Bangalore District Court
S.J. Javaraiah vs Siddalinga on 1 July, 2025
KABC020044172020
IN THE COURT OF THE XXII ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICAL
MAGISTRATE, BENGALURU CITY
(SCCH-24).
Presided Over by Smt. Roopashri, B.Com., LL.B.,
XXII ADDL., SCJ & ACJM,
MEMBER - MACT,
BENGALURU.
Dated: On this 1st day of July 2025
CC NO.1176/2020
1. Sl.No. of the Case : C.C.No.1176/2020
2. The date of : 26-09-2019
commission of the
offence
3. Name of the : S.J. JAVARAIAH,
Complainant S/o Javaraiah,
Aged 64 years,
No.70, 6th Main,
HVR Layout,
Magadi Main road,
Bangalore 560 079.
(By Sri.Jayaramaiah. -Advocate)
4. Name of the : Sri SIDDALINGA
Accused S/o late Gangaiah,
Proprietor,
Sri. Vinayaka Enterprises,
SCCH-24 2 C.C.No.1176/2020
No.320, Opp.
Hanumantharayaswamy Temple,
Herohalli cross,
Magadi Main road,
Bengaluru 560 091.
Also At:
Sri.Siddalinga,
S/o late Gangaiah,
No.38 & 39,
Sanchita Nilaya,
2nd floor, 7th cross,
Opp. Mr.Ranganath (Retired ACP)
house, Nagarbhavi 2nd stage,
Bengaluru 560 072.
(By Sri. Ravi Kumara B.R.
Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused found guilty
8. Date of such order for : 01-07-2025
the following
JUDGMENT
This complaint is filed under Sec. 200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act.
SCCH-24 3 C.C.No.1176/20202. It is the case of the complainant that:
The accused and complainant are known to each other since several years. The accused approached and availed hand loan of Rs.3,60,000/- on 15-11-2018 for his necessary requirements and executed an On demand promissory note cum receipt. Towards discharge of his liability, he has issued cheque bearing No.561867 dated 20-09-2019 for a sum of Rs.3,60,000/- drawn on UCO bank, Vijayanagar, Bengaluru in favour of complainant.
3. As per the instruction, when the complainant presented the cheque through his banker i.e., Canara Bank, RNR 1st block, Bengaluru, same was dishonored and returned with memo "Present in proper zone" on 26- 09-2019. Thereafter, the complainant got issued legal notice to the accused on 15-10-2019 through RPAD. The first notice was returned with shara "insufficient address." The second notice was served to the accused on 18-10-2019. In spite of receipt of said notice, the accused failed to pay the said amount. Accordingly, the accused has committed an offence punishable under Sec.138 of N.I Act.
4. After recording the sworn statement of the complainant and also verifying the documents, cognizance was taken against the accused for the offence SCCH-24 4 C.C.No.1176/2020 punishable under Sec. 138 of N.I. Act. The accused on receiving the summons has appeared before this Court through his counsel and he was enlarged on bail and his plea was recorded. The accused pleaded not guilty and claimed to be tried. Hence, the case was posted for evidence of the complainant.
5. The complainant got examined himself as PW.1 and got marked documents as Exs.P1 to 8(a), (b) & Ex.P9. The complainant also examined one witness by name Rangahanumaiah as PW.2 and got marked his sig- nature as per Ex.P8(c) & Ex.P8(d). Then, the case was posted for recording the statement of accused under Sec.313 Cr.P.C. In the statement U/s 313 Cr.P.C., the accused has denied all the incriminating evidence ap- pearing against him and claimed to be tried. The accused got examined himself as DW.1 and got marked docu- ments as per Ex.D1 to Ex.D3. Hence, the case was posted for arguments.
6. Heard arguments of both sides and perused the records.
7. The following points arise for my consideration:
1. Whether the complainant proves that accused has committed an offence SCCH-24 5 C.C.No.1176/2020 punishable under Sec.138 of N.I. Act?
2. What order?
8. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: As per final order, for the following:
-: R E A S O N S :-
9. POINT NO.1:- It is the definite case of the complainant that, towards the discharge of the hand loan of Rs.3,60,000/- the accused has issued disputed cheque in favour of the complainant and when the cheque was presented for encashment, same was dishonoued for the reason "Present in proper zone." Though the said fact was brought to the notice of the accused by issuing legal notice, but accused has failed to repay the cheque amount.
10. To substantiate the contention, the complainant got examined himself as PW1. In the examination in chief, the complainant has reiterated the averments made in the complaint. Ex.P1 is the cheque, Ex.P2 is the cheque return memo which indicates that cheque is returned for the reason "Present in proper SCCH-24 6 C.C.No.1176/2020 zone." on 26-09-2019, Ex.P3 is the demand notice issued by the complainant to the accused through his Advocate calling upon the accused to make payment of the cheque amount, Ex.P4 & 5 are the postal receipts, Ex.P6 is the Postal Track Consignment, Ex.P7 is the un served RPAD postal cover, Ex.P8 is the On demand Promissory note with consideration receipt and Ex.P9 is the bank statement copy.
11. The accused at the out set has denied his having acquaintance with the complainant and denied any amount received by him and denied the cheque in question issued by him and DP note executed by him towards discharge of legally enforceable debt. It is the specific defence taken by the accused that the brother in law of the complainant by name Lakshmi Narayana and Mahesh had sale transaction with him with respect to SY No. 42/2 situated at Uduvegere village Magadi Taluk as both of them had purchased two sites each in the said SY number from the accused and that since 11 -E sketch was not ready for execution of the sale deed, as a security for the advance amount paid by the aforesaid two persons, the accused has given blank signed cheque and DP note. After the execution of sale deed, when the accused demanded the said two persons to return the cheque and DP note, by giving evasive answer they have SCCH-24 7 C.C.No.1176/2020 postponed the matter and by misusing the blank signed cheque and blank signed DP note, lodged the complaint through the complainant. The accused has disputed his writings in the disputed cheque and the DP note. The accused further has denied the service of legal notice.
12. In order to substantiate the defence, the accused got examined himself as DW.1 and got marked documents at Ex.D1 to Ex.D3. Ex.D1 is the copy of the On demand and payment receipt, Ex.D2 is the certified copy of the sale deed and Ex.D3 is the certified copy of the complaint, Statement, DP note and other documents in PCR No.14783.
13. If the entire evidence placed on record is perused, the accused nowhere has disputed his signature in the disputed cheque and nowhere has disputed that the said cheque relates to his account.
14. It is well settled that in order to attract offence under section 138 of NI Act the cheque in question must have to be issued towards legally enforceable debt. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of negotiable instruments. Even under Section 139 of the Act, a rebuttable SCCH-24 8 C.C.No.1176/2020 presumption shall be raised that, cheque in question was issued regarding discharge of legally enforceable debt. These presumptions are mandatory provisions that are required to be raised in case of negotiable instruments.
15. The learned counsel for accused at this juncture has referred judgment reported in (2014) 2 SCC 236 between John K Abraham Vs. Simon C Abraham & Anr., wherein it was held that "in order to draw presumption under S.118 r/w S.139, burden lies on complainant to show; (i) that he had the requisite funds for advancing the sum of money/loan in question to accused, (ii) that the issuance of cheque by accused in support of repayment of money advanced was true, and (iii) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant".
16. In the said case, complainant was not aware of the date when he has lend substantial amount of Rs.1,50,000/- to the accused, he has failed to produce relevant documents in support of alleged source of advancing money to the accused, the complainant was also not aware as to when and where the transaction took place for which the cheque in question was issued to him by the accused, the complainant also not sure who wrote the cheque and made contradictory statement SCCH-24 9 C.C.No.1176/2020 in that regard. Under the given set of facts the Hon'ble Supreme Court has ordered to acquit the accused.
17. In ILR 2009 KAR 172 between Sri A Viswanath Pai Va. Sri Vivekananda S Bhat, it was held that "Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act; as, Section 139 merely raise a presumption in favour of the complainant that the cheque was issued for discharge of any debt and other liability"
18. In the said case, the accused has successfully established his defence version by adducing his own evidence and also by eliciting in the cross examination of PW.1 and also by producing document ie., statement of account. Under the given set of fact it was observed that as on the date of issuance of cheque in question, there did not exit any legally enforceable debt payable by the accused to the complainant.
19. In (2019) 5 SCC 418 between Basalingappa Vs. Mudibasappa, it was held that "prosecution must prove the guilty of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities SCCH-24 10 C.C.No.1176/2020 can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which accused relies".
20. In ILR 2008 KAR 4629 between Shiva Murthy Vs. Amruthraj, it was observed that "Before considering the conduct of the accused to find out as to whether or not he has been able to rebut the Statutory Presumption available under Section 139, the Courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the Courts could have proceeded to draw presumption under Section 139 of the N.I Act and thereafter find out as to whether or not the accused has rebutted the said presumption".
21. In the light of the defence taken by the accused and the observation made in the aforesaid rulings, if the evidence placed on record is appreciated, it is the first and foremost defence taken by the accused that he has not been served with the legal notice hence there is non compliance of mandatory requirement of Sec. 138 (B) of NI Act. Hence, on that count itself complaint is liable to be dismissed.
SCCH-24 11 C.C.No.1176/202022. The learned counsel at this juncture has relied upon judgment reported in (2004) 8 SCC 774 between V Raja Kumari Vs. P Subbarama Naidu & Anr., In the said case the trial court dismissed the compliant at the thresh hold on the ground that U/Sec. 138 service of notice is mandatory and mere sending of notice is not sufficient and in the said case legal notice is not send to the correct address of the accused. The Hon'ble Supreme Court has observed that "The question whether notice as required under Section 138 of the Negotiable Instruments Act, has been served has to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that there was no proper service of notice".
23. The observation made in the aforesaid ruling has no application to the case in hand and even if the observation made in the aforesaid ruling is applied to the case in hand then also the said observation favours the case of complainant instead the accused.
24. So far as the service of notice to the accused is concerned, the complainant has issued legal notice to the office address and residential address of the accused. He has produced office copy of the legal notice, two postal acknowledgments, track consignment report and SCCH-24 12 C.C.No.1176/2020 unserved postal cover marked as Ex.P3 to Ex.P7. Ex.P7 is the unserved postal cover issued to the first address of the accused and same is returned with shara "Insufficient address not found". As per the track consignment report at Ex.P6, the legal notice issued to the accused to his second address is delivered.
25. The learned counsel for accused has argued that Ex.P6 is created by the complainant. If Ex.P6 is carefully perused, it bears the emblem of the postal department and it is a public document. Hence, presumption shall have to be drawn regarding the genuineness of the said document. While disputing the service of legal notice, the learned counsel for accused has cross examined the PW.1 and posed many more questions regarding the family status of the accused, address of the accused, phone number of the accused etc. and posed suggestion that the legal notice issued to the two addresses has not been served to the accused and that the complainant has issued legal notice to the wrong address of the accused. During the course of argument it is submitted that since the complainant is not aware of the family background of the accused, his place of residence, his mobile number etc., the complainant and accused are totally strangers and hence there was no money transaction held between them and SCCH-24 13 C.C.No.1176/2020 no notice was issued to the accused because the complainant is not aware of the address of the accused.
26. In the light of the submission made by the learned counsel for accused, if the cross examination of PW.1 is perused, regarding the family status of the accused is concerned, it is deposed by PW.1 that he knows the accused since 15 years as the house of the mother of accused is located nearby the house of the complainant and that accused had two children who are one is male and one is female and that accused was running two bus having name "Siddalingeshwara" in Magadi - Bangalore road and he has seen the said buses of the accused and that accused was not residing with his mother and he was residing separately but he used to come to his mother's house. It is true that PW.1 has pleaded ignorance of the native place of the accused, the name and age of the children of the accused and his wife, the school and the class in which the children of the accused are studying and the mobile number of the accused etc., Admittedly, complainant is not the close relative of the accused so as to know the name and age of the wife and children of the accused and the educational background of the children of the accused. The complainant knows the necessary information about the accused that would be sufficient to have transaction with SCCH-24 14 C.C.No.1176/2020 the accused. The accused nowhere has denied the evidence of complainant that his mother was residing nearby the house of complainant. Though the accused was residing separately, his visiting the house of his mother quite often cannot be ruled out and it is nowhere the case of accused that he is not in good relationship with his mother and he was not visiting his mother's house so as to deny the acquittance with the complainant. Further, during the evidence, the Dw.1 himself has deposed that complainant had two wives and his second wife had three brothers of whom brother by name Indresha is dead and that the name of the second wife of the accused is Rajamma. By deposing so accused has made it clear that complainant is very well known to him, he knows the family back ground of the complainant.
27. Though the accused has denied the correctness of the first address mentioned in the legal notice and complaint, but he has not placed any document to prove as to what exactly is the correct address of the accused. The accused nowhere has denied the correctness of the second address. Though the accused in his evidence in chief has stated his address which is all together different from the two addresses mentioned in the legal notice and complaint but accused SCCH-24 15 C.C.No.1176/2020 has not placed any document to prove that the address mentioned in his evidence in chief is his correct address. Had the accused produced his Aadhar card and other document to prove his address and had the address mentioned in the Aadhar card and other document different from the address mentioned in the legal notice, then there is some reason to believe that the address mentioned in the legal notice is the incorrect address of the accused. At the cost of repetition the notice issued to the accused to the second address is served as per track consignment report. Further in the bail bond executed by the accused before the court he has mentioned the address which is in consonance with the first address mentioned in the legal notice. When the accused has not produced any iota of document to prove that the address mentioned in the legal notice is wrong and incorrect address there is no reason to believe that the complainant has issued legal notice to the incorrect address of the accused.
28. When complainant has proved that he has issued the legal notice to the correct address of the accused presumption shall have to be drawn u/Sec. 27 of General Clause Act regarding due service of legal notice. Hence, it can be said that legal notice is duly SCCH-24 16 C.C.No.1176/2020 served to the accused. In spite of service of the legal notice, the accused has not given any reply to the notice.
29. Regarding the dispute raised by the accused as to the financial status of the complainant is concerned, as per the case of complainant he had lend sum of Rs.3,60,000/- to the accused. Though in the complaint and legal notice, the complainant has not stated to the effect that, by withdrawing sum of Rs.2,50,000/- from his account and by utilising sum of Rs.1,10,000/- which was with his hand he had paid in all sum of Rs.3,60,000/- to the accused, but during his evidence he has given evidence to the aforesaid effect. To substantiate the said oral evidence, the complainant has produced his bank statement as per Ex.P9.
30. If Ex.P9 is carefully perused, there is an entry dated 15-11-2018 regarding withdrawal of sum of Rs.2,50,000/- from the account of the complainant. As per the case of complainant sum of Rs.3,60,000/- was given to the accused on 15-11-2018. The learned counsel for accused has vehemently submitted that when there is no pleading either in the complaint and in the legal notice regarding sum of Rs.2,50,000/- with drawn by the complainant so as to give it to accused, the oral evidence given by the complainant to that effect cannot be SCCH-24 17 C.C.No.1176/2020 considered and that the evidence given to the aforesaid effect is nothing but an improvement and it is improvised version of the complainant. But this court is not agreeing with the aforesaid line of argument canvassed by the learned counsel for accused for the reason that complaint is not an encyclopedia to state each and every fact. Only material facts relevant to the case has to be pleaded. Explanation to the said fact has to be given in the evidence.
31. So far as the financial capacity of the complainant is concerned, if the evidence of PW.1 is perused, it is deposed by PW.1 that he was working in NTC and he is a retired Central Government employee got voluntary retirement during the year 1995 and during the year 2018, he was doing contract work of plumbing and painting. It is true that complainant has not produced either license or any other document to prove that as on the year 2018 he was doing contract work of plumbing and painting. But if the entire cross examination of PW.1 line by line is read, nowhere the accused has denied the avocation of complainant as contractor in plumbing and painting or he was working in Central Government Department. No question was posed as to the quantum of pension amount receiving by the complaint. Hence mere asking question about the SCCH-24 18 C.C.No.1176/2020 avocation and income would not be sufficient to dispute the financial status. The accused has to pose question or suggestion to the complainant either by denying the avocation or income of the complainant or directly suggestion has to be posed that complainant had no financial capacity to lend sum of Rs.3,60,000/- to the accused. But as observed supra no where during the cross examination of PW.1, single suggestion has been posed that complainant had no financial capacity to lend Rs.3,60,000/- to the accused. In further, in the evidence in chief of the accused also nowhere he has questioned the financial status of the complainant.
32. Now at this juncture it would be relevant to refer here the Ex.D3 and the line of cross examination done to the PW.1, wherein the accused has bent upon taken the contention that the complainant is in the habit of extracting money and that he has lodged several complaint u/Sec. 138 of NI Act and among them Kumar is the one against whom also lodged complaint as per Ex.D3.
33. During the cross examination, the PW.1 has admitted the several complaints lodged by him against several persons u/Sec. 138 of NI Act. As per the evidence of PW.1, among the case so filed by him some of the SCCH-24 19 C.C.No.1176/2020 cases were settled and in some of the cases part payments were made and one of the case is towards the cheque issued for repayment of part of sale consideration amount. It is relevant to state here that nowhere during the cross of PW.1, the learned defence counsel has posed any suggestion that complainant is a money under lending money on exorbidant interest against to the law. When as per the own case of the accused, complainant had filed several cases u/Sec. 138 of NI Act and having admitted the case filed by the PW.1 against several other persons when complainant stated that in some of the case he had received cheque amount and said fact is not denied by the accused, when complainant has produced bank statement which discloses withdrawal of Rs.2,50,000/- on 15-11-2018 and when it is not disputed that complainant was a Central Government employee, under such circumstances there is every reason to believe that complainant had the financial capacity to lend Rs.3,60,000/- to the accused.
34. So far as the judgment relied by the accused reported in (2015) 1 SCC 99 between K Subramani Vs. D Damodara Naidu. In the said case, the complainant and accused were working as lecturer in Government College at the relevant time and the alleged loan of Rs.14 lakhs is claimed to have been paid by cash and it is disputed.
SCCH-24 20 C.C.No.1176/2020Both of them were governed by the Government Servants 'Conduct Rules' which prescribes the mode of lending and borrowing. There is nothing on record to show that the prescribed mode was followed. The source claimed by the complainant is savings from his salary and an amount of Rs.5 lakhs derived by him from sale of Site No.45 belonging to him. Neither in the complaint nor in the chief -examination of the complainant, there is any averment with regard to the sale price of Site No.45. The sale deed concerned was also not produced. Though the complainant was an income tax assessee he had admitted in his evidence that he had not shown the sale of site No.45 in his income tax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs.1,49,205/- from LIC. It is pertinent to note that the alleged loan of Rs.14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not produce bank statement to substantiate his claim. The trial court took into account the testimony of the wife of the complainant in another criminal case arising under Section 138 of the NI Act in which she has stated that the present appellant -accused had not taken any loan from her husband". Under the given set of facts the Hon'ble Supreme Court has confirmed the order of acquittal passed by the trail court holding that SCCH-24 21 C.C.No.1176/2020 complainant had no source of income to lend sum of Rs.14,00,000/- to the accused and failed to prove that there is legal recoverable debt payable by the accused to him.
35. Coming to the case in hand, though the complainant has not produced income tax returns but he has produced his statement of account and complainant was a retired Government employee, hence there was no need to obtain prior permission from the Department. Further for the reason stated supra the complainant has proved his financial capacity. Hence, the observation made in the aforesaid ruling has no application to the case in hand.
36. So far as the issuance of cheque is concerned, it is the defence taken by the accused that at no point of time he had issued disputed cheque to the complainant and that he had sale transaction with the brother in law's of complainant by name Lakshmi Narayana and Mahesh in respect of four sites situated in Magadi Taluk in SY NO. 42/2 and that while receiving advance amount of Rs.2,00,000/-, he has issued blank signed cheque and blank signed DP note to Lakshmi Narayana and Mahesh and that even though sale deed was executed and registered but those persons have not returned the SCCH-24 22 C.C.No.1176/2020 cheque instead they have misused the cheque by filing false complaint through the complainant.
37. As observed supra, it is not in dispute that Lakshmi Narayana and Mahesh are the brother in laws of complainant who happens to be the brothers of the second wife of complainant by name Rukumini. The accused has proved the sale transaction held between him and the brother in laws of complainant by producing Ex.D2 to which Rukumini is also one of the witness.
38. The learned counsel for accused during the course of cross examination of PW.1 has asked question whether PW.1 is ready to examine his brother in laws as witnesses. It is relevant to state here that nowhere in the evidence the complainant has referred anything about his brother in laws and nowhere has stated that his brother in laws are some how related to the disputed loan transaction. Hence, the question of complainant examining the aforesaid two persons would not arise. When it is the case of the accused that he has given blank signed cheque and blank signed DP note to the brother in law of the complainant regarding the sale transaction and that complainant has misused the said cheque and DP note and filed the false complaint, under such circumstances in order to prove the said material SCCH-24 23 C.C.No.1176/2020 defence it is for the accused to examine the aforesaid two persons but not for the complainant. But accused has not taken any steps to examine Lakshmi Narayana and Mahesh as witnesses from his side. It is true that Lakshmi Narayana and Mahesh being the brother in laws of complainant would not come forward to give evidence favorable to the case of accused but accused could have tried to secure their presence and to examine them as his witnesses. Even if during the evidence those witnesses turns hostile there was every opportunity for the accused to cross examine the said witnesses by treating them as hostile. Hence, the explanation given by the accused as to how the disputed cheque and DP note reached the hands of the complainant has remained unproved. Further there is no reason to believe that the accused has issued the disputed cheque and DP note to the aforesaid Lakshmi Narayana and Mahesh as security for the sale transaction, for the reason that if really the accused had received Rs.2,00,000/- towards part consideration amount in advance in respect of sale transaction and if really 11 -E sketch was not ready so as to get the registered sale deed executed in favour of Lakshmi Narayana and Mahesh, under such circumstances as a security for the advance amount and fixing future date for execution of sale deed one may opt to get the agreement of sale executed but not insist for SCCH-24 24 C.C.No.1176/2020 issuance of cheque and DP note as security. The question of issuance of cheque and DP note would arise only there is a loan transaction held between the two persons and not otherwise. Hence, there is no reason to believe that the disputed cheque and DP note was issued as security for the sale transaction held between the accused and Lakshmi Narayana and Mahesh. If really, the said Lakshmi Narayana and Mahesh had misused the cheque and DP note through the complainant, nothing prevented the accused from taking necessary legal action against the complainant, Lakshmi Narayana and Mahesh. Even though Ex.D2 was executed way back in the year 14-03-2016 but till this day even after lapse of 9 years the accused has not taken any action against those persons. No man of ordinary prudence would keep quite under the similar circumstances without re- coursing legal action. Hence, the explanation given by the accused as to how the disputed cheque and DP note has reached the hands of the complainant can not be accepted.
39. So far as the execution of DP note as per Ex.P8 is concerned, in order to prove the execution of Ex.P8, the complainant has examined the scribe of Ex.P8 as PW.2. The PW.2 has deposed about the document as per Ex.P8 drafted by him at the time when complainant was SCCH-24 25 C.C.No.1176/2020 lending sum of Rs.3,60,000/- to the accused. It is deposed by PW.2 that at the time of lending Rs.3,60,000/- by the complainant, himself and witness by name Ramakrishna were present and in their presence only the accused had borrowed money from the complainant. The Learned counsel for accused has much high lighted the contradictions in the evidence of PW.2 and submitted that the evidence of PW.2 cannot be relied upon for any reason and PW.2 being the close friend of the complainant is an interested witness.
40. If the evidence of PW.2 is read in whole, according to him apart from complainant he knows even the accused as the house of the mother of accused is situated nearby the house of complainant and he used to walk in front of the road of the house of complainant. The accused has not denied the fact of his knowing the PW.2. It is true that PW.2 at one breath has deposed that Ex.P8 was signed in all four persons ie., himself, complainant, accused and Ramakrishna but another breath deposed that complainant has not singed the Ex.P8. Further at one breath the PW.2 has deposed that all of them have signed the Ex.P8 in one pen but after seeing the Ex.P8 the PW.2 has deposed that they have used different pen to put their signature. Further as per the evidence of PW.1 he has withdrawn sum of SCCH-24 26 C.C.No.1176/2020 Rs.2,50,000/- from the bank and sum of Rs.1,10,000/- was with him and by adding the said amount he had paid sum of Rs.3,60,000/- to the accused. But against to the said evidence the PW.2 has deposed that the complainant has withdrawn Rs.3,50,000/- from the bank and the complainant has given 7 bundles of Rs.50,000/- each. The Learned counsel further has argued that PW.2 has signed the consideration receipt at two places. If consideration receipt is perused, it bears the two signature of the PW.2. Hence, it can be said that in dual capacity the PW.2 has signed the consideration receipt one as the witness and another as the scribe. It is true that Ex.P8 do not bear the signature of complainant. But there is no hard and fast rule that DP note and consideration receipt should bear the signature even of the person who lends money. So far as the contradiction highlighted by the learned counsel for accused is concerned, Ex.P8 was prepared during the year 2018. The PW.2 has given evidence in the month of April -2025 and more than that the PW.2 is aged about 69 years. It is after lapse of nearly 7 years from the date of Ex.P8, the PW.2 has given evidence. The court has to bear that witnesses are giving evidence after lapse of time hence minor or inconsequential discrepancies should not matter. Hence, the contradiction, omissions, improvements if any in the evidence of PW.2 on some of SCCH-24 27 C.C.No.1176/2020 the facts which are not material cannot be viewed seriously.
41. The Learned counsel for accused in further has much argued regarding the different ink used in the Ex.P1 to fill the contents and to put the signature and submitted that accused has not filled up the cheque and it was filled by complainant according to his whims and fancies.
42. At the cost of repetition, the accused has admitted the cheque in question relates to his account and his signature in the cheque. So far as the different ink used in Ex.P1 is concerned, now at this juncture it would be relevant to refer here the judgment reported in K.Ramesh Vs. K.Kothandaraman in SLP (Crl.) No.3377 of 2019. In the said case, it was observed that "when once the negotiable instrument has been marked evidence, presumption regarding its validity would arise and it is for the accused to displace the said presumption". By referring the judgment in the case of Bir Singgh, it was observed that "even if a blank cheque leaf is voluntarily signed and handed over by the accused towards some payment would attract the presumption Section 139 of the Act and in the absence of any cogent evidence to show that the cheque was not issued in discharge of the SCCH-24 28 C.C.No.1176/2020 debt, the presumption would hold good". In the said case, since accused has admitted his signature in the disputed cheque but disputed the rest of writings, he filed application to refer the disputed writings in the cheque to the handwriting expert. The Hon'ble Supreme court rejected the said application by observing to the aforesaid effect.
43. In view of the observation made in the aforesaid judgment, it can be said that the different ink used for signature and writings would not sufficient to believe the version of accused when the accused himself admitted his signature in the Ex.P1.
44. On appreciation of materials placed on record it can be said that accused has failed to prove the defence taken by him and thereby to rebut the presumptions raised u/Sec.118 and 139 of NI Act. Hence, considering the facts and circumstances of the case it can be said that the complainant has proved the case beyond reasonable doubt and accused has failed to probablise his defense. Under such circumstances it can be said that accused has committed offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answer point No.1 in the Affirmative.
SCCH-24 29 C.C.No.1176/202045. POINT No.2 :- The Negotiable Instruments Act is a Special Enactment, and the provisions of the Act prevail over the general provisions contained in Code of Criminal Procedure. Therefore, keeping the relevant provisions of the Act in mind the sentence is to be passed. In the light of the reasons on the point No.1, I proceed to pass the following;
ORDER Acting under Sec. 255 (2) of Cr.PC, the accused is found guilty of the of the offence punishable under section 138 read with section 142 of NI Act and he is sentenced to pay fine of Rs.3,70,000/- (Rupees Three Lakh Seventy Thousand only) out of which Rs.3,65,000/- shall be paid as compensation to the complainant under Sec.357 of CRPC and Rs.5,000/- shall be payable to the State.
In the event of default in payment within a period of one month, the accused shall be convicted to simple imprisonment for a period of six months.
The bail bond of accused and that of surety stands canceled.
SCCH-24 30 C.C.No.1176/2020Office to furnish the copy of this judgment, free of cost to the accused.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 1st day of July 2025.) (ROOPASHRI) XXII Addl. SCJ & ACJM Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT P.W.1 : Sri.S.J. Javaraiah P.W.2 : Sri. Rangahanumaiah Y.M. LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P1 : Original Cheque issued by accused Ex.P1(a) : Signature of the accused.
Ex.P2 : Bank endorsement
Ex.P3 : Copy of legal notice
Ex.P4 & 5 : Two Postal receipts
Ex.P6 : Postal Track consignment
Ex.P7 : Postal cover
Ex.P8 : On Demand Promissory note with
SCCH-24 31 C.C.No.1176/2020
consideration receipt
Ex.P8(a) & : Signatures of the accused.
Ex.P8(b)
Ex.P8(c) & (d) Signature of the
PW2/(Rangahanumaiah Y M) and
signature of the Ramakrishna
Ex.P9 : Copy of bank statement
LIST OF WITNESSES EXAMINED BY THE ACCUSED DW.1 Siddalingaiah LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D1 Copy of the On demand and payment receipt, Ex.D2 Certified copy of the sale deed Ex.D3 Certified copy of the complaint, Statement, DP
note and other documents in PCR No. 14783.
XXII Addl. SCJ & ACJM Bengaluru.