Bangalore District Court
Poonawalla Housing Finance Ltd vs Md Khayrul Islam on 7 March, 2025
KABC020431312023
Digitally signed
by
RAGHAVENDRA
RAGHAVENDRA SHETTIGAR
SHETTIGAR
Date:
2025.03.10
11:38:19 +0530
IN THE COURT OF XIV ADDL. SMALL CAUSES JUDGE AND
ADDL.CHIEF JUDICIAL MAGISTRATE
(SCCH-10) AT BENGALURU
Dated This The 7th day of March 2025
PRESENT:
SHRI. RAGHAVENDRA SHETTIGAR,
B.A., LL.B.,
XIV ADDL. SMALL CAUSES JUDGE &
ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU.
C.C No.14977/2023
COMPLAINANT : M/s. Poonawalla Housing Finance
Ltd.,
Having its Branch office at :
Sirigowri Complex,
1st Floor, No.1245, 8th Cross,
Behind Reghavendra Swamy Temple,
Kengeri Satellite Town,
Bengaluru - 560 060.
Represented by its Officer,
Ms. Ravindra Gowd. P.
(By Sri. A.R.K.V, Advocate)
// Versus //
2 C.C.No.14977/2023
SCCH-10
ACCUSED : Md. Khayrul Islam,
Aged about 39 years,
Kabilpur, Swarupnagar,
Kabitpur Aturia,
Swarlipnagar North 25
Parcanas,
West Bengala - 743427.
(By Sri. M.H.H, Advocate)
:: J U D G M E N T :
:
This complaint is instituted by the complainant against
the accused under Section 200 of Cr.P.C. for the offence
punishable under Section 138 of Negotiable Instruments Act-
1881.
2. The Case of the complainant as per complaint
averments is as follows:
The complainant is a company registered under the
provisions of the companies Act 1956 and during the course of
its financial services had introduced housing loan. Accused has
approached the complainant and has availed the housing loan
and agreed to repay the loan amount in equated monthly
installments. Towards part payment, he has issued a cheque
3 C.C.No.14977/2023
SCCH-10for a sum of Rs.10,00,000/-. The said cheque when presented
was returned dishonoured for ‘Funds insufficient’. Then, the
complainant got issued a legal notice to the accused calling
upon him to pay the amount covered under the cheque. Despite
receipt of notice, the accused has not paid the cheque amount.
Thus, the accused has committed the offence punishable
U/Sec.138 of Negotiable Instruments Act. Hence, this
complaint.
3. After filing of the complaint, the cognizance of the offence
was taken and registered criminal case against the accused
and the summons was issued to him. The accused has
appeared before the Court through his counsel and was
enlarged on bail. Subsequently, plea was recorded and the
substance of the accusation was read over and explained to
him. He pleaded not guilty and claimed to be tried.
4. In order to substantiate its case, the complainant
company examined its Authorized representatives as PW-1
4 C.C.No.14977/2023
SCCH-10
and PW-2 and the documents produced by complainant were
marked as Ex.P.1 to Ex.P.10.
5. Further, the Statement of the Accused U/Sec.313 of
Cr.P.C was recorded. The accused has denied the incriminating
circumstances appeared against him in the evidence. The
accused has not lead any evidence on his behalf.
6. Heard the arguments. Perused the materials available on
record.
7. Now the points that arise for my determination are as
follows:-
1) Whether the complainant proved that the
accused in order to discharge the liability has
issued cheque for a sum of Rs.10,00,000/- and
when the same was presented for encashment,
was returned dishonoured for the reason
‘Funds insufficient’ and despite receipt of
demand notice, the accused has not repaid the
amount and thereby he has committed an
5 C.C.No.14977/2023
SCCH-10offence punishable u/s 138 of Negotiable
Instruments Act?
2) What order?
8. On the basis of the materials available on record, my
finding to the above points are as follows:
POINT NO.1: In the Affirmative.
POINT NO.2: As per the final order,
for the following:
REASONS
9. POINT NO.1:
According to the complainant, the accused approached
the complainant company for housing loan and the accused, in
discharge of part liability, has issued the cheque for a sum of
Rs.10,00,000/- and when the said cheque was presented, same
was dishonoured and the complainant got issued a legal notice
to the accused calling upon him to pay the cheque amount and
despite service of notice, the accused has not paid the cheque
amount.
6 C.C.No.14977/2023
SCCH-10
10. To substantiate its case, the Authorized representatives
of the complainant company were examined as PW-1 and PW-2
and got marked Ex.P.1 to Ex.P.10. The PW-1 and PW-2 have
reiterated the contents of the complaint in their affidavit about
lending of housing loan to the accused, issuance of cheque by
the accused towards discharge of his liability and its dishonour
and issuance of the legal notice to the accused calling upon
him to pay the amount covered under cheque and his failure to
comply the same.
11. Let me scrutinize the documents relied by the
complainant in order to examine the compliance of statutory
requirements as envisaged under Section 138 of N.I. Act,
Ex.P.1 is the Certificate of Incorporation, Ex.P.2 is the Cheque,
the Ex.P.2(a) is the signature of the accused. Ex.P.3 is the
bank endorsement. Ex.P.4 is the legal notice, Ex.P.5 is Postal
receipt, Ex.P.6 is Postal Track consignment, Ex.P.7 is the
Certificate U/Sec.65B of Evidence Act, Ex.P.8 is the Loan
7 C.C.No.14977/2023
SCCH-10
Account statement, Ex.P.9 is the Loan application and Ex.P.10
is the Authorization letter. On careful perusal of the
documents relied by the complainant goes to show that,
statutory requirements of Section 138 of N.I. Act is complied
with and this complaint is filed within time. Further, the
complainant has discharged its initial burden by relying oral
and documentary evidence. Thus, the complainant is entitled
to rely on the statutory presumptions enshrined under Section
118 read with Section 139 of N.I. Act.
12. As far as proof of existence of legally enforceable debt is
concerned, it is profitable to refer the decision of full bench of
the Hon’ble Apex Court reported in Rangappa Vs. Mohan
reported in AIR 2010 SC 1898, wherein their lordships
pleased to observe that,
“In the light of these extracts, we are in
agreement with the respondent-claimant that
the presumption mandated by Section 139 of the
Act does indeed include the existence of the
legally enforceable debt or liability”.
8 C.C.No.14977/2023
SCCH-10
13. In another decision reported in, (2015) 8 SCC 378 in the
case of Vasanthakumar Vs. Vijayakumari, it is held that
once the accused has admitted the issuance of Cheque as well
as signature on it, the presumption under Section 139 would be
attracted. In view of the law laid down by the Hon’ble Apex
Court, the presumption enshrined under Section 139 of the
N.I. Act is extendable to the existence of legally enforceable
debt. The Hon’ble Apex Court has clearly laid down the ratio
that, when the ingredients of Section 138 of NI Act are
complied with, presumption shall be drawn in favour of the
complainant. The burden is upon the accused to rebut the
statutory presumptions.
14. From the above proposition of law it is now trite that
presumptions available under Section 139 and 118 of NI Act
are rebuttable in nature. The accused can take probable
defence in the scale of preponderance of probability to rebut
the presumption available to the complainant. In the instant
9 C.C.No.14977/2023
SCCH-10
case, on 05.02.2025 the learned counsel for the accused has
cross-examined PW-2 in part and later the accused and the
counsel for the accused have not appeared before the Court and
hence, further cross-examination of PW-2 was taken as nil.
Even though PW-2 was cross-examined, nothing was elicited
from the mouth of the witness to disprove of the case of the
complainant. During the cross-examination, the accused has
not denied the availment of loan, issuance of cheque and his
signature in Ex.P.2 cheque. Further, on perusal of Ex.P.8 Loan
account statement, it appears that, the complainant has
sanctioned loan of Rs.10,00,000/- to the accused and the total
outstanding balance was Rs.13,71,150/-. According to the
complainant the accused has issued the disputed cheque
towards part payment of said loan amount. As stated supra, in
the instant case, in order to rebut the presumption, the
accused has not lead any evidence on his behalf nor cross-
examined PW-2 completely. It goes without saying that,
10 C.C.No.14977/2023
SCCH-10
accused has not disputed the cheque in question and signature
found therein. When the drawer has admitted the issuance of
the cheque as well as the signature present therein, the
presumptions as envisaged under Section 118 read with
Section 139 of NI Act would operate in favour of the
complainant.
15. The evidence placed by the complainant is remained
unchallenged and there is no reason to disbelieve the version of
the complainant. The accused has completely failed to rebut
the presumption. Hence, the presumption available in favour
of the complainant under Section 139 and 118 of NI Act
remained unrebutted. Accordingly, the complainant has proved
that, for discharge of liability accused has issued Ex.P.2 cheque
and he has intentionally not maintained sufficient amount in
his account to honour the said cheque. Hence, this Point No.1
under consideration is answered in the Affirmative.
11 C.C.No.14977/2023
SCCH-10
16. POINT NO.2:
In view of the reasons stated and discussed above, the
complainant has proved that the accused has committed an
offence punishable under Section 138 of N.I. Act.
17. Hon’ble Supreme Court of India in a decision reported in
(2015) 17 SCC 368, in a case of H.Pukhraj Vs.
D.Parasmal, observed that, having regard to the length of
trial and date of issuance of the cheque, it is necessary to
award reasonable interest on the cheque amount along with
cost of litigation. Therefore, keeping in mind the time when the
transaction has taken place and primary object of the
provision, this court is of the opinion that, rather than
imposing punitive sentence, if sentence of fine is imposed with
a direction to compensate the complainant for his monitory
loss, by awarding compensation U/Sec.357 of Cr.P.C, would
12 C.C.No.14977/2023
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meet the ends of justice. By keeping in mind Sec.143(1), Sec.80
and 117 of the Negotiable Instruments Act, the compensation
has to be awarded.
18. As per the records, the cheque was dated 07.08.2023 and
amount covered under said cheque is Rs.10,00,000/-. It appears
that, the complainant has spent considerable time and money
to prosecute the case. By considering all these aspects, this
Court is of the opinion that, it is just and proper to impose fine
amount of Rs.10,50,000/-, which includes interest and cost of
litigation. Accordingly, this Court proceeds to pass the
following;
ORDER
Acting under Sec. 255(2) of Cr.P.C., the accused is
found guilty and he is convicted for the offence
punishable under Section 138 of Negotiable
Instruments Act and he is sentenced to pay a fine of
Rs.10,50,000/- (Rupees Ten Lakh Fifty Thousand only).
13 C.C.No.14977/2023
SCCH-10
In default to pay the fine, accused shall undergo
simple imprisonment for a period of three months.
Further, entire fine amount on recovery shall be
paid to the complainant as compensation.
Supply free copy of this judgment to the accused
immediately.
The bail bond stands canceled.
(Dictated to the Stenographer directly on computer, typed by her and
corrected by me and then pronounced in the open Court on 7th day of March
2025).
(RAGHAVENDRA SHETTIGAR)
XIV ADDL. S.C.J., A.C.J.M &
MEMBER-MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE
COMPLAINANT:-
P.W.1 : Mr. Ravindra Goud. P P.W.2 : Mr. Raghavendra. A
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
COMPLAINANT:-
Ex.P.1 : Certificate of Incorporation
Ex.P.2 : Cheque
Ex.P.2(a) : Signature of the accused
14 C.C.No.14977/2023
SCCH-10Ex.P.3 : Bank endorsement
Ex.P.4 : Legal Notice
Ex.P.5 : Postal receipt
Ex.P.6 : Postal track consignment
Ex.P.7 : Certificate U/Sec.65B of Evidence Act
Ex.P.8 : Loan account statement
Ex.P.9 : Loan application
Ex.P.10 : Authorization letterLIST OF WITNESSES EXAMINED ON BEHALF OF THE
ACCUSED:-
-None-
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
ACCUSED:-
-NIL-
(RAGHAVENDRA SHETTIGAR)
XIV ADDL. S.C.J., A.C.J.M &
MEMBER-MACT, BENGALURU.