Bangalore District Court
Asif Jagirdar vs Mohammed Zaid Haque on 11 March, 2026
KABC0C0356692024
IN THE COURT OF XXXIII ADDL. CHIEF JUDICIAL
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT:-
P.S. Santhosh Kumar, M.Com., LL.M.,
XXXIII ADDL.CHIEF JUDICIAL MAGISTRATE,
BENGALURU.
DATED THIS THE 11TH DAY OF MARCH 2026
C.C.NO.59742/2024
COMPLAINANT : MR. ASIF JAGIRDAR,
S/o. Late Dadullakhan,
R/at. No.001, "Samrat
Apartments", No.83,
D Costa Square, Thomas
Town, Bengaluru-560084.
[By Sri. Shakeel Abdul
Rahiman, Advocate]
Vs.
ACCUSED : MR. MOHAMMED ZAID
HAQUE,
S/o. Parveez Akhtar,
No.51, "Ishrat villa",
3rd Cross, Vivekananda
Nagar, Maruthi Seva
Nagar, Bangalore-560033.
[By Sri. Ravi Jagan,
Advocate]
2
C.C.No.59742/2024
J U D G E M E N T
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 the Negotiable Instruments Act.
2. The factual matrix of the case are as follows:-
The complainant and the accused entered into an Investment agreement dated 15.01.2024 to carry on the business in Option and Futures on Zerodha Platform, where the complainant would invest and the accused would run the investment business using complainant's secret password for withdrawing funds and trade it and the accused would be keeping full transparency and the complainant verify the same from time to time and the accused shall give the statements of accounts to complainant and settling of accounts on fifteenth of every month. The total amount invested for the said business was a sum of Rs.22,00,000/- (Rupees Twenty two lakhs only). In the month of February 2024, the accused had suffered a loss of Rs.6,00,000/- (Rupees Six lakhs only), as such, 3 C.C.No.59742/2024 the complainant instructed the accused to recover his losses and return back the complainant's principal amount. In the first week of March 2024, the accused recovered the losses suffered by the accused and informed the complainant over telephonic conversation and confirmed to pay the principal amount and decided to meet on 15th March 2024 and promised the complainant to pay the principal amount. The accused instead of repaying the complainant the principal amount, he immediately reinvested the amount of Rs.22,00,000/- without complainant's consent, knowledge and consultation and again the complainant suffered a loss of Rs.21,76,700/- (Rupees Twenty-one lakhs seventy-six thousand and seven hundred only), leaving a balance of Rs.23,300/- (Rupees Twenty-three thousand three hundred only), in his account. On confrontation on 15 th March 2024, the accused realized his mistake and apologized to the complainant and promised and assured the complainant that the accused would return the losses suffered by the complainant in a sum of 4 C.C.No.59742/2024 Rs.21,76,700/- (Rupees Twenty one lakhs seventy six thousand and seven hundred only) and transferred a sum of Rs.10,000/- (Rupees Ten thousand only) to the complainant through phonepay on 16.03.2024, which was the balance remaining out of a sum of Rs.2,19,533/- (Rupees Two lakhs nineteen thousand five hundred and thirty three only) of the commission paid by the complainant to the accused from time to time. The accused has also returned a sum of Rs.23,300/- (Rupees Twenty three thousand three hundred only) which was the balance amount remaining in the Zerodha Platform Account. Thus the accused has returned a sum of Rs.23,300/- (Rupees Twenty three thousand three hundred only) out of Rs.22,00,000/- (Rupees Twenty two lakhs only) leaving a balance sum of Rs.21,76,700/- (Rupees Twenty one lakhs seventy six thousand seven hundred only). In lieu of the same, the accused had issued three cheques in favour of the complainant bearing
1) No.856601 dated 10.04.2024 for Rs.10,00,000/-,
2) No.856602 dated 20.04.2024 for Rs.6,00,000/- and 5 C.C.No.59742/2024
3) No.856603 dated 30.04.2024 for Rs.5,76,700/-, all the three cheques were drawn on State Bank of India, Cooke Town branch, Bengaluru. The complainant presented the said cheques for encashment through his banker ICICI Bank, Frazer Town branch, Bengaluru, but it came to be dishonored for the reason "Funds insufficient" vide. bank endorsements dated 11.04.2024, 22.04.2024 and 01.05.2024 respectively.
03.08.2021. Thereafter, the complainant got issued legal notice dated 06.05.2024 calling upon the accused to pay the cheques amount. The accused has received the said legal notice and has sent an untenable reply vide. reply notice dated 12.05.2024. Hence, the accused has committed the offence punishable U/s.138 of Negotiable Instruments Act.
3. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offence punishable under Sec.138 of the Negotiable Instruments Act by following the guidelines of Apex Court issued in Indian Bank 6 C.C.No.59742/2024 Association case and ordered to register a criminal case against the accused for the offence punishable U/s.138 of Negotiable Instruments Act.
4. In pursuance of summons, the accused appeared through his counsel, he was enlarged on court bail, further, substance of plea was recorded, the accused pleaded not guilty and he claimed to be tried. In order to prove his case, the complainant got examined himself as PW1 and got marked Ex.P1 to P13. Upon closure of complainant's side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused denied the incriminating materials appearing against him and the accused got examined himself as DW1 and got marked Ex.D1 and Ex.D2 by way of confrontation during the cross-examination of PW1 and closed his side.
5. I have gone through the written arguments filed by the learned counsel for the complainant and accused and also the reply to the written arguments filed by the complainant. Heard the learned counsel 7 C.C.No.59742/2024 for the accused. I have gone through the following citation relied upon by the learned counsel for the complainant.
1. AIR 2019 SUPREME COURT 2446 between Bir Singh Vs. Mukesh Kumar of the Hon'ble Supreme Court of India.
I have gone through the following citation relied upon by the learned counsel for the accused.
1. Crl.A.No.2045 of 2008 dated 16.12.2008 between M/s. Kumar Exports Vs. M/s. Sharma Carpets of the Hon'ble Supreme Court of India.
2. Crl.A.No.636 of 2019 dated 11.04.2019 between Basalingappa Vs. Mudibasappa of the Hon'ble Supreme Court of India.
3. Special Leave Petition (Crl.) No.12802 of 2022 dated 09.10.2023 between Rajesh Jain Vs. Ajay Singh of the Hon'ble Supreme Court of India.
Perused the materials available on record.
6. The following points would arise for my consideration:-
1. Whether the complainant proves beyond all reasonable doubts that the accused has committed an o/p/u/s 138 of the Negotiable Instruments Act?
2. What Order?8
C.C.No.59742/2024
7. My findings on the above points are as follows;
Point No1: In the Negative, Point No.2: As per final order, for the following, R E A S O N S
8. POINT No.1: I have gone through the materials available on record. The complainant, who has been examined as PW1, has reiterated the facts stated in his complaint in his chief examination also and in addition to it, he has produced Ex.P1 to 13.
9. Ex.P1 to 3 are the original cheques bearing
1) No.856601 dated 10.04.2024 for Rs.10,00,000/-,
2) No.856602 dated 20.04.2024 for Rs.6,00,000/- and
3) No.856603 dated 30.04.2024 for Rs.5,76,000/-, all were drawn on State Bank of India, Cooke Town branch, Bengaluru-560084, said to have been issued by the accused in favour of the complainant. Ex.P4 to 6 are the bank return memos dated 30.04.2024 said to have been issued by the complainant's banker which goes to show that the cheques in question were 9 C.C.No.59742/2024 dishonored for the reason "Funds insufficient". Ex.P7 is the copy of the legal notice dated 06.05.2024 said to have been sent by the complainant to the accused intimating the fact of dishonor of the cheques to the accused and demanding payment of cheques amount. Ex.P8 is the postal receipt for having sent legal notice to the accused. Ex.P9 is the postal acknowledgment which goes to show that the notice was served on the accused. Ex.P10 is the postal track consignment which goes to show that the notice was delivered to the accused on 09.05.2025. Ex.P11 is the reply notice dated 12.05.2024. Ex.P12 is the Investment Agreement dated 15.01.2024 entered between Mr. Asif Jagirdar and Mr. Mohammed Zaid Haque. Ex.P13 is the statement of account obtained from Zerodha Kite app. Ex.P13(a) is the certificate u/sec.65B of Indian Evidence Act.
10. It is relevant to mention here that it is not in dispute that the cheques in question pertain to the accused and during the cross-examination of DW1, the 10 C.C.No.59742/2024 accused has categorically admitted that the signatures of payer on it pertain to him. Such being the case, when the accused has admitted that the cheques in question pertain to him and signatures on it pertain to him, the initial presumptions as contemplated U/Sec.139 of the N.I Act has to be raised by the court in favour of the complainant, however the accused is entitled to rebut the said presumptions as held in the case of Sri Rangappa Vs. Sri Mohan by the Hon'ble Supreme Court reported in AIR 2010 SC 1898.
11. Once the presumptions U/S 139 and 118 of the Negotiable Instruments Act is raised, it is for the accused to rebut the said presumptions by adducing cogent evidence in support of his defence. It is relevant to mention here that the Investment agreement executed between the complainant and the accused as per Ex.P12 is not in dispute. It is relevant to mention here that according to Ex.P12, the complainant had agreed to invest Rs.22,00,000/- and the accused had the authority to make decisions regarding buying and selling in the 11 C.C.No.59742/2024 trade while ensuring complete transparency and honesty in all the dealings and that the complainant had authorized the accused to operate his Zerodha account for investment and portfolio management exclusively for business purposes and it was also agreed that profits would be shared between the complainant and accused in the ratio of 70:30 and it further goes to show that either party may terminate the agreement with written notice. It is relevant to mention here that Ex.P12 though speaks about sharing ratio of the profits, it does not speak about the ratio in which losses were to be shared between the parties. As could be seen from the reply notice at Exhibit P11 said to have been given by the accused in reply to the legal notice at Ex.P7, it is the specific defence of the accused that the cheques in questions were given to the complainant only to assure the complainant about the earnestness and honesty of the accused and they were never issued to the complainant on account of any existing or future debt. Further, it is the specific defence of the accused that the cheques in question were given by the accused to the 12 C.C.No.59742/2024 complainant on or about September 2023 and that when the complainant suffered losses in the investment made, he had demanded that the accused should make good such losses and when the accused declined to do so, the complainant threatened the accused that he would use the cheques given to him as security and claim and recover a sum of Rs.21,76,700/- from him. In the said notice, the accused has also stated that the accused had issued notice dated 02.04.2024 placing on record the circumstances under which the cheques were issued to the complainant and requested the complainant to return the cheques to him and in that respect the complainant had also issued him untenable reply dated 08.04.2024. It is relevant to mention here that the said notice dated 02.04.2024 and the reply notice dated 08.04.2024 were marked as Ex.D1 and Ex.D2 by way of confrontation during the cross-examination of PW1. It is relevant to mention here that during the cross-examination of PW1, when it was suggested to PW1 that he is aware of the said notice at Ex.D1, he admitted it. Further, PW1 has also admitted the reply given by him as per Ex.D2 dated 13 C.C.No.59742/2024 08.04.2024 to Ex.D1. It is relevant to mention here that the further defence of the accused as could be seen from the chief-examination of DW1 that the complainant used to bear if there was any loss in doing such business. It is relevant to mention here that though PW1 stated during his cross-examination that he was aware about the issuance of the notice by the accused as per Ex.D1 and the reply given by him as per Ex.D2, he has not stated about the said notice and reply notice in his complaint for the best reasons known to him. It is relevant to mention here that Ex.D1 notice has been issued by the accused even before issuance of the legal notice dated 06.05.2024 by the complainant as per Ex.P7 and even before the dates of the cheques in question and their dishonour. It is relevant to mention here that in Ex.D1 notice, the accused has stated that he had issued the cheques in question signed by him and all undated as per the insistence of the complainant in the middle of August 2023 and March 2024. It is relevant to mention here that no doubt, the complainant in his reply notice at Ex.D2 given in respect of Ex.D1 has denied the said 14 C.C.No.59742/2024 defence of the accused and the complainant has stated that in 2024 February the accused had suffered loss of Rs.6,00,000/- and as such, the complainant instructed the accused to recover his losses and return back his principal amount and the complainant also informed that in the first week of 2024 March, the accused recovered the losses suffered by him and informed the complainant over telephonic conversation and confirmed to pay the principal amount and decided to meet on 15.03.2024 and promised the complainant to pay the principal amount and the complainant has also stated that the accused instead of repaying the complainant the principal amount immediately reinvested the amount of Rs.22,00,000/- without his consent, knowledge and again the complainant suffered loss of Rs.21,76,700/- leaving balance of Rs.23,300/- and the complainant also stated that on confrontation on 15.03.2024 the accused realized his mistake and apologized to the complainant and promised and assured the complainant that accused would return the losses suffered by the complainant in a sum of Rs.21,76,700/- and transferred a sum of 15 C.C.No.59742/2024 Rs.10,000/- to the complainant through phonepay on 16.03.2024, which was the balance remaining out of a sum of Rs.2,19,533/- of the commission paid by the complainant to the accused from time to time and the accused also returned a sum of Rs.23,300/- which was the balance amount remaining in Zerodha platform account and thus the accused had returned a sum of Rs.23,300/- out of Rs.22,00,000/- leaving a balance sum of Rs.21,76,700/- and in lieu of the same, the accused had issued three cheques in question in favour of the complainant. and that the complainant was shocked and surprised to receive the notice making all false allegations. It is relevant to mention here that the very same reply is the case of the complainant as could be seen from the complaint. It is relevant to mention here that the complainant who has stated firmly that on 15.03.2024 on confrontation with the accused, the accused realized his mistake and apologized the complainant and promised and assured the complainant to return the losses suffered by him in a sum of Rs.21,76,700/- and had issued the cheques in question 16 C.C.No.59742/2024 towards repayment of it, in his cross-examination, when it was suggested by the learned counsel for the accused that he had taken the cheques from the accused forcibly and misused it, the complainant though denied the suggestion, immediately volunteered that the accused himself had given the cheques for the security towards the losses. What more is required to say that the accused has rebutted the presumptions available in favour of the complainant as the complainant himself has deposed during his cross-examination contrary to the case of the complainant that the cheques in question were issued for the security towards losses and not towards the repayment of the losses already suffered by him. Further it is relevant to mention here that the Investment agreement at Ex.P12 does not speak about who has to bear the losses and it further speaks about the revocation of the agreement by the parties to the agreement with a written notice and in spite of having entered into such an agreement, the complainant did not take any pain to issue any written notice terminating the said agreement instead of asking the accused to settle the account on 17 C.C.No.59742/2024 15.03.2024 for the best reasons known to him. In this background, the admission made by the accused during his cross-examination that in the first week of March, the complainant told him that they could meet on 15.03.2024 and asked him to settle the amount would not help the complainant in any angle to believe his case that the accused had issued the cheques in question to the complainant on confrontation with the complainant on 15.03.2024 admitting to make good the losses of Rs.21,76,700/- as claimed by the complainant. Further, the complainant during his cross-examination has categorically admitted the suggestion made by the learned counsel for the accused that the said business of making investment in futures and options was hugely speculative and that the element of making profit or loss is very high in the said business. The said admissions given by the complainant clearly goes to show that he had the knowledge that his investment in the said business may also suffer loss and inspite of it, he did not decide to make any agreement regarding who has to bear the loss in the business in case there were any 18 C.C.No.59742/2024 losses for the best reasons known to him. It is relevant to mention here that even the materials on record is seen in the absence of the oral evidence adduced by the accused and Ex.D1 and Ex.D2, first of all, the investment agreement at Ex.P12 does not contain any terms regarding who has to bear in case of losses and the complainant has also failed to obtain any direct admission from the mouth of DW1 regarding the subsequent oral agreement said to have been made by the accused to the complainant to make good the losses of Rs.21,76,700/- to the complainant. In the above facts and circumstances, in view of the failure on the part of the complainant to get any admission from the mouth of DW1 regarding the said subsequent oral agreement to make good the losses of Rs.21,76,700/- and in the absence of any specific term in Ex.P12 regarding who has to bear the losses in case of losses, it can be clearly said that there was no legally enforceable debt in favour of the complainant by the accused as claimed in the complaint and further in view of the categorical voluntary statement made by PW1 in his cross-
19C.C.No.59742/2024 examination to the effect that the cheques in question were issued as security towards losses, it can also be said that the cheques in question were not issued by the accused to complainant on 15.03.2024 as claimed in his complaint and that the complainant has taken disadvantage of the security cheques given by the accused only at the insistence of the complainant as claimed in his notice at Ex.D1 and reply notice at Ex.P11. It could be seen that, though not sole deciding factor in view of Section 20 of the Negotiable Instruments Act, the handwriting of the signatures of the payer of the cheques in question and the other contents are in different handwriting and also in different pens and if at all the accused had issued it towards the existing legally enforceable debt on 15.03.2024 upon confrontation, the complainant would have got filled it by the accused himself and moreover, it is not the specific case of the complainant that the accused had brought to him already filled cheques on that day. Further it is relevant to mention here that it is well established principles of law that the standard of proof 20 C.C.No.59742/2024 required for the accused to rebut the presumptions is preponderance of probabilities and even it is sufficient to raise a probable defense by the accused to rebut the presumptions available in favour of the complainant and on the other hand, the standard of proof required for the complainant to establish his case is beyond all reasonable doubts and in the above facts and circumstances, it cannot be said that the complainant has established his case beyond all reasonable doubts and that the materials on record clearly probabalises the defence of the accused. It is relevant to mention here that the facts and circumstances of the citations relied upon by the complainant and accused are totally different from the present facts and circumstances of the case on hand. However, keeping in mind the settled principles of law laid down in the above said citations regarding drawing of presumptions, standard of proof required for the parties to establish their case, etc. and considering the entire materials on record, in my opinion, the accused has rebutted the presumptions available in favour of the complainant and on the other hand, I am of the opinion 21 C.C.No.59742/2024 that the complainant has failed to prove his case beyond all reasonable doubts. Hence, I am of the opinion that the accused has not committed the offence punishable U/ Sec.138 of Negotiable Instruments Act. With these observations, my findings on Point No.1 is in the Negative.
12. Point No.2: In view of my findings on Point No.1, I proceed to pass following;
O R D E R Acting u/s. 255(1) of Cr.P.C., the accused is hereby acquitted of the offence punishable u/s.138 of Negotiable Instrument Act, 1881.
The bail bond and cash security furnished by the accused shall stand hereby continued till the appeal period is over.
(Typed to my dictation by the Stenographer, directly over Computer, corrected, signed and then pronounced by me in the open court, on this the 11h day of March 2026) (P.S. Santhosh Kumar), XXXIII ACJM, BENGALURU.
22C.C.No.59742/2024 A N N E X U R E
1. Witnesses examined on behalf of Complainant:
PW1 : Mr. Asif Jagirdar
2. Documents marked on behalf of complainant:
Ex.P.1 to 3 : 3 Original cheques
Ex.P.1(a) to : Signature of the accused
3(a)
Ex.P.4 to 6 : Bank endorsements
Ex.P.7 : Office copy of the legal notice
Ex.P.8 : Postal receipt
Ex.P.9 : Postal acknowledgment
Ex.P.10 : Postal tracking details
Ex.P.11 : Reply notice
Ex.P.11(a) : Empty postal cover
Ex.P.12 : Investment agreement
Ex.P.13 : Statement of account obtained
from Zerodha Kite App
Ex.P.13(a) : Certificate u/sec.65B of Indian
Evidence Act
3. Witnesses examined on behalf of Accused:
DW1 : Mr. Mohammed Zaid Haque
23
C.C.No.59742/2024
4. Documents marked on behalf of Accused:
Ex.D1 : Copy of notice dated
02.04.2024
Ex.D2 : Copy of reply notice dated
08.04.2024
(P.S. Santhosh Kumar),
XXXIII ACJM, BENGALURU.