
Point No.4 : As per the final order,
for the following.......
REASONS
10. Point Nos. 1 and 2: Since these two points 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 oral and documentary evidence, it is clear that the complainant and accused being friends known to each other since long time. It is not in dispute that the accused had purchased property situated at Malavalli Ramrao Lane, BBMP Ward, Bengaluru. Further it is clear that the accused was in need of money and the financial condition of the complainant is not in dispute. Further the accused has admitted his signature found in Ex.P1- acknowledgement receipt. It is admitted fact that the accused had handed over GPA, Sale Deed and another document in favour of the complainant. It is also admitted fact that the cheque in question belonged to the accused and the same 7 C.C. No.59901/2017 was signed by him. The complainant presented the said cheque for encashment and the same was returned dishonoured for the reason "funds insufficient". It is also clear that after dishonour of the cheque, the complainant got issued legal notice to the accused in that regard and the accused did not comply with the demand made in the said notice.
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 found in the evidence of the complainant at the time of recording his statement U/s.313 of Cr.PC. On going through the statement of the accused, cross- examination of the complainant and evidence of the accused, it is clear that the accused has denied the monitory transaction, issuance of cheque in favour of the complainant towards discharge of any amount as put up by the complainant. The accused has also denied the service of notice on him. In addition to the total denial of the case of the complainant, it is found to be a specific defence of the accused that the accused had sustained loss in his business and he was in need of money. Since the complainant was his 8 C.C. No.59901/2017 best friend, he revealed his need of money to the complainant for which the complainant informed that he had no money with him, but assured to get the money from one financer Sudhir K.S. After two days, the complainant informed that the said Sudhir K.S is ready to provide money and asked the accused to provide two signed blank cheques, signed blank bond paper of Rs.100/- and other personal documents. The accused had furnished all the said documents. After 3 - 4 days of furnishing the document, the complainant had paid loan of Rs.50,000/- and asked the accused to repay the said amount at Rs.5,000/- per week for a period of six months. Though the accused had repaid excess amount, the complainant has sought for payment of Rs.50,000/- again stating that whatever amount paid by the accused was only towards interest. In that connection there was a misunderstanding between the complainant and the accused. The complainant has misused one of the blank cheques and also signed blank bond paper obtained by him from the accused and filed false case though there was no any due from the accused in his favour and accordingly prayed for his acquittal in the interest of justice and equity.
12. 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 9 C.C. No.59901/2017 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 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 10 C.C. No.59901/2017 N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date found therein.
13. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. In order to prove the case of the complainant, 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 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 acknowledgment dated 12.01.2016 executed by the accused for receipt of Rs.4 lakhs, cheque dtd.12.04.2017, bank endorsement dtd.15.04.2017, office copy of legal notice dated 26.04.2017, postal receipt dtd.27.04.2017 for having sent to the notice to the accused by RPAD and postal track consignment as per Ex.P1 to P6 respectively to substantiate his contention. The contents of Ex.P1 to P6 are analyzed, it is clear that the complainant had presented Ex.P1 - cheque dated 12.04.2017 for encashment through his banker Karnataka Bank Ltd., and the same was dishonoured for the reason "funds insufficient" on 15.04.2017. Thereafter the complainant got issued legal 11 C.C. No.59901/2017 notice dtd.26.04.2017 to the accused by RPAD on 27.04.2017 and the same was found to be delivered to the accused on 28.04.2017 as put up by the complainant. The complainant had presented this complaint on 15.06.2017 and the delay in filing the complaint was condoned by this court by order dated 03.11.2017. Hence on going through these documents, it is clear that the complainant had presented the cheque within its validity and got issued statutory notice within statutory time and had complied with all the technical requirements of Sec.138 of N.I. Act in presenting the complaint.
14. In addition to the above aspects, the complainant in his evidence specifically stated as to compliance of necessary requirements of Sec.138 of N.I. Act in presenting the complaint. As already stated the accused has disputed the service of statutory notice and thereby compliance of requirements of Sec.138 of N.I. Act. As argued by the learned counsel for the accused in this case the complainant has not produced postal acknowledgment for having service of notice on the accused. Even it is also noticed that nowhere the complainant has given any reason for non-production of postal acknowledgement. However the complainant has produced track consignment as per Ex.P6 which reveals that the registered post sent as per Ex.P5 was delivered on 12 C.C. No.59901/2017 28.04.2017 at Frazer Town. There are no reasons to disbelieve Ex.P6 produced by the complainant. It is also pertinent to note that the accused nowhere disputed his address as shown in the legal notice. It is not the defence of the accused that notice was sent to the wrong address. It is needless to say that when the registered notice was sent to the correct address of the accused, it shall be deemed to be served on the accused. The accused has not placed any material before this court to show that the said registered post was not served on him. It is also to be noted that this court was pleased to order for issuance of summons to the accused by registered post and the said registered post was served on the accused in person on the same address. Therefore this court is of the firm view that there is no merit in the contention of the accused as to non-service of notice on him as contended. Just because, the complainant had not produced the postal acknowledgment, that does not mean that notice was not served on the accused as put up by the accused when the notice was sent to the correct address of the accused. Further Ex.P6 reveals the service of notice on the accused as put up by the complainant.
15. Therefore on conjoint reading of the entire oral and documentary evidence, their remains no doubt that the complainant had complied with all the requirements of 13 C.C. No.59901/2017 Sec.138 of N.I. Act so as to constitute offence under the said provision. This being the fact, as discussed earlier, in the light of the 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 accused had issued the cheque as per Ex.P2 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, 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 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 14 C.C. No.59901/2017 Evidence Act. It is also well settled principle that in order to rebut the presumption it is not imperative on the part of the 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 defence taken by the accused, as against the claim of the complainant, now the evidence available on behalf of the accused is analyzed, the accused being DW.1 stated his defence in his evidence. But except self serving oral testimony of the accused, absolutely there is 15 C.C. No.59901/2017 no any supporting evidence available on behalf of the accused. On going through the evidence of the accused and suggestion put to the mouth of CW.1 during cross- examination, it is noticed that there is total inconsistency in the case of the accused. During the course of cross- examination, it was suggested to the mouth of CW.1 to the effect that the accused was liable to pay only Rs.50,000/- to the complainant and not Rs.4 lakhs as found in the cheque. The complainant has filled-up more amount in the cheque with an intention to extract more money. The complainant has denied the said suggestion. But during the course of evidence, the accused has stated that the complainant had given Rs.50,000/- as hand loan and he had paid the said amount by making payment of Rs.5,000/- per week as demanded by the complainant. In fact he had paid more than Rs.50,000/- to the complainant. Even during cross- examination of CW.1, it was suggested to his mouth that the accused had paid Rs.1,50,000/- towards Rs.50,000/- to be paid to the Sudhir Finance. These versions are looked into, it is crystal clear that the accused is trying to suppress the real fact. Absolutely there is no evidence to show that the complainant had given Rs.50,000/- to the accused by obtaining the said amount from the financer - Sudhir K.S and there is no document to show that the accused had paid any amount to the complainant as contended. Nowhere the 16 C.C. No.59901/2017 accused had stated as to in what mode and when he had paid the amount as contended by him. Further during cross- examination, the accused has stated that so far he did not meet Sudhir K.S. If at all the finance was arranged by the complainant through Sudhir K.S as contended by the accused definitely the accused could have met said Sudhir K.S that too when he had issued blank cheques security documents in that regard as contended by him. Therefore the said contention of the accused is found to be without any basis and that cannot be accepted.
18. With the above aspects, in the light of the claim of the complainant, the documents available on file are analyzed, the complainant has produced acknowledgement dtd.12.01.2016 executed by the accused as per Ex.P1. The contents of Ex.P1 are analyzed, Ex.P1 clearly support the version of the complainant. No doubt the accused has denied the contents of Ex.P1 contending that it was created by the complainant by obtaining his signature on the blank bond paper. But absolutely there is no convincing and acceptable evidence to accept the said contention. Admittedly the accused is a businessman and also educated. It is very hard to accept that the accused had given singed blank bond paper to the complainant and the complainant created Ex.P1. Further it is also clear from the evidence of the accused 17 C.C. No.59901/2017 himself that he had sustained loss in his business and he was in need of money. There are no grounds to disbelieve the contents of Ex.P1 which clearly support the case of the complainant.
19. At this stage, in the light of the defence taken by the accused, it is also pertinent to note that if at all the complainant had taken blank signed cheques, blank signed bond paper and other security documents for lending the amount and if at all the said amount was being paid by the accused as contended by him, definitely the accused being a prudent person could have sought for returning of the said documents from the complainant. If at all the complainant did not return the said documents, the accused could have taken appropriate legal steps in that regard. At least the accused could have intimated his banker in that regard so as to prevent misuse of his cheques. But the accused has not opted to take any such steps. It is also pertinent to note that as discussed supra, it is found that the statutory notice issued by the complainant was served on the accused, but the accused has not opted to give any reply to the same. The non-issuance of reply is also an another circumstance which goes against the contention of the accused. Therefore viewed from any angles, the defence of the accused is found to be not acceptable one.
18 C.C. No.59901/201720. The learned counsel for the accused vehemently argued as to lending of the amount without any interest by obtaining the security documents which itself creates doubt as to very transaction and also meticulously argued as to non-production of the documents, I.T returns and also as to non-examination of material witnesses such as witnesses shown in Ex.P1 and the father of the complainant. No doubt as argued by the learned counsel for the accused in this case, the complainant has not produced the General Power of Attorney, Agreement of Sale and affidavit stated to be handed over to him by the accused. But in this regard, it is pertinent to note that the accused during his cross-examination clearly admitted as to handing over of the said documents in favour of the complainant. This being the fact, the non-production of the said documents has no consequence on the case of the complainant. It is needless to say that admitted fact need not be proved. On the other hand the admission of the accused in this regard supports the contents of Ex.P1. So far as the non-examination of witnesses found in Ex.P1 and father of the complainant is concerned, it is pertinent to note that the accused unequivocally admitted his signature found in Ex.P1 as well as Ex.P2-cheque. When the accused admits the execution of the document, then burden of proof lies on his shoulder to show that the said document is created by the complainant by obtaining his signature on the blank bond 19 C.C. No.59901/2017 paper as put up by him. It is the accused who has to prove the creation of the document and burden cannot be laid on the shoulder of the complainant. So far as the examination of the father of the complainant is concerned, in the light of the documentary evidence, this court did not find any need of examination of father of the complainant in support of the case of the complainant that too when the statutory presumptions lies in favour of the complainant. It is needless to say that unless the accused rebuts the statutory presumption available in favour of the complainant at least by placing such evidence to probabalise his defence, the burden of proof cannot be shifted on the shoulder of the complainant.
21. Further as argued by the learned counsel for the accused in this case the complainant has not produced I.T returns, his bank account statement and also bank account statement of his father for having taken Rs.4 lakhs from the account of his father. The complainant during his cross- examination specifically stated that he had taken Rs.4 lakhs from the account of his father and in that regard he has no hurdle to produce the document. It is also noticed that during cross-examination, the complainant admitted that he has Pan Card and he has no hurdle to produce the same before the court and he has not paid any income tax so far including the amount of Rs.4 lakhs involved in this case. But 20 C.C. No.59901/2017 it is pertinent to note that only on the basis of this aspect, the case of the complainant cannot be disbelieved in the lights of contents of Ex.P1 and P2 and also on account of the conduct of the accused himself as discussed earlier. Just because, the complainant has not produced bank account statement and I.T returns that alone is not sufficient to disbelieve the case of the complainant in the light of the existing evidence. Therefore this court did not find any much substance in the contention of the accused so as to up held the defence of the accused as put up by him.
22. Thus considering all these aspects, material placed before this court, this court is of the considered view that the accused has totally failed to prove or probabalise his defense and thereby to rebut the statutory presumptions available in favour of the complainant. Though the learned counsel for the accused cross-examined the complainant, he could not elicit anything from his mouth so as to disbelieve the case of the complainant. On going through the entire material available on file, it appears that the defence put up by the accused is only after thought and even the same is found to be too remote to accept its probabilities. The defence taken by the accused is found to be only after thought without any basis. On the other hand the material placed before this court by the complainant is sufficient to establish his contention as put up by him. The evidence placed before this court is sufficient to 21 C.C. No.59901/2017 accept the case of the complainant that the accused had issued cheque in question towards discharge of his liability as put up by the complainant and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused as put up by him. Therefore Point Nos.1 & 2 are required to be answered in affirmative and answered accordingly.
23. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved his case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extent to two years or with fine which may extend to twice the amount of the cheque or both. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation etc., this court is of the considered view that it is just and desirable to impose fine of Rs.5,05,000/- and out of the said amount a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs.5,00,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 are answered in Affirmative.
22 C.C. No.59901/201724. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act. The accused shall pay a fine of Rs.5,05,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of six months.
By exercising the power conferred U/s.357(1) of Cr.PC out of total fine amount of Rs.5,05,000/-, a sum of Rs.5,00,000/- is ordered to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
The bail bond of the accused stands cancelled. The cash security is deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 10th day of September, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 23 C.C. No.59901/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Sajjad Ahamed
Witnesses examined for the defence:
DW.1 : Sri. G.S. Saud Ahmed
Documents marked for the complainant:
Ex.P1 : Acknowledgment of receipt of liability
Ex.P2 : Cheque
Ex.P3 : Bank endorsement
Ex.P4 : Legal notice
Ex.P5 : Postal receipt
Ex.P6 : Track Consignment
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU