Bangalore District Court
Srimurthy N vs Jagadeesha Beera Gouda on 15 November, 2025
KABC020157082016
IN THE COURT OF THE XII ADDL. JUDGE, COURT OF
SMALL CAUSES & ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU (SCCH-08)
DATED THIS THE 15th DAY OF NOVEMBER - 2025
PRESENT: Smt. Kannika M.S.,
M.A., LL.B.
XII ADDL. SCJ & ACJM,
MEMBER - MACT, BENGALURU.
C.C. No.5677/2016
Complainant : Sri. Srimurthy N.,
S/o. L.N. Murthy,
Aged about 33 years,
Residing at
No.2, 1st Floor,
Sai Constructions,
Maruthi Complex,
Kumbar Pet,
(Behind Anjaneya Temple)
Bengaluru - 560002.
(By Sri. Premesh & D.Sheshadri,
Advocates)
:Vs:
Accused : Sri. Jagadeesha Beera Gouda,
S/o. Beera Gouda,
Aged about 29 years,
Residing at Adlur,
Agasur Village, Ankola Taluk,
Uttar Kannada District-581314.
(By Sri. R. Nagendra Naik, Advocate)
SCCH-8 2 C.C.No.5677/2016
Date of complaint : 19.08.2013
Date of commencement of
Evidence : 08.12.2016
Offence charged : Sec.138 of Negotiable
Instruments Act
Date of Judgment : 15.11.2025
Opinion of the Judge : Accused found not guilty
JUDGEMENT
This is a private complaint filed U/Sec.200 of Cr.P.C. against the accused for the alleged offence punishable U/Sec.138 of Negotiable Instrument Act.
2. The brief facts of the case of the complainant is that:
The complainant and accused were well acquainted with each on other and on the same. accused approached the complainant for handloan of Rs.6,50,000/- in last week of January 2013 to meet his urgent needs. In this regard the complainant has agreed and lend a handloan of Rs.6,00,000/-SCCH-8 3 C.C.No.5677/2016
to the accused on 03.02.2013 and another amount of Rs.49,500/- through cheque on 21.03.2013 from his banker.
Towards settlement of amount and discharge of liability, the accused issued a cheque bearing No.983088 dated 26.03.2013 for a sum of Rs.6,49,000/-, drawn on Vijaya Bank, Karwar branch, Karwar, in favor of complainant. As per the instruction of the accused, complainant has presented the said cheque for encashment through his banker HDFC Bank, Ghandi Bazzar Basavnagudi branch, Bengaluru, but the said cheque came to be dishonored and returned with shara "Funds Insufficient" on 07.06.2013. Hence he has issued the legal notice on 04.07.2013 through RPAD to the accused address and the same was served on the accused. The accused has not paid the amount, and hence, the complainant has filed the present complaint before this Court.
3. Cognizance was taken and sworn statement of the complainant was recorded. Since there were sufficient materials SCCH-8 4 C.C.No.5677/2016 to proceed against the accused, the summons was issued to the accused. Accused appeared through his counsel and got enlarged on bail. Substance of accusation was framed, read over and explained to the accused in the language known to him, he denied the same and claimed to be tried. Hence, the case was posted for complainant's evidence.
4. In order to prove his case, the complainant got examined himself as PW-1 and got marked the 9 documents at Ex.P1 to Ex.P9 and closed his evidence. After closure of complainant's side evidence, the statement U/Sec.313 of Cr.P.C was prepared and read over to accused, he has denied the same. The bank Manager by name Ganeshbabu got examined as DW.1 and got marked 4 documents at Ex.D1 to Ex.D4. Thereafter, case was posted for arguments.
5. I have heard the arguments of learned counsel for accused and complainant. Perused the entire records in this case. SCCH-8 5 C.C.No.5677/2016
6. The following points arise for my consideration:
1. Whether the complainant proves that, the accused has issued the cheque bearing No.983088 dated 26.03.2013 for a sum of Rs.6,49,000/-, drawn on Vijaya Bank, Karwar branch and the complainant presented the said cheque for encashment, but the said cheque returned on 07.06.2013 with an endorsement as "Funds Insufficient " ?
2. Whether the complainant further proves that he has got issued the legal notice dated: 04.07.2013 to the Accused demanding the cheque amount from the Accused within 15 days from the date of receipt of the notice, the said legal notice is duly served on the accused, but the accused has failed to make the payment of the cheque amount well within the prescribed time and there by committed an offence punishable under section 138 of Negotiable Instrument Act?
3. What order?
7. The finding of this court on the above points is as under:
Point No.1 : In Negative,
Point No.2 : In Negative,
Point No.3 : As per final order,
for the following;
SCCH-8 6 C.C.No.5677/2016
REASONS
POINTS NO.1 & 2:
8. Since these points are interconnected, they are taken up together for discussion to avoid repetition of facts.
9. According the complaint, on the basis of said acquaintance the accused approached the complainant and borrowed handloan of Rs.6,49,500/- from the complainant. Thereafter when the complainant demanded to repay the amount, the accused issued a cheque bearing No.983088 dated 26.03.2013 for a sum of Rs.6,49,000/-, drawn on Vijaya Bank., Karwar branch, Karwar and when he has presented the said cheque for collection and for realization, the said cheque dishonored and returned with shara "Funds Insufficient" on 07.06.2013, hence he issued the legal notice to the accused on 04.07.2013 through RPAD and the same was duly served. The accused has not paid the amount, hence the complaint. SCCH-8 7 C.C.No.5677/2016
10. In support of his contention, complainant has filed affidavit in lieu of examination-in-chief wherein reiterated the averments of the complaint and examined as PW.1 and got marked Ex.P1 to P9. Ex.P1 is the cheque bearing No.983088 dated 26.03.2013 issued by the accused in favour of the Complainant. Ex.P1(a) is the signature of the accused on the cheque. Ex.P2 is the Bank Challan. Ex.P3 is the endorsement dated: 07.06.2013 issued by the Bank with respect to the dishonour of the cheque bearing No. 983088 for a sum of Rs.6,49,000/-. It is shows that cheque are dishonored for the reason Funds Insufficient. Ex.P4 is the legal notice dated 04.07.2013 issued by the complainant through his counsel to the accused for the repayment of the said loan amount. Ex.P5 is the postal receipt. Ex.P6 is the courier receipt. Ex.P7 is the postal acknowledgment. Ex.P8 is the reply to the notice. Ex.P9 is the postal cover. Ex.P1 to P9 shows that the legal notice sent to the accused was not served to the accused. The accused has SCCH-8 8 C.C.No.5677/2016 not repaid the amount. Thereafter complainant has filed this case against the accused. Hence, complainant has complied the mandatory requirements of Sec.138 of N.I. Act.
11. The Bank Manager has examined himself as DW.1 and in the cross examination accused has deposed that, in their bank there is no individual account of the accused person. In this joint account as per the customer request, any one of the joint holder can operate the bank account and also sign the cheque. As per the Ex.D-1 at the time of account opening, the account holders have mentioned the E/S, therefore given separate requisition is not required. The said joint account as on now inactive. He does not know who received the cheque book regarding to joint account. In this joint account as per the customer request, any one of the joint holder can operate the bank account and also sign the cheque. He don't know who has authorize signatory of the application form and as well as the account. He don't know who is authorize signatory of the SCCH-8 9 C.C.No.5677/2016 verification in the application form because it has been taken in the year 2004, now bank has been merged with Bank of Baroda. There is no separate concent letter in the Ex.D-1 but it is written on the said document. In the column specimen signature there was mentioned E/S, it means Either of Survival. He don't know the account has been opened by the Vasudeva N. Nayak and he has received the cheque book from the bank.
12. The Negotiable Instrument act clearly lays down presumption in favour of the complainant with regard to the issuance of cheque by the accused towards the discharge of his liability. The onus is upon the accused to rebut the said presumption by raising a probable defence. It is a well settled law that the bare/mere denial of the passing of consideration apparently does not appear any defence. Something which is probable must be brought on record for getting the benefit. The presumption referred under sec.118 and 139 of NI act is a SCCH-8 10 C.C.No.5677/2016 rebuttable presumptions and the accused is expected to rebut the presumptions by raising a probable defence.
13. Such being the legal position, it would be pertinent to refer to the defence raised by the accused to rebut the presumptions in favour to the complainant in this case. There is no dispute that cheque belongs to the accused with his signature on it. But there is serious dispute with regard to the acquaintance between the parties, as well as with regards to the existence of the alleged loan transaction between them and that the accused has issued the subject cheque towards the discharge of his legally recoverable debt in his favour as claimed by the complainant. In such circumstance, though the accused has admits the cheque and his signature on it, the complainant is bound to discharge his initial burden of proving that existence of the legally recoverable debt beyond reasonable doubt.
SCCH-8 11 C.C.No.5677/2016
14. The accused main defence is that he does not know the complainant, not borrowed any loan from the complainant and not issued the cheque to the complainant, accused has not opened any account in the Vijaya Bank, Karavara branch and not taken the cheque book and not signed on the said cheque. One Vasudeva Naika has assisted the accused and his brothers namely Nagappa Beeragowda and Govinda Beeragowda for obtaining the agriculture loan from Ankola PLD Bank, at that time the said person has taken signatures on some papers.
15. First let we examine whether the complainant has proved that he had the requisite funds or financially capable for advancing the sum of money/loan in question to the accused. It is only after satisfying that the complainant has proved that he had requisite funds for advancing the sum of money/loan in question to the accused, then the court can proceeded to draw presumption under section 139 of N.I. Act SCCH-8 12 C.C.No.5677/2016 and thereafter court can find out as to whether or not the accused has rebutted the said presumption.
16. In the decision reported in (2014)2 Supreme Court Cases 236 (between John K. Abraham Vs. Simon C. Abraham and another), wherein, Hon'ble Supreme Court held as hereunder:-
"Debt, Financial and Monetary Laws - Negotiable Instrument Act, 1881 - Ss.118, 139 and 138 - Dishonour of cheque - Drawing presumption under Sectoin 118 R/w. Section - 139 - Prerequisites for, when cheque is repayment of a loan/advanced money-proof required on the part of complainant - Held, in order to draw presumption under section 118 R/w. S.139, burden lies on complainant to show 1) that he had the requisite funds for advancing the sum of money/loan in question to accused 2) that the issuance of cheque by accused in support of repayment of money advanced was true, and 3) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant - In present case, complainant not aware of the date when substantial amount of Rs.1,50,000/- was advanced by him to appellant - accused - Respondent complainant failed to produce relevant documents in support of the alleged source for advancing money to accused - complainant also nto aware as to when and where the transaction took place for which the cheque SCCH-8 13 C.C.No.5677/2016 in question was issued to him by accused - complainant also not sure as to who wrote the cheque and making contractor statement in this regard - In view of said serious defects / Lacuna in evidence of complainant, Judgment of High Court reversing acquittal of accused by trial court, held was perverse and could not be sustained - Acquittal restored".
17. As per the above Ruling in order to draw presumption U/S.118 R/w. Section 139, burden lies on the complainant to show: 1) that he had the requisite funds or financially capable for advancing the sum of money/loan in question to the accused, 2) that the issuance of cheque by accused in support of repayment of money advanced was true and 3) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant.
18. According to the complainant accused has requested financial assistance of Rs.6,50,000/- in the month of January 2013, he has lent the loan of Rs.6,00,000/- on 03.02.2013 and paid the amount of Rs.49,500/- by way of cheque on SCCH-8 14 C.C.No.5677/2016 21.03.2013, towards repayment of the said amount accused has issued cheque dated 26.03.2013. Accused has denied their acquaintance and also loan amount and issuance of cheque. When such being the specific contention urged by the accused, burden is on the shoulder of the complainant, to prove the same, to discharge the initial burden so as to draw the presumption under section 139 of N.I. Act. In the cross- examination of the Pw1 accused counsel has shown the photograph to the Pw1 to identify the accused person, but Pw1 has failed identified the accused person. As per version of Pw1 he runs the construction company in the name of Sri Sai Constructions and accused has supplied the man powers for his work, he is well known to the accused, but he has failed the identify the accused, the said act of the Pw1 is doubtful regarding the acquaintance between them.
19. Further complainant has not produced any document to show the lending of the said amount to accused. SCCH-8 15 C.C.No.5677/2016 As per complainant averments complainant has paid the amount of Rs.49,500/- through cheque but he has not produced his bank statements to show that the said amount was credited to the accused through cheque. In the cross- examination Pw1 admits that he has will produce the statement of account of his bank account, but he has not produced the same for the reasons best know to the complainant. Further in the cross-examination Pw1 stated that "ಸಾಯಿ ಕನ್ಸ್ಟ್ರಕ್ಷನ್ನ ಖಾತೆಯಿಂದ ಹಣ ನೀಡಿದ್ದೇನೆ. ಹಾಗೆಯೇ ನಗದು ರೂಪದಲ್ಲೂ ಹಣವನ್ನು ನೀಡಿದ್ದು ಈ ಸಂಗತಿ ಆದಾಯ ತೆರಿಗೆ ಬ್ಯಾ ಲೆನ್ಸ್ ಶೀಟ್ನಲ್ಲಿ ಪ್ರತಿಫಲಿಸಿದೆ", But he has not produced the account details and also income tax balance sheet to prove the same. Pw1 admitted to produce those documents on next date of hearing, but not produced those documents for the reasons best known him.
20. The PW.1 has admitted during the course of cross examination that, he can produce Bank Statement and Income tax balance sheet, but for the reasons best known him, the SCCH-8 16 C.C.No.5677/2016 said documents have not seen the light of the day yet. Added more, there is absolutely no materials placed on record by the complainant to show that he was having the above said amount with him at that relevant point of time. Therefore, it cannot be believed that, even if the complainant possessed the financial capacity to lend a loan of Rs.6,49,500/-, he was not able to identify the accused person. How to believe that he lent loan to the accused who is not known to him. The alleged act of the complainant who is said to have lent a helping hand to the accused is just an illusion rather moonshine created by the complainant. If the complainant has really lent a huge sum of Rs.6,49,500/-, he would have definitely reflected the same in his account statement. Non-disclosure of the same also creates clouds of suspicion. The accused counsel during the course of arguments has also relied on a decision reported in 2015(4) K.L.J. 118 (S.C.) (between K. Subramani Vs. K. Damodara SCCH-8 17 C.C.No.5677/2016 Naidu) = 2015(1) DCR 5 Supreme Court of India, wherein Hon'ble Apex Court held as hereunder:-
"N.I. Act, 1881 - Section 138 - Dishonour of cheque - Acquittal - legality - held where complainant had no source of income to lend such huge amount to accused and failed to prove that there is legally recoverable debt payable by the accused to him then acquittal is just and proper".
21. On this point, the decision of Hon'ble High Court of Karnataka in 2016 Supreme Court (Kar.) 116 (between Threja Vs. Smt. Jayalaxmi) reiterates the same principles. The principles laid down in the above case squarely applicable to the case on hand. In the instant case, the complainant has failed to prove that he had source of income to lend such a huge amount of Rs.6,49,500/- to the accused way back in the year 2013 itself.
22. Though there can be a presumption that a drawee or holder received the cheque for the discharge of any debt or other liability, there cannot be any presumption regarding the SCCH-8 18 C.C.No.5677/2016 existence of legally recoverable debt. The complainant is bound to prove the existence of such legally recoverable debt liability and that in the event of non-establishment of existence of a legally recoverable debt, the presumption contemplated U/S.139 of N.I. Act does not get attracted. During the course of cross-examination, PW1 had admitted that there is no documentary proof apart from the cheque. If really the complainant had paid the huge amount of Rs.6,49,500/- that too in the years 2013 itself, it is an ordinary prudence that without executing any document except disputed cheque, lending such a huge amount without any documents creates clouds of suspicion in the mind of court with regard to the version of the complainant's case.
23. It is pertinent to note that, it is elicited from the Pw1 in his cross-examination that, he has filed cheque bounce cases against the brothers of the accused in the same manner for the same amount and date mentioned in this case, the averments SCCH-8 19 C.C.No.5677/2016 of this complaint and another complaint are similar, there is no changes, this also creates the doubt about the case of the complaint.
24. According to the complainant he runs the construction company, accused has supplied the man powers to construction work, advance payments received by the accused and it was maintained in the ledgers of their company. To prove this aspect complainant has not produced any document, but in his cross-examination he admits to produce the same, reasons for non production of document is best know to the complainant. This act of the complainant also creates the doubt regarding to their case and also advancement of the loan amount.
25. It is pertinent to note that, as per the complaint averments and also evidence of the PW1, he has paid the part of the loan amount through cheque through his bank account. PW1 also admits he can produce bank statements, but he has SCCH-8 20 C.C.No.5677/2016 not produced the same, to the reason best known to him. In such circumstance, it cannot believed that, the complainant would have ventured to advance a huge loan of Rs.Rs.6.49,500/- to the accused, even if he possessed the source for the same. Therefore, the appreciation of the evidence on record clearly goes to show that, the complainant has miserably failed to prove his financial capacity, as well as his alleged lending of the loan of Rs.6,49,500/- to the accused and the existence of the alleged loan transaction.
26. Accused another defence is that he has not given cheque to the complainant, cheque was misused by the complainant with collusion of one Vasudeva Naik who is police officer and he made fraud to many persons by opening the accounts in the bank then miss-used their cheques. To prove the said aspect accused has examined the manager of the Bank of Baroda namely Sri. Ganeshbabu for production of account opening forms and other document and also adduce evidence SCCH-8 21 C.C.No.5677/2016 on the said document. The said witnesses is examined as Dw1 and got marked Ex.D1 to 3. He has deposed that the accused has no individual bank account in their bank, the accused and other two persons jointly opened the joint account in the year 2004, at the time of opening the joint account of accused and other persons were introduce to their bank one Vasudeva Naika who is one of the customer of their bank, the said bank account is joint account of Nagappa Beeragowda, Govinda Beeragowda and Jagadish Beeragowda and there was no letter received by their bank stating any one of the joint holder can operate the account and issue the cheque, except written E/S i.e., Either or Survives and also he don't know who has written the said E/S, in the account opening application form. As per the evidence of the Dw2 it is clears that the Ex.P1 cheque belongs to joint account and there no specification either one account holder has issued the cheque and operate the bank account. SCCH-8 22 C.C.No.5677/2016
27. In this case complainant has discharged the initial presumption by leading oral and documentary evidence. The complainant was subjected to cross examination at length, in which doubtful or probable circumstances are elicited. The accused denied the case of complainant and also rebutted the statuary presumption by cross-examining PW-1. Under such circumstances it can be believed that, accused has not issued the cheque towards legally enforceable debt.
28. The presumption U/Sec. 139 and 118 of Negotiable Instrument Act 1988, is presumption of law and it is not a presumption of fact. A statutory presumption has an evidentiary value. This presumption has to be raised by the court in all the cases once the factum of dishonour of the cheque is established. The onus to rebut this presumption lies on the accused. In this case complainant has complied the statutory requirements of Sec.138 of NI Act and initial burden is discharged by the accused. At the same time the accused has SCCH-8 23 C.C.No.5677/2016 successfully rebutted this presumption. Therefore, the complainant has failed to establish that, accused has committed the offence punishable under section 138 of Negotiable Instrument Act. Accordingly, this court answers Points No.1 and Point No.2 are in the Negative.
29. Point No.3 :- In view of my answer to Point Nos.1 and 2 as above, I proceed to pass the following :
ORDER Acting under section 255(1) of Cr.P.C, the accused is acquitted of the offence punishable under section 138 of the Negotiable Instrument Act.
The bail bond and surety bond stands as cancelled.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me, in the open Court on this the 15th day of November, 2025) Digitally signed by KANNIKA KANNIKA M S MS Date: 2025.12.01 10:56:05 +0530 (Kannika M.S.) XII Addl. Small Causes Judge & ACJM, Bengaluru.SCCH-8 24 C.C.No.5677/2016
ANNEXURE List of witnesses examined for complainant :-
P.W.1 : Sri Srimurthy N. List of documents marked for complainant:-
Exhibits Particulars of the Document Ex,P1 Cheque Ex.P1(a) Signature of Accused Ex.P2 Bank Challan Ex.P3 Bank endorsement Ex.P4 Legal notice Ex.P5 Postal receipt Ex.P6 Courier receipt Ex.P7 Postal acknowledgment Ex.P8 Reply to the notice Ex.P9 Postal cover List of witnesses examined for accused: DW.1 : Sri. Ganeshbabu List of documents marked for accused:- Ex.D1 - Joint account opening from dated 10.09.2004
in the name of Nagappa Beeragowda, Govinda Beeragowda and Jagadish Beeragowda SCCH-8 25 C.C.No.5677/2016 Ex.D2 - Statement of accounts for the month of June 2013 Ex.D3 - KYC and signature card of introducer of the Joint account Ex.D4 - News paper cutting Digitally signed by KANNIKA KANNIKA M S MS Date: 2025.12.01 10:56:11 +0530 (Kannika M.S.) XII Addl. Small Causes Judge & ACJM, Bengaluru.