Bangalore District Court
Sanjjanna Archana Galrani vs Ramesh Puppalla on 25 January, 2025
KABC0C0202742021
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 25th day of January, 2025
C.C.No.56255/2021
COMPLAINANT : Mrs. Sanjjanna Archana Galrani
Aged about 34 years,
C/o. Azeez Pasha,
R/ at No.47, Flat No. 001,
Sai Teja Shrine, Off 100 Feet Road,
Indiranagar- 560 008.
(By Mr.S.K. Mithun - Advocates)
V/s
ACCUSED : Mr. Ramesh Puppalla
Aged major,
R/at: A-1, Block,F lat No 107,
Aditya DSR Lake Side Apartment,
J V Colony Main Road, Mouryas
Ranga Prasad Avenue, Indira Nagar,
Gachibowli, Hyderabad,
Telangana - 500 032
(By Mr. M.R. Shalamala & Narasimha
Reddy - Advocates)
1 Date of Commencement 05.07.2021
of offence
2 Date of report of offence 09.09.2021
3 Presence of accused
3a. Before the Court 05.08.2022
3b. Released on bail 05.08.2022
4 Name of the Complainant Mrs. Sanjanna Archana Galrani
5 Date of recording of 28.10.2021
evidence
6 Date of closure of evidence 09.10.2024
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is not found guilty.
2
C.C.No.56255/2021
JUDGEMENT
The Private Complaint 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, she being one of the leading influencers, artist, celebrity and having created her own identity in the society and in film industry is a very known person in the Kannada and other language film industry. The Accused introduced to her stating that he is a profession film producer and in the industry for several years and have invested in many upcoming movies and film in Telugu industry It is further submitted by the Complainant that she approached by the Accused and had requested her support the upcoming movie by the Accused and the Accused had also requested her for financial help and had also promised that in future films she would be introduced in the Accused production banner.
The Complainant further submits that, to expand her field of performance in Telugu industry and with business interest 3 C.C.No.56255/2021 she decided to financially help the Accused and lent Rs.35 lakhs through cash and bank transfer and also through common friends in the year 2013 and 2014. Believing the Accused's words had invested in Accused's film production for which the Accused had promised the Complainant that he would be returning the entire amount along with profit and also would be starring the Complainant in the Accused's future film production as soon as the ongoing film is completed and released.
It is further submitted that her friends informed that the Accused is being cheating several celebrities, models and female artists and has utilized their innocence and money for his personal use, illegal gain and has illegally collected hug investments from different female celebrities and used their money for his personal benefit.
It is further submitted that after knowledge the Accused's true color, the Complainant requested for the return of money and waited for years and requested for information regarding the film, production or the update over the return of the money borrowed.4
C.C.No.56255/2021 It is further submitted that upon her continuous follow ups and demands, the Accused had called up for the meeting and admitted that he has utilized her money for his personal benefit and requested her to give additional time to return the same.
It is further submitted that inspite of giving additional time, the Accused has not return the said amount. Finally, the Accused issued a Cheque bearing No.076128 dtd.5.7.2021 for Rs.50,00,000/- drawn on ICICI Bank, Kavuri Hills branch, Hyderabad. with an assurance the same would be honoured on its presentation for encashment and informed that, the additional amount of Rs.15 lakhs is towards damages, loss incurred to the Complainant.
It is further submitted by the Complainant that believing the words of the Accused, she presented the said cheque through her banker i.e., HDFC Bank, Old Airport Road branch, Bengaluru for encashment. However the cheque was dishonoured with an endorsement as "funds insufficient".
Thereafter, the Complainant got issued a legal notice by RPAD on 28.7.2021. But the same was returned with a shara 'No such person in the address' on 19.7.2021. Despite knowledge 5 C.C.No.56255/2021 of legal notice, the Accused has neither paid the Cheque amount. Accordingly, the 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 Complainant got examined herself as PW-1 and got marked documents Ex.P.1 to Ex.P.6 and closed her side.
6. 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 6 C.C.No.56255/2021 same. The Accused got examined himself as DW1 and got marked 9 documents at Ex.D1 to Ex.D9 and close his side.
7. Heard arguments of both sides at full length. In addition to the oral arguments, both the learned counsels appearing for parties have filed their respective written arguments.
The learned Counsel for Complainant has placed the following citations;
a. 2006 Cri.L.J. 3111 b. 2003 (2) KLJ 513 c. 2012 BOM CR (Cri) 764 The learned Counsel for Accused has placed the following citations;
1. 2019 (2) ALT (Crl) 1 SC in the case of Basalingappa Vs. Mudibasappa
2. 2023 LiveLaw (SC) 46 in the case of Rajaram V/s. Maruthachalam since deceased through LRs
3. 2015 (2) ALD (Crl) 603 SC in the case of K. Subramani Vs. K. Damodara Naidu
4. 2009 (1) ALD (Crl) 468 (SC) in the case of Kumar Exports V/s. Sharma Carpets 5.2017(1) ALT (Crl) 259 (AP) in the case of K. Venkata Krishna Prasad V/s. Peram Sai Swarupa, Vijayawada & another 7 C.C.No.56255/2021
6. 2017 (1) ALT (Crl) 320 (AP) in the case of K. Ashok Kumar Goud V/s. Sree Ramulu and another
7. II (2009) BC 224 in the case of Shivamurthy V/s. Amruthraj
8. 2015 (2) ALD (Crl) 510 in the case of Vallabhaneni Srinivasa Rao V/s. Mangalapudi Venkateswarlu and another
9. 2017 (2) ALT (Crl) 279 (AP) in the case of R. Chennakesava Rao V/s. P. Laxmi Narasaiah & another
10. AIR 2009 (NOC) 2327 (BOM.) in the case of Sanjay Mishra V/s. Ms. Kanishka Kapoor @ Nikki and another
11. Crl. R.C. No.173 of 2015 in the case of C. Ramesh V/s. Sakthivel
12. 2015 (3) ALT (Crl) 421 (AP) in the case of Gerard Kollian V/s. M/s. Weis Electronics and industrial Services (P) Ltd and others
13. 2004 (1) ALT (Crl) 39 (AP) in the case of R. A. Yesubabu Vs. D. Appala Swamy and another
14. 2006 (3) ALT (Crl) 175 (AP) in the case of C.S. Madhusudhan V/s. B. Eswaramma and another
15. 2004 (1) ALD (Crl) 815 (AP) in the case of K. Annaji Rao V/s. N. Krishna Raju Sekhar & another
16. Aironline 2019 Del 940 in the case of R.L. Varma & Sons V/s. P.C. Sharma
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 No.076128 dtd.5.7.2021 for Rs.50,00,000/-8
C.C.No.56255/2021 drawn on ICICI Bank, Kavuri Hills branch, Hyderabad in favour in favour of the complainant which came to be dishonoured with an endorsement "funds insufficient" 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 Negative 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 "insufficient funds".
11. It is the core contention of the complainant that, she being one of the leading influencers, artist, celebrity and 9 C.C.No.56255/2021 having created her own identity in the society and in film industry is a very known person in the Kannada and other language film industry. The Accused introduced to her stating that he is a profession film producer and in the industry for several years and have invested in many upcoming movies and film in Telugu industry. To expand her field of performance in Telugu industry and with business interest she decided to financially help the Accused and lent Rs.35 lakhs through cash and bank transfer and also through common friends in the year 2013 and 2014. Believing the Accused's words had invested in Accused's film production for which the Accused had promised the Complainant that he would be returning the entire amount along with profit and also would be starring the Complainant in the Accused's future film production as soon as the ongoing film is completed and released. It is further submitted that her friends informed that the Accused is being cheating several celebrities, models and female artists and has utilized their innocence and money for his personal use, illegal gain and has illegally collected hug investments from different female celebrities and used their money for his personal benefit. 10
C.C.No.56255/2021
12. It is further submitted that after knowledge the Accused's true color, the Complainant requested for the return of money and waited for years and requested for information regarding the film, production or the update over the return of the money borrowed. Thereafter after several continuous demands, the Accused agreed to return the amount along with damages and issued a Cheque bearing No.076128 dtd.5.7.2021 for Rs.50,00,000/- drawn on ICICI Bank, Kavuri Hills branch, Hyderabad. with an assurance the same would be honoured on its presentation for encashment and informed that, the additional amount of Rs.15 lakhs is towards damages, loss incurred to the Complainant, which was dishonoured with an endorsement as "funds insufficient" on its presentation. Thereafter, the Complainant got issued a legal notice by RPAD on 28.7.2021. But the same was returned with a shara 'No such person in the address' on 19.7.2021. Despite knowledge of legal notice, the Accused has neither paid the Cheque amount. Accordingly, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
11
C.C.No.56255/2021
13. In order to bring home the guilt of the accused, Complainant got examined herself as PW1 and reiterated the contents of complaint in her examination-in-chief. She has also placed original No.076128 dtd.5.7.2021 at Ex.P1, bank endorsement at Ex.P2, office copy of legal notice issued by the Complainant to the Accused on 28.7.2021 at Ex.P3, postal receipt at Ex.P5, Ex.P5 is the returned postal cover and Ex.P6 is the payment receipt.
14. The documents produced by the complainant of course established that 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. 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 12 C.C.No.56255/2021 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".
16. Further Section 139 of the Negotiable Instruments Act reads as under:
"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."
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 AIAR (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--13
C.C.No.56255/2021 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."
17. Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju & Others (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 14 C.C.No.56255/2021 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)
(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)
18. 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 15 C.C.No.56255/2021 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 presumption that every negotiable instrument, is accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."
19. Factual matrix of the case is required to be tested on the anvil of principles emerging from the above-referred decisions.
20. The defence taken by the Accused is that, he is a physical handicap person and lost his right hand in the accident and he put his signature with his left hand because of that, he used to put his signature on blank non-judicial stamp papers on blank signed cheque and also blank letter head papers and same were given to his Secretary and in turn she used to give payments to the artists and employees in his absence. It is further submitted by the Accused that the Complainant managed his secretary and had taken blank signed stamp papers and signed blank cheques of the Accused from his secretary and misusing the same and filed the present 16 C.C.No.56255/2021 false complaint. Further defence taken by the Accused that the present claim is time barred debt.
21. To substantiate her claim the Complainant examined herself as PW1. In the evidence she deposed that, she is artist celebrity and having created her own identity in the society and film industry in Kannada and other languages. It is further deposed that, the Accused introduced himself stating that he is a film producer and in the industry for several years and have invested in many upcoming movies and film in Telugu Industry. It is further deposed that, the Accused approached the Complainant and requested to support in the upcoming movie and also requested the Complainant for financial help and promised that in his future films, he would be introduced in the Accused's production banner. It is further deposed that, inspite of busy schedule the Complainant took time and discussed with the Accused about the financial assistance n the Accused's ongoing film production. It is further submitted that, the Complainant was never interested in performing under the Accused's banner, however to expand her field of performance in Telugu industry and with business interest, she decided to financially help the Accused by lending Rs.35 lakhs which was 17 C.C.No.56255/2021 paid by her by way of cash and also bank transfer and also through common friends in the year 2013-14. It is further deposed that, she came to know that the Accused was having a very luxury life and organizing huge parties and inviting different celebrities, actors, models especially young women, believing the Accused's social status and to maintain good relationship with Telugu industry, the Complainant paid the amount to the Accused. It is further deposed that, later Complainant was informed through her movie friends that the Accused is being cheating several celebrities, models and female artists by utilizing their innocence and money, illegal gain and have illegally collected huge investments from different female celebrities and have used their money for her personal benefit and not returning the investment or the profit and It is further deposed that, after knowing the Accused's true color, immediately the Complainant requested for return of her money and waited for years. It is further deposed that, on every occasion the Accused has given reasons for which are unbelievable and Complainant waited patiently since both parties were into movie industry and producers have huge connection and initiating legal actions against one producer 18 C.C.No.56255/2021 might loose reputation. It is further deposed that, after continuous follow ups and demands, Accused admitted hat, he had utilized the money for his personal benefit and he requested to give some additional time for arranging the money. It is further deposed that, even after giving sufficient time Accused failed to return the amount or the profit which he was promised. It is further deposed that, the Complainant informed to the Accused that she would be initiating legal action against him. Thereafter, the Accused issued personal cheque as per Ex.P1 and also informed that the additional amount of Rs.15 lakhs towards damages and loss incurred by her will be cleared through this cheque. It is further deposed that, after presentation of Ex.P1 cheque for encashment it was dishonoured with reason "funds insufficient" as per Ex.P2. Thereafter, the Complainant got issued legal notice to the Accused as per Ex.P3 calling upon him to pay the cheque amount, which is returned unserved as no such person in the address as per Ex.P5.
22. Considering the oral and documentary evidence placed by the Complainant prima facie presumed that Ex.P1 cheque was issued by the Accused towards discharge of legally 19 C.C.No.56255/2021 enforceable debt. To rebut the presumption, the learned Counsel for Accused cross-examined the PW1 in full length. In the cross-examination it is admitted that, Complainant is permanent resident of Bengaluru and also admits that, the Accused was film producer in Telugu Film Industry. It is further admits that one fo the film by name Veerappakaya Telugu film produced by the Accused is blockbuster movie in the year 2010. It is further stated in the cross-examination that, she met the Accused first time in the year 2012, but she denied that, Paisa movie produced by the Accused. It is further denied that initially the Complainant was booked as a heroine in that movie and also denied that, the Accused advanced to the Complainant for Rs.15 lakhs. It is further denied that as per the direction of director, Accused removed the Complainant from that movie. It is further denied by the PW1 that, whenever the Complainant and her mother visited to Hyderabad, they were stayed in the guest house of Accused. It is further denied that, for returning of Rs.15 lakhs the mother of the Complainant was issued cheque for Rs.5,25,000/-, but she stated that, it is given to the Accused as a handloan. In the cross-examination PW1 stated that, during the month of April 2013 to April 2014 she had paid 20 C.C.No.56255/2021 Rs.40 lakhs amount to the Accused in different installments. She admitted that, in the legal notice the amount was mentioned as Rs.35 lakhs as lent by her. in the cross- examination of PW1 she admits that she know the secretary of the Accused by name Ms. Anupama Jyothy and she acquainted with Ms.Anupama Jyothy through Accused. In the cross- examination further she stated that the lent amount to the Accused is reflected in the income tax return filed by her. She further stated that she is ready to produce the bank account statement and not ready to produce the income tax returns. In the cross-examination she further stated that on 16.4.2014 she received Ex.P6 from the Accused. She further admits that at the time of filing of complaint Ex.P6 is in her custody. She further admits that, in Ex.P 6 in the column of subject it is mentioned that, "receive money Rs.40 lakhs from Ramesh Uppala". She further stated that her mother was wrote Ex.P6. She denied that Ex.P6 is fabricated document and not executed by the Accused. In the cross-examination she stated that, 2014 onwards dispute arises between herself and Accused. She further stated that, after 20.10.2015 she has not issued legal notice to the Accused for repayment of Rs.40 lakhs. She denied 21 C.C.No.56255/2021 that, she managed with secretary of the Accused and obtained blank stamp paper and signed blank cheques, which were given by the Accused to his secretary. It is further stated that, Ex.P6 is addressed to her mother. It is denied by the PW1 that, there is no money transaction between her mother and Accused. She further denied that she has no financial capacity to lend to Accused. In the cross-examination PW1 stated that, she collected two cheques from the Accused in the month of April 2021. She further stated that Ex.P1 is the one cheque and from another cheque her mother was filed complaint against the Accused. It is further denied by the PW1 that, he had issued notice to the Accused on wrong address with malafide intention.
23. To rebut the presumption, the Accused examined himself as DW1. He deposed that, he did not borrow any amount from Complainant at any point of time. He further deposed that he never issue any cheque in favour of Complainant at any point of time. It is further deposed that, he produced Telugu movies since 2009 and in fact he booked the Complainant to act in 'Paisa' movie and given an amount of Rs.15 lakhs towards advacne in the year 2012 and subsequently on the advise of the director of the movie, he 22 C.C.No.56255/2021 removed the Complainant from movie and booked another heroine. It is further deposed that for returning of advance amount of Rs.15 lakhs the Complainant issued cheque bearing No.760064 for Rs.5,25,000/- as a part payment, which belongs to her mother and it was dishonoured and out of friendship the Accused has not initiate any criminal case against the Complainant and her mother. It is further deposed that, on 4.4.2016 he signed blank cheque book, bank passbook and signed blank non-judicial stamp papers were misplaced for which he gave complaint at Madhapura police station and police people demanded to inform the cheque numbers and also value of stamp papers which he could not furnish, therefore, the police people gave an endorsement as 'the application has failed to submit the relevant documents, hence rejected' which as per Ex.D8. It is further deposed that after filing of this complaint, he came to know that the Complainant and her mother managed his secretary and took blank signed cheques and blank stamp papers in the year 2016. It is further deposed that, the Complainant has no financial capacity to lent such huge amount. It is further deposed that, he have not received any legal notice from the Complainant and she sent the notice 23 C.C.No.56255/2021 to the wrong address which he never resided in that address. It is further deposed that, he is a physically handicapped person, he lost his right hand in an accident and he put his signatures with left hand, because of that he used to put his signatures on blank stamp papers, blank signed cheques and also blank letter head papers and same were given to his secretary and in turn she used to give payments to the artists and employees in his absence. It is further deposed that the Complainant managed his secretary and had taken blank signed stamp papers and signed blank cheques from his secretary and same fact was came to know by him after receiving the court summons. It is further deposed that, as per the complaint the transaction between the Complainant and Accused in the year 2013-14 and Ex.P1 cheque was dtd.5.7.2021. Therefore, it is time barred debt.
24. To support of his oral evidence, the Accused placed his Aadhaar Card as per Ex.D1, certified copy of complaint in C.C.No.18305/2022 as per Ex.D2 and he produced other documents which marked at Ex.D3 to 9. In the cross- examination he stated that, Rs.15 lakhs advance amount was paid by him through cash as advance amount of 'Paisa' movie. 24
C.C.No.56255/2021 He further stated that Rs.15 lakhs amount was withdrawn by him from Axis Bank account. In the cross-examination he stated that, his entire cheque book was lost and he stop payment to the bank through online. He further stated in the cross-examination that, till today the Accused and his secretary Ms. Anupama Jyothy are in phone contact. He denied that he never filed any complaint against Ms. Anupama Jyothy. In the cross-examination Ex.P6 stamp paper was purchased by his office staff. He further stated that, he never signed the document and agreements without he read over. He admits that the signature on the Ex.P6 is belongs to him. He denied that, after read over and after knowledge only, he signed on Ex.P6. He denied that Ex.P6 is the document which shows that, he received Rs.40 lakhs from the Complainant and her mother. He further admits that, Ex.P1 cheque belongs to his account and also admits his signature on Ex.P1. He stated in the cross- examination that, 'Paisa' movie was released in the month of August 2014. He denied that for the 'Paisa' movie he was not advanced any amount to the Complainant. He unable to say that handwriting on Ex.P1. He denied that, towards repayment of loan amount, he issued Ex.P1 in favour of Complainant. He 25 C.C.No.56255/2021 denied that, Ex.D6 was executed in his office. It is further stated that Ex.D3 cheque was issued mother of the Complainant. He further stated that with respect of Ex.D3 he was not taken any legal action against the mother of the Complainant. He denied that, as he was executed Ex.D6 he liable to pay cheque amount to the Complainant.
25. Considering the oral and documentary evidence placed by both parties, it is clear that the Complainant is a celebrity and actress and artist and created her own identity in film industry. It is further clear that Accused is a producer of Telugu film industry. It is further clear that there is a financial transaction between Complainant, Accused and Complainant's mother. It is further clear that, Ex.P6 document was executed in the year 2015. Further, as per the contention of the Complainant, it is clear the Complainant was lent an amount of Rs.35 lakhs to the Accused in the year 2013 to 2014. Further it is clear that, Ex.P1 cheque was issued in the year 2021. It is admitted by the Accused that, since 2010 to 2016 she was very busy actress and also he admits that, actors and actresses take advances to act in movies. He further admits that, when the actress is been removed, the producers would ask the actor and 26 C.C.No.56255/2021 actresses to return the amount. In the present case Accused stated that he had paid Rs.15 lakhs as an advance amount to the Complainant for the 'Paisa'. Since the director of that film was told him to remove thee actress i.e., Complainant. Therefore, the Complainant removed from the 'Paisa' movie and in the place of Complainant, another actress was taken. Therefore, the Accused asked for repayment of Rs.15 lakhs advance amount from the Complainant. It is further stated by the Accused that for the repayment of said advance amount, the mother of the Complainant was issued cheque for Rs.5,25,000/- on 22.4.2023 and said cheque was dishonoured, which is admitted by the Complainant also in her cross- examination. The case of the Complainant is that she was lent Rs.35 lakhs to the Accused in the year 2013-14. She further stated that Rs.40 lakhs was paid by her in different installments to the Accused. It is pertaining to note that in the legal notice as well as in the complaint, it is stated by the Complainant that, she was lent Rs.35 lakhs to the Accused. Further it stated that towards damages and loss incurred for that, the Accused agreed to pay additional amount of Rs.15 27 C.C.No.56255/2021 lakhs. Therefore, the Accused has issued Ex.P1 cheque for Rs.50 lakhs in favour of Complainant.
26. On the other hand, the defence of the Accused is that, he lost his right hand in the accident and he could not signed from right hand and he used to his left hand for signature and writing. Therefore, he signed on the blank cheques and blank stamp papers and said blank stamp papers cheque book was hand over to his secretary by name Ms. Anupama Jyothi for the purpose of payment to the artists and employees in his absence. The Complainant managed his secretary and colluding with the secretary, had taken blanks signed stamp papers and signed blank cheques from his secretary had misused the same. On the other hand, he further taken defence that, his signed blank cheque book, bank passbook and singed blank stamp papers were misplaced, for that he have a police complaint to the Police Inspector, Madhapura on 4.4.2016. In the defence he has taken two contentions one is that, his signed cheque books and other papers were misplaced and he lodged complaint before the police and another contention is that, the Complainant colluding with his secretary, take signed blank cheques and signed stamp papers. Ex.D8 is the police 28 C.C.No.56255/2021 endorsement, in which it is mentioned that his application has been rejected for the reason that 'the applicant has failed to submit relevant documents, hence rejected. The Accused has not produced any such complaint or application filed by him before Madhapura police station. Therefore, the contention taken by the Accused is that, his signed cheque book, passbook and non judicial stamp papers were misplaced, is not sustainable. On the other hand, the has taken another contention that, the Complainant colluding with his secretary Ms. Anupama Jyothy secure the signed blank cheques and signed non judicial stamp papers and misused by her by filing of this complaint. It is pertaining to note hat to prove this contention, the Accused has not examined said Ms. Anupama Jyothy. It is pertaining to note that in the cross-examination of DW1, Accused stated that, till today Ms. Anupama Jyothy in his contact. Event that the Accused has not examined before this court for the allegation made against her. Further the Accused has taken any legal action against the said Ms. Anupama Jyothy and Complainant for misusing of his signed blank cheques and signed blank stamp papers. Therefore, this contention is also not proved by the Accused. 29
C.C.No.56255/2021
27. Ex.P6 is the undertaking letter executed by the Accused in favour of mother of the Complainant by name Mrs.Anitha Reshma Garlani. On perusal of Ex.P6 the stamp paper of the Ex.P6 was purchased by the Accused on 16.4.2014. On reading of Ex.P6 it is stated by the Accused that, he taken money sum of Rs.40 lakhs from the actress from Sanjana and her mother and due to some financial problem, he unable to clear the said loan from last two years and now he promised to clear the said amount on 20.10.2015. As per Ex.P6 it was executed by the Accused on 9.9.2015. The Accused has not denied his signature on Ex.P6. The contention of the Accused that, the Ex.P6 was fabricated by the Complainant by taking blank signed stamp paper from his secretary and created Ex.P6 document. For this also the Accused has not taken any legal action against the Complainant and his secretary for fabrication and creation of Ex.P6. Therefore, the Accused has failed to prove that his signed blank cheques and signed blank stamp papers were misused by the Complainant and Ms.Anupama Jyothy. Therefore, the Accused failed to rebut the presumption u/Sec.139 of N.I Act.
30
C.C.No.56255/2021
28. The main defence of the Accused is that, the claim made by the Complainant is time barred debt. As mentioned in the complaint as well as in the cross-examination of PW1, she clearly stated that she lent an amount of Rs.35 lakhs to the Accused in the year 2013-14. It is further clearly stated that cheque was issued by the Accused on 9.7.2021 and there is no any acknowledgement in between 2013 to 2021. Therefore it is time barred debt and it is not legally enforceable debt. On the other hand, the learned counsel for Complainant argued that, Ex.P6 is executed by the Accused by undertaking that he will return Rs.40 lakhs amount to the Complainant and her mother on 20.10.2015 and Accused is admitted signature on the cheque and also not denied that Ex.P1 cheque was not belongs to him. They further argued that, Accused has admitted in Ex.D6 which executed in the year 2016 between mother of the Complainant and Accused wherein he admits receipt of Rs.35 lakhs. Therefore, it is legally recoverable debt and it is not time barred debt as per Sec.25 (2) of Indian Contract Act. In this regard, they have relied judgement of Bombay High Court in Cri.Rev.Petition 3/2005 in the case of Narendra V. Kanekar 31 C.C.No.56255/2021 V/s. The Bardez Taluka Co-op. Housing Mortgage Soc. Ltd. and others wherein the Hon'ble Bombay High Court held that;
"Clause 3 of 25 of Indian Contract Act in substance does is not to revive a dead right, for the right is never dead at any time, but, to resuscitate remedy to enforce payment by suit, and if payment could be enforced by a suit, it means that, it still had the character of legally enforceable debt as contemplated by explanation below section 138 of Act. As far as aspect of case is concerned, the Learned Division Bench observed that, to determine as to whether or not a liability was legally enforceable, the provisions of the Contract Act cannot be said to be irrelevant. It can provide a cause for legal liability. Although primary question answered by the Division Bench was that a cheque becomes a promise to pay u/Sec.23 of the Contract Act, 1872."
29. In the said judgment, the Hon'ble High Court of Bombay further held that;
"If a suit could be filed pursuant to a promise made in writing and signed by the person to be charged therewith, as contemplated by clause-3 of Sec.25 of the Law of Contract, then in my view, the debt becomes legally enforceable debt and if a cheque is given in payment of such debt is dishonoured and subsequently, the statutory notice is not compiled 32 C.C.No.56255/2021 with, then the person making promise in writing and issuing the cheque, would still be liable to be punished u/Sec.138 of the Act."
30. Further learned Counsel for Complainant relied no decision of Hon'ble High Court of Kerala in Cri.R.P. No.238/1996 in the case of K. K. Ramakrishnan V/s. K.K. Parthasaradhy and others wherein in para No.222 the Hon'ble High Court of Kerala held that;
No.1 - "When a person issues a cheque, he knowledge his liability to pay. In the event of cheque being dishonoured on account of insufficiency of funds he will not be entitled to claim that, the debt had become time barred limitation and that the liability was not thus legally enforceable. He would be liable for penalty in case the charge proved against him."
31. Further the learned Counsel for Complainant relied on decision of Hon'ble Bombay High Court in the case between Dinesh B Chokshi and other Vs. Rahul Vasudeo Bhatt and others. The Hon'ble Bombay High Court held in para No.19 and 20 that;
No.19 - "While recording our answers to the first question, we have already held that the cheque 33 C.C.No.56255/2021 issued for discharge of debt which is barred by law of limitation is itself a promise within the meaning of sub-Sec.3 of Sec.25 of the Contract Act. A promise is an agreement and such promise which is covered by Sec.25 (3) of the Contract Act becomes enforceable contact provided that the same is not otherwise void under the Contract Act.
No.20 -Therefore, while answering second question, we are specifically dealing with a case of promise created by a cheque issued for discharge of a time barred debt or liability. Once it is held that, a cheque drawn for discharge of time barred debt creates a promise which becomes enforceable contract, it cannot be said that the cheque is drawn in discharge of debt or liability which is not legally enforceable. The promise in the form of a cheque drawn in discharge of a time barred debt or liability becomes enforceable by virtue of Sec.3 of Sec.25 of the Contract Act. Thus, such cheques becomes a cheque draw in discharge of a legally enforceable debt as contemplated by explanation to Sec.138 of the said Act. Therefore, even the second question will have to be answered in the affirmative".
32. On the other hand, the learned counsel for Accused argued that, as per contention of the Complainant the transaction took place between the parties in the year 2013-14 34 C.C.No.56255/2021 and Ex.P6 is executed in the year 2015 and EX.D6 is executed in the year 2016 and Ex.P1 cheque was issued in the year 2021. In between 2013 to 2021 and in between 2016 to 2021 no acknowledgement between both parties and Ex.P6 is the fabricated document. There is no whisper about the existence of Ex.P6 document either in the legal notice or in the complaint or in the examination in chief affidavit. Therefore, Ex.P6 is fabricated document was created by the Complainant for this case only. Further they argued that the mother of the Complainant was not examined as the contention of the Complainant is that, her mother was drafted Ex.P6 which addressed to her mother and Accused undertake receipt of Rs.40 lakhs and he will undertake he should be returned the same on or before 20.10.2015.
33. Further the learned counsel for Accused argued that, the Ex.P1 cheque was issued in the name of Archana Galrani and complaint is filed in the name of Sanjjanna Archana Galrani. In the cross-examination of PW1 in para No.14 she deposed that, before her marriage, her name is mentioned the bank account as 'Archana Galrani' and after marriage she gave a letter to the bank authority for change of her name and her 35 C.C.No.56255/2021 marriage was performed on 18.10.2020. As per Ex.P2 bank endorsement issued in the name of Archana Galrani Manohar. It is pertaining note that in the cross-examination of Pw1, she stated that, she has not mentioned changing of her name in notice, complaint and examination in chief. Therefore, the learned counsel for Accused argued that issuance of cheque in the name of Complainant is doubtful. In the present case, it is not seriously depute that Sanjjanna Archana Galrani, Archana Galrani and Archana Galrani Manohar all are names of one person. As she stated in the cross-examination that, after marriage, her name is changed as Archana Galrani Manohar. Therefore the contention take by the Accused that, issuance of cheque by the Accused in the name of Complainant is not sustainable.
34. As above stated, the main and strong defence of the Accused is that, the claim is time barred debt, which is not enforceable debt. In this regard, the learned counsel for Accused relied on judgement of Hon'ble Supreme Court of India in Sasseriyil Joseph V/s. Devassia dtd.10.9.2001 wherein the Hon'ble Supreme Court held that;
"We have heard the learned counsel for petitioner.36
C.C.No.56255/2021 We have pursued the judgment of the Hon'ble High Court of Kerala in Cri.Apl.No.161/1994 confirming the judgement/order of acquittal passed by Additional.
Session Judge, Thalassery in
Cri.Apl.No.212/1992 holding inter alia that the
cheque in questions having been issued by the Accused for due which was barred by limitation the penal provision u/Sec.138 of the Negotiable Instrument Act is not attracted in the case.
On the facts of the case as available on the records and the clear and unambiguous provision in the explanation to Sec.138 of the Negotiable Instrument Act, the judgement of lower appellate court as confirmed by the High Court is unassailed.
Therefore, the Special Leave Petition is dismissed.
Further the learned counsel for Accused relied on judgement of Hon'ble Kerala High court in the case of Sasseriyil Joseph V/s. Devassia dtd.22.9.2000 wherein the Hon'ble Kerala High Court held that;
6 - "The only question that arises for consideration in this application is whether the respondent who issued the cheque in question in discharge of a time barred debt is liable u/Sec.138 of the Negotiable Instrument 37 C.C.No.56255/2021 Act. In this case, the Complainant had admitted that the loan was advanced to the Accused in January 1988 and the cheque was issued in February 1991. Thus, by the time, the cheque was issued, the debt was barred by limitation since there was no valid acknowledgement of the liability within the period of limitation. According to the learned counsel for Appellant, the promised made by the Accused to repay the time barred debt, would come within the purview of Sec.25 (3) of the Indian Contract Act. No doubt, the promise to pay a time barred cheque (debt) is valid and enforceable, if it is made in writing and signed by the person to be charged therewith. But, it is clear from Sec.138 of N.I. Act that in order to attract the penal provisions in the bouncing of a cheque in Chapter XVII, it is essential that the dishonoured cheque should have been issued in discharge in wholly, or in part, or any debt or other liability of the drawer to the payee. The explanation to Sec.138 defines the expression debt or other liability as a legally enforceable debt or other liability. The explanation to the Sec. 138 reads as under;
Explanation - For the purpose of this section 'debt or other liability means a legally enforceable debt or other liability'.
38
C.C.No.56255/2021 7 - Thus, Sec.138 is attracted only if the cheque is issued for the discharge of legally enforceable debt or other liability. In this case, admittedly, the cheque in question was issued in discharge of a time barred debt. It cannot be said that a time barred debt is a legally enforceable debt. In this connection it is also relevant to note the decision of the Andhra Pradesh High Court reported in Giridhari Lal Rathi V/s. P.T.V. Ramanujachari 1997 (2) Crimes 658 it has been held in that case that if a cheque is issued for a time barred debt and it is dishonoured, the Accused cannot be convicted u/Sec.138 of the N.I. Act simply on the ground has the debt was not legally recoverable. I am fully in agreement with the view expressed by the learned Judge in the decision referred to above.
8 - The learned counsel for Appellate placed strong reliance on the decision of Madras High Court reported in S.Krishnamurthy V/s. A.R. Rajan 1996 Cri.L.J.3552. In that case, it was contended for the Accused the cheque in question dtd.23.4.1989 alleged to have been issued in respect of the debts including under the promissory notes dtd.20.3.1985 and 8.4.1985 is not respect of legally enforceable debts and liabilities, within the meaning of Sec.138 of the N.I. Act since the debts under the Pro-notes are barred by limitation on the date of issuance of the cheque dtd.23.4.1989. But, the court found that in respect of alleged two time barred pro-notes, the Accused has paid interest on various dates and thereby the pro- 39
C.C.No.56255/2021 notes have not become time barred. In this case, the Complainant has no case that the Accused has paid interest on the amount borrowed from him in 1987 and there valid acknowledgement of the debt within the period of limitation. As noticed earlier, since there was no acknowledgement of the debt before the expiry of 3 years from the date of loan, the debt was not legally enforceable debt at the time of issuance of the cheque. 9 - For the reasons stated above, I find no reason to the interfere with the order of acquittal passed by Addl. Sessions Judge. I see no infirmity in the judgment of lower court, this appeal is groundless and is liable to be dismissed.
The above decisions of the Hon'ble Kerala High Court in the case of Sasseriyil Joseph V/s. Devassia is upheld by the Hon'ble Supreme Court of India as stated supra.
35. The learned counsel for Accused relied 1997 (1) ALT Crl. Page 509 Andhra Pradesh High Court between Giridhari Lal Rathi V/s. PTV Ramanujachari & another. Further the judgement of Madras High Court CRI.RC (MD) No.173/2015 in the case of C.Ramesh V/s. S. Sakthivel Further relied on judgement of Hon'ble Andra Pradesh High Court in 2015 (3) ALT Cri.Page 421 in the case of Gerard 40 C.C.No.56255/2021 Kollian V/s. M/s. Weis Electronics and Industrial Services Pvt. Ltd and others.
Further, the judgement of Andhra Pradesh High Court in 2004 (1) ALR Cri. Page 39 in the case of A. Yesubabu V/s. D. Appalaswamy and another All above decisions are held that, time barred debt is not legally enforceable debt and Accused is entitled for acquittal.
36. It is useful to refer the decision of Hon'ble High Court of Karnataka Kalburagi Bench in Cri.Apl.No.200057/2016 in the case of Bidar Urban Co-op. Bank Ltd., V/s. Mr. Girish S/o. Late Gunderao Kulkarni the Hon'ble High Court observed that;
"Thus, for the purpose of filing within the ambit of Sec.138 of the Act, one of the ingredients which is required to be satisfied is that there is legally enforceable debt. In the facts of present case, as noted earlier, the amounts in question had been paid during the period 1991 to1997, under the circumstances, the period of limitation which is 3 years had clearly expired by the end of the year 2000. Therefore, the Cheques which were issued in the year 2002, evidently were issued in respect of time-barred debts. In view of the explanation to Sec.138 of the Act, a debt or liability referred to in Sec.138 of the Act 41 C.C.No.56255/2021 means a legally enforceable debt. Under the circumstances, even if the case of the Complainant is accepted that such Cheques had, in fact, been issued by the Accused towards a debt of Rs.42 lakhs, even then, the same would be relatable to a time-barred debt and therefore, cannot be said to have been issued in respect of a legally enforceable debt. The provisions of Sec.138 of the Act would, therefore, not be attracted in the facts of present case.
Further the Hon'ble Court in para 36 of its judgement referred decision of Hon'ble High Court of Bombay in a case of Chandra Mohan Mehta Vs.William Rosario Fern Andes and Another reported in 2008 SCC Online Bombay 1590 referring to its earlier decisions and decision of Madras High Court in the case of N.Ethirajulu Naidu Vs. K.R. Chinnikrishnan Chettair AIR 1975 Madras 333 held at para No.7 and 8..........
Further the Hon'ble High Court also referred decision of Chacko Varkey Vs. Thommen Thomas AIR 1958 KER 31 of Full Bench of Kerala High Court considered the scope of Sec.25 (3) of the Indian Contract Act which also supports the Accused defence.
The Hon'ble High Court in para No.39 observed that; in view of the principles stated in the above referred decision and discussion, it is evident that the penal provision of Sec.138 of N.I. Act is applicable 42 C.C.No.56255/2021 only to the Cheques which are issued for the discharge in whole or in part, of any debt or other liability, which according to explanation must be a legally enforceable debt or other liability. A Cheque given in discharge of a time barred debt will not constitute an unconditional undertaking or promise in writing either expressly or impliedly so as to attract the criminal offence u/Sec.138 of N.I. Act. This was elaborated in SASSERIYIL JOSEPH's case (supra) which is affirmed by the Hon'ble Supreme Court as stated above. A Cheque given in discharge of a time- barred debt will not constitute a promise in writing not even an implied promise so as to attract a criminal liability u/Sec.138 of N.I. Act."
37. In the present case also admittedly the transaction took place between the parties in the year 2013-14 and Ex.P6 is executed on 9.9.2015. Ex.D6 is executed on 28.2.2016 and cheque was issued on 5.7.2021. In between 2016 to 2021 there is no any acknowledgement in writing by the either party. The date of expiry of limitation was lapsed in the year 2019. The cheque was issued after lapse of 5 years on execution of Ex.D6. Therefore, the debt is clearly time barred debt which was not enforceable under the law. Therefore, the present debt is not legally enforceable at the time of issuance of Cheque, the time 43 C.C.No.56255/2021 limit for enforcement of cheque was lapsed. Therefore, the Complainant failed to prove that, the Ex.P1 Cheque was issued by the Accused for discharge of legally enforceable debt. On the other hand, the Accused rebut that the Ex.P1 cheque was time barred debt and it is not legally enforceable debt.
38. As observed in the above decisions, it is clear that, the Cheque amount is time barred debt and it is not legally enforceable debt. Therefore, the Accused is not liable to punish u/Sec.138 of N.I. Act. The Complainant has not proved her case as to commission of offence punishable u/Sec.138 of N.I. Act by the Accused. Hence, I answer Point No.1 in the Negative.
39. Point No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting U/S 255(1) of Cr.P.C., the accused is acquitted for the offence punishable Under Section 138 of Negotiable Instrument Act.
His personal bond stands cancelled.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 25th January, 2025) (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.
44
C.C.No.56255/2021 ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mrs. Sanjjanna Archana Galrani
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 Postal receipt Ex.P.5 Postal cover Ex.P.6 Payment Receipt
3. Witnesses examined on behalf of Accused:
D.W.1 Mr. Puppalla Ramesh Kumar
4. Documents marked on behalf of Accused:
Ex.D.1 Copy of Aadhaar Card
Ex.D.2 Certified copy of complaint in C.C
No.18305/2022
Ex.D.3 & 4 Certified copy of Cheques
Ex.D.5 Certified copy of bank endorsement
Ex.D.6 Certified copy of Agreement
Ex.D.7 Certified copy of notice
Ex.D.8 Endorsement issued the police
Ex.D.9 Certificate u/Sec.65 (B) of Indian Evidence Act
(PARVEEN A BANKAPUR)
XXXIV ACJM, BENGALURU.