Bangalore District Court
S M Basavaraju vs B N Bindiya on 5 April, 2025
KABC0A0015812021
IN THE COURT OF LXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, MAYOHALL UNIT, BENGALURU. (CCH.74)
PRESENT:
Smt. Anitha N.P., B.A.L., L.L.M.,
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
Dated this the 05th day of April 2025.
Crl. Appeal No.25063/2021
Appellant/ Sri. S M Basavaraju,
Accused: S/o: late Somaraju,
Aged about 66 years,
R/at No. 408, 4th G Main Road, II Block,
Near Murali Gas, Kalyan Nagar,
Bangalore 560043.
(Rep by Sri. G.Raghunandan - Adv.)
V/S
Respondent/ Ms.B. N. Bindiya
Complainant: Aged about 26 years,
D/o B. Narayan Murthy,
R/at No. 699, 18th Cross, 1st Block,
3rd Stage, Manjunathanagar,
West Of Chord Road,
Bangalore 560010.
(Rep by Shreeram T. Nayak - Adv.)
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JUDGMENT
This is an Appeal filed by Accused under Section 374(1)(A) of Cr.P.C., being aggrieved by the Judgment dated 22.03.2021 passed in C.C. No.53189/2018 on the file of XXXIII ACMM, Bengaluru, convicting him for an offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as 'NI Act', for brevity] and sentencing him to pay fine of Rs.1,20,000/- and in default of payment of fine, to undergo simple imprisonment for three months. Out of the fine amount, a sum of Rs.1,15,000/ is directed to be paid to the respondent/complainant as compensation and remaining Rs.5,000/- is ordered to be remitted towards State expenses.
2. The parties are referred to their original ranking as referred in trial court for convenience sake. The Appellant is the Accused and Respondent is the Complainant before the trial court.
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3. Brief facts of the complainant before the trial court is as under:-
The complainant and accused are known to each other and on 23.08.2017 the accused approached the complainant for service of documentary videos, constituency survey and social media management. The complainant has issued invoice dated 24.10.2017 to the accused and as per the invoice the accused is liable to pay a sum of Rs.1,85,000/-. As part payment the accused issued cheque for a sum of Rs.90,000/- dated 25.10.2017 and the accused requested the complainant to present the said cheque on 27.10.2017. As per the assurance the complainant presented the said cheque on 31.10.2017 before her banker and the same was returned unpaid for reasons 'funds insufficient'. Thereafter again as per the request of the accused the complainant presented the cheque on 30.11.2017. Again the cheque returned unpaid with endorsement 'funds insufficient' on 4 Crl.A. No.25063/2021
04.12.2017. Thereafter, the complainant issued legal notice on 21.12.2017 and the same was duly served on 29.12.2017. The accused inspite of receipt of notice not given reply nor paid the amount under the cheque. Hence, the Complainant filed Complaint before the 33 rd ACMM, Mayo Hall Unit, Bengaluru, in C.C.No.53189/2018.
4. After taking cognizance of the complaint, summons has been issued to the Accused. Responding to the summons, he appeared before the Trial Court, enlarged on bail, plea was recorded, Accused pleaded not guilty and claimed to be tried.
5. That to prove the case of the Complainant, the Complainant got examined herself as PW.1 in her affidavit filed in the form of Examination in Chief she has reiterated the averments of the complaint. In support of her case, she has relied on the documents marked as Ex.P1 to Ex.P.12.
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6. Thereafter, statement of Accused u/s 313 of Cr.P.C., has been recorded and the accused got examined himself as DW1 and he has got marked Ex.D.1 to 4 documents and closed his side.
7. After hearing the arguments, the Trial Court passed the impugned judgment and order dated 22.03.2021 convicting the Accused. That highly aggrieved with the impugned judgment and order, the Accused has filed present appeal on the following grounds:
1) The impugned Judgment of conviction is opposed to law, facts and probabilities of the case. The trial court not considered the defence of the accused. The trial court not considered that the complainant admitted in the complaint and also in the cross-
examination that she had raised invoice for Rs.1,85,000/- on 24.08.2017 though the entrusted work to her was supposed to be completed within one month from 24.08.2017 i.e., before the 23.09.2017. As per the agreed terms the complainant was 6 Crl.A. No.25063/2021 required to furnish necessary hard disk or pen-drive. The trial court also failed to consider that invoice is not produced.
2) The trial court not considered that Ex.P9 to 11 are subsequently created for the case, the complainant never handed over the compact disk/pen drive to the accused within stipulated time.
3) There is no legally recoverable debt from the accused to this complainant and the same was not considered by the trial court. The trial court also not considered that accused issued notice to complainant on 15-12- 2017. The complainant issued legal notice as per Ex.P3 on 21-12-2017.
4) The trial court not considered that the notice not discloses that the complainant completed the entrusted work and handed over the CD or pen-drive to the accused. The trial court also failed to appreciate that the complainant has stated that the cost of 7 Crl.A. No.25063/2021 entrusted work at Rs.1,85,000/- and in Ex.P11 the amount mentioned is Rs.1 lakh. The reasons assigned by the trial court in its Judgment is based on conjunction and surmises. Accordingly, the impugned judgment and order of conviction is liable to be set aside by the intervention of this Court. Hence prayed for allowing the appeal.
8. After service of notice, the Respondent appeared through his counsel. Records secured from trial court.
9. Heard both sides. The learned counsel for Respondent filed written arguments. Perused the entire Trial Court records, including the impugned judgment.
10. Upon hearing, the following points arise for determination:-
1. Does the Appellant proves that the cheque in question was not issued towards any legally enforceable debt?
2. Whether the judgment of conviction passed by the Trial Court calls for 8 Crl.A. No.25063/2021 interference by the hands of this court?
3. What Order?
11. My findings to above points are as under:-
Point No.1: In the Negative Point No.2: In the Negative.
Point No.3: As per the final order, for the following:-
REASONS
12. POINT No.1: It is the specific case of the complainant that accused is known to her and on 23.08.2017 the accused approached the complainant for service of documentary videos, constituency survey and social media management. The complainant has issued invoice dated 24.10.2017 to the accused and as per the invoice the accused is liable to pay a sum of Rs.1,85,000/-. As part payment the accused issued cheque for a sum of Rs.90,000/- dated 25.10.2017 and the accused requested the complainant to present the 9 Crl.A. No.25063/2021 said cheque on 27.10.2017. As per the assurance the complainant presented the said cheque on 31.10.2017 before her banker and the same was returned unpaid for reasons 'funds insufficient'. Thereafter again as per the request of the accused the complainant presented the cheque on 30.11.2017. Again the cheque returned unpaid with endorsement 'funds insufficient' on 04.12.2017. Thereafter, the complainant issued legal notice on 21.12.2017 and the same was duly served on 29.12.2017. The accused inspite of receipt of notice not given reply nor paid the amount under the cheque.
13. In the case on hand the complainant in order to prove her case got examined herself as PW.1 and she has produced in all 12 documents as per the Ex.P1 to 12. Ex.P1 is the cheque, Ex.P2 is the bank memo, Ex.P3 is copy of legal notice, Ex.P4 is postal receipt, Ex.P5 is the postal acknowledgment, Ex.P6 is the postal cover, Ex.P7 is the certificate u/sec.65 B of Indian Evidence Act, 10 Crl.A. No.25063/2021 Ex.P8 is the CD, Ex.P9 to 11 are 3 compact disk and print out of whatsapp messages, whatsapp images, screen shots of face book chats.
14. On perusal of the evidence of DW.1/Accused he has not denied the cheque nor the signature on the cheque and the handing over of said cheque to the complainant in respect of the work entrusted to her. Under the above circumstances, there is an initial presumption in favour of the Complainant under Section 139 & 118 of Negotiable Instrument Act and the burden is on the Accused to rebut the said presumption by taking appropriate defense on the principles of preponderance of probabilities.
15. At this stage, it is necessary to refer a ruling of Hon'ble Apex Court reported in 2019 (3) KCCR 2473 (SC) (Basalingappa V/s Mudibasappa). The Hon'ble Apex Court while considering several earlier rulings on the offence U/Sec.138 of NI Act and also on the presumption 11 Crl.A. No.25063/2021 U/Sec.118 and 139 of NI Act, at Para 23 was pleased to observe as follows:
23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now 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 probabilities.
(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, Sec.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.
16. By keeping in mind the broad principles laid down in the above case if the case on hand is looked into it is the contention of the accused that there is no legally 12 Crl.A. No.25063/2021 recoverable debt from the accused to the complainant. The complainant not completed the entrusted work and handed over the Compact Disc or pen-drive to the accused as agreed. The notice issued by the accused to the complainant for return of cheque is prio to legal notice of complainant. Ex.P9 to 13 are created for the case and they are not handed over to accused. The complainant has not produced the alleged invoice. When the accused has come up with defence that there is no legally recoverable debt as the complainant not completed the entrusted work the burden is on the accused to prove the same.
17. The accused has relied upon Ex.D1 which is the letter/MOU dated 22.10.2017 and the complainant has also produced the copy of said letter as per Ex.P11. On perusal of the said letter it is stated discussion was held on 23.08.2017 and it is for carrying out the preparation of documentary videos by screening shooting 13 Crl.A. No.25063/2021 both indoor and out door editing,.etc and uploading in social media and storing in hard disc or pen drive to preserve the document in complete manner for the period 24.08.2017 to 23.09.2017 and amount was fixed at Rs.1 lakh and a sum of Rs.10,000/- has been paid as advance.
18. It is pertinent to note that as per Ex.P11 as well as Ex.D1 the complainant agreed to do documentary videos for this accused as he was aspirant candidate for election and the complainant agreed for said work on 23- 08-2017 and thereafter this Ex.D1 was entered into between them on 22-10-2017. By the time of preparing this MOU as per Ex.D1 it is mentioned that the work done by this complainant are as follows:
1. Political entry of S.M. Basavaraju documentary uploaded in 'youtube'.
2. Ganesha festival wishes.
3.Functions of J.D.S. office.
4. Interview of Marimuttu and Reajeshwari along with Basavaraju. 14
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5. About rain 'Meleya Avanthara' documentary.
6. J.D.S. protesting at Town Hall.
19. From the very Ex.D1 relied on by the accused it shows that the above stated serial No.1 to 6 work are done by this complainant. It is further mentioned in the Ex.D1 that the above documentaries are yet to pre-revival and finalize the copy and the same will be shared in hard disc or pen drive and deliver the same to the party by the company.
20. On perusal of Ex.D2 the accused has also given notice on 15.12.2017 to this complainant stating that complainant has to return dishonored cheque.
21. It is necessary to note that the complainant has presented the Ex.P1 cheque before her banker and the same returned unpaid on 04.12.2017 with endorsement 'funds insufficient'. Thereafter the complainant has issued legal notice as per Ex.P3 to the accused on 21.12.2017.
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22. The accused inspite of receiving notice Ex.P3 has not given any reply to the said notice on the contrary he has relied on his notice Ex.D2 issued to the complainant. As could be seen from Ex.D3 the said notice was issued to complainant on 18.12.2017. On perusal of the said Ex.D2 also the accused admitted the fact that he engaged services of complainant and also agreed that the charges was fixed at Rs.1 lakh and payment of Rs.10,000/- as advance and balance of Rs.90,000/-.
23. However, according to accused the complainant has not completed the entrusted work and she has not handed over the pen drive or hard disc of the videos on 24.10.2017.
24. However the recitals of Ex.D1 does not disclose any time limit or stipulating of time or date as stated in the reply notice. According to accused by 24.10.2017 the complainant was required to submit hard disc and pen 16 Crl.A. No.25063/2021 drive and she has not handed over the same. Whereas on perusal of the Ex.D1 which is admitted document the same does not disclose that before 24.10.2017 the complainant has to hand over the said hard disc and pen drive to the accused.
25. At this stage it is necessary to go through the ocular evidence of Pw.1 and this PW.1 deposed that she filed this case in her individual capacity, the accused was aspirant of Pulakeshinagar MLA constituency and hence he wanted to promote himself as a MLA candidate and also he wanted to have video survey of the problems of constituency, public opinion and documentary videos in his favour. Accordingly towards part payment the cheque was issued, she approached the accused on 23.08.2017 as the accused is liable to pay Rs.1,85,000/-. She worked for 2 months she carried out videos survey, documentary video, managed to social media uploading, attending the meetings of political people with the accused and worked 17 Crl.A. No.25063/2021 as political strategist. She furnished all the said documents to accused through CD and the accused has copied same to his system. She completed the entrusted work, Ex.P7 & 8 CD contains the work carried out by her.
26. It is the argument of the accused that the complainant has not completed entrusted work and she has not furnished the hard disc or pen drive as agreed. It is pertinent to note that as discussed above Ex.D1 acknowledgment/MOU itself shows that the works which are carried out by the complainant for this accused who has contested the election. If the complainant has not done the said work then in the Ex.D1 itself it would have been mentioned as work to be carried out by the complainant. However, the very words mentioned in the Ex.D1 shows that the work which was done by the complainant. The accused has availed the services of this complainant to carry out documentary videos by screening shooting indoor and outdoor editing, voice over 18 Crl.A. No.25063/2021 music and uploading the same in social media like facebook web page etc. When the accused availed the services of this complainant definitely he has to pay for the said services.
27. When the PW.1 was asked what are the works she done for Rs.1,85,000/- she deposed that she worked for 2 months, she carried out video survey, documentary video, managed to social media, attended the meetings of political people with the accused and worked as political strategist and she had furnished all these documents to the accused through CD the said evidence of PW.1 was not at all denied by the accused. That apart in the cross- examination dated 23-09-2019 this complainant deposed that it is after receiving the compact disc the accused has handed over the cheque. Even the said fact was also not denied by any specific suggestion except bear denial.
28. That apart if the complainant has not carried out any such work entrusted to her then this accused 19 Crl.A. No.25063/2021 who has received the notice as per Ex.P3 had all opportunity to give reply and thereby to deny the facts stated by the complainant. Either in the Ex.D1 or in the ocular evidence the accused deposed about the fixing date for handing over the pen drive or hard disc to him.
29. Even the documents marked at Ex.P12 the chatting between accused and complainant shows that this accused admitted his liability of payment to this complainant for the work done by her. If the complainant has not carried out the work entrusted to her then what prevented this accused to give reply to the notice of this complainant is also not explained by this accused. If he had no liability to the accused he could have given instructions to his banker to stop the payment as there was no liability of payment. However the accused has not done so and the cheque returned unpaid for the reasons insufficient funds. The accused immediately on receiving the intimation of presentation of cheque by this 20 Crl.A. No.25063/2021 complainant with malafide intention has issued Ex.D2 notice to the complainant without paying the amount under the cheque. If this accused had not really received the documentation as agreed between him and complainant he had all opportunity to issue reply to the notice of the complainant.
30. That apart in the entire cross-examination the accused has failed to elicit or suggest that the Ex.P7 to 12 are not pertains to him and the complainant has not carried out the work entrusted to her.
31. The accused who was liable to pay charges for the services of this complainant has paid only Rs.10,000/- as advance and so as to pay the remaining balance amount he issued Ex.P1 cheque for part payment for a sum of Rs.90,000/-. It is to clear the legally enforceable debt I.e, the chargers for the services rendered by the complainant the accused has issued the Ex.P1 cheque. As the case of the complainant is it is 21 Crl.A. No.25063/2021 towards part payment Ex.P1 cheque is issued the argument of the accused that Ex.P11 shows Rs.1,85,000/- and Ex.P1 is for Rs.90,000/- has no weight at all. The accused failed to probabilize his defence and also failed to prove his defence. The accused failed to rebut the presumption available in favour of the complainant. Hence, I answered Point No.1 In the Negative.
32. Point No.2: It is the case of the appellant/accused that the impugned judgment and order of the Trial Court in C.C.No.53189/2018, dated 22.03.2021is perverse, illegal, irregular, capricious and contrary to the facts and material placed before it. Therefore, it is required to be set-aside by intervention of this court to meet the ends of justice. As I have already discussed under Point No.1 that the Complainant has categorically proved her contention that Ex.P1 cheque belongs to Accused, it has been issued in her favour to 22 Crl.A. No.25063/2021 discharge the legally recoverable debt. Accordingly, to clear the said legally enforceable debt the Accused has issued cheque under Ex.P1 to discharge the said amount, same was dishonored with an endorsement as 'funds insufficient'. Even thereafter, he has not made efforts to pay the cheque amount. Therefore, the said act and conduct of Accused is clearly goes to show that he has committed the offence punishable u/s. 138 of NI Act. Though there is provision to rebut the presumption available u/s 138 of NI Act, the Accused has miserably failed to make out all his defence. Therefore, the Complainant has proved that Accused has committed the offence punishable u/s 138 of NI Act. No reason to deny the same. The Appellant/Accused has miserably failed to make out grounds of appeal. The Trial Court has taken into consideration the evidence placed before it and appreciated the facts and evidence. The Trial Court by complying the correct proposition of law in the light of 23 Crl.A. No.25063/2021 principles laid down by Hon'ble Apex Court as well as Hon'ble High Court of Karnataka, has rightly come to conclusion and given its conclusion holding that the Accused has committed the offence punishable u/s. 138 of NI Act. The reasoning assigned by the Trial Court is based on sound principles of law. It does not requires any intervention. No reason to deny the same. The Appellant/Accused has miserably failed to prove Point No.2. Hence, I answer it in Negative.
33. POINT No.3: For the various reasons stated in the point Nos.1 & 2 and findings given on them by me, I proceed to pass the following:-
ORDER Appeal filed by the appellant/accused under section 374(1)
(a) of Cr.P.C., is hereby dismissed. 24
Crl.A. No.25063/2021 Consequently, the impugned judgment and order of conviction passed by trial court in CC No.53189/2018 against the appellant/accused dated 22.03.2021 is hereby confirmed.
Remit the trial court records with copy of this judgment.
No order as to costs.
---
(Dictated to the Stenographer, after computerization, corrected and pronounced by me in the Open Court, this the 5th day of April, 2025) Digitally signed by ANITHA ANITHA NANJANAGUDU NANJANAGUDU PARASHIVAMURTHY PARASHIVAMURTHY Date: 2025.04.11 16:40:49 +0530 (Anitha N.P.) rd 73 Addl. CC & SJ, M.H.Unit, Bengaluru. (CCH-74)