IN THE COURT OF THE CITY CIVIL AND SESSIONS JUDGE

AT BANGALORE

Crl. Appeal No. /2018

BETWEEN: RANK IN
/ /
TRIAL APPELLATE
COURT COURT
Sri. Saravana
S/o. Murugesh,
Aged about 27 years,
Ms. Samsung Mobile Forum,
Kempapura,
Bangalore 560 024 ACCUSED APPELLANT

AND:

Ms. Sanjay Telecom Pvt. Ltd.

Represented by its Managing Director,
Mr. S. Satish Sahu,
No. 4/3-1, 1st Cross,
Lorry Stand Godown Street,
Yeshwanthpur,
Bangalore 560 022 COMPLAINANT
RESPONDENT

MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION

374(3) OF THE CODE OF CRIMINAL PROCEDURE:

The above named appellant respectfully submits as follows:

I. That the address of the parties for the purpose of service of

notices etc. from this Hon’ble Court is as stated in the cause
title. The address of the Appellant is also care of his
advocates Name and Address.
II. The Appellant herein being aggrieved by the judgment and
order dated 02-06-2018 passed by the XLI Additional Chief
Metropolitan Magistrate in C.C.No.10469/17 convicting the
Appellant herein for an offence punishable u/s 138 of
Negotiable Instrument Act and sentencing him to pay fine of
Rs.4,000/- and in default to pay fine amount to undergo
 simple imprisonment for a period of two months and further
directing the appellant herein to pay to the respondent
Rs.17,10,000/- towards compensation and in default to
undergo simple imprisonment for a period of five months
prefers this criminal appeal on the following facts and
grounds amongst other grounds to be urged at the time of
hearing.

BRIEF FACTS

1. That the respondent herein had filed a private complaint

against the appellant herein for an offence punishable
under Section 138 of Negotiable Instruments Act alleging
that the respondent is carrying on business as a wholesale
dealer of mobile handsets and its accessories and that the
appellant was a customer of the respondent and had
purchased materials from the respondent under various
invoices on various dates on credit basis and that the
appellant was due several sums to the respondent and
that towards part payment of the dues, the appellant had
issued the following 11 cheques, all drawn on Indian
Overseas Bank, Chikkabidarikallu Branch for a total sum of
Rs.15,23,243/-

Sl. Cheque No. Date Amount

No.
1. 872177 21.05.2017 Rs.1,54,310
2. 872178 24.05.2017 Rs.1,60,930
3. 872179 19.05.2017 Rs.1,15,512
4. 872180 20.05.2017 Rs.1,62,821
5. 872401 22.05.2017 Rs.1,68,956
6. 872402 24.05.2017 Rs.1,37,385
7. 872403 25.05.2017 Rs.1,15,035
8. 872404 26.05.2017 Rs.1,44,035
9. 872405 27.05.2017 Rs.91,637
 10 872409 31.05.2017 Rs.1,69,539
11. 872410 02.05.2017 Rs.1,03,083
and that when the respondent herein presented the said
cheques for encashment all the cheques were dishonored
and out of the 11 cheques, 5 cheques had been returned
with endorsement “insufficient funds” and the remaining
cheques were returned with endorsement “Payment
stopped”.
2. It was further alleged by the complainant/respondent that
he has got issued a legal notice dated 11-06-2017 to the
appellant herein to repay the amount covered under the
said cheques and that the said notice returned back with
postal endorsement “not claimed” and that since the
appellant herein did not pay the amount covered under the
cheques, he has filed a private complaint and a criminal
case in C.C. No.10469/2017 was registered against the
appellant herein.
3. That the appellant herein had denied the transaction
alleged by the respondent and further had contended that
he is not in due of any amount to the respondent and that
he had not issued the cheques in question to the
respondent and that the does not know how the
respondent got these cheques and hence he had not
committed an offence under Section 138 of Negotiable
Instruments Act and had prayed for his acquittal.
4. The learned Magistrate after trial by its judgment and
order dated 02-06-2018 had convicted the Appellant
herein for an offence punishable under section 138 of
Negotiable Instrument Act and has sentenced him to pay
fine of Rs.4,000/-and in default to pay fine amount, shall
undergo simple imprisonment for a period of two months
and further has directed the appellant herein to pay to the
 respondent a sum of Rs.17,10,000/- as compensation and
in default to undergo simple imprisonment of five months.
The appellant being aggrieved by the said judgment and
order prefers this appeal on the following grounds:

GROUNDS

5. That the judgment and order passed by the learned

Additional Chief Metropolitan Magistrate is contrary to law, facts
and circumstances of the case and evidence on record and
hence it is not sustainable in law.

6. That the Learned Magistrate has failed to appreciate that

the respondent has not discharged his initial burden of proving
the transaction alleged by him. In fact the complaint is bad and
does not specifically provide details of the so called invoices
through which the alleged supply of mobile phones were made
and further does not even mention when the transactions took
place. As a matter of fact no mobile phones were supplied by
the respondent to the accused. The complainant/respondent
clearly admits that no purchase orders were placed by the
accused for supply of the mobile phones. Further not even a
single invoice has been produced by the respondent to prove
the existence of the transaction as alleged by the respondent.
This clearly establishes the frivolity in the case of the
respondent. The trial court has grossly erred in raising the
presumption available under the provisions of the NI Act in the
present case in the absence of cogent evidence to establish the
alleged transaction. When the respondent has not discharged
his onus of proving the alleged transaction, there was no
occasion for the trial court to raise the presumption in favour of
the respondent. Hence, the judgment and order is not
sustainable in law and is liable to be set aside.

7. That the respondent has not placed a single document to

establish that he is a wholesale dealer of mobile phones. When
the respondent is claiming such huge amount alleged to be
under certain invoices, he ought to have produced the said
invoices to prove the alleged transaction. Further, the
respondent also does not give details of the number of mobile
phones, their make and face value in order to prove his alleged
transaction with the appellant. When the respondent fails to
prove the alleged transaction, question of raising the
presumption as to the existence of legally enforceable debt
against the accused/appellant does not arise. The trial court
whimsically and erroneously concludes that the transaction is
admitted. The evidence on record clearly establishes that the
accused has denied the transaction and further has denied the
issuance of the cheques in question to the respondent. The trail
court with a prejudiced mindset and misreading the evidence
has come to a whimsical and perverse conclusion that the
respondent has proved his case.

8. The trial court has ignored the principles laid down by the
Hon’ble Apex Court in the matter of K.Subramani Vs.
K.Damodara Naidu reported in 2015 (4) Kar. L.J 118 (SC) and in
the matter of Indian Banks Associations & Others Cs. Union of
India and others reported in 2014 (5) SCC 590 and further the
ruling of Andhra Pradesh High Court in the matter of A.Bhoosan
Rao Vs. Purushothamdas Pantani & another reported in 1998
Cri.L.J 906. The Apex Court and the Andhra Pradesh High Court
have unequivocally held that the burden of proving the
transaction is heavily on the complainant who alleges such
transaction to claim the benefit of presumption available under
Section 139 of NI Act about the existence of legally enforceable
debt against the accused. The Learned Magistrate had failed to
apply his mind on this vital aspect and has mechanically and
whimsically raised the presumption under section 139 to record
a finding against the appellant which is contrary to the facts and
circumstances of the case and evidence on record. In view of
the Judgment and order in not sustainable in law and liable to be
set-aside.

9. That the evidence of DW-1 (the appellant herein) has not

got judicial treatment at the hands of the learned magistrate.
The evidence of the appellant clearly spells out the motive on
the part of the respondent in initiating the false complaint
against the appellant. PW-1 in his cross examination has clearly
admitted that in connection with financial irregularities
committed by one Shankar, an erstwhile employee of the
complainant, differences arose between the respondent and
Shankar and that Shankar has also initiated criminal
proceedings against the respondent herein and that to make
good the loss arising out of the irregularities committed by
Shankar, the respondent has initiated false proceedings by
misusing the cheques of the appellant herein. In this scenario, it
was very much necessary for the respondent to prove the
delivery of goods/materials to the accused.

10. The fact that respondent does not even give the details of
the materials supplied to the appellant herein so as to claim
such huge amounts from the accused, who is a small
businessman having a small shop less than 100 Sq. Ft. and
further PW-1 in his cross examination clearly admitting that
there is no agreement between the accused and respondent for
supply of materials on credit basis and that there was no
purchase order made by the accused and that there are no
delivery challans to establish the delivery of goods to the
accused clearly establishes that the transaction as alleged by
the respondent has not taken place at all. The trial court
ignores all these vital aspects before coming to a conclusion
that the transaction is proved and that the cheques are issued
for discharging the legally enforceable debt. The respondent
does not even know the shop name of the accused which is
K.B.Enterprises and not Ms. Samsung Mobile Forum. Later, in his
evidence, PW-1 tries to overcome this lacuna by improving his
version that the accused has changed the name from Samsung
Mobile Forum to K.B. Enterprises. Nothing is placed on record
by the respondent to prove this aspect. All these clearly
establish the frivolity in the case of respondent.

11. The respondent claims that the cheques in question are

issued towards repayment of part of the amount due from the
accused. However, the respondent fails to give the details of
the amount due and from when the alleged amount is due and
also the manner in which the alleged due came into existence.
Such being the case, the offence alleged against the appellant
herein is not made out and he is entitled for acquittal. The
Learned Magistrate without going to the evidence of the
appellant herein and the vital admissions of the
complainant/respondent has recorded a finding contrary to the
facts and circumstances of the case and hence the Judgment
and order is not sustainable in law and is liable to be set aside.

12. That the respondent does not give details as to when and
how the cheques in question were issued by the accused to him.
It is the specific case of the accused that the cheques were not
issued by the accused to the respondent. Such being the case,
it was incumbent upon the respondent to give details as to when
and how the cheques in question were issued to him. The trial
court does not consider this vital aspect before passing the
impugned judgment and order. As such the impugned judgment
and order are not sustainable in law and liable to be set aside.

13. That the respondent herein has failed to prove the

ingredients of the offence punishable under section 138 of
Negotiable Instruments Act.

14. That the learned Magistrate has erred in coming to the

conclusion that the appellant has issued the cheque towards
discharge of his liability without appreciating the facts and
evidence on record and hence the judgment and order is not
sustainable in law.

15. That the sentence passed by the learned Magistrate is

unreasonable and excessive and hence the judgment and order
is not sustainable in law.

16. That the appeal is in time.

17. That no proceedings are pending on the same cause of

action before this Hon’ble court or any other court.

PRAYER:

WHEREFORE, the Appellant most humbly prays that this

Hon’ble Court be pleased to call for the records and set aside
the judgment and order dated 02/06/2018 passed by the XLI
Additional Chief Metropolitan Magistrate at Bangalore in
C.C.No.10469/2017 and pass an order of acquittal, acquitting
the Appellant herein of the charges levelled against him and
pass such other orders that this Hon’ble Court deems fit in the
circumstances of case by allowing this appeal in the interest of
justice.

BANGALORE
DATE: ADVOCATE FOR APPELLANT
 IN THE COURT OF THE CITY CIVIL AND SESSIONS JUDGE
AT BANGALORE

Crl. Appeal No. /2018

BETWEEN:

Sri. Saravana
S/o. Murugesh,
Aged about 27 years,
Ms. Samsung Mobile Forum,
Kempapura,
Bangalore 560 024 …… APPELLANT

AND:

Ms. Sanjay Telecom Pvt. Ltd.

Represented by its Managing Director,
Mr. Satish Sahu,
No. 4/3-1, 1st Cross,
Lorry Stand Godown Street,
Yeshwanthpur,
Bangalore 560 022 …… RESPONDENT

APPLICATION UNDER SECTION 389(1) OF THE CODE OF

CRIMINAL PROCEDURE:

That the Appellant respectfully submits as follows:

1. That the Appellant has preferred this appeal challenging

the judgment and order of conviction and sentence passed by
the XLI Additional Chief Metropolitan Magistrate at Bangalore in
C.C.No.10469/2017 dated 02/06/2018.

2. That the Appellant was on bail during the trial and has
strictly obeyed the conditions of bail.

3. That the grounds raised and facts stated in the

Memorandum of Appeal may kindly be read as part and parcel
of this application.
4. That the judgment and order passed by the trial court is
not sustainable in law. If the execution of the sentence passed
by the trial court is not suspended the Appellant will be put to
great hardship and inconvenience. The Appellant is a
permanent resident of Bangalore. He is the only earning
member of his family. He is ready and willing to offer solvent
surety to the satisfaction of the Hon’ble Court. It is therefore
necessary in the interest of justice to suspend the sentence
pending disposal of this appeal as otherwise it will result in
injustice.

WHEREFORE, the Appellant most humbly prays that this

Hon’ble Court be pleased to suspend the sentence passed by
the XLI Additional Chief Metropolitan Magistrate at Bangalore in
C.C. No.10469/2017 and release the Appellant on bail pending
disposal of this appeal by allowing the application in the interest
of justice and equity.

BANGALORE
DATE: ADVOCATE FOR APPELLANT