[ad_1]
Bangalore District Court
K C Umesh vs K R Mallikharjunappa on 7 May, 2025
KABC030668292022
IN THE COURT OF THE XV ADDL. CHIEF JUDICIAL
MAGISTRATE, AT BANGALORE
Dated this the 07th day of May, 2025
PRESENT:Smt. Namrata Rao.K.S
B.A.L, L.L.B., M.B.L.,
XV ACJM,.
BENGALURU.
C.C.No.26831 of 2022
Complainant : Sri. K.C Umesh
S/o Late Chinnaswamaiah
Aged about 60 years,
No.1011, "Krishna Krupa",
Banashankari 6th Stage,
1st Block, Bengaluru-560098.
(By Sri. D.M. Krishna, Advocate)
V/s
Accused : Sri.Sri. Mallikharjunappa
Aged about 68 years,
S/o Late S. Rudrappa,
No.1009,
"Sri. Veerabhadreswara Nilaya",
Ne Next Sri. Puttaraju Gavayigala
Kridangana Road, 20th Main Road,
J.P Nagar, Mysore-570008
(By Sri. R. Dwaresh, Advocate )
2
C.C.No.26831/2022
1. Cognizance taken on 12.08.2022
2. Plea recorded on 04.02.2023
3. Offence alleged U/Sec.138 of N.I Act
4. Evidence Commenced 12.08.2022
on
5. Evidence closed on 12.08.2024
6. Judgment 7th Day of May, 2025
Pronounced on
7. Final Order Accused is convicted
XV ACJM, Bengaluru.
JUDGMENT
This case has arisen as a result of the
complainant filing a complaint against the accused
under Section 138 of the Negotiable Instruments
Act.
2. The relevant facts required to adjudicate
this case are as follows:
3
C.C.No.26831/2022
It is alleged by the complainant that the
accused, in his capacity as a real estate agent,
represented that he could secure the registration of
a property in the complainant’s name. This property
was described as being situated at Singapura
village, Yelahanka Hobli, Bangalore North,
encompassing Survey No.4, 5, 6 and bearing BBMP
Khatha No.4/5/6/158/4. The complainant
disbursed a total amount of Rs. 10,00,000/- to the
accused in increments as an advance payment for
the aforementioned property. Subsequently, the
accused was unable to effect the registration of the
said property. Therefore in discharge of the said
amount the accused issued the cheque bearing
No.506309 dated 15.11.2021 for a sum of
Rs.10,00,000/- drawn on Indian overseas Bank,
Jayaprakash Narayana Nagara branch, Bengaluru.
4
C.C.No.26831/2022
3. Upon presentation , the said cheque was
dishonoured for the reason “Funds Insufficient”.
Thus, a legal notice was issued to the accused
which was served upon him. The accused neither
repaid the amount nor replied to it. Hence, this
complaint.
4. On presentation of the complaint, the
cognizance for the offence was taken. Pursuant to
the issuance of the summons, the accused made
appearance before this court and the accused is on
bail throughout the trial.
5. On compliance of Section 207 of Cr.P.C, the
plea was recorded. The accused pleaded not guilty,
claimed defense.
6. The Complainant has examined himself as
PW.1 and the documents Ex.P1 to Ex.P4 are
5
C.C.No.26831/2022
marked. The statement of the accused u/S 313
statement was recorded. The accused has denied all
the incriminating evidence against him. The
accused examined himself but no document marked
on his behalf.
7. I have given a careful consideration to the
arguments advanced by the counsel for both sides. I
have carefully perused the records.
8. In view of the materials placed on
record, The following points arise for my
consideration:
1. Is there a legally recoverable
debt?
2. Whether the complainant
proves that the accused has
committed the offence
punishable under section 138
of N.I.Act?
3. What Order?
6
C.C.No.26831/2022
9. My findings for the above points are:
Point No.1 : In the Affirmative
Point No.2: In the Affirmative
Point No.3: As per the final order
for the followingREASONS
10. POINT No.1: It is the testimony of PW.1
that he and the accused are known to each other.
Though there is a dispute as to who had introduced
the accused. The acquaintance is not disputed.
11. PW.1 further testifies that the accused as
a real estate agent agreed to get a site property
bearing No.4,5,6, situated at Singapura Village,
Yelahanka hobli, Bengalutu, registered in the name
of the complainant. As an advance sale
7
C.C.No.26831/2022
consideration, the complainant in toto had paid
Rs.10 lakhs to the accused. When the accused was
not able to get the property registered in the name
of the complainant. The accused issued a cheque
marked at Ex.P1.
12. The accused does not dispute the cheque
and the signature therein. At this juncture, I rely
upon the dictum of the Hon’ble Apex Court in
Rangappa V/s Mohan reported in 2010(11) SCC
441. The Hon’ble Apex court has held that once the
cheque relates to the account of accused and he
admits the signature on the said cheque, then the
initial presumption as contemplated under Sec.139
of N.I.Act has to be raised by the court in favour of
the complainant. Of course, this is a rebuttable
presumption, and the accused may assert a defence
in which the existence of a legally binding
8
C.C.No.26831/2022
obligation or debt is disputed. Similar ratio is laid
down by the Honle Apex Court in Kalamani Tex
and another v/s P. Balasubramaniam (2021(5)
SCC 283 as pressed into service by the counsel for
the complainant.
13. As the presumption is raised, the onus
shifts on the accused to prove that the cheque was
not issued to the complainant in discharge of a
legally recoverable debt or probabalise his defence
on the hilt of preponderance of probabilities.
14. The sole defence of the accused is that
he had borrowed the amount of Rs.10 lakhs as a
loan at the rate of 5% per month, and he has repaid
the entire amount by way of cash. The relevant
portion of the examination-in-chief of the
accused/DW1 is as under:
9
C.C.No.26831/2022
“ಅಕ್ಟೋಬರ್ 2019 ರಲ್ಲಿ ನನಗೆ ಹಣದ ಅವಶ್ಯಕತೆ
ಬಂದು ದೂರುದಾರರ ಬಳಿ ರೂ.10 ಲಕ್ಷ ಸಾಲವನ್ನು
ಕೇಳಿ, ದೂರುದಾರರು ಸದರಿ 10 ಲಕ್ಷ ಸಾಲವನ್ನು
ಮೈಸೂರಿನಲ್ಲಿರುವ ನನ್ನ ಮನೆಗೆ ಬಂದು ನೀಡಿರುತ್ತಾರೆ.
ಸದರಿ ಸಾಲವನ್ನು ಶೇಕಡ 5 ರಂತೆ ಬಡ್ಡಿಗೆ
ನೀಡಿರುತ್ತಾರೆ. ಸಾಲವನ್ನು ಪಡೆಯುವ ಸಮಯದಲ್ಲಿ
ದೂರುದಾರರಿಗೆ ನಾನು ಎರಡು ಸಹಿ ವಾಡಿದ ಖಾಲಿ
ಚೆಕ್ಕುಗಳನ್ನು ನೀಡಿದ್ದೆ. ಮಾರ್ಚ 2020 ವರೆಗೆ ನಾನು
ಶೇಕಡ 5 ರಂತೆ ಬಡ್ಡಿಯನ್ನು ಪಾವತಿಸಿರುತ್ತೇನೆ. ನಂತರ
ದಿನಾಂಕ 20.03.2020 ರಂದು ದೂರುದಾರರಿಗೆ
ನಮ್ಮ ಮನೆಯಲ್ಲಿಯೇ ಸಂಪೂರ್ಣ ಸಾಲವನ್ನು ಬಡ್ಡಿ
ಸಮೇತ ತೀರಿಸಿರುತ್ತೇನೆ .”
15. I have gone through the cross
examination of PW.1 once again carefully. During
the cross examination of PW.1, the accused
presented inquiries pertaining to the specific dates
on which the monetary sum was provided to the
accused, the number of installments comprising the
ten lakh rupees paid to the accused, the existence of
a sale agreement between the complainant and the
10
C.C.No.26831/2022
vendor, and the complainant’s ability to furnish
financial statements reflecting their pecuniary
capacity. Notwithstanding these inquiries, the
financial capacity of the complainant was not
contested by the accused. In fact, the defence is that
he had borrowed an amount of Rs.10 lakhs from
the complainant and at the rate of 5% per month.
He has repaid it. Therefore the question of looking
into the financial capacity of the complainant,
whether the complainant has produced any
document to show that he had an amount of Rs.10
lakhs with him or not, or regarding the passing of
the amount to the accused is seems not necessary.
16. Now as the onus is on the accused to
show that he has repaid the amount , let me see
what cogent evidence is produced before this court
so as to probabilise the repayment of the alleged
11
C.C.No.26831/2022
loan amount. I have gone through the case papers
once again carefully. Except the self serving
testimony of the accused, no piece of paper is
produced which would show to this court regarding
the repayment.
17. Furthermore, the accused is not an
individual lacking in experience or knowledge. As
stated in his own testimony, the accused is a former
Member of the Legislative Council (MLC). In light
of his status, upon the alleged repayment of the
loan amount, the accused was incumbent upon to
exercise due diligence to secure the return of the
cheques previously issued to the complainant. Or
take such precaution that the he will not come
under the clutches of the criminal liability.
18. No evidence has been presented to the
court to suggest that after allegedly repaying the
12
C.C.No.26831/2022
loan, the accused either requested a stop payment
from the bank, asked the complainant to return the
cheques, or took legal action when they weren’t
returned. There is no evidence on record which
would at least indicate towards the due care taken
by the accused.
19. The accused says that he has repaid the
entire amount in the month of March 2020. This
complaint is presented on 01.04.2022. This creates
a period of almost two years gap between the
alleged repayment and the filing of the complaint.
A common prudent man would not simply wait for
two years without addressing the issue of
outstanding cheques after repayment. He would as
a basic step demand for the return of the cheque. If
the cheques weren’t returned he would Issue a stop
payment order as a logical protective measure Or
13
C.C.No.26831/2022
take legal action, if the complainant refused to
return the cheques or attempted to misuse them. A
prudent person would likely pursue legal remedies.
20. Further a suggestion is given to the PW.1
during the course of cross-examination that an
Innova Car with registration No.KA.09.MV8973 is
in possession of the complainant and the possession
was forcibly taken by the complainant from the
accused. The relevant portion of the cross
examination is as under:
“It is false to suggest that I am in
possession of the Innova Car with registration
No.KA.09.MV8973 forcing the accused”.
21. At first the accused has not produced any
document to show that this Innova car either
belongs to him or to any of his kith and kins so that
the existence of such a car and its owner is
probablized. Secondly, the accused has not taken
any legal action for taking this Innova car forcibly
14
C.C.No.26831/2022
from him. If at all, he had repaid the amount to the
complainant and the complainant had not either
returned the cheque or returned the Innova car, It
is unclear why the accused did not pursue legal
action against the complainant. The silence of the
accused speaks in volume.
22. The accused entered the witness box and
gave his positive evidence by way of examination-
in-chief. But he has not submitted himself for cross
examination. During the cross examination in chief,
he states that he had borrowed an amount of Rs.10
lakhs from the complainant and had repaid it in the
year 2020 with an interest of 5%. Inspite of
payment of the same, the complainant had not
returned the cheque. Subsequently, despite giving
sufficient opportunities not only for his appearance
but also for tendering himself for cross
examination, he did not submit himself for the cross
15
C.C.No.26831/2022
examination. The accused has failed to provide an
an opportunity to the complainant to discredit his
statement in evidence.
23. A witness who does not appear for cross-
examination is considered to have significantly
diminished his credibility, as the opposing party is
deprived of the opportunity to test his testimony
and potentially expose inconsistencies or
weaknesses, leading the court to view his evidence
with considerable skepticism and potentially
disregard it entirely. The Honble Apex court in
Vidhyadhar vs Manikrao & Anr. Reported in
(1999)3 SCC 573 has held at para 16 as under:
“16. Where a party to the suit does not
appear into the witness box and states his own
case on oath and does not offer himself to be
cross examined by the other side, a
presumption would arise that the case set up
by him is not correct as has been held in a
series of decisions passed by various High
Courts and the Privy Council beginning from
16
C.C.No.26831/2022the decision in Sardar Gurbakhsh Singh v.
Gurdial Singh and Anr. . This was followed by
the Lahore High Court in Kirpa Singh v.
Ajaipal Singh and Ors. AIR (1930) Lahore 1
and the Bombay High Court in Martand
Pandharinath Chaudhari v. Radhabai
Krishnarao Deshmukh AIR (1931) Bombay 97.
The Madhya Pradesh High Court in Gulla
Kharagjit Carpenter v. Narsingh Nandkishore
Rawat also followed the Privy Council decision
in Sardar Gurbakhsh Singh‘s case (supra). The
Allahabad High Court in Srjun Singh v.
Virender Nath and Anr. held that if a party
abstains from entering the witness box, it
would give rise to an inference adverse
against him. Similarly, a Division Bench of the
Punjab & Haryana High Court in Bhagwan
Dass v. Bhishan Chand and Ors. , drew a
presumption under Section 114 of the
Evidence Act against a party who did not enter
into the witness box.”
24. The veracity of the evidence adduced on
behalf of any party can be controverted through
cross-examination by the opposite party and
opportunity for the same must be given to the
adverse party. The inconclusiveness of the
evidence of the Dw1 in the present case is not on
17
C.C.No.26831/2022
the justifiable grounds as mentioned in Section 33
of the Indian Evidence Act. The voluntary act of
the DW1 not subjecting himself for cross-
examination stands on different footing and
inclines this court to draw an adverse inference.
Such an act cannot be expected from a person in
the natural course of events.
25. The Complainant was deprived of his
valuable right to cross-examine the Accused, to test
his statements on oath entirely for the act of the
Complainant. The conduct of the DW1 would make
this court to arrive at the inference that he
deliberately avoided to answer further questions
which would render the case set up by him
improbable.
26. If all the above evidence is considered
as a whole in the light of the above reported
18
C.C.No.26831/2022
judgment, on the hilt of preponderance of
probablities, I find from the specs of a common
prudent man that the defence theory that the
accused has repaid the loan seems to be
improbable, unacceptable and stands without any
base . The legally recoverable debt stands
probabilised. Hence, I answer the point No.1 in the
AFFIRMATIVE.
27. Point No.2: The Cheque is dated
15.11.2021. Ex.P2 shows that Ex.P1 was
dishonoured on 27.12.2021 for Funds Insufficient.
A legal notice was issued within the statutory
period on 07.01.2022. The complaint is presented
on 01.04.2022. The complaint is in time and the
complainant has complied with all the
requirements of the section 138 of the Negotiable
Instruments Act.
19
C.C.No.26831/2022
28. On the basis of the entire materials on
record, I am of the opinion that the accused has
committed an offence under section 138 of the
Negotiable Instruments Act. Accordingly I answer
the POINT NO.2 In The Affirmative.
29. Point No.3: For the foregoing reasons
and in view of the above findings, I pass the
following:
ORDER
The accused is found guilty.
In Exercise of the Powers vested
under section 255(2) of Cr.P.C., the
accused is convicted for the offence
punishable under section 138 of
N.I.Act.
The accused is sentenced to pay
fine amount of Rs.10,10,000/- (Ten
Lakhs Ten Thousand Only) In default
of payment of fine, the accused shall
undergo SI for three months.
20
C.C.No.26831/2022
In Exercise of the powers vested
under Sec.357(1)(b) of Cr.P.C., out of
the fine amount, the complainant is
entitled for Rs.10,05,000/- (Ten
Lakhs Five Thousand Only ) towards
compensation.
In Exercise of the powers vested
under Sec.357(1) (a) of Cr.P.C., the
remaining fine amount of Rs.5,000/-
(Rupees Five Thousand only) is to be
remitted to the state.
The personal bond executed by
the accused shall stand cancelled and
the cash security deposited by the
accused shall be refunded to the
accused after the appeal period is
over.
A copy of the above judgment
shall be supplied to the accused
free of cost.
(Dictated to the Stenographer, transcribed and typed by her,
corrected and signed and then pronounced by me in the open court on
this the 7th day of May, 2025).
KS Digitally signed by K
S NAMRATHA RAO
NAMRATHA Date: 2025.05.07
RAO 17:41:13 +0530
(Smt. NAMRATA RAO K.S)
XV ACMM, Bengaluru.
21
C.C.No.26831/2022
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE
COMPLAINANT:
PW.1 : Sri. K.C Umesh
LIST OF DOCUMENTS MARKED FOR THE
COMPLAINANT:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank Endorsement
Ex.P3 : Notice
Ex.P4 : Postal receipt
LIST OF WITNESSES EXAMINED FOR THE
ACCUSED:-
DW.1 : Sri. Mallikarjunappa
LIST OF DOCUMENTS MARKED FOR THE
ACCUSED:-
Nil
(Smt. NAMRATA RAO K.S)
XV ACJM, Bengaluru.
22
C.C.No.26831/2022
07.05.2025
(Judgment pronounced in the open
court)
ORDER
The accused is found guilty.
In Exercise of the Powers
vested under section 255(2) of
Cr.P.C., the accused is convicted for
the offence punishable under
section 138 of N.I.Act.
The accused is sentenced to
pay fine amount of Rs.10,10,000/-
(Ten Lakhs Ten Thousand Only) In
default of payment of fine, the
accused shall undergo SI for three
months.
23
C.C.No.26831/2022
In Exercise of the powers vested
under Sec.357(1)(b) of Cr.P.C., out of
the fine amount, the complainant is
entitled for Rs.10,05,000/- (Ten
Lakhs Five Thousand Only ) towards
compensation.
In Exercise of the powers vested
under Sec.357(1) (a) of Cr.P.C., the
remaining fine amount of Rs.5,000/-
(Rupees Five Thousand only) is to be
remitted to the state.
The personal bond executed by
the accused shall stand cancelled and
the cash security deposited by the
accused shall be refunded to the
accused after the appeal period is
over.
A copy of the above judgment
shall be supplied to the accused
free of cost.
(Vide separate judgment)
XV ACJM, Bengaluru.
[ad_2]
Source link