Bangalore District Court
Mr. Mohammed Sadiq Khader Pasha vs Mr. Safdar Pasha on 14 September, 2015
IN THE COURT OF THE XVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED : THIS THE 14TH DAY OF SEPTEMBER 2015
PRESENT: LAKSHMINARAYANA BHAT.K., B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
C.C.NO: 10356/2013
Complainant: Mr. Mohammed Sadiq Khader Pasha,
S/o. Mohammed S.E.A. Pasha,
Aged about 40 years,
Residing at No: 12,
Anjaneyappa Layout,
1st Main, Maruthi Nagar,
Yelahanka
Bangalore-560 064.
(Represented by Mr. Baba Jan.,
Advocate)
V/s.
Accused : Mr. Safdar Pasha,
Managing Director,
Marhabaa Harman Tours
International,
No.23, 1st Floor, More Road,
Frazer Town,
Bangalore-560 006.
(Represented by Mr. Mohammed
Thoufeed., Advocate)
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Final order Accused is found guilty
Date of order: 14/09/2015
2 CC.No: 10356/2013
JUDGMENT
The complaint was filed against the accused for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter in short referred as N.I. Act.).
2. After filing of the complaint, cognizance of the offence was taken. After recording sworn statement in pursuance of summons, presence of the accused was secured and he was enlarged on bail. The substance of accusation was recorded and the accused pleaded not guilty.
3. To prove the complaint averments, the complainant was examined as P.W.1 and has produced documents marked as per Ex.P.1 to Ex.P.13. The statement of the accused under Section 313 of Cr.P.C was recorded. The accused has not led any evidence in defence.
4. Heard the arguments. The accused and his counsel remained absent and therefore defence side argument was taken as nil.
5. After analyzing the averments made in the complaint, oral and documentary evidence placed on record and after hearing the arguments, at this stage the points that arise for my determination are:-
1) Whether the complainant has proved Ex.P.1 cheque issued by the accused in discharge of his liability came to be dishonoured and even after 3 CC.No: 10356/2013 service of notice, the accused had failed to pay the amount and thereby he is guilty of the offence punishable under Section 138 of N.I.Act?
2) What order?
6. My findings on the aforesaid points are as under:-
POINT NO.1 : In the Affirmative, POINT NO.2 : As per final order, for the following:-
REASONS
7. POINT NO.1:- As per the complaint averments, the accused and his family members are poise muslims and were intending to undertake Haj pilgrimage. During October 2011 the accused approached the complainant and claimed he is the Managing Director of Marhabaa Harman Tours International. The accused has induced the complainant to enter into a package deal with them for pilgrimage to Macca and Madina at the cost of Rs.1 Lakh per person. The accused had explained to the complainant that they are going to invest Rs.1 Lakh amount paid by the complainant in gold business. Therefore, if they failed to arrange pilgrimage, they would return the amount with compensation. Accordingly, the complainant had booked package tour with the accused at the cost of Rs.1 Lakh per person. The complainant submits in accordance with the aforesaid agreement, he claimed to have paid a sum 4 CC.No: 10356/2013 of Rs.4 Lakhs to the accused through three cheques drawn on HDFC Bank as per following details.
(1) Cheque bearing No: 185320 dated 31/10/2011 for Rs.2 Lakhs. (2) Cheque bearing No: 185321 dated 14/11/2011 for Rs.1 Lakh. (3) Cheque bearing No: 185322 dated 24/11/2011 for Rs.1 Lakh.
It is also alleged the accused had issued a valid receipt for these payments. The complainant and his three family members started to make arrangements for their proposed Haj piligrimage. The complainant has stated in the month of October 2012 the accused announced that he could not arrange the Haj piligrimage and offered to refund the money paid by the complainant along with compensation of Rs.2 Lakhs in discharge of his liability. The accused alleged to have issued a cheque in favour of the complainant dated 20/11/2012 for Rs.6 Lakhs drawn on HDFC Bank, Mosque Road, Bangalore. The complainant has presented the said cheque, but as per memo dated 4/2/2013 the said cheque returned unpaid with an endorsement "Funds Insufficient". The complainant got issued legal notice dated 16/2/2013 calling upon the accused to make payment of the dishonoured cheque amount. The said notice was duly served on the accused on 19/12/2013. After service of notice, the accused has neither made payment nor sent any reply. The complainant in his affidavit filed in lieu of examination-in-chief deposed as per the averments made in the complaint.
5 CC.No: 10356/2013
8. In defence, the accused has specifically denied he had assured the complainant to repay Rs.1 Lakh with additional amount of Rs.50,000/- as compensation in the event he fails to arrange Haj piligrimage. It is further submitted the accused claimed to have repaid Rs.4 Lakhs amount to the complainant by cash. The other defence of the accused is that he had issued a blank signed cheque to the complainant as a security. For the aforesaid reasons he has disputed his liability to make payment of Ex.P.1 dishonoured cheque amount.
9. Amongst the documentary evidence placed on record, Ex.P.1 is the cheque issued by the accused dated 20/11/2012 for Rs.6 Lakhs in favour of the complainant drawn on HDFC Bank, Mosque Road, Bangalore. The accused during cross-examination of the complainant has admitted the said cheque pertains to his Bank account. He has not disputed his signature appearing in the said cheque. As per Ex.P.2 and Ex.P.3 memo dated 4/2/2013 and 5/2/2013 the said cheque returned unpaid with endorsements "Funds Insufficient". Ex.P.7 is the statutory demand notice sent on behalf of the complainant intimating dishonour of the cheque and calling upon the accused to make payment of the cheque amount. The said notice was duly served on the accused as per Ex.P.9 to Ex.P.11 postal acknowledgements. Ex.P.13 is the Bank account extract appearing in the name of the complainant issued by HDFC Bank, I.T.Park, Whitefield Road, Bangalore. As per this document and the 6 CC.No: 10356/2013 entries dated 31/10/2011, 16/11/2011 and 24/12/2011 a sum of Rs.2 Lakhs and Rs.1 Lakh each respectively, in all Rs.4 Lakhs were encashed by the accused Marhabaa Harman Tours International. The contents of Ex.P.13 account extract is in consonance with Para No:2 of Ex.P.7 demand notice, Para No:4 of the complaint and Para No:3 of the affidavit filed by the complainant in lieu of his examination-in-chief regarding Rs.4 Lakhs given to the accused through above referred cheques. Ex.P.4 to Ex.P.6 are the receipts issued by the accused at the time the complainant has made payment of Rs.4 Lakhs on 14/11/2011, 24/12/2011 and 27/10/2011. In these receipts, there is specific reference regarding the payment was made through cheque as referred in the complaint and Ex.P.13 Bank account extract.
10. Ex.P.12 is the agreement entered into between the complainant and the accused dated 27/10/2011. As per the document, the accused had assured to make arrangement for Haj piligrimage to the complainant and three other persons and there is also specific reference regarding payment of Rs.4 Lakhs as claimed by the complainant. The accused has not disputed issuance of Ex.P.5 to Ex.P.7 receipts in favour of the complainant. In Ex.P.12 agreement there is also specific reference regarding the accused had promised to make repayment of Rs.1 Lakh with additional amount of Rs.50,000/- to each traveler in the event he fails to make arrangement for the Haj piligrimage. The accused had 7 CC.No: 10356/2013 claimed they are intending to invest the paid amount in gold business and taking hotels on lease in Mecca and Medina and if they get more benefit in the above business, they have assured to arrange to give more than Rs.50,000/- to each person. As per the terms and condition of Ex.P.12 agreement, the accused had assured to make repayment of minimum compensation of Rs.50,000/- to each traveler in the event of their failure to make arrangement of the tour. In Ex.P.12 there is specific reference regarding issuance of Ex.P.1 cheque in favour of the complainant for Rs.6 Lakhs towards payment of advance amount. In order to prove the accused had repaid Rs.6 Lakhs to the complainant, he has not produced any documents. Secondly, in the event the accused had made repayment, there was no necessity or occasion for him to issue Ex.P.1 cheque in favour of the complainant for Rs.6 Lakhs.
11. In the entire cross-examination of the complainant, the accused did not dispute his liability to make payment of Rs.4 Lakhs to the complainant. He has failed to prove the repayment of Rs.4 Lakhs to the complainant as suggested during cross-examination of the complainant. As per Section 139 of N.I. Act, there is a legal presumption in favour of the complainant that unless the contrary is proved Court shall presume that the cheque had been issued in discharge of any debt or liability. In the case on hand, by producing Ex.P.12 agreement, the complainant has proved the accused in discharge of his liability to make 8 CC.No: 10356/2013 repayment of advance amount of Rs.4 Lakhs had issued Ex.P.1 cheque for Rs.6 Lakhs dated 20/11/2012 drawn on HDFC Bank, Mosque Road, Bangalore. As per Ex.P.2 and Ex.P.3 memo issued by the Bank, the said cheque came to be dishonoured and even after service of notice the accused has not even chosen to send any reply disputing his liability. Even during the course of trial, the accused has not led any positive evidence to substantiate his defence. Mere tendering suggestion during cross-examination of the complainant regarding discharge of debt or repayment of amount is not sufficient. The accused has failed to elicit any damaging admission from the mouth of the complainant regarding repayment of Rs.4 Lakhs to the complainant. In this regard, I have referred Judgment reported in AIR 2010 Supreme Court 1898 in Rangappa V/s. Mohan case. In Para No.14 of the Judgment Hon'ble Apex Court held, it is a settled proposition that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubt about existence of legally enforceable debt or liability, the prosecution can fail. That on applying the proposition of law, during cross-examination of the complainant, the accused has miserably failed to take a probable defence and to prove his defence by placing prima facie evidence. The complainant has fulfilled all the ingredients of an offence punishable 9 CC.No: 10356/2013 under Section 139 of N.I. Act. Therefore, for the aforesaid reasons my findings on Point No.1 is in the affirmative.
12. POINT NO.2:- In view of my findings on Point No.1., the accused is liable to be convicted for the offence punishable under Section 138 of N.I. Act. Hence, I proceed to pass the following:-
ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is sentenced to pay fine of Rs.6,20,000/- (Rupees Six Lakhs Twenty Thousand Only) and in default shall undergo simple imprisonment for 1 (One) year.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.6,00,000/- (Rupees Six Lakhs Only) cheque amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.20,000/- (Rupees Twenty Thousand Only) is defrayed to the State for the expenses incurred in the prosecution. (Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 14th day of September 2015).
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.10 CC.No: 10356/2013
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Mohammed Sadiq Khader Pasha.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:539742 dated 20/11/2012 for Rs.6,00,000/-.
Ex.P.1(a) : Signature of the accused. Ex.P.2 and 3 : Bank endorsements. Ex.P.4 to 6 : Payment receipts. Ex.P.7 : Office copy of demand notice. Ex.P.8 : Postal receipt. Ex.P.9 to 11 : Postal acknowledgements. Ex.P.12 : Agreement. Ex.P.13 : Bank account extract.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
- Nil -
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
- Nil -
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.11 CC.No: 10356/2013
(Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is sentenced to pay fine of Rs.6,20,000/- (Rupees Six Lakhs Twenty Thousand Only) and in default shall undergo simple imprisonment for 1 (One) year.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.6,00,000/- (Rupees Six Lakhs Only) cheque amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.20,000/- (Rupees Twenty Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XVIII A.C.M.M., BANGALORE.