IN THE COURT OF THE LXIX ADDL.

CITY CIVIL AND SESSIONS

JUDGE, AT BANGALORE

CRL.A No.1677/2023

BETWEEN:

Sri. Jayadevappa …Appellant

AND:

Udaya Souhardha Credit co-operative

Ltd. …Respondent

WRITTEN ARGUMENTS ON BEHALF OF THE RESPONDENT

The Respondent herein humbly submits as follows:

1. The Appellant herein has filed this appeal challenging the

judgement and order dated 16.10.2023 in
th
[Link].13043/2022 passed by the Hon’ble 26 ACMM at
Bangalore wherein the Hon’ble court has rightly passed
the order of Conviction against the Appellant herein for
offence under section 138 of the Negotiable instruments
act, 1881.

2. The Respondent submits that the Appellant herein had

availed Mortgage Loan of Rs.1,20,00,000/- (Rupees
One crore Twenty Lakhs) as evident by the Loan
application applied to the Respondent Bank by the
Appellant seeking loan of Rs. 1,20,00,000/- produced as
Ex.P15. The Respondent Bank in view of the approval of
the Loan application had sanctioned the entire amount of
Rs. 1,20,00,000/- (Rupees One crore Twenty Lakhs). Proof
of this transaction lies in the account statement
produced by the Respondent bank in the lower court as
Ex.P11 and the Passbook details produced as Ex.P16
wherein it is crystal clear that the Appellant has Received
the Entire loan amount of Rs. 1,20,00,000/- (Rupees One
crore Twenty Lakhs) to his SB account on 24.12.2019.
Further the appellant himself has admitted that he has
received the entire loan amount of Rs. 1,20,00,000/-
(Rupees One crore Twenty Lakhs) in his cross-examination
in the lower court. (Cross of Dw-1). Further the Appellant
himself had produced and got marked Ex.D1 and Ex.D2
i.e. his account statement of Union Bank of India and
SB account statement which clearly shows and proves
that the Appellant had received the entire aforesaid loan
amount in his account.

3. Further the Respondent submits that in view of

repayment towards the aforesaid loan amount the
 Appellant had issued the Cheque dated 30.03.2021
bearing no.662191 for an amount of Rs. 30,12,680/-
(Rupees Thirty Lakhs twelve thousand six hundred
and eighty). The Cheque has been produced as Ex.P3.
Further the aforesaid exhibits clearly prove that as on the
date of issuance of the cheque there was a “Legally
Enforceable Debt” and the appellant had issued the
cheque in view of repayment towards the legally
enforceable debt. Hence one of the Essential elements to
constitute an offence under Section 138 of the N.I. Act has
been satisfied.

4. Further upon presentation of the aforesaid cheque by the

Respondent bank it was dishonoured with reason
“Insufficient funds” and the bank endorsement dated
31.03.2021 brings this fact to light. However when the
Respondent bank approached the Appellant regarding the
same the appellant had reassured the Respondent to Re-
present the same cheque once again and that there would
be sufficient available balance in his account to honour
the cheque. However when the Respondent bank
presented the cheque for the second time on 15.06.2021
the cheque was yet again dishonoured with reason
“insufficient funds”. The Bank endorsement dated
16.06.2021 is proof of the dishonour of the cheque. Both
the Bank endorsements have been produced as Ex.P4
and Ex.P5 in the lower court. In view of the above act
and the subsequent bank endorsements it is crystal clear
that the main essential element of an offence under
Section 138 of the N.I. act has been duly satisfied.

5. The Respondent further submits that it caused a legal

notice to be issued to the appellant on 05.07.2021
through RPAD which is within the 30 day prescribed
limit from the date receipt of information regarding
the dishonour of the cheque (16.06.2021). The
aforesaid legal notice has been produced as Ex.P6. Hence
the essentials of Section 138(b) of the N.i. act have
been duly satisfied.

6. The Respondent further submits that the legal notice

(Ex.P6) was served upon the Appellant on 06.07.2021 as
evident by the Postal receipt produced as Ex.P7 and
Ex.P8
Further upon the failure of repayment by the
Appellant within 15 days of receipt of the said
Legal notice the Respondent has filed the complaint in
[Link].13043/2022. Hence the due essential of Section
138(c) of the N.i. act has been duly satisfied.

7. The Respondent further submits that the appellant has

contended that the said cheque was issued as blank
“security” cheque and not for repayment of his debt and
 to prove his point he has contended that ink of the
signature of the cheque and the ink of the particulars of
the cheque are different. The Hon’ble judge of the 26 th
ACMM in paragraph 20 of the Judgment has set aside the
contention relying upon the judgment of the Apex court in
P.K. Manmadhan Kartha vs. Sanjeev Raj (2002) 7
SCC 150 wherein it was held that:
“When the signature on the cheque is admitted,
whether the ink with which the other particulars
are filled up is different or that the handwriting is
not that of the drawer does not matter, until
rebutted, the presumption that the cheque was
issued for consideration exists.”

8. The Appellant had taken up another contention that the

Respondent bank had initiated proceedings against the
accused for recovery of the above said loan amount under
the SARFAESI act and had taken possession of the
mortgaged property under the same and that the
Respondent bank had no authority to file the complaint in
[Link].13043/2022. The Hon’ble Learned Magistrate 26 th
ACMM in para 21 of the Judgment has rightly held that
mere proceedings initiated under SARFAESI act is not a
bar to file the complaint in [Link].13043/2022. He
has further relied upon the Judgement of the Apex court
in [Link] Agencies vs State of A.P. and another
wherein it was held that:

“Merely because arbitration proceedings have been

under taken, the criminal proceedings could not be
thwarted.”

9. The Respondent submits that the Judgment and order

dated 16.10.2023 in [Link].13043/2022 passed by the
Hon’ble 26th ACMM at Bangalore wherein the Hon’ble court
has rightly passed the order of Conviction against the
Appellant herein for offence under section 138 of the
Negotiable instruments act, 1881 is proper both in law
and in facts and it must be upheld. The instant appeal
lacks both in merits and in law and is liable to be
dismissed in limine to save the Hon’ble courts resources
and time.

WHEREFORE, the Respondent prays that this Hon’ble

court may be pleased to dismiss the above appeal and
uphold the judgment and order dated 16.10.2023 in
[Link].13043/2022.
Place: Bangalore Advocate for Respondent
Date: 29-04-2024