Bangalore District Court
Mallesh .R vs Mamatha .J on 27 February, 2025
CC.No.20013/2022
KABC030507502022
Presented on : 23-06-2022
Registered on : 23-06-2022
Decided on : 27-02-2025
Duration : 2 years, 8 months, 4 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Dated: This the 27th day of February 2025
Present: Smt.Tejaswini K.M., B.A.L.LL.M,
XVI Addl.C.J.M., Bengaluru City.
CC. No.20013/2022
Sri.Mallesh.R
S/o Rajanna
Aged about 36 years
R/at No.510,
4th Main Road, Srinagar,
Bengaluru - 560050.
....Complainant
(By Sri Basavaraju.P Advocate)
Versus
2 C.C.20013/2022
Smt.Mamatha.J
W/o Ranjith
Aged about 34 years
R/at Flat No.43, 5th Floor,
J.P. Residence, Ashok Nagar,
Vidyapeeta,
Bengaluru - 560050.
Also working at
Second Division Assistant
High Court of Karnataka
Bengaluru - 560001.
.... Accused
(By Sri G.K., Advocate)
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Date of commencement
of evidence : 09.06.2022
Date of closing evidence : 30.01.2024
Opinion of the Judge : Accused found guilty
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Opinion of the Judge : Accused found guilty
3 C.C.20013/2022
JUDGMENT
This case is registered against the accused for the
offence punishable U/s 138 of Negotiable Instruments
Act.
2. Factual matrix of the complainant’s case is as
under:
It is stated that one Keshava Murthy introduced the
accused to the complainant in the month of May 2021 and
the said Keshavamurthy stated that accused is known to
him from past two and half years. The accused posed
herself to the complainant that she is working as
Stenographer under the Hon’ble Chief Justice, High Court
of Karnataka and the accused made the complainant to
believe that she is an employee at Hon’ble High Court of
Karnataka. Thereafter, the accused and the complainant
4 C.C.20013/2022were talking in good terms and exchanging whats app
messages. The accused has informed the complainant
that Government has initiated acquisition proceedings
pertaining to the vacant sites which does not have title
documents within the vicinity of Bengaluru City, said
acquisition proceedings will be conducted through the
agency of Hon’ble High Court of Karnataka in secret
manner without to the knowledge of general public. In
the aid proceedings VIP persons like Hon’ble Chief Justice
& other Hon’ble Justices are involved. The said
proceedings will be conducted in accordance with law.
3. Thereby the accused introduced the complainant
to pay a sum of Rs.2 lakhs fees per site and within 40
days there will be income of Rs.1,45,000/- and totally they
will repay Rs.3,45,000/- and the said process will be called
as SLOT. Further the accused has stated that there are
7000 files in the above manner, the said acquisition
5 C.C.20013/2022
proceedings will be taken place from June 2021 to
December 2021, it will be conducted once in 5 years.
Apart from that 94 files will be allotted to the employees
who are working in the Hon’ble High Court of Karnataka,
their friends and relatives are also entitled to participate
in it. The accused also posed and made the complainant
and his brother to believe that an employee by name
Devaraja who is working with the accused in the same
department had invested Rs.90,00,000/- in the said
proceedings and one Yadhu Kumar also invested the
amount in the said proceedings.
4. Accordingly, the accused introduced the
complainant and his brother to invest in the said
proceedings. The accused has also agreed that income
derived from the said proceedings can be equally divided
between the accused, Keshava, complainant and his
brother. Further the accused stated that there are sites
6 C.C.20013/2022
for auction in the High Court of Karnataka. The accused
has agreed to make arrangements for purchasing sites to
the complainant for less than 50% of the market value
and the proceedings will be conducted secretly. The
complainant his brother shall not make any enquiry
before the Hon’ble High Court of Karnataka and not to
inform any public. The complainant and his brother
believed the accused. From June 2021 onwards the
accused induced the complainant to transfer the amount
to an extent of Rs.51,19,000/- and in this regard what’s
app messages and phone calls are there. The complainant
has transferred the part of the amount to the account of
the accused through phone pay and the part of the
amount was paid by way of cash. Out of Rs.51,19,000/- the
accused has repaid Rs.4,19,000/- through RTGS and
phone pay. The complainant and his brother has paid
Rs.2,00,000/- on 15.07.2021, Rs.2,00,000/- on 23.08.2021,
7 C.C.20013/2022
Rs.2,00,000/- on 30.08.2021 and Rs.2,00,000/- on
01.09.2021 through phone pay.
5. The accused has shown her identity card issued by
the Hon’ble High court of Karnataka, ledger book and
blank signed cheque has been sent through whats app to
the complainant informing that the account to which
complainant is required to transfer the amount. Since the
accused is an employee of Hon’ble High Court of
Karnataka, by seeing the aforesaid documents, the
complainant has trusted the accused and transferred the
aforesaid amount. Despite of lapse of 4 months, accused
has not informed the complainant towards auction sale of
the sites and not given any information and also not
repaid the amount. Therefore, the complainant got
suspicion and made enquiry in the Hon’ble High Court
Karnataka and got to know that, no such land acquisition
proceedings or auction sales of sites will be conducted by
8 C.C.20013/2022
the Hon’ble High Court of Karnataka. Therefore, the
complainant and his brother realized with fraudulent and
dishonest intention, the accused mislead them and taken
money from them.
6. Thereafter, on 21.10.2021 the complainant and his
brother had been to the house of the accused and
enquired about the fraud played by her and stated that
she had availed hand loan of Rs.14 lakhs from one
Lingaraju who is working in the same department, out of
the amount received by the complainant and his brother,
she had utilized it to clear the said hand loan of Rs.8 lakhs
and the remaining amount is given to one Keshava
Murthy. The complainant and his brother are requested to
return the amount, but the accused has sought some
more time to make arrangement of the said amount.
7. On 23.10.2021 the complainant, his brother and
their wives have visited the house of the accused and
9 C.C.20013/2022
prays to return the amount, but the accused sought some
more time. Since the accused has not repaid the amount,
the complainant had filed complaint dated 30.10.2021
before the Hon’ble Chief Justice, High Court of Karnataka,
Hon’ble Registrar judicial, Registrar of Vigilance and
Hon’ble Registrar of Administration of the Hon’ble High
Court of Karnataka on 10.11.2021. The accused had called
the complainant and his brother and confessed the
mistake and agreed to meet on 12.11.2021 to return the
amount. That date the accused, her husband, her friends
met the complainant and his brother at Gandhi Bazaar,
Bengaluru and agreed to pay Rs.47 lakhs and also agreed
to execute the agreement and issue the cheques and
taken time. On 16.11.2021 the complainant and his
brother again requested the accused to execute the
agreement and to give cheques, but the accused has
stated that she had given the money to one Chandrappa
10 C.C.20013/2022
and Keshava and she had no money with her and also she
stated ‘do whatever you want’ & she will not pay the
amount’. Thus, the complainant has given complaint on
25.11.2021 before the Hanumanthanagar Police Station
against the accused and Keshava Murthy and the said
police have registered FIR in Cr.No.0256/2021 for the
offence punishable U/Sec.406, 420 R/w.Sec.34 of IPC. The
investigation is still pending.
8. After registering the FIR the accused called the
complainant and told that she is ready and willing to pay
the entire amount and not to participate in the police
station case. She made statement before the police
regarding the amicable settlement. On 05.12.2021, the
accused has issued 2 cheques bearing No.000052 dated
06.12.2021 for Rs.4,00,000/-, drawn on Kotak Mahindra
Bank, High Court Buildings, High Court of Karnataka,
Bengaluru and cheque bearing No.185954 dated
11 C.C.20013/2022
06.12.2021 for Rs.4,00,000/- drawn on Federal Bank,
Basavanagudi Branch, Bengaluru in favour of the
complainant. Other 7 cheques have been issued in favour
of the complainant’s brother. The accused instructed the
complainant to present the subject cheques on
09.12.2021 and she will make arrangements for the
money. Accordingly, cheques were presented on
10.12.2021, but they were returned with a shara ‘Payment
Stopped by Drawer’, same was intimated to the accused,
but she arrogantly stated that she is highly influential
person from the judiciary and she knows how to escape
from the liability towards the cheque.
9. Thereafter, the complainant has issued legal
notice dated 23.12.2021 against the accused calling upon
her to make payment of cheques amount within 15 days
and that notice was returned with a shara ‘insufficient
address’. The notice was also given to the work place of
12 C.C.20013/2022
the accused and same has been duly served. The accused
has given reply notice, but not repaid the amount. Hence
the complainant has constrained to file the present
complaint.
10. After receiving the complaint, this court has
meticulously gone through the documents and affidavit
filed along with it and then took cognizance of the offence
punishable U/sec.138 of Negotiable Instruments Act and
ordered for registration of the compliant as P.C.R.
11. Sworn statement of the complainant was
recorded and marked 18 documents as Ex.P-1 to P-18. As
there were sufficient materials to constitute the offence,
this court has proceeded to pass an order for issuing
process against the accused.
12. In pursuance of summons, accused has
appeared through her counsel and applied for bail. She
13 C.C.20013/2022
was enlarged on bail. Then the substance of accusation
was read over to the accused in the language known to
her, for which she pleaded not guilty.
13. As per the direction of Hon’ble supreme court in
“Indian Bank Association V/s Union of India and others
reported in (2014)(5) SCC 590, this court treated the
sworn statement of the complainant as complainant
evidence and posted matter for cross-examination of
PW.1. The counsel for the accused has fully cross-
examined PW.1. Thereafter the complainant closed his
side of evidence.
14. The statement of accused as contemplated
under the provisions of Section 313 of Cr.P.C has been
recorded vide order dated 28.03.2023 and the
incriminating evidence as such forthcoming against the
accused in the evidence of PW 1 and the documents has
been read over and explained to the accused in the
14 C.C.20013/2022
language known to her. She denied all incriminating
evidence. The accused has not led any evidence.
15. I have heard the arguments of the learned
counsel for complainant. The counsel for accused filed
written arguments. The Learned counsel for accused has
not addressed the arguments on merits. Learned counsel
for both side filed memo with citations. I have gone
through the citations and perused the oral and the
documentary evidence placed on record.
16. Points that arise for my consideration are as
under:
1. Whether the complainant proves that the
accused towards discharge of her liabilityissued 2 cheques bearing No.000052 dated
06.12.2021 for Rs.4,00,000/- and cheque
bearing No.185954 dated 06.12.2021 for
Rs.4,00,000/-, drawn on Kotak Mahindra
Bank, High Court Building, High Court of
Karnataka, Bengaluru and Federal Bank,
15 C.C.20013/2022Basavanagudi Branch, Bengaluru in favour
of complainant, on presentation of the
same for encashment, they were
dishonored for “Payment Stopped by
Drawer” in the account maintained by the
accused, then in-spite of issuing demand
notice to the Accused and in complying with
statutory requirement under Negotiable
Instrument Act, Accused did not repay the
cheques amount, thereby she has
committed an offence punishable U/s 138 of
2. What Order?
17. My Answer to above points are as under:-
Point No.I :- In the Affirmative,
Point No.II :- As per the final order for
the following....
REASONS
18. POINT NO.I:- In nutshell the case of the
complainant is that the accused has stated that she is
working as Stenographer in the High Court of Karnataka
16 C.C.20013/2022
and by gaining confidence of the complainant over
phone, she had told to the complainant that some
acquisition proceedings were conducted pertaining to the
properties which does not have title documents in the
Bengaluru, through agency of Hon’ble High Court of
Karnataka, secretly and induced the complainant and hiss
brother to invest Rs.2 lakhs per site and assured that the
said amount will be repaid within 40 days with additional
amount i.e. to an extent of Rs.3,45,000/- and this process
is called as ‘SLOT’ and also stated that she will make
arrangements to buy sites which will be allotted to
employees of High court , at less than 50% price to the
complainant and his brother. Like this on different dates
the accused has received total amount of Rs.51,19,000/-
from the complainant and his brother, ie more specifically
complainant has paid Rs 8 lakhs and out of that entire
amount, she has repaid Rs.4,19,000/-. But, later it was
17 C.C.20013/2022
found that no such auction proceedings were held by the
Hon’ble High Court of Karnataka and accused has cheated
them. On repeated request of the complainant and his
brother to repay the amount, the accused has issued
cheques in question, but they got dishonoured for the
reason ‘Payment Stopped by Drawer’. Despite of giving
notice, the accused has not repaid the amount. Hence the
present complaint.
19. To substantiate his case the complainant
stepped into witness box and got examined as PW.1. He
has got marked Ex.P1 to P18. He has produced the 2
cheques issued by accused and the same are marked as
Ex.P1 & P2, the signatures of the accused are marked as
Ex.P1(a) & 2(a), copies of bank memos are marked as
Ex.P3 & P4, copy of demand notice dated: 23.12.2021 is
marked as Ex.P5, copies of postal receipts are marked as
Ex.P6 & P7, copy of returned notice is marked as Ex.P8,
18 C.C.20013/2022
Postal envelope is marked as Ex.P9, copy of postal receipt
is marked as Ex.P10, copy of reply notice is marked as
Ex.P11, copy of postal envelope is marked as Ex.P12, copy
of postal receipt is marked as Ex.P13, complaint is marked
as Ex.P21, CD is marked as Ex.P15, Certificate U/Sec.65-B
of Indian Evidence Act is marked as Ex.P16, copies of
audio and video recordings are marked as Ex.P17, copies
of whats app messages are marked as Ex.P18.
20. Advocate for complainant has relied on the
citation reported in (1999)7 SCC 510 in between
K.Bhaskaran V/s Sankaran Vaidhyan Balan and
another, (1998) 3 SCC 249 in between Modi Cements
Ltd. V/s Kuchil Kumar Nandi, (2012) 13 SCC 375 in
between Laxmi Dyechem V/s State of Gujarat and
others, (2020) 12 SCC 724 in between APS Forex Services
Private Limited V/s Shakti International Fashion
Linkers and others, (2001) 8 SCC 458 in between
19 C.C.20013/2022
K.N.Beena V/s Muniyappan and another, (2201) 8 SCC
460 in between S.Pitchai Ganapathy and others V/s
Commissioner, Hindu Religious and Charitable
Endowments Department and others, ILR 2001 KAR
4127 in between S.R.Muralidar V/s Ashok G.Y, (2010) 11
SCC 441 in between Rangappa V/s Sri Mohan, (2018) 8
SCC 165 in between Kishan Rao V/s Shankargouda, ILR
2018 KAR 4775 in between Sri V.V.Chari V/s Meenakshi
developers, AIR 2019 SC 1876 in between Rohitbhai
Jivanlal Patel V/s State of Gujarat and another, AIR
2019 SC 2446 in between Bir Singh V/s Mukesh Kumar,
(2021) 5 SCC 283 in between Kalamani Tex and another
V/s P.Balasubramanian, Crl.A.No.362/2022 in between
Tedhi Singh V/s Narayan Dass Mahant, Special Leave
Petition (Crl.) No.12802/2022 in between Rajesh Jain V/s
Ajay Singh and Crl.R.P.No.369 of 2015 in between
20 C.C.20013/2022
Smt.Kanakarathan V/s Smt.Preema, I have gone
through these case laws.
21. Defense of the accused is as follows:
1) The accused contends that the complainant and
his brother intended to give Rs.16 lakhs as loan to one
Keshava Murthy. The said amount of Rs.16 lakhs was
given to Kevasha Murthy through the account of the
accused. But she has not received any amount from the
complainant as alleged.
2) The alleged amount of the cheques is not legally
enforceable debt or liability, as the consideration or object
is illegal as the complainant stated that he has invested
money for securing ‘SLOT’ which will yield almost double
the money invested and acquiring plots at 50% of the
market value. It is as good as wagering .
21 C.C.20013/2022
3) The complainant has no financial capacity to give
such amount and there is no proof for the payment of
money to the accused.
4) The complainant has pressurized the accused
under the threat of police and taken cheques from her ,
but they were not issued in discharge of any debt or
liability towards the complainant.
5) The complainant has not examined Keshava
Murthy or his wife, or his brother who claimed to be have
paid money to the accused.
6) The alleged amount in the complaint is not
shown in the income tax returns of the complainant.
Therefore, on these grounds , accused prays to acquit her
from this case.
22. Advocate for accused has relied on the citations
reported in (2007) BC 530 in between Virender Singh V/s
22 C.C.20013/2022
Laxmi Narain and another, Crl.A.No.1513/2007 in
between Subramanya Seetaram Naik., V/s Sri.Marshal
Bastauv Rebelo, CRL.P.No.1387/2011 in between
R.Parimala Bai V/s Bhaskar Narasimhaiah,
Crl.A.No.657/2019 in between Sri.P.B.Mallappa V/s
Smt.Shobha, Crl.P.No.101776/2021 in between Nagaraj
Alias Nagappa Karennavar V/s Sri.Basalingayya
Hiremath, Application U/Sec.482 No.28762/2022 in
between Chandra Prakash, Rama Shankar Prasad V/s
G.A., Crl.A.No.3015/2023 in between G.Raju V/s
P.Narayanan, CC.No.6190/2011 in between Daya
Shankar V/s Piyush Saini, CC.No.1248/2021 in between
Sri.Renuka Prasad H.G V/s Mr.Shankar Proprietor,
Crl.P.No.2182/2022 in between Smt.Mamatha.J V/s State
of Karnataka, Crl.A.No.636/2019 in between
Basalingappa V/s Mudibasappa, Petition for Special
Leave to Appeal (Criminal) No.5583/2022 in between
23 C.C.20013/2022
M/s Rajco Steel Enterprises V/s Kavita Saraff and
another, Crl.A.No.877/2011 in between Sri.V.Nagendra
V/s Dr.Sudha Rudrappa, MBBS, Crl.A.No.100201 of 2015
in between R.Manjunath V/s V.Chandrashekar,
Crl.A.No.100248/2015 in between Basappa V/s
A.Annapurna, Crl.A.No.100172/2015 in between
Bheemreddy V/s Even. G.Gudgunti and State of
Karnataka, Crl.A.No.236/2019 (A) in between Sri.Ashok
B Dani V/s Sri.P.R.Bhot, Crl.R.P.No.1456/2022 in
between Khaleel Khan.P V/s Shankarappa,
Crl.A.No.950/2016 (A) in between Sri.H.Lakshman Dev
V/s Sri.Jayaram, Crl.A.No.173/2016 in between
Sri.V.Puttaraju V/s Sri.Prasannakumar.C,
Crl.A.No.1147/2016 in between Abhay Kumar Jain V/s
Pankaj R Makkanna, Crl.A.No.743/2022 in between
Patel Ashishkumar Jayantilal V/s Patel Prakashbhai
Joitaram, Crl.A.No.1038/2010 in between
24 C.C.20013/2022
Kum.V.Mamatha V/s Mr.H.D.Moodalagiri Gowda, Crl.A.
(MD) No.509/2023 in between P.Murugesan V/s
K.A.Vairamuthu, Crl.A.No.1497/2022 in between
Dashrathbhai Trikambhai Patel V/s Hitesh
Mahendrabhai Patel & another, Crl.A.No.3229/2020 in
between Akash V/s The State of Madhya Pradesh and
2023 Latest Caselaw 41 SC in between Rajaram
Sriramalu Naidu (D) through LRS. V/s Maruthachalam
(D) through LRS, I have gone through these case laws.
23. Negotiable Instruments Act provides for some
presumption in favour of the complainant i.e., Section 118
reads as here: – “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”.
25 C.C.20013/2022
24. Further Sec 139 of the Negotiable Instruments
Act provides for presumption in favour of a holder. It
reads as here: – “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 other
liability.”
25. Combined reading of above said sections raises
a presumption in favour of the holder of the cheque that
he has received the same for discharge in whole or in part
of any debt or other liability. However, it is settled
principle of law that the presumption available u/s 139 NI
Act can be rebutted by the accused by raising a probable
defense.
26. The complainant has reiterated the contents of
complaint in his evidence affidavit. During cross-
examination by the counsel for the accused the
26 C.C.20013/2022
complainant has deposed that through Keshava Murthy
he got to know the accused. Keshava Murthy has bag
shop. He knows Keshava Murthy from 4 years. The
accused has told that she is working in Hon’ble High Court
of Karnataka. He met her in 2021 May for the first time.
That time Keshava Murthy and his brother Mahendra
were there. He studied till 2nd PUC and works as sales
executive in Wild craft Bag Company. The accused has
told him that the Hon’ble High Court is acquiring the
vacant sites through agency, it will happen once in 5
years. There are 7 thousand files, out of them, 94 files will
be allotted to the employees of court. She assured that
per SLOT, he has to invest Rs.2 lakhs, he would got said
amount with additional incentives of Rs.1,45,000/-. His
brother and himself have given Rs.59,19,000/- to the
accused. He has given money to the accused by way of
cash to purchase a site, but he has not entered into any
27 C.C.20013/2022
agreement with the accused and also not taken receipt
from her.
27. PW1 further deposed that he has given Rs.2
lakhs on 15.07.2021, Rs.2 lakhs on 28.03.2021, Rs.2 lakhs
on 30.08.2021 and Rs.2 lakhs 01.09.2021. The accused
sought him to give money by way of cash. He earns
Rs.35,000/- per month along with incentives. He has not
shown the amount given to the accused in his income tax
returns. He has not seen where is the office of the
accused in the Hon’ble High Court, but his brother has
seen that. The accused has sent acknowledgment through
whats app regarding receiving Rs.8 lakhs from him. He
has given Rs.2 lakhs twice in his home to the accused and
Rs.4 lakhs was given where the accused works. He has not
enquired in the Hon’ble High Court regarding said SLOT.
Except the accused, he has not given money to any other
person for SLOT. Earlier himself and his brother were
28 C.C.20013/2022
residing in same house, but now they are residing
separately. He earns Rs.4 lakhs per year. Remaining
suggestion of the counsel for accused has been denied b
him.
28. PW1 further admits copy of the complaint given
by his brother Mahendra to the Hon’ble High Court of
Karnataka as per Ex.D1. He admits that the complaint
given to the police station by the accused as per Ex.D2. He
admits statements given by him and his brother on
27.10.2021 before the police as per Ex.D3 & D4. He
admits that himself and his brother have given the
complaint in Hanumanthanagar police station on
25.11.2021 as per Ex.D5 and FIR has been registered as
per Ex.D6.
29. He pleaded ignorance to the suggestion of the
counsel for the accused that he did not had cheques as on
the date of giving complaint on 25.11.2021. PW1 denied
29 C.C.20013/2022
suggestion of the counsel for the accused that police
called the accused to the police station and threatened, if
the amount is not given, she will be arrested. When the
accused told that she had no money, police took the
accused to her house and taken cheque books and came
back to the police station and also taken 9 cheques with
signature from the accused. He denies suggestion of the
counsel for the accused that if she does not maintain the
sufficient balance, if the cheques would dishonoured, she
will be arrested.
30. He has deposed that he does not remember
whether he had the cheques of he accused with him as on
the date of giving complaint on 25.11.2021. He has
deposed that the accused herself given Ex.P1 & P2
cheques at his home. He admits that after giving
complaint by his brother Hanumanthanagar, police have
called the accused to the police station. He denied that in
30 C.C.20013/2022
the said station, the accused was threatened to arrest if
the cheques were not given. He denied that police have
taken accused forcibly to her house and with threaten
taken 9 cheques from her. He denied that Keshava
Murthy sought loan from him and his brother. Since the
accused was working in the Hon’ble High Court of
Karnataka by thinking that if the amount is given directly
to him, it will not be repaid, as such they both have
transferred Rs.47 lakhs to the account of the accused. He
pleaded ignorance to the suggestion that accused given
back Rs.47 lakhs to Keshava Murthy. He denied that if any
transaction had happened between himself and accused
i.e. illegal. He himself has recorded the conversation
between himself, his brother and Keshava Murthy and
accused in her home.
31 C.C.20013/2022
31. PW1 further deposed that himself and his
brother and Keshava Murthy went to the house of the
accused, he has recorded the conversation between them
and accused, but he does not know whether accused
knows it or not. He has deposed that said phone
recording conversations were typed in the
Hanumanthanagar typing center as per Ex.P317. Further
Ex.P18 is the whats app message details. The whats app
group is opened by Keshava Murthy. He admits that he
has not taken certificate from the person who had taken
printout of the said whatsapp messages. He deposed that
accused herself has given ledger of the Hon’ble High
Court of Karnataka and given acknowledgment for
receiving the amount in whats app group. He has taken
the account statement of the accused from the
Hanumanthanagar police station. He denies that after
32 C.C.20013/2022
completion of the evidence he has created Ex.P17 to P18
documents.
32. I have gone through the entire pleading and
evidence placed on record. In evidence the complainant
has deposed that accused has made him to believe that
she is working as stenographer under the Hon’ble High
Court of Karnataka and told that High Court has initiated
acquisition pertaining to the vacant sites which does not
have title documents, within vicinity of Bengaluru City and
the same was conducted secretly and induced the
complainant to invest money for the same. She has also
told that there are 94 files which are exclusively allotted to
the employees of Hon’ble High Court of Karnataka, their
friends and relatives and she make arrangements to but
those sites at 50% of their price. Believing her words the
complainant and his brother have invested Rs.51,19,000/-.
Out of that Rs.16,19,000/- was paid through the account
33 C.C.20013/2022
of the accused and remaining amount was paid by way of
cash. In total Rs.51,19,000/- has been paid by the accused
through RTGS and phone pay. Percontra the accused is
denying the entire transaction with the complainant as
alleged.
33. It is an admitted fact that cheques belong to the
accused account. The accused has not disputed her
signatures appearing on disputed cheques in question.
The Honorable Supreme Court of India in “Triyambak S
Hegde v Sripad” (2022) 1 SCC 742 while relying upon the
the constitution bench judgment of Basalingappa v
Mudibasappa (2019) 5 SCC 418, under para 14 of its
judgment reiterated that
“once the cheque was issued and that the
signatures are upon the cheque are accepted by
the accused, the presumptions undee Sec 118
and 139 of the NI Act arise against the accused.
That is, unless the contrary is proved, it shall be
presumed that the cheques in question were
drawn by the accused for a consideration and
34 C.C.20013/2022
that the complainant had received the cheque in
question in discharge of debt/liability from the
accused.”
34. Therefore, as per Sec.118 and 139 of NI Act initial
presumption has to drawn infavour of the complainant
that cheques were issued in discharge of legally
enforceable debt/ liability. The burden lies on the accused
to rebut the said initial presumption on the scale of
preponderance of probabilities.
35. The accused has asked questions regarding
financial source of the complainant to make payment of
the accused. PW1 has specifically deposed in his evidence
that he 35000/- with incentives per month. In the written
arguments, the counsel for the accused has stated that
the complainant has not produced any evidence to prove
his source of income.
35 C.C.20013/2022
36. It is significant to note here that the accused
counsel has suggested to PW.1 in his cross-examination
dated 25.01.2024, page No.2 that Keshava Murthy asked
himself and his brother a loan, but thinking that the said
loan amount would not be returned directly to Keshava
Murthy, since the accused is working in Hon’ble High
Court if the amount is deposited to her account he would
get assurance for repayment of Rs.47 lakhs as such he
deposited the amount to the account of the accused and
same is denied by PW.1. He pleaded ignorance to the
suggestion the said Rs.47 lakhs was paid by the accused
to Keshava Murthy.
37. This part of the cross-examination is reproduced
here for more clarity.
” ಕೇಶವಮೂರ್ತಿಯವರು ಬ್ಯಾಗ್ ಅಂಗಡಿಯನ್ನು ಇಟ್ಟಿದ್ದು, ಅವರು
ನನಗೆ ಪರಿಚಯ ಇರುತ್ತಾರೆ. ನನ್ನ ಮತ್ತು ಆರೋಪಿಯ ನಡುವೆ ಯಾವುದೇ
ವ್ಯವಹಾರ ಆಗಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಕೇಶವಮೂರ್ತಿಯವರು
36 C.C.20013/2022ನನ್ನಿಂದ ಮತ್ತು ನನ್ನ ತಮ್ಮನಿಂದ ಸ್ವಲ್ಪ ಸಾಲ ಕೇಳಿದ್ದರು ಎಂದರೆ ಸರಿಯಲ್ಲ.
ಕೇಶವಮೂರ್ತಿಯವರಿಗೆ ಹಣ ನೀಡಿದರೆ ವಾಪಸ್ಸು ಬರುವುದಿಲ್ಲ ಎಂದು
ತಿಳಿದು, ಆರೋಪಿಯು ಮಾನ್ಯ ಕರ್ನಾಟಕ ಉಚ್ಚ ನ್ಯಾಯಲಯ,
ಬೆಂಗಳೂರಿನಲ್ಲಿ ಕೆಲಸ ಮಾಡುತ್ತಿರುವ ಕಾರಣ ಮತ್ತು ಅವರ ಖಾತೆಗೆ ಹಣ
ಹಾಕಿದ್ದಲ್ಲಿ ವಾಪಸ್ಸು ಬರುತ್ತದೆ ಎಂದು ತಿಳಿದು, ಆರೋಪಿಯ ಖಾತೆಗೆ
ರೂ.47,00,000/- ಹಣ ಹಾಕಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ”
“ಆರೋಪಿಯು ಸದರಿ ರೂ.47,00,000/- ಹಣವನ್ನು ಕೇಶವಮೂರ್ತಿ
ರವರಿಗೆ ಪೂರ್ತಿ ಮರುಪಾವತಿ ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ನನ್ನ
ಮತ್ತು ಆರೋಪಿಯ ನಡುವೆ ಯಾವುದೇ ವ್ಯವಹಾರ ಆಗಿಲ್ಲ ಎಂದರೆ
ಸರಿಯಲ್ಲ. ಆ ರೀತಿ ಒಂದು ವೇಳೆ ನನ್ನ ಮತ್ತು ಆರೋಪಿಯ ನಡುವೆ
ಏನಾದರೂ ವ್ಯವಹಾರ ಆಗಿದ್ದ ಪಕ್ಷದಲ್ಲಿ ಸದರಿ ವ್ಯವಹಾರ ಕಾನೂನು
ಬಾಹಿರವಾದ ವ್ಯವಹಾರ ಎಂದರೆ ಸರಿಯಲ್ಲ.”
38. Thereby the accused admits that she has
received Rs.47 lakhs from the account of the complainant.
Even there is a clear pleadings in the complaint that
complainant and his brother have invested 51,19000/-,
out of that his brother Mahendra has paid part of the total
37 C.C.20013/2022
investment amount to the accused through account i.e.
to an extent of Rs.16 lakhs and the remaining amount was
given by way of cash. He also paid Rs 8 lakhs by way of
cash. Since the accused admits that she has received
Rs.47 lakhs from the account of the complainant and his
brother, he need not to prove his financial capacity
further. Moreover per Sec.118 of NI Act, there is an
initial presumption in favour of the complainant that the
consideration has been passed. Therefore, first ground of
attack of the accused that the source of income of the
complainant is not proved cannot be accepted.
39. Rohitbhai J Patel vs The State Of Gujarat,
reported in [2019] 5 S.C.R. 417, Apex court observed that
19. Herein above, we have examined in
detail the findings of the Trial Court and those of
the High Court and have no hesitation in
concluding that the present one was clearly a
case where the decision of the Trial Court
suffered from perversity and fundamental error
38 C.C.20013/2022
of approach; and the High Court was justified in
reversing the judgment of the Trial Court. The
observations of the Trial Court that there was no
documentary evidence to show the source of
funds with the respondent to advance the loan, or
that the respondent did not record the
transaction in the form of receipt of even kachcha
notes, or that there were inconsistencies in the
statement of the complainant and his witness, or
that the witness of the complaint was more in
know of facts etc. would have been relevant if the
matter was to be examined with reference to the
onus on the complaint to prove his case beyond
reasonable doubt. These considerations and
observations do not stand in conformity with the
presumption existing in favour of the
complainant by virtue of Sections 118 and 139 of
the NI Act. Needless to reiterate that the result of
such presumption is that existence of a legally
enforceable debt is to be presumed in favour of
the complainant. When such a presumption is
drawn, the factors relating to the want of
documentary evidence in the form of receipts or
accounts or want of evidence as regards source of
funds were not of relevant consideration while
examining if the accused has been able to rebut
the presumption or not. The other observations as
regards any variance in the statement of complainant
and witness; or want of knowledge about dates and
39 C.C.20013/2022
other particulars of the cheques; or washing away of
the earlier cheques in the rains though the office of
the complainant being on the 8 th floor had also been
of irrelevant factors for consideration of a probable
defence of the appellant. Similarly, the factor that the
complainant alleged the loan amount to be Rs.
22,50,000/- and seven cheques being of Rs. 3,00,000/-
each leading to a deficit of Rs. 1,50,000/-, is not even
worth consideration for the purpose of the
determination of real questions involved in the
matter. May be, if the total amount of cheques
exceeded the alleged amount of loan, a slender
doubt might have arisen, but, in the present matter,
the total amount of 7 cheques is lesser than the
amount of loan. Significantly, the specific amount of
loan (to the tune of Rs. 22,50,000/-) was distinctly
stated by the accused-appellant in the aforesaid
acknowledgment dated 21.03.2017″.
40. Though some questions were asked to PW1
regarding in earlier compliant given before police and
before Hon’ble High Court, the complainant’s brother has
stated that he has given Rs 15 lakhs not 16 lakhs, etc and
minor inconsistencies have no effect as PW1 has
consistently pleaded and deposed that in total he has
40 C.C.20013/2022
given Rs 51,19,000/- and out of that Rs 4,19,000/- is
repaid and for remaining amount cheques are given. But
the accused has not at all given any explanation why this
4,19,000/- was given to complainant if there were no
transactions. Therefore, in view of aforementioned ruling,
first ground of attack of the accused that the source of
income of the complainant is not proved cannot be
accepted.
41. It is an admitted fact that the cheques in
question are dishonorued for the reason ‘Payment
Stopped by Drawer’. As per the accused, the cheques
were forcibly taken by her, at the threat of the police, that
she will be arrested. The accused has given reply to the
demand notice of the complainant and same is marked at
Ex.P11 in the present case. In the para No.11(c) and (d) of
the reply notice at Ex.P11, the accused has specifically
stated that all of a sudden on 25.11.2021, she received call
41 C.C.20013/2022
from Sri Basavaraja Patil PSI, Hanumanthangar police
station, Bengaluru City and called her, to the police
station. Accordingly, she went to the police station, that
time police have threatened her and forcibly taken her to
house and collected her cheque books, came back to the
police station and took her signatures, forcibly on the
cheques, at the instigation of Mahendra, Mallesh and
Keshava Muarthy, but she never issued the cheques in
question for repayment of the amount as mentioned in
the complaint.
42. It is pertinent to note here that the accused has
not lead evidence, but during cross-examination of PW.1,
she has confronted copy of the complaint given to the
police on 25.10.2021 to the Hanumanthanagar police
station stating that for her necessities, she has taken Rs.5
lakhs from the Keshava Murthy and returned the same to
him through account, but Mallesh and Mahindra have
42 C.C.20013/2022
called her on 21.10.2021 near Subramanyaswamy Temple
and asked her to give Rs.47 lakhs, Keshavamurty Asked
her to give Rs 32 lakhs and thereby threatening her and
also forcing her to give cheques. This complaint at ExD2 is
given on 25.10.2021 i.e. well before giving the reply notice
on 07.01.2022 as per Ex.P13. In Ex.D2 she has stated
that she has taken “a loan of Rs.5 lakhs from Keshava
Murthy”, this fact is not reflected in the reply notice at
Ex.P11. Accused has stated that she has repaid said 5
lacks through account. However no documents produced
in that regard. When she taken said loan and when she
returned it is also not forthcoming.
43. The recitals of the said complaint at Ex.D2 also
shows that Mallesh and Mahindra have threatened her by
stating that they have given Rs.47 lakhs to her. It is worth
mentioning here that this ExD2, corroborates the case of
the complainant that Rs.47 lakhs is due from the accused
43 C.C.20013/2022
to himself and his brother for they both filed three cases. .
This specific extent of amount is disclosed to the accused
by the complainant and his brother on 25.10.2021 itself.
After lodging this complaint, even the present
complainant has also given another complaint to the
same police station on 27.10.2021 stating that the
accused has cheated him by taking Rs.48 lakhs from him
and not returning the same. Same is reflected in Ex.D4
statement of the complainant given against the accused.
Based on the said compliant, FIR has been registered
against the accused as per Ex.D5.
44. During cross-examination of PW.1, the counsel
for the accused has confronted copy of the letter written
by the complainant on 30.10.2021 to the Hon’ble
Registrar, High Court of Karnataka and it was not marked
as ExD1. By making such suggestion to PW1, accused
admitted that the complainant’s brother has given
44 C.C.20013/2022
complaint to the Hon’ble High Court of Karnataka, after he
got to know that, no such acquisition proceedings or SLOT
proceedings were held by the Hon’ble High Court
Karnataka. PW1 has deposed that after lodging the said
complaint , the accused has repeatedly sought time to the
complainant to make the payment. It is noticed that if at
all accused has not taken money from the complainant,
then why would complainant or his brother would ask
money to her, Why would they lodge compliant to Hon’ble
High court?. Unless there is some transaction, no
common person would step into the police station or
make compliant to High Court also.
45. In the written arguments, the counsel for the
accused has mentioned that when the consideration is
illegal, for immoral or illegal purpose or against public
police, then the the whole transaction becomes void, as
per Sec.23 of Indian Contract Act. It is also highlighted
45 C.C.20013/2022
that the alleged transaction looks like a ponzi transaction
and it is prohibited under Banning of Unregulated Deposit
Scheme Act 2019 and prize Chit and Money Circulation
Scheme (Banning) Act 1978. Further it is mentioned in
written arguments of the accused that at no stretch of
imagination interest of 75% per month can be given and
same is apprehended under the Karnataka Prohibition of
Exorbitant Interest Act 2004.
46. It is significant to note here that neither the
complainant has contended that he has given loan with
an interest to the accused nor contended that he entered
into any agreement which is against to the public policy
etc as per Sec.23 Indian Contract Act with the accused. It
is an allegation that accused lured and induced the
complainant to give money to her and she will invest it in
some acquisition proceedings held by Hon’ble High Court
of Karnataka through agency, in a ‘SLOT’ scheme and also
46 C.C.20013/2022
assured to give the said amount with extra benefits and
also assured to make arrangement to buy sites for lesser
price, to the complainant and his brother. Therefore,
there is no express contract between the accused and the
complainant in this regard, but it is an inducement caused
by the accused to the complainant and his brother to give
money to the accused. PW1 has repeatedly pleaded and
also deposed in evidence that , as accused was working in
Hon’ble High court of work, he trusted her and given
money. The complainant might have invested money
with expectation of high returns , but root cause for such
investment is assurance of the accused and she has
played an undue influence on the complainant by
misusing her position. Therefore, neither it could be
termed as wagering nor it attracts sec 23 of Indian
Contract Act or any other Acts mentioned by the accused.
Moreover separate crime has been registered for
47 C.C.20013/2022
cheating against the accused. Thus aforementioned
arguments of the accused counsel cannot be accepted.
47. The accused contends that she has given
complaint in the police station on 29.10.2021 against the
complainant, his brother and also Keshava Muarthy as per
Ex.D2. Thereafter, as per the legal notice the police have
taken her cheques forcibly on 25.11.2021. The accused
has given ‘stop payment instructions’ to her banker as per
on 06.12.2021. Since PW1 has denied the said
suggestion , the accused ought to have produced those
stop payment instruction letter in her evidence. But she
has not produced those copies in this case. They are
produced only other two connected cases.
48. In the cross-examination of PW.1 it is suggested
that the police have forcibly taken her home to the
accused, threatened of arrest and taken her 9 cheques. In
the reply notice, she has specifically mentioned that police
48 C.C.20013/2022
officer by name Basavaraja Patil of Hanumanthanagar
police station has taken those cheques form her, but
neither complaint filed against the said police officer nor
against the complainant after 25.11.2021, immediately,
alleging that her cheques were forcibly taken. Admittedly
the accused is educated person having worldly knowledge
and works in the responsible institution i.e. Hon’ble High
Court of Karnataka. The Court proceedings, the contact of
advocate is not new factor to the accused. Under such
circumstances, immediately after 25.11.2021, the accused
could have given complaint to the higher officer of the
Hanumanthanagar police station PSI and the
complainant, for taking her cheques forcibly. No such
efforts made by the accused for the reason best known to
her. No prudent person would keep quite knowing that
her cheques are taken forcibly. Surprisingly the accused
has not taken any legal steps against them for forcibly
49 C.C.20013/2022
taking her cheques. Such imprudent conduct of the
accused is creating doubt about her version.
49. To take the defense of stop payment instructions
the accused shall establish before the Court that as on the
date of giving such instructions, she had sufficient
balance in her account , even then she has given stop
payment instruction to prevent her cheques are being
misused. As no documentary evidence is produced by the
accused to establish that she had sufficient balance in her
account, it has to be inferred that the stop payment
instruction is issued to the bank by her when there is no
sufficient amount in the account. In view of Section 139, it
has to be presumed that a cheque is issued in discharge
of any debt or other liability. But the presumption can be
rebutted by adducing evidence and the burden of proof is
on the person who wants to rebut the presumption. In
50 C.C.20013/2022
instant case, accused has not led any such rebuttal
evidence.
50. M/S Laxmi Dyechem vs State Of Gujarat & Ors,
reported 2013 AIR SCW 3468, Apex court held that
“However, this presumption coupled with the object
of Chapter XVII of the Act leads to the conclusion that
by countermanding payment of post-dated cheque, a
party should not be allowed to get away from the
penal provision of Sec 138 of the Act. Therefore, in
order to hold that the stop payment instruction to the
bank would not constitute an offence, it is essential
that there must have been sufficient funds in the
accounts in the first place on the date of signing of
the cheque, the date of presentation of the cheque,
the date on which stop payment instructions were
issued to the bank. Hence, in Goaplast matter (supra),
when the magistrate had disallowed the application
in a case of ‘stop payment’ to the bank without
hearing the matter merely on the ground that there
was no dispute about the dishonour of the cheque
issued by the accused, since the signature was
admitted and therefore held that no purpose would
be served in examining the bank manager since the
dishonour was not in issue, this Court held that
examination of the bank manager would have
enabled the Court to know on what date stop
payment order was sent by the drawer to the bank
51 C.C.20013/2022
clearly leading to the obvious inference that stop
payment although by itself would be an offence, the
same is subject to rebuttal provided there was
sufficient funds in the account of the drawer of the
cheque”.
51. But the accused neither produced her account
statement nor stepped into witness box to depose the
same. No prudent person would give 9 signed cheques at
the threat of police or at force of somebody to whom he
owes nothing . Moreover, the accused is working in the
Court. Therefore, it is highly impossible and improbable
that the police can collect the cheques from her forcibly.
52. Percontra, the complainant has consistently
deposed in his cross-examination that cheques were not
given in the police station, but given on 05.11.2021 at his
house. He has also deposed after giving complaint on
25.11.2021 against the accused, the accused herself called
him and requested time, as such compliant in police
52 C.C.20013/2022
station may create a problem in her work place, as such
by agreeing to repay the amount, she gave the cheques in
question. There is presumption regarding the date of
issuance of cheques as per Sec.118 of NI Act. Therefore, in
the absence of corroborating evidence, the whole story of
the accused that the cheques were taken in the police
station appears to be vague and does not transpires the
confidence of the Court.
53. The accused contends that the complainant was
intended to given loan to Keshavamurty and himself and
his brother have transferred Rs.47 lakhs to her account
and the said amount was given back to Keshava Murthy,
by her. Firstly , without accused herself gave her account
number, at no stretch of imagination , complainant would
get such details. Why would she allowed to put money to
her account itself is not forthcoming. Further there is no
proof that she had withdrawn that amount and given
53 C.C.20013/2022
Rs.16 lakhs to Keshava Murthy. She could have
transferred that amount directly to the account of
Keshavamurty, as she already had his account number as
per ExD2 ie compliant, if at that money was intended to
be given him by the complainant and not to her. In what
mode, she paid such huge amount to Keshavamurty is
also not forthcoming. As per the earlier complaint dated
25.10.2021 marked at Ex.D2, she had already taken loan
of Rs.5 lakhs from the Keshava Murthy and in that regard
relationship with him was already strained. There is no
proof that she had returned that Rs.5 lakhs to Keshava
Murthy or Rs.47 lakhs alleged to be deposited to give to
Keshava Murthy as loan by the complainant.
54. Moreover, the story that being an employee of
the Hon’ble High Court knowing that her personal
accounts are always accountable to the Hon’ble High
Court of Karnataka, she had given her personal account
54 C.C.20013/2022
details to the complainant for transferring Rs.47 lakhs as
loan to Keshava Murthy appears to be suspicious and
vague.
55. As per the complainant through Keshava Murthy
only he met the accused. Therefore, if at all the
complainant would repose confidence, that would be on
Keshavamurty first than on accused. Probability that the
complainant in order to secure the loan to be given to
Kesahva Murthy, he has deposited RS 47 lakhs to the
account of the accused appears be unreasonable and not
trust worthy.
56. In the written arguments it is mentioned that
the complainant has not shown the alleged investment
amount given to the accused in income tax returns. It is
well settled law that not mentioning about the amount
given to accused in the income tax of the complainant
would not exempt the accused from proving his defense.
55 C.C.20013/2022
57. In Sri C.N.Dinesha V Smt.C.G.Mallika reported
in 2017 CrR.530(Kant) it is observed that
“The culpability of offence under Section 138 of
the Act will not freeze for the reason of violation of
Section 269SS of the I.T. Act and nothing prevents the
operation of the statutory presumption under
Sections 118 and 139 If the complainant has not
paid the income tax and not If the complainant
has not paid the income tax and not produced the
tax returns that would not exempt liability of the
accused.
58. Bir Singh v Mukesh Kumar reported in
((2019) 4 SCC 197), Apex court has held that
The fact that the appellant-complainant might
have been an Income Tax practitioner conversant
with knowledge of law does not make any difference
to the law relating to the dishonour of a cheque. The
fact that the loan may not have been advanced by a
cheque or demand draft or a receipt might not have
been obtained would make no difference.
56 C.C.20013/2022
59. Therefore, non furnishing of income tax returns
is of no consequence as the presumption raised in favour
of the complainant is not at all rebutted by the accused.
60. In order establish her defence as per Sec 101
and 102 of Indian Evidence Act the accused ought to have
step into witness box. In K.N. Beena vs Muniyappan And
Another, AIR 2001 SUPREME COURT 2895, Apex court held
that
“In this case admittedly the 1st Respondent
has led no evidence except some formal
evidence. The High Court appears to have
proceeded on the basis that the
denials/averments in his reply dated 21st May,
1993 were sufficient to shift the burden of proof
onto the Appellant/Complainant to prove that
the cheque was issued for a debt or liability. This
is an entirely erroneous approach. The 1st
Respondent had to prove in the trial, by leading
cogent evidence, that there was no debt or
liability. The 1st Respondent not having led any
evidence could not be said to have discharged
57 C.C.20013/2022
the burden cast on him. The 1st Respondent not
having discharged the burden of proving that
the cheque was not issued for a debt or liability,
the conviction as awarded by the Magistrate was
correct. The High Court erroneously set aside
that conviction. “
61. The accused is well educated person and works
in responsible institution. Common people repose
confidence in the institution of judiciary. Being the part of
such responsible institution, the accused has taken
undue advantage of her position and misused name of
the institution and it’s officers, for her personal benefits.
Such conduct of the accused is not admissible and
requires to be severely condemned and punished.
62. Except denial of the call details produced by the
accused at Ex.P18 on technical ground that person who
has furnished the document is not examined and
certificate is not taken by them, no cogent evidence
58 C.C.20013/2022
brought on record to disprove the case of the
complainant. Indeed the accused had not denied the
message conversations made with the complainant in the
entire cross-examination. Moreover, in the cross-
examination it is suggested that without to the knowledge
of the accused, such calls were recorded. That shows that
the accused has complete knowledge about the call
records produced on record.
63. Therefore, having regard to the entire evidence
placed on record this Court is of the view that the accused
has utterly failed to prove her defense and trying to
escape from the clutches of law by taking technical faults
in the case, instead of stepping into witness box to
depose and prove the defense. The entire defense
appears to be cooked up story and a clear afterthought.
Therefore, accused has failed to rebut the evidence of the
complainant on the scale of preponderance of
59 C.C.20013/2022
probabilities. Looking from any angle the case of the
complainant appears to be trustworthy and he has proved
the case in accordance with law beyond reasonable
doubt. Accordingly court proceed to answer POINT
NO.I IN THE AFFIRMATIVE.
64. POINT NO.II: As stated above the accused being
an employee of responsible institution has misused her
position and also tried to use the name of the institution
for her illegal personal gains. Therefore, it is fit case to
impose maximum fine amount provided under law.
In view of the reasons assigned in above point, it is
ample clear that accused has committed the offence
punishable u/s 138 of the Act. A bare reading of sec.138
of the NI Act indicates that the purport of sec.138 is to
prevent and punish the dishonest drawers of cheques
who evade their liability. The Hon’ble Apex Court in its
recent decision in M/s. Meters & instrument Pvt Ltd. Vs.
60 C.C.20013/2022
Kanchana Mehta reported in (2018)1 SCC-560 held at
para 18(ii)
that”(ii) The object of the provision being primarily
compensatory, punitive element being mainly with the
object of enforcing the compensatory element,
compounding at the initial stage has to be encouraged
but is not debarred at later stage subject to appropriate
compensation as may be found.” In view of the reasons
assigned in above point, it is ample clear that accused has
committed the offence punishable u/s 138 of the Act.
65. Therefore, having regard to the amount
advanced, time from which it is lying with the accused,
and keeping in mind the primary object of the provision,
this court is of the opinion that, rather than imposing
punitive sentence, if sentence of fine is imposed with a
direction to compensate the complainant for its monitory
loss, by awarding compensation U/Sec.357 of Cr.P.C,
61 C.C.20013/2022
would meet the ends of justice. Accordingly, this court
proceeds to pass following …..
ORDER
The accused is found guilty for the offence
punishable U/s.138 of Negotiable Instruments
Act.
Hence, acting U/sec.255(2) of Cr.P.C, the
accused is convicted and sentenced to pay a fine
of Rs.12,10,000/- (Rupees Twelve Lakhs Ten
Thousand Only), in default of fine amount, he
shall undergo simple imprisonment for One
Year for the offence punishable under section
138 of N.I.Act.
Out of the fine amount collected from the
accused, an amount of Rs.12,00,000/- (Rupees
Twelve Lakhs only) shall be paid to the
complainant as compensation U/s.357 of Cr.P.C.
and the remaining fine of Rs.10,000/- shall be
adjusted towards the cost of state expenses.
62 C.C.20013/2022
The bail bonds of the accused shall be in
force till the appeal period is over as
contemplated under the provisions of
Sec.437(A) of Cr.P.C.
Office to supply the copy of the
Judgment to the accused forthwith at free of
cost.
(Dictated to the Stenographer, typed by her, corrected by me and
then judgment pronounced in the open court on this the 27th day of
February 2025).
Digitally
signed by
Tejaswini K M
Tejaswini Date:
KM 2025.03.03
10:50:01
+0530
(Smt.Tejaswini K.M),
XVI ACJM, Bengaluru
ANNEXURE
I. List of witnesses on behalf of complainant:
P.W.1: Sri.Mallesh.R
II. List of documents on behalf of complainant:
63 C.C.20013/2022
Ex.P-1 & 2 : Original Cheques.
Ex.P-1(a) &2(a) : Signatures of the accused
Ex.P-3 & 4 : Bank memos.
Ex.P-5 : Copy of Legal notice.
Ex.P-6 & 7 : Postal receipts.
Ex.P-8: Returned Notice.
Ex.P-9 : Postal Cover.
Ex.P-10 : Postal Receipt.
Ex.P-11 : Reply Notice.
Ex.P-12 : Postal Cover.
Ex.P-13 : Postal Receipt.
Ex.P-14 : Complaint.
Ex.P-15 : C.D.
Ex.P-16 : Certificate U/Sec.65-B of Indian
Evidence Act.
Ex.P-17 : Audio & Video Recordings.
Ex.P-18 : Whats app messages.
III. List of witnesses for the accused:
Nil
IV. List of documents for accused:
Ex.D-1 : Complaint against accused.
64 C.C.20013/2022
Ex.D-2 : Complaint before Hanumanthanagar
police station.
Ex.D-3 & 4 : Statements given before
Hanumanthanagar police station.
Ex.D-5 : Complaint given by PW.1 against accused
before Hanumanthanagar police station.
Ex.D-6 : Copy of FIR.
Digitally
signed by
Tejaswini K
Tejaswini M
KM Date:
2025.03.03
10:50:11
+0530
(Smt.Tejaswini K.M ),
XVI ACJM, Bengaluru
65 C.C.20013/2022