Bangalore District Court
Smt. Rehana Begum vs Sri Ali Mohammed on 1 October, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 1st day of October, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 5763/2012
Complainant: Smt. Rehana Begum
W/o. Jahangeer Basha,
Aged about 42 years,
Balaji Nagar,
Bannerghatta Road,
Bengaluru -29.
Accused: Sri Ali Mohammed
S/o. Mohammed Usman,
Aged about 56 years,
R/at No.FA 1/80,
Paper Town, Bhadravathi,
Shivamoga District -577 302.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 1st October 2016
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint that;
The Complainant stated that the accused is her brother-in-law and relative and out of relationship, approached her in the month of 2 C.C.No.5763/2012 August 2009 for the financial assistance of Rs.2,00,000/- for his domestic problem and he agreed to repay the entire loan amount within 2 years. The Complainant by considering the request of the accused, had advanced a hand loan of Rs.2,00,000/- to this accused on 12.8.2009 by way of cash and the same was paid at her residence at Bengaluru. The accused after receipt of the loan amount, had executed a Loan Agreement in favour of the Complainant on 12.8.2009 by agreeing to repay the loan amount within 2 years. It is further submitted by the Complainant that the accused had issued his 4 cheques for the security of the loan amount in her favour. Subsequently, in the month of July 2011 the Complainant requested the accused to repay the loan amount. After several requests and demand, the accused in the month of August 2011 instructed the Complainant to present two cheques on 16.8.2011 each for Rs.1,00,000/- bearing cheque No.513146 and 513147 both dtd.16.8.2011 drawn on Canara Bank, Bhadravathi branch, Bhadravathi by stating that the cheques will be honoured on its presentation.
3. It is further submitted that, on the assurance of the accused, the Complainant presented both the said cheques before her banker State Bank of India, Mico Layout branch, Bengaluru for encashment but both the said cheques returned dishonoured with an endorsement "insufficient funds" on 4.11.2011 and the same was informed to this Accused.
3 C.C.No.5763/2012
4. She further stated that as the Accused has failed to make payment of the cheques amount, she got issued the Legal Notice through her Counsel on 15.11.2011 by RPAD and also under Speed Post, calling upon the Accused to make payment of the cheques amount within 15 days from the date of receipt of notice and the said notice was duly served on the accused. Subsequently, the Complainant noticed that there was a typographical error in the Legal Notice about the year of payment of amount and therefore, the Complainant sent a corrigendum notice through RPAD and Speed Post on 2.12.2011 brining to the knowledge of the accused about the typographical error and even the said notice was duly served upon this accused. The Accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheques amount nor he has sent his reply by denying the transaction. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued bogus cheques and thereby, the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. After recording of sworn statement of the complainant the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his Counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
4 C.C.No.5763/2012
6. The complainant herself got examined as PW1 and she got produced 13 documents marked as Ex.P1 to Ex.P13 and closed her side of evidence.
7. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto and he intended to lead his evidence. The accused himself examined as D.W.1 and he got produced 5 documents and marked as Ex.D.1 to Ex.D5, Ex.D3(a) and also got examined 3 witnesses from his side as DW2, DW3 and DW4 and from DW2, got marked Ex.D6 and Ex.D7 documents, from DW3 got marked Ex.D8 document and closed his side of evidence.
8. I have heard the arguments on the both sides and perused the entire records. The learned Counsel for the accused has also filed his written arguments.
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
Point No.1 : In the affirmative
Point No.2 : As per final order
for the following:
5 C.C.No.5763/2012
REASONS:
11. Point No.1: The entire burden is on the complainant to prove her case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and she filed her affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that that the accused is her brother-in-law and relative and out of relationship, approached her in the month of August 2009 for the financial assistance of Rs.2,00,000/- for his domestic problem and she by considering the request of the accused, had advanced a hand loan of Rs.2,00,000/- to this accused on 12.8.2009 by way of cash and the same was paid at her residence at Bengaluru. She deposed that accused after receipt of the loan amount, had executed a Loan Agreement in her favour on 12.8.2009 by agreeing to repay the loan amount within 2 years. She deposed that the accused had issued his 4 cheques for the security of the loan amount in her favour and subsequently, in the month of July 2011 she requested the accused to repay the loan amount and on her several requests and demand, the accused in the month of August 2011 instructed her to present two cheques on 16.8.2011 each for Rs.1,00,000/- bearing cheque No. 513146 and 513147 both dtd. 16.8.2011 drawn on Canara Bank, Bhadravathi 6 C.C.No.5763/2012 branch, Bhadravathi by stating that the cheques will be honoured on its presentation.
13. She further deposed that, on the assurance of the accused, she presented both the said cheques before her banker for encashment but both the said cheques returned dishonoured with an endorsement "insufficient funds" on 4.11.2011 and the same was informed to this Accused. She further deposed that as the Accused has failed to make payment of the cheques amount, she got issued the Legal Notice through her Counsel on 15.11.2011 by RPAD and also under Speed Post, calling upon the Accused to make payment of the cheques amount and the said notice was duly served on the accused. She deposed that subsequently, she noticed that there was a typographical error in the Legal Notice about the year of payment of amount and therefore, she sent a corrigendum notice through RPAD and Speed Post on 2.12.2011 brining to the knowledge of the accused about the typographical error and even the said notice was duly served upon this accused. She deposed that the Accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheques amount nor he has sent his reply by denying the transaction. She deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued bogus cheques and thereby, the Accused has committed an offence.
7 C.C.No.5763/2012
14. PW1 in order to prove her case, got produced two original cheques marked as Ex.P1 and Ex.P2. She deposed that the signature found on Ex.P.1 and Ex.P2 are that of this accused. She got identified the signature of the accused marked as Ex.P1(a) and Ex.P2(a). She got produced two bank endorsements marked as Ex.P3 and Ex.P4 respectively. She got produced copy of the legal notice along with two RPAD Receipts marked as Ex.P5 and Ex.P7 respectively. She got produced the Loan Agreement executed by the accused on 12.8.2009 marked as Ex.P.6 and the said document is marked subject to objection. She got produced the Postal Acknowledgement Due Card for having served the notice to the accused marked as Ex.P.8. She got produced the Corrigendum Notice marked as Ex.P.13 along with two RPAD receipts marked as Ex.P.9 and Ex.P10 respectively. She got produced the Postal Acknowledgement Due Card for having served the corrigendum notice marked as Ex.P.11. She got identified the complaint marked as Ex.P.12.
15. Even though the accused has denied the case of the Complainant and denied his liability to pay the cheques amount, however he has categorically admitted the loan transaction with this Complainant and admitted that he had borrowed a hand loan of Rs.2,00,000/- from this Complainant and he has issued his Ex.P.1 and Ex.P2 cheques in favour of this Complainant and the same were 8 C.C.No.5763/2012 bounced on its presentation. The learned Counsel for the accused subjected PW1 for cross-examination and he extensively cross- examined the PW1.
16. Even though the PW1 in her cross-examination stated that she has not advanced the loan amount to this accused by way of cheques and even she has not produced any documents before this court to prove that she had with her a sum of Rs.2,00,000/- to advance the same in favour of this accused. However, she has categorically stated that she advanced the loan amount to this accused on 12.8.2009 and this accused came along with his wife to borrow loan and after receipt of the loan amount, had executed Ex.P6 document by acknowledging the receipt of loan amount of Rs.2,00,000/- by agreeing to repay the loan amount within 2 years from the date of transaction. Even though she has admitted that the accused towards security of the loan amount, issued his four cheques. However, she has deposed that the accused has issued his duly filled-up and signed Ex.P1 and Ex.P2 cheques and as per the direction of this accused, she presented both the said cheques, before her banker for encashment. She denied the suggestion that she herself has written all the contents of Ex.P1 and Ex.P2 along with the contents of Ex.P6 and created the said documents for the purpose of this case, even though the accused has not executed these documents in her favour.
9 C.C.No.5763/2012
17. On the contrary, PW1 has categorically denied the suggestion that after she advanced the loan amount of Rs.2,00,000/- to this accused she has received the entire loan amount from this accused by withdrawing the entire loan amount from his HDFC Bank by using his ATM Card. She has categorically denied the suggestion that even though she has received the entire loan amount, she by misusing the cheques of this accused collected towards security of the loan amount, misused the same and filed this false complaint. She has categorically denied the suggestion that the accused is not liable to pay the cheques amount. She further denied the suggestion that on 12.8.2009 she has not advanced the loan amount to this accused as deposed by her. The accused except putting some suggestions to PW1 that he is not liable to pay cheques amount, nothing has been elicited from her mouth to disbelieve her testimony or to discard her evidence.
18. The accused has not chosen to deny a fact that Ex.P1 and Ex.P2 cheques are belong to him. The accused even admitted his signature found on Ex.P1 and Ex.P2 Cheques marked as Ex.P.1(a) and Ex.P.2(a). The accused even did not chosen to deny a fact that his Ex.P1 and Ex.P2 cheques were bounced with a specific reason "insufficient funds". The accused did not chosen to deny a fact that his Ex.P1 - and Ex.P2 Cheques were produced before this court by PW1. No doubt, the accused during the cross-examination of PW1 put a suggestion that his 10 C.C.No.5763/2012 duly signed cheques were misused by this Complainant issued towards the security. However, the defence of the accused was categorically denied by PW1 in her cross-examination.
19. However, the accused has not chosen to deny the documentary evidence adduced by the PW1 before this court marked as Ex.P.1 to Ex.P13. Likewise, PW1 categorically deposed that immediately after the receipt of Ex.P3 and Ex.P4 bank endorsements, she got issued Ex.P5 notice and the same was duly served upon this accused. She further deposed that as there was a typographical error in the notice, she got issued Ex.P13 Corrigendum Notice and even the said notice was duly served upon this accused as per Ex.P11. These facts were not denied by the accused and even he has not denied the very fact that this Complainant has sent the Ex.P5 and Ex.P13 notices to his correct address and even inspite of service of notices, he has neither chosen to make payment of the cheques amount nor he has sent his reply by denying the transaction.
20. Admittedly, no suggestion was put to PW1 either by denying issuance of Ex.P5 and Ex.P13 notices or service of said notices to his address of this accused. Likewise, it is an admitted fact that even after receipt of Legal Notice, the accused neither chosen to make payment of the cheques amount nor he has sent his reply by denying the transaction. In such situation, an adverse inference has to be drawn 11 C.C.No.5763/2012 against this accused that he after receipt of the Legal Notice, by admitting the contents of the notice and also by admitting his liability to pay the cheques amount, did not resisted the claim of the Complainant
21. However, PW1 has deposed that the accused even after receipt of the Legal Notice as per Ex.P5, has neither chosen to make payment of the cheques amount nor he has sent his reply by denying the transaction and also by denying the contents of the notice. The oral and documentary evidence adduced before this court by the Complainant clearly proves that the accused even inspite of receipt of Legal Notice, has failed to make payment of the cheques amount.
22. However, the PW1 by adducing oral and documentary evidence before this court proved that the notice issued u/Sec.138 (b) of N.I. Act was served on this accused and even after completion of statutory period of limitation, the accused has failed to make payment of the cheques amount.
23. As I have discussed supra, the accused has admitted the loan transaction with this Complainant and also admitted issuance of Ex.P1 and Ex.P2 cheques in favour of this Complainant towards the loan transaction. As I have discussed supra, the accused has taken up the specific defence that subsequently after the loan transaction, he repaid the entire loan amount to this Complainant and this Complainant even 12 C.C.No.5763/2012 after receipt of entire loan amount, by misusing his cheques collected towards security of the loan amount, filed this false complaint. In such situation, the burden shifts on to this accused to prove his defence and to prove that subsequently after he borrowed the loan amount from this Complainant, he repaid the entire loan amount to the Complainant and this Complainant instead of returning his cheques collected towards security of the loan amount, misused the same and filed this false complaint. The accused in order to prove his defence and to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act
24. The accused in order to prove his defence and to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, stepped into the witness-box and got examined as DW1. He deposed that he deposed that during the year 2009 he had borrowed a hand loan of Rs.2,00,000/- from this Complainant, who is his sister-in-law and for the security of the said loan amount, he had given his 4 duly signed blank cheques and subsequently, he repaid the entire loan amount to the Complainant and this Complainant by using his ATM Card withdrawn the entire loan amount from his bank account on monthly installment basis totally amounting to Rs.1,00,000/- and remaining Rs.1,00,000/- had been paid by him in the month of September 2011 by way of cash.
13 C.C.No.5763/2012
25. He further deposed that the Complainant was withdrawn excess Rs.1,000/- from his bank account by using his ATM Card and subsequently, she remitted the said amount to his bank account. He has categorically deposed that he repaid the entire loan amount to this Complainant and he got produced his Bank Account Extract to prove that he after taking loan from the bank, repaid the loan amount to the Complainant marked as Ex.D1. He deposed that the Complainant even inspite of entire loan amount, instead of returning his duly signed blank cheques collected towards security of the loan amount, misused two cheques and filed this complaint based on the created cheques and for the remaining two cheques, the Complainant through Smt. Shakeela Begum, got issued the Legal Notice and filed a complaint against him. He got produced the copy of the Legal Notice issued by Smt. Shakeela Begum along with reply notice issued by him and the said notice were marked as Ex.D2 and reply notice is marked subject to production of document for having served the reply notice as Ex.D3. He got produced the postal receipt marked as Ex.D.3(a).
26. He deposed that on 12.8.2009 he was very much present at Bhadravathi and he attended his duty and on that day, he worked in a morning shift from 7.00 a.m. to 3.00 p.m. and as such, he borrowing loan from this Complainant after coming down to Bengaluru does not arise. He got produced two Postal endorsements issued by the Postal 14 C.C.No.5763/2012 Department for having served the Ex.D3 notice marked as Ex.D.4 and Ex.D5 respectively. He further deposed that he has also given his duly signed blank On Demand Promissory Note for the security of the loan amount to this Complainant. DW1 prays to dismiss the complaint.
27. The Complainant has denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. DW1 in his cross-examination categorically admitted that the ATM Card is with him and without the ATM Card, it is not possible to withdrawn the amount from the ATM Machine. He denied the suggestion that he only with an intention to ran away from his liability to pay the cheques amount, is deposing false before this court that the Complainant by using his ATM Card every month withdrawn a sum of Rs.4,000/- and sometimes, Rs.8,000/- per month and accordingly she has withdrawn a sum of Rs.1,00,000/- from his bank account. He admitted the suggestion that he has executed a loan agreement in favour of this Complainant after receipt of the loan amount of Rs.2,00,000/- and he has not obtained any shara of this Complainant on the said document even after he repaid the loan amount. Though DW1 stated that on a good belief, he did not obtained any receipt from this Complainant for having received the entire loan amount. DW1 stated that he is not aware whether he has sent his reply to Ex.P5 notice of this Complainant. He denied the suggestion that Smt. Shakeela Begum is not the sister of this 15 C.C.No.5763/2012 Complainant and there is no relationship between the Complainant with Smt. Shakeela Begum and as such, the Ex.D2 to Ex.D5 documents are neither related to this case nor related to this Complainant.
28. DW1 in his cross-examination categorically admitted that his daughter is residing at Bengaluru. However, he denied the suggestion that the amount withdrawn by using his ATM Card from his bank account is by his elder son at Bengaluru. He denied the suggestion that only for the sake of defence in this case, he colluding with his son, withdrawn the amount from his bank account by using his ATM Card and deposing false before this court that this Complainant by using his ATM Card, withdrawn the amount from his bank account. He admitted the suggestion that Ex.D4 and Ex.D5 documents are issued in favour of one Sri. K. Krishnegowda. However, he denied the suggestion that the said documents are not relating to this case and even in these documents, it has not been disclosed that the said Sri. K. Krishnegowda is his Advocate. Though DW1 in his cross-examination categorically denied the suggestion that he has not repaid the loan amount to this Complainant and even the ATM transaction is not related to this Complainant and it is nothing to do with this case. However, DW1 in his cross-examination categorically admitted that he had borrowed a sum of Rs.2,00,000/- from this Complainant as a loan and even admitted that on 12.8.2009 he had executed Ex.P6 document at 16 C.C.No.5763/2012 Bengaluru City. DW1 stated that except Ex.D1 document he has no documents with him to prove that he had repaid the entire loan amount to this Complainant.
29. Admittedly, in Ex.D1 it has not been disclosed that this Complainant has used the ATM Card of this accused and she withdrawn the amount disclosed in this document from the bank account of this accused. Likewise, the DW1 except adducing the oral evidence that he had given his ATM Card to this Complainant and she by using his ATM Card, every month withdrawn the amount from his bank account as disclosed in Ex.D1, has utterly failed to produce documentary evidence before this court to prove that he had given his ATM Card to this Complainant and his ATM Card is with the custody of this Complainant.
30. No doubt, the accused in order to prove that on 12.8.2009 he was very much present at Bhadravathi Town and on that day, he was working in his first shift from morning 7.00 a.m. to after noon 3.00 p.m. got examined DW2 before this court and even DW2 deposed that on 12.8.2009 the DW1 was attended his regular work at his factory and he was worked in the first shift from 7.00 a.m. to 3.00 p.m. and even got produced the Attendance Register of this accused marked as Ex.D.6 along with authorization Letter given to him by the Senior Manager of 17 C.C.No.5763/2012 the Bhadravathi Paper Mills marked as Ex.D.7. Even though the Complainant subjected DW2 for cross-examination by denying his testimony and stated that the Ex.D6 document was created for the purpose of this case and this accused has created a fictitious person as DW2 and given his evidence before this court only with an intention to ran away from his liability. On the contrary, admittedly, the evidence of DW2 is nowhere helpful to the defence taken by this accused in this proceedings.
31. As I have discussed supra, the DW1 has categorically admitted the loan transaction and also admitted that on 12.8.2009 he had executed Ex.P6 document at Bengaluru City and he put his signature to Ex.P6 document. When the accused admitted the loan transaction and admitted the execution of Ex.P6 document in favour of this Complainant on 12.8.2009 at Bengaluru City, then accepting the evidence of DW2 and holding that on 12.8.2009 till 3.00 p.m. the DW1 was very much present at his work and as such, there is no chances of coming down to Bengaluru City by DW1 to borrow loan from this Complainant and also to execute Ex.P6, does not arise and it has no evidential value in the eye of law.
32. Likewise, the accused has also examined the Canara Bank Manger of Bhadravathi Branch as DW3 to prove that since form 10.11.2009 to 11.11.2011 every month by using his ATM Card, amount 18 C.C.No.5763/2012 has been withdrawn from his bank account at Bengaluru City. Even DW3 has deposed that the accused got a bank account in his bank and by using the ATM Card of this accused since from 10.11.2009 to 11.11.2011 continuously amount has been withdrawn from his bank account at Bengaluru city and even he got produced the account extract of the accused marked as Ex.D.8. He further deposed that apart from the same, the accused has also borrowed loan from his bank and he got produced the loan account extract of this accused marked as Ex.D.9 and this accused has withdrawn the loan amount from his bank on 26.8.2011 amounting to Rs.1,00,000/-. Even the testimony of DW3 does not prove that the amount disclosed in Ex.D8 is withdrawn by this Complainant by using the ATM Card of this accused at Bengaluru city. Admittedly, even in Ex.D8 it has not been disclosed who has withdrawn the amount by using the ATM Card of this accused.
33. Likewise, the Ex.D9 document does not prove that the loan amount taken by this accused from the Canara Bank of Bhadravathi is with respect to repay the loan amount of this Complainant and he after withdrawing a sum of Rs.1,00,000/- from his loan account on 26.8.2011, had paid the entire amount to this Complainant and accordingly, he repaid the entire loan amount of Rs.2,00,000/- to this Complainant. Except the oral testimony of DW3 there is nothing on record to believe the testimony of DW3 that the transaction disclosed in Ex.D8 and Ex.D9 19 C.C.No.5763/2012 documents is made by this Complainant and it is relating to this Complainant. In such situation, the testimony of DW3 is also nowhere helpful to the defence taken by the accused and believe his defence.
34. The accused has also examined his wife Smt. Farida Begum as DW4. She deposed that that along with Complainant she is also having a sister by name Smt. Shakeela Begum and her husband had borrowed a sum of Rs.2,00,000/- from this Complainant as a loan to meet his financial crisis and for the security of the loan amount, her husband had given his four duly signed blank cheques along with duly signed blank On Demand Promissory Note along with his ATM Card with a clear instruction to withdraw a sum of Rs.4000/- every month. She deposed that as per their direction, the Complainant has withdrawn a sum of Rs.4000/- every month and accordingly, she has withdrawn a sum of Rs.1,00,000/- and remaining sum of Rs.1,00,000/- was paid by her husband after taking loan from his bank. She deposed that even though she repaid the entire loan amount to this Complainant, the Complainant instead of returning his cheques, misused her husband's two cheques and filed this false complaint and by misusing other two cheques, through her another sister, filed similar types of complaint against her husband. Even DW4 deposed that the Complainant is not entitle for the cheques amount and prays to dismiss the complaint.
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35. The Complainant even denied the testimony of DW4 and her learned Counsel subjected DW4 for cross-examination. Even DW4 in her cross-examination categorically admitted that her elder daughter Smt. Shabana Begum was resided at Bengaluru City since from 2009-11. However, she denied the suggestion that her daughter Smt.Shabana Begum used the ATM Card of this accused and she has withdrawn the amount. Though DW4 in her cross-examination denied the suggestion that she along with her husband, only with an intention to escape from their liability to pay the cheques amount to the Complainant, is deposing false before this court that the Complainant by using the ATM card of this accused, withdrawn a sum of Rs.1,00,000/- from his bank account and remaining Rs.1,00,000/- was paid by this accused by way of cash borrowing the loan from the Canara Bank. However, admittedly, even DW4 has not produced any documents before this court to prove the repayment of the entire loan amount by her husband to this Complainant.
36. Moreover DW1 and DW4 have failed to convince this court why they could not able to take any receipts from this Complainant for having received the entire loan amount even though they have executed a loan agreement as per Ex.P6 at the time of advancement of loan amount and also issued their Ex.P1 and Ex.P2 cheques towards repayment of the loan amount. Likewise, the DW1 and DW4 failed to 21 C.C.No.5763/2012 convince this court why they did not send their reply to Ex.P5 notice after receipt of the notice by denying the contents of the notice and also by denying their liability to pay the cheques amount even though they have personally received the notice issued as per Ex.P5.
37. Even though the DW1 and DW4 have denied the entire suggestions put to them and denied that DW1 had issued his Ex.P1 and Ex.P2 cheques towards repayment of the loan amount of Rs.2,00,000/- to this Complainant and they with an intention to ran away from their liability, are deposing false before this court. On the contrary, DW1, DW3 and DW4 have categorically admitted that Ex.P1 and Ex.P2 cheques are belonged to the bank account number of DW1 and even admitted that Ex.P1(a) and Ex.P2(a) signatures are that of DW1.
38. Even though the DW1 denied his liability to pay the cheques amount to PW1 however, as I have discussed supra, the DW1 himself has categorically admitted that the address disclosed in the cause title is that of his residential address and even he was resided in the address disclosed in Ex.P5. The accused except taking the defence that the Complainant has not issued the notice to his correct address and no notice was served on him before filing this complaint, has utterly failed to prove that as on date of Ex.P5 notice he was not resided in the address disclosed in Ex.P5. Moreover, the DW1 has neither adduced any oral evidence before this court nor he has placed any documentary 22 C.C.No.5763/2012 evidence to prove his correct address before this court. In such situation, the testimony of DW1 that as on date of Ex.P5 he was not resided in the address disclosed in Ex.P5 and as such no notice is served on him, cannot be acceptable and believable.
39. Moreover, As I have discussed supra, the accused during the cross-examination of PW1 by suggesting PW1 that he had borrowed total hand loan of Rs.2,00,000/- from her and towards the repayment of the loan amount, he had given his duly signed blank cheques along with blank bond paper, had admitted the case of the Complainant.
40. Admittedly, the DW1 except adducing the oral evidence that he had given his duly signed blank cheques in favour of this Complainant as a security to the loan amount of Rs.2,00,000/-, has utterly failed to prove his defence to the satisfaction of the court by adducing documentary evidence before this court. Likewise, the defence of the accused that the Complainant has misused his duly signed blank cheques issued towards the security of the loan amount of Rs.2,00,000/- and created the cheques each for Rs.1,00,000/- and filed this false complaint, cannot be believable and acceptable. Admittedly, the accused has not produced any piece of document before this court to believe his defence and to believe his testimony. The oral evidence of 23 C.C.No.5763/2012 DW1 to DW4 itself is not sufficient and convincing to believe the defence of the accused and to discard the case of the Complainant.
41. As I have discussed supra, the DW1 has utterly failed to prove his defence that his duly signed blank cheques were misused by the Complainant and created the cheques for Rs.1,00,000/- each and filed this false complaint.
42. The entire burden is on this accused to prove that he had issued his duly signed blank cheques in favour of this Complainant towards the loan amount of Rs.2,00,000/-and his cheques were misused by this Complainant even after receipt of the entire loan amount from this accused and created the same as Ex.P1 and Ex.P2 and presented the same before this court. The accused has utterly failed to prove his defence to the satisfaction of the court by adducing cogent and convincing evidence before this court.
43. The oral an documentary evidence adduced before this court by the accused, is not convinced this court and it will not rebut the case of the Complainant and also his oral and documentary evidence as well as it will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The accused has utterly failed to prove that he had repaid the entire loan amount of Rs.2,00,000/- to this Complainant and even after receipt of entire loan amount, the Complainant by 24 C.C.No.5763/2012 misusing the duly signed blank cheques of this accused, created the same as Ex.P1 and Ex.P2 and filed this false complaint.
44. In such situation, the defence taken by the accused during the course of trial, cannot be believable and acceptable. The accused failed to convince the court what is the impediment on him to send his reply to Ex.P5 notice immediately after receipt of Legal Notice, by denying his liability to pay the cheques amount and also by stating that he has already repaid the entire loan amount. Even when this accused was questioned u/Sec.313 of Cr.P.C. by this court, accused except denying incriminating evidence deposed against him by PW1, has not chosen to put forth any defence from his side. Likewise, the Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec.139 of N.I. Act it reads thus respectively.
45. As per the provisions of Sec.118, which reads thus:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;
c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;25 C.C.No.5763/2012
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped;
g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
46. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of N.I. Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
47. The learned Counsel for the accused has filed his written arguments by stating that the Complainant has utterly failed to prove the advancement of loan amount of Rs.2,00,000/- by way of cash on 12.8.2009 at her residence at Bengaluru by adducing documentary evidence before this court and this accused by examining DW2 before this court, proved that on 12.8.2009 this accused was attended his regular duty at Bhadravathi Paper Mills Company and he was worked in first shift from morning 7.00 a.m. to 3.00 p.m. and also by marking Ex.D6 document, proved that on the said day, he was very much present at his working place and this clearly establishes that the Complainant allegations are totally false and baseless. He further stated 26 C.C.No.5763/2012 that the Complainant has misused the duly signed blank cheques of this accused issued towards security of the loan amount of Rs.2,00,000/- and for her convenience, created the same as Ex.P1 and Ex.P2 each for Rs.1,00,000/- and presented the same for encashment even though this accused was not liable to pay a sum of Rs.2,00,000/- to this Complainant.
48. He further stated that the accused by examining DW3 and DW4, has proved that subsequently after receipt of the loan amount, the Complainant had received the entire loan amount by using the ATM Card of this accused by continuously withdrawing amount from his bank account since from the year 2009 - 11 amounting to Rs.1,00,000/- and this accused also paid a sum of Rs.1,00,000/- after taking loan from his bank to this Complainant as disclosed in Ex.P8 and even after receipt of entire loan amount, the Complainant instead of returning the cheques, misused the cheques and filed this false complaint.
49. He further argued that this accused by adducing cogent and convincing evidence before this court, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act and by considering all these facts and evidence available on the records and by giving the benefit of doubt in favour of this accused, accused has to be acquitted. His arguments is not convinced this court and it cannot be acceptable. The arguments of the learned Counsel for the accused is 27 C.C.No.5763/2012 that the accused has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act by adducing oral and documentary evidence before this court and by considering the evidence adduced before this court by the accused, the accused has to be acquitted, is also not convinced this court and it holds no merit.
50. As I have discussed supra, the accused except adducing the oral evidence has utterly failed to prove that his ATM Card was used by this Complainant to withdraw a sum of Rs.1,00,000/- from his bank account and she withdrawn the said amount and also she has received the remaining loan amount of Rs.1,00,000/- by way of cash after the same was disbursed to this accused by his bank under Ex.D8 document. The accused has failed to prove that he has already repaid the entire loan amount to the Complainant and even after receipt of entire loan amount, the Complainant instead of returning the cheques, misused his cheques and filed this false complaint. In such situation, the arguments canvassed by the learned Counsel for the accused, cannot be acceptable and it holds no merit. The judgement relied by the learned Counsel for the accused in support of his arguments reported in (2006) 3 Supreme Court Cases (Crl) 30 between M.S. Narayana Menon @ Mani Vs. State of Karala and another wherein it is held that;
"Court has to presume a negotiable instrument to be for consideration unless the existence of consideration is disproved - That is unless on consideration of matter before 28 C.C.No.5763/2012 it the court either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist - meaning of words "proved"
and disproved" as defined under the Evidence Act, applied in this regard - Evidence Act, 1872, Ss.4, 3 & 114 III. (c) - words and phrases - "proved", "disproved"
B. "Initial burden of proof is on Accused to rebut the said presumptions by raising a probable defence - if he discharges the said burden, the onus thereafter shifts on to the Complainant to prove his case - Whether the initial burden has been discharged by Accused is a question of fact -Burden of poof on Accused is not heavy - He need not disprove the prosecution case in its entirety - he can discharge its burden on the basis of preponderance of probabilities through direct of circumstantial evidence."
He has relied upon the judgment of Crl. Appeal No.520/1999 of our Hon'ble High Court between Shreyas Agro Services Pvt. Ltd. Vs. Chandrakumar S.B. wherein it is held that;
"Cheque issued in respect of future liabilities not attracts the provisions of Sec. 138 of N.I.Act. "
2006 Crl.L.J. Page 2643 (Andhra Pradesh High Court) between Lakshminivas Agarwal Vs. Andhra Semi Conductors Pvt. Ltd., Hyderabad and others wherein it is held that;
"Cheque issued as security of consignment liability that may be incurred for refund of amount in event of failure to supply materials as promised by the accused.- No existing liability or debt incurred/borrowed by the accused from Complainant on the date on which cheques were issued."
It is further held that "Merely because the signature in the cheques are admitted, it cannot be said in all cases, that drawer of the said cheque is liable for punishment u/Sec.138 of N.I.Act.
29 C.C.No.5763/2012The law laid down in these judgments is not applicable to the facts of the present case on hand and it is nowhere helpful to the defence taken by the accused.
51. On the contrary, the learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint, has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of the Legal Notice, the accused has neither chosen to make payment of the cheques amount nor he has sent his reply by denying the transaction and by drawing an adverse inference against this Accused that the accused after receipt of the Legal Notice, by admitting the contents of the notice, did not resisted the claim of the Complainant and he has to be convicted in accordance with law, is fully convinced this court. Likewise, his arguments that the accused only with an intention to ran away from his liability to make payment of the cheques amount, has taken up the false defence during the course of trial that he has already repaid the entire loan amount to the Complainant and even inspite of receipt of entire loan amount, the Complainant instead of returning the cheques, misused his cheques and filed this false complaint. The said arguments is also convinced this court and therefore, it is accepted.
52. His further arguments that the accused has utterly failed to prove that along with cheques and promissory notes, he has also given 30 C.C.No.5763/2012 his ATM Card along with PIN number to this Complainant and with the help of ATM Card, she has withdrawn amount every month at Rs.4,000/- at Bengaluru City and subsequently, she received a sum of Rs.1,00,000/- from this accused before the witnesses borrowed by this accused from his bank and even after receipt of entire loan amount, by misusing the duly signed blank cheques, filed this complaint by adducing convincing evidence before this court. He has argued that the evidence of DW1 to DW4 along with documentary evidence marked as Ex.D.1 to Ex.D8, does not prove that the accused after receipt of the loan amount of Rs.2,00,000/- from this Complainant, had repaid the entire loan amount and the same was acknowledged by this Complainant.
53. He further argued that the accused only with an intention to ran away from his liability to pay the cheques amount, has taken up the false defence before this court during the stage of trial, therefore, his defence cannot be believable and acceptable is also fully convinced this court.
54. The complainant by adducing oral and documentary evidence before this court, has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant, is fully corroborating with each other and convinced this court about her case. The 31 C.C.No.5763/2012 complainant by adducing oral and documentary evidence before this court, bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
55. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/Sec.138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.2,55,000/- (Rupees Two Lakhs and Fifty-five Thousand only). In any default to pay fine amount shall undergo simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C., a sum of Rs.2,50,000/- (Rupees Two Lakhs and Fifty- Thousand only) shall be paid to the complainant which includes the cheques amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 1st day of October 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru 32 C.C.No.5763/2012 ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1 Mrs. Rehana Begum Witnesses examined on behalf of the Accused: D.W.1 Mr. Ali Mohammed 3 D.W.2 Mr. Ramanna.K. D.W.3 Mr. N. Sridhar D.W.4 Mra. Farida Begum Documents marked on behalf of the Complainant:
Ex.P.1 & Ex.P2 Cheques
Ex.P.1(a) & Ex.P2(a) Signature of the accused
Ex.P.3 & Ex.P4 Bank endorsements
Ex.P.5 Copy of the legal notice
Ex.P.6 Loan Agreement
Ex.P.7 RPAD Receipts
Ex.P.8 Postal Acknowledgement Due Card
Ex.P.9 & Ex.P10 RPAD Receipts
Ex.P.11 Postal Acknowledgement Due Card
Ex.P.12 Complaint
Ex.P.13 Corrigendum notice
Documents marked on behalf of the Accused:
Ex.D1 Bank Account Extract
Ex.D2 Copy of the Legal Notice
Ex.D3 Reply notice
Ex.D3(a) Postal receipt
Ex.D4 & Ex.D5 Postal endorsements
Ex.D6 Attendance Register
Ex.D7 Authorization Letter
Ex.D8 Account extract
XIX ACMM, B'lore.
33 C.C.No.5763/2012