Bangalore District Court
Hajil K. Mohidin Beary Education Trust vs Zeharan Khateeb on 19 March, 2025
KABC0C0020752023
IN THE COURT OF XIV ADDL.CHIEF JUDICIAL
MAGISTRATE, MAYOHALL UNIT, BENGALURU
Dated this the 19th day of March, 2025
Present: Sri.SANTHOSH S.KUNDER., B.A.,LL.M.,
XIV Addl. C.J.M., Bengaluru.
JUDGMENT UNDER SECTION 355 of Cr.P.C
C.C.No. 50549/2023
Haji.K.Mohidin Beary Education Trust,
Complainant Bearys Horizon,
# 21, Wood Street, Bengaluru.
Represented by its,
Legal Manager/Authorized Officer
Mrs.Champa K.C,
W/o Mr.Girish.K,
Aged about 40 years.
(By Sri. Haneef.M.H., Ruksana.M.H.,
Manjunatha.B & Praveen.S.L.,
Advocates)
V/s
Accused Mr.Zeharan Khateeb,
S/o Mr.Zahroor Khateeb Shaye,
R/at 174-1, Ferry Road,
Kundapura, Udupi,
Karnataka
(By Sri.K.Prasanna Shetty, Advocate)
Offence U/s 138 of Negotiable Instruments Act
Plea of the Pleaded not guilty
accused
2
C.C.No. 50549/2023
KABC0C0020752023
Final Order Accused is held guilty & convicted
This complaint is filed under Section 200 of Cr.P.C,
for the offence punishable under Section 138 of the
Negotiable Instruments Act.
2. Complaint averments in brief:
2.1. Complainant-Haji K.Mohidin Beary Education
Trust is a renowned educational Trust started in 1906
with a goal of providing education to poor students and
children with rural background. Its registered office is
situated in Bengaluru. It runs various educational
institutions such as, M/s Bearys College of Education,
M/s Haji K.Mohidin Bearys Composite Pre-University
College and M/s Bearys First Grade College.
2.2. Accused was working as Accountant in
complainant's institution. On 29.07.2022, pursuant to the
information gathered by the Accountant of the Kundapura
Vyavasaya Seva Sahakari Sangha (VSSN), Kodi Branch, it
is found that during the course of the employment, he has
swindled/misappropriated accounts of M/s Bearys College
of Education and M/s Haji K.Mohidin Beary Composite
Pre-University College by forging the signatures of
President, Chairman and college Principal and withdrawn
huge amount from the bank accounts of complainant's
institutions.
3
C.C.No. 50549/2023
KABC0C0020752023
2.3. It is found that on 22.06.2022, he had
withdrawn ₹1,50,000/- from the bank account of
M/s Bearys College of Education, bearing account
No.64057397797, maintained at State Bank of India,
Kundapura Branch through cheque bearing No.521549.
Further, on 02.07.2022, he has withdrawn a sum of
₹20,000/- from the very account through cheque bearing
No.521550 by forging the signatures of President and
Principal of colleges. It was also found that on
29.07.2022, he has obtained a cheque book pertaining to
the account No.00301000584 of M/s Bearys First Grade
College from Kundapura VSSN, Kodi Branch in the name
of the advisory committee complainant's institution.
Thereafter, he has transferred ₹70,000/- from the said
account through NEFT, vide reference
No.ICMS220729000LKNKL0000204, by forging the
signature of the Chairman of the complainant's
institution. Thereafter, he has withdrawn the said sum of
₹70,000/- by using cheque bearing No.521551 from the
joint account bearing No.64057397797. It was also found
that, on 01.07.2022, he has collected a sum of
₹1,09,000/- and on 12.07.2022, he has collected a sum of
₹40,000/- in all ₹1,49,000/- as college fee from the
students of M/s Haji K Mohidin Beary Composite Pre-
University College and not deposited the said amount to
the bank account of the complainant's institution.
4
C.C.No. 50549/2023
KABC0C0020752023
2.4. On enquiry with the accused, he has confessed
the guilty of misappropriation and forgery and promised to
pay swindled amount of ₹5,00,000/- by addressing a
letter dated 30.07.2022. In order to pay the said amount,
he has issued two cheques, bearing No.228122 dated
30.07.2022 for a sum of ₹3,89,000/- and cheque bearing
No.228121 dated 15.08.2022 for ₹1,11,000/-, both drawn
on State Bank of India, Kundapura Branch along with the
letter dated 30.07.2022 (supra). Mother of the accused by
name, Mrs.Dilbari and his uncle Mr.Khatib Ashfaque,
have signed the said letter as witnesses.
2.5. Pursuant to the understanding between the
complainant and the accused, the complainant has
presented the cheque bearing No.228121 for encashment
on 06.09.2022 through its banker, namely, Bank of
Baroda, Konaje Branch. But, to utter shock of the
complainant, the said cheque was returned unpaid for the
reason 'insufficient funds' and the same was intimated to
the accused personally. He had requested time for
arranging the money. Accordingly, on 07.09.2022, he has
paid a sum of ₹50,000/- to the complainant which was
adjusted towards the due amount of ₹5,00,000/-.
However, even after several reminders and demands, the
accused has not paid the cheque amount. He has
requested the complainant to present the cheque again for
encashment. As per his assurance, the said cheque was
5
C.C.No. 50549/2023
KABC0C0020752023
presented again on 05.11.2022. But, it was again
returned unpaid on 07.11.2022 with similar endorsement.
2.6. It is averred that the accused has issued the
cheque knowing fully well that he does not have sufficient
funds in his account to honour the cheque. Therefore, the
complainant has issued a legal notice on 06.12.2022
calling upon the accused to pay the entire cheque amount
within 15 days of receipt of the notice. Notice was duly
served on him on 14.12.2022. But, he has neither paid
the cheque amount nor replied the legal notice. Therefore,
this complaint is filed.
3. This court took cognizance of the offence
punishable under Section 138 of N.I.Act. Smt.Champa
K.C., Legal Manager/Authorized Officer of the
complainant was examined on oath. She has filed affidavit
in lieu of oral sworn statement. As there were prima facie
materials, criminal case was registered and accused was
summoned.
4. Pursuant to the summons, accused has
appeared before the court and got enlarged on bail. After
compliance of Sec.207 of Cr.P.C, this court recorded his
plea by reading over the substances of accusation. He has
pleaded not guilty and claimed to be tried.
5. Evidence of Legal Manager of the complainant
which was recorded during pre-cognizance stage has been
6
C.C.No. 50549/2023
KABC0C0020752023
treated as evidence. Documents at Ex.P1 to 12 marked
through her.
6. Accused was examined under Sec.313 of
Cr.P.C. He has denied the incriminating evidence. By way
of defence, he has examined himself as DW-1. No
documents marked for the accused.
7. Heard argument on both side.
8. Points for consideration:-
1. Whether the complainant has proved
that the accused has drawn cheque
bearing No.228121 dtd.15.08.2022 for
₹1,11,000/- on State Bank of India,
Kundapura Branch, in favour of the
complainant towards discharge of legally
recoverable debt/liability and the said
cheque was dishonored for the reason
'insufficient funds' and in spite of service
of statutory notice dated 06.12.2022, he
has failed pay the amount covered under
the cheque and thereby he has
committed the offence punishable under
Section 138 of N.I.Act?
2. What order?
9. The above points are answered as under:-
Point No.1 : In the Affirmative.
Point No.2 : As per final order for the following:
REASONS
10. Point No.1:- The case of the complainant is that,
the accused was working as Accountant in its institution
7
C.C.No. 50549/2023
KABC0C0020752023
and during his employment, between 22.06.2022 and
29.07.2022, he has misappropriated a sum of
₹5,00,000/- of complainant's institutions by forging
signatures of President and Chairman of the complainant
and Principal of educational institutions run by the
complainant. Complainant is contending that the accused
has confessed the guilty and in order to return the
misappropriated sum of ₹5,00,000/-, he has issued two
cheques. Subject matter of this complaint is cheque
bearing No.228121 dated 15.08.2022 for ₹1,11,000/-
drawn on State Bank of India, Kundapura Branch. The
complainant is contending that the said cheque was
presented twice for encashment and on both occasions, it
was returned unpaid with endorsements 'funds
insufficient' and that, in spite of service of statutory
demand notice, he has failed to pay the cheque amount.
11. In order to prove the contentions, the
complainant has examined its Legal Manager by name,
Smt.Champa K.C as PW-1 and got marked documents at
Ex.P1 to 12. Ex.P-1 is the cheque; Ex.P-2 is the bank
endorsement dated 07.11.2022; Ex.P-3 is copy of the legal
notice dated 06.12.2022; Ex.P-4 to 6 are three postal
receipts; Ex.P-7 is postal acknowledgment card; Ex.P-8 is
extract of resolution passed by the trusties of the
complainant dated 21.12.2022; Ex.P-9 is letter dated
30.07.2022, allegedly written by the accused to the
8
C.C.No. 50549/2023
KABC0C0020752023
complainant; Ex.P-10 is bank statement of complainant;
Ex.P-11 is bank statement of Bearys College of Education
and Ex.P-12 is bank statement of Bearys First Grade
College.
12. Learned counsel for the accused cross-
examined PW-1 and elicited that the misappropriation
took place in Kundapura. It is elicited that the accused
was appointed as Accountant in the educational
institution run by the complainant. It is also elicited that
one Naresh Bhat was working as Supervisor in M/s
Bearys College of Education, M/s Haji K Mohidin Bearys
Composite Pre-University College and M/s Bearys First
Grade College. PW-1 has asserted that three months after
the accused joined for duty, misappropriation took place.
She has further asserted that the act of misappropriation
came into light when an employee of Kundapura VSSN
telephoned the complainant to inform that the signature
on the cheque that was presented for encashment is not
tallying. Soon after coming to know above the act of
misappropriation, the Supervisor - Naresh Bhat informed
the same to the complainant's institution. It is elicited
that the money was misappropriated from the bank
accounts maintained in State Bank of India and VSSN,
Kundapura Branch. When questioned as to what is the
amount that was misappropriated by the accused,
PW-1 has stated that approximately ₹5,00,000/- has been
9
C.C.No. 50549/2023
KABC0C0020752023
misappropriated. When it was asked in complaint as well
as in legal notice, the misappropriated amount is
mentioned as ₹3,89,000/-, PW-1 has stated that after
verification of records, it was found that ₹3,89,000/- was
misappropriated; but, the accused himself has confessed
that he has misappropriated a sum of ₹5,00,000/-.
13. During cross-examination dated 24.01.2024, it
was questioned as to how ₹3,89,000/- was
misappropriated, PW-1 has stated that the accused has
forged the signatures of Principal and President on the
cheques and drawn ₹1,50,000/- and ₹1,70,000/- from
the bank. PW-1 has further stated that the accused has
drawn ₹70,000/- from Kundapura VSSN and transferred
the same to State Bank of India, Kundapura and withdrew
it by using the cheque by forging the signatures of
Principal and President. When questioned if, complaint
was lodged against the accused, PW-1 has stated that no
such complaint was lodged. When questioned if,
documents relating to forgery have produced before the
court, PW-1 has stated that those documents are in bank.
PW-1 has asserted that college fee will be received from
the students in cash as well as through bank transfer. It it
elicited that out of misappropriated fund of ₹5,00,000/-,
the accused has paid ₹50,000/-. It was suggested that
Ex.P9 was obtained from the accused by threatening his
mother.
10
C.C.No. 50549/2023
KABC0C0020752023
14. PW-1 has further cross-examined on
02.07.2024 after she was further examined-in-chief on
28.02.2024. It is elicited that before withdrawal a sum of
₹1,50,000/-, ₹20,000/- and ₹70,000/- by way of
cheques, the bank has not contacted the complainant. In
so far as withdrawal appearing in Ex.P12, PW-1 has
stated that, after the money was withdrawn by using the
cheque, the officials of Kundapura VSSN telephoned the
complainant and informed that the signature on the
cheque is not tallying with the specimen signature. PW-1
has denied the suggestion that the withdrawals that are
pleaded in the complaint were done by college Principal
and President of the Institution.
15. Accused has entered into witness-box to
examine himself as DW-1. During examination-in-chief,
he has deposed that he worked as Accountant in
complainant's institution for 08 months. Since, he was
getting less salary, he intended to go abroad and
therefore, he has tendered resignation. Before tendering
resignation, he had informed the Chairman of the
complainant by name, Abdul Rehaman and requested to
give experience certificate. In response to the request, he
had asked the accused to give three months' advance
notice or three months' salary and to tender resignation.
Since, the accused was in hurry to go abroad, in
September, 2022, he has paid ₹50,000/- to the
11
C.C.No. 50549/2023
KABC0C0020752023
complainant in cash. At the time of giving cash, Abdul
Rehaman asked the accused to give two cheques. When
the accused questioned regarding necessity of giving the
cheques, he had informed that the cheques are required
for the purpose of paying three months' salary and he had
assured that the cheques will be returned at the time of
issuing relieving letter. DW-1 has further deposed that at
the time of tendering ₹50,000/- in cash, he had requested
to return the cheques. But, the cheques were not
returned.
16. Learned counsel for the complainant cross-
examined DW-1 and elicited that the accused has joined
the complainant's institution on 25.11.2021 and relieved
from duty on 29.07.2022. DW-1 has asserted that he has
given the first cheque on 01.07.2022. When he was
questioned as to whether he has produced visa to the
court that was received by him at the time of issuing
relieving letter, DW-1 has stated that he has not produced
the visa before the court. He has stated that he does not
remember his passport number. He has asserted that
passport is valid for 10 years. DW-1 has admitted that
Ex.P1 belongs to him and Ex.P1(a) is his signature. When
it was suggested that Ex.P1 cheque was given to the
complainant on 30.07.2022, he has stated that he has not
issued the cheque; but, the Chairman of the complainant
has taken it. DW-1 has denied the suggestion that he has
12
C.C.No. 50549/2023
KABC0C0020752023
misappropriated ₹5,00,000/-. When it was suggested that
he was asked to come to complainant's institution on
29.07.2022, DW-1 has stated that he did not go for the
reason that he has not done anything. It is elicited that
Smt. Dilbari is mother and one Khatib Ashfaq is uncle of
the accused. He has denied the suggestion that on
30.07.2022, his mother and uncle have produced him
before the Principal and others for enquiry. He has also
denied the suggestion that during enquiry, he has issued
two cheques in favour of complainant. It is elicited that on
07.09.2022, the accused deposited ₹50,000/- to the
complainant. DW-1 has asserted that he had deposited
the said money for the purpose of issuing relieving letter.
However, till this date, relieving letter has not been issued.
It was suggested that the relieving letter was not issued
for the reason that he has misappropriated ₹5,00,000/- in
complainants' Institution. DW-1 has denied the same. It is
elicited that he has issued reply as per Ex.P8 to the legal
notice issued by the complainant. It is elicited that the
accused has not lodged complaint to police alleging
misuse of his cheques.
17. During the course of argument, learned
counsel for the complainant has submitted that the
accused has admitted the cheque and his signature on the
cheque. He has also drawn the attention of the court to
letter at Ex.P9, which is purported to have been written by
13
C.C.No. 50549/2023
KABC0C0020752023
the accused himself in his own handwriting confessing the
guilt of misappropriation of funds. Under the very letter
the accused has issued the subject cheques. He has
submitted that the mother and uncle of the accused have
signed the said letter as witnesses. Learned counsel for
the complainant submitted that the complainant has
produced sufficient evidence before the court to
substantiate that the accused has misappropriated the
funds of the complainant and has issued two cheques for
the purpose of return of misappropriate money to the
complainant. Therefore, the accused is liable to be
convicted.
18. On the other hand, learned counsel for the
accused has submitted that the cheques were given by the
accused at the time of joining service. He has submitted
that as per the complaint averments, alleged
misappropriated money is ₹3,89,000/-. But, the cheques
were allegedly drawn for ₹5,00,000/-. There was no
necessity for the accused to give cheque for ₹5,00,000/-
when the alleged misappropriated money is ₹3,89,000/-.
He has further submitted that PW-1 is working in
Bengaluru Branch of complainant's institution and as
such, she does not personally aware of the act of
misappropriation attributed the accused. He has argued
that, for the commission of an offence under Section 138
of NI Act, the cheques that is dishonored must represent a
14
C.C.No. 50549/2023
KABC0C0020752023
regally enforceable debt on the date of its maturity or
presentation. If the drawer of the cheque pays a part or
whole of the sum represented on the cheque between the
period when the cheque is drawn and when it is encashed
upon maturity, then the legally enforceable debt on the
date of maturity would not be a sum represented on the
cheque. He has argued that in the present case, according
to the complainant, after the drawing of the alleged
cheque(s) by the accused, he has made part payment and
the same was adjusted to the amount allegedly due to the
complainant. Therefore, he has submitted that the
accused cannot be held guilty of the offence. In this
regard, reliance is placed on the judgment of Hon'ble
Supreme Court in Dashrathbhai Trikambhai Patel V/s.
Hitesh Mahendrabhai Patel & Anr., 2023(1) SCC 578,
which is produced by the counsel for the complainant.
Apart from the said judgment, advocate for the
complainant has relied on the following judgments:-
1. M/s Kalamani Tex V/s Balasubramanian;
AIR 2021 SC (SUPP) 1083;
2. Rajesh Jain V/s Ajay Singh;
AIR 2023 SC 5018;
3. Smt.Parvathamma.M V/s Smit.Chandrakala.V.
Criminal Appeal No.508/2015;
(DD.14.06.2024)
19. On the other hand, advocate for the accused
has relied on the judgments of Hon'ble Supreme Court in
15
C.C.No. 50549/2023
KABC0C0020752023
Krishna Janardhan Bhat V/s Dattatraya.G Hegde (AIR
2008 SC 1325) and Kalyan Kumar Gogoi V/s Ashutosh
Agnihotri and another (AIR 2011 SC 760)
20. I have given anxious consideration to the
argument advanced by both advocates. I have also gone
through the materials placed on record and judgments
cited by either side. The complainant is contending that
the accused was working as Accountant at complainant's
institution and during his tenure as Accountant, he has
misappropriated a sum of ₹5,00,000/- and towards
repayment of the same, the accused has drawn the
cheques along with letter dated 30.07.2022 which is
marked at Ex.P9. It is equally important to note that after
the drawing of alleged cheques by the accused, according
to the complainant, on 07.09.2022 the accused has paid a
sum of ₹50,000/- to the complainant and the same was
adjusted towards misappropriated money. This has been
pleaded in para No.8 of the complaint.
21. Subject matter of this case is, cheque bearing
No.228121 dated 15.08.2022 drawn for ₹1,11,000/-,
which is produced at Ex.P1. It is not in dispute that the
said cheque was returned unpaid for the reason 'funds
insufficient', vide bank endorsement at Ex.P2 dated
07.11.2022. After the dishonor of the cheque, the
complainant has issued a demand notice to the accused
as per Ex.P3 through registered post. Postal receipt and
16
C.C.No. 50549/2023
KABC0C0020752023
postal acknowledgment card are marked at Ex.P4 to 7
respectively. Accused does not dispute the service of
notice on him. In fact, he has admitted service of notice in
his examination-in-chief itself. It is relevant to point out
that the accused has not chosen to issue a reply to the
demand notice.
22. It is an undisputed fact that the accused had
worked as Accountant in complainant's institution from
25.11.2021 to 29.07.2022. It is pertinent to note that the
accused has admitted that cheque at Ex.P1 belongs to
him and Ex.P1(a) is his signature. Relevant portion of
deposition of DW-1 is extracted hereunder:-
"02. ನಿ.ಪಿ-1 ನನ್ನದೆ ಚೆಕ್ಕು ಇರುತ್ತದೆ. ನಿ.ಪಿ-1(ಎ)
ಸಹಿ ನನ್ನದೇ ಇರುತ್ತದೆ. ದಿ.25.11.2021 ರಂದು
ನಾನು ದೂರುದಾರ ಸಂಸ್ಥೆಗೆ ಕೆಲಸಕ್ಕೆ ಸೇರಿ
ದಿ.29.07.2022 ರಂದು ನಾನು ಸೇವೆಯಿಂದ ಬಿಡುಗಡೆ
ಹೊಂದಿದ್ದೇನೆಂದರೆ ಸರಿ. ನಿ.ಪಿ-1 ಚೆಕ್ಕನ್ನು ನಾನು
ದೂರುದಾರ ಸಂಸ್ಥೆಗೆ ದಿ.30.07.2022 ರಂದು
ಕೊಟ್ಟೆದ್ದೇನೆಂದರೆ, ನಾನು ಆ ಚೆಕ್ಕನ್ನು ದೂರುದಾರರಿಗೆ
ಕೊಡಲಿಲ್ಲ ಎಂದು ಸಾಕ್ಷಿಯು ಹೇಳುತ್ತಾರೆ.XXXXX"
23. Of course, accused has denied the allegation of
misappropriation attributed to him. He has also denied
that the cheques were drawn towards payment of alleged
misappropriated money. Complainant is contending that
the accused has admitted guilt and, on 07.09.2022 he has
deposited part of the misappropriated money. It is relevant
to note that the accused admits that he has paid
₹50,000/- to the complainant on 07.09.2022. However,
17
C.C.No. 50549/2023
KABC0C0020752023
according to him, he has paid ₹50,000/- to the
complainant in September, 2022 on the say of Chairman
of the complainant for the purpose of issuing relieving
letter, as he intended to go abroad for job. During cross-
examination, he has admitted that he has deposited
₹50,000/- to the complainant on 07.09.2022. Said piece
of evidence of DW-1 is extracted as under:-
"XXXX ದಿ.07.09.2022 ರಂದು ನಾನು
ದೂರುದಾರ ಸಂಸ್ಥೆಗೆ ರೂ.50,000/- ಗಳನ್ನು ಜಮಾ
ಮಾಡಿದ್ದೇನೆಂದರೆ ಸರಿ. Relieving letter ಕೊಡುವ
ಸಲುವಾಗಿ ನಾನು ಆ ಹಣವನ್ನು ಕೊಟ್ಟಿದ್ದೇನೆ. ಅದು
ಲಂಚದ ಹಣವೇ ಎಂದು ಕೇಳಿದಾಗ, ನನಗೆ ಗೊತ್ತಿಲ್ಲ
ಎಂದು ಸಾಕ್ಷಿಯು ಹೇಳುತ್ತಾರೆ. ತಕ್ಷಣ ಕೆಲಸದಿಂದ ಬಿಡುಗಡೆ
ಮಾಡಲು ಆಗುವುದಿಲ್ಲ, ಅಕೌಂಟ್ಸ್ ಕೆಲಸ ಬಾಕಿ ಇದೆ
ಎಂದು ಹೇಳಿ ನನಗೆ Relieving letter ಅನ್ನು
ಕೊಟ್ಟಿರಲಿಲ್ಲ. ಈವರೆಗೆ ನನಗೆ ದೂರುದಾರ
ಸಂಸ್ಥೆಯವರು Relieving letter ಅನ್ನು ಕೊಟ್ಟಿಲ್ಲ.
ದೂರುದಾರರ ಸಂಸ್ಥೆಯ ರೂ. 5,00,000/- ಹಣವನ್ನು
ನಾನು ದುರುಪಯೋಗ ಮಾಡಿದ್ದೇನೆಂದು ನನಗೆ
Relieving letter ಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ, ನಾನು ಹಣ
ದುರುಪಯೋಗ ಮಾಡಿಲ್ಲವೆಂದು ಸಾಕ್ಷಿಯು ಹೇಳುತ್ತಾರೆ."
24. In order to prove that the accused has
misappropriated money in the complainant and cheques
were issued by the accused for payment of the said
money, the complainant has produced letter dated
30.07.2022 (Ex.P9), allegedly written by the accused to
the President of the complainant. The said letter is
extracted as under:-
"From,
Zeharan Khateeb
Accountant
18
C.C.No. 50549/2023
KABC0C0020752023
Haji K.Mohidin Beary Education Trust
To,
President
Haji K.Mohidin Beary Education Trust
Dear Sir,
Subject: Missappropriation of Fess
collection money by me &
Forgery of signature of
chairman.
With reference to the above subject, I here
with certified that I have done misappropriation
in fees collection money & Forgery of signature
of the chairman of the company & withdrawal
of cash. Same as been purely handled by me &
I am fully responsible for re-pay the
misappropriated amount & also any other
amount found while Auditing, here with &
furnishing the misappropriation amount as
below
1) PUC by cash collection Rs.109000 01-07-2022
by cash collection Rs.40000 12-07-2022
________
1,49,000
2) B.Ed. (S.B.I account)
Rs.2,40,000 cheque no: 13-07-22
self withdrawal
All Total Rs 3,89,000
For the above mentioned amount & submitting
cheques as below
1) Rs 3,89,000 cheque no: 228122 30-07-22
2) Rs 1,11,000 cheque no: 228121 15-08-22
Sd/-
I am held responsible for above cheque
19
C.C.No. 50549/2023
KABC0C0020752023
Apart from above amount any more
amount found as misappropriation I am held
responsible from 25-11-2021 to 29-07-2022.
I am requesting you to please present
chno: 228122 on 16-08-2022 & ch no: 228121
on 30-08-2022 & I undertake to maintain the
required balance in the above said account.
Address: S/o Zaheer Khateeb Shaye
174-1, Ferry road, Kundapura, Udupi
Karnataka, 576201
aadhar no: 241987792754
Witness
1) Sd/-
2) Sd/- Sd/-
30-07-2022"
25. During cross-examination, DW-1 has conceded
that Smt.Dilbari and Sri.Khateeb Ashfaque, who have
signed as witnesses to Ex.P9 are his mother and uncle
respectively. It was suggested to DW-1 that after the
incident of misappropriation, said Smt.Dilbari and
Sri.Khateeb Ashfaque have produced him before the
Principal of the college and got him enquired and on the
same day, two cheques were issued to the complainant.
DW-1 has denied the suggestion. It is useful to extract the
deposition of DW-1 dated 14.11.2024 which reads as
under:-
"04. ಶ್ರೀಮತಿ. ದಿಲ್ಬಾರಿ ರವರು ನನ್ನ ತಾಯಿ. ಖತೀಬ್
ಅಶ್ಛಾಕ್ ರವರು ನನ್ನ ಚಿಕ್ಕಪ್ಪ. ಖತೀಬ್ ಅಶ್ಛಾಕ್
ರವರು ಮೊದಲು ದೂರುದಾರ ಸಂಸ್ಥೆಯಲ್ಲಿ ಕೆಲಸ
ಮಾಡುತ್ತಿದ್ದರು ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಾನು ಹಣ
20
C.C.No. 50549/2023
KABC0C0020752023
ದುರುಪಯೋಗಪಡಿಸಿಕೊಂಡು ಓಡಿ ಹೋದ ನಂತರ
ನನ್ನನ್ನು ನನ್ನ ತಾಯಿ ಮತ್ತು ಚಿಕ್ಕಪ್ಪ
ದಿ.30.07.2022 ರಂದು ದುಾರುದಾರ ಸಂಸ್ಥೆಯ
ಪ್ರಾಂಶುಪಾಲರು ಮತ್ತು ಇತರರ ಮುಂದೆ ಹಾಜರುಮಾಡಿ,
ವಿಚಾರಣೆ ಮಾಡಿಸಿದ್ದಾರೆಂದರೆ ಸರಿಯಲ್ಲ. ಅದೇ ದಿನ
ನಾನು 02 ಚೆಕ್ಕುಗಳನ್ನು ದೂರುದಾರ ಸಂಸ್ಥೆಗೆ
ಕೊಟ್ಟಿದ್ದೇನೆಂದರೆ ಸರಿಯಲ್ಲ."
26. It is pertinent to note that the accused does
not dispute his signature on Ex.P9. On the other hand, he
is contending that the said letter was got written by the
Principal of the college by putting him (accused) and his
mother under threat. This piece of evidence is finding
place in the cross-examination of PW-1 dated 24.01.2024,
which is extracted as under:-
"XXXX ನಿ.ಪಿ.9 ರ ಪತ್ರವನ್ನು ಕುಂದಾಪುರದ
ಸಂಸ್ಥೆಯ ಪ್ರಿನ್ಸಿಪಾಲ್ ಮೊಹಮ್ಮದ್ ಸಮೀರ್ ರವರು
ಆರೋಪಿ ಮತ್ತು ಆರೋಪಿ ತಾಯಿಗೆ ಬೆದರಿಕೆ ಹಾಕಿ
ಬರೆಸಿಕೊಂಡಿರುವ ಪತ್ರ ಆಗಿದೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಸರಿಯಲ್ಲ
ಎನ್ನುತ್ತಾರೆ. XXXXX"
27. Though, the accused is contending that his
signature on Ex.P9 was obtained by threatening him,
except his self-serving testimony, no witnesses have been
examined before the court to substantiate the same. His
mother and uncle would have been the star witnesses to
speak about the alleged threat put to accused and his
mother. Therefore, this court holds that the defence of the
accused in this regard has not been proved.
21
C.C.No. 50549/2023
KABC0C0020752023
28. It is pertinent to note that the accused has not
issued reply to the legal notice. Had there been any such
threat, nothing prevented the accused to urge the same at
the first given opportunity by issuing reply to the demand
notice. It is elicited in the cross-examination of DW-1 that
in another case, i.e., CC.No. 53131/2023, the accused
has issued reply to the legal notice. But, no such stand is
taken in the said reply notice which is marked at Ex.P8 in
CC.No. 53131/2023. At one breath, accused is contending
that cheques were given to the complainant on the say of
Chairman of the complainant towards payment of three
months' salary and on the other, he is contending that the
cheques were taken by putting him and his mother under
threat. None of these contentions are worth of acceptance,
as because, normally, no employer would take cheque(s)
from his employee for the purpose of paying wages.
29. Accused is contending that he has deposited
₹50,000/- to the complainant for the purpose of issuing
relieving letter. However, as per his own version in his
cross-examination, even after paying ₹50,000/-, relieving
letter has not been issued to him. When it was questioned
if the said money was given as bribe, he has stated that he
does not know. It is pertinent to note that the accused
was relieved from duty on 29.07.2022. Once he was
relieved from duty, absolutely there was no necessity for
him to deposit ₹50,000/- to the complainant on
22
C.C.No. 50549/2023
KABC0C0020752023
07.09.2022. Therefore, the defence that ₹50,000/- was
paid to the complainant for the purpose of issuing
relieving letter is also not of worth acceptance.
30. It is true that the complainant has admitted
that out of the misappropriated money, the accused has
paid a sum of ₹50,000/- on 07.09.2022. This is not in
dispute. The said payment of ₹50,000/- was made after
the issuance of cheque at Ex.P1. According to the
complainant, money misappropriated by the accused is to
the tune of ₹5,00,000/-. Cheque at Ex.P1 is dated
15.08.2022 drawn for ₹1,11,000/-. Even after adjusting
amount paid by the accused after the issuance of the
cheque, towards misappropriated money, the accused is
still liable to pay ₹4,50,000/-.
31. It is true that as per the averments at para
No.3 to 5 of the complaint, the total money
misappropriated is ₹3,89,000/-. But, in Ex.P9, the
accused has admitted that he is liable to pay a sum
₹5,00,000/- and issued two cheques. In this regard, PW-1
was questioned during cross-examination. Relevant
portions of deposition of PW-1 dated 19.12.2023
and 24.01.2024 are extracted as under:-
Deposition dated 19.12.2023
"XXXX ಯಾುವ ದಿನಾಂಕದಂದು ಎಷ್ಟು ಹಣ ದುರುಪಯೆಾುೕಗ
ಮಾಡಲಾಗಿದೆ ಎಂದು ನಿರ್ಧಿಷ್ಟವಾಗಿ ನಿಮಗೆ ಹೇಳಲು ಆಗುತ್ತದಾ
23
C.C.No. 50549/2023
KABC0C0020752023
ಎಂದರೆ ಸಾಕ್ಷಿ ಇಲ್ಲಾ, ನನಗೆ ನೆನಪಿಲ್ಲಾ ಎನ್ನುತ್ತಾರೆ. ನಿಮ್ಮ ದೂರು
ಮತ್ತು ಲೀಗಲ್ ನೋಟೀಸಿನಲ್ಲಿ ದುರುಪಯೆಾೕಗವಾಗಿರುವ ಮೊತ್ತ
3,89,000-00 ಎಂದು ಮಾತ್ರ ನಮೂದು ಇದೆ ಎಂದರೆ ಸಾಕ್ಷಿ
ನಾವು ಪರಿಶೀಲಿಸಿದಾಗ ನಮಗೆ ಲೆಕ್ಕ ಸಿಕ್ಕಿದ್ದು, 3,89,000-00
ಆದರೆ ಅರೋಪಿಯೇ ತಾನು 5,00,000-00 ದಷ್ಟು
ದುರುಪಯಾೕಗ ಮಾಡಿಕೊಂಡಿರುವುದಾಗಿ ಒಪ್ಪಿ ಕೊಂಡಿದ್ದಾರೆ
ಎನ್ನುತ್ತಾರೆ."
Deposition dated 24.01.2024
" XXXXX ಆರೋಪಿ ದುರುಪಯೋಗ ಮಾಡಿರುವುದನ್ನು ಯಾರ
ಮುಂದೆ ಒಪ್ಪಿಕೊಂಡಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಆರೋಪಿಯ ಚಿಕ್ಕಪ್ಪ,
ಅವರ ತಾಯಿ ದಿಲ್ಬರಿ, ನಮ್ಮ ಸಂಸ್ಥೆಯ ಪ್ರೆಸಿಡೆಂಟ್ ಅಬ್ದುಲ್
ರೆಹಮಾನ್, ಅಲ್ಲಿನ ಮುಖ್ಯ ಲೆಕ್ಕಾಧಿಕಾರಿ ನರೇಶ್ಭಟ್ ಮತ್ತು
ಪ್ರಿನ್ಸಿಪಾಲ್ರವರ ಸಮಕ್ಷಮ ರೂ.5,00,000/-ವನ್ನು
ದುರುಪಯೇೂಗ ಪಡಿಸಿಕೊಂಡಿದ್ದೆ ಎಂದು ಒಪ್ಪಿಕೊಂಡಿದ್ದಾರೆ. ನಿಪಿ.9
ರ ಪತ್ರವನ್ನು ಯಾರ ಸಮಕ್ಷಮ ಯಾರು ಬರೆದರು ಎಂದರೆ ಸಾಕ್ಷಿ
ಆರೋಪಿಯೇ ನಾನು ಮೇಲೆ ಹೇಳಿದವರ ಸಮಕ್ಷಮದಲ್ಲಿ ತನ್ನ ಸ್ವಂತ
ಬರವಣಿಗೆಯಲ್ಲಿ ಬರೆದಿದ್ದಾರೆ. ಸಾಕ್ಷಿ ನಿಪಿ.9 ರಲ್ಲಿ
ರೂ.3,89,000/- ಎಂದು ಮೊತ್ತ ನಮೂದು ಆಗಿದೆ ಎಂದರೆ
ವಿವರಣೆಅಷ್ಟಕ್ಕೆಕೊಟ್ಟಿದ್ದಾರೆ ದುರೂಪಯೋಗಆಗಿದೆಎಂದು ಆದರೆ
ಒಪ್ಪಿ ಅವರು ಕೊಳ್ಳುತ್ತಾರೆ. ರೂ.5,00,000/- ಆರೋಪಿ ಮೊತ್ತ
ದುರುಪಯೋಗ ಮಾಡಿಕೊಂಡಿರುವ ಹಣದಲ್ಲಿ ಎಷ್ಟು ಹಣ ನಿಮಗೆ
ವಾಪಾಸ್ಸು ಕೊಟ್ಟಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ರೂ.50,000/- ಕೊಟ್ಟಿದ್ದಾರೆ
ಎನ್ನುತ್ತಾರೆ.XXXXX"
32. Apart from the documentary evidence at Ex.P9,
there is clear evidence to explain the circumstances under
which the accused has drawn the cheques for ₹5,00,000/-
in favour of the complainant. Accused has made part
24
C.C.No. 50549/2023
KABC0C0020752023
payment of ₹50,000/- on 07.09.2022. Even after
adjusting the said sum towards the misappropriated
money of ₹5,00,000/-, the accused is still liable to pay
₹4,50,000/- to the complainant. The cheque on hand by
the accused is drawn for ₹1,11,000/-, which was
dishonored.
33. In Dashrathbhai Trikambhai Patel's case
(supra) facts involved are that, cheque dated 17.03.2014
was issued by the accused for ₹20,00,000/-. It was
presented for encashment on 02.04.2014 and it was
dishonored due to insufficient of funds. Between
18.04.2012 and 30.12.2013, the accused therein paid a
sum of ₹4,09,315/- to the complainant. After the dishonor
of the cheque, the complainant issued a statutory notice
to the accused calling upon him to pay legally enforceable
debt of ₹20,00,000/-. The accused issued reply to the said
notice. Thereafter, the complaint was filed against the
accused on 12.05.2014 for the offence under Section 138
of NI Act. Trial court acquitted the accused on the ground
that the accused has paid a sum of ₹4,09,315/- to the
complainant between 18.04.2012 and 30.12.2013. In
appeal, Hon'ble High Court of Bombay upheld the
judgment of trial court acquitting the accused. In appeal
before the Hon'ble Supreme Court, the question for
consideration was whether Section 138 of the NI Act
would still be attracted when the drawer of the cheque
25
C.C.No. 50549/2023
KABC0C0020752023
makes a part payment towards the debt or liability after
the cheque is drawn but before the cheque is encashed,
for the dishonor of the cheque which represents the full
sum. Hon'ble Supreme Court after considering the
provisions contained in Sections 15 and 56 of NI Act and
discussing the previous judgments held as under:-
29. Under Section 56 read with Section 15
of the Act, an endorsement may be made
by recording the part-payment of the debt
in the cheque or in a note appended to the
cheque. When such an endorsement is
made, the instrument could still be used to
negotiate the balance amount. If the
endorsed cheque when presented for
encashment of the balance amount is
dishonoured, then the drawee can take
recourse to the provisions of Section 138.
Thus, when a part- payment of the debt is
made after the cheque was drawn but
before the cheque is encashed, such
payment must be endorsed on the cheque
under Section 56 of the Act. The cheque
cannot be presented for encashment
without recording the part payment. If the
unendorsed cheque is dishonoured on
presentation, the offence under Section 138
would not be attracted since the cheque
does not represent a legally enforceable
debt at the time of encashment.
30. In view of the discussion above, we
summarise our findings below:
(i) For the commission of an offence under
Section 138, the cheque that is
26
C.C.No. 50549/2023
KABC0C0020752023
dishonoured must represent a legally
enforceable debt on the date of maturity or
presentation;
(ii) If the drawer of the cheque pays a part
or whole of the sum between the period
when the cheque is drawn and when it is
encashed upon maturity, then the legally
enforceable debt on the date of maturity
would not be the sum represented on the
cheque;
(iii) When a part or whole of the sum
represented on the cheque is paid by the
drawer of the cheque, it must be endorsed
on the cheque as prescribed in Section 56
of the Act. The cheque endorsed with the
payment made may be used to negotiate
the balance, if any. If the cheque that is
endorsed is dishonoured when it is sought
to be encashed upon maturity, then the
offence under Section 138 will stand
attracted;
(iv) The first respondent has made part-
payments after the debt was incurred and
before the cheque was encashed upon
maturity. The sum of rupees twenty lakhs
represented on the cheque was not the
'legally enforceable debt' on the date of
maturity. Thus, the first respondent cannot
be deemed to have committed an offence
under Section 138 of the Act when the
cheque was dishonoured for insufficient
funds; and
(v) The notice demanding the payment of
the 'said amount of money' has been
interpreted by judgments of this Court to
27
C.C.No. 50549/2023
KABC0C0020752023
mean the cheque amount. The conditions
stipulated in the provisos to Section 138
need to be fulfilled in addition to the
ingredients in the substantive part of
Section 138. Since in this case, the first
respondent has not committed an offence
under Section 138, the validity of the form
of the notice need not be decided."
34. In the present case, the subject cheque is
dated 15.08.2022 for ₹1,11,000/- was issued by the
accused with letter dated 30.07.2022 (Ex.P9) under which
the liability admitted by the accused was ₹5,00,000/-. In
other words, it is a post-dated cheque. Out of the liability
admitted under Ex.P9, the accused has made part
payment of ₹50,000/- on 07.09.2022. The subject cheque
was presented for encashment twice on 06.09.2022 and
05.11.2022. On both occasions, it was dishonored.
Thereafter, demand notice dated 06.12.2022, was issued
to the accused calling upon him pay the dishonored
cheque amount of ₹1,11,000/-. Accused has neither
issued reply nor complied the demand. Therefore, this
complaint is filed. It is relevant to note that amount
involved in the cheque is lesser than the liability admitted
under Ex.P9. Therefore, notwithstanding the payment of
₹50,000/- by the accused before the presentation of the
cheque for second time does not in any way affect the
case, as the said part payment of ₹50,000/- does not fully
wipe off the entire liability of ₹5,00,000/-. Therefore, facts
28
C.C.No. 50549/2023
KABC0C0020752023
involved in this case and the one involved in
Dashrathbhai Trikambhai Patel's case (supra) are
altogether different and as such, it is factually
distinguishable.
35. Section 138 of the NI Act provides that a
drawer of a cheque is deemed to have committed the
offence if the following ingredients are fulfilled:
(i) A cheque drawn for the payment of any
amount of money to another person;
(ii) The cheque is drawn for the discharge of
the "whole or part" of any debt or other
liability. "Debt or other liability" means legally
enforceable debt or other liability; and
(iii) The cheque is returned by the bank
unpaid because of insufficient funds.
However, unless the stipulations in the proviso are
fulfilled the offence is not deemed to be committed. The
conditions in the proviso are as follows:
(i) The cheque must be presented in the bank
within six months from the date on which it
was drawn or within the period of its validity;
(ii) The holder of the cheque must make a
demand for the payment of the "said amount
of money" by giving a notice in writing to the
drawer of the cheque within thirty days from
the receipt of the notice from the bank that
the cheque was returned dishonoured; and
29
C.C.No. 50549/2023
KABC0C0020752023
(iii) The holder of the cheque fails to make the
payment of the "said amount of money" within
fifteen days from the receipt of the notice.
36. It is also apt to discuss that a negotiable
instrument including a cheque carries following
presumptions in terms of Section 118(a) and Section 139
of the N.I.Act.
(i) Section 118 of the N.I.Act provides;
Presumptions as to negotiable
instruments; Until the contrary is
proved, the following presumptions
shall be made;
(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:"
(ii) Section 139 of the N.I.Act provides
as follows:
'Presumption in favour of holder 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".
30
C.C.No. 50549/2023
KABC0C0020752023
37. Thus, the combined effect of Section 118(a)
and Section 139 of N.I.Act raises a presumption in favour
of the holder of the cheque that he has received the same
for discharge, in whole or in part of any debt or other
liability.
38. For appreciating legal position, it is worth to
refer to the judgment of the Hon'ble Supreme Court in the
case of Hiten P.Dalal V.Bratindranath Banerjee: (2001)
6 SCC 16, wherein it was held that:
"22. Because both Sections 138 and
139 require that the Court "shall
presume" the liability of the drawer of
the cheques for the amounts for which
the cheques are drawn, as noted in
State of Madras vs.A.Vaidyanatha Iyer
AIR 1958 SC 61, it is obligatory on the
Court to raise this presumption in every
case where the factual basis for the
raising of the presumption had been
established. "It introduces an exception
to the general rule as to the burden of
proof in criminal cases and shifts the
onus on to the accused" (ibid). Such a
presumption is a presumption of law,
as distinguished from a presumption of
fact which describes provisions by
which the court 'may presume" a
certain state of affairs. Presumptions
are rules of evidence and do not conflict
with the presumption of innocence,
because by the latter all that is meant
is that the prosecution is obliged to
prove the case against the accused
beyond reasonable doubt. The
31
C.C.No. 50549/2023
KABC0C0020752023
obligation on the prosecution may be
discharged with the help of
presumptions of law or fact unless the
accused adduces evidence showing the
reasonable possibility of the
nonexistence of the presumed fact."
39. Similar view has been taken by the Hon'ble
Supreme Court in K.N.Beena vs. Munyappan and Ors.,
AIR 2001 SC 289.
40. Hon'ble Supreme Court in Kalamani Tex and
Anr. V/s Balasubramanian, 2021 SCC Online SC 75,
held that:
"14. Adverting to the case in hand, we
find on a plain reading of its judgment
that the trial Court completely
overlooked the provisions and failed to
appreciate the statutory presumption
drawn under Section 118 and Section
139 of NIA. The Statute mandates that
once the signature (s) of an accused on
the cheque/negotiable instrument are
established, then these 'reverse onus'
clauses become operative. In such a
situation, the obligation shifts upon the
accused to discharge the presumption
imposed upon him."
41. From the ratio in the judgments, it is clear that
for the offence under Section 138 of the Act, the
presumptions under Section 118 (a) and Section 139 of
N.I.Act have to be compulsory raised as soon as execution
of cheque by the accused is admitted or proved by the
32
C.C.No. 50549/2023
KABC0C0020752023
complainant and thereafter, burden shifts on the accused
to prove otherwise.
42. It is pertinent to refer to the judgment of the
Hon'ble Apex Court in M/s Kumar Exports Vs. Sharma
Carpets, (2009) 2 SCC 513, wherein it was held:-
"20. The accused in a trial under
Section 138 of the Act has two options.
He can either show that consideration
and debt did not exist or that under
the particular circumstances of the
case the non existence of
consideration and debt is so probable
that a prudent man ought to suppose
that no consideration and debt
existed. To rebut the statutory
presumptions an accused is not
expected to prove his defence beyond
reasonable doubt as is expected of the
complainant in a criminal trial. The
accused may adduce direct evidence
to prove that the note in question was
not supported by consideration and
that there was no debt or liability to be
discharged by him. However, the
Court need not insist in every case
that the accused should disprove the
nonexistence of consideration and
debt by leading direct evidence
because the existence of negative
evidence is neither possible nor
contemplated. At the same time, it is
clear that bare denial of the passing of
the consideration and existence of
debt, apparently would not serve the
purpose of the accused. Something
33
C.C.No. 50549/2023
KABC0C0020752023
which is probable has to be brought on
record for getting the burden of proof
shifted to the complainant. To disprove
the presumptions, the accused should
bring on record such facts and
circumstances, upon consideration of
which, the Court may either believe
that the consideration and debt did
not exist or their nonexistence was so
probable that a prudent man would
under the circumstances of the case,
act upon the plea that they did not
exist. Apart from adducing direct
evidence to prove that the note in
question was not supported by
consideration or that he had not
incurred any debt or liability, the
accused may also rely upon
circumstantial evidence and if the
circumstances so relied upon are
compelling, the burden may likewise
shift again on the complainant. The
accused may also rely upon
presumptions of fact, for instance,
those mentioned in Section 114 of the
Evidence Act to rebut the
presumptions arising under Sections
118 and 139 of the Act."
43. Further, the above said principles have been
recently crystallized by Hon'ble Supreme Court in the case
of Basalingappa vs Mudibasappa, (2019) 5 SCC 418,
where it s held that:-
"25. We having noticed the ratio laid
down by this Court in above cases on
Sections 118(a) and 139, we now
34
C.C.No. 50549/2023
KABC0C0020752023
summarise the principles enumerated
by this Court in following manner:
(i) Once the execution of cheque is
admitted Section 139 of the Act
mandates a presumption that the
cheque was for the discharge of any
debt or other liability.
(ii) The presumption under Section 139
is a rebuttable presumption and the
onus is on the accused to raise the
probable defence. The standard of
proof for rebutting the presumption is
that of preponderance of probablities.
(iii) To rebut the presumption, it is open
for the accused to rely on evidence led
by him or accused can also rely on the
materials submitted by the
complainant in order to raise a
probable defence. Inference of
preponderance of probabilities can be
drawn not only from the materials
brought on record by the parties but
also by reference to the circumstances
upon which they rely.
(iv) That it is not necessary for the
accused to come in the witness box in
support of his defence, Section 139
imposed an evidentiary burden and not
a persuasive burden.
(v) It is not necessary for the accused to
come in the witness box to support his
defence."
35
C.C.No. 50549/2023
KABC0C0020752023
44. In this case, execution of cheque is admitted
by the accused. Therefore, presumption mandated under
Section 139 of the Act will gets attracted. Indisputably,
the cheque was presented for encashment well within its
validity and that it was returned by the bank unpaid
because of insufficient funds. After the receipt of the
intimation of dishonour from the bank, the complainant
has issued a statutory demand notice within the period
stipulated under proviso (b) to Section 138 and the said
notice served on the accused. Accused has not made
payment of amount covered under the dishonored cheque.
Therefore, offence under Section 138 of N.I.Act is deemed
to have been committed. The accused has failed to
probablize his defence(s). He has also failed to rebut the
presumptions under Section 118 (a) and Section 139 of
N.I.Act. Therefore, this court holds that the complainant
has proved that the accused has committed the offence
punishable under Section 138 of N.I.Act. Accordingly, I
answer Point No.1 in the Affirmative.
45. Point No.2:-Punishment prescribed for the
offence under Section 138 of Negotiable Instruments Act
is imprisonment for a period which may extend to two
years or with fine which may extend to twice the amount
of the cheque or with both. Considering the facts and
circumstances of this case, year of the transaction and the
rate of interest stipulated under Section 80 of NI Act, this
36
C.C.No. 50549/2023
KABC0C0020752023
court is of the considered view that it is just and desirable
to impose fine of ₹1,70,000/- and out of the said amount,
it is just and proper to award a sum of ₹1,65,000/- as
compensation to the complainant as provided under
Section 357(1) (b) of Cr.P.C and the remaining sum of
₹5,000/- shall go to the State. In view of the findings
recorded above, I proceed to pass the following:
ORDER
Accused is held guilty and acting under Section 255(2) of Cr.P.C., he is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to pay a fine of ₹1,70,000/-. In default to pay fine, he shall undergo simple imprisonment for a period of three months.
Out of the realized fine amount, a sum of ₹1,65,000/- is ordered to be paid to the complainant as compensation and the remaining sum of ₹5,000/- shall be remitted to State.
Bail bonds executed by accused shall stand cancelled.
Office to supply a free copy of this judgment to accused.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 19th day of March, 2025) ( SANTHOSH S.KUNDER ) XIV Addl. C.J.M., Bengaluru.
37C.C.No. 50549/2023 KABC0C0020752023 ANNEXURES List of witness examined for the Complainant:
PW.1 Mrs.Champa K.C List of documents marked for the Complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 Copy of legal notice 06.12.2022 Ex.P.4 to 6 Postal receipts-3 Ex.P.7 Postal acknowledgment card Ex.P.8 Extract of resolution passed by the trusties of the complainant dated 21.12.2022 Ex.P.9 Letter dated 30.07.2022 written by the accused to the complainant Ex.P.9(a) Signatures of the accused & (b) Ex.P.10 Bank statement of complainant Ex.P.11 Bank statement of Bearys College of Education Ex.P.12 Bank statement of Bearys First Grade College List of witness examined for the defence:
DW.1 Zeharan Khateeb List of documents marked for the defence: NIL XIV Addl.C.J.M., Bengaluru