IN THE COURT OF THE XIII ADDL.

CITY CIVIL & SESSIONS JUDGE

Mayohall unit: Bengaluru. (CCH:22)

Dated this the 28th day of October 2020

PRESENT: - Smt. Suvarna K. Mirji, B.Com., LL.B.

[Spl] XIII Addl. City Civil and
Sessions Judge, Bengaluru.
CRIMINAL APPEAL No.25224/2018
Appellants :- 1) M/s. Aryan Home Tec Private Limited,
Office at No.617, 15th
Cross, 100 feet Ring road,
J.P.Nagar, 6th Phase,
Bengaluru-560 078.
2) Bharath Sarakki Govinda Reddy
S/o Govinda Reddy, Aged about 42
years, Managing Director,
M/s Aryan Home Tec Private
Limited, No.617, 15th Cross, 100 feet
Ring road, J.P.Nagar, 6th Phase,
Bengaluru-560 078.
3) Smt.Rashmi W/o Bharath Sarakki
Govinda Reddy, D/o Govinda Reddy,
Aged about 35 years, No.617, 15th
Cross, 100 feet Ring road, J.P.Nagar,
6th Phase, Bengaluru-560 078.
(Rep by Sri.B & S

Associates) V/s

Respondent :- 1) Sri.A.Chittarajan Reddy,

Aged about 67 years,
R/at.No.2, 3rd Main, L.N.Reddy
Colony Basavanagar(extn),
Marathahalli Post, Bengaluru- 560
037.

(Rep by Sri. H.H.V. Advocate

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The appellants No.1 to 3 / accused have preferred

this Criminal Appeal U/S 374(3) of Cr.P.C., aggrieved by

the Judgment of conviction and sentence passed by the

LVIII Additional Chief Metropolitan Magistrate

Bengaluru in CC No.57177/2017 on 02/11/2018 for an

offence U/S 138 of Negotiable Instruments Act.

2) The appellants are the accused and respondent is

the Complainant before the court below. The rank of both

the parties are referred as referred before the court below.

3) The brief facts of the complaint is as under:-

The Complainant filed complaint U/S 200 of

Cr.PC against the accused for an offence punishable U/s

138 of Negotiable Instruments Act alleging that the

accused No.2 and 3 and the complainant are distant

relatives and friends and known to each other. The

accused is doing business in

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the name and style of M/s “Aryan Home Tech Private Limited”

which is registered company incorporated under the

companies Act. The accused No.2 is Managing the day to day

affairs of the company along with accused No.2/

Rashmi/Director. That due to the accused dire necessity and

need for improving the business of accused had sought to hand

loan Rs.10,00,000/-(Rupees Ten Lakhs only) during 2013 from

the complainant on the pretext that the accused will return the

said loan amount of Rs.10,00,000/- (Rupees Ten Lakhs only)

with interest to the complainant. The complainant believing the

accused and his assurance that he would return the same

promptly, parted with Rs.10,00,000/- (Rupees Ten Lakhs only)

by way of cheque of Rs.5,00,000/- dated 19/10/2013 bearing

No.559156 drawn on Oriental Bank of Commerce, Bengaluru

and remaining amount of Rs.5,00,000/- by way of cash to the

accused. Thus in this connection, the accused became liable to

pay an outstanding debt amount of Rs.10,00,000/-(Rupees Ten

Lakhs only) with

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interest accrued to the complainant. The complainant had been

demanding and requesting the accused to pay the said existing

debt. But the accused were postponing the payment on one

pretext or other, for the reasons best known to the accused.

Thereafter the accused No.2 being incharge of day to day

affairs of the said company, as Managing Director of accused

No.1 company to discharge the said debt issued two post dated

cheques during the first week of October 2016 as

a) Cheque bearing No.231814 dated 03/04/2017 drawn on

Bank of India, Jaya Prakash Nagar Branch, Bengaluru for

Rs.5,00,000/-(Rupees Five Lakhs Only), b) Cheque bearing

No.231815 dated 03/04/2017 drawn on Bank of India, Jaya

Prakash Nagar Branch, Bengaluru for Rs.5,00,000/-(Rupees

Five Lakhs Only) with an assurance that the said cheques will

be honoured.

The complainant further contention that he presented the said

cheques for encashment through his SB Account Maintained at

Oriental Bank of Commerce, Indiranagar

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Branch, New Thippasandra, Bengaluru-560075 for

encashment of cheque, on the accused assurance that the

said cheque would be honoured. On presentation of the

said cheque, the said cheque was dishonoured as per the

shara as Account Closed on 04/05/2017. That the

complainant got issued legal notice on 10/05/2017

through his counsel by RPAD and Professional courier

calling upon the accused to pay the said amount of

Rs.10,00,000/- (Rupees Ten Lakhs only), which

represented the cheque amount within statutory period

from the date of receipt of the legal notice. The notice

issued through RPAD to the accused was returned with

shara that “Addressee left and another notice was served

to the accused No.2 and 3. The complainant has issued

legal notice dated 26/05/2017 through his counsel

accused to alternative address. The accused neither

complied with the terms of the notice nor returned the

cheques amount. The accused has not repaid the legal

debt of Rs.10,00,000/- (Rupees Ten Lakhs Only) to the

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complainant which represents the cheques amount within

statutory period. Thereby on dishonor of the said cheques

issued for clearance of existing debt the accused has

committed an offence punishable U/S 138 and 142 of the

Negotiable Instruments Act. The complainant prays to

take cognizance of the offence and initiate necessary legal

proceedings in accordance with law against the accused

and pass such other orders as court deems fit.

4) The order dated 28/08/2017 the Magistrate Court it

is mentioned that in view of judgment reported in 2014

SCW 3462 between Indian Bank Association V/s Union

of India affidavit of complainant filed in lieu of

examination in chief treated as PW.1 and ExP1 to ExP7

are marked, then on the same day magistrate court taken

cognizance of the offence against the accused and issued

summons to the accused and the accused appeared before

the Magistrate court. The Magistrate Court recorded plea

of the accused No.2 & 3. The accused denied the

accusation and claimed to be tried.

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The complainant examined as PW.1 was cross examined

by accused side. The Magistrate court recorded statement

of accused U/S 313 Cr.P.C the incriminating evidence

came against the accused No.2 & 3, they denied the

contents of them same and they have not led defence

evidence. Then on hearing arguments the Magistrate

Court pronounced the judgment on 02/11/2018 convicting

accused No.2 and 3 for an offence U/S 138 of Negotiable

Instruments Act and sentenced to pay fine of Rs.2,500/-

each. In default to pay the fine amount the accused shall

undergo simple imprisonment of 3 months. Further

awarded compensation U/s 357 CRPC and accused No.2

& 3 are jointly and severally shall pay compensation of

Rs.12,87,000/- to the complainant. In case of default to

pay compensation, the accused No.2 and 3 shall under go

simple imprisonment of a period of 1 year each. The

assets of the accused No.1 company is liable for the

payment of compensation in case the accused No.2 and 3

failed to make the payment of

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aforesaid fine and compensation. Aggrieved by the

judgment of conviction for an offence U/S 138 of

Negotiable Instruments Act the appellant/accused has

preferred the present Appeal on the following grounds.

5) The appellant/accused submits that the impugned

judgment and sentence passed by the trail court is against

law and all probabilities of the case. Hence the impugned

judgment and sentence is liable to be set aside. The trail

court has been misdirected by the respondent and came to

the conclusion that the appellant has committed an

offence under section 138 of Negotiable Instrument Act.

As the fact that there was no enforceable debt and that the

appellant never issued the cheque in question to the

respondent for the commission of the cheque. Therefore

the dishonor of the cheque does not attract any penalty

under section 138 of Negotiable Instrument Act. The

appellant/accused submits that the present complaint is

not maintainable for the technicalities a) the alleged loan

had become time barred,

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when the disputed cheque was presented. b) Section 73 of

companies Act prohibits the loan transaction between an

individual and the company, thus Section 23 of Indian

Contract Act will apply c) Alleged transactions

contravene the Indian contract act Section 23. d) The

defence of accused that the amount which was paid by the

complainant was towards green park project and it was

with respect to investment in the said project and there

was no loan transaction and further after the lapse of 3

years in the month of February 2017 forcefully the

cheque were taken.

6) The appellants/accused further submits that trial

court has failed to consider the grounds, which were

brought on record that Time Barred Debt. The alleged

loan had become time barred, when the disputed cheque

was presented. A) According to the complainant the

alleged loan was given on 19/10/2013 and the cheque in

question is Dated 03/04/2017 and the cheque was

dishonoured on 03/05/2017 thus the cheque has been

presented to the bank after the lapse of

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three years and for this transaction the Indian Limitation

Act applies. B) The Hon'ble Kerala High Court in the

Judgment reported in 2001 CRL.L J 24 clearly held that,

Negotiable Instruments Act, Section 138-Dishonour of

cheque- cheque in question was issued in discharge of

time barred debt-No valid acknowledgement of debt

before expiry of three years from date of loan-Debt not

legally enforceable at the time of issuance of cheque

accused cannot be convicted for dishonor of cheque. C)

At para No.7 in the said judgment it has been held that,

explanation-For the purpose of this section-debt or other

liability means a legally enforceable debt or other

liability. D) Thus section 138 is attracted only if the

cheque is issued for the discharge of – a legally

enforceable debt or other liability. In this case, admittedly

the cheque in question was issued in discharge of a time

barred debt. It cannot be said that a time barred debt is a

legally enforceable debt. E) The Hon'ble High Court of

Karnataka in the Judgment of Crl.A No.545/20:10, has

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followed the aforesaid judgment and also the Hon'ble

Supreme court had accepted the judgment of the Kerala

High Court. Further the Hon'ble High Court of Karnataka

in the recent judgment i.e., in Crl.A No.302/2010, had

also agreed the proposition of Law laid down by Kerala

High court.

7) The appellant/accused further submits that alleged

transaction contravene the Indian Companies Act. That

Section 73 of company act prohibits the loan transaction

between an individual and the company, thus section 23

of Indian contract Act will apply. On the perusal of

section – 73 there is a clear prohibition on acceptance of

deposit from public. Now the meaning of deposits has

been, clearly defined under section 2 (31) of Companies

Act 2013- deposit includes any receipt of money by way

of deposit or loan or in any other form by a company, but

does not include such categories of amount as may be

prescribed in consultation with the Reserve Bank of India.

B) Thus the
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companies Act, prohibits the loan transaction between

individual/public and the company. C) Now when one act

declares a particular transaction is illegal, another act

cannot support the transaction, the Andhra Pradesh High

court in the Judgment reported in 2004 (2) DCR Page

No.1 has held the aforesaid legal aspect by observing

“once an act declares a particular transaction illegal-it

cannot be made legal for the purpose of other act-

acquittal upheld”.

8) The appellant/accused further submits that on the

perusal of the section 23 of Indian Contract Act, it can be

clearly seen that Section 23 defines as What

considerations and objects are lawful, and what not- The

consideration or object of an agreement is lawful unless-

It is forbidden by law, or is of such a nature that, if

permitted, it would defeat the provisions of any law. B)

Now what as to be seen is whether the Section 23 of

Indian Contract Act will be applicable to Negotiable

Instruments Act- the Hon'ble High Court of Karnataka in

Crl.P.No.1387/2011 in the order

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dated: 06/07/2018 has clearly laid down the precedent

that Indian Contract Act is applicable to Negotiable

Instruments Act as Para No.21 it has been held that “as

could be seen from the rulings citied by the learned

counsel for the petitioner and the provision of Section 23

of Indian Contract act, it is crystal clear that if on basis of

void contract and particularly if the consideration is

illegal, and consideration is for immoral or illegal

purposes or which is against the public policy, then the

whole transaction becomes void, the consideration paid in

such contract becomes an illegal consideration and when

it is said it is legal or unlawful consideration, it can be at

any stretch of imagination called as legally recoverable

debt”. C) Thus when the alleged transaction as contented

by the complainant is considered as illegal as per Section

73 of Companies Act, the said Debt or liability cannot be

enforced as it will not come under the scope of Section

138 of NI Act. Explanation- For the

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purposes of this Section, “debt or 3 there liability” means

a legally enforceable debt or other liability.

9) The appellant/accused further submits that on the

perusal of the disputed cheque, it can be seen that the

accused No.2 Bharath Reddy has signed the cheque and

accused No.3 is not the signatory to the cheque, just

because she is director of accused No.1, she cannot be

prosecuted in this case. The appellants /accused prays to

allow the appeal setting side the judgment and sentence

dated 02/11/2018 passed by LVII ACMM, Bengaluru in

CC.No.57177/2017 and acquit the appellants/accused.

10) The respondent appeared through counsel and

not filed objection to the appeal memo. The Lower Court

records secured.

11) The respondent counsel and filed memo with

citations. The appellant counsel not counsel argued.

Perused the records.

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12) The Points arise for my consideration are as under.

(1) Whether the interference of this

court in the judgment passed by the
LVII Additional Chief Metropolitan
Magistrate, Bangalore in C.C.No.
57177/2017 dated 02/11/2018 in
convicting the appellants / accused
for an offence U/S 138 of
Negotiable Instruments Act is
needed?
(2) What order?

13) My findings on the above Points are as

under: Point No.1: In Negative

Point No.2: See final order for following

:REASONS:

14) Point No.1:-

The complainant A.Chittaranjan Reddy is

examined as PW.1 before the Magistrate Court, he has

filed his affidavit in lieu of examination in chief and

deposed evidence that he and accused No.2 and 3 are

distant relatives
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and friends and known to each other. The accused is

doing business in the name and style of M/s “Aryan

Home Tech Private Limited” which is registered

company incorporated under the companies Act. The

accused No.2 is Managing the day to day affairs of the

company along with accused No.2/ Rashmi/Director.

That due to the accused dire necessity and need for

improving the business of accused had sought to hand

loan Rs.10,00,000/-(Rupees Ten Lakhs only) during 2013

from the complainant on the pretext that the accused will

return the said loan amount of Rs.10,00,000/- (Rupees

Ten Lakhs only) with interest to the complainant. That he

believed the accused and his assurance that he would

return the same promptly, parted with Rs.10,00,000/-

(Rupees Ten Lakhs only) by way of cheque of

Rs.5,00,000/- dated 19/10/2013 bearing No.559156

drawn on Oriental Bank of Commerce, Bengaluru and

remaining amount of Rs.5,00,000/- by way of cash to the

accused. Thus in this connection, the accused became

liable to pay an outstanding

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debt amount of Rs.10,00,000/-(Rupees Ten Lakhs only)

with interest accrued to him. He was demanding and

requesting the accused to pay the said existing debt. But

the accused were postponing the payment on one pretext

or other. The accused No.2 being in charge of day to day

affairs of the said company, as Managing Director of

accused No.1 company to discharge the said debt issued

two post dated cheques during the first week of October

2016 i.e., a Cheque bearing No.231814 dated 03/04/2017

drawn on Bank of India, Jaya Prakash Nagar Branch,

Bengaluru for Rs.5,00,000/-(Rupees Five Lakhs Only)

and another Cheque bearing No.231815 dated 03/04/2017

drawn on Bank of India, Jaya Prakash Nagar Branch,

Bengaluru for Rs.5,00,000/-(Rupees Five Lakhs Only)

with an assurance that the said cheques will be honoured.

He presented the said cheques for encashment through his

SB Account Maintained at Oriental Bank of Commerce,

Indiranagar Branch, New Thippasandra, Bengaluru-

560075 for
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encashment of cheque, on the accused assurance that the

said cheque would be honoured. On presentation of the

said cheque, the said cheque was dishonoured as per the

shara as Account Closed on 04/05/2017. He got issued

legal notice on 10/05/2017 through his counsel by RPAD

and Professional courier calling upon the accused to pay

the said amount of Rs.10,00,000/- (Rupees Ten Lakhs

only), which represented the cheque amount within

statutory period from the date of receipt of the legal

notice. The notice issued through RPAD to the accused

was returned with shara that “Addressee left and another

notice was served to the accused No.2 and 3. He has

issued legal notice dated 26/05/2017 through his counsel

to alternative address of accused. The accused neither

complied with the terms of the notice nor returned the

cheques amount and the accused has not repaid the legal

debt of Rs.10,00,000/- thereby the accused has committed

an offence punishable U/S 138 and

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142 of the Negotiable Instruments Act. The PW1 prays to

punish the accused as prayed in the complaint.

15) In support of oral evidence the complainant has

marked documents at ExP1 to ExP17. The ExP1 is

cheque bearing No.231814 dated 03/04/2017 for

Rs.5,00,000/- drawn on Bank of India Jayaprakash Nagar

Branch, Bangalore in the name of

complainant/Chittaranjan Reddy. The ExP2 is cheque

bearing No.231815 dated 03/04/2017 for Rs.5,00,000/-

drawn on Bank of India Jayaprakash Nagar Branch,

Bangalore in the name of complainant Chittaranjan

Reddy. In both ExP1 and ExP2 the signature found at

ExP1(a) and ExP2(a) is signed by the authorised

signatory of Aryan Home Tec.Pvt.Ltd., The ExP3 and

ExP4 are two endorsements issued by Oriental Bank of

Commerce, OPEC service branch,KHB colony,

Bangalore both dated 04/05/2017 addressed to

complainant regarding dishonour of cheque at ExP1 and

ExP2 respectively for the reason 'Account closed'. The

ExP5 is notice issued by the

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complainant to the accused intimating dishonour of

cheque and demanding payment of amount within 15

days from the date of receipt of notice. The ExP6 is postal

acknowledgement and ExP7 to ExP11 are registered

envelopes returned unserved on accused No.2 and 3. The

ExP12 is courier receipt and ExP13 is postal

acknowledgement for having served notice on accused

No.3. The ExP14 is another notice issued by the

complaint to the accused on 26/05/2017 calling upon the

accused to pay Rs.10,00,000/- debt amount payable to

him within 15 days from the date of receipt of notice. The

ExP15 is postal acknowledgement and ExP16 is sealed

registered cover returned unserved. The ExP17 is

acknowledgement for having served notice on accused

No.1.

16) That as per the averments made in the evidence of

complainant PW.1, accused No.2 and 3 are his distant

relatives and friends known to each other and accused is

doing business in the name and style of M/s. “Aryan

Home
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Tec Pvt. Ltd. The PW.1/complainant is cross examined

by the accused counsel wherein the relationship narrated

by the complainant that accused No.2 and 3 are his

distinct relatives of the complaint is not denied. Further

ExP1 and ExP2 cheques belongs to accused is also not

denied by the accused. It was suggested in the cross

examination of PW.1 and he deposed evidence that “It is

false to suggest that the accused has not at all issued the

cheques voluntarily to me. It is false to suggest that in the

month of February 2017 forcibly received the cheques

under coercion from the accused”. Therefore ExP1 and

ExP2 cheques belonging to the accused is admitted by the

accused. Whereas contention of the defence of the

accused is that the said cheques were forcibly taken by

the complainant from the accused. If at all the said

cheques were taken by the complainant under coercion,

there was option for the accused to take legal action

against the complainant. But they have not taken any

action. Hence the say of the accused is not proper to

accept.
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Further it is suggested in the cross examination to PW.1

by the accused counsel and PW.1 deposed evidence that

“I do not know that the accused was carrying out a project

by name Green Park Project. It is false to suggest that in

order to purchase an apartment in Green Park Project I

have paid Rs.10 lakhs on 19/10/2013 to accused No.1

company”. Further it is suggested in the cross

examination of PW.1 by accused counsel and PW.1

deposed evidence that “It is false to suggest that due to

my default in making the payment, the flat in Green Park

Project has not been transferred to me”. Therefore the

defence of the accused is that they are carrying out a

project by name Green Park and the complainant was

intended to purchase apartment and for that purpose he

has paid Rs.10,00,000/- to accused No.1 company on

19/10/2013. But the said defence taken by the accused is

not proved by way of oral and documentary evidence.

The complainant has submitted that accused No.2 and 3

have taken loan from him for their dire necessity and
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need for improving the business of accused and the said

loan amount is legally recoverable debt. Further in the

cross examination it is suggested to PW.1 by the accused

counsel and PW.1 deposed evidence that “It is true that

within three years from 19/10/2013 I have not filed any

case against the accused for the recovery of Rs.10 lakhs.

It is false to suggest that I have not at all advanced any

money to the accused and there is no loan transaction

whatsoever between me and accused as claimed in the

complaint” The accused counsel in the cross

examination of PW.1 nowhere suggested that the loan had

become time barred debt. Whereas the judgment of

Magistrate Court discloses that the accused advanced

arguments that the loan amount is time barred debt and

hence the complainant has no right to claim the amount.

On this aspect the Magistrate Court discussed in the

judgment and relied upon the decision of Hon'ble

Supreme Court in a case reported in AIR 2002 SC 985:

2002 AIR SCW 694 in a case of A.V.Murthy V/s. B.S.

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Nagabasavanna and further discussed that in the said

decision it is held that if the cheque has been issued

regarding the time barred debt then it attracts section 138

of

N.I. Act and also quoted the judgment that:-

“A cheque issued for discharge of debt

which s barred by law of limitation is
itself a promise within the meaning of sub
section 3 of session 35 of the Contract
Act. A Promise is an agreement and such
promise which is covered by section 25(3)
of Contract Act becomes enforceable
contract provided that the same is not
otherwise void under the Contract Act”

17) The Magistrate Court relying on the said decision

given opinion that when the promise created by a cheque

issued for discharge of time barred debt or liability is

certainly amounts to legally enforceable debt.

18) In this appeal the respondent counsel while

arguing upon the decision reported in (2010)11 Supreme

Court
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Cases 441 [Rangappa V/s. Sri Mohan] Criminal Appeal

No.1020 of 2010 dated 07/05/2010 wherein it is held:-

A. Negotiable Instruments Act, 1881 – S. 139

– Presumption under scope of – Held,
presumption mandated by S. 139 includes a
presumption that there exists a legally
enforceable debt or liability – However,
such presumption is rebuttable in nature –
Criminal Trial – Proof – Presumption –
Generally.

B. Negotiable Instruments Act, 1881 – Ss.

138 and 139 – Purpose, relative scope and
functioning of, explained – rebuttable
presumption under S. 139 – Standard of
proof for rebutting, stated – manner in
which defence can be raised by
accused,outlined – reliance on prosecution
materials by accused to prove defence, held,
permissible – Criminal rial – Proof –
Burden and Onus of proof – Reverse onus
statutory clauses – Interpretation of –
Standard of proof in such cases.

C. Negotiable Instruments Act, 1881 Ss.

138 and 139 – Dishonour of cheque –
Conviction
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for – matters to be considered by court –
Held, what courts have to consider is
whether ingredients of offence enumerated
ins. 138 have been met and if so, whether
accused was able to rebut statutory
presumption contemplated under section
139

D. Negotiable Instruments Act, 1881, S 138

– Dishonour of post dated cheque – On
account of 'Stop payment' instructions sent
by drawer to his bank – S. 138 if attracted –
Held, S. 138 can be attracted in such a case,
irrespective of insufficiency of funds in his
account.

E. Negotiable Instruments Act, 1881 – Ss.

138 and 139 – Dishonour of cheque –
Conviction confirmed – Appellant accused,
drawer of cheque in question, neither
raising a probable defence nor able to
contest existence of a legally enforceable
debt or liability – High Court reversing his
acquittal – Sustainability – Held, complaint
discloses primafacie existence of a legally
enforceable debt or liability - Since
appellant admitted that signature on the
cheque was his, statutory presumption
under s.
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139 comes into play and the same was not
rebutted even with regard to the materials
submitted by complainant – appellant not
able to prove 'lost cheque' theory – Apart
from not raising a probable defence,
appellant was also not able to contest the
existence of a legally enforceable debt or
liability – hence his conviction by High
Court, held, proper.

19) That cheques ExP1 and ExP2 belongs to accused

is not denied by the accused. Further defence taken by the

accused that the complainant by coercion obtained

cheques from him is not proved by way of documentary

evidence. Further defence of the accused that the amount

which was paid by the complainant was towards Green

Park Project and it was with respect to investment in the

said project and there was no loan transaction, and said

defence is also not proved by oral or documentary

evidence. Hence the accused failed to prove the defence

taken by them.
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20) The accused taken defence that on 19/10/2013 the

complainant paid Rs.10,00,000/- for purchase of flat in

Green Park Project. Therefore the receipt of

Rs.10,00,000/- by the accused from the complainant on

19/10/2013 admitted by the accused. But as per the

accused the said amount was received for purchase of Flat

in Green Park Project by the complainant, whereas the

complainant has submits that he has paid Rs.10,00,000/-

as loan to the accused to meet their dire necessity and

need for improving the business. Therefore if at all the

accused have not taken any loan from the complainant,

the question of issuing of ExP1 and ExP2 cheques does

not arise. But ExP1 and ExP2 cheques for Rs.5,00,000/-

each were given to the complainant by the accused.

Further ExP1(a) and ExP2(a) signature of accused No.2

on the cheques are also not disputed by the accused.

Hence the defence of the accused that the cheques were

taken by coercion by the complainant is not proper to

accept. The accused No.2 and 3 are running

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the business in the name and style of M/s “Aryan Home

Tech Private Limited” i.e., accused No.1. Further the

Magistrate court in its judgment properly relied upon

section 3 of Section 25 of Indian Contract Act and

citation referred AIR 2002 SC 985: 2002 AIR SCW 694

(A.V.Murthy V/S

B.S.Nagabasavanna) as discussed above applies to case in

hand. The appellants taken several grounds in appeal

memo, but inspite of maximum opportunity given, the

appellants counsel not agrued in this appeal.

21) As discussed above the accused failed to prove

that the cheques ExP1 and ExP2 were obtained by

coercion. Hence it is clear that the accused issued ExP1

and ExP2 cheques are issued for discharge of promised

loan amount to be payable. Hence the citation referred by

the respondent counsel in this appeal as discussed above

applies to the case in hand. That As per ExP5 notice was

issued by complainant to the accused on 10/05/2017 and

thereafter ExP14 notice issued by the complainant on

26/05/2017 were well within

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Crl.A.No.25224/201
the knowledge of the accused. But, they have not given

any reply to the notice. Hence the ingredients of section

138 of Negotiable Instruments Act complied with by the

complainant. Therefore the accused failed to prove the

defence taken in the cross examination of PW.1 as

discussed above. Hence the Magistrate Court in its

judgment properly appreciated oral and documentary

evidence and properly came to conclusion in convicting

the accused. Hence interference of this court in the

judgment passed by the Magistrate court is not needed.

Hence I answer Point No.1 in Negative.

22) Point No.2:-

In view of above discussion I proceed to pass the

following:

:ORDER:

The appeal filed U/s 374 (3) CRPC by

the appellants No.1 to 3/accused is hereby

dismissed.
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Crl.A.No.25224/201
It is ordered that the judgment passed

by the LVII Additional Chief Metropolitan

Magistrate (Mayohall Unit) Bangalore in

C.C.No.57177/2017 on 02/11/2018 is hereby

confirmed.

The order of suspension passed by this

court U/S 389 of Cr.PC stands cancelled.

No order as to costs.

Send back original records of CC

No.57177/2017 to the LVII Additional Chief

Metropolitan Magistrate Mayohall Unit

Bengaluru along with certified copy of

Judgment of this appeal.

(Dictated to the Judgment Writer, transcribed and typed by him,

then made on line correction by me, and taken print out and thereafter

again corrected, signed and pronounced by me in open court on this 28 th

day of October 2020).

(Smt.Suvarna K. Mirji)
XIII Addl.City Civil and Sessions
Judge, Mayohall Unit: Bengaluru
 3
Crl.A.No.25224/201

Judgment pronounced in open

court vide separate detailed
Judgment

The appeal U/s 374 (3) CRPC by the

appellants No.1 to 3/accused is hereby

dismissed.

It is ordered that the judgment passed

by the LVII Additional Chief Metropolitan

Magistrate (Mayohall Unit) Bangalore in

 3
Crl.A.No.25224/201
C.C.No.57177/2017 on 02/11/2018 is hereby

confirmed.

The order of suspension passed by this

court U/S 389 of Cr.PC stands cancelled.

No order as to costs.

Send back original records of CC

No.57177/2017 to the LVII Additional Chief

Metropolitan Magistrate Mayohall Unit

Bengaluru along with certified copy of

Judgment of this appeal.

XIII Addl.City Civil and Sessions

Judge, Mayohall Unit:
Bengaluru