Bangalore District Court
Bimlendu Kumar vs Parth Constructions Pvt Ltd And Others on 14 November, 2025
KABC0C0126242023
IN THE COURT OF XIV ADDL.CHIEF JUDICIAL
MAGISTRATE, MAYOHALL UNIT, BENGALURU
Dated this the 14th day of November, 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. 53918/2023
Complainant Mr.Bimlendu Kumar,
S/o Sri.Sudhir Mishra,
Aged about 47 years.
Having office at No.504,
Ranka Park, Richmond Circle,
Lalbagh Road, Bengaluru.
(By M/s. KREIOZ Legal Solutions,
Advocates)
V/s
Accused 1. Parth Constructions Private Limited,
#246, Rajanigandha Garden Apartments,
No.21, Vittal Mallya Road,
Bengaluru-560 001.
2. Mr.Gopal Pandurang Shinde,
Director,
Parth Constructions Private Limited,
#246, Rajanigandha Garden Apartments
No.21, Vittal Mallya Road,
Bengaluru-560001.
Also at:
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No.204, Rajni Gandha,
Garden Apartments,
21, Vittal Mallya Road,
Bengaluru-560001.
Director,
Cyma Investments Private Limited,
Unit No.201, "Unique Centre",
Plot No.15, Waterfield Road,
Bandra (West), Mumbai City-400050.
3. Mrs.Vandana Gopal Shinde,
Director
Parth Construction Private Limited,
# 246, Rajanigandha Garden Apartments,
No.21, Vittal Mallya Road,
Bengaluru-560 001.
4. Mr.Sanjeet Vijaykumar Raut,
Director,
Parth Constructions Private Limited,
# 246, Rajanigandha Garden Apartments,
No.21, Vittal Mallya Road,
Bengaluru-560001.
Also at:
Cyma Investments Private Limited,
Unit No.201, "Unique Centre",
Plot No.15, Waterfield Road,
Bandra (West), Mumbai City-400050.
(By Sri.B.C.Vijay, Advocate)
Offence U/s 138 of Negotiable Instruments Act.
Plea of the Pleaded not guilty
accused
Final Order Accused are held guilty for the offence
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KABC0C0126242023
under Section 138 R/w 141 of NI Act &
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. Accused No.2 to 4 are the Directors and in-
charge of day-to-day affairs of accused No.1 company. In
terms of Master Finance Agreement dated 22.02.2020
entered between Cyma Investments Private Limited, Parth
Constructions Private Limited (accused No.1) jointly with
the complainant and one Mr.Ambarish Kumar, it was
agreed and understood that apart from other obligations,
the accused company will return an amount of
₹6,57,00,000/- to the complainant and handed over three
cheques (details infra) to the complainant. But, accused
company kept on requesting the complainant not to
deposit the said cheques. On the assurance and promises
made by the accused, the complainant did not deposit the
said cheques in intervening time. However, after
continuous failure to keep up the promise and assurance,
he has presented the cheques for encashment through his
banker, viz., IDFC First Bank, Residency Road branch,
Bengaluru. Said cheques were dishonored. Details of
cheques and reason for dishonor is stated hereunder:-
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Sl. Cheque No. Cheque Cheque Reason for
No. & date amount returned dishonor
(₹) on
1. 656029; 1,00,00,000/- 09.09.2021 Drawer's
08.09.2021 signature
differs
2. 656030; 1,00,00,000/- 09.09.2021 Drawer's
08.09.2021 signature
differs
3. 656031; 57,00,000/- 09.09.2021 Drawer's
08.09.2021 signature
differs
2.2. The accused have failed to take steps to make
payment of the dishonored cheques in spite of bringing to
their notice about the dishonor. Therefore, the
complainant has caused a legal notice dated 04.10.2021
through RPAD calling upon the accused to pay the
amount covered under the dishonored cheques. The said
notice was served on 05.10.2021 and 08.10.2021. But,
they have failed to comply with the demand. Therefore,
this complaint is filed.
3. This court took cognizance of the offence.
Complainant was examined on oath. As prima facie case
made out, as per order dated 09.05.2023, this court
ordered for registering case against the accused No.1 to 4
and process was issued.
4. Pursuant to the process, accused No.2 to 4
have entered appearance. They are admitted to bail. After
compliance of Sec.207 of Cr.P.C, this court recorded their
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plea. They have pleaded not guilty and claimed to be tried.
On the same day, their statement under Section 313 of
Cr.P.C, recorded. They have denied the incriminating
evidence.
5. Sworn statement affidavit of complainant
treated as evidence post-cognizance stage. Documents at
Ex.P-1 to 30 marked for complainant.
6. In defence, accused No.2 has examined himself
as DW-1 and produced Ex.D1 to 6.
7. Learned counsel for the complainant while
pointing out the recitals in Ex.P24 and the contents of
Ex.P30 argued that the accused have admitted their
liability and it is towards discharge of said liability, they
have issued the cheques which were dishonored. After the
dishonor of cheques, the complainant has caused a
demand notice to accused which was served. In spite of
service, they have not complied with the demand made in
the notice. The defence regarding theft of cheques is
afterthought and the same has not been substantiated.
Therefore, he has prayed for convicting the accused.
8. On the other hand, learned defence counsel
has argued that Master Finance Agreement at Ex.P24 is a
created document. Accused have not signed the said
document. Accused No.2 was not in Bengaluru as on the
date of its alleged execution. On that day, he was in
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Sindhdurg, Maharashtra for treatment. In this regard,
Ex.D6 is produced. Complainant has failed to prove the
existence of legally enforceable liability. He has further
argued that demand notice was not served on the
accused. Therefore, he has prayed for acquitting the
accused. He has cited following judgments:-
Sl. Judgments
No.
1. Muttu V/s Ghoshayya Channayya Hiremath;
2025 (1) KCCR 251
2. N.Padmavathi V/s D.Rajanna;
2024(1) AKR 649
3. D.Siddappa V/s G.Onkarappa;
2024(1) AKR 744
4. K.Govinda Nayak V/s Janardhana Naik;
2024(2) AKR 354
5. Sri.Prakash Chand.B V/s Sri.Manohar Singh;
NC:2024:KHC:8706
6. Kumar Exports V/s Sharma Carpets;
(2009) 2 SCC 513
7. K.N.Beena V/s Muniyappan and another;
AIR 2001 SC 2895
8. Rajaram Sriramulu Naidu (Since deceased)
through LRs V/s Maruthachalam (Since
deceased) through LRs.;
AIR 2023 SC 471
8. Basalingappa V/s Mudibasappa;
AIR 2019 SC 1983
9. P.Poonacha Muthanna V/s Bollera Kuttappa
Appaiah;
(Criminal Appeal No.1584/2019;
DD 13.12.2023)
10. P.Venugopal V/s Madan.P.Sarathi;
(Criminal Appeal No.1699/2008;
DD 17.10.2008)
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KABC0C0126242023
11. K.Subramani V/s K.Damodara Naidu;
2015 AIR SCW 64
12. K.Bhaskaran V/s Sankaran Vaidhyan Balan;
AIR 1999 SC 3762
13 Avinash Kumar Chauhan V/s Vijay Krishna
Mishra;
AIR 2009 SC 1489
14. M/s Indus Airways Pvt.Ltd and Ors V/s M/s
Magnum Aviation Pvt Ltd and anr;
(2014) 12 SCC 539
15. United Bank of India V/s Sh.Naresh Kumar
And Ors;
AIR 1997 SC 3
16. Surya Vadanan V/s State of Tamilnadu & Ors;
AIR 2015 SC 2243
17. Balanagouda V/s Mudibasappa;
RSA No.200051/2016; DD 06.11.2020
18. M.S.Narayana Menon @ Mani V/s State of
Kerala & Anr;
AIR 2006 SC 3366
19. M/s GHCL Employees Stock Option Trust V/s
M/s India Infoline Limited;
AIR 2013 SC 1433
9. I have perused the records.
10. Points for consideration:-
1. Whether the complainant has proved
that accused No.2 to 4 being the
Directors of accused No.1, were in-charge
of and responsible for the conduct of its
business and have issued the cheques,
viz., cheque bearing No.656029 for
₹1,00,00,000/-, cheque bearing
No.656030, for ₹1,00,00,000/- and
cheque bearing No.653031 for
₹57,00,000/-, all dated 08.09.2021,
drawn on YES Bank, Sahakar Nagar
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Branch, Bengaluru, in favour of the
complainant towards discharge of legally
recoverable debt/liability and the said
cheques were dishonored for the reason
'drawers signature differs' and in spite of
service of statutory notice dated
04.10.2021, they have failed pay the
amount covered under the cheques and
thereby committed the offence punishable
under Section 138 R/w Section 141 of
N.I.Act?
2. What order?
11. The above points are answered as under:-
Point No.1 : In the Affirmative.
Point No.2 : As per final order; for the following:
REASONS
12. Point No.1:- In order to substantiate the case,
the complainant has filed affidavit reiterating the
complaint averments. Of documents marked for the
complainant, Ex.P-1 to 3 are cheques; Ex.P-4 to 6 are
bank endorsements; Ex.P-7 is copy of legal notice; Ex.P-8
to 14 are postal receipts; Ex.P-15 to 18 are postal
acknowledgment cards; Ex.P19 to 22 are postal track
consignment reports; Ex.P23 is letter dated 15.11.2021
addressed to Post Master, Shanthinagar post office,
Bengaluru; Ex.P24 is original Master Finance Agreement
dated 22.02.2020; Ex.P25 to 27 are reply issued by
Inspector of Posts, Office of CPM, Bengaluru, enclosing
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copy of delivery manifesto; Ex.P28 is Facebook profile of
accused No.2/DW-1; Ex.P29 is list of Directors of
companies, obtained from the website of Ministry of
Corporate Affairs; and Ex.P30 is copy of board resolution
of accused No.1 dated 18.12.2019.
13. On the other hand, in order to substantiate the
defence, accused No.2 has examined himself as DW-1.
Accused have relied on Ex.D1 to 6. Ex.D1 is copy of legal
opinion dated 18.01.2017, given by complainant; Ex.D2 to
5 are copies of sale deeds dated 04.12.2021; and Ex.D6 is
Medical Certificate/OP chit dated 21.02.2020, issued by
Community Health Center, Thandoli, Sindhdurg,
Maharashtra.
14. In order to prove the legally enforceable
debt/liability, the complainant has primarily relied on
Master Finance Agreement dated 22.02.2020, which is at
Ex.P24. Reliance is also placed on board resolution of
accused No.1 dated 18.12.2019, marked at Ex.P30.
15. I have gone through the cross-examination
directed to PW-1. It is worth to point out that suggestions
were given to PW-1 admitting execution of Master Finance
Agreement/Ex.P24 and issuance of cheques. Relevant
portions of deposition of PW-1 dated 10.01.2024 and
01.07.2024 are extracted as under:-
Relevant portions of deposition of PW-1
dated 10.01.2024
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"XXXX It is true to suggest that there was a
Master financial agreement (MFA) executed on
22.02.2022. It is true that in the said MFA,
you and your brother Ambrish Kumar were
mentioned financiers. XXXX."
"XXXXX It is false to suggest that while
entering into the MFA, accused have issued
many blank cheques to me. XXXX"
"XXXX It is false to suggest that cheques at
Ex.P1 to 3 were given by the accused in blank
as a security while executing MFA. XXXX"
"XXXX It is false to suggest that only to
harass the accused, I have filled the blank
cheques and falsely claiming the money.
XXXX"
"XXXX For suggestion that being a company
secretary of the accused firm, I have misused
the cheques of the accused, witness states
that I am not the company secretary of the
accused firm and he has not misused any
cheque. It is false to suggest that the security
cheques issued by the accused during MFA
have been misused and a false case is filed
against the accused. XXXX"
Relevant portion of deposition of PW-1
dated 01.07.2024
"XXXX It is not true to suggest that I have filed
case by misusing the cheque obtained from
accused No.1 representing that I would clear
the dues of D.H.F.L. I do not know if complaint
is filed in Cubbon Park Police Station against
me for not returning the cheque to accused
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No.1. It is false to suggest that, since I had
assured that I would return the cheque, F.I.R
has not been registered against me."
16. In the context of the case on hand, it is
necessary to peruse Ex.P24 and its relevant clauses are as
under:-
"MASTER FINANCE AGREEMENT
This AGREEMENT is entered into on this the 22nd
day of February Two Thousand Twenty
(22.02.2020) at Bangalore
BY AND BETWEEN
Cyma Investments Private Limited with CIN
U65990MH1980PTC022979 having Registered
Office at Unit No.201, "Unique Centre", Plot No.15
Waterfield Road, Bandra (West) MUMBAI Mumbai
City - 400050, and corporate office at No.246,
Rajani Gandha, Garden Apartments, 21st Vittal
Mallya Road, Bangalore 560001, represented by
its Director, Mr.Gopal.P.Shinde, hereinafter called
the 'Land Owner and Developer' (which term
wherever the context requires shall mean and
include their respective heirs, executors,
administrators and assigns, etc.) OF THE FIRST
PART
AND
Parth Constructions Private Limited with CIN
U45201KA2007PTC044213 having registered
Office at No.246, Rajanigandha Garden
Apartments No.21, Vittal Mallya Road Bangalore -
560001, represented by its Director, Mr.Gopal
P.Shinde, (PAN No.AAECP7014J) (A sister concern
of M/s.Cyma Investments Pvt. Ltd.), hereinafter
called the 'Co-Developer' (which term wherever
the context requires shall mean and include
Successors-in-interest, administrators and assigns,
etc.) OF THE SECOND PART;
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AND
1) Mr.Bimlendu Kumar, Residing at No.B-
411, Wilson Vintage, No.24, 8th Main, 1st
Cross, Wilson Garden, Bangalore 560030;
and
2) Mr.Ambarish Kumar, Residing at B-
408, Lodha Meridian, Kukatpally,
Hyderabad 500072.
Hereinafter referred to as 'Financers', jointly and
severally, (which term wherever the context admits
shall mean and include their heirs, legal
representatives, executors, administrators and
assigns and they are constructed to be along with
relatives) of the OTHER PART;
WITNESSES AS FOLLOWS:
I. WHEREAS (I) Shri.B.Lingappa, Aged about 62
years, S/o. Shri.B.Boraiah, (ii) Smt.Prema, Aged
about 49 years, W/o.Shri.B.Lingappa, (iii)
Ms.Chaitra, Aged about 24 years,
D/o.Shri.B.Lingappa and (iv) Sri.Harsha, Aged about
21 years, S/o. Shri.B.Lingappa, all residing a: No.10,
Lingappa Block, Ramakrishnaiah Street,
Seshadripuram, Bangalore-560010 were Land
Owners for the Schedule 'A' property.
II. WHEREAS the above person and M/s Cyma
Investment Pvt., have entered into a Joint
Development agreement (JDA) / Addendum thereto to
jointly develop the Schedule 'A' Property into a
multistoried residential apartment along with
commercial portion and the Land Owners executed a
General Power of Attorney (GPA) empowering the
Developer to develop the Schedule 'A' Property and to
sell 60% undivided share in the Schedule 'A' Property
together with 60% of saleable built up area in the
proposed residential apartment complex on the
Schedule 'A' Property in favour of prospecive
Purchaser's.
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III. WHEREAS M/s Parth Constructions Pvt. Ltd.,
(the Co-Developer herein) is a sister concern of the
Developer and has been engaged in development
and construction activities.
IV. WHEREAS the Developer and Co-Developer
have reached agreement and entered into
Memorandum of Understanding (MOU), wherein the
Co-Developer has been assigned with development of
the Schedule 'A' Property into multi storied apartment
complex under name and style 'Parth Gardenia'
and power to sell apartment units in Parth
Gardenia falling into share of the Developer as per
terms and conditions stipulated in JDA, GPA and
MOU.
V. WHEREAS the Party of the First Part and Party of
the Second Part approached the Party of the Other
Part or Financers for Financial Assistance from time
to time in relation to the Construction and
Development of the project "PARTH GARDENIA" on
the Schedule 'A' Property as detailed above.
VI. WHEREAS the Party of the First Part also
represented that all the activities of the development
is being carried on by the Party of the Second Part.
VII. WHEREAS the financial assistance has been
extended to the Party of the Second Part based on
the representations and warranties made by Party of
the Second Part and they have agreed and
represented that they are responsible and liable to
return and refund the financial assistance provided
along with applicable interest to Party of the Other
Part or Financers.
VIII. WHEREAS relaying on representation by the
Party of the Second Part, Party of the Other Part or
Financier has provided financial assistance for a
sum of Rs.7,94,24,500/- (Rupees Seven Crores
Ninety-Four Lakhs Twenty-Fur Thousand and Five
Hundred Only) in various forms and ways including
arrangement from their relatives from time to time to
the Party of the Second Part.
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IX. WHEREAS along with the amount as
mentioned in above clause, Party of the Other Part or
Financer has also provided financial assistance for a
sum of Rs.60,00,000/- (Rupees Sixty Lakhs Only)
though cheque to the Party of the Second Part.
X. WHEREAS he total amount of financial
assistance made to the Party of the Second Part is a
sum of Rs.8,54,24,500/- (Rupees Eight Crores Fifty-
Four Lakhs Twenty-Four Thousand and Five
Hundred Only) by Financers, which Party of the
Second part acknowledges.
XI. WHEREAS total amount of financial
assistance made to the Party of the Second Part by
Party of Other Part or Financer includes certain
portions of the undisbursed loan under respective
loan agreement, which is yet to be availed/accessed
by Party of Second Part.
XII. WHEREAS the Party of the First Part and
Party of the Second Part has assured and confirmed
to Party of the Other Part or Financers that they will
not be accessing the un-availed portion of finance as
mentioned in Clause X and XI.
XIII. WHEREAS as on 22nd February 2020 the total
amount of outstanding financial assistance made to
Party of the Second Part by Party of Other Part or
Financers including the interest thereon is
Rs.6,57,00,000/- (Rupees Six Crores and Fifty Seven
Lakhs Only).
XIV. WHEREAS it has been agreed between Party
of the Second Part and Party of Other Part or
Financers that an amount of Rs.7,00,000/- (Rupees
Seven Lakhs Only) will be monthly interest accruing
on the above outstanding loan
XV. WHEREAS Party of the Second Part has
issued to Party of Other Part or Financers to serve
interest as per clause XIV and details of cheques are
as given below:
Sl. Cheque Amount Bank In favour
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No. No.
1. 656020 7,00,000/- Yes Bank Bimlendu
Kumar
2. 656019 7,00,000/- Yes Bank Ambarish
Kumar
3. 656021 7,00,000/- Yes Bank Bimlendu
Kumar
4. 656023 7,00,000/- Yes Bank Ambarish
Kumar
5. 656022 7,00,000/- Yes Bank Bimlendu
Kumar
XVI. WHEREAS the Party of the First Part and
Party of the Second Part at the time of availing of
financers/loan through third parties on various
dates, they have provided security / collateral
conveying title on property mentioned in respective
agreements as provided in Schedule B.
XVII. WHEREAS the Party of Other Part or
Financers have accepted the various property to
cover the financial assistance made by them as
collateral or security, however, they have clearly
represented that they are interested in return/refund
of the money and release of other financial supports
provided to the Party of the Second Part by them.
XVIII. WHEREAS the Party of Other Part or
Financers have accessed and has reason to believe
that the security/ collateral granted to them is not
sufficient and the Party of the First Part and Party of
the Second Part has agreed to execute sale
agreement in relation to property provided in
Schedule-C.
XIX. WHEREAS Party of the Second Part has
represented to the Party of Other Part or Financiers
that they will return the complete availed portion
(outstanding) along with interest within a period of
four months, i.e. on or before 31st May 2019 and
settle the accounts towards full and final settlement.
XX. WHEREAS Party of the Second Part has
issued cheques to the Party of Other Part or
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Financiers to settle account as provided in Clause
XIII & XIX as given below:
Sl. Cheque Amount Bank In favour
No. No.
1. 656025 1,00,00,000/- Yes Bank Ambarish
Kumar
2. 656026 1,00,00,000/- Yes Bank Ambarish
Kumar
3. 656027 1,00,00,000/- Yes Bank Ambarish
Kumar
4. 656028 1,00,00,000/- Yes Bank Ambarish
Kumar
5. 656029 1,00,00,000/- Yes Bank Bimlendu
Kumar
6. 656030 1,00,00,000/- Yes Bank Bimlendu
Kumar
7. 656031 57,00,000/- Yes Bank Bimlendu
Kumar
XXI. WHEREAS the Party of Other Part or
Financers have agreed with Party of the First Part
and Party of the Second Party that they would
release the property held by them on proportionate
realization of payment/ release of financial support
provided by them to the Party of the Second Part.
ACCORDINGLY THE PARTIES HERETO HAVE
DECIDED AND AGREES AS FOLLOWS:
1. That the Party of the First Part and Party of the
Second Part acknowledges total amount of financial
assistances made to the Party of the Second Part by
Party of Other Part or Financer of Rs. 8,54,24,500/-
(Rupees Eight Crores Fifty-Four Lakhs Twenty-Four
Thousand and Five Hundred Only).
2. That as on 31st January 2020 the total amount of
outstanding financial assistances made to Party of
the Second Part by Party of Other Part or Financers
including the interest thereon is Rs. 6,50,00,000/-
(Rupees Six Crores and Fifty Lakhs Only).
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3. That the Party of the Second Part has issued
following cheques to the Party of Other Part or
Financiers to for the outstanding owed by them:
Sl. Cheque Amount Bank In favour
No. No.
1. 656025 1,00,00,000/- Yes Bank Ambarish
Kumar
2. 656026 1,00,00,000/- Yes Bank Ambarish
Kumar
3. 656027 1,00,00,000/- Yes Bank Ambarish
Kumar
4. 656028 1,00,00,000/- Yes Bank Ambarish
Kumar
5. 656029 1,00,00,000/- Yes Bank Bimlendu
Kumar
6. 656030 1,00,00,000/- Yes Bank Bimlendu
Kumar
7. 656031 57,00,000/- Yes Bank Bimlendu
Kumar
4. That the Party of the Second Part confirms and
assures Party of the Other Part or Financers that
they will not be accessing or availing the remaining
un-availed portion of finance in various loan
agreements entered by Financers though third
parties.
5. That Part of the Second Part will serve an amount
of Rs.7,00,000/- (Rupees Seven Lakhs Only) as
monthly interest to the Party of Other Part or
Financers starting from month of February 2020 and
the interest will be paid on or before 1th of every
completed month, for example, interest to be paid by
1th March 2020 for interest of February 2020.
6. That the Party of the Second Part has issued the
following cheque to the Party of Other Part or
Financers Towards the service of the interest:
Sl. Cheque Amount Bank In favour
No. No.
1. 656020 7,00,000/- Yes Bank Bimlendu
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Kumar
2. 656019 7,00,000/- Yes Bank Ambarish
Kumar
3. 656021 7,00,000/- Yes Bank Bimlendu
Kumar
4. 656023 7,00,000/- Yes Bank Ambarish
Kumar
5. 656022 7,00,000/- Yes Bank Bimlendu
Kumar
7. That the Party of the First Part and Party of the
Second Part along with security / collateral granted
earlier have agreed to execute sale agreement and
power of attorney in relation to the property
mentioned in Schedule - C.
8. That the Party of Other Part or Financers have
agreed to accept the execution of the sale agreement
and power of attorney in their favour and grant a
period of 4 months to Party of the First Part and
Party of the Second Part for complete repayment of
Rs.6,50,00,000/- (Rupees Six Crores and Fifty Lakhs
Only) along with monthly interest of Rs.7,00,000/-
(Rupees Seven Lakhs Only) towards full and final
settlement within a period of four months, i.e. on or
before 31st May 2019."
17. In chief-examination at para No.6, DW-1 has
deposed thus:-
"6. I further state that our company will
completely deny the entire allegations made by
the complainant that our company entered
Master Finance Agreement with the
complainant on 22/02/2020 which is
completely false, frivolous and but the
document produced by him is blank white
sheet duly signed document which kept at our
company for urgent and necessary internal
works and same sheets/documents misused
by him and the complainant himself entered
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Master Finance Agreement, with forged and
theft document/papers/bills and also not
received any legal notice either personally or
post by the complainant."
18. Accused are contending that signed blank
white sheets which were kept in office were misused by
the complainant to create Master Finance Agreement. By
deposing so, he has admitted the signatures on Ex.P24. It
is clear from the extracted evidence (supra at para No.15)
that accused have admitted execution of Ex.P24 and
issuance of cheques to complainant. Of course, contrary
suggestion was also given to the effect that Ex.P24 is a
created document and thus, transaction under the said
document is denied.
19. Accused have made an unsuccessful attempt
to disprove the execution of Ex.P24 in so for as accused
No.2/DW-1 is concerned. Reliance is placed on medical
prescription at Ex.D6 dated 21.02.2020, allegedly issued
by Community Health Officer, Government Hospital,
Thandoli Village, Sindhdurg District, Maharashtra. As per
the said document, on 21.02.2020, accused No.2 had
been to said hospital complaining viral fever and the
Medical Officer has prescribed certain medicines. There
are more than one reason to disbelieve the said document.
Firstly, the said document is of the year 2020 which has
seen the light of the day for the first time when it was
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produced before this court on 23.06.2025. Secondly, the
author of the said document has not been examined
before this court to prove its contents. From the very
document one can make out that it is recently created
with antedate. For these reasons, Ex.D6 cannot be relied
in order to disprove the execution of Ex.P24. As noted
above, suggestions are given to PW-1 admitting execution
of Ex.P24 by the accused. Having regard to the categorical
admission by the accused by way of suggestion to PW-1,
in the absence of evidence to the contrary, this court
holds that Master Finance Agreement at Ex.P24 is proved.
20. Ex.P30 is the another document upon which
complainant is harping upon to prove the legally
enforceable debt/liability on the part of accused. The said
document is marked in the cross-examination of DW-1.
After going through the document, DW-1 has deposed as
under:-
"4. XXXX Document now confronted to me is
Board resolution of accused No.1 dated
18.12.2019. Same is marked as Ex.P30.
After seeing the document witness says that
some payment has been made out of
Rs.7,94,24,500/-. I do not know how much
money paid out of Rs.7,94,24,500/-.
Accused No.4 knows the same."
21. Ex.P30 is board resolution of accused No.1
dated 18.12.2019. Accused No.2 to 4 are the signatories
to Ex.P30 and they have signed it in the capacity of
21
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Directors of accused No.1. It is pertinent to note that this
document has not been disputed by accused at any point
of time. On the contrary, DW-1 has admitted to its
contents by deposing as above. For better appreciation,
relevant portion of Ex.P30 is extracted as under:-
"CERTIFIED TRUE COPY OF THE RESOLUTIONS
PASSED BY THE BOARD OF DIRECTORS OF
PARTH CONSTRUCTIONS PRIVATE LIMITED ON
18TH DECEMBER 2019 AT REGISTERED
OFFICE OF THE COMPANY SITUATED AT
NO.246, RAJANIGANDHA GARDEN APARTMENTS
NO.21, VITTAL MALIYA ROAD BANGALORE-
560001, KARNATAKA
Entering into Agreement of Sale of Financial
Assistance
RESOLVED THAT Company do hereby confirm and
acknowledge the receipt of the financial assistance
of an amount of Rs.7,94,24,500/- (Rupees Seven
Crores Niney-Four Lakhs Twenty-Four Thousand
and Five Hundred Only) from Mr.Bimlendu Kumar,
residing at No.B-411, Wilson Vintage, No.24, 8th
Main, 1st Cross, Wilson Garden, Bangalore 560030
and Mr.Ambarish Kumar, Residing at B-408, Lodha
Meridian, Kukatpally, Hyderabad 500072.
RESOLVED FURTHER THAT Company being Co-
Developer along with Cyma Investments Private
Limited (being Land Owner and Developer) in project
"Parth Gardenia" do hereby agrees and confirm for
entering into Agreement for Sale on the below
mentioned property forming part of its share in
project Parth Gardenia for a consideration of
Rs.70,00,000/- (Rupees Seventy Lakhs Only) out of
which Rs.60,00,000/- (Rupees Sixty Lakhs Only)
has already been received by it as provided below
and only remaining consideration is Rs.10,00,000/-
(Rupees Ten Lakhs Only)."
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22. Thus, it is evident that under Ex.P30, accused
have admitted/acknowledged the receipt of financial
assistance of ₹7,94,24,500/- from the complainant. As
noted above, the signatures of accused No.2 to 4 on
Ex.P30 is absolutely not in dispute. Thus, from the
documents at Ex.P24 and Ex.P30, this court opines that
the complainant could establish his contention regarding
existence of legally enforceable liability on the part of
accused.
23. During cross-examination dated 22.01.2025,
DW-1 has deposed that he has studied upto SSLC in
Marathi medium. He has asserted that from 1 st Standard
to 7th Standard, he has studied in Wadala Municipal
School; and from 8th Standard to 10th Standard, he
studied in King Johns School at Dadar. A specific
suggestion was given to the effect that he is a graduate
which DW-1 has denied. To substantiate the said
suggestion, Printout of Facebook profile of DW-1
(consisting of 7 sheets) is confronted and the same is
admitted and marked at Ex.P28. He has also admitted to
the fact that in Ex.P28 he has described himself as a
graduate from University of Mumbai and a student of
St.Anthony's Convent High School. It is apparent from the
said document that DW-1/accused No.2 has projected
that he has studied at University of Mumbai and
St.Anthony's Convent High School. Quite contrary to the
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said description, during cross-examination before the
court he has stated that he has studied upto 10 th
Standard in Marathi language.
24. Further, his assertion during cross-
examination that he is Director in five companies has
been falsified by the complainant by producing document
at Ex.P29, list of Directors of companies obtained from the
website of Ministry of Corporate Affairs which shows that
he is Director in as many as 10 companies including
accused No.1. Thus, from the circumstances and the
elicitation made during cross-examination, it can be
concluded that DW-1 is not the person worth to be
believed.
25. Now coming to the crux of the issue, there can
be no dispute that in matters relating to offence under
Section 138 of the Act, the complainant has only to
establish that the cheque is genuine, presented within
time and upon it being dishonoured, due notice was sent
within 30 days of such dishonour, to which repayment
must be received within 15 days, failing which a
complaint can be preferred by the complainant within one
month as contemplated under Section 142(1)(b) of the Act.
26. In Gimpex Private Limited vs. Manoj Goel,
[(2022) 11 SCC 705], Hon'ble Supreme Court has
highlighted the ingredients forming the basis of the
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offence under Section 138 of the NI Act in the following
structure:
"(i) The drawing of a cheque by person on
do account maintained by him with the
banker for the payment of any amount of
money to another from that account;
(ii) The cheque being drawn for the
discharge in whole or in part of any debt or
other liability;
(iii) Presentation of the cheque to the bank
arranged to be paid from that account;
(iv) The return of the cheque by the drawee
bank as unpaid either because the amount
of money standing to the credit of that
account is insufficient to honour the cheque
or that it exceeds the amount;
(v) A notice by the payee or the holder in
due course making a demand for the
payment of the amount to the drawer of the
cheque within 30 days of the receipt of
information from the bank in regard to the
return of the cheque; and;
(vi) The drawer of the cheque failing to
make payment of the amount of money to
the payee or the holder in due course
within 15 days of the receipt of the notice."
27. In K. Bhaskaran v. Sankaran Vaidhyan
Balan, [(1999) 7 SCC 510], the Hon'ble Court had
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summarised the constituent elements of the offence in
similar terms by holding:
"14. The offence Under Section 138 of the
Act can be completed only with the
concatenation of a number of acts. The
following are the acts which are
components of the said offence: (1) drawing
of the cheque, (2) presentation of the
cheque to the bank, (3) returning the
cheque unpaid by the drawee bank, (4)
giving notice in writing to the drawer of the
cheque demanding payment of the cheque
amount, (5) failure of the drawer to make
payment within 15 days of the receipt of
the notice."
28. It is needless to point out that a cheque carries
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:
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'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".
29. Thus, the NI Act provides for two
presumptions:- Section 118 and Section 139. Section 118
of the Act inter alia directs that it shall be presumed, until
the contrary is proved, that every negotiable instrument
was made or drawn for consideration. Section 139 of the
Act stipulates that "unless the contrary is proved, it shall
be presumed, that the holder of the cheque received the
cheque, for the discharge of, whole or part of any debt or
liability". Because Section 139 requires that the court
"shall presume" the fact stated therein, it is obligatory on
the court to raise this presumption in every case where
the factual basis for the raising of the presumption has
been establish. Therefore, the court will necessarily
presume that the cheque is issued towards discharge of a
legally enforceable debt/liability in two circumstances.
Firstly, when the drawer of the cheque admits
issuance/execution of the cheque and secondly, in the
event where the complainant proves that the cheque was
issued/executed in his favour by the drawer. The
circumstances set out above form the fact(s) which bring
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about the activation of the presumptive Clause. [Bharat
Barrel & Drum Mfg.Co. V/s Amin Chand Pyarelal,
(1999) 3 SCC 35].
30. Significantly, in the present case, during
cross-examination of PW-1, accused have admitted
issuance of cheques to the complainant. According to
them, the cheques were issued in blank as security at the
time of executing Ex.P24. On the contrary, during the
evidence of DW-1, they have taken a stand that the
cheques were stolen and documents were forged. It is
elicited during cross-examination of DW-1 that the
accused have not lodged complaint to police alleging theft
of cheques and forgery of documents. If really, cheques
were stolen and document were forged, no prudent man
would keep quite without lodging complaint to police.
Assuming for argument sake that the alleged theft of
cheques and fabrication of documents was not within the
knowledge of accused before entering appearance in this
case, at least after appearing before the court, they would
have taken legal recourse. It is a matter of record that
they have appeared in this case in the year 2023. No
action taken even after appearance. Thus, contention
regarding theft of cheques and fabrication of documents
is only afterthought in order to escape from legal
consequence. At one breath, accused are asserting that
the cheques were given in blank as security and on the
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other, they are attributing theft and forgery to
complainant. Thus, the stand taken by the accused is
mutually destructive and thus, cannot be believed.
31. It is proved from the evidence that cheques
were issued by the accused. It is to be noted that
signature on the cheques is not disputed by the accused.
Once the signature on the cheque is admitted or proved
'revers onus' clause become operative. Thereafter, burden
shifts on the accused prove otherwise. Since the
execution of the cheques is proved, the limited question to
be considered, is whether the accused have discharged
their 'evidential burden' to arrive at the conclusion that
the presumption of law supplied by Section 139 has been
rebutted. Essentially, in all trials concerning dishonor of
cheque, the courts are called upon to consider whether
the ingredients of the offence enumerated in Section 138
of the Act have been met and if so, whether the accused is
able to rebut the statutory presumption contemplated by
Section 139 of the Act.
32. Discussing the burden of proof and
presumptions, Hon'ble Supreme Court in Rajesh Jain
V/s Ajay Singh, [(2023) 10 SCC 148] held as under:-
"Burden of Proof and Presumptions:
Conceptual Underpinnings
28. There are two senses in which the
phrase 'burden of proof' is used in the
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Indian Evidence Act, 1872 ("Evidence Act,
hereinafter"). One is the burden of proof
arising as a matter of pleading and the
other is the one which deals with the
question as to who has first to prove a
particular fact. The former is called the
"legal burden" and it never shifts, the
latter is called the 'evidential burden' and
it shifts from one side to the other. [See
Kundanlal v. Custodian (Evacuee
Property); AIR 1961 SC 1316.]
29. The legal burden is the burden of proof
which remains constant throughout a trial.
It is the burden of establishing the facts
and contentions which will support a
party's case. If, at the conclusion of the
trial a party has failed to establish these
to the appropriate standards, he would
lose to stand. The incidence of the burden
is usually clear from the pleadings and
usually, it is incumbent on the plaintiff or
complainant to prove what he pleaded or
contends. On the other hand, the
evidential burden may shift from one
party to another as the trial progresses
according to the balance of evidence given
at any particular stage; the burden rests
upon the party who would fail if no
evidence at all, or no further evidence, as
the case may be is adduced by either side
(See Halsbury's Laws of England, 4th
Edition para 13). While the former, the
legal burden arising on the pleadings is
mentioned in Section 101 of the Evidence
Act, the latter, the evidential burden, is
referred to in Section 102 thereof. [G.Vasu
V. Syed Yaseen Sifuddin Quadri; AIR
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1987 AP 139. affirmed in Bharat Barrel &
Drum Mfg.Co. Vs. Amin Chand Payrelal;
(1999) 3 SCC 35]
30. Presumption, on the other hand,
literally means "taking as true without
examination or proof". In Kumar Exports v.
Sharma Exports; (2009) 2 SCC 513, this
Court referred to presumption as "devices
by use of which courts are enabled and
entitled to pronounce on an issue
notwithstanding that there is no evidence
or insufficient evidence."
31. Broadly speaking, presumptions are of
two kinds, presumptions of fact and of
law. Presumptions of fact are inferences
logically drawn from one fact as to the
existence of other facts. Presumptions of
fact are rebuttable by evidence to the
contrary. Presumptions of law may be
either irrebuttable (conclusive
presumptions), so that no evidence to the
contrary may be given or rebuttable. A
rebuttable presumption of law is a legal
rule to be applied by the Court in the
absence of conflicting (Halsbury, 4th
Edition paras 111, 112). Among the class
of rebuttable presumptions, a further
distinction can be made between
discretionary presumptions ("may
presume") and compulsive or compulsory
presumptions ("shall presume")."
33. In P.Rasiya V/s Abdul Nazer and another;
(AIR Online 2022 SC 1373), the Hon'ble Apex Court
reiterated the position of law that once the complainant
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discharges his initial burden of proving issuance of
cheque by the accused with his signature, the
presumption under Section 139 of NI Act would arise and
burden shifts on the accused to rebut the same. Of
course, the degree of proof required to be proved by the
accused is not as high as the burden on the complainant
to prove the guilt of the accused, but he is required to
probabilize his defence. Hon'ble Supreme Court also
made it clear that once the initial burden of proving the
issuance of cheque by the accused with his signature is
proved by the complainant, the burden shifts on the
accused to prove the contrary and to rebut the
presumption.
34. In Rohitbhai Jivanlal Patel V/s State of
Gujarath [(2019) 18 SCC 106], the Hon'ble Apex Court
reiterated the legal position that once the complainant is
successful in discharging his initial burden to prove
issuance of cheque by the accused with his signature, the
presumption under Section 139 of NI Act would arise and
the burden shifts on the accused to rebut the legal
presumption. The Hon'ble Apex Court reiterated the
degree of proof to rebut the presumption on the part of
the accused and held in paragraph 18 as under:
"In the case at hand, even after
purportedly drawing the presumption
under Section 139 of the NI Act, the trial
court proceeded to question the want of
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evidence on the part of the complainant
as regards the source of funds for
advancing loan to the accused and want
of examination of relevant witnesses who
allegedly extended him money for
advancing it to the accused. This
approach of the trial court had been at
variance with the principles of
presumption in law. After such
presumption, the onus shifted to the
accused and unless the accused had
discharged the onus by bringing on record
such facts and circumstances as to show
the preponderance of probabilities tilting
in his favour, any doubt on the
complainant's case could not have been
raised for want of evidence regarding the
source of funds for advancing loan to the
appellant-accused....."
35. The Hon'ble Apex Court has placed reliance on
its earlier decision in Kumar Exports V/s Sharma
Carpets (AIR 2009 SC 1518) and extracted paragraphs
No.20 and 21, which read as under:
"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
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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
non-existence 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
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 non- existence 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
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circumstantial evidence and if the
circumstances so relied upon are
compelling, the burden may likewise
shift again on to 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.
21. The accused has also an option
to prove the non-existence of
consideration and debt or liability
either by letting in evidence or in
some clear and exceptional cases,
from the case set out by the
complainant, that is, the averments
in the complaint, the case set out in
the statutory notice and evidence
adduced by the complainant during
the trial. Once such rebuttal evidence
is adduced and accepted by the
court, having regard to all the
circumstances of the case and the
preponderance of probabilities, the
evidential burden shifts back to the
complainant and, thereafter, the
presumptions under Sections 118
and 139 of the Act will not again
come to the complainant's rescue."
36. The Hon'ble Apex Court has also placed reliance
on its earlier decision in Rangappa Vs. Sri. Mohan
[(2010) 11 SCC 441] and extracted paragraphs No.26 and
28 which reads as under:
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"26. In 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
a legally enforceable debt or liability.
To that extent, the impugned
observations in Krishna Janardhan
Bhat may not be correct. However,
this does not in any way cast doubt
on the correctness of the decision in
that case since it was based on the
specific facts and circumstances
therein. As noted in the citations,
this is of course in the nature of a
rebuttable presumption and it is
open to the accused to raise a
defence wherein the existence of a
legally enforceable debt or liability
can be contested. However, there
can be no doubt that there is an
initial presumption which favours
the complainant.
28. In the absence of compelling
justifications, reverse onus clauses
usually impose an evidentiary
burden and not a persuasive
burden. Keeping this in view, it is a
settled position that when an
accused has to rebut the
presumption under Section 139, the
standard of proof for doing so is that
of "preponderance of probabilities".
Therefore, if the accused is able to
raise a probable defence which
creates doubts about the existence of
a legally enforceable debt or liability,
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the prosecution can fail. As clarified
in the citations, the accused can rely
on the materials submitted by the
complainant in order to raise such a
defence and it is conceivable that in
some cases the accused may not
need to adduce evidence of his/her
own."
37. Regarding degree of proof, to rebut the
presumption, the Hon'ble Apex Court held in paragraph
16 as under:
"16. All of these circumstances led the High
Court to conclude that the accused had not
raised a probable defence to rebut the
statutory presumption. It was held that:
"6. Once the cheque relates to the
account of the accused and he
accepts and admits the signatures
on the said cheque, then initial
presumption as contemplated under
Section 139 of the Negotiable
Instruments Act has to be raised by
the court in favour of the
complainant. The presumption
referred to in Section 139 of the NI
Act is a mandatory presumption and
not a general presumption, but the
accused is entitled to rebut the said
presumption.
What is required to be established
by the accused in order to rebut the
presumption is different from each
case under the given circumstances.
But the fact remains that a mere
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plausible explanation is not expected
from the accused and it must be
more than a plausible explanation
by way of rebuttal evidence. In other
words, the defence raised by way of
rebuttal evidence must be probable
and capable of being accepted by
the court. The defence raised by the
accused was that a blank cheque
was lost by him, which was made
use of by the complainant. Unless
this barrier is crossed by the
accused, the other defence raised by
him whether the cheque was issued
towards the hand loan or towards
the amount spent by the
complainant need not be
considered...."
Hence, the High Court concluded that the
alleged discrepancies on part of the
complainant which had been noted by the
trial court were not material since the
accused had failed to raise a probable
defence to rebut the presumption placed on
him by Section 139 of the Act. Accordingly,
the High Court recorded a finding of
conviction."
38. Thus, it is settled proposition of law that the
complainant is required to discharge his initial burden of
issuance of cheque by the accused with his signature to
raise the legal presumption under Section 139 of NI Act.
When the legal presumption arises, the burden shifts on
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the accused to rebut the same by probabilizing his
defence.
39. In view of the settled principles, complainant
having proved existence of legally recoverable
debt/liability on the part of accused and that issuance of
cheques is also proved, burden is on the accused to
substantiate the defence that the subject cheques are not
issued for consideration which the cheques represent.
But, they have failed to discharge the burden of
establishing their defence.
40. I have carefully perused judgments cited by
the accused. In those judgments, presumptions available
to a cheque under Section 118 and 139 of NI Act are
discussed by the Hon'ble courts. In some of the cases, of
course, accused was acquitted, depending upon facts and
circumstances peculiar to those cases. In the case on
hand, it is proved from the evidence that the cheques are
issued towards discharge of legally recoverable
debt/liability. Under these circumstances, judgments
cited by the accused will not help them.
41. In order to prove service of statutory notice,
complainant has produced postal acknowledgment cards
at Ex.P15 to 18; postal track consignment reports at
Ex.P19 to 22; and copy of delivery manifesto annexed to
letter at Ex.P27 issued by Senor Superintendent of Post
Officers, Bengaluru South Division, Bengaluru. Prima
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facie, these documents prove service of registered demand
notice on accused. Of course, the accused have disputed
service of notice. In this regard, suggestion has been given
to PW-1.
42. It is evident from Ex.P7 that the notices were
sent to the accused to their different addresses. One of the
addresses is No.246, Rajanigandha Garden Apartments,
No.21, Vittal Mallya Road, Bengaluru. During cross-
examination of DW-1 at page No.9 para No.5, it is elicited
that the accused are residing in the very address. It is
elicited that in the said address they are also running
office. Relevant portion of deposition DW-1 is extracted as
under:-
"5. I am residing in No.246, Rajanigandha
Garden Apartments, No.21, Vittal Mallya
Road, Bengaluru from 2010 onwards. It is
my office-cum-residence. XXXX"
43. In view of categorical admission by DW-1
regarding his address coupled with documents at Ex.P15
to 22 and Ex.P27, it is proved that legal notice served all
the accused.
44. Prima facie, cheques at Ex.P-1 to 3 are drawn
from the bank account of the accused. Indisputably,
cheques were presented for encashment well within its
validity and dishonoured for the reason 'drawer's signaure
differs' which is appearing from bank endorsement at
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Ex.P4 to 6 dated 09.09.2021. Thereafter, complainant has
issued notice dated 04.10.2021, a copy of which is at
Ex.P7 calling upon the accused to pay the amount covered
under the dishonored cheques. It is proved from the
documentary evidence that the notice was served on all
the accused. Indisputably, they have not complied with
the demand made in the legal notice within the stipulated
period. Therefore, by statutory fiction, offence is deemed
to have committed. Accused have failed to probabilize
their defence to dislodge the statutory presumption
contemplated under Sections 118 and 139 of N.I.Act. On
the other hand, the complainant has produced sufficient
evidence to prove that the accused have drawn the
cheques in question towards discharge of legally
enforceable debt/liability.
45. It is specifically pleaded in the complaint that
the accused No.2 to 4 being the Directors of accused No.1,
are in-charge of day-to-day affairs of accused No.1.
Accused No.2 to 4 do not dispute the contention of the
complainant that they are the Directors of accused No.1
company, on whose account the cheques were drawn.
Assertion of the complainant finds support from Ex.P30,
board resolution of accused No.1 which is signed by
accused No.2 to 4. This document proves that accused
No.2 to 4 are the persons in-charge of, and responsible to
the accused No.1 for the conduct of its business.
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Therefore, all the accused must held guilty for the offence
punishable under Section 138 R/w Section 141 of N.I.Act.
Accordingly, I answer Point No.1 in the Affirmative.
46. 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. Object of Chapter-XVII of the
Negotiable Instruments Act, which prescribes punishment
for the dishonour of the cheque is both punitive as well as
compensatory and restitutive. In R.Vijayan V/s Baby and
another (AIR 2012 SC 528), Hon'ble Supreme Court has
observed that Chapter-XVII of the N.I. Act is an unique
exercise which blurs the dividing line between civil and
criminal jurisdictions and it provides a single forum and
single proceeding for enforcement of criminal liability and
also for the enforcement of the civil liability i.e., for
realization of the cheque amount and thereby obviating
the need for the creditor to move to different forums for
the relief. Hon'ble Apex Court has reiterated that the
apparent intention is to ensure that not only the offender
is punished, but also ensure that the complainant
invariably receives the amount of cheque along with
compensation. Hon'ble Supreme Court has further
observed that a stage has reached when most of the
complainants in particular the financial institutions view
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the proceedings under Section 138 of N.I. Act as a
proceeding for recovery of the cheque amount and
therefore, the punishment of the drawer of the cheque for
the offence of dishonour become secondary. The said
judgment is relied by Hon'ble High Court of Karnataka in
M/s. Banavathy & Company V.s Mahaeer Electro Mech
(P) Ltd., and others, (NC: 2025:KHC:25140).
47. Keeping in mind the principles laid down in
the aforesaid judgments, sentence has to be passed. In
the presence case, subject cheques are dated 08.09.2021.
Since then, complainant is deprived of the amount
covered under the cheques which is rightfully due to him.
Having regard to the facts and circumstances of the case
and the rate of interest stipulated under Section 80 of NI
Act, I am imposing fine of ₹4,50,00,000/- (Rupees Four
Crore and Fifty Lakhs Only) and out of the said amount, it
is just and proper to award a sum of ₹4,49,90,000/-
(Rupees Four Crore Forty Nine Lakhs and Ninety
Thousand Only) as compensation to the complainant as
provided under Section 357(1)(b) of Cr.P.C and the
remaining sum of ₹10,000/- (Rupees Ten Thousand Only)
shall go to State. In view of the findings recorded above, I
proceed to pass the following:
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ORDER
Acting under Section 255(2) of Cr.P.C., accused No.1 to 4 are held guilty and convicted for the offence punishable under Section 138 R/w Section 141 of Negotiable Instruments Act.
Accused No.1 to 4 are sentenced to pay a fine of ₹4,50,00,000/- (Rupees Four Crore and Fifty Lakhs Only). In default to pay fine, accused No.2 to 4 shall undergo simple imprisonment for a period of two years.
Out of the realized fine amount, a sum of ₹4,49,90,000/- (Rupees Four Crore Forty Nine Lakhs and Ninety Thousand Only) is ordered to be paid to the complainant as compensation and the remaining sum of ₹10,000/- shall be remitted to State.
Bail bonds executed by accused No.2 to 4 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 14th day of November, 2025) Digitally signed SANTHOSH by SANTHOSH S KUNDER S KUNDER Date: 2025.11.14 17:23:20 +0530 ( SANTHOSH S.KUNDER ) XIV Addl. C.J.M., Bengaluru.
44C.C.No.53918/2023 KABC0C0126242023 ANNEXURES List of witnesses examined for the Complainant:
PW.1 Mr.Bimlendu Kumar List of documents marked for the Complainant:
Ex.P.1 to 3 Cheques Ex.P.1(a) to Signatures of the accused 3(a) Ex.P.4 to 6 Bank endorsements-3 Ex.P.7 Copy of legal notice dated 04.10.2021 Ex.P.8 to Postal receipts 14 Ex.P.15 to Postal acknowledgment cards 18 Ex.P.19 to Postal track consignment reports 22 Ex.P.23 Letter dated 15.11.2021 addressed to Post Master, Shanthinagar post office, Bengaluru Ex.P.24 Original Master Finance Agreement dated 22.02.2020 Ex.P.25 to Reply issued by Inspector of Posts, office 27 of CPM, Bengaluru with copy of delivery manifesto Ex.P.28 Facebook profile of DW-1 Ex.P.29 List of Directors of companies obtained from Ministry of Corporate Affairs Ex.P.30 Copy of board resolution of accused No.1 dated 18.12.2019 45 C.C.No.53918/2023 KABC0C0126242023 List of witness examined for the defence:
DW.1 Gopal Pandurang Shinde List of documents marked for the defence:
Ex.D.1 Copy of opinion dated 18.01.2017 given by the complainant Ex.D.2 to Certified copies of sale deeds 5 Ex.D.6 OP chit/Medical prescription (in Vernacular) Digitally signed by SANTHOSH SANTHOSH S KUNDER S KUNDER Date: 2025.11.14 17:23:12 +0530 XIV Addl.C.J.M., Bengaluru.