Bangalore District Court
Muniraju N vs Rakeshgowda C on 13 May, 2026
Corrected
KABC030805992022
Presented on : 21-10-2022
Registered on : 21-10-2022
Decided on : 13-05-2026
Duration : 3 years, 6 months, 23 days
IN THE COURT OF THE XVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Dated this the 13th day of May - 2026
PRESENT: SMT. THENDRALL.K, B.A.L, LL.M.,
XVIII Addl.C.J.M., Bengaluru City.
C.C.NO.33010/2022
Complainant : Sri.Muniraju.N,
S/o.Naresappa,
Aged about 57 years,
R/at Kodigalahatti Village,
Hosahalli Road,
Near SLNS Convention Hall,
Hunasamaranahalli Post,
Jala Hobli, Bengaluru North Taluk.
(Rep. by Sri.S.M, Advocate)
V/s.
Accused : Sri.Rakeshgowda.C,
S/o.Chennegowda,
Aged about 28 years,
R/at Doddajala Village,
Dodajala Hobli and Post,
Bengaluru North Taluk-562 157.
(Rep. by Sri.N.C.S, Adv.)
Judgment 2 C.C.No.33010/2022
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 13.05.2026.
(THENDRALL.K)
XVIII Addl.CJM., Bengaluru.
JUDGMENT
The instant complaint is filed by complainant against accused under Section 200 of Cr.P.C for the offence punishable under Section 138 of N.I.Act and punish the accused in accordance with law and grant compensation to the complainant under Section 357 of Cr.P.C in the interest of justice and equity.
2. The brief facts of the case of the complainant is that:
It is submitted that, the accused is known and well acquainted with the complainant. During the 1st week of January 2021, the accused had approached the complainant and sought for hand loan of Rs.2,00,000/- to meet out his urgent and legal necessities. The complainant considering the financial crisis of accused had paid a sum Judgment 3 C.C.No.33010/2022 of Rs.2,00,000/- to the accused by way of cash on 12.01.2021. While borrowing the said amount, the accused promised to repay the same within six months and on the same day, the accused had executed a loan agreement and issued cheque bearing No.192492 drawn on IDBI Bank, 1st Floor, SLN Complex, Bengaluru, Bellary Road Opp. TRO & Check Post, Devanahalli.
Further contended that after lapse of agreed period of six months, when the complainant had demanded the accused for repayment of said hand loan amount, at that juncture the accused had postponed the same by giving one or the other reason and finally informed the complainant to present the cheque bearing No.192492 in the 1st week of August 2022 and assured that the said cheque would be honoured on its presentation.
Further contended that, as per the instructions of accused, the complainant presented the said cheque for encashment through his banker viz., Canara Bank, Hebbal Branch, Bengaluru on 04.08.2022, same came to be dishonoured and returned with an endorsement dated 05.08.2022 stating "Funds Insufficient". After non- realization of the cheque, the complainant constrained to cause a legal notice to residential address of accused through RPAD on 20.08.2022, same came to be returned on 30.08.2022 with a shara "Not Claimed". Even after Judgment 4 C.C.No.33010/2022 grace period of 15 days from the date of return of notice, the accused neither paid the cheque amount nor replied the notice. Thus, the accused committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After taking cognizance and registration of the case, process was ordered to issue summons against accused. In pursuance thereof, accused appeared before the Court through his counsel and accordingly, he was enlarged on bail and has recorded the accusation for the offence punishable under Section 138 of N.I.Act, same was explained to the accused, since he pleaded not guilty and claims to have defence evidence hence, the case has been set down for recording of evidence.
4. To substantiate the complaint averments, complainant got examined himself as PW.1 and got marked 07 documents as per Ex.P1 to Ex.P7.
5. As the incriminating circumstances appearing against the accused, the statement of accused U/s 313 of Cr.P.C is recorded by preparing separate questionnaires. The accused has not explained anything, in order to rebut the case of the complainant, accused got examined himself as DW.1 and got marked 03 documents as per Ex.D1 to Ex.D3. The advocate for accused has relied upon the following decisions:
Judgment 5 C.C.No.33010/2022
1. (2019) 5 Supreme Court Cases 418 in the case of Basalingappa V/s. Mudibasappa.
2. Crl.A.No.5305 of 2024 in the case of N.Vijay Kumar V/s. Vishwanath Rao.N.
3. Crl.M.C. 1037/2017 and Crl.M.A. 4330/2017 in the case of Sri Sai Sapthaguiri Sponge Pvt. Ltd. V/s. The State of (GNCT of Delhi) and another.
6. Heard arguments.
7. On considering the facts and circumstances of the case, the following points would arise for determination :
1. Whether the complainant proves beyond all reasonable doubt that the accused had borrowed a sum of Rs.2,00,000/- from him, there is legally enforceable debt and given a cheque bearing No.192492 in order to realize the legally enforceable debt?
2. Whether the complainant further proves beyond all reasonable doubt that he has complied provisions of Section 138 of Negotiable Instrument Act?
3. What order or sentence?
8. My findings on the above points as under:
Point No.1 : In the "Affirmative"
Point No.2 : In the "Affirmative"
Judgment 6 C.C.No.33010/2022
Point No.3 : As per the final order,
for the following:
:R E A S O N S:
9. POINT No.1: This is the complaint filed under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instrument Act. The case made out by complainant is that, the accused is known and well acquainted with the complainant. During the 1st week of January 2021, the accused had approached the complainant and sought for hand loan of Rs.2,00,000/- to meet out his urgent and legal necessities. The complainant considering the financial crisis of accused and had paid a sum of Rs.2,00,000/- to the accused by way of cash on 12.01.2021. While borrowing the said amount, the accused promised to repay the same within six months and on the same day, the accused had executed a loan agreement and also issued cheque bearing No.192492 drawn on IDBI Bank, 1st Floor, SLN Complex, Bengaluru, Bellary Road Opp. TRO & Check Post, Devanahalli. That after completion of agreed period of six months, when the complainant had demanded the accused for repayment of said hand loan amount, at that juncture the accused had informed the complainant to present the cheque bearing No.192492 in the 1st week of August 2022 and assured that the said cheque would be honoured on its presentation. As per the instructions of accused, the Judgment 7 C.C.No.33010/2022 complainant presented the said cheque for encashment through his banker which has been returned unpaid to the complainant.
10. In order to prove his case, the complainant got examined himself as PW.1 and got marked 07 documents as Ex.P1 to Ex.P7. He has reiterated the averments of complaint in his examination-in-chief. The documents at Ex.P1 is the cheque, Ex.P1(a) is the signature, Ex.P2 is the Return Memo, Ex.P3 is the office copy of Legal notice, Ex.P4 is the Postal receipt, Ex.P5 is the Unserved RPAD cover, Ex.P5(a) is the legal notice at Ex.P5, Ex.P6 is the Track consignment, Ex.P6(a) is the certificate under Section 65(B) of Indian Evidence Act and Ex.P7 is the loan agreement dated 12.01.2021.
11. In order to prove his defence, the accused himself was examined as DW.1 and got marked 03 documents as Ex.D1 to Ex.D3. The documents at Ex.D1 is the Pen Drive, Ex.D2 is the computerized copy of mobile conversation details and Ex.D3 is the certificate under Section 65(B) of Indian Evidence Act
12. The counsel for complainant argued that, the accused had borrowed a sum of Rs.2,00,000/- from the complainant by way of cash on 12.01.2021 and towards discharge of his liability, the accused has given cheque in Judgment 8 C.C.No.33010/2022 question, which returned unpaid. The complainant had issued notice. Despite the same, the accused has not repaid the same, thereby the accused has committed an offence punishable under Section 138 of N.I.Act. Further argued that the complainant has complied the provisions of the Act and prayed to convict the accused.
13. Per contra, the learned counsel for accused has argued that, in the month of January 2021, towards marriage expenses the accused had asked Rs.2,00,000/-
from one Sri.Vasanth, at that juncture the said Sri.Vasanth had given Rs.2,00,000/- for interest at the rate of 5% p.m to accused through one Sri.Ranjith, who is the son of Muniraju, at that time towards security of the said amount, they had taken two cheques pertaining to IDBI Bank and one agreement from the accused. After receipt of said amount, the accused had paid three months interest and further he did not pay interest due to lock- down.
Further argued that thereafter towards repayment of the said amount, the wife of accused had paid Rs.1,00,000/-, the accused had transferred Rs.50,000/- to the account of Sri.Ranjith through PhonePe and also repaid a sum of Rs.30,000/- to Sri.Ranjith through one Sri.Manohar. Thereafter, the accused and his father took Rs.50,000/- and went to pay the remaining amount, at Judgment 9 C.C.No.33010/2022 that juncture the accused's mother demanded the accused for Rs.80,000/- and sent back them without receiving Rs.50,000/-.
Further argued that in the year 2022 on the day of Varamahalakshmi Festival the accused had received message to his mobile with respect to dishonour of cheque and immediately, the accused went to the house of Sri.Ranjith and asked him why the cheque was dishonoured even though he had returned money, at that time the said Sri.Ranjith had quarreled with the accused and lodged complaint against the accused before the Chikkajala Police Station. Thereafter, the said police have called and instructed the complainant to get principal amount excluding the interest and return the cheque and agreement to the accused. After three-four months, the accused had received warrant from Chikkajala Police, then he came to know about the instant complaint. The accused had repaid the entire amount and he had documents in that regard. Hence he prayed to dismiss the complaint and there is no legally enforceable debt and the complainant has not complied the provisions of N.I.Act.
14. In the light of the above oral and documentary testimonies placed by the both parties and the arguments advanced by the both counsels let me examine the oral and documentary testimony produced by the complainant. It is Judgment 10 C.C.No.33010/2022 pertinent to note that unlike the other cases, in the case of an offence punishable under the Negotiable Instruments Act, the paramount duty of the complainant is to prove that there is legally enforceable debt and the cheque has been given for realizing the legally enforceable debt.
15. The fact that the acquaintance of complainant and accused is not in dispute. The fact that the receipt of alleged amount of Rs.2,00,000/- from the complainant by the accused is not in dispute. The fact that the cheque in question issued by the accused to the complainant and signature appears thereon is not in dispute. The fact that the sending of demand notice to the residential address of accused is not in dispute.
16. In order to establish the transaction between complainant and accused. PW.1 has deposed in his evidence in consonance with the averments of complaint. Though the PW.1 was cross-examined by the counsel for accused, in the cross-examination, the advocate for accused has suggested to PW.1 that:
"ದಿನಾಂಕ 11.01.2021 ರಂದು ಆರೋಪಿ ಸಾಲ ಬೇಕು ಎಂದು ನನ್ನನ್ನು ಕೇಳಿದ್ದರು. ಆರೋಪಿ ಸಾಲ ಕೇಳಿದ ದಿನವೇ ನನ್ನ ಮನೆಯಲ್ಲಿ ರೂಃ2 ಲಕ್ಷ ಹಣ ಇತ್ತು. ಆದೇ ದಿನ ಆರೋಪಿಗೆ ನಾನು ರೂಃ2 ಲಕ್ಷ ಹಣ ಕೊಟ್ಟಿರುತ್ತೇನೆ. Further suggested to PW.1 that:
ನಿಪಿ-7 ಕರಾರು ಪತ್ರ ತಯಾರಿಸಲು ಸ್ಟಾಂಪ್ಪೇಪರನ್ನು ಆರೋಪಿಯೇ Judgment 11 C.C.No.33010/2022 ಖರೀದಿ ಮಾಡಿದ್ದರು. ಆರೋಪಿಯೇ ನಿಪಿ-7 ಕರಾರು ಪತ್ರವನ್ನು ತಯಾರು ಮಾಡಿಕೊಂಡು ಬಂದಿದ್ದರು. ನಿಪಿ-7 ರಲ್ಲಿ ಆರೋಪಿ ನನ್ನಿಂದ ರೂಃ2 ಲಕ್ಷ ಹಣ ಪಡೆಯುತ್ತಿದ್ದೇನೆ ಮತ್ತು ಅದಕ್ಕೆ ಆಧಾರವಾಗಿ ರೂಃ2 ಲಕ್ಷ ಚೆಕ್ ಕೊಟ್ಟಿರುತ್ತೇನೆ ಎಂದು ಹಾಗೂ ಆರು ತಿಂಗಳ ಒಳಗೆ ಸದರಿ ಹಣ ವಾಪಸ್ ಕೊಡುತ್ತೇನೆ ಎಂದು ಬರೆದಿರುತ್ತದೆ. ನಾನು ಆರೋಪಿಗೆ ಇಂತಿಷ್ಟು ಬಡ್ಡಿ ಕೊಡಬೇಕು ಎಂದು ಮಾತನಾಡಿ ಹಣ ಕೊಟ್ಟಿರುವುದಿಲ್ಲ. ನಾನು ಆರೋಪಿಗೆ ಯಾವುದೇ ಬಡ್ಡಿ ಆಧಾರದ ಮೇಲೆ ಹಣ ಕೊಟ್ಟಿರಲಿಲ್ಲ."
17. On perusal of the above oral testimony of PW.1, it clearly manifests that on 11.01.2021 the accused had asked loan to complainant, at that juncture, the complainant had Rs.2,00,000/- in his house and paid the same to the accused on the same day. The accused himself had executed Ex.P7 in favour of complainant and towards security of the said amount the accused had given Ex.P1- cheque to the complainant and had undertaken to repay the said amount within six months. Further the complainant has given the said loan amount to the accused without interest. It clearly discloses that the accused had borrowed the loan of Rs.2,00,000/- from the complainant on 11.01.2021 and on the very same day the accused had executed Ex.P7.
18. That it is the specific defence of accused that during the month of January 2021, he had availed loan of Rs.2,00,000/- from Sri.Ranjith, who is the son of Judgment 12 C.C.No.33010/2022 Muniraju, at that time towards security of the said amount, he had given two cheques and one agreement. Thereafter, towards return of said amount, the wife of accused had repaid a sum of Rs.1,00,000/-, the accused had transferred a sum of Rs.50,000/- to the account of Sri.Ranjith through PhonePe and also repaid a sum of Rs.30,000/- to Sri.Ranjith through one Sri.Manohar. Thereafter, the accused and his father went to pay the remaining amount Rs.50,000/-, at that juncture the mother of Sri.Ranjith had demanded the accused for payment of Rs.80,000/- and sent back them without receiving Rs.50,000/-. The complainant has misused his security cheque and had filed this instant case against the accused.
19. In order to substantiate the above defence of accused, the advocate for accused had cross-examined the PW.1. In the cross-examination, the advocate for accused has suggested to PW.1 that:
"ಆರೋಪಿ ಹಾಗೂ ನನ್ನ ಮಧ್ಯೆ ಆದ ವ್ಯವಹಾರಕ್ಕೆ ವಸಂತರವರು ಮಧ್ಯಸ್ಥಿಕೆ ವಹಿಸಿದ್ದರು ಎಂದರೆ ಸರಿಯಲ್ಲ. ರೂಃ5 ಲಕ್ಷಕ್ಕೆ ಶೇ.5 ರಷ್ಟು ಬಡ್ಡಿಯನ್ನು ವಸಂತರವರೇ ಆರೋಪಿಯಿಂದ ನನಗೆ ಕೊಡಿಸುತ್ತಿದ್ದರೆಂದರೆ ಸರಿಯಲ್ಲ ಹಾಗೂ ವಸಂತ ರವರ ಗೂಗಲ್ ಪೇ ಮುಖಾಂತರ ನನ್ನ ಮಗನಾದ ರಂಜಿತ ರವರ ಖಾತೆಗೆ ರೂಃ45,000/- ಜಮಾ ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ತದನಂತರ ಆರೋಪಿ ರೂಃ1,00,000/- ಗಳನ್ನು ನನ್ನ ಮನೆಗೆ ಬಂದು ಕೊಟ್ಟಿರುತ್ತಾರೆ Judgment 13 C.C.No.33010/2022 ಎಂದರೆ ನನಗೆ ಕೊಟ್ಟಿಲ್ಲ. ಎಲ್ಲಾ ವ್ಯವಹಾರ ಮುಗಿದ ನಂತರ ರೂಃ30,000/- ಗಳನ್ನು ಮನೋಹರ ಮುಖಾಂತರ ಆರೋಪಿ ನನಗೆ ಕೊಟ್ಟಿರುತ್ತಾರೆ ಎಂದರೆ ನನಗೆ ಕೊಟ್ಟಿಲ್ಲ. ಅದೇ ರೀತಿ ನನ್ನ 2ನೇ ಮಗನಾದ ಮನೋಜರವರಿಗೆ ಪೋನ್ಪೇ ಮುಖಾಂತರ ಮನೋಹರ ತಲಾ ರೂಃ5,000/- ಗಳನ್ನು ಎರಡು ಬಾರಿ ಕೊಟ್ಟಿರುತ್ತಾರೆ ಎಂದರೆ ನನಗೆ ಇರುವುದು ಒಬ್ಬನೇ ಮಗ. ಇವೆಲ್ಲಾ ಪಡೆದುಕೊಂಡ ನಂತರ ಹೆಚ್ಚುವರಿಯಾಗಿ ರೂಃ70,000/- ಕೊಡಬೇಕೆಂದು ಕೇಳಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿ ಎಲ್ಲಾ ಹಣ ಕೊಟ್ಟಿರುತ್ತೇನೆ ಎಂದು ತಿಳಿಸಿದ್ದು, ನಾನು ನಿಪಿ-1 ಚೆಕ್ಕು ಸುಳ್ಳಾಗಿ ನಮೂದಿಸಿ ನ್ಯಾಯಾಲಯಕ್ಕೆ ಹಾಜರುಪಡಿಸಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ."
20. The above said suggestions were strongly denied by the complainant during the course of his cross- examination.
21. In order to substantiate the defence of accused, during the course of chief-examination, the DW.1 has deposed that, in the month of January 2021, towards marriage expenses he had asked Rs.2,00,000/- from one Sri.Vasanth, at that juncture the said Sri.Vasanth had given Rs.2,00,000/- for interest at the rate of 5% p.m to accused through one Sri.Ranjith, who is the son of Muniraju, at that time towards security of the said amount, they had taken two cheques pertaining to IDBI Bank and one agreement from the accused and towards repayment of the said amount, the wife of accused had repaid a sum of Rs.1,00,000/-, he had transferred a sum Judgment 14 C.C.No.33010/2022 of Rs.50,000/- to the account of Sri.Ranjith through PhonePe and also repaid a sum of Rs.30,000/- to Sri.Ranjith through one Sri.Manohar. Thereafter, the accused and his father went to pay the remaining amount of Rs.50,000/-, at that juncture the mother of Sri.Ranjith had demanded the accused for payment of Rs.80,000/- and sent back them without receiving Rs.50,000/-. The said defence of accused was strongly denied by the complainant. When the PW.1 has denied the above defence of accused, then the burden lies upon accused to disprove the same. In order to establish the above said defence the accused has neither produced cogent and convincing documents nor summoned to Sri.Vasanth nor Sri.Manohar nor any other witnesses before the court. Absence of such documentary evidence creates ambiguity in the defence of accused.
22. Further during the course of cross-examination of DW.1, the advocate for complainant has suggested to DW.1 that the documents i.e., Ex.D1 and Ex.D2 are not relevant to the instant case. The said suggestion was denied by the DW.1, but till the fag end of the case the accused has not explained how the Ex.D1 and Ex.D2 documents are relevant to the instant transaction by way of examining neither the wife of complainant nor his wife, hence the said documents are also not helpful to the defence of accused.
Judgment 15 C.C.No.33010/2022
23. Another aspect to be noted is that, during the course of cross-examination, the DW.1 has admitted that there is no entry in Ex.P7 regarding the complainant had lent money for interest and as per Ex.P7, he had received money from complainant in the presence of witnesses. It clearly indicates that the accused had obtained the alleged loan amount from the complainant without any interest. The DW.1 has further deposed that after receipt of amount from complainant, he had repaid the same to the complainant and in that regard he had produced document before the court. Further the DW.1 had looked the court record and voluntarily deposed that there is no document available in this record, the above defence of accused creates ambiguity.
24. Further if really, the accused has not issued the questioned cheque to the complainant for discharge of legally enforceable debt and if the said cheque was misused by the complainant, definitely, he would have taken legal action against the complainant, but in the instant case, the accused has neither lodged the complaint to the police nor had issued notice to PW.1 nor to the bank authorities regarding misuse of cheque. Therefore, he cannot say that PW.1 has misused his cheque. In order to substantiate his version the accused has not produced either ocular or documentary evidence. Further the accused has not given any intimation to the bank with Judgment 16 C.C.No.33010/2022 regard to misuse of his cheque. Moreover, accused does not dispute the issuance of cheque to the complainant. In the absence of such material evidence before the court, it is difficult to believe the version of accused that he has not issued the cheque in question to the complainant for discharge of legally recoverable debt. The counsel for accused has relied upon decisions with due respect the nature and circumstances of the case is different from the nature and circumstance of instant case.
25. It is the contention of the accused that, the cheque was misused by PW.1, which was given for security at the time of obtaining loan of Rs.2,00,000/- from complainant, same was misused by the complainant and had filed this false case, thereby it does not create any liability, therefore the instant case is not maintainable, in this regard this court would rely on the decision reported by Hon'ble Apex Court in Appeal No.123/2021, LL 2021 SC 75, between M/s. Kalamani Tex/P.Balasubramanian, it has held that :
"Even a blank cheque leaf would attract presumption under section 139 of the Negotiable Instruments Act, when the signature is voluntarily signed is admitted".
26. At this juncture this court is relying upon a decision reported in (2018) 8 Supreme Court Cases 165 in Judgment 17 C.C.No.33010/2022 the case between Kishan Rao V/s Shankargouda, it is held that :
"A. Debt, Financial and Monetary Laws Negotiable Instruments Act, 1881S.139 -
Presumption under - When may fail
Ingredients and scope of S.139 Principles
summarized
B. Debt, Financial and Monetary Laws
Negotiable Instruments Act, 1881 Ss 138 and 139 - Dishonour of cheque Presumption in favour of holder of cheque under S.139 Not rebutted by accused by leading any evidence
- No sufficient ground mentioned by High Court to enable it to exercise its revisional jurisdiction for setting conviction aside Conviction under S.138, restored."
27. This court relies upon another decision reported by Hon'ble Apex Court in 2022 SCC Online SC 1131 in Crl.Appeal.No.1233-1235/2022 (Arising out of Slp Crl.Nos.7430-7432/2022 @ D.No.13470/2019 between P.Rasiya V/s Abdul Nazer & Another has held that :
"Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under Section 138 of the N.I. Act, the accused preferred three different Revision Applications before the High Court. By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Judgment 18 C.C.No.33010/2022 Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary."
28. I have gone through the said decisions, wherein the Hon'ble Apex court held that, accused may adduce evidence to rebut presumption under S.139, but mere denial regarding existence of debt nor with respect to the source of income of complainant shall not serve any purpose. In the event accused is able to raise a probable Judgment 19 C.C.No.33010/2022 defence which creates doubt with regard to existence of a debt or liability, the presumption may fail. Section 139 of the Negotiable Instruments Act provides for drawing the presumption in favour of holder.
29. At this juncture, it is worthwhile to refer Section 139 of NI Act, which reads as under: Section 139 of Negotiable Instruments Act:- Presumption in favour of holder ; It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
30. On reading of Section 139 of the NI Act, it is very much clear that, there shall be a presumption, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. The presumption will have to be drawn that, every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Once the complainant discharges the burden of proving the instrument, then the burden shifts upon the accused to rebut the same.
Judgment 20 C.C.No.33010/2022
31. Further, until the contrary is proved as provided under Section 118 of NI Act, presumption will have to be drawn in favour of complainant. In order to rebut the contentions taken by the complainant, accused may adduce direct evidence to prove that, there is no debt or liability to be discharged by him. To disprove the presumptions, accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist. But in the present case, accused utterly failed to disprove the presumptions. Therefore, this court is of considered opinion that, there are no contradictions or variances in the contention taken in the complaint and evidence of PW.1. Moreover, accused has neither produced ocular or documentary evidence to rebut the evidence of PW.1 and to disprove the liability and issuance of cheque. Hence, the law laid down by the Hon'ble Apex court in the aforesaid decision is aptly applicable to the present case on hand.
32. This court relies on the decision reported in 2008(2) Kar L.J 276 by Hon'ble High Court of Karnataka between PKN Caps & Polymers, Bangalore V/s K.Vishnu Prasad has held that:
"NEGOTIABLE INSTRUMENTS ACT 1881, Section138- The respondent herein filed the I.A. after recording the evidence of parties i.e., at a Judgment 21 C.C.No.33010/2022 belated stage. The appellant herein filed a detailed objection. In fact, the objection filed by the appellant discloses that the complaint for an offence punishable under Section 138 of the N.I.Act. Therefore, when once the documents are admitted in evidence, without the objections of the opposite party when once the Court rightly or wrongly admits the documents, the admissibility of these documents cannot be questioned. Therefore, it could be said that the respondent fails to place proper rebuttal evidence to hold that the cheques issued by him was not for legally enforceable debt or otherwise. When the respondent admits about the issuance of the two cheques and the receipt of the demand notice and dishonour of the cheques, he cannot now contend and say that it is not for legally enforceable debt."
In the instant case accused counsel during the cross- examination of PW.1 has putforth the suggestion that PW.1 has misused the cheque issued by accused as security at the time of obtaining loan amount of Rs.2,00,000/-, meaning thereby accused admits the issuance of cheque to the complainant.
33. Another decision reported by Hon'ble Apex Court in 2021(1) KCCR 545 (SC) between M/s. Kalamani Tex and others V/s P.Balasubramanian it is held that :
Judgment 22 C.C.No.33010/2022
"D. NEGOTIABLE INSTRUMENTS ACT, 1881-
Sections 118 and 138-Presumption-Reverse onus- Burden of proof shifts on the accused.
Preponderance of probabilities. Possibilities. Discussed, Accused not leading proper evidence. Accused has to be convicted. Order of conviction confirmed."
It is settled preposition of law that proving of the case depends upon the preponderance of probability. Therefore, the more probabilities lies in favour of the complainant in the present case on hand. Therefore, under these circumstances the presumption under Section 138 of Negotiable Instrument Act can safely be drawn in favour of the complainant. Under these circumstances, this court is of opinion that complainant has successfully established and proved beyond all reasonable doubt that there is legally enforceable debt due to complainant payable by the accused, in order to realize the antecedent/legally enforceable debt the accused has given a cheque in question Ex.P1. Accordingly, point No.1 is answered in the Affirmative.
34. Point No.2: It is the specific contention of the complainant that the accused has given cheque in question Ex.P1 on 04.08.2022 which has been presented to the bank in time. The said cheque Ex.P1 has been Judgment 23 C.C.No.33010/2022 returned to the complainant unpaid due to "Funds Insufficient" on 05.08.2022. The complainant has to issue legal notice to the accused within 30 days from the date of returning of cheque. The complainant had issued legal notice to accused on 20.08.2022 which is also in time, inspite of issuance of the same the accused has not repaid the alleged cheque amount to the complainant. In the present case the complainant has filed the complaint which is well within time. Therefore, under these circumstances this court is of opinion that the complainant has successfully complied the provisions of Section 138 of N.I.Act. Therefore, the point No.2 is answered in the Affirmative.
35. Another aspect to be noted is that, the defence of accused that, the legal notice sent by complainant was not served to him. But the complainant has denied the same and has stated that the demand notice was sent by him to the correct address of accused and same was not claimed by the accused. In support of his contention, the complainant has cross-examined the DW.1. In the cross- examination, the DW.1 has admitted that:
"ನಿಪಿ-3 ರಲ್ಲಿ ನಮೂದಿಸಿರುವ ವಿಳಾಸ ನನ್ನದೆ. ನಿಪಿ-5 ರಲ್ಲಿ ನಮಾದಿಸಿರುವ ವಿಳಾಸ ನನ್ನದೆ. ನಿಪಿ-5 ರಲ್ಲಿ ತಿರಸ್ಕಾರ ಎಂದು ನಮೂದು ಇರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿಯು ಸ್ವತಃ ಮುಂದುವರಿದು, ಸದರಿ ದಿನದಂದು ನಾನು ವಾಹನ ಚಾಲನೆಯಲ್ಲಿದೆ ಆಗ ಅಂಚೆ Judgment 24 C.C.No.33010/2022 ಇಲಾಖೆಯವರು ನನಗೆ ಕರೆ ಮಾಡಿ ನೋಟೀಸು ಬಂದಿದೆ ಎಂದು ತಿಳಿಸಿದ್ದರು ನಾನು ಬರಲು 2-3 ದಿನ ಆಗುತ್ತದೆಂದು ಅವರಿಗೆ ತಿಳಿಸಿದೆ."
36. On perusal of the above oral testimony of DW.1, it clearly indicates that the address mentioned in Ex.P3 and Ex.P5 are belonging to himself and the demand notice sent by complainant as per Ex.P5 came to be returned with a shara Unclaimed and he voluntarily deposed that on that day when he was in driving at that time the postal authority had called him through phone and intimated that there is notice in his name, regarding this the DW.1 had stated that he was out of station it would take 2 - 3 days for him to arrive. When the accused had admitted the address mentioned in the legal notice and unserved R.P.A.D cover Ex.P5, it clearly indicates that the complainant had sent the demand notice to the correct address of accused and same was not claimed by the accused. Therefore, the accused cannot say that the legal notice was not served on him and he is not aware about the notice sent by the complainant.
In that regard, this court relies on the decision reported in 2020 0 Supreme (Kar) 1029::2020 4 AIR (Kar) (R) 513 in the case of Chikkahonnaiah V/s Basamma @ Bindu, wherein the Hon'ble High Court of Karnataka has held that:
Judgment 25 C.C.No.33010/2022 "Section 138 of the N.I.Act mandates giving of a legal notice but it does not mandate that the said legal notice must be actually and physically placed in the hands of the accused. When a legal notice has been sent with the correct complete and full address of the accused with appropriate postage and when the said notice was tendered to the accused, if the accused fails to accept the notice and thus fails to claim the notice sent to him under registered post, there is deemed served of notice upon him."
In another decision reported in 2006 (4) KCCR 2375 in the case of Mr.Umraz Khan and others V/s. Mr.A.Jameel Ahmed and another, wherein, Hon'ble High Court of Karnataka was pleased to held that:
"Once there is proof of posting of notice to correct address, it is deemed to have been served, the judgment of acquittal is bad in law".
37. On going through the above said dictums and invoking Section 27 of General Clauses Act, it is also made clear that if the notice was sent with correct address of the accused, it is suffice to draw the inference that the notice was duly served on the accused. If the accused failed to accept the notice and failed to claim the notice sent to him under registered post, there is deemed service of notice upon him. In the present case on hand, it appears that the address mentioned in the cause title of complaint and legal notice are one and the same. From which, it is made clear Judgment 26 C.C.No.33010/2022 that the complainant has complied proviso (b) of Section 138 of Negotiable Instruments Act.
38. So for as the quantum of the sentence is concerned this is being tried as summary trial as contemplated under Section 143 of Negotiable Instruments Act, 1881 and hence, the accused need not be heard on the sentence. It is pertinent to note that the case lodged against accused is under special law and the benevolent provision of the Probation of Offenders Act will not be made applicable.
39. Point No.3 :- In view of the above discussion and foregoing reasons this court proceed to pass the following;
ORDER Acting under Section 278(2) of BNSS-
2023 (Old Corresponding provision under Section 255(2) of Cr.P.C) the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act 1881.
Accused is hereby sentenced to pay fine of Rs.2,50,000/- for the offence punishable under Section 138 of Negotiable Instrument Act 1881, in default, the accused shall undergo Simple Imprisonment for a period of three months.
Acting under Section 396 of BNSS-2023 (Old Corresponding provision under Section 357(1)(b) of Cr.P.C), a sum of Rs.2,45,000/-
Judgment 27 C.C.No.33010/2022 out of the fine amount shall be paid to the complainant as compensation.
The remaining sum of Rs.5,000/- out of the fine amount shall be remitted to the state towards the expenses of the state.
The bail bond and surety bond stands canceled and sureties discharged.
Supply the free copy of the Judgment to the accused.
(Dictated to Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 13 th day of May -
2026) Digitally signed
by THENDRALL
THENDRALL K
K Date:
2026.05.15
18:02:26 +0530
(THENDRALL.K)
XVIII Addl. Chief Judicial Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Muniraju.N List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature Ex.P2 : Return memo Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Unserved R.P.A.D cover Judgment 28 C.C.No.33010/2022 Ex.P5(a) : Legal notice at Ex.P5 Ex.P6 : Track consignment Ex.P6(a) : Certificate u/S 65-B of I.E.Act Ex.P7 : Loan agreement
List of Witnesses examined on behalf of the defence:
DW.1 : Rakeshgowda.C List of Exhibits marked on behalf of defence:
Ex.D1 : Pen drive
Ex.D2 : Computerized copy of mobile
conversation detail
Ex.D3 Certificate u/S 65-B of I.E.Act
XVIII Addl. Chief Judicial
Magistrate, Bengaluru.
Judgment 29 C.C.No.33010/2022
13.05.2026.
Comp -
Accd -
For Judgment
Case called out.
Complainant absent. Accused absent.
Advocate for accused files E/A. Perused and allowed. No representation from complainant counsel.
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 278(2) of BNSS-2023 (Old Corresponding provision under Section 255(2) of Cr.P.C) the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act 1881.
Accused is hereby sentenced to pay fine of Rs.2,50,000/- for the offence punishable under Section 138 of Negotiable Instrument Act 1881, in default, the accused shall undergo Simple Imprisonment for a period of three months.
Acting under Section 396 of BNSS-2023 (Old Corresponding provision under Section 357(1)(b) of Cr.P.C), a sum of Rs.2,45,000/- out of the fine amount shall be paid to the complainant as compensation.
The remaining sum of Rs.5,000/- out of the fine amount shall be remitted to the state towards the expenses of the state.
The bail bond and surety bond stands canceled and sureties discharged.
Supply the free copy of the Judgment to the accused.
Judgment 30 C.C.No.33010/2022 XVIII Addl. Chief Judicial Magistrate, Bengaluru.
Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C, seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the judgment was pronounced and convicted the accused. In view of the same, the convictee's counsel has prayed to suspend the sentence by appeal period. For the reasons stated in the application, for the limited period of prefer appeal only, the application filed by the accused's counsel under Section 389(3) of Cr.P.C. is hereby partly allowed and sentence is suspended till appeal period only.
The convictee is hereby directed to
execute bond for fine amount of
Rs.2,50,000/-.
XVIII ACJM, Bengaluru.
COVID-19 ORDERSHEET PURPOSE
In view of Covid-19 pandemic, the
complainant was unable to lodge to the
complaint within time and further prayed to condone the delay as per the directions issued by the Hon'ble Supreme Court of India in Suo Judgment 31 C.C.No.33010/2022 Motu Writ petition (Civil) No.(S)3/2020 dated 23.03.2020 and 08.03.2021. In the said petition Hon'ble Supreme Court of India held that, a period of limitation in all proceedings, irrespective of the limitation prescribed under the General Law or Special Laws whether condonable or not shall stand extended w.e.f 15th March 2020 till further order/s to be passed by the Hon'ble Supreme Court in the said proceedings. It is also held that the period from 15.03.2020 till 14.03.2021 shall also extend excluded in computing the periods u/S.138(b)(c) of Negotiable Instruments Act, which prescribed period of limitation for instituting proceedings, outer limits (within which the court or Tribunal can condone delay) and termination of proceedings.
Further, owing to the surge of Covid-19 cases, the Hon'ble Supreme Court by its order dated 27.04.2021 in the above Suo Motu writ petition has further suspended limitation under general or special laws in respect of all judicial and quasi-judicial proceedings till further orders under Article 142 read with Article 141. Thereby, effectively limitation stands suspended from 15.03.2020 till date. That means the accused has right to file appeal during the extended period of limitation. Judgment 32 C.C.No.33010/2022