Bangalore District Court
A.Nishar Ahmed vs Samiyulla on 18 April, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 18th day of April - 2016
PRESENT: SRI. L.R. KURANE, B.Com., LL.B., (Spl.)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.230/2015
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : A.Nishar Ahmed,
S/o.Abubakkar,
Aged about 42 years,
R/at No.1851, 12th Main Road,
II Phase, RPC Layout,
Vijayanagar, Bengaluru-40.
(Rep.By Sri.S.Chennakesavalu,
Advocate)
V/S
Accused : Samiyulla,
S/o.Attulla,
No.63A, 1st Cross,
C.N.Complex, Pipe Line Road,
Vijayanagar,
Bengaluru-40.
Also R/at 8th Main Road,
5th Cross, Ward No.134,
Samanna Garden,
Gudadahalli, Mysore Road,
Bengaluru-26.
C/o. Muneer Ahmed Shariff,
No.2/2, 1st Floor, 7th Cross,
Lakshmi Road, Shanthi Nagar,
Bengaluru-27.
(Rep. By Sri.S.G.Nataraju, Advocate)
Judgment 2 C.C.230/2015
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 18.04.2016
(L.R. KURANE)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
This complaint has filed by the complainant against the accused under Section 200 Cr.P.C., for the offence punishable under Section 138 of Negotiable Instruments Act, to take cognizance of the offence under Section 138 of Negotiable Instruments Act, and punish the accused in accordance with law.
2. The brief facts of the complaint are as under:
The complainant and accused knew each other from past several years. In the month of May, 2012, the accused approached him and sought for financial assistance of Rs.6,50,000/- for improvement of his business, on a condition that, the accused agreed to return the said loan amount within six months. It is further stated that, on the Judgment 3 C.C.230/2015 date of payment of hand loan the complainant specifically informed to the accused it is in huge amount and the complainant has agreed to issue cheque in favour of accused, but the accused insisted to pay the hand loan in cash. Accordingly, the complainant has paid Rs.1 lakh on 08.05.2012, Rs.2 lakhs on 19.06.2012, Rs.3 lakhs on 17.07.2012 and on 18.07.2012 Rs.50,000/- in total Rs.6,50,000/-. It is further stated that, the accused after receipt of said hand loan did not turn up, the complainant approached the accused several times on requested for payment, but the accused went on taking time to pay the loan amount and has finally issued the cheque bearing No.698334, dated:06.09.2014 for Rs.6,50,000/- drawn on State Bank of Mysore, Vijayanagar Branch, Bengaluru in favour of complainant.
It is further case of complainant that, as per accused promise, the complainant has presented the said cheque through his banker viz., State Bank of India, Rajajinagar Branch, Bengaluru for its encashment and the same was returned dishonoured with an endorsement "Funds Insufficient" in the account of accused dated:18.10.2014. Judgment 4 C.C.230/2015 On 29.10.2014, the complainant has issued a legal notice to the accused by RPAD calling upon him to pay the cheque amount and the said notice was duly served upon the accused on 30.10.2014. After service of notice, the accused neither replied nor paid the cheque amount to the complainant. Hence, the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act.
3. This Court after perusing records, took cognizance of offence, and sworn statement of the complainant has been recorded. The Criminal Case has been registered against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove his case, got examined himself as PW-1 and got marked ten documents at Exs.P1 to P10 and closed his side. After completion of Judgment 5 C.C.230/2015 the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence available against him. The accused in order to disprove his case got examined himself as DW.1 and got marked three documents at Exs.D1 to D3 and closed his side.
5. I have heard the arguments on both the sides.
6. The following points would arise for my consideration:
1. Whether the complainant proves beyond all reasonable doubt that, the accused had availed a hand loan of Rs.6,50,000/- for improvement of his business and has issued a cheque bearing No.698334, dated:06.09.2014 for Rs.6,50,000/- drawn on State Bank of Mysore, Vijayanagar Branch, Bengaluru, towards legally enforceable debt?
2. Whether the complainant further proves beyond all reasonable doubt that, the accused has committed an offence punishable U/S 138 of NI Act?
3. What Order?Judgment 6 C.C.230/2015
7. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS
8. POINT NOs.1 & 2: These two points are inter- linked in order to avoid repetition of facts both points are taken for discussion at once.
In order to prove his case, the complainant has examined himself as PW.1 and PW.1 in his examination in chief led by way of affidavit has reiterated the complaint averments. Apart from the oral evidence, the complainant has also produced the documents namely the cheque at Ex.P1 issued by the accused for Rs.6,50,000/- and the same was presented by the complainant for its encashment and the said cheque was dishonoured with an endorsement "Funds Insufficient". Ex.P2 is the Endorsement issued by State Bank of India, Rajajinagar V-Block Branch, Bengaluru dated:18.10.2014, Ex.P3 is the legal notice issued by the complainant to the accused making payment of cheque amount, Exs.P4 to P6 are the Postal Receipts, Judgment 7 C.C.230/2015 Ex.P7 is the Unserved Postal Cover, Exs.P8 and P9 are the Postal Acknowledgment Cards and Ex.P10 is the Statement of Account in respect of complainant account issued by the Dena Bank, Brigade Road, Bengaluru.
9. It is the defence of accused that, he do not know the complainant and he has not requested Rs.6,50,000/- hand loan from the complainant. The accused denied that, in the month of May, 2012 he had availed hand loan of Rs.6,50,000/-. It is further defence of accused that, he has not issued the disputed cheque for discharge of liability. It is further defence of accused that, the cheque in question was misplaced in the office and after receiving the notice from complainant he came to know that, the said cheque was misused and he replied to the notice of complainant.
10. The PW.1 in his examination in chief has deposed the facts of the case and documents produced. The PW.1 in his cross-examination stated that, he is doing Electronic Business in Kamakshipalya, he has not produced any document in this regard. It is false to suggest that, the accused is not know to him. He stated that, in the examination in chief has not mentioned when the accused Judgment 8 C.C.230/2015 has requested for hand loan from him. He is not an income tax assessee; the accused alone came to get the money. He stated that, at the time of payment of hand loan he has not obtained document from the accused. He stated that, at the time of payment of hand loan to the accused his brother was present, he paid loan amount to the accused in cash. He stated that, he sold the property and the amount received from the said property was kept in the bank and by withdrawing the amount he paid Rs.6,50,000/- to the accused. The complainant stated that, on 08.05.2012, 19.06.2012, 17.07.2012 and on 18.07.2012 he has not obtained any cheque from the accused or other documents from the accused. The PW.1 stated that, he do not know that the writings in the cheque not belongs to accused and stated that, the accused was wrote the contents of cheque and given to him. The PW.1 stated that, in the Ex.P1, the year has been materially altered, but stated that; he has not made alteration of the year in the disputed cheque. The PW.1 in the cross-examination further stated that, it is true to suggest that, in the complaint it is mentioned that, he is having bank account in State Bank of India, Rajajinagar Branch, Bengaluru. He has not produced bank Judgment 9 C.C.230/2015 statement of SBI Bank. He admitted that, Ex.P10 belongs to Dena Bank and it is his savings bank account. The PW.1 admitted that, Rs.56 lakhs from Nitte Engineering has been credited to his account through RTGS and he has not declared the said amount in the Income Tax Returns. He also admitted that, this fact has been not stated in the complainant. The PW.1 stated that, he has no problem to pay the hand loan to the accused through cheque, but stated that, the accused has requested him to pay the hand loan in cash. In the entire cross-examination, the accused has not put suggestion denying that he has not obtained hand loan of Rs.6,50,000/- from the complainant. The accused in the cross of PW.1 has not disputed the financial capacity of complainant to pay the amount of cheque to him.
11. The accused/DW.1 in his examination in chief stated that, he do not know the complainant and he has not requested the complainant to grant a hand loan of Rs.6,50,000/- and has not obtained Rs.6,50,000/- from the complainant. The accused stated that, he had not issued the disputed cheque to complainant for discharge of liability. The accused stated that, after receipt of legal Judgment 10 C.C.230/2015 notice from the complainant he came to know that, the complainant has misused the disputed cheque in this case and has replied to the said legal notice of complainant. The accused stated that, the disputed cheque was misplaced in his office. The DW.1 in his cross-examination admitted that, his Bengaluru Motors Show Room and house of complainant situated in the same area. The DW.1 in his cross-examination has denied the suggestion made by complainant counsel. The DW.1 stated that, he has not lodged missing complaint to the police regarding missing of cheque.
12. The advocate for accused argued that, the complainant has not examined other witnesses to prove passing of consideration from complainant to accused. The advocate for accused further argued that, the entire case of complainant is based on sole testimony of him. The advocate for accused argued that, the complainant has not paid the amount in one lumpsum, but he has alleged to have been paid in installments. The advocate for accused argued that, the complainant in the cause title has not stated his profession and not produced any document to show that, he is doing electronics business. The advocate Judgment 11 C.C.230/2015 for accused further argued that, on what date the accused has availed loan from complainant and the complainant has not obtained any document from the accused from 2012 to 2014. The advocate for accused further argued that, in the year 2012, the loan was advanced and in the year 2014 the cheque has been issued. The advocate for accused submitted that, a prudent man should not wait for two years after payment of hand loan and the advocate for accused further argued that, why the complainant has not taken the cheque at the time of payment of hand loan to the accused.
13. The accused in the cross-examination of PW.1 has not made suggestion denying the financial capacity of complainant to pay the amount of cheque. The accused even has not made suggestion stating that, he has not obtained hand loan of Rs.6,50,000/- from the complainant as stated in the complaint. The accused in the examination in chief stated that, after receipt of notice from the complainant he came to know that, his cheque was misused by the complainant. But the accused in his evidence or in his reply notice has not stated how the complainant is in possession of his disputed cheque. The Judgment 12 C.C.230/2015 accused even has not lodged police complaint regarding missing of the cheque in the office and not filed application to bank to stop the payment of disputed cheque, if presented for encashment. Therefore, the story of accused is baseless and it is untenable under the law.
14. The advocate for accused further argued and brought to notice of this court that, the complainant has not produced his SBI Bank account statement and submitted that, the complainant has produced Ex.P10 Dena Bank Statement of account and submitted that, it is his personal account and stated that, Ex.P10 discloses that, Rs.56 lakhs was credited to the account of complainant from Nitte Engineering which is not declared in the I.T. Returns and further argued that, it is a black money.
15. It is a looked out of the bank to intimate to the concerned department regarding the amount in the account of complainant or the bank has right to deduct income tax from the account of complainant and remit the same to the income tax department. Therefore, the argument of accused counsel is not tenable.
Judgment 13 C.C.230/2015
The advocate for accused has relied upon ruling reported in Crl. L. J 2015 page 912 (Supreme Court). I have gone through the facts of above said ruling, the facts of above said ruling is totally different from the case in hand. Moreover, the accused in the cross of PW.1 has not disputed the financial capacity to pay the amount of cheque and he has not proved the stands taken by him, therefore the above said ruling is not helpful defence of accused.
The advocate for accused has also relied upon ruling reported in Crl. L. J 2014 page 2304. The Hon'ble Apex Court in the above said ruling held that:
"Dishonour of cheque - Complainant alleging that accused borrowed a sum of Rs.1,50,000/- from him and issued a cheque for said sum which was dishonoured - For drawing presumption under S.118 r.w. S.139 burden is heavily upon complainant - Complainant not sure as to who wrote cheque nor aware as to when and where existing transaction took place for which cheque was issued by accused - Defects in evidence of complainant as noted by trial court brushed aside by High Court without assigning Judgment 14 C.C.230/2015 any valid reason - Conviction of accused therefore, not proper".
16. The facts of present case in hand is totally different from the facts of above said ruling. Moreover, to adopt the principles laid down by the Hon'ble Apex Court in the above said ruling, the accused has not disputed the financial capacity of complainant. Therefore, the said ruling is not helpful to the defence of accused.
17. The accused has failed to prove that, how the complainant is in possession of disputed cheque. Therefore, it is presumed that, the complainant has paid an amount of Rs.6,50,000/- to the accused in the month of May, 2012 and for the discharge of the said loan the accused has issued the disputed cheque i.e., Ex.P1. The complainant has complied the statutory provisions of Section 138 of Negotiable Instruments Act to punish the accused. The complainant by leading oral and documentary evidence proved that, the accused has committed an offence punishable under section 138 of Negotiable Instruments Act. In view of the above said reasons, I hold point Nos.1 and 2 in the Affirmative. Judgment 15 C.C.230/2015
18. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.9,10,000/- (Rupees Nine lakhs ten thousand only). In default shall under go simple imprisonment for 1 (one) year.
Out of the total fine amount of Rs.9,00,000/- (Rupees Nine lakhs only) is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.10,000/- (Rupees Ten thousand only) shall be remitted as fine to the State.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 18th day of April - 2016) (L.R. KURANE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 16 C.C.230/2015
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : A.Nishar Ahmed List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Exs.P4 to P6 : Postal Receipts Ex.P7 : Postal Cover Exs.P8 & P9 : Postal Acknowledgment Cards Ex.P10 : Statement of Account
List of Witnesses examined on behalf of the defence:
DW.1 : Mohammed Samiulla List of Exhibits marked on behalf of defence:
Ex.D1 : Reply Notice
Ex.D2 : Postal Receipt
Ex.D3 : Letter dtd:27.01.2015
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 17 C.C.230/2015
18.04.2016.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.9,10,000/- (Rupees Nine lakhs ten thousand only). In default shall under go simple imprisonment for 1 (one) year.
Out of the total fine amount of Rs.9,00,000/- (Rupees Nine lakhs only) is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.10,000/- (Rupees Ten thousand only) shall be remitted as fine to the State.Judgment 18 C.C.230/2015
The bail bond and surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.