Bangalore District Court
Vijayananda Hegde vs Prakash Babu N K on 20 September, 2025
1
Cri Appeal No.1207/2023
KABC010232192023
IN THE COURT OF LV ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-56)
DATED: THIS THE 20th DAY OF SEPTEMBER 2025
PRESENT
SRI. MOHAN PRABHU, M.A., LL.M.
LV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CRIMINAL APPEAL NO.1207/2023
Appellant/ VIJAYANANDA HEGDE
accused S/O SATHYANARAYANA HEGDE
AGED ABOUT 45 YEARS,
RESIDING AT NO.19B,
BHUVANESHWARIPURA,
MULEMANE, SIRSI,
UTTARA KANNADA DIST.
[R/by Sri.S.V.Lakshminarayana, Adv.]
Vs
Respondent/ N.K.PRAKASH BABU
Complainant SINCE DEAD BY HIS LRs
1. SMT.LALITHA PRAKASH
W/O LATE N.K.PRAKASH BABU
AGED ABOUT 58 YEARS.
2. SMT.HEMA PRAKASH
D/O LATE N.K.PRAKASH BABU
AGED ABOUT 37 YEARS,
3. KISHORE PRAKASH
2
Cri Appeal No.1207/2023
S/O LATE N.K. PRAKASH BABU
AGED ABOUT34 YEARS,
ALL ARE RESIDING AT No.275/B, 9TH
MAIN ROAD, 5TH BLOCK, JAYANAGR,
BENGALURU - 560 004.
[R/by Sri S.M.A.., Adv.]
JUDGMENT
This appeal is filed U/s.374(3) of Cr.P.C. by the accused against the judgment of conviction dated:
04.08.2023 passed in C.C.No.30628/2018 by learned XXII ACJM, at Bengaluru for the offence under S.138 of Negotiable Instruments Act [for short 'N.I. Act''] (2) The parties are referred to their rank before the trial court.
(3) During the pendency of the appeal, the respondent is dead. Hence, his legal representatives as respondent No.1(a) to 1(c) are brought on record.
(4) The case of the complainant is briefly stated as follows:
The accused had some business transaction with the complainant. During the course of business between the complainant and the accused, the accused availed 3 Cri Appeal No.1207/2023 financial assistance from the complainant for his business. The complainant remitted huge amount to the bank account of the accused by RTGS as per request of the accused. The accused promised to repay the amount transferred by the complainant to the accused bank account with certain profits earned out of accused business. There is final settlement of account in the month of June 2018 regarding financial assistance availed by the accused from the complainant. The accused issued two cheques both dated 29.06.2018 bearing No.001638 for Rs. 50 lakhs and cheque bearing No.001639 for Rs.72 lakhs drawn on Axis Bank, Hennur Road branch, Bengaluru for final settlement of the account of the financial assistance availed by the accused from the complainant. The accused requested the complainant to deposit the said cheques for realization through the complainant bank in the first week of August 2018 and promised to the complainant that he will arrange for realization of entire amount covered under the cheques. Accordingly, the complainant sent the said cheques for realization through his banker IDBI, Jayanaar branch, Bengaluru in the first week of 4 Cri Appeal No.1207/2023 August 2018. However, both the cheques were returned with shara 'Funds Insufficient'. Immediately the complainant approached the accused personally and appraised the accused of dishonour of cheques drawn by him in favour of the complainant. At that time the accused requested the complainant to send the cheques once again for realization in the third week of September 2018. Accordingly, the complainant send the said cheques for realization on 17.09.2018 through his banker IDBI Bank, Jayanagar Branch, Bengaluru. However, again both the cheques were returned dishonoured with an endorsement dated 18.09.2018 as 'Funds Insufficient'. Therefore, the complainant got issued legal notice dated 26.09.2018 to the accused by RPAD to two addresses of the accused mentioned in the cause title of the complaint. The accused received the said notice and acknowledged the receipt of the same. The accused has not sent any reply to the said legal notice. Not paid the amount covered under the cheques. The accused has failed to pay the cheques amount, even after lapse of 15 days, from the date of receipt of the legal notice. Thereby the accused has committed offence punishable u/S.138 5 Cri Appeal No.1207/2023 r/w S.142 of NI Act. Hence the complaint.
(5) Based on the complaint filed by the complainant the, learned Magistrate taken cognizance and thereafter recorded sworn statement of the complainant as he filed his affidavit, in lieu of sworn statement and the documents also marked. After perusal of the complaint averments, sworn statement of the complainant and documents passed an order dated 16.11.2018 to register the case against the accused u/S.138 of NI Act in Register No.III and issued summons to the accused. Accordingly, the case in C.C.No.30628/2019 came to be registered against the accused.
(6) On summons the accused entered appearance before the Magistrate and engaged his counsel and released on bail as per order dated 24.10.2019.. The accusation read over to the accused for the offence u/S.138 of NI Act for which the accused pleaded not guilty and claimed for trial. During the course of trial, on the side of the complainant, the complainant examined himself as PW1 and documents Ex.P1 to P11 are marked. 6
Cri Appeal No.1207/2023 The statement of the accused u/S.313 of CrPC was recorded. He has denied the incriminating evidence. The accused lead defence evidence and examined as DW1 and also Ex.D1 to D5 marked on the side of the accused.
(7) After hearing the arguments, on both sides, the learned Magistrate pronounced the judgment on 04.08.2023 and acting u/S.255(2) of CrPC, the accused convicted for the offence punishable u/S/138 of NI Act and sentenced him to pay fine of Rs.1,22,10,000/-. In default, he shall undergo simple imprisonment for one year. Out of fine amount, an amount of Rs.1,22,00,000/- be paid to the complainant as compensation and Rs.10,000/- defrayed to the State for expenses incurred in the prosecution.
(8) Aggrieved by the judgment of conviction, the accused has preferred this appeal, on the following among other grounds.
The impugned order of conviction and sentence passed by the trial court is not based on proper appreciation of the facts and circumstances of the case. The trial court erred in convicting the accused. The accused ought to have acquitted by giving benefit of 7 Cri Appeal No.1207/2023 doubt and on not proving the ingredients of S.138 of NI Act, the trial court has failed to notice about the applicability of the preponderance of probabilities about non-existence of transaction between the accused and the complainant. The trial court has failed to notice about non-existence of debt or liability. The trial court has failed to notice about documents produced by the accused in support of his defence. The trial court has failed to notice about defence taken by the accused regarding cheques Ex.P1 and P3. The trial court totally confused about the cheques which were taken by the complainant along with entire cheque book of the accused. Since the complainant being the defacto owner of the companies the accused being Benami to the complainant all cheque books are with him. The complainant made the accused to act as Benami to his estate. There is no legally enforceable debt. The trial court has failed to appreciate regarding averments made in the complaint and averments made in the legal notice which does not discloses what was the nature of the business transaction, the complainant had with the accused. The complainant in his cross examination deposed that he 8 Cri Appeal No.1207/2023 paid amount to the accused for his film production. How the amounts had been paid and when the amounts paid has not specified. PW1 in his cross examination specifically admitted about his inability to say how and when he paid the amount to the accused and also admitted he has not obtained any documents from the accused for having paid the amount. The trial court has failed to notice that the complainant in his cross examination for the first time he stated that he paid the amount to the accused for film production. The complainant being Income Tax Assessee having several theaters ought to have knowledge and experience about the films production of the accused. In this regard, the complainant elaborately cross examined about the nature of business, he had with the accused. The complainant would have visited the working place or business or residence of the accused. He has not visited these places. The trial court failed to notice that before advancing the loan the complainant not even visited the business place of the accused. According to the complainant the accused came to know him through one Mr.Seetharam, the complainant ought to have examined 9 Cri Appeal No.1207/2023 the said Mr.Seetharam who was introduced accused to the complainant. The trial Court wrongly viewed this aspect shifting burden to the accused. In fact, it is the complainant to prove the same. The complainant in his cross examination admits that he transferred amount about 25 to 30 times, to the account of the accused, but no document are produced. How much amount, what is mode of payments are totally silent. The complainant has not produced piece of evidence in respect of transfer of money to the accused account and he has not produced Bank Pass Book, or account extract. He is income tax assessee. The cheque amount involved is Rs.1.22 cores. No Prudent man, that too a business man will pay so much huge amount to unknown person, who is not having any capacity or knowledge about either in film making or doing any business. Except oral evidence of the complainant, there are no corroborative evidence about the lending of money by the complainant to the accused. The complainant in his cross examination admits the accused running the business under two companies one under the name of Bhoomi Incorporation Pvt. Ltd and another name Bhoomi Movies Pvt. Ltd and 10 Cri Appeal No.1207/2023 also admits that he had visited Pooja Ceremony and identified the Photos Ex.D1 to D4. The Complainant also admits that he had paid amount both to the personal account and to the Company account of the accused,. When he paid money to the personal account and how much amount, similarly how much amount he paid in the name of Bhoomi Incorporation Pvt Ltd. are not proved He has not produced any documents. In his cross examination the complainant admitted that he paid amount of Rs.10 lakhs to Bhoomi Incorporation company on 26/03/2018, and also admit that from account of his wife on three occasions that is on 30/11/2017, 20/11/2013 and 26/3/2018 in total a sum of Rs. 60 Lakhs transacted to the account of the accused. A specific question was put to the complainant why the company was not made as party and at least legal notice was not issued for demanding for the return of the amount, for which he pleads his ignorance. The trial court totally ignored the examination of the PW-1 about the transfer of money from the account of wife of the respondent complainant to the account of the accused about existence any debt between them, what purposes the 11 Cri Appeal No.1207/2023 amount are transferred, the PW-1 specific answer is that in future the accused may help him, for that reason, the amount paid through his bank account. It is clear that in order to overcome income tax problems the complainant used the accused as defacto business partner. The accused stood as Benami for complainant movies. The entire complaint is that the complainant wanted to raise movies in the company which are in the name of the accused. In order to invest his black money or invest the complainant's money in the companies which are in the name of accused to avoid income tax problems. The existence of the creditor and debtor relationship has not been successfully established by the complainant by producing cogent evidence. The benefit of doubt goes to the accused. The judgment passed by the trial court suffers from illegality, arbitrary and capricious and liable to be set aside. Hence, on these grounds appellant prays to allow this appeal.
(9) The trial court records received.
(10) The respondent entered appearance by
engaging his counsel. After the death of respondent his LRs were came on record and entered appearance by 12 Cri Appeal No.1207/2023 engaging their counsel.
(11) I have heard the arguments on the side of the learned counsel for the appellant and the learned counsel for the respondents.
(12) The learned counsel for the appellant relied on the following decisions.
1. AIR 2003 SUPREME COURT 471 (RAJARAM SRIRAMULU NAIDU (SINCE DECEASED) THROUGH LRs VS. MARUTHACHALAM (SINCE DECEASED) THROUGH LRs)
2. AIR 2024 SUPREME COURT 2105 (M/S RAJCO STEEL ENTERPRISES VS. KAVITA SARAFF).
3. AIR 2003 SC (SUPP) 1999 (PAWAN KUMAR GOEL VS. STATE OF U.P.)
4. ORDER PASSED BY HON'BLE HIGH COURT OF KARNATAKA, DHARWAD BENCH IN CRIMINAL APEPAL No.2772/2010 (LAHU VS. DHANAJIRAO RAMACHANDRA HAIBATI).
5. AIR 2019 SUPREME COURT 1983 (BASALINGAPPA VS. MUDIBASAPPA)
6. 2023 (2) AKR 645 (JADESHA REDDY VS. G. CHANDRANNA).
7. AIR 2019 SUPREME COURT 942 (ANSS RAJASHEKAR VS. AUGUSTUS JEBA ANANTH).
8. 2020 (3) AKR 478 (GOPAL REDDY VS. SURESH MAHENDRAKAR).
9. 2024 (1) KCCR 166 (S.P.RAJKUMR VS. M.J. PRABHAKAR).
10. ORDER PASSED BY THE HON'BLE SUPREME COURT IN CRIMINAL APPEAL NO(S)2741 OF 2023 (JAMBOO BHANDARI VS. M.P. STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. AND OTHERS).
11. (2024) 8 SUPREME COURT CASES 573 (DATTATRAYA VS. SHARANAPPA).
12. ORDER PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN CRIMINAL APPEAL No. 1716 OF 2016 DATED 22.03.2024 (SMT.NIRMALA 13 Cri Appeal No.1207/2023 S.RAMADURGA VS. GURUPADAYYA G. HIREMATH).
13. ORDER PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN CRIMINAL APPEAL No. 956 OF 2015 DATED 22.04.2024 (SRI RASHEED AHAMED VS. SRI SHOUKATH HUSSAIN).
14. ORDER PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN CRIMINAL APPEAL No. 261 OF 2013 (A) DATED 23.08.2024 (D.J.NANJEGOWDA VS. H.B. SHIVAKUMAR).
15. ORDER PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN CRIMINAL APPEAL No. 684 OF 2018 DATED 01.02.2024 (K.GOVINDA NAYAK VS. JANARDHANA NAIK).
(13) The learned counsel for the respondents relied on the following decisions.
1. ORDER PASSED BY THE HON'BLE SUPREME COURT IN SPECIAL LEAVE PETITON (CRL.) No.12802/2022 (RAJESH JAIN VS. AJAY SINGH).
2. ORDER PASSED BY THE HON'BLE HIGH SUPREME COURT IN CRIMINAL APPEAL No.955 OF 2025 (ARISING OUT OF SLP (CRL.) NO(S) 8885 OF 2021 (ANOKH RAM (DEAD) THROUGH LEGAL HEIRS V. TARA CHAND.
3. (2010) 11 SC 441 (RANGAPPA VS. MOHAN). (14) The following points would arise for my consideration:-
Point No.1:- Whether the impugned judgment of conviction and order of sentence passed thereon is illegal, perverse and calls for interference?
Point No.2:- What order?14
Cri Appeal No.1207/2023 (15) My findings to the above points are as below:-
Point No.1:- In the negative
Point No.2:- As per the final order,
for the following
REASONS
(16) POINT NO.1:- At the outset before
appreciating the evidence on record, and rival
contentions of the parties, it is necessary to note down some of the undisputed facts in this case. It is not in dispute that the complainant and the accused were known to each other. The accused has not denied his signature on Ex.P1 and Ex.P3 cheques. It is not in dispute that the documents at Ex.P1 and P3 cheques are belongs to the bank account of the accused. The accused has not denied of receipt of legal notice as per Ex.P5. The documents Ex.P8 and P9 are postal receipts for having served legal notice to the accused. Keeping all these in mind, I would discuss about the evidence on record.
(17) The complainant who examined as PW1, in his affidavit filed for examination in-chief reiterated the 15 Cri Appeal No.1207/2023 complaint averments. The documents Ex.P1 to P9 are marked in his examination in-chief. Ex.P10 and P11 postal covers marked in the cross examination of DW1.
The learned Magistrate by following judgment of Hon'ble Supreme Court in Indian Bank Association Vs. Union of India and others treated the sworn statement of the complainant as his examination in-chief. PW1 in his affidavit filed for examination in-chief by reiterating the complaint averments has deposed that the accused had some business transaction with him and during the course of business between him and the accused the accused availed financial assistance form him for his business. Hence, he remitted huge amount to the bank account of the accused by RTGS, on request of the accused. He states that the accused promised him to pay the amount transferred by him to his bank account with certain profits earned out of his business. There is final settlement of account in the month of June 2018 in respect of financial assistance availed by the accused from him. The accused issued two cheques both dated 29.06.2018 bearing No.001638 for Rs.50 lakhs and cheque bearing No.001639 for Rs.72 lakhs drawn on Axis 16 Cri Appeal No.1207/2023 Bank, Hennur Branch, Bengaluru for the final settlement of the financial assistance availed by the accused from him. PW1 has deposed that when he presented the cheques for encashment for the first time in the first week of August 2018 these two cheques came to be dishonoured with shara ' Funds Insufficient'. Then he immediately approached and appraised the accused of the dishonour of the cheques, at that time, the accused requested him to send the cheques once again for realization in the third week of September 2018. Accordingly, he sent these cheques for realization on 17.09.2019 through his banker IDBI Bank, Jayanagar Branch to the bank account of the accused Axis Bank, Hennur Branch, Bengaluru. But the said cheques returned dishonoured with an endorsement dated 18.09.2018 as funds insufficient. Thereafter he got issued legal notice dated 29.06.2018 to the accused by RPAD to two addresses of the accused. The accused received notice and acknowledged the receipt of the same. But the accused not replied the legal notice nor paid the cheques amount.
(18) In order to substantiate the contention taken 17 Cri Appeal No.1207/2023 by PW1 documents Ex.P1 to P9 are marked through him. Ex.P1 is the cheque dated 29.06.2018 for Rs.50 lakhs and Ex.P1(a) is signature of the accused. Ex.P2 is the bank endorsement for having dishonoured Ex.P1 for funds insufficient. Ex.P3 is the cheque dated 29.06.2018 for Rs.72 lakhs. Ex.P3(a) is the signature of the accused. Ex.P4 is the bank endorsement for having dishonoured Ex.P3 cheque for funds insufficient. Ex.P5 is the legal notice dated 26.09.2018 issued by the complainant through his advocate to the accused, calling upon to pay the cheque amount of Rs.50 lakhs and Rs.72 lakhs. Ex.P6 and P7 are the postal receipts for having sent legal notice to the accused. Ex.P8 and P9 are the postal acknowledgments for having received the legal notice by the accused. Thus, on perusal of the oral evidence of PW1, he has reiterated the complaint averments.
(19) It is pertinent to note that PW1 cross examined by learned counsel for the accused in 3 hearing dates. Firstly, on 02.03.2021, secondly on 29.09.2021 and thirdly on 18.04.2022. Why these dates are mentioned by this court, because we can gather defence taken by the 18 Cri Appeal No.1207/2023 accused during the course of cross examination of PW1. That on 02.03.2021 in cross examination of PW1 he has deposed that the accused was running the company for production of films. He has stated that after the accused started his company for production of films, he came to know about the accused. PW1 has deposed that he paid amount to the accused for about 25 to 30 times. At the time of paying the amount, he has not received any documents from the accused. PW1 has deposed that the accused received the amount from him for films production. He has admitted the suggestion that in his notice and in complaint he has not stated the accused received the amount for films production. He has deposed that the accused who received the amount for films production assured him that he will repay the amount. PW1 has deposed that he paid amount to the accused which were there in his bank account. He used to pay the amount which extend from Rs.1000/- to lakhs of rupees to the accused. Thus on perusal of the cross examination done on 02.03.2021 no such questions were put to PW1 denying the fact that the accused was not producing any films or running any company or firm of 19 Cri Appeal No.1207/2023 his own.
(20) Now comes to the cross examination dated 29.09.2021. In his cross examination dated 29.09.2021 PW1 has deposed that the accused running the business in the name and style of Bhoomi. The name of the company is Bhoomi Investments Pvt. Ltd., but he do not know whether it is a company or firm. The accused was producing the films under this name of Bhoomi Investments Pvt. Ltd. He do not now whether the accused got registered this company. He has deposed that he was not invested in production of films. He states that the accused personally borrowed amount from him. He do not know how many films produced by the accused. He has denied the suggestion that he intimated to the firm that he will invest in Bhoomi Incorporation. He has denied the suggestion that he had written a letter dated 04.07.2018 to the accused stating that he would invest the amount in Bhoomi Incorporation company. He has denied the suggestion that he himself has performed pooja at the time of commencement of the company and films in Bhoomi Incorporation Pvt. Ltd. He has identified the photograph at Ex.D1 to D3 and deposed that the 20 Cri Appeal No.1207/2023 accused called him for pooja and hence, he attended the same. PW1 has deposed that he has transferred amount to the personal account of the accused as well as his company account. Thus, on perusal of the cross examination portion dated 2.03.2021 and 29.09.2021 the accused has not taken any such defence that the complainant himself running the company Bhoomi in the name of the accused and he has received the cheque book of the accused. On the other hand, during the course of cross examination dated 02.03.2021 and 29.09.2021 the learned counsel for the accused put a suggestion to PW1 as if accused was running Bhoomi Incorporation Ltd. and the complainant expressed his intention to invest in that company. No such defence has been taken by the accused that the complainant himself started company in the name of accused and running it as Benami.
(21) In the further cross examination dated 18.04.2022, on the question asked to PW 1 by the learned counsel for the accused regarding business transaction, then he answered that except money 21 Cri Appeal No.1207/2023 transaction there are not other business transaction between him and the accused. He has admitted the suggestion that in Ex.D4 photo his wife photo also there. He has denied the suggestion that he himself started the company called Bhoomini. He has denied the suggestion that by incorporating such company in the name of the accused, he invested his money in that company. He has denied the suggestion that in order to avoid to pay taxes he has started such company in the name of the accused. When suggestion put to him how much amount he invested to Bhoomini then he answered that he has not invested any amount to Bhoomini firm,but he has paid the amount to the accused. When question asked him suggesting that he transferred Rs.10 lakhs from the bank account to Bhomini firm on 26.03.2018 he answered that he transferred that amount to the account of the accused. he has admitted the suggestion that on 30.11.2017 he transferred the amount of Rs.25 lakhs from the bank account of his wife to the bank account of accused. He has admitted the suggestion that on 20.11.2017 he transferred amount of Rs.25 lakhs to the bank account of the accused. He has admitted the 22 Cri Appeal No.1207/2023 suggestion that on 26.3.2018, he transferred amount of Rs.10 lakhs from the personal bank account of his wife to the bank account of the accused. When question asked him why he has transferred amount from the bank account of his wife to the bank account of the accused, then he answered for the reason the accused might have help them in future and for that reason he transferred the amount from the bank account of his wife. He has denied the suggestion that there was no money transaction between him and the accused. He has denied the suggestion that the accused was not due any amount payable to him. Thus, on perusal of cross examination of PW1 no such questions or suggestions put to PW1 that the complainant by starting the business as Benami in the name of the accused for security or transaction purpose, he has taken signed cheque books of the accused. Only at the time of examination in chief of accused / DW1 he has started to take such defence.
(22) DW1 in his examination in-chief has deposed that in one function he came in contact with the complainant. As friendship developed between them, he 23 Cri Appeal No.1207/2023 along with complainant started firm. He has deposed that the complainant himself assured him that he will invest the amount in order to start the firm. Hence, they have started Bhoomini Movies firm and Bhoomini Co-operative Limited. The complainant himself invested the amount, but he is in the firm only as name lender. He has deposed that the complainant received his cheque book blank cheques for security purpose. The complainant has produced these cheques in this case. He has deposed that the complainant in order to avoid to pay taxes started the firm in his name. He has deposed that there was no personal monetary transaction between him and the complainant. He has produced and got marked documents Ex.D5 letter and valuation certificate issued by a Chartered Accountant to Bhoomini Incorporation Private Limited. During the course of cross examination of DW1 by the learned counsel for the complainant, DW 1 has admitted the suggestion that Mr.Seetaram introduced him to the complainant. Mr.Seetaram acted as mediator between him and the complainant. He has no documents to show that the complainant was having Benami transaction in his name. He has deposed that he 24 Cri Appeal No.1207/2023 is the proprietor of Bhooomini Movies. He states that the said firm is having 3 bank accounts and all the bank accounts were opened by the complainant in his name. He has denied the suggestion that on 24.10.2018 he wrote letter to the complainant and sought time for repayment of amount borrowed from the complainant. He has admitted his address mentioned in Ex.P10 and P11 postal covers. Hence, same are marked in the cross examination of DW1. He has deposed that he was not initiated any criminal proceedings against the complainant by stating that the complainant deceived him. He has denied the suggestion that in order to avoid to repay the amount borrowed by the complainant he has given false evidence.
(23) Thus, on perusal of the entire records of the trial court one thing is very clear that only when the learned counsel for the appellant cross examined PW1 for third time, on 18.04.2022, the accused started to take contention that the complainant himself started firm investing his amount in order to avoid payment of taxes. As I already noted that in the first part of cross 25 Cri Appeal No.1207/2023 examination of PW1 a suggestion is made to him that he asked the accused by expressing his interest in investing in Bhoomini Incorporation firm. In this regard, the complainant also gave letter dated 04.07.2018 to the accused. Such suggestion made to PW1 in the first part of his cross examination indicates that the accused himself started Bhoomini Incorporation Private Limited and Bhoomini Movies Pvt. Ltd.
(24) The learned counsel for the accused vehemently argued that the complainant in the complaint as well as in the examination in-chief not stated regarding nature of business. He argued that as the complainant has not produced any documents to show that the complainant transferred the amount to the bank account of the accused, it cannot be held that Ex.P1 and P3 cheques were issued for discharge of debts. He argued that without ascertaining the earning capacity of any person, nobody will pay such huge amount. He submitted that the accused is poor person who hails from Sirsi and accused is not having any knowledge of business. He argued that the complainant himself 26 Cri Appeal No.1207/2023 started Bhoomini firm in the name of accused and operating the bank account of Benami firm. He argued that the complainant who was doing Benami business in the name of accused had possessed cheques of the accused. Hence, by using the cheques Ex.P1 and P3 the complainant has filed this false complaint.
(25) The learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme court reported . AIR 2003 SUPREME COURT 471 (RAJARAM SRIRAMULU NAIDU (SINCE DECEASED) THROUGH LRs VS. MARUTHACHALAM (SINCE DECEASED) THRUGH LRs), wherein it is held that Income Tax Returns of the complainant did not disclose that he lent amount to accused and the declared income was not sufficient to give loan of stated sum. The defence raised by the accused satisfied the standard of preponderance of probability - Accused was entitled for acquittal. He also relied upon the judgment of Hon'ble Supreme Court reported in AIR 2024 SUPREME COURT 2105 (M/S RAJCO STEEL ENTERPRISES VS. KAVITA SARAFF), wherein it is held that the accused had put up a plausible defence 27 Cri Appeal No.1207/2023 regarding reason for which funds of complainant had come to her account - Evidence on record did not show existence of any 'enforceable debt or other liability' - acquittal of accused was proper. He also relied upon the judgment of Hon'ble Supreme Court reported in AIR 2003 SC (SUPP) 1999 (PAWAN KUMAR GOEL VS. STATE OF U.P.), to contend that in that case the Director of the company arrayed as accused - But company itself was not arraigned as party in complainant - Complaint under S.138 of NI Act would not be liable to be proceeded against director of company without their being any averments in complaint that director arrayed as accused was in charge of and responsible for conduct and business of company. He also relied upon the judgment PASSED BY HON'BLE HIGH COURT OF KARNATAKA, DHARWAD BENCH IN CRIMINAL APEPAL No.2772/2010 DECIDED ON 05.03.2019 (LAHU VS. DHANAJIRAO RAMACHANDRA HAIBATI), wherein the Hon'ble High Court in para 12, 13 and 14 observed regarding facts of the case and observed that there is no any averments with regard for what purpose he had received the amount and only pleaded with regard to issuance of cheque and also 28 Cri Appeal No.1207/2023 bouncing of cheque, legal course taken against the accused. The appeal filed against the judgment of acquittal came to be dismissed. He also relied upon the judgment of Hon'ble Supreme Court reported in AIR 2019 SUPREME COURT 1983 (BASALINGAPPA VS.
MUDIBASAPPA) to contend that, in that case the complainant failed to prove the financial capacity. The accused acquitted of the offence u/S.138 of NI Act. He also relied upon the judgment of Hon'ble Supreme Court reported in 2023 (2) AKR 645 (JADESHA REDDY VS. G. CHANDRANNA), wherein it is held that the first appellate court appreciated the evidence in detail and rightly arrived at a just conclusion that the transaction was not established and accordingly acquitted the accused. He also relied upon the judgment of Hon'ble Supreme Court reported in AIR 2019 SUPREME COURT 942 (ANSS RAJASHEKAR VS. AUGUSTUS JEBA ANANTH), wherein it is held that failure of complainant to establish source of fund allegedly the bank utilized for disbursal of loan to the accused - presence of doubt on transaction as complainant not disclosing facts as to cheques and any steps taken by him for recovery of same - material on 29 Cri Appeal No.1207/2023 record rendered probability as to absence of legally enforceable debt - High Court convicting accused on ground that he remained absent though notice of appeal was served, not proper. He also relied upon the judgment of Hon'ble Supreme Court reported in 2020 (3) AKR 478 (GOPAL REDDY VS. SURESH MAHENDRAKAR), wherein existence of legally enforceable debt not established acquittal of accused find proper. He also relied upon the judgment of Hon'ble Supreme Court reported in 2024 (1) KCCR 166 (S.P.RAJKUMR VS. M.J. PRABHAKAR), wherein the complainant did not produce the bank statement or income tax returns to prove the allegations - as per accused had borrowed some smaller amount long back and the complainant has used the cheque issued on that occasion. - presumption raised by the trial court in favour of the complainant untenable - judgment of conviction and order of sentence set aside. He also relied upon the judgment of Hon'ble Supreme Court reported in (2024) 8 SUPREME COURT CASES 573 (DATTATRAYA VS. SHARANAPPA), wherein it is held that mere fact of complainant established that the signature of cheque in question was of accused, not enough to 30 Cri Appeal No.1207/2023 raise statutory presumption in favour of the complainant, in the absence of other requirements thereon - acquittal in case of loan transaction - when warranted, discussed. He also relied ORDER PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN CRIMINAL APPEAL No. 1716 OF 2016 DATED 22.03.2024 (SMT.NIRMALA S.RAMADURGA VS. GURUPADAYYA G. HIREMATH) and relied upon the ORDER PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN CRIMINAL APPEAL No. 956 OF 2015 DATED 22.04.2024 (SRI RASHEED AHAMED VS. SRI SHOUKATH HUSSAIN), ORDER PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN CRIMINAL APPEAL No. 261 OF 2013 (A) DATED 23.08.2024 (D.J.NANJEGOWDA VS. H.B. SHIVAKUMAR) and ORDER PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA IN CRIMINAL APPEAL No. 684 OF 2018 DATED 01.02.2024 (K.GOVINDA NAYAK VS. JANARDHANA NAIK).
(26) On the other hand, the learned counsel for the respondent relied upon the judgment of Hon'ble Supreme Court reported in (2010) 11 SC 441 (RANGAPPA VS. MOHAN). He relied upon the ORDER PASSED BY THE 31 Cri Appeal No.1207/2023 HON'BLE SUPREME COURT IN CRIMINAL APPEAL No.955 OF 2025 (ARISING OUT OF SLP (CRL.) NO(S) 8885 OF 2021 (ANOKH RAM (DEAD) THROUGH LEGAL HEIRS V. TARA CHAND. He also relied upon the judgment PASSED BY THE HON'BLE SUPREME COURT IN SPECIAL LEAVE PETITON (CRL.) No.12802/2022 (RAJESH JAIN VS. AJAY SINGH).
(27) I have appreciated the rival contentions and gone through the judgments cited by both the learned counsel for the appellant and the respondent. The learned counsel for the appellant while addressing arguments submitted that since the complainant is dead no cause of action would survive and the appellant is entitled for acquittal. On the other hand, the learned counsel for the respondent submitted that even if the complainant is dead during the pendency of the case his legal heirs having power to continue the appeal and to proceed. He relied relied upon the Judgment PASSED BY THE HON'BLE SUPREME COURT IN CRIMINAL APPEAL No.955 OF 2025 (ARISING OUT OF SLP (CRL.) NO(S) 8885 OF 2021 (ANOKH RAM (DEAD) THROUGH LEGAL HEIRS V. TARA CHAND), wherein the legal heirs of the 32 Cri Appeal No.1207/2023 complainant have approached the Hon'ble supreme Court by way of special leave petition. In this judgment, the Hon'ble Supreme Court convicted the accused and sentenced him to pay fine of Rs.16 lakhs, in default to undergo 9 months simple imprisonment and directed that fine shall be paid to the legal heirs of the complainant. Thus onething is very clear that even though the respondent is dead it would not affect to decide this case on merits. The arguments of the learned counsel for the appellant holds no water. Another argument of the learned counsel for the appellant is that since the complainant has not made the firm Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd. as party to the proceedings and no notice was issued to the company, the complaint itself is not maintainable. He relied upon the judgment of Hon'ble Supreme Court reported in AIR 2003 SC (SUPP) 1999 (PAWAN KUMAR GOEL VS. STATE OF U.P.), wherein only Director of the company is arraigned as accused without arraigning the company as accused. Hence, the Hon'ble Supreme Court held that quashing of the proceedings is proper. In my humble view, this cited decision can be distinguished on 33 Cri Appeal No.1207/2023 facts of case. Even though PW1 has deposed in his cross examination that the accused running Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd. it is specific case of the complainant is that he has not lent the amount to Bhoomini Incorporation Private Ltd. or Bhoomini Movies Pvt. Ltd. It is the specific case of the complainant is that it was the accused who borrowed the amount from him under his personal capacity. No doubt, he has admitted that he transferred certain amount though the bank account of his wife also, but it is the specific contention of the complainant is that he had paid the amount to the accused. The accused who has taken his defence by examining himself as DW1, in his examination in-chief has deposed that the complainant himself created the firm in his name and opened the account in his name and running the firm in Benami name. But in order to substantiate the contention taken by the accused to show that the complainant himself has started Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd. the accused has not produced any documents. More than that, as I already noted that in the initial cross examination of PW1, in two hearing dates no 34 Cri Appeal No.1207/2023 such defence was taken by the accused that the complainant started these Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. On the other hand, the suggestion made to PW1 is that he intends to invest in these two companies by suggesting that it was already existed. Nothing worth is elicited from the mouth of PW1 to suggest that he has lend loan to Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. Under such circumstances, it cannot be held that the company should have made as party to this proceedings.
(28) The learned counsel for the accused vehemently argued that there is no legally recoverable debt on Ex.P1 and P3 cheques. The learned counsel for the accused relied on the aforesaid decisions to contend that when the complainant has failed to prove his income and failed to produce income tax returns, the benefit of doubt should go to accused. It is pertinent to note that in this case, it is not the defence of the accused is that the complainant was not having financial capacity to pay money to the extent of Rs.1.20 crores. On the other hand, the very defence taken by the accused during the 35 Cri Appeal No.1207/2023 course of cross examination of PW1 and defence taken by the accused in his examination in chief would indicate that the complainant had sufficient income of his own in order to lend huge amount. In the cross examination of PW1 the accused has taken contention that in order to avoid taxes, the complainant started Bhoomini firm and invested the amount in the name of the accused. The very suggestion made to PW1 is that he started Bhoomini firm in the name of the accused and invested the amount would indicates that the complainant had financial capacity to pay such huge such sum of Rs.1.20 crores. Since the accused during the course of examination of PW1 and while leading defence evidence, has not disputed the financial capacity of the complainant. In my humble view, the decisions cited by the learned counsel for the appellant which are reported in AIR 2019 SUPREME COURT 1983 (BASALINGAPPA VS.
MUDIBASAPPA), AIR 2019 SC 942 ; 2024 (1) KCCR 166 can be distinguished on facts.
(29) The main defence of the accused is that the complainant himself started Bhoomini Incorporation 36 Cri Appeal No.1207/2023 Private Ltd. and Bhoomini Movies Pvt. Ltd.. in the name of the accused. In this case, the accused except producing one document marked at Ex.D5 i.e. letter of Chartered Accountant, wherein the name of the complainant is mentioned no other documents are produced in this case. When the accused has taken specific defence that the complainant himself started Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. in his name and transacted by using his cheque leaves, in order to substantiate this contention the accused should have produced the Bank account statement or passbook in this case. When the bank opens account in the name of a particular person or particular firm standing in the name of any person, the bank will not give statement of account to any third party, unless there is order from the court. According to the accused Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. were standing in his name and accounts of these companies are also standing in his name. It is not the contention of the accused is that he has not having separate bank account in his name. Ex.P1 and P3 cheques are of the bank account of the accused which 37 Cri Appeal No.1207/2023 standing in his personal name. Ex.P1 and P3 are not the cheques of Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. If at all Ex.P1 and P3 are not of Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. the bank should have issued an endorsement stating that it is not of the personal account and it is of firm or company. Ex.P2 and P4 are bank endorsements which would go to show that Ex.P1 and P3 cheques were dishonoured for the reason 'funds insufficient' in the bank account of the accused. When the accused has taken specific defence, that the complainant by starting Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. in his name and collected cheque books and he was acting as Benami, the accused should have produced his personal bank account i.e. bank account which is mentioned in Ex.P1 and P3 to show that this bank account is no where connected to Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd. DW1 / accused in his examination in-chief would contend that he was in the company for name sake and for this reason the complainant received his cheque books and complainant had produced same cheques in 38 Cri Appeal No.1207/2023 this case. If at all the accused has definite about the same cheque books were used by the accused to file this complaint, the accused should have produced his bank account statement mentioned in Ex.P1 and P3, in order to show that how many cheque leaves were used through his bank account. As I already noted that when any person holding personal bank account or bank account of his firm no third party can obtain the bank statement, because the bank will not give statement to third parties. In order to maintain the confidentiality. The learned counsel for the appellant vehemently argued that the complainant has not produced his bank statement and income tax returns before the court to show that he has paid the amount to the accused. This court is of the opinion that non-production of the bank statement and income tax returns by the complainant is not fatal to his case, because the accused himself by way of defence admitted that the complainant is financial strong person and he used to invest the amount by running the firm in the name of the accused. When the accused taken such defence that in his name the complainant was running the company and firm and using his cheque books, it is 39 Cri Appeal No.1207/2023 for the accused to show the same before the court. Ex.P1 and Ex.P3 cheques are having presumptive value. Admittedly, the complainant is the holder of Ex.P1 and P3 cheques.
(30) During the course of cross examination of PW1, suggestions made to him that the amount of Rs.10 lakhs was transferred to the bank account of Bhoomini firm on 26.03.2018. He also transferred amount of Rs.25 lakhs through the bank account of his wife to the bank account of the accused on 30.11.2017 and also transferred amount of Rs.25 lakhs to the bank account of the accused on 20.11.2017 and transferred the amount of Rs.10 lakhs from the bank account of his wife to the bank account of the accused on 26.03.2018. If at all the accused was only name lender or Benami to the financial transactions of the complainant, the accused should have produced his bank statement before the court to show that in what way the amount were withdrawn from his bank and to whom he had paid amount standing in his bank. If at all the accused has produced his bank statement and demonstrate that soon after amount were 40 Cri Appeal No.1207/2023 credited to his bank account he withdrawn these amounts and gave to the complainant, the matter would have been different.
(31) The learned counsel for the respondents relied on the judgment of Hon'ble supreme Court in RANGAPPA VS. SRI.MOHAN, wherein the Hon'ble Supreme Court held that when the cheque is drawn out and it is held that - When a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount - Onus is on accused to raise a probable defence and standard of proof for rebutting presumption is on preponderance of probabilities - Defence sought to be put forth and witnesses examined in instant proceedings are only by way of improvement in respect of same cause of action - Defence sought to be put forth relating to cheque and other documents having been obtained by force, cannot be accepted as a probable defence when respondent successfully discharged initial burden cast on him.
(32) In my humble view this cited decisions aptly 41 Cri Appeal No.1207/2023 applicable to the present case. In the present case, the accused has not disputed his signature on Ex.P1 and P3 cheques and also not disputed that Ex.P1 and P3 of his bank account. Only defence taken by the accused is that, the complainant was running Benami account and invested the amount in order to avoid taxes. The accused has not taken any such defence that the complainant opened his personal account to run Benami transactions. Ex.P1 and P3 of the account of the accused are not that of the account of Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. In order to open any bank account certain persons must introduce to the bank in order to open the account. IN the present case, the accused has not stated when actually his bank account mentioned in Ex.P1 and P3 were opened. On which date, the bank account of Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. were opened. DW1 / accused in his cross examination deposed that these two firms were having 3 different accounts. The accused has not produced any statement of the bank account of the Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. Ex.P1 and P3 are not that of the bank account 42 Cri Appeal No.1207/2023 of Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd... It is the personal bank account of the accused. During the course of cross examination of DW1 he has deposed that he has not made any efforts to lodge any complaint against the complainant by stating that the complainant deceived him. If at all the complainant by opening the bank account in the name of the accused and in the name of the firms started in the name of the accused and misused the signed cheques of the accused, the accused would have not kept silent soon after he came to know about misuse of his cheque. In the present case, the complainant has produced documents Ex.P5 copy of the legal notice dated 26.09.2018, which would go to show that the complainant called upon the accused to pay the cheque amount of Rs.50 lakhs and Rs.72 lakhs within 15 days. Ex.P6 and P7 are the postal receipts for having sent the legal notice to the accused. Ex.P8 and P9 are postal receipts for having served the notice to the accused. During the course of cross examination of DW1 he has identified the addresses which are mentioned in Ex.P10 and P11 postal covers, wherein same address which are mentioned in the postal acknowledgments are 43 Cri Appeal No.1207/2023 mentioned. Thus, the accused has not disputed his address mentioned in Ex.P5 legal notice, Ex.P8 and P9 postal acknowledgments. No doubt suggestions made to PW1 that the notice was not duly served on the accused which is fairly denied by PW1, but facts remained that the complainant has issued legal notice to the accused as per Ex.P5 by sending the same to the correct address of the accused. The documents Ex.P8 and P9 postal receipts are containing the signature of the accused for having received the same. If at all the complainant misused Ex.P1 and P3 if received for security purpose., the accused would have not kept silent soon after receiving the legal notice as per Ex.P5. The very silence of the accused soon after receiving the legal notice, indicates that he issued these cheques Ex.P1 and P3 for repayment of the borrowed amount from the complainant. As I already stated in the initial cross examination of PW1, in the first two hearing dates, the accused has not taken any such defence that the complainant was running the Benami firms / company in the name of the accused. But only when PW1 cross examined for third time, the accused started to raise 44 Cri Appeal No.1207/2023 contentions that the complainant was running Benami transactions in the name of the accused. ON perusal of the entire cross examination of PW1, no such defence is taken by the accused is that complainant obtained his blank signed cheques in order to operate Benami firms / company. Only the contention taken in the cross examination of PW1 that the complainant started the firm in the name of the accused in order to avoid taxes and transferred the amount to the bank account of the accused. No such defence has been taken during the course of cross examination of PW1 that the complainant obtained blank cheque book containing signed cheques of the accused. Only during the examination in chief of DW1 / accused he has started to take such contention that the complainant who was running the Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. obtained blank cheques from the accused and produced in this case. DW1/ accused has not stated that on which date these two firms Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. were started, on which date the blank cheques were obtained by the complainant. He has also not made it clear out of the 45 Cri Appeal No.1207/2023 blank cheques how many cheques were used by the complainant. The deposition of DW1 is like omnibus without specification. Whenever any person takes defence it should be specific defence. In this case, the accused without laying any foundation taken defence that the complainant was running Benami firms in his name and obtained his blank cheques. He has not made it clear that when the firms were started and on which date the accounts of Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. were opened and on which date the complainant obtained his blank cheques, the accused trying to mix his personal account with the bank account of Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd. In his cross examination the accused has deposed that he is proprietor of Bhoomini Movies. In the first part of the cross examination of PW1, suggestion is made to him that he tried to invest in the firm of the accused and also gave letter dated 04.07.2018 requesting the accused to permit him to invest the amount in his firm. Thus, at one stretch the accused would contend that he was proprietor of Bhoomini Movies and he was running the Bhoomini 46 Cri Appeal No.1207/2023 Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. But in another stretch he would contend that it was the complainant who had started these two firms and made him as Benami, for his transaction, in order to avoid taxes. There is inconsistent defence taken by the accused. Even if it is presumed that the accused can take inconsistent defence, but in order to substantiate his contention the accused has not produced any documents. During the course of cross examination of DW1 / accused he has deposed that he has not having any documents to show that the complainant was dealing as Benami in his name. Thus, there is absolutely no evidence to show that the complainant was running Benami firms in the name of the accused.
(33) The learned counsel for the respondents relied upon the judgment of the Hon'ble Supreme Court in Special Leave Petition (Crl.) No.12802/2022 between Rajesh Jain Vs. Ajay Singh, wherein para -61 and 62 of the judgment reads thus.
"61. There is no elucidation of material circumstances/basis on which the Court reached such conclusion. It notes the allegation made in the 47 Cri Appeal No.1207/2023 complaint that the complainant had given the loan on 01.03.2014 and on several dates thereafter. Based on this averment, the High Court rather shockingly concludes that: "If the complainant had given loans on various dates, he must have maintained some document qua that, because it was not a one-time, loan but loan along with interest accrued on the principal, which made the amount to Rs.6,95,204/-." Therefore, according to the High Court, 'the burden was primarily on the complainant to prove the debt amount'."
62. The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. (34) In my humble view, this principle of this cited decision is aptly applicable to the present case. Even though the complainant has not produced any documents to show that he had transferred amount of Rs.1.22 crores to the bank account of the accused, as financial assistance made to the accused, but as the accused himself admitted the fact that the complainant had transferred the amount to his bank account, in order to run Benami transaction that itself is sufficient to hold that the complainant had transferred such amount to the 48 Cri Appeal No.1207/2023 bank account of the accused. As I already noted that it is not the defence of the accused is that the complainant was not having any such financial capacity to pay such huge amount to the accused. It is the arguments of the learned counsel for the accused is that the accused who is poor person not having any knowledge to run the business or production of films he is only name lender. Such arguments of the learned counsel for the accused is not acceptable one, because the accused in his examination in chief itself has deposed that after he came to Bengaluru in search of Bengaluru in the year 2016, one day in the function he met the complainant and thereafter friendship developed between them and they decided to start the industry jointly. Accordingly, they have started Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. If at all the accused had no knowledge about the production of the films he would not have started such institution. More than that, during the cross examination of DW1 / accused he himself deposed that he is the proprietor of Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. Under such circumstances, the arguments of the learned 49 Cri Appeal No.1207/2023 counsel for the accused is that the accused came from poor background and he has no knowledge about the dealing such business of movies are not acceptable. The learned counsel for the accused vehemently argued that in the complaint as well as in the examination in-chief of PW1 he has stated that during the course of business transaction, the accused availed financial assistance from him for the business purpose, but in the cross examination of PW1 he has stated that he was not having any business transaction with the accused, but he has lent only amount to the accused. No doubt, the complainant in his complaint as well as in his affidavit filed for examination in chief used the word as 'business'. We cannot interpret exact meaning of 'business'. PW1 in his cross examination deposed that the accused was film producer. He has deposed that he was not participating in the film production of the accused. But the accused used to borrow amount from him. Since we cannot interpret the word 'business' compared to the film production that cannot create a doubt the entire case of the complainant.
50
Cri Appeal No.1207/2023 (35) In this case, the accused has not disputed his signature on Ex.P1 and P3 and not disputed regarding these cheques are of his bank account. Under these circumstances, presumption u/S/139 and 118 of NI Act is available to the complainant. The accused has failed to rebut the presumption by preponderance of probabilities. On perusal of the trial court records, the trial court has rightly drawn presumption u/S.139 of NI Act by following 3 ingredients as laid down by the Hon'ble Supreme Court in RANGAPPA VS. SrI.MOHAN case. Section 139 of NI Act empowers the court to presume that the holder of the cheque received it for discharge of any legally enforceable debt or liability. The provision u/S.118 of NI Act also mandates as unless contrary is proved, therefore, it has to be presumed that the holder of the cheque received the cheques of the nature referred in Section 138 of NI Act, for the discharge of in whole or any part of any debt or liability. The self-serving defence of the accused / DW1 is that the complainant started Benami institutions such as Bhoomini Incorporation Private Ltd. and Bhoomini Movies Pvt. Ltd.. in his name a and obtained his bank cheques and used the same to file 51 Cri Appeal No.1207/2023 this complaint are not sufficient to hold that the accused proved this defence by preponderance of probabilities. Mere fact that the amount also transferred from the bank account of the wife of the complainant to the bank account of the accused does not presupposes that the complainant was doing Benami transactions.
(36) The accused has not taken any such defence that the complainant himself filled the contents of Ex.P1 and P3 cheques and filled amounts therein. In other words, the accused has not taken any such defence that the complainant himself filled the amount as well as names in Ex.P1 and P3. The accused has not stated anything about who was the person filled the contents of Ex.P1 and P3. Prior to filing of the complaint, the complainant issued legal notice to the accused as per Ex.P5. The complainant has given 15 days time to the accused to pay the cheques amount, thereafter within one month the complainant has filed the complaint. Thereby the complainant followed due procedure as contemplated u/S.138 and 142 of NI Act. The oral evidence of PW1 is supported by documents Ex.P1 to 52 Cri Appeal No.1207/2023 P11. The oral evidence of DW1 and documents Ex.D1 to D4 are not sufficient to hold that the accused succeeded in rebutting the presumption u/S.139 of NI Act by preponderance of probabilities. The oral evidence of PW1 which is supported by the documents Ex.P1 to P11 are sufficient to hold that the accused had issued Ex.P1 and P3 cheques in order to discharge his liability for repayment of hand loan of Rs.1.22 crores borrowed by him from the complainant. The accused has failed to rebut the presumption available in favour of the complainant u/S/118 and 139 of NI Act. Hence, it has to be held that Ex.P1 and P3 cheques indeed have been issued by the accused in favour of the complainant towards discharge of legally enforceable debt or liability. In my humble view, the decisions cited by the learned counsel for the appellant / accused can be distinguished on facts. The oral evidence of PW1, which is supported by documents Ex.P1 to P11 are sufficient to hold that Ex.P1 and P3 cheques indeed issued by the accused in favour of the complainant towards repayment of borrowed amount of Rs.1.22 crores. The accused has failed to rebut the presumption by preponderance of 53 Cri Appeal No.1207/2023 probabilities. The trial court on proper appreciation of evidence on record has rightly come to the conclusion that the accused has committed offence punishable u/S.138 of NI Act. There is no infirmity in the impugned judgment of conviction and sentence passed thereon and warrants no interference at the hands of this Appellate Court.
(37) Considering on re-appreciation of entire evidence and after perusal of entire records, this court is of the opinion that there is no infirmity in the order passed by the learned XXII ACMM, Bengaluru, in C.C. No.30628/2018 dated 04.08.2023. Hence, I answer point No.2 in the negative.
(38) POINT NO.3:- In view of my findings on point No.1 and 2, I proceed to pass the following.
ORDER The appeal filed by the appellant / accused U/s.374 [3] of Cr.P.C. is hereby dismissed.
The judgment of conviction and sentence passed by the learned XXII 54 Cri Appeal No.1207/2023 ACMM, Bengaluru, in C.C. No.30628/2018 dated 04.08.2023 is hereby confirmed.
The office is directed to send back TCR forthwith to learned XXII ACMM, Bengaluru, along with a copy of this judgment.
[Dictated to the SG-I, transcribed and typed by him, corrected and then pronounced in the open court on this the 20th day of SEPTEMBER 2025 ] (MOHAN PRABHU), LV Addl. City Civil & Sessions Judge, Bengaluru. (CCH-56)