Bangalore District Court
R/At No.12 vs No.8/ on 4 October, 2021
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 4th DAY OF OCTOBER, 2021
PRESENT
Sri. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.52260/2019
Sri. Chand Pasha
S/o Grouse Mohaddin
COMPLAINANT R/at No.12, 1st Floor, 8th Cross, Gandhi Nagar, K.G.
Halli, Bengaluru - 560 045.
Sri. Amjad Ali
S/o. Late Inayath Ali
ACCUSED
No.8/11, Near Sai Temple, Opp : Nehru Stadium,
Masum Hospital, Bidar.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(K. GURUPRASAD)
XIV ADDL. C.M.M., BENGALURU
2
JUDGMENT
The present complaint is filed under Sec.200 Cr.PC for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act.
2. Brief facts of the complainant case are that the complainant purchased two used Ashok Leyland Buses (second hand) bearing No.GA-08-U-9564 and No.GA-08-U-9264 from the accused after entering into vehicle sale agreement on 07.03.2018 for valuable sale consideration. Thereafter, since the accused failed to hand over original documents and Form Nos.29 and 30 for transfer of ownership of vehicles, in spite of request of the complainant, the complainant requested the accused to refund advance amount paid by the complainant towards purchase of Buses i.e., Rs.3,50,000/- and Rs.5,00,000/- to the complainant. Towards said liability, the accused issued a post dated cheque bearing No.124022 for Rs.5 lakhs in the name of friend of the complainant and cheque bearing No.124036 dtd.27.09.2019 for Rs.3,50,000/- drawn on Axis Bank, J.C. Road, Bengaluru in the name of complainant. When the complainant presented said cheque of Rs.3,50,000/- for encashment to his banker i.e Syndicate Bank, K.G. Halli branch, Bengaluru, the said cheque came to be dishonoured on 12.12.2018 for the reason "Payment stopped by drawer".
3When the complainant got issued legal notice dtd.09.01.2019 to the accused calling upon the accused to pay the cheque amount within 15 days, said notice was returned with postal shara "unclaimed". The accused who has failed to pay the cheque amount is guilty of the offence punishable under Section 138 of N.I. Act. Hence this complaint.
3. After filing of this complaint, 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. Accordingly, criminal case was registered against the accused and summons was ordered to be issued.
4. In pursuance of court process issued by this court, the accused has appeared through his counsel and got enlarged on bail. Thereafter plea was recorded. The accused has pleaded not guilty and claimed for trial.
5. In order to prove his case, the complainant himself examined as PW.1 (CW.1) and got marked Ex.P1 to P6 and closed his side of evidence. Thereafter, statement of the accused U/s.313 of Cr.PC was recorded. The accused has not led any documentary or oral evidence. Even though sufficient opportunity has been given to accused to advance arguments, accused has failed to advance arguments.
46. Heard counsel for the complainant. Perused the complaint, evidence on record and court records.
7. The following points arise for my consideration and determination;
1) Whether the complainant proves that the accused has issued cheque in question in discharge of legally enforceable debt or liability as contended by him?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act?
3) Whether the complainant is entitled for the relief's as prayed in the complaint?
4) What Order?
8. The above points are answered as under;
Point No.1 to 3 : In affirmative,
Point No.4 : As per the final order,
for the following.......
REASONS
9. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion.
510. As regard to limitation to file this complaint, it is clear from Ex.P1 to P5 that when the complainant presented the said cheque in question to his banker within three months from the date of said cheque, said cheque came to be dishonoured and that when the complainant got issued statutory notice U/s.138 of N.I. Act to the accused by registered post (within 30 days from the date of intimation of dishonour of said cheque) calling upon the accused to pay the cheque amount within 15 days from the date of receipt of said cheque, the said notice has returned with postal shara "unclaimed" on 21.01.2019.
11. The accused has contended that the statutory notice was sent at wrong address with an intention that the said notice should not reach the hands of the accused. However it is clear from the court records that when this court issued summons to the accused by SPAD., at the same address as shown in Ex.P3 and P5, the said notice was served on the accused. It is clear from the order sheet dtd.03.06.2019 that this court recorded that summons to the accused by SPAD., was served. Since the accused was absent, this court proceeded to issue NBW to the accused and only thereafter the accused put- up his appearance and offered bail on 28.08.2019. The address to which the said summons was sent to the accused is same address to which Ex.P5 postal cover was sent to the accused by registered post. Hence if can be concluded that the address to which Ex.P3 notice was sent to the accused by registered post 6 is correct address of the accused. On the other hand, accused has not adduced any documentary or oral evidence to show that the address to which Ex.P3-statutory notice sent was incorrect. Furthermore, if the address of the accused appearing on Ex.P5-postal cover had been wrong address, then the said postal cover would have returned with postal shara "incorrect address" or "no such person in the address" etc. On the other hand the said postal cover has returned with postal shara as "unclaimed" after intimation left by the postal authorities to the accused from 14.01.2019 to 21.01.2019. Moreover, statutory presumption arises under Sec.27 of General Clauses Act that any notice sent by registered post at correct address is served on the addressee. The burden of rebutting said presumption is on the person who disputes service of said notice. But in the present case on hand, the accused has failed to adduce oral or documentary evidence and thereby to rebut the said presumption of service of the notice. Hence, it is concluded that Ex.P3-notice is properly served on the accused. Hence, the present complaint which is filed after expiry of 15 days from the date of said postal shara on Ex.P5 postal cover and within one month thereafter is in time.
12. As regard to legally enforceable debt or liability, in 2010 (11) SCC 441 - (Rangappa Vs Sri. Mohan), it is held that;
7" The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebutable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the complainant"..............."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 doubts about the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
13. If the facts and circumstances of this case are considered in light of above said principle of law, it is clear that the accused has admitted that the cheque in question is drawn on his bank account and that it bears his signature. Therefore, statutory presumption arises U/s.139 of N.I. Act in favour of the complainant that the cheque in question is issued in discharge of debt or liability. The burden of rebutting the said presumption by probable defence is on the accused.
14. It is the case of the complainant that the accused sold his second hand Ashok Leyland Buses bearing No.GA-08-U-
89564 and No.GA-08-U-9264 to the complainant for valuable sale consideration and that since the accused failed to hand over original vehicle documents and Form Nos.29 and 30 for transfer of ownership of said vehicles, in spite of requests by the complainant, complainant insisted to refund the advance amount paid by the complainant to the accused and towards said liability, the accused issued the cheque in question in favour of the complainant and another cheque of Rs.5 lakhs in the name of friend of the complainant and that cheque in question came to be dishonoured. On the other hand, it is specific defence of the accused that he has never issued any cheque in favour of the complainant or his friend. It is the defence of the accused that complainant has not returned the buses sold by the accused nor has the complainant paid the purchase money to the accused. It is further defence of the accused that the accused has kept his blank signed cheques of different banks in the said buses for the purpose of expenses towards said buses (prior to handing over said buses to complainant). It is further defence of the accused that the said blank signed cheques have fell to the hands of complainant and his friend Mohammed Yusuff when they took custody and possession of those buses. It is further defence of the accused that the complainant has misused one of such blank signed cheques and filed this false complaint though accused is not liable to pay any amount to the complainant.
915. On careful perusal of evidence on record, it is clear that the defence of the accused is not probable nor does it inspire confidence of this court. It is because, the accused has not entered into witness box in this case to depose that he had kept some signed blank cheques of different banks in the said buses (before he handed over said buses to the complainant) and that one of such cheques has been misused by the complainant. In absence of any evidence on such plea, it is difficult to accept such defence. Even though counsel for the accused has put such suggestions to PW.1 during cross- examination, PW.1 has denied such suggestions. Mere suggestions put by counsel for the accused during cross- examination of complainant who denied the same are not substitute for legal evidence in support of defence of the accused. Furthermore, accused has not got issued any notice to the complainant calling upon the complainant to return such blank signed cheques nor has the accused lodged any police complaint against the complainant alleging misuse of one of such blank signed cheques kept in his buses. Moreover, the accused has not disclosed serial numbers of blank signed cheques and the names of the banks and when he had kept such blank signed cheques in the buses etc. Therefore the defence of the accused is vague and uncertain and devoid of necessary particulars and details. Therefore, accused has utterly failed to prove his defence in this case.
1016. On the other hand, the complainant has produced Ex.P6 which is Deed of Cancellation of Sale Agreement of the buses executed between the accused and complainant on 30.06.2018. It discloses that both complainant and accused agreed to cancel and terminate the sale agreement regarding the buses bearing No.GA-08-U-9564 and No.GA-08-U-9264. It further discloses that the complainant who is purchaser received the refund of amount paid towards purchase of said buses from the accused who is vendor by way of post dated cheques i.e., the cheque in question in favour of the complainant and another cheque bearing No.124022 for Rs.5 lakhs in the name of one Mohammed Yusuff (partner of the complainant) It is further clear from Ex.P6 that both complainant and accused have signed on Ex.P6 in the presence of witnesses namely Barkath and Suhail. PW.1 has entered into witness box and identified signatures of himself and accused on Ex.P6 agreement and also the signature of the said witnesses and signature of one Inayath Ali who mediated between complainant and accused regarding this agreement. No doubt, accused has disputed and denied his signature on Ex.P6- agreement and contended that this document is fabricated document. However accused has not entered the witness box to deny on oath his signature on Ex.P6 agreement. Even though PW.1 who has deposed regarding Ex.P6 agreement and transaction there under, has been cross-examined by counsel 11 for the accused, nothing has been elicited which damages veracity of evidence of PW.1 in this regard. The evidence of PW.1 regarding execution of Ex.P6 agreement is reliable and trustworthy.
17. It is pertinent to note that this court by its order dtd.09.03.2020 allowed the application by the accused U/s.45 of Evidence Act and directed to send Ex.P6 document to handwriting expert to compare the admitted signature of the accused on the plea and statement U/s.313 of Cr.PC in this case with disputed signature at Ex.P6(b) to ascertain whether the signatures are made by the different persons or by one and the same person. It is further clear from the order sheet dtd.09.03.2020 that this court directed the accused to suggest the name of handwriting expert and also to pay expert fee of Rs.20,000/- in the form of demand draft in the name of said handwriting expert on or before next date of hearing, failing which right of accused to send Ex.P6 document to handwriting expert would stand forfeited without any specific order. However, though sufficient opportunity has been given to accused to suggest the name of handwriting expert and to pay the expert fee of Rs.20,000/-, accused has failed to take such steps and therefore, this court by its order dtd.10.02.2021 ordered that right of the accused stand forfeited and posted the case to the stage of reply argument of the accused. Therefore, it is clear that though accused has taken initial steps to 12 disprove his signature on Ex.P6 document by filing the application U/s.45 of Evidence Act, subsequently accused failed to take necessary steps when this court allowed such application and as such the accused lost his opportunity to disprove his signature on Ex.P6 agreement
18. In view of documentary evidence of Ex.P6 and oral evidence of PW.1, I am of considered view that complainant has proved the execution of Ex.P6 document. On the other hand, the accused has failed to enter into witness box to deny his signature on Ex.P6 and also accused failed to take steps for sending his disputed signature on Ex.P6 to handwriting expert. In view of documentary evidence of Ex.P6, it is clear that complainant has proved his claim while the defence of the accused has been falsified by the documentary evidence of Ex.P6.
19. In view of my above discussion, I am of considered opinion that the accused has utterly failed to prove or probabalize his defence and thereby to rebut statutory presumption in favour of the complainant. It clearly appears from the evidence on record that defence of the accused is only an afterthought without any basis. Unless and until the accused rebuts the statutory presumption with convincing and cogent evidence, burden cannot be shifted on the complainant. As discussed above, the complainant has placed sufficient materials on record to establish his contention as put by the 13 complainant. The evidence on record is sufficient to accept the case of the complainant that accused has issued cheque in question towards discharge of legally enforceable debt or liability and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused. Therefore, Point Nos.1 & 2 are in affirmative and answered accordingly.
20. 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 extend to two years or with fine. 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 and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby), etc., this court is of the considered view that it is just and desirable to impose fine of Rs.4,50,000/- 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.4,45,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
1421. 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 Instruments Act. The accused shall pay a fine of Rs.4,50,000/- 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 five months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.4,50,000/-, a sum of Rs.4,45,000/- 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 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.
(Dictated to the stenographer, transcript thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 4th Day of October, 2021) (K. GURUPRASAD) XIV A.C.M.M., Bengaluru 15 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. Chand Pasha
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 : Bank endorsement
Ex.P3 : Legal Notice
Ex.P4 : Postal receipt
Ex.P5 : Returned postal cover
Ex.P6 : Deed of Cancellation of Sale Agreement of Bus
Ex.P6(a) : Signature of Inayath Ali
Ex.P6(b) : Signature of vendor
Ex.P6(c) : Signature of Purchaser
Ex.P6(d) : Signature of Suhail
Ex.P6(e) : Signature of Barkath
Ex.P6(f) : Signature of complainant
Ex.P6(g) : Signature of complainant
Documents marked for the defence:
NIL
(K. GURUPRASAD)
XIV A.C.M.M., BENGALURU