Bangalore District Court
S/O.Late Mohd.Yousuff Sharief vs Issued Two Cheques For A Sum Of Rs.75 on 16 October, 2015
1
CC.NO.15737/2011
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE: BANGALORE CITY.
Dated this the 16th day of October 2015
Present: Sri.V.S.Pandit,B.A.,LL B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.15737/2011
2.Name of the C.Nazirullah Sharieff,
Complainant: S/o.late Mohd.Yousuff Sharief, 59
years, R/at No.22, 2nd Main,
Chinnappa Garden, Benson Town
P.O., Bangalore-560 046.
3.Name of the accused: Chand Pasha,
S/o.late Mohd.Peer Sab, 50 yrs,
No.171/B, 2nd Cross, Govindpur
Main Road, Arabic College Post,
Bangalore-560 045.
4.The offence complained U/s.138 of Negotiable Instruments
of : Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C., accused
is Acquitted.
7.Date of final Order 16th day of October 2015
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1. The accused has been prosecuted by the complainant for
the offence punishable U/s.138 of Negotiable Instrument Act - 1881
(hereinafter referred as NI Act for brevity)
2. Case of the complainant in brief are as under -
a. Accused had borrowed a sum of Rs.1 lakh in the month of
December 2005, stating that the wife of the accused requested to be
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CC.NO.15737/2011
operated for kidney disease. Believing the version of the accused,
complainant paid a sum of Rs.1 lakh. To refund the amount,
accused issued two cheques for a sum of Rs.75,000/- and for
Rs.25,000/- respectively. The cheque issued for Rs.25,000/- was
honoured and cheque issued for Rs.75,000/- drawn on Amanath
Co-operative Bank Ltd., Gangenahalli branch, Bangalore, was
dishnoured for the reason 'FUNDS INSUFFICIENT'. But the
complainant approached the accused to make payment, therefore
accused by correcting date in the impugned cheque, requested the
complainant to present the cheque once again but the cheque is re-
validate by the accused on 8.6.2010.
b. It is further case of the complainant that when cheque
was presented for second time, it was dihsonoured for the reason
"PAYMENT SOTPPED BY THE DRAWER". Thereafter complainant
got issued legal notice. Accused has issued false and evasive reply.
3. My learned Predecessor in the Office after taking cognizance,
issued summons to the accused. In response to the summons, accused
appeared and was enlarged on bail. Plea for the offence was read over
and explained to the accused. Accused pleaded not guilty and pleads her
innocence.
4. To sustain the charge leveled against the accused, the
complainant examined himself as PW.1 and got marked the
documents at Ex.P.1 to Ex.P.9 on behalf of the complainant.
5. After conclusion of the evidence of the complainant, statement of
the accused U/s.313 Cr.P.C., was recorded. Accused denied the
evidence.
6. Heard both sides.
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CC.NO.15737/2011
7. The points that arise for my consideration are as under:-
1. Whether the complainant has proved that cheque
was issued by the accused for discharge of legally
enforceable debt, the same was returned unpaid for
the reason 'PAYMENT STOPPED BY THE DRAWER'
and notice was not complied. Hence accused
committed an offence under Sec.138 of N.I. Act ?
2. What Order ?
8. My findings on the above points are as follows:
Point No.1 : In the Negative,
Point No.2 : As per final Order, for the following;
REASONS
9. Point No.1 - It is the case of the complainant that for the
purpose of medical treatment to the wife of the accused, who is suffering
from Kidney disease, a sum of Rs.1 lakh was lent. To refund the
amount, accused had issued two cheques for a sum of Rs.75,000/- and
Rs.25,000/-. Cheque for Rs.75,000/- was dishonoured and cheque for
Rs.25,000/- was honoured. Subsequently, accused admitted for
repayment of the amount, thereby revalidate the cheque date as 8.6.2010
and requested the complainant to present once again. But the cheque
was returned unpaid for the reason 'PAYMENT STOPPE BY THE
DRAWER'. Since despite service of notice, there was no reply as such,
complainant is constrained to file the complaint.
10. Case of the accused is totally denied. It is specifically denied
with regard to the borrowing of loan and issuance of the cheque as
alleged by the complainant. The contention with regard to the
revalidation of the cheque was also specifically denied. According to the
accused, the signature was forged by the complainant.
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CC.NO.15737/2011
11. It is the specific case of the complainant that a sum of Rs.1
lakh was lent to the accused in the month of December 2005 for the
propose of medical treatment. It is further specific case of the
complainant that cheques issued for partial discharge of the liability to
the extent of Rs.25,000/- is honoured and whereas cheque issued for
Rs.75,000/- was dishonoured. At the out set, there is nothing on record
produced by the complainant to show that cheque issued for Rs.26,000/-
was honoured. In this regard, complainant was cross-examined by the
learned Counsel for the accused. Wherein complainant has expressed
his ignorance with regard to the name of the bank from which the
cheque for Rs.25,000/- was honoured. It is significant to note that,
according to the case of the complainant cheque was issued on
13.10.2006 by the accused, when it was presented, it was dishonored for
the reason 'FUNDS INSUFFICIENT'. In this regard, complainant has
produced document, which is at Ex.P.9. According to the complainant
immediately thereafter he has issued notice to the accused with regard to
the bouncing of the cheque on 16.1.2007 and in this regard document is
produced at Ex.P.8. But there is no records produced by the
complainant to show that Ex.P.8 is received by the accused. Further it is
worthwhile to mention that issuance of the notice in the form of Ex.P.8 is
not stated in the complaint itself. When the cheque in question was
dishonoured in the year 2006, what made the accused to revalidate the
cheque date after the lapse of three and half years is nowhere
convincingly explained by the complainant. It is significant to note that
admittedly impugned cheque at Ex.P.1 was written in a different
handwriting. Complainant has admitted that name of the complainant,
amount written in words and figures, further the signature and altered
the date were written in the different pen. If really, according to the
complainant, the accused revalidate the date, instead of correcting the
date, the accused could have issued fresh cheque admitting the liability.
Therefore, the case of the complainant that after lapse of nearly three
and half years, after bouncing of the cheque that too without any notice
to the accused, it is very difficult to believe that the accused has
revalidated the date.
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CC.NO.15737/2011
12. Therefore, after over all examination of the material placed on
record by the complainant, the various circumstances as pointed above,
virtually makes this Court to dis-believe the case of the complainant with
regard to the advancement of Rs.1 lakh. Further, the various
circumstances as pointed above, virtually makes this Court to disbelieve
that accused has revalidated the date. Therefore, no grounds have been
made out to sustain the presumption. As such I answer Point no.1 in the
negative.
13. Point No.2 : In the result, I proceed to pass the following:
ORDER
Acting Under Sec.255(1) Cr.P.C., accused is Acquitted for the offence punishable U/s.138 of the N.I.Act.
His bail bond and surety bond shall stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 16th day of October 2015.) (V.S.PANDIT), XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 C.Nazirullah Sharief, Documents marked for the Complainant:-
Ex.P.1 Cheque,
Ex.P.1a Signature,
Ex.P.2 to 4 3 Bank Endorsements,
Ex.P.5 Office copy of the legal notice,
Ex.P.6 Postal A.D.Card,
Ex.P7 Reply Notice,
Ex.P.8 Notice,
Ex.P.9 Bank endorsement.
Witnesses examined For Defence: Nil Documents marked for Defence:- Nil XV Addl.CMM., Bangalore.
6CC.NO.15737/2011 Judgment pronounced in Open Court vide separate Order:
ORDER Acting Under Sec.255(2) Cr.P.C., the accused is convicted for the offence punishable u/s.138 of the N.I.Act and sentenced to pay fine amount of Rs.27,220/- (Rupees Twenty Seven thousand 7 CC.NO.15737/2011 two hundred twenty only) as stated in the Joint Memo. If the said amount is deposited, same shall be paid to the complainant as compensation.
In default, he shall undergo SI for a period of six months.
XV Addl.CMM., Bangalore