Bangalore District Court
Vijaya Kumari G vs Rohini on 13 June, 2025
KABC030135352023
Presented on : 31-03-2023
Registered on : 31-03-2023
Decided on : 13-06-2025
Duration : 2 years, 2 months, 13 days
IN THE COURT OF THE XXIII ACJM, BENGALURU
-: Present :-
Smt.Asha K.S., B.A.L, L.L.B.,
XXIII ACJM, BENGALURU,
C.C. No.8056/2023
Dated: the 13th day of June 2025
Complainant :- Smt.Vijayakumari.G.
W/o.Gurappa Gowda,
Aged about 56 years,
Opp: to Srinivasa College,
Rayavara Road, Ambedkar Beedhi,
Gubbi Taluk, Tumkur District.
(By Sri.N.Rajanna., Advocate)
-V/s -
Accused :- Smt.Rohini,
W/o.Rajesh,
Advocate
R.R & R.R. Nilaya, Maruthi Nagar,
1st Cross, Gubbi Taluk,
Tumkur District.
(By Smt.Bhavya B.M., Advocate)
Offences complained of U/s 138 of Negotiable Instruments Act.
2
C.C.No.8056/2023
Plea of the Accused Not Pleaded guilty.
Final Order Accused is Convicted
Date of Order 13.06.2025.
(Smt.Asha K.S,)
XXIII ACJM, Bengaluru.
JUDGMENT
The complainant has filed the present complaint under Section 200 of Cr.P.C. against the accused for the commission of an offense punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant in brief is as under:-
"The complainant and accused are known to each other from 10 years. The accused and her husband both have approached the complainant on 17.09.2017 for financial assistance of Rs.3,00,000/- to meet her family commitments. Considering the request of the accused, complainant has withdrawn amount of Rs.4 lakhs from her account and paid an amount of Rs.3,00,000/- by way of cash on 22.09.2017. Accused also agreed to repay the said amount with interest @ 18% per annum, within two years. Thereafter the accused has not paid interest amount as agreed by her. when the complainant has demanded for repayment of amount, the accused had issued cheque 3 C.C.No.8056/2023 bearing No. 222296 dtd. 29.7.2019 for amount of Rs.3,00,000/- drawn on SBM Bank, Gubbi Branch, On presentation of said cheque by the complainant through his banker City Co-op Bank Ltd., Anjananagar branch, Bengaluru same has been returned as "Funds Insufficient"
on 17.9.2019.
3. Thereafter the complainant has issued legal notice to the accused on 26.08.2019. but same has been served on 18.09.2019. Thereafter accused has not chosen to issue reply notice and not paid amount.
4. After filing of complaint, cognizance was taken. In pursuance of summons, accused appeared before the Court and she had enlarged on bail. Substance of accusation has been framed and contents of its read over to the accused. Accused pleaded not guilty and she claimed to be tried.
5. In order to prove her case complainant has examined herself as PW.1 and got marked 03 documents at Ex.P.1 to 03 on behalf of the complainant. After closure of complainant evidence, accused has been examined as under section 313 of Cr.P.C and not opted to lead evidence.
6. Thereafter arguments heard and perused written arguments.
7. The following points arise for my determination: -
4C.C.No.8056/2023
1) Whether the complainant has made out all the ingredients of Sec.138 of Negotiable Instruments Act to prove the guilt of accused?
2) What Order?
8. On hearing the arguments and on perusal written arguments and the materials placed on record, my answers to: -
Point No.1:- In the Affirmative Point No.2:- As per final order for the following:-
REASONS
9. It is the case of complainant is that the accused and complainant are known to each other and accused had borrowed the hand loan amount of Rs.3,00,000/- and to discharge the said liability, she had issued Ex.P.1 cheque. On presentation said cheque has been returned for the reasons "Funds Insufficient". After issuance of notice also the accused has issued reply notice. Thereafter, the complainant has filed this complaint.
10. To attract Sec.138 of NI Act it is necessary to fulfill the ingredients of said provision. I have carefully perused the section 138 of of N.I.Act, it has three ingredients which are as follows:-
5C.C.No.8056/2023
1. That there is a Legally enforceable debt,
2. That the cheque was drawn from the account of bank for discharge in whole or any part of any debt or other liability which pre-supposes a legally enforceable debt.
3. That the cheque so issued had been returned due to insufficiency of funds.
11. Keeping in view the ingredients of Sec.138 of Negotiable Instruments Act. Now I proceed to reproduce the Sec.139 and 118(a) of N.I.Act here itself.
12. Sec.139 of N.I.Act reads as follows "Presumes in favor of holder, it shall be presumed unless the contrary is proved, that the holder of cheque received the cheque, of the nature referred to in Sec.138, for the discharge, in whole or in part or any debt or other liability".
13. Sec.118(a) reads as follows "Presumption as to Negotiable Instrument Act until the contrary is proved, the following presumption shall be made (a) of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted endorse, negotiate or transferred, was accepted, endorsed, negotiated or transferred for consideration".
6C.C.No.8056/2023
14. Keeping in view of the ingredients and provision of Sec.139 and 118(a) of N.I.Act, now I proceed to discuss the documents in the case. I am of the opinion that I need not repeat the entire case of the complaint once again since I have already stated the same at the beginning of this judgment.
15. To prove her case, the complainant has examined herself as PW-1 and produced 03 documents and same has been marked as Ex.P.1 to P.03. The cheque as per Ex.P.1 and signature thereon as per Ex.P.1(a). Bank memo as per Ex.P.2. Legal Notice as per Ex.P.3. Postal acknowledgment as per Ex.P.3(a).
16. Ex.P.1 to 3 documents shows that cheque belongs to accused and same has been returned for the reasons insufficient funds. The complainant has issued notice and demanded for payment and filed complaint within time. In spite of granting sufficient opportunity also, accused has not chosen to cross examine PW.1 and not challenged the evidence of complainant. The accused has not issued reply notice and not taken any defence.
17. As stated above the accused has not denied the case of complainant and not challenged the evidence of PW- 1 and not explained that how her cheque had been to the hands of complainant. She has not explained that why she has not issued intimation to the bank for stop payment and 7 C.C.No.8056/2023 she has not taken any steps to take back her cheque. It is not an act of ordinary prudent man. The accused has not filed any complaint against the complainant and not given any intimation to the bank for stop payment. The complainant has narrated in the complaint and deposed in the evidence that she is lecturer and getting sufficient income. The documents produced by the complainant supports her contention. As stated above the accused has not challenged the evidence of complainant. Hence there is no reasons to disbelieve the case of complainant. Till today accused has not taken any steps against the complainant and she has not disputed her signature in the cheque. When there is no dispute in issuance of cheque and signature and presumption is available in favour of complainant. In such circumstances the burden is on the accused to rebut the said presumption. But accused has fails to rebut the presumption and she has not challenged the evidence of complainant.
18 . In this case the advocate for complainant vehemently argued that the complainant has proved her case and discharged the initial burden. On the other hand, accused person has not rebutted the presumption. Ex.P.1 to P.3 supports the case of complainant. Prior to filing of this complaint, the complainant has issued notice to the accused through RPAD and inspite of service of notice also 8 C.C.No.8056/2023 the accused person has not chosen to issue reply notice and not taken any specific defence.
19. In the decision of Hon'ble High Court of Andhra Pradesh in Gorantla Venkateshwara Rao Vs. Kolla Veeraraghava Rao and another case, it was held that failing on the part of accused in giving reply to the legal notice issued by the complainant, is one of the strong circumstances to draw a inference that accused has borrowed amount from the complainant and cheque was issued towards payment of legally enforceable debt. Here, in this case on hand also in spite of receipt of legal notice also the accused did not chose to give reply, hence it is also one of the circumstances which clear supports the case of complainant.
20. As per Section 114 of Indian Evidence Act court may presume that bill of exchange was accepted for good consideration. Issuance of cheque is proved. Hence presumption can be drawn. Therefore, it probabalizes that the transactions alleged in the complaint is genuine.
21. Regarding the burden of the accused to rebut the presumptions in N.I Act the Hon'ble Apex Court in Rohitbhai Jivanlal Patel Vs State Of Gujarat in Crl.A.No.508 OF 2019 held:
"16.On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the 9 C.C.No.8056/2023 Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfill the requirements of rebuttal as envisaged under Section 118 and 139 of the NI Act..."
22. In the case on hand the accused has not disputed the issuance of cheque and signature but she has disputed transaction but till today not taken any steps against the complainant. She has not chosen to send intimation to the bank for stop payment and not issued any notice to the complainant for return of her cheque. The accused has not proved her defence. As discussed above the accused has fails to rebut the presumption.
23. Under the criminal jurisprudence, the prosecution is required to establish the guilt of the accused beyond all reasonable doubt. However, the proceeding U/sec.138 of Negotiable Instruments Act is quasi-criminal in nature. In these proceedings proof beyond reasonable doubt is subject to presumptions envisaged under sec.118, 139 and 146 of Negotiable Instruments Act. An essential ingredient of Sec.138 of Negotiable Instruments Act is that cheque in question must have been issued towards a legally or liability. Sec.118 and 139 of Negotiable Instruments Act envisage certain presumptions. Under Sec.118 a 10 C.C.No.8056/2023 presumption shall be raised regarding consideration, date, acceptance, transfer, endorsements and regarding the holder in due course of Negotiable Instruments. Even under Sec.139 a rebuttal presumption shall be raised that the cheque in question was issued regarding discharge of a legally enforceable debt. These presumptions are mandatory presumptions that are required to be raised in case of Negotiable Instruments. These presumptions are not conclusive presumptions, but are rebuttable. As discussed above accused has not challenged the evidence of complainant. The accused has fails to prove her defence and also rebut the presumption.
24. The decision reported in AIR 2010 SC 1898 (Rangappa V/s. Mohan), the Honorable Apex Court held that once execution of Negotiable instrument is either proved or admitted, then the court shall draw a presumption to the effect that the said negotiable instrument has been drawn for valid consideration and the legally recoverable debt was in existence.
25. In the authority reported in 2001 SC 2895 in K.N.Beena V/s. Muniyappan in that Hon'ble Apex Court held that as per Sec.139 of NI Act the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge in whole or in part of a debt or liability. In this case the complainant has 11 C.C.No.8056/2023 proved her initial burden but the accused has failed to rebut the presumption.
26. The complainant has proved that accused had issued cheque towards discharge of his legally recoverable debt or liability. There is no proper explanation from the accused that why she had not tried to take back her cheque`. There is no effort from the accused to take steps against the complainant for alleged misuse of her cheque. All these aspects show that there was a transaction between the parties and to discharge her liability only, accused had issued Ex.P.1. The accused has fails to prove that there is no legally recoverable debt or liability. Hence, in view of the above discussion, this court is of the opinion that the complainant has proved her case. On careful perusal of materials on record I am of the opinion that there is a legally recoverable debt or liability. All these aspects show that accused had issued cheque to the complainant towards discharge of her liability. The complainant has proved the initial burden and accused has not produced any cogent evidence to disprove the contention of the complainant and not rebutted the presumption. The oral evidence of PW.1 coupled with documentary evidence corroborates with each other. Considering the facts and circumstances of the case the version of complainant appears to be true. The ingredients required to fulfill Sec.138 of NI Act also proved. Hence, I hold that there are materials available on record to 12 C.C.No.8056/2023 conclude that accused has committed an offence U/Sec.138 of NI Act, hence I answered Point no.1 in the Affirmative.
27. Point No.2:- In view of the aforesaid reasons, I proceed to pass the following :-
-: ORDER :-
By invoking the power conferred under section 278(2) of B.N.S.S.,The accused is found guilty for the offence punishable under section 138 of Negotiable Instruments Act.
Accused is sentenced to pay a fine of Rs.3,00,000/- (Rupees Three Lakhs only). In default to pay the fine, accused shall undergo simple imprisonment for a period of six months.
Further, acting under Sec.357(1)(b) of Cr.P.C., on recovery of sum of Rs.3,00,000/- (Rupees Three Lakhs only), Rs.2,95,000/- shall be paid to the complainant as compensation and Rs.5,000/- shall be remitted to the state exchequer.
Supply free copy of this order to the accused forthwith.
(Dictated to stenographer directly on my computer, after clerical additions by him, script revised, corrected and pronounced by me in the Open Court on this the 13 th day of June 2025) (Smt.Asha K.S,) XXIII ACJM,Bengaluru.
13C.C.No.8056/2023 ANNEXURE
1) List of Witnesses examined for complainant:-
PW.1 : Smt.Vijayakumari.
2) List of documents marked on behalf of complainant: -
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of accused,
Ex.P.2 : Bank Memo,
Ex.P.3 : Legal Notice,
Ex.P.3(a) : Postal Acknowledgment.
3) List of witness examined on behalf of the Accused :-
: Nil :
4) List of documents marked on behalf of the Accused:-
: Nil :
(Smt.Asha K.S,) XXIII ACJM, Bengaluru.