Bangalore District Court
Ajay Kumar vs Sandhya on 10 July, 2025
Corrected
KABC030627032018
Presented on : 24-08-2018
Registered on : 24-08-2018
Decided on : 10-07-2025
Duration : 6 years, 10 months, 17 days
IN THE COURT OF THE XVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Dated this the 10th day of July - 2025
PRESENT: SMT. THENDRALL.K, B.A.L, LL.M.,
XVIII Addl.C.J.M., Bengaluru City.
C.C.NO.23308/2018
Complainant : Sri.Ajay Kumar,
S/o.Narayanan,
Aged about 44 years,
R/at No.8, 9th Cross,
C.L.Ramaiah Layout,
1st Main Shampura,
R.T.Nagar Post,
Bengaluru-32.
(Rep. by Sri.M.K, Advocate)
V/s.
Accused : Smt.Sandhya,
Aged about 28 years,
D/o.Sarvanan,
R/at No.7/1, Muddappa Road,
M.S.Nagar, Bengaluru-03.
(Rep. by Smt.V.V, Advocate)
Judgment 2 C.C.No.23308/2018
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 10.07.2025.
(THENDRALL.K)
XVIII Addl.CJM., Bengaluru.
JUDGMENT
The instant complaint is filed by complainant against accused under Sec.200 of Cr.P.C. for the offence punishable under Sec.138 of N.I Act to punish the accused in accordance with law and direct the accused to pay twice the hand loan amount of Rs.3,75,000/- with interest at the rate of 2% p.m in the interest of justice and equity.
2. In this case, earlier the accused was convicted on 29.09.2021. The accused has challenged the said judgment by preferring the Criminal Appeal No.792/2021 before the Hon'ble LVIII Addl. City Civil and Sessions Judge, Bengaluru City (CCH-59), wherein, the judgment of this court came to be set-aside and remanded the matter with a direction to provide opportunity to the accused for further cross-examination of PW.1 and to lead her defence Judgment 3 C.C.No.23308/2018 evidence. Accordingly, the said direction is complied by this court and took the matter for judgment after giving sufficient opportunities to both side as per law.
3. The brief facts of the case of the complainant is that:
It is submitted that, the complainant and accused are known to each other since 17 years to the date of borrow the hand loan. During the month of November 2016, the accused along with her father had approached the complainant and sought for hand loan of Rs.3,75,000/- to meet her maternity expenses, domestic and financial needs of her father's and promised to repay the said amount along with interest at the rate of 2% p.m within six months. Accordingly, as per request of accused and her father, the complainant had paid sum of Rs.3,75,000/- to the accused and her father on 20.11.2019. While borrowing the said amount, towards discharge of their liability, the accused and her father had issued a cheque bearing No.893900 for a sum of Rs.3,75,000/- drawn on Corporation Bank, Koramangala Branch, Bengaluru in favour of complainant.
Further contended that, in the month of July 2017, the father of accused had requested the complainant not to present the said cheque for encashment. Thereafter, the accused and her father had failed to repay the said amount and dodged the same, hence the complainant had Judgment 4 C.C.No.23308/2018 demanded the accused and her father for repayment of the said amount, at that juncture, the accused and her father have stated that they have no cash with them, hence instructed to present the above mentioned cheque for encashment and assured that the said cheque would be honoured on its presentation. As per assurance of accused and her father, the complainant presented the said cheque for encashment through his banker viz., State Bank of India, Sultanpalya Branch, Bengaluru on 27.02.2018, same came to be dishonoured and returned with an endorsement dated 09.03.2018 stating "Signature Differs". Thereafter, the complainant approached the accused and her father and intimated about dishonour of cheque and demanded for repayment of the cheque amount, but the they failed to repay the cheque amount.
Further contended that the complainant constrained to cause a legal notice to the accused through RPAD on 05.04.2018 calling upon accused and her father to repay the cheque amount within 15 days from the date of receipt of the legal notice and the same came to be returned with a shara "Always Door Lock". Even after grace period of 15 days from the date of return of notice, the accused neither paid the cheque amount nor replied the notice. Thus, the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 5 C.C.No.23308/2018
4. After taking cognizance and registration of the case, process was ordered to issue summons against accused. In pursuance thereof, accused appeared before the Court through her counsel and accordingly, she was enlarged on bail and has recorded the accusation for the offence punishable under Section 138 of N.I.Act, same was explained to accused. Since accused pleaded not guilty and claims to have defence evidence hence, the case has been set down for recording of evidence.
5. To substantiate the complaint averments, complainant got examined himself as PW.1 and got marked 08 documents as per Ex.P1 to Ex.P8. The learned counsel for complainant has relied upon the following decisions :
1. Crl.R.P.No.606/2020 in the case of K.Kuppuraj V/s. J.Thrilokamurthy.
2. 2019 0 Supreme (Kar) 1304 : 2020 1 AIR (Kar)(R) 230 in the case of Usman Gani V/s. M/s. Shriram Transport Finance Company Ltd.
3. 2020 0 Supreme (Kar) 1029 : 2020 4 AIR (Kar)(R) 513 in the case of Chikkahonnaiah V/s. Basamma @ Bindu decided on 02.09.2020.
4. 2019 0 Supreme (Kar) 1321 : 2020 2 AIR (Kar)(R) 362 : 2020 4 KCCR 2518 in the case of Smt.Prabhavathi.K.R V/s. Sri.Lokesh.
6. As the incriminating circumstances appearing against the accused, the statement of accused under Section 313 of Cr.P.C. is recorded by preparing separate Judgment 6 C.C.No.23308/2018 questionnaires. The accused has not explained anything, in order to rebut the case of the complainant, accused got examined herself as DW.1 and not produced any document on her behalf. In support of her defence, the DW.1 chosen to examine one witness by name Sri.Muniswamy Saravana as DW.2, who is the father of accused.
7. Heard arguments. The learned counsel for complainant has submitted his detailed written arguments, apart from oral arguments.
8. On considering the facts and circumstances of the case, the following points would arise for determination :
1. Whether the complainant proves beyond all reasonable doubt that the accused and her father have borrowed a sum of Rs.3,75,000/-
from him, there is legally enforceable debt and given a cheque bearing No.893900 in order to realize the legally enforceable debt?
2. Whether the complainant further proves beyond all reasonable doubt that he has complied provisions of Section 138 of Negotiable Instrument Act?
3. What order or sentence?
9. My findings on the above points as under:
Judgment 7 C.C.No.23308/2018 Point No.1 : In the "Affirmative"
Point No.2 : In the "Affirmative"
Point No.3 : As per the final order, for the following:
:R E A S O N S:
10. Point No.1: This is the complaint filed under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instrument Act. The case made out by complainant is that, the complainant and accused are known to each other since 17 years, in the month of November 2016, the accused along with her father had approached the complainant and sought for hand loan of Rs.3,75,000/- to meet out her maternity expenses, domestic and financial needs of her father's and promised to repay the same along with interest at the rate of 2% p.m within six months. Accordingly, as per request of accused and her father, the complainant had paid sum of Rs.3,75,000/- to the accused and her father on 20.11.2019 and towards discharge of the their liability, the accused had given cheque in question to the complainant which has been returned unpaid to the complainant.
11. In order to prove his case, the complainant got examined himself as PW.1 and got marked 08 documents as Exs.P1 to Ex.P8. He has reiterated the averments of Judgment 8 C.C.No.23308/2018 complaint in his examination-in-chief. The documents at Ex.P1 is the cheque, Ex.P2 is the Return memo, Ex.P3 is the office copy of Legal notice, Ex.P4 is the Postal receipt, Ex.P5 is the Unserved RPAD cover, Ex.P6 is the certified copy of registered absolute sale deed dated 07.10.2016, Ex.P7 is the certified copy of plaint in O.S.No.25941/2017 on the file of Hon'ble City Civil Judge at Bengaluru and Ex.P8 is the bank statement of account.
12. In order to prove her defence, the accused and her father themselves were examined as DW.1 and DW.2, but not produced any documents.
13. The counsel for complainant argued that, the accused and her father have borrowed a sum of Rs.3,75,000/- from the complainant and the accused has given the cheque in question to realize the legally enforceable debt which returned unpaid. The complainant had issued notice. Despite the same, the accused neither paid the cheque amount nor issued reply, thereby the accused has committed an offence punishable under Section 138 of N.I.Act. Further argued that the complainant has complied the provisions of the Act and prayed to convict the accused.
14. Per contra, the learned counsel for accused has argued that, the accused does not know the complainant, Judgment 9 C.C.No.23308/2018 she got married with one Balaraj in the year 2014 and she was residing with her husband at Kacharkanahalli. She gave birth to 1st child on 12.11.2016 at Dr.Ambedkar Hospital and 2nd child on 15.07.2021 at Jayanagar Government Hospital.
Further argued that the father of accused was working as a painter with complainant. In the year 2016 due to demonetization while exchanging old currency notes the complainant had given Rs.2,84,000/- to the father of accused, thereafter he had exchanged the said old notes and returned the same to complainant, there was Rs.50,000/- was left with him, which was also returned to the complainant.
Further argued that in the year 2017, the father of accused had quit his job with complainant. Later, on 22.07.2017 the complainant called father of accused to Banaswadi Police Station and threatened him to give cheque, as he did not have cheque without the consent of accused, he had given one of the old blank cheque belonging to accused which was kept in her mother's house.
Further argued that the accused had not receive any notice from complainant, she received court notice at her husband's house, she was not aware about transaction Judgment 10 C.C.No.23308/2018 held between her father and complainant, the accused has not obtained the alleged amount from the complainant at any point of time and the accused has not given Ex.P1- cheque to the complainant towards repayment of Rs.3,75,000/- for discharge of any legally enforceable recoverable debt. The complainant had misused the cheque in question and has filed this false case against accused. Therefore, there is no legally enforceable debt and the complainant has not complied the provisions of N.I.Act.
15. In the light of the above oral and documentary testimonies placed by the both parties and the arguments advanced by the both counsels let me examine the oral and documentary testimony produced by the complainant. It is pertinent to note that unlike the other cases, in the case of an offence punishable under the Negotiable Instruments Act, the paramount duty of the complainant is to prove that there is legally enforceable debt and the cheque has been given for realizing the legally enforceable debt.
16. In order to establish the transaction between complainant and accused. PW.1 has deposed in his evidence in consonance with the averments of complaint. Though PW.1 was cross-examined by counsel for accused, but nothing has been elicited from his mouth to disprove the case of complainant. It is pertinent to note that it is the specific defence of accused is that, her father was working Judgment 11 C.C.No.23308/2018 as a painter with complainant. In the year 2016 due to demonetization while exchanging old currency notes the complainant had given Rs.2,84,000/- to her father, thereafter he had exchanged the said old notes and returned the same to complainant, there was Rs.50,000/- was left with him, which was also returned to the complainant. In the year 2017, her father had quit his job with complainant. Later, on 22.07.2017 the complainant called her father to Banaswadi Police Station and threatened him to give cheque, as he did not have cheque without her consent, he had given cheque in question to complainant, despite the same, the complainant misused the said cheque had filed this false case against her. She has not borrowed the alleged amount from the complainant at any point of time and has not given Ex.P1-cheque to the complainant towards repayment of Rs.3,75,000/- for discharge of any legally enforceable recoverable debt.
17. In order to substantiate the defence of accused, during the course of cross-examination of PW.1, the learned counsel for accused has suggested PW.1 that:
"ನಾನು ಆರೋಪಿಗೆ ರೂಃ2,84,000/- ಸಾಲ ಕೊಟ್ಟಿದ್ದೆ, ಆಗ ಭದ್ರತೆಗಾಗಿ ಆರೋಪಿಯಿಂದ ಸಹಿ ಮಾಡಿದ ಖಾಲಿ ಚೆಕ್ ಪಡೆದಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿ ರೂಃ2,84,000/-
ಮರುಪಾವತಿಸಿದ್ದಾರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿ ಹಣ
Judgment 12 C.C.No.23308/2018
ಮರುಪಾವತಿಸಿದ್ದರೂ ಸಹ ನಾನು ಖಾಲಿ ಚೆಕ್ಕನ್ನು ವಾಪಸ್ ಕೊಡದೆ ತೊಂದರೆ ಮಾಡುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ".
18. During the course of examination in chief, the DW.1 has taken contention that:
"2016 ರಲ್ಲಿ ಹಳೆಯ ನೋಟುಗಳನ್ನು ಬದಲಾಯಿಸುವಾಗ ರೂಃ2,84,000/- ನ್ನು ಪಿರ್ಯಾದಿದಾರರು ನಮ್ಮ ತಂದೆಗೆ ನೀಡಿದ್ದೆ ಎಂದು ನನಗೆ ತಿಳಿಸಿದ್ದರು. ಸದರಿ ನೋಟುಗಳನ್ನು ಬದಲಾಯಿಸಿ ನಮ್ಮ ತಂದೆಯವರು ವಾಪಸ್ಸು ಅವರಿಗೆ ಸದರಿ ಮೊತ್ತವನ್ನು ನೀಡಿರುತ್ತಾರೆ. ರೂಃ50,000/- ಉಳಿದಿತ್ತು, ಅದನ್ನು ಸಹಾ ನಮ್ಮ ತಂದೆಯವರು ಕೆಲಸ ಮಾಡಿ ಅವರಿಗೆ ವಾಪಸ್ಸು ಕೊಟ್ಟಿರುತ್ತಾರೆ. 2017 ರಲ್ಲಿ ಪಿರ್ಯಾದುದಾರಿಂದ ನಮ್ಮ ತಂದೆ ಕೆಲಸವನ್ನು ಬಿಟ್ಟುರುತ್ತಾರೆ. ತದನಂತರ ದಿನಾಂಕ 22.07.2017 ರಂದು ಬಾಣಸವಾಡಿ ಪೋಲಿಸ್ ಠಾಣೆಗೆ ನಮ್ಮ ತಂದೆಯನ್ನು ಪಿರ್ಯಾದುದಾರರು ಕರೆಯಿಸಿ, ಅವರನ್ನು ಠಾಣೆಯಲ್ಲಿ ಬೆದರಿಸಿ ನಮ್ಮ ತಂದೆಯಿಂದ ಚೆಕ್ಕನ್ನು ಕೇಳಿದ್ದರು, ಅವರ ಬಳಿ ಯಾವುದೇ ಚೆಕ್ಕು ಇಲ್ಲದ ಕಾರಣ, ನನಗೆ ಸೇರಿದ ಹಳೆ ಚೆಕ್ಕನ್ನು ನನ್ನ ಗಮನಕ್ಕೆ ತರದೆ, ನನ್ನ ತಾಯಿ ಮನೆಯಲ್ಲಿದ್ದ ನನ್ನ ಚೆಕ್ಕನ್ನು ಪಿರ್ಯಾದುದಾರರಿಗೆ ನೀಡಿರುತ್ತಾರೆ. ಸದರಿ ಚೆಕ್ಕಿಗೆ ನಾನು ಸಹಿ ಮಾಡಿರುವುದಿಲ್ಲ.
19. During the course of examination in chief, the DW.2 has deposed that:
"ದಿನಾಂಕ 22.07.2017 ಶನಿವಾರ ದಿವಸ ಬಾಣಸವಾಡಿ ಪೋಲೀಸರಿಂದ ನನಗೆ ಬರಲು ಕರೆ ಬಂತು, ಅದರಂತೆ ನಾನು ಠಾಣೆಗೆ ಶನಿವಾರ ಸಂಜೆ ಹೋದೆ ನನ್ನನ್ನು ಲಾಕಪ್ ನಲ್ಲಿ ಮರನೇಯ ದಿನ Judgment 13 C.C.No.23308/2018 ಸಂಜೆ 4.00 ಗಂಟೆ ವರೆಗೂ ಕೂಡಿಸಿದ್ದರು. ನಂತರ ಮುನಿಕೃಷ್ಣ ಇನ್ಸಪೆಕ್ಟರ ನನಗೆ ರೂ.1 ಲಕ್ಷ ಹಣ ಪಿರ್ಯಾದಿದಾರರಿಗೆ ಕೊಡಬೇಕು ಇಲ್ಲವಾದರೆ ನನ್ನನ್ನು ಜೈಲಿಗೆ ಕಳುಹಿಸುತ್ತೇನೆಂದು ತಿಳಿಸಿದ್ದರು. ನಂತರ ಉಮೇಶ ಎಂಬ ಪೋಲೀಸರನ್ನು ನನ್ನೊಂದಿಗೆ ನಮ್ಮ ಮನೆಗೆ ಕಳುಹಿಸಿ ಚೆಕ್ಕು ಒಂದು ತರಲು ಹೇಳಿದ್ದರು ಅದರಂತೆ ನಮ್ಮ ಮನೆಗೆ ಹೋದೆ, ಆದರೆ ಆಗ ನನ್ನ ಬಳಿ ಚೆಕ್ಕು ಇರಲಿಲ್ಲ ಅದಕ್ಕೆ ಪೋಲೀಸರು ಬೇರೆಯವರದ್ದು ಚೆಕ್ಕು ಕೊಡಲು ತಿಳಿಸಿದ್ದರು , ಆದರಂತೆ ನಾನು ನನ್ನ ಮಗಳಿಗೆ ಸೇರಿದ ಒಂದು ಚೆಕ್ಕನ್ನು ಉಮೇಶ್ ಅವರ ಬಳಿ ಕೊಟ್ಟೆ ಅವರು ಅದನ್ನು ತೆಗೆದುಕೊಂಡು ಹೋದರು.
In contrary to the above said oral testimony the DW.2 has further deposed that:
" ಪಿರ್ಯಾದಿದಾರರು ಖಾಲಿ ಸಹಿ ಮಾಡದೆ ಇರುವ ಚೆಕ್ಕನ್ನು ನನ್ನ ಮನೆಯ ಬಳಿ ಬಂದು ತೆಗೆದುಕೊಂಡು ಹೋದರು .
20. During the course of cross-examination, the DW.1 has deposed that:
"ಪಿರ್ಯಾದುದಾರರು ಯಾರೆಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ವಿವಾದಿತ ಚೆಕ್ಕನ್ನು ನಾನು ಯಾರಿಗೂ ಕೊಟ್ಟಿಲ್ಲ. ನಿಪಿ-1 ರಲ್ಲಿರುವ ಸಹಿಯು ನನ್ನದಲ್ಲ".
21. If at all, the accused has not given the disputed cheque to the complainant for discharge of legally enforceable debt, what is the necessity for her to take different defence i.e., at one stretch the accused has suggested to PW.1 that, after obtaining loan of Rs.2,84,000/-, as security she had given one signed blank Judgment 14 C.C.No.23308/2018 cheque to the complainant and after repayment of the same, the complainant without returning her cheque had misused the same. At another stretch DW.1 and DW.2 have deposed that in the year 2016 due to demonetization while exchanging old currency notes the complainant had given Rs.2,84,000/- to her father, thereafter he had exchanged the said old notes and returned the same to complainant, there was Rs.50,000/- was left with him, which was also returned to the complainant. In the year 2017, her father had quit his job with complainant. Later, on 22.07.2017 the complainant called her father to Banaswadi Police Station and threatened him to give cheque, as he did not have cheque without her consent, he had given cheque in question to complainant. Further at another stretch DW.1 had deposed that she does not know the complainant, she has not given the disputed cheque to anyone and the signature on Ex.P1 cheque does not belonged to her. In contrary to her oral testimony, DW.2 has deposed at one stretch that due to influence of police, that one Umesh the police came near his house and had collected the cheque belonging to DW.1 from him, in contrary to the above statement at another stretch he has further deposed that complainant went near the house of DW.2 and collected the signed blank cheque from him. The contradictory defences taken by DW.1 and DW.2 creates ambiguity. Further accused has not produced any cogent Judgment 15 C.C.No.23308/2018 evidence to establish that there had been interference by the police nor has produced any complaint against the said Umesh to his higher authority nor has produced any notice issued to said Umesh or to the complainant with respect to above mentioned interference except by filing civil suit as per Ex.P7.
22. Further during the course of cross-examination of PW.1, the advocate for accused has suggested to PW.1 that:
"ನಾನು ಹಣ ಕೊಡುವಾಗ ಆರೋಪಿ ಚೆಕ್ ಕೊಟ್ಟಿದ್ದರು. ರೂಃ3,75,000/- ಹಣ ಕೊಡಬೇಕಾದರೆ ಆರೋಪಿ ಮತ್ತು ಅವರ ತಂದೆ ಇದ್ದರು. ಆರೋಪಿ ಮನೆ ಪಕ್ಕದ ಆಸ್ಪತ್ರೆಯಲ್ಲಿದ್ದರು, ಆದ್ದರಿಂದ ಹಣ ಕೇಳಲು ಬಂದಿದ್ದರು. ರೂಃ3,75,000/- ಹಣವನ್ನು ನಾನು ನಮ್ಮ ಕೆಳಗಡೆ ರಸ್ತೆಯಲ್ಲಿ ಕೊಟ್ಟಿದ್ದೆ. ನನ್ನ ವ್ಯವಹಾರ ಅಕ್ಕ- ಪಕ್ಕದವರಿಗೆ ಗೊತ್ತು".
On perusal of the above testimony of PW.1, it discloses that the complainant gave amount of Rs.3,75,000/- then the accused gave cheque to him at that time the accused and her father were present. The said testimony of PW.1 was denied by the accused. On the other hand the accused in order to substantiate her version has not produced any document before the court. But in support of his contention the PW.1 has relied upon Ex.P7, the certified copy of plaint in O.S.No.25941/2017 on the Judgment 16 C.C.No.23308/2018 file of Hon'ble City Civil Judge at Bengaluru which was filed by accused and her father herein against the instant complainant.
23. On perusal of Ex.P7, in para No.4, 5 and 7, it reads as follows:
"4. The plaintiff and the defendant are the friends and well known to each others on that acquaintance the plaintiff No.1 for his domestic purpose obtained hand loan in the month of November 2016 of Rs.2,84,000/- from the defendant and promising to repay the said hand loan amount of Rs.2,84,000/- to the defendant within 2 years from the date of hand loan i.e., November 2016.
5. The plaintiff submit that at the time of making payment of hand loan Rs.2,84,000/- by defendant to the plaintiff the defendant also agreed to receive the said hand loan amount within 2 years and also executed loan agreement by both the plaintiffs and the defendant.
7. The plaintiffs submits that the defendant is having good influence of political leaders and the police by virtue of the said influence the defendant the said matter is in civil in nature lodged complaint against the plaintiffs on intention to harass and Judgment 17 C.C.No.23308/2018 threaten the plaintiffs even though still time is enough to repay the hand loan amount to the defendant as agreed between both and in the meanwhile with influence of the police the defendant by force and threat collected the blank signed cheque of the 2nd defendant vide cheque No.893900 drawn on Corporation Bank, Koramangala Branch, Bengaluru, and by force of the said Banaswadi Police have collected signature in the blank papers of the plaintiffs on 20.07.2017 at Banaswadi police, Bengaluru".
24. That on perusal of Ex.P7, it clearly establishes that the accused and her father have availed loan from the complainant and towards discharge of their liability, the accused has issued the disputed cheque to the complainant. Meaning thereby, the accused has issued the cheque in question to the complainant towards repayment of loan amount.
25. Another aspect to be noted is that, it is the defence of accused that, even though her father has repaid the loan amount of Rs.2,84,000/- to complainant and the complainant had misused the security cheque which was issued by accused and filed this false case against the accused. In order to substantiate her contention, the accused had cross-examined the PW.1, but nowhere PW.1 Judgment 18 C.C.No.23308/2018 has admitted that the accused had repaid amount of Rs.2,84,000/- to him. But it is the case of complainant that the accused and her father had availed loan of Rs.3,75,000/- from him in the month of November 2016 and agreed to repay the same within six months along with interest at the rate of 2% and towards discharge of their liability, the accused has issued the disputed cheque to the complainant. Further in order to establish the above said defence of accused, the accused has not produced any cogent and convincing document before the court. Absence of such documentary evidence creates ambiguity in the defence of accused.
26. During the course of cross-examination of PW.1, the advocate for accused has suggested to PW.1 that the accused has not signed Ex.P1-cheque, the complainant himself has created the signature of accused on Ex.P1 cheque, the said suggestion was denied by the PW.1. When PW.1 has denied the above defence of accused, then the burden lies upon accused to disprove the same. In this regard, the accused had not initiated any steps for obtaining expert opinion nor examined the concerned bank manager in order to ascertain the genuinity of signature. In the absence of such material evidence before the court, this creates ambiguity.
Judgment 19 C.C.No.23308/2018
27. If really, the accused has not issued the questioned cheque to the complainant towards discharge of legally enforceable debt and if the said cheque was given by accused to complainant as security at the time of obtaining loan of Rs.2,84,000/- and after repayment of said amount without returning the complainant has misused the said cheque by filing of this case against accused, but on record, there is absolutely no proof to show that the accused has obtained only a sum of Rs.2,84,000/- from complainant and has repaid the said amount, this creates ambiguity in the defence of accused.
28. Further if really, the accused has not issued the questioned cheque to the complainant for discharge of legally enforceable debt and if the said cheque was misused by the complainant, definitely, she would have taken legal action against the complainant, but in the instant case there is no legal action taken by the accused against the complainant. Further the accused has also not given any intimation to the bank to stop the payment and also with regard to misuse of her cheque. Another interesting aspect to be noted that, the bank authority has given endorsement as "Drawers Signature Differs".
29. That on perusal of Ex.P7 and oral testimony of DW.2, clearly establishes that the accused has issued disputed cheque to the complainant. Therefore, meaning Judgment 20 C.C.No.23308/2018 thereby accused is not disputing the issuance of cheque to complainant. But only contention of accused is that, the cheque in question was misused by complainant. In order to substantiate her version she has neither produced ocular or documentary evidence, nor has lodged any complaint against the complainant nor the police either for obtaining cheque by threatening nor for having misused the cheque. In the absence of such material evidence before the court, it is difficult to believe the version of accused that she has not issued the cheque in question to the complainant for discharge of legally recoverable debt.
The advocate for complainant has relied upon the decision reported in 2019 0 Supreme (Kar) 1304 :: 2020 1 AIR (Kar)(R) 230, wherein the Hon'ble High Court of Karnataka was pleased to held that:-
"It is well settled proposition of law that when once the petitioner/accused admits the signature and that the blank cheques were obtained by the complainant, as per Section 20 of the N.I.Act, if any person signs and delivers the stamp paper of the cheque or any negotiable instrument, thereby he gives authority to the holder thereon to make or complete the said cheque".
Judgment 21 C.C.No.23308/2018
30. I have gone through the said decision, wherein the Hon'ble High Court of Karnataka held that, if any person signs and delivers the stamp paper of the cheque or any negotiable instrument, he gives authority to the holder thereon to make or complete the said cheque. In the instant case, the accused had admitted that the issuance of disputed cheque to the complainant. As per the above decision, cheque or instrument which inchoate given to the holder in due course then the giver is permitted to subscribe the instrument. Under these circumstances as admittedly accused has given cheque she cannot take a contention that she has not written on the cheque. However, she is not disputing that Ex.P1 does not belong to her.
31. It is the contention of the accused that, the cheque was misused by PW.1, which was given for security at the time of obtaining loan of Rs.2,84,000/- from complainant, same was misused by the complainant and had filed this false case, thereby it does not create any liability, therefore the instant case is not maintainable, in this regard this court would rely on the decision reported by Hon'ble Apex Court in Appeal No.123/2021, LL 2021 SC 75, between M/s. Kalamani Tex/P.Balasubramanian, it has held that :
"Even a blank cheque leaf would attract presumption under section 139 of the Judgment 22 C.C.No.23308/2018 Negotiable Instruments Act, when the signature is voluntarily signed is admitted".
32. At this juncture this court is relying upon a decision reported in (2018) 8 Supreme Court Cases 165 in the case between Kishan Rao V/s Shankargouda, it is held that :
"A. Debt, Financial and Monetary Laws Negotiable Instruments Act, 1881S.139 - Presumption under - When may fail Ingredients and scope of S.139 Principles summarized B. Debt, Financial and Monetary Laws Negotiable Instruments Act, 1881 Ss 138 and 139 - Dishonour of cheque Presumption in favour of holder of cheque under S.139 Not rebutted by accused by leading any evidence - No sufficient ground mentioned by High Court to enable it to exercise its revisional jurisdiction for setting conviction aside Conviction under S.138, restored."
33. This court relies upon another decision reported by Hon'ble Apex Court in 2022 SCC Online SC 1131 in Crl.Appeal.No.1233-1235/2022 (Arising out of Slp Crl.Nos.7430-7432/2022 @ D.No.13470/2019 between P.Rasiya V/s Abdul Nazer & Another has held that :
"Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under Section 138 of the N.I. Act, the accused preferred three different Revision Applications before the High Court. By the Judgment 23 C.C.No.23308/2018 impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary."
34. I have gone through the said decisions, wherein the Hon'ble Apex court held that, accused may adduce evidence to rebut presumption under S.139, but mere Judgment 24 C.C.No.23308/2018 denial regarding existence of debt nor with respect to the source of income of complainant shall not serve any purpose. In the event accused is able to raise a probable defence which creates doubt with regard to existence of a debt or liability, the presumption may fail. Section 139 of the Negotiable Instruments Act provides for drawing the presumption in favour of holder.
35. At this juncture, it is worthwhile to refer Section 139 of NI Act, which reads as under: Section 139 of Negotiable Instruments Act:- Presumption in favour of holder ; It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
36. On reading of Section 139 of the NI Act, it is very much clear that, there shall be a presumption, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. The presumption will have to be drawn that, every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Once the complainant discharges the burden of proving the Judgment 25 C.C.No.23308/2018 instrument, then the burden shifts upon the accused to rebut the same.
37. Further, until the contrary is proved as provided under Section 118 of NI Act, presumption will have to be drawn in favour of complainant. In order to rebut the contentions taken by the complainant, accused may adduce direct evidence to prove that, there is no debt or liability to be discharged by him. To disprove the presumptions, accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist. But in the present case, accused utterly failed to disprove the presumptions. Therefore, this court is of considered opinion that, there are no contradictions or variances in the contention taken in the complaint and evidence of PW1. Moreover, accused has neither produced ocular or documentary evidence to rebut the evidence of PW.1 and to disprove the liability and issuance of cheque. Hence, the law laid down by the Hon'ble Apex court in the aforesaid decision is aptly applicable to the present case on hand.
38. This court relies on the decision reported in 2008(2) Kar L.J 276 by Hon'ble High Court of Karnataka between PKN Caps & Polymers, Bangalore V/s K.Vishnu Prasad has held that:
Judgment 26 C.C.No.23308/2018
"NEGOTIABLE INSTRUMENTS ACT 1881,
Section138- The respondent herein filed the I.A. after recording the evidence of parties i.e., at a belated stage. The appellant herein filed a detailed objection. In fact, the objection filed by the appellant discloses that the complaint for an offence punishable under Section 138 of the N.I.Act. Therefore, when once the documents are admitted in evidence, without the objections of the opposite party when once the Court rightly or wrongly admits the documents, the admissibility of these documents cannot be questioned. Therefore, it could be said that the respondent fails to place proper rebuttal evidence to hold that the cheques issued by him was not for legally enforceable debt or otherwise. When the respondent admits about the issuance of the two cheques and the receipt of the demand notice and dishonour of the cheques, he cannot now contend and say that it is not for legally enforceable debt."
In the instant case accused counsel during the cross- examination of PW.1 has putforth the suggestion that PW.1 has misused the cheque issued by accused as security at the time of obtaining loan amount of Rs.2,84,000/-, Judgment 27 C.C.No.23308/2018 meaning thereby accused admits the issuance of cheque to the complainant and has failed to produce cogent evidence to substantiate that she and her father have obtained loan of Rs.2,84,000/-.
39. Another decision reported by Hon'ble Apex Court in 2021(1) KCCR 545 (SC) between M/s. Kalamani Tex and others V/s P.Balasubramanian it is held that :
"D. NEGOTIABLE INSTRUMENTS ACT, 1881- Sections 118 and 138-Presumption-Reverse onus- Burden of proof shifts on the accused.
Preponderance of probabilities. Possibilities. Discussed, Accused not leading proper evidence. Accused has to be convicted. Order of conviction confirmed."
It is settled preposition of law that proving of the case depends upon the preponderance of probability. Therefore, the more probabilities lies in favour of the complainant in the present case on hand. Therefore, under these circumstances the presumption under Section 138 of Negotiable Instrument Act can safely be drawn in favour of the complainant. Under these circumstances, this court is of opinion that complainant has successfully established and proved beyond all reasonable doubt that there is legally enforceable debt due to complainant payable by the accused, in order to realize the antecedent/legally Judgment 28 C.C.No.23308/2018 enforceable debt the accused has given a cheque in question Ex.P1. Accordingly, point No.1 is answered in the Affirmative.
40. Point No.2: It is the specific contention of the complainant that the accused has given cheque in question Ex.P1 on 27.02.2018 which has been presented to the bank in time. The said cheque Ex.P1 has been returned to the complainant unpaid due to "Drawers Signature Differs" on 09.03.2018. The complainant has to issue legal notice to the accused within 30 days from the date of returning of cheque. The complainant had issued legal notice to accused on 05.04.2018 which is also in time, inspite of service of the same the accused has not issued reply notice. In the present case the complainant has filed the complaint which is well within time. Therefore, under these circumstances this court is of opinion that the complainant has successfully complied the provisions of Section 138 of N.I.Act. Therefore, the point No.2 is answered in the Affirmative.
41. Another aspect to be noted is that, the defence of accused that, the legal notice sent by complainant was not served to her, regarding at the time of sending demand notice by the complainant, she was residing in her husband's house and not in the address of Ex.P5, hence the demand notice sent by complainant was not served on Judgment 29 C.C.No.23308/2018 her. But the complainant has denied the same and has stated that the demand notice was sent by him to the correct address of accused. In support of his contention, the complainant has produced Ex.P7 the Certified copy of plaint, which was instituted by the accused and her father against the complainant herein.
42. On careful perusal of shara made by postal authority at Ex.P5, it appears that the notice sent by complainant through R.P.A.D came to be returned with a shara "Always Door Lock". The said shara made by postal authority was not denied by the accused. In order to disprove the same, the accused had not taken any steps neither to produce documents nor examined the concerned postal authority in order to ascertain the genuinity. In the absence of such material evidence before the court, this creates ambiguity.
43. Further in support of his contention, the PW.1 has produced Ex.P7. On perusal of the Ex.P7 cause title address as well as the address mentioned in legal notice and RPAD cover, they corroborate with each other. It appears that the complainant has sent the demand notice to the correct address of accused. Therefore, the accused cannot say that the legal notice was not served on her and she does not aware about the notice sent by the complainant.
Judgment 30 C.C.No.23308/2018 The advocate for complainant has relied upon the decision reported in 2020 0 Supreme (Kar) 1029::2020 4 AIR (Kar) (R) 513 in the case of Chikkahonnaiah V/s Basamma @ Bindu, wherein the Hon'ble High Court of Karnataka has held that:
"Section 138 of the N.I.Act mandates giving of a legal notice but it does not mandate that the said legal notice must be actually and physically placed in the hands of the accused. When a legal notice has been sent with the correct complete and full address of the accused with appropriate postage and when the said notice was tendered to the accused, if the accused fails to accept the notice and thus fails to claim the notice sent to him under registered post, there is deemed served of notice upon him."
This court relies on the decision reported in 2006 (4) KCCR 2375 in the case of Mr.Umraz Khan and others V/s. Mr.A.Jameel Ahmed and another, wherein, Hon'ble High Court of Karnataka was pleased to held that:
"Once there is proof of posting of notice to correct address, it is deemed to have been served, the judgment of acquittal is bad in law".
44. On going through the above said dictums and invoking Section 27 of General Clauses Act, it is also made clear that if the notice was sent with correct address of the accused, it is suffice to draw the inference that the notice was duly served on the accused. If the accused failed to Judgment 31 C.C.No.23308/2018 accept the notice and failed to claim the notice sent to her under registered post, there is deemed service of notice upon her. In the present case on hand, it appears that the address mentioned in the cause title of complaint, legal notice and RPAD cover at Ex.P5 are one and the same. From which, it made clear that the complainant has complied proviso (b) of Section 138 of Negotiable Instruments Act.
45. So for as the quantum of the sentence is concerned this is being tried as summary trial as contemplated under Section 143 of Negotiable Instruments Act, 1881 and hence, the accused need not be heard on the sentence. It is pertinent to note that the case lodged against accused is under special law and the benevolent provision of the Probation of Offenders Act will not be made applicable.
46. Point No.3 :- In view of the above discussion and foregoing reasons this court proceed to pass the following;
ORDER Acting under Section 255(2) of Cr.PC the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act 1881.
Accused is hereby sentenced to pay fine of Rs.4,50,000/- for the offence punishable under Section 138 of Negotiable Instrument Act 1881, Judgment 32 C.C.No.23308/2018 in default to undergo Simple Imprisonment for a period of three months.
Acting under Section 357(1)(b) of Cr.PC., a sum of Rs.4,45,000/- out of the fine amount shall be paid to the complainant as compensation.
The remaining sum of Rs.5,000/- out of the fine amount shall be remitted to the state towards the expenses of the state.
The bail bond and surety bond stands canceled and sureties discharged.
Supply the free copy of the Judgment to the accused.
(Dictated to Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 10 th day of July -
2025) Digitally signed
by THENDRALL
THENDRALL K
K Date: 2025.07.11
18:07:47 +0530
(THENDRALL.K)
XVIII Addl. Chief Judicial Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Ajay Kumar.K List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P2 : Return memo Ex.P3 : Office copy of legal notice Judgment 33 C.C.No.23308/2018 Ex.P4 : Postal receipt Ex.P5 : Unserved RPAD cover Ex.P6 : CC of sale deed Ex.P7 : CC of plaint Ex.P8 : Statement of account
List of Witnesses examined on behalf of the defence:
DW.1 : Sandhya DW.2 : Muniswamy Saravana
List of Exhibits marked on behalf of defence:
- Nil -
XVIII Addl. Chief Judicial Magistrate, Bengaluru.
Judgment 34 C.C.No.23308/2018
12.06.2025.
Comp -
Accd -
For Judgment
Case called out.
Complainant and Accused absent. No
representation from both side counsels.
Call for Judgment by: 13.06.2025.
XVIII Addl. Chief Judicial Magistrate, Bengaluru.
10.07.2025.
Comp -
Accd -
For Judgment Case called out.
Complainant and Accused absent.
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.PC the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act 1881.
Accused is hereby sentenced to pay fine of Rs.4,50,000/- for the offence punishable under Section 138 of Negotiable Instrument Act 1881, in default to undergo Simple Imprisonment for a period of Three months.
Judgment 35 C.C.No.23308/2018 Acting under Section 357(1)(b) of Cr.PC., a sum of Rs.4,45,000/- out of the fine amount shall be paid to the complainant as compensation.
The remaining sum of Rs.5,000/- out of the fine amount shall be remitted to the state towards the expenses of the state.
The bail bond and surety bond stands canceled and sureties discharged.
Supply the free copy of the Judgment to the accused.
XVIII Addl. Chief Judicial Magistrate, Bengaluru.
Notice purpose General Clauses Act, 1897
27. Meaning of service by post Where any 13[Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
Judgment 36 C.C.No.23308/2018
11.07.2025.
Comp -
Accd -
For Judgment
Case called out.
Complainant and Accused absent. No
representation from both side counsels.
Call for Judgment by:18.07.2025.
XVIII Addl. Chief Judicial Magistrate, Bengaluru.