Bangalore District Court
Mrs. Shameem Nisha vs Mr. P. Abdul Wahid on 23 November, 2022
KABC0C0212252019
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA L, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 23RD DAY OF NOVEMBER, 2022.
C.C.NO.55874/2019
COMPLAINANT : Mrs. Shameem Nisha
W/o Late Syed Ubaid Ulla
Aged about 61 years
Residing at No.157, near total Gas
Bunk, Venkateshapuram, Bengaluru
5600045.
Vs.
ACCUSED : Mr. P. Abdul Wahid
S/o P. Abdul Azees
Aged about 42 years, Residing at
No.26, 9th cross, Anwer Layout,
K.G.Halli, Bengaluru560045.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.55874/2019
2. The factual matrix of the case are as follows: The complainant averred that, accused is her family friend, her husband was working in KSRTC died on 13.11.2016, she had received death benefits of her husband, same was saved for her future maintenance, knowing the same, the accused and wife of the accused requested for hand loan of Rs.5,60,000/ by assuring that, they would pay monthly profits, on this by saying that, his brotherinlaw one Mr. Iliyas engaged in real estate business as well as investing in land dealings as a developer, accordingly, believing the accused, she claims to have paid sum of Rs.5,60,000/ as a hand loan to the accused in different intervals, same was acknowledged by the accused in a accounts note book, but, thereafter the accused neither repaid the loan amount nor profits to her, accordingly, she had filed complaint to the K.G.Halli Police on 26.06.2019, however, later, the accused on her demand, had issued cheque bearing No.211266 dated 14.06.2019 drawn on Union Bank Cantonment branch Bangalore, for sum of Rs.5,60,000/ in her favour with an assurance that, cheque would be honored.
3C.C.No.55874/2019
3. As per the instruction and believing the words of the accused, the complainant claims to have presented cheque bearing No.211266 through her banker Bank of Baroda Frazer town branch, but, cheque came to be dishonored with remarks "Insufficient Funds" vide memo dated 16.06.2019, immediately, she demanded the accused to pay the cheque amount on 28.06.2019 through legal notice by way of RPAD, but, notice was returned unserved with a shara "insufficient address not known", however, it is deemed have been served, accordingly, inspite of service the accused not bothered to pay the cheque amount, hence, alleged that, the accused has committed an o/p/u/s 138 of N.I Act, accordingly, prays to convict the accused in accordance with law.
4. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offense punishable under Sec.138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the o/p/u/s. 138 of N.I. Act.
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5. Accused was secured by executing the warrant, later, he was enlarged on court bail, further, substance of plea was recorded, the accused pleaded not guilty and he claimed to be tried, the complainant in order to prove her case got examined herself as P.W.1 and placed reliance on Ex.P1 to P7. Upon closure of complainant side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused denied the incriminating materials on record, and examined himself as DW1.
6. Heard both the sides, perused materials on record, the following points arise for my determination.
Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
What Order?
7. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
5C.C.No.55874/2019 REASONS
8. POINT No:1: The accused denied the alleged borrowal of Rs.5,60,000/ from the complainant at different intervals as well as issuance of cheque bearing No.211266 dated 14.06.2019 for sum of Rs.5,60,000/ infavour of complainant and also service of demand notice, that apart, the accused claimed that, the complainant is stranger to him, so, the burden is on the complainant to prove the financial transaction as well as issuance of cheque towards of discharge of legally enforcible debt and compliance of Sec.138(a) to (c) of N.I Act.
9. The complainant in order to prove her case got herself examined as PW1 reiterated the complainant averments in her examination chief affidavit that, accused is her family friend had assured her to pay profits on the amount of Rs.5,60,000/, accordingly, as per the assurance she claims to have paid sum of Rs.5,60,000/ as a hand loan to the accused, in turn the accused issued Ex.P5 leas agreement as a security for her amount, but, the accused not kept up his promises, however, issued 6 C.C.No.55874/2019 Ex.P1 cheque for sum of Rs.5,60,000/, but, on it presentation it came to be returned as per Ex.P2 for "funds insufficient" on 15.06.2019, immediately, she lodged complaint against the accused before K.G.Halli Police, but, the Police have issued NCR as per Ex.P6 and 7, accordingly, she claims to have caused demand notice on 28.06.2019 the accused but, it came to be dishonored with a shara insufficient address/not known, however, she claimed that, it is deemed service, hence this complaint.
10. Per contra, the accused subjected the PW1 for cross examination, firstly, he denied the service of demand notice, on the ground that, he resides in Door No.7 Gandhi Nagar, K.G.Halli, but, the complainant had sent demand notice to wrong address which was not of his address, therefore, complainant has not complied Sec.138(b) of N.I Act, but, on careful perusal of the materials on record, Ex.P4 sent to the address i.e., Door No.26 9th Cross Anwer Layout K.G.Halli, Bangalore, as per Ex.P4 the notice returned unserved with a shara insufficient address/not known, however, the accused has not produced any document to show that his residential 7 C.C.No.55874/2019 address as stated in his examination chief affidavit, further, in the cross examination nothing has asked about demand notice or the address of the accused mentioned in the legal notice, for the first time, in his examination chief of accused denied the service of legal notice, but, though the accused was secured under execution of warrant in this case, but, in connected C.C.No. 55873/2019 accused had appeared in pursuance of summons issued to very same address mentioned in Ex.P4, therefore, the legal notice sent to correct and proper address of the accused, more so, the accused not brought out any materials to show that, the address mentioned in examination chief as his permanent address, because, the accused not at all denied the lease agreement issued infavour of the complainant as per Ex.P5, wherein, he shown different residential address than the address shown in examination chief, in addition to that, he was a tenant as per Ex.P5, so, in absence of any contrary document with regard to his permanent resident, the contention of non service cannot be acceptable, since, he appeared before the court in pursuance of summons issued in C.C. 55873/2019 to the very same address as mentioned in Ex.P4, accordingly, 8 C.C.No.55874/2019 though Ex.P4 returned unserved with a shara not known/ insufficient address, but, in view of his appearance it can be easily inferred that, the complainant has correctly sent legal notice to the proper address of the accused, so, once it is dispatched to the correct and proper address of the accused, then court has to be presumed the service of demand notice as per 27of General Clauses Act, even though, the notices returned unserved with a shara not known/ insufficient address, unless and until contrary is proved, but, in contrary except denial of service of demand notice accused has not brought out any material to show that, he never resided in the address shown in Ex.P4 as well as cause title, therefore, the contention of the accused about non service of demand notice is not acceptable, accordingly, the complainant has complied Sec.138(a) to (c) of N.I Act.
11. Further, so far as, transaction is concern, the accused denied the financial transaction allegedly claimed by the complainant, as the complainant is stranger to him, but, the accused during the course of cross examination has suggested to the PW1 that, "accused had issued blank cheque to me" and also not at all cross examined any 9 C.C.No.55874/2019 thing on Ex.P5 lease agreement belongs to accused that, how his lease agreement gone into the hands of the complainant, even he doesn't bothered to deny Ex.P5 does not belongs to him, so, in absence of that, it is crystal clear that, accused does not dispute Ex.P1 cheque belongs to his account, but, he categorically denied Ex.P1(a) not of his signature, however, the Ex.P2 clearly discloses cheque came to be dishonored for "funds insufficient", but, not "signature differs", therefore, the accused though denied Ex.P1(a) is not belongs to him, but, in view of Ex.P2 bank endorsement an inference can be drawn that, Ex.P1(a) signature found on Ex.P1 is none other than the accused, because, the banker of the accused did not object about signature found on Ex.P1 with specimen signature of accused available with it, accordingly, Ex.P1(a) is none other than the accused, at this stage to support my view relying upon the decision of Hon'ble Apex Court L.C. Goel Vs. Mr. Suresh Joshi and others reported in 1999 (3) SCC 376, wherein, it is held that, "The cheque bounced not an account of the fact that, signature on cheque was not tallying with the specimen signature of 10 C.C.No.55874/2019 appellant kept with the bank, but, on account of insufficient funds, had the signature on cheque been different, the bank would have returned the same with the remark that, the signature on cheque was not tallying with the appellant specimen signature kept with the bank. The memo's issued by the bank clearly show that, signature of the appellant on cheque was not objected to by the bank, but, same was returned with the remark insufficient fund. This circumstances shows that, the signature on cheque was that of appellant".
12. Accordingly, the complainant has proved Ex.P1 and P1(a) belongs to the accused undoubtedly, therefore, once the complainant proved Ex.p1 and P1(a) belongs to the accused, then it is mandatory upon the court to draw presumption infavour of complainant as per Sec.139 R/W 118(a) of N.I Act that, the complainant had received Ex.P1 cheque towards discharge of legally enforcible debt, even though the accused has denied the issuance of Ex.P1 cheque for lawful consideration as it is mandatory upon 11 C.C.No.55874/2019 the court to draw presumption infaovur of the complainant, at this stage, it is worth to note the decision of Hon'ble Apex Court that, Rangappa V/s Mohan wherein, it is held that;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
13. Accordingly, initial presumption has been drawn infavour of the complainant that, accused has drawn Ex.P1 infvaour of the complainant for sum of Rs.5,60,000/, however, it is a rebuttable presumption, therefore, the onus is on the accused to rebut the presumption, further, mere plausible explanation is not sufficient to rebut the presumption, the accused must 12 C.C.No.55874/2019 brought out probable materials either from the materials produced by the complainant or through his evidence, at this stage, it is worth to note the decision of Hon'ble Apex Court with regard to stander of proof for rebutting presumption i.e., Sumethi Viz Vs. M/s. Paramount Tech. Fab. Industries, held that, "To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt didn't exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they didn't exist".
14. The learned counsel for the accused vehemently argued that to prove the loan transaction the complainant has not produced any document on record and also not stated the exact dates of payment, either in her complainant or affidavit, further, the evidence of PW1 is full of improvements, therefore, in absence of documents 13 C.C.No.55874/2019 the complainant has failed to prove the loan transaction as well as issuance of cheque towards discharge of alleged loan, accordingly, prays to acquit the accused, that apart, the complainant has not prayed for conviction of the accused U/S 138 of N.I Act, but, prayed to convict the accused U/S 420 of IPC, accordingly, this court can not convict the accused u/s 138 of N.I. Act without proper prayer to that effect.
15. Per contra, the counsel for the complainant argued that, the complainant has produced Ex.P5 lease agreement belongs to the accused, but, there is no cross examination on this document about, how his agreement gone into the hands of the accused, further, Ex.P6 and 7 NCR issued by the KG Halli Police, that apart, the accused not explained what for he issued Ex.P1 cheque to the complainant without his signature, therefore, accused has to prove how his cheque gone into the hands of complaint, further, the accused has not denied the financial capacity of the complainant, accordingly, prays to convict the accused.
14C.C.No.55874/2019
16. So, considering the rival contentions with the material on the record, it clearly reveals that, though the accused claimed the complainant is stranger to him, but, he only suggested to the PW1 during cross examination that, he issued blank cheque to the complainant, however, he denied the financial transaction, but, what for he issued Ex.P1 cheque to the complainant not been stated, further, as rightly argued by the counsel for the complainant, the accused not at all cross examined the PW1 on Ex.P5 lease agreement belongs to the accused, despite the PW1 categorically stated the accused after receiving the amount of Rs.5,60,000/ in different intervals had issued Ex.P5 lease agreement as a security and also acknowledgment for receipt in a note book, though the complainant produced photo copies of acknowledgment of cash, but, not got marked on her side, however, it is not fatal to the case of the complainant, since, the accused has not explained how his cheque gone into hands of the complainant, as held supra, mere denial of financial transaction does not itself proof for rebutting the presumption, the accused has to brought out the probable materials on record to show that, how his cheque gone in to the possession of the complainant and 15 C.C.No.55874/2019 also the claimed debt did not exist and he does not drawn Ex.P1 cheque for consideration,but, he himself claimed that, he issued his blank cheque to the complainant in contrary to his defence that, complainant is stranger to him, therefore, though the complainant not given particulars about dates of payment to the accused, but, she specifically stated accused has issued Ex.P1 cheque towards consideration of Rs.5,60,000/
17. Further, the complainant stated that, she approached the K.G.Halli PS for alleged repayment of claimed amount, the accused not at all disputed it, however, contended that, it is false complaint, but, what for it was lodged and what was his claim before the Police on Ex.P1, nothing has brought out, inspite of the complainant got marked Ex.P6 and 7 on her side, therefore, mere denial and claiming it as false is not at all enough to believe the defence, but, the accused must produce materials to show had he taken any action against the complainant for having custody of his cheque and also complaining before the Police, even though he knew the custody of his cheque, hence, case of the complainant cannot be 16 C.C.No.55874/2019 doubted about the transaction and issuance of cheque to complainant for claimed amount.
18. That apart, the learned counsel for the accused vehemently argued that, the complainant not produced any documents to prove her financial capacity or to show that, she had received death benefits of her husband, as such, failed to prove her financial capacity, accordingly, debt claimed by the complainant is doubtful and does not exist, however, on careful perusal of entire cross examination of PW1, the accused posed several questions with regard to financial sources to complaint, but, not denied financial sources to her, further, the complainant has categorically stated, she is pensioner, her husband had served for KSRTC/BMTC and received death benefits of her husband, same is not denied by the accused, hence, question of producing the documents for financial capacity would arise only after denying the financial capacity, therefore, non production of document to show financial capacity is not fatal to the case of the complainant.
17C.C.No.55874/2019
19. The accused in counter to complainant evidence got examined himself as DW1, wherein, he denied the financial transaction claimed herein and contended that, a false complaint allegedly lodged by the complainant before K.G. Halli PS as Ex.P6 and 7, but, not at all stated, how his cheque gone into the hands of the complainant, for that, accused is fully silent, as held supra, to rebut the presumption, the accused must prove that claimed debt did not exist and he does not drawn the cheque for consideration, but, he simply denied the transaction by suggesting that, he had issued blank cheque to complainant, so, issuance of cheque in question infavour of the complainant not disputed, but, disputed the signature, however, what for he issued Ex.P1 cheque to a stranger not at all explained, therefore, nothing has produced to prove his innocence that, he doesn't drawn the Ex.P1 cheque for consideration in rebutting the presumption drawn infavour of complainant u/s 139 r/w 118(a) of N.I Act, hence not helpful to prove innocence.
20. so, considering the rival contentions with the materials on record the over all materials on records it clearly reflects that, though the accused denied the 18 C.C.No.55874/2019 financial transaction receipt of Rs.5,60,000/ from the complainant, but, admitted the issuance of Ex.P1, however, he contended that, he issued blank cheque to her, but, when issued, what for issued, how his cheque gone into hands of the complainant not been explained, instead he denies his signature found on Ex.P1, however, Ex.P1 got dishonored for "Funds Insufficient", but, not "signature differs", if at all, the Ex.P1(a) not that of him, his banker could have issued endorsement as "drawer signature differs", as such, it can be easily inferred that, Ex.P1(a) is that of accused, further, the accused except denying the complainant case nothing has elicited that, complainant was a stranger to him, how cheque given to her for different purpose, but, not for consideration, therefore, absolutely nothing materials on record to disprove the presumption, therefore, the accused failed to prove the debt claimed by the complainant despite not exist and he does not have drawn Ex.P1 infavour of the complainant, hence, the complainant has proved the complaint of Sec.138(a) to (c) and the financial transaction as well as issuance of cheque in question of sum of Rs.5,60,000/, the learned counsel by referring to the prayer claimed in complainant argued that, the 19 C.C.No.55874/2019 complainant not at all sought to punish the accused U/S 138 of N.I Act, accordingly, complainant can no be convicted U/S 138 of N.I Act, but, on perusal of complaint, though the complaint not sought exclusively punish the accused U/S 138 of N.I Act, but, sought specifically to convict the accused under law and prayed to impose double the cheque amount fine as well as sought to pass an award, which, clearly goes to show that, complainant sought punishment under law by relying upon Ex.P1, therefore, on failure to pay the cheque amount within stipulated time, the accused liable to be punished U/S 138 of N.I. Act, accordingly, accused is found guilty of an o/p/u/s 138 of N.I. Act.
21. So, far as sentence and compensation is concern, an o/p/u/s.138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principal of law with facts and circumstances of the case, which clearly reveals that accused had promised to pay profits to the complainant while borrowing the loan amount of Rs.5,60,000/ from the complainant, so far nothing has paid to her, therefore, considering the nature of transaction, duration 20 C.C.No.55874/2019 of pendency, litigation expenses, I am opinion that, if sentence of fine of Rs.6,65,000/ is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.6,65,000/, out of that, the complainant is entitled for sum of Rs.6,60,000/, as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/, is to be appropriated to the state, in case of default, the accused shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
22. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted for an offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.6,65,000/, (Rupees six lakh sixty five thousand only) in default, the accused shall 21 C.C.No.55874/2019 undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/, is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C., the complainant is entitled for Rs.6,60,000/.
The bail bond and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 23rd day of November, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mrs. Shameem Nisha
2. Documents marked on behalf of complainant:
Ex.P.1 : Original Cheque
22
C.C.No.55874/2019
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : Office copy of the legal notice
Ex.P.4 : Returned postal cover
Ex.P.4(a) : Returned postal cover opened in the
open court and notice therein marked
Ex.P.5 : Lease agreement dated 23.01.2018
Ex.P.6 : Police endorsement
Ex.P.7 : Endorsement
3. Witnesses examined on behalf of Accused:
NIL
4. Documents marked on behalf of Accused:
NIL (M.Vijay), XXXIII ACMM, BENGALURU.