Bangalore District Court
Vijaya vs Varadamma @ Roopa on 15 September, 2025
KABC030315882024
Presented on : 07-06-2024
Registered on : 07-06-2024
IN THE COURT OF XXI ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
Dated this the 15th day of September 2025
PRESENT
Sri. Dinesh B.G, B.Com.,LL.M.
XXI ACJM, Bengaluru
CRIMINAL CASE NO.18219/2024
Complainant : Smt.Vijaya,
w/o.late.Chandru, aged about 43
years, R/at.Anjanapura, Near
Maramma temple, Bangalore south-
560062.
(By Sri.DCR., Adv)
V/s
Accused : Smt.Varadamma@ Roopa,
w/o.Venkatesh.C, aged 39 years,
R/at.No.69, Near Gangamma temple,
Anjanapura, Bengaluru south-
560062.
(By Sri.ADM, Adv.)
JUDGMENT
(C.C.No.18219/2024 Judgement) 2 The accused has been tried for the offence punishable U/s 138 of Negotiable Instrument Act.
2. The brief case of the complainant is that:-
The accused issued the cheque bearing No.005924 dtd: 22/02/24 in favour of the complainant towards payment of hand loan of Rs.1 lakh being borrowed in the month of January 2021. When she presented the said cheque, it returned unpaid with an endorsement on 6/4/24 'kindly contact drawer, drawee bank and please present again'. So she got issued a legal notice on 16/4/24 calling the accused to repay the cheque amount which was unclaimed deliberately. The accused has failed to repay the cheque amount. Hence, she is constrained to file the complaint.
3. The cognizance of the offence punishable U/s.138 of Negotiable Instrument Act having been taken on the basis of sworn statement filed in the form of affidavit and documents at Ex.P.1 to P.8, the process came to be issued against accused. In response to the summons, the accused appeared through her Advocate and was enlarged on bail. Substance of accusation was framed, read over and explained to accused; who having pleaded not guilty has claimed to be tried.
(C.C.No.18219/2024 Judgement) 3
4. The affidavit filed in lieu of sworn statement has been treated as evidence in view of direction issued by Hon'ble Apex court in the case of Indian Bank Association and Others Vs.Union of India 2014 (5) SCC 59 and got the documents marked at Ex.P.1 to P.8.
5. Accused has been examined U/s 313 of Crpc after incriminating circumstances appearing against accused being read over and explained. She having denied the same has examined herself as DW 1 and got the documents marked at Ex.D1 to 12.
6. Having heard both side and having gone through the complaint, evidence and materials on record the following points arise for consideration of the court.
1. Whether complainant has proved that accused issued a cheque bearing no.005924 dtd: 22/02/2024 for Rs.1,00,000/- drawn on Union Bank, Konanakunte branch, Bengaluru, in her favour towards discharge of legally recoverable debt/liability and thereby she has committed the offence punishable U/s 138 of Negotiable Instrument Act?
2. What order?
7. My answers to the above points are as under:-
(C.C.No.18219/2024 Judgement) 4 Point No.1 :- In the Affirmative Point No.2 :- As per final order for the following:-
REASONS
8. POINT NO.1:- PW1 has reproduced the averments of the complaint in her examination in chief and relied upon cheque bearing No.005924 dtd: 22/2/24 - Ex.P.1, return memo report Ex.P.2, legal notice dtd: 16/4/24 Ex.P.3, postal receipt Ex.P.4, return RPAD cover Ex.P.5 and notice 5(a), police acknowledgment - Ex.P.6, complaint lodged before Thalaghatapura police station on 18/12/23- Ex.P.7, statement made before police on 18/12/23 - Ex.P.8. The cheque was presented within its validity period and same was dishonoured on 6/4/24. Legal notice was issued within 30 days from the date of receipt of intimation from the bank. The notice returned with an endorsement unclaimed. The complaint is filed on 21/5/24 within limitation. The accused has disputed service of legal notice. It is no doubt that receipt of the legal notice has to be proved by the complainant. If the notice is refused (not claimed) by the addressee, it can be presumed to have been served in terms of sec.27 of General Clauses Act. In this case, since the demand notice returned with an endorsement unclaimed, the said presumption has to be drawn that legal notice is served to the accused. It is drawer of the cheque who has to rebut (C.C.No.18219/2024 Judgement) 5 such presumption that the legal notice was not served on him. In other words, as on the date of issue of notices, he was not residing in the address.
9. In cross examination DW1 admits that the address mentioned in the complaint belongs to her and complainant is her friend. The address mentioned in the demand notice and the address mentioned in the cause title of the complaint are one and the same. Since accused admits the said address and legal notice was addressed and posted to said address, it has to be held that legal notice was duly served. On the other hand, the accused has not made available any materials to show that she was not residing in the address as on the date of issue of demand notice and thereby has failed to rebut the presumption u/s.27 of General Clauses act. Thus, the requirement of provisions of sec.138 of N.I.Act is satisfied with.
10. In the case of Rajesh Jain v/s.Ajay Singh AIR 2023 SC 5018, Hon'ble Apex court having referred to the case in Bir Singh Vs.Mukesh Kumar has held that mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption. As soon as the complainant discharges the burden to prove that the (C.C.No.18219/2024 Judgement) 6 cheque was issued by the accused for discharge of debt, the presumptive device u/s.139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true , without expecting the complainant to do anything further.
11. Further Hon'ble Apex court having referred to the case in Rangappa Vs.Mohan (AIR 2010 SC 1898), has held that the standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of preponderance of probabilities, similar to a defendant in a civil proceeding. Having referred the case in Basalingappa Vs.Mudibasappa AIR 2019 SC 1983 and Kumar Exports Vs.Sharma carpets (2009) 2 SCC 513, Hon'ble Apex court has further held that in order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence (C.C.No.18219/2024 Judgement) 7 of a legally enforceable debt or liability can be contested. The words until the contrary is proved occurring in sec.139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the court to consider the non existence of debt or liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt or liability did not exist.
12. In view of the decisions cited above, it becomes clear that once it is established that the cheque relates to the bank account of the accused and signature is of the accused, presumptions as provided u/s.139 and 118 of N.I.Act have to be drawn in favour of the complainant that the cheque was issued towards discharge of liability or debt. Since accused has admitted that the cheque - Ex.P.1 pertains to his bank account besides his signature, in view of the aforesaid settled position enunciated in the above said decisions, the presumptions have to be drawn in favour of the complainant that Ex.P.1 was issued in favour of the complainant towards discharge of his liability as claimed by the complainant. The burden shifts on the accused to rebut the said presumptions that there existed no such liability.
(C.C.No.18219/2024 Judgement) 8
13. It is not in dispute that the complainant and accused being friends and well known to each other for long time are residing in the same locality. It is not in dispute that the accused was running Modicare products business and there was transaction between the complainant and accused in relation to aforesaid business. It is not in dispute that the complainant is working in a garments. As already stated supra, since accused admits the cheque and signature therein, burden lies on her to rebut the presumptions that the cheque was issued towards discharge of the aforesaid hand loan. The first defence of the accused is with respect to the financial capacity of the complainant. PW1 denies the suggestion that she had no financial capacity to lend such loan amount. PW1 states that she is drawing salary of Rs.15000/- per month and she is residing in her own house and she has income of Rs.2 lakhs per annum. Having regard to the said income of the complainant and the quantum of loan amount being Rs.1 lakh, it cannot be said that the complainant has no financial capacity to lend such amount. Even otherwise, the accused has not brought on record to doubt the financial capacity of the complainant. Contrary to her said defence, in her statement recorded u/s.313 of Cr.P.C., accused claims that she has paid the loan amount through online. Very version of accused indirectly shows borrowing of loan amount from the (C.C.No.18219/2024 Judgement) 9 complainant and thereby admits the financial capacity of the complainant. Looking to the occupation and income of the complainant besides the amount of loan and the aforesaid defence of the accused, the financial capacity of the complainant to lend such amount cannot be doubted.
14. In so far as defence of the accused that she paid the amount through online is concerned, in cross examination PW1 has denied the suggestion that a sum of Rs.60000/- was paid through phone pay to the account of her daughter from the account of the accused. However, the screenshots of phonepay at Ex.D1 to D10 and bank statement at Ex.D11 relied upon by the accused would show that a sum of Rs.21850/-, a sum of Rs.2000/-, Rs.5000/-, Rs.2000/-, Rs.3000/-, Rs.3000/-, Rs.1000/-, Rs.500/-, Rs.9500/- and Rs.10000/- were transferred to the account of Pavithra on 18/12/21, 24/12/21, 22/2/22, 5/4/22, 17/4/22, 24/4/22, 9/5/22, 16/8/22, 20/8/22 and 4/1/24 respectively. In all a sum of Rs.57,850/- appears to have been transferred to the account of said Pavithra, who happens to be the daughter of the complainant. Assuming that the amount transferred to the account of daughter of the complainant was in relation to the loan transaction, it is not coming forth as to why the accused did not transfer the said amount directly to the account of the complainant.
(C.C.No.18219/2024 Judgement) 10
15. As against to the said defence of partial repayment of loan amount taken in 313 statement and cross examination of PW1, it is the version of DW1 in her examination in chief that she knows the complainant from 2018 and the complainant used to visit her shop to purchase modicare products. The complainant has a son namely Praveen and a daughter namely Pavithra. Her son Praveen was admitted to the hospital. So, the complainant sought for financial assistance to meet the hospital expenses. She assured the complainant to get the finance from others. Since the complainant did not have knowledge in the banking transaction, she got the amount transferred to the account of her daughter and to the account of one Shivalinga, s/o.Bachchamma, who happens to be the elder sister of the complainant. Thus, the complainant has owed her and she is not in due any money to the complainant. In other words, it is the version of DW1 that she had not taken any loan from the complainant and infact, the complainant had taken financial assistance for the treatment of her son. Said defence has seen daylight for the first time in examination chief of DW1, which could neither be seen in her statement recorded u/s.313 of Cr.P.C., nor in the cross examination of PW1.
(C.C.No.18219/2024 Judgement) 11
16. What is suggested to PW1 is that the amount was transferred to the account of her daughter from the account of the accused and the cheque in question was given to the complainant as a security. Said suggestion clearly indicates that the accused had availed loan from the complainant and got the alleged amount transferred towards payment of the loan. Whereas, accused has come up with different story in her examination in chief. When said theory has not been brought on record at the earliest point of time ie., in her 313 statement and in the cross examination of PW1, said version of DW1 brought during her examination in chief could hardly be believed. Even otherwise, she has not placed on record any other evidence except Ex.D1 to 10, to prove her defence taken in her examination in chief. In cross examination DW1 has admitted that the complainant lodged complaint against her before police and she was summoned to the police station, wherein she gave statement before police. She has admitted the signature in the statement given before police.
17. The complainant has mainly relied upon Ex.P.6 to 8 in support of her case to show the loan transaction. Ex.P.7 is the copy of the complaint, Ex.P.6 is the acknowledgment & Ex.P.8 is copy of the statement of accused, which would show that the complainant lodged (C.C.No.18219/2024 Judgement) 12 the complaint before Thalaghattapura police station alleging that the accused borrowed hand loan of Rs.1 lakh from her to meet educational expenses of her children and failed to repay the said amount despite her repeated requests and demands and therefore, she requested the police to take action against the accused to get back her money. The accused appeared before the police and admitted the loan transaction and undertook to repay the said loan amount of Rs.1 lakh in the month of February 2024. As already stated supra, since accused has admitted Ex.P.6 to 8, question of doubting or disbelieving the same does not arise. Further, DW1 has stated that she has not taken any action against police for having taken her statement forcibly and she has not lodged any complaint against the complainant for alleged misuse of the cheque in question. If there was no any such transaction and accused had not taken loan from the complainant and if it is the complainant who had taken loan from the accused, question of complainant lodging complaint before the police and accused visiting the police station and giving statement by undertaking to repay the said amount would not have arisen. The proceeding which had taken place before police would falsify the version of accused that she repaid portion of the loan amount by way of account transfer and another version of the accused that she had not taken loan, but the (C.C.No.18219/2024 Judgement) 13 complainant had taken financial assistance for the treatment of her son, since the accused started making payments through phonepay to the account of daughter of the accused from 18/12/2021, whereas, the complaint came to be lodged before police on 18/12/23. If the payment made through Ex.D.1 to 10 was with respect to the present loan transaction, the accused would have stated the same in her statement made before police at Ex.P.8. The above facts and circumstances of the case would support the case of the complainant that the amount transferred to the account of the daughter of the complainant is in relation to the transaction of modicare products. Thus, the accused having not probabalized any of the defences has thereby failed to rebut the presumption that has been raised in favour of the complainant that cheque in question was issued towards discharge of the loan amount.
18. The learned counsel for accused has contended that the cheque was returned with an endorsement as ''kindly contact drawer, drawee bank and please present again'' and said situation is not covered under the provisions of Sec.138 of N.I.Act. Therefore, it does not attract the provisions of sec.138 of N.I.Act and as such, complaint for the offence u/s.138 of N.I.Act is not maintainable.
(C.C.No.18219/2024 Judgement) 14
19. In that regard, it is relevant to refer to the decision in the case of Laxmi Dye Chem Vs.State of Gujarath and others reported in 2012 (13) SCC 375, wherein Hon'ble Apex court has held as hereunder :
"The grounds of dishonour are not confined two contingencies provided by sec.138 of N.I.Act and the accused can be prosecuted u/s.138 of Act for dishonor of cheques for other reasons. There are situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawer's of the cheques which would inevitably result in the dishnour of the cheques issued by them. So long as change is brought about with a view to preventing the cheque being honoured, the dishonour would become an offence u/s.138 of N.I.Act subject to other conditions prescribed being satisfied. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution u/s.138 shall have to be preceded by a statutory notice, where the drawer is called upon and has the opportunity to payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence, punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration."
(C.C.No.18219/2024 Judgement) 15 19(a). The above decision of Hon'ble Apex Court makes it clear that merely because the cheque gets dishonoured for the reasons account blocked, refer to drawer, signature differs and other reasons, it cannot be said that it would not constitute an offence u/s.138 of N.I.Act. It depends upon the facts and circumstances of the case. Burden lies on the accused to show that as on the date of presentation of the cheque, there was sufficient fund in the account to honour the cheque. Therefore, if accused is able to show that there was sufficient fund in her account and cheque came to be dishonoured not for want of funds, but it was for other reasons, the offence u/s.138 of NI Act would not be constituted against the accused.
20. In this case, the accused has not made available any evidence to show that as on the date of presentation of the cheque, there was sufficient amount in her account to honour the said cheque. That apart, nothing prevented the accused to make payment of the cheque amount either after receipt of demand notice or after filing of the present complaint. It clearly shows that the cheque in question was issued without having an intention to get it encashed. In the absence of any such evidence to show that the accused had sufficient funds in her account as on the date of issuance of cheque as well as presentation (C.C.No.18219/2024 Judgement) 16 of the cheque and to rebut the presumption regarding existence of debt, it cannot be held that accused is not liable for the offence punishable u/s.138 of N.I.Act.
21. The learned counsel for complainant has produced the Judgments passed in CC.534765/16 on the file of The Court of MS Deshna Golechha JMFC (NI Act), 07, Central District Tis Hazari Courts, Delhi, Judgment in CC.59696/2018 on the file of XXXIII ACJM, Bengaluru and in CC.7419/2021 on the file of XX ACJM, Bengaluru. In view of the decision of Hon'ble Apex Court, the above Judgments can neither be binding nor they can be looked into and are in no way helpful to the contention of the accused.
22. It is relevant to refer to the decision in the case of A.V.Pooojappa Vs. Dr.S.K.Vagdevi Crl.Rev.Pet No.13/20, dtd: 4/6/25 wherein Hon'ble High court of Karnataka has held that 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 (C.C.No.18219/2024 Judgement) 17 matter unnecessarily and thereby delayed the disposal of the case at the stage of trial, appeal, revision and before the Hon'ble Supreme Court.
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 nationalised bank etc,
23. In another decision in the case of M/s.Banavathi and company Vs.Mahaveer Electromech Pvt, Ltd., and others Crl.R.P.996/2016, Hon'ble High court of Karnataka has directed the trial courts to pass an order to pay future interest @ 9% on the compensation amount payable to the complainant by fixing time of one/two months to deposit the compensation amount so that even if the matter is challenged before Sessions court in appeal and Hon'ble High court of Karnataka in revision, the interest of the complainant will be protected. Keeping in mind the principles laid down in the above decisions and having regard to the facts and circumstances of the case, this court is of the considered opinion that the accused should be directed to pay the compensation to be awarded out of the fine amount to the complainant with interest at (C.C.No.18219/2024 Judgement) 18 9% per annum from the date of cheque till the compensation amount is deposited. Hence, I answer point No.1 in the affirmative.
24. POINT NO.2:- In the result, I proceed to pass the following:-
ORDER Acting U/s.255(2) of Cr.P.C the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused shall pay a fine of ₹1,05,000/- and in default of payment of fine amount, she shall undergo simple imprisonment for a period of six months.
Out of said fine amount, ₹1,00,000/- shall be paid to the complainant as compensation and remaining amount of Rs.5,000/- shall be paid to the state towards expenses as contemplated U/s 357(1) of Crpc.
The complainant is entitled to the compensation amount of Rs.1,00,000/- with interest at 9% per annum from the date of cheque till realization.
The accused shall deposit the said compensation amount with interest @ 9% per annum as ordered above within a month.
(C.C.No.18219/2024 Judgement) 19 The bail bond and surety bond stand canceled.
Office to furnish certified copy of the Judgment to the accused free of cost forthwith.
(Dictated to stenographer, transcribed by her, revised by me and then pronounced in open court on this the 15th day of September 2025) (Sri. Dinesh B.G) XXI Addl.Chief Judicial Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR COMPLAINANT:
P.W.1 - Smt.Vijaya LIST OF WITNESSES EXAMINED FOR ACCUSED: D.W.1 - Smt.Varadamma LIST OF DOCUMENTS EXHIBITED FOR COMPLAINANT:
Ex.P.1 Cheque Ex.P.2 Bank endorsement Ex.P.3 Legal notice Ex.P.4 Postal receipt Ex.P.5 Returned RPAD cover Ex.P.6 Acknowledgment Ex.P.7 Copy of complaint Ex.P.8 Statement
LIST OF DOCUMENTS EXHIBITED FOR ACCUSED:
Ex.D1-10 Screenshots
Ex.D11 Statement
(C.C.No.18219/2024
Judgement)
20
Ex.D12 65B certificate
(Sri. Dinesh B.G)
XXI Addl.Chief Judicial Magistrate, Bengaluru.