Bangalore District Court
R Ravi Kumar vs Mohammad Iqbal Nadaf on 3 May, 2025
1
CC No. 31567 / 2021
KABC030833512021
Presented on : 16-11-2021
Registered on : 16-11-2021
Decided on : 03-05-2025
Duration : 3 years, 5 months, 17 days
IN THE COURT OF XX ADDITIONAL CHIEF JUDICIAL
MAGISTRATE , BENGALURU AT: BENGALURU
Present : SRI. SHRISHAIL BHIMASHEN BAGADI
B.COM.LL.B(SPL)
XX ADDITIONAL CHIEF JUDICIAL
MAGISTRATE, BENGALURU
Dated this the 3rd day of May 2025
CC NO.31567/2021
Complainant : Sri.R.Ravi Kumar S/o R.Rangaswamy
Aged about 48 Years,
R/at No.258, 3rd Main Road,
Bhuvaneshwari Nagar, T.Dasarahalli
Bengaluru-560057
(By Sri.Nagesh.V.,Advocate)
Versus
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CC No. 31567 / 2021
Accused : Sri.Mohammed Iqbal Nadaf
Aged about 54 Years,
R/at No.10/2, 2nd Main Road,
Near Sujatha Tent, Kalashtri Nagar
T.Dasarahalli, Bengaluru-560057
(By Sri. K.Kishan Dutt.,Advocate)
Offenses complained : U/s 138 of the Negotiable
Instrument Act
Plea of the accused : Pleaded not guilty
Final Order : Accused is convicted
Date of Order : 03.05.2025
JUDGMENT
The complainant has filed this complaint under section 200 of the Cr.P.C, alleging that the accused has committed an offense punishable under section 138 of the Negotiable Instruments Act.
2. The Brief facts of the complainant's case are as follows:
It is the case of the complainant that he and the accused have been well known to each other for several years; due to this acquaintance, the accused had approached the complainant on 3 CC No. 31567 / 2021 15.02.2019 for a hand loan of Rs. 6,00,000/- for his urgent domestic and legal necessities. The accused had agreed to repay the loan within six months with bank interest. Considering the genuine financial problem, the complainant agreed to lend a loan to the accused; accordingly, the complainant paid a sum of Rs.1,90,000/- in cash to the accused on 20.02.2019, a sum of Rs.2,10,000/- in cash paid to the accused on 05.03.2019 and Rs.2,00,000/- in cash paid to the accused on 10.04.2019. In all, the complainant paid a loan of Rs.6,00,000/- to the accused.
After the lapse of the stipulated period of six months, the complainant asked the accused to repay the loan amount, but the accused did not keep his promise. Thereafter, with the intervention of their friends and well-wishers, the matter has been settled amicably. Finally, the accused paid a sum of Rs 1,250/- in cash and issued a cheque bearing 400030 dated 09.03.2020 for Rs. 5,98,750/- drawn on Dhanalakshmi Bank, Peeny Branch, Bengaluru. The accused assured the complainant that the cheque would be honoured on its presentation for collection. Reposing confidence in the accused, the complainant presented the said cheque for collection through his banker, 4 CC No. 31567 / 2021 State Bank of India, Hesaraghatta Branch Road, T.Dasarahalli, Bengaluru on 20.03.2020, but the cheque issued by the accused came to be dishonoured due to 'funds insufficient' as per the cheque return memo dated 20.03.2020. Due to the COVID-19 pandemic and imposition of lockdown, he could not send a demand notice within the stipulated period; he sent the legal notice on 26.05.2020 to the accused, calling upon him to pay the cheque amount. There was a delay of 36 days in sending the demand notice. The legal notice sent to the accused was returned as 'enquiry' as per postal endorsement dated 30.05.2020. Till this day, the accused has not repaid the amount; despite sending the notice, the accused did not come forward to pay the cheque amount nor issue a reply notice; hence, the complainant has filed this complaint against the accused.
3. On receipt of the complaint, the court verified its contents, jurisdiction and limitation and registered the case as Private Complaint, thereafter the complainant entered into the witness box, submitted his evidence affidavit, which was treated as his sworn statement, and got marked documents as per 5 CC No. 31567 / 2021 Ex.P.1 to P.5. On perusal of the complaint averments, sworn statement and documents, the court was satisfied that the complainant made out a prima-facie case; accordingly, the court took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, registered the criminal case and also issued summons to the accused. On receipt of the summons, the accused appeared before the court through his counsel and was enlarged on bail. The copies of the complainant and relevant documents were supplied to the accused; the substance of the accusation was read over and explained to him, and he did not plead guilty and claimed to be tried. The complainant submitted that he had already submitted his evidence affidavit at the time of recording of his sworn statement; the same may be considered as his chief examination as per section 145(1) of the Negotiable Instruments Act and also as per the guidelines laid down by the Hon'ble Supreme Court of India in the case of Indian Bank Association and Union of India. accordingly the court treated the sworn statement affidavit as his examination in chief. The learned counsel for the accused fully cross-examined the complainant. After the completion of the 6 CC No. 31567 / 2021 complainant side evidence, the incriminating evidence available against the accused was read over and explained to him. The accused in his statement has stated that he did not receive money from the complainant, and he did not receive a legal notice, and to prove his defense examined himself as DW.1 and got marked documents as per Ex.D.1 to D.12. The accused has also examined the Public Relations Inspector of the Postal Department, Jalahalli, Bengaluru, as CW.1 and got the marked document as per D.12.
4. On perusal of the complaint averments and documents furnished by both parties, the following points that arise for my consideration.
POINTS FOR CONSIDERATION
1. Whether the accused has successfully rebutted the presumption available under section 139 of the Negotiable Instruments Act that, he had not issued the cheque to the complainant to pay the legally enforceable debt ?
2. Whether the accidental error while writing the house number on the postal envelope is a ground to 7 CC No. 31567 / 2021 hold that the whole legal notice is defective ?
3. Whether the complainant has complied with the mandatory requirements of section 138 of the Negotiable Instruments Act ?
4. What order or sentence ?
5. The learned counsel for the complainant and accused have canvassed their oral arguments, the learned counsel for the accused has also filed his written arguments.
6. The learned counsel for the complainant in support of his arguments has placed his reliance on the following judgments.
01. (2010) 11 SCC 441 Rangappa Vs Sri Mohan
02. AIR 2023 SUPREME COURT 5018 Rajesh Jain Vs Ajay Singh
03. (2022) 6 SCC 735 Tedhi Singh Vs Narayan Dass Mahant
04. (2019) 18 SCC 106 Rohitbhai Jivanlal Patel Vs State of Gujarat and another 8 CC No. 31567 / 2021
7. The learned counsel for the accused has placed his reliance on the following judgments.
01. Appeal (Crl) No.525/2005 DD.02.11.2007 SC M/S Rahul Builders Vs M/s Arihant Fertilizers & Chemical and Anr
02. AIR 1998 SC 366 Tomy Jacob Kattikkaran Vs Dr.Thomas Manjaly and another
03. Criminal Appeal No.2526/2009, DD.19.02.2014 Hon'ble High Court of Karnataka M/s Shriram Transport Finance Co.Ltd Vs Sri.H.Yallappa Naik
04. Criminal Appeal No.2043/2013, DD.05.12.2013 Hon'ble Supreme Court of India John.K Abraham Vs Simon C.Abraham and anr
05. Criminal Appeal No.2045/2008, DD.16.12.2008 Hon'ble Supreme Court of India M/s Kumar Exports Vs M/s Sharma Carpets
06. Criminal Revision Petition No.1308/2006, Date of disposal 06.02.2012, Hon'ble High Court of Karnataka Bengaluru, Mr.Naveen Kumar Vs Mrs.Y.M.Nani
8. Upon hearing arguments, on perusal of written arguments and on careful analysis of oral and documentary evidence made available by the complainant and the accused, and on going through the ratio laid down in the decision relied upon by the learned counsel for the complainant and accused, my answers to the above said points are as under. 9
CC No. 31567 / 2021 Point No.1 In the negative Point No.2 In the negative Point No.3 In the affirmative Point No.4 As per the final order for the following REASONS Point No.1 to 3 :
9. These points are interconnected with each other, hence to avoid repetition of facts and appreciation of evidence, all the points are taken together for common discussion.
The defences of the accused are summarised hereunder.
1. The complainant might have stolen the cheque from the house of the accused.
2. The accused has not borrowed any loan from the complainant.
3. The accused has sufficient funds when the alleged transaction took place.
4. The accused did not have any financial stringency to borrow the money from the complainant.
5. The legal notice issued by the complainant was not served to the accused, due to wrong mention of house number.
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CC No. 31567 / 2021
6. The complainant has not fulfilled the requirements of Section 138(b) of the Negotiable insufficient Act.
7. The complainant did not have the financial capacity to lend money to the accused.
8. The complaint is barred by limitation, as the complaint has not been filed within the stipulated period, and the legal notice has not been issued within the stipulated period.
10. The complainant, to prove his case, examined himself as PW.1, and in his examination-in-chief affidavit, he has reiterated the contents of the complaint. In addition to his oral evidence, the complainant has produced the documents as per Ex.P.1 to P.5. Among these documents, Ex.P.1 is the cheque issued by the accused in favour of the complainant, and the signature of the accused is marked as Ex.P.1(a). Ex.P.2 is the cheque return memo. wherein it is mentioned that the cheque issued by the accused was dishonoured due to insufficient funds. Ex.P.3 is the office copy of the legal notice issued by the complainant to the accused calling upon him to pay the cheque amount, wherein the house number of the accused is mentioned as 10/2. Ex.P.4 is the postal window receipt. Ex.P.5 is an unserved postal 11 CC No. 31567 / 2021 envelope. On the face of the envelope, the postal authority mentioned the endorsement as 'enquiry on 29.05.2020 and 30.05.2020, and on the backside of the postal envelope, the postal authority mentioned the endorsement as 'no such person, and the house number of the accused appears as 19/2; the rest of the address is correct, and there is no mistake. Ex.P.5(a) is the un-served legal notice, wherein the house number of the accused is correctly mentioned as 10/2; Ex.P.5(b) is the postal acknowledgment annexed with the postal envelope, wherein the house number of the accused was correctly mentioned as 10/2. The main contention of the accused is that the house number has been wrongly mentioned on the postal envelope as 19/2; for that reason, he did not receive the notice. Except for the postal envelope, the rest of the documents and the complaint about the house number of the accused are correctly mentioned as 10/2. Due to the writing style of the learned counsel for the complainant, the house number looks like 19/2, but the postal authority did not verify the postal acknowledgment, wherein the house number is mentioned as 10/2 but not as 19/2, so this is 12 CC No. 31567 / 2021 a slight mistake that cannot be considered as the whole legal notice being defective.
11. The postal authority has given two endorsements: one is that an enquiry was conducted, and another one is 'no such person'. If the complainant had mentioned a wrong address or incorrect address, then the endorsement would be 'incomplete address' or 'insufficient address' or 'wrong address', but no such endorsement has been mentioned on the postal envelope. Further, the postal acknowledgment annexed with the postal envelope clearly reflects the correct address of the accused; at least the postal authority could have verified it and served the notice to the accused. Then there would be no chance of denying the service of notice. Further, the CW.1 / Public Relationship Inspector of Postal Department in his evidence has stated that he visited, with the concerned postman to the house of the accused and asked him whether the address mentioned on the postal envelope was his address. The senior postman told him that the address mentioned on the postal envelope was not the correct address of the accused, but the name of the accused clearly mentioned on the postal cover, but he did not receive the 13 CC No. 31567 / 2021 notice. Further on, perusal of the postal cover marked Ex.P.5 discloses that the counsel for the complainant has correctly written the house number of the accused as 10/2; because of his writing style, it looks like 19/2. If the address mentioned on the postal cover, particularly the house number of the accused, is wrong, then the accused would have taken further steps by sending the postal cover to the handwriting expert to verify whether the words written on the postal cover are 19/2 or 10/2. If he has made some effort, then the court may presume that the complainant has deliberately mentioned the wrong address of the accused.
12. The accused in his cross-examination has clearly admitted that the address mentioned in the complainant's legal notice is his correct address. Under such circumstances, it is not justifiable to hold that the entire legal notice is defective, because of negligence of the postal authority; the complaint cannot be dismissed because of the wrong address mentioned on the postal cover. If the accused wants to establish before the court that there was a sufficient balance in his account and that the address mentioned on the postal cover is wrong, then he 14 CC No. 31567 / 2021 could have deposited the entire cheque amount before the court and succeeded in the case. But the accused has taken a strange defence that the complainant might have stolen the cheque from his house. If that is so, then nothing prevented the accused from giving a complaint to the police. If the legal notice was not properly addressed to the accused, under such circumstances, after his appearance in this case and he got knowledge about the stealing of the cheque by the complainant, then nothing prevented him from approaching the police station and lodging a police complaint, but the accused has not taken any steps against the complainant.
13. The complainant in his cross examination has stated that the accused is his close friends, he known to him since 20 years, both of them were working in the solar company, they worked together for 15 years, the accused asked a loan to him in the month of March 2019, he asked the loan for his daughter's school admission, he gave the money near his house, at that time, his wife, children were present in the house, he does not have document to show that, he had given a loan of Rs.6 lakh to the accused, he gave the loan amount in 500 and 1000 rupees 15 CC No. 31567 / 2021 currency notes, he gave first loan installment of Rs.1,90,000/- he gave second installment in the month march, the accused failed to repay the loan within stipulated period, with the intervention of well wishers and friends the matter has been amicably settled, In view of the settlement, the accused has given the cheque; the notice sent by him was duly served to the accused; he used to keep savings in his house; after deducting expenses, he used to save a sum of Rs 2 to 3 lakh every year; and he visited the house of the accused several times. Except for the accused, he has not given a loan to any other person. The accused is his close friend; for that reason, he did not take any document as security. Further, the learned counsel for the accused suggested that he had stolen the cheque from the house of the accused; the complainant flatly refused the suggestion and stated that the accused had given the cheque for repayment of the loan. The counsel for the accused has tried to elicit from the mouth of the complainant that he had stolen the cheque from the house of the accused, but the learned counsel failed to elicit from the mouth of the complainant.
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14. The accused, to prove his defence, examined himself as DW.1 and, in his examination in chief, deposed that the legal notice issued by the complainant was not served; therefore, the complainant has not complied with the mandatory provision of section 138(b) of the NI Act. further stated that the alleged cheque was bounced on 20.03.2020, and the complainant had issued a notice on 26.05.2020; the complainant was supposed to issue notice within 30 days from the date of receipt of the cheque return memo. There is an abnormal delay in sending notice and also in filing this complaint. In this regard, the complainant has not filed an application for condonation of delay. This case was registered without following the provisions of law. Till today, the delay in filing this complaint has not been condoned. As such, the complaint filed against the accused is not maintainable. further stated that the complainant was his close family friend; he used to visit his house regularly; he had three children; he asked his daughter by name, Kum.Taiba Taj, to withdraw a sum of Rs.10,000 from the bank, as he was on urgent work, so he just signed a cheque and instructed his daughter to fill out the cheque because he was not well versed with the English 17 CC No. 31567 / 2021 language; in his absence, the complainant came to his house and enquired with his family members; in that process, he had stolen the cheque from his house; thereafter, he forgot about the cheque given to his daughter; in the evening, he adjusted a sum of Rs.10,000. For that reason, he did not ask his daughter regarding the cheque; the complainant and his wife were regularly visiting his house, so he came to know about the cheque when the police informed him about the non-bailable warrant issued against him. The complainant is in the habit of filing similar false cases against others; he filed cheque bounce cases against some other persons. Further, the complainant was involved in a theft case and registered the crime against him under Peenya P.S. Crime No. 472/2018 for the offence punishable under section 379 and 420 read with section 34 of the IPC. The complainant was involved in many criminal cases and stole the cheque leaves of others, and he did not ask for any loan from the complainant for the purpose of his daughter's education, infact his daughter took an education loan from Dhanalaksmi Bank and also took a loan from Karnataka Minority Development Corporation, and also she obtained a 18 CC No. 31567 / 2021 scholarship from the state and central government. Such being the case, there was no occasion for him to borrow the loan from the complainant, and he has stated a false story in the complaint, and the complainant did not have the financial capacity to lend money to him.
15. The accused in addition to his oral evidence, has produced documents as per Ex.D.1 to D.12, among these documents, Ex.D.1 to D.7 are the bank account statement of his daughter by name Taiba Taj, Ex.D.8 is the loan sanction letter issued by Karnataka Minority Development Commission, Ex.D.9 is the covering letter given by the Peenya P.S regarding documents sought under RTI, Ex.D.10 is the copy of the FIR registered against the complainant regarding theft of the cheques and filing cheque bounce case, Ex.D.11 is an endorsement given by PSI of Subramanypura P.S, Ex.D.12 is the letter given by the public relation officer of Post Office Jalahalli Division Bengaluru.
16. The learned counsel for the complainant has cross- examined the DW.1 and extracted the material admissions. The DW.1 in his cross-examination deposed that he studied upto PUC, he does not do any work and stays at home, he and the 19 CC No. 31567 / 2021 complainant worked in a solar company for about 20 years, and he admits that the Ex.P.1 cheque belongs to him and the signature also belongs to him. He can read and write Kannada; he can read and a little bit in English. If he has to give a cheque to someone, he fills it in the English language with his daughter's handwriting and gives it to them by putting his signature in the Kannada language. He cannot tell how many cheques are in the cheque book of Ex.P.1; there was a pay slip record in his cheque book; he does not remember to whom he gave the cheque before Ex.P.1; and he is staying in the house situated in the address as mentioned in the complaint, and all business letters reach that address. and he came to know about the cheque when he received a summons for this case, but he did not file a police complaint against the complainant regarding the stealing of the cheque from his house. He further admits that the police have filed a B report in respect FIR filed as per Ex.D.10. He further admits that the complainant has owned a house and he has given the houses on rent, and he has the financial capacity to lend Rs.6 lakh, and he has given a complaint to the postal department to obtain the Ex.D.12 20 CC No. 31567 / 2021 document. The documents produced by the accused as per Ex.D.1 to D.7 are irrelevant to the facts and circumstances of this case.
17. The accused has also examined the public relations inspector of the postal department as CW.1; he deposed that he has been working in the Jalahalli Post Office since June 2021, as per the direction given by the senior superintendent of the postal department in the month of March 2023, regarding the letter written by the accused. Accordingly, he visited with the senior postman T.Dasarahalli division stated that house no.19/1, 2nd main road, near Sujatha Tent, T.Dasarahalli, Bengaluru, is not the correct address of the accused; the correct house number of the accused is 10/2. So he visited the house of the accused and enquired that the house 19/1 is his house number; the accused said that his house 10/2, not 19/1; accordingly, he gave a report to the accused as per Ex.D.12.
18. The learned counsel for the complainant has cross- examined the CW.1. The CW.1 deposed that, if any acknowledgment regarding a letter sent by RPAD was not returned and if he receives a complaint within 45 days, then he 21 CC No. 31567 / 2021 will examine the postal track consignment. If the letter is delivered, then there will be an endorsement in the postal track as the letter 'delivered'. If the said letter is not delivered, then there will be an endorsement in the postal track as 'returned to sender'. After 45 days from the date of posting the letter through RPAD, no data will be available to show the status. If he receives a complaint after 18 months from the date of posting a letter, then he will examine the delivery manifest to know whether the receiver of the letter subscribed his signature or not. If the letter was not delivered, then there is a reason mentioned in the delivery manifest for why the letter was not delivered to the addressee. After 18 months, they will destroy the delivery manifest, and no record will be available regarding the delivery of the letter. If the letter is sent to the addressee through RPAD and he refuses to receive the letter, then they will mention in the endorsement as refused by the addressee, and if the address mentioned on the postal cover is wrong, then he will give an endorsement as 'incomplete address or incorrect address'. The witness has seen the postal cover marked as ExP.5 and asked him that the house number of the accused is written as 10/2 22 CC No. 31567 / 2021 but not as 19/1. The witness deposed he does not know whether the house number written on the postal cover is 10/2 or 19/1. He further deposed if the address of the accused is wrongly mentioned on the Ex.P.5 postal cover, the endorsement will be ' insufficient address' or sometimes the endorsement will be ' no such number', but if the address is not found on the first and second day, usually they write the endorsement as 'enquiry'. The witness, by seeing the backside of the Ex.P.5 postal cover, said that there is an endorsement as 'No such person'. The witness further deposed that he has not given the Ex.D.12 report by seeing Ex.P.5; as such, the evidence of the CW.1 is of no use because he has to collect the Ex.P.5 document and to make a detailed enquiry; then only the Ex.D.12 is considered as relevant documents. Further, he gave the report after 18 months from the date of sending a letter, and after 18 months they will destroy the delivery manifest. As such, it appears to the court that CW.1 had given the report at the instance of the accused, and he is not a competent person to speak about the delivery of the letter as per Ex.P.5 because he has not verified Ex.P.5 at the time of conducting the enquiry. If CW.1 verifies Ex.P.5 and the address 23 CC No. 31567 / 2021 mentioned on the acknowledgment, then he could not have been given a report as per Ex.D.12.
19. If the accused has taken the contention that the legal notice was not served to him, for that reason it could not be possible for him to make payment of the cheque amount; under such circumstances, another opportunity is available to him to make payment of the cheque amount within 15 days from the date of service of summons; if he fails to make payment, then he cannot take the contention that because of non-service of notice, he could not make payment of the cheque amount. in this regard I have relied upon the judgment of the Hon'ble Supreme Court of India reported in (2007) 14 SCC 750 between C.C.Alavi Haji Vs Palapetty Muhammed and Another, in this case the Hon'ble Supreme Court of India has held that, The Proviso to section Section 138(c) of the NI Act, is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous 24 CC No. 31567 / 2021 drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons. It is also to be borne in mind that, the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can within 15 days of receipt of summons from the court in respect of complaint under section 138 of the Act, make payment of the cheque amount and submit to the court that, he had made payment within 15 days of receipt of summons (by receiving a copy of the compliant with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under section 138 of, by ignoring statutory presumption to the contrary under section 27 of the General Clauses Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case, if the giving notice in the 25 CC No. 31567 / 2021 context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of section 138 of Act.
20. On careful analysis of the evidence of the accused, it is clarified that the Ex.P.1 cheque belongs to him and the signature that appeared on the cheque belongs to him, and it is an afterthought story that he kept quiet after giving a cheque to his daughter to fill it because of the adjustment of the money, and there was no animosity between the complainant and the accused to steal the cheque from his house. The accused is not an ordinary prudent man to keep the cheque by putting his signature; if the complainant stole the cheque, then the accused could have filed a police complaint against him, but he did not file a police complaint, which presupposes that the accused has given a cheque to pay the amount. Another interesting aspect is that the accused has not produced the bank statement of the Ex.P.1. If he had produced it, the real truth would have come out before the court, and if any cheque is produced to the bank, they will send a message to the mobile of the account holder. 26
CC No. 31567 / 2021 Therefore, the accused has taken an untenable defence only to escape from the liability to pay the cheque amount.
21. The accused himself admitted in his cross-examination that the complainant has the financial capacity to lend Rs. 6 lakh and also admits that the complainant has his own house and he has given the houses on rent; under such circumstances, the complainant need not prove his financial capacity.
22. The accused has raised another defence: the complainant may have stolen the cheque from his house. If so, there was nothing to prevent the accused from lodging a police complaint against the complainant, or he could have given a notice to return the cheque, or he could have filed a complaint in a court or with the jurisdictional police, but he did not take any steps. In such circumstances, the defence of the accused that the complainant stole the cheque is not credible.
23. The accused has raised another plea: the legal notice was not delivered to him. It is an admitted fact that the address mentioned in the legal notice and the complaint is correct; moreover, the address mentioned in the postal acknowledgment annexed with the postal cover is the correct address of the 27 CC No. 31567 / 2021 accused. Due to the writing style of the lawyer, he writes 10/2 as 19/2; the edge of the number '0' touches the oblique mark. Therefore, if the address mentioned in the legal notice and the complaint is correct, the small mistake in the postal envelope will not invalidate the legal notice. At least the postal authority could have checked the receipt, and then they would have definitely served the notice on the accused. Thus, an accidental mistake in the house number will not invalidate the legal notice. If the accused proves that the complainant has deliberately written the wrong address, his plea of non-receipt of the legal notice would have been taken into consideration. Therefore, the accused failed to rebut the presumption available under section 139 of the Negotiable Instruments Act.
24. The learned counsel for the accused has relied upon various decisions, but the accused himself has admitted that the signature appeared on the cheque and that he had not taken any action in respect of the theft of the cheque; then the ratio laid down in the decision referred to by the learned counsel for the accused with due respect, not applicable to the facts and circumstances of this case.
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25. The counsel for the complainant has relied upon various decisions, among them the decision reported in AIR 2023 SUPREME COURT 5018 Rajesh Jain Vs Ajay Singh covers rest of other decisions referred by the learned counsel for the complainant, the Hon'ble Supreme Court of India has held that, " The legal burden is the burden of proof which remains constant throughout a trial. On the other hand, the evidential burden may shift from one party to another as the trial progresses, according to the balance of evidence given at any particular stage. In all trials concerning dishonour of cheque, the court are called upon to consider whether the ingredients of the offence enumerated in section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by section 139 of the Act, further, it said that section 139 is a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, I,e that cheque was not issued in discharge of a debt/ liability. Further held that, the NI Act provides for two presumptions, one under section 118 of the Act, which directs that it shall be presumed, until the contrary is proved, that every negotiable instrument 29 CC No. 31567 / 2021 was made or drawn for consideration. Further, under section 139, which stipulates that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque for the discharge of, whole or part of any debt or liability. The 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under section 138 of the NI Act. Further held that, section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. It is obligatory for the court to raise this presumption has been established. But this does not preclude the person against whom the presumption has been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary, as is clear from the use of the phrase ' unless the contrary is proved', after taking note of Bir Singh Vs Mukesh Kumar (2019)4 SCC 197, wherein it was held that presumption takes effect even in a situation where the accused contends that ' a blank cheque leaf was voluntarily signed and handed over by him to the complainant, without admitting the execution of the entire contents in the cheque, is not sufficient to trigger the presumption. Further held that, as 30 CC No. 31567 / 2021 soon as the complainant discharges the burden to prove that, the instrument was issued by the accused for discharge of debt, the presumptive device under section 139 of the Act, that helps to shift the burden on the accused of proving that the cheque was not received by the bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further. In the case of Basalingappa Vs Mudibasappa (2019) 5 SCC 418 held that, to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence, wherein the existence of a liability enforceable debt or liability can be contested. The words ' until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability, but the accused has two options. The first option is to prove that the debt/liability does not exist and conclusively establish the cheque was not issued in discharge of a debt / liability. The second option is to prove the non existence of debt / liability by a preponderance of probabilities by referring 31 CC No. 31567 / 2021 to the circumstances of the case. The nature of evidence required to shift the evidential burden need not necessarily be direct I,e oral or documentary evidence or admissions made by the opposite party ; it may comprise circumstantial evidence or presumption of law or fact."
26. Therefore, keeping in mind the ratio laid down in the above said decision, it is clear that the accused has to produce some relevant documents to show that the complainant has stolen the cheque from his house; then only his version can be believed. Further, the accused himself admits in his cross- examination that the complainant has financial capacity; under such circumstances, the complainant need not establish his financial capacity; furthermore, the accused and complainant are close friends, and there was no animosity between them. Under such circumstances, there was no chance of the complainant stealing the cheque from his house. The accused has admitted his address mentioned in the complaint and legal notice is his correct address; under such circumstances, non- service of legal notice due to accidental error while writing the house number does not invalidate the legal notice. If the accused 32 CC No. 31567 / 2021 has a valid defence, then he has to establish before the court that, as of the date of the cheque, there was sufficient balance in his account; therefore, the accused failed to establish his defence with cogent evidence. The accused took the financial assistance from the complainant in the year 2019, and he has not made any effort to pay the amount; therefore, he is liable to pay the additional compensation amount of Rs. 1,00,000/- along with the cheque amount, and also he is liable to pay the litigation expenses of Rs. 30,000/- for engaging counsel and preparing the complaint and paying the process fees. Therefore, it is a fit case to convict the accused, accordingly I answer point no.1 and 2 are in the negative, point no.3 answered in the affirmative. Point No.4 :
27. For the above said reasons and discussions, I proceed to pass the following:
ORDERS Acting under section 255(2) of the Cr.P.C the accused is hereby convicted for the offense punishable under section 138 of the Negotiable Instruments Act.33
CC No. 31567 / 2021 The accused shall pay a fine of Rs. 7,33,750/-- (which includes cheque amount of Rs.5,98,750/-, additional compensation amount of Rs.1,00,000/- , litigation expenses of Rs.30,000 and fine amount of Rs.5,000/- payable to the government) in default he shall undergo simple imprisonment for Six month for the offense punishable under Section 138 of the Negotiable Instrument Act.
As per Section 357 of Cr.P.C. out of the fine amount Rs.7,28,750/-(which includes cheque amount, additional compensation amount and litigation expenses) is to be paid to the complainant as compensation and the balance amount is to be remitted to the state government.
Bail bond and surety bond of the accused shall stand canceled.
Further, in exercise of power conferred under section 424(1)(a) of Cr.P.C the accused is permitted to pay/deposit the fine amount of Rs. 7,33,750/- within 30 days from this order and execution of sentence passed against him in view of the above permission stands suspended for a period of 30 days from today.34
CC No. 31567 / 2021 Supply free copy of the judgment to the accused.
(Directly typed by me on my laptop, corrected by me and pronounced the judgment in the open court on this 3rd day of May 2025) (SHRISHAIL BHIMASHEN BAGADI) XX ADDITIONAL CHIEF JUDICIAL MAGISTRATE, BENGALURU ANNEXURES
1. LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINT :
PW.1 : R.Ravikumar
2. LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT :
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Cheque return memo
Ex.P.3 : Office copy of the legal notice
Ex.P.4 : Postal window receipt
Ex.P.5 : Unserved postal cover
Ex.P.5(a) : Unserved legal notice
Ex.P.5(b) : Postal acknowledgment attached with
postal cover
35
CC No. 31567 / 2021
3. LIST OF WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
PW.1 : Mohammed Iqbal Nadaf CW.1 : Sudarshan.N (Public Relation Inspector)
4. LIST OF DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
Ex.D.1 to 7 : Bank Account Statements Ex.D.8 : Loan sanction letter issued by KMDC Ex.D.9 : RTI Covering letter Ex.D.10 : FIR Copy Ex.D.11 : Information given under RTI Act Ex.D.12 : Letter given by Senior Superintendent of Post office (SHRISHAIL BHIMASHEN BAGADI) XX ADDITIONAL CHIEF JUDICIAL MAGISTRATE, BENGALURU