Bangalore District Court
Nithin Kumar Shetty vs Arathi Acharya Alias Arathi on 6 December, 2025
KABC020310482023
IN THE COURT OF ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY.
(SCCH-6)
Present: Smt. Chetana S.F.
B.A., L.L.B.,
IV Addl., Small Cause Judge & ACJM,
Court of Small Causes,
Bengaluru.
CC. No.9219/2023
DATED THIS THE 06th DAY OF DECEMBER, 2025
COMPLAINANT/S Sri Nithin Kumar Shetty
S/o. Pradeep Kumar Shetty
Aged about 33 years,
R/at No.#6, Samruddi Nilaya
4th Main, 8th Cross Road,
Byraveshwaranagara,
Nagarabhavi Main Road,
Bengaluru - 560072
(By Sri Arikesari K.K.,- Advocate)
-Vs-
ACCUSED Smt. Arathi Acharya @ Arathi
W/o. Nagaraj Acharya,
Aged about 35 years,
Residing at Konemane Melpankhti,
Shiroor Post, Byndoor Taluk,
Udupi District-576228
(By Sri. K. Prasanna Shetty- Advocate)
SCCH-6 2 CC No.9219/2023
-: J U D G M E N T :-
This is a complaint filed by the complainant U/Sec. 200
of Cr.P.C. for the offences punishable under Secs.138 of N.I.
Act as against the accused praying to punish the accused for
the said offence.
2. The case of the complainant is that, the
complainant is an auditor by profession and the accused is
doing Carpenter/furniture business from several years and
they are known to each other. During second week of
November 2021, the accused has approached the complainant
requesting to lend the hand loan of Rs.7,50,000/- in cash as
she need the said money for construction of her house and
domestic necessities and on the promise that the same will be
return within one year i.e., by November 2022. However,
complainant expressed hesitation to lend such a huge amount
immediately at once that is also in cash. Only on repeated
requests, assurance of timely repayment and the complainant
withdrawn the amount of Rs.7,50,000/- from his account
maintained with HDFC Bank Ltd., Bashyam Circle Branch,
SCCH-6 3 CC No.9219/2023
Rajajinagar, Bengaluru on 19.11.2021 complainant handed
over Rs.7,50,000/- to accused by way of cash. After the lapse
of said period of one year i.e., by November 2022, several times
complainant had approached the accused for return of the
said hand loan amount. On persistent demand made by the
complainant, finally on 02.07.2023 accused has paid
Rs.50,000/- in cash to complainant and further towards
repayment of remaining hand loan of Rs.7,00,000/-, accused
has issued one postdated cheque bearing No.723622 dated
04.07.2023 for a sum of Rs.7,00,000/- drawn on Syndicate
Bank, Shiruru-576228, Udupi District, in favor of
complainant.
3. The complainant presented the cheque to the bank
for encashment, but the said cheque returned unpaid with the
shara "Bank Merged" on 05.07.2023. The complainant issued
legal notice dt.31.07.2023 to the accused through RPAD and
speed post and the same was served to the accused. The
accused has not paid the cheque amount and has committed
an offence punishable under section 138 of Negotiable
SCCH-6 4 CC No.9219/2023
Instruments Act. Hence, this complaint.
4. After recording the sworn statement of the
complainant by way of affidavit and also verifying the
documents, cognizance was taken against the accused for the
offence punishable under Sec.138 of N.I. Act. The accused
appeared before this court through her counsel and enlarged
on bail and her plea was recorded. The accused pleaded not
guilty and claimed to be tried. Hence, the case was posted for
evidence of the complainant.
5. The complainant got examined himself as PW.1 and
got marked 8 documents as Exs.P.1 to Ex.P8. During cross-
examination of DW.1, learned counsel for complainant got
marked Ex.P8 and 9 documents through confrontation.
Thereafter, the case was posted for recording the statement of
accused under Sec.313 of Cr.P.C. In the statement U/s. 313
Cr.P.C., the accused has denied all the incriminating evidence
appearing against her. The accused has examined herself as
DW.1 and examined two other witnesses as DW.2 and DW.3
and got marked documents as Ex.D5 to Ex.D.14. During cross
SCCH-6 5 CC No.9219/2023
examination of PW.1, learned counsel for accused got marked
Ex.D.1 to Ex.D4 through confrontation.
6. Heard the arguments of both side and Perused the
records.
7. Learned advocate for accused has relied on the
following citations :-
1.Crl.Petition No.101615/2023 between Shrikanth Vs. Laxman (High Court of Karnataka)
2. Crl.Petition No.8827/2022 between MS Ganta Kavitha Devi Vs. State of Andra Pradesh
3. Application U/S 482 No.9536/2024 between Smt. Archana Singh Gautam Vs. State of U.P. and Another
8. The following points arise for my consideration:
1. Whether the complainant proves that the cheque bearing No.723622 dated 04.07.2023 for sum of Rs.7,00,000/- drawn on Sindicate Bank, Shiruru, issued by the accused has been dishonored on the ground of Bank Merged on 05.07.2023 even after receiving the intimation regarding the dishonor of cheque failed to pay the cheque amount within the stipulated period and thereby the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
9. My findings on the above points are as under SCCH-6 6 CC No.9219/2023
Point No.1: In the Negative Point No.2: As per final order for the following:
-: R E A S O N S :-
10. POINT NO.1:- In view of the present legal position as held by our Hon'ble High Court as well as Apex Court of India in a catena of decisions as well as relevant provisions of the Act, this court has to see whether the complainant has complied all the requirements as contained in Sec.138 of NI Act so as to bring home the guilt of the accused for the alleged offence. If so, whether the accused is able to rebut the legal presumption available to the complainant under Sec.139 of the Act by adducing probable defense or not. However, it is held by the full bench of our Apex Court in the case of Rangappa Vs. Mohan reported in 2010 (1) DCR 706 that;
"The Statutory presumption man- dated by sec.139 of the Act, does in- deed include the existence of a legally enforceable debt or liability. However, the presumption U/S 139 of the Act is in the nature of a rebuttable pre- sumption and it is open for the ac-SCCH-6 7 CC No.9219/2023
cused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested".
11. Therefore, in view of the above decision, once the cheque is admitted, the statutory presumption would automatically fall in favour of the complainant that, the alleged cheque was issued for discharge of an existing legally enforceable debt or liability against the accused and the burden will shift on to the accused to rebut the same.
INGREDIENTS OF OFFENCE AND DISCUSSION:-
12. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First Ingredient: The cheques were drawn by a person on an account maintained by him for payment of money and the same is presented for SCCH-6 8 CC No.9219/2023 payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheques were drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheques were returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of SCCH-6 9 CC No.9219/2023 money within fifteen days from the date of receipt of notice.
-APPRECIATION OF EVIDENCE-
13. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled. Notably, there is no dispute at bar about the proof of only first, third, and fifth ingredient. The complainant had proved the original cheque vide Ex.P.1 which the accused person had not disputed as being drawn on the account of the accused. It was not disputed that the cheque in question was presented within its validity period. The cheque in question was returned unpaid vide return memo dated 05.07.2023 vide Ex.P.2 due to the reason, "Bank Merged". The complainant had proved the service of legal demand notice dated 31.07.2023 vide Ex.P.3 by bringing on record the postal receipt vide Ex.P.4, Reply notice dated 09.08.2023 vide Ex.P5, Computerized account statement of HDFC Bank vide Ex.P6, Certificate under Sec.65(B) of Indian Evidence Act vide Ex.P7, SCCH-6 10 CC No.9219/2023 Postal acknowledgment vide Ex.P.8, Photograph vide Ex.P8 and Notice as published on page No.3 of Udayavani Sudina daily newspaper dated 30.05.2024 vide Ex.P9. Thus, there is a dispute only with regard to the second ingredient to the offence. As such, the 1st,3rd,4th& 5th ingredient of the offence under section 138 of the NI Act stands proved.
14. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debtor any liability. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumption are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability. SCCH-6 11 CC No.9219/2023
15. The combined effect of these two provisions is a presumption that the cheque is drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
16. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence.
17. The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to SCCH-6 12 CC No.9219/2023 prove that either there was no legally enforceable debt or other liability. In this case, the arguments raised by the Ld. counsel for the accused to rebut the presumption are discussed below:
18. The accused has taken the specific defence that complainant is not at all known to either accused or her husband and accused had seen the complainant for the first time in the court. She was residing in Shiruru in her husband house since her marriage. She has received lawyer notice on 31.07.2023 and it was sent by one Nithin, but she or her husband do not know who is the Nithin. Thereafter, they went to the advocate who stated that one Nithin has sent the notice demanding for the repayment of the loan amount of Rs.7,00,000/- and cheque issued by them has been dishonored and hence demanded for making the payment. Accused and her husband were surprised and her husband lodged a complaint before Baindoor Police Station against Kushal Shetty who is the Father-in-law of the Nithin. Accused came to know that in the year 2017, her husband has SCCH-6 13 CC No.9219/2023 borrowed the loan of Rs. 50,000/- from Kushal Shetty and at that time, the said Kushal Shetty has received one cheque of her and another cheuqe of her husband as a security. Thereafter in the year 2018, accused husband has repaid the entire amount to the complainant. Thereafter, the said Kushal Shetty has not returned back the said two cheques by saying that he has lost those cheques. Thereafter, accused having the trust over the Kushal shetty and the cheque being the old cheuqe kept quite without taking any further steps for return of those cheques, thereafter the said Kushal Shetty has misused those cheques through his son-in-law Nithin and filed this false case. The accused came to know about the same only after she received the notice. Even they have lodged complaint against Kushal Shetty before the SP and the said complaint is still pending. Further accused has taken the specific defence that according to the complainant, on 21.11.2021, complainant has paid the loan of Rs.7,50,000/- by way of cash in his house at Aluru, but, on that day, accused was admitted to the hospital on 16.11.2021 and accused was discharged on 22.11.2021 and she was underbed SCCH-6 14 CC No.9219/2023 rest for 3 months and hence there is no chance of receiving the hand loan in cash in the house of the complainant. Thus complainant is deposing false. The said Kushal Shetty misused the cheque of the accused given as a security through his son-in-law and filed this false case and prays to dismiss the complaint.
19. According to the accused, she was admitted in the KMC Hospital, Mangaluru from 16.11.2021 to 22.11.2021 and undergone surgery. PW.1 in his cross examination at para No.1 clearly stated that accused has asked for the loan in the 2nd Week of November 2021 and on 21.11.2021 complainant has given the amount of Rs.7,50,000/- in cash to the accused in his house at Aluru. The learned counsel for accused argued that on 21.11.2021 accused has admitted in KMC Hospital Mangaluru and there is no chance of complainant giving the loan of Rs.7,50,000/- in cash in the house of complainant at Aluru. In support of her contention, accused has produced Discharge summary as per Ex.D5 and photos of her while in the hosptial as per Ex.D.7 and the bill of photo print as per SCCH-6 15 CC No.9219/2023 Ex.D8. Even accused has produced the certificate under Sec.65-B of Indian Evidence Act as per Ex.D10. Thereafter as complainant has disputed the Discharge summary, accused has examined the doctor who treated the accused as DW.3. Earlier one Pavan Raj, Junior Executive Medical Record Officer, KMC Hospital, Mangaluru, appeared before this court who was deputed by the doctor Keerthiraj and produced the documents before the court. He was examined as DW.2 and he has produced the requisition letter of the doctor as per Ex.D.11 and also deputed letter and IP case sheets and Bills as per Ex.D12 and Ex.D13. The learned counsel for complainant seriously objected for marking the IP case sheet of the accused on the ground that there is no direction issued by this court for production of those documents. In this regard, on perusal of the evidence of the DW.2 and deputed letter of the Dr. Keerthiraj as per Ex.D.11 and 12, summons issued by this court to the Dr. Keerthiraj directing to give the evidence and produce the documents with reference to the above case. Since the said doctor was having the busy schedule at the hospital and was attending the emergency SCCH-6 16 CC No.9219/2023 cases, he has authorised Junior Executive Medical Record Officer namely Pavan Raj (DW.2) to give the evidence and also to produce the documents and accordingly, the said DW.2 has produced the documents. Moreover, those documents are inpatient records of the accused duly certified by the KMC Hospital, Mangaluru. Hence, the objection raised by the complainant does not sustain and Ex.D13 is accepted.
20. Further the doctor DW.3 in his evidence through VC has clearly stated that accused was admitted for treatment in the KMC Hospital, Mangaluru from 16.11.2021 to 21.11.2021 and accused was discharged on 22.11.2021 and once again identified the Discharge summary issued by him as per Ex.D5 and his signature as per Ex.D5(a). Though DW.3 was cross examined at length by learned counsel for complainant, but, learned counsel for complainant went on cross examining DW.3 with regard to service of summons to the said witness for which, PW.1 stated that he has received the summons two times from the local police and he has requested to appear through VC as he was having busy schedule and even he has SCCH-6 17 CC No.9219/2023 authorized MRO to give the evidence and to produce the documents on his behalf. Thereafter, once again as he has received the summons, he has requested for giving the evidence through VC. It is pertinent to note here that nowhere the learned counsel for complainant has denied the fact that accused was admitted in the hospital from 16.11.2021 to 22.11.2021 and DW.3 has given treatment to her and issuance of the Discharge summary as per Ex.D.5 atleast by putting a single denial suggestion. Thus it is clear that accused was admitted in the KMC Hospital, Mangaluru from 16.11.2021 to 21.11.2021 and was discharged from the hospital on 22.11.2021 and as such there is no possibility and chance of complainant lending the loan to the accused in cash in his house at Aluru on 21.11.2021. The version of the complainant that he has lent the loan of Rs.7,50,000/- to the accused appears to be doubtful. Thus the passing of consideration itself appears to be doubtful.
21. Even when accused counsel put above said defence to PW.1 in his cross examination, PW.1 has not denied the SCCH-6 18 CC No.9219/2023 suggestion that accused was admitted to the KMC Hospital and was taking treatment from 16.11.2021 to 21.11.2021 by saying that he do not have any information about the same.
Second defence: Cheque is invalid due to merger of Bank.
22. Further, the learned counsel for accused has taken the defence that Ex.P1 cheque is of Syndicate Bank cheque dated 04.07.2023 and the said bank has been merged with the Canara Bank on 01.04.2021 itself from 30.06.2021 and the Syndicate bank cheque has become invalid and hence Sec. 138 of NI Act does not attract.
23. Further learned counsel for accused argued that the cheque Ex.P1 belongs to the Syndicate bank and it has been dated 04.07.2023 and it has been presented to the bank on 04.07.2023 and as per Gazetted notification, the Syndicate bank has been merged with the Canara Bank on 1 st April 2020 and all the old cheques of Syndicate Bank has become invalid from 30.06.2021 and even Ex.P3, the bank to which the cheque has been presented was dishonored for the reason SCCH-6 19 CC No.9219/2023 Bank Merged you are requested to have the discrepancy resolved and redeposit the same for further process and hence cheque deserves to be invalid and section 138 of NI Act does not attract for invalid cheque.
24. In this regard, this court has relied on the decisions reported in 2024 SCC OnLine AP 5115 between Ganta Kavitha Devi and Others vs. State of Andhra Pradesh, rep. By its Public Prosecutor High Court of Andhra Pradesh and Another, wherein it is held at para No.7, 9 and 11 as follows:
7. From the perusal of Section 138 N.I Act, it is clear that if any invalid cheque is presented before the Bank and the same was dishonored, then there is no liability under Section 138 N.I. Act would be attracted, and the cheque of Allahabad Bank is invalid after 30.09.2021 after merging the Allahabad Bank into the Indian Bank on 01.04.2020. Therefore, dishonoring such cheques after 30.09.2021 will not attract liability u/s 138 N.I. Act.
9. In the present case, a cheque dated 02.06.2023 of erstwhile Allahabad Bank was presented to the Indian Bank on 21.08.2023, and the same was returned on
25.08.2023 with the endorsement "wrongly delivered not drawn on us". Therefore, the cheque in question was invalid on the date of presentation before the Indian Bank.
SCCH-6 20 CC No.9219/2023
11. In view of the above analysis, the cheque in question, which was issued from the account maintained in erstwhile Allahabad. Therefore, the cheque issued by the Allahabad Bank was valid till 30.09.2021, and all the cheques of Allahabad Bank which were presented before the Indian Bank till 30.09.2021, were honored by the Indian Bank, and after 30.09.2021, cheques issued from the account maintained by the erstwhile Allahabad Bank were declared invalid for honoring. Section 138 N.I Act prescribes the condition for initiation of proceeding on bouncing the cheque in the proviso(a) of Section 138 N.I. Act. As per the Proviso (a) of Section 138 of N.I Act, cheque must be presented to the Bank during its validity.
25. Further relied on Suo Moto Writ Petition ( C ) No.3/2020 wherein it is held at page No.6:
Extension of validity of NI Act, 1881-IA. Nos.48461 and 48672/2020 (IA No.48671/2020, 48673/2020) I.A. No.48671/2020 for impleadment is allowed.
With reference to the prayer, that the period of validity of a cheque be extended, we find that the said period has not been prescribed by any statute but it is a period prescribed by the Reserve Bank of India under Sec.35-A of the Banking Regulation Act,1949. We do not consider it appropriate to interfere with the period prescribed by the Reserve Bank of India, particularly, since the entire banking system SCCH-6 21 CC No.9219/2023 functions on the basis of the period so prescribed.
The Reserve Bank of India may in its discretion, after such period as it thinks fit. Ordered accordingly.
26. Now coming to the facts of the present case, in the present case, the cheque is of Syndicate Bank dated 04.07.2023 and it has been presented to the HDFC Bank for encashment on 04.07.2023. As per Ex.P3 Bank Endorsement memo, the cheque has been dishonored for the reason " Bank Merged you are requested to have the discrepancy resolved and redeposit the same for further process". Since the Syndicate Bank was merged with the Canara Bank on 01.04.2020, the cheques of the Syndicate Bank will be valid upto 30.06.2021 only. Therefore the cheque in question Ex.P1 is dishonoured as it is invalid cheque.
27. In view of the forgoing discussions and the decisions held by the Hon'ble Apex Court, the present cheque being dishonored for the reason invalid cheque due to merging of the Syndicate Bank into Canara Bank on 01.04.2020. Therefore, dishonour of such cheque after 30.06.2021 will not attract SCCH-6 22 CC No.9219/2023 liability under Sec.138 of NI Act. Hence, in view of the above said reasons, the complaint is liable to be dismissed as the dishonoring of the cheque due to its invalidity does not attract liability under Sec.138 of NI Act.
28. Even in the notice also complainant has stated that the bank has returned the cheque for the reason as merged with the Canara Bank and thereafter, the complainant has contacted with the accused, but, accused has given an evasive answers.
29. Further accused has taken the specific defence that accused and her husband never had any contact with the complainant. Accused has seen the complainant for the first time before the court. The accused's husband has borrowed the loan of Rs.50,000/- from one Kushal Shetty in the year 2017 and at that time accused's husband has given his signed blank cheque and one signed blank cheque of the accused as a security and thereafter, accused has repaid the entire amount to the Kushal Shetty. Thereafter, in spite of repayment of loan amount, the said Kushal Shetty has not returned the SCCH-6 23 CC No.9219/2023 cheque by saying that those cheques were lost. The accused and her husband having trust over the Kushal Shetty and as cheques were old and accused and her husband has kept quite and not taken any steps for returning of cheques. Therefore, the said Kushal Shetty has misused those cheques through his son-in-law complainant and filed this false case. In this regard, complainant in his cross examination at para No.2 pleaded his ignorance about above defence taken by the accused.
30. At this stage, it is worth to refer here the cross- examination portion of the PW-1 at para No.2 and 3 as follows:
2. ಆರೋಪಿತರ ಗಂಡ ನನ್ನ ಮಾವ ಕುಶಲ್ ಶೆಟ್ಟಿಯವರ ಬಳಿ 50 ಸಾವಿರ ಸಾಲವನ್ನು ಪಡೆದುಕೊಂಡಿದ್ದರು ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿರುವುದಿಲ್ಲ. ಸಾಲವನ್ನು ಪೆದುಕೊಳ್ಳು ವಾಗ ಆರೋಪಿತರು ಹಾಗೂ ಅವರ ಗಂಡನ ಸಹಿ ಮಾಡಿದ ಎರಡು ಚೆಕ್ಕು ಗಳನ್ನು ನನ್ನ ಮಾವ ಪಡೆದುಕೊಂಡಿದ್ದರು ಎಂದರೆ ಆ ಬಗ್ಗೆ ನನಗೆ ಗೊತ್ತಿರುವುದಿಲ್ಲ. ನಂತರ ಆರೋಪಿತರ ಗಂಡ ನನ್ನ ಮಾನಿಗೆ 50 ಸಾವಿರ ಹಣವನ್ನು ವಾಪಸ್ ಕೊಟ್ರಿರುತ್ತಾ ರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿರುವುದಿಲ್ಲ. ನಂತರ ಚೆಕ್ ಅನ್ನು ವಾಪಸ್ ಕೊಡಿ ಎಂದಾಗ ಚೆಕ್ಮಿಸ್ ಪ್ಲೇಸ್ಆಗಿದೆ ಎಂದು ಹೇಳಿರುತ್ತಾ ರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿರುವುದಿಲ್ಲ.
3. ಆರೋಪಿತರಿಗೆ ಲೀಗಲ್ ನೋಟೀಸ್ ಜಾರಿಯಾದ ಮರುದಿನವೇ ಆರೋಪಿತರ ಗಂಡ ನನ್ನ ಮಾವ ಕುಶಲ್ ಶೆಟ್ಟಿಯವರಿಗೆ ಕೊಟ್ಟ ಚೆಕ್ ಅನ್ನು ನನ್ನ ಮುಖಾಂತರ ದುರುಪಯೋಗ ಪಡಿಸಿಕೊಂಡಿರುತ್ತಾ ರೆ ಎಂದು ನನ್ನ ಮಾವನವರಿಗೆ ನೋಟೀಸ್ ಕೊಟ್ಟಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ.
ಬೈಂದೂರು ಪೋಲೀಸ್ ಠಾಣೆಯಲ್ಲಿ ನನ್ನ ಮತ್ತು ನನ್ನ ಮಾವ ಕುಶಲ್ ಶೆಟ್ಟಿಯ ವಿರುದ್ದ ಚೆಕ್ ಅನ್ನು ದುರುಪಯೋಗಪಡಿಸಿಕೊಂಡಿರುತ್ತಾ ರೆ ಎಂದು ದೂರನ್ನು ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ದೂರು ನೀಡಿದ ನಂತರ ಬೈಂದೂರು ಪೋಲೀಸ್ ನವರು ನನ್ನನ್ನು ಕರೆಸಿ ವಿಚಾರಿಸಿರುತ್ತಾ ರೆ. ನ್ಯಾ ಯಾಲಯಲ್ಲಿ ಪ್ರಕರಣ ವಿಚಾರಣೆ ಹಂತದಲ್ಲಿದೆ ಎಂದು ಹೇಳಿದ ಬಗ್ಗೆ ಪೋಲೀಸರು ಸದರಿ ದೂರನ್ನು ಮುಕ್ತಾ ಯ ಮಾಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ.
SCCH-6 24 CC No.9219/2023
31. Thus PW.1 has not denied the defence taken by the accused. PW.1 only pleaded his ignorance about the financial transaction between the accused and the Kushal Shetty and issuance of cheque to said Kushal Shetty. On the other hand, PW.1 admitted about the notice issued by the accused to the said Kushal Shetty. Even admitted about the complaint lodged by the accused against his father-in-law Kushal Shetty for misuse of the cheque. It is pertinent to note here that PW.1 has not at all stated that complaint lodged by accused was false. Even PW.1 was confronted with private complaint lodged against him and was marked as Ex.D4 for misuse of the cheque. Even then also PW.1 not stated false case was lodged by accused against Kushal Shetty. All these facts and circumstances corroborates the defence taken by accused. The non-denial of above said facts clearly amounts to admission of those facts. In view of above said reasons and discussions, the defence taken by accused appears to be more probable than case of complainant.
SCCH-6 25 CC No.9219/2023Conclusion:
32. In view of all the above discussion, it can be concluded that the complainant has failed to establish through cogent and convincing evidence, the fact of issuance of the cheques for discharge of legally enforceable debt or any liability, which is dishonored for want of sufficient funds. On the other hand, the accused has successfully rebutted the presumption available to the complainant through probable evidences, that would preponderate upon the evidence led by the complainant. Therefore, the accused is held to have not committed an offence punishable under sec. 138 of N.I. Act. Accordingly, Point No.1 is answered in the NEGATIVE.
33. POINT NO.2:- In view of my answer to point No.1, I proceed to pass the following:-
-: O R D E R :-
Acting under Section 278(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, accused is acquitted for the offence punishable under Section 138 of NI Act.SCCH-6 26 CC No.9219/2023
The bail and surety bond of the accused and surety shall stand canceled.
(Dictated to the Stenographer, transcribed and computerized by her. After her typing, corrected, signed and then pronounced by me in open Court this the 06th day of December, 2025).
(CHETANA S.F.) IV Addl., Small Cause Judge & ACJM, Court of Small Causes, Bengaluru.
ANNEXURE List of witnesses examined for the Complainant:
PW.1 :- Sri Nithin Kumar Shetty List of witnesses examined for the accused:-
DW.1 : Smt. Arathi Nagaraj Acharya DW.2 : Sri Pavan Raj DW.3 : Dr. Keerthiraj
List of documents marked for the Complainant:-
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Bank Endorsement
Ex.P.3 : Office copy of Legal Notice
Dt:31.07.2023
Ex.P.4 : Postal receipt
Ex.P.5 : Reply notice dated 09.08.2023
Ex.P.6 : Computerized account statement of
HDFC Bank
Ex.P.7 : Certificate under Sec.65(B) of Indian
Evidence Act
SCCH-6 27 CC No.9219/2023
Ex.P.8 : Postal Acknowledgment
Ex.P.8 : Photograph
Ex.P.9 : Notice as published on page No.3 of
Udayavani Sudina daily newspaper
dated 30.05.2024
Note: Due to oversight Postal acknowledgment and photo both were marked as Ex.P8 List of documents marked for the accused:-
Ex.D.1 : Notice dated 10.08.2023, Postal
receipt and postal acknowledgment
Ex.D.2 : Complaint lodged before
Baindoor Police Station
Ex.D.3 : Police Endorsement
Ex.D.4 : Private complaint
Ex.D.5 : Discharge summary
Ex.D.5(a) : Signature of DW.3
Ex.D.6 : Reply notice
Ex.D.6(a) : Reply notice cover
Ex.D.7 : Photograph
Ex.D.8 : Bill dated 27.01.2025
Ex.D.9 : Letter dated 03.09.2024
Ex.D.10 : Certificate under Sec.65-B of
Indian Evidence Act
Ex.D.11 : Requisition letter
Ex.D.12 : Deputed letter dated 24.04.2025
Ex.D.13 : Registration and General Consent
Form
Ex.D.14 : Summons
(CHETANA S.F.)
IV Addl., Small Cause Judge &
ACJM, Court of Small Causes,
BENGALURU.