Bangalore District Court
Shashikala Suresh vs Ashok Swaraj on 9 October, 2025
1
CC.NO.14468/2023
KABC030261792023
Presented on : 26-06-2023
Registered on : 26-06-2023
Decided on : 09-10-2025
Duration : 2 years, 3
months, 13 days
IN THE COURT OF XII ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU.
Dated this the 9th day of October, 2025.
:Present:
Smt. Dhanalakshmi.R
XII Addl. Chief Judicial Magistrate,
Bangalore.
CC.No.14468/2023
Complainant : Smt. Shashikala Suresh
W/o. Suresh,
Aged about 48 years,
R/at: No.12, 1st Main,
2nd Cross, Raghavendra Layout,
Kothanur Cross,
Bannerghatta Road,
Bengaluru-560078
(By Sri.B.E., Advocate)
V/s
Accused : Sri.Ashok Swaraj,
Aged about 48 years,
R/at: Door No.250,
4th Main, M.S.Ramaiah City,
J.P.Nagar, 8th Phase,
Bengaluru-560078.
(By Sri.T.S.G - Advocate )
2
CC.NO.14468/2023
KABC030261792023
1. The date of : 28.04.2019
commission of the
offence
2. Date of the filing of : 16.10.2019
offence
3. Name of the : Smt.Shashikala Suresh
Complainant
4. Date of recording of : 26.06.2023
evidence
5. Date of closing of : -
evidence
6. Offence Complained of : 138 of NI Act
7. Opinion of the Judge Accused is Convicted
8. Date of such order for : 09.10.2025
the following
JUDGMENT
01. This case is registered U/sec. 200 of Cr.P.C based on the written complaint given by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (hereinafter called as NI Act for the purpose of brevity).
02. The case of the complainant in brief is as under : -
3
CC.NO.14468/2023 KABC030261792023 The complainant and accused are known to each other for several years. The accused has borrowed hand loan of Rs.32,375/- from the complainant on 01.02.2019. But the accused failed to return the same within two months as agreed by him. upon insistence the accused has issued cheque bearing No.206422 dated:
28.04.2019 for Rs.32,375/- drawn on State Bank of India, R.BI Layout J.P.Nagar, Bengaluru. As per instruction of the accused, the complainant presented the said cheque for encahsment through her Banker. But on 30.04.2019 and 11.07.2019 said cheque was dishonoured with an endorsement as "Account Closed". As such the complainant has issued demand notice dt: 29.07.2019 to the accused calling upon him to repay the cheque amount within 15 days from the date of receipt of the said notice. Inspite of 4 CC.NO.14468/2023 KABC030261792023 receiving the said notice, the accused has not repaid amount. Hence, the present complaint.
3. On filing of the complaint, cognizance of the offence is taken and recorded the sworn statement of the complainant and marked 7 documents as per Ex.P.1 to Ex.P.7. The complainant has complied all the statutory requirements under Sec.138 of N.I.Act. Thereafter, the case is registered against the accused and summons issued.
4. On service of summons, the accused appeared through his counsel and he was enlarged on bail. The substance of accusation was read over and explained to the accused in the language known to him. The accused has pleaded not guilty and claimed to be tried. As per the directions of Hon'ble Supreme Court of India in Indian Bank Association V/s Union of India & 5 CC.NO.14468/2023 KABC030261792023 Others reported in (2014) 5 SCC 590, this court has treated the sworn statement of the complainant as her evidence and in compliance with the direction of Hon'ble Apex Court in the aforesaid citation the statement of the accused was also recorded under section 313 of Cr.P.C. On application filed by the counsel for the accused under section 145 of NI Act, permission was accorded to cross examine PW1. Inspite of giving sufficient opportunity the accused has not cross examined PW1 nor has lead defence evidence. Hence, cross of PW.1 & defence evidence is taken as nil.
05. Heard the learned counsel for the complainant. Inspite of giving sufficient opportunities the learned counsel for the accused has not addressed his arguments. 6
CC.NO.14468/2023 KABC030261792023
6. The following points arise for consideration:
POINTS
1) Whether the complainant proves that the accused has issued the cheque for the legally recoverable debt as alleged by her?
2) Whether the accused has committed the offence punishable under section 138 Act?
3) What Order or Sentence?
7. The above points are answered as under:
Point No.1: In the Affirmative, Point No.2: In the Affirmative, Point No.3: As per the final order for the following:
R E A S O N S
10. POINT No. 1 and 2: This Court is of the opinion that it need not repeat the entire averments made in the complaint here also, as this 7 CC.NO.14468/2023 KABC030261792023 Court has already narrated the same at the inception of this judgment.
09. In order to bring home a liability under Section 138 of NI Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz.
1. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
4. The payee or the holder in due course of the cheque makes a demand for the payment of 8 CC.NO.14468/2023 KABC030261792023 the said amount of money by giving a notice in writing to the drawer of the cheque within 40 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
10. In order to substantiate the contention of the complainant she got examined herself as PW1 and got marked in documents as ExP1 to Ex.P7. If the documents produced by the complainant is perused the ExP1, cheque bears the signature of accused. The accused nowhere has disputed the cheque which relates to his account so also his signature in the ExP1. It is deposed by PW1 that cheque in question was issued by the accused for discharge of his liability.
The cheque in question was presented by the complainant through his Banker which was 9 CC.NO.14468/2023 KABC030261792023 returned with a memos as per Ex.P2 & P3. Hence, she got issued demand notice to the accused through RPAD, which is produced at Ex.P.4, postal receipt is marked at Ex.P5, write letter to post office is at Ex.P6, Acknowledgment issued by Post office as at Ex.P7.
11. If the materials placed on record are perused, though the accused has appeared before the court and got enlarged on bail but in spite of giving sufficient opportunity he did not opt to cross examine PW1 and also did not lead defense evidence. There by the accused has not taken any defense to rebut the case of the complainant. The accused by not cross examining PW1 and by not leading his evidence has not disputed the case of the complainant. The accused neither has disputed the due service of demand notice on him nor has disputed the financial capacity of the 10 CC.NO.14468/2023 KABC030261792023 complainant to lend a sum of Rs.32,375/-. The accused even has not disputed the cheque as per Ex.P1 issued by him towards discharge of legally enforceable debt and his liability to pay the cheque amount.
12. It is well settled that in order to attract offence Under Section 138 of NI Act the cheques in question must have been 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 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. 11
CC.NO.14468/2023 KABC030261792023
13. It is the burden of the accused to rebut the contention taken by the complainant with preponderance of probabilities by placing cogent and corroborative evidence. To prove his defence, accused has not adduced positive evidence in this case. The accused has not at all denied the contents of demand notice nor liability to pay the amount covered under the cheque and she kept mum for long time.
14. This court has recorded the statement of accused as required under Sec.313 of Cr.P.C. At the time of recording statement expect denying the incriminating evidence appearing against him he did not raise any defence. At the cost of repetition, there is no rebuttal evidence to disbelieve the evidence of PW1. In view of sec. 139 of NI Act, it has to be presumed that cheque is issued in 12 CC.NO.14468/2023 KABC030261792023 discharge of debt or liability and accused did not raise a probable defence.
15. In the light of the discussion made herein above, this court is of the considered opinion that complainant has proved that accused has committed the offence punishable under Section 138 of NI Act. Accordingly, this point is answered in the affirmative.
16. POINT No.2 :- NI Act was enacted to bring credibility to the cheque. The very purpose of the enactment is to promote the use of the Negotiable Instrument, while to discourage the issuance of the cheque without having sufficient funds in their account. Such being the case, the intention of the legislature is that complainant be suitably compensated while the accused be punished for his act.
13
CC.NO.14468/2023 KABC030261792023
17. When compensation is awarded enforcement of the same come into question. There is no provision in the Code of Criminal Procedure for imposing default sentence for enforcing the payment of compensation. In this regard, the Hon'ble Supreme Court in the decision reported in 2002 (2) SCC 420 between Suganthi Suresh Kumar Vs. Jagadeeshan was pleased to hold that "the court may enforce the order by imposing sentence in default''. The same is reaffirmed in latest decision in 2010 AIR SCW 3398 between K.A.Abbas H.S.A. Vs Sabu Joseph. Therefore, it is deemed fit to provide default sentence in order to enforce the payment of compensation. Ex.P.1 cheque is of the Year - 2019. Therefore, the complainant is deprived of the money that was rightfully due to her for about 07 year. Accordingly, it is deemed fit that a compensation of Rs.47,000/- (Rupees Forty Seven Thousand 14 CC.NO.14468/2023 KABC030261792023 only) be granted. It is to be seen that as per the reportable judgment of the Hon'ble High Court of Karnataka in Crl.R.P.No.996/2016 dt: 09.07.2025 the Hon'ble High Court at paragraph No.21 has held as under:
"while passing the order of the sentence after determining the fine/Compensation the court shall also pass an order to pay future interest at the rate of 9% p.a on the compensation amount payable to the complainant by fixing time of one or two months to deposit compensation amount so that even if the matter is challenged before the Session Court in appeal and High Court in Revision the interest of the complainant will be protected".
18. Hence, as per the above judgment the complainant is entitled for future interest at the rate of 9% p.a., on the compensation amount from the date of judgment till its repayment. Further the accused is directed to deposit the compensation amount before this court within three months from 15 CC.NO.14468/2023 KABC030261792023 the date of this order. Accordingly, in the light of above discussions, this court proceed to pass the following:-
ORDER Acting under section 255(2) of Cr.P.C., the accused is convicted for the offence punishable under Section 138 of the NI Act and he is sentenced to pay fine of Rs.47,000/- (Rupees Forty Seven Thousand only) in default to undergo Simple Imprisonment for a period of six months.
If the fine amount is recovered a sum of Rs.46,000/- (Rupees Forty Six Thousand only) is ordered to be paid to the complainant by way of compensation as per the provisions under Section 357 of Cr.P.C. and the remaining amount of Rs.1,000/- is to be appropriated to the State.
The complainant is entitled for future interest at the rate of 9% p.a., on the compensation amount from the date of judgment till its complete repayment. 16
CC.NO.14468/2023 KABC030261792023 The accused is directed to deposit the compensation amount before this court within three months from the date of this order.
The Bail Bond and cash surety of the accused shall stand canceled.
Supply a free copy of this Judgment to the accused.
(Dictated to the stenographer directly on the computer, computerized by her, corrected by me and then pronounced in the open Court on this 09th day October, 2025).
(Smt.Dhanalakshmi.R) XII Addl. CJM, Bengaluru ANNEXURES Witnesses examined for the Complainant:
PW.1 : Smt.Shashikala Suresh Documents exhibited for the Com Ex.P.1 Cheque Ex.P.2 & 3 Memos of the Banker, Ex.P.4 Copy of Legal Notice, Ex.P.5 Postal Receipt Ex.P.6 Post Office letter dt:
17
CC.NO.14468/2023 KABC030261792023 16.09.2019 Ex.P.7 Acknowledgment issued by post office Witnesses examined for the defence Accused:
NIL Documents exhibited for the defence Accused:- Digitally signed by
NIL DHANALAKSHMI DHANALAKSHMI R R Date: 2025.10.13 17:06:03 +0530 (Smt.Dhanalakshmi.R) XII Addl. CJM, Bengaluru CC.14468/2023 09.10.2025 For Judgment
(Judgment pronounced in the open court vide separate Order) ORDER Acting under section 255(2) of Cr.P.C., the accused is convicted for the offence punishable under Section 138 of the NI Act and he is sentenced to pay fine of Rs.47,000/- (Rupees Forty Seven Thousand only) in default to undergo Simple Imprisonment for a period of six months.
If the fine amount is recovered a sum of Rs.46,000/- (Rupees Forty Six Thousand only) is ordered to be paid to the complainant by way of compensation as per the provisions under Section 357 of Cr.P.C. and the remaining amount of Rs.1,000/- is to be appropriated to the State.
The complainant is entitled for future interest at the rate of 9% p.a., on the compensation amount from the date of judgment till its complete repayment.
The accused is directed to deposit the compensation amount before this court within three months from the date of this order.
CC.14468/2023 The Bail Bond and cash surety of the accused shall stand canceled. Supply a free copy of this Judgment to the accused.
XII ACJM, Bengaluru CC.14468/2023