Bangalore District Court
June Varghese vs Alywn Dsa on 2 July, 2025
KABC0C0218532023
IN THE COURT OF XIV ADDL.CHIEF JUDICIAL
MAGISTRATE, MAYOHALL UNIT, BENGALURU
Dated this the 2nd day of July, 2025
Present: Sri.SANTHOSH S.KUNDER., B.A.,LL.M.,
XIV Addl. C.J.M., Bengaluru.
JUDGMENT UNDER SECTION 355 of Cr.P.C
C.C.No.57455/2023
Complainant Mrs.June Varghese,
D/o.Mr.John Varghese,
Aged about 43 years,
R/at No.409, D Block,
Mangam Elite, 2nd Sector,
HSR Layout, Bengaluru-560102.
(By Sri.Rama.R., Advocate)
V/s
Accused Mr.Alywn D'sa,
Aged about 52 years,
S/o John Baptist D'sa,
R/at No.846, 23/A,
Garden Layout, 2nd Sector,
HSR Layout,
Near Euro School,
Bengaluru-560 102.
(By Sri.Bhakthavachala, Advocate)
Offence U/s 138 of Negotiable Instruments Act.
Plea of the Pleaded not guilty
accused
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Final Order Accused is acquitted
This complaint is filed under Section 200 of Cr.P.C,
for the offence punishable under Section 138 of the
Negotiable Instruments Act.
2. Complaint averments in brief:
2.1. Complainant and accused are husband and
wife. They led a happy married life for a short time. Two
children born to them. Due to matrimonial discord,
complainant and accused are living separately. Many
cases are pending between them in various courts.
2.2. Accused had planned to purchase properties at
Rajankunte and Bidadi (Bengaluru) for which, he had
approached the complainant for ₹30,00,000/-. After a lot
of pressure, accused had convinced the complainant to
lend money. Though, she was reluctant, she succumbed
to the demands of the accused and ended up in paying
money to the complainant in the following manner:
Sl. Date Amount Remarks
No. (₹)
1. 22.04.2016 ₹18,00,000/- Remitted to the bank
account of accused
2. 13.02.2019 ₹5,00,000/- Remitted to the bank
account of accused
3. 13.02.2019 ₹50,000/- Remitted to the bank
account of accused
4. 14.02.2019 ₹50,000/- Remitted to the bank
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account of accused
5. 14.02.2019 ₹1,00,000/- Remitted to Trinity
Infrastructure and
Developers to account
bearing
No.0896102000007702
6. 04.04.2016 ₹4,00,000/- Remitted to the joint
account of complainant
and the accused bearing
account
No.0896104000111515
7. 30.10.2017 ₹1,00,000/- Remitted to the joint
account of complainant
and the accused bearing
account
No.0896104000111515
2.3. Accused had assured that he would repay the
said money with interest @ 18% per annum, payable in
every quarter.
2.4. It is averred that accused was managing the
bank accounts of the complainant until he moved out of
the house. Complainant has been taking care of the
family. One of her children needs special care. Therefore,
it was difficult for her to manage, as the accused has not
repaid the money as assured.
2.5. Towards repayment of the said debt, the
accused had issued two cheques bearing No.212810 for a
sum of ₹13,00,000/- and 212809 for ₹7,00,000/-, both
dated 30.12.2022, drawn on Indian Bank, Bengaluru. The
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complainant has presented the said cheques for
encashment through her banker. But, both the cheques
were returned unpaid for the reason 'insufficient funds'
vide endorsements dated 28.03.2023. Thereafter, the
complainant has issued a demand notice dated
26.04.2023 calling upon the accused to pay the
dishonored cheques' amount. Said notice served on
27.04.2023. But, he has failed to pay the cheques'
amount. Therefore, this complaint is filed.
3. This court took cognizance of the offence
punishable under Section 138 of N.I.Act and complainant
was examined on oath. As there were prima facie
materials, criminal case was registered and accused was
summoned.
4. Pursuant to the summons, accused has
appeared before the court and got enlarged on bail. After
compliance of Sec.207 of Cr.P.C, this court recorded his
plea. He has pleaded not guilty and claimed to be tried.
5. Sworn statement affidavit of complainant is
treated as evidence. Documents at Ex.P-1 to 11 marked
for him.
6. Accused was examined under Section 313 of
Cr.P.C. He has denied the incriminating evidence. By way
of defence, he has examined himself as DW-1 and got
marked documents at Ex.D-1 to 12.
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7. Heard both side.
8. Advocates appearing for either side filed notes
of argument.
9. Points for consideration:-
1. Whether the complainant has proved
that the accused has issued cheques
bearing No.212809 for ₹7,00,000/- and
No.212810 for ₹13,00,000/- both
dtd.30.12.2022, drawn on Indian Bank,
HSR Layout, Bengaluru, in favour of the
complainant towards discharge of legally
recoverable debt/liability and the said
cheques were dishonored for the reason
'funds insufficient' and in spite of service
of statutory notice dated 26.04.2023, he
has failed pay the amount covered under
the cheques and thereby committed the
offence punishable under Section 138 of
N.I.Act?
2. What order?
10. The above points are answered as under:-
Point No.1 : In the Negative.
Point No.2 : As per final order for the following:
REASONS
11. Point No.1:- In order to prove the case, the
complainant has examined herself as PW-1. She has
reiterated the complaint averments in her evidence
affidavit. Ex.P-1 to 11 marked through her. Ex.P-1 and 2
are cheques; Ex.P-3 and 4 are bank endorsements; Ex.P-5
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is copy of the legal notice dated 26.04.2023; Ex.P-6 is
postal track consignment report; Ex.P-7 to 9 are bank
statements; Ex.P-10 is copy of delivery details issued by
Sub-post Master, M.G Road post office, Benglauru; and
Ex.P-11 is printout of WhatsApp chats.
12. Now coming to cross-examination of PW-1,
where it is elicited that, basically she is from Dahisar,
Mumbai. It is elicited her marriage with the accused is her
second marriage and both are living separately since May
2019. It is also elicited that divorce case and petition filed
under the Protection of Women from Domestic Violence
Act are pending between the parties. It is further elicited
that house situated at No.409, Mangam Elite, HSR Layout
is jointly owned by the complainant and the accused. It is
elicited that earlier to the marriage with the accused, the
complainant was working in IDBI Federal Life Insurance,
Mumbai. Presently, she is working with Tata AIA Life
Insurance Company. It is elicited that the above said
house was purchased by the accused in the joint names of
himself and the complainant. PW-1 has reiterated that the
accused insisted her to pay a sum of ₹30,00,000/- for the
purpose of purchasing properties at Rajanakunte and
Bidadi. When it was suggested that transactions of
transfer of ₹18,00,000/- that is pleaded in the complaint,
happened during the year 2014, PW-1 has stated that she
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has to verify. She has denied the suggestion that she is
falsely contending that money was lent for interest @ 18%.
However, she has conceded that she has not produced
any documents to show that the money was lent for
interest.
13. PW-1 was further cross-examined on
30.01.2024. It is elicited that the complainant and the
accused are operating joint bank account. Three bank
statements were confronted to PW-1 and the same are
marked at Ex.D1 to 3. It is elicited that the complainant
has not produced any documents to substantiate the
allegation of mismanagement of funds in the joint
account. It was suggested that she has separated from the
accused from 19.02.2021. In reply, she has stated that
she has separated from accused since May 2019. It was
suggested that from 19.02.2021 the accused has been
transferring ₹5,00,000/- every year for maintenance of
children. PW-1 has neither denied the suggestion nor
admitted it. However, she has volunteered that from 2020
till dated accused has paid totally a sum of ₹7,50,000/-
towards maintenance of children. It is elicited that there is
no order by the court directing the accused to pay
maintenance to his children. Bank statement of
proprietorship firm of the accused confronted to PW-1 and
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she has admitted the same. The said document is marked
at Ex.D4.
14. When it was suggested that the accused had
purchased property at HSR Layout for ₹56,00,000/- as
per her demand, PW-1 has stated that the accused has
purchased the property on his own and not on her
demand. It is elicited that from May 2019 (from the date of
separation) the complainant is residing in the apartment
situated in HSR Layout. She has volunteered that she has
been residing there since 2012. When it was questioned
when did the accused borrow loan from her for the
purpose of purchasing the properties at Rajanakunte and
Bidadi, PW-1 has stated that she does not remember the
exact of date of borrowing; but on several occasions he
has borrowed money. It is elicited that the accused has
issued the cheques after the complainant got separated
from the accused. It was suggested that said cheques were
given by the accused after he separated from the
complainant as a security for maintenance of children. It
is elicited that the accused has purchased a car in the
name of complainant and car loan was cleared by
accused. PW-1 has volunteered that the car was bought in
her name by raising loan and it was used by the accused.
It is elicited that at the time of leaving house at HSR
Layout, the accused has left behind all the original
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property documents and cheque. In reply to the said
suggestion, PW-1 has stated that the accused has left a
bag and later he came back to collect the same.
15. PW-1 was further cross-examined on
14.03.2024. It is elicited that the car that was purchased
by availing loan, is being used by the complainant. She
has denied the suggestion that she has borrowed
₹3,90,547/- from the accused on 07.02.2014 and
21.01.2014. When it was suggested that there was deposit
of ₹2,93,00,000/- in the joint account from 2012 till
2020. PW-1 was pleaded ignorance to the said suggestion.
It is elicited that she has not produced joint account
statement to show her contribution towards the joint
account. She has admitted that she has got transferred a
sum of ₹10,00,000/- each as per entry No.51 of Ex.D1
and entry No.243 of Ex.D4. However, she has denied the
suggestion that she has received ₹5,00,000/- in cash from
the accused. She has admitted that as per entry No.21 of
Ex.D2, accused has paid ₹1,40,547/- towards home loan.
When it was suggested that she has got transferred
₹2,50,000/- towards home loan as per entry No.30 of
Ex.D2, PW-1 has answered that she has to verify the
same. She has admitted that she has borrowed car loan
from Axis bank and that as per entry No.12 of Ex.D3,
accused has paid ₹50,000/- towards car loan. When it
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was suggested that she has filed false complaint against
the accused in spite of receiving more than ₹20,00,000/-,
PW-1 has answered that accused has borrowed
₹30,00,000/- from her and he is liable to pay interest.
16. PW-1 was further cross-examined on
26.06.2024. During this cross-examination, she has
admitted that she has not verified the entry No.30 in
Ex.D2. She has admitted that she has received
₹20,00,000/- from the accused out of ₹30,00,000/- and
total due towards principal is ₹7,00,000/- towards
interest is ₹13,00,000/-. She has denied the suggestion
that a sum of ₹7,00,000/- which is referred to in para
No.4 of the complaint, was given towards family
maintenance and school fee. Credit card statement of
complainant was confronted and same is marked at
Ex.D6. Further, HDFC bank credit card statement is
confronted and same is marked at Ex.D7. When it was
suggested between 01.04.2013 and 31.03.2023, accused
has paid a sum of ₹22,96,374/- towards school fee of
minor children, PW-1 has answered that she has to verify
the same. It is elicited that since 2013 till today, PW-1 has
not paid school fee of her children. She has volunteered
that her husband-accused has paid school from 2013 to
till today. She has pleaded ignorance to the suggestion
that accused has paid a sum ₹3,90,968/- towards HDFC
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bank credit card. PW-1 has volunteered that accused was
using her credit card. But, she does not have any
document to show that her credit card was used by the
accused. She has not pleaded so in complaint and legal
notice. She has pleaded ignorance to the suggestion that
accused has paid ₹2,85,450/- towards her Citi bank
credit card. It is elicited that children of complainant and
accused are aged about 10 years and 7 years. Bank
accounts opened in their name in IndusInd Bank,
Jakkasandra branch. It is elicited that those bank
accounts are being operated by PW-1. She has denied the
suggestion that from 2013 till today accused has paid
school fee of ₹9,40,000/-. However, she has volunteered
that the accused has paid school fee of ₹9,40,000/- for
the last three and half years. It is elicited that accused
has paid a sum of ₹7,00,000/- to PW-1 for purchase of
properties in Rajanukunte and Bidadi. She has denied the
suggestion that she has received more than ₹35,00,000/-
from the accused.
17. Now coming to the defence evidence, where
during examination-in-chief accused has deposed that he
has bought a house in HSR Layout in the joint names of
himself and the complainant by spending around
₹56,00,000/-. He has stated that the complainant has not
contributed anything towards the purchase of said house.
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He has stated that joint bank account was opened in IDBI
Bank and all the income from 2013 to 2020 was being
deposited to the said bank account and the complainant
had independent withdrawal powers. DW-1 further
deposed that in the year 2016, he has bought some lands
in Bidadi for his project. He has stated that in March and
December 2016, he had borrowed a sum of ₹18,00,000/-
and ₹5,00,000/- respectively from the complainant
assuring that he would return the same shortly. But, due
to demonetization he had financial crisis and returned
money in two installments. In May 2018, he has paid
₹10,00,000/- and in October 2018, he has paid
₹15,00,000/-. He has further deposed that the
complainant has borrowed ₹3,90,000/- from him in 2013
to settle her home loan in Mumbai. Therefore, the said
sum was adjusted at the time of repayment of loan in
May/October 2018. He has further deposed he has made
part payment of ₹5,00,000/- in cash. He has deposed that
in 2020 due to some differences he got separated from the
complainant and left the matrimonial home with his eldest
son keeping all the documents (personal and work related)
in the custody of complainant. But, he could not take
back the those documents. Therefore, he has filed a
complaint against the complainant in HSR police station
requesting for police to help to procure those documents.
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DW-1 has produced police acknowledgment, which is
marked at Ex.D8. However, due to Covid restrictions, he
could not pursue the police complaint further. In the year
2021, the complainant and himself had mutual
understanding and agreed to support her financially by
paying school fee of children. Since then, he has been
paying school fee and other expenses of children. DW-1
has further deposed that in the year 2022, he has
requested the complainant to give back one of his clients
documents which remained in her custody. He has further
deposed that as a security for maintenance of children,
she has requested to give two cheques. Therefore, he has
calculated the expenses that would be incurred for
maintenance of children for the next four years and issued
two cheques; one for ₹13,00,000/- and another for
₹7,00,000/- as security. Thereafter, he kept on paying
maintenance to children. DW-1 has further deposed that
from the date of handing over of cheques till date, he has
paid maintenance of ₹9,60,000/- to his children. His
bank statement marked at Ex.D9. DW-1 has further
deposed that from 2013 to 2016 he has been taking care
of the complainant's credit cards' repayment. Extracts of
bank statement are produced and marked at Ex.D10 and
11. Indian bank statement of accused is marked at
Ex.D12. DW-1 has further deposed that even during
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pendency of this case, he has made payment to the
complainant. In spite of this, false complaint is filed
against him.
18. Learned counsel for the complainant cross-
examined DW-1. During cross-examination, DW-1 has
deposed that he has not instructed the complainant to
present the cheques to the bank for encashment. He has
denied the suggestion that the complainant has
transferred the cheque amount to his bank account by
way of online transfer. He has admitted that he maintains
bank account in IDBI bank. He has stated that account
No.187104000004916 does not belong to him. Ex.P7 was
confronted and asked to whom the said bank account
belongs to, DW-1 has answered that it is complainant's
bank account. He has admitted that as seen in Ex.P7, on
14.02.2019 a sum of ₹1,00,000/- was transferred to his
bank account. He has also admitted that on 22.04.2016, a
sum of ₹18,00,000/- was transferred from complainant's
bank account to his bank account. He has further
admitted the suggestion that on 27.12.2016 a sum of
₹50,000/- was transferred to his bank account. These
entries are marked at Ex.P7(a) to (c). Further, as per
entries in Ex.P9 dated 03.02.2019 and 04.02.2019 a sum
of ₹50,000/- each was transferred from complainant's
bank account to his bank account. These entries are
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marked at Ex.P9(a) and 9(b). He has admitted that Ex.P8
is joint bank account of himself and the complainant. He
has further admitted that on 04.04.2016 a sum of
₹4,00,000/- was transferred to him. He has volunteered
that the said sum of ₹4,00,000/- was credited back to
complainant's personal account. Relevant entries in Ex.P8
are together marked at Ex.P8(a).
19. DW-1 was further cross-examined on
19.11.2024. It is elicited that before filing of his
complaint, he used to have telephonic conversation with
the complainant. It is elicited that mobile No.9901430646
is having WhatsApp facility. He has admitted that he has
sent the WhatsApp messages to the complainant. Printout
of WhatsApp conversation was confronted and the same is
marked at Ex.P11. It was suggested to DW-1 that he has
sent a calculation sheet which is at page No.4 of Ex.P11
showing outstanding payable by him to the complainant.
DW-1 has denied this suggestion. It is elicited that DW-1
has purchased properties at Bidadi and Rajanakunte and
the original documents are with the complainant. He has
denied the suggestion that he had assured the
complainant that he will make payment to her if those
documents handed over to him.
20. After discussing the evidence of PW-1 and
DW-1, it is forth coming that the complainant is claiming
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that she has lent ₹30,00,000/- to the accused for the
purpose of purchasing properties at Rajankunte and
Bidadi (Bengaluru). It is her case that the accused has
drawn the cheques in question in her favour towards
repayment of said deb/liability. On the other hand,
defence of the accused is that he has given the subject
cheques to the complainant as security for payment of
maintenance of his children and that the present
complaint is filed by misusing those cheques. By
contending so, the accused has denied the case of the
complainant that the cheques were issued towards alleged
repayment of debt/liability.
21. Details of money lent by complainant as pleaded
in para No.4 of complaint are as under:-
Sl. Date Amount Remarks
No. (₹)
1. 22.04.2016 ₹18,00,000/- Remitted to the bank
account of accused
2. 13.02.2019 ₹5,00,000/- Remitted to the bank
account of accused
3. 13.02.2019 ₹50,000/- Remitted to the bank
account of accused
4. 14.02.2019 ₹50,000/- Remitted to the bank
account of accused
5. 14.02.2019 ₹1,00,000/- Remitted to Trinity
Infrastructure and
Developers to account
bearing
No.0896102000007702
6. 04.04.2016 ₹4,00,000/- Remitted to the joint
account of complainant
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and the accused
bearing account
No.0896104000111515
7. 30.10.2017 ₹1,00,000/- Remitted to the joint
account of complainant
and the accused
bearing account
No.0896104000111515
Total 30,00,000/-
22. According to the complainant, money was lent
between 2016 and 2019. She is contending that the
subject cheques were issued by the accused after both got
separated in May 2019.
23. While confronting Ex.D1 and 4 to PW-1, it was
suggested during her cross-examination that the accused
has repaid ₹20,00,000/- to her. In cross-examination
dated 14.03.2024, PW-1 has categorically admitted that
she has received back ₹20,00,000/- from the accused.
Relevant portion of deposition of PW-1 is extracted as
under:-
"XXXX It is true to suggest that I have got
transfer of Rs.10,00,000/- at entry No.51
of Ex.D1. It is true to suggest that as per
entry No.243 of Ex.D4, I have received
Rs.10,00,000/- from the accused. XXXX"
24. It can be seen from entry No.51 dated
17.05.2018 at Ex.D1 and entry No.243 dated 29.09.2018
at Ex.D4, accused has paid ₹10,00,000/- each to the
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complainant. Thus, as per these entries and admission
made by the complainant, accused has repaid
₹20,00,000/- to the complainant.
25. It is further elicited from PW-1 that accused
has paid ₹1,40,547/- towards home loan that was
borrowed in her name for purchasing house at Mumbai.
Relevant portion of deposition of PW-1 dated 14.03.2024
at page No.17 is extracted as under:-
"XXXX For a suggestion that as per entry
No.21 at Ex.D2, the accused has paid
Rs.1,40,547/- towards home loan, witness
states that the accused has paid some
amount towards my home loan with an
intention to clear it and to avail more loan.
XXXX"
26. However, she has avoided answering the
suggestion that accused had also transferred ₹2,50,000/-
towards the home loan that was borrowed by her, by
saying that she has to verify. It is further elicited that
accused has paid ₹50,000/- towards car loan that was
borrowed by her. Relevant portion of deposition of PW-1
dated 14.03.2024 is extracted as under:-
"For a suggestion that as per entry No.30 at
Ex.D2, the accused has transferred
Rs.2,50,000/- to your Bombay home loan,
witness states that she has to verify it. I had
borrowed car loan from Axis Bank. Further
states she could not remember the name of
the said branch. As per entry No.12 of
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Ex.D3, it is true that the accused has paid
Rs.50,000/- towards the car loan at Axis
Bank. XXXX"
27. During cross-examination dated 14.03.2024,
PW-1 has asserted that she has filed the present
complaint contending that accused has to pay
₹20,00,000/-. When it was suggested that the accused
has already paid ₹20,00,000/-, PW-1 has answered that
he has borrowed ₹30,00,000/- and he has to pay interest
on the said money. However, when it was suggested that
she has received ₹5,00,000/- from the accused towards
home loan and car loan, she has avoided answering
saying that she has to verify. This piece of evidence is
extracted as under:-
"XXXX It is true to suggest that I have filed
this case stating that the accused has to pay
Rs.20,00,000/-. It is true to suggest that just
before some time, I have admitted the receipt
of Rs.20,00,000/- from the accused. It is false
to suggest that inspite of receiving
Rs.20,00,000/- and even more, a false case is
filed against the accused. Further witness
volunteers stating that the accused has
borrowed Rs.30,00,000/- and also has to pay
interest. The accused has paid only
Rs.20,00,000/- and has to pay remaining
Rs.20,00,000/-. For a suggestion you have
also received Rs.5,00,000/- towards home
loan and car loan, witness states she has to
verify it."
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28. During cross-examination dated 26.06.2024,
when PW-1 was asked to justify her claim for
₹20,00,000/-, she has answered that total due towards
principal is ₹7,00,000/- and due towards interest is
₹13,00,000/-. The said piece of evidence is extracted as
under:-
"XXXXX It is true that in para 3 of complaint I
have stated that the accused has borrowed a
sum of Rs.30,00,000/- from me. Out of
Rs.30,00,000/-, accused has repaid
Rs.20,00,000/- to me. Total due towards
principal is Rs.7,00,000/- and due towards
interest is Rs.13,00,000/-. It is not true to
suggest that I have not mentioned about
repayment of Rs.20,00,000/- by the accused,
either in legal notice or in the complaint.
XXXX"
29. Apart from the above elicitation, at page No.20
of deposition of PW-1, it was suggested that between
01.04.2013 to 31.03.2023, accused has paid
₹22,96,374/- towards school fee of children. To the said
suggestion, PW-1 has stated that she has to verify. It is
pertinent to note that as per the admissions extracted
from PW-1, since 2013 till today, it is the accused who
has been paying school fee of children. Apart from paying
school fee, the accused has paid HDFC bank credit card
and Citi bank credit card bills of complainant to the tune
of ₹3,90,968/- and ₹2,85,450/-, respectively.
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Nevertheless, she has stated that accused was using her
credit cards. But, no evidence is offered to substantiate
the said contention. Relevant portion of deposition of
PW-1 appearing in page No.20 is extracted as under:-
"XXXX Since 2013 till today I have not paid
school fee of my children. Witness says that her
husband-accused paid the school fee from from
2013 to till today. I do not know if my husband-
accused paid a sum of Rs.3,90,968/- towards
my HDFC bank credit card. Witness volunteers
that accused was using her credit cards. I do
not have any document to show that accused
was using my credit cards. I have not stated in
my complaint, affidavit evidence and legal
notice that accused was using my credit cards. I
do not know if my husband- accused paid a
sum of Rs.2,85,450/- towards my citi bank
credit card. XXXX"
30. It is elicited that from 2013 to till today
accused has paid school fee of ₹9,40,000/-. Further, it is
elicited that the accused has paid a sum of ₹7,00,000/- to
the complainant for purchase of property in Rajanukunte
and Bidadi. Relevant portion of deposition of PW-1
appearing in page No.21 is extracted as under:-
"XXXX Witness volunteers that accused has
paid school fee Rs.9,40,000/- for the last three
and half years. It is true that I have not
mentioned about payment of school fee by the
accused in my complaint and notice. XXXX"
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"XXXX Accused has paid total Rs.7,00,000/- to
me for purchase of properties in Rajanukunte
and Bidadi. XXXX"
31. Thus, as per the elicitation made in the cross-
examination of PW-1 and from entries in the bank
statements at Ex.D1, 2 and 4, it is appearing that the
accused has made following payments to the
complainant:-
Sl. Date Amount Particulars
No. ₹
1. 21.01.2014 2,50,000/- Entry No.30 of Ex.D2
2. 08.02.2014 1,40,547/- Entry No.21 of Ex.D2
3. 17.05.2018 10,00,000/- Entry No.51 of Ex.D1
4. 29.09.2018 10,00,000/- Entry No.243 of
Ex.D4
5. ---- 7,00,000/- For purchase of
properties in
Rajanukunte and
Bidadi
6. From 2013 9,40,000/- School fee of children
7. ---- 2,85,450/- Citi bank credit card
bills
8. ----- 3,90,968/- HDFC bank credit
card bills
32. Apart from the above payments, according to
the accused he has paid a sum of ₹22,96,374/- from
01.04.2013 to 31.03.2023 towards school fee of children.
It is pertinent to note that the complainant has not
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KABC0C0218532023
disputed the said contention of the accused. On the other
hand, she has pleaded ignorance and admitted that since
2013 till today, she has not paid school fee of her children
and it is the accused who has been paying the school fee.
Relevant portion of deposition of PW-1 at page No.20
reads as under:-
"XXXX When it is questioned that from
01.04.2013 to 31.03.2023 the accused has
paid a sum of Rs.22,96,374/- towards
school fee of minor children, witness says
that she has to verify. XXXX"
"XXXX Since 2013 till today I have not paid
school fee of my children. Witness says that
her husband-accused paid the school fee
from 2013 to till today. XXXX"
33. Accused has produced ledger account extracts
of his firm-Trinity Infrastructure and Developers which
are marked at Ex.D9 to 11. In these documents details of
payments made by the accused to the complainant are
shown. It is pertinent to note that the complainant has
not disputed the material documents showing payments
made to her/her children by the accused.
34. It is relevant to note that the complainant has
categorically admitted that out of loan of ₹30,00,000/-,
accused has repaid ₹20,00,000/-. Nevertheless, she is
claiming that accused is in due of ₹7,00,000/- towards
principal and ₹13,00,000/- towards interest. She is also
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KABC0C0218532023
claiming that accused is liable to pay interest @ 18% p.a.
on the money lent by her. It is significant to note that
there is no document/agreement to substantiate the claim
of the complainant that the accused is liable to pay
interest @18% p.a. on the money lent by her. This has
been admitted by PW-1 in her cross-examination dated
10.01.2024. Therefore, claim of the complainant for
interest @18% p.a. cannot be sustainable. The
complainant having admitted that the accused has repaid
₹20,00,000/- out of ₹30,00,000/-, in the absence of
documents to support the claim, her claim that the
accused is still liable to pay ₹20,00,000/- is without any
basis.
35. Apart from the admission made, to
substantiate the transfer of money, the accused has
produced his bank statements which are produced at
Ex.D1 to 4 and 12 and ledger account extracts at Ex.D9 to
11. It is an undisputed fact that the complainant has
paid ₹18,00,000/- on 22.04.2016; ₹50,000/- on
27.12.2016; and ₹1,00,000/- on 14.02.2019 by way of
bank transfer. Further, the accused has also admitted
that he has received ₹50,000/- each from the complainant
by way of bank transfers on 03.02.2019 and 04.02.2019.
Relevant entries which are admitted by DW-1 are marked
at Ex.P7(a) to (c), 9(a) and 9(b). In so far as, transfer of
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₹4,00,000/-, vide entry at Ex.P8(a) is concerned, accused
has stated that the said amount credited back to
complainant's personal account. Entry dated 06.04.2016
at Ex.P8 [below the entry at Ex.P8(a)] substantiates that a
sum of ₹4,75,000/- credited to the complainant's
account.
36. During the course of argument, learned
defence counsel submitted that in relation to same subject
matter, the complainant has already filed
Crl.Misc.No.39/2020 under Section 12 of Protection of
Women from Domestic Violence Act on the file of MMTC-1,
Mayohall Unit, Bengaluru and the same is pending. It was
argued that the complainant has admitted in her cross-
examination that in the present case also she is claiming
the same monitory relief that are claimed in Domestic
Violence proceedings. Therefore, it was argued that
accused cannot be prosecuted twice on the same
allegations. In this regard, reliance is placed on the
judgments of Hon'ble Supreme Court in the case of T.T
Antony V/s State of Kerala, (2001) 6 SCC 181 and T.P
Gopalakrishnan V/s State of Kerala, 2022 (14) SCC
323.
37. Subject cheques are drawn for ₹20,00,000/-.
It is proved from the evidence on record that the cheques'
amount is more than the debt allegedly due to the
26
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complainant as because, complainant has admitted that
out of ₹30,00,000/-, accused has repaid ₹20,00,000/-. It
is brought on record that the accused has paid more
amount to the complainant than the money lent by her. It
is well settled law that if the cheque amount is more than
the debt due, Section 138 cannot be attracted. In this
regard, reliance is placed on the judgment of Hon'ble High
Court of Madras in Angu Parameswari textiles (P.) Ltd.
v. Sri Rajam and Co., (2001 SCC OnLine Mad 922),
where the Hon'ble Court held as under:-
"4. The original cheque amount is for
Rs.4,68,581. Subsequently, the complainant
has admitted that he received a demand draft
of Rs.2,00,000 towards part payment of the
cheque amount. Therefore, as on May 2,
2000, the amount due to the complainant is
only Rs. 2,68,581. Instead of presenting this
cheque at a later stage, the complainant ought
to have returned the original cheque and
subsequently obtained a new cheque for an
amount of Rs.2,68,581. Instead of doing so,
the original cheque dated March 25, 2000, for
an amount of Rs. 4,68,581 was presented in
the bank which was returned. The contention
of learned counsel appearing for the
respondent/complainant is that the said
cheque was retained by the complainant only
by way of security to the amount of Rs.
2,68,581. If this contention is accepted, the
complainant cannot come with a complaint for
an offence under section 138 of the Negotiable
Instruments Act because any action taken
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KABC0C0218532023
against the drawer of the cheque which was
kept by way of security will not lie.
5. Section 138 of the Negotiable Instruments
Act reads that where any cheque was drawn
for payment of any amount of money for the
discharge in whole or any part of any debt or
other liability and the same is dishonoured by
the bank, the person who drew the cheque
shall be punishable. Therefore, the cheque
drawn should be towards the discharge of
either the whole debt or part of the debt. If the
cheque is more than the amount of the debt
due, I am afraid, section 138 cannot be
attracted. This is a case where the cheque
amount was more than the amount due on
the date when the cheque was presented. The
presentation of the cheque and subsequent
dishonour alone raises a cause of action.
When the cheque cannot be said to be drawn
towards the discharge of either the whole or
part of any debt or liability, section 138 is not
attracted. On this sole ground, the complaint
is liable to be quashed and is accordingly
quashed. The petition is, therefore, allowed.
Consequently, connected are closed."
(underlined for emphasis)
38. In Alliance Infrastructure Project Pvt. Ltd.
and Ors. V. Vinay Mittal, (2010 SCC OnLine Del 182),
Hon'ble High Court of Delhi observed as under:-
"8. The question which comes up for
consideration is as to what the expression
"amount of money" means in a case where
the admitted liability of the drawer of the
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cheque gets reduced, on account of part
payment made by him, after issuing but
before presentation of cheque in question. No
doubt, the expression "amount of money"
would mean the amount of the cheque alone
in case the amount payable by the drawer,
on the date of presentation of the cheque, is
more than the amount of the cheque. But,
can it be said the expression "amount of
money" would always mean the amount of
the cheque, even if the actual liability of the
drawer of the cheque has got reduced on
account of some payment made by him
towards discharge of the debt or liability in
consideration of which cheque in question
was issued. If it is held that the expression
'amount of money' would necessarily mean
the amount of cheque in every case, the
drawer of the cheque would be required to
make arrangement for more than the
admitted amount payable by him to the
payee of the cheque. In case he is not able to
make arrangement for the whole of the
amount of the cheque, he would be guilty of
the offence punishable under Section 138 of
Negotiable Instruments Act. Obviously this
could not have been the intention of the
legislature to make a person liable to
punishment even if he has made
arrangements necessary for payment of the
amount which is actually payable by him. If
the drawer of the cheque is made to pay
more than the amount actually payable by
him, the inevitable result would be that he
will have to chase the payee of the cheque to
recover the excess amount paid by him.
Therefore, I find it difficult to take the view
that even if the admitted liability of the
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KABC0C0218532023
drawer of the cheque has got reduced, on
account of certain payments made after
issue of cheque, the payee would
nevertheless be entitled to present the
cheque for the whole of the amount, to the
banker of the drawer, for encashment and in
case such a cheque is dishonoured for wants
of funds, he will be guilty of offence
punishable under Section 138 of Negotiable
Instrument Act."
(underlined for emphasis)
39. In Sami Lab Limited V/s M.V. Joseph; (2019
SCC OnLine Kar 2975), Hon'ble High Court of Karnataka
held that:-
"22. Section 138 of the N.I. Act makes it
mandatory that to attract Section 138 of the
N.I. Act, making the dishonour of the cheque
as an offence, the issuance of cheque must be
as a whole or in part of any debt or other
liability.
23. In the instant case, when the housing
loan disbursed to the accused in full, was a
sum of Rs. 5,00,000/- and since it is
established that a portion of it has already
been repaid by the accused or has already
been recovered by the complainant company
from out of the salary of the accused, then the
total outstanding liability would be any sum
lesser than the cheque amount. Thus, when
any sum issued in the cheque is for an higher
amount than the outstanding liability and if
that excess amount is also not towards any
30
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KABC0C0218532023
interest, cost, penalty etc., but remains
unexplained, then Section 138 of the N.I. Act
cannot be said to be applicable."
(underlined for emphasis)
40. In the present case, as noted above, the
complainant has failed to establish that sum represented
on the cheques, was the legally enforceable debt on the
date of its maturity i.e., 30.12.2022. Therefore, this court
holds that as on the date of cheques, the accused was not
in due of sum reflected on the cheques.
41. It is true that a negotiable instrument
including a cheque carries presumption in terms of under
Section 118(a) and 139 of NI Act. However, those
presumptions are rebuttable presumptions. For rebutting
the presumptions under Section 118 and 139 of NI Act, it
is well settled that, standard of proof for rebuttal does not
require proof beyond reasonable doubt. To rebut the
presumption, accused can also rely upon the materials
already brought on record by the complainant and it is
enough for the accused to bring on record something
probable which is able to shift back the burden on the
complainant. Thereafter, presumptions arising under
Sections 118 and 139 of NI Act cease to operate. In this
regard, reference can be made to the judgment of Hon'ble
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Supreme Court in Kumar Exports V.s Sharma Carpets,
[(2009) 2 SCC 513] where it was held:-
"20. The accused in a trial under
Section 138 of the Act has two options.
He can either show that consideration
and debt did not exist or that under
the particular circumstances of the
case the non existence of
consideration and debt is so probable
that a prudent man ought to suppose
that no consideration and debt
existed. To rebut the statutory
presumptions an accused is not
expected to prove his defence beyond
reasonable doubt as is expected of the
complainant in a criminal trial. The
accused may adduce direct evidence
to prove that the note in question was
not supported by consideration and
that there was no debt or liability to be
discharged by him. However, the
Court need not insist in every case
that the accused should disprove the
nonexistence of consideration and
debt by leading direct evidence
because the existence of negative
evidence is neither possible nor
contemplated. At the same time, it is
clear that bare denial of the passing of
the consideration and existence of
debt, apparently would not serve the
purpose of the accused. Something
which is probable has to be brought on
record for getting the burden of proof
shifted to the complainant. To disprove
the presumptions, the accused should
bring on record such facts and
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circumstances, upon consideration of
which, the Court may either believe
that the consideration and debt did
not exist or their nonexistence was so
probable that a prudent man would
under the circumstances of the case,
act upon the plea that they did not
exist. Apart from adducing direct
evidence to prove that the note in
question was not supported by
consideration or that he had not
incurred any debt or liability, the
accused may also rely upon
circumstantial evidence and if the
circumstances so relied upon are
compelling, the burden may likewise
shift again on the complainant. The
accused may also rely upon
presumptions of fact, for instance,
those mentioned in Section 114 of the
Evidence Act to rebut the
presumptions arising under Sections
118 and 139 of the Act."
42. In Rajesh Jain V/s Ajay Singh; (2023) 10
SCC 148, Hon'ble Supreme Court held as under:
"55. As rightly contended by the appellant,
there is a fundamental flaw in the way
both the Courts below have proceeded to
appreciate the evidence on record. Once
the presumption under Section 139 was
given effect to, the Courts ought to have
proceeded on the premise that the cheque
was, indeed, issued in discharge of a
debt/liability. The entire focus would then
necessarily have to shift on the case set up
by the accused, since the activation of the
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presumption has the effect of shifting the
evidential burden on the accused. The
nature of inquiry would then be to see
whether the accused has discharged his
onus of rebutting the presumption. If he
fails to do so, the Court can straightaway
proceed to convict him, subject to
satisfaction of the other ingredients of
Section 138. If the Court finds that the
evidential burden placed on the accused
has been discharged, the complainant
would be expected to prove the said fact
independently, without taking aid of the
presumption. The Court would then take
an overall view based on the evidence on
record and decide accordingly."
43. In the present case, as observed above, the
accused has successfully rebutted the presumption so as
to disbelieve the case of the complainant. Hence, this
court finds that the evidential burden placed on the
accused has been discharged. Therefore, it is for the
complainant to prove that the accused is in due of money
to her. The said fact has to be proved independently
without taking aid of the presumption under Section 118
and 139 of NI Act. But, she has failed to prove the said
fact by producing convincing and cogent evidence.
Therefore, prosecution for the offence under Section 138
of NI Act, must fail. Consequently, the accused deserves
acquittal. Hence, I hold that the complainant has failed to
prove that the accused has committed the offence
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punishable under Section 138 of N.I.Act. Accordingly, I
answer Point No.1 in the Negative.
44. Point No.2:-In view of the findings recorded on
Point No.1, I proceed to pass the following:
ORDER
Accused is not found guilty.
Acting under Section 255(1) of Cr.P.C., accused is acquitted of the offence punishable under Sec.138 of Negotiable Instruments Act and he is set at liberty.
Bail bonds executed by the accused shall stand cancelled. Cash security deposited by him is ordered to be continued till the expiry of the appeal period.
Acting under Section 437-A Cr.P.C., accused is directed to execute fresh bail bond for ₹5,00,000/- to appear before the higher court as and when such court issues notice in respect of any appeal that would be preferred by the complainant.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 2nd day of July, 2025) ( SANTHOSH S.KUNDER ) XIV Addl. C.J.M., Bengaluru.
35C.C.No.57455/2023 KABC0C0218532023 ANNEXURES List of witnesses examined for the Complainant:
PW.1 June Varghese List of documents marked for the Complainant:
Ex.P.1 & 2 Cheques Ex.P.1(a) & Signatures of the accused 2(a) Ex.P.3 & 4 Bank endorsements Ex.P.5 Copy of legal notice dated 26.04.2023 Ex.P.6 Postal track consignment report Ex.P.7 to 9 Bank statements Ex.P.7(a) to Marked portions of Ex.P7 to 9 7(c), 8(a), 9(a) and 9(b) Ex.P.10 Attested copy of delivery details issued by Sub Post Master, M.G Road post office, Bengaluru.
Ex.P.11 Printout of WhatsApp chats List of witness examined for the defence:
DW.1 Alwyn D'sa List of documents marked for the defence:
Ex.D.1 Joint bank statement of complainant and accused (IDBI Bank) Ex.D.2 & 3 Bank statement of accused (IDBI bank) Ex.D.4 Bank statement of Trinity Infrastructure and developers 36 C.C.No.57455/2023 KABC0C0218532023 Ex.D.5 Certified copies of order sheet and petition in Crl.Misc.No.39/2020 Ex.D.6 Citi Bank credit card statement of complainant Ex.D.7 HDFC Bank credit card statement of complainant Ex.D.8 Police acknowledgment dated 19.02.2020 Ex.D.9 Ledger account statements of Trinity to 11 Infrastructure and Developers (School fees, Citi bank credit card and HDFC bank credit card) Ex.D.12 Bank account statement of accused (Indian bank) XIV Addl.C.J.M., Bengaluru.