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Bangalore District Court
Naaz Parveen vs M/S Hkbk College Of Engineering, Rep. By … on 4 June, 2025
KABC0A0024092024
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri. Sreepada N,
B.Com., L.L.M.,
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 4th day of June 2025
Crl. Appeal. No.25265/2022
Appellant/ Mrs.Naaz Parveen
Accused:- W/o Irshad Ali Khan,
Aged about 55 years,
R/o No.56, Naaz Villa,
2nd Cross, Hutchin's Road,
Cooktown,
Bangalore North,
Bangalore.
(By Sri. Akshatha Shetty - Adv.,)
V/s
Respondent/ M/s HKBK College of Engineering
Complainant: (Derived by Karnataka State Muslim
Federation Educational Society
2 Crl.Appeal No.25265/2024
Registered Under Karnataka Societies
Registration Act 1960) Office at No.22/1,
Near Manyata Tech Park Nagwara,
Bangalore - 560 045.
Rep. by its Manager,
Mr. Mohammed Rehan.
(By Sri. Rajashekar. R - Adv.,)
JUDGMENT
This appeal is by the Accused before the trial
court, who suffered the judgment of conviction for the
offence punishable U/Sec.138 of NI Act passed by
XIV Addl. CJM, Bengaluru, in CC.No.50189/2023,
dtd. 2.7.2024, challenging the validity of the
judgment.
2. For the sake of convenience the parties
hereinafter will be referred to with their ranking
assigned before the trial court.
3. The facts of the case:-
The Complainant initiated private complaint
under Section 200 of Cr.P.C., against the Accused,
alleging that the Complainant is a Society registered
under Karnataka Societies Registration Act, 1960.
3 Crl.Appeal No.25265/2024
When the Complainant in search of property,
partners of Harmain Constructions were introduced
to the complainant. They told that they entered into
Joint Development Agreement with the Accused in
respect of Municipal No.16/1, situated in Harris
Road, Benson Town, Division No.83/92, Jayamahal,
Bengaluru, bearing PID No.923416/1, measuring on
the east to west : 56′; on the North to South : 57.9′,
totally measuring 3242.4 Sq. feet and another
property, viz., flat measuring 1743 sq. feet situated
in Harmain Square. They agreed to sell the said
properties to the complainant for a sale consideration
of 1,57,00,000/-. The partners of Harmain
Constructions have also demanded Rs.50,000,00/
for decoration and for registration. Complainant
requested hand loan of Rs.50,000,00/ and to give
surety cheques for Rs.1,50,00,000/ by the Harmain
constructions. But vendors didn’t step forward for
registration and as mutual understanding accused
would give property and surety cheques on behalf of
the partners of Harmain Constructions. Accordingly,
Accused has issued cheque dtd. 24.12.2021 for
Rs.1,00,00,000/ in favour of Complainant. On its
presentation, the same was returned unpaid on
4 Crl.Appeal No.25265/202418.01.2022 with endorsement “funds insufficient”.
Thereafter, the Complainant got issued legal notice
dated 07.02.2022 demanding repayment of
dishonoured cheque amount within fifteen days from
the date of receipt of notice. Notice was served on the
Accused. In spite of service of notice, the accused has
failed to pay the cheque amount within stipulated
period and thereby, the Accused has committed the
offense punishable under Sec.138 of Negotiable
Instruments Act. Thereafter the Complainant
approached the Trial Court for appropriate legal
action against the Accused.
4. Pursuant to summons the Accused entered
appearance through his Counsel before the Trial
Court. The substance of the accusation was read
over and explained to the Accused in the language
known to him. The Accused pleaded not guilty and
claimed to be tried. The Manager of the Complainant
got examined himself as PW.1 and got marked Ex.P.1
to Ex.P.16 documents and closed his side. The
Accused not chosen to contest the matter and not
marked any documents to prove his case.
5 Crl.Appeal No.25265/2024
5. The trial court after hearing the counsel for
Complainant, convicted the Accused for the offence
punishable U/Sec.138 of NI Act vide Judgment dtd.
2.7.2024.
6. Feeling aggrieved by the said judgment of
conviction, the Accused is in appeal on the following
grounds:
1. The impugned judgment passed by the
Trial Court is not maintainable in law
nor on facts.
2. The impugned judgment passed by the
Learned Magistrate is not based on the
evidence on record and there is no
proper appreciation of the material on
record and the same is opposed to the
facts and probabilities of the case.
3. The Trial Court has not given sufficient
opportunity to the Appellant and passed
the impugned order, which is against
the principles of natural justice. Hence,
the act of the Trial Court is highly illegal
and also opposed to law, as such the
impugned order passed by the Trial
Court is liable to be set aside.
6 Crl.Appeal No.25265/2024
4. It is significant to note that the
Respondent was continuously absent
before the Trial Court and the Trial Court
has imposed the cost and the
opportunity to lead the further evidence
of the Respondent have been given from
19.12.2023 to 7.6.2024. On the other
hand, no sufficient opportunity has been
given by the Trial Court to the Appellant
to cross-examine the Respondent, to
lead her evidence and address her
arguments which is against the
principles of natural justice.
5. The Trial Court has noted down in its
order sheet that, the Accused is absent
and she has not been represented by
the counsel since from 30.5.2024 and no
exemption petition has been filed on he
behalf. That on the subsequent date i.e.,
on 7.6.2024, the Complainant has led
his further evidence and even that day
the Accused was not represented by the
counsel and no application seeking
exemption of her presence has been
filed. That inspite of that, the Trial Court
did not direct the presence of Accused,
wherein the Accused would have got
opportunity to know about the case
proceedings and non-appearance of her
counsel on her behalf.
7 Crl.Appeal No.25265/2024
6. The Respondent has taken double stand
in the complaint and he has stated in
the complaint that the alleged sale
transaction is for an amount of
Rs.1,57,00,000/-. But on the contrary
he is claiming that the Appellant has
issued two Cheques for an amount of
Rs.1,00,00,000/- each. That the
disputed Cheque Ex.P.1 is in contrary to
Ex.P.13. Therefore, that itself indicates
that the Respondent has created
documents and produced before the
Trial Court and the Trial Court has not
given proper opportunity to dispute
those document by cross-examining the
Respondent.
7. The Trial Court failed to consider the
material available on record and relied
on the unbelievable version of the
Respondent.
8. The Appellant stated that her son-in-law
Mr. Haseeb Khan is a Managing Director
of the Harmain construction and she is
no where connected to the said firm.
That one Mr. C.M. Faiz is the Director of
the Complainant Institution and the
Appellant’s son-in-law Mr. Haseeb Khan
and said Mr. C.M. Faiz had some
8 Crl.Appeal No.25265/2024
personal business transactions and an
amount of Rs.3,88,21,000/- had been
transferred to the personal account of
C.M. Fair to the Complainant Institution
account and to the account of CHEMYZO
LAB Pvt., Ltd., run by C.M. Faiz on
different dates since from 26.3.2018 to
12.4.2021. That the entire transaction
was between Mr. Haseeb Khan and Mr.
C.M. Faiz and the Appellant is total
stranger to the above case. That the
alleged complaint of the Respondent is
totally false and the Respondent has
created false story in the complaint and
filed false complaint.
9. The Director of the Respondent Mr. C.M.
Faiz is a local person and he is powerful
in the society having political and
financial power and taking undue
advantage they have lodged complaint
against the Appellant and others on
23.12.2021 and on the same day they
have succeeded to register the FIR
against them.
10. The Trial Court has wrongly observed
in the judgment in Para No.12 to 16, that
the Respondent has produced the
documents in support of his case. That
though the Appellant has not conducted
9 Crl.Appeal No.25265/2024
the cross-examination on those further
produced documents.
11. The Learned Magistrate without looking
into the facts and probabilities has
appreciated the case of the Respondent
against his own statements made which
are contrary to the facts of the case and
has committed grave mistake in
convicting the Appellant and the said
judgment is perverse, capricious and the
same is not sustainable the judgment
passed by the Trial Court without
application of mind and already held the
presumption in favour of the
Respondent, which has led to
miscarriage of justice.
12. Under the above grounds the Appellant
sought for acquittal by allowing the appeal.
7. Heard the counsel for Appellant. Perused
the written argument filed by the counsel for
Respondent.
8. Perused the evidence, documents on record
and also impugned Judgment of conviction passed
by the Trial Court.
10 Crl.Appeal No.25265/2024
9. On re-appreciation of the evidence,
documents on record, the following points would
emerge for the consideration of this court.
1. Whether the Appellant proves
that the cheques in question
were not issued towards any
legally recoverable debt?
2. Whether the Judgment of
conviction passed by the Trial
Court calls for interference by
the hands of this court?
3. What Order?
10. My finding on the above points are as
under:
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : As per final order for
the following :
REASONS
11. POINT NOs.1 and 2:-
Since the above two points are interlinked, in
order to avoid repetition of facts the above points
have been taken up together for consideration.
11 Crl.Appeal No.25265/2024
12. Before re-appreciating the evidence on
record, it is necessary to refer some of the latest
rulings of the Hon’ble Apex Court reported in 2019
(3) KCCR 2473 (SC) (Basalingappa V/s
Mudibasappa), the Hon’ble Apex Court while
considering several earlier rulings on the offence
U/Sec.138 of NI Act and also on the presumption
U/Sec.118 and 139 of NI Act, at Para 23 was
pleased to observe as follows:
23. We having noticed the ratio
laid down by this Court in above cases
on Sections 118(a) and 139, we now
summarise the principles enumerated
by this Court in following manner:-
(i) Once the execution of cheque is
admitted Section 139 of the Act
mandates a presumption that the
cheque was for the discharge of any
debt or other liability.
(ii) The presumption under
Section 139 is a rebuttable
presumption and the onus is on the
Accused to raise the probable defence.
The standard of proof for rebutting
the presumption is that of
preponderance of probabilities.
(iii) To rebut the presumption, it
is open for the Accused to rely on
evidence led by him or Accused can
12 Crl.Appeal No.25265/2024
also rely on the materials submitted
by the Complainant in order to raise a
probable defence. Inference of
preponderance of probabilities can be
drawn not only from the materials
brought on record by the parties but
also by reference to the circumstances
upon which they rely.
(iv) That it is not necessary for the
Accused to come in the witness box in
support of his defence, Sec.139
imposed an evidentiary burden and
not a persuasive burden.
(v) It is not necessary for the
Accused to come in the witness box to
support his defence.
13. In another ruling reported in AIR 2010 SC
1898 (Rangappa V/s Mohan), observed as under:-
“Existence of legally recoverable
debt or liability- The presumption
mandated by Section 139 of the Act
does indeed include the existence of a
legally enforceable debt or liability.
This is of course in the nature of a
rebuttable presumption and it is open
to the Accused to raise a defence
wherein the existence of a legally
enforceable debt or liability can be
contested. However, there can be no
doubt that there is an initial
presumption which favours the
Complainant. Section 139 of the Act is
13 Crl.Appeal No.25265/2024an example of a reverse onus clause
that has been included in furtherance
of the legislative objective of
improving the credibility of negotiable
instruments. While Section 138 of the
Act specifies a strong criminal remedy
in relation to the dishonour of
cheques, the rebuttable presumption
under Section 139, is a device to
prevent undue delay in the course of
litigation. However, it must be
remembered that the offence made
punishable by Section 138 can be
better described as a regulatory
offence since the bouncing of a cheque
is largely in the nature of a civil
wrong whose impact is usually
confined to the private parties
involved in commercial transactions.
In such a scenario, the test of
proportionality should guide the
construction and interpretation of
reverse onus clauses and the Accused/
defendant cannot be expected to
discharge an unduly high standard or
proof. In the absence of compelling
justifications, reverse onus clauses
usually impose an evidentiary burden
and not a persuasive burden. Keeping
this in view, it is a settled position
that when an Accused has to rebut the
presumption under Section 139, the
standard of proof for doing so is that
of ‘preponderance of probabilities’.
Therefore, if the Accused is able to
raise a probable defence which creates
doubts about the existence of a legally
enforceable debt or liability, the
14 Crl.Appeal No.25265/2024prosecution can fail. The Accused can
rely on the materials submitted by the
Complainant and it is conceivable that
in some cases the Accused may not
need to adduce evidence of his/her
own.”
14. Keeping in view the broad principles laid
down by the Hon’ble Apex Court, let me re-appreciate
the evidence and documents on record.
15. The definite case of the
Complainant/Respondent is that the Complainant
Society was in search of property to purchase and
one of the Director’s friend referred the Hermain
Constructions whereas they said that they have
entered into Joint Development Agreement between
owner Naaz Parveen and the Accused to develop the
construct the land as Apartment for the absolute
owners of the property situated in Harris Road,
Benson Town measuring 3242.4 sq.ft., and another
property measuring 1743 sq.ft., situated in Harmain
Square. Accordingly, they agreed to sell the said
properties to the Complainant for a sale
consideration of 1,57,00,000/-. The partners of
Harmain Constructions have also demanded
15 Crl.Appeal No.25265/2024
Rs.50,000,00/ for decoration and for registration.
The Complainant requested hand loan of
Rs.50,000,00/ and to give surety cheques for
Rs.1,50,00,000/ by the Harmain constructions.
However, the vendors didn’t step forward for
registration and as such mutual understanding
taken place between the Complainant and the
Accused and as per the mutual understanding the
Accused would give property and security Cheques
on behalf of the partners of Harmain Constructions.
Accordingly, the Accused has issued cheque dtd.
24.12.2021 for Rs.1,00,00,000/ in favour of the
Complainant towards discharge of her liabilities due
to the Complainant. At the instruction of the Accused,
when the Complainant presented the said Cheque for
encashment, it came to be dishonoured for “funds
insufficient”. Therefore, the Complainant got issued
legal notice dtd. 07.02.2022 demanding repayment
of dishonoured cheque amount. Inspite of service of
notice the Accused failed to pay the Cheque amount
and failed to reply the said notice. Thereby the
Accused has committed the offence punishable under
Section 138 of the Negotiable Instruments Act.
16 Crl.Appeal No.25265/2024
16. The Complainant in order to prove its case
got examined its Manager as PW.1 and got exhibited
documents at Ex.P.1 to Ex.P.16. The Accused has not
at all led any oral evidence nor marked any
documents. Since the Accused hash not examined
any witnesses nor replied to the notice issued by the
Complainant, the defense of the Accused can be
gathered from the cross-examination made to PW.1/
Complainant. Even though the Complainant
contended that they have advanced amount to the
Accused for construction purpose and in this regard
Agreement had taken place etc. but the said
Agreement has not been produced. Further taken up
contention that all the partners of Harmain
Constructions are not arrayed as parties in the
compliant. Even the Partnership Firm is not made as
party. Further also taken up contention that the
Cheque pertaining to the Accused has been forcibly
obtained from the Accused in the Police Station. The
alleged Cheque is not at all in the name of Harmain
Construction, but it is in the name of Accused.
Further also taken up contention that the legal notice
is not at all served upon the Accused etc. In the
appeal memo Appellant also taken up specific
17 Crl.Appeal No.25265/2024
contention that no proper opportunities were provided
by the Trial Court to further cross-examine PW.1 and
to address arguments etc.
17. I have carefully perused the documentary
evidence placed by the Complainant. Ex.P.1 is the
Cheque issued by the Accused dtd: 24.12.2021.
Ex.P.2 is the Cheque Return Memo dtd: 18.1.2022.
Ex.P.3 is the Office Copy of Legal Notice dtd:
2.2.2022. Ex.P.4 is the RPAD Receipt. Ex.P.5 is the
Postal Acknowledgment. Ex.P.6 is the Authorization
Letter issued by the Complainant to institute this
case in favour of PW.1. Ex.P.7 is the detailed Account
Statement of the Complainant. Ex.P.8 is the
Memorandum of Association of the Complainant.
Ex.P.9 to Ex.P.11 are the Bank Statements of the
Complainant. Ex.P.12 is the Original Sale Agreement
which entered between the Accused and the
Complainant in respect of settlement arrived between
the Complainant and the Accused. Ex.P.13 is the
Promissory Note executed by the Accused in favour of
the Complainant stating that due to some issues she
could not deliver the possession or return back the
advance amount, as a partner she is responsible to
18 Crl.Appeal No.25265/2024
return the advance amount, accordingly she has
issued two Cheques including Ex.P.1 in favour of the
Complainant etc. Ex.P.14 & Ex.P.15 are the FIR &
copy of Complaint to show that Harmain
Constructions have cheated the Complainant by
receiving an amount by assuring to give plot, but
they without providing plot have cheated them etc.
Ex.P.16 is the Certificate under Section 65(B) of the
Evidence Act in connection with the Ex.P.9 to
Ex.P.11. The present complaint has been presented
by the Complainant before the Trial Court on
16.3.2022. On perusal of all the above documents
with date of filing of the complaint, it is clear that
before filing of the complaint the Complainant has
complied with all the requirements of Section 138 of
the Negotiable Instruments Act and the present
complaint is filed well within the period of limitation
and it is in accordance with the provisions of
Negotiable Instruments Act.
18. It is the argument of the Learned Counsel
for the Appellant herein is that the Trial Court
without providing sufficient opportunity to the
Accused has hurriedly passed the judgment which is
19 Crl.Appeal No.25265/2024
against the principles of natural justice. Even though
the Trial Court has granted sufficient opportunity to
the Complainant to lead further evidence, but no
such opportunity was given to the Appellant for
further cross-examination of PW.1. Further contended
that according to Ex.P.13 the alleged transaction is
for an amount of Rs.1,57,00,000/-, but to the
contrary the Complainant is claiming that Appellant
has issued two Cheques for Rs.1,00,00,000/’- each.
Therefore, it is clear that Ex.P.1 has been created.
Further also argued that the son-in-law of the
Accused is the Managing Director of the Harmain
Construction and the Accused is no way connected to
the said Firm. One C.M. Faiz is the Director of the
Complainant Institution and the Appellant’s son-in-
law and said C.M. Faiz had some personal business
transactions and an amount of Rs.3,88,21,000/- had
been transferred to the personal account of C.M. Faiz
to the Complainant Institution account and to the
account of CHEMYZO LAB Pvt., Ltd., run by the said
C.M. Faiz on different dates since from 26.3.2018 to
12.4.2021. The said transaction was between them
and the Appellant is total stranger to the above case.
On the other hand, this Complaint is falsely filed
20 Crl.Appeal No.25265/2024
against the Accused in connection with some other
transaction between C.M. Faiz and the son-in-law of
the Appellant. Further argued that though the
Appellant has not given sufficient opportunity to
cross-examine on the documents at Ex.P.9 to Ex.P.15,
but the Respondent has not placed sufficient
evidence in support of their case. On all these
grounds the Learned Counsel for the Appellant
prayed to set aside the judgment of the Trial Court.
19. On the other hand, it is the argument of the
Learned Counsel for the Respondent is that the
Accused/Appellant has falsely contended that she is
stranger to the transaction. On the other hand, she is
the signatory to Ex.P.1 Cheque. The Head of the
Complainant Institution has filed a complaint against
the Appellant and 03 others for cheating the
Complainant. Even so many Cheque bounce cases
and original suits have been filed against the
Accused, her son-in-law, her husband and partners
of Harmain Constructions which are pending before
the different Courts. The Respondent is connected to
the Firm and she promised to repay the advance
amount and accordingly she has issued 02 surety
21 Crl.Appeal No.25265/2024
Cheques, one of the Cheque is the subject matter of
this complaint. The Accused and the other partners
have cheated so many persons by assuring them to
provide sites and flats etc. Further contended that
there is no materials to support the contents of
appeal memo. Further contended that the entire
transaction is between the Accused Harmain
Constructions Mr. Haseeb Khan, Irshad Ali, the
Accused and the Complainant. The Accused is not a
stranger to the above transaction and she is acting to
be a stranger had entered about property property
not at all business dealings. In this regard, the
Learned Counsel for the Respondent in his written
arguments has mentioned so many case numbers of
original suits and criminal cases which are pending
against the Accused/Appellant and the partners of
Harmain Constructions before so many Courts.
Accordingly, he prayed to dismiss the appeal.
20. It is pertinent to note here that in this case
the Accused has not at all denied and disputed
about the issuance of Cheque and her signature
appearing thereon. On the other hand, it is the
contention of the Accused that her Cheque has been
22 Crl.Appeal No.25265/2024
misused by the Complainant in connection with the
transaction between her son-in-law and one C.M.
Faiz. Admittedly, in order to prove the same the
Accused has not at all placed any materials before
the Trial Court.
21. It is further pertinent to note here that
though the Appellant has taken up contention that
she is no way connected to Harmain Constructions
and her signed Cheque has been misused. But on
careful perusal of the contents of Ex.P.12 & Ex.P.13
and date of issuance of Ex.P.1 Cheque it is clear that
the Accused is also Partner of the said Firm and she
promised for repayment of advance amount and
accordingly she being the partner of the said Firm
took responsibility of returning the said amount to
the Complainant and has issued Ex.P.1 and another
Cheque in favour of the Complainant. Further it is
also clear from Ex.P.7 to Ex.P.14 that the Accused
and other partners of Harmain Constructions have
made flat registration and entered into Sale
Agreement and thereafter they did not deliver the
possession of the said flat and decided to return the
said advance amount and issued Ex.P.1. Further
23 Crl.Appeal No.25265/2024
Ex.P.14 & Ex.P.15 produced by the Complainant
further clarify that in view of the Accused and other
partners of the Harmain Constructions cheated the
Complainant Society, they filed complaint against
them and in this connection FIR has been registered.
Therefore, it is quite clear that there is no evidence to
substantiate the contents of appeal grounds and as
well as the defence taken by the Accused before this
Court and as well as before the Trial Court. So, it is a
mere allegation made against the Complainant to
escape from paying the surety Cheque amount to the
Complainant.
22. It is an admitted fact that the Complainant
before the Trial Court has produced additional
documents at Ex.P.9 Ex.P.16 after closing the
evidence of PW.1 by filing necessary application. As
aforesaid, Ex.P.9 to Ex.P.16 are material documents
to show that there was Sale Agreement taken place
between the Complainant and the Accused and as
well as cancellation of Sale Agreement and also the
Accused agreed to repay the advance amount etc.
Interestingly, the Accused has not at all cross-
examined PW.1 on all these documents inspite of
24 Crl.Appeal No.25265/2024
affording sufficient opportunities by the Trial Court.
There is no materials placed by the Accused to show
that she has paid the amount of Ex.P.1 Cheque as
agreed in Ex.P.13. Even the Accused has not at all
denied and disputed the Ex.P.1, contents of
promissory note and indemnity bond. So it is quite
clear that in order to discharge the legally payable
amount as mentioned in Ex.P.13 only the Accused
has issued Ex.P.1 and made it to dishonour. On the
other hand, the Accused has specifically taken up
defense that Ex.P.1 and another Cheque had been
obtained by force by the Complainant in the Police
Station etc. As aforesaid, in order to prove that the
said Cheque has been obtained by force is
concerned, no materials is forthcoming. Even the
Accused has failed to lead any defense evidence and
to produce any documents to substantiate her
defense. Therefore, looking from any angle, this
Court is of the opinion that since the Accused is one
of the partner of Harmain Constructions and she took
responsibility to repay the advance amount under
Ex.P.13 and accordingly issued Ex.P.1 and another
Cheque issued by her in favour of the Complainant.
So, the Accused cannot escape from the liability to
25 Crl.Appeal No.25265/2024
pay the Cheque amount, as such this Court opines
that the Trial Court has rightly convicted the
Accused.
23. Here in this case, the Accused not at all
denied and disputed the issuance of Ex.P.1 Cheque
in favour of the Complainant, hence the initial burden
which is casted upon the Complainant has been
discharged. Hence, there can be no doubt that there
is initial presumption which is available in favour of
the Complainant. But Section 139 of the Negotiable
Instruments Act is an example of reverse onus clause
that has been included in furtherance of the
legislative objective of improving the credibility of
Negotiable Instruments Act. The Accused can rebut
the presumption under Section 139 of the Negotiable
Instruments Act by placing sufficient materials by
raising probable defense which creates doubt about
the existence of legally enforceable debt or liability. If
the Accused able to raise such probable defense,
then the case of the Complainant can fail. No doubt,
the Accused cannot insist to lead defense evidence
and he can rely upon the materials submitted by the
Complainant.
26 Crl.Appeal No.25265/2024
24. Here in this case, the Accused is not able to
rebut the presumption which is available in favour of
the Complainant by placing any materials. As
aforesaid, the Accused has failed to cross-examine
PW.1 on Ex.P.9 to Ex.P.16 inspite of giving sufficient
opportunities. Even as aforesaid, all the materials
placed by the Complainant clearly establishes that
the Accused agreed to sell the property and
thereafter they did not sell the property and in this
connection they decided to return the advance
amount to the Complainant and accordingly the
Accused who is one of the partner of the Harmain
Constructions had issued the Cheque in favour of the
Complainant and made it to dishonor. So it is clear
that once the execution of Ex.P.1 Cheque is admitted
by the Accused, Section 139 of the Negotiable
Instruments Act mandates the presumption that she
issued the Cheque for discharge of legally payable
debt and it supports with the documentary evidence
placed by the Complainant in this case.
25. As opined by the Trial Court in its judgment,
the Accused has not at all disputed the contents of
Ex.P.12 & Ex.P.13 i.e., the Agreement of Sale and
27 Crl.Appeal No.25265/2024
Promissory Note and these documents are material
documents. Though the Accused contended that her
two Cheques in the Police Station has been forcibly
taken and by misusing one of the Cheque filed this
complaint etc. If really Ex.P.1 Cheque has been
forcibly taken with her, she had no impediment to
lodge complaint against the concern or against the
Complainant. So, it is evident from Ex.P.12 & Ex.P.13
with Ex.P.1 that only to discharge the legally payable
debt she had issued the Cheque and now she had
taken up different contentions and failed to prove the
same.
26. As aforesaid, inspite of service of Ex.P.3
legal notice Accused had not taken any pain to reply
the said notice by taking the above defense in her
reply notice. Such being the fact, only after filing of
this case, she had taken above defense and failed to
prove the same. Further on careful perusal of the
written arguments of the Complainant it is further
clear that so many Cheque bounce cases and so
many suits have been filed against the Accused and
other partners of the Harmain Constructions. So it is
further clarified that the Accused and its Partnership
28 Crl.Appeal No.25265/2024
Firm is in the habit of cheating of many persons by
entering into Sale Agreement assuring them to give
flats and thereafter not at all executed Sale Deed by
selling the flats to them etc. Further there is no
explanation from the Appellant about the so many
Cheque bounces cases and suits filed against her
and other partners of Harmain Constructions as
stated in the written arguments of the Learned
Counsel for the Respondent.
27. So, it appears that the Accused/ Appellant
has not at all approached this Court with clean
hands. Hence, this Court is of the opinion that the
Appellant has not made out any grounds to interfere
with the judgment passed by the Trial Court. On the
other hand, looking from any angle the Complainant
has proved its case by placing sufficient oral and
documentary evidence. Even the Trial Court also after
properly appreciating the oral and documentary
evidence placed by the Complainant has convicted the
Accused. On perusal of order sheet of Trial Court it is
clear that after the Complainant led further evidence,
the Accused remained absent and her counsel not
represented the case. Hence, the Trial Court
29 Crl.Appeal No.25265/2024
has properly observed that further cross of PW.1
taken as nil and after hearing the arguments on
behalf of the Complainant posted the case for
judgment. Hence, this Court can infer the transaction
between the parties and the Accused has issued
Cheque in favour of the Complainant for legally
enforceable debt. Therefore, there is no reason to
interfere with the judgment passed by the Trial
Court.
28. In so far as quantum of fine imposed by the
trial court is concerned, the Trial Court has imposed
total fine of Rs.1,50,00,000/- as against the Cheque
amount of Rs.1,00,00,000/-, keeping in view the
year of transaction, duration of litigation, cost of
litigation and interest on the outstanding amount etc.
Since the transaction between the parties was of the
year 2021 and the above case was disposed of by
the Trial Court on 2.7.2024 and keeping in view of
the duration of litigation and cost of litigation etc., the
Trial Court has rightly awarded fine of
Rs.1,50,00,000/-. Hence, there is no reason to
interfere with the quantum of fine imposed by the
trial court.
30 Crl.Appeal No.25265/2024
29. Thus, looking from any angle, the Accused
failed to establish any probable defence even on the
materials produced by the Complainant. Having
regard to the facts and circumstances of the case, the
Accused failed to substantiate his defence by
producing cogent evidence before this court. The
Trial Court by appreciating the evidence and
documents in a proper perspective and while
referring to the rulings of Hon’ble Apex Court has
rightly convicted the Accused for the offence
punishable U/Sec.138 of NI Act. In the absence of
any perversity or capriciousness while convicting the
Accused, there is no reason to interfere with the
Judgment of the trial court. Therefore no grounds
made out by the Accused to interfere with the
Judgment of conviction passed by the trial court.
Hence, Point Nos.1 and 2 are answered in the
Negative.
30. Point No.3:
In view of the findings on the above points the
appeal filed by the Appellant deserves to be
dismissed. Accordingly, I proceed to pass the
following:-
31 Crl.Appeal No.25265/2024
ORDER
The appeal filed by the Appellant
U/Sec.374 (3) of Cr.P.C., is hereby
dismissed with costs.
The Judgment of conviction passed
by the Learned XIV Addl. CJM,
Bengaluru, in CC.No.50189/2023, dtd.
2.7.2024, is hereby confirmed.
Send back the records with a copy
of this Judgment to the Trial Court.
(Dictated to the Stenographer, typed by her, corrected,
signed and then pronounced by me, in the open court on this
the 4th day of June 2025.)
[Sri. Sreepada N]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73).
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