Bangalore District Court
Koushalya vs Syed Mehaboob Pasha on 16 April, 2024
1 CC NO.21153/2021
KABC030579562021
IN THE COURT OF THE XII AD DL. CHIEF METROPOLITAN MAGISTRATE, AT BENGALURU Dated this the 16th day of April, 2024 Present:
Present: Smt. Gayathri S Kate, B.Com., LL.B. XII Addl. Chief Metropolitan Magistrate, Bangalore.
C.C.No. 21153/2021 Smt.Koushalya, W/o.Late.M.Subramani, Aged about 65 years, R/at No.2031, KMS Nilaya, S.Ramesh Road, T. Dasarahalli, Bengaluru-560057. .....COMPLAINANT (Rep.By Sri.V.S., Adv.) /Versus/ Mr.Syed Mehaboobpasha, S/o.Syed Ubedulla, Aged about 25 years, R/at No.47, 3rd Cross, Ravindranagara, T.Dasarahalli, Bengaluru-560057. .......ACCUSED (Rep.By Sri.S.N.M, Adv.) Date of offence : 01.12.2020 Date of report : 01.03.2021 Arrest of the accused : Accused released on bail 2 CC NO.21153/2021 Name of the complainant : Smt.Koushalya Date of recording of evidence : 04.04.2022 Offence alleged : S.138 of N.I.Act Opinion of the Judge : Accused found guilty J UD GME N T The complainant has filed this complaint under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
2. Factual Matrix of the complainant's case is as follows:
It is stated in the complaint that, the accused is known to the complainant through his father from past seven years. Accused father was a real estate agent and the complainant has purchased a site through his father contact. On account of their well acquaintancy, in the month of February 2019 accused approached the complainant for hand loan of Rs.7,00,000/- for discharge of some financial liabilities and the complainant had pledged her gold with financers and also she had given her rented house for lease and arranged the sum of Rs.7,00,000/- and paid in the month of May 2019 and accused assured the complainant that the said amount will be repaid by him on or before August 2020. When complainant demanding the accused for repay said amount, the accused requested for some more time till December 2020 and on the basis of such request, the complainant agreed upon the same. Further, when the complainant approached 3 CC NO.21153/2021 the accused on 1st December 2020, the accused issued three cheques on 01.12.2020 i.e., bearing No.007878 for Rs.3,00,000/-, another bearing No.007879, for Rs.2,00,000/- and another bearing No.007880, for Rs.2,00,000/- all cheques were drawn on Axis Bank Ltd., 8th Mile, Tumkur BNGR KT Branch, Bengaluru-560057. As per the instructions of the accused, the complainant has presented the said cheques for encashment through her Banker at Federal Bank, Jalahalli Branch, Bangalore on 04.12.2020. The said cheques were returned with an endorsements "Account is Frozen"
dated:05.12.2020. Once again presented the said cheques for encashment on 17.12.2020, but to the shock and surprise of the complainant, the said cheques came to be dishonour for reason "Account is Frozen" on 18.12.2020. Thus, the complainant has issued legal notice on 13.01.2021 to the accused calling upon the accused to repay the cheques amount within 15 days from the date of receipt of the said notice. The said notice was duly served upon the accused. But, the accused did not repay amount. Hence, the complainant constrained to file present complaint against the accused for the alleged offence punishable under section 138 of Negotiable Instruments Act.
3. The court has perused the complaint and annexed documents and has recorded the sworn statement of the complainant and marked 15 documents as Ex.P-1 to Ex.P-15. As there were sufficient materials to constitute the offence, cognizance was taken and this court proceeded to pass an 4 CC NO.21153/2021 order for issuing process against the accused.
4. On finding a prima-facie case against the accused, he was summoned consequent to the service of summons, the accused has appeared through his counsel and offered bail. He was enlarged on bail. Then, the substance of accusation was read over and explained to the accused in the language known to him. The accused has not pleaded guilty and claimed to be tried.
5. As per the directions of Hon'ble Supreme Court of India in "Indian Bank Association V/s Union of India & Others reported in (2014) 5 SCC 590 , this court has treated the sworn statement of the complainant as complainant evidence. Then, in compliance with the direction of Hon'ble Apex Court in the aforementioned ruling, the case was posted for defence evidence after recording the statement of the accused under section 313 of Cr.P.C. Later, the accused moved an application seeking recall of PW-1 for cross examination and has conducted cross examination of PW-1. As the accused has submitted in his statement under section 313 of Cr.P.C. that, he will lead evidence and the accused examined himself as DW-1 and not marked any documents as on his behalf.
6. By reserving the right to file the written arguments by accused, the case is posted for judgment. Perused entire materials available on record.
7. The points that would arise for my consideration are 5 CC NO.21153/2021 as under:
POINTS i. Whether the complainant proves beyond all reasonable doubt that, the accused issued three cheques on 01.12.2020 i.e., bearing No.007878 for Rs.3,00,000/, another bearing No.007879, for Rs.2,00,000/ and another bearing No.007880, for Rs.2,00,000/ all cheques were drawn on Axis Bank Ltd., 8th Mile, Tumkur BNGR KT Branch, Bengaluru560057, towards discharge of his liability in favour of the complainant. On presentation for encashment through her banker at Federal Bank, Jalahalli Branch, Bangalore, the said chques were dishonoured for "Account is Frozen", on 05.12.2020 & 18.12.2020, then inspite of issuing demand notice to the accused in compliance of statutory requirement under Negotiable Instruments Act, accused did not repay the cheques amount, thereby he has committed an offence punishable under section 138 of Negotiable Instruments Act?
ii. What order or sentence?
8. My answer to above points are as under:
Point No.1 : In the affirmative
Point No.2 : As per final order
for the following:
REASONS
9. Point No.1 : To substantiate the case of the
6 CC NO.21153/2021
complainant, complainant examined himself as PW-1 and got marked 15 documents as Ex.P-1 to Ex.P-15. In support of her testimony, she has produced the cheques issued by accused and the same are marked as Ex.P-1 to Ex.P-3, signature of the accused on the cheques are marked as Ex.P-1(a) to Ex.P-3(a), Bank return memos as "Account is Frozen" are marked as Ex.P-4 to Ex.P-9, a copy of legal notice issued to accused is marked as Ex.P-10, copy of postal documents having issued to the registered address of the accused are marked as Ex.P-11 and P-12, Postal Acknowledgement is marked as Ex.P-13, Postal Track Consignment is marked as per Ex.P-14, House Lease Agreement is marked as per Ex.P-15.
10. In the affidavit filed along with the complaint, the complainant has re-iterated the contents of complaint stating that she has lend money to the accused and about issuance of cheques by the accused towards repayment of legally enforceable debt. When the testimony of the complainant and supporting documents like Ex.P-1 to Ex.P-9 are looked into, prima-facie appears that, the accused has issued cheques in discharge of his legally enforceable debt and when the same was present, it was not bounced due to insufficient fund at accused bank account. The Ex.P-10 is the demand notice which was issued by the complainant to the accused, in compliance with statutory requirement under section 138 of Negotiable Instruments Act, calling upon the accused to repay the cheque amount. On perusing Ex.P-11 to Ex.P-14, the 7 CC NO.21153/2021 demand notice was addressed to the accused and the same was duly served upon the accused.
11. On perusal of the documents relied by the complainant shall reveal that, statutory requirements under section 138 of NI Act is complied with. Thus, the complainant relied on the statutory presumptions enshrined under section 118 R/W Sec. 139 of NI act. Section 118 of NI Act reads as here:
"That every negotiable instrument was made or drawn for consideration and that every such instrument, negotiated, or transferred was accepted, endorsed, negotiated or transferred for consideration".
12. Further, Section 139 of NI Act speaks about presumption in favour of a holder. It reads as here:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, or the nature referred to in Section 138, for the discharge, in whole or in part, or any debt or other liability".
13. Combined reading of above said sections raises a presumption in favour of the holder of the cheques that, she has received the same for discharge in whole or in part of any debt or other liability. However, it is settled principle of law 8 CC NO.21153/2021 that, the presumption available under section 139 of NI act can be rebutted by the accused by raising a probable defence.
14. Presentation of the cheques in question for encashment and dishonour of the cheque for the reason "Account is Frozen" is not disputed as it is a matter of record proved by the return memo at Ex.P-4 to Ex.P-9. Therefore, it has been proved that, the cheques were presented within the validity period and dishounoured by the banker of the accused. It is also not disputed that, the cheques were issued by the accused and was drawn on his bank account as he has not denied his signature on the cheques.
15. It is pertinent to note here that, the accused has appeared through his counsel and has conducted cross examination of PW-1. During the course of cross-examination of PW-1 has deposed that:
"Accused and his family members have asked money to me during the month of February 2019. Accused has requested money to me for completion of Construction of his house.
Accused has asked money to me during the month of February but, I have given money to accused during the month of May. By pledging my ornaments and giving my house on lease to others I have given the amount to accused. "
Further, on 13.04.2022 the complainant has particularly deposed in her further cross-examination that:
" I have pledged my ornaments for a sum of Rs.1 Lakh 9 CC NO.21153/2021 at Federal Bank. The remaining amount of Rs.6 Lakhs is arranged by complainant by leasing her house. During the month of February complainant have lease her house. When she has leased her house she has received Rs.1,25,000/- through cheque and remaining amount of RS.4,75,000/- by way of cash. Accused has given the cheques to complainant in his house. When accused has given the cheques to complainant his family members were present. In my presence only the accused has given cheques to complainant. Accused himself has written the cheques and given to complainant.
She has presented the Ex.P.1 to 3 cheques two times. complainant have received the message to my mobile stating that the accused is not having amount in his account. Thereafter, I have asked to accused on mobile. "
16. On the other hand, the accused has stated in his statement recorded under section 313 of Cr.P.C., that there is defence evidence on his behalf. For which accused has examined himself as DW-1. In his examination-in-chief he has stated that the complainant has filed false complaint against him. He has never obtained any loan from the complainant. No notice is served on him. He has not issued any cheques to the complainant.
During the course of cross-examination, DW.1 has particularly admitted as below:
"Now. Ex.P-1 to 3 are shown to the witness, witness admits that, his signature is appearing at Ex.P-10 CC NO.21153/2021
1 (a) to Ex.P.3(a). I have not replied to the notice stating that the Ex.P.1 to Ex.P-3 cheques are given in the police station as a security.
After 2-3 days of taking of cheque by complainant I have gone to the bank for stop payment. Upon my instruction my affidavit is drafted my counsel."
Further, on 19.01.2024 during the further cross- examination of DW.1, the accused has particularly admitted that:
" ಅಕಕಟ ಪಪ ಪಸನ ಆದ ಬಗಗ ವಚರ ತಳದ ನತರ ನನ ಬಬ ಕಕಗ ಹಪಗ ಡಪಪಪ ಪಜ ಬಗಗ ಅರರಯನನ ಸಲಲ ಸರವದಲಲ ."
17. Further, the accused was conducted cross- examination by the learned counsel for complainant. During the course of cross-examination DW.1 has admitted that the address mentioned on legal notice belongs to him. The admissions deems that accused is having every knowledge of filing of the case against him by the complainant. Per contra the accused has not taken any legal action against complainant for wrongful incorporation of accused in the present case. The reason behind the non-taking of legal action against the complainant remains un-questioned and accused has failed rebut the same.
18. Further, the accused has not given any reply to the notice issued by the complainant. This itself shows that, the accused has admitted issuance of Ex.P-1 to Ex.P-3 cheques to the complainant. The accused has borrowed loan from the 11 CC NO.21153/2021 complainant and issued Ex.P-1 to Ex.P-3 cheques towards discharge the said loan amount. Otherwise, he would had put some defence before this court. Thus, availment of loan is proved.
19. In K. Nagaraj V/s P.N. Lingesh Babu reported in 2022(1) KCCR 63 Hon'ble High Court of Karnataka has opined that:
"The defence taken up by the accused contending that, the cheque in question was issued to the complainant in a previous loan transaction and the same has been misused by the complainant is found only to be a mere suggestion without proof, without any corroboration. Thus, the same cannot rebut the presumption that has been already formed in favour of the complainant".
20. In the present case, mere suggestions without proof, without corroboration, which shall raise presumption that accused has issued cheques in favour of complainant that has been already formed in favour of the said complainant.
21. Therefore, the complainant has successfully proved that, accused has issued cheques in question in discharge of legally enforceable debt. Per contra, the accused has failed to rebut the evidence of the complainant. When such being the case, it shall be presumed that, the complainant has received the cheques in discharge of legally enforceable debt or other 12 CC NO.21153/2021 liability.
22. Having regard to facts and circumstances of the case, it is crystal clear that the complainant has proved his case beyond reasonable doubt. Per contra, the accused has failed to rebut the evidence of the complainant. Accordingly, this court proceeds to answer point No.1 in the Affirmative.
23. Point No.2: The Hon'ble Apex Court in its recent decision in M/s Meters and Instruments Pvt., Ltd., V/s Kanchana Mehtha reported in (2018) 1 SCC 560 held that "the object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.
24. Therefore, having regard to loan amount, time from which it is lying with the accused, I am of the opinion that, if accused is directed to pay fine of Rs.7,55,000/- and out of that, amount of Rs.7,50,000/- is ordered to be paid to the complainant as compensation under section 357 of Cr.P.C. for suffering monetary loss, would meet the ends of justice. Hence, this court proceed to pass the following::
O RDE R In exercise of powers conferred under section 255(2) of Cr.P.C, the 13 CC NO.21153/2021 accused is convicted for the offence punishable under section 138 of The Negotiable Instruments Act.
The accused is sentenced to pay fine of Rs.7,55,000/- and in default he shall undergo simple imprisonment for the term of 6 months.
Out of fine amount of Rs.7,55,000/- a sum of Rs.7,50,000/- is ordered to be paid to the complainant towards compensation under section 357 of Cr.P.C. and the balance amount of Rs.5,000/- shall be remitted to state as defraying expenses.
Office is directed to supply free copy of the judgment to the accused.
(Dictated to the stenographer on the computer, typed by her corrected and then pronounced by me in the open court this 16 th day of April, 2024) (Smt. Gayathri S. Kate) XII Addl.C.M.M.,Bengaluru.
s A N N EXU RE S I. List of witness examined on behalf of the complainant:-
PW-1 : Smt.Koushalyalya
14 CC NO.21153/2021
II. List of Witness examined on behalf of the Defence:-
DW-1 : Mr.Syed Mehaboob Pasha
III. List of documents marked on behalf of the
complainant:-
Ex.P-1 to P-3 : Original Cheques
Ex.P-1(a) to P-3(a) : Signature of Accused Ex.P-4 to P-9 : Bank Endorsements Ex.P-10 : Legal Notice Ex.P-11 & P-12 : Postal receipts Ex.P-13 : Postal Acknowledgement Ex.P-14 : Postal Track Consignment IV. List of documents marked on behalf of for the Defence:-
Nil Digitally signed by GAYATHRI S KATE GAYATHRI Date: S KATE 2024.04.20 00:49:39 +0530 (Smt. Gayathri S. Kate) XII Addl.C.M.M.,Bengaluru.15 CC NO.21153/2021 16 CC NO.21153/2021