IN THE COURT OF XVIII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, AT BANGALORE

C. C. NO. 15076/ 17

MR. SHIVARAMA REDDY … COMPLAINANT

V/S.

N.C ANANDA REDDY … ACCUSED

MEMORANDUM OF WRITTEN ARGUMENTS ON BEHALF OF THE

ACCUSED U/S. 314 OF CR.P.C.

The counsel for the Accused above named most respectfully submits as
follows:-

1) The Complainant has filed the aforesaid complaint for an

alleged offence u/s. 138 of the Negotiable Instruments Act. The
alleged offence is non-cognizable, bailable and summons triable
in nature. The Accused has pleaded not guilty to the charge.

2) The prosecution case in brief as set out in the complaint filed in

the above case is as follows:-

(a) That the Accused has become friend of the complainant

through another friend Mr. T Venkatarama Reddy who is also
resident of the same village Chokkanahalli. The accused was
running the business of digging borewells and having office at
HMR Shop No. 1, Hennur Bande, Klyananagar Post, Bengaluru
: 560 043. Complainant further states that he and his family
members sold a property bearing Sy. No. 32/1 to an extent of 8
acres situated at Chokkanahalli Village, Yelahanka Hobli,
Bengaluru North Taluk for the purpose of solemnizing his
daughters marriage and as such he was having the funds for
the afore said purpose.

(b) That the complainant states that the Accused was well aware of
the funds being in possession of the complainant and in
December 2016 the accused through one T Venkatarama
Reddy approached the complainant for financial assistance of
Rs. 13,50,000/- for the purpose of purchase of accessories and
 2

spareparts pertaining to his business. The complainant has

paid the sum of Rs. 13,50,000/- by way of cash to the accused
and while receiving the said amount the accused promised and
assured the complainant that within one month he will return
the said amount to the complainant within one month and the
accused has issued a Cheque bearing No. 000009 drawn on
Allahabad Bank, Kalyan Nagar Branch, Bengaluru : 560 043.

(c) That the Complainant states that the accused asked the
complainant to present the said Cheque immediately after
expiry of one moth from the date of receipt of the said amount
in the event of non payment of the said sum as agreed.
However as promised within one month the accused failed to
return the aforesaid sum to the complainant even after
repeated requests and demand made by him. Ultimately in the
month of April 2017 at the intervention of the afore stated T
Venkatarama Reddy the accused has promised to arrange the
funds in his bank account and asked the complainant to
present the aforesaid Cheque for encashment in the Bank
Account. Accordingly on 21.4.2017 with fond hope the
complainant presented the Cheque in his bank the Indian
Bank, Thirumenahalli Branch for encashment and later on 25-
4-2017 the said Cheque was returned with a Shara “Funds
Insufficient” immediately the complainant got issued legal
notice to the accused on 3-5-2017 and the notice was duly
served and inpite of service of notice the accused has not made
payment to the complainant and hence, on 31.5.2017 the
Complainant has filed the above complainant.

3) It is submitted that after recording of plea of the Accused, the

Complainant has filed his affidavit of evidence as and by way of
his examination in chief U/s.145(1) of Negotiable Instruments
Act alongwith the list of documents/copies of documents.

4) It is submitted that the version put forward by the Complainant

in his affidavit of evidence with regard to the payment of
Rs.13,50,000/- to the Accused as loan for the purpose of
purchasing accessories and spare parts for his Borewell
Bussiness is highly improbable and unbelievable for following
reasons :
 3

(a) The facts narrated by the complaint in the above case and
the version of facts narrated in CC. No. 16254/2017 by
Venkatrama Reddy against this accused are all identical.
Even the reasons for borrowing the loan amount is one and
the same. The alleged amount borrowed by accused from
Ventakatarama Reddy in CC No. 116254/2017 is Rs.
17,50,000/-. And in the instant case the alleged amount is
Rs. 13,50,000/-. Hence the total alleged amount for
purchasing accessories is Rs 31,00,000/-. Any lay man
would understand that for this huge amount one would be
able to purchase a Bore well Rig, hence the versions of the
case of the complainant is highly improbable and
unbelievable.

(b) The Complainant in page 5, para 1 of his cross examination,

has admitted he has not disclosed his income to the Income
Tax Department and further that his yearly income is not
more than Rs. 20,000 to Rs. 30,000/- and he also further
states that he does not not have independent source of
income of his own. In the same para the Complainant also
admitted that his only source of income is from Agriculture.
(c) That the complainant in his affidavit has created a story that
he had sold agricultural land bearing Sy. No. 32/1 to an
extent of 8 Acres situated Chokkanahalli Village for the
purpose of marriage of his daughter. Except the bare words
of the Complainant there is no documentary evidence to
show that he had sold agricultural land as claimed by him.
During Cross examination in Page 8, para 2 the complainant
states that it has been 5 years since he sold the said land.
When confronted about the date of the sale deed the
complainant stated that he did not remember date of the
sale transaction. He further went on to state that he has no
difficulty in producing the said sale deed, he also stated that
he has no difficulty in producing the Bank passbook or
statement to show the amount received from the sale of the
above land. When confronted about the copy of sale deed
the complainant elusively stated that the sale deed was with
his lawyer and on another occasion he stated that the sale
deed is produced before another court. Hence there is not
document or evidence to show that his property was sold as
claimed by the complainant.
 4

(d) 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 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
 5

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.
(e) That it is the case of the accused that the complainant is a
stranger to the accused. No such documents have been
produced before this Hon’ble Court for proving any
transaction between the complainant and the accused. The
Complainant has not assigned any reason for non
production of the alleged bank pass book or statement of
account from the period 2013-2014 which is the date of sale
of his land.
(f) That all along the complainant has been unbelievable and
has been evasive and vague about all the dates and events of
the transaction claimed by him.
(g) That on vital points while cross examination of the of the
complainant it is pointed out that there are some material
infirmities and contradictions in the evidence and cross
examination of the complainant. As per Depositio dated
31.10.2017, Page 5 para 2 the complainant deposed that he
knows Venkatramareddy from his birth and they are from
the same village. He stated that they discuss and personal
matters with each other. He also stated that they came to
court together and on his case date even Venkataram Reddy
accompanied him. However when asked if there was a
dispute between Venkatram Reddy and Accused the
complainant states that he is unaware of any dispute
between them or if Venkatrama Reddy filed another Cheque
bounce case against the accused. This is a clear false
statement on oath, when they have filed similar case with
similar facts, a common lawyer and when they have ben
discussing about their matters through out it is quiet
natural they would have discussed about the case as well.
This has exposed the falsity of the complainant beyond
 6

doubt and that he has not approached this Hon’ble Court

with clean hands.

(h) Inspite of claiming about the payment of a huge sum of Rs.

13,50,000/- in cash to the accused, the Complainant has
not been able to specify / mention (i) The date of such
transaction (ii) location where the transaction took place or
(iii) any other details concerning the alleged payment. There
is no evidence given by the Complainant with regard to
payment of the said amount. The Complainant could have
conveniently produced at least a bank statement to show
that he had withdrawn any such amount from his account
during that period, to substantiate his version if that were to
be true. During the Cross Examination of PW 2 dated
21.06.2018 in page 5 Para 3 for the first time there is a
mention that one relative of the Complainant Mr. M.N Reddy
was present at the time Cheque was handed over to the
complainant. This fact was never mentioned by the
complainant in the legal notice, affidavit or cross
examination of the complainant. In fact it is the case of the
complainant that the Cheque was handed over to the
complainant at the time of borrowing the loan amount. The
question at large is if there was an independent witness to
the transaction why such a witness was not brought to the
stand to support the case of the complainant. The
complainant never brought any one to the stand because not
such transaction ever took place and if he brought them as
witness to the case the falsity would be exposed.

(i) 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
 7

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 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.

(j) It is also improbable and unbelievable that the complainant

would part with huge amount of cash of Rs.13,50,000/-
without any receipt or acknowledgement from the Accused
especially when the complainant has admitted in his
evidence that, the Complainant was not knowing the
Accused. He was introduced to the accused by one
Venkatrama Reddy.
(k) Further more during cross examination of PW 2 in the case
filed by him against accused in CC. No. 16254/2017 during
cross examination in CC No. 16254/2017 dated 8.8.2018,
Page 10 – 4th line the complainant states that the Panchayat
with respect to Cheque issued to P.W 2 was held on the date
of transaction between this complainant 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.
 8

(l) 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.

(m) It is the specific case of the accused that the

complainant and Ventarama Reddy have fraudulently come
into possession of the cheques of the accused by stealing it
from his office. The accused has throughout stated that he
has no liability to pay the complainant and that the
signatures on the cheques are forged, this is very clear from
the signatures seen on the Vakalathnama and various case
papers the signature on the Cheque and the signature on the
case papers have no relation whatsoever more particularly
the signature on the Bank Records is completely different
and obviously the complainant was unaware about the
signature of the Accused in his Bank records. This apart the
complainant in Connivance of Venkatram Reddy have
materially altered and tampered with the cheques to play
fraud against the accused. Primafacie on seeing the Cheque
one would be able to make out that the ink used to sign and
the ink used to fill in the details are completely different and
even the handwritings on the Cheque and the handwriting
on the signature are completely different. The fraudulent
transaction is void right from the time of its inception.
(n) The complainant has taken a contention that the accused
has admitted his signature in the reply notice. It has to be
noted here that the defense can always take contrasting and
inconsistent plea so far as the same is substantiated it
would not adversely effect the rights of the accused. It is
pertinent to note here that when giving reply to the notice
the accused was still not sure how the Cheque cane into the
 9

possession of the complainant it is only after appearing in

the court and seeing the copies that he noticed that this was
not his signature at all. In this background the accused is
justified in taking a inconsistent plea than what he had
taken before. It is for the complainant to prove his case once
the presumption has been rebutted by the accused.

5) THE INGREDIENTS OF SECTION 138 OF THE NEGOTIABLE

INSTRUMENTS ACT, WHICH THE COMPLAINANT HAS
FAILED TO ESTABLISH.

(I) EXISTANCE OF A LEGALLY ENFORECEABLE DEBT : 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
transction. 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 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.

(II) NON MAINTENANCE OF BANK ACCOUNT BY THE

ACCUSED. : 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
 10

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.

(III) 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 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.

(IV) NON GIVING OF NOTICE UNDER SECTION.138(B)

OF THE NEGOTIABLE INSTRUMENTS ACT TO THE
ACCUSED.
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.

(b1) NON SERVICE OF EXHIBIT P3- ( DEMAND NOTICE)

UPON THE ACCUSED. The Complainant has not been able to
 11

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.

INADMISSIBILITY OF EXHIBIT P3 IN EVIDENCE : 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 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. -

Rebuttal of presumption operating against Accused u/s.

139 of Negotiable Instruments Act – 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
 12

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.

Under the circumstances, the Accused most respectfully prays that

this Hon’ble Court be pleased to dismiss the complaint in the above
case and acquit the Accused of a charge u/s. 138 of the Negotiable
Instruments Act.

11-12-2020 KAPIL DEV C ULLAL

Bangalore ADVOCATE FOR ACCUSED
 13

IN THE COURT OF XVIII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, AT BANGALORE

C. C. NO. 16254/ 17

MR. VENKATARAMA REDDY … COMPLAINANT

V/S.

N.C ANANDA REDDY … ACCUSED

MEMORANDUM OF WRITTEN ARGUMENTS ON BEHALF OF THE

ACCUSED U/S. 314 OF CR.P.C.

The counsel for the Accused above named most respectfully submits as
follows:-

6) The Complainant has filed the aforesaid complaint for an

alleged offence u/s. 138 of the Negotiable Instruments Act. The
alleged offence is non-cognizable, bailable and summons triable
in nature. The Accused has pleaded not guilty to the charge.

7) The prosecution case in brief as set out in the complaint filed in

the above case is as follows:-

(d) That the Accused is a friend and relative of the complainant

and that the accused is running the business of digging
borewell under the name and style of Sri. Maruthi Borewells
and having it office at HMR Shop No. 1, Hennur Bande,
 14

Kalyananagar post, Bengaluru – 43. That the complainant had

borrowed a sumof Rs. 20,00,000/- from Life Insurance
Corporation of India, Gangenahalli Branch, R.T Nagar Post,
Bengaluru – 32. And as such during the relevant time the
complainant had funds in his hands. The accused was well
aware about the loan borrowed from Life Insurance
Corporation of India and the accused has approached the
complainant and requested for financial assistace in order to
purchase accessories such as new Compressor, casing pipe,
hammer and such other accessories for his business. And 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.
(e) The complainant stated that since the accused was his friend
and close relative the complainant was unable to refuse to pay
the aforesaid loan amount. Under the circumstances the
complainant had 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 had issued a Cheque drawn on Allahabad Bank.
Further the accused had assured that he will repay the said
amount within one month from the date of receipt of the said
amount. And with the said assurance the complainant had
paid the said amount by way of cash to the accused.
(f) The complainant alleges that as promised the accused did not
pay the said amount. However for one pretext or the other the
accused kept postponing paying the said sum. As such the
accused has dragged the matter till 1st week of January 2017.
In the month of January 2017 in the presence of elders in the
village the accused has issued a Cheque bearing No. 000008
drawn on Allahabad Bank. Kalyananagar Branch, Bngaluru -
43. As such while issuing the aforesaid Cheque the accused
has taken back the previous Cheque which was issued during
the receipt of the loan amount from the complaint. As such
while issuing the aforesaid Cheque bearing No. 000008 the
accused had requested the complainant to present the said
Cheque in the month of April 2017 for encashment. Under the
aforesaid facts and circumstance without there being other
option the complainant has agreed for the same.
(g) The complainant stated that in accordance of the assurance of
the accused with fond hope the complainant has presented the
Cheque bearing No. 000008 drawn on Allahabad Bank.
 15

Kalyananagar Branch, Bngaluru-43 in his Bank Indian

Overseas Bank, Yelahanka Brach, Bangalore for encashment in
the last week of April 2017. Later on 11-5-2017 the said
Cheque was returned with a Shara “Funds Insufficient”
immediately the complainant has got issued the legal notice on
19-5-2017 to the accused. Even after issue of legal notice the
accused did not reply to the said notice nor made payment for
the Sum of Rs. 17,50,000/- to the complainant hence, on
15.6.2017 the Complainant has filed the above complainant.

8) It is submitted that after recording of plea of the Accused, the

Complainant has filed his affidavit of evidence as and by way of
his examination in chief U/s.145(1) of Negotiable Instruments
Act alongwith the list of documents/copies of documents.

9) It is submitted that the version put forward by the Complainant

in his affidavit of evidence with regard to the payment of
Rs.17,50,000/- to the Accused as loan for the purpose of
purchasing accessories and spare parts for his Borewell
Bussiness is highly improbable and unbelievable for following
reasons :

(a) The facts narrated by the complaint in the above case and
the version of facts narrated in CC. No. 15076/2017 by
Shivarama Reddy against this accused are all identical. Even
the reasons for borrowing the loan amount is one and the
same. The alleged amount borrowed by accused from
Shivarama Reddy in CC No. 15076/2017 is Rs. 13,50,000/-.
And in the instant case the alleged amount is Rs.
17,50,000/-. Hence the total alleged amount for purchasing
accessories is Rs 31,00,000/-. Any lay man would
understand that for this huge amount one would be able to
purchase a Bore well Rig, hence the versions of the case of
the complainant is highly improbable and unbelievable.
(b) It is pertinent to be noted here that the complainant in the
above case is also a witness and interested party in CC No.
15076/2017. Complainant has been closely following the
defense taken by the accused in CC No. 15076/2017 and he
has been taking improved and perfecting his legal stand in
the instant case covering the lapses.
 16

(c) It is submitted that facts narrated in Exhibit P3 – Legal

Notice dated 19-5-2017 and the facts narrated in the
complaint are completely different and improved. As per the
facts narrated in Exhibit P3- Legal notice dated 19-5-2017 in
Page 2 of the Legal notice, 1 st line the complainant stated
“while receiving the said amount you have issued a Cheque
bearing No. 000008 drawn on Allahabad Bank in favour of
my client. You have received the said loan amount in the
month of January 2017 and agreed to repay the same within
three months from the date of receipt of the said amount”.
Where in the complaint dated 15.6.2017 Page 2, Para 4, 3 rd
line onwards it is stated that:
“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 drawn on Allahabad
Bank. Further the accused has assured that he will
repay the said amount within one month from the date
of receipt of the said amount. With the said assuramce
the complainant has paid the said amount by way of
cash to the accused.
5. The complainant further submits that as promised
the accused doesnot repay the sum within one month
from the date of payment of the said amount. However
for one pretext or the other the accused has postponing
pauing the said sum. As such the accused has dragged
the matter till 1st week of January 2017. In the month
of January 2017 in the presence of elders in the village
accused issued a Cheque bearing No. 000008 drawn on
Allahabad Bank, Kalyananagar Brach, Bengaluru-43.
As such while issuing the afore said Cheque the
accused has taken back the previous Cheque which was
issued during receipt of the loan amount from the
complainant…..”
An adverse inference has to be drawn to the two different
versions of the complainant. If the fact really happened as
alleged by the complainant there could never be two different
versions. This improvement of facts has made the version of
the complainant not credible and unreliable. It may also be
noted here that even in the Complaint and affidavit the
complainant doesnot specifically mention the details of the
 17

other Cheque referred by him. Nothing prevented the

complainant from mentioning the Cheque details if the fact
narrated by him is true. The least the complainant could
have done is produce a Xerox copy of the other Cheque to
support his case. The omission and improvement to the
versions have made the case of the complainant unreliable
and unbelievable.

(d) 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 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 ths sake of this case subsequently
to suit needs of the complainant and the same if primafacie
false.
(e) 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
 18

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.
(f) 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
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
 19

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.
(g) That the complainant in his affidavit has created a story that
he had availed a loan from LIC Corporation of India, RT
Nagar. Firstly, it is imperative that one would only apply for
a loan if he himself has requirement of funds. Hence the
version that one would apply for a loan to keep funds in his
account is unbelievable. It is the admission of the
complainant in cross examination dated 4-4-2019 that he
has availed the said loan for his son’s business. Hence the
truth has come to ligh during cross examination that this
loan amount was borrowed for the complainant’s son’s
business and not for the accused. Exhibit P9 is the LIC Loan
papers, it is seen that the Complainant had LIC Policy No.
363276110, and Policy No. 654049640, Policy No.
654308366 and the said Policy was supposed to mature on
28.8.2018. He has availed a loan against the said policy
prior to maturity. This would clearly show that the said loan
was availed to fulfill the financial requirement of the
complaianant. Policy No. 6543133041 is a Policy standing in
the name of Bharat Supratik who is the son of the
complainant. Apparently as per the allegation of the
complainant the accused approached him on in October
2016 for the loan amount. Whereas the complainant has
made an application much prior to June 2016. As per
Exhibit P8 which is the Bank Statement of the Complainant
it is seen that as soon as the Loan amount was credited into
his Account in 4-7-2016 the very next day on 5-7-2016 the
complaint withdrew the entire for business of his Son and
 20

even on 15.7.2016 the complainant transferred another sum

of Rs. 50,000/- to his Son Bharat to fulfill his financial
needs. After July 2016 there is no documentary proof to
show that the complainant had amount in his hand to lend
loan to the accused. All these documents infact support the
case of the accused.
(h) It is further submitted that No such documents have been
produced before this Hon’ble Court for proving any
transaction between the complainant and the accused. The
Complainant has not assigned any reason for non
production of the IT Returns copy issued by the IT
Authorities and specificall he has not assigned any reasons
for not producing the Income Tax returns for the period of
transaction which is Financial Year 2016-2017.
(i) That all along the complainant has been unbelievable and
has been evasive and vague about all the dates and events of
the transaction claimed by him.

(j) That on vital points while cross examination of the of the

complainant it is pointed out that there are some material
infirmities and contradictions in the evidence and cross
examination of the complainant.

(k) Inspite of claiming about the payment of a huge sum of Rs.

17,50,000/- in cash to the accused, the Complainant has
not been able to specify / mention (i) The date of such
transaction (ii) location where the transaction took place or
(iii) any other details concerning the alleged payment. There
is no evidence given by the Complainant with regard to
payment of the said amount. The Complainant could have
conveniently produced at least a bank statement to show
that he had withdrawn any such amount from his account
in October 2016 which is the period of transaction, to
substantiate his version if that were to be true. During the
Cross Examination of complainant in CC No. 15076/2017
dated 21.06.2018 in page 5 Para 3 for the first time there is
a mention that one relative of the Complainant Mr. M.N
Reddy was present at the time panchayat was held. And
during cross examination in the instant case on 05.07.2018
in the last 4 lines complainat states that when handing over
money to the accused his wife and his son were present.
 21

This fact was never mentioned by the complainant in the

legal notice, affidavit. In fact as per the legal notice dated 19-
5-2017 it is the case of the complainant that the Cheque was
handed over to the complainant at the time of borrowing the
loan amount. The question at large is if there was an eye
witness to the transaction why such a witness was not
brought to the stand to support the case of the complainant.
The complainant never brought any one to the stand
because no such transaction ever took place and if he
brought them as witness to the case the falsity would be
exposed.

(l) It may be noted again that by the time the complainant is

being questioned about the filling in the details on the
Cheque he is already alerted as he is aware about the
defense of the accused in Shivarama Reddy’s case and he is
prepared with his answer. However, he admits that he is not
aware who filled the deteails on the cheque. However when
he was confronted with the fact that accused doenot know to
write English he replies that he is not aware about it. When
confronted about different ink and handwriting on the
Cheque in question the complainant simply states that he is
not aware if different ink is used. He simply denies
suggestion that the cheques were altered and tampered and
also denies that the signature on the cheques were forged. It
is quite clear that these answers are based on the legal
advice and is far from the truth.

(m) It is also improbable and unbelievable that the

complainant would part with huge amount of cash of
Rs.17,50,000/- without any receipt or acknowledgement
from the Accused.

(n) During cross examination in the case filed by Shivarama

Reddy (CC No. 15076/2017) Since, the complainant in that
case claims that they involved a neutral third person one
Mr. M N Reddy who was aware of the transaction as he had
taken part in the Panchayat. When connected to the
deposition in this case the complainant states that the
Panchayat for this case happened along with the Panchayat
in Shivarama Reddy’s case, the Complainant could have
 22

conveniently summoned and examined the said M.N Reddy,

to support his story of having given Rs. 17,50,000/- to the
Accused. The Complainant has not cited the name of said
M.N Reddy in the list of witness. Further, it is the case of the
complainant that the alleged sum of Rs. 17,50,000/- was
paid to the Accused, in the presence of his wife and son. Non
examination of the said M.N Reddy, wife of the complainant
and the son of the complainant, seriously creates the doubt
about the tall claim of having paid the alleged sum of
Rs.17,50,000/- to the Accused.

(o) It is the specific case of the accused that the complainant

and Ventarama Reddy have fraudulently come into
possession of the cheques of the accused by stealing it from
his office. The accused has throughout stated that he has no
liability to pay the complainant and that the signatures on
the cheques are forged, this is very clear from the signatures
seen on the Vakalathnama and various case papers the
signature on the Cheque and the signature on the case
papers have no relation whatsoever more particularly the
signature on the Bank Records is completely different and
obviously the complainant was unaware about the signature
of the Accused in his Bank records. This apart the
complainant in Connivance of Venkatram Reddy have
materially altered and tampered with the cheques to play
fraud against the accused. Primafacie on seeing the Cheque
one would be able to make out that the ink used to sign and
the ink used to fill in the details are completely different and
even the handwritings on the Cheque and the handwriting
on the signature are completely different. The fraudulent
transaction is void right from the time of its inception.
(p) The complainant has taken a contention that the accused
has admitted his signature in the reply notice. It has to be
noted here that the defense can always take contrasting and
inconsistent plea so far as the same is substantiated it
would not adversely effect the rights of the accused. It is
pertinent to note here that when giving reply to the notice
the accused was still not sure how the Cheque cane into the
possession of the complainant it is only after appearing in
the court and seeing the copies that he noticed that this was
not his signature at all. In this background the accused is
 23

justified in taking a inconsistent plea than what he had

taken before. It is for the complainant to prove his case once
the presumption has been rebutted by the accused.

10) THE INGREDIENTS OF SECTION 138 OF THE NEGOTIABLE

INSTRUMENTS ACT, WHICH THE COMPLAINANT HAS
FAILED TO ESTABLISH.

(V) EXISTANCE OF A LEGALLY ENFORECEABLE DEBT : 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
transction. 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 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.

(VI) NON MAINTENANCE OF BANK ACCOUNT BY THE

ACCUSED. : 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
 24

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.

(VII) 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 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.

(VIII) However, the Complainant admitted that the entire

amount was paid to the Accused in the presence of his wife
and son in his house. Inspite of claiming in his cross
examination that his wife and son were present at the time
of paying the amount to the Accused, the Complainant has
deliberately and willfully avoided to examine his wife and son
as a prosecution witness in the above case. Had there been
any payment made by the Complainant to the accused in
presence of his wife and son, the Complainant would not
have failed and neglected to examine his wife and son for
proving the factum of so-called payment. The Complainant
has not mentioned the name of his wife and son as a
 25

prosecution witnesses in the list of witnesses set out at the

foot of the complaint. Surprisingly, the complainant has not
assigned any reason to this Hon’ble Court for not examining
his wife and son as a witness in the above case. In these
circumstances, this Hon’ble Court can conveniently draw an
adverse inference against the Complainant, on account of
him withholding the said wife and son as a witness in the
above case.

(IX) NON GIVING OF NOTICE UNDER SECTION.138(B)

OF THE NEGOTIABLE INSTRUMENTS ACT TO THE
ACCUSED.
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.

(b1) NON SERVICE OF EXHIBIT P3- ( DEMAND NOTICE)

UPON THE ACCUSED. 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.

INADMISSIBILITY OF EXHIBIT P3 IN EVIDENCE : 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
 26

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 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. -

Rebuttal of presumption operating against Accused u/s.

139 of Negotiable Instruments Act – 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.

Under the circumstances, the Accused most respectfully prays that

this Hon’ble Court be pleased to dismiss the complaint in the above
case and acquit the Accused of a charge u/s. 138 of the Negotiable
Instruments Act.

11-12-2020 KAPIL DEV C ULLAL

Bangalore ADVOCATE FOR ACCUSED