Bangalore District Court
Sri Krishna Naik vs Sri Mohan Kumar S on 4 April, 2025
KABC030463252023
IN THE COURT OF THE XIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
:: PRESENT ::
SMT. PAVITHRA. R, B.A.L, L.L.B.,
XIII ACJM, Bengaluru City.
C.C.NO. 26294/2023
Dated this the 4th day of April, 2025
COMPLAINANT: Sri. Krishna Naik,
S/o Rama Naik,
Aged about 40 years,
R/a. No.5, Banashankari Nilaya,
Near Chandrachoodeswara Temple,
A.K. Colony,
Bengaluru - 560 062.
[By Sri.B.H.Shamanna, Advocate]
V/S
ACCUSED: Sri. Mohan Kumar. S,
S/o Sri. Shankare Gowda,
Aged about 28 years,
R/a. No.47, 7th Cross, 3rd Block,
Muneswara layout,
Near Delhi Public School,
Harinagara Cross,
Bengaluru - 560 062.
-2- C.C.No. 26294/2023
Also at:
Nandini Milk Parlor,
Opposite to Government Hospital,
Anjanapura Main Road,
Next to BBMP Park,
Bengaluru - 560 062.
(By Sri.C.R.Sundaresh, Advocate)
Offence complained of : U/s. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final order : Accused is Convicted
Date of order : 04.04.2025
JUDGMENT
This is a private complaint filed by the complainant under Sec.200 of Cr.P.C., against the accused for the offence punishable under Sec.138 of Negotiable Instrument Act, 1881 (in short referred to as N.I. Act).
The brief facts of the case are as under :
2. It is the case of the complainant that, complainant and accused are known to each other since many years and they are friends. That the accused is doing milk vending business during morning hours in the address
-3- C.C.No. 26294/2023 given at the cause title and also working for private concern during day time. In the first week of June 2023 accused approached the complainant and requested for hand loan of Rs.1,50,000/- to meet his urgent requirements and for immediate financial necessity. Considering the request made by the accused, the complainant paid a sum of Rs.1,50,000/- to the accused on 05.06.2023 as the accused assured to repay the said amount within one day.
Thereafter the accused persuaded the complainant that he would repay the same in short time. In view of repayment of the said amount, the accused issued a cheque bearing No.000539 dated 07.06.2023 for a sum of Rs.1,50,000/- drawn on ICICI Bank, J.P.Nagar Branch, Bengaluru in favour of the complainant and also assured the complainant that the same will be honored on its presentation. Believing the words of the accused, the complainant presented the above cheque through his Banker State Bank of India, BTM 4th Stage, Bengaluru - 560 076 on 07.06.2023 but the same came to be returned with shara 'Drawers signature Differs'
-4- C.C.No. 26294/2023 vide intimation dated 16.06.2023. Thereafter the complainant sent legal notice dated 21.06.2023 demanding the cheque amount through RPAD and the accused did not receive the notice and the postal shara was received as unclaimed dated 26.06.2023. Thus, the accused has committed the offence punishable u/s.138 of Negotiable Instrument Act. Hence, this complaint.
3. On filing of this complaint, this court recorded the sworn statement of the complainant and took cognizance of the offence and issued summons to the accused. Accused appeared before the Court through his counsel and was enlarged on bail and substance of accusation was read over to him and he pleaded not guilty having defense to make. Hence, the matter was posted for recording of statement U/Sec.313 of Cr.P.C. Since there was incriminating evidence against the accused, the statement as required under Sec.313 of Cr.P.C was recorded and the matter was posted for defense evidence. PW1 was
-5- C.C.No. 26294/2023 fully cross-examined by the accused. Accused examined himself as DW1 and got marked documents at Ex.D.1 to Ex.D.3.
4. Heard both the sides. Perused the averments made in complaint, oral and documentary evidence of the complainant and after hearing arguments, the points that arises for determination are:-
1) Whether the complainant has proved that he lent a hand loan of Rs.1,50,000/- by way of cash to the accused. To discharge the said liability Ex.P.1 cheque is issued by the accused in favour of the complainant and the same was dishonored. Even after issuance of notice, the accused has failed to pay the cheque amount and thereby he is guilty of the offence punishable under Sec.138 of N.I. Act?
2) What order?
5. Findings to the above points are as under:-
Point No.1 : In the Affirmative Point No.2: As per final order for the following:
-6- C.C.No. 26294/2023
REASONS
6. Point No.1:- According to the complaint
averments of the complainant, accused approached the complainant requesting for hand loan of Rs.1,50,000/- to meet his urgent requirements and persuaded the complainant to pay the hand loan for one day. Considering the request of the accused, complainant paid a sum of Rs.1,50,000/- to the accused on 05.06.2023. To discharge the said liability accused issued Ex.P.1 cheque, but the said cheque was dishonored and the accused did not repay the amount even after issuance of legal notice.
7. In order to prove the complainant's case he got examined as PW1 by filing an affidavit and got marked 7 documents at the time of his chief examination as follows...
(i) Ex.P.1 is the cheque of ICICI Bank bearing No.000539 dated 07.06.2023 for sum of Rs.1,50,000/- alleged to have been issued by the accused. Signature of the accused is marked through complainant as Ex.P1(a).
-7- C.C.No. 26294/2023
(ii) Ex.P2 is the Bank Endorsement dated 09.06.2023 issued by the State Bank of India, BTM 4th Stage stating that 'Drawers Signature Differs'.
(iii) Ex.P3 is the legal notice dated 21.06.2023 issued by the complainant through his advocate to the accused demanding the payment of cheque amount.
(iv) Ex.P.4 & 5 are the postal receipts.
(v) Ex.P.6 is the postal acknowledgment.
(vi) Ex.P.7 is the notice kept in the postal cover.
(vii) Ex.P.7(a) is the unserved postal cover.
8. In the chief-examination of P.W.1, he has reiterated entire averments of the complaint and supported his version. The accused admits that the Ex.P1 cheque belongs to him and Ex.P1(a) is his signature. From the overall evaluation of oral and documentary evidence of the complainant it is not in dispute that the Ex.P1 cheque belongs to the accused and it bears his signature and complainant was the holder of the cheque at the time of presentation before the Bank. Hence, these points are
-8- C.C.No. 26294/2023 sufficient to raise presumption available under Sec.118 and 139 of N.I. Act.
9. Since the cheque belongs to the accused's account and bears his signature, the complainant is benefited to raise presumption under Sec.118 and 139 of N.I. Act. Thus until and unless the contrary is proved it is presumed that the cheque-Ex.P.1 is issued for the purpose of legal liability.
10. Now the burden shifts on the accused to rebut the presumption under Sec.118 and 139 of N.I Act from the defence points either by giving a standard proof or by establishing the same under the principles of preponderance of probabilities.
11. During the cross examination of PW.1 and in the chief examination of the DW.1, the accused has taken following defences:
-9- C.C.No. 26294/2023
(i) that the complainant has taken cheque of the accused by mistaking that the said cheque is of the father of the accused, which was kept on cash box of his father's milk diary since his signature was not properly made on the cheque,
(ii) that the accused was working at SBI Bank on 05.06.2023 between 9.30 to 7 PM and thus did not avail any loan as alleged in the complaint and
(iii) that the complainant had no financial capacity to lend the amount of Rs. 1,50,000/- to the accused.
Rebuttal evidence by the accused:
12. Above mentioned are the specific defences taken by the accused in this case. Let us analyze whether the accused has substantiated his defence points. The accused has lead defence evidence. At the time of cross examination of PW.1, the counsel for the accused has got marked two documents upon confrontation and one document in his chief examination, which are as follows:
- 10 - C.C.No. 26294/2023
(i) Ex.D.1 is the photocopy of the acknowledgement issued by the Konanakunte police station dated 02.07.2023. The said document reveals that the father of the accused had filed a complaint against the complainant registered in NCR No. 596/2023 alleging that the complainant- Krishna Nayak herein scolded him in filthy language and threatened him near his Nandini Milk Booth on 01.07.2023 for not repaying loan of R. 50,000/-.
(ii) Ex.D2 is the photocopy of the receipt dated 18.10.2021.
(iii) Ex.D3 is the employment certificate issued by the SBI Bank, Hulimavu Branch, Bengaluru.
13. The accused by way of chief affidavit stated that he was working in SBI Bank on 05.06.2023 between 9.30 AM to 7 PM and did not approach or receive Rs. 1,50,000/- loan from the complainant. He also stated that he had no financial difficulty to receive loan from the complainant. He further stated that during the end of May 2023 he had
- 11 - C.C.No. 26294/2023 placed the signed bkank cheque leaf number 000539 which had a "signature difference" on the top of the cash box at his father's milk vending shop to take it later, but on the same day the complainant picked up quarrel with his father and forcibly took away the said cheque.
14. Firstly, the accused has taken a defence that he had signed and kept his blank cheque on the cash box of his father's milk vending shop to take it later since the signature was not properly made. That suffice to show that the Ex.P1 belongs to him and signature on it is made by him. According to the accused in the tail end of May 2023 when he kept signed blank cheque on top of the cash box of his father's milk vending shop, the complainant also picked up quarrel on the same day and took away the cheque of the accused forcefully by believing that it is the cheque of the father of the accused. The said incident according to accused took place in the tail end of May 2023, but according to Ex.P1 dated 02.07.2023 and its recitals the
- 12 - C.C.No. 26294/2023 complaint was given by the accused's father stating that the fight above referred took place on 01.07.2023. If at all the accused defence is true then he would be aware of the fact of his cheque in possession with the complainant by the time Ex.P1 was registered. Such being the case what was the impediment for the accused not to initiate any action against the complainant demanding return of his cheque. The accused has not made any action demanding return of his cheque. The accused working as a Bank employee as per Ex.D3 cannot claim negligence for not demanding his cheque back from the complainant or not initiating any action against the complainant.
15. Secondly, the accused has stated that he had no financial relationship with the complainant but his father had and his father vide Ex.D2 repaid the loan availed by the complainant but the complainant has misused his cheque by taking the cheque forcibly from in his father's presence. The said document reveals that the father of the accused
- 13 - C.C.No. 26294/2023 has repaid Rs. 50,000/- to the complainant on 18.10.2021 and the same is admitted by the complainant. But the said document is dated 18.10.2021 and the alleged loan transaction is dated 05.06.2023 and alleged fight is in the month of May 2023. The only witness according to the accused who witnessed the alleged incident is his father. If at all the father of the accused had witnessed the complainant grabbing the Ex.P1 cheque forcibly from his Milk vending shop then he was a easy witness who can depose regarding the said alleged incident. But he is not made as defence witness in this case which is fatal to his defence. Hence defence of the accused that he did not issue Ex.P1 cheque towards legally recoverable debt and the same was taken by the complainant forcibly is not established and proved.
16. Thirdly, it is the defence of the accused that he was working at SBI Bank on 05.06.2023 between 9.30 to 7 PM and thus he did not avail any loan as alleged in the
- 14 - C.C.No. 26294/2023 complaint from the complainant. In order to prove this he has produced Ex.D3, which is the employment certificate issued by the SBI Bank, Hulimavu Branch, Bengaluru. The said document reveals that the accused was working in SBI Bank on 07.06.2023 as a Sales Executive, Auto Loan of SBI securities. It does not speak of a fact that the accused was working on 05.06.2023 between 9.30 to 7 PM. Hence the said document and evidence in this regard does not support the defence of the accused. Thus the accused has failed to prove the above said defence.
17. Fourthly, the accused has questioned the financial capacity of the complainant in lending alleged loan amount. It is relevant to note that there is an admission by both parties that there was previous loan transaction between the complainant and father of the accused. Thus suffice to show that the complainant had financial capacity to lend money. The value covered under Ex.P1 is only Rs.1,50,000/- which is not very huge amount to question
- 15 - C.C.No. 26294/2023 the financial capacity of the complainant. However it is the initial burden of the accused to rebut evidence by proving as to how his cheque landed in the hands of the complainant. Without proving the same mere denying the financial capacity of the complainant does not strengthens the defence of the accused. Hence the above referred defence does not seems a probable one.
18. In the above mentioned background if the defences of the accused is looked into, it clearly shows that the accused has not established and substantiated his defences on the principles of "preponderance of probability"
as laid down by Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418 regarding "standard of proof to be given by the accused". The ratio in said decision is aptly applicable to the case on hand for the reason that the accused has failed to prove his defence points through his oral and documentary evidence on record to believe his defence points. The accused though
- 16 - C.C.No. 26294/2023 lead his defence evidence, has failed to produce cogent materials to believe his version. Therefore the defence points with no cogent oral and documentary proof does not aid the accused. In view of the above discussion it is clear that the accused has failed to prove his defence on the principles of preponderance of probabilities and thus failed to rebut the presumption available to the complainant. That the accused has utterly failed to prove his defence points. On the other hand the complainant has brought in cogent oral, documentary and material evidence and proved that there exists legal liability of the accused towards the complainant for sum of Rs.1,50,000/-. Therefore, in the light of above discussion, the Court answer point No.1 in the Affirmative.
19. The counsel for the accused has relied on the following citations:
i) Shri Babulal Nainmal Jain Vs. Shri Khimji Ratansha Dedhia Others on 24th August, 1998, Bombay High Court, which has held as follows:
"If a cheque is returned on account of any structural defect i.e. any bdefect in its
- 17 - C.C.No. 26294/2023 form, want of signature, date has not been properly written, figure of the amount has been over written or erasures in the drawer's name etc., the same will not amount to an offence punishable under section 138 of the N.I Act.
ii) Rejikumar Vs. Sukumaran on 25th March, 2002, Kerala High Court, wherein it is observed that "it is incumbent upon the complainant to establish a case under section 138 of N.I Act, that the cheque was dishonored only for want of funds in the account and not for the reason that the signature differed."
The above referred decisions are not applicable to the case on hand since the accused has not challenged the order of cognizance and also for the reason that the Hon'ble Apex Court in Laxmi Dyechem Vs. State of Gujarat and others has held that the dishonor of cheque on the ground of "signatures do not match" constitutes an offence under section 138 of N.I Act.
20. Point No.2:- In view of the reasons stated and discussed above the complainant has proved the guilt of the accused punishable under Sec.138 of N.I. Act. It is
- 18 - C.C.No. 26294/2023 necessary to note that the said offence is of Civil wrong. Hence it is just and necessary to award sentence of fine instead of sentence of imprisonment and suitable compensation taking into account the age of transaction, complaint and time invested by both parties. Considering all these aspects this court proceed to pass the following:-
ORDER Acting under Sec.255(2) of Cr.P.C accused is hereby convicted for the offence under Sec.138 of N.I Act and sentenced to pay a fine of Rs.1,65,000/- (Rupees One Lakh Sixty Five Thousand Only), in default of payment of fine amount he shall undergo simple imprisonment for 6 months.
Further, acting under Sec.357(1)(b) of Cr.P.C. it is ordered that Rs.1,60,000/- (Rupees One Lakh Sixty Thousand Only) shall be paid to the complainant as a compensation, remaining fine amount of Rs.5,000/- (Rupees Five Thousand) to the State for the expenses incurred in the prosecution.
- 19 - C.C.No. 26294/2023 The bail bond of the accused stands canceled after expiry of the appeal period. (Dictated to the Stenographer directly on computer, revised, corrected, signed and then pronounced in the open court on this the 4 th day of April, 2025) (PAVITHRA R.) XIII ACJM, BENGALURU CITY ANNEXURE LIST OF WITNESSES EXAMINED FOR COMPLAINANT:
PW.1 Sri. Krishna Naik LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1 Sri. Mohan Kumar. S, LIST OF DOCUMENTS MARKED FOR COMPLAINANT:
Ex.P1 : Original Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank endorsement
Ex.P.3 : Copy of Legal Notice
Ex.P.4 & 5 : Postal receipts
Ex.P.6 : Postal acknowledgment
Ex.P.7 : Notice kept in the postal cover
Ex.P.7(a) : Unserved postal cover
- 20 - C.C.No. 26294/2023
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1 : NCR issued by the Konanakunte PS Ex.D.2 : Document showing loan repayment. Ex.D.3 : Certificate issued by State Bank of India, Hulimavu Branch, Bengaluru.
XIII ACJM, BENGALURU CITY.