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Bangalore District Court
Raghavendra V Kamath vs Sarawathi Entertriner on 5 August, 2025
1
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
KABC030799772021
Presented on : 02-11-2021
Registered on : 02-11-2021
Decided on : 05-08-2025
Duration : 3 years, 9 months, 3 days
IN THE COURT OF THE XXII ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
PRESENT: SRI.JAI SHANKAR.J,
B.A.L., LL.B
XXII ADDL.C.J.M., BENGALURU.
DATED: THIS THE 5TH DAY OF AUGUST 2025
JUDGMENT U/s.278(1) of BNSS -2023
(OLD CORRESPONDENCE NO. 255(1) OF CODE OF CRIMINAL
PROCEDURE
C.C.NO. : CC.No.30248/2021 C/w.
CC.No 30249/2021, CC.No.30267/2021,
CC.No.30274/2021
COMPLAINANT : Sri. Raghavendra V. Kamath,
No. 24/1, 2nd Main,
Jayalakshmamma Layout,
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
Papareddy Palya,
Nagarabhavi 2nd Stage,
Benglauru - 560 071.
(By Sri. K. Srinivasa & Co., Adv.)
V/s.
ACCUSED : M/s. Saraswathi Entertainer,
No.480, Srikrupa,
6th 'A' Cross,
Srigandhadhakavalu,
Bengaluru - 560 092.
Rept by its Proprietor
Sri. Yogish Hunsur.
(By Sri. Yuktataa., Adv., )
Offence complained : U/s.138 of N.I.Act
of
Plea of the Accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of order : 05.08.2025
JUDGMENT
These private complaints are filed by the complainant
against the accused for the offence punishable under
Section 138 of Negotiable Instruments Act.
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
2. The brief facts of the complainant’s case in all
the cases is as under:
It is contended that, the complainant and the accused
are well acquainted with each other from past 10 years.
Under such acquaintance, the accused has borrowed
Rs.1,25,00,000/- as a hand loan from time to time from the
month of March 2016 till the month of September 2019 in
order to clear his outstanding loans, films financial
commitments, to clear his domestic and family
commitments. The accused had assured that, he would
repay the said amount on or before the month of January
2021. After the lapse of the time agreed, on request and
demand made by the complainant, the accused issued five
cheques bearing No.404314, dt:20.02.2021, cheque bearing
No.404315, dt:20.02.2021, cheque bearing No.409630, dt:
05.03.2021, cheque bearing No.702733, dt:10.3.2021 and
4C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021cheque bearing No.702734, dt:20.03.2021, each for Rs.25
lakhs, in total Rs.1,25,00,000/- all drawn on Vijaya Bank,
Basaveshwarangar Branch, Bengaluru-79, assuring that,
on its presentation, it would be honoured. Believing the
representation, when the complainant presented the above
referred cheques through his banker ie., SBI,
Basaveshwaranagara Branch, Bengaluru -79, all the
cheques dishonored with the shara as “Funds Insufficient”,
dt:30.03.2021, respectively. Immediately, the complainant
got issued the demand notice dt:23.04.20221 through RPAD
calling upon the accused to discharge the liability under the
above referred cheques, which served on the accused.
Despite which, the accused has not chosen to comply the
demand, which has given cause of action to file the present
complaints.
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
3. After filing of the complaint, this court has taken
cognizance of the offence punishable U/s.138 of N.I.Act in
all the above referred cases. Sworn statements of the
complainant were recorded. Being satisfied that, there are
prima-facie materials to proceed against accused in all the
cases, summons were issued. After appearance of the
accused, he was enlarged on bail and plea was recorded.
The accused pleaded not guilty and claimed for trial.
4. From the basis of the pleadings in all the cases, the
following points that arise for my consideration, are as
follows:-
1. Whether the complainant proves that, the
accused issued five cheques bearing
No. 404314 dt: 20.02.2021, cheque bearing
No.404315, dt: 20.02.2021, cheque bearing
No.409630, dt: 05.03.2021, cheque bearing
No.702733, dt:10.03.2021 & cheque
bearing No. 702734, dt: 20.03.2021, each
for Rs.25 lakhs, in total Rs.1,25,00,000/-
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
all drawn on Vijaya Bank, Basaveshwara-
nagar Branch, Bengaluru- 79, towards
discharge of his liability which were returned
unpaid on presentation for the reason “Funds
Insufficient” and despite of knowledge of the
notice, he has not paid the said cheque
amounts and thereby, committed an offence
punishable U/s.138 of N.I.Act?
2. What order?
5. The sworn statement and the documents marked in
CC.No.30248/2021 at Ex.P.1 to P.5, in CC.No.30249/2021
at Ex.P.1 to P.7, in CC.No.30267/2021 at Ex.P.1 to P.6 &
CC.No.30274/2021 at Ex.P.1 to P.5 by the complainant is
being treated as the complainant evidence as per the
decision of the Hon’ble Apex Court in Indian Bank
Association Vs. Union of India and Ors., reported in 2010 (5)
SCC 590. Here, it is relevant to note that, the defence
by making a memo dt:07.02.2025 in CC.No. 30248/2021
has got clubbed the other CC Nos.30249/2021, CC.No.
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
30267/2021 & CC.No.30274/2021 with the present
complaint by vide order dt:06.03.2025. On completion of the
complainant evidence, the statement of the accused as
required U/s.313 of Cr.P.C was read over and explained to
accused in all the cases, wherein he has denied the
incriminating evidence appeared against him and submitted
that, he has the evidence. However, he has not chosen to
adduce his side evidence, but got marked Ex.D.1 and D.2
documents through the confrontation of PW.1 in the course
of cross examination.
6. Heard from both side. Defence has also filed written
argument.
The complainant has relied upon decisions reported in
1. AIR 2020 SC 945- APS Forex Service pvt Ltd., Vs.
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
Shakthi International Fashion Linkers; (2015) AIR
(SCW) 64- K. Subramai Vs. Damodara Naidu.
The defence has relied upon the decisions reported in
(2008) 4 SCC 54 – Krishna Janardhan Bhat Vs.
Dattatraya G. Hegde; 2008 (5) KCCR 3371-
Kempanarasimhaiah Vs. P.Rangaraju and others;
(2010) 11 SCC 441 – Rangappa Vs. Sri. Mohan; (2018) 1
SCC 560 – Meters and Instruments Private Ltd and
another Vs. Kanchan Mehta; AIR 2020 SC 945 – APS
Forex Sevices Pvt Ltd., Vs. Shakti International Fashion
Linkers and Ors; (2021) 5 SCC 283 – Kalamani Tex and
another Vs. P. Balasubramanian; 2022 (3) AKR 381 –
M.S. Sathya Narayana Vs. Lingaraje Urs; AIR 2023 – SC
5018 – Rajesh Jain Vs. Ajay Singh.
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
The decisions relied by both parties are being dealt on
the point of burden of proof, presumption and rebuttable
presumption.
7. Perused the materials available on record.
8. My answer to the aforesaid points are as under:-
Point No.1 :- In the Negative
Point No.2 :- As per the final order, for the following:-
REASONS
9. Point No.1:- The complainant has filed these
complaints alleging that, the accused has committed an
offence punishable U/s.138 of N.I.Act. He pleads and
asserts that, the accused had raised hand loan of
Rs.1,25,00,000/- and towards the discharge of the said
liability, has issued five cheques bearing No.404314 dt:
20.02.2021, cheque bearing No.404315, dt:20.02.2021,
10C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021cheque bearing No.409630, dt:05.03.2021, cheque bearing
No.702733, dt:10.03.2021 & cheque bearing No.702734, dt:
20.03.2021, each for Rs.25 lakhs, in total Rs.1,25,00,000/-
all drawn on Vijaya Bank, Basaveshwaranagar Branch,
Bengaluru-79, which are being dishonored for want of
sufficient funds. He has also got issued the demand notice
which is being served on the accused and despite which, he
has not chosen to comply it.
10. In these scenario, if the documents placed by
the complainant is scrutinized, the complainant in order to
examine the compliance of statutory requirements as
envisaged U/s.138 of NI Act, he got produced the disputed
cheques ie., cheques bearing No.404314 dt: 20.02.2021,
cheque bearing No.404315, dt: 20.02.2021, cheque bearing
No.409630 dt:05.03.2021, cheque bearing No.702733,
dt:10.03.2021 & cheque bearing No.702734, dt:
11
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/202120.03.2021, each for Rs.25 lakhs, in total Rs.1,25,00,000/-
all drawn on Vijaya Bank, Basaveshwarangar Branch,
Bengaluru-79, which are being marked as Ex.P.1
respectively in all the cases. The said cheques are being
dishonored for want of sufficient funds as per Ex.P2 in all
the respective cases. The said cheques are being
dishonoured on 30.01.2021. The complainant has also got
issued the demand notice on 23.04.2021 at Ex.P.3 in all the
respective cases which are being served on the accused on
26.04.2021, respectively. The present complaints are being
filed on 01.06.2021 respectively. A careful scrutiny with the
documents with the referred dates with the date of filing the
complaints suffices that, the complaints are being filed well
in time.
11. At this stage, it would be appropriate to extract
U/s.118 & 139 of N.I.Act which would help this court to
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
appreciate the rival claims of the parties in the proper
manner.
Sec. 118 of the Act reads as thus, that every
Negotiable Instrument was made or drawn for consideration
and that, every such instrument when it has been accepted,
endorsed, negotiated or transferred was accepted, endorsed,
negotiated or transferred for consideration.
Sec.139 of Negotiable Instrument Act provides for
presumption infavour of PA holder. It reads like this, it
shall be presumed, unless the contrary is proved, that, the
holder of a cheque received the cheque, of the nature
referred to in Sec. 138, for the discharge, in whole or in
part, or any debt or any other liability.
12. A combined reading of the referred sections
raises a presumption infavour of the holder of the cheque
that, he has received the same for discharge in whole or in
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
part of any debt or other liability. No doubt, the said
presumptions of law are rebuttable in nature, the opponent
can take probable defense in the scale of preponderance of
probabilities to rebut the presumption available to the
holder of the cheque. It is need less to say that, the evidence
of the complainant can be rebutted even by effectively cross-
examining him, rather entering the witness box.
13. So, in these back ground, if the oral and
documentary evidence available on record, is taken into
consideration, as said above, the complainant claims that,
the accused has borrowed Rs.1,25,00,000/- from the month
of March 2016 till September 2019 and towards the
discharge of the said legal liability, has got issued the
disputed cheques which are being dishonoured for want of
sufficient funds. However, the accused would deny the
complainant case by not only denying the loan transaction
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
and the issuance of the disputed cheques towards the
discharge of legal liability, but has also questioned the very
financial capacity of complainant in advancing
Rs.1,25,00,000/- between the month of March 2016 till
September 2019. So, here when the accused has seriously
disputed the very claim of the complainant by questioning
the loan transaction and the financial capacity of the
complainant in advancing Rs.1,25,00,000/-, the initial
burden would be upon the complainant to discharge the
said burden by placing the probable evidence.
14. Here, the complainant and accused are well
acquainted with each other is not in dispute. The accused
is also one of the producer in Kannada Film Industry is
also not in dispute. The disputed cheques placed on record
and the signatures appearing therein belongs to the
accused is also not in dispute. The disputed cheques being
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
dishonored for want of sufficient funds is also not in
dispute. Even, the issuance of demand notice and its receipt
by the accused is also not in dispute. Perhaps, the accused
has not disclosed as to how the disputed cheques have
gone to the possession of the complainant. Through out, the
cross examination of the complainant, the accused has
not posed any single suggestion as to how the disputed
cheques were being handed over to the complainant. In
other words, he has kept silence by taking contention that,
it is the burden upon the complainant to establish his case
by placing the probable evidence, which argument also
appears to hold some force. Because, when the complainant
has approached the court by claiming the loan transaction
and the accused having issued the disputed cheques
towards the legal discharge, the burden is upon him to
establish it, when more particularly the accused has
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
questioned the loan transaction and the financial capacity.
In the decision reported in 2006(6)SCC 39 – M.S.Narayana
Menon @ Mani Vs. State of Kerala and another., wherein the
Hon’ble Apex court has clearly held that, “the burden of
proof on accused would not be heavy. He need not disprove
the prosecution case in its entirety, but he can discharge his
burden on the basis of preponderance of probabilities through
direct or circumstantial evidence, rather entering the witness
box”. This decision enumerates the burden upon the
complainant to discharge his initial burden and once, the
complainant would discharge the burden, then the onus
would shift upon the accused to rebut it.
15. By gathering the evidence available, it goes to
indicate that, the entire claim of the complainant is only on
the basis of the disputed cheques which are being marked
as Ex.P.1 in CC.No.30248/2021, CC.No.30267/2021,
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
CC.No.30274/2021 and Ex.P.1 & P2 in CC.No.
30249/2021. As said, the acquittance between the
complainant and accused is not in dispute. Here, the
complainant doing the business pertaining to the
installation of coffee vending machine to the private
companies and also, as a producer is also not denied by the
accused. No doubt, the disputed cheques and the
signatures appearing therein does belongs to the accused
and it being dishonored is also not in dispute, but the
complainant has to place some probable evidence so as to
hold that, the disputed cheques were being issued towards
the discharge of legal liability, which admittedly not
forthcoming. Because, on perusal of complaint averments
with the oral and documentary evidence, the complainant
claim that, he has advanced Rs.1,25,00,000/- from the
month of March 2016 till the month of September 2019.
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
The complainant has not chosen to produce any piece of
evidence to show that, he had Rs.1,25,00,000/- in the
particular periods and he had advanced the said amount to
the accused as he claims.
16. It is an admitted fact that, the accused nowhere
would deny the profession of the complainant. But, that
does not mean that, the accused having admitted the
financial capacity of the complainant to advance
Rs.1,25,00,000/-. The accused has placed his entire
reliance on Ex.P.6 produced in CC.No.30267/2021 so as to
establish his financial capacity. Apart from this document,
he has not placed any other document to show that, he had
a particular amount of funds on the particular period of the
loan transaction. On perusal of Ex.P.6 produced in
CC.No.30267/2021, it indicates that, the said bank
statement do stand from the period 01.04.2016 to
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
30.09.2019. No doubt, the complainant has produced the
Ex.P.6 which admittedly stands in the name of the firm
called “Ballava” which is the current account, but it also
cannot be denied that, on the entire perusal of the
statement, it would indicate that, the complainant was
having no sufficient funds more particularly
Rs.1,25,00,000/- through out the said periods so as to
advance to the accused. On the other hand, the Ex.P.6
would go to indicate that, the complainant himself was due
of Rs.20 lakhs to the bank. Though, the complainant claim
that, he had OD facility to utilize to the tune of Rs.20
lakhs and so also, the accused has posed certain questions
with regard to the default in paying the interest and of a
penalty which was being denied by the complainant, but it
is an admitted fact that, though the complainant was at
liberty to utilize the OD facility to the tune of Rs.20 lakhs,
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
the Ex.P.6 would evidence that, he had no such sufficient
funds to advance to the accused. In other words, the Ex.P.6
in no way would be helpful for the complainant to establish
his financial capacity, but rather on the other hand it would
go to indicate that he was due to the bank for utilizing the
OD facility. When such being the case, it cannot be
construed that, the Ex.P.6 would come to the complainant
rescue so as to establish his financial capacity.
17. It is an admitted fact that, the Ex.P.6 is a current
account which is standing in the name of the firm and it is
also an admitted fact that, the complainant is also having a
saving account in SBI bank. Though, the complainant has
admitted that, he has no impediment to produce the bank
statement of the SBI from the year 2016 to 2019, but he
has not chosen to produce it for the best reason known to
him. It would not be wrong to say that, the said document
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
would have thrown some light on the issue so as to
appreciate his financial capacity. Perhaps, when a specific
question was posed to the complainant with regard to the
particular dates of the payment and its exact amount of
payment, he has deposed that, he has advanced more than
20 times and the payments was more than Rs.25,000/- at
a time and that would found in the bank statement. He has
also categorically admitted that, he has not reduced the
loan transaction in writing and also, admitted that, he has
not maintained any accounts in writing so far the loan
transaction is concerned. When, the complainant has
categorically deposed that, he has made payments more
than 20 times and the payments was more than
Rs.25,000/- at a time and that would reflect in the bank
statement, but as said above, the Ex.P.6 is silent of the said
aspect.
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
18. Perhaps, when the accused claim that he has
not reduced the loan transaction in writing or has
maintained any accounts in writing, this court do not find
any force in the argument of the complainant as to how he
has come to a definite conclusion of he paying exact amount
of Rs.1,25,00,000/- to the accused in the above referred
particular periods. Because, Rs.1,2500,000/- is not a small
amount. When, the complainant claim that, he has
advanced the said amount from the month of March 2016
to September 2019, it was incumbent upon the complainant
to produce the exact statement of accounts or any other
document for having advanced the said amount to the
accused and it was accumulated exactly at
Rs.1,25,00,000/-. But, absolutely, the complainant has not
chosen to produce any piece of evidence to appreciate as to
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CC.No.30267/2021, CC.No.30274/2021
how he has come to a definite conclusion of he paying
Rs.1,25,00,000/-.
19. It is also relevant to note that, the complainant
is also not particular about the exact date of payments and
the exact amount of payments. As said above, though he
claim that, he has advanced Rs.1,25,00,000/- from the
month of March 2016 to September 2019, but he is not
particular of the exact date and payment of the amount. In
other words, he pleads ignorance. In the decision reported
in 2014(2) SCC 236 – John K. Abraham Vs. Simon C.
Abraham and another., wherein the Hon’ble Apex Court has
held that, “when the complainant was not aware of the
date when substantial amount of Rs.1,50,000/- was
advanced to the accused and also, failing to produce the
relevant documents in support of the alleged source for
advancing money to the accused, it has to be held that, the
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C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
accused has rebutted the presumption and is entitle for
acquittal”. Even, in the case in hand, the complainant is
also silent of the exact dates of the payments and also, the
exact payments. Baldly, he deposes that, he has advanced
for more than 20 times and he has advanced more than
Rs.25,000/- at a time. He has also categorically admitted
that, he could not exactly say the exact amount being paid
to the accused, but again he deposes that, he has paid
Rs.30 to 50 lakhs. But, again he admits that he cannot say
the exact year of the payment of the remaining amount.
The said admission would read like this, “2017 ನೇ ಸಾಲಿನಲ್ಲಿ
ನಾನು ಆರೋಪಿಗೆ ಇಪ್ಟೇ ಮೊತ್ತ ಕೊಟ್ಟಿರುತ್ತೇನೆಂದು ಹೇಳಲಾಗುವುದಿಲ್ಲ. ಆದರೆ ರೂ.
30 ಲಕ್ಷದಿಂದ ರೂ.50 ಲಕ್ಷ ತನಕ ಕೊಟ್ಟಿರಬಹುದು. ಉಳಿದ ಬಾಕಿ ಮೊತ್ತವನ್ನು
ನಾನು ಯಾವ ಸಾಲಿನಲ್ಲಿ ಕೊಟ್ಟಿರುತ್ತೇನೆಂದು ನನಗೆ ಸ್ಪಪ್ಟವಾಗಿ ಹೇಳಲಾಗುವುದಿಲ್ಲ”.
This admission indicates that, he is not particular of the
date of loan transaction which really creates a serious
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CC.No.30267/2021, CC.No.30274/2021
doubt. The decision reported in 2014(2) SCC 236 aptly
applies to the case in hand.
20. As said above, there is no proof to establish that,
he had a sufficient funds on the particular date of loan
transaction and also, there is no proof on record to show
that, he had advanced a particular amount on the
particular date as he claimed. Much less, he has also not
produced any document to establish as to how he has
accumulated Rs.1,25,00,000/-. No doubt, the complainant
is a businessman and a producer, but again, that does not
mean that, he is financially well. It is an admitted fact
that, the complainant is an income tax assessee. He has not
produced his I.T returns to establish his source of income
nor he has produced the I.T. returns to establish that, he
has declared the loan transaction in the I.T.returns. In
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CC.No.30267/2021, CC.No.30274/2021
other words, it could be gathered that, the complainant
happens to have not disclosed the so called loan transaction
in the I.T. returns. A doubt would create that, when, the
alleged loan transaction has taken place as claimed by the
complainant, what prevented the complainant in not
disclosing the loan transaction in his I.T. returns. Though,
the complainant had admitted that, he has no impediment
to produce the I.T. returns to the court, he has not chosen
to produce it, which also gives a room to draw the adverse
inference. This is one aspect.
21. As said, Rs.1,25,00,000/- is not a small amount.
Can it be expected, a person to advance such a huge
amount from time to time in a hard cash without expecting
any document or getting reduced in a piece of paper, which
also creates a serious doubt. No doubt, the complainant and
the accused are well acquainted with each other, but again
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CC.No.30267/2021, CC.No.30274/2021
merely being the well acquittance, can it be expected to
advance Rs.1,25,00,000/- in a hard cash in the absence of
any witness and not reduced in writing really creates a
doubt. If, the complainant had produced any documentary
proof with regard to his source of income, certainly, his case
could have been appreciated, which admittedly not
forthcoming. It is also an admitted fact that, the
complainant is well educated and is a businessman. What
prevented him in advancing the loan amount through the
cheque or through the bank/online transaction or reducing
in writing which would have really supported his case. But
admittedly no such efforts are being made by the
complainant so as to appreciate his claim.
22. The defence has also got confronted the Ex.D.2 a
correspondence that took place between the office of Joint
Director District Industrial Center, Tumkur with the firm
28
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
called M/s. Selebrate, which pertains to the manufacture of
ready made garments. The complainant’s wife Smt. Deepa
R.Kamath is a proprietor of the said firm which is not in
dispute. The said Deepa R. Kamath happens to have made
application to the government to grant a land for
establishing the said firm which was under the process as
per Ex.D.2. It cannot be denied that, as per Ex.D.2, land of
2 acres in plot no.237 of Vasanthanarasapura Industrial
Area, II phase, Tumkur District, was proposed to be allotted
and per acre was fixed at Rs.68 lakhs plus 10 % extra for
facing 100 ft road. It also cannot be denied that,
Rs.13,60,000/- being paid is adjusted towards the partial
10% tentative cost of the land and the complainant’s wife
was requested to remit balance 10% cost of land ie.,
Rs.1,36,000/- within 30 days from the date of allotment
letter on or before 22.2.2017. It also cannot be denied that,
29
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
the complainant’s wife was also required to deposit
Rs.1,34,64,000/- being the balance 90% tentative amount
of the land within 180 days ie., on or before 22.7.2017 to
the government. The complainant has categorically admitted
that, his wife could not deposit the said amount as they
had no sufficient funds on the particular dates. However,
the complainant voluntarily deposes that, though the
accused had assured to return back the amount, he has
failed to repay it and therefore, he could not deposit the
amount. The admission would read like this, “2017 ನೆೇ
ಸಾಲಿನಲ್ಲಿ ನನ್ನ ಹೆಂಡತಿಯು ಸೆಲೆಬ್ರೆಟ್ ಎಂಬ ರೆಡಿಮೇಡ್ ಗಾರ್ಮೆಂಟ್ಸ್
ಪ್ರಾರಂಭಿಸಲು ಸರ್ಕಾರಕ್ಕೆ ನಿವೇಶನ ಮಂಜೂರು ಕೋರಿ ಅರ್ಜಿ ಸಲ್ಲಿಸಿದ್ದರು ಅಂದರೆ
ಸರಿ. ಸದರಿ ನಿವೇಶನದ ಪ್ರಯುಕ್ತ ಮುಂಗಡ ಹಣವು ಕೂಡ ನನ್ನ ಬ್ಯಾಂಕ್ ಖಾತೆಯ
ಮೂಲಕ ಜಮೆ ಮಾಡಲಾಗಿರುತ್ತದೆ ಅಂದರೆ ಸರಿ. ಉಳಿದ ರೂ.1,34,64,000/-
ಮೊತ್ತವನ್ನು 6 ತಿಂಗಳ ಒಳಗೆ ಪಾವತಿಸಬೇಕು ಎಂದು ನಿಬಂಧನೆ ಇತ್ತು ಅಂದರೆ ಸರಿ .
ಸದರಿ ಮೊತ್ತವನ್ನು ಪಾವತಿಸಲು ದಿಃ22.07.2017 ಎಂದು ನಿಗದಿಪಡಿಸಲಾಗಿತ್ತು
30
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
ಅಂದರೆ ಸರಿ. ಆ ಸಮಯದಲ್ಲಿ ನಮ್ಮ ಬಳಿ ಹಣ ಇಲ್ಲದಿದ್ದ ಕಾರಣ ನಾವು
ಪಾವತಿಸಿರುವುದಿಲ್ಲ ಅಂದರೆ ಸರಿ. ಸಾಕ್ಷಿ ಮುಂದುವರಿದು ಆರೋಪಿಯು ನಮಗೆ
ಹಣ ಕೊಡುವುದಾಗಿ ಆಶ್ವಾಸನೆ ನೀಡಿದ್ದರೂ ಕೂಡ ಹಣ ಕೊಟ್ಟಿರುವುದಿಲ್ಲ ಹಾಗಾಗಿ
ಪಾವತಿಸಿರುವುದಿಲ್ಲ ಎಂದು ನುಡಿಯುತ್ತಾರೆ”.
23. Here, the evidence of the complainant would
indicate that, his wife was required to deposit the amount
on or before 22-07-2017 and since, the accused had
assured to return back the amount and he failing to return
it, he could not deposit the amount to the government and
therefore, they could not get allotted the land. When, the
very admission of the complainant would go to indicate that
as the accused failed to return the amount and therefore, he
could not deposit the amount to the government, can again
it could be expected the complainant advancing further
amount to the accused in the year 2017 to 2019. Again,
this court do not find any force in the argument of the
31
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
complainant to appreciate the loan transaction. In a normal
course, when the person fails to return back a receipt
amount in a particular time, no prudent man would
advance further amount. So, here again it creates a serious
doubt so far the loan transaction is concerned.
24. It is also relevant to note that, the complainant
apart from admitting that, he had no sufficient funds at a
particular point of time to deposit to the government, he
had also a vehicle loan which he was required to be
discharged in a particular period. The admission again
reads like this, “2016-17 ನೇ ಸಾಲಿನಲ್ಲಿ ನಾನು ಸಾಲದಲ್ಲಿ ಪಡೆದುಕೊಂಡ
ವಾಹನಕ್ಕೆ ಸಂಬಂಧಪಟ್ಟಂತೆ ಮಾಸಿಕ ಕಂತನ್ನು ಕಟ್ಟುತ್ತಿದ್ದೆ ಎಂದರೆ ಸರಿ”. Here,
this admission also goes to the root of the case. Because,
when, the complainant had raised a vehicle loan, rather he
clearing the entire vehicle loan amount, can he be expected
to advance loan to the accused by paying a interest on the
32
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
vehicle loan, which also creates a doubt. Again no prudent
man would accept this contention. Because, the
complainant claims that, he had advanced the loan to the
accused without any interest and on the other hand, he
remitting an interest on a vehicle loan cannot be accepted.
Can it be expected, he advancing the loan without interest
to the accused and he paying a interest on the vehicle loan
which cannot be brushed aside. So, this fact also creates a
serious doubt.
25. Moreso, on perusal of the disputed cheques in
all the cases, it indicates that, all the cheques are of the
month of February and March 2021. The complainant
has also not placed any probable evidence as to why he
has collected five cheques of the month February and March
2021, rather collecting a single cheque for Rs.1,25,00,000/-
of a particular month. Even, there is no pleading to this
33
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
regard. It is an admitted fact that, the accused has not
disclosed as to how the disputed cheques have gone to the
possession of the complainant, but when the initial burden
is upon him to place a probable evidence that, the disputed
cheques in all the cases were being issued towards the
discharge of legal liability, it cannot be said that, the
complainant has discharged his initial burden so as to call
upon the accused to rebut the presumption. The oral and
documentary evidence available on record evidences that,
when the complainant himself was repaying the vehicle
loan, utilizing the OD facility and was unable to deposit
the amount to the government as per Ex.D.2, how could
the complainant advance such a huge amount of
Rs.1,25,00,000/- in a hard cash from the month of March
2016 to September 2019. No probable and convincing
evidence are placed on record to appreciate his financial
34
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
capacity. It would not be wrong to say that, the oral and
documentary evidence available on record evidences that,
the complainant has not only failed to establish the loan
transaction, but has also failed to establish his financial
capacity to advance Rs.1,25,00,000/- in a particular period
and also, failed to establish the issuance of the disputed
cheques towards the discharge of legal liability. No doubt,
the principles enumerated in the decision relied by the
complainant cannot be denied, but with due respect,
having complainant failed to establish his case, the said
decisions are not applicable to the case in hand. The
decisions relied by the accused aptly applies to the case in
hand and accordingly, it is applied. When, the complainant
has utterly failed to discharge his initial burden, merely the
demand notice being served on the accused and the
disputed cheques being dishonored for want of sufficient
35
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
funds, would not allow the complainant to say that, he
has established his case so as to bring the guilt of the
accused for the offence punishable U/s.138 of N.I.Act. In
this back ground, holding that, the complainant has utterly
failed to establish his case, point no.1 is answered in the
Negative.
26. Point No.2:- For the reasons discussed in the
point No.1, I proceed to pass the following :
ORDER
Acting U/s.278(1) of BNSS -2023
(Old Correspondence No. 255(1) of Code of
Criminal Procedure), the accused is acquitted for
the offence punishable under section 138 of the
Negotiable Instruments Act.
The bail bond and surety bond furnished by
the accused stands canceled.
36
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021Original Judgment was kept in the file of
CC.No.30248/2021 and copies of the
Judgments are kept in rest of the cases ie.,
CC.No 30249/2021, CC.No.30267/2021,
CC.No.30274/2021.
(Directly dictated to stenographer on computer, typed by her, revised by me and then
pronounced by me in the open court on this the 5th day of August 2025).
Digitally signed
JAI by JAI SHANKAR
SHANKAR J
Date: 2025.08.05
J 17:46:48 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate,
Bengaluru.
ANNEXURE
IN CC.NO.30248/2021
List of witnesses examined on behalf of complainant:-
PW.1 : Sri. Raghavendra. V Kamath
List of exhibits marked on behalf of complainant:-
Ex.P.1 : Original cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank Memo
Ex.P3 : Legal notice
37
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021Ex.P4 : Postal receipt
Ex.P5 : Postal acknowledgmentList of witnesses examined on behalf of the accused:-
– Nil-
List of exhibits marked on behalf of the accused:-
Ex.D.1 : Calculation Sheet
Ex.D.2 : Correspondence between the office of
Joint Director District Industrial
Center, Tumkur with the firm called
M/s. Selebrate
ANNEXURE
IN CC.NO.30249/2021
List of witnesses examined on behalf of complainant:-
PW.1 : Sri. Raghavendra. V Kamath
List of exhibits marked on behalf of complainant:-
Ex.P.1 & P2 : Original cheques
Ex.P1(a) & 2(a) : Signatures of the accused
Ex.P3 & 4 : Bank Memos
Ex.P5 : Legal notice
Ex.P6 : Postal receipt
Ex.P7 : Postal acknowledgment
38C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021ANNEXURE
IN CC.NO.30267/2021
List of witnesses examined on behalf of complainant:-
PW.1 : Sri. Raghavendra. V Kamath
List of exhibits marked on behalf of complainant:-
Ex.P.1 : Original cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank Memo
Ex.P3 : Legal notice
Ex.P4 : Postal receipt
Ex.P5 : Track Consignment
Ex.P6 : Bank Statement
ANNEXURE
IN CC.NO.30274/2021
List of witnesses examined on behalf of complainant:-
PW.1 : Sri. Raghavendra. V Kamath
List of exhibits marked on behalf of complainant:-
Ex.P.1 : Original cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank Memo
39
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021Ex.P3 : Legal notice
Ex.P4 : Postal receipt
Ex.P5 : Postal acknowledgment
Digitally signed
JAI by JAI SHANKAR
SHANKAR J
Date: 2025.08.05
J 17:46:55 +0530(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate,
Bengaluru.
40
C.C.No.30248/2021, C/w. CC.No 30249/2021,
CC.No.30267/2021, CC.No.30274/2021
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