Bangalore District Court
Sri. Vishweshwara Joish Y vs Smt. Lavanya T C on 6 November, 2025
1 C.C.No.10157/2023
KABC030173532023
Presented on : 27-04-2023
Registered on : 27-04-2023
Decided on : 06-11-2025
Duration : 2 years, 6
months, 9 days
IN THE COURT OF XII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU.
Dated this the 6th day of November, 2025.
:Present:
Smt. Dhanalakshmi.R.,
XII Addl. Chief Judicial Magistrate,
Bangaluru.
CC.No.10157/2023
Complainant: Sri. Vishweshwara Joish.Y.,
S/o. Late Ramakrishna Bhat.Y
Aged about 54 years,
R/at: No.1, 1st Cross,
Preethinagar, Laggere,
Bengaluru-560058.
(By Sri KVV. Adv.,)
V/s
Accused: Smt. Lavanya.T.C.,
D/o. Chandrashekar.T.B,
Aged about 41 years,
R/at: Opp Indian Gas Godown,
Belur Road, Sakleshpura-573134
Hassan Districr.
(By Sri.MMU., Adv., )
2 C.C.No.10157/2023
KABC030173532023
1. The date of : 07.03.2023
commission of the
offence
2. Date of the filing of : 20.04.2023
offence
3. Name of the : Vishweshwara
Complainant Joish.Y
4. Date of recording of : 20.04.2023
evidence
5. Date of closing of : 14.08.2025
evidence
6. Offence Complained : 138 of NI Act
of
7. Opinion of the Judge Accused is convicted
8. Date of such order 06.11.2025
for the following
JUDGMENT
1. This case is registered U/sec. 200 of Cr.P.C based on the written complaint given by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (hereinafter called as NI Act for the purpose of brevity).
2. The case of the complainant in brief is as follows:-
3 C.C.No.10157/2023
KABC030173532023 The father of the accused by name Sri Chandrasekhar was a marriage broker. The complainant came to know about the accused through her father in the month of January 2018. The accused in the month of July 2018 has approached the complainant for a hand loan of ₹3,00,000/- for her family necessities. Accordingly, the complainant has lent a sum of Rs.3,00,000/- on various dates from 2018 to 2019 through RTGS/NEFT from his Canara Bank and SBI Bank accounts. The accused has failed to repay the said amount within a period of 1 year as agreed by her. Upon repeated requests and demands on 25.12.2022 she has issued a post dated cheque bearing No.908495 dated 06.03.2023 for sum of Rs.3,00,000/- drawn on Indian Overseas Bank, Sakleshpura branch. As per assurance of accused when the cheque presented for encashment through his Banker, it 4 C.C.No.10157/2023 KABC030173532023 was dishonoured on 07.03.2023 with an endorsement as "Funds Insufficient". As such the complainant has issued demand notice dated:
13.03.2023 to the accused calling upon her to repay the cheque amount within 15 days from the date of receipt of the said notice. Due to the typographical error in the said notice, the accused has sent Corrigendum notice on 11.04.2023.
Inspite of receiving the said notices, the accused has not repaid amount. Hence, the present complaint.
3. On filing of the complaint, cognizance of the offence is taken and recorded the sworn statement of the complainant and marked 08 documents as per Ex.P1 to Ex.P8. The complainant has complied all the statutory requirements under Sec.138 Act. Thereafter, the case is registered against the accused and summons issued.
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4. On service of summons, the accused appeared through her counsel and she was enlarged on bail. The substance of accusation was read over and explained to the accused in the language known to her. As per the directions of Hon'ble Supreme Court of India in " Indian Bank Association V/s Union of India & Others reported in (2014) 5 SCC 590, this court has treated the sworn statement of the complainant as his evidence and in compliance with the direction of Hon'ble Apex Court in the aforesaid citation the statement of the accused was also recorded u/s.313 of Cr.P.C. On application filed by the counsel for the accused persons under Section 145 Act, permission was accorded to cross examine PW1. But inspite of giving sufficient opportunities PW1 was not cross examined by the learned counsel for the accused and also accused not lead her evidence. When the case is posted for judgment, on the basis of the 6 C.C.No.10157/2023 KABC030173532023 interim application filed by the accused and allowing the same, PW1 was cross examined by learned counsel for the accused, in part. The accused has not lead her evidence.
5. Heard the learned counsel for both sides and they have also filed written arguments. Perused the records.
6. The following points arise for consideration:
POINTS
1) Whether the complainant proves that the accused has issued the cheque for the legally recoverable debt as alleged by him?
2) Whether the accused has committed the offence punishable under section 138 Act?
3) What Order or Sentence?
7. The above points are answered as under:
Point No.1: In the AFFIRMATIVE, 7 C.C.No.10157/2023 KABC030173532023 Point No.2: In the AFFIRMATIVE, Point No.3: As per the final order for the following:
REASONS
8. POINT No. 1 and 2: This Court is of the opinion that it need not repeat the entire averments made in the complaint here also, as this Court has already narrated the same at the inception of this judgment.
9. In order to substantiate the contention, the complainant got examined himself as PW1 and he has produced the cheque issued by accused and the same is marked as Ex.P1, signature of the accused on the cheque is marked as Ex.P1(a), Bank return memo as 'Funds Insufficient" is marked as Ex.P2, a copy of Legal Notice issued to accused is marked as Ex.P3, a copy of Postal Receipt and acknowledgment are marked as Ex.P4 and Ex.P5 respectively, Ex.P6 is the Corrigendum notice dt:8 C.C.No.10157/2023
KABC030173532023 11.04.2023, Ex.P7 is the postal receipt for having sent the Corrigendum notice, the Ex.P8 is the Bank statement of the complainant pertaining to Canara Bank.
10. In order to bring home a liability under Section 138 of NI Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz.
1. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;9 C.C.No.10157/2023
KABC030173532023
4. The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 40 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
11. Let us discuss the provisions of Section 118(a) and Section 139 of the Negotiable Instruments Act, which read as follows:
Section 118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made:(a) of consideration - that every negotiable instrument was consideration, instrument, indorsed, made and when it negotiated or that has or drawn every been for such accepted, transferred, was accepted, indorsed, negotiated or transferred for consideration." Section 139. Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability." Presumptions both 10 C.C.No.10157/2023 KABC030173532023 under Sections 118(a) and 139 of the Act are rebuttable in nature.
12. In light of the arguments presented by both sides, let us discuss whether the aforesaid presumptions truly aid the Complainant in proving the guilt of the Accused. According to Sections 118 and 139 of the Negotiable Instruments Act, the initial presumption is in favour of the Complainant regarding the consideration mentioned in Ex.P.1 cheque and the fact that the cheque was issued in favor of the Complainant to discharge a debt or other liability.
13. As per the scheme of Section 118 and 139 of the Negotiable Instruments Act, once the presumption is drawn in favor of the Complainant, the burden shifts to the Accused to present rebuttal evidence that undermines the Complainant's case, showing that the Accused was not obliged to pay the amount and that a false case 11 C.C.No.10157/2023 KABC030173532023 was filed against him. According to this scheme, once the Accused has rebutted the presumption available under Sections 118 and 139 of the Negotiable Instruments Act, the onus then shifts back to the Complainant to prove its case in accordance with Section 102 of the Indian Evidence Act.
14. It is relevant to refer the ratio laid down by the Hon'ble Apex Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, reported in (1993) 3 SCC 35, wherein at page no.50-51, para 12, it was held as under:
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to 12 C.C.No.10157/2023 KABC030173532023 the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the showing the initial onus of non-existence proofby of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt".
15. It is relevant to refer to the ratio laid down by the Hon'ble Apex Court in S. Narayana Menon vs. State of Kerala, reported in (2006) 6 SCC 39, wherein the Apex Court has held that for rebutting the presumptions available under Sections 118 and 139 of the Negotiable Instruments Act, the accused 13 C.C.No.10157/2023 KABC030173532023 needs to raise a probable defense. For this purpose, the accused can rely upon the evidence adduced by the Complainant. It is further held that the standard of proof for the accused is preponderance of probabilities and not beyond reasonable doubt.
16. It is also relevant to refer to the ratio laid down by the Hon'ble Apex Court in Kamal A.S vs. Vidhyadaran M.J and another, reported in (2007) 5 SCC 264, wherein the Hon'ble Apex Court has held that the burden on the accused to rebut the presumptions can be discharged by preponderance of probabilities. It was further held that the court can draw inference from the material brought on record as well as circumstances relied upon by the accused. The Apex Court further discussed that when the accused has discharged the initial burden, the onus shifts to the Complainant, and if the Complainant fails to prove his case beyond reasonable doubt without the help of the 14 C.C.No.10157/2023 KABC030173532023 presumption, the Complainant is not entitled to the relief sought under the complaint.
17. It is relevant to refer to the ratio laid down by the Apex Court in Basalingappa vs. Mudibasappa, reported in (2019) 5 SCC 418, wherein the Hon'ble Apex Court has discussed Sections 3 and 4 of the Evidence Act in connection with Sections 118(a) and 139 of the Negotiable Instruments Act. It held that as soon as the Complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumption under Sections 118 and 139 of the Negotiable Instruments Act help the Complainant to shift the burden to the accused. It was further held that the presumptions will live, exist, and survive, and shall end only when the contrary is proved by the accused, i.e., the cheque was not issued for consideration and in discharge of any debt or liability. It was further held that a 15 C.C.No.10157/2023 KABC030173532023 presumption is not in itself evidence but only makes a prima facie case for the party for whose benefit it exists. It was further held that the accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. It was further held that the courts need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated.
18. It is also relevant to refer to the ratio laid down by the Hon'ble Apex Court in Uttam Ram vs. Devinder Singh Hudan and another, reported in (2019) 10 SCC 287, wherein the Hon'ble Apex Court has discussed the presumption under Sections 118 and 139 of the Negotiable Instruments Act and the burden of rebuttal of 16 C.C.No.10157/2023 KABC030173532023 presumption under these sections. It was further held by the Hon'ble Apex Court that to rebut the statutory presumption, an accused is not expected to prove his defense beyond reasonable doubt as is expected of the Complainant in a criminal case. It was further held that the accused has to bring something probable on record to get the burden of proof shifted to the Complainant. It was further held that to disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and the debt did not exist, or their non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that they did not exist. It was further held that the accused, apart from adducing direct evidence to prove that the consideration did not exist or that he had not incurred any debt or liability, may also rely 17 C.C.No.10157/2023 KABC030173532023 upon circumstantial evidence, and if the circumstances so relied upon are compelling, the burden may likewise shift again to the Complainant.
19. This court has carefully perused the ratios laid down in the aforementioned cases by the Hon'ble Apex Court and applied them to the case at hand. According to the decisions of the Apex Court, the burden on the Accused to prove the non- existence of consideration can be discharged either directly or by bringing on record the preponderance of probabilities, referencing the circumstances upon which he relies. Furthermore, as per the dictum of the Hon'ble Apex Court, the Accused is entitled under the law to rely upon all the evidence presented in the case, including that of the Complainant.
20. The Apex Court's dictum clarifies that the burden on the Accused to rebut the presumption is 18 C.C.No.10157/2023 KABC030173532023 not as stringent as proving guilt beyond a reasonable doubt but is instead based on the preponderance of probabilities. This means that the Accused must present evidence that, when weighed against the evidence presented by the Complainant, shows that it is more likely than not that the Accused did not owe the alleged debt.
21. After comprehending the scheme of Sections 118 and 139 of the Negotiable Instruments Act and carefully considering the precedents set by the Apex Court in the aforementioned cases, let us discuss the materials on record and ascertain whether the presumption is indeed available to the Complainant under Sections 118 and 139 of the Negotiable Instruments Act. We also need to determine whether the Accused has successfully rebutted the presumption in favor of the omplainant under Sections 118 and 139 of the Negotiable 19 C.C.No.10157/2023 KABC030173532023 Instruments Act, and whether the Complainant has discharged its onus of proof under Section 102 of the Indian Evidence Act after the Accused has raised doubts by presenting a preponderance of probabilities to rebut the presumption.
22. The complainant at paragraph No.3 of the complaint has stated that he came to know about the accused through her father, who is a marriage broker. The said fact is not at all denied by the accused. Further the learned counsel for the accused during the cross examination of PW1 has suggested to the complainant that there was a cordial relationship between the complainant and the accused. Further it is suggested to the complainant that there was a money transaction between the parties. It is also suggested to the complainant that even the father of the accused has borrowed amount from the complainant. Hence, the earlier transaction between the parties 20 C.C.No.10157/2023 KABC030173532023 is not in dispute. It is pertinent to note that the accused has not at all disputed the issuance of the cheque to the complainant nor her signature in the cheque at Ex.P1. Even remotely, no suggestion is put forth to the complainant during his cross- examination that the Ex.P1 cheque does not belongs to the accused and she has not signed the cheque. Hence, as per Sec.118 & 139 of Act the presumption favours the complainant. Hence, the burden shifts to the accused to rebut the said presumption in favour of the complainant under the provision of the Act.
23. The accused in order to rebut the said presumption has cross examined the complainant by filing IA to recall the complainant for cross examination when the case has posted for judgment. In spite of recalling the PW1 for cross- examination, but he was not completely cross- examined by the learned counsel for the accused. 21 C.C.No.10157/2023 KABC030173532023 The accused has not lead any defence evidence on behalf of her and not produced any documents. No doubt as per the above said judgment, the accused need not enter the witness box to rebut the presumption, but she can rely upon the documents produced by the complainant. The accused has taken the defence that the legal notice as per Ex.P3 is not served on her. But it is to be seen that the Ex.P3 legal notice is sent through registered post acknowledgment due. The said postal receipt and acknowledgment is produced by the complainant at Ex.P4 and P5 respectively. The learned counsel for the accused except suggesting to the complainant that no notice is received by the accused, but has not produced any document to show the correct address of the accused. Hence in the absence of any documentary evidence regarding the address of the accused, the mere oral suggestion and mere 22 C.C.No.10157/2023 KABC030173532023 argument by the learned counsel for the accused that the notice not served on the complainant does not hold no water. Further it is to be seen that as per Section 27 of the General Clauses Act, once a party properly posts letter by registered post to a proper address, it establishes a legal presumption that service of a documents by register post is effective, unless evidence proves otherwise. It is seen that the address of the accused mentioned in the complaint, Legal Notice at Ex.P3 and Postal acknowledgment at Ex.P5 is of the same address. The said notice is duly served as the acknowledgment bares the signature of the accused. The accused has not disputed her signature in the postal acknowledgment at Ex.P5. Such being the case, the contention of the accused that she has not served the legal notice at Ex.P3 for the proper address, as per law cannot be accepted.
23 C.C.No.10157/2023KABC030173532023
24. The accused has taken another defence that the complainant has no financial capacity to lend a sum of Rs.3,00,000/- to the accused from 2018 to 2019. It is to be seen that the complainant has produced his bank statement pertaining to Canara Bank at Ex.P8 from the year August 2018 to November 2019. On careful perusal of the said Bank statement, it is seen that the accused has transferred 10 times money to the accused by way of NEFT. The accused has not suggested anything regarding the said transaction to the complainant during his cross-examination, as to for what purpose the complainant has sent the said amount via NEFT. It is also pertinent to note that the complainant in his complaint has specifically stated that from the year 2018 to 2019 he has sent Rs.3,00,000/- to the accused on various dates. When the complainant has produced his Bank statement for having sent the amount to the 24 C.C.No.10157/2023 KABC030173532023 accused through NEFT, the question of his financial capacity to lend the amount does not arise.
25. It is pertinent to note that the learned counsel for the accused during the cross examination of the complainant on 06.08.2025 has suggested to the complainant that there was a cordial relation between the complainant and the accused and the same is denied by the complainant. On the same day further it is suggested to the complainant that he does not know the accused. Whereas during the cross examination of the complainant on 14.08.2025 the learned counsel for the accused has suggested to the complainant that there was a personal misunderstanding between the parties and the same is denied by him. Further it is also suggested that the complainant has taken loan from the accused and the father of the accused has taken 25 C.C.No.10157/2023 KABC030173532023 amount from the complainant. Except the said suggestion that the complainant has taken hand loan from the accused, but regarding the said suggestion no documents is placed before the court, as to how much amount has been borrowed by complainant from the accused. It is to be seen that the learned counsel for the accused in his written arguments has taken a contention that the complainant had no bonafide or genuine intention towards the accused, as he visited her residence under the guise of marriage proposal and gained the trust of her and her family members. The complainant spent money on his own accord to the accused and thereafter took undue advantage of her trust. It is also stated in the written arguments that the complainant sexually harassed and assaulted the accused. Since she resides in a remote area, due to lack of legal knowledge, she could not file the complaint immediately. When the 26 C.C.No.10157/2023 KABC030173532023 accused refused for the proposal of the complainant to live in a relationship outside marriage, the complainant with ulterior motive filed false case against her only with an intention to harass the accused. Further it is mentioned in the written arguments at paragraph No.3 that the alleged cheque was not issued towards repayment of any legally enforceable debt, but issued under different circumstances as security or assurance and the complainant has misused the same. It is pertinent to note that the contention taken by the learned counsel for the accused in his written arguments are not at all suggested to the complainant during his cross-examination and the accused has not stepped into the witness box to say the said contentions. Hence in the absence of oral and documentary evidence regarding the above said contentions, the averments of the written arguments cannot be accepted. 27 C.C.No.10157/2023 KABC030173532023
26. The learned counsel for the accused during his arguments has vehemently contended that the cheque at Ex.P1 is issued towards a time barred debt and hence it is not a legally enforceable document and hence the accused cannot be held liable for the offence punishable under Section 138 of the NI Act. It is to be seen that as per the averments of the complaint and the documents produced by the complainant, he has lent money to the accused from the year 2018 to 2019 as per Ex.P8. The cheque at Ex.P1 is dated 06.03.2023 and the same is dishonored on 07.03.2023. The complainant has issued legal notice dated 13.03.2023 and corrigendum notice on 11.04.2023 respectively as per Ex.P3 and P6 respectively. At this stage this court relies upon the judgment of the Hon'ble High Court of Karnataka judgment reported in 2025 SCC Online KAR 11279 between D.Vijaya Vs. G.Jayaprakash 28 C.C.No.10157/2023 KABC030173532023 connected with two other cases dt: 22.03.2025 wherein the Hon'ble High Court of Karnataka has discussed in detail the judgments of the various courts and also Apex court and has held as under:
" Point Nos. 1 to 3:
37. The issue of time barred debt is raised in all the three cases. Hence, point Nos. 1 to 3 are considered together for consideration regarding the contention of liability is concerned as well as all the cheques are issued connection with earlier transaction as well as memorandum of agreement.
38. Having considered the grounds urged in the revision petitions, the main contention of learned counsel for the revision petitioner is that Courts below committed error in relying upon the evidence of P.W.1and failed to take note of the fact that memorandum of understanding came into existence at the intervention of Police. Learned counsel would also vehemently contend that material disclose that according to the complainant, transaction took place on 02.06.2008 and subsequently, fresh cheques are issued on 30.12.2011 and also not disputes issuance of Cheques, but only contention is that document of memorandum of understanding cannot be relied upon and the Trial Court in connected case not accepted the same and comes to the conclusion that cheques have been issued in respect of time barred debt and there cannot 29 C.C.No.10157/2023 KABC030173532023 be any recovery and the same is not legally enforceable debt.
39. Per contra, learned counsel for the respondent would vehemently contend that very accused gave the complaint with the Joint Commissioner of Police on 10.11.2011, wherein he made an allegation that he made the payment of Rs. 7,00,000/- and complainant is harassing. In the very document, he has admitted he has to pay the balance amount of Rs. 6,00,000/-. Hence, it is clear that there was transaction and admitting the liability, fresh cheques are given which renews the liability and now cannot contend that pro-note ought to have been on the date of Cheque. Having considered these contentions and also the judgments which have been relied upon, this Court has to analyze the material on record.
40. The main contention of learned counsel for the revision petitioner is that in the judgment of Basalingappa's case referred supra, in detail discussion was made and contend that when cheques are issued in respect of time barred debt, there cannot be any legally recoverable debt. Learned counsel also relied upon the judgment of this Court i.e., Kalaburagi Bench in Bidar Urban Co-
Operative Bank Ltd. v. Mr. Girish and referring this judgment would contend that 138 of the N.I. Act is attracted only if there is legally recoverable debt and it cannot be said that time barred debt is legally recoverable debt. The counsel also relied upon the judgment of Kerala High Court in Sasseriyil Joseph's case and confirmation made by the Apex Court and 30 C.C.No.10157/2023 KABC030173532023 Kumar Exports's case regarding presumption is concerned and so also the judgment of Krishna Janardhan Bhat's case referred supra.
41. Having taken note of said contention also, the judgment relied upon by learned counsel for the respondent- complainant in A.V.Murthy's case, it relies not in dispute that issue of legally recoverable debt could be considered at the time of considering the evidence on record. In the other judgment of the Apex Court in K. Hymavathi's case, the Apex Court held that said issue cannot be decided on merits and no dispute with regard to this principle is concerned. Learned counsel also relied upon the judgment of the Apex Court in Rangappa's case, wherein at paragraph No. 11, the Apex Court observed that Para No. 30 in Krishna Janardhan Bhat's case are in conflict with the statutory provisions as well as an established line of precedents of this Court. Hence, Krishna Janardhan Bhat's case cannot be relied upon. The counsel also relied upon Bir Singh's case with regard to presumption is concerned and it is also settled law that unless the presumption is rebutted by raising probable case, the case of the accused cannot be accepted.
42. Learned counsel for the respondent relied upon the judgment of Gimpex Private Limited's case, wherein discussion was made by the Apex Court regarding levy arising from the settlement agreement and in the facts of the case on hand, the very contention is that settlement was arrived between the parties, wherein the Apex Court held that parties are 31 C.C.No.10157/2023 KABC030173532023 bound by the terms of the agreement and any violation of the same may result in consequential action in civil and criminal law and also taken note of the fact that cheques were issued towards discharge of liability were dishonoured and a deed of compromise was entered into thereafter and part payment was also made and held that second set of cheques issued towards deed of compromise was also dishonoured and subsequent settlement between the parties is also recognized.
43. This Court would like to rely upon the judgment of this Court reported in ILR 2006 KAR 4242 reported in H. Narasimha Rao v. R.Venkataram, wherein this Court held with regard to offence under Section 138 of N.I. Act, repayment of time barred debt, issue of Cheque, whether constitute an offence, held that since no fresh consideration is required to pay the time barred debt, and there is no legal bar for the debtor agreeing to pay the time barred debt, the dishonoured cheques issued towards repayment of time barred debt does constitute an offence under Section 138 of the Act, order of acquittal is set aside. In this judgment, the judgment which has been relied upon by the learned counsel for the respondent in A.V. Murthy's case is relied upon in paragraph No. 11 and given finding based on the judgment of the Apex Court, wherein discussion was made with regard to sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor 32 C.C.No.10157/2023 KABC030173532023 might have enforced payment but for the law for the limitation of suits, is a valid contract. This issue was also raised before Division Bench of the Kerala High Court in Ramakrishnan's case following the ratio laid down in A.V. Murthy's case, referred supra considering Section 25 of the Indian Contract Act, 1872.
44. This Court also would like to rely upon the judgment of Kerala High Court reported in 2003 SCC OnLine Ker 420 in the case of Dr. K.K. Ramakrishnan v. Dr. K.K. Parthasaradhy, wherein at paragraph No. 14, discussed with regard to Section 25(3) and also in paragraph No. 24 held that when person issues a cheque, he acknowledges his liability to pay. In the event of the cheque being dishonoured on account of insufficiency of funds he will not be entitled to claim that the debt had become barred by limitation and thatthe liability was not thus legally enforceable, he would be liable for penalty in case the charge is proved against him.
45. This Court also relies upon the judgment of Delhi High Court reported in 2024 SCC OnLine Del 6421 in the case of Rajeev Kumar v.State NCT of Delhi, also aken note of the judgment of the Apex Court in S.Natarajan v. Sama Dharman, (2021) 6 SCC 413 which is discussed in paragraph No. 24 and also discussed the judgment of Rangappa v. Sri. Mohan and both A.V. Murthy's case as well as S.Natarajan's case so also the judgment of Madras High Court in M. Balaji v. Perim Janardhana Rao, 2020 SCC OnLine Mad 28058, wherein at paragraph No. 60 of the 33 C.C.No.10157/2023 KABC030173532023 said judgment discussed with regard to Sub- section (3) of Section 25 of Indian Contract Act deals with acknowledgement time barred debt. Having considered the material in detail, in paragraph No. 37, the Apex Court held that furnishing of a Cheque of a time-barred debt effectively resurrects the debt itself by a fresh agreement through the deeming provision under Section 25(3) of ICA. The original debt therefore, through Section 25(3) of the ICA, becomes legally recoverable enforceable to the extent of the amount the Cheque has been given. It is further held that by the act of drawing a Cheque, the promisor i.e., the drawer, is effectively stating that he has a liability to pay the drawee. Drawing of the Cheque in itself, is acknowledgment of which would trigger the provisions under Section 138 of NI Act. To deny a complainant/drawee of invoking the penal provisions of Section 25(3) of the ICA recognizing a fresh agreement to pay, would be an unfortunate disentitlement.
46. This Court also relies upon the judgment of Apex Court reported in (2021) 6 SCC 413 in the case of S. Natarajan v. Sama Dharman, wherein it is held that whether the debt was time-barred or not can be decided only after the evidence is adduced, it being a mixed question of law and fact. Further, in Cheque bouncing cases, the initial presumption incorporated in Section 139 NI Act favours the complainant and the accused can rebut the said presumption and discharge the reverse onus by adducing evidence.
47. This Court also relies upon the judgment of Punjab and Haryana High Court 34 C.C.No.10157/2023 KABC030173532023 reported in ILR (2021) 2 P&H 671 in the case of Sultan Singh v. Tej Partap, wherein it is held that a debt which has become time barred can be enforced in case ingredients of Section 25(3) of Contract Act are fulfilled. A Cheque in writing signed by the persons issuing it would come squarely within the ambit of Section 25(3) of the Contract Act as to make the debt legally enforceable on the date on which Cheque is drawn. In paragraph No. 31, it is held that the issuance of a Cheque in repayment of a time barred debt amounts to a written promise to pay the said debt within the meaning of Section 25 (3) of the Contract Act and the said promise by itself would create a legally enforceable debt or liability as contemplated by Section 138 of the Negotiable Instruments Act.
48. This Court also relies upon the judgment of the Delhi High Court reported in 2019 SCC OnLine Del 6711 in the case of Tarun Samdarshi v. State (NCT of Delhi), wherein also in paragraph No. 3, it is held that the issuance of Cheque give rise to a presumption of the amount being due and consequently an acknowledgment rendering the plea of debt being time barred inconsequential.
49. Having considered the judgments of different High Courts, the Apex Court as well as the judgments which have been relied upon by learned counsel for the petitioner, the judgment of this Court as well as Sasseriyil Joseph's case and Kumar Exports's case will not come to the aid of the complainant. Now, coming to the aspect of 35 C.C.No.10157/2023 KABC030173532023 liability in all the cases and presumptive value in respect of two revision petitions is concerned, it is the main contention of learned counsel for the revision petitioner that no opportunity is given and the same ground was urged before the appellate Court and appellate Court also turned down the said contention, since opportunity was given and further opportunity given by the Trial Court was not utilized by the revision petitioner,though cross-examined P.W.1 earlier and also subsequently, on account of no cross-examination, it was taken as no further cross. No doubt, when the case was set down second time for judgment, an application was filed, the same was rejected and the fact that P.W.1 was cross-examined earlier is not dispute.
50. It is also important to note that no defence evidence was led before the Trial Court by the revision petitioner even inspite of opportunity was given and no probable defence was raised in both the cases regarding issuance of Cheque and not disputed the signature on the document. But the only contention is that subsequent Cheques are issued at the intervention of the Police and document Ex. P9 is marked before the Trial Court in C.C. No. 5845/2013 and the very accused had approached the Joint Commissioner ofPolice and when he had approached the Police, Police have intervened between them. Hence, document of memorandum of agreement came into existence, wherein the accused categorically admitted the liability and issued fresh Cheques i.e., subject matter of Cheques in all the three cases. The document of Ex. P8 is 36 C.C.No.10157/2023 KABC030173532023 also marked before the Trial Court for having executed on demand promissory note, consideration receipt in respect of Cheque for Rs. 9,00,000/-. No doubt, exhibits are interchanged while marking those documents before the Trial Court, the same has been set right. When once the Police intervened regarding dispute between the complainant and the accused and document came into existence i.e., memorandum of agreement which is marked in all the cases, now the accused cannot contend that the liability is time barred liability and this Court in detail discussed the same and in view of Section 25(3) of the Indian Contract Act, when the accused has acknowledged the debt in writing, he cannot contend that the liability is a time bared liability. Section 25(3) of the Indian Contract Act, 1872 reads as hereunder:
25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.--(1).
xxxx xxxx xxxx (2). xxxx xxxx xxxx (3). It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. 37 C.C.No.10157/2023 KABC030173532023
51. In the case on hand, it has to be noted that memorandum of agreement which is marked before the Trial Court in all the cases is very clear that earlier there was transaction in the year 2008 and earlier when the accused had issued Cheques, the first Cheque was dishonoured, immediately on persuasion, he made demand to pay the amount in respect of dishonoured Cheque. Thereafter, memorandum of agreement came into existence and the accused also acknowledged issuance of three Cheques earlier for an amount of Rs. 10,75,000/-, Rs.6,00,000/- and 6,25,000/-, in all to the tune of Rs. 23,00,000/-. It is also evident from the document of memorandum of agreement that subsequently, three Cheques are issued i.e., Cheque bearing No. 412506 dated 30.12.2011 for Rs. 3,00,000/-, Cheque bearing No. 412507 dated 27.02.2012 for Rs. 3,00,000/- and Cheque bearing No.412508 dated 30.04.2012 for Rs. 9,00,000/- and the same is subject matter in the criminal appeal filed by the complainant in view of the acquittal of the accused. Hence, this document is very clear that fresh Cheques are issued on account of recognizing earlier liability. In view of the principles laid down in the judgment of the Apex Court, judgment of the different High Courts, including this Court, this Court comes to a conclusion that Court can invoke Section 138 of N.I. Act in respect of the liability, even if it is a time barred debt subsequently through a document recognizing the liability and also promised to pay the same. Hence, the very contention raised by the learned counsel for 38 C.C.No.10157/2023 KABC030173532023 the revision petitioner in all the cases regarding no liability cannot be accepted. "
27. Hence, as per the above said judgment the cheque is issued in respect of liability of a time barred debt, the court can invoke Sec.138 of NI Act. Hence the contention of the learned counsel for the accused that the cheque at Ex.P1 is issued towards liability of a time barred debt cannot be accepted. As stated earlier, the accused has nowhere disputed the issuance of cheque at Ex.P1 to the complainant and also her signature in the said cheque. As suggested by the learned counsel for the accused, there was a money transaction between the parties and which clearly reflects in the Bank statement of the complainant at Ex.P8. The accused has to rebut the presumption under Section 139 of the NI Act, the standard of proof for doing so is that of "Preponderance of probability". Therefore if the accused is able to raise a probable defence 39 C.C.No.10157/2023 KABC030173532023 which creates doubts about the existence of the legally enforceable debt or liability, the prosecution can fail. But it is to be seen that in this case the accused has failed to rebut the presumption. Hence, for the above said reasons it is held that the accused has committed an offence punishable under Section 138 of the Act. As such, Point No.1 and 2 are answered in the AFFIRMATIVE.
28. Point No.3: Negotiable Instruments Act was enacted to bring credibility to the cheque. The very purpose of the enactment is to promote the use of the Negotiable Instrument, while to discourage the issuance of the cheque without having sufficient funds in the account. Such being the case, the intention of the legislature is that complainant be suitably compensated while the accused be punished for his act. 40 C.C.No.10157/2023 KABC030173532023
29. When compensation is awarded enforcement of the same come into question. There is no provision in the Code of Criminal Procedure for imposing default sentence for enforcing the payment of compensation. In this regard, the Hon'ble Supreme Court in the decision reported in 2002 (2) SCC 420 between Suganthi Suresh Kumar Vs. Jagadeeshan was pleased to hold that "the court may enforce the order by imposing sentence in default". The same is reaffirmed in latest decision in 2010 AIR SCW 3398 between K.A.Abbas H.S.A. Vs Sabu Joseph. Therefore, it is deemed fit to provide default sentence in order to enforce the payment of compensation. Ex.P.1 cheque is of the year 2023. Therefore, the complainant is deprived of the money that was rightfully due to him for about 2 years. Accordingly, it is deemed fit that a compensation of Rs.3,38,000/- (Rupees Three Lakhs Thirty Eight 41 C.C.No.10157/2023 KABC030173532023 Thousand only) be granted. It is to be seen that as per the reportable judgment of the Hon'ble High Court of Karnataka in Crl.R.P.No.996/2016 dt:
09.07.2025 between M/s.Banavathy and company Vs. Maheer Electro Mech (P) Ltd., and to others the Hon'ble High Court at paragraph No.21 has held as under:
"while passing the order of the sentence after determining the fine/Compensation the court shall also pass an order to pay future interest at the rate of 9% p.a on the compensation amount payable to the complainant by fixing time of one or two months to deposit compensation amount so that even if the matter is challenged before the Session Court in appeal and High Court in Revision the interest of the complainant will be protected".
30. Hence, as per the above judgment the complainant is entitled for future interest at the rate of 9% p.a., on the compensation amount from the date of judgment till its repayment. Further the 42 C.C.No.10157/2023 KABC030173532023 accused is directed to deposit the compensation amount before this Court within three months from the date of this order. Accordingly, in the light of above discussions, this court proceed to pass the following:
ORDER Acting under section 255(2) of Cr.P.C., the accused is convicted for the offence punishable under Section 138 of the NI Act and she is sentenced to pay fine of Rs.3,38,000/- (Rupees Three Lakhs Thirty Eight Thousand only) in default to undergo Simple Imprisonment for a period of six months.
If the fine amount is recovered a sum of Rs.3,36,000/- (Rupees Three Lakhs Thirty Six Thousand only) is ordered to be paid to the complainant by way of compensation as per the provisions under Section 357 of Cr.PC. and the remaining amount of Rs.2,000/- is to be appropriated to the State.
The complainant is entitled for future interest at the rate of 9% p.a., on the 43 C.C.No.10157/2023 KABC030173532023 compensation amount from the date of judgment till its complete repayment.
The accused is directed to deposit the compensation amount before this court within three months from the date of this order.
The Bail Bond and cash surety of the accused shall stand canceled.
Supply a free copy of this Judgment to the accused.
(Dictated to the stenographer directly on the computer system, computerized by her, corrected by me and then pronounced in the open Court on this 06th day November, 2025).
(Smt.Dhanalakshmi.R) XII Addl. CJM, Bengaluru.
ANNEXURE
1. Witnesses examined for the Complainant:
PW1 : Sri.Vishweshwara Joish.Y
2. Documents exhibited for the Complainant:
Ex.P1 : Original Cheque
Ex.P2 : Bank Endorsement
Ex.P3 : Legal Notice
Ex.P4 : Postal Receipt
Ex.P5 : Postal acknowledgment
44 C.C.No.10157/2023
KABC030173532023
Ex.P6 : Corrigendum Notice
Ex.P7 : Postal Receipt
Ex.P8 : Bank Statement of account
3. Witnesses examined for the defence Accused:
NIL
4. Documents exhibited for the defence Accused:Digitally signed
NIL by
DHANALAKSHMI DHANALAKSHMI
R R
Date: 2025.11.11
12:23:07 +0530
(Smt.Dhanalakshmi.R)
XII ACJM, Bengaluru
45 C.C.No.10157/2023
KABC030173532023
6.11.2025
For judgment
(Judgment pronounced in the open court vide separate Order) ORDER Acting under section 255(2) of Cr.P.C., the accused is convicted for the offence punishable under Section 138 of the NI Act and she is sentenced to pay fine of Rs.3,38,000/- (Rupees Three Lakhs Thirty Eight Thousand only) in default to undergo Simple Imprisonment for a period of six months.
If the fine amount is recovered a sum of Rs.3,36,000/- (Rupees Three Lakhs Thirty Six Thousand only) is ordered to be paid to the complainant by way of compensation as per the provisions under Section 357 of Cr.PC. and the remaining amount of Rs.2,000/- is to be appropriated to the State.
The complainant is entitled for future interest at the rate of 9% p.a., on the compensation amount from the date of judgment till its complete repayment.
The accused is directed to deposit the compensation amount before this court 46 C.C.No.10157/2023 KABC030173532023 within three months from the date of this order.
The Bail Bond and cash surety of the accused shall stand canceled.
Supply a free copy of this Judgment to the accused.
XII ACJM, Bengaluru