Bangalore District Court
M/S. Zuari Cement Limited vs M/S. Radhakrishna Enterprises on 14 July, 2025
KABC0C0115972022
IN THE COURT OF XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
MAYO HALL UNIT, BENGALURU. (ACJM-34)
PRESENT: Smt.PARVEEN A BANKAPUR,B.Com.LLB.
XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
Dated : This the 14th day of July, 2025.
C.C.No.53218/2022
COMPLAINANT : M/s. Zuari Cement Limited
At No. 28, Adventz Centre, 2nd Flr,
Cubbon Road,
Bengaluru - 560 001.
Rep by its GPA Holder
Mr. Santosh Kulkarni
(By Mr. Srinivas G.H. - Advocate)
V/s
ACCUSED : 1. M/s. Radhakrishna Enterprises
No. 345/1, Navi Peth, M G Road,
Murgud, Kagal Taluk, Kolhapur,
Maharashtra.
Rep by its Proprietor
Mr.Rushikesh M Anawkar
2:Mr.Rushikesh M Anawkar
S/o. Mohan K. Anawkar
Aged about 44 years,
Prop of M/s.Radhakrishna
Enterprises
No. 345/1, Navi Peth, M G Road.
Murgud, Kagal Taluk, Kolhapur
Maharashtra - 410 219.
(By Mr.H.V. Chandrashekar -
Advocate)
1 Date of Commencement 22.04.2021
of offence
2 Date of report of offence 09.07.2021
3 Presence of accused
3a. Before the Court 14.08.2024
3b. Released on bail 14.08.2024
4 Name of the Complainant M/s. Zuari Cement Ltd.
2
C.C.No.53218 /2022
5 Date of recording of 26.05.2022
evidence
6 Date of closure of evidence 09.01.2025
7 Offences alleged U/s 138 of the Negotiable
Instruments Act
8 Opinion of Judge Accused are found guilty
JUDGEMENT
The Private Complaint is filed by the Complainant under Section 200 of Cr.P.C against the accused alleging that he has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that the Complainant company is a registered company which deals with the manufacturing and sale of cement in southern India. The Accused No.1 is carrying on the business of cement trading, in the name and style of M/s. Radhakrishna Enterprises and Accused No.2 is its proprietor, who is responsible for the day-to day affairs of the Accused No.1.
It is further submitted that the Accused No.2 has approached the Complainant during the month of March, 2018 to purchase the cement bags manufactured by it and requested to supply cement bags assuring the payment within credit period of 30 days from the date of supply. As per the request of Accused No.1 and 2, the 3 C.C.No.53218 /2022 Complainant supplied total 473.00 metric Tonnes of cement on credit during the January 2020 to May 2020 as per various invoices.
It is further submitted that the Accused No.2 issued a Cheque bearing No.119905 dtd.22.4.2021 for Rs.9,49,378/- drawn on Union Bank of India, Station Road branch, Kolhapur, Maharashtra in favour of Complainant to discharge the outstanding liability with an assurance that the same would be honoured on its presentation for encashment.
It is further submitted that, as per the request of the Accused, the Complainant has presented the said Cheque for encashment on through its banker i.e., Standard Chartered Bank, Raheja Towers M.G. Road branch, Bengaluru. But the said was returned unpaid with an endorsement "payment stopped by drawer" on 23.4.2021.
Though the said fact was intimated to the Accused by the Complainant, the Accused has not paid the Cheque amount.
Thereafter the Complainant has issued legal notice to the Accused Accused No.1 and 2 on 21.5.2021 by RPAD. The notice sent to the through RPAD to the Accused No.1 was refused and the same was returned on 7.6.2021 and the Accused No.2 also refused and the same was returned on 7.6.2021. Inspite of knowledge of the notice, the Accused has not paid the Cheque amount. Hence, the 4 C.C.No.53218 /2022 Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement affidavit, and documents etc., took cognizance of an offence punishable Under Section 138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the offence punishable Under Section 138 of N.I. Act.
4. After issuance of summons, accused appeared before the court and enlarged himself on bail. Plea was recorded, read over and explained to the accused, who pleads not guilty and claims to be tried. Hence, the case is posted for complainant's evidence.
5. The Dy. Manager Sales & Marking and GPA Holder of the Complainant company got examined himself as P.W.1 and got marked documents Ex.P.1 to Ex.P.9 and closed his side.
6. The Accused was examined U/S 313 of Cr.P.C. Incriminating evidence appearing in the complainant's evidence was read over and explained to the accused who denies the same. Inspite of taking 5 C.C.No.53218 /2022 sufficient time and opportunity, the Accused and learned Counsel for accused remained absent. Hence, defence evidence is taken as nil.
7. Heard the learned Counsel for Complainant. Since the Accused and the learned Counsel for accused remained absent, hence defence argument taken as nil.
8. Upon hearing the arguments and on perusal of the materials placed on record, the following points arise for my consideration.
1) Whether complainant proves beyond all reasonable doubts that accused in discharge of legally recoverable debt has issued a Cheque bearing bearing No.119905 dtd.22.4.2021 for Rs.9,49,378/- drawn on Union Bank of India, Station Road branch,, Kolhapur in favour of the complainant which came to be dishonoured with an endorsement "payment stopped by drawer" and in spite of receipt of notice accused has not paid the Cheque amount and thereby committed an offence under Section 138 of N.I.Act?
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative 6 C.C.No.53218 /2022 Point No.2: As per final order for the following:
REASONS Point No.1:-
10. Existence of legally recoverable debt is a sine qua non for prosecuting the case under Section 138 of Negotiable Instruments Act. For convenient purpose the essential ingredients to constitute offence under Section 138 of N.I.Act is summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.
(iii)That the cheque so issued had been returned due to "funds insufficient".
11. It is core contention of the Complainant that, the Complainant company is a registered company which deals with the manufacturing and sale of cement in southern India. The Accused No.1 is carrying on the business of cement trading, in the name and style of M/s. Radhakrishna Enterprises and Accused No.2 is its proprietor, who is responsible for the day-to day affairs of the Accused No.1.
12. It is further submitted that the Accused No.2 has approached the Complainant during the month of March, 2018 to 7 C.C.No.53218 /2022 purchase the cement bags manufactured by it and requested to supply cement bags assuring the payment within credit period of 30 days from the date of supply. As per the request of Accused No.1 and 2, the Complainant supplied total 473.00 metric Tonnes of cement on credit during the January 2020 to May 2020 as per various invoices. The Accused No.2 issued a Cheque bearing No.119905 dtd.22.4.2021 for Rs.9,49,378/- drawn on Union Bank of India, Station Road branch,, Kolhapur, Maharashtra in favour of Complainant to discharge the outstanding liability with an assurance that the same would be honoured on its presentation for encashment, which was dishonoured with an endorsement "payment stopped by drawer" on 23.4.2021. Though the said fact was intimated to the Accused by the Complainant, the Accused has not paid the Cheque amount. Thereafter the Complainant has issued legal notice to the Accused Accused No.1 and 2 on 21.5.2021 by RPAD. The notice sent to the through RPAD to the Accused No.1 was refused and the same was returned on 7.6.2021 and the Accused No.2 also refused and the same was returned on 7.6.2021. Inspite of knowledge of the notice, the Accused has not paid the Cheque amount. Hence, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act. 8
C.C.No.53218 /2022
13. In order to bring home the guilt of the accused, the Complainant himself examined as PW1 and reiterated the contents of complaint and relied Ex.P1 is the original Cheque No.119905 dtd.22.4.2021, Ex.P2 is the bank endorsement, Ex.P3 is the office copy of legal notice issued by the Complainant to the Accused dtd.21.5.2021, Ex.P4 and 5 are the unserved postal covers, Ex.P6 is the Minutes of Meeting, Ex.P7 is the authorization letter, Ex.P8 is the Complainant company statements and Ex.P9 is 64 number of invoices.
14. The documents produced by the complainant of course established that the complainant meets out the procedural requirements of Section 138 of Negotiable Instrument Act, but it is to be considered whether all these documents establish the offence committed by the accused.
15. On perusal of the oral and documentary evidence placed by the complainant, it reveals that the present complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N.I. Act. 9
C.C.No.53218 /2022
16. The Negotiable Instruments Act raises two presumptions. One contained in Section 118 and the other in Sec. 139 thereof. For the sake of convenience Sec 118(1) of the N.I. Act is extracted here below:
118. 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.
1. To (g) . . . . . . . . . . . .
Provided that where the instrument has been obtained from its lawful owner, or from an person in lawful custody thereof, by means of an offence of fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
Further Section 139 of the Negotiable Instruments Act reads as under;
10
C.C.No.53218 /2022 "139, 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."
17. Scope and ambit and function of the presumption U/s 118(a) and Sec 139 of NI Act came to be considered by the Hon'ble Apex Court of Indian in Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008 NIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
"D Negotiable Instruments Act 1881, Secs. 139, 138-- Presumption under-same arises in regard to second aspect of the matter provided under Sec 138--Existence of legally enforceable debt is not a matter of presumption under Sec 139- It merely raises presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability - Merely an application of presumption contemplated under Section 139 of N.I.Act should not lead to injustice or mistaken conviction."
18. Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju & Others 11 C.C.No.53218 /2022 (2008 (5) KCCR 3371). Relevant paragraph of the said judgment reads as under: -
"12. As to the provisions of Sections 138 of N.I.Act, the following principles emerge from the above observations of Hon'ble Supreme Court at para Nos. 21, 23, 25, 26 and 34 of its Judgment in the above said case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole or in part in any debt or other liability, which presupposed legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act.
It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." (para 21)
(ii) The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record. Where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. (para 26)
(iii) An accused, for discharging the burden of proof placed upon him under a statute, need not examine himself. He may discharge his burden on the basis of the materials already brought on records (para 23) 12 C.C.No.53218 /2022
(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Further more where as prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities'" (para 23 & 25)
(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies (para 25)
(vi) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be deliberately balanced (para 34)
19. Thus from the observations extracted above, it is clear that presumption Under Section 139 of the N.I,.Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability and the said presumption do not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under section 139 of the N.I.Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of legally enforceable debt. No doubt, as per Section 118(a) of the Act, there is a rebuttable 13 C.C.No.53218 /2022 presumption that every negotiable instrument, is accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."
20. Factual matrix of the case is required to be tested on the anvil of principles emerging from the above-referred decisions.
21. In the instant case the Complainant has placed Ex.P9 which are 64 invoices raised by the Complainant for supplying of cement bags to the Accused, which are discloses that, the Complainant has supplied cement bags to the Accused. Ex.P8 is the ledger statements maintained by the Complainant which discloses that, outstanding due amount is Rs.9,49,378/- from the Accused. Therefore, the Complainant established that, he has supplied cement bags to the Accused and the Accused has due of cheque amount. Ex.P1 original Cheque issued by the Accused for repayment of due amount payable to Complainant. The Accused has not denied issuance of Cheque and not denied his signature on Cheque. Further Ex.P3 is the legal notice issued by the Complainant through his counsel calling upon the Accused for payment of Cheque amount. Inspite of issuance of notice, neither the Accused replied the notice nor pay the Cheque amount to the Complainant. 14
C.C.No.53218 /2022
22. It is also significant to note that even though the Complainant has examined himself as PW1 and reiterated the contents of complaint in his examination-in-chief affidavit, the Accused failed to cross-examine PW1 inspite of availing sufficient opportunities. The Complainant - PW1 categorically stated in his examination-in-chief that the Accused has issued Cheque in question to discharge the liability recoverable debt. Further, Ex.P1 Cheque issued by the Accused, wherein he not denied issuance of Cheque and his signature on the Cheque. This testimony of PW1 remained un-contraverted and unchallenged. Under such circumstances, whatever version given by the PW1 is to be accepted as true. This view is fortified by the ratio laid down by the Hon'ble High Court of Karnataka in Smt. Vimala Bai Vs. Babu and another, 2002 (2) K. L. J. 301 which reads as under;
"D - Indian Evidence Act 1872, Sec.137, 138 and 155 - cross-examination of opponents witness -presumption arising from failure to hold - party should put his case in cross-examination of witness of opposite party, and failure to cross-examine gives rise presumption that account given by opponents witness is acceptable. "15
C.C.No.53218 /2022
23. In the said view is also reiterated in the ratio laid down by Hon'ble Apex Court of India, in 2003 (1) SCC 240 in the case of Sarwan Singh V/s. State of Punjab, may be useful to referred, which reads thus;
"E-Criminal trial - Appreciation of evidence - Generally - whenever opponent declines to avail himself of the opportunity to put his case in cross- examination, it must follow that the evidence tendered on that issue ought to be accepted."
24. Hence, by applying the above said ratio to the facts of the present case, whatever version given by the PW1 is to be accepted as true. Because, admittedly, PW1 has not been cross-examined by the Accused.
25. Therefore, Complainant has discharged his initial onus laid on him. When the Complainant has discharged his initial onus, it raises presumption u/Sec.118(A) and 139 of N.I. Act. Accused has failed to rebut the presumption either by cross-examining of PW1 or by leading his evidence.
26. On perusal of order sheet, it depicts that even after giving sufficient opportunity the Accused did not make use of it and did not cross-examine PW1 and adduce defence evidence on his behalf. 16
C.C.No.53218 /2022 Therefore, there is no defence on behalf of the Accused. The presumption available in favour of the Complainant u/Sec.138 of N.I. Act is not rebutted by the Accused. In view of above discussion, I am of the considered view that the Accused utterly failed to rebut the presumption available to the Complainant by giving cogent and convincing evidence. The Complainant produced relevant materials on record to believe his case. The case of the Complainant is acceptable one as there are materials on record on his behalf. The Complainant has placed sufficient materials on record to establish his case and the evidence on record is sufficient to accept the case of the Complainant that the Accused had issued Ex.P1 Cheque towards legally enforceable debt or liability and the Complainant has proved all ingredients of Sec.138 of N.I Act so as to constitute offence against the Accused.
27. As discussed above, the Complainant has proved his case as to commission of offence punishable u/Sec.138 of N.I. Act by the Accused. Considering the facts and circumstances of the case, nature of the case, year of transaction, nature of instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation and rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R. Vijayan 17 C.C.No.53218 /2022 V/s. Baby), etc., this court is of the considered view that it is just and reasonable to impose a fine of Rs,11,77,228/- and out of said amount, a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs.11,72,228/- is to be given to the Complainant as compensation as provided u/Sec.357 (1) of Cr.P.C. and accordingly, the Point No.1 is answered in the Affirmative.
28. POINT No.2: In view of discussion held in Point No.1, I proceed to pass the following:
ORDER Acting U/S 255(2) of Cr.P.C., the accused are convicted for the offence punishable Under Section 138 of Negotiable Instrument Act.
Accused are sentenced to pay fine of Rs.11,77,228/- (Rupees Eleven Lakhs Seventy-seven Thousand Two Hundred and Twenty-eight only) in default Accused No.2 shall undergo simple imprisonment for 6 months. Further, it is made clear that out of fine amount, Rs.11,72,228/- (Rupees Eleven Lakhs Seventy-two Thousand Two Hundred and Twenty- eight only) is to be paid to the complainant as compensation as per the provision U/Sec.357(1) of 18 C.C.No.53218 /2022 Cr.P.C. and Rs.5,000/- is ordered to be remitted to the State.
Bail bond stands cancelled.
Supply the free copy of this judgement to the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 14th July, 2025) Digitally signed by PARVEEN A PARVEEN A BANKAPUR BANKAPUR Date: 2025.07.15 15:45:12 +0530 (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Santhosh Kulkarni
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque Ex.P.2 Bank endorsement Ex.P.3 Office copy of legal notice Ex.P.4 & 5 Unserved Postal covers Ex.P.6 Minutes of Meeting Ex.P.7 Power of Attorney Ex.P.8 10 statements Ex.P.9 64 invoices
3. Witnesses examined on behalf of Accused : NIL
4. Documents marked on behalf of Accused : NIL PARVEEN A Digitally signed by PARVEEN A BANKAPUR BANKAPUR Date: 2025.07.15 15:45:16 +0530 (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.