Bangalore District Court
Sahay Kumar.J vs R.Kumaran on 3 December, 2025
KABC030516312021
IN THE COURT OF THE XIX ADDITIONAL CHIEF
JUDICIAL MAGISTRATE AT BENGALURU CITY.
Dated this the 03rd day of December, 2025.
PRESENT:SMT.RASHMI H.B., B.A.(LAW)LL.B.,LLM.,
XIX ADDL.C.J.M., BENGALURU CITY.
C.C.No.17997 of 2021
Complainant :- Mr.Sahay Kumar J.,
S/o.Late J. Joseph,
Aged about 39 Years,
R/at.No.348/1, "Harinivas"
1st Floor, 1st Cross, Near
Bethany School, Koramangala,
8th Block, Bengaluru - 560095.
(Rep. By Sri.S.M.A., Advocate)
-V/s-
Accused :- Mr.R.Kumaran,
S/o.Mr.Rathanam,
Aged about 65 Years,
R/at.No.153, Ground Floor,
2nd D Main Road, 8th Block,
Koramangala,
Bengaluru - 560095.
(Rep. By Sri.J.G., Advocate)
Date of complaint :- 25-03-2021
Date of Commencement :- 12-07-2021
of evidence
Offence complained :- Section 138 of N.I.Act
2 C.C.No.17997/2021
Opinion of the Judge :- Accused is found guilty.
(SMT.RASHMI H.B.,)
XIX ADDL.C.J.M., Bengaluru City.
JUDGMENT
This is a private complaint filed under section 200 of Cr.P.C., against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
02. As per Judgement of Hon'ble LXIII Addl. City Civil and Sessions Judge, Bengaluru City in Criminal Appeal No. 1362/2023, dated 01-08-2025 matter is remanded back for fresh disposal to afford an opportunity to defence.
03.The brief facts of the complaint is as under:
The complainant had entered into Lease Agreement dated 06-07-2019 with accused in respect of residential premises situated at No.153, Fourth Floor, 2 nd D Main Road, 8th Block, Koramangala, Bengaluru. The complainant had paid the lease amount of Rs 2,00,000/- by way of cash to the accused at the time of executing lease agreement. Since 3 C.C.No.17997/2021 there was frequent water problem, the complainant decided to vacate the said leased premises and both have agreed to cancel the lease agreement. In the month of February-2020, the complainant vacated the premises. Towards the payment of Rs 1,70,000/-, accused has issued cheque bearing No.002688 dated 20-11-2020 for Rs.1,70,000/-, drawn on Corporation Bank, Koramangala branch, Bengaluru, in favour of the complainant. As per the instructions of the accused, the complainant presented said cheque for encashment through his banker Central Bank of India, Koramangala Branch, Bengaluru on 20-11-2020 and on 04-02-2021. The cheques are returned unpaid with bank endorsement dated 21-11- 2020 and 05-02-2021 for the reason "Funds Insufficient".
Thereafter, the complainant has got issued legal notice to the accused on 12-02-2021 through registered post and the same was served on accused on 13-02-2021. But, the accused has failed to make payment of cheque amount. Hence, complainant has filed this complaint on 25-03-2021.
04. After presentation of complaint, this Court took cognizance of offence and recorded the sworn statement of 4 C.C.No.17997/2021 complainant. Thereafter, a criminal case is registered against accused and summons is issued to the accused. The accused appeared through his counsel and he is enlarged on bail. The copies of the complaint and other papers furnished to the accused. Substance of accusation was read over to him. Accused has pleaded not guilty and claimed to be tried.
05. As per directions of Hon'ble Supreme Court of India in Indian Bank Association vs Union of India reported in 2014 (5) SCC 590, the sworn statement is treated as examination in chief of complainant. In order to prove the accusation made against the accused, the complainant examined himself as PW1 got marked 07 documents as Ex P1 to Ex.P7.
06. Thereafter, statement of accused is recorded under section 313 of Cr.P.C. wherein the accused has denied the incriminating evidence found on record as false and he submitted he would lead defence evidence. The 5 C.C.No.17997/2021 accused examined himself as DW1 and got marked 01 documents as Ex.D1.
07. Heard the arguments of learned counsels for complainant and accused. Perused entire case record carefully.
08. On the basis of contentions raised in the complaint the points that arises for determination of this Court are as follows:
1.Whether the complainant proves that, the accused issued the cheque towards discharge of legally enforceable debt?
2.Whether the complainant proves the guilt of the accused for the offence punishable under section 138 of Negotiable Instruments Act?
3.What order?
09. Now, this Court answers to above points are as follows:
Point No.1: In the Affirmative;
Point No.2: In the Affirmative;
Point No.3: As per final order for the following:6 C.C.No.17997/2021
:: R E A S O N S ::
10. POINTS No.1 and 2: Since these points are inter- relating with each other, they are taken up together for common discussion to avoid the repetition of facts and findings.
11. This case is tried as summons case. As this matter is tried as summons case, this Court relies on the evidence recorded by learned predecessor in office. In that regard, this Court relies on decision of Hon'ble Supreme Court of India in the case of Mehsana Nagarik Sahkari Bank Ltd., V/s Shreeji Cab Co. & Others reported in 2014(13) SCC 619. Wherein the Hon'ble Supreme Court had observed that de- nova hearing is necessary only when the evidence is recording in summary manner. Therefore, this Court has proceeded with the case on the basis of part evidence recorded previously.
12. Before proceeding with the discussion, in order to prove the guilt of offence under section 138 of N.I. Act, initial 7 C.C.No.17997/2021 burden casts on the complainant to prove the following ingredients:
a) The cheque must have been drawn
for discharge of existing debt or
liability.
b) Cheque must be presented within
validity period.
c) Cheque must be returned unpaid due
to insufficient funds or it exceeds the amount arranged.
d) Fact of dishonour be informed to the
drawer by notice within 30 days.
e) Drawer of cheque must fail to make
payment within 15 days of receipt of
the notice.
13. In order to prove the case, the complainant - Sri.Sahay Kumar J., has examined himself as PW1. The PW1 has filed an affidavit in lieu of examination-in-chief reiterating entire complaint averments. In support of his oral evidence, he has produced Ex.P1 to 7 documents. The complainant got marked one original cheque as Ex.P1, signature of accused as Ex.P1(a), two bank endorsements as Ex.P2 and 3, demand notice as Ex.P4, postal receipt as Ex.P5, postal acknowledgment as Ex.P6 and Appeal Memorandum in Criminal Appeal No 1362/2023 as Ex.P7. 8 C.C.No.17997/2021
14. During cross-examination of PW1, he has admitted the fact that lease period is agreed for three years from July 2019 and security amount is Rs 2,00,000/-. The defence suggested he has sub-leased the property to some third party and when accused vacated them, he has paid the security amount to complainant. PW1 has denied said suggestions as false. PW1 has deposed the accused has deducted Rs 30,000/- from security deposit towards painting and water charges. The PW1 has deposed the date of cheque is rectified by accused only and he has affixed his signature near the corrected date. The accused suggested the cheque given for security is misused by him. The PW1 has denied said suggestions as false.
15. The evidence of PW1 and Ex.P.1 to Ex.P7 clearly show the complaint is filed within time and all the ingredients of section 138 of N.I.Act. The cheque is issued for legally recoverable debt and it is dishonored for 'Funds Insufficient'. The said fact is brought to the notice of accused. Till date the accused did not comply the demand 9 C.C.No.17997/2021 of the complainant for payment of amount mentioned in the cheque. Therefore, PW1 has discharged his burden to prove the ingredients of the offence punishable under section 138 of Negotiable Instruments Act.
16. Another aspect is to consider whether the Ex.P1 cheque and Ex.P1(a) signature belongs to the accused or not. The defense has admitted Ex.P1 cheque belong to accused and it bears his signatures. These facts clearly shows that the cheques in dispute is belongs to accused and he has signed the said documents. Therefore, presumption under section 118 and 139 of N.I. Act lies in favour of the complainant.
17. As per provision of section 118 and 139 of N.I. Act, the court has to presume liability of the accused and to such amount mentioned in the cheque to discharge legally recoverable debt. The said aspect was denied by the accused. Once the execution of cheque is admitted section 139 of the Act, mandates a presumption that the cheque was for the discharge of any debt or other liability. 10 C.C.No.17997/2021 Thereafter, the onus of proving probable defense of the accused is on accused and standard of proof for rebutting presumption is preponderance of probabilities. To rebut presumption it is open for the accused to rely on evidence or the accused can also rely on the materials submitted by the complainant in order to raise probable defense.
18. In that regard, the Hon'ble Supreme Court of India in its Judgment reported in 2019(5) SCC 418 in the case of Basalingappa V/s Mudibasappa discussed the manner in which accused could rebut the presumption raised under section 118 and 139 of Negotiable instruments Act. The Hon'ble Supreme Court of India in the case of Basalingappa Vs. Mudibasappa reported in 2019 (5) SCC 418 laid down principles regarding how presumption under section 118 and 139 of N.I.Act can be rebutted.
19. To rebut the presumptions, accused entered into witness box as DW1. He has deposed he has leased out the house for 3 years to complainant by executing lease agreement dated 06-07-2019 and he has received Rs 11 C.C.No.17997/2021 2,00,000/- and said lease agreement is not registered document. The complainant sub-leased said property to Smt.Geetha for monthly rent of Rs 7,000/- . The said fact came to his knowledge after 8 months and he has called both complainant and Smt.Geetha to his house. At that time, he has paid Rs 30,000/- in cash to complainant and issued a security cheque for Rs 1,70,000/- in the month of February-2020. Thereafter, in the month of October-2020 he has repaid Rs 1,70,000/- to complainant in cash. But he did not return the cheque and it is misused. In that regard, he has sent Ex D1 reply notice. Therefore, he prays to acquit him. In support, accused has got marked reply notice dated 23-03-2021 as Ex D1.
20. During cross-examination, Dw1 has deposed he is having monthly income of Rs 40,000/- per month and he is paying income tax. He has admitted the fact that he did not sent notice regarding termination of tenancy to accused after he came to know he has sub leased his property. He has deposed no document available to show he has paid Rs 12 C.C.No.17997/2021 30,000/- in cash. Further he has deposed no document available to show he has paid Rs 1,70,000/- to complainant. During his cross-examination, he has admitted the Ex P7 appeal memorandum filed by him and its contents known to him. The complainant has suggested no reply notice sent by him and it is created by him. The said suggestions answered as not true.
21. On going through evidence on record, the accused has admitted the facts narrated by complainant regarding entering into lease agreement dated 06-07-2019 and complainant has paid Rs 2,00,000/- to him. The complainant has stated the house was vacated in the month of February-2020. The said fact is also admitted. The complainant has submitted accused has issued a cheque for Rs 1,70,000/-, after he has dodged the payment of said amount. The accused has contended in his examination in chief has deposed he has paid Rs 30,000/- in cash to accused and issue the disputed cheque as security in the month of February-2020. The said version of the accused is 13 C.C.No.17997/2021 found not probable to believe. As accused has admitted the fact that lease is terminated in the month of February-2020 itself, then what is the necessity for issuance of cheque as security.
22. Further, accused has contended the fact that he has paid Rs 30,000/- in the month of February-2020. In that regard, no admission elicited from the mouth of PW1. Further, accused has contended before the court that he has paid Rs 1,70,000/- in the month of October-2020. The said version is stated in the reply notice marked as Ex D1. The Ex,P7 Appeal Memorandum shows the fact that accused has stated before Hon'ble Appellate Court that he has paid Rs 1,70,000/- in the presence of witnesses in the month of October 2022. The said contradictory statement made by accused regarding repayment. Further, no witnesses are examined by accused to show he has repaid the amount in the month of October-2020. The defence did not explain who the witnesses to said transaction are during examination of PW1 and DW1.
14 C.C.No.17997/2021
23. The accused did not mention issuance of reply notice as per Ex D1 in his Appeal Memorandum or during evidence of PW1. The Ex D1 reply notice is dated 23-03- 2021. As per order sheet of the case, complaint is presented before this court on 25-03-2021. Therefore, issuance of reply notice without production of postal receipt and postal acknowledgments makes issuance of reply notice itself as doubtful circumstance.
24. On going through defence of accused, he has admitted the fact that cheque is issued as security in the month of February-2020 and entire payment of Rs 1,70,000/- is paid in the month of October-2020. The accused being aware of the fact that security cheque is in custody of complainant in the month of October-2020 itself, he has not issued legal notice to complainant seeking return of cheque. Further, he did not file police complaint regarding illegal custody of cheque by the complainant from October-2020 till dishonour of cheque. Further, he did not instruct the bank to stop payment of the security cheque if 15 C.C.No.17997/2021 no liability existed to pay under Ex P1 cheque. No prudent man would kept quiet after he being aware of fact that inspite of payment, security cheque is not returned. Therefore, entire version of accused is found self serving statement. There is no circumstance made out to accused to hand over security cheque for Rs 1,70,000/- to complainant as lease is terminated. Therefore entire evidence of Dw1 found not probable to believe.
25. The defence contended the cheque date is altered. On going through the Ex P1 cheque, the defence contended during cross-examination of PW1 that cheque dated 20-10-2020 is altered as 20-11-2020. The PW1 has explained said correction is made by accused and he has made signature in that regard. The DW1 in his chief examination did not mention the fact that he did not made such correction of date and Ex P1 cheque does not bear his signatures. The bank endorsement shows cheque is dishonored twice for the reason Funds Insufficient and not for reason Material alteration found in cheque. 16 C.C.No.17997/2021
26. The bank endorsement draws presumptive value under section 146 of N.I.Act. On the back page of Ex P1 cheque, date of presentation mentioned in corroboration of bank memoes. But accused did not lead rebuttal evidence to show bank endorsement is not correct by producing bank statement to show his account had sufficient amount to honour the said cheque. On the other hand, the signatures found in Ex P1 found similar in style of writing. As Dw1 did not mention whether he has issued the security cheque as signed blank cheque version of material alteration does not arise. The accused has admitted the fact that he has issued the cheque in the month of February-2020. Non mentioning of details of cheque and its date by accused shows he has made self serving statement that initial signature of cheque in the date is not belong to him to avoid his liability to pay. It is evident to note, PW1 has deposed accused has brought the cheque in the form as it is produced before the court. The Dw1 has admitted his signature in the cheque . Further in number 11 is initialed by accused himself. There is no alterations in respect of drawer's name and amount in 17 C.C.No.17997/2021 letters and numbers is found. Therefore, said correction of date does not makes the cheque invalidate.
27. As per section 139 of the N.I.Act, it shall be presumed unless contrary is proved, that the holder of cheque has received the cheque of the nature referred to in section 138 of N.I. Act for discharge in whole or in part of any debt or other liability. The Full bench judgement of Hon'ble Supreme Court of India in the case of Rangappa vs Sri Mohan reported in 2010(11) SCC 441 has held that presumption mandated by section 139 of N.I.Act does indeed include the existence of legally enforceable debt or liability. Therefore, once the initial burden is discharged by the complainant that the cheque is issued by accused and the signature, the burden casted on the accused to prove the contrary that cheque is not issued for any debt or other liability. The said proposition of law is laid down by Hon'ble Supreme Court of India in the case of the P Rasiya vs Abdul Nazer and another. In the Judgement of Hon'ble Supreme Court of India reported in 2021 (5) SCC 283 in 18 C.C.No.17997/2021 the case of M/S Kalamani Tex vs P. Balasubramanian. In the para 13 of said Judgement the Hon'ble Supreme Court observed as follows:
"13. Adverting to the case in hand, we find on a plain reading of its judgement that the trail court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under section 118 and section 139 of N.I.A. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these "reverse onus" clause become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. The point of law has been crystalised by the court in Rohitbhai Jivanlal Patel vs State of Gujarath..."
28. Considering aforesaid legal proposition, burden casted on accused to disprove the case of complainant and his defence must be found more probable. No admissions elicited from the mouth of PW1 about misuse of the cheque. Therefore, defence of accused is found not probable and his evidence is not credible to believe.
19 C.C.No.17997/2021
29. Once the initial burden is discharged by the complainant that the cheque is issued by accused and the signatures, the burden casted on the accused to prove the contrary that cheque is not issued for any debt or other liability. However, in this case accused has failed to make probable defence to rebut the presumptions. The defence of accused is found self serving statement and it is not sufficient to rebut the presumptions. Hence, on the basis of the evidence of PW1 and Ex P1 to 7 documents, the complainant has proved the case and complainant is entitled for recovery of the amount as compensation.
30. On considering the facts and circumstances of the case, the complainant has able to establish that Ex.P.1 cheque is issued to discharge liability of repayment of Rs.1,70,000/- to complainant by the accused. Ex.P1 is dishonoured for the reason "Funds Insufficient" in the account of accused and complainant is entitled for the cheques amount as compensation. The Hon'ble High Court of Karnataka in its reported judgement in 2025 SCC 20 C.C.No.17997/2021 Online KAR 786 in the case of A V Poojappa vs Dr S K Vagdevi rep by her Special Power of Attorney Holder Sri H V Shivashankar in Para No.24 discussed the following aspect while imposing punishment, which reads as follows:
"24. While imposing the punishment, the Courts are required to examine the following aspects:
1. The quantum of the loan
2. The defence taken by the accused, more particularly whether he has taken a false defence and failed to prove the same.
3. Whether the accused has dragged on the matter unnecessarily and thereby delayed the disposal of the case at the stage of trial, appeal, revision,
4. Whether the transaction relates to business between the parties or the parties are business class who would have utilized the amount for their business and flourish, or
5. In other cases, the returns the loan amount would have brought, if it was kept in a fixed deposit in a nationalized bank etc,"
31. On considering said legal aspect, cheque is dated 20-11-2020. Already 5 years have lapsed from inception of the complaint. If said cheque amount kept in FD in 21 C.C.No.17997/2021 nationalized bank, interest at the rate of 6% per annum would have been accrued. Therefore, it would be appropriate to award additional compensation of Rs.50,000/- as cost of the proceedings infavour of complainant. As per the judgement of Hon'ble High Court of Karnataka in Crl. Rev. Pet. No.996/2016 dated 09-07- 2025 in the case of M/s Banavathy & Company vs Mahaeer Electro Mech(P) Ltd has held as follows:-
"While passing the order of sentence after determining the fine/Compensation, the court shall also pass an order to pay future interest at the rate of 9 % per annum 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 Sessions Court in appeal and High Court in revision the interest of the complainant will be protected".
32. Considering the said legal proposition, it would be appropriate to award 9% per annum interest on the compensation amount payable to complainant if accused 22 C.C.No.17997/2021 failed to comply the order of sentence within one month. The accused is not a repeated offender. Hence, there is no need to award imprisonment term. However, accused is liable to pay the fine amount of Rs.10,000/- to the state towards litigation expenses. Under these circumstances, this Court answers Points No.1 and 2 in the Affirmative.
33. POINT No.3: For the foregoing reasons stated in the Points No.1 and 2, this Court proceeds to pass the following:
ORDER The accused is found guilty for the offence punishable under section 138 of Negotiable Instruments Act.
Acting under section 255(2) of Cr.P.C, the accused is convicted for the offence punishable under section 138 of the Negotiable Instruments Act. The accused is sentenced to pay a fine of Rs 2,35,000/- within one month and in case of default he shall undergo simple imprisonment for 6 months.23 C.C.No.17997/2021
Out of the fine amount Rs 2,25,000/-
shall be paid to the complainant as compensation as per section 357(1)(b) of Cr.P.C. with future interest at the rate of 9% per annum if accused failed to deposit compensation amount within stipulated time of one month. The remaining amount of Rs.10,000/- shall be defray to the State.
In view of section 437(A) of Cr.P.C. bail bonds stand extended for 6 months from this date.
Supply free copy of Judgment to the accused.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected by me rd and signed, pronounced in the Open Court this03 day of December, 2025) (SMT.RASHMI H.B.,) XIX ADDL.C.J.M., Bengaluru City.
::ANNEXURE::
List of Witnesses examined for Complainant:-
PW1 :- Sahay Kumar J., List of Documents marked for Complainant:-
Ex.P1 :- One Original Cheque,
Ex.P1(a) :- Signature of Accused,
24 C.C.No.17997/2021
Ex.P2 & 3 :- Two Bank Endorsements,
Ex.P4 :- Office copy of the Legal Notice,
Ex.P5 :- Postal Receipt,
Ex.P6 :- Postal Acknowledgment,
Ex.P7 :- Appeal Memorandum in Criminal
Appeal No.1362/2023.
List of Witnesses examined for Accused:-
DW1 :- R.Kumaran.
List of Documents marked for Accused:-
Ex.D1 :- Reply Notice dated 23-03-2021.
(SMT.RASHMI H.B.,) XIX ADDL.C.J.M., Bengaluru City.25 C.C.No.17997/2021