Bangalore District Court
Sudhakar Sulkude vs M/S Shankara Building Products Limited ... on 12 November, 2025
KABC010094882023
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 12th day of November, 2025
:PRESENT:
Smt. Pallavi.R, B.Sc., LL.M,
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
CRI. A.No.454/2023
APPELLANT/ : Yash Trading Company
ACCUSED Rep. by it's Proprietor
Mr. Sudhakar Sulkade,
S/o Shivram Sulkade,
Aged about 60 years,
Indian Hindu Inhabitant of Kolhapur,
At Plot No.44, Dattoba Shinde Nagar,
Surve Nagar, Kolhapur,
Maharashtra.
(By Sri. V. Naveen Kumar, Adv.,)
V/s
RESPONDENT/ : M/s. Shankara Building Products Limited,
COMPLAINANT A Company Registered under the Indian
Crl.Apl.454/2023
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Companies Act, 1956,
Having its Registered Office
At G-2, Farah Windosr,
No.133, Infantry Road,
Bengaluru - 560 001.
Represented by it's
Senior Accounts Officer
Mr. Srinivasamurthy.N.
(By Sri. N.S, Adv.,)
JUDGMENT
The appellant has preferred this appeal under Sec.374(3) of Cr.P.C., challenging the judgment passed by the learned XI Addl., Small Causes Judge & ACMM, Bengaluru, (SCCH-12) in C.C.No.2908/2019 dated 04.03.2023, whereby the appellant has been convicted for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The appellant is the accused and respondent is the complainant before the Trial Court. For the purpose of convenience, the parties to this appeal are hereinafter referred to their rank in C.C.No.2908/2019 before the Trial Court in this appeal since the accused in the said case has preferred this appeal.
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3. The brief facts of the case is that, the complainant filed a complaint against the accused for the offence punishable U/Sec.138 of the N.I.Act alleging that, the complainant is one of the leading organized retailers of home improvement and building products and provides a wide range of building products in India with about 134 outlets across the country. Complainant has supplied GP and MS Steel pipes over a period of time for which several invoices were raised by the complainant on the accused for a total sum of Rs.48,70,940/-.
The accused made part payment due to the complainant company and thereafter stopped remaining payments. When pressed for payment, accused issued cheque bearing No.149673 dated 14.01.2019 for Rs.36,40,462/-, drawn on Kallappanna Awade Ichalkaranji Janata Sahakari Bank Ltd., Shahupuri, Kolhapur - 416002, in favour of the complainant towards full and final settlement of the dues.
When the said cheque was presented by the complainant Company for encashment through it's Banker i.e., Kotak Mahindra Bank, M.G.Road Branch, Bengaluru, it was returned dishonoured with an endorsement as "Funds Insufficient" on 01.03.2019.
Afterwards, the complainant got issued legal notice to the accused on 05.03.2019 through RPAD which was served to him and accused sent a reply dated 20.03.2019 with false grounds. Despite Crl.Apl.454/2023 4 due notice, accused failed to pay the amount covered under the cheque. Hence, the complainant is constrained to file complaint under Section 138 of the N.I.Act.
4. The Trial Court took cognizance of the offence after recording the sworn statement of the complainant. Thereafter, the present case C.C.No.2908/2019 has been registered and summons has been issued to accused for the offence punishable under Sec.138 of the Negotiable Instruments Act. On receipt of summons, the accused appeared before the Trial Court through his counsel and was enlarged on bail.
5. Thereafter, the Trial Court has recorded the plea of accused, however, the accused pleaded not guilty and claimed to be tried. Hence, the complainant in order to prove his case, got examined himself as PW.1 and got marked 13 documents as Ex.P.1 to P.13. Thereafter, statement of the accused under Sec.313 of Cr.P.C., is recorded. Accused has not lead any evidence.
6. The Trial Court on appreciation of the evidence on record, has convicted the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act and sentenced to pay fine of Rs.36,45,462/- in default he shall undergo S.I for a period of one year. It is ordered that, out of the fine amount an amount of Crl.Apl.454/2023 5 Rs.36,40,462/- shall be paid to the complainant as compensation and remaining amount of Rs.5,000/- is defrayed to the State.
7. Being aggrieved by the judgment of conviction and sentence the accused has come up with this appeal on the following grounds :
1) At the outset, the conviction is on completely topsy-turvy pleading and documents. The signature on the cheque is at variance with the signature on the reply to the demand notice is at variance with the vakalathnama of the accused. The report of handwriting expert is most relevant. The said report was addressed to the court.
He was not the witness for the defence.
2) The Trial Court never discussed the law and the legality in the judgment. The Trial Court should have appreciated that the accused could not have cross examined the complainant since there was nothing to cross examine. The defect is curable.
3) The cheque does not bear the signature of the accused. Even otherwise, by ocularly comparing the subject cheque with the admitted signature of the accused, there is substantial variance and difference in the signatures.
4) The accused has made out prima facie case.
Crl.Apl.454/2023 6 Hence, on these and amongst other grounds, the judgment of conviction and sentence passed by the court below is liable to be set- aside in the interest of justice and equity.
8. This appeal was presented before the Honb'le Prl. City Civil & Sessions Judge, Bengaluru, it was registered as Criminal Appeal No.454/2023 and made over to this Court for disposal according to law. After receipt of the records this court has issued notice to the respondent. The respondent appeared before this Court through his counsel. Thereafter, received the TCR.
9. Heard learned counsel for the appellant. The learned counsel for the respondent has filed written arguments. Perused the materials placed before me.
10. The learned counsel for the respondent has relied upon following citations :
1) K.N. Beena V/s Muniyappan & Others - (2001)8 SCC 458,
2) Jayam Company & Others V/s T. Ravichandran -
2003 Cri.L.J 2890,
3) Rangappa V/s Mohan - (2010) 11 SCC 441,
4) Shree Daneshwari Traders V/s Sanjay Jain & Others -
(2019) 16 SCC 83, Crl.Apl.454/2023 7
5) Kalamani Tex & Others V/s P. Balasumbramanian (2021)5 SCC 283,
6) Triyambak S. Hegde V/s Sripad (2022)1 SCC 742,
7) Malay Kumar Ganguly V/s Sukumar Mukherjee & Others 8 Raghu Lakshminarayanan V/s Fine Tubes, (2007) 5 SCC 103,
9) M.M. Lal V/s State NCT of Delhi & another, Crl.L.P.290/2010.
11. The points that arise for my consideration are as under:
1. Whether the appellant has made out sufficient grounds to condone the delay in preferring this appeal ?
2. Whether the Trial Court has committed any error in not appreciating the oral and documentary evidence lead by the parties ?
3. Whether the interference of this court is necessary in the impugned judgment of the trial court ?
4. What Order ?
12. My findings to the aforesaid said points are as follows:
Point No.1 : In the Affirmative
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Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : As per final order for the following ;
REASONS
13. POINT NO.1 : The accused has filed this appeal as against the judgment of conviction along with an application U/Sec.5 of the Limitation Act to condone the delay of 2 days in preferring the appeal.
As per the annexed affidavit it is stated that, the father of the appellant's counsel got operated at Manipal Hospital, Bengaluru and he was under post operative treatment. Hence, there is delay of 2 days in filing the appeal, which is bonafide and not intentional or deliberate. Hence, pray to condone the delay.
Respondent has not filed any objection.
The impugned judgment was passed on 04.03.2023. As per the affidavit, accused could not prefer appeal because father of his counsel was operated. It is apparent that accused could not prefer appeal in time due to bonafide reasons as assigned by him. As such, I answer Point No.1 in the Affirmative.
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14. POINT NO.2 & 3 : Both these points for consideration are taken together for discussion in order to avoid repetition of law and facts.
On going through the memorandum of appeal it is apparent that the accused has filed this appeal on the ground that signature of the accused varies on the cheque and reply notice and even as per the report of Government examiner, the signature does not belong to the accused.
15. Complainant chief examined by reiterating the complaint averments and to prove the transaction, he has relied upon the cheque as per Ex.P.1, bank memo as per Ex.P.2, copy of the legal notice as per Ex.P.3, postal acknowledgment as per Ex.P.4, reply notice as per Ex.P.5, invoices as per Ex.P.6 to P.10, ledger account extract as per Ex.P.11, certified copy of the GPA as per Ex.P.12 and certified copy of the Board Resolution as per Ex.P.13.
16. Coming to the cross examination of PW.1 he has deposed that, he has not produced MOA before the Court. He failed to say that whether the signatures found on the cheque in the present case and in other two cases i.e., Crl.A.455/2023 & Crl.A.906/2022 are different. As per PW.1, the invoice furnished by the complainant itself is the delivery challan. He denied the suggestion that complainant has not Crl.Apl.454/2023 10 delivered any goods to the address of the accused and he has prosecuted wrong person in this case.
In order to rebut the presumption, accused failed to lead defence evidence.
17. The complainant has relied upon the cheque and endorsement issued by the Bank, postal receipt, reply notice, invoices, statement of accounts, GPA and Board resolution. On going through the documents, it is apparent that the accused has purchased materials from the complainant company and issued cheque towards balance payment. On going through the reply notice i.e., Ex.P.5 accused has taken a contention that the cheque issued by him as a security which was misused by the complainant and he never disputed that the cheque does not bear his signature.
18. It is also apparent that the cheque was referred to handwriting expert. After receiving of the report, the author of the report was not examined and not subjected to cross examination by the complainant. Initially, at the time of giving reply notice nowhere it is stated that accused has not put his signature on the cheque but lis- pendence accused has raised such contention before the Trial Court. On going through Ex.P.2 i.e., endorsement issued by the Bank, it is clear that the cheque was dishonoured for funds insufficient and not for signature differs.
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19. The Trial Court has relied upon Crl.A.530/1997 in case of State of Himachal Pradesh V/s Jail Lal & Others, wherein, it is observed that, "The expert must be examined as witness and must face cross examination. In the present case, without subjecting the expert for cross-examination the report cannot be looked into".
20. On the other hand, respondent has relied upon citation reported in Crl.A.Nos.1191-1194 of 2005, Malay Kumar Ganguly V/s Sukumar Mukherjee & Others, it is observed that, "An expert is not a witness of fact. His evidence is really of an advisory character. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross- examination."
In Bhim Singh V/s Kan Singh - 2004 Cri.L.J 4306, it is observed that, "As Trial Court has inherent power to rectify such typographical mistakes to do justice between the parties. All the criminal Courts having such an auxiliary power subject to restrictions which justice, equity, good conscience and legal provisions demand provided it will not unnecessarily prejudice somebody else. The impugned order passed by the learned Addl. Chief Judicial Magistrate, quashed and set aside and the amendment application filed by the complainant petitioner for correction of cheque number and date of information in the complaint allowed. Misc.petition allowed."
Crl.Apl.454/2023 12 It is further observed that, "Before proceeding further, it may be clarified first whether the mistakes as pointed out by the complainant petitioner in the complaint were typographical mistakes or not and for that Ex.P.1, which is a cheque, may be referred to where the cheque number has been clearly mentioned as 343336 and in Ex.P.2, which is letter which was issued by the Bank to the petitioner complainant, the date has been clearly mentioned as ... while in the complaint filed by the complainant petitioner, the cheque number and date have been shown as 383326 dated 08.01.2001 respectively. In this view of the matter, the mistakes can be said to be typographical mistakes. Before parting with this order, a question arises whether such type of mistakes can be rectified by the subordinate courts or not."
21. In the present case also the accused has preferred the present appeal along with Crl.A.No.454/2023 and Crl.A.No.906/2022. The difference in cheque number and amount is typographical.
22. In K.N. Beena V/s Muniyappan & Others - (2001)8 SCC 458, it is observed that, "The burden of proving that a cheque has not been issued for a debt or liability is on accused."
In Jayam Company & Others V/s T. Ravichandran, 2003 Cri.L.J 2890, it is observed that, "Presumption of liability as provided under Section 139 in favour of holder of cheque is that unless contrary Crl.Apl.454/2023 13 proved it shall be presumed that holder received cheque of nature referred in Section 138 for discharging whole or in part of any debt or other liability."
In Rangappa V/s Mohan - (2010) 11 SCC 441, it is observed that, "Very fact that the accused had failed to reply to the statutory notice under Section 138 of N.I.Act leads to inference that there was merit in the complainant's version."
In Shree Daneshwari Traders V/s Sanjay Jain & Others, (2019) 16 SCC 83, it is observed that, "Accused issued various cheques which when presented for collection were dishonoured. Appellant had filed complaints under Section 138 of Act. Trial Court acquitted respondent-accused and same was affirmed by High Court. Hence, present appeal, whether respondent owed appellant debt and that cheques were issued for discharge of said debt."
In Kalamani Tex & Others V/s P. Balasumbramanian, (2021)5 SCC 283, it is observed that, "Trial Court disbelieved observed that respondent had failed to establish legally enforceable liability on date of issue of cheque, thus complaint was liable to be dismissed. Respondent preferred criminal appeal before High Court. High Court allowed criminal appeal and convicted both appellants under Section 138 of Act. Hence, present appeal whether High Court erred in reversing judgment of acquittal into conviction for offence punishable under Section 138 of Act."
Crl.Apl.454/2023 14 In Triyambak S. Hegde V/s Sripad (2022)1 SCC 742, it is observed that, "Cheque issued towards part repayment dishonoured. Complaint filed. Respondent convicted. High Court vide impugned judgment set aside conviction. Hence, the present appeal - Whether respondent successfully rebutted the presumption so as to get acquitted."
In Raghu Lakshminarayanan V/s Fine Tubes, (2007) 5 SCC 103, it is observed that, "Respondent firm alleging commission of offence under S.138 by accused No.1 "business concern"
represented through Director(s)/Chairman/Managing Director/Proprietor9s)/in-charge(s). Appellant, one of the accused, described as "in-charge", Manager, Director of Accused 1".
In M.M. Lal V/s State NCT of Delhi & another, Crl.L.P.290/2010, it is observed that, "It is well settled that a sole proprietorship firm has no separate legal identity and in fact is a business name of the sole proprietor. Thus any reference to sole proprietorship firm means and includes sold proprietor thereof and vice versa. Sole proprietorship firm would not fall within the ambit and scope of Section 141 of the Act, which envisages that if the person committing an offence under Section 138 is a company, every person who, at the time of offence was committed, was in-charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly."
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23. Considering the facts and citations on record, it is not in dispute that, when the cheque was presented, it was returned with endorsement "funds insufficient". Had the signature on the cheque been different or forged, the Bank would have returned it with an endorsement such as "signature differs" or "drawers signature incomplete". Thus, the Bank endorsement itself lent support to the complainant's case that the cheque bears the signature of accused. In the reply notice issued by the accused to the statutory notice of demand there is no denial of signature. Instead, the defence was that the cheque was given as security. It is well settled that, a plea which was never raised at the earliest opportunity cannot later be taken as an after thought merely to avoid liability.
24. It is apparent that, before the Trial Court the cheque was referred to the handwriting expert and the report stated that, signature on the cheque differs. However, the accused has not examined the expert to prove the report as required U/Sec.45 of Indian Evidence Act. On mere production of report without examining the expert cannot be treated as substantive evidence. Once the execution of the cheque is admitted or presumed the statutory presumption U/Sec.118 and 139 of the N.I.Act operates in favour of the complainant and burden shift upon the accused to rebut the presumption on a preponderance of probabilities. In the case on hand, the accused has not produced any credible material to rebut the presumption. The Crl.Apl.454/2023 16 defence of security cheque has no merits unless the accused shows that the liability was fully discharged.
25. As it is observed by the Hon'ble Supreme Court of India In AIR 2002 SC 3014 "The commencement of the Section stands with the words "where any cheque". The above noted three words are of extreme significance, in particular, by reason of the user of the work "any" the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well".
26. In a decision reported in Bir Singh V/s Mukesh Kumar, (2019)4 SCC 197, it is observed that, "even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
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27. As observed in the above citation, it has to be presumed that the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused can place rebuttal evidence, so as to show that the cheque was not issued for consideration. As appreciated supra, accused has failed to put acceptable and satisfactory evidence to probabilise the defence. Therefore, there is no question of saying that the cheque was not issued for liability or security. Though it is stated that, complainant has stolen the cheque, accused failed to lodged complaint to that effect.
28. In Crl.A.No.1497/2022, wherein, it is observed that, "when a part-payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part payment. If the unendorsed cheque is dishonoured on presentation, the offence under Sec.138 would not be attracted since the cheque does not represent a legally enforceable debt at the time of encashment."
In the present case, accused has failed to show that he has made part payment before the encashment.
29. Be that as it may, legal notice was issued within 30 days from the date of return memo as per Ex.P.3 and accused failed to Crl.Apl.454/2023 18 repay the loan amount within 15 days from the date of receipt of notice.
30. The Hon'ble Supreme Court of India the case of Rangappa Vs. Sri. Mohan reported in (2010) 11 SCC 441, has made it clear that, "the presumption mandated by Sec.139 of the Act does indeed include the existence of a legally enforceable debt or liability". Thus, it is clear that the presumption under Sec.139 of the Act covers a legally enforceable debt or liability, so as on today the law is that, "once the issuance of the cheque is admitted or proved, the trial court is duty bound to raise the presumption that the dishonoured cheque placed before it was indeed issued in discharge of a legally enforceable debt or liability of the amount mentioned therein.
31. The object of amendment to N.I.Act is to regulate the growing of business, trade, commerce and industrial activities along with to promote greater vigilance in financial matter and to safeguard the faith of creditors.
32. On going through the entire judgment of the Trial Court, it is clear that, the Trial Court has discussed each and every contention taken by the accused in detail and came to the right conclusion. Once the accused has received the amount and issued cheque to the complainant, it is the duty of the accused to rebut the presumption Crl.Apl.454/2023 19 available under the Act. Thereby, the burden lies on the accused to show that he is not due to pay any amount to the complainant. The accused has relied upon the documents which are pertaining to other cases filed by the complainant against other U/Sec.138 of the N.I.Act, which are no bearing on the present case. I am of the opinion that there are no materials to interfere in the judgment of the trial court. The accused failed to make out grounds to allow this appeal.
33. To conclude, in the case on hand, the complainant has made out the existence of legally enforceable debt and also that accused failed to repay the amount within 15 days after service of notice. Nowhere, the accused has disputed his signature on the cheque i.e., Ex.P.1 and complainant has made out a case by complying requirements under Sec.138 of N.I.Act. Legal presumptions envisaged under Sec.118 and 139 of N.I.Act also stands unrebutted. It is apparent that the complainant has proved that the accused has intentionally issued the cheque knowing fully well that, he could not discharge his liability by issuing the said cheque though he has got the knowledge that sufficient funds are not available in his account. Thereby accused has violated Sec.138 of N.I.Act and accused failed to make out any grounds to interfere with the impugned judgment. Hence, I answer point No.2 and 3 in the Negative.
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34. POINT NO.4: For the aforesaid reasons, I pass the following:
ORDER The Criminal Appeal filed by the appellant/accused under Sec.374(3) of Cr.P.C. is hereby dismissed.
The judgment of conviction and sentence passed by the learned XI Addl., Small Causes Judge & ACMM, Bengaluru, (SCCH-12) in C.C.No.2908/2019 dated 04.03.2023, is hereby confirmed.
Office to return the TCR along with the copy of this judgment forthwith.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 12th day of November, 2025) (PALLAVI.R) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
Digitally signed by R PALLAVI R Date:
PALLAVI 2025.11.24
13:00:41
+0530
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JUDGMENT PRONOUNCED IN THE OPEN
COURT, VIDE SEPARATE ORDER
The Criminal Appeal filed by the
appellant/accused under Sec.374(3) of
Cr.P.C. is hereby dismissed.
The judgment of conviction and
sentence passed by the learned XI Addl.,
Small Causes Judge & ACMM, Bengaluru,
(SCCH-12) in C.C.No.2908/2019 dated
04.03.2023, is hereby confirmed.
Office to return the TCR along with
the copy of this judgment forthwith.
LXVIII A.C.C & S.J,
Bengaluru City.
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