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IN THE COURT OF THE PRINCIPAL CITY CIVIL & SESSIONS

JUDGE AT BANGALORE

(MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 374[3](a) OF

CODE OF CRIMINAL PROCEDURE)

IN THE COURT OF XVIII ADDITIONAL CHIEF METROPOLITIAN

MAGISTRATE BENGALURU
CC No.15076/2017

IN THE COURT OF THE PRINCIPAL CITY CIVIL & SESSIONS

JUDGE AT BANGALORE

Criminal Appeal / 2021

Rank of the parties in

Trial court Appellate Court

Between:

N.C. Anand Reddy,

Proprietor,
Jai Maruthi Borewells,
Office at No.26, 2nd Floor,
Crystal Dew HMR Shop,
No.1, Hennur Bande,
Kalyanagara Post,
Bengaluru -43

Opp: Hasanth PU and Degree College,

Hennur, Bande, Hennur Bande,
Kalyanagara Post,
Bengauru -2 Accused/ Appellant

And:

C.N. Shivaramareddy,
S/o late Narayanareddy,
Aged about 60 years,
R/at Chokkanahalli village,
Jakkur Post, Yelahanka Hobli,
Bangalore -64 Complainant/ Respondent
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MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 374(3) (a)

OF THE CODE OF CRIMINAL PROCEDURE

The appellant named above respectfully submits as follows:-

1. The address of the appellant for purpose of service of court notice,

summons, etc., from this Hon’ble Court is as stated in the cause title
and the appellant may also be notified through his counsel
Sri. Kapil dev C Ullal, Advocate, No. 4, ‘Gawai Square’, Union Street,
Off Infantry Road, Bangalore : 560 001.

2. That the address of the Respondent for the similar purpose is as

shown in the cause title above.

3. Being aggrieved by the impugned judgment dated 06.01.2021 passed

by the learned Magistrate XVIII Additional Chief Metropolitian
Magistrate at Bengaluru in CC No.15076/2017 in convicting the
accused for the offence punishable under Section 138 of Negotiable
Instrument Act and as per the order dated 6.1.2021 acting under
Section 255 (2) of Cr.P.C, accused is convicted for the offence
punishable under Section 138 of Negotiable Instruments Act 1881.
The accused is sentenced to pay fine of Rs.22,20,000/- (Rupees
Twenty Two Lakhs Twenty Thousand Only) and in default shall
undergo simple imprisonment for a period of Two (2) years. Acting
under Section 357 (1) (b) of Cr.P.C, out of the fine amount the
complainant is entitled for Rs.22,00,000/- (Rupees Twenty Two
Lakhs Only) fine amount as compensation. Acting under Section 357
(1) (a) of Cr.P.C, the balance amount of Rs.20,000/- (Rupees Twenty
Thousand Only) is defrayed to the State for the expenses incurred in
the prosecution.

4. The appellant being aggrieved by the said impugned judgment has

preferred the above appeal on the following among other grounds:
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5. For the purpose of convenience, the appellant craves leave of this

Hon’ble Court to refer to the ranking of the parties as they were
referred to at the trial court i.e., the appellant as Accused and
Respondent as the Complainant.

FACTS OF THE CASE

6. The complainant filed a complaint under Section 200 of Cr.P.C

against the accused for the alleged offence punishable under Section
138 of N.I. Act contending that the accused has become friend of the
complainant through another his friends Sri.T.Venkataramareddy
the permanent resident of same village i.e., Chokkanahalli Village.
The accused is running the business of digging the borewells under
the name and style of Sri.Jai Maruthi Borewells and having its office
at Bengaluru. He and his family members have sold the property
bearing Sy.No.32/1 to an extent of 8 acres situated above said village
for the purpose of solemnize the marriage of his daughter. As such
the complainant having funds for the aforesaid purpose. The accused
has well aware about the same in the month of December 2016 the
accused through T.Venkataramareddy common friend to both the
complainant and the accused approached the complainant for
financial assistance of Rs.13,50,000/- for the purpose of purchase of
accessories and spare parts pertaining to his business. However on
the 3 CC.No.15076-2017 assurance of aforesaid
T.Venkataramareddy the complainant has agreed to pay sum of
Rs.13,50,000/-. As such the complainant has paid the said sum of
Rs.13,50,000/- by way of cash to the accused . While receiving the
said amount the accused has promised and assured the complainant
that within one month he will return the said amount to the
complainant. Further, the accused has issued the cheque bearing
No.000009 drawn on Allahabad Bank, Kalyanagara Branch,
Bengaluru-43. When the complainant presented the above said
cheque for encashment, it was dishonored with an endorsement
“Funds Insufficient” on 25/4/2017.
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7. Thereafter the complainant issued legal notice on 03/05/2017

calling upon the accused to make payment of the dishonoured
cheque amount and the said notice was duly served on the accused.
In spite of service of notice, the accused has not complied the same.
Hence, complainant is constrained to file this private complaint for
the said relief.

8. After receipt of complaint, the court has taken cognizance of the

alleged offence and sworn statement of complainant was recorded
and process was issued to the accused. He was appeared through his
counsel and enlarged on bail and all papers were supplied to him.
The substance of plea was recorded and read over and explained in
Kannada language to the accused, to which he pleads not guilty and
claimed to be tried.

9. In order to prove the complainant case, complainant was examined

as P.W.1 and he exhibited Ex.P.1 to Ex.P.7 documents and he also
examined one witness by name T.Venkataramareddy as PW2 and
closed his side. Both P.W.1 and P.W.2 were cross examined by the
counsel for the Accused and thereafter the Accused led his evidence
and Accused was examined as D.W.1 and he was cross examined by
the counsel for the complainant. Statedment of the accused was
recorded under Section 313 of the Code of Criminal Procedure and
the matter was posted for arguments. Arguments were put forth by
both counsels for the Complainant and the Accused. Thereafter the
Trial court was pleased to pass the impugned judgement dated
06.01.2021.

10. Being aggrieved by the said judgement and Conviction order

dated 06.01.2021 passed by the Learned Magistrate XVIII Additional
Chief Metropolitian Magistrate at Bengaluru in CC No.15076/2017.
The Accused has been arrested on conviction warrant on …………….
And is presently house at Bangalore Central Jail. The appellant is
presenting this appeal on the following grounds.
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GROUNDS

11. At the outset the Judgement passed by the Learned Magistrate is

not maintainable either in law or on facts. Hence, the same is
liable to be set aside by this Hon’ble Court.

12. The order of Judgment of convicting the accused passed by the

courts below is unsustainable either at law or on facts of the case.

13. The impugned judgment passed by the courts below is

unsustainable in law contrary to the material evidence placed on
record by the appellant and consideration of irrelevant material
and evidence placed on record by the respondent.

14. The finding recorded by the courts below is patently perverse and
erroneous and same is not inconsonance of Section 118 read with
Section 139 of NI Act. The finding of the court below is contrary to
the material available on record.

15. The court below has taken note irrelevant issue while passing the
impugned judgment.

16. The Court below has grossly erred in coming to conclusion that
respondent is guilty of offences punishable u/s 138 of N.l Act. The
impugned order is passed on the basis of surmises and
conjectures. The trial Court has not properly weighed the evidence
le in proper legal perspective and accepted the case of accused.

17. The court below has not appreciated evidence based on settled
principles of law.
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18. It is submitted that the complainant has failed to show that he

had the capacity to lend huge amount of Rs.13,50,000/- to the
respondent.

19. It is significate to note that the complainant states in his cross

examination that from the afore mentioned sale transaction with
respect to his property the complaint got Rs. 80,00,000/- which was
his share in the family property and that the sale deed was executed
5 years ago as per deposition dated 17.01.2018 in para 2, page 8 of
cross examination. He also stated further that his share of payment
was paid to him by Cheque. On being confronted about the bank
statement the complainant stated that he has no impediment in
producing his bank statement to show that he had received amount
from sale as claimed by him. The complainant has produced Exhibit
P6 in support of his case. Exhibit P6 is the Bank statement of the
complainant. The statement is produced for a period from
01.04.2016 to 10.03.2017. Firstly, if the property was sold in the
year 2013-2014 the complainant ought to have produced his bank
passbook or bank statement from the years 2013-2014. This would
have shown the credit and debit in the account of the complainant.
The complainant wanted to hide facts from this Hon’ble court and
hence selectively produced the bank statement for a brief period from
01.04.2016 to 10.03.2017. It may be seen that as per this document
the amount credited into the said account in the first half of 2016
while as per the deposition made on 17.01.2018 in para 2, page 8 of
cross examination the sale deed was executed 5 years ago in the year
2013-2014. The failure on the part of the complainant to produce the
Sale Deed and the Bank Passbook or statement from the year 2013-
2014 is fatal to the case of the complainant. As per Exhibit P6 - the
Bank Statement of the complainant a sum of Rs. 20,00,000/- and
Rs. 25,00,000/- was credited into the account of the complainant on
May or June 2016 from that time onwards the amount credited was
never withdrawn till March 2017, this clearly establishes that the
complainant never had any financial transaction between 2016 to
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2017 with anyone with respect to this Bank Account. The

complainant in his haste did notice to withdrawal by way of Cheque
in May or June of 2016 was immediately reversed and credited back
to the account as there was a mismatch in the signature in Cheque
No. 0093390 as per the Bank Statement at Exhibit P6. Hence this
supports the case of the accused that there was no transaction on
any kind with the complainant. A careful reading of Exhibit P6 would
show that the complainant never made any withdrawals from his
account. The contents of the affidavit of complainant and the
deposition of the complainant during cross examination are in
consistent and contrary to the contents of Exhibit P6. Throughout
the trial, the Complainant has not offered any explanation or
justification with regard to the contradictory statements with regard
to the so-called deposit or withdrawal of alleged sum of
Rs.13,50,000/- from the bank, appearing in his affidavit as well as in
Exhibit P6.

20. The complaint vide deposition dated 17-01-2018 page 8 Para 5

stated that the Cheque was written in front of him. However when he
was confronted with the fact that accused doenot know to write
English he replies that he is not aware about it. If the accused really
wrote the amount and signed the Cheque then complainant has to
maintain that the Cheque was written in front of him hence accused
knows English. When confronted about different ink and handwriting
on the Cheque in question the complainant simply states that the
ink use is all one and the same. Further on 21.06.2018 PW 2
Venkatrama Reddy who was allegedly present at the time of handing
over of cheque was cross examined. Page 5 Para 3 of the cross
examination the witness states that the ink used may be different
but improving the earlier version he states that the Cheque was
already filled when the accused brought it for handing over to the
complainant. Now form the deposition of the complainant and PW 2,
there are two contrasting versions one the version of the complainant
who stated that the Cheques were filled in front of him and the
second version of PW 2 who states that the Cheque was filled before
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it was brought for handing over to the complainant. The thorough

reading of Para 1 of the legal notice, Para 4 last 3 lines of the
complaint and Para 4 of the affidavit - gives a completely new
version wherein it is claimed that when the loan amount was handed
over to the accused at that time itself the Cheque was issued to the
complainant by the accused. If this were to be true then the Cheque
ought to have been invalid in April 2017. This establishes beyond all
doubt that the Cheque has been tampered with. All the details on the
cheque is altered. This also exposes the fraud being played against
the accused.

21. Since, the PW 2 claims to involved a neutral third person one Mr.
M N Reddy who was aware of the transaction, the Complainant could
have conveniently summoned and examined the said M.N Reddy, to
support his story of having given Rs. 13,50,000/- to the Accused.
The Complainant has not cited the name of said M.N Reddy in the
list of witness. Further, it has never been the case of Complainant
that the alleged sum of Rs. 13,50,000/- was paid to the Accused,
either in the presence of M.N Reddy or any other person. Non
examination of the said M.N Reddy by the Complainant, seriously
creates the reasonable doubt about her tall claim of having paid the
alleged sum of Rs.13,50,000/- to the Accused.

22. It is that case of the accused that the complainant is unknown to

him and there was no financial transaction between the complainant
and the accused. It is unbelievable that and unknown stranger
would lend a huge amount of Rs. 13,50,000/- without any receipt or
agreement. The complainant has filed to summon witnesses to prove
the transaction. The complainant has also failed to produce the Sale
Agreement where he claims he had received a sum of Rs.
80,00,000/- through Cheque and that he had capacity to lend money
to the accused. This apart he has also failed to produce Bank
Passbook or statement to show the flow of funds from 2013-2014
after the sale of the property. Neither has the complainant produced
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any Bank statement to show withdrawal of funds that was used to

lend money to the accused. Except for his oral statements there is no
documentary proof to support the case of the complainant.

23. The Accused has specifically put up a case to the Complainant in

her cross examination that the Accused was having any account in
Allahabad Bank, Kalyan Nagar Branch but the said cheque had not
be issued by the Accused. The PW 2 has duly admitted that he had
not seen the Accused while writing the cheque at any time. The
Complainant has further stated in the Legal Notice, Complain and
Affidavit that the Cheque was handed over at the time of handing
over loan amount. Inspite of admission of PW 2 in cross examination
admitting in cross examination that he had not seen the Accused
while writing the cheque at any time, the Complainant has falsely
claimed that “it is not true to say that the cheque filed in the present
case is not written and signed by the Accused”. In addition to the
specific suggestions put up by the Accused to the Complainant in the
cross examination, the Accused has also examined himself on oath
and given evidence that he has not borrowed any loan amount from
the complainant and that he has not issues the Cheque to the
accused whereas the Cheque in question was stolen and the
signature on the Cheque was forged and also that the Cheque has
been materially altered and tampered with.

24. The Accused had further stated in his statement Under

Section.313 of Cr.P.C. that the said cheque did not bear her
handwriting or signature. Thus, since the Accused led substantive
evidence to prove that the said cheque was neither written nor signed
by the Accused, it was absolutely obligatory and imperative on the
Complainant to summon an appropriate bank officer from the said
Allahabad Bank, Kalyan Nagar Branch to prove the issuance of said
cheque from the bank account maintained by the Accused. Except
the bare words of the Complainant, there is absolutely no
documentary evidence on record to show that the said cheque had
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been issued or signed by the Accused. Since, the Complainant has

failed to prove the drawing of said cheque, from the bank account
maintained by the Accused with the said Allahabad Bank, Kalyan
Nagar Branch, no statutory presumption Under Section.139 of
Negotiable Instruments Act can be raised in favour of the
Complainant and against the Accused, for recording any finding of
guilt.

25. It is significant to note that except the bare words of the

Complainant in his affidavit there is no documentary evidence on
record to show the dispatch and delivery of any demand notice to the
Accused.

26. The Complainant has not been able to produce any documentary
evidence to show that the accused ever resided at the address
mentioned in Exhibit P3. Except the bare words of the Complainant,
there is nothing on record to prove that the Accused ever resided at
the address mention as Exhibit P3. The Complainant has failed to
produce any document to show the service of any demand notice on
the Accused. The Accused has not signed any document, in token of
having received any notice from the advocate of the Complainant.

27. It is pertinent to note to that Exhibit P3 produced by the

Complainant is neither a primary evidence within the meaning of
Sec.61 of Indian Evidence Act nor secondary evidence within the
meaning of Sec.63 of Indian Evidence Act. Since, Exhibit P3 is not
covered either under the provisions of Sec.61 or Sec.63 of Indian
Evidence Act, the same is inadmissible in evidence. The Complainant
has not laid any foundation in her evidence for producing on record
Exhibit P3 There is no evidence on record on record to show that the
Complainant ever called upon or required the Accused to produce
the original of Exhibit P3 A bare perusal of Exhibit Exhibit P3 would
reveal that the said document can not be termed as secondary
evidence, so as to be received in evidence. As there is no legally
recognized evidence on record to show that the dispatch of demand
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notice in terms of Sec.138 (b) of Negotiable Instruments Act to the

Accused, it can be conveniently held that no cause of action can be
said to have arisen in favour of the Complainant for filing the present
complaint against the Accused. Consequently, the Complaint filed
by the Complainant is liable to be dismissed also on the ground of
non observance of the provisions of Sec.138 (b) of Negotiable
Instruments Act.

28. The Accused has examined himself on oath u/s. 314 of Cr.P.C. to
disprove his liability for issuing the aforesaid cheque in favour of
Complainant. The Accused has deposed and stated that he did not
receive any loan from the Complainant. The Accused has further
deposed that Ex.P-3 was never served upon the Accused. The
Complainant is not entitled to draw any statutory presumption u/s.
27 of General Clauses Act regarding the service of demand notice
upon the Accused especially when the Accused has deposed on oath
about the non-receipt of the alleged demand notice. The substantial
evidence on oath adduced by the Accused about the non-receipt of
demand notice has to prevail over the presumption u/s. 27 of
General Clauses Act, which is a presumption of rebuttable nature.

29. Viewing from any angle the impugned judgment passed by the
court below is contrary to law and hence same is liable to be set
aside.

30. The appellant may be reserved to raise additional grounds if need

arises during the course of arguments

PRAYER:

WHEREFORE, the appellant respectfully prays that this Hon’ble

Court may be pleased to set aside the impugned judgment, conviction
and sentence dated 06.01.2021 in CC No.15076/2017 passed by the
Learned XVIII Additional Chief Metropolitan Magistrate, Bengaluru and
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be pleased to acquit the appellant in the above case in the interest of

justice.

BANGALORE
DATE: ADVOCATE FOR APPELLANT

Note: No legal proceedings of litigation are pending before any of the

Forum on this subject matter.
IN THE COURT OF THE SESSIONS JUDGE AT BANGALORE

Criminal Appeal / 2021

Between:

N.C. Anand Reddy,

Proprietor,
Jai Maruthi Borewells,
Office at No.26, 2nd Floor,
Crystal Dew HMR Shop,
No.1, Hennur Bande,
Kalyanagara Post,
Bengaluru -43

Opp: Hasanth PU and Degree College,

Hennur, Bande, Hennur Bande,
Kalyanagara Post,
Bengauru -2 Accused/ Appellant

And:

C.N. Shivaramareddy,
S/o late Narayanareddy,
Aged about 60 years,
R/at Chokkanahalli village,
Jakkur Post, Yelahanka Hobli,
Bangalore -64 Complainant/ Respondent

APPLICATION FILED UNDER SECTION 389(1) OF THE CODE OF

CRIMINAL PROCEDURE

The appellant named above most humbly submits as follows:

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01. That the accused has been convicted vide impugned judgment

dated 06.01.2021 passed by the learned Magistrate XVIII

Additional Chief Metropolitian Magistrate at Bengaluru in CC

No.15076/2017 in convicting the accused for the offence

punishable under Section 138 of Negotiable Instrument Act and

as per the order dated 6.1.2021 acting under Section 255 (2) of

Cr.P.C, accused is convicted for the offence punishable under

Section 138 of Negotiable Instruments Act 1881. The accused is

sentenced to pay fine of Rs.22,20,000/- (Rupees Twenty Two

Lakhs Twenty Thousand Only) and in default shall undergo

simple imprisonment for a period of Two (2) years. Acting under

Section 357 (1) (b) of Cr.P.C, out of the fine amount the

complainant is entitled for Rs.22,00,000/- (Rupees Twenty Two

Lakhs Only) fine amount as compensation. Acting under Section

357 (1) (a) of Cr.P.C, the balance amount of Rs.20,000/- (Rupees

Twenty Thousand Only) is defrayed to the State for the expenses

incurred in the prosecution.

02.The appellant submits that, being aggrieved by the said

judgement and the order of conviction the appellant has

preferred the above appeal before this Hon’ble Court. The

memorandum of appeal may kindly be read as part and parcel of

this application.

03.The respondent has filed a false case against the appellant before

the trial court and the trial court has erred by taking a view that

which is not permitted in law and in appreciating the evidence

on record in a preferential manner. The facts and probabiliites of

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the case have not been appreciated in the background of the

pleadings and evidence.

04.That the appellant is a permanent resident of the above

mentioned address along with his family and having deep roots

in society.

05.The appellant is ready and willing to offer sureity to the

satisfaction of this Hon’ble Court and he is ready to abide by any

condition that may be imposed by this Hon’ble Court.

WHEREFORE, the appellant most respectfully prays that this Hon’ble

Court may be pleased to suspend the execution of sentence appealed

against and admit him on bail, and thereby allow the annexed

application, pending disposal of the above appeal in the interest of

justice and equity.

BANGALORE
DATE: ADVOCATE FOR APPELLANT

(KAPIL DEV C ULLAL)

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IN THE COURT OF THE SESSIONS JUDGE AT BANGALORE

Criminal Appeal / 2021

BETWEEN:

Anand Reddy Appellant

And:

CN Shivarama Reddy Respondent

INDEX

Sl.Nos Particulars Page Nos

01 Synopsis
02 Memorandum of Criminal Appeal
03 Certified copy of the impugned judgment dated
06.01.2021 in CC No.15076/2017 on the file of
XVIII Additional Chief Metropolitan Magistrate,
Bengaluru
04 Vakalath
05 Application for Condonation of Delay
06 Affidavit

BANGALORE
DATE:
ADVOCATE FOR APPELLANT
(KAPIL DEV C ULLAL)