Bangalore District Court
S K Somashekar Raju vs Malthi V on 29 May, 2025
KABC030035842024
IN THE COURT OF THE XIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
:: PRESENT ::
SMT. PAVITHRA. R, B.A.L, L.L.B.,
XIII ACJM, Bengaluru City.
C.C.NO. 1868/2024
Dated this the 29th day of May, 2025
COMPLAINANT: Sri. S.K. Somashekar Raju,
S/o Late Krishnamraju,
Aged about 46 years,
R/a. No.7, 11th Cross,
R.T. Street,
Bengaluru - 560 053.
[By Sri. Channakrishnappa. M.
Advocate]
V/S
ACCUSED: 1. Malthi. V.
W/o Deepu. D.R.
Aged about 39 years,
R/a. No.29, Dasanapura,
Bengaluru North,
Bengaluru - 562 123.
2. Harish. D.R,
S/o Ramakrishnappa,
-2- C.C.No. 1868/2024
Age not known,
R/o M.H.Palya,
Dasanapura,
Bengaluru - 562 162.
3. Deepu. D.R,
S/o Ramakrishnappa,
Age not known,
R/a. No.29, Dasanapura,
Benaluru - 562 123.
(By Sri. Y.V. Juchaw, Advocate)
Date of filing of complaint : 06.12.2023
Offence complained of : U/s. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final order : Accused No.1 is Convicted
Accused No.2 & 3 are
acquitted
Date of order : 29.05.2025
JUDGMENT
This is a private complaint filed by the complainant under Sec.200 of Cr.P.C., against the accused for the offence punishable under Sec.138 of Negotiable Instrument Act, 1881 (in short referred to as N.I. Act).
-3- C.C.No. 1868/2024 The brief facts of the case are as under :
2. It is the case of the complainant, that he is a businessman and a Goldsmith by profession. The accused's husband had a liability to pay to the complainant for which he had given cheques, thereafter bounced on presentation and the complainant had to take criminal action against accused's husband. In the proceedings in CC No.3659/2018 and 2651/2019 the Hon'ble 20th ACMM, Bengaluru convicted him and he was arrested and sent to prison to suffer the imprisonment. On his arrest the accused, accused's brother-in-law begged and requested the complainant to save the accused's husband from suffering the sentence and offered to make settlement. The accused's pleas were heart touching, therefore the complainant agreed to the proposal of settlement and release of the accused's husband from the prison. The accused offered Rs.10,00,000/- as settlement money and the complainant had to forego rest of the money. This was agreed on 19.09.2022 and on that day, upon settlement the accused
-4- C.C.No. 1868/2024 paid Rs.2,00,000/- to the complainant and for the balance of Rs.8,00,000/- accused issued two cheques for Rs.4,00,000/- each bearing No.572496 dated 01.10.2023 and No.572497 dated 07.10.2023 both are drawn on Karnataka Bank Ltd., Nelamangala Branch, Bengaluru.
The accused had also signed and executed a letter of settlement on 19.09.2022 in favour of the complainant. On 09.10.2023 the complainant presented the cheques for collection through his banker The Union Bank of India, BVK Iyengar Road Branch, Bengaluru, but the same came to be returned with an endorsement "Funds Insufficient" on 10.10.2023. The same was intimated to the accused. Thereafter the complainant issued a legal notice on 08.11.2023 demanding the cheque amount. The same was duly served on the accused on 14.11.2023 and 15.11.2023. In spite of issuance of legal notice, accused has failed to repay the cheque amount and thus committed the offence punishable u/s.138 of Negotiable Instrument Act. Hence, this complaint.
-5- C.C.No. 1868/2024
3. On filing of this complaint, this court recorded the sworn statement of the complainant and took cognizance of the offence and issued summons to the accused. Accused No.1 to 3 appeared before the Court through their counsel and were enlarged on bail and substance of accusation was read over to them and they pleaded not guilty having defense to make. Hence, the matter was posted for recording of statement U/Sec.313 of Cr.P.C. Since there was incriminating evidence against the accused, the statement as required under Sec.313 of Cr.P.C was recorded and the matter was posted for defense evidence. In spite of sufficient opportunity the accused have failed to cross examine the PW.1 and lead defense evidence and remained absent. Hence cross-examination of PW1 and defense evidence was taken as NIL as per order dated 27.02.2025 and 19.04.2025 respectively.
4. Heard the counsel for complainant. Perused the averments made in complaint, oral and documentary
-6- C.C.No. 1868/2024 evidence of the complainant and after hearing arguments, the points that arises for determination are:-
1) Whether the complainant has proved that out of the settlement amount of Rs.10,00,000/- accused paid Rs.2,00,000/-
to the complainant and to discharge the balance amount of Rs. 8,00,000/- accused No. 1 issued Ex.P.1 and 2 cheques in favour of the complainant and the same were dishonored. Even after issuance of notice, the accused have failed to pay the cheque amount and thereby they are guilty of the offence punishable under Sec.138 of N.I. Act?
2) What order?
5. Findings to the above points are as under:-
Point No.1 : In the Affirmative Point No.2: As per final order for the following:
REASONS
6. Point No.1:- According to the complaint averments of the complainant, the complainant is a businessman and Goldsmith by profession. As the cheque issued by the first accused's husband was bounced on
-7- C.C.No. 1868/2024 presentation, complainant had to take criminal action against the first accused's husband and he was convicted in criminal proceedings and he was arrested and sent to prison. When he was taken to police custody accused requested the complainant to save the first accused's husband and offered to make a settlement. Accused offered Rs.10,00,000/- as settlement and it was agreed on 19.09.2022 and on that day accused No. 1 paid Rs.2,00,000/- to the complainant and for the balance amount of Rs.8,00,000/- she issued Ex.P.1 and Ex.P.2 cheques. On presentation of the said cheques, the same came to be returned dishonored for the reasons "Funds Insufficient" with an endorsement Ex.P.3 and 4 on 10.10.2023. The same was intimated to the accused. The complainant got issued a legal notice as per Ex.P.5 to the accused on 08.11.2023 through his counsel and said notice was duly served on the accused. Hence, the complainant has filed this present complaint.
-8- C.C.No. 1868/2024
7. Before proceeding further it is relevant to
mention, that cheques are issued by the accused No.1 in her individual capacity and she is the sole account holder to the account maintained in the Bank where cheques are drawn. Hence accused No. 2 and 3 cannot be prosecuted in this complainant. Thus proceedings against them are to be dropped.
8. In order to prove the complainant's case he got examined as PW1 by filing an affidavit and got marked 14 documents at the time of his chief examination as follows...
(i) Ex.P.1 is the cheque of Karnataka Bank Ltd., bearing No.572496 dated 01.10.2023 for sum of Rs.4,00,000/- alleged to have been issued by the accused No.1. Signature of the accused No.1 is marked through complainant as Ex.P1(a).
(ii) Ex.P.2 is the cheque of Karnataka Bank Ltd., bearing No.572497 dated 07.10.2023 for sum of Rs.4,00,000/- alleged to have been issued by the accused No.1. Signature of the accused No.1 is marked through complainant as Ex.P2(a).
(iii) Ex.P3 & 4 are the Bank Endorsements dated 10.10.2023 issued by the Karnataka Bank Ltd.,
-9- C.C.No. 1868/2024 BVK Iyengar Road Branch stating that 'Funds Insufficient'.
(iv) Ex.P5 is the legal notice dated 08.11.2023 issued by the complainant through his advocate to the accused demanding the payment of cheque amount.
(v) Ex.P.6 to 8 are the postal receipts.
(vi) Ex.P.9 to 11 are the postal acknowledgments.
(vii) Ex.P.12 is the settlement deed dated 19.02.2022 entered into between the complainant and accused No.1.
(viii) Ex.P.13 is the certified copy of the judgment in CC No.2651/2019.
(ix) Ex.P.14 is the certified copy of the judgment in CC No.3659/2018.
9. In the chief-examination of P.W.1, he has reiterated entire averments of the complaint and supported his version. The accused No. 1 has neither cross examined the PW.1 nor taken any defense to disbelieve the complainant's case.
10. From the overall evaluation of oral and documentary evidence of the complainant it is not in
- 10 - C.C.No. 1868/2024 dispute that the complainant and accused No.1 have entered into settlement and Ex.P.1 and 2 belongs to the accused and it was issued to the complainant subsequent to borrowing of amount. These points are sufficient to raise presumption available under Sec.118 and 139 of N.I. Act. That the accused has not taken any defense either denying his signature or issuance of cheque.
11. Since the cheque belongs to the accused No.1 account and also for the reason that the same was personally issued to the complainant by the accused No.1, the complainant is benefited to raise presumption under Sec.118 and 139 of N.I. Act. Thus until and unless the contrary is proved it is presumed that the cheque-Ex.P.1 & 2 are issued for the purpose of legal liability.
12. Now the burden shifts on the accused to rebut the presumption under Sec.118 and 139 of N.I Act from the defense points either by giving a standard proof or by establishing the same under the principles of
- 11 - C.C.No. 1868/2024 preponderance of probabilities. As discussed above the accused No.1 has failed to take any defense in this case either by cross examining the PW.1 or by leading defense evidence.
13. It is settled position of law that after raising presumption under Sec.118 and 139 of N.I Act, the burden shifts on the accused No.1 to rebut the said presumption by establishing their defense under the principles of preponderance of probabilities in the present case. There is no cogent evidence by the accused No.1, mere denying the complainant's case in a statement recorded under section 313 of Cr.P.C does not weakens the complainant's case and the same is insufficient to rebut the presumption. The said aspect is discussed in detail in a decision rendered by Hon'ble High court of Karnataka in "Sripad Vs. Ramadas M. Shet, in Cri. Appl. No. 2689/2009 as hereunder:
"Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he
- 12 - C.C.No. 1868/2024 discharged the amount are not sufficient to put back the burden on to the complainant ."
14. Thus, the above ratio is aptly applicable to the facts of the case. The accused No.1 has failed to establish her defense points by means of tendering related witnesses and documentary proof as discussed supra. Thus for all these reasons this court finds that the accused No.1 to make payment towards hand loan to the complainant issued the Ex.P1 and Ex.P.2 cheques without having sufficient funds intentionally and failed to repay the cheque amount after service of notice since the said cheque was dishonored. That the accused No.1 has utterly failed to establish preponderance of probabilities in establishing his defence and further failed to rebut the initial presumption under section 118 and 139 of N.I. Act. Therefore, in the light of above discussion, the Court answer point No.1 in the Affirmative.
15. Point No.2:- In view of the reasons stated and discussed above the complainant has proved the guilt of the
- 13 - C.C.No. 1868/2024 accused No.1 punishable under Sec.138 of N.I. Act. It is necessary to note that the said offence is of Civil wrong. Hence it is just and necessary to award sentence of fine instead of sentence of imprisonment. Considering all these aspects this court proceed to pass the following:-
ORDER Acting under Sec.255(1) of Cr.P.C accused No.2 and 3 are hereby acquitted of the offence punishable under Sec.138 of N.I Act Acting under Sec.255(2) of Cr.P.C accused No.1 is hereby convicted for the offence punishable under Sec.138 of N.I Act and sentenced to pay a fine of Rs.8,05,000/- (Rupees Eight Lakhs Fifty Five Thousand Only), in default of payment of fine amount she shall undergo simple imprisonment for 6 months.
Further, acting under Sec.357(1)(b) of Cr.P.C. it is ordered that Rs.8,00,000/- (Rupees Eight Lakhs Only) compensation, remaining fine amount of Rs.5,000/-
- 14 - C.C.No. 1868/2024 (Rupees Five Thousand) to the State for the expenses incurred in the prosecution.
The bail bond of the accused No.1 stands canceled after expiry of the appeal period.
(Dictated to the Stenographer directly on computer, revised, corrected, signed and then pronounced in the open court on this the 29 th day of May, 2025) (PAVITHRA R.) XIII ACJM, BENGALURU CITY ANNEXURE LIST OF WITNESSES EXAMINED FOR COMPLAINANT:
PW.1 Sri. S.K. Somashekar LIST OF WITNESSES EXAMINED FOR ACCUSED:
- NIL -
LIST OF DOCUMENTS MARKED FOR COMPLAINANT:
Ex.P1 & 2 : Original Cheque
Ex.P.1(a) &
Ex.P.2(a) : Signature of the accused
Ex.P.3 & 4 : Bank endorsements
Ex.P.5 : Copy of Legal Notice
Ex.P.6 to 8 : Postal receipts
- 15 - C.C.No. 1868/2024
Ex.P.9 to 11: Postal acknowledgments Ex.P.12 : Settlement entered between complainant and accused.
Ex.P.13 : Certified copy of judgment in CC No.2651/2019 Ex.P.14 : Certified copy of judgment in CC No.3659/2018 LIST OF DOCUMENTS MARKED FOR ACCUSED:
- NIL -
XIII ACJM, BENGALURU CITY.