Bangalore District Court
M/S Finger Millet vs Amitava Das on 11 July, 2025
KABC0C0009212020
IN THE COURT OF XIV ADDL.CHIEF JUDICIAL
MAGISTRATE, MAYOHALL UNIT, BENGALURU
Dated this the 11th day of July, 2025
Present: Sri.SANTHOSH S.KUNDER., B.A.,LL.M.,
XIV Addl. C.J.M., Bengaluru.
JUDGMENT UNDER SECTION 355 of Cr.P.C
C.C.No.50299/2020
Complainant M/s Finger Millet,
A registered partnership firm
Office at: No.156/1, Maruthi Complex,
Vishveswarapura, Nelamangala,
Bangalore-562123.
Represented by its partner,
Mr.Raju M.V.K
(By M/s Hande Associates, Advocates)
V/s
Accused Mr.Amitava Das,
Proprietor-Mahanagar Builder,
No.176/14/22, Raipur Road,
No.22, Regent Estate,
GF & 4th Floor, Post-Regent Estate,
Kolkata-70092.
(By M/s SRJ Associates, Advocates)
Offence U/s 138 of Negotiable Instruments Act.
Plea of the Pleaded not guilty
accused
Final Order Accused is acquitted
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This complaint is filed under Section 200 of Cr.P.C,
for the offence punishable under Section 138 of the
Negotiable Instruments Act.
2. Complaint averments in brief:
2.1. Complainant-M/s Finger Millet is a firm
registered under Indian partnership Act. It is represented
by its partner-Mr.Raju.M.V.K., who was part of the whole
transaction that transpired between the complainant and
the accused. During December 2016, complainant has
entered into investment in the residential project of the
accused at Kolkata. Accused had promised in writing to
give back the invested money with returns totaling to
₹60,00,000/- within two years. Partners of the
complainant along with accused and others made
partners in venture called 'Mahanagar High Rise
Apartments Makers', having its office at No.P22, Regent
Estate, KMC Ward No.96, PS-Jadavpur, Kolkota-700092.
However, even after lapse of two years, the accused failed
to give back the promised amount to the complainant and
started avoiding. After persistent requests and reminders
and visits to Kolkota, the accused issued a cheque bearing
No.187014, dated 14.08.2019, drawn on Vijaya Bank,
Jadavpur Branch, Kolkata, West Bengal-700032, for
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₹60,00,000/- in favour of the complainant towards
discharge of the liability.
2.2. The complainant presented the said cheque to
his banker, viz., ICICI Bank, Commissariat Road branch,
Bengaluru, for encashment on 14.08.2019. But, the said
cheque dishonored on 16.09.2019 and returned with
memo 'Kindly contact drawer/drawee bank and present
again'. Thereafter, the complainant issued a statutory
demand notice dated 05.09.2019 through its counsel to
accused. The said notice served on 11.09.2019. Accused
has given an untenable reply dated 16.09.2019; but, he
has failed to pay the amount covered under the cheque
within 15 days of receipt of the legal notice. Therefore, this
complaint is filed.
3. After having taken cognizance of the offence
punishable under Section 138 of N.I.Act., this court
examined the Partner of complainant by name, Mr.Raju
M.V.K on oath. As prima facie case made out, criminal
case was registered and accused was summoned.
4. Pursuant to the summons, accused has
appeared before the court and got enlarged on bail. After
compliance of Sec.207 of Cr.P.C, this court recorded his
plea. He has pleaded not guilty and claimed to be tried.
On the same day, his statement under Section 313 of
Cr.P.C., recorded. He has sought permission to cross-
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examine PW-1. As per order dated 11.07.2024, this court
dispensed with his personal attendance and permitted
him to appear by his pleader.
5. By way of defence, accused has stepped into
witness-box and examined himself as DW-1. Ex.D1 to 41
marked on defence side.
6. Heard argument. Advocates on both side filed
written argument.
7. Points for consideration:-
1. Whether the complainant has proved
that the accused has issued cheque
bearing No.187014 dtd.14.08.2019 for
₹60,00,000/- drawn on Vijaya Bank,
Jadavpur Branch, Kolkata, in favour of
the complainant towards discharge of
legally recoverable debt/liability and the
said cheque was dishonored for the
reason 'kindly contact drawer/drawee
bank & present again' and in spite of
service of statutory demand notice dated
05.09.2019, he has failed pay the amount
covered under the cheque and thereby
committed the offence punishable under
Section 138 of N.I.Act?
2. What order?
8. The above points are answered as under:-
Point No.1 : In the Negative.
Point No.2 : As per final order for the following:
REASONS
9. Point No.1:- The complainant is contending
that, during December 2016, it had invested in residential
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project of accused in Kolkata by name, 'Mahanagar High
Rise Apartment Makers' on the promise of the accused
that he would pay return of ₹60,00,000/- within two
years from the date of investment. The complainant is
further contending that after several requests and
followups, accused has issued the subject cheque, which
was dishonored and that, in spite of service of demand
notice, he has failed to pay the cheque amount.
10. In order to prove the case, the complainant has
examined one of its partners by name, Raju M.V.K., who
has filed affidavit in lieu of oral examination-in-chief. He
was examined as PW-1. He has reiterated the complaint
averments in his evidence affidavit. Documents at Ex.P-1
to 15 marked through him. Ex.P-1 is cheque; Ex.P-2 is
bank endorsement; Ex.P-3 is copy of the legal notice dated
05.09.2019; Ex.P-4 is postal receipt; Ex.P-5 is postal
acknowledgment card; Ex.P-6 is reply notice dated
16.09.2019; Ex.P-7 is authorization letter; Ex.P-8 is
undertaking affidavit dated 14.12.2016; Ex.P-9 is Income
Tax Returns of PW-1 for the Assessment Year 2015-16 to
2022-23; Ex.P-10 is Income Tax Return of complainant for
the Assessment Year 2015-16 to 2021-22; Ex.P-11 is copy
of certificate of registration of complainant; Ex.P-12 is
certified copy of extract of register issued by District
Registrar, Bengaluru Rural District, Bengaluru; Ex.P13 is
application dated 14.12.2022 submitted by PW-1 to
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District Registrar, Bengaluru Rural District, Bengaluru;
Ex.P14 is true copy of partnership deed of complainant
dated 01.08.2014 and Ex.P15 is letter dated 18.08.2023
issued by Adarsh Developers.
11. On the other hand, accused has entered into
witness-box and examined himself as DW-1, who has filed
affidavit in lieu of oral examination-in-chief. Ex.D1 to 41
marked for defence.
12. Learned defence counsel cross-examined
PW-1. During cross-examination dated 30.09.2022, it is
elicited that complainant has two partners i.e., PW-1 and
one Byraiah.B. It is elicited that authorization letter at
Ex.P7 is signed by Byraiah.B; and that PW-1 has not
signed it. When it was suggested that 'Mahanagar Builder'
is not arrayed as accused in the complaint, PW-1 has
answered that since accused is the proprietor of
Mahanagar Builder, he alone is arrayed as accused. When
it was questioned as to how PW-1 came to know that the
accused is proprietor of Mahanagara Builder, PW-1 has
answered that he has remitted a sum of ₹35,00,000/- to
Mahanagar Builders by way of NEFT on the say of
accused and thereby he came to know that accused is the
proprietor of Mahanagar Builders. It is elicited that PW-1
was working in Adarsh Developers from 2008 to 2022
where one Ranjan Manna introduced the accused to him.
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It was suggested that Ex.P7 is a created document. PW-1
has denied the same.
13. During cross-examination dated 29.10.2022, it
is elicited that the complainant is maintaining bank
account in ICICI Bank, M.G.Road branch, where cheque
at Ex.P1 was presented for encashment. PW-1 has stated
that after the cheque was dishonored, Ex.P1 and 2 were
sent to complainant through courier. However, he does
not have documents to show that the bank had sent
Ex.P1 and 2 to complainant through courier. PW-1 has
stated that he has transferred ₹5,00,000/- to accused and
₹35,00,000/- to 'Mahanagar Builders' by way of NEFT on
09th or 11th of December 2016 from account maintained in
ICICI bank, M.G.Road branch. It was suggested that said
₹40,00,000/- was invested in 'Mahanagar High Rise
Apartment Makers' for the purpose of development of
properties. PW-1 has denied the same. PW-1 has admitted
the suggestion that all the partners of 'Mahanagar High
Rise Apartment Makers' had agreed to invest money in the
said firm. PW-1 has denied the suggestion that he has
invested ₹40,00,000/- in 'Mahanagar High Rise
Apartment Makers'. It was suggested that Ex.P8 has not
been issued by the accused in favour of the complainant
at any point of time. It was also suggested that Ex.P8 is a
created document. PW-1 has denied both suggestions. He
has also denied the suggestion that cheque at Ex.P1 has
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not been issued by the accused. When it was suggested
that the accused has not written the name of the
complainant and date on the cheque, PW-1 has answered
that the accused gave blank cheque and instructing to fill
the cheque. It was suggested that the signature at
Ex.P1(a) is not the signature of accused. PW-1 has denied
the same. He has also denied the suggestion that
signature of the accused on the cheque is forged. PW-1
has denied this suggestion also. It was suggested that the
accused has returned ₹60,00,000/- with interest towards
repayment of invested sum of ₹40,00,000/-. PW-1 has
denied the same.
14. After PW-1 was further examined-in-chief on
17.12.2022, he was further cross-examined by learned
defence counsel on 17.01.2023 and 17.02.2023. Cross-
examination dated 17.01.2023 is mainly directed in
respect of documents at Ex.P11 to 14. It is elicited that
deed of partnership of complainant firm is an unregistered
document. It is elicited that as per Clause-16(g) of
partnership deed (Ex.P14), no partner independently shall
have authority to enter into partnership with a stranger
on behalf of the firm. A copy of partnership deed of
'Mahanagar High Rise Apartment Makers' dated
21.12.2016 confronted to PW-1 and same is marked at
Ex.D1, subject to objection by the counsel for the
complainant. PW-1 has admitted that except him, none of
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the partners of complainant are partners in 'Mahanagar
High Rise Apartment Makers'. It is elicited that the other
partner(s) of complainant did not consent for PW-1
becoming a partner in 'Mahanagar High Rise Apartment
Makers'.
15. During cross-examination dated 17.02.2023,
PW-1 has asserted that in the year 2016, he has invested
₹40,00,000/- in 'Mahanagar High Rise Apartment
Makers'. He has stated that other partners of the said firm
have also invested money. PW-1 has asserted that he has
disclosed the same in his income-tax returns. He has
denied the suggestion that accused is not liable to pay the
cheque amount.
16. Again PW-1 was further examined-in-chief on
07.11.2023 and Ex.P15, letter issued by Adarsh
Developers was marked. The said document was produced
in order to substantiate the contention that PW-1 was
working in Adarsh Developers as Team Leader-Systems &
Communications from 02.07.2008 to 30.04.2022 and that
he was very much in Bengaluru on 15.10.2018. On this
document, PW-1 was further cross-examined on
24.11.2023. It is elicited that office hours of Adarsh
Developers was from 10.00 AM to 6.00 PM. PW-1 has
stated that on his request, Adarsh Developers issued
Ex.P15. He has denied the suggestion that he has
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obtained Ex.P15 by pressurizing the higher authorities
and that it is a created document.
17. Now coming to the defence evidence, where the
accused has filed affidavit in lieu of oral examination-in-
chief. In the affidavit, DW-1 has deposed that he is the
proprietor of 'Mahanagar Builders' which is into the
business of constructing residential and commercial
building and land development. He has stated that PW-1
was introduced to him by one Ranjan Manna. Both PW-1
and Ranjan Manna expressed their desire to have
development in the real estate activities with him across
the country and all of them including one Prasantha
Purkait have decided to start firm in the name and style of
'Mahanagar High Rise Apartment Makers' to carry
building constructions and development works. As per the
discussion held, on 09.12.2016, PW-1 has transferred a
total sum of ₹40,00,000/- towards capital investment in
'Mahanagar High Rise Apartment Makers' and the said
money was successfully invested in the said firm, which
came to existence from 21.12.2016.
18. DW-1 has further deposed that on 18.08.2018
when he was not in station, an undue incident took place
at his business place where Ranjan Manna, Prasantha
Purkait and others had stolen certain original documents
and as such, his brother lodged a criminal complaint.
Since the police did not initiate any action, his brother
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filed a private complaint before Additional Chief Judicial
Magistrate-Alipore vide PCR No.416/2018. Based on the
said complaint, police initiated inquiry which is pending
till today. DW-1 further deposed that when undue
incident took place, PW-1 had pressurized him to
make/return the capital money which he had invested in
'Mahanagar High Rise Apartment Makers'. Accordingly, in
the capacity of partner of 'Mahanagar High Rise
Apartment Makers', he had returned money to PW-1 in
cash in three installments on 17.12.2017, 15.10.2018 and
16.06.2019. DW-1 has further deposed that PW-1 has
also received profit margin of ₹20,00,000/- by way of cash
on 17.12.2017 and also received investment of
₹40,00,000/- by way of cash which has been dully
acknowledged and declared by him on 27.06.2019. In
spite of receiving money, based on stolen cheque from his
office, PW-1 has initiated the complaint. DW-1 has further
deposed that he has not at all signed the cheque in
dispute and he does not owe any money to complainant.
19. To substantiate the evidence, DW-1 has got
marked Ex.D2 to 41. Ex.D2 is demand notice issued by
Kolkata Municipal Corporation; Ex.D3 and 4 are
respectively Aadhaar and PAN card of accused; Ex.D5 is
reply notice dated 16.09.2019; Ex.D6 is postal receipt;
Ex.D7 is declaration dated 27.06.2019; Ex.D8 is letter
dated 20.12.2018 addressed by one Anupam Das to
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Jadavapura P.S; Ex.D9 is Section 91 of Cr.P.C notice
issued to Anupam Das; Ex.D10 is complaint lodged by
Anupam Das to Commissioner of Police, Lal Bazar,
Kolkata, dated 28.08.2018; Ex.D11 is copy of complaint
dated 30.08.2018 lodged to Deputy Commissioner of
Police (SSD), South Subarban Division, Kolkota; Ex.D12 &
17 are copies complaint dated 06.07.2022 and 27.07.2022
lodged by accused to Jadavpur Police station; Ex.D13 to
15 are postal receipts-3; Ex.D16 is speed postal
acknowledgment card; Ex.D17 is copy of complaint lodged
to Deputy Commissioner of Police, South Suburban
Division, Kolkata; Ex.D18 is Municipal license issued by
the Kolkata Municipal Corporation to M/s.Shima
Construction; Ex.D19 and 31 are electricity bills; Ex.D32
is bank statement of M/s Mahanagar Builders; Ex.D33 is
demand notice for renewal of certificate issued by Kolkata
Municipal Corporation; Ex.D34 to 38 are certified copies
of order sheet, FIR, private complaint and charge sheet in
Cr.No.416/2018, Jadavpur P.S., respectively; Ex.D39 and
40 are two money receipts and Ex.D41 is Deed of
dissolution of partnership of 'Mahanagar High Rise
Apartment Makers' dated 28.06.2019.
20. Learned counsel for the complainant cross-
examined DW-1 at length. During cross-examination
dated 14.07.2023, DW-1 has admitted that he has
received ₹40,00,000/- from the complainant by way of
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transfer on 09.12.2016. He has admitted the suggestion
that he is sole proprietor of Mahanagar Builders. However,
he has denied the suggestion that he had assured returns
of ₹20,00,000/- to the complainant earlier to investment
of money. He has denied the suggestion that affidavit at
Ex.P8 bears his signature and seal of Mahanagar
Builders. He has further denied the suggestion that as per
Ex.P8, he is bound to return ₹60,00,000/- to the
complainant on or before December-2018. He has also
denied the suggestion that cheque at Ex.P1 bears his
signature and seal of Mahanagar Builders. He has
asserted that he came to know about the dishonor of
cheque only after receipt of legal notice. He has stated
that he has sent reply at Ex.P6 to the legal notice issued
by the complainant. But, he does not know the contents of
reply notice. He has admitted that Saikat Datta Majumder
is his advocate. DW-1 has stated that he knows the said
advocate six months earlier to the date of issuance of
reply. He has denied the suggestion that Ex.P6 was issued
by his advocate as per his instructions. It is elicited that
before preparing the reply notice, his advocate had
consulted DW-1. It is also elicited that DW-1 signed each
and every page of Ex.P6. Admitted signature of DW-1
appearing on first page of Ex.P6 is marked at Ex.P6(a).
DW-1 has admitted that after explaining the contents of
Ex.P6 by his counsel, he has affixed his signature on the
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reply notice. DW-1 has asserted that in the reply notice he
has acknowledged receipt of ₹40,00,000/- from the
complainant. He has also admitted that nothing is written
about theft of cheque on 18.08.2018 in reply notice. It is
elicited that DW-1 has lodged a complaint before Calcutta
Police on 28.08.2018 in respect of theft of cheque. DW-1
has stated that cheque was stolen from the office of his
elder brother Anupam Das. He has stated that incident of
theft took place in the office of his brother- Anupam Das.
When questioned if misusing of cheque has pleaded in the
reply notice, DW-1 has stated that he had instructed his
advocate to mention it; but, his advocate has not
mentioned it in the notice. DW-1 has stated the towards
repayment of ₹20,00,000/- each to complainant on
17.12.2017 and 15.10.2018, he has taken money receipts
from the complainant and in respect of return of another
₹20,00,000/- to the complainant, he has not taken money
receipt. DW-1 has stated that he has taken declaration on
27.06.2019. DW-1 has admitted that he has not
mentioned about the money receipts in his reply. He has
stated that the complainant has executed declaration
dated 27.06.2019 for receiving last payment of
₹20,00,000/-. There is no averment in the reply notice
about the said declaration. When it was suggested that in
the first page of declaration (Ex.P7), complainant has not
signed, DW-1 has answered that there is no such practice
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in West Bengal. When it was questioned what was the
actual understanding regarding return of investment of
₹40,00,000/- between the complainant and DW-1,
witness has answered that the complainant has invested
₹40,00,000/- and 25% of whole business profits was to be
paid the complainant. It is elicited that other two partners
have not invested money in the project. DW-1 has
admitted that after investment of ₹40,00,000/- by the
complainant, DW-1, complainant and two others formed
partnership by name, 'Mahanagar High Rise Apartment
Makers'.
21. In the cross-examination dated 31.07.2023, it
is elicited that each partner invested ₹20,00,000/-
towards capital. He has admitted that investment of
₹40,00,000/- by the complainant has not been mentioned
in the partnership deed. He has also admitted the
suggestion that he has received ₹40,00,000/- from the
complainant in the name of Mahanagar Builders. DW-1
has volunteered that ₹35,00,000/- received in the bank
account of Mahanagar Builders and ₹5,00,000/- received
in his personal account. DW-1 has denied the suggestion
that transaction agreed by the complainant was different
from the transactions under partnership deed at Ex.D1. It
is elicited that as on 18.08.2018, DW-1 was sharing his
office space with his brother Anupam Das. DW-1 has
volunteered that when the incident taken place on
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18.08.2018, he and his brother were not in office. Later,
he has realized that some documents were missing in the
office. He has further stated that after receiving legal
notice of this case, he came to know about missing of
cheque. DW-1 has admitted that his brother Anupam Das
lodged complaint before various police authorities on
28.08.2018 as per Ex.D10 and 11. When it was
questioned as to whether at the time of lodging complaint,
his brother was knowing about the missing of documents,
DW-1 has replied that he and his brother were knowing
missing of some documents at that time. When it was
questioned as on the date of incident, whether
Ex.D1 and 7 were in the office, DW-1 has answered he
had kept all the documents in his office in almirah and he
does not remember whether Ex.D1 and 7 were also in
almirah. When it was questioned cheque at Ex.P1 and
documents at Ex.D1 and 7 were also kept along with
other missing documents in almirah, DW-1 has answered
that Prasanth Purkait who was Manager and one of the
partners having access to all the documents kept in
almirah and table drawer. He has volunteered that he
does not remember if the said documents were kept in
almirah or in office drawer. DW-1 has stated that the
documents which were kept in office drawer were stolen. It
was suggested that in the complaint Ex.D10 and 11,
Anupam Das has mentioned that only three documents
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were missing, DW-1 has answered saying that at that
point of time, his brother was aware of missing of only
those documents and after the receipt of legal notice,
DW-1 came to know about missing cheque. DW-1 has
admitted the suggestion that in the said complaint, it is
not stated that cheque at Ex.P1 was missing. He has also
admitted the suggestion that in Ex.D8 also there is no
reference that cheque was missing. It is elicited that DW-1
has lodged complaint (Ex.D12) to Jadavpura Police on
06.07.2022. He has denied the suggestion that he did not
mention in the said complaint about theft of cheque.
22. On 14.09.2023, DW-1 has further examined-
in-chief and three documents were marked. Thereafter on
the same day, DW-1 further cross-examined where it is
elicited that all the partners have signed Ex.D41 on the
last page. It is elicited that partnership deed at Ex.D1
signed by all the partners on each and every page. When it
was questioned as to why the partners have not signed
the first three pages of Ex.D41, DW-1 has answered that
on that day, complainant, Ranjan Manna, Prasanth
Purkait were in hurry. He has denied the suggestion that
on that day, PW-1 was not present. DW-1 has admitted
that in the reply notice he has not mentioned about
dissolution of partnership deed. It was suggested that at
the time of execution of Ex.D41, he made payment of
₹60,00,000/- to the complainant. It was further suggested
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that ₹20,00,000/- paid under money receipt dated
17.12.2017 and 15.10.2018 towards partnership deed.
DW-1 has admitted these suggestions. He has also
admitted the suggestion that before making payment
under Ex.D39 and 40, DW-1 had called the complainant
to Culcutta. DW-1 has asserted that under Ex.D39, he
had made payment of ₹20,00,000/- to the complainant.
He has admitted the suggestion that the complainant had
signed Ex.D39 immediately.
23. In the notes of argument filed on behalf of the
complainant, it is submitted that in the reply notice at
Ex.P6, accused has admitted receipt of ₹40,00,000/- from
the complainant. In the said reply, nothing is mentioned
about repayment of ₹60,00,000/- on three different dates
i.e., ₹20,00,000/- each, on 17.12.2017, 15.10.2018 and
16.06.2019. Reply notice is also silent about the cash
receipts at Ex.D39 and 40, which were allegedly executed
by the complainant. About alleged incident of theft/lose of
cheque leaf/original documents in an incident on
18.08.2018 nothing is pleaded in reply. In the complaint
lodged to police, theft of cheque leaf has not been stated.
Therefore, the defence taken by the accused is concocted
and fabricated in order to defeat the claim of the
complainant. Further, in so for as Ex.D41 is concerned,
nothing is pleaded in the reply notice. No complaint is
lodged against the complainant herein regarding alleged
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theft of cheque. It is submitted that the complainant is
resident of Bengaluru. As such, there was no occasion for
him to go to Kolkata on three different dates to collect the
cash from the accused. As evident from Ex.P15, on
15.10.2018 the complainant herein was very much in
Bengaluru. Therefore, very defence that the complainant
had been Kolkata on 15.10.2018 cannot be believed. On
the other hand, complainant has produced sufficient
evidence which prove the guilt of the accused. Cheque in
question was issued by the accused towards discharge of
legally recoverable debt which was dishonored for the
reason 'kindly contact drawer/drawee bank and present
again', which is one of the species of genus implying
'insufficiency of funds' under Section 138 of NI Act as held
by Hon'ble Apex Court in Laxmi Dyechem V/s State of
Gujarat and other, (2012) 13 SCC 375; and
Electronics Trade & Technology Development
Corporation Limited, Secunderabad V/s Indian
Technologists & Engineers (Electronics) Pvt.Ltd and
another; (1996) 2 SCC 739. With these, the complainant
has prayed for convicting the accused.
24. On the other hand, in addition to the oral
argument, learned defence counsel filed notes of
argument, where it is submitted that acquaintance of
P.W-1 with the accused and payment of ₹40,00,000/- by
the complainant to the accused by way of bank transfer
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for investment in residential project in the name of firm
'Mahanagar High Rise Apartment Makers' at Kolkata, are
admitted facts. Issuance of legal notice and its service is
also not in dispute. Dissolution of firm 'Mahanagar High
Rise Apartment Makers' is also not in issue. It is
submitted that fact which are in issue is, issuance of
cheque to the complainant and return of money of
₹60,00,000/- by the accused to the complainant. It is
submitted that contradictory statements are elicited in the
cross-examination of PW-1. While pointing out the
relevant portion of deposition of PW-1 where it is elicited
that the complainant had visited Kolkata about 5-6 times
and that he does not know when did the accused issue
the cheque. It is further submitted that as per the version
of PW-1, cheque was given in blank and that PW-1 has
filled the cheque. It is submitted that act of filing of
cheque by PW-1 amounts to forgery. It was further
submitted that there was incident of theft on 18.08.2018
in the office of 'Mahanagar High Rise Apartment Makers'
in which, the cheque and other documents were stolen. It
is submitted that the accused has disputed issuance of
cheque and his alleged signature at Ex.P1(a). His evidence
in this regard remained unchallenged. Accused has
produced certified copies of complaint at Ex.D10 and 11,
lodged by his brother Anupam Das and also produced
Ex.D8 and 9 which clearly established the incident of theft
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of documents on 18.08.2016 at business place in Kolkata.
It is submitted that Ex.D34 to 37 clearly indicate that
proceeding against Ranjan Manna and others who were
partners of 'Mahanagar High Rise Apartment Makers', are
pending in relation to incident of theft. Thus, it is
submitted that the accused has probabilized his defence
and prayed for acquittal.
25. Having discussed the evidence placed on
record by either side, it is forth coming that the accused is
disputing existence of legally enforceable liability; drawing
of cheque and the signature appearing on the cheque.
Defence of the accused is that he has returned
₹60,00,000/- to the complainant. Yet another defence put
forth by the accused is that cheque and other documents
were stolen from his office in an incident allegedly taken
place on 18.08.2016.
26. As per the version of the complainant/PW-1,
he had invested ₹40,00,000/- in the residential project of
the accused at Kolkata during December 2016 and the
accused had promised to return ₹60,00,000/- within two
years. It is the case of the complainant that its partner
MVK Raju along with accused and others have formed the
partnership firm by name, 'Mahanagar High Rise
Apartment Makers' in Jadavpur, Kolkata. It is pertinent to
note that the accused does not dispute forming of
partnership firm in the name and style of 'Mahanagar
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High Rise Apartment Makers' and the position of PW-1 in
the partnership firm as a partner. Accused is also not
disputing that PW-1 had invested a sum ₹40,00,000/- in
the said partnership venture on 09.12.2016. But, he is
contending that he has returned the said money along
with return and in all, ₹60,00,000/- to PW-1. In this
regard, he has placed reliance on Ex.P7 declaration dated
27.06.2019. The complainant has disputed the said
document. Ex.D7 is extracted as under:-
"DECLARATION
I, RAJU MVK, representative of M/s
Fingermillet, son of Mutharayappa, by
faith : Hindu, by occupation : Business,
residing at 11, Main E Block, Rajajinagar,
2nd Stage, Bangalore North, Rajajinagar,
Bangalore, Karnataka, Pin-560010 and
office address is 156/1, Maruthi Complex,
Vishveswarapura, Nelamangala, Bangalore,
Pin-562123, do hereby solemnly affirm and
declare as follows:-
1. That I am being the partner and investor
of the partnership firm name "Mahanagar
High Rise Apartment Makers" situated at
P-22, Regent Estate, P.O- Regent Estate,
P.S-Jadavpur, Kolkata-700092, invested a
project of the above mentioned partnership
firm of the amount of Rs.40,00,000/-
(Rupees Forty Lakhs) only on condition that
I will get return of total of Rs.60,00,000/-
(Rupees Sixty Lakhs) only within two years
of time.
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2. That the investment from my end has
been done on two installments through
RTGS on the following manners:-
i) On 09.12.2016 Rs.35,00,000/-
(Rupees Thirty Five Lakh) only in
the bank account of Mahanagar
Builder bearing account
no.915020013716694 of Axis
Bank, Kolkata
ii) On 09.12.2019 Rs.5,00,000/-
(Rupees Five Lakhs) in the bank
account of my client Amitava Das
bearing account no.33675913189 of
State Bank of India, Branch Regent
Estate, Kolkata.
3. That one of the partner of the partnership
firm namely Mr.Amitava Das has paid
Rs.60,00,000/- (Rupees Sixty Lakhs) only to
me through cash on different dates and in
the following manners:-
i) On 17/12/2017 I received of
Rs.20,00,000/- (Rupees Twenty
Lakhs) only.
ii) On 15/10/2018 I received of
Rs.20,00,000/- (Rupees Twenty
Lakhs) only.
iii) On 16/06/2019 I received of
Rs.20,00,000/- (Rupees Twenty
Lakhs) only.
4. That in this way I have received total of
Rs.60,00,000/- (Rupees Sixty Lakhs) only
from Mr.Amitava Das.
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5. That from now I have no claim upon the
Mr. Amitava Das in this regard and in
future I will not claim for any amount
regarding of Rs.60,00,000/- (Rupees Sixty
Lakhs) only from Mr.Amitava Das.
6. That I am a Citizen of India by birth.
That all statement made in above
paragraphs are true to my knowledge and
best of my belief."
27. Recitals in Ex.D7 indicate that the accused
has paid ₹60,00,000/- to PW-1 on three dates i.e.,
17.12.2017, 15.10.2018 and 16.06.2019 ( ₹20,00,000/-
each). In so far as, payment of money on 17.12.2017 and
15.10.2018 is concerned, accused has produced two
receipts at Ex.D39 and 40 to contend that PW-1 has
passed those receipts acknowledging receipt of
₹20,00,000/- each on the said two dates. Significantly,
PW-1 has not disputed his signatures on Ex.D7, Ex.D39
and Ex.D40. On the other hand, during cross-examination
of DW-1 dated 14.07.2023, it was suggested that except
declaration (Ex.D7), DW-1 has produced money receipt on
the respective dates. Relevant portion of deposition of
DW-1 dated 14.07.2023 is extracted as under:-
"XXXX It is true to suggest in my chief
examination I have stated about return of
20 lakhs to the complainant on
15.10.2018. It is true to suggest in my
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chief examination I have stated about
return of another 20 lakhs to the
complainant on 16.06.2019. For a
suggestion that according to you, receipt
has been obtain for each and every
payment, witness states that for first two
payments I have taken money receipt and
for the last payment I have taken
declaration on 27.06.2019. It is true to
suggest that except declaration, I have
obtained money receipts on the respective
dates. It is true to suggest that I have not
mention about the money receipts in the
reply notice at Ex.P.6. It is true to suggest
that according to me the complainant has
executed the declaration dated.
27.06.2019 after receiving last payment of
20 lakhs. It is true to suggest that I have
not mentioned about the said declaration
in the reply notice. For a suggestion that
there is no signature of the complainant in
the first page of declaration produced at
Ex.P.7, witness states that there is no
such practice in West Bengal. XXXX"
28. Further, during cross-examination dated
14.09.2023 suggestions were given to DW-1 admitting
payment of ₹60,00,000/- to the complainant and passing
of money receipts at Ex.D39 and 40. Relevant portion of
deposition of DW-1 dated 14.09.2023 is extracted as
under:-
"XXXX It is true to suggest that at
the time of execution of Ex.D41, I
had made payment of 60 lakhs to
the complainant. It is true to suggest
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KABC0C0009212020
that 20 lakhs paid under money
receipts dated 17.12.2017 and
15.10.2018 at Ex.D39 and 40 is
towards partnership deed. XXXX"
29. Thus, it is very clear that the complainant has
not only admitted receipt of ₹60,00,000/- from the
accused but also his signatures on Ex.D7, Ex.D39 and
Ex.D40.
30. During cross-examination of DW-1,
suggestions were given admitting that the accused had
called PW-1 to Calcutta before making payment under
Ex.D39 and 40. Further, execution of Ex.D39 by PW-1 is
also admitted by way of giving suggestion to PW-1.
Relevant portions of cross-examination dated 14.09.2023
are extracted hereunder:-
"XXXX For a question according to you all 60
lakhs is paid in cash, witness answers in
affirmative. It is true to suggest that I have
called the complainant to Calcutta before
making payment under Ex.D39 and
Ex.D40.XXXX"
"XXXX It is true to suggest that Ex.D39 was
signed by the complainant immediately. XXXX"
31. It is pertinent to note that in reply notice at
Ex.P6/Ex.D5 accused has clearly stated that he has
refunded ₹40,00,000/- to PW-1 together profits of
₹20,00,000/- and that, in all, PW-1 has received
₹60,00,000/- from the accused. Relevant portion of reply
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notice (Ex.P6/Ex.D5) as appearing in page No.3-4 is
extracted hereunder:-
"XXXX My client further informed me that
subsequently my client refunded the said
money Rs.40,00,000/- (Rupees Forty
Lakhs) together with profits
Rs.20,00,000/- (Rupees Twenty Lakhs)
total Rs.60,00,000/- (Rupees Sixty Lakhs)
only to your client and your client received
the said money total Rs.60,00,000/-
(Rupees Sixty Lakhs) from my client and
there is no outstanding dues lying upon my
client from the part of your client. My client
is not liable to pay the alleged money of
Rs.60,00,000/- (Rupees Sixty Lakhs) to
your client in any manner. XXXX"
32. Thus, at the earliest point of time, accused
has taken a defence of discharge of entire liability. This
defence of the accused gets strengthened from the
documents at Ex.D7, Ex.D39 and Ex.D40. These
documents prove that the money that was received by the
accused from PW-1 has repaid together with profit of
₹20,00,000/-.
33. The complainant has heavily relied on
document at Ex.P15, issued by Sr.Manager-HR & Admin
on 18.08.2023 certifying that PW-1 was working in a
company by name, 'Adarsh Developers' from 02.07.2008
to 30.04.2022 and his last designation was 'Team Leader-
Systems & Communications'. It is further certified under
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the said document that on 15.10.2018 (Monday), PW-1
attended the office and marked attendance at 10.05 AM
and out time is 18.57 PM and that on 17.12.2017 and
16.06.2019 being Sundays, it was weekly off. By
producing the said document PW-1 has made an attempt
to prove that on 15.10.2018, he was very much in
Bengaluru and thereby tried to disprove the contention of
the accused that on 15.10.2018 he has received
₹20,00,000/- from accused in cash. In this regard, it is
pertinent to note that the complainant has not examined
author of Ex.P15 nor produced bio-metric attendance of
PW-1 for the relevant date. It is to be noted that the
accused has disputed very genuineness of Ex.P15 and
suggestions were given to PW-1 in this regard in cross-
examination dated 24.11.2023. It is elicited in the cross-
examination that there was bio-metric attendance in
'Adarsh Developers'. As noted above, complainant has
neither produced bio-metric attendance register to
corroborate the contents of Ex.P15 nor the author of
Ex.P15 is examined before the court. The said document
has not been proved by the complainant in the manner
known to law. It is well settled proposition of law that
mere marking of a document does not prove its contents.
The complainant ought to have examined the author of
Ex.P15 before the court by producing corroborating
document i.e., bio-metric attendance. But, it has not been
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done. Therefore, this court holds that the complainant
has failed to prove Ex.P15.
34. Ex.D41-deed of dissolution of partnership
dated 28.06.2019 pertaining to 'Mahanagar High Rise
Apartment Makers', which is another document disputed
by the complainant. Recitals of the document indicate
that the partners (including PW-1) of 'Mahanagar High
Rise Apartment Makers' decided not to continue with the
firm and under the said document, the firm was
dissolved. All the partners including PW-1 has signed
Ex.D41 in the presence of witnesses and notary public on
28.06.2019. It is to be noted that signature of PW-1 on
Ex.D41 has not been disputed by the complainant. On
the other hand, suggestions were given to DW-1 to the
effect that all the partners have signed the document on
the last page. Complainant has not sought expert opinion
on the signature of PW-1 appearing on the document.
From bear eyes, one can easily make out that signature of
PW-1 appearing on Ex.D41 and the signatures on Ex.D7,
Ex.D39 and Ex.D40 are similar. During cross-
examination of PW-1, a suggestion was given to the effect
that at the time of execution of Ex.D41, money was paid
to the complainant and thereby complainant has
admitted execution of Ex.D41. It is to be noted that
partnership firm was dissolved after making payment of a
sum of ₹60,00,000/- to PW-1. There is recital at page
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KABC0C0009212020
No.3 of Ex.D41 that the deed of dissolution was entered
by all the partners after settlement of their respective
account. Complainant has not led evidence to show that
the said partnership firm is still in existence. No
suggestions given to DW-1 to the effect that said
partnership firm has not been dissolved and it is still
functioning. Therefore, this court holds that accused has
proved Ex.D41.
35. A drawer of a cheque is deemed to have
committed the offence under Section 138 of the NI Act, if
the following ingredients are fulfilled:
(i) A cheque drawn for the payment of any
amount of money to another person;
(ii) The cheque is drawn for the discharge of
the "whole or part" of any debt or other
liability. "Debt or other liability" means legally
enforceable debt or other liability; and
(iii) The cheque is returned by the bank
unpaid because of insufficient funds.
36. For constituting offence under Section 138 of
NI Act, the stipulations in the proviso are to be fulfilled.
The conditions in the proviso are as follows:
(i) The cheque must be presented in the bank
within six months from the date on which it
was drawn or within the period of its validity;
(ii) The holder of the cheque must make a
demand for the payment of the "said amount of
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money" by giving a notice in writing to the
drawer of the cheque within thirty days from
the receipt of the notice from the bank that the
cheque was returned dishonoured; and
(iii) The holder of the cheque fails to make the
payment of the "said amount of money" within
fifteen days from the receipt of the notice.
37. A negotiable instrument including a cheque
carries following presumptions in terms of Section 118(a)
and Section 139 of the N.I.Act.
(i) Section 118 of the N.I.Act provides;
Presumptions as to negotiable
instruments; Until the contrary is
proved, the following presumptions
shall be made;
(a) of consideration that every
negotiable instrument was made or
drawn for consideration, and that
every such instrument, when it has
been accepted, indorsed negotiated or
transferred was accepted, indorsed,
negotiated or transferred for
consideration:"
(ii) Section 139 of the N.I.Act provides
as follows:
'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".
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38. Thus, the combined effect of Section 118(a)
and Section 139 of N.I.Act raises a presumption in favour
of the holder of the cheque that he has received the same
for discharge, in whole or in part of any debt or other
liability.
39. It is true that a negotiable instrument
including a cheque carries presumption in terms of under
Section 118(a) and 139 of NI Act. However, those
presumptions are rebuttable presumptions. For rebutting
the presumptions under Section 118 and 139 of NI Act, it
is well settled that, standard of proof for rebuttal does not
require proof beyond reasonable doubt. To rebut the
presumption, accused can also rely upon the materials
already brought on record by the complainant and it is
enough for the accused to bring on record something
probable which is able to shift back the burden on the
complainant. Thereafter, presumptions arising under
Sections 118 and 139 of NI Act cease to operate. In this
regard, reference can be made to the judgment of Hon'ble
Supreme Court in Kumar Exports V.s Sharma Carpets,
[(2009) 2 SCC 513] where it was held:-
"20. The accused in a trial under
Section 138 of the Act has two options.
He can either show that consideration
and debt did not exist or that under
the particular circumstances of the
case the non existence of
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consideration and debt is so probable
that a prudent man ought to suppose
that no consideration and debt
existed. To rebut the statutory
presumptions an accused is not
expected to prove his defence beyond
reasonable doubt as is expected of the
complainant in a criminal trial. The
accused may adduce direct evidence
to prove that the note in question was
not supported by consideration and
that there was no debt or liability to be
discharged by him. However, the
Court need not insist in every case
that the accused should disprove the
nonexistence of consideration and
debt by leading direct evidence
because the existence of negative
evidence is neither possible nor
contemplated. At the same time, it is
clear that bare denial of the passing of
the consideration and existence of
debt, apparently would not serve the
purpose of the accused. Something
which is probable has to be brought on
record for getting the burden of proof
shifted to the complainant. To disprove
the presumptions, the accused should
bring on record such facts and
circumstances, upon consideration of
which, the Court may either believe
that the consideration and debt did
not exist or their nonexistence was so
probable that a prudent man would
under the circumstances of the case,
act upon the plea that they did not
exist. Apart from adducing direct
evidence to prove that the note in
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question was not supported by
consideration or that he had not
incurred any debt or liability, the
accused may also rely upon
circumstantial evidence and if the
circumstances so relied upon are
compelling, the burden may likewise
shift again on the complainant. The
accused may also rely upon
presumptions of fact, for instance,
those mentioned in Section 114 of the
Evidence Act to rebut the
presumptions arising under Sections
118 and 139 of the Act."
40. In Rajesh Jain V/s Ajay Singh; (2023) 10
SCC 148, Hon'ble Supreme Court held as under:
"55. As rightly contended by the appellant,
there is a fundamental flaw in the way
both the Courts below have proceeded to
appreciate the evidence on record. Once
the presumption under Section 139 was
given effect to, the Courts ought to have
proceeded on the premise that the cheque
was, indeed, issued in discharge of a
debt/liability. The entire focus would then
necessarily have to shift on the case set up
by the accused, since the activation of the
presumption has the effect of shifting the
evidential burden on the accused. The
nature of inquiry would then be to see
whether the accused has discharged his
onus of rebutting the presumption. If he
fails to do so, the Court can straightaway
proceed to convict him, subject to
satisfaction of the other ingredients of
Section 138. If the Court finds that the
evidential burden placed on the accused
35
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has been discharged, the complainant
would be expected to prove the said fact
independently, without taking aid of the
presumption. The Court would then take
an overall view based on the evidence on
record and decide accordingly."
41. In Jalaja @ Jalajakshi V/s G.Venkta Durga
Sarojini; 2023 (1) AKR 433, Hon'ble High Court held
that in order to rebut the presumption formed under
Section 139 of N.I.Act, the accused need not have to prove
his/her defence beyond reasonable doubt. Suffice if
he/she makes out a case of preponderance of probability.
42. In the case on hand, by producing Ex.D7,
Ex.D39 and Ex.D40, accused could able to substantiate
that he has returned ₹60,00,000/- to PW-1. When the
accused has adduced sufficient evidence to disprove
existence of consideration, evidential burden placed on
him has been discharged and burden shifts on the
complainant to prove existence of consideration without
taking aid of the presumption under Section 118 and 139
of the Act. But, the complainant has failed to prove that
the accused is in due of money and thereby, failed to
prove existence of legally recoverable debt. Therefore,
prosecution for the offence under Section 138 of NI Act,
must fail. Hence, the accused deserves acquittal.
Therefore, I hold that the complainant has failed to prove
that the accused has issued Ex.P1 towards discharge of
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KABC0C0009212020
legally recoverable debt and thereby, the complainant has
failed to prove that the accused has committed the offence
punishable under Section 138 of N.I.Act. Accordingly, I
answer Point No.1 in the Negative.
43. Point No.2:-In view of the findings recorded on
Point No.1, I proceed to pass the following:
ORDER
Accused is not found guilty. Acting under Section 255(1) of Cr.P.C., accused is acquitted of the offence punishable under Sec.138 of Negotiable Instruments Act and he is set at liberty.
Bail bonds executed by the accused shall stand cancelled. Cash security deposited by him is ordered to be continued till the expiry of the appeal period.
Acting under Section 437-A Cr.P.C., accused is directed to execute fresh bail bond for ₹25,00,000/- to appear before the higher court as and when such court issues notice in respect of any appeal that would be preferred by the complainant.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 11th day of July, 2025) ( SANTHOSH S.KUNDER ) XIV Addl. C.J.M., Bengaluru.
37C.C.No. 50299/2020 KABC0C0009212020 ANNEXURES List of witnesses examined for the Complainant:
PW.1 Raju M.V.K List of documents marked for the Complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 Copy of legal notice dated 05.09.2019 Ex.P.4 Postal receipt Ex.P.5 Postal acknowledgment card Ex.P.6 Reply notice dated 16.09.2019 Ex.P.7 Authorization letter Ex.P.8 Undertaking affidavit dated 14.12.2016 Ex.P.9 Income Tax Returns of PW-1 for the Assessment Year 2015-16 to 2022-23 Ex.P.10 Income Tax Returns of complainant for the Assessment Year 2015-16 to 2021- 22 Ex.P.11 Copy of certificate of registration of complainant Ex.P.12 Certified copy of extract of register issued by District Registrar, Bengaluru Rural District, Bengaluru Ex.P.13 Application dated 14.12.2022 submitted by PW-1 to District Registrar, Bengaluru Rural District, Bengaluru Ex.P.14 True copy of partnership deed of complainant dated 01.08.2014 Ex.P.15 Letter dated 18.08.2023 issued by Adarsh Developers 38 C.C.No. 50299/2020 KABC0C0009212020 List of witness examined for the defence:
DW.1 Amitava Das List of documents marked for the defence:
Ex.D.1 Copy of deed of partnership of 'Mahanagar High Rise Apartment Makers' dated 21.12.2016 Ex.D.2 Demand notice for renewal of certificate, issued by Kolkata Municipal Corporation Ex.D.3 & 4 Aadhaar card and PAN card of accused Ex.D.5 Reply notice dated 16.09.2019 Ex.D.6 Postal receipt Ex.D.7 Declaration dated 27.06.2019 Ex.D.8 Letter dated 20.12.2018 addressed by one Anupam Das to Jadavpur P.S Ex.D.9 Copy of Section 91 of Cr.P.C notice issued to Anupam Das Ex.D.10 Copy of complaint lodged by Anupam Das to Commissioner of Police, Lal Bazar, Kolkata, dated 28.08.2018 Ex.D.11 Copy of complaint dated 30.08.2018 lodged to Deputy Commissioner of Police (SSD), South Suburban Division, Kolkota Ex.D.12 & Copies of complaint dated 06.07.2022 17 and 27.07.2022 lodged by accused to Jadavpur Police station Ex.D.13 to Postal receipts-3 15 Ex.D.16 Speed postal acknowledgment card Ex.D.18 Municipal license issued by the Kolkata 39 C.C.No. 50299/2020 KABC0C0009212020 Municipal Corporation to M/s. Shima Construction Ex.D.19 to Electricity bills 31 Ex.D.32 Bank statement of M/s Mahanagar Builder Ex.D.33 Demand notice for renewal of certificate issued by Kolkata Municipal Corporation Ex.D.34 to Certified copies of order sheet, FIR, 38 private complaint and charge sheet in Cr.No.416/2018, Jadavpur P.S., respectively Ex.D.39 & Money receipts-2 40 Ex.D.41 Deed of dissolution of partnership of 'Mahanagar High Rise Apartment Makers' dated 28.06.2019 XIV Addl.C.J.M., Bengaluru.