Bangalore District Court
R.Umesh vs Kailash Enterprises Rep By Manjunath … on 22 May, 2026
KABC030317372017
IN THE COURT OF LI ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present: Sri. KRISHNA. J, B.A., LL.B.,
LI Addl. Chief Judicial Magistrate,
Bengaluru.
Dated this the 22nd day of May, 2026
C.C. No.13044/2017
COMPLAINANT: SRI. R. UMESH,
Son of N. Raviswaran,
Aged about 33 years,
R/at #153, 10th Main, 7th Sector,
H.S.R. Layout,
Bengaluru-560102.
(Reptd.By:Sri.Ananthapadmanabha.G.N,
Advocate)
V/s.
ACCUSED: KAILASH ENTERPRISES.,
C.C. Villa, No.46,
29th Cross, Ground Floor,
Near Intermediate Ring Road,
Ejipura Main Road,
Viveknagar, Benggaluru-560047
Rep. By Sri. Manjunatha Ramanna
proprietor,
Aged 36 years.
(Reptd. By: Sri.M.N.Raghu Advocate)
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:JUDGMENT:
The complainant has filed the complaint alleging an
offence punishable under Section 138 of NI Act against
accused
2. The brief case of the complainant is as hereunder:-
The complainant and accused are known to each
other from the year 2006. The accused approached the
complainant in the first week of January 2014 seeking
financial help to establish his new business namely
Kailash Enterprises. The complainant in response to the
request of accused, lent an amount of ₹3,50,000/- on
25.02.2014 through a cheque bearing number 38913
drawn on ICICI Bank, Langford Branch, Bengaluru and the
cheque amount credited to the account of accused. Again
in the first week of March 2014, accused requested the
complainant for additional financial assistance. In
response, the complainant lent ₹2,00,000/- on
24.03.2015, ₹2,00,000/- on 24.03.2015 and ₹1,00,000/-
on 25.03.2015 through online fund transfer. Accordingly,
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the complainant lent total amount of ₹8,50,000/- to the
accused and accused undertakes to repay the amount in
the month of March 2015. When the complainant
demanded for repayment in the month of March 2015, the
accused pleaded before the complainant that he is in need
of urgent money to complete the setup of his new business.
In response, the complainant lent additional amount of ₹
4,00,000/- in the last week of March and accused
undertaken to repay the total ₹12,50,000/- in the month of
March 2016. In the month of March 2016, the complainant
demanded for repayment. In reply, the accused pleaded his
inability and prayed one year time for repayment. In the
month of March 2017, when complainant demanded for
repayment, the accused issued two postdated cheque
bearing number 028061 dated 13.03.2017 for ₹8,50,000/-
and 028062 dated 13.03.2017 for ₹ 4,00,000/- both drawn
at Axis Bank Ltd., BTM Layout Branch, Bengaluru and
instructed the complainant to present the cheques on the
date mentioned on the cheques and he would keep
sufficient funds to honour them. Accordingly, the
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C.C.No.13044/2017
complainant presented the cheques for encashment on
14.03.2017 through his banker ICICI Bank, HSR Layout
Branch. They returned unpaid on 15.03.2017 for the
reason “funds insufficient” in accused account. Then
issued a notice on 23.03.2017 calling the accused to pay
the cheque amount. Despite receipt of the notice, the
accused fails to pay the cheque amount. Hence the
complaint.
3. The complainant filed the complaint on 28.04.2017
before XIXth ACJM, Bengaluru, sworn statement of the
complainant recorded on 28.04.2017. The complainant
filed affidavit in lieu of sworn statement, produced seven
documents as Ex.P1 to Ex.P.7. On the same day, on
perusal of sworn statement and documents, the said court
ordered to register a criminal case and issued summons
against accused. The accused appeared on 15.10.2019 and
obtained bail. On the same day, plea of accused recorded
he pleads not guilty claims to have defence. The accused
filed application under Section 145(2) of NI Act seeking
permission to cross-examine the complainant/witnesses.
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Hence, matter was posted for cross-examination of PW1.
The PW1 was partly cross-examined on 06.10.2021 and
adjourned for further cross-examination of PW1 on the
request of defence advocate. Later, advocate for
complainant files application on 16.08.2025, on behalf of
the complainant, seeking permission to appear through
SPA holder, on the ground the complainant/PW1
transferred to Chennai. In the meanwhile, the case has
been transferred to this court by order of Hon’ble CJM
Bengaluru, vide special notification No. ADM-1/22/2025
dated 02.12.2025. This court received the file on
20.12.2025, allowed the application filed by the
complainant seeking permission to appear through SPA
Holder. Then SPA Holder of the complainant examined as
PW2, produced 3 documents as Ex.P.8 to Ex.P.10. The
statement of accused recorded under Section 313 Cr.P.C
on 19.02.2026. The accused examined as DW1, produced
21 documents as Ex.D.1 to Ex.D21 and examined one
witness as D.W.2, close the side. Heard the arguments of
both side and perused the records. On perusal of records
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and upon hearing of the arguments, the court has raised
the points for consideration as follows:
POINTS
1) Whether the complainant proves beyond
reasonable doubt that the accused borrowed ₹
12,50,000/- from the complainant, to repay the
borrowed amount accused issued cheque
bearing number 028061 dated 13.03.2017 for
₹8,50,000/- and 028062 dated 13.03.2017 for ₹
4,00,000/- both drawn on Axis bank Ltd., BTM
layout Branch Bengaluru in favour of the
complainant, on their presentation for
encashment they returned unpaid for the reason
funds Insufficient on 15.03.2017, then the
complainant issued notice on 23.03.2017,
calling the accused to pay cheque amount.
Despite notice, accused fails to pay the cheque
amount, thereby committed the offence
punishable under Section 138 of N.I.Act.?
2) What Order?
4. My findings on the above points are:
Point No.1 : In the Negative
Point No.2 : As per final order,
for the following:
REASONS
5. Point No.1: The complainant, to prove his case,
examined himself as PW1, the affidavit filed in lieu of
sworn statement, treated as examination in chief of
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complainant /PW1, wherein he reiterated the complaint
averments stated supra and produced seven documents as
Ex.P.1 to Ex.P.7.
6. The Ex.P1 cheque bearing No.028061 dated
13.03.2017 drawn on Axis Bank Ltd., BTM layout branch,
Bengaluru for ₹8,50,000/- in the name of complainant.
The signature find on the cheque is marked as Ex.P1(a) on
the assertion of PW1 that the signature is of accused. The
Ex.P.3 cheque return memo dated 15.03.2017 issued by
ICICI Bank Ltd., discloses the cheque Ex.P.1 on
presentation for encashment returned unpaid for the
reason ‘funds insufficient’ in drawer’s account.
7. The Ex.P.2 cheque bearing No.028062 dated
13.03.2017 drawn on Axis Bank Ltd., BTM layout branch,
Bengaluru for ₹4,00,000/- in the name of complainant.
The signature find on the cheque is marked as Ex.P2(a) on
the assertion of PW1 that the signature is of accused. The
Ex.P.4 cheque return memo dated 15.03.2017 issued by
ICICI Bank Ltd., discloses the cheque Ex.P.2 on
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presentation for encashment returned unpaid for the
reason ‘funds insufficient’ in drawer’s account.
8. The Ex.P.5 office copy of the notice dated
23.03.2017 discloses the complainant on receipt of
dishonour of cheque Ex.P.1 and Ex.P.2, within thirty days,
issued a notice calling the accused to pay the cheque
amount in compliance of Sec.138 proviso (b) of N.I Act.,
The Ex.P.5(a) postal receipt having issued the notice by
registered post acknowledgment due. The Ex.P.6 copy of
the complaint filed before the postmaster, CMM court
complex on 15.04.2017 by the advocate for complainant,
having not received the registered post acknowledgment,
against the registered post sent under Ex.P.5(a). The
Ex.P.7 postal track consignment with respect to registered
post sent under Ex.P5(a) discloses the registered post sent
under Ex.P5(a) delivered to the addressee on 24.03.2017.
9. The PW1 in his cross-examination admitted on
22.04.2015 an amount of ₹25,505.55 is credited to his
account from the account of accused, through IMPS,
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C.C.No.13044/2017
further admitted on 06.05.2015, 13.06.2015, 16.07.2015,
18.08.2015, 04.09.2015, 09.10.2015, 09.11.2015,
07.12.2015 and 05.01.2016 an amount of ₹ 25,505/- each
credited to his account from the side of accused. It is
admitted, receipt of such amounts is not mentioned in the
complaint or in the notice. An attempt is made by PW1 to
clarify with respect to above said receipt of amounts,
stating he has lent the amount to accused after taking
amounts from his friends and to repay such amounts,
accused credited the said amounts to his bank account.
10. The PW2, SPA holder of the complainant, filed
affidavit in lieu of examination in chief, wherein, he
reiterated the complaint averments, produced three
documents as Ex.P.8 to Ex.P.10. The Ex.P.10 Special
Power of Attorney executed by the complainant in favour of
PW2 authorizing P.W.2 to appear in the case and conduct
the proceedings. The Ex.P.8 statement of account of
complainant held at ICICI Bank, for a period 01.02.2014 to
28.02.2014 discloses on 25.02.2014 an amount of
₹3,50,000/- is paid to Kailash Enterprises under Cheque
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C.C.No.13044/2017
No. 389123. The Ex.P.9 statement of account held at ICICI
Bank for a period 01.03.2014 to 31.03.2014 discloses on
21.03.2015 an amount of ₹2,00,000/-, on 22.03.2014 an
amount of ₹2,00,000/-, and on 24.03.2014 an amount of
₹1,00,000/-, is transferred from the account of the
complainant.
11. The PW2 in his cross-examination deposed, the
complainant was his neighbor and resided in the
downstairs of his house. He does not know about Kailash
Enterprises. The complainant is working in Samsung
company and transferred to Chennai. Only once accused
paid ₹ 25,000/- to the complainant.
12. The accused examined himself as DW1,
deposed he was working as Chief Accountant at Cells
Stream Company in the year 2012. The complainant used
to visit the office of the said company as an auditor. There
he came in contact with the complainant. After 2 years he
started own business in the name of Kailash Enterprises, a
proprietary concern. The complainant used to visit the
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C.C.No.13044/2017
office of the Kailash Enterprises located at Ejipura,
frequently. Accused borrowed ₹8,50,000/- from the
complainant and returned ₹ 8,38,000/-and he is due for ₹
12,000/- only. At the time of borrowing the amount the
accused assured to the complainant that he will return the
amount as much as possible on every month. After
payment of ₹ 8,38,000/-, the complainant demanded for
more amount, accused refused to pay more amount. Then
the complainant misusing the blank cheques issued by the
accused in the year 2014 for the purpose of security, filed
false case.
13. The accused, in support of his defence,
produced 21 documents as Ex.D.1 to Ex.D.21. The Ex.D.1
Statement of account of Kailash Enterprises held at Axis
bank limited, for a period 01.02.2014 to 28.02.2014
discloses on 25.02.2014 an amount of ₹3,50,000/-
credited to the account of accused through a cheque
bearing number 389123. The Ex.D.2, Statement of Account
of Kailash Enterprises held at Axis Bank Ltd., for a period
01.03.2014 to 31.03.2014 discloses on 22.03.2015 an
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amount of ₹2,00,000/-, on 23.03.2015 an amount of ₹
2,00,000 /-and on 24.03.2014 an amount of ₹ 1,00,000/-
credited to the account of accused. The Ex.D.3 to Ex.D.21
are the statements of account of Kailash Enterprises from
April 2014 to January 2016. The relevant parts of
statements as highlighted by the D.W.1 marked, as
Ex.D3(a) to Ex.D21(b). The Ex.D.6(a) discloses on
02.07.2014 Rs.5005/-, the Ex.D.11(c) discloses on
22.04.2015 Rs.30005/-, the Ex.D.12(a) discloses on
06.05.2015 Rs.25505/-, the Ex.D.13(a) discloses on
13.06.2015 Rs.25505/-, the Ex.D.14(a) discloses on
06.07.2015 Rs.25505/-, the Ex.D.15(a) discloses on
18.08.2015 Rs.25505/-, the Ex.D.16(a) discloses on
04.09.2015 Rs.25505/-, the Ex.D.17(a) discloses on
09.10.2015 Rs.25505/-, the Ex.D.18(a) discloses on
09.11.2015 Rs.25505/-, the Ex.D.19(a) discloses on
07.12.2015 Rs.25505/- and the Ex.D.20(a) discloses on
05.01.2016 Rs.25505/-, transferred through IMPS.
Further other transactions highlighted in Ex.D.3 to
Ex.D.21 discloses amount withdrawn from ATM and it is
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asserted by the D.W.1/accused the amount withdrawn and
paid to the complainant.
14. The DW1 in his cross-examination deposed he
is a M.Com., graduate, and he told the complainant at the
time of borrowing the amount, that he will repay the
amount as much as possible on monthly basis. He did not
give reply to the notice issued by the complainant and he
had no difficulty to issue reply. He had no difficulty to take
receipt after making payment with the complainant
towards repayment of loan amount. All the transactions
highlighted in Ex.D.3 to Ex.D.21 are the amounts
withdrawn from ATM.
15. The accused examined one Rambabu as DW2.
He deposed he is a driver of accused since 2012. He knows
the details of the transaction held between the complainant
and accused because whenever accused is paying amount
to anyone or taking amount from anyone, accused used to
take the D.W.2 along with him. Further he deposed he
knows the complainant has lent ₹8,00,000/- to the
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C.C.No.13044/2017
accused in the year 2013 and from 2014 to 2016 accused
repaid ₹ 20,000 to ₹ 25,000 on every month to the
complainant. Sometimes accused used to give his ATM
card to him and directed to withdraw the amount and to
pay to the complainant. Sometimes accused himself
withdrawn the amount and paid to the complainant in his
presence.
16. The DW2 in his cross-examination deposed
from 2014 to 2016 accused paid ₹ 25,000/- on every
month. He paid on behalf of accused about 20 to 25 times
and another paid about 20 to 25 times.
17. The complainant in his argument submitted the
accused admitted the cheque Ex.P.1 and Ex.P.2 are drawn
from the account maintained by him and signature find on
the cheque is of the accused. Therefore, the presumption
contemplated under Section 139 of NI Act., that the cheque
is issued for illegally recoverable debt or discharge of
liability in whole or in part, is in favour of the complainant.
In addition to that accused admitted he borrowed
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₹8,50,000 from the complainant. The cheque amounts put
together comes at ₹ 12,50,000. In the circumstances the
presumption is the accused borrowed Rs.12,50,000/- and
issued the cheque for payment of ₹ 12,50,000/- Further
Ex.P.8 bank account statement discloses on 25.02.2014 an
amount of ₹ 3,50,000 credited to the account of accused
and it is corroborated by the document produced by
accused i.e. Ex.D.1 account statement of accused. The
Ex.P.9 discloses on 22.03.2014 an amount of ₹ 2,00,000/-,
on 24.03.2015 an amount of ₹2,00,000/- and on
25.03.2015 an amount of ₹1,00,000/- is credited to the
account of accused and it is corroborated by the document
produced by accused as Ex.D.2 account statement of
accused. The accused contended he borrowed
Rs.8,50,000/- and repaid Rs.8,38,000/- and due for
₹12,000/- only. To evidence the repayment he has
produced Ex.D.3 to Ex.D.21. He himself admitted the
transactions highlighted in Ex.D.3 to Ex.D.21 are the
amounts withdrawn from the ATM from his account, but
the same amount is paid to the complainant is not proved
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C.C.No.13044/2017
and only on an oral assertion of accused and DW2 same is
not acceptable. During the cross-examination of PW1, it is
suggested by the accused that accused has transferred the
amount to the complainant account by bank transfer. On
the other hand in his examination in chief he deposed he
has withdrawn the amount from his bank through ATM
and same is paid to the accused to complainant regularly.
It is totally contrary to the case of the accused. The DW2 in
his examination in chief deposed complainant lent an
amount of ₹ 8,00,000/- in the year 2013 but the
transaction started in the year 2014. Therefore one can
infer that DW2 has no information with respect to
transaction held between complainant and accused.
Further DW2 is the driver of accused and interested
witness. Therefore, evidence of D.W.2 is not reliable. With
respect to GPA holder appearing on behalf of complainant
it is argued the accused admitted the receipt loan,
therefore the knowledge of PA holder with respect to
transaction is immaterial.
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18. The accused advocate argued that out of
Rs.8,50,000/- borrowed by the accused Rs.8,38,000/- is
repaid, the balance is only Rs.12,000/-. The repayment is
proved through Ex.D3 to Ex.D21. Further the complainant
fails to prove the alleged lending of Rs.4,00,000/- in the
month of March 2015. When Rs.8,38,000/- is repaid out of
Rs.8,50,000/- and complainant fails to prove the alleged
lending of Rs.4,00,000/- the cheque Ex.P1 and Ex.P2 does
not represent the total balance due by the accused to the
complainant. Therefore, offence punishable u/s 138 is not
made out. It is argued the complainant examined as PW1
appeared for part cross examination subsequently
appeared through GPA holder who is not aware of the
transaction. Therefore, the evidence of complainant / PW1
and his GPA holder PW2 is not acceptable and complaint is
liable to be dismissed. In support of this contention
accused relied upon the judgment of Hon’ble Supreme
Court in a case between A.C. Narayanan v/s State of
Maharashtra. It is argued that the first payment of loan
i.e. Rs.3,50,000/- is lent on 25/02/2014 and the cheque
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Ex.P1 and P2 issued to the date 13/03/2017 i.e. to the
date falling after lapse of 3 years from the date of loan. It
is issued for time barred debt, the cheques issued for time
barred debt without written promise u/s 25(3) of Contract
Act., the complaint is not maintainable. Accordingly, prays
to dismiss the complaint.
19. On perusal of oral and documentary evidence
and upon hearing of the parties the complainant and
accused are known to each other, the cheque Ex.P1 and
Ex.P.2 drawn from the account maintained by the accused
and signature find on the cheque Ex.P1 and Ex.P.2 is of
accused and the cheques dishonoured for the reason
insufficient fund is not in dispute. Once it is established
the cheque drawn from the account maintained by the
accused, is issued in favour of the complainant the
presumption contemplated u/s 139 of NI Act that the
cheque is issued for legally recoverable debt or discharge of
liability, in whole or part is in favour of the complainant.
When presumption raised in favour of complainant the
burden shifts on accused to rebut the presumption that
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the cheques are not issued towards discharge of liability or
legally recoverable debt or no such debt is in existence, by
placing probable defence.
20. The accused admitted he borrowed
Rs.8,50,000/-. The Ex.P8, Ex.P9, Ex.D1 and Ex.D2
discloses out of said Rs.8,50,000/- Rs.3,50,000/- paid on
25/02/2014 through cheque, Rs.2,00,000/- paid on
22/03/2014, Rs.2,00,000/- paid on 24/03/2014 and
Rs.1,00,000/- paid on 25/03/2014 through bank
transfers. With respect to payment of Rs.4,00,000/- by
cash in the month of March 2015 except the oral assertion
by the complainant no evidence is placed on record. On the
other hand the accused has disputed the same. However,
upon considering the amount mentioned in cheque Ex.P1
and Ex.P2 i.e., Rs.8,50,000/- and Rs.4,00,000/- the court
is of the considered opinion the accused borrowed
Rs.12,50,000/- including the amount paid by cash in the
month of March 2015 because once issuance of cheque is
admitted the presumption is in favour of complainant.
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21. It is the case of accused that he has repaid
Rs.8,38,000/- to prove the same he relied upon Ex.D3 to
Ex.D21 they discloses the accused has transferred
Rs.25,500/- each for about 10 times to the complainant
and the PW1 admitted the same in his cross examination.
The PW1 has made an effort to give clarification with
respect to said payments stating he has lent the amount to
the accused after borrowing from his friends and accused
to repay the said amount has transferred the said amount
to his account. It is relevant to note during the cross-
examination of DW1 the complainant fails to ask the DW1
about the alleged lending of amount after borrowing from
his friends and repayment made by the accused. Therefore,
the feeble attempt made by the complainant with respect to
receipt of said amounts to show they are not related to loan
transaction held with accused, is not acceptable. It is
relevant to note the accused suggested to PW1 that the
said amount transferred on monthly basis is towards
interest but PW1 denied the same. Therefore, with the help
of IMPS transfer amount find in Ex.D3 to Ex.D21 and
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admission of PW1 the court is of the considered opinion
that accused has repaid Rs.2,50,000/- and odd to the
complainant till January 2016.
22. It is the case of accused the amounts
withdrawn from ATM find in Ex.D3 to Ex.D21 are
withdrawn to pay in favour of the complainant and it is
paid to the complainant is not acceptable because the
Ex.D3 to Ex.D21 and admission of PW1 clearly discloses
the accused has transferred more than Rs.2,50,000/- to
the complainant through account transfer. Then why he
withdrawn the amount from ATM and paid cash to the
complainant is the question arose for consideration. The
accused has fails to give a plausible answer to the said
question. Therefore, the amount withdrawn from ATM is
paid to complainant is not acceptable. The evidence of
DW2 do not inspire any confidence because firstly he is the
driver of accused from 2012, according to him loan
transaction started from the year 2013 but loan
transaction started from February 2014. In his
examination in chief he deposed he withdrawn amount
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from ATM some time and paid to complainant and some
time accused withdrawn and paid to complainant. In his
cross examination he deposed he and some other persons
have withdrawn the amount and paid to complainant for
about 20 to 25 times each. Therefore, the evidence of DW2
with respect to repayment is not acceptable.
23. Though accused contended he has repaid
Rs.8,38,000/-, borrowed only Rs.8,50,000/- and due for
Rs.12,000/- only, it is established accused borrowed
Rs.12,50,000/- and proved more than Rs.2,50,000/- is
repaid before the date of presentation of cheque Ex.P1 and
Ex.P2 it means to the date of presentation of cheque the
amount due is below Rs.10,00,000/- not the amount find
on the cheques.
24. At this stage it is worth to note the Judgment
of Hon’ble Supreme Court, in the case of Dashrathbhai
Trikambhai Patel, wherein the moot question arose for
decision was “whether the offence under Section 138 of NI
Act., would deemed to be committed if the cheque that is
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dishonored does not represent the enforceable debt at the
time of encashment?” The Hon’ble Supreme Court
summarized the Discussions at the end as hereunder:
i) For the commission of an offence under Section
138, the cheque that is dishonored must represent a
legally enforceable debt on the date of maturity or
presentation.
ii) If the drawer of the cheque pays a part or whole of
the sum between the period when the cheque is drawn and
when it is encashed upon maturity, then the legally
enforceable debt on the date of maturity could not be the
sum represented on the cheque.
iii) When a part or whole of the sum represented on
the cheque is paid by the drawer of the cheque, it must be
endorsed on the cheque as prescribed in Section 56 of the
Act. The cheque endorsed with the payment made may be
used to negotiate the balance, if any. If the cheque that is
endorsed is dishonored, when it is sought to be encashed
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C.C.No.13044/2017upon maturity, then the offence under Section 138 stands
attaracted.
25. In view of the above referred judgment since
accused is able to prove he paid more than Rs.2,50,000/-
before the date of presentation of cheque, the cheques do
not represent the out standing due as on the date of
presentation of cheque. Therefore, sec.138 of NI Act is not
attracted.
26. It is the contention of the accused that the
complainant/ PW1 has not appeared for complete cross-
examination, therefore, his evidence is not acceptable for
want of complete cross-examination. Further, the PW2
Power of Attorney holder is not aware of the transaction,
his evidence is liable to be rejected. When the evidence of
both is rejected the complaint is liable to be rejected. It is
true after parted cross-examination complainant fails to
appear for further cross examination and appeared
through P.A holder PW2. The evidence PW2 clearly
discloses he is not personally aware of the transaction he is
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just a friend of complainant, he is not a competent to give
evidence on behalf of complainant. The argument of
complainant that the accused admitted the cheque drawn
from his account, signature find on the cheque and receipt
of Rs.8,50,000/- therefore, it is not necessary that Power of
Attorney holder required to have the personal knowledge of
the transaction. The arguments of complainant some
extent is acceptable, but when accused is contending he
has paid the entire amount by paying cash on monthly
basis it is necessary on the part of the complainant to
appear before the court to accept the same or deny or in
the alternative to appear through a Power of Attorney
holder who is personally aware of the transaction.
Therefore, the arguments of the complainant is not
acceptable. For the discussion above the evidence of PW1
and PW2 is not acceptable and liable to be rejected.
27. It is the arguments of the accused that the first
payment of loan is made on 25/02/2014 and cheque
issued to the date 13/03/2017 i.e. to the date after 3
years, to the date of cheque the loan became time barred
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C.C.No.13044/2017
one, mere issuance of cheque to a time barred debt is not a
legally recoverable debt. On perusal of complaint it is the
case of the complainant in the first week of January 2014
accused approached the complainant for financial
assistance, on 25/02/2014 received Rs.3,50,000/-
through a cheque, again in the first week of March 2014 he
approached the complainant for additional financial
assistance borrowed Rs.5,00,000/- between 22/03/2024
to 25/03/2024, agreed to repay total Rs.8,50,000/- in the
month of March 2015. When the complainant demanded
for repayment in the month of March 2015 accused again
asked for financial assistance and received Rs.4,00,000/-,
agreed to repay total Rs.12,50,000/- in the month of
March 2016, in the month of March 2016 complainant
demanded for repayment accused requested for one year to
repay, finally in the month of March 2017 the cheques
were issued. When one or more than one payments are
made, then have to be treated different and independent
loans made on different dates and repayable on the
respective dates on which the loan was made and the
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article 19 of Limitation Act is made applicable. The Article
19 applies to ordinary loans where no special agreement is
made as to the time when the amount shall be repayable. It
applies to a simple and repayable loan forthwith. Where
the loan is made on the basis of an agreement fixing a
certain date for repayment it is Article 55 would apply. In
view of the Article 55 of Limitation Act., limitation starts
from the date agreed to repay the loan amount. In the case
on the date of payment of Rs.3,50,000/- whether it is
agreed to pay on certain date is not forthcoming in the
complaint or evidence. When Rs.5,00,000/- received
between 22/03/2014 to 25/03/2014 it is agreed by the
accused to pay entire Rs.8,50,000/- after one year and it is
accepted by complainant. There both have agreed to defer
the repayment for one year. Again in the month of March
2015, accused received Rs.4,00,000/- agreed to pay total
Rs.12,50,000/- after one year and complainant accepted
the same. Thereby the repayment is deferred mutually.
Again in the month of March 2016 both mutually deferred
repayment till March 2017. When having time is
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C.C.No.13044/2017
specifically scheduled for repayment and periodically
postponed on mutual concent the limitation starts from
March 2017 only not from 25/02/2014. Therefore, the
arguments of accused is not acceptable. Further, as
admitted by the accused till 05/01/2016 he has repaid
Rs.25,000/- every month thereby the limitation revives, on
this ground also the arguments of accused that the cheque
issued for time barred debt is not acceptable.
28. As stated supra the evidence of PW1 is not
acceptable for want of complete examination and evidence
of PW2 also not acceptable for want of personal knowledge
about the transaction. Further, even evidence of PW1 and
PW2 accepted it is established the accused paid
Rs.2,50,000/- and odd to the complainant before
presentation of cheque for encashment and the cheques do
not represent the outstanding liability as on the date of
presentation of cheque and the outstanding liability as on
the presentation of cheque is below the amount mentioned
on the cheques. Hence, no offence is made out against
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C.C.No.13044/2017
accused u/s 138 of NI Act and I answer point No.1 in the
negative.
29. Point No.2: As stated supra the complainant
has failed to prove the guilt of the accused. hence the
following:-
ORDER
Acting under Section 255(1) of Cr.P.C.,
the accused is hereby acquitted for the
offence punishable u/S.138 of Negotiable
Instruments Act.,The bail bond executed by accused will be
discharged after appeal period is over.
(Directly dictated to Stenographer on computer, computerized by him, corrected and then
pronounced by me in the open court on this the 22nd day of May 2026)(KRISHNA.J)
LI ADDL. C.J.M., BENGALURU.
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Sri. R. Umesh
LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 & 2 : 2 Original Cheques.
Ex.P-1(a) & 2(a) : Signatures
Ex.P-3 & 4 : Cheque return Memo
Ex.P-5 : Legal notice
Ex.P-5(a) : Postal receipt
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C.C.No.13044/2017
Ex.P-6 : Letter
Ex.P-7 : Postal Track consignment
Ex.P-8 & 9 : Account statements
Ex.P-10 : Special Power of Attorney
Ex.P-11 : Postal receipts
Ex.P-12 to 17 : Postal Track Consignments
Ex.P-18 : Placing demand for materials
Ex.P-19 : Three purchase orders
Ex.P-20 : Three Tax invoicesLIST OF WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : Manjunatha R
DW-2 : S A Rambabu
LIST OF DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D-1 to 21 : Certified copy of Business
Ex.D1(a) to 21(a)(b): Part of the Identified business(KRISHNA.J)
LI ADDL. C.J.M., BENGALURU.
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