Bashir Ahmad Teli @APPELLANT@Hash Mst. Haleema

By the medium of this petition, the petitioner has sought the indulgence of this Court in setting aside the judgment dated 23.07.2015, passed by the learned Judicial Magistrate, Pampore, in complaint titled Haleema v. Bashir Ahmad Teli & Another and the judgment dated 21.12.2015, passed by the learned Additional Sessions Judge, Pulwama in file No. 01/Cr. Appeal.

Before appreciating and looking into the merits of the petition, it will be profitable to give a brief account of the facts and the grounds in which the petition was filed. It has been pleaded in the petition that the respondent herein has filed a criminal complaint titled Haleema v. Bashir Ahmad Teeli, for the commission of offences punishable under Section 138 of the Negotiable Instruments Act, against the petitioner, before the Court of learned Judicial Magistrate, 1st Class, Pampore, regarding the dishonor of cheque. The learned Judicial Magistrate, in terms of judgment dated 23.07.2015, has imposed fine of Rs. 5000/- upon the appellant and the appellant was also directed to pay compensation equivalent to cheque amount along with 10.25% interest per annum till realization of amount. The petitioner preferred an appeal before the Additional Sessions Judge, Pulwama, but the same was dismissed in absence of petitioner and his counsel. It is further submitted that the 1st appellate Court had committed an error which is apparent from the bare perusal of order impugned as the consideration of the appeal on merits at the stage of final hearing shall not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of record of the case. It is also contended that from the perusal of the record reveals that the 1st appellate Court had virtually failed to return finding on the averment put forth by the appellant in the memo of appeal and all the assertions raised therein remained unaddressed as appellate Court failed to return finding on the issue raised. The trial Court/1st appellate Court had pronounced the judgment on the basis of statement of accused recorded in terms of 242 and 342 Cr. PC and had in a way shifted the burden of proof as envisaged under law of Evidence which is contrary to law. It is further submitted that the alleged dishonoured cheque was not available in the record of the case and its existence was not proved during the trial besides the respondent failed to prove the procurement of memo by presentation of cheque furthermore the receipt and issuance of notice as required under law was not proved by cogent evidence as the respondent deposed that she had never instructed any one to serve notice upon accused and the same is evident from the perusal of her statement. The petitioner had preferred the instant appeal against the judgment and order of dismissal, the same deserves to the set aside.

Heard learned counsel for the parties and perused the material on record

On perusal of the record, it is revealed that the respondent herein this petition has filed a complaint titled Haleema v. Bashir Ahmad Teli & Another, before the Court of learned Judicial Magistrate, 1st Class Pampore, under Section 138 Negotiable Instruments Act, , regarding the dishonor of the cheque. The learned Magistrate held the accused guilty and is convicted him for the commission of offences under Section 138 NI Act and being a first offender a lenient view has been taken and the convict not sentenced to any imprisonment, but only a fine of Rs. 5000/- has been imposed being the highest quantum of fine to be imposed by the Judicial Magistrate 1st Class and compensation to the tune of total cheque amount which is Rs. 430000/- plus interest @ 10.25% per annum which has been stated as standard rate of interest from the date of instrument till realization of the amount that is till the period of sentence has been suspended or till the period of appeal is over whichever is later, unless the accused No. 1 prefers appeal or unless the accused succeeds in the same or unless any orders are passed by any appellate or revisional Court qua the same.

The petitioner filed an appeal against the said order before the Court of the learned Additional Sessions Judge, Pulwama, and the learned Sessions Judge also toed the line of the learned Magistrate and dismissed the appeal by a speaking and reasoned order. For the convenience and ready reference, the relevant excerpts of the said order that have a bearing on the determination of this petition are enumerated herein below:

"Learned Court has appreciated the evidence of the complainant in right perspective and statement of the complainant reflected in the memorandum of appeal is in part only whereas statement has to be read as a whole and ongoing through the examination in chief of the complainant/respondent establishes the guilt of the accused/appellant as she is her statement has given complete chronology of the events which has led to the issuance of cheques by the appellant/accused to complainant/respondent and has bit by bit supported the averments of the complainant/respondent. Further in her cross examination also she has deposed that cheques were given to her by the appellant himself. Similarly statement of brother of complainant has also been reflected in the memorandum of appeal in part only. His statement also needs to be gone into as a whole. CW Gulzar Ahmad Hyder who happens to be brother of the complainant has narrated the events with specific dates and has specifically supported the complainant's case. He has specifically mentioned that cheques worth Rs. 2.50 lacs and R. 1.80 lacs were issued by the appellant/accused for 01.07.2008 and 26.07.2008 respectively. Memo was obtained on 16.12.2008. So, cheques were presented within time frame and after memo notice was issued on 13.01.2009 which were received by the accused person on 13.01.2009 as reflected in the AD. Though PW Mushtaq Ahmad Dar Manager J&K Bank Ladhoo had stated that at the time of presentation of cheques the concerned account number of the accused had Rs. 3,11000/- as balance but he was again examined by the Court along with records, his statement was found to be wrong and it was found that the said account No. had only Rs. 15500/- as balance. As such the earlier statement of branch manager stands negated by the records of the bank. This fact has been rightly mentioned by the learned Trial Court on top of page No. 4. Lastly learned Trial Court so far as question of presumption, onus and burden of proof is concerned the has elaborately dealt with the provisions of the Negotiable Instruments Act and has rightly appreciated the provisions contained in sec. 7, 8, 9, 43, 118, 138, 139 of the Negotiable Instruments Act on the basis of evidence on record. Further it was not the stand of accused/appellant by recording his statement u/s 242 Cr. PC and at the time of recording his statement u/s 342 Cr. PC that there was no case file pending before the learned Trial Court and even the defense witnesses produced by him has rendered confusing and contradictory versions and defence evidence has remained shaky which has not only created confidence in the Trial Court in the complainant's case but has also proved the case of the complainant against the accused/appellant beyond reasonable shadow of doubt. Lastly the learned Trial Court has correctly applied the judgment of Hon'ble Apex Court in 2006 AIR (Cr) 718 case titled D. Vinohad Shib Appa V/s Namda Belliappa Cr. Appeal No. 1255/2010 (2004 in Criminal appeal No. 1256-1261 of 2004). The judgment of learned Trial Court viewed, from any corner, stands the test of law and facts and is based on sound principles of statutory compliance and criminal jurisprudence and does not warrant any interference. Appeal is dismissed. Judgment passed by learned Trial Court is upheld.".

The learned counsel for the petitioner while making reference of grounds taken in petition submitted that the learned trial court as well as the learned appellate court have proceeded in the matter on fallacious grounds and thus have wrongly held the petitioner herein guilty of commission of offences under Section under Section 138 NI Act. He has also referred the statements of witnesses recorded by the learned trial Court, which according to him are not sufficient to deduce the mens rea for the commission of offences or otherwise any transaction having taken place between the petitioner and respondent, which could be viewed as a legally, enforceable debt in terms of the provisions of the Act. The burden of proof had been on the part of respondent and could not be shifted to the petitioner as has been done by the learned trial Court.

On the other hand, the learned counsel for the respondent submitted that there is concurrent finding of the two Courts on question of fact and this Court in exercise of powers under Section 435 Cr. PC, could not be justified to dislodge the said findings. The material evidences has been properly appreciated and so the petition merits dismissal.

Considered the rival arguments and perused the record.

It may be proper herein to note that on appearance before the learned Magistrate, the examination of the petitioner herein has been made in terms of Section 242 Cr. PC, on 01.11.2012, in which he has stated that he has not issued a cheque. It is further stated by him that the complainant is moneylender by profession and he too had dealings with her. Through intervention of police Pampore, the matter was settled and nothing remains outstanding against him. After the conclusion of the evidence, he has been examined under Section 342 Cr. PC, wherein he has stated that he has not issued any cheque to the complainant neither he has any transaction with the complainant. The Photostat copies of the cheques and affidavit is forged according to him. The cheques, the Photostat of which have been appended with the case have been issued in his favour by accused No. 2 on the count that a person indebted to him wanted to pay him to whom he has given account number, who did not pay and transfer the amount in his account then he got the memo from the bank and threw the cheques and the memo in the dust bin of J&K Bank, Branch Ladhoo after tearing the same. The complainant has no right over the cheques but she has procured just to extort money from him. The learned Magistrate has also noted the deposition of petitioner as his own witness. The extract of said deposition as referred by the learned trial Magistrate is :-

"He has received cheques from accused No. 2 as advance on account of sale of land falling under survey No. 2442. Thereafter, a dispute across over the above referred property and both the cheques issued by accused No. 2 in favour of accused No. 1, were torn into pieces. The accused further stated that he used to obtain loan from one Nazir Ahmad and one day he was summoned by SHO Police Station Pampore, as he was indebted to Nazir Ahmad and Nazir Ahmad was indebted to complainant. The accused settled the accounts and an amount of Rs. 50,000/- were paid to complainant, but the accused was compelled to pay Rs. 80,000/- on account of accrued interest upon principal amount. On cross-examination stated that the notice received from advocate was taken to SHO as to why complaint has sent her a notice neither he had any transaction with complaint nor he has signed on any affidavit. He has not purchased the land falling under survey No. 2443, the contents of affidavit were read over to him, who denied the same. Accused No. 2, is his nephew, the cheque which was issued before SHO for Rs. 50,000/- was of account No. 420 belonging to his nephew."

Thereafter the learned Magistrate has observed as:

"The three stands of accused are inconsistent with each other and either shatter his stand that the cheque of Rs. 50,000/- which was paid through SHO to the brother of complainant was of account No. 420 belonging to his nephew or the stand of defense of Rs. 100,000/- of Punjab National Bank as also the receipt of notice which was denied by accused No. 1, but admitted in his statement as his own witness".

Thereafter, the learned Magistrate has opined:-

"Since from the evidence lead by rival and the skimmed evidence on weighing evidence of the rival sides, the cheques has been drawn by accused No. 2, in favour accused No. 1, without consideration or for a consideration which failed. Thus the accused No. 1, is holder, who for consideration transferred cheques to complainant without endorsement and hence by virtue of Section 43 of N.I. Act and 53 of N. I. Act, the complainant becomes holder and accused No. 1, who was holder steps into the shoes of "drawer" which was a missing link to prove all the ingredients of Section 138 N. I. Act and fix liability on the accused No. 1 under it. Though Section 7 does not include such a person as "drawer" but on the basis of deduction and conjoint reading of Section 138 with Section 7, Section 43 and Section 53 of N. I. Act and being fortified by the law laid down by the apex Court."

The learned trial Court as well as the learned appellate Court have appreciated the evidence on record and framed the opinion as noted above. Concurrent findings of facts have been properly recorded and in no way anything from record can be inferred to opine that evidence so appreciated was done in a way which occasioned failure of justice. Conviction has not been recorded by learned trial Magistrate on a mere assertion coming from the examination under Section 242 or 342 Cr. PC. The evidence produced by complainant has been scrutinized while analyzing the ingredients of Section 138 N. I. Act and the stand of petitioner also taken into consideration and tested its credibility. The reply of petitioner under Section 342 Cr. PC regarding the incriminating material was taken note of and given required consideration. No interference is warranted and so the petition merits dismissal and is, accordingly, dismissed. Interim direction, if any, shall stand vacated.

Learned Magistrate to accordingly proceed against the petitioner for execution of sentence under law.

Record be returned back to the trial Court along with copy of this order.