Bangalore District Court
Ensemblon vs Venkatesh Murthy.A on 3 June, 2025
KABC020229402020
IN THE COURT OF THE XXII ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
(SCCH-24)
Presided Over by Smt. Roopashri, B.Com., LL.B.,
XXII ADDL., SCJ & ACJM,
MEMBER - MACT,
BENGALURU.
Dated: On this 3rd day of June 2025
CC NO.4875/2020
1. Sl.No. of the Case : C.C.No. 4875 of 2020.
2. The date of : 18-08-2020
commission of the
offence
3. Name of the : ENSEMBLON
Complainant Represented by Proprietor
VIKRAM C DEMBLA
Aged 40 years,
S/o Sri Chaturbhuj Dembla,
No.61, 6th cross
Central Bank,
Kumarapark,
Bangalore -560 020.
Represented by SPA Holder
Sri. Vivek Christopher Leo
S/o Sri Subramanian A
Aged about 39 years
(By Sri.Vishnu Hegde,
Advocate)
SCCH-24 2 C.C.4875/2020
4. Name of the 1. Venkatesh Murthy A
Accused Aged about 47 years,
S/o Aluraiah,
Proprietor:Sapthagiri Asphalts
Company,
No.477 A, 2nd floor,
12th cross, Wilson Garden,
Bangalore -560 027.
R/at No.9, 14th cross,
10th main,
Near Canara Bank ATM,
Wilson Garden,
Bangalore -560 030.
2. Sapthagiri Asphalts
Company,
No.477 A, 2nd floor,
12th cross, Wilson Garden,
Bangalore -560 027.
Represented by proprietor
Venkatesh Murthy A
(By K Shridhara, Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused found guilty
8. Date of such order for : 03-06-2025
the following
SCCH-24 3 C.C.4875/2020
JUDGMENT
This complaint is filed under Sec. 200 of Cr. P. C. for
the offence punishable under Section 138 of the
Negotiable Instruments Act.
2. It is the case of the complainant that: The accused
no.1 is the proprietor of accused no.2 and being well
known to the complainant since 3 years had approached
the complainant for hand loan of Rs.10,00,000/- to meet
his financial crises in the month of August -2019 agreeing
to pay a sum of Rs.1,10,000/- towards interest. The
complainant accordingly paid a sum of Rs.8,90,000/- to
the accused through cheque No.000010 dated 19-08-2019
for Rs.8,90,000/- drawn on Kotak Mahindra Bank,
Bangalore by way of RTGS bearing UTR
No.KKBKR52019081900756419. The accused by agreeing
to repay sum of Rs.10,00,000/- has executed an On
Demand Promissory Note and Consideration receipt on
19-08-2019. Out of Rs.10,00,000/- the accused has paid
a sum of Rs.5,00,000/- and they are still due of sum of
Rs.5,00,000/- towards the principal amount.
3. Towards the discharge of said loan amount the
accused has issued cheque bearing No. No.662930,
662929, 662931 for Rs.1,00,000/- each.
SCCH-24 4 C.C.4875/2020
4. The complainant had caused a legal notice
dated 21-05-2020 to the accused no.1 and 2 for
dishonour of cheques bearing No.662930, 662929,
662931 for Rs.1,00,000/- respectively and since they did
not comply with the demands made in the legal notice, the
complainant has taken legal action by filing a case before
the jurisdictional court.
5. To repay the aforesaid borrowed amount, the
accused no.1 issued cheques bearing Nos. 662932 dated
19-05-2020 for Rs.1,00,000/- and No.662933 dated 19-
06-2020 for Rs.1,00,000/- drawn on Karnataka Bank
Ltd., Overseas Branch, Bengaluru in favour of the
complainant towards the part payment of the principal
amount. The complainant presented the said cheques for
collection through his banker Kotak Mahindra Bank Ltd.,
Malleswaram Branch, Bangalore, same was returned on
03-07-2020 and 22-06-2020 with an endorsement
‘Exceeds Arrangement’. Thereafter, the complainant got
issued legal notice to the accused no.1 and 2 on 09-07-
2020. The said notice was duly served to the accused no.1
and accused no.2 on 11-07-2020 to the business address.
The notice sent to the accused no.1 to the residential
address was returned as ‘Addressee Left’ as per
endorsement dated 10-07-2020. Inspite of service of
notice, accused have failed to make payment till today.
SCCH-24 5 C.C.4875/2020
Accordingly, the accused have committed an offence
punishable under Sec.138 of N.I Act, hence, the
complaint.
6. After recording the sworn statement of the
Power of Attorney holder of the complainant and by
verifying the documents, cognizance was taken against
the accused for the offence punishable under Sec. 138 of
N.I. Act. The accused no.1 on receiving the summons
appeared before the Court through his counsel and was
enlarged on bail. His plea was recorded. The accused no.1
pleaded not guilty and claimed to be tried. Hence, the case
was posted for evidence of the complainant.
7. The complainant got examined its SPA holder as
PW.1 and proprietor of the complainant as PW.2 and got
marked documents as Exs.P1 to 16. Then, the case was
posted for recording the statement of accused under
Sec.313 Cr.P.C. In the statement U/s 313 Cr.P.C., the
accused has denied all the incriminating evidence
appearing against them and claimed to be tried. The
accused no.1 got examined himself as DW.1. Hence, the
case was posted for arguments.
8. Heard the arguments of both side and perused
the records.
SCCH-24 6 C.C.4875/2020
9. The following points arise for my consideration:
1. Whether the complainant proves that
accused has committed offence
punishable under Sec.138 of N.I. Act?
2. What order?
10. My findings on the above points are as under:
Point No.1: In the Affirmative
Point No.2: As per final order,
for the following:
-: R E A S O N S :-
11. POINT NO.1:- It is the definite case of the
complainant that, towards the discharge of balance
principal amount of Rs.5,00,000/-, the accused has
issued disputed cheques and when the cheques were
presented, same was dishonoued for the reason “Exceeds
Arrangement” . Though the said fact was brought to the
notice of the accused by issuing legal notice but accused
has failed to repay the cheque amount.
12. In order to substantiate the contention, the
complainant got examined its SPA holder as Pw1 and
proprietor of the complainant by name Vikram C Dembla
as PW.2 and got marked in all 16 documents as ExP1 to
Ex.P16. If the documents produced by the complainant
SCCH-24 7 C.C.4875/2020
are perused, Ex.P1 is the SPA deed executed in favour of
Pw.1, ExP2 and 3 are the cheques which bears the
signature of accused. The accused nowhere has disputed
the cheques relates to their account so also the signature
of accused no.1 in the Ex.P1. It is deposed by Pw1 that
cheques in question was issued by the accused for
discharge of liability. The cheques in question were
presented by the complainant through his banker which
was returned with a memo as per ExP4 and 5 stating
‘Exceed Arrangement’. Hence, he got issued legal notice to
the accused no.1 and 2 through RPAD, which is produced
at Ex.P.6. The postal receipts are marked at Ex.P.7 to 9.
The Postal acknowledgments are marked at Ex.P.10 and
11. The RPAD cover is marked as Ex.P12. Ex.P13 is the
bank statement. Ex.P14 is the GST certificate. Ex.P15 is
the ledger account extract. Ex.P16 is the certificate u/Sec.
65 B of Evidence Act.
13. The accused while admitting that complainant
is known to him has contended that he has borrowed only
sum of Rs.8,90,000/- from the complainant and that at
the time of borrowing money, the complainant has
demanded to give 10 blank signed cheque as security.
From September -2019 regularly the accused has
transferred sum of Rs.1,00,000/- each and thus he had
transferred in all sum of Rs.5,00,000/- through account
SCCH-24 8 C.C.4875/2020
transfer and balance amount of Rs.3,90,000/- was also
repaid prior to March -2020 by way of cash and after
repayment of entire amount of Rs.8,90,000/- he
demanded the complainant to return the cheques given as
security. The complainant assured the accused that he
will return the cheque but without returning the cheques
has filed the present complaint by misusing the said
cheques. The accused disputed the service of legal notice
to him and submitted that he is not liable to pay any
amount to the complainant.
14. In order to substantiate the defence, the
accused got examined himself as DW.1 but has not
produced any documentary evidence.
15. If the defence taken by the accused is perused,
he has admitted the disputed cheques relates to his
account so also his signature in the disputed cheques.
Hence, presumption shall have to be drawn u/Sec. 118
and 139 of NI Act regarding issuance of cheque for the
discharge of legally enforceable debt.
16. The learned counsel for the accused at this
juncture has referred the judgment reported in (2010) 11
SCC 441 between Rangappa Vs. Mohan wherein it was
observed that “mere possession of a signed cheque does
SCCH-24 9 C.C.4875/2020
not discharge the complainants burden unless supported
by cogent documentary evidence”.
17. In (2008) 4 SCC 54 between Krishna Janardhan
Bhat Vs. Dattatraya G Hegde it was observed that “the
burden of proving liability lies primarily on the
complainant and mere issuance of a cheque does not
automatically mean it was issued for discharge of debt”.
18. The learned counsel for the accused has
vehemently submitted that the demand notice issued by
the complainant is not served to the accused and that
demand notice issued by the complainant is invalid for the
reason that in the said notice the complainant demanded
twice the cheque amount which renders the notice as
defective. The learned counsel further submitted that Sec.
138 of NI Act mandates that the demand notice should be
confined to the cheque amount only. Any additional claim
such as interest or other compensation may render the
notice defective and invalidate the proceedings initiated
based on such notice. The learned counsel on the said
point has referred the judgment reported in (2000) 2 SCC
380 between Suman Sethi Vs. Ajay K Churiwal,
(2004) 8 SCC 774 between V Raja Kumari Vs. Subbarama
Naidu,
SCCH-24 10 C.C.4875/2020
(2008) 2 SCC 321 between M/s Rahul Builders Vs. M/s
Arihant Fertilizers and Chemicals Pvt :Ltd.,
In all the three cases referred above it was reiterated
that the statutory notice u/Sec. 138 should demand only
the cheque amount. If the notice includes any other
demand such as interest or additional charges it would be
considered defective.
19. So far as non service of legal notice is
concerned, it is submitted by the learned counsel for
accused that since demand notice is not served to the
accused there is no cause of action to file the complaint.
The learned counsel has relied upon the judgment
reported in (1999) 7 SCC 510 between K Bhaskaran Vs.
Sankaran Vaidhyan Balan wherein it was observed that “
unless the statutory notice u/Sec. 138 of NI Act is served
upon the accused, no cause of action arises.
20. So far as the defence taken by the accused
regarding non service of legal notice is concerned, if the
materials placed on record is perused, the complainant
has issued legal notice to the accused no.1 and 2 to the
office address and to the accused no.1 to his residential
address as per Ex.P6 through RPAD. Ex.P10 and 11 are
the postal acknowledgment which bears the signature of
SCCH-24 11 C.C.4875/2020
accused no.1. The accused no.1 being the proprietor of
accused no.2 has received the notice issued to the office
address. It is true that notice issued to the residential
address of the accused no.1 was returned unserved as per
Ex.P12 with shara “Addressee left”. If the cross
examination of DW.1 is perused, he has admitted the
correctness of the address of the accused no.1 and 2
mentioned in the legal notice as well as in the complaint
and thereby admitted the correctness of the residential
address and office address of the accused no.1 and 2.
When complainant has issued legal notice to the correct
address of the accused no.1 and 2 and when notice
issued to the official address has been duly served, under
such circumstances presumption shall have to be drawn
u/Sec. 27 of General Clauses Act regarding due service of
legal notice to the accused. Hence, it can be said without
any hesitation that legal notice is duly served to the
accused. The accused having been served with the legal
notice not given reply. It is relevant to state here that
though the accused has disputed the service of legal
notice but during his cross examination has deposed that
he has given reply to the legal notice. But as observed
supra, the accused has not given any reply to the legal
notice. If really, the accused were not been served with
legal notice, the question of issuing reply would not arise.
Hence, the very evidence given by the DW.1 stating that
SCCH-24 12 C.C.4875/2020
he has given reply would also indicates that legal notice is
duly served to the accused and accused was very well
aware of the legal notice.
21. So far as the objection raised by the accused
stating that the legal notice issued by the complainant is
defective for the reason that in the legal notice the
complainant has demanded for double the cheque amount
is concerned, if the legal notice is read in whole, at para
no.8 the complainant has demanded the accused to repay
the cheque amount and also stated that the accused have
to pay twice the amount of cheque for committing offence
u/Sec. 138 of NI Act. In the legal notice the complainant
no where has demanded interest or additional amount but
only stated that if the accused failed to comply the
demand made in the legal notice then they have to pay
double the cheque amount which is in consonance with
provision u/Sec. 138 of NI Act. Hence, it cannot be said
that the demand notice issued by the complainant is
defective one.
22. It is the definite case of the complainant that
the accused has sought for financial help of
Rs.10,00,000/- and that the complainant has lend sum of
Rs.8,90,000/- by deducting Rs.1,10,000/- towards
interest as agreed by the accused and the accused agreed
SCCH-24 13 C.C.4875/2020
to repay sum of Rs.10,00,000/- to the complainant and to
that effect executed DP note and issued 10 cheques for
Rs.1,00,000/- each of which 5 cheques were honoured
and 5 cheques for Rs.1,00,000/- each was dishonoured.
23. As observed supra, the accused while admitting
sum of Rs.8,90,000/- received by him has disputed the
receipt of sum of Rs.10,00,000/- and deduction of
Rs.1,10,000/- towards interest and submitted that he has
repaid entire sum of Rs.8,90,000/- to the complainant
and there remained nothing to be paid.
24. According to the learned counsel, as per the
averments of the complaint itself the complainant had
lend only sum of Rs.8,90,000/- out of which Rs.500,000/-
was already paid , hence the question of presenting the 5
cheques for Rs.5,00,000/- and the liability of accused to
pay cheque amount of Rs.5,00,000/- which includes
Rs.3,00,000/- pertaining to CC No. 4877/2020 would not
arise.
25. It is relevant to state here that in CC No.
4877/2020 the complainant has produced DP note and
consideration receipt marked as Ex.P15 and Ex.P16 . In
the Ex.P15 and Ex.P16 the amount borrowed by accused
is mentioned as Rs.10,00,000/-. It is vehemently
SCCH-24 14 C.C.4875/2020
submitted by the Learned counsel for accused that when
complainant admittedly had lend sum of Rs.8,90,000/-, in
the Ex.P15 and Ex.P16 the amount should have been
mentioned as Rs.8,90,000/- but not Rs.10,00,000/-. It is
further submitted by referring the evidence of PW.2 that
as per the evidence of PW.2 and as per the averments of
complaint sum of Rs.1,10,000/- was deducted out of
Rs.10,00,000/- and balance amount of Rs.8,90,000/- was
paid and if that being the case the rate of interest ought to
have been mentioned in the Ex.P15 and Ex.P16 but in the
Ex.P15 and Ex.P16 the interest column is left blank.
According to the learned counsel, the accused has not
given consent to give interest on the loan amount. The
Learned counsel further submitted that the complainant
is engaged in unlicensed money lending business, hence
such transaction are illegal and unenforceable under the
NI Act, hence submitted to dismiss the complaint on that
score also. The Learned counsel on this point has
referred judgment reported in (2013) 5 SCC 536 between
K Madhu Vs. M Vijaya Kumar & Anr.,
(2004) 12 SCC 83 between Pankajakshi Amma Vs. Mathai
Mathew,
(2014) 2 SCC 236 between John K Abraham Vs. Simon C
Abraham & Arn.,
(2011) 4 KLT 355 (SC) between Vijayan Vs. Baby & Anr.,
SCCH-24 15 C.C.4875/2020
(2018) SCC OnLine Gau 2694 between Manik Das Vs.
State of Assam
In all the aforesaid cases similar line of observation
was made to the effect that “the transaction arising from
an ill legal money lending business without any valid
license is void and unenforceable in law and the loan is
not legally recoverable and accused cannot be convicted
u/Sec.138 of NI Act”.
26. Now coming to the judgment referred by the
Learned counsel for accused on the aforesaid point is
concerned, it has no relevancy to the case in hand for the
reason that both the PW.1 and PW.2 categorically have
stated that complainant is not running money lending
business. Further the accused nowhere in his evidence
has stated that complainant is money lender and running
money lending business without license. Further the
accused has not placed any document before this court to
say that complainant is running money lending business
so as to hold money lending license. It is categorically
deposed by PW.2 that since accused is known to him,
considering the financial crisis pleaded by the accused
and demand made by him to lend sum of Rs.10,00,000/-,
in his personal capacity has lend sum of Rs.10,00,000/-
to the accused. The mere fact that in the complaint and in
SCCH-24 16 C.C.4875/2020
the evidence the complainant has stated that he has
charged interest at 13% per annum and that sum of
Rs.1,10,000/- was deducted out of Rs. 10,00,000/-
towards interest it cannot be said that complainant is a
money lender so as to say that the complainant is running
money lending business having no license.
27. So far as the interest at the rate of 13% charged
by the complainant is concerned, it is true that in the
Ex.P15 and Ex.P16 marked in CC No. 4877/2020 there is
no mention about charging interest at the rate of 13%. It
is categorically deposed by PW.2 that Ex.P15 and Ex.P16
were prepared by the accused himself and hence rate of
interest is not mentioned by the accused in the said
document. The learned counsel during the course of
argument has submitted that Ex.P15 and Ex.P16 does not
bear the signature of any witnesses and scribe. But this
court is of the opinion that there is no hard and fast rule
that the consideration receipt and DP note should bear
the signature of the witnesses. Except gift deed, will and
mortgage deed, rest of the documents are not
compulsorily attesteble documents. Hence, there is no
need to get the signature of witnesses and scribe in the
Ex.P15 and Ex.P16 and it is only the undertaking given by
the accused to repay the money on demand by the
complainant and admitted the receipt of sum of
SCCH-24 17 C.C.4875/2020
Rs.10,00,000/- from the complainant. Though the
Learned counsel during the course of argument has
submitted that the signature in the cheques and Ex.P15
and Ex.P16 are different but the D.w1 himself during his
cross examination has admitted his signature in the
disputed cheques and Ex.P15 and Ex.P16 as that of his
signature. It is deposed by accused that the signature in
the Ex.P15 and Ex.P16 is of his signature and it bears
the seal of his firm and that rest of the writings are not in
his handwriting. But the complainant has categorically
stated that the accused himself has prepared the Ex.P15
and Ex.P16. It is not in dispute that the accused is
running business under the name and style ” Sapthagiri
Asphalts Company”. Hence, it can be said that he is a
business man having knowledge of the business
transaction. It is further relevant to state here that though
the Dw.1 in his cross examination has denied the fact of
32 cases registered against him but further deposed while
admitting 32 cases registered against him that out of the
32 cases some cases are settled and due to corona in
some of the cases he could not repay the amount. By
giving evidence to the aforesaid effect the accused has
admitted the 32 cases registered against him.
28. When accused has admitted 32 cases of similar
nature registered against him it can be said that he knows
SCCH-24 18 C.C.4875/2020
the pros and cons of the signing of the blank documents.
Hence, there is no reason to believe that the accused has
signed the blank documents and complainant has created
the Ex.P15 and Ex.P16 by filling it up according to his
convenience. No man of ordinary prudence would
venture to sign any blank documents. Hence, it can be
said that having understood the contents of Ex.P15 and
Ex.P16 and agreeing to repay the amount mentioned in
the Ex.P15 and Ex.P16, the accused has signed the said
two documents.
29. So far as the line of argument canvassed by the
learned counsel for accused stating that when
complainant has lend sum of Rs.8,90,000/- he ought not
have claim sum of Rs.5,00,000/- is concerned, when the
complainant bent upon contended that the accused
demanded sum of Rs.10,00,000/- and as agreed by
accused by deducting sum of Rs.1,10,000/- towards
interest balance amount of Rs.8,90,000/- was paid, under
such circumstances the liability is on the accused to pay
Rs.10,00,000/- but not Rs.8,90,000/- . Since, sum of
Rs.1,10,000/- was deducted towards interest the
complainant has claimed only the balance principal
amount of Rs.5,00,000/-. If complainant has not
deducted sum of Rs.1,10,000/- towards interest and had
paid entire amount of Rs.10,00,000/-, under such
SCCH-24 19 C.C.4875/2020
circumstances, the complainant would have demanded
the accused to pay the principal balance amount of
Rs.5,00,000/- and interest thereon. Hence, rightly
complainant has presented the cheque for Rs.5,00,000/-
which is the amount due by the accused. Though the
accused has stated that he has repaid sum of
Rs.3,90,000/- to the accused by way of cash but he has
not produced any worth believing document before this
court. Admittedly the complainant has transferred sum of
Rs.8,90,000/- to the accused by way of account transfer .
Out of Rs.10,00,000/- the accused has repaid sum of
Rs.5,00,000/- by issuing 5 cheques for Rs.1,00,000/-
each. When entire transaction pertaining to the present
case was held through account, if really the accused had
repaid Rs.3,90,000/- to the complainant, he could have
repaid the same through account transfer only or through
cheque. It is not in dispute that the accused has issued
10 cheques to the complainant. According to him it was
issued as security for the loan transaction of
Rs.8,90,000/-. When according to the accused he has
received only sum of Rs.8,90,000/- then the question of
issuing 10 cheques would not have arisen. It is for the
loan amount of Rs.10,00,000/- only, the accused has
issued 10 cheques for Rs.1,00,000/- each. According to
the accused he has issued blank signed cheque to the
complainant. He has admitted the 5 cheques for
SCCH-24 20 C.C.4875/2020
Rs.1,00,000/- each presented by the complainant and the
honour of said 5 cheques. If really, the accused has issued
blank signed cheque then he could have raised objection
for presenting the said 5 cheques by the complainant. If
really, the accused has given unsigned blank cheque and
if really the liability on the accused was only to repay sum
of Rs.8,90,000/- and if really, accused has repaid
Rs.3,90,000/- by way of cash, then nothing prevented the
accused from giving reply to the legal notice issued by the
complainant and urge the aforesaid fact in the reply at an
earliest point of time. But having received the legal notice
the accused has kept mum and now at this stage has
taken such defence according to his convenience which
cannot be accepted.
30. The Learned counsel for accused has referred
much about the evidence given by the PW.1 without
referring even single sentence of the evidence given by the
PW.2 and submitted that PW.1 has given evidence
favorable to the case of accused and that there is material
contradiction in the evidence of PW.1 and PW.2 hence the
case of the complainant is doubtful.
31. If the case record is perused, the complainant
has filed the complaint through his SPA holder stating
that Special Power Attorney holder has knowledge about
SCCH-24 21 C.C.4875/2020
the transaction and the case. Accordingly the evidence of
the SPA holder was recorded as PW.1 and through him
some documents were marked. But the PW.1 being the
employee of complainant has given evidence by pleading
ignorance on all the facts leading to the case and bent
upon deposed for what ever question posed to him that
“his boss Vikram C Dembla knows about the same and
he is not aware”. Though the counsel for accused has
stated that the PW.1 has given evidence favorable to the
defence case and that there is contradiction in the
evidence of PW.1 and PW.2 but it is not so because the
PW.1 has also deposed about sum of Rs.8,90,000/ given
by the complainant by deducting Rs.1,10,000/- towards
interest and he has denied the allegation of money lending
business run by complainant and stated about the
liability of accused to pay the cheque amount. It is true
that for the rest of the questions, the PW.1 has feigned
ignorance and thereby he has not given answer much
favorable to the case of accused. The accused himself
during the cross examination of PW.1 has posed
suggestion that Pw.1 is not aware of the case. PW.1 has
admitted the said suggestion. Since, PW.1 has not given
proper answer to the question posed by the defence side
and went on pleading ignorance of the case, the counsel
for complainant after the conclusion of evidence of PW.1
had filed application seeking permission to lead the
SCCH-24 22 C.C.4875/2020
evidence of complainant and the said application was
allowed and accordingly the complainant has adduced his
evidence as Pw.2. The PW.2 has given evidence supporting
the case of the complainant and nothing worth has been
elicited by the accused to prove the defence taken by him.
32. The Learned counsel for accused during the
course of argument has submitted that since the PW.1
who is the SPA holder of complainant has stated that he
has no personal knowledge of the transaction between the
complainant and accused, the accused is entitled for
acquittal. The Learned counsel at this juncture has
referred the judgment reported in (2005) 2 SCC 217
between Janki Vashdeo Bhojwani & Anr., Vs. Indusind
Bank Ltd., & Ors., wherein it was observed that “A GPA
holder cannot testify on facts that are not within his direct
knowledge. He can only appear as a witness in his
personal capacity and not as a substitute for the
complainant”.
33. In (2009) 10 SCC 48 between K K Ahuja Vs. V.
K Vora & Anr., wherein it was observed that “The
Supreme Court ruled that a GPA holder can act on behalf
of the complainant, but he cannot depose on matters
which are beyond his personal knowledge”.
SCCH-24 23 C.C.4875/2020
34. In (2007) 4 SCC 558 between Smt. K Kalyani
Vs. Air France India & Anr., wherein it was observed that
“A GPA holder cannot depose on behalf of the complainant
in matters requiring personal knowledge. If the GPA
holder admits during cross examination that he has no
personal knowledge of the transaction, the accused can
argue for acquittal”.
35. In (2014) 9 SCC 1 between A C Narayanan Vs.
State of Maharashtra & Anr., wherein it was observed that
“A Power of Attorney holder can only depose in respect of
facts within his personal knowledge. However, he cannot
depose about the transaction between the complainant
and the accused unless it is within his personal
knowledge. If the complainant is not examined and the
GPA holder lacks personal knowledge, the complaint may
not sustain”.
36. In (2002 ) 1 SCC 234 between M.M.T.C. Ltd., &
Anr. Vs. Medchi Chemicals & Pharma (P) Ltd., & Anr.,
wherein it was observed that “A Power of Attorney holder
can file a complaint u/Sec. 138 of the NI Act, but the
contents of the complaint must be proved by the
complainant himself unless the attorney has personal
knowledge”.
SCCH-24 24 C.C.4875/2020
37. If the observation made in the aforesaid
judgment is applied to the case in hand, the Power of
Attorney has pleaded that he has no personal knowledge
of the transaction and that his principal has knowledge
about the transaction. As observed in the citation relied
by the counsel for accused, when Power of Attorney has
no knowledge of the transaction he is not competent to
give evidence about the transaction which is not within
his personal knowledge, under such circumstances if
complainant/ principal is not examined then accused
would be entitled for acquittal and as observed in 2002) 1
SCC 234 the Power of Attorney holder can file complaint
u/Sec. 138 of NI Act but the contents of the complaint
must be proved by the complainant himself unless the
attorney has personal knowledge.
38. In the present case, from the evidence it can be
gathered that Power of Attorney has no personal
knowledge and rightly complainant has led his evidence
as PW.2 and deposed about the contents of the complaint.
Even after the PW.1 pleaded ignorance of the transaction
held between the complainant and accused, if the
complainant remained silent without leading his evidence,
then definitely accused would have entitled for acquittal.
SCCH-24 25 C.C.4875/2020
39. The GPA holder can only testify about actions
they took within the scope of the Power Attorney, not
about the facts solely known to the principal.
40. Even after a GPA holder has given evidence the
principal can still be called to the witness stand and to
provide their own perspective on the case. If the principal
does not appear to testify, the court may drawn adverse
inference against their case, especially if crucial
information is only within their knowledge.
41. Hence, the evidence of PW.2 can very well be
relied upon. On considering the entire materials placed on
record it can be said the complainant has lend sum of
Rs.8,90,000/- out of Rs.10,00,000/- by deducting sum of
Rs.1,10,000/- towards interest and accused has agreed to
repay Rs.10,00,000/- by executing Ex.P15 and Ex.P16
marked in CC No. 4877/2020 and out of the said amount
Rs.5,00,000/- was already repaid through cheque and for
the balance amount of Rs.5,00,000/- the accused has
issued the disputed cheque of which two cheques relates
to this case and three cheques relates CC No. 4877/2020
and the said cheques were dishonoured. The accused has
failed to rebut the presumption by not proving the
repayment of balance principal amount. Hence, point No.1
answered in the affirmative.
SCCH-24 26 C.C.4875/2020
42. POINT No.2 :- The Negotiable Instruments Act
is a Special Enactment, and the provisions of the Act
prevail over the general provisions contained in Code of
Criminal Procedure. Therefore, keeping the relevant
provisions of the Act in mind the sentence is to be
passed. In the light of the reasons on the point No.1,
I proceed to pass the following;
ORDER
Acting under Sec. 255 (2) of Cr.PC, the
accused are found guilty of the o/p/u/s 138
read with section 142 of NI Act and they are
sentenced to pay fine of Rs.2,10,000/- (Rupees
Two Lakhs Ten Thousand only) out of which
Rs.2,05,000/- shall be paid as compensation
to the complainant under Sec. 357 of CRPC
and Rs.5,000/- shall be payable to the State.
In the event of default in payment within a
period of one month, the accused shall be
convicted to simple imprisonment for a period
of 3 months.
The bail bond of accused no.1 and that
of surety stands cancelled.
SCCH-24 27 C.C.4875/2020
Office to furnish the copy of this
judgment free of cost to the accused.
(Dictated to the stenographer directly on computer, corrected
and then pronounced by me in open court, on this the 3 rd day
of June 2025.)
(ROOPASHRI)
XXII Addl.SCJ & ACJM
Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED ON BEALF THE COMPLAINANT
P.W.1 : Sri Vivek Christopher Leo
PW.2 : Vikram C DemblaLIST OF DOCUMENTS MARKED ON BEHALF COMPLAINANT:
Ex.P.1 : SPA Ex.P.2 and 3 : Original Cheques given by accused
Ex.P.2(a) and 3(a) : Signatures of the accused.
Ex.P.4 and 5 : Two Bank Endorsement.
Ex.P.6 : Copy of legal notice
Ex.P.7 to 9 : 3 Postal Receipts
Ex.P.10 and 11 : Two Postal Acknowledgment
Ex.P.12 : R.P.A.D
Ex.P13 : Bank statement
Ex.P14 : GST certificate
Ex.P15 : Ledger account extract
Ex.P16 : Certificate u/Sec. 65 B of Evidence
Act.
SCCH-24 28 C.C.4875/2020
LIST OF WITNESSES EXAMINED BY THE ACCUSED
– DW.1 – – A Venkatesh Murthy
–
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
-NIL-
XXII Addl. SCJ & ACJM
Bengaluru.