Bangalore District Court
Mr Shabaz Khan vs Smt Harshitha T S on 20 January, 2025
KABC030307852023
IN THE COURT OF THE XIII ADDITIONAL CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
:: PRESENT ::
SMT. PAVITHRA R, B.A., L.L.B.,
XIII ACJM, Bengaluru City.
C.C.NO.17467/2023
Dated this the 20th day of January, 2025
COMPLAINANT: Mr. Shabaz Khan,
S/o Ayub Khan,
Aged about 28 years,
R/at #20, K Cross Road,
New Guruppanapalya,
BTM 1st Stage,
Bengaluru - 560 029.
[By Sri. Mohammed Moin Ulla, Advocate]
V/S
ACCUSED: Smt. Harshitha. T.S.
D/o Shankare Gowda,
Aged about 29 years,
R/at No.10, 2nd Main, 3rd Cross,
Poornapregna Layout,
BSK 2nd Stage,
Bengaluru - 560 062.
Also R/at:
No.217/18, 3rd Floor,
28th Cross, Rajajinagara,
Bengaluru - 560 010.
(By Sri. Chandan. S, Advocate)
-2- C.C.No.17467/2023
Offence complained of : U/s. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final order : Accused is Convicted.
Date of order : 20.01.2025
JUDGMENT
This is a private complaint filed by the complainant
under Sec.200 of Cr.P.C., against the accused for the
offence punishable under Sec.138 of Negotiable Instrument
Act, 1881 (in short referred to as N.I. Act).
The sum and substance of the case are hereunder:-
2. It is the case of the complainant that, the accused
and the complainant are school friends and are well
acquainted with each other since childhood. In the mid of
November 2022 the accused approached the complainant
and expressed financial exigency in her life and is in dire
need of funds tuning to a sum of Rs.4,60,000/- for her
personal purpose. She requested the complainant to lend a
sum of Rs.4,60,000/- as a hand loan but the complainant
-3- C.C.No.17467/2023
was not having such huge amount at that juncture, as such
he could not pay such huge amount but rather helped her
by paying Rs.33,000/- in cash out of his savings. The
accused insisted the complainant to avail personal loan
from his Bank and hand over the said loan amount to the
accused and that she will return the said loan amount
promptly within 2 months and also assured that she will
issue cheque for security purpose. By considering the
friendship and trusting the accused complainant availed
personal loan from Standard Chartered Bank in his name
for a sum of Rs.3,97,660/- and after availing the said loan
he extended the hand loan to the accused in the following
manner.
Sl. Transfer mode Date of Ref. No. Amount
No. transaction
1 Cash Mid of Hard cash Rs.33,000/-
November
2 Google Pay 30.11.2022 UPI/P2A/ Rs.1,00,000/-
23349614834/
HARSHITHA/
IDFCFIRS
3 Bank Transfer 30.11.2022 IMPS/P2A/ Rs.50,000/-
23342871663/
Harshi/
-4- C.C.No.17467/2023
IDFCBan/XOO
4 Bank Transfer 02.12.2022 IMPS/P2A/ Rs.2,47,000/-
233612147578/
Harshi/
IDFCBan/XOO
5 UPI Transfer Multiple Multiple UPI Rs.30,000/-
dates reference Nos.
Total Rs.4,60,000/-
3. The complainant approached the accused after
expiry of two months in the month of January requesting
her to return the amount, but the accused prolonged to
return the amount for one or the other pretext. Later when
the complainant alleged that he is facing difficulty in paying
the EMIs of loan, accused informed that she shall pay
pending EMIs and that will not include it in total sum of
Rs.4,60,000/- and accordingly, accused paid a total sum of
Rs.48,000/- towards EMIs and thus sought some more time
to repay the entire loan amount. When complainant
approached the accused again in the month of March, 2023,
accused issued a cheque bearing No.000006 dated
10.04.2023 for a sum of Rs.4,60,000/- drawn on IDFC
Bank, Residency Road Branch, Bengaluru and assured that
-5- C.C.No.17467/2023
she will maintain sufficient funds in the Bank. Believing
the said words of the accused, on 11.04.2023 the
complainant presented the said cheque for encashment
through his Banker Axis Bank and the same came to be
returned with a shara ‘Account Closed’. The complainant
approached the accused and informed about the dishonor of
cheque, but the accused again sought some more time to
repay the loan amount and assured that she will not
defraud him and also got executed loan agreement dated
18.04.2023 and promised to repay the same on or before
05.05.2023. Subsequent to entering into hand loan
agreement, on 23.04.2023 the complainant approached the
accused and requested her to issue another cheque towards
security to the hand loan since the earlier cheque was
dishonored, for which accused issued cheque bearing
No.000035 dated 30.04.2023 for a sum of Rs.4,60,000/-
drawn on IDFC First Bank, Residency Road Branch,
Bengaluru. The complainant presented the said cheque on
15.05.2023 through his Banker but the same came to be
-6- C.C.No.17467/2023
returned with an endorsement dated 16.05.2023 with a
shara “Funds Insufficient”. The complainant issued a legal
notice dated 23.05.2023 to the accused which was served
on her on 01.06.2023. After receiving the said notice she
personally met the complainant and sought for one last
chance to repay the entire loan amount and requested to
grant time till 13.06.2023. The complainant considering the
request and friendship granted time till 13.06.2023. But
even after expiry of 13.06.2023 the accused prolonged to
pay the hand loan. Hence, this complaint.
4. On filing of this complaint, this court recorded
the sworn statement of the complainant and took
cognizance of the offence and issued summons to the
accused. Accused appeared before the Court through his
counsel and was enlarged on bail and substance of
accusation was read over to her and she pleaded not guilty
having defense to make. Hence, the matter was posted for
recording of statement U/Sec.313 of Cr.P.C. Since there
-7- C.C.No.17467/2023
was incriminating evidence against the accused, the
statement as required under Sec.313 of Cr.P.C was recorded
and the matter was posted for defense evidence. In spite of
sufficient opportunity the accused has failed to cross
examine the PW.1 and lead defense evidence and remained
absent. Hence defense evidence was taken as NIL as per
order dated 19.12.2024.
5. Heard the counsel for complainant. Arguments of
accused taken as not addressed. Perused the averments
made in complaint, oral and documentary evidence of the
complainant and after hearing arguments, the points that
arises for determination are:-
1) Whether the complainant has proved
that he has advanced a sum of
Rs.4,60,000/- as hand loan to the
accused and Ex.P.1 cheque was issued
by the accused in discharge of the said
legally recoverable debt and the same
was dishonored. Even after issuance of
notice, the accused has failed to pay the
cheque amount and thereby she is guilty
of the offence punishable under Sec.138
of N.I. Act?
-8- C.C.No.17467/2023
2) What order?
6. Findings to the above points are as under:-
Point No.1 : In the Affirmative
Point No.2: As per final order for the
following:
REASONS
7. Point No.1:- According to the complaint
averments of the complainant, the complainant and accused
are known to each other from past several years as they are
school friends. On such acquaintance accused approached
the complainant and requested for a hand loan of
Rs.4,60,000/- and promised to return the said amount
within two months. Later the accused has made part
payment of Rs. 48,000/- and subsequently entered into
agreement on 18.04.2023 and issued Ex.P1 for discharging
her liability, but the said cheque was dishonored and the
accused did not repay the amount even after issuance of
legal notice.
-9- C.C.No.17467/2023
8. In order to prove the complainant’s case he got
examined as PW1 by filing an affidavit and got marked 13
documents at the time of his chief examination as follows…
(i) Ex.P.1 is the loan agreement dated
18.04.2023. Signature of the accused is marked
through complainant as Ex.P1(a) and signature of
complainant as Ex.P1(b).
(ii) Ex.P.2 and 3 are the Bank account
statements of Standard Chartered Bank and Axis
Bank.
(iii) Ex.P.4 is the cheque of IDFC First Bank
bearing No.000035 dated 30.04.2023 for sum of
Rs.4,60,000/- alleged to have been issued by the
accused. Signature of the accused is marked through
complainant as Ex.P4(a).
(iv) Ex.P5 is the Bank Endorsement dated
16.05.2023 issued by Axis Bank, Mico Layout
Branch, Bengaluru stating that ‘funds insufficient’.
(v) Ex.P6 is the legal notice dated 23.05.2023
issued by the complainant through his advocate to
the accused demanding the payment of cheque
amount.
(vi) Ex.P.7 & 8 are the postal receipts for having
sent the legal notice to accused.
(vii) Ex.P.9 is the postal acknowledgment.
(viii) Ex.P.10 is the notice kept in postal cover
and postal cover is marked as Ex.P.10(a).
– 10 – C.C.No.17467/2023
(ix) Ex.P.11 and 12 the reply notices.
(x) Ex.P.13 is the payment details of payments
made through Phonepe and Google Pay to the
accused.
9. In the chief-examination of P.W.1, he has
reiterated entire averments of the complaint and supported
his version. The accused has neither cross examined the
PW.1 nor taken any defense to disbelieve the complainant’s
case.
10. From the overall evaluation of oral and
documentary evidence of the complainant it is not in
dispute that the complainant and accused are well
acquainted to each other and Ex.P.4 belongs to the accused
and it was issued to the complainant subsequent to the loan
amount received by the accused and after execution of loan
agreement dated 18.04.2023. These points are sufficient to
raise presumption available under Sec.118 and 139 of N.I.
Act. That the accused has not taken any defense either
denying his signature or issuance of cheque.
– 11 – C.C.No.17467/2023
11. Since the cheque belongs to the accused’s
account and also for the reason that the same was
personally issued to the complainant by the accused, the
complainant is benefited to raise presumption under
Sec.118 and 139 of N.I. Act. Thus until and unless the
contrary is proved it is presumed that the cheque-Ex.P.4 is
issued for the purpose of legally recoverable debt or liability.
12. Now the burden shifts on the accused to rebut
the presumption under Sec.118 and 139 of N.I Act from the
defense points either by giving a standard proof or by
establishing the same under the principles of
preponderance of probabilities. As discussed above the
accused has failed to take any defense in this case either by
cross examining the PW.1 or by leading defense evidence.
13. It is settled position of law that after raising
presumption under Sec.118 and 139 of N.I Act, the burden
shifts on the accused to rebut the said presumption by
– 12 – C.C.No.17467/2023
establishing his defense under the principles of
preponderance of probabilities in the present case. There is
no cogent evidence by the accused, mere denying the
complainant’s case in a statement recorded under section
313 of Cr.P.C does not weakens the complainant’s case and
the same is insufficient to rebut the presumption. The said
aspect is discussed in detail in a decision rendered by
Hon’ble High court of Karnataka in “Sripad Vs. Ramadas M.
Shet, in Cri. Appl. No. 2689/2009 as hereunder:
“Mere a distorted version or mere taking
up the plea or the defence that he is not
liable to pay any amount or he discharged
the amount are not sufficient to put back the
burden on to the complainant .”
14. Thus, the above ratio is aptly applicable to the
facts of the case. The accused though admitted monetray
trasnaction with the complainant in her reply letter dated
06.07.2023 market at Ex.P11, she has denied complainant’s
case in her statement recorded under section 313 of Cr.P.C.
But the accused has failed to establish her defense points
by means of tendering related witnesses and documentary
– 13 – C.C.No.17467/2023
proof as discussed supra. Thus for all these reasons this
court finds that the accused in spite of borrowing loan from
the complainant issued the Ex.P4 cheque without having
sufficient funds intentionally and failed to repay the cheque
amount after service of notice since the said cheque was
dishonored. That the accused has utterly failed to establish
preponderance of probabilities in establishing his defence
and further failed to rebut the initial presumption under
section 118 and 139 of N.I. Act. Therefore, in the light of
above discussion, the Court answer point No.1 in the
Affirmative.
15. Point No.2:- The complainant himself has
admitted that the accused has made part payment of Rs.
48,000/-. Hence the accused is due a sum of Rs. 4,12,000/-
towards the complainant. Considering the date of
transaction, EMI paid by the complainant and default
nature of the accused is taken into consideration for
awarding compensation which exceeds the actual cheque
amount. In view of the reasons stated and discussed above
– 14 – C.C.No.17467/2023
the complainant has proved the guilt of the accused
punishable under Sec.138 of N.I. Act. It is necessary to note
that the said offence is of Civil wrong. Hence it is just and
necessary to award sentence of fine instead of sentence of
imprisonment. Considering all these aspects this court
proceed to pass the following:-
ORDER
Acting under Sec.255(2) of Cr.P.C.
accused is hereby convicted for the offence
under Sec.138 of N.I Act and sentenced to pay
a fine of Rs.5,80,000/- (Rupees Five Lakh
Eighty Thousand only), in default of payment
of fine amount he shall undergo simple
imprisonment for 6 months.
Further, acting under Sec.357(1)(b) of
Cr.P.C. it is ordered that Rs.5,70,400/-
(Rupees Five Lakh Seventy Thousand Four
Hundred only) shall be paid to the
complainant as a compensation, remaining
fine amount of Rs.9,600/- (Rupees Nine
Thousand Six Hundred only) to the State for
the expenses incurred in the prosecution.
– 15 – C.C.No.17467/2023
The bail bond of the accused stands
canceled after expiry of the appeal period.
(Dictated to the Stenographer directly on computer, revised,
corrected, signed and then pronounced in the open court on this the 20 th
day of January, 2025)(PAVITHRA R.)
XIII ACJM, BENGALURU CITY.
ANNEXURE
LIST OF WITNESSES EXAMINED FOR COMPLAINANT:
PW-1 Mr. Shabaz Khan
LIST OF WITNESSES EXAMINED FOR ACCUSED:
– NIL –
LIST OF DOCUMENTS MARKED FOR COMPLAINANT:
Ex.P1 : Loan agreement dated 18.04.2023
Ex.P1(a) : Signature of accused
Ex.P1(b) : Signature of complainant
Ex.P2 & 3 : Bank account statements of Standard
Chartered Bank and Axis Bank of
complainant
Ex.P4 : Original Cheque
Ex.P.4(a) : Signature of the accused
Ex.P.5 : Bank endorsement
- 16 - C.C.No.17467/2023
Ex.P.6 : Copy of Legal Notice
Ex.P.7 & 8 : Postal receipts
Ex.P9 : Postal acknowledgment
Ex.P10 : Notice kept in the postal cover
Ex.P10(a) : Unserved postal cover
Ex.P11 & 12: Reply notices
Ex.P13 : Payment details made to accused through
Google Pay, Phonepe
LIST OF DOCUMENTS MARKED FOR ACCUSED:
-NIL-
XIII ACJM, BENGALURU CITY.
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