Bangalore District Court
Sri Doraiswamy vs Ms S2 Homes India Private Limited Rep By ... on 8 April, 2026
KABC030788742019
IN THE COURT OF THE XIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
:: PRESENT ::
SMT. PAVITHRA. R, B.A.L, L.L.B.,
XIII ACJM, Bengaluru City.
C.C.NO. 25568/2019
Dated this the 8th day of April, 2026
COMPLAINANT: Sri. Doraiswamy,
S/o Sri. K. Muniswamy,
Aged about 63 years,
R/a. 9/10, Harsha Nivas,
3rd Cross, First Floor,
Bhavani Layout, B.G.Road,
Bengaluru - 560 029.
[By Sri. Manjunath. K.V, Advocate]
V/S
ACCUSED: 1) M/s. S2 HOMES INDIA PRIVATE
LIMITED,
a company incorporated under
Companies Act of 1956,
Office at 824, First Floor,
20th A Main, Near NGV Signal,
Koramangala, Bengaluru - 560 029.
Rep. by its Authorised Signatory,
Sri. Chethan Kumar
-2- C.C.No. 25568/2019
2. Sri. Chethan Kumar,
S/o Prasanna Kumar,
Aged about 37 years,
R/a. No.36, 9th Cross,
14th Main, BTM Layout, 1st Stage,
Bengaluru - 560 029.
(By Sri. S. S. Srinivasa Rao Advocate)
Offence complained of : U/s. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final order : Accused is acquitted
Date of order : 08.04.2026
JUDGMENT
This is a private complaint filed by the complainant under Sec.200 of Cr.P.C., against the accused for the offence punishable under Sec.138 of Negotiable Instrument Act, 1881 (in short referred to as N.I. Act).
The brief facts of the case are as under :
2. It is the case of the complainant that, he is the owner of Sy. No.73, measuring 3 Acres 36 Guntas along with Kharab land 0.04 Guntas, residential conversion order
-3- C.C.No. 25568/2019 No.ALN (AJ) SR/220/2011-12, situated at Konasandra village, Jigani Hobli, Anekal Taluk, Anekal and Sy. No.14/5 measuring 2 Acres 20 Guntas along with Kharab Land 15 Guntas residential conversion order No.ALN(AJ)SR/216/2011-12 which was purchased by him and converted at considerable expense and time. Accused who claims to be a Land Developer and having expertise in developing lands, form sites and marketing them approached the complainant and one Y.Mallesham to form a layout and sell sites in the above said property. Trusting him the complainant and Y.Mallesham as per his guidance applied for BMRDA approval and got the layout approval.
Memorandum of Understanding was entered into between complainant, accused and Y.Mallesham on 18.11.2013. As per the said MOU contribution of first and second party had to be the lands owned by them along with the BMRDA and other sanctions. The obligation caused on accused was as follows:
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a) Demarcation of roads and plots - within three months (Upon which second release order needs to be obtained by the FIRST AND SECOND PARTY)
b) Completion of drains and metalling of roads - within 6 months (Upon which third release order needs to be obtained by the FIRST AND SECOND PARTY)
c) Providing electricity and balance BMRDA requirements within 9 months.
d) Grace period of 90 days.
3. The development works had to be completed by the accused within one year. Subsequent to MOU a partnership was also been entered between above persons on 17.04.2014 as per advice of the accused. As per the terms of the MOU and partnership the amount payable to complainant was agreed at Rs.11,51,20,480/- (Rs.800 per sq x 1,43,900.6 sq. feet). The said amount was to be paid in installments within 9 months + 90 days grace period i.e. within one year from the date of first release letter from BMRDA. The BMRDA has issued the first release letter dated 21.04.2014, and thus one year has lapsed as on 24.04.2015. Layout was formed and accused at
-5- C.C.No. 25568/2019 considerable profit had sold the sites. Till date a sum of Rs.8,93,33,239/- was paid to the complainant and a sum of Rs.2,57,87,241/- is due. Even after lapse of more than 4 years accused has failed to pay the balance amount to the complainant. The complainant further submitted that, he was pursuing to accused for payment of balance amount and thus the accused has issued 4 cheques towards the balance drawn on IndusInd Bank, Jakkasandra Branch, Bengaluru as follows for a total sum of Rs.2,24,95,376/-.
i) Cheque bearing No.534109, Rs.47,35,000/- (Rupees Forty Seven Lakhs Thirty Five Thousand Only) dated 03.06.2019,
ii) Cheque bearing No.534111, Rs.47,35,000/- (Rupees Forty Seven Lakhs Thirty Five Thousand Only) dated 03.06.2019,
iii) Cheque bearing No.534112, Rs.47,36,130/- (Rupees Forty Seven Lakhs Thirty Six Thousand One Hundred and Thirty Only) dated 10.06.2019 and
iv) Cheque bearing No.534113, Rs.82,89,246/- (Rupees Eighty Two Lakhs Eighty Nine Thousand Two Hundred and Forty Six only) dated 10.06.2019.
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4. The said cheques were presented by the
complainant and the same were returned dishonored with an endorsement dated 06.06.2019 and 12.06.2019 with shara "20 Payment Stopped by Drawer". When the complainant made an attempt to contact the accused regarding dishonor of cheque accused avoided him. The accused with a malafide intention not to pay aforesaid sum has issued his cheques which has ended in dishonor only to cheat the complainant. Thereafter, complainant got issued legal notice to accused on 21.06.2019 by RPAD demanding cheques amount and incidental charges. Said notice was served to the accused on 25.06.2019 to the company address and notice sent to individual address was returned as 'Door Lock'. Due to inadvertence in the legal notice dated 21.06.2019 the name of the drawer Bank Branch was wrongly mentioned as BTM Layout Branch instead of Jakkasandra Branch and thus a rejoinder was sent to the accused on 27.06.2019 which was served to the company address on 03.07.2019 and returned "Door Lock" which was
-7- C.C.No. 25568/2019 sent to the individual address. The accused neither replied to the demand notice nor paid the cheques amount and thus committed the offence punishable u/s.138 of NI Act. Hence, this complaint.
5. On filing of this complaint, this court recorded the sworn statement of the complainant and took cognizance of the offence and issued summons to the accused. Accused No.2 appeared before the Court through his counsel and was enlarged on bail and substance of accusation was read over to him and he pleaded not guilty having defense to make. Hence, the matter was posted for recording of statement U/Sec.313 of Cr.P.C., Since there was incriminating evidence against the accused, the statement as required under Sec.313 of Cr.P.C., was recorded. PW1 was fully cross-examined by the accused. Accused examined himself as DW.1 and one more witness as DW.2 and got marked Ex.D.1 and Ex.D.27 documents.
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6. Heard both sides. Perused the averments made in complaint, oral and documentary evidence of the both sides and after hearing arguments, the points that arises for determination are:-
1) Whether the complaint is maintainable against accused company under section 138 of N.I Act?
2) Whether the complainant has proved that accused issued Ex.P1 to 4 cheques towards legal liability towards the complainant, and the same were dishonored. Even after issuance of notice, the accused has failed to pay the cheques amount and thereby accused No. 1 and 2 are guilty of the offence punishable under Sec.138 of N.I. Act?
3) What order?
7. Findings to the above points are as under:-
Point No.1 : In the negative Point No.2 and 3: As per final order for the following:
REASONS
8. Point No.1:- According to the complaint averments of the complainant, the accused being a
-9- C.C.No. 25568/2019 developer of lands agreed to develop and make construction on the complainant's aforesaid property and entered into an MOU and partnership with complainant and one Y. Mallesham. According to the said partnership deed the amount payable to complainant was agreed at Rs.11,51,20,480/-. Till date a sum of Rs.8,93,33,239/- was paid to the complainant and a sum of Rs.2,57,87,241/- is due by the accused towards the complainant. To dischrge the said liability the accused issued 4 cheques towards the balance drawn on IndusInd Bank, Jakkasandra Branch, Bengaluru as follows for a total sum of Rs.2,24,95,376/- as aforementioned. On presentation of the said cheques, the same were returned dishonored for the reasons 'Payment Stopped by Drawer' with an endorsement Ex.P.5 to 8. Thereafter complainant issued legal notice as per Ex.P.9 and the same was duly served on the accused. In spite of issuance of legal notice, accused failed to repay the cheque amount.
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9. In order to prove the complainant's case complainant is examined as PW1 by filing an affidavit and got marked 22 documents at the time of her chief examination as follows...
(i) Ex.P.1 is the cheque of IndusInd Bank, Jakkasandra Branch, Bengaluru bearing No.534109 dated 03.06.2019 for sum of Rs.47,35,000/- alleged to have been issued by the accused. Signature of the accused is marked through complainant as Ex.P1(a).
(ii) Ex.P.2 is the cheque of IndusInd Bank, Jakkasandra Branch, Bengaluru bearing No.534111 dated 03.06.2019 for sum of Rs.47,35,000/- alleged to have been issued by the accused. Signature of the accused is marked through complainant as Ex.P2(a).
(iii) Ex.P.3 is the cheque of IndusInd Bank, Jakkasandra Branch, Bengaluru bearing No.534112 dated 10.06.2019 for sum of Rs.47,36,130/- alleged to have been issued by the accused. Signature of the accused is marked through complainant as Ex.P3(a).
(iv) Ex.P.4 is the cheque of IndusInd Bank, Jakkasandra Branch, Bengaluru bearing No.534113 dated 10.06.2019 for sum of Rs.82,89,246/- alleged to have been issued by the accused. Signature of the accused is marked through complainant as Ex.P4(a).
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(v) Ex.P5 to 8 are the Bank Endorsements dated 04.06.2019 and 12.06.2019 issued by IndusInd Bank, stating that '20 Payment Stopped by Drawer'.
(vi) Ex.P9 is the legal notice dated 21.06.2019 issued by the complainant through his advocate to the accused demanding the payment of cheques amount.
(vii) Ex.P.10 & 11 are the postal receipts.
(viii) Ex.P.12 is the postal acknowledgment.
(ix) Ex.P.13 is the unserved postal cover.
(x) Ex.P.14 is the rejoinder letter dated 27.06.2019.
(xi) Ex.P.15 & 16 are the postal receipts.
(xii) Ex.P.17 is the postal acknowledgment.
(xiii) Ex.P.18 is the unserved postal cover.
(xiv) Ex.P.19 is the complaint. Signature of the complainant are marked through complainant as Ex.P19(a) & (b).
(xv) Ex.P.20 is the certified copy of affidavit in lieu of examination-in-chief of complainant in A.C. No.227/2023.
(xvi) Ex.P.21 is the certified copy of cross- examination of complainant in A.C. No.227/2023.
- 12 - C.C.No. 25568/2019 (xvii) Ex.P.22 is the certified copy of Award in A.C. No.227/2023.
10. In the chief-examination of P.W.1, he has reiterated entire averments of the complaint and supported his version. The counsel for accused with vehemence raised a point during arguments, that the complaint itself is not maintainable against the accused No.1 since accused No. 1 is a company and the drawer of the Ex.P1 to 4 cheques is "S2 Homes" a Partnership Firm registered under the provisions of the Indian Partnership Act, 1932. Therefore before dwelling into merits of the case it is relevant to discuss the above point in detail.
11. Accused examined himself as DW1 and Manager of IndusInd Bank as DW2 and got marked documents at Ex.D.1 to Ex.D.27 as follows:
(i) Ex.D.1 is the copy of Memorandum of Understanding.
(ii) Ex.D.2 is the copy of Partnership Deed.
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(iii) Ex.D.3 is the copy of layout plan.
(iv) Ex.D.4 is the legal notice issued to the complainant dated 07.09.2019.
(v) Ex.D.5 is the certified copy of order in Civil Misc. Petition No.4/2020 by Hon'ble High Court of Karnataka.
(vi) Ex.D.6 is the Special Power of Attorney dated 05.07.2014.
(vii) Ex.D.7 is the Special Power of Attorney dated 12.01.2015.
(viii) Ex.D.8 is the Special Power of Attorney dated 10.04.2014.
(ix) Ex.D.9 is the Special Power of Attorney dated 20.01.2015.
(x) Ex.D.10 is the Special Power of Attorney dated 29.06.2018.
(xi) Ex.D.11 is the Special Power of Attorney dated 29.06.2018.
(xii) Ex.D.12 is the Special Power of Attorney dated 20.08.2014.
(xiii) Ex.D.13 to 16 are the photographs.
(xiv) Ex.D.17 is the Compact Disc.
12. During cross examination of PW.1 the counsel for accused has posed several questions regarding transaction
- 14 - C.C.No. 25568/2019 between the complainant and partnership firm. The complainant has admitted that the transaction alleged in the complaint took place between him and the partnership firm. At the time of arguments specifically the accused has raised a point that the complainant has made inclusion of accused No. 1 and 2 a wrong party to the complaint instead of making a Partnership Firm and their partners as party to the complainant".
13. According to the complainant, the accused No. 1 "M/s. S2 Homes India Private Limited" is a private limited company registered under the provisions of Companies Act. The accused No. 2 is alleged to have been authorized signatory of the company, and the Ex.P1 to 4 cheques belongs to accused No.1 and the same is signed by accused No.2. On perusal of Ex.P1 to 4 cheques bearing No. 534109, 534111, 534112 and 534113 drawn on Indusind Bank, the name of the drawer is mentioned as "S2 HOMES". On the face of Ex.P1 to 4 it is not possible to identify whether the
- 15 - C.C.No. 25568/2019 drawer of the said cheques is a company or a partnership firm. Accused in support of this point has got summoned manager of Indusind Bank, Jakkasandra Branch, Bengaluru and one Mr. Shivaprasad, Branch manager has appeared and deposed evidence as DW.2 and produced documents Ex.D 18 to 26 as follows:
(i) Ex.D.18 is the print out of account opening form of S2 Homes which is a firm registered bearing No. 29821175007 involving partners by name Chethan P Kumar- accused No.2, O Somashekar Reddy and K C Nagesh Reddy.
(ii) Ex.D.19 is the print out of Composition Tax Registration Certificate of S2 Homes Partnership firm bearing TIN number 29821175007.
(iii) Ex.D.20 is the print out of PAN card of the accused No.2.
(iv) Ex.D.21 is the print out of PAN card of the K.C. Nagesh Reddy.
(vi) Ex.D.22 is the print out of Partnership Deed dated 01.01.2013 of Chethan P Kumar-
accused No.2, O Somashekar Reddy and K C Nagesh Reddy with name and style of M/s. S2 Homes a Partnership Firm.
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(vii) Ex.D.23 is the print out of PAN card of the Someshekhar Reddy.
(viii) Ex.D.24 is the print out of PAN card of the S2 Homes.
(ix) Ex.D.25 is the print out of list of partners of S2 Homes.
(x) Ex.D.26 is the certified copy of the Stop Payment Register for the period 10.10.2017 to 10.10.2025.
(xi) Ex.D.27 is the affidavit filed u/s.65B of the Indian Evidence Act.
As per the evidence of the DW.2 the drawer of the Ex.P1 to 4 is a partnership firm and not accused No.1 company. Such being the case, the complaint of the complainant that the cheques are of company has no life at all. In order to support my view it is necessary to refer to provisions of N.I Act as follows:
Section 7. "Drawer".--The maker of a bill of exchange or cheque is called the "drawer".
Section 30. "Liability of drawer".--The drawer of a bill of exchange or cheque is bound, in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due notice of
- 17 - C.C.No. 25568/2019 dishonour has been given to, or received by, the drawer as hereinafter provided.
Section 138. "Dishonour of cheque for insufficiency, etc., of funds in the account".-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
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(c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
14. Firstly, according to section 7 of the Act the maker of the cheque is called the drawer, and in the present case on hand the drawer of the cheque is S2 Homes a partnership firm and not a S2 Homes a private limited company. This is very much apparent from record especially from Ex.D18 to 26. Ex.P18 is an application form for opening of bank account for S2 Homes a partnership firm with Taxpayer Identification Number as "29821175007". The said number is mentioned both in application form and as well as Tax Registration Certificate. That suffice to show that the S2 Homes a partnership firm has an account in Indusind Bank, Jakkasandra Branch, Bengaluru with account number 200999767261. DW.2 has confirmed that there is no other account in their bank with name S2 Homes. Hence it is crystal clear that the account number
- 19 - C.C.No. 25568/2019 found on Ex.P to 4 cheques with number 200999767261 belongs to S2 Homes a partnership firm and not a S2 Homes company. Thus the drawer of the cheques Ex.P1 to 4 is a "S2 Homes-partnership firm" which is not at all a party to the complaint. Hence an inference can be drawn to the effect that the complainant has made a wrong person or entity as party to the complaint against whom section 138 of N.I Act does not attract.
15. Secondly, according to section 30 as referred above the liability is cast on the drawer to compensate in case of dishonor of cheque by the drawee Bank provided due notice of dishonour has been given to or received by the drawer. Intimation regarding dishonour of cheque is addressed to S2 Homes India Private Limited Company and accused No.2 representing him as an authorized signatory of the company as per Ex.P9 demand notice. Since drawer of the cheque is partnership firm issuing of demand notice to company is nothing but a "futile exercise". Hence there is
- 20 - C.C.No. 25568/2019 no compliance of section 30 by the complainant which is a basic element to initiate legal action against the drawer of the cheque or a required prior procedure to file a complaint for the offence under section 138 of N.I Act.
16. Thirdly, the complainant has failed to meet the necessary ingredients required for initiating the complaint under section 138 of N.I Act and hence there is no scope for the complainant to avail the benefit under section 118 and 139 of the N.I Act as referred above. Counsel for the accused has relied on decisions rendered by Hon'ble Apex Court in reported in 2021 (4) SCC 675- Alka Khandu Avhad Vs. Amar Syamprasad Mishra and another and 2025 (10) SCC 96- Dhansingh Parbhu Vs. Chandrasekar and another and argued that the complaint is not maintainable under section 138 of N.I Act since drawer is not a party to the complaint. I have gone through above decisions and they are aptly applicable to the case on hand. Even in the present case the drawer of the cheque is not a party to the complaint and
- 21 - C.C.No. 25568/2019 hence section 138 cannot be attracted. Hence the complaint ought to have been dismissed at the threshold itself. However, the complaint is come to the stage of judgment. Hence the same is hereby disposed off by recording the order of acquittal of the accused as held in decision discussed supra. Accordingly, point No.1 is answered in the negative.
17. Point No. 2 and 3:- Since the fate of the complaint has ended up in acquittal on the grounds of non maintainability for the reasons discussed supra, consideration of the complaint on merits does not arise at all since there is no cause of action against present accused at all. Accordingly, point No. 2 does not survives for consideration. Thus in view of the reasons stated and discussed above the court proceeds to pass the following:-
ORDER Acting under Sec.255(1) of Cr.P.C accused No. 1 and 2 are hereby acquitted of the offence punishable U/Sec.138 of N.I. Act.
- 22 - C.C.No. 25568/2019 The bail bond and surety bond of the accused No.2 stands canceled.
(Dictated to the Stenographer directly on computer, revised, corrected, signed and then pronounced in the open court on this the 8 th day of April, 2026) (PAVITHRA R.) XIII ACJM, BENGALURU CITY ANNEXURE LIST OF WITNESSES EXAMINED FOR COMPLAINANT:
PW.1 Sri. M. Dorai Swamy LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1 Sri. Chethan Kumar DW.2 Sri. Shivaprasad
LIST OF DOCUMENTS MARKED FOR COMPLAINANT:
Ex.P1 to 4 : Original Cheques
Ex.P.1(a) to
Ex.P.4(a) : Signatures of the accused
Ex.P.5 to 8: Bank endorsements
Ex.P.9 : Copy of Legal Notice
Ex.P.10 & 11: Postal receipts
Ex.P.12 : Postal acknowledgment
Ex.P.13 : Unserved postal cover
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Ex.P.14 : Copy of rejoinder letter
Ex.P.15 & 16: Postal receipts
Ex.P.17 : Postal acknowledgment
Ex.P.18 : Unserved postal cover
Ex.P.19 : Private complaint
Ex.P.19a & b : Signatures of complainant Ex.P.20 : Certified copy of affidavit in lieu of examination-in-chief of complainant in A.C. No.227/2023.
Ex.P.21 : Certified copy of cross-examination of complainant in A.C. No.227/2023. Ex.P.22 : Certified copy of Award in A.C. No.227/2023.
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1 : Copy of Memorandum of Understanding.
Ex.D.2 : Copy of Partnership Deed.
Ex.D.3 : Copy of layout plan.
Ex.D.4 : Legal notice issued to the complainant dated
07.09.2019.
Ex.D.5 : Certified copy of order in Civil Misc. Petition
No.4/2020 by Hon'ble High Court of
Karnataka.
Ex.D.6 : Special Power of Attorney dated 05.07.2014.
Ex.D.7 : Special Power of Attorney dated 12.01.2015.
Ex.D.8 : Special Power of Attorney dated 10.04.2014.
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Ex.D.9 : Special Power of Attorney dated 20.01.2015.
Ex.D.10 : Special Power of Attorney dated 29.06.2018.
Ex.D.11 : Special Power of Attorney dated 29.06.2018.
Ex.D.12 : Special Power of Attorney dated 20.08.2014.
Ex.D.13 to 16 : Photographs.
Ex.D.17 : Compact Disc.
Ex.D.18 : Print out of account opening form of
accused company.
Ex.D.19 : Print out of Composition Tax Registration
Certificate of accused.
Ex.D.20 : Print out of PAN card of the accused.
Ex.D.21 : Print out of PAN card of the K.C. Nagesh Reddy.
Ex.D.22 : Print out of Partnership Deed of Chetan
Kumar and S2 Homes Partnership Firm Ex.D.23 : Print out of PAN card of the Someshekhar Reddy.
Ex.D.24 : Print out of PAN card of the S2 Homes. Ex.D.25 : Print out of list of partners of S2 Homes. Ex.D.26 : Certified copy of the Stop Payment Register for the period 10.10.2017 to 10.10.2025. Ex.D.27 : Affidavit filed u/s.65B of the Indian Evidence Act.
Digitally
signed by
PAVITHRA
PAVITHRA R
R Date:
2026.04.15
11:05:57
+0530
XIII ACJM, BENGALURU CITY.