8. The Special Power of Attorney holder of the complainant is
not a stranger. He is one of the signatories to the transaction. The
transaction is the sale deed. If the Special Power of Attorney holder
is also a signatory to the transaction, it would be superfluous to
expect that the Special Power of Attorney holder should narrate in
the complaint that he is aware of the transaction between the
parties and on that score, he is representing the complainant. The
sworn statement recorded by the Special Power of Attorney holder
by way of affidavit is as follows:
"I, S.Manohar, S/o late Sri.V.Siddappa, Aged about 38
years, R/at No. 1095, 35th 'D' Cross, 26th Main, 4th 'T' Block,
Jayanagar, Bangalore-560 041, do hereby solemnly affirm and
state on oath as follows:
1. I submit that I am the Special Power of Attorney Holder for
the Complainant in the above case and I am well aware of the
facts of the case and hence, I am competent to swear to this
affidavit.
2. I submit that the Complainant was the sole and absolute
owner of immovable property being agricultural lands bearing i)
Sy.No. 12/20. earlier portion of Sy.No. 12/21, much earlier
portion of Sy.No.12/3B. measuring 22 guntas, ii) Sy. No. 12/21,
earlier portion of Sy. No. 12/2, much earlier portion of Sy.No.
ⅲ
12/3B, measuring 13 Guntas, ) Sy.No. 12/22, earlier portion
of Sy.No.12/2, much earlier portion of Sy. No. 12/3B,
measuring 13 Guntas, iv)Sy.No. 12/23 earlier portion of Sy.No.
12/2, much earlier portion of Sy. No. 12/----measureing 25
Guntas, v) Sy. No. 12/24, earlier portion of Sy. No 12/2 much
earlier portion of Sy.No. 12/3B, measuring 03 Guntas, vi)
Sy.No.12/25 earlier portion of Sy.No. 12/2, much earlier portion
Sy.No.12/3- measuring 32 and half guntas, vii) Sy.No. 14/2,
measuring 32 Guntas and viii) Sy.No. 14/4 measuring 10
Guntas, situated at Heggadagere Village, Bidadi Hobli,
Ramnagara Taluk and District, and the said contract was put
in writing by virtue of execution of absolute sale deed
between the accused above named and the Complainant
and her family members.
3. I submit that the sale deed was executed by the
Complainant and her family members on 14:03:2025 and
registered as document No.RMN-1-13442/2024-2025 in
Book No.1, in the office of the Sub-Registrar, Ramnagara,
for a sale consideration of Rs.3,89,65,000/-(Rupees
Three Crores Eighty Nine Lakhs Sixty Five thousand only).
4. I submit that the accused No.2, representing the First and
third mentioned above, at the time of registration of absolute
Sale Deed on 14.3.2025 towards sale consideration amount,
vide registered as document No.RMN-1-13442/2024-2025 in
Book No.1, in the office of the Sub-Registrar, Ramanagara, has
issued the following cheques, all the cheques were drawn on
HDFC Bank, First Floor, No.2934E & 2935E, Magadi Chord
Extension, Vijayanagar Club. Road, Bangalore - 560 040, in
favour of the Complainant.
a) Cheque No. 000033 dated 08.04.2025 - Rs.25,00,000/-
b) Cheque No.000034 dated 15.04.2025 - Rs.25,00,000/-
c) Cheque No.000035 dated 25.04.2025 - Rs.25,00,000/-
d) Cheque No.000041 dated 30.04.2025 - Rs.16,65,000-
Total for: Rs. 91,65.000/-
(Total Rs.91,65,000/- (Rupees Ninety Five Lakhs, Sixty Five
thousand only)
5. I submit that as requested by the accused the
Complainant has presented the above mentioned cheques
through her banker HDFC Bank, Jayanagar 4th 'T' Block,
Bangalore - 560 041, were returned. unpaid by the accused
bankers with endorsement Cheque Nos.000033, 000034, 'STOP
PAYMENT' 000035 and 000041 dated 20.6.2025, 'FUNDS
INSUFFICIENT, issued towards sale consideration amount at the
time of execution of absolute sale deed dated 14.3.2025.
6. I submit that upon the return of the above mentioned
cheques given to Complainant on the date of Registration of
Sale Deed dated 14.3.2025, approached the accused personally
several times demanding the payments due, but the accused
requested her to grant some more time in order to arrange
funds but they are postponing on one pretext or the other and
not made payments due to the Complainant.
7. I submit that the accused have not honored the legally
enforceable payments due to the Complainant, she has waited
with good hope that the accused will clear the amounts due to
her.
8. I submit that the accused have issued the above
mentioned cheques towards the sale consideration amount and
legally enforceable debt, when the same were presented for
encashment the cheques were returned unpaid by the accused
bankers with an endorsement as 'STOP PAYMENT' and 'FUNDS
INSUFFICIENT' and thus all the accused have committed an
offence punishable under section 138 of the N.I.Act.
9. I submit that the accused No.1, above named being a
Compnay and accused No.2 and 3, are the Partners and are
aware of the business transactions of day-today and all the
accused are severally and jointly liable for the offences
committed by them.
10. I submit that the accused have issued the above
mentioned cheques towards sale consideration amount and
legally enforceable amount at the time of registration of
absolute Sale Deed dated 14.3.2025 and towards discharge of
their liability, when the same were presented for encashment
the cheques were returned unpaid by the accused bankers with
an endorsement as 'STOP PAYMENT' and 'FUNDS
INSUFFICIENT'.
11. I submit that upon the receipt of the returned cheques
with no other option, the complainant has issued a legal notice
dated 17.7.2025 by RPAD and SPEED POST calling upon the
accused to repay the cheques amount with interest.
12. The cause of action for the complaint arose that the
cheque bearing Nos. 000033 dated 8.4.2025, 000034 dated
15.4.2025, 000035 dated 25.4.2025 and 000041 dated
30.4.2025, issued by the accused were returned unpaid by the
accused bankers with an endorsement 'STOP PAYMENT' and
'FUNDS INSUFFICIENT' dated 20.6.2025, subsequently the
complainant has issued a legal notice dated 17.7.2025 by RPAD
and Speed Post and further, the complainant personally
intimated to the accused about the return of cheques and
demanded for return of the amount, is within jurisdiction of this
Hon'ble Court.
13. I submit that the accused have received the notices sent
by RPAD & Speed Post on 18.7.2025 and postal Department has
not returned the Acknowledgment Due Cards till this day.
Further I submit that the accused upon receipt of the notice
have given an untenable reply dated 11.8.2025 and not
complied the demands made in the notice.
14. I submit that I have produced all the original documents
pertaining to the above case for the kind perusal of this Hon'ble
Court.
15. I submit that I have complied with all the provisions of
Section 138 of N.I.Act.
WHEREFORE, I pray that this Hon'ble Court may be pleased to
punish the accused in accordance with law and to award suitable
compensation, in the interest of justice.
IDENTIFIED BY ME
Sd/- Sd/-
ADVOCATE DEPONENT
VERIFICATION
I, S.MANOHAR, the SPA Holder for the complainant, do
hereby verify the contents what is stated above is true
and correct to the best of my knowledge, information and
belief.
BANGALORE Sd/-
DATED:23.10.2025 DEPONENT"
(sic)
In the sworn statement, the Special Power of Attorney holder
narrates that he is the Special Power of Attorney holder and is well
aware of the facts of the case and hence he is competent to swear
to the affidavit.
9. Therefore, in the peculiar facts of this case where the
Special Power of Attorney holder is also a party to the transaction
and has indicated in the sworn statement that he is aware of the
transaction, ostensibly so, the complaint cannot be said to vitiate
on that score. The reason for the Special Power of Attorney holder
representing the complainant is also found in the document itself.
The reason is as follows:
"AND WHEREAS I am having health issues, suffering with
cancer and recently underwent operation and I am
unable to appear and attend the Courts regularly and
personally, and hence, I hereby authorize SRI
S.MANOHAR, MY SON, to do the following acts, deeds and
things:"
(Emphasis added at each instance)
The complainant/mother is suffering from cancer and therefore, she
has appointed her son as Special Power of Attorney holder. Thus,
the absence of a line in the complaint that the Special Power of
Attorney holder is aware of the facts, in the peculiar facts of the
present case, is not and cannot be said to be vitiating the complaint
itself.
10. The second submission is with regard to maintainability of
the complaint on the score that a civil suit is also filed. It is trite law
that civil suit for recovery of money can go hand in hand with the
complaint under Section 138 of the Act. One is for the purpose of
penalizing the dishonor of a cheque and the other in terms of
general law for recovery of money. In this regard, it is apposite to
refer to the judgment of the Apex Court and that of the co-ordinate
bench of this Court.
10.1. The Apex Court in the case of D. PURUSHOTAMA
REDDY v. K. SATEESH1, has held as follows:
".... .... ....
3. The respondent-plaintiff filed a suit against the
appellants, which was marked as OS No. 1844 of 2004, for
recovery of a sum of Rs 3,09,000 with interest. In the plaint, it
was averred that Shri K. Balasubramanyam (father of the
respondent) and Defendant 1 (Appellant 1 herein) were good
friends. Defendants 1 and 2 had been carrying on business.
They approached the plaintiff through Shri K.
Balasubramanyam for financial assistance and obtained a loan
of Rs 2,00,000 (Rs. 1,00,000 on 15-3-2001 and Rs. 1,00,000
on 25-3-2001). Two promissory notes were also executed
therefor.
4. The appellant-defendants purported to be in
discharge of the said debt issued two cheques bearing Nos.
3960 dated 15-3-2003 and 3959 dated 31-5-2003 drawn on
Bank of India, which on presentation, were returned
(2008) 8 SCC 505
dishonoured. Indisputably, a complaint under Section 200 of
the Code of Criminal Procedure, 1973 read with
Sections 138 and 142 of the Negotiable Instruments Act,
1881 (for short "the Act"), marked as CC No. 19337 of 2003,
was filed. A judgment of conviction and sentence against the
appellant was passed therein by an order dated 15-12-2005
sentencing him to pay a sum of Rs. 2,10,000 by way of fine
and in default thereof to undergo simple imprisonment for a
period of three months. It was also directed that out of the
said amount of fine, a sum of Rs. 2,00,000 would be paid to
the complainant by way of compensation in terms of
Section 357 of the Code of Criminal Procedure (for short "the
Code") and the remaining amount was to be payable to the
State. In the said criminal proceedings, the appellants
deposited a sum of Rs. 31,500 on 7-2-2006, Rs. 68,500 on
21-7-2006 and Rs. 1,10,000 on 13-12-2006.
5. OS No. 1844 of 2004 was decreed by the trial court
by a judgment and order dated 23-1-2006, ordering:
"This suit is hereby decreed for a sum of Rs.
3,09,000 (Rupees three lakh nine thousand only) with
court costs and current interest at 6% p.a. on the
principal amount of Rs. 2,00,000 from the date of suit
till realisation. The defendants are jointly and severally
liable to pay the decretal amount."
... ... ...
8. Contention of the respondent, however, is that as the
said question was not and could not have been raised before
the trial court, the impugned judgment is sustainable. It was
furthermore urged that in view of the well-settled principle of
law that pendency of a criminal matter would not be an
impediment in proceeding with a civil suit, the impugned
judgment should not be interfered with.
9. A suit for recovery of money due from a
borrower indisputably is maintainable at the instance of
the creditor. It is furthermore beyond any doubt or
dispute that for the same cause of action a complaint
petition under terms of Section 138 of the Act would
also be maintainable."
10.2. A co-ordinate Bench of this Court in the case of CREF
FINANCE LIMITED v. SHANTHI HOMES PRIVATE
LIMITED,2has held as follows:
".... .... ....
15. A feeble attempt is made by the respondents and it
is contended by Learned Counsel that both the civil and
criminal cases for recovery of dues and dishonour of cheques
cannot be maintained. On this aspect of the matter, Learned
Counsel for the appellant has placed reliance on the decision of
the Apex Court, D. Purushotama Reddy v. K. Sateesh [(2008)
8 SCC 505]. The appellant has filed O.S. No. 15045/01;
wherein he has sought for a decree against the respondents
for a sum of Rs. 9,20,59,032-00. Simultaneously, he filed the
complaint before the Trial Court to initiate action for the
offence punishable under Section 138 of the Act. There is no
dispute so far as this position is concerned. The Apex
Court in the aforesaid decision has held "simultaneous
civil suit and complaint case under Section 138 of the
N.I. Act for the same cause of action are maintainable".
Therefore, the respondents cannot take any advantage
of filing the suit by the appellant for recovery of dues."
(Emphasis supplied at each instance)
The afore-quoted judgments of the Apex Court and of this Court, in
unambiguous terms, holds that a civil suit and the proceedings
instituted under Section 138 of the Act can go on simultaneously.
Therefore, the said submission which is feignly contended as a
supplementary submission to the primary submission that the
2013 SCC OnLine Kar 7562
Special Power of Attorney holder not stating that he is aware of the
fact, is sans countenance.
11. For the aforesaid reasons, finding no merit in the petition,
the petition stands dismissed.
Consequently, I.A.No.1 of 2026 also stands disposed.
SD/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ
