Bangalore District Court
Sri. P.Jogeshwar Rao vs In Both 1) M/S. Phoenix Motors on 20 April, 2022
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 20 th day of April 2022
Present : Sri Siddaramappa Kalyan Rao, B.A., LL.B.,
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
COMMON JUDGMENT IN
CC.NO.21036 OF 2015 AND CC.NO:21037OF 2015
COMPLAINANT Sri. P.Jogeshwar Rao,
S/o. Late. R. Ramarao,
IN BOTH THE CASES:-
Residing at: Lakshmi Nilayam,
No:536, 1st "D" Cross,
Mathikere,
Bengaluru - 560 054.
(By. Sri. M.A.Rajendra., Advocate)
- Vs -
ACCUSED IN BOTH 1) M/s. Phoenix Motors,
No:2, Visweshwarayya
THE CASES :-
Industrial Area,
Opposite Shell Petrol Bunk,
Mahadevapura Post,
Bengaluru - 48.
Represented by its Partners
2) Sri. B. Thirupathi Reddy.
3) Sri. B. Srinivasa Reddy,
S/o. Thirupathi Reddy
Both are residing at:-
No:4, AECS Layout,
Behind RMV Hospital,
Sanjay Nagar,
2
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Bengaluru - 560 094.
(By. Sri. B.R.Sridhar and
Umesh.K., Advocates)
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
******
J U D GM EN T
This complaint is filed under section 200 of Cr.P.C for
the offence punishable under section 138 of Negotiable
Instruments Act.
2. The brief facts of the complainant in
CC.No:21036/2015 is that:-
Accused No.1 is a partnership firm and Accused No.2
and 3 are the partners of Accused No.1 firm and in-charge
of the day to day affairs of Accused No.1 firm. Accused No
2 and 3 are father and son respectively .
3. It is further contended that to meet some urgent
financial commitments, Accused No.2 and 3 approached
3
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
the complainant on 30/05/2013 seeking financial
assistance of Rs.13,38,000/-. In view of the difficulties
expressed by accused persons, with an intention to help
them and to bail them out from their commitments,
complainant lent a sum of Rs.13,38,000/- on 30/05/2013
and Accused No.2 and 3 have executed consideration
receipt. Accused No.2 and 3 have agreed to repay the same
on or before 30/06/2013. The amount which was kept for
construction of his house, the said amount is given to
Accused No.2 and 3 and the Accused No.2 and 3 have
promised to complainant to repay the said amount on or
before 30/06/2013. On the same day Accused No.2 and 3
have given a signed cheque bearing No:908714 dated
30/06/2013 drawn on Axis Bank, EPIP Branch, Bengaluru
for a sum of Rs.13,38,000/- towards discharge of their
debt as per their promise and repayment of above said
amount.
4. It is further contended that after lapse of one
month, complainant requested accused to return the
amount of Rs.13,38,000/-. After lot of persuasion,
4
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Accused No.2 and 3 told to complainant to present the
cheque bearing No:908714 dated 30/06/2013 drawn on
Axis Bank. Hence, believing the words of both Accused
No.2 and 3, complainant presented the said cheque
through his Banker Vijaya Bank Ltd., Jalahalli Branch,
Bengaluru on 22/08/2013., but it was dishonoured for the
reasons "Funds insufficient" vide memo dated
23/08/2013.
5. It is further contended that thereafter the
complainant got issued legal notice to the accused on
21/09/2013. Accused No.1 received legal notice on
23/09/2013. The legal notice sent to the Accused No.2
and 3 were returned as "Intimation delivered and not
claimed" on 24/09/2013. Hence, the present complaint is
filed on 05/11/2013.
6. The brief facts of the complainant in
CC.No:21037/2015 is that:-
Accused No.1 is a partnership firm and Accused No.2
and 3 are the partners of Accused No.1 firm and in-charge
5
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
of day to day affairs of Accused No.1 firm. Accused No.2
and 3 are father and son respectively.
7. It is further contended that to meet some urgent
financial commitments, Accused No.2 and 3 approached
the complainant on 30/05/2013 seeking financial
assistance of Rs.10,00,800/-. In view of the difficulties
expressed by accused persons, with an intention to help
them and to bail them out from their commitments,
complainant agreed to extend them a hand loan of
Rs.10,00,800/- and accused received Rs.10,00,800/- on
30/05/2013 and Accused No.2 and 3 have executed
consideration receipt. Accused No.2 and 3 have agreed to
repay the same on or before 30/06/2013. The
complainant has kept the amount for house construction
purpose and Accused No.2 and 3 have promised to repay
the said amount on or before 30/06/2013. Believing the
words of accused, complainant gave them an amount of
Rs.10,00,800/- and at that time Accused No.2 and 3 have
issued a cheque bearing No:908715 dated 30/06/2013
drawn on Axis Bank, EPIP Branch, Bengaluru for a sum of
6
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Rs.10,00,800/- for discharge of their debt and for
repayment of the amount.
8. It is further contended that after lapse of one
month from 30/06/2013, complainant requested Accused
No.2 and 3 to return the amount of Rs.10,00,800/- which
complainant required for his house construction work.
Accused could not give positive response for return of
amount and after much persuasion, Accused No.2 and 3
told to complainant to present the cheque which was
issued on 30/05/2013. Believing the words of Accused
No.2 and 3, complainant presented the said cheque
through his Banker Vijaya Bank Ltd., Jalahalli Branch,
Bengaluru on 29/08/2013., but it was dishonoured for the
reasons "Funds insufficient" vide memo dated
30/08/2013.
9. It is further contended that thereafter the
complainant got issued legal notice to the Accused No.1 to
3 on 28/09/2013. The legal notice sent to Accused No.1
by RPAD was received on 03/10/2013. The legal notice
7
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
sent to Accused No.2 and 3 by RPAD returned as
"Intimation delivered and not claimed" on 30/09/2013 by
Accused No.2 and 3. Accused No.2 and 3 have not replied
to the notice nor paid the amount. Hence, the present
complaint is filed on 05/11/2013.
10. After filing of the complaint in both
CC.No:21036/2015 and CC.No:21037/2015, this court has
taken the cognizance of offence under section 138 of N.I
Act and registered a Private complaint. After recording the
sworn statement of the complainant in both the cases i.e.,
CC.No:21036/2015 and CC.No:21037/2015, this court has
registered the criminal case against the Accused No.1 to 3
for the offence punishable under Section 138 of Negotiable
Instruments Act. Summons issued to the Accused No.2
and 3 in both the cases. The Accused No.2 and 3 appeared
through their counsel and enlarged on bail. There
afterwards, plea of accusation was read over and explained
to Accused No.2 and 3 in the language known to them on
05/04/2016 in CC.No:21036/2015 and on 03/02/2016 in
8
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
CC.No:21037/2015 and in both the cases they pleaded not
guilty and claims to be tried.
11. In order to prove the case, the complainant in
CC.No:21036/2015 is examined as PW-1 and got marked
the documents from Ex.P.1 to Ex.P.12 documents.
12. In order to prove the case, the complainant in
CC.No:21037/2015 is examined as PW-1 and got marked
the documents from Ex.P.1 to Ex.P.13 documents.
13. When the case was posted for recording of
statement of the accused under section 313 of Cr.P.C. in
both the cases i.e, CC.No:21036/2015 and
CC.No:21037/2015 on 30/01/2020, the Accused No.2
and 3 have denied the entire incriminating evidence
appearing against them. The Accused No.3 has led his side
defence evidence in CC.No:21036/2015 and got marked
documents from Ex.D.1 to Ex.D.71(a) documents in
CC.No:21036/2015 and filed a memo in
9
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
CC.No:21037/2015 on 28/09/2021 to adopt the same in
CC.No:21037/2015, hence the same is placed on record.
14. It is the specific defence of the Accused No.2 and
3 that complainant is doing Money Lending business.
Accused No.3 has sought hand loan of Rs.10,00,000/-.
Complainant initially agreed to give Rs.10,00,000/- as
hand loan with interest at the rate of 2% per month. Later
on, complainant insisted for 3% interest and complainant
forced Accused No.3 to enter into agreement dated
22/02/2012. Complainant gave only Rs.8,50,000/- and
deducted Rs.1,50,000/- for interest portion and collected 2
cheques bearing No:805298 and No:805296 of Axis Bank
Ltd for Rs.6,00,000/- each. It is the further defence of the
Accused No.2 and 3 that for the purpose of marriage of
Accused No.3 obtained loan of Rs.10,00,000/- and
complainant obtained loan agreement dated 29/03/2012
for Rs.16,80,000/-, whereas the principal amount was only
Rs.10,00,000/-. When accused questioned for the above
said agreement for Rs.16,80,000/-, complainant
threatened to kill him. Accused No.3 paid interest of
10
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Rs.28,19,620/- for just principal amount of Rs.8,50,000/-.
It is the further defence of the accused that complainant
has affixed the signature of Accused No.2 and 3 on cheque
and also on agreement and complainant has taken
exorbitant interest dishonestly and holding a cheque for
Rs.13,38,000/- and another cheque for Rs.1,000,800/-.
Hence, the above said Ex.P.1 cheque in CC.No:21036/2015
and Ex P1 cheque in CC.No:21037/2015 are not issued for
discharge of debt or liability and they have been taken by
threatening to both Accused No.2 and 3 and the writings
on Ex.P.1 cheque in both the cases does not belong to
both the accused No.2 and 3, and the complainant has
filled the cheque according to his convenience and filed a
false case against the accused persons and the notice
issued by complainant is not served on them. Hence, both
the complaints be dismissed.
15. Since this complaint is pending between the
same parties, hence, in order to save public time and
multiplicity of proceedings, CC.No:21036/2015 and
CC.No:21037/2015 are clubbed together for disposal by
11
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
way of Common Judgment. Later on, the counsel for
accused has cross-examined PW-1 in CC.No:21036/2015,
and in the same fashion he has cross-examined PW-1 in
CC.No:21037/2015. Further, D.W.1 is cross-examined by
counsel for complainant in CC.No:21036/2015 and the
same cross-examination has been adopted in
CC.No:21037/2015.
16. Heard both sides. The counsel for accused filed
notes of arguments and also filed citations. The learned
counsel for complainant also filed citations. Perused the
entire oral and documentary evidence placed on record.
17. The following points arose for my consideration:
1. Whether the complainant proves that
there is existence of legally recoverable
debt in both CC.No:21036 of 2015 and
CC.No:21037 of 2015 as stated in the
complaint?
2. If so, whether the complainant proves
that Ex.P.1 cheques in both
CC.No:21036 of 2015 and CC.No:21037
of 2015 are issued towards discharge of
legally recoverable debt by the accused
No.2 and 3?
12
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
3. Whether the complainant proves that
the accused No.2 and 3 have committed
an offence under Section 138 of
Negotiable Instruments Act in both
CC.No:21036 of 2015 and CC.No:21037
of 2015?
4. What order?
18. My findings to the above points are as under:
Point No.1 : In the affirmative;
Point No.2 : In the affirmative;
Point No.3 : In the Affirmative
Point No 4 : As per final order,
for the following:
R EAS O N S
POINTS NO.1 AND 2:
19. These points are taken together for common
discussion in order to avoid repetition of facts in both the
cases.
20. In both the cases, it is the specific case of the
complainant that accused No.1 is a partnership firm and
Accused No.2 and 3 are the partners of Accused No.1 firm
who are the father and son respectively and in-charge of
13
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
the day to day affairs of Accused No.1 firm. The Accused
No.2 and 3 to meet some urgent financial commitments
have approached the complainant on 30/05/2013 seeking
financial assistance of Rs.13,38,000/- and Rs.10,00,800/-
in CC.No:21036 of 2015 and CC.No:21037 of 2015
respectively. Hence, in view of the difficulties expressed by
Accused No.2 and 3, complainant with an intention to help
both Accused No.2 and 3 and to bail them out from their
commitments, complainant had kept an amount of
Rs.23,00,000/- in his house for construction and hence
from the said amount which was kept in his house,
complainant gave an amount of Rs.23,38,800/- to accused
No.2 and 3 on 30/05/2013 and on the same day both
accused persons assured to complainant that they will
repay the said amount on or before 30/06/2013. On the
same day, they issued Ex.P.1 cheque in CC.No:21036 of
2015 and another Ex.P.1 cheque in CC.No:21037 of 2015
for a sum of Rs.13,38,000/- and Rs.10,00,800/- in
CC.No:21036/2015 and CC.No:21037/2015 respectively.
They have got executed consideration receipt in favour of
complainant promising to repay the said amount by
14
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
30/06/2013. Hence, after lapse of one month, when
complainant requested to both Accused No.2 and 3 for
return of amount of Rs.23,38,800/- after lapse of one
month, accused No.2 and 3 told to complainant to present
Ex.P.1 cheque in CC.No:21036/2015 and also Ex.P.1
cheque in CC.No:21037/2015 i.e., for a total sum of
Rs.23,38,800/- and when the above said 2 cheques came
to be dishonoured as per Ex.P.2 endorsement in both the
cases for "Funds insufficient" on 23/08/2013 and
30/08/2013 in CC.No:21036/2015 and
CC.No:21037/2015 respectively.
21. Hence to substantiate the above said contention
the complainant is examined as PW-1 in both
CC.No:21036/2015 and CC.No:21037/2015. On the other
hand accused is also examined as D.W.1 and has got
marked Ex.D.1 to Ex.D.71(a) documents in
CC.No:21036/2015 and the same is adopted in
C.C.No:21037/ 2015.
15
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
22. The documents marked in CC.No:21036/2015
from Ex.P.1 to Ex.P.12 are as follows:-
Ex.P.1 is the cheque of Axis Bank Ltd., Bengaluru-
66 dated 30/06/2013 bearing No:908714 for a sum of
Rs.13,38,000/- issued to P.Jogeshwar Rao i.e., the
complainant and it is issued by Phoenix Partner i.e.,
accused No.2 and 3. Ex.P.2 is the memo of Vijaya Bank
dated 23/08/2013 with respect to cheque bearing
No:908714 for a sum of Rs.13,38,000/- and the above said
cheque is came to be dishonored for the reasons "Funds
insufficient". Ex.P.3 is office copy of legal notice issued to
Accused No.1 to 3 dated 21/09/2013. Ex.P.4 is the
representation given to Post Master, Vijayanagar Post,
Bengaluru dated 21/05/2015. Ex.P.5 is the endorsement
dated 03.06.2015 issued by Sr. Superintendent of Post
that registered letter sent to Accused No.1 to 3 is settled
with information as "Delivered" on 23/09/2013. Ex.P6 is
the agreement dated 18.05.2013. Ex.P.7 to Ex.P.9 are the
postal receipts sent to accused No.1 to 3 address dated
21/09/2013. Ex.P.10 is the copy of Postal
16
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
acknowledgement dated 21/09/2013. Ex.P.11 and
Ex.P.12 are the copies of postal covers of address of
Accused No.3 and Accused No.2 dated 01/10/2013 and
03/10/2013 respectively and on the above said letter cover
it has been endorsed as "Not claimed".
23. On the other hand, in CC.No:21036/2015
Accused No.3 is examined as D.W.1 and has marked
documents from Ex.D.1 to Ex.D.71(a).
Ex.D.1 is the charge sheet filed in Crime
No:473/2013 by Yeshwanthpur Police for the offence
punishable under Section 420, 506 of IPC and under
Section 28, 38 of Karnataka Money Lenders Act and also
under Section 3 and 4 of Karnataka Prohibition of
Charging Exorbitant Interest Act 2004. Ex.D.2 is the
seizure panchanama in CC.No:6744/2014, wherein
Sl.No.1 to 35 materials are seized by police and Sl.No.7 is
the cheque bearing No:908714 for a sum of
Rs.13,38,000/-. Ex.D.3 is the certified copy of FIR in
Crime No:473/2013 filed by Accused No.3 against
17
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
complainant for the offence punishable under Section 506,
420 of IPC and under Section 28, 38 of Karnataka Money
Lenders Act and also under Section 3 and 4 of Karnataka
Prohibition of Charging Exorbitant Interest Act 2004.
Ex.D.4 is the order sheet wherein the complainant got
released Ex.P.1 cheque and other documents on
01/10/2014. Ex.D.5 is the charge sheet filed against the
complainant at Yeshwanthpur Police station. Ex.D.6 is the
requisition filed by Yeshwanthpur Police station seeking
police custody of complainant in Crime No:173/2013.
Ex.D.7 is the arrest intimation issued to wife of
complainant by name Smt. Vidya Rao. Ex.D.8 is the PF
Form with regard to seizure of Rs.100/- stamp paper from
complainant in Crime No:473/2013, PF.No:171/2013.
Ex.D.9 is the PF Form in Crime No:473/2013 seized form
complainant house. Ex.D.10 is the statement of
Ranganath dated 03/10/2013 with regard to charging of
exorbitant interest. Ex.D.11 is the statement of Mahendra
dated 03/10/2013. Ex.D.12 is the statement of Joseph
John D'Souza dated 03/10/2013. Ex.D.13 is the
statement of Rangappa dated 03/10/2013. Ex.D.14 is the
18
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
statement of Ananthraju dated 01/10/2013. Ex.D.15 is the
statement of Jogeshwar Rao dated 01/10/2013. Ex.D.14
is the letter addressed by P.S.I. of Yeshwanthpur Police
station to the Director of Finance to furnish the
information of license with regard to running of finance by
complainant dated 07/10/2013. Ex.D.15 is the complaint
lodged by Accused No.3 against the complainant before P.I.
of Yeshwanthpur Police station. Ex.D.16 is the certified
copy of cheque of Axis Bank Ltd issued by Accused No.2
and 3 in favour of complainant for Rs.1,00,000/-. Ex.D.17
is the blank stamp paper dated 08/08/2013 of Rs.100/-
wherein the first party is Accused No.2 and 3 and second
party is complainant. Ex.D.18 is the blank stamp paper
dated 08/08/2013 and it is the same as Ex.D.17. Ex.D.19
is the blank cheque of Dhanalakshmi Bank in
CC.No:6744/2014. Ex.D.20 is the cheque of Vijaya Bank
issued by J.M.Traders in favour of complainant for a sum
of Rs.1,00,000/-. Ex.D.21 is the cheque of Vijaya Bank
issued by J.M.Traders in favour of complainant for a sum
of Rs.98,000/-. Ex.D.22 to Ex.D.30 are the blank signed
cheques of various persons. Ex.D.31 is the cheque for
19
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Rs.50,000/- of Syndicate Bank bearing No:194684 dated
03/08/2011 in CC.No:6744/2014. Ex.D.32 is the blank
signed cheque of Syndicate Bank, Yeshwanthpur Branch,
Bengaluru bearing No:042401. Ex.D.33 is the blank
signed cheque of Syndicate Bank, Yeshwanthpur Branch,
Bengaluru bearing No:042402. Ex.D.34 is the cheque
issued by Stag Exporters of cheque bearing No:217247
issued by Vijaya Bank for a sum of Rs.247/- dated
14/03/2011. Ex.D.35 is the blank signed cheque for a
sum of Rs.1,00,000/- bearing No:037187. Ex.D.36 and
Ex.D.37 are the blank signed cheques of Vijaya Bank,
Jalahalli Branch, Bengaluru bearing No:211802 and
No:662612 respectively. Ex.D.38 is the receipt issued by
Rangaswamy for a sum of Rs.1,21,000/- dated
01/08/2006. Ex.D.39 is the blank stamp paper for a sum
of Rs.100/-. Ex.D.40 is the blank stamp paper for a sum
of Rs.100/-. Ex.D.41 to Ex.D.58 are the blank On-demand
Promissory Note and consideration receipts. Ex.D.59 and
Ex.D.60 are the blank stamp paper purchased in the name
of M.Nanjundaswamy and Mrs. Radha dated 05/01/2009.
Ex.D.61 and 62 are the blank signed cheque of HDFC
20
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Bank bearing No:140112 and 198868 respectively.
Ex.D.63 to Ex.D.66 are the sale agreement dated
06/02/2013, 15/04/2011, 02/09/2011 and 06/02/2013.
Ex.D.67 is the blank stamp paper for a sum of Rs.100/-
dated 22/03/2011. Ex.D.68 is the application filed by one
Mahendran seeking hand loan of Rs.1,98,000/-. Ex.D.69 is
the blank signed cheque issued by Surekha Industries of
Syndicate Bank, Jalahalli Branch, Bengaluru. Ex.D.70 is
a blank signed cheque of Syndicate Bank, Jalahalli
Branch, Bengaluru.
24. The documents marked in CC.No:21037/2015
from Ex.P.1 to Ex.P.13 are as follows:-
Ex.P.1 is the cheque of Axis Bank Ltd., Bengaluru-
66 dated 30/06/2013 bearing No:908715 for a sum of
Rs.10,00,800/- issued to P.Jogeshwar Rao i.e., the
complainant and it is issued by Phoenix Partners i.e.,
accused No.2 and 3. Ex.P.2 is the memo of Vijaya Bank
dated 30/08/2013 with respect to cheque bearing
No:908715 for a sum of Rs.10,00,800/- and the above said
21
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
cheque is came to be dishonored for the reasons "Funds
insufficient". Ex.P.3 is office copy of legal notice issued to
Accused No.1 to 3 dated 28/09/2013. Ex.P.4 to Ex.P.6 are
the postal receipts. Ex.P.7 is the copy of Postal
acknowledgement of Accused No.1 address. Ex.P.8 is the
copy of letter cover of Accused No.3 address dated
30/09/2013 wherein it is endorsed as "Not claimed".
Ex.P.9 is the copy of letter cover of Accused No.2 address
dated 30/09/2013 wherein it is endorsed as "Not
claimed". Ex.P.10 is the endorsement issued by
Superintendent of Post to complainant Jogeshwar Rao,
wherein the acknowledgement Transaction
No.133542381IN dated 28/09/2013 is settled with
information as "Time barred complaint". Ex.P.11 is the
endorsement issued by Superintendent of Post to
complainant Jogeshwar Rao dated 04/06/2015 wherein
the letter with acknowledgement having transaction No:RK
133542395 IN on 28/09/2013 is settled with following
information "Time barred". Ex.P.12 is the endorsement
issued by Superintendent of Post to complainant
Jogeshwar Rao dated 03/06/2015 wherein it is mentioned
22
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
as "Transaction No:133542404 is settled with "Delivered"
on 03/10/2013. Ex.P.13 is the agreement dated
18/05/2013 taken place between Thirupati Reddy and
Sreenivas i.e., Accused No.2 and 3 acting as first party and
B.Jogeshwar Rao i.e complainant as second party.
25. On the other hand, Accused No.3 is examined
as D.W.1 in CC.No:21037/2015 and has filed a memo
submitting he will adopt the documents marked in
C.C.No:21036/2015.
26. To substantiate the above said contention, the
complainant is examined as PW-1 and has reiterated the
complaint averments in his affidavit evidence in both the
cases. The complainant during his cross-examination has
deposed stating that he has given a total amount of
Rs.23,38,800/- i.e., both the amounts in 2 cases by way of
cash in favour of Accused No.2 and 3. He further deposed
that the above said amount was kept in his house. The
amount of Rs.23,38,800/- was kept in his house for
construction of his house and he has not shown with
23
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
regard to lending of money to Accused No.2 and 3 in his IT
returns. He has further denied to the suggestion that
agreement in CC.No:21037/2015 has been obtained by
threatening Accused No.2 and 3. The above said
suggestion cannot be accepted since as per Ex.D.1
complaint is lodged by Accused No.3 against the
complainant when on first occasion Accused No.2 and 3
have obtained an amount of Rs.10,00,000/- for interest at
the rate of 2%, by deducting Rs.1,50,000/- only
Rs.8,50,000/- has been given in favour of both Accused
No.2 and 3 and by threatening Accused No.2 and 3
complainant has taken 2 post dated cheques bearing
No:805298 and No:805296 for a sum of Rs.6,00,000/-
each of Axis Bank Ltd i.e., totally for a sum of
Rs.12,00,000/- and when this event has already taken
place prior to the present transaction, then the agreement
executed in both the cases marked at Ex P6 and P13 are
by threatening cannot be accepted. Further, PW-1 during
his cross-examination, a suggestion was put forth stating
that a criminal case is registered against the complainant,
for this suggestion, PW-1 has stated that after receiving
24
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
notice by accused , criminal case is registered against him.
Hence, to substantiate the above said contention that a
criminal case is registered after filing of the present
complaint, on perusal of Ex.P.3 which is the legal notice
which is issued by counsel for complainant to accused
No.1 to 3 is dated 28/09/2013, the above said notice
which is issued to accused No.1 to 3 has been endorsed by
the accused No.1 firm as served on 23/09/2013 and it has
been not claimed by Accused No. 3 as per Ex.P.8 and
Ex.P.9 in C.C.No21037/15 which is dated 30/09/2013 is
not claimed and the complaint has been lodged by Accused
No.3 against the complainant in Crime No:473/2013 as per
Ex.D.3 dated 01/10/2013 for the offence punishable under
Section 506 and 420 of IPC, under Section 28 and 38 of
Karnataka Money Lenders Act and Section 3 and 4 of
Karnataka Prohibition of Charging Exorbitant Interest Act,
2004 i.e., soon after legal notice is issued by counsel for
complainant, it is came to be served on Accused No.1 as
per Ex.P.9, and the very next day complaint has been filed
by Accused No.3 against the complainant as per Ex.D.3.
That means accused No 3 has not taken any steps against
25
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
the complainant when he has availed the amount from the
complainant. Even DW-1 during his cross-examination
states that by threatening to both accused No 2 and 3,
complainant has taken Ex.P.6 agreement which has been
executed on 18/05/2013 in CC.No:21036/2015 and
Ex.P.13 in CC.No:21037/2015. On close scrutiny of the
above said contents of agreement marked at Ex.P.6 in
CC.No:21036/2015 and Ex.P.13 in CC.No:21037/2015, on
perusal , it goes to show that both agreements have been
executed by Accused No.2 and 3 on 18/05/2013 for receipt
of Rs.13,38,000/- and Rs.10,00,800/- and for discharge of
the same as security purpose has issued Ex.P.1 cheque in
both the cases for repayment towards complainant.
27. Moreover, D.W.1 during his cross-examination
admits his signature is appearing at Ex.P.6 and Ex.P.13 in
CC.No:21036/2015 and CC.No:21037/2015 that means
the entire contents of both the agreements at Ex.P.6 and
Ex.P.13 in CC.No:21036/2015 and CC.No:21037/2015 are
binding on Accused No.3. Moreover D.W.1 has also
admitted that his signature is appearing at Ex.P.6 and
26
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Ex.P.13 and only takes the contention that by threatening
to them, complainant has taken the signature of the
Accused No.2 and 3. The above said contention of the
Accused No.2 and 3 cannot be accepted, since in the
Ex.D.1 which is the charge sheet lodged by police against
the complainant, he admits with regard to receipt of
Rs.10,00,000/- from the complainant, but takes a
contention that complainant has deducted Rs.2,00,000/-
from Accused No.2 and 3 and paid only Rs.8,00,000/- in
favour of Accused No.2 and 3 and not given the entire
amount of Rs.10,00,000/- as contended by the
complainant. Hence, the above said contention cannot be
accepted since they have kept quite for a period of 4
months and only when notice is came to be served on
accused No.1 to 3 as per Ex.P.8 to Ex.P.11,i.e when it has
came to the knowledge of both Accused No.2 and 3 ,then
only the above said complaint against the complainant as
per Ex.D.3 is came to be registered for the offence
punishable under Section 506 and 420 of IPC and also
under Section 28, 38 of Karnataka Money Lenders Act and
27
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
also under Section 3 and 4 of Karnataka Prohibition of
Charging Exorbitant Interest Act 2004.
28. Further, the accused No.3 who is examined as
D.W.1 in CC.No:21036/2015 admits during his cross-
examination that he is running Phoenix Motors firm which
is a partnership firm and Accused No.2 is his father and
Accused No.3 is the son of Accused No.2 and they are
running the partnership business in the address
mentioned at No.2, Visweshwaraiah Industrial Area,
Opportunity to Shettl Petrol Bunk. This itself goes to show
that the notice issued by complainant at Ex.P.3 is duly
served. That means the complainant has complied Section
138(b) of N.I.Act. Further, the accused has taken
contention that by threatening Accused No.2 and 3
complainant has taken Ex.P.1 cheque in both the cases. If
that is the defence of both accused, then nothing prevented
both the accused No.2 and 3 to give representation to the
Bank to not to honour Ex.P.1 cheques in both the cases,
but no any such representation have been given by the
accused persons before the Bank to not to honour the
28
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
cheques, hence in view of non-taking of the above said
steps, the above said defence also cannot be accepted.
Moreover, the endorsement issued by the Bank as per
Ex.P.2 in both the cases is for "Funds insufficient". That
means no any representation has been given to the Bank
by Accused No.2 and 3 for non-honouring of the cheques.
This itself goes to show that complainant has not taken
Ex.P.1 cheques in both the cases by threatening the
Accused No.2 and 3, but it is issued towards discharge of
liability which has been obtained by both Accused No.2
and 3 for improvement of their business and also for
performance of marriage expenses of Accused No.3.
Moreover, accused No.3 who is examined as D.W.1, at Page
No.12 during his cross-examination from 1 st line to 5th line
admits that Ex.P.1 cheque belongs to his account and also
admits that his signature is appearing at Ex.P.1(a). But he
says that he has signed to the cheque when it was in
blank. That means the other contents in both the cases
have not been filed by Accused No.2 and 3. If that is the
defence of Accused No.2 and 3, then nothing prevented
them to refer Ex.P.1 cheque in both the cases to Hand
29
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Writing Expert opinion to substantiate that Ex.P.1 cheques
are not belonging to the hand writing of the accused no 2
and 3. Hence, in view of not taking of any steps by both
Accused No.2 and 3, this court has to give a finding based
on the available materials before the court. Further, on
close comparison of the signature and the writings of both
the cheques, it seems to be of the same hand writing and
the above said defence taken by the accused is not
substantiated by any documentary evidence. Further, the
accused No 3 admits their signature is appearing at Ex.P.6
and Ex.P.13 agreement in both the cases. That means
they have executed documents in both the cases in favour
of complainant with regard to obtaining of amount of
Rs.13,38,000/- and Rs.10,00,800/- and for discharge of
the same, as security towards existing liability, both
accused have issued Ex.P.1 cheque in both the cases in
favour of complainant. Further, a question was put forth to
the D.W 1 stating that why no complaint is lodged against
the complainant from 30/05/2013 to 01/10/2013 for this
question, D.W 1 has answered stating that after issuance
of notice, complaint is lodged against complainant, that
30
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
means D.W.1 has given an evasive answer and if at all
complainant has threatened on 30/05/2013 for taking of
Ex.P.1 cheque in both the cases, the complaint would have
been lodged on the next date, but it is not lodged on the
next day, but it is filed as per Ex.D.3 which is dated
01/10/2013 i.e., only after the legal notice is came to be
served on Accused No.1 firm. That means after that, the
above said criminal case is filed against the complainant at
Ex.D.1 to Ex.D.71. Moreover Ex.D.1 is only the charge
sheet filed against complaint under various provisions and
no charges appearing against the complainant are proved
before the competent court of law. Hence, on perusal of
the above said admission of the accused during his cross-
examination and also on perusal of the documents
produced by the complainant and also the oral evidence of
the complainant, it goes to show that for the business
commitments of Accused No.2 and 3 and also for the
performance of marriage of Accused No.3, both accused
have obtained loan amount of Rs.13,38,000/- and
Rs.10,00,800/- in both the cases and for discharge of the
same, Accused No.2 and 3 have issued Ex.P.1 cheque in
31
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
both the cases. Though, the evidence of the complainant
in the above said case has been rebutted by the accused by
cross-examining PW-1 and also by leading defence
evidence, but it is not convincing and trustworthy and it is
just a plausible explanation given by the accused stating
that the complainant by threatening both Accused No.2
and 3 have taken Ex.P.1 cheques in both the cases and the
legal notice issued by the complainant is not served upon
them, but it is served as per Ex.P.10 to Ex.P.12 which is
issued at Ex.P.3. Hence, in view of my above discussions, it
can be said that complainant has proved that Accused
No.2 and 3 have issued Ex.P.1 cheques in both the cases
in CC.No:21036/2015 and CC.No:21037/2015 for
discharge of liability, in view of obtaining of loan by
Accused No.2 and 3 for improvement of their business as
well as to meet the marriage expenses of Accused No.3
and the above said debt obtained by the Accused No.2 and
3 is a legally enforceable debt. Hence, in view of my above
discussion, I answer Point No.1 and 2 in the "Affirmative".
32
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
29. The learned counsel for complainant has relied
upon the following citations:-
i) 2001 Crl.L.J. 4647 in Hiten P.Dalal Appellant V/s.
Bratindranath Banerjee Respondent.
(A) Special Court (Trial of Offences relating to
transactions in Securities) Act (41 of 1992),
S.3(2) - Special Court - Jurisdiction - Not
limited to offences committed between 1-4-
1991 and on or before 6-6-1992 - Such period
specified in S.3(2) relates to transaction in
securities and not to offence.
(B) Negotiable Instruments Act (26 of 1881) -
S.139 - Dishonour of cheque - Presumption
that cheque was drawn for discharge of liability
of drawer - Is presumption of law - Ought to be
raised by court in every case - Rebuttal
evidence - Nature - Mere plausible explaination
is not sufficient - Proof of explanation is
necessary. Evidence Act (1 of 1872), S.114,
S.101, S.102, S.103, S.104.
Section 139 provides that "it shall be
presumed, unless the contrary is proved that
the holder of a cheque received the cheque, of
33
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
the nature referred to in Section 138 for
discharge of other liability". The effect of these
presumptions is to place the evidential burden
on the accused of proving that the cheque was
not received by the complainant towards the
discharge of any liability. Because both
Sections 138 and 139 require that the Court
"shall presume" the liability of the drawer of the
cheques for the amount for which the cheques
are drawn, as noted in its obligatory on the
court to raise this presumption in every case
where the factual basis for the raising of the
presumption had been established.
The above said citation rightly applies to the facts of the
present case. Though the counsel for accused has raised a
defence stating that the complainant is doing money
lending business and accused has initially sought hand
loan of Rs.10 lakhs and complainant has agreed to lend
Rs.10 lakhs at 2% per month, later on, complainant
insisted for 3% interest and complainant forced Accused
No.3 to enter into agreement dated 22/02/2012 and
complainant gave only Rs.8,50,000/- after deducting
Rs.1,50,000/- for interest portion and obtained two
34
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
cheques bearing No: 805298 and 805296 of Axis Bank Ltd
as when the previous transaction has been taken place and
if complainant has threatened to both accused No.2 and
3, hence there was not at all any necessity to enter into the
present transaction. Hence, it seems that the above said
defence taken by the accused is just a plausible
explanation given by him only to avoid from payment of
cheque amount in favour of the complainant. Though it
has been contended by the accused that he has paid
interest of Rs.28,19,620/- in favour of complainant for just
principal amount of Rs.8,50,000/-, no any documents
have been produced before this court to substantiate the
above said contention and the only document which has
been produced to substantiate the above said contention is
Ex.D.71 which is the receipt alleged to be executed by the
complainant and the above said alleged receipt is dated
prior to the present transaction that is dated 10/12/2012
and the present transaction is dated 30/05/2013. Hence,
there is no any connection between the present
transaction and the alleged transaction at Ex.D.71 dated
10/12/2012.
35
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
ii) 2019 (2) Kar. L.R 717 (SC) of Hon'ble Supreme
Court of India in Uttam Ram V/s. Devinder Singh
Hudan and another.
Negotiable Instruments Act, 1881 - Sections
118(a), 138 and 139 - Dishonoure of cheque -
Statutory presumption - Rebuttal of - Once the
cheque is proved to be issued it carries
Statutory presumption of consideration - Then
the onus is on the respondent to disprove the
presumption at which the respondent has
miserably failed - Statement of accused
u/s.313 of the Cr.P.C is only to the effect that
the cheque has been misused - There is no
stand in the statement that the cheque book
was stolen - Statement of accused u/s.313 is
not a substantive evidence of defence of the
accused but only an opportunity to the accused
to explain the incriminating circumstances
appearing in the prosecution case of accused -
Therefore, there is no evidence to rebut the
presumption that the cheque was issued for
consideration - The present appeal is allowed,
order passed by the High Court is set aside -
The respondent is held guilty of dishonour of
cheque for an offence u/s.138 of the Act.
36
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Section 139 provides that "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
discharge of other liability". The effect of these
presumptions is to place the evidential burden
on the accused of proving that the cheque was
not received by the complainant towards the
discharge of any liability. Because both
Sections 138 and 139 require that the Court
"shall presume" the liability of the drawer of the
cheuqes for the amount for which the cheques
are drawn, as noted in its obligatory on the
court to raise this presumption in every case
where the factual basis for the raising of the
presumption had been established.
The above said citation also rightly applies to the facts of
the present case. Though in the present case, it has been
rebutted by the accused by cross-examining PW-1 and also
by leading defence evidence, in the present case the
accused has admitted that Ex.P.1 cheque in both the cases
belongs to him and the signature is also appearing at
Ex.P.1(a) in both the cases. Moreover, in the 313
37
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
statement, there is no any stand taken by the accused
under section 313 of Cr.P.C and the defence which has
been taken by the accused is just a plausible explanation
and it is not proved by production of any documentary
evidence.
iii) ILR 2012 KAR 4815 in Sri. Prakash @
Jnanaprakash V/s. Miss T.S.Susheela.
Negotiable Instruments Act, 1881 - Section 138
- Offence under - Judgment and order of
conviction by the Learned Magistrate, affirmed
by the Fast Track Court - Revision against -
Grounds urged by the petitioner with regard to
validity service of notice, illegal custody of the
documents - Appreciation of evidence on record
- Presumption in favour of the holder of a
cheque under Section 139 of the Act - HELD,
The presumption in favour of the holder of a
cheque under Section 139 of the NI Act would
not apply in the present case on hand since the
petitioner had tendered positive evidence to
discharge that presumption, is again
misleading, as the only defence sought to be
raised by the petitioner was that there was an
38
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
independent chit transaction and it was
pursuant to that independent transaction that
a cheque and a promissory note had been
entrusted to 'X' and that the complainant had
illegally obtained custody of those documents
and it is those documents which are sought to
be pressed into service in the present complaint
- ON FACTS, FURTHER HELD, If the document
had been illegally obtained by the complainant,
it is inexplicable that the petitioner did not
choose to give a complaint to the police or to
take other measures insofar as that conduct of
the complainant is concerned and hence has
disbelieved the evidence set forth. Therefore,
for the petitioner to contend that there was
evidence before the court which has been
negated and that he had discharged the
burden, is a self-serving assertion - REVISION
- (2) CODE OF CRIMINAL PROCEDURE -
SECTION 397 - REVISION (2) NEGOTIABLE
INSTRUMENTS ACT, 1881 - SECTION 139 -
PRESUMPTION IN FAVOUR OF A HOLDER OF
A CHEQUE - DISCUSSED.
(B) GENERAL CLAUSES ACT, 1897 - SECTION
27 - Meaning of service by post - Service of
notice - Proof of - HELD, Mere denial of the
39
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
address not sufficient to rebut the presumption
- The entire purpose of requiring notice is to
give an opportunity to the drawer to pay the
cheque amount within 15 days of service of
notice and thereby free himself from penal
consequences of Section 139 of the Negotiable
Instrument Act - Since it is not denied by the
petitioner that he had appeared before the Trial
Court on service of summons, it was always
open for the petitioner to have made the
payment and to have absolved himself of any
criminal liability, if the only contention that is
to be addressed was whether there was valid
service of notice. Hence, the question of
validity of service of notice would not assist the
petitioner in his defence.
The above said citation also rightly applies to the facts of
the present case. In the present case, it is the contention
of the accused that by threatening to Accused No.2 and 3
complainant has taken Ex.P.1 cheque in both the cases
and it is the specific case of the complainant that Accused
No.2 and 3 in all obtained loan of Rs.23,38,800/- and have
assured to complainant to repay the same within 1 month
and they have issued Ex.P.1 post dated cheques in both
40
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
the cases by mentioning date as 30/06/2013. If all the
complainant has threatened and taken the cheque then on
the very next day complaint would have been lodged by the
accused, but it is filed only on 01/10/2013 as per Ex.D.1
to Ex.D.2. That means only after Ex.P.3 notice is served on
accused, at that time only the present complaint is filed by
the Accused No.3 against the complainant. Hence, it
seems that only to avoid from the payment of the cheque
amount, complaint has been lodged by the Accused No.3
against the complainant. Further with regard to service of
notice, it is clearly goes to show that the notice issued at
Ex.P.3 in CC.No:21036/2015 issued at Ex.P.3 is endorsed
as per Ex.P.5 as "Item delivered" on 23/9/2013. Hence, as
per the Circular issued by Hon'ble High Court of Karnataka
vide Ref.No:126/2021 dated 25/11/2021, the Postal Track
consignment showing as "Item Delivery confirmed" is
deemed to be served. That means the notice issued as per
Ex.P.3 is duly served on the accused as per Ex.P.5 and
Section 138(b) of N.I.Act is complied by complainant.
41
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
iv) AIR 2001 Supreme Court 2895 in K.N.Beena
Appellant V/s. Muniyappan and another Respondents.
Negotiable Instruments Act (26 of 1881) S.138,
S.139, S.118 - cheque dishonour complaint -
Burden of proving that cheque had not been
issued for any debt or liability - Is on the
accused - denial/averments in reply by
accused are not sufficient to shift burden of
proof onto the complainant - Accused has to
prove in trail by leading cogent evidence that
there was no debt or liability - Setting aside of
conviction on basis of some formal evidence led
by accused - Not proper.
The above said citation also rightly applies to the facts of
the present case. Though in the present case, the evidence
of the complainant has been rebutted by the accused by
cross-examination, the contention taken by the accused
that by threatening the accused Ex.P.1 cheque in both the
cases have been taken, the above said contention cannot
be believed since Ex.P.1 cheque is dated 30/06/2013 and
the criminal case has been filed on 01/10/2013, i.e., after
gap of 4 months that too when the legal notice is issued as
42
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
per Ex.P.3 by complainant only to avoid from the payment
of the cheque amount the above said complaint is filed by
the accused as per Ex.D.1 to Ex.D.3 against complainant
on 01/10/2013.
30. The learned counsel for accused has relied upon the
following citations:-
i) LAWS (KAR) 2015 6 353 in A.M.Govindegowda V/s.
B.V.Ravi of Hon'ble High Court of Karnataka.
The accused has categorically denied having
taken loan from the complainant. No material is
forthcoming in order to establish the existence
of loan liability except the interested testimony
of complainant PW-1. No witnesses have been
examined on behalf of the complainant who
had actually seen the advancement of hand
loan by the complainant to the accused, nor
the complainant has produced his pass book or
any other document to show that as on that
day he had that much of amount so as to lend
the same accused.
The very fact that the figure shown in the
cheque is Rs.95,200/- itself creates a doubt in
the mind of the court. No person would ask
43
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
for loan of RS.95,200/- unless there are some
special reasons for the same. It is interesting
to note that the complainant has produced two
cheques of Rs.95,200/- said to have been
issued by the accused towards the discharge
of loan liability marked at Exs.P.1 and P.2. If he
had really taken a hand loan of Rs.95,200/-,
with a condition to repay the same within two
months, the issuance of two cheques does not
arise. That also further creates a doubt in the
mind of the court.
Thus, from the evidence placed on record, the
accused has been able to establish his defence
that he had not taken loan nor he was due to
pay a sum of Rs.95,200/-.
Moreover, the complainant has not been able
to place on record any evidence to establish
the existence of liability. Thus, the learned
Magistrate on proper appreciation of the
evidence has righly acquitted the accused.
The above said citation does not apply to the facts of the
present cases, since in the present case the accused has
admitted that his signature is appearing at Ex.P.6 and
Ex.P.13 agreement which has been executed by the
44
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Accused No.2 and 3 is dated 18/05/2013 and also the
agreement marked at Ex.P.13 in CC.No:21037/2015 is
dated 18/05/2013 and the accused who is examined as
DW-1 has also admitted that his signature is appearing in
both agreements and in the present case already along
with Ex.P.1 cheque, agreement is also been executed by
Accused No.2 and 3 in favour of the complainant wherein
as per Ex.P.6 in CC.No:21036/2015 it has been admitted
by the Accused No.2 and 3 that for receipt of
Rs.13,38,000/- both accused have issued Ex.P.1 cheques
bearing No:908714 for repayment towards complainant
with regard to Ex.P.13 in CC.No.21037/2015, on perusal of
the contents of Ex.P.13, it reveals that both Accused No.2
and 3 have executed the agreement stating that a sum of
Rs.10,00,800/- has been received from complainant on
30/05/2013 and to return back the same on or before
30/06/2013 and for repayment Accused No.2 and 3 have
issued Ex.P.1 cheque bearing No:908714 dated
30/06/2013 in favour of the complainant. Hence, Ex.P.13
agreement is also executed by Accused No.2 and 3.
45
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
ii) 2007 AIR SCW 6376 in John.K.John V/s. Tom
Varghese and another of Hon'ble Supreme Court of
India.
Negotiable Instruments Act (26 of 1881), S.138,
S.139 - Dishonour of cheque - discharge of
debt - Rebuttal of presumption under S.139 -
Court can take notice of conduct of parties -
Respondent alleged to have borrowed huge sum
from appellant - complainant despite suits for
recovery of defaulted amount filed against him
by appellant - No document executed -
Amount advanced carrying no interest -
Finding of fact by High Court that respondent
did not issue cheque in discharge of any debt
any discharged burden of proof cast on him
under Section 139 - Being not perverse cannot
be interfered with under Art.136. Constitution
of India, Art. 136.
Why no instrument was executed although a
huge sum of money was allegedly paid to the
respondent was a relevant question which
could be posed in the matter. It was open to the
High Court to draw its own conclusion therein.
Not only no document had been executed, even
no interest had been charged. It would be
absurd to form an opinion that despite knowing
46
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
that the respondent even was not in a position
to discharge his burden to pay instalments in
respect of the prized amount, an advance would
be made to him and that too even after
institution of three civil suits.
The above said citation does not apply to the facts of the
present case, since the accused who is examined as DW-1
admits that he has executed an agreement in favour of the
complainant as per Ex.P.6 and Ex.P.13 in
CC.No:21036/2015 and CC.No:21037/2015 respectively
and with regard to the receipt of amount of
Rs.13,38,000/- and Rs.10,00,800/- and for repayment of
the same accused has issued Ex.P.1 cheque in both the
case.
(iii) ILR 2008 KAR 4029 in Shiva Murthy V/s.
Amruthraj.
Negotiable Instrument Act, 1881 - Section 138
offence under - complaint - Conviction and
sentence confirmed in Appeal - Revision
against - Production of additional document
before the Appellant court - Non-consideration
of - Existence of legally enforceable debt -
47
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Failure of the complainant to prove -
Presumption drawn merely on the basis of the
conduct of the accused - Legality of - HELD,
The court below more particularly, the
Appellate court before whom the additional
documents were produced has not directed
itself in this regard to find out as to whether
the complainant has proved the existence of
legally enforceable debt. Both the trial court
and the Appellant court have mainly proceeded
to consider the conduct of the accused. Before
considering the conduct of the accused to find
out a to whether or not he has been able to
rebut the statutory presumption available
under Section 139, the court ought to have
considered a to whether the complainant has
proved the existence of legally enforceable debt.
It is only after satisfying that the complainant
has proved existence of legally enforceable debt
or liability, the Courts could have proceeded to
draw presumption under Section 139 of the
N.I.Act and thereafter find out as to whether or
not the accused has rebutted the said
presumption - Judgment of conviction and
sentence are liable to be set aside - Accused is
acquitted.
48
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
The above said citation does not apply to the facts of the
present case since the complainant has lent a sum of
totally Rs.23,38,800/- for the alleged financial commitment
to the Accused No.2 and 3 and the above said debt which
has been obtained by the Accused No.2 and 3 is a legally
enforceable debt and though the has rebutted the
presumption by cross-examining PW-1 and also by leading
defence evidence, but it is not convincing and trustworthy.
iv) Criminal Appeal No:200113/2014 in
Shri.M.Vijayasarathi V/s. Umran Malik of Hon'ble
High Court of Karnataka (Kalaburgi Bench).
In his examination in chief, the complainant
has reiterated the complaint allegations.
However, in the cross examination, he
admitted that he is a partner in Saptagiri
Finance Company in Shahabad and there are
nine partners. It is important to note here that
in the complaint as well as in the legal notice,
there is no reference of date of advancement of
hand loan by the accused and all along it is
simply asserted that the loan was advanced in
the month of November, 2010. It is also
49
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
important to note here that it is not a small
amount and a huge amount is being advanced
as a hand loan and it is hard to accept that the
complainant do not remember the date of
advancement of loan. Further, the complainant
has not described his avocation in the
complaint.
Even in the complaint, there is no assertion
that on 16.11.2010 the accused has executed
demand promissory note. Further, his cross
examination reveals that it was not signed by
the accused in his presence. In the cross
examination, for the first time he claims that
the loan was advanced on 16.11.2010. But,
this fact was never asserted anywhere else.
Further, he claims that he advanced the loan
by cash as the amount was in his house. He
admits that this huge amount was not shown
in the income tax return submitted for the year
2010.
In the further cross examination, he admitted
that normally such a huge amount would be
kept in Bank, but, he claims that he has kept in
the house for construction of the house. But, no
evidence is placed to show that he was
constructing any house. He has also not
50
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
produced his Bank statements to show his
financial status.
The above said citation does not apply to the facts of the
present case. In the present case, the Accused No.3 who is
examined as DW-1 admits that Ex.P.1 cheque belongs to
his account and also his signature is appearing at Ex.P.1(a)
in both the cases. PW-1 has specifically deposed before
the court stating that an amount of Rs.23,38,800/- was
kept in his house for construction of his house and the
said amount is given to the Accused No.2 and 3 for the
performance of the marriage expenses of Accused No.3 and
also for the business difficulties faced by the Accused No.2
and 3. Though it has been contended by the Accused No.3
that the complainant is doing money lending business, but
Ex.D.1 to Ex.D.71 are the charge sheet materials
produced, wherein the Accused No.3 has lodged a
complaint against the complainant for the offence
punishable for charging exorbitant Interest and also under
Section 28, 38 of Karnataka Money Lenders Act and also
under Section 3 and 4 of Karnataka Prohibition of
51
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Charging Exorbitant Interest Act 2004 and the allegations
against the complainant is not proved before court.
v) Crl.P.No:1387/2011 in R.Parimala Bai V/s. Bhaskar
Narasimhaiah of Hon'ble High Court of Karnataka
dated 6 th day of July 2018.
This Crl.P. is filed under Section 482 Cr.P.C
praying to quash the entire proceedings in
C.C.NO:22036/09 for the offences
P/U/S.138 of N.I.Act on the file of XVI
ACCM, Bengaluru.
21. As could be seen from the rulings cited
by the learned counsel for the petitioner
and the provision of Section 23 of the
Indian Contract Act, it is crystal clear that if
on the basis of a void contract and
particularly if the consideration is illegal,
and consideration is for immoral or illegal
purposes or which is against the public
policy, then the whole transaction becomes
void, the consideration paid in such
contract becomes an illegal consideration
and when it is said it is legal or unlawful
consideration, it can not be at any stretch of
imagination called as a legally recoverable
debt.
52
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
The above said citation does not apply to the facts of the
present case, since it is with regard to praying to quash the
entire proceedings which has been sought by the petitioner
before Hon'ble High Court of Karnataka, but the present
case is decided on merits.
vi) Criminal Appeal No:2812/2010 in Sandesh S/o.
Chudia @ Chudamani V/s. Dayanand S/o. Dakappa
Hosamane.
In the cross-examination PW-1 admits that
the mother of accused is his senior aunt
and also he admits that he used to visit the
house of accused frequently prior to filing of
this complaint. He admits that he studied
up to 8th standard and he claims that he is
doing boat business and he is not an
income tax assessee. He further admits
that he has not produced any document to
show that he advanced an amount of
Rs.1,90,000/- on 15/03/2005. But he
claims that he paid that amount in the
presence of his friends and his relatives and
the same has not been stated in his legal
notice and there was no any difficulty for
53
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
him to make payment through cheque. He
admits that he has not produced any
document to show that he is the owner of
boat and doing boat business and the mode
of payment I also not stated in his
complaint.
The above said citation does not apply to the facts of the
present case since, accused No.3 is examined as DW.1
admits that Ex.P.1 cheque belongs to him and also admits
that his signature is appearing at Ex.P.1(a) and moreover
the counsel for accused has not taken any steps with
regard to referring Ex.P.1 cheque for Hand Writing Expert
opinion.
Vii) 2016 (5) KCCR 1341 in Smt. Threja V/s. Smt.
Jayalaxmi of Hon'ble High Court of Karnataka .
Negotiable Instrument Act, 1881 - Section 138,
139 and 118 - Acquittal - Legally recoverable
debt - Burden lies on complainant to prove -
Source of income - complainant not producing
any bank account details to support her claim -
Also admitting that there was no monetary
transaction between her and accused -
Cheques issued by complainant to accused not
54
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
forthcoming - Accused pleaded that cheque in
question was snot issued for availing money
from complainant - Courts below attaching
much importance to presumption under
Section 113 and 139 without looking into
categorical admission elicited from complainant
- Judgment of conviction set aside.
The above said citation does not apply to the facts of the
present case. In the present case the accused has also
admitted that Ex.P.1 cheque belongs to his account and
also his signature is appearing in Ex.P.1 cheque in both
the cases. Further in the agreement marked at Ex.P.6 in
CC.No:21036/2015 and Ex.P.13 in CC.No:21037/2015,
the accused has admitted that his signature is appearing
in both the agreements, wherein the Accused No.3 has
signed. On perusal of the contents of the same, it reveals
that Accused No.3 has executed the agreement in favour of
complainant for availing of the loan amount of
Rs.23,38,800/- and issued Ex.P.1 cheque bearing
No:908714 and No:908715 respectively in both the cases
and Ex.P.13 agreement is signed by both Accused No.2 and
3 in favour of complainant on 30/05/2013 undertaking to
55
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
repay the same on or before 30/06/2013 and for
repayment of the same has issued Ex.P.1 cheque bearing
No:908715 in CC.No:21037/2105. Hence, other than
Ex.P.1 cheques in both the cases, agreement is also been
executed by the Accused No.2 and 3 for repayment of the
amount of Rs.23,38,800/- in favour of complainant.
Viii) (2008) 4 Supreme Court Cases 54 in Krishna
Janardhan Bhat V/s. Dattatraya G.Hegde.
ix) 2004 Crl.L.J. 4019 of Andhra Pradesh High Court
in M/s. Krishnam Raju Finances, Hyderabad Appellant
V/s. Abida and another Respondent. (NOOO)
x) Criminal Appeal No(2). 95-96 of 2019 of Hon'ble
Supreme Court of India in Anss Rajashekar V/s.
Augustus Jeba Ananth.
xi) 2015 AIR SCW 64 of Hon'ble Supreme Court of
India in K.Subramani V/s. K.Damodara Naidu.
56
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Xii) Criminal Appeal No:1194 of 2018 of Hon'ble High
Court of Karnataka in Sri.M.Nagaraju V/s. Sri. Lokesh
Bagal.
Xiii) 2020 (3) KCCR 2373 of Hon'ble High Court of
Karnataka (Dharwad Bench) in Vishal V/s. Prakash
Kadappa Hegannawar.
Along with the citations relied at (viii) to (xiii), the learned
counsel for accused has also relied upon several other
citations, which are not applicable to the facts of the
present case in hand.
POINT No.3:-
31. It is the specific contention of the complainant
that accused No.1 is a partnership firm and Accused No.2
and 3 are the partners of Accused No.1 firm and in-charge
of the day to day affairs of Accused No.1 firm. The Accused
No.2 and 3 to meet some urgent financial commitments
have approached the complainant on 30/05/2013 seeking
financial assistance of Rs.13,38,000/- and Rs.10,00,800/-
57
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
in CC.No:21036/2015 and CC.No:21037/2015
respectively. Hence, in view of the difficulties expressed by
Accused No.2 and 3, complainant with an intention to help
both Accused No.2 and 3 paid an amount of
Rs.23,38,800/- which he had kept for his house
construction. The complainant paid the said amount to
Accused No.2 and 3 on 30/05/2013 and on the same day
both accused persons assured to complainant that they
will repay the said amount on or before 30/06/2013. On
the same day, they issued Ex.P.1 cheque in
CC.No:21036/2015 for a sum of Rs.13,38,000/- and
another Ex.P.1 cheque in CC.No:21037/2015 for a sum of
Rs.10,00,800/-. They have got executed the agreement in
favour of complainant promising to repay the said amount
by 30/06/2013. Hence, after lapse of one month, when
complainant requested to both Accused No.2 and 3 for
return of total amount of Rs.23,38,800/- from both the
cases after lapse of one month, Accused No.2 and 3 told to
complainant to present Ex.P.1 cheque in
CC.No:21036/2015 and also Ex.P.1 cheque in
CC.No:21037/2015 i.e., for a total sum of Rs.23,38,800/-
58
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
drawn on Axis Bank, EPIP Branch, Bengaluru. When the
complainant presented the said cheques through his
Banker Vijaya Bank Ltd., Jalahalli Branch, Bengaluru, the
above said 2 cheques came to be dishonoured as per
Ex.P.2 endorsement in both the cases for "Funds
insufficient" on 23/08/2013 and 30/08/2013 in
CC.No:21036/2015 and CC.No:21037/2015 respectively.
Thereafter, the complainant got issued legal notice to the
Accused No.2 and 3 as per Ex.P.3 legal notice on
21/09/2013 and 28/09/2013 in CC.No:21036/2015 and
CC.No:21037/2015 respectively. The legal notice was sent
to Accused No.1 to 3 in both the cases by way of RPAD.
However, the notice sent to Accused No.1 was duly served
on 23/09/2013 as per Ex.P.5 in CC.No:21036/2015.
However in CC.No:21037/2015 the notice sent to Accused
No.1 is duly served on 03/10/2013 as per Ex.P.7 Postal
acknowledgement. In both the cases, the notice sent to
Accused No.2 and 3 are returned as "Not claimed" as per
Ex.P.11 and Ex.P.12 in CC.No:21036/2015 and Ex.P.8 and
Ex.P.9 in CC.No:21037/2015. The accused has not paid
59
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
the cheque amount and hence, the present complaint is
filed on 05/11/2013 in both the cases.
32. In this regard, it is relevant to peruse Section
138 of the Negotiable Instrument Act, which reads as
under:-
"Dishonour of cheque for insufficiency,
etc., of funds in the account.--Where any
cheque drawn by a person on an
account maintained by him with a banker for
payment of any amount of money to another
person from out of that account for the
discharge, in whole or in part, of any
debt or other liability, is returned by the bank
unpaid, either because of the amount of
money standing to the credit of that
account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid
from that account by an agreement made with
that bank, such person shall be deemed
to have committed an offence and shall,
without prejudice to any other provision of
this Act, be punished with imprisonment
for [a term which may be extended to two
years], or with fine which may extend to twice
the amount of the cheque, or with both:
33. Provided that nothing contained in this section
shall apply unless--
a) the cheque has been presented to the
bank within a period of six months
60
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
from the date on which it is drawn or
within the period of its validity,
whichever is earlier;
b) the payee or the holder in due course of
the cheque, as the case may be, makes
a demand for the payment of the said
amount of money by giving a notice; in
writing, to the drawer of the cheque,
[within thirty days] of the receipt of
information by him from the bank
regarding the return of the cheque as
unpaid; and
c) the drawer of such cheque fails to
make the payment of the said amount
of money to the payee or, as the case
may be, to the holder in due course of
the cheque, within fifteen days of the
receipt of the said notice.
34. Explanation.--For the purposes of this section,
"debt of other liability" means a legally enforceable debt or
other liability.
35. On going through the said provision of law, it is
clear that in order to establish and to prove the fact that
the Accused No.2 and 3 have committed an offence under
section 138 N.I.Act, the essential requirements i.e.,
legally recoverable debt, issuance of the cheque,
presentation of the said cheque within the stipulated
61
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
period for encashment, the dishonour of the said cheque
and the issuance of the legal notice within the stipulated
period calling upon the accused in making the payment
of the said cheque amount is within the stipulated
period are to be proved by the complainant.
36. On going through the facts and circumstances of
the case, it is clear that the Accused No.2 and 3 have
issued Ex.P.1 cheque in both the cases for Rs.13,38,000/-
in CC.No:21036/2015 and Rs.10,00,800/- in
CC.No:21037/2015 and the cheque is totally amounting to
Rs.23,38,800/- and both the cheques were dishonoured for
the reasons "Funds insufficient" on 23/08/2013 in
CC.No:21036/2015 and on 30/08/2013 in
CC.No:21037/2015 as per Ex.P.2 in both the cases. The
complainant has issued the legal notice to the accused
No.1 to 3 through his advocate on 21/09/2013 in
CC.No:21036/2015 and on 28/09/2013 in
CC.No:21037/2015. The notice is duly served on Accused
No.1 firm on 23/09/2013 in CC.No:21036/2015 and on
03/10/2013 in CC.No:21037/2015. The notice sent to
62
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
Accused No.2 and 3 are returned as "Not claimed" in both
the cases as per Ex.P.11 and Ex.P.12 in
CC.No:21036/2015 and Ex.P.8 and Ex.P.9 in
CC.No:21037/2015. The evidence placed on record shows
the failure of the Accused No.2 and 3 to pay the above said
cheque within stipulated period as per section 138(c) of the
Act. The present complaint has been filed on 05/11/2013
well within the period of limitation. In view of this, the
complainant has satisfied the entire requirements of
section 138 of N.I.Act.
37. On going through the entire oral and
documentary evidence and as observed supra in both the
cases, the complainant has proved the existence of legally
recoverable debt and issuance of cheque towards discharge
of the said debt and also issuance of the legal notice within
stipulated period and the failure of the Accused No.2 and 3
to make payment of the said cheque amount within
stipulated period. Under such circumstances, I hold that
the complainant has clearly proved the existence of legally
63
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
recoverable debt and also the issuance of cheque towards
the discharge of said debt.
38. When the complainant proved that Accused No.2
and 3 have issued cheque towards their liability, accused
no 2 and 3 are liable to pay the money as provided
U/Sec.138 of N.I.Act, the accused No 2 and 3 can be
punishable with imprisonment for a term which may be
extended upto 2 years or with fine which may be extended
to twice the amount of the cheque or with both. The
Accused No.2 and 3 are liable to pay the cheque amount of
Rs.13,38,000/- and Rs.10,00,800/- in CC.No:21036/2015
and CC.No:21037/2015 i.e., totally Rs.23,38,800/-
combining both the Ex.P.1 cheques in both cases in
discharge of their liability.
39. Looking to the facts and circumstances of the
case, further the Accused No.2 and 3 have issued the
cheques and in view of failure on the part of the Accused
No.2 and 3 to pay the said amount, hence complainant is
entitled for the cheque amount. I feel that, if the cheque
64
Common Judgments in CC.No.21036/2015
and CC.No:21037/2015
amount is ordered as compensation to the complainant, it
would meet the justice to both the parties. Hence Accused
No.2 and 3 are liable to pay the cheque amount in favour
of complainant. Hence in view of my above discussion, I
answer Point No.3 in "Affirmative".
POINT No.4:-
40. In the result I proceed to pass the following:
ORDER
Acting under Section 255(2) of Cr.P.C., the Accused No.2 and 3 are hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused No.2 and 3 are jointly and severally sentenced to pay a fine of Rs.23,38,800/- (Rupees Twenty Three Lakh Thirty Eight Thousand Eight Hundred Only) together in both the cases for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the Accused No.2 and 3 within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.23,30,000/- (Rupees Twenty Three 65 Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 Lakh Thirty Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the Accused No.2 and 3 shall undergo simple imprisonment for 1 (One) year.
The rest of Rs.8,800/- (Rupees Eight Thousand Eight Hundred Only) is ordered to be adjusted to the State as fine.
In CC.No:21036/2015, the cash surety amount of Rs.10,000/- (Rs.5,000/- each) already deposited by the Accused No.2 and 3 on 27/02/2016 is forfeited to the State.
In CC.No:21037/2015, the cash surety amount of Rs.8,000/- (Rs.4,000/- each) already deposited by the Accused No.2 and 3 on 03/02/2016 is forfeited to the State.
The original Judgment be kept in CC.No:21036/2015 and the certified copy of the said Judgment shall be kept in CC.No:21037/2015.
66Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 Office is directed to supply copy of Judgment to the Accused No.2 and 3 free of cost forthwith.
(Dictated to the Stenographer on computer, print out taken by her is verified, corrected and then Pronounced by me in the Open Court on this the 20th day of April 2022).
(Siddaramappa Kalyan Rao) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE IN CC.NO:21036/2015 List of witnesses examined on behalf of the complainant:
PW.1 : Sri. P.Jogeshwar Rao.
List of documents exhibited on behalf of the complainant:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused No.2.
Ex.P.1(b) : Signature of the accused No.3.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Legal notice.
Ex.P.4 : Representation given to postal
authority.
Ex.P.5 : Endorsement issued by postal
authority.
Ex.P.6 : Agreement in stamp paper.
Ex.P.6(a) : Signature of the accused No.2.
Ex.P.6(b) : Signature of the accused No.3.
Ex.P.7 to Ex.P.9 : Copy of postal receipts.
67
Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 Ex.P.10 : Copy of Postal acknowledgement.
Ex.P.11 and Ex.P.12 : Copy of postal covers sent to Accused No.2 and 3.
List of witnesses examined on behalf of the accused :
DW.1 : Sri. B. Srinivasa Reddy List of documents exhibited on behalf of the accused :
Ex.D.1 : Charge sheet filed in Crime
No:473/2013 by
Yeshwanthpur Police.
Ex.D.2 : Seizure panchanama in
CC.No:6744/2014.
Ex.D.3 : Certified copy of FIR in Crime
No:473/2013 filed by Accused No.3 against complainant.
Ex.D.4 : Order sheet wherein the complainant got released Ex.P.1 cheque and other documents on 01/10/2014.
Ex.D.5 : The charge sheet filed against
the complainant at
Yeshwanthpur Police station.
Ex.D.6 : Requisition filed by Yeshwanthpur Police station seeking police custody of 68 Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 complainant in Crime No:173/2013.
Ex.D.7 : Arrest intimation issued to wife of complainant by name Smt. Vidya Rao.
Ex.D.8 : PF Form with regard to seizure of Rs.100/- stamp paper from complainant in Crime No:473/2013.
Ex.D.9 : PF Form in Crime
No:473/2013.
Ex.D.10 : Statement of Ranganath dated 03/10/2013.
Ex.D.11 : Statement of Mahendra dated 03/10/2013.
Ex.D.12 : Statement of Joseph John D'Souza dated 03/10/2013.
Ex.D.13 : Statement of Rangappa dated 03/10/2013.
Ex.D.14 : Statement of Ananthraju dated 01/10/2013.
Ex.D.15 : Statement of Jogeshwar Rao dated 01/10/2013.
Ex.D.14 : Letter addressed by P.S.I. of Yeshwanthpur Police station to the Director of Finance to furnish the information of license with regard to running of finance by complainant dated 07/10/2013.69
Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 Ex.D.15 : Complaint lodged by Accused No.3 against the complainant before P.I. of Yeshwanthpur Police station and it is the same as Ex.D.1.
Ex.D.16 : Certified copy of cheque of Axis Bank Ltd issued by Accused No.2 and 3 in favour of complainant for Rs.1,00,000/-.
Ex.D.17 : Blank stamp paper dated
08/08/2013 of Rs.100/-
wherein the first part is Accused No.2 and 3 and second party is complainant.
Ex.D.18 : Blank stamp paper dated 08/08/2013 and it is the same as Ex.D.17.
Ex.D.19 : Blank cheque of
Dhanalakshmi Bank in
CC.No:6744/2014.
Ex.D.20 : Cheque of Vijaya Bank issued
by J.M.Traders in favour of complainant for a sum of Rs.1,00,000/-.
Ex.D.21 : Cheque of Vijaya Bank issued by J.M.Traders in favour of complainant for a sum of Rs.98,000/-.
Ex.D.22 to Ex.D.30 : Blank signed cheque of various persons.
Ex.D.31 : Cheque for Rs.50,000/- of 70 Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 Syndicate Bank bearing No:194684 dated 03/08/2011 in CC.No:6744/2014.
Ex.D.32 : Blank signed cheque of
Syndicate Bank,
Yeshwanthpur Branch,
Bengaluru bearing No:042401.
Ex.D.33 : Blank signed cheque of
Syndicate Bank,
Yeshwanthpur Branch,
Bengaluru bearing No:042402.
Ex.D.34 : Cheque issued by Stag Exporters of cheque bearing No:217247 issued by Vijaya Bank for a sum of Rs.247/- dated 14/03/2011. Ex.D.35 is the blank signed cheque for a sum of Rs.1,00,000/- bearing No:037187.
Ex.D.36 and Ex.D.37 : Blank signed cheques of Vijaya Bank, Jalahalli Branch, Bengaluru bearing No:211802 and No:662612 respectively.
Ex.D.38 : Receipt issued by Rangaswamy for a sum of Rs.1,21,000/- dated 01/08/2006.
Ex.D.39 : Blank stamp paper for a sum of Rs.100/-.
Ex.D.40 : Blank stamp paper for a sum of Rs.100/-.
Ex.D.41 to Ex.D.58 : Blank On-demand Promissory 71 Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 Note and consideration receipts.
Ex.D.59 and Ex.D.60 : Blank stamp paper purchased
in the name of
M.Nanjundaswamy and Mrs. Radha dated 05/01/2009.
Ex.D.61 and 62 : Blank signed cheque of HDFC Bank bearing No:140112 and 198868 respectively.
Ex.D.63 to Ex.D.66 : Sale agreement dated 06/02/2013, 15/04/2011, 02/09/2011 and 06/02/2013.
Ex.D.67 : Blank stamp paper for a sum
of Rs.100/- dated
22/03/2011.
Ex.D.68 : Application filed by one
Mahendran seeking hand loan of Rs.1,98,000/-.
Ex.D.69 : Blank signed cheque issued by
Surekha Industries of
Syndicate Bank, Jalahalli
Branch, Bengaluru.
Ex.D.70 : Blank signed cheque of
Syndicate Bank, Jalahalli
Branch, Bengaluru.
Ex.D.71 : Receipt.
Ex.D.71(a) : Signature.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.72
Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 ANNEXURE IN CC.NO:21037/2015 List of witnesses examined on behalf of the complainant:
PW.1 : Sri. P.Jogeshwar Rao.
List of documents exhibited on behalf of the complainant:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused No.2.
Ex.P.1(b) : Signature of the accused No.3.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Legal notice.
Ex.P.4 to Ex.P.6 : Copies of Postal receipts.
Ex.P.7 : Copy of Postal
acknowledgement.
Ex.P.8 and Ex.P.9 : Copies of unserved postal
covers on accused No.2 and 3.
Ex.P.10 to Ex.P.12 : 3 endorsements issued by postal authority.
Ex.P.13 : Agreement.
List of witnesses examined on behalf of the accused : DW.1 : Sri. B. Srinivasa Reddy List of documents exhibited on behalf of the accused :
- Same "D" series documents marked at CC.No:21036/2015 are adopted in 73 Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 CC.No:21037/2015 also as per Ex.D.1 to Ex.D.71(a) - .
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.74
Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 20/04/2022 Complainant - HHR Accused - SDR Judgment (Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) of Cr.P.C., the Accused No.2 and 3 are hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused No.2 and 3 are jointly and severally sentenced to pay a fine of Rs.23,38,800/- (Rupees Twenty Three Lakh Thirty Eight Thousand Eight Hundred Only) together in both the cases for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the Accused No.2 and 3 within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.23,30,000/- (Rupees Twenty Three Lakh Thirty Thousand Only) has been awarded to the complainant as 75 Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the Accused No.2 and 3 shall undergo simple imprisonment for 1 (One) year.
The rest of Rs.8,800/- (Rupees Eight Thousand Eight Hundred Only) is ordered to be adjusted to the State as fine.
In CC.No:21036/2015, the cash surety amount of Rs.10,000/- (Rs.5,000/- each) already deposited by the Accused No.2 and 3 on 27/02/2016 is forfeited to the State.
In CC.No:21037/2015, the cash surety amount of Rs.8,000/- (Rs.4,000/- each) already deposited by the Accused No.2 and 3 on 03/02/2016 is forfeited to the State.
The original Judgment be kept in CC.No:21036/2015 and the certified copy of the said Judgment shall be kept in CC.No:21037/2015.
76Common Judgments in CC.No.21036/2015 and CC.No:21037/2015 Office is directed to supply copy of Judgment to the Accused No.2 and 3 free of cost forthwith.
XII A.C.M.M., Bengaluru.