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IN THE SESSIONS JUDGE AT BANGALORE

MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 378[4] OF

CODE OF CRIMINAL PROCEDURE,1973

IN THE COURT OF XVIII ADDITIONAL CHIEF METROPOLITIAN

MAGISTRATE BENGALURU

CC No.16254/2017

IN THE SESSIONS JUDGE AT BANGALORE

Criminal Appeal / 2021

Rank of the parties in

Trial court Sessions 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:

T. Venkataramaredy,
S/o. late Thimmareddy,
Aged about 57 years,
R/at Chokkanahalli village,
Jakkur Post, Yelahanka Hobli,
Bangalore -64 Complainant/ Respondent

The appellant named above respectfully submits as follows:-

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1. The address of the appellant for purpose of service of court notices

etc. are that of his counsel Sri. Bangalore-5600.

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

shown in the cause title above.

3. In the above appeal the appellant is questioning the impugned

judgment dated 06.01.2021 in CC No.16254/2017 on the file of XVIII
Additional Chief Metropolitan Magistrate, Bengaluru, thereby
convicting the accused for the offence punishable under Section 138
of Negotiable Instrument Act. The appellant being aggrieved by the
said impugned judgment has preferred the above appeal among
following facts and other grounds:

FACTS OF THE CASE

4. 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 is friend and
relative of the complainant. 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.
Complainant has borrowed loan a sum of Rs.20,00,000/- from
Life Insurance Corporation of India, Gangenahalli Branch,
R.T.Nagara Post, Bangalore. As such during relevant period the
complainant has funds in his hands under the said
circumstances the accused has well aware about the said loan
amount borrowed from the aforesaid life insurance corporation of
India. As such after came to know about the said loan amount
borrowed from the aforesaid life insurance corporation of India
accused has approached the complainant and requested for
financial assistance in order to purchase accessories such as new
compriser, casing pipes, hammer and such other accessories for
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his business. As such the accused has put forth the demand for
sum of Rs.17,50,000/- for the aforesaid purpose in the month of
October 2016. Since the accused is best friend and close relative
the complainant has unable to refuse to pay the aforesaid loan
amount. Under the said circumstances the complainant has paid
a sum of Rs.17,50,000/- to the accused in the month of October
2016. On receipt of the said amount the accused has issued a
cheque bearing No.000008 for Rs.17,50,000/- 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
11/5/2017.

5. Thereafter the complainant issued legal notice on 19/05/2017

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.

6. After receipt of complaint, this 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 claims to be tried.

7. In order to prove the complainant case, complainant was

examined as P.W.1 and he exhibited Ex.P.1 to Ex.P.11
documents and closed his side. Thereafter, the statement of
accused under Section 313 of Cr.P.C is recorded, read over and
explained in Kannada language to which accused has denied the
entire incriminating evidence which appears against him.
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8. However the court below as per the order dated 6.1.2021acting

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.25,20,000/-
(Rupees Twenty Five Lakhs Twenty Thousand Only) and in
default shall 17 C.C.NO:16254-2017 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.25,00,000/- (Rupees Twenty Five 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.

9. The appellant is presently arrested on conviction warrant and

has been remanded to Judicial Custody and is house at the
Bangalore Central Jail.

10. Being highly aggrieved by the order of Judgment dated

6.1.2021; the appellant begs to prefer this appeal on the following
among other grounds.

Grounds

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

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

12. 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.

13. The finding recorded by the courts below is patently

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

14. The court below has taken note irrelevant tissue while
passing the impugned judgment.

15. 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.

16. The court below has not appreciated evidence based on

settled principles of law

17. 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.

18. The Complainant during cross examination dated 19.7.2018 the

complainant states that he has informed Income Tax authorities regarding
the loan borrowed by the Accused. He further states in, in page No. 8 para
2 of cross examination dated 19.7.2018 that he has no difficulty in
producing the Income Tax return for the year when transaction was made.
It has to be taken note that since the loan amount was borrowed in
October 2016 as per the claim of the complainant the same has to be
reported in the Financial year 2015-2016 while submitting the Tax return
in March 2016. Even after stating that he has no problem producing the
IT Returns for the year 2015-2016 the complainant failed to produce the
said IT Return Document. On the other hand instead of producing the IT
Returns for the Financial year 2015-2016 the complainant produced
Statement of Income for the year 2017-2018 that was issued by the his
Auditor. A judicial note has to be take about this evasive act on the part of
the complainant. The IT Return for the year 2017-2018 was filed
subsequent to filing of the instant complaint in March 2018 and when the
transaction never happened in that Financial Year the very appearance of
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any such entry for Financial Year 2017-2018 raises suspicion regarding
the date of transaction. This shows the high handed manipulative
behavior of the complainant. The Statement of Income is issued by the
Auditor while the said document had to be obtained from the IT
authorized. The Document in Exhibit P7 is created for the sake of this
case subsequently to suit needs of the complainant and the same if
primafacie false.
19. It is submitted that in the Complaint, affidavit and legal notice the
complainant stated that the Accused dragged the matter till January
20017 without making repayment to the complainant and finally there
was a Panchayat and in the presence of Elders if the village the accused
issued a Cheque bearing No. 000008 drawn on Allahabad Bank. However,
in the cross examination dated 8.8.2018, Page No. 10 when the
complainant was confronted about the panchayat where alleged Cheque
was issued he states that the said Panchayat was held in January 2017 at
Banaswadi Police Station and later he states that there was no panchayat
at all. If the fact of Panchayat being held in the presence of elders were to
be true, the complainant ought to have summoned the elders in this
instant case a witness neither is the name of any such elder shown in the
list of witnesses submitted by the complainant. In this background the
very fact of Panchayat being held and issuance of Cheque is all doubtful
and suspicious. Another important aspect in the cross examination dated
8.8.2018, Page 10 – 4th line the complainant states that the Panchayat was
held of the date of transaction between Shivarama Reddy and accused, if
this were to be true, if Shivarama Reddy knew that the accused has
defaulted a huge amount of 17,50,000/- to the complainant, being a
prudent man he would never had lent him further loan amount of
13,50,000/- this again shows the fasity in the claims of the complainant.
20. It is further submitted that the complainant admits in the cross
examination that he filed criminal complaint against the accused for a
petty quarrel at Banaswadi Police Station and at Kothnur Police Station.
However he evades mention the specific date when the complaint was
initiated during his cross examination. The accused has rebutted the
evidence mentioning the date of complaint in both station being April
2017. However, the complainant failed to produce certified copies of the
complaint and the details of the dispute because his case would be
jeopardized if the true facts came to light. A stringent inference may be
drawn for the omission on the part of the complainant in not bring the
criminal complaint launched by him at Banaswadi Police Station and
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Kothnur Police Station against the accused and all further proceeding
pursuant to the said complaint. The complainant chose to remain elusive
and silent about these facts, raising strong suspicion regarding the
versions of the complainant. The true fact is that these cases we initiated
subsequent to the police complaint and until that moment the
complainant and accused were good to eachother. This is admitted during
the cross examination of the complainant on 8.8.2018, he admits that
prior to the filing of the criminal complaint the accused and complainant
together went to Thirupathi and thereafter they quarreled with each other.
If it is true that the accused had defaulted on loan borrowed from the
complainant and if there was a dispute necessitating Panchayat to arrive
at a settlement is it possible that they would be cordial and travel to
Thirupathi together. Since the complainant is alert about the defense of
the accused he denies that he has been visiting the office of the accused, if
they have travelled together to Thirupathi is also probable that he would
have visited the accused’s office and he had access to the cheques of the
accused.

21. 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.
22. The appellant may be reserved to raise additional grounds
if need arises during the course of arguments

PRAYER:
WHEREFORE, it is prayed that this Hon’ble Court may be
pleased to set aside the impugned judgment dated 06.01.2021 in CC
No.16254/2017 on the file of XVIII Additional Chief Metropolitan
Magistrate, Bengaluru, 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.
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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

APPLICATION UNDER SECTION 5 OF LIMITATION ACT

For the reasons sworn to accompanying affidavit it is prayed that,

this Hon’ble Court may be pleased to condone the delay _______ days in

filing the above appeal, in the interest of justice and equity.

BANGALORE

Date Advocate for Appellant

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IN THE COURT OF THE SESSIONS JUDGE AT BANGALORE

Criminal Appeal / 2021

BETWEEN:

Anand Reddy Appellant

And:

Venkatarama Reddy Respondent

AFFIDAVIT

I, N.C. Anand Reddy, Proprietor, Jai Maruthi Borewells, residing

at Opp: Hasanth PU and Degree College, Hennur, Bande, Hennur
Bande, Kalyanagara Post, Bengauru -2 do hereby solemnly affirm and
state on oath as follows:

1. I say that I am the appellant in the above appeal and I know the
facts of the case.

2. The above appeal is directed against the impugned judgment

dated 06.01.2021 in CC No.16254/2017 on the file of XVIII Addl
Chief Metropolitan Magistrate, Bengaluru.

3. That the facts and grounds urged in the accompanying

memorandum of Criminal Appeal may kindly be read as part and
parcel to this application so as to avoid repetition of facts and for
the purpose of brevity.

4. The impugned judgment passed on 6.1.2021 on receipt of

certified copy of impugned judgment the appellant has preferred
an appeal before this Hon’ble Court under Section 378(4) of
Cr.PC.
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5. The appellant was held up in Tamil Nadu on work and due to

travel restrictions was unable to reach Bangalore on time and
give necessary instructions to his counsel for filing the Criminal
Appeal on time. By oversight there is delay of about _____ days in
filing the instant appeal. In that view of the matter there is some
delay in preferring the above appeal.

6. The appellant has got strong case on merit the delay if any in
preferring appeal may be construed liberally in the interest of
justice and equity. For the bona fide reasons stated above there
was some delay in preferring above appeal the same is not
intentional but for the bona fide cause. If delay in filing the
above appeal is not condoned the authority will be put to
irreparable hardship and injury and on the other hand no
hardship or injury will be caused to other side, if delay in filing
the above appeal is condoned.

Wherefore, it is prayed that, this Hon’ble Court may be pleased to

condone delay of ____ days in preferring the above appeal, in the
interest of justice and equity.

BANGALORE
DATE:

IDENTIFIED BY ME DEPONENT

ADVOCATE
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IN THE COURT OF THE SESSIONS JUDGE AT BANGALORE

Criminal Appeal / 2021

BETWEEN:

Anand Reddy Appellant

And:

Venkatarama 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)