Bangalore District Court
M/S. Bizotico vs Mujeeb Rahman Pilakkal Kandi on 7 August, 2025
KABC030301852024
IN THE COURT OF THE XXV ADDL. CHIEF JUDICIAL
MAGISTRATE, AT BANGALORE CITY
Dated this the 7th day of August 2025
Present : SRI. GOKULA. K
B.A.LL.B.
XXV Addl. Chief Judicial Magistrate,
Bangalore City.
C.C.No.17367/2024
Complainant : M/s.Bizotico
A Partnership Firm Comprising
partners
Mr.Ajay Gopal &
Mr.Akshay Gopal.
Rep. By Mr.Akshay Gopal's
Power of Attorney Holder
Mr.H.A.Dileep
S/o. Late. Anand,
Aged 41 years,
R/at: No.171, 1st Floor, 5th Cross,
5th main Road, Bagalgunte,
Bangalore-560073.
(By SS -Advocate )
V/s
Accused : Mr. Mujeeb Rahman Pilakkal Kandi
Sole Proprietor of Rivoli International
Having office at No.5/1312-J25, 2nd
floor, Qatar Plazam Wayanad Road,
East Nadakkavu,
Kozhikode, Kerala-673006.
(By RSP - Advocate )
Plea of accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of judgment : 07.08.2025
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C.C.No.17367/2024
JUDGMENT
The complainant has filed the complaint under Section 200
of Criminal Procedure Code against the accused for the offence
punishable under Section 138 Negotiable Instruments Act.
2. The brief case of the complainant is as under:
That the complainant is a partnership firm engaged in the
business of trading in gadgets, watches, eye-wear, accessories,
spirits and wine. The accused being desirous of engaging in
business with the complainant, approached the complainant in
the year 2019-20 seeking to trade gadgets, watches, eye-wear,
accessories, spirits and wine from the complainant. The accused
operates a sole proprietorship concern styled as ‘Rivoli
International’ having its operation in Kozhikode, Kerala. The
accused placed several orders for delivery of watches with the
complainant. The complainant raised several invoices on the
accused from the year 2019 to 2021 amounting to
Rs.1,82,45,828/-. Out of the aforesaid total amount, the
accused paid a part of the same to the complainant and the
accused owed an amount of Rs.25,19,531/-. For repayment of
said amount the accused issued 5 cheques bearing no.00486,
00487, 00489, 00490, 00491 for a sum of Rs.5,00,000/- each
all are dated 23-01-2024 drawn on ICICI Bank, Nadakkayu
Branch, Kozhikode, Kerala 673011. The complainant presented
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C.C.No.17367/2024the said cheques for realization on 23.01.2024 through its
banker i.e. Standard Chartered Bank, Sadashiv Nagar,
Bengaluru and said cheques returned dishonored on
25.01.2024 for the reason “Funds Insufficient”. Therefore the
complainant got issued legal notice dated 24.02.2024 calling
upon the accused to pay the amount covered in the cheques.
The notice was duly served on the accused on 28.02.2024. It is
pleaded that the accused has made payment of Rs.1,25,000/- to
the complainant after dishonour of the cheques infavour of the
complainant. Inspite of service of notice, the accused failed to
pay the claim amount to the complainant within the statutory
time. Therefore, the accused has committed the offence under
Section 138 of Negotiable Instruments Act. Therefore the
complainant has filed the complaint.
3. On the basis of Private complaint filed by the
complainant, this court taken cognizance of offence and
registered the case in PCR No.5618/2024 and recorded sworn
statement and got marked 18 documents as Ex.P 1 to P18. This
court upon considering the material on record issued process
under Section 204 of Cr.PC by registering the criminal case. In
response to the process issued by this court, the accused
appeared before this court and he is released on bail. The copy
of the complaint is served to the accused along with the
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C.C.No.17367/2024
summons as contemplated under Section 207 of Criminal
Procedure Code.
4. The substance of the acquisition as provided Section 251
of Cr.PC is read over to the accused and his plea is recorded.
The accused has pleaded not guilty and claimed to be tried.
5. In view of the law laid down by Hon’ble Supreme Court of
India in Indian Bank Association V/s Union of India and others
reported in AIR 2014SCW3463, the affidavit filed by the
complainant at the stage of taking cognizance and documents
marked is treated as evidence under section 145 of Negotiable
Instruments Act. The accused has filed application to recall
PW1 for cross examination. But PW 1 is not appeared for cross
examination. The complainant has got the evidence of PW 1
discarded as he left employment with the complainant and
examined another representative as PW 2 and got marked the
documents as Ex.P.1 to Ex.P.19. After the evidence of the
complainant the matter was posted for cross of PW2. Inspite of
grant of sufficient opportunities, the accused has not appeared
and not cross examined PW 2. Hence, cross examination of PW
2 taken as Nil and adjourned the case for statement of accused
under Section 313 of Cr.P.C. The accused not utilized the
opportunity granted to answer the statement under Section 313
of Cr.P.C. In the decision of Hon’ble High Court of Karnatka in
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C.C.No.17367/2024
Cr.R.P 664/2020 dated 07-02-2025 between Sunil Yadav Vs
Smt. Y.C Manju it is observed that –
15. It is also important to note that considering the
factual aspect of the case as well as proceedings
under Section 138 of N.I. Act, it is settled law that
same has to be concluded expeditiously in the light
of guidelines issued by the Courts from time to time
for speedy disposal of the cases, the scope of Section
142, 143 and 145 of N.I Act, it was not necessary for
the Trial Court to wait for accused to make his
appearance. The Court is empowered to proceed
with the case without recording the statement of the
accused under Section 313 of Cr.P.C. The mere use
of word ‘may’ cannot be held to confer a
discretionary power on the Court to consider or not
to consider such defence, since it constitutes a
valuable right of an accused for access to justice. If
the accused has not bothered to remain present
before the Court and also Court has to take note of
the fact that complainant is running from pillar to
pillar after filing of the case and when the material
discloses that the accused did not bothered, Court
has to exercise discretion and proceed with the case
by dispensing with statement under Section 313 of
the Code. The accused has no regard for directions
of the Court. When such being the case, it is the
discretion of the Magistrate to dispense with the
recording of Section 313 of Cr.P.C.
The accused not appeared for cross examination of PW 2 or to
answer the incriminating circumstances in complainant’s
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C.C.No.17367/2024
evidence inspite of granting sufficient opportunities. Therefore
statement of the accused under Section 313 of Cr.P.C is
dispensed with. Inpsite of grant of sufficient opportunities, the
accused has not lead defence evidence. The accused has not
appeared before the court after passing of orders for payment of
interim compensation under Section 143A of NI Act and not
paid the interim compensation awarded by the court.
6. Heard arguments of learned counsel for the complainant
and arguments of learned counsel for the accused is taken as
heard and perused the material on record.
7. On the basis of the material on record the following points
arise for the consideration of this court :
1. Whether the complainant proves beyond all
reasonable doubt that the accused has issued
5 cheques bearing no.00486, 00487, 00489,
00490, 00491 for a sum of Rs.5,00,000/-
each all are dated 23-01-2024 drawn on ICICI
Bank, Nadakkayu Branch, Kozhikode, Kerala
towards legal liability and said cheques have
been dishonoured on its presentation on
25.01.2024 and inspite of service of demand
notice dated 24.02.2024 on 28.02.2024 the
accused has failed to repay the amount within
statutory period and thus the accused
committed an offence punishable under
Section 138 of Negotiable Instruments Act ?
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C.C.No.17367/2024
2. What Order or Sentence?
8. The findings of this court to the above points are as follows:
Point No.1 In the Affirmative.
Point No.2 As per final order
for the following :
REASONS
9. POINT NO.1: To prove the case the authorized representative
of the complainant is examined as PW-2. The PW2 in his
evidence has reiterated the averments made in the complaint.
To prove registration of the Firm has produced the web copy of
the Registration Certificate as Ex.P1. This document proves the
legal status of the complainant Firm. The complainant has
produced the GPA as Ex.P.2. As per Ex.P 2 PW1 is authorized
to file the complaint and to represent the complainant and to do
all such acts detailed in the GPA. The PW 2 is the partner of the
complainant firm and is having authority to represent the Firm.
The accused has not cross examined PW 2 and not denied the
status of the complainant and authority of PW 1 and 2 to
represent the complainant.
10. The essential ingredients of section 138 and 142 of
Negotiable Instruments Act to be complied are i) drawing of the
cheque by the accused ii) presentation of the cheque to the
bank with in the period of three months, iii) returning of the
cheque unpaid by the drawee bank iv) giving notice in writing to
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C.C.No.17367/2024
the drawer of the cheque demanding of the payment of cheque
amount with in the period of 30 days, v) failure of the drawer to
make payment within the period of 15 days after receipt of the
demand notice and v)Presentation of the complaint within a
month by the complainant after expiry of 15 days of service of
notice to the accused.
11. Therefore it is proper to consider whether the statutory
requirements for constituting the offence under Section 138 of
Negotiable Instruments Act is complied by the complainant. The
PW 1 has deposed that the accused operates a sole
proprietorship concern styled as ‘Rivoli International and he
approached the complainant in the year 2019-2020 seeking to
trade gadgets, watches, eyewear, accessories, spirits and wine.
The accused placed several orders for delivery of watches with
the complainant. He has deposed that the complainant raised
several invoices on the accused from the year 2019 to 2021
amounting to Rs.1,82,45,828.00 and supplied materials Out of
the aforesaid total amount, the accused paid a part of the same
to the complainant and the accused owed an amount of
Rs.25,19,531/-. He has deposed that in furtherance of
discharging legally enforceable debt arisen pursuant to above
transaction the accused issued 5 cheques in favour of the
complainant. The complainant has produced said cheques as
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C.C.No.17367/2024
EX.P 4 to Ex.P8. The PW 1 has deposed that they have
presented Ex.P4 to Ex.P.8, the cheques for collection through
their banker ie Standard Chartered Bank, and said cheques
returned dishonored on 25.01.2024 for the reason “Funds
Insufficient” in the account of the accused to honour. The
complainant has produced said endorsements for dishonour of
cheques as EX.P.9 to Ex.P.13. As provided under Section 146
of Negotiable Instruments Act, law presumes that on production
of banker slip or memo having thereon the official mark
denoting that the cheque has been dishonored, presume the
fact of dishonor of such said cheque, unless and until same is
disproved. Thus the accused has not brought on record any
material evidence to rebut this presumption of law.
12. The PW1 has deposed that they have got issued legal notice
dated 24.02.2024 calling upon the accused to pay the amount
covered in the cheques as per Ex. P14. The notice duly served
on the accused on 28.02.2024. Evidencing the same the
complainant has produced the postal receipts, postal
acknowledgment and the track consignment as Ex.P.15 to
Ex.P.17. The accused has not disputed service of demand
notice. The PW 2 has deposed that inspite of service of notice,
the accused failed to pay the claim amount to the complainant
with in the statutory time but The accused has only paid a sum
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C.C.No.17367/2024
of Rs.1,25,000/- post dishonour of the cheque. The complaint is
filed before this court on 15.04.2024. Thus the complainant has
complied all the statutory requirements for constitution of
offence under Section 138 of Negotiable Instruments Act.
Therefore, the complainant is entitled for presumption under
118 and under Section 139 of Negotiable Instrument Act. The
provisions of Section 139 of Negotiable Instrument Act reads as
under:-
139- Presumption in favour of holder – It
should be presumed, unless the contrary is
proved, that the holder of a cheque received
the cheque, of the nature referred to in
section 138 for the discharge, in whole or in
part, of any debt or other liability.
13. Hon’ble Supreme court in a decision reported in (2010) 11
SCC 411 between Rangappa V/s Sri Mohan has held that –
The presumption mandated by Section 139
of the act does indeed include the existence
of a legally enforceable debt or liability.
It is also observed that
Section 139 of the Act is an example of a
reverse onus clause that has been included
in furtherance of the legislative objective of
improving the credibility of negotiable
instrument. It is also held that in such a
scenario, the test of proportionality should
guide the construction and interpretation of
11
C.C.No.17367/2024
reverse onus clauses and the defendant
caused cannot be expected to discharge an
unduly high slandered or proof.
14. Therefore, in view of the principles laid down in the
decision the onus is on the accused to rebut the presumption
under 139 of Negotiable Instruments Act. The accused has not
issued any reply at the initial stage after service of the legal
notice and not utilized the earliest opportunity to put forward
his defence. The accused after availing bail not appeared before
the court to participate in the trial. The accused has also not
paid the interim compensation awarded by this court. Therefore
there is no rebuttal of the presumption of existence of legally
recoverable debt by the accused.
15. The learned counsel for the complainant has relied on the
decision of Hon’ble High court of Karnataka reported in 2025
SCC Online Kar 5886 between Shahida Begum Vs S.F. Md.Naqi
and the case reported in 2025 SCC Online 5898 between
Yallappa Ghalagu Kadolkar Vs New Navahind Multi Purpose Co-
op. Society. In these decisions Hon’ble High Court has held that
in the absence of rebuttal evidence placed on record by the
accused either by examining himself or producing any other
documentary evidence, learned trial magistrate was justified in
convicting the accused for the offence punishable under Section
138 of the Negotiable Instruments Act. The complainant has
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C.C.No.17367/2024
also relied on the decision of Hon’ble Supreme court reported in
(2001) 8 SCC 458 between K.N. Beena Vs Muniyappan and
another, in his case Hon’ble Supreme court has held that
proceeding on the basis that the denials/ averments in the reply
notice were sufficient to shift the burden of proof on to the
complainant to prove that the cheque was issued for a debt or
liability is erroneous approach. The complainant has also relied
on the decision of Hon’ble High Court of Karnataka in RFA
No.844/2010 dated 23-08-2023 between M/s. Stove Kraft Pvt.
Ltd Vs M/S Pradeep Stainless Steel India Pvt. Ltd, in this case it
is held that the invoices raised along with delivery of goods in
pursuance of purchase order amounts to written contracts
within the provision of Order XXXVII of CPC. By relying this
decision the complainant has submitted that the amount due by
the accused under the invoices raised by the complainant
against accused is legally recoverable debt. In the same lines of
arguments he has also relied on the decision of Hon’ble Bomby
High court reported in 2007 SCC Online Bom 1092 between
Jatin Koticha Vs VFC Industries Pvt Ltd.
16. Therefore, upon considering the principles laid down in
these decisions, it is clear that the complainant is entitled for
presumption under Section 118 and 139 of Negotiable
Instruments Act. The accused has not produced material to
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C.C.No.17367/2024
rebut the presumption. Therefore, for the aforesaid discussion
this court concludes that the complainant has proved that the
accused has committed the offence punishable under Section
138 of Negotiable Instruments Act. Therefore this court answers
the above point No.1 in the Affirmative.
[
17. POINT NO. 2 : While answering the point no. 1 this court
concluded that the complainant proved that the accused
committed the offence punishable under Section 138 of
Negotiable Instruments Act. The Amount covered under the
cheques is Rs.25,00,000/-. The cheques are dated 23-01-2024.
The PW 2 has deposed that the accused has paid a sum of
Rs.1,25,000/- after dishonour of the cheque. Therefore balance
amount payable under the cheques is Rs.23,75,000/-. The
money involved in the case is used in commercial transactions.
Therefore considering all these aspects the amount of fine
calculated for a sum of Rs.27,18,000/-. Therefore considering
all these aspects this court proceed to pass the following –
ORDER
By exercising powers conferred U/sec.255(2) of Cr.P.C.,
the accused is convicted for the offence punishable under
Section 138 of Negotiable Instrument Act and sentenced to pay
a fine of Rs.27,18,000/- (Rupees Twenty Seven Lakhs Eighteen
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C.C.No.17367/2024
Thousand Only), in default to pay the fine, the accused shall
undergo simple imprisonment of 6 months.
Further acting U/s 357(1)(a) of Cr.P.C. out of the fine
amount a sum of Rs.5,000/-(Rupees Five Thousand Only) shall
be defrayed as prosecution expenses to the state.
Further acting U/s 357(1)(b) of Cr.P.C. a sum of
Rs.27,13,000 /- (Rupees Twenty Seven Lakhs Thirteen
Thousand Only) out of the fine amount on recovery shall be paid
as compensation to the complainant.
Supply free copy of the judgment to the accused.
[
(Dictated to the Stenographer directly on the computer, typed by her,
corrected and signed then pronounced by me in the open court on this
the 7th day of August 2025).
(GOKULA.K)
XXV A.C.J.M., BANGALORE CITY.
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW.1 : H.A.Dileep (Discarded) PW.2 : Ajay Kumar Gopal
LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P1 : Web copy of the Registration Certificate
Ex.P2 : GPA
Ex.P3 : Web copy of GST Document
15
C.C.No.17367/2024Ex.P4-8 : Cheques
Ex.P9-13 : Bank Endorsements
Ex.P14 : Legal Notice.
Ex.P15 : Postal receipt Ex.P16 : Postal acknowledgment Ex.P17 : Postal Track Consignment Ex.P18 : Web copies of 50 Tax Invoices Ex.P19 : Certificate U/s.65B of the Evidence Act
LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
Nil
Digitally
signed by
LIST OF DOCUMENTS MARKED FOR THE ACCUSED:- GOKULA K
Nil GOKULA
Date:
K 2025.08.07
16:54:54
+0530
(GOKULA.K.)
XXV A.C.J.M., BANGALORE CITY.