Bangalore District Court
Vardamma vs Uma on 25 September, 2025
KABC030829782022
Presented on : 07-11-2022
Registered on : 07-11-2022
IN THE COURT OF XXI ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
Dated this the 25th day of September 2025
PRESENT
Sri. Dinesh B.G, B.Com.,LL.M.
XXI ACJM, Bengaluru
CRIMINAL CASE NO.34509/2022
Complainant : Smt.Vardamma,
w/o.Venkatesh.C, aged about 37
years, R/at.No.69, Near Gangamma
temple, Amruthanagara main road,
Anjanapura, Bangalore -560062.
(By Sri.RBS., Adv)
V/s
Accused : Smt.Uma,
w/o.Harish, aged 34 years, R/at.No.22,
1st cross, Anjanapura main road,
Opp.Bharath Petroleum bunk,
Avalahalli, Bengaluru-560108.
(By Sri.SR, Adv.)
JUDGMENT
(C.C.No.34509/2022 Judgement) 2 The accused has been tried for the offence punishable U/s 138 of Negotiable Instrument Act.
2. The brief case of the complainant is that:-
The accused being known person had borrowed hand loan of Rs.5 lakhs on 18/1/21 and promised to repay the said amount within a year. After 1 year, when the complainant approached her, the accused postponed the same on one or the other reasons and finally issued a postdated cheque bearing no.276670 dtd: 03/09/2022 for Rs.5,00,000/- towards discharge of said loan amount in the 1st week of March 2022. When she presented the said cheque for encashment through her banker it returned with an endorsement 'Insufficient funds' on 6/9/22. So, she got issued the notice on 4/10/22. Despite service of said notice, the accused has not paid the cheque amount. Hence, she is constrained to file the complaint.
3. The cognizance of the offence punishable U/s.138 of Negotiable Instrument Act having been taken on the basis of sworn statement filed in the form of affidavit and documents at Ex.P.1 to P.5, the process came to be issued against accused. In response to the summons, the accused appeared through her Advocate and was enlarged on bail. Substance of accusation was (C.C.No.34509/2022 Judgement) 3 framed, read over and explained to accused; who having pleaded not guilty has claimed to be tried.
4. The affidavit filed in lieu of sworn statement has been treated as evidence in view of direction issued by Hon'ble Apex court in the case of Indian Bank Association and Others Vs.Union of India 2014 (5) SCC 59 and got the documents marked at Ex.P.1 to P.9.
5. Accused has been examined U/s 313 of Crpc after incriminating circumstances appearing against accused being read over and explained. She having denied the same has examined herself as DW 1 and got the documents marked at Ex.D1 to 4.
6. Having heard both side and having gone through the complaint, evidence and materials on record the following points arise for consideration of the court.
1. Whether complainant has proved that accused issued a cheque bearing no.276670 dtd: 03/09/2022 for Rs.5,00,000/- drawn on State Bank of India, Konanakunte branch, Bengaluru, in her favour towards discharge of legally recoverable debt/liability and thereby she has committed the offence punishable U/s 138 of Negotiable Instrument Act?
(C.C.No.34509/2022 Judgement) 4
2. What order?
7. My answers to the above points are as under:-
Point No.1 :- In the Affirmative Point No.2 :- As per final order for the following:-
REASONS
8. POINT NO.1:- PW1 having reproduced the avernments of the complaint, has placed reliance on cheque bearing no.276670 dtd: 03/09/22 for Rs.5 lakhs - Ex.P.1, bank memo - Ex.P.2, legal notice dtd: 4/10/22 - Ex.P.3, postal receipt - Ex.P.4, postal acknowledgment - Ex.P.5, photographs - Ex.P.6 and 7, certificate u/s.65B of Indian evidence act - Ex.P.8. The cheque was presented within its validity period and same came to be dishonoured for want of sufficient funds on 6/9/22. The legal notice was issued on 4/10/22 within 30 days from the date of receipt of intimation from the bank. The demand notice was served on the accused on 6/10/22. Service of demand notice has not been disputed by the accused. Complaint has been filed on 7/11/22 within its limitation. Thus, the requirements as contemplated u/s.138 of N.I.Act are satisfied with.
9. In the case of Rajesh Jain v/s.Ajay Singh AIR 2023 SC 5018, Hon'ble Apex court having referred to the (C.C.No.34509/2022 Judgement) 5 case in Bir Singh Vs.Mukesh Kumar has held that mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption. As soon as the complainant discharges the burden to prove that the cheque was issued by the accused for discharge of debt, the presumptive device u/s.139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential 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.
10. Further Hon'ble Apex court having referred to the case in Rangappa Vs.Mohan (AIR 2010 SC 1898), has held that the standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of preponderance of probabilities, similar to a defendant in a civil proceeding. Having referred the case in Basalingappa (C.C.No.34509/2022 Judgement) 6 Vs.Mudibasappa AIR 2019 SC 1983 and Kumar Exports Vs.Sharma carpets (2009) 2 SCC 513, Hon'ble Apex court has further held that in order 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 legally enforceable debt or liability can be contested. The words until the contrary is proved occurring in sec.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 the option to ask the court to consider the non existence of debt or liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt or liability did not exist.
11. In view of the decisions cited above, it becomes clear that once it is established that the cheque relates to the bank account of the accused and signature is of the accused, presumptions as provided u/s.139 and 118 of N.I.Act have to be drawn in favour of the complainant that the cheque was issued towards discharge of liability or debt. Since accused has admitted that the cheque - Ex.P.1 pertains to his bank account besides her signature, in view of the aforesaid settled position enunciated in the above said decisions, the presumptions have to be drawn in favour of the complainant that Ex.P.1 (C.C.No.34509/2022 Judgement) 7 was issued in favour of the complainant towards discharge of her liability as claimed by the complainant. The burden shifts on the accused to rebut the said presumptions that there existed no such liability.
12. The defence of the accused could be seen in cross examination and evidence of DW 1. It is the version of the DW 1 that the complainant is known to her for past 4 years. Complainant was working in her tailoring shop with the salary of Rs.15,000/- per month. The complainant was looking after her cheques in order to pay the rent of the shop. She handed over the complainant 3 cheques towards payment of shop rent and the complainant has misused the said cheque. DW 1 has further stated that she lent a sum of Rs.3 lakhs to the complainant for educational expenses of her children. When she demanded the complainant for repayment of the said loan amount, she left the job. She lodged the complaint before police, wherein the complainant appeared and assured to repay the loan of Rs.3 lakhs. After 2 days of the said complaint, the complainant presented the cheque. DW1 has relied upon an acknowledgment issued by Thalaghattapura police - Ex.D1, photographs - Ex.D2 and 3 and certificate u/s.65B of Indian Evidence Act - Ex.D.4.
(C.C.No.34509/2022 Judgement) 8
13. It is not in dispute that the complainant and the accused are known to each other for more than 2 years and the complainant was doing business of modicare products besides tailoring work. It is not in dispute that the accused was also doing tailoring work and she was running boutique shop in the name 'Softshine designer boutique'. The complainant disputes the fact that she was working in the said shop of accused. PW 1 has denied that as she was working under the accused in her shop, her name has been mentioned on the name board of the shop of the accused. It is the version of the complainant that as she and accused were doing the business of tailoring, she used to visit her shop frequently and as such, the accused mentioned her mobile number on her tailoring shop advertisement as appearing in Ex.D.2 & 3.
14. As already stated supra, since the accused admits the cheque and signature therein, burden lies on her to prove non existence of alleged debt and issuance of cheque to discharge the said debt by probabalizing her defence. The first defence of the accused is in relation to the financial capacity of the complainant to lend such huge amount. The complainant claims that she lent the accused a sum of Rs.5 lakhs on 18/1/21 by withdrawing the amount from her bank account. She has mainly (C.C.No.34509/2022 Judgement) 9 relied upon the statement of account pertaining to her bank account - Ex.P.9, which is evident to show that the complainant had withdrawn a sum of Rs.6 lakhs on 18/1/21. The balance in the account of the complainant as on the date of lending of loan amount and the transaction as appearing in statement of account would be sufficient to show that the complainant had financial capacity to lend such amount. It is elicited in the cross examination of PW 1 that the complainant paid a sum of Rs.2 lakhs to one Papanna on 18/1/20 and in all she paid him a sum of Rs.6 to 7 lakhs and they had financial transaction between them. However, PW1 denies the suggestion that the amount of Rs.5 lakhs being withdrawn on 18/1/21 was paid to said Papanna and said amount was not paid to the accused. Further, in cross examination PW1 has consistently stated that as she was running Modicare shop and tailoring shop, she had monthly income of Rs.1 lakh and her husband was doing real estate business and earning Rs.50,000/- per month. Per contra, the accused has not produced any materials to show that the complainant had no financial capacity to lend such amount and the amount withdrawn on 18/1/21 was infact paid to one Papanna. In the absence of any evidence to contrary, the version of the complainant coupled with statement of account can be (C.C.No.34509/2022 Judgement) 10 accepted to hold that she had financial capacity to lend such amount as on the date of loan transaction.
15. The main defence of the accused is that the complainant was working in her tailoring shop on a monthly salary of Rs.15,000/- and the cheques which were handed over to the complainant to pay shop rent have been misused. As already stated supra, the complainant has denied of working in the tailoring shop of accused. In cross examination, DW1 admits that she & complainant were close friends and there was transaction between her and the complainant in relation to modicare products and there was financial transaction between her and the complainant. Further, DW1 admits her presence in the modicare center of complainant after she was confronted two photographs - Ex.P6 and 7. DW 1 denies that she was working under complainant in the said shop, however, she states that she had visited the shop of the complainant to purchase modicare products. When the complainant was running modicare shop besides running boutique shop and when the accused admits that they were close friends and she used to visit the shop of the complainant to purchase modicare products and they had financial transactions, the version of the accused that complainant was working in her tailoring shop for 5-6 years and she was paying salary of (C.C.No.34509/2022 Judgement) 11 Rs.15,000/- per month could hardly be believed. Even otherwise, the accused has not made available either any oral or documentary evidence to prove the said fact. Merely because mobile number of complainant is displayed on the name board of the shop of the accused, it does not mean that the complainant was working in her shop. In the absence of evidence to show that the complainant was working in her shop, the version of the complainant that due to the close friendship between them and as both were in the same tailoring profession, the accused displayed her mobile number on the name board of the shop can be accepted.
16. When the accused has not been able to prove that the complainant was working in her shop, question of complainant paying the rent of the shop to its owner on behalf of accused does not arise. In cross examination DW 1 states that she used to pay the rent through online and cash and she has bank statement to that effect. But the accused has not produced any such statement to show the same. The accused could have chosen to examine the owner of the shop or could have produced statement or other materials to show that she used to pay rent of the shop through cheques. When the rent of the shop was being paid through online and cash, question of issuance of cheque towards payment of the rent of the (C.C.No.34509/2022 Judgement) 12 shop does not arise. When rent of the shop was not being paid through cheque, the question of handing over the cheques to the complainant does not arise. Even other wise, the accused has not produced any cogent evidence to show that 3 cheques being handed over to the complainant towards payment of rent have been misused by the complainant. It is pertinent to note that DW1 states in her examination in chief that she handed over 3 cheques to the complainant towards shop rent, whereas in her cross examination she states that she handed over one cheque. If the version of DW 1 elicited in cross examination is believed, her version in examination in chief that she handed over 3 cheques have to be eschewed from consideration. Admittedly, the accused has not chosen to reply to the demand notice. The accused could have taken aforesaid contention regarding misuse of the cheques by way of reply to the notice. Even she has not stated the same when her statement has been recorded u/s.313 of Cr.P.C., For the first time before court in the cross examination of PW1 said defence could see daylight. Anyhow, said defence of DW 1 has not been supported by any evidence. Even the accused has failed to elicit the same in the cross examination of PW1 though the latter has been subjected to cross examination in sufficient length. Thus, the accused has failed to explain as to how the cheque in question has passed to (C.C.No.34509/2022 Judgement) 13 the complainant. In the absence of cogent and convincing evidence to show that the cheque in question handed over to the complainant when the complainant was working in her shop towards payment of rent has been misused to file the present case, the presumptions continue to survive and exist that the cheque in question was issued for consideration and in discharge of the debt.
17. It is the further defence of the accused that the complainant borrowed a sum of Rs.3 lakhs from her to meet the educational expenses of her children and failed to repay the same. When she demanded for repayment of the same, the complainant stopped coming to the shop, which prompted her to lodge complaint before police, wherein the complainant admitted and assured to pay the said amount. The accused has relied upon an acknowledgment - Ex.D.1, which shows that the accused lodged complaint against the complainant before Thalaghattapura police on 2/9/22 alleging that the complainant borrowed hand loan of Rs.3 lakhs from her to open boutique shop and when she demanded for repayment of the same, the latter abused and threatened her. In the cross examination dtd: 16/12/23, although the complainant admits lodging of said complaint before Thalaghattapura police and she visiting the police station and affixing her signature on a statement, denies that she (C.C.No.34509/2022 Judgement) 14 gave statement before police acknowledging the debt. Rather she asserts that since she used to visit the shop of accused demanding repayment of the loan amount, accused lodged complaint against her before police. In the cross examination dtd: 6/2/24, PW1 denies the same suggestion that she gave statement before police admitting the loan amount allegedly borrowed from the accused and she presented the cheque in question on the next day of the complaint lodged by the accused.
18. In the light of aforesaid assertions of the PW 1 regarding the complaint - Ex.D1, the admission on the part of PW1 elicited in cross examination dtd: 2/3/24 that she presented the cheque in question and got it bounced because of the complaint lodged by the accused, can be termed to be stray sentence. If evidence of PW1 is considered in its entirety, said admission on the part of the PW1 cannot be considered as an admission to hold that the complainant has misused the cheque and filed the present case as a counter to the complaint lodged by the accused. As a matter of fact, the accused has not produced any such statement allegedly made by the complainant before police admitting the loan of Rs.3 lakhs allegedly borrowed from her. It is also not coming forth as to what action has been taken by the police in response to her complaint. It is pertinent to note (C.C.No.34509/2022 Judgement) 15 that in her examination in chief it is the version of the DW 1 that the complainant borrowed hand loan of Rs.3 lakhs from her to meet the educational expenses of her children ; whereas in Ex.D.1 it is alleged that she borrowed loan of Rs.3 lakhs to open a boutique center. The alleged story of borrowing of hand loan of Rs.3 lakhs as deposed to in her examination in chief is in contradiction with that of her allegations made before police. If the version of the DW 1 that the alleged loan of Rs.3 lakhs was borrowed by complainant to meet educational expenses is believed to be true, her allegation before police that said loan was borrowed to open boutique shop has to be disbelieved. In fact, the accused has not placed any iota of evidence to prove that the complainant had borrowed a sum of Rs.3 lakhs from her even if purpose for which loan allegedly borrowed is ignored. If really the complainant had borrowed the loan of Rs.3 lakhs and misused the cheque, soon after filing of the complaint before police, the accused could have replied to the demand notice and she could have taken necessary action against the complainant. It may be mentioned that there is no whisper about alleged misuse of cheque in complaint lodged before Thalaghattapura police. Nothing prevented the accused to mention about alleged misuse of cheque when she lodged complaint before police. The accused has failed to bring on record any evidence or materials to (C.C.No.34509/2022 Judgement) 16 probabalize any of the defences taken in cross examination of PW1 as well as in her examination in chief and thereby, failed to rebut the presumptions.
19. It is relevant to refer to the decision in the case of A.V.Pooojappa Vs. Dr.S.K.Vagdevi Crl.Rev.Pet No.13/20, dtd: 4/6/25 wherein Hon'ble High court of Karnataka has held that while imposing the punishment, the courts are required to examine the following aspects :
1. The quantum of the loan
2. The defence taken by the accused, more particularly whether he has taken a false defence and failed to prove the same.
3. Whether the accused has dragged on the matter unnecessarily and thereby delayed the disposal of the case at the stage of trial, appeal, revision and before the Hon'ble Supreme Court.
4. Whether the transaction relates to business between the parties or the parties are business class who would have utilized the amount for their business and flourish, or
5. In other cases, the returns the loan amount would have brought, if it was kept in a fixed deposit in a nationalised bank etc,
20. In another decision in the case of M/s.Banavathi and company Vs.Mahaveer Electromech Pvt, Ltd., and others Crl.R.P.996/2016, Hon'ble High court of (C.C.No.34509/2022 Judgement) 17 Karnataka has directed the trial courts to pass an order to pay future interest @ 9% on the compensation amount payable to the complainant by fixing time of one/two months to deposit the compensation amount so that even if the matter is challenged before Sessions court in appeal and Hon'ble High court of Karnataka in revision, the interest of the complainant will be protected. Keeping in mind the principles laid down in the above decisions and having regard to the facts and circumstances of the case, this court is of the considered opinion that the accused should be directed to pay the compensation to be awarded out of the fine amount to the complainant with interest at 9% per annum from the date of cheque till the compensation amount is deposited. Hence, I answer point No.1 in the affirmative.
21. POINT NO.2:- In the result, I proceed to pass the following:-
ORDER Acting U/s.255(2) of Cr.P.C the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused shall pay a fine of ₹5,10,000/- and in default of payment of fine amount, she shall undergo simple imprisonment for a period of six months.
(C.C.No.34509/2022 Judgement) 18 Out of said fine amount, ₹5,00,000/-
shall be paid to the complainant as compensation and remaining amount of Rs.10,000/- shall be paid to the state towards expenses as contemplated U/s 357(1) of Crpc.
The complainant is entitled to the compensation amount of Rs.5,00,000/- with interest at 9% per annum from the date of cheque till realization.
The accused shall deposit the said compensation amount with interest @ 9% per annum as ordered above within a month.
The bail bond and surety bond stand canceled.
Office to furnish certified copy of the Judgment to the accused free of cost forthwith.
(Dictated to stenographer, transcribed by her, revised by me and then pronounced in open court on this the 25th day of September 2025) (Sri. Dinesh B.G) XXI Addl.Chief Judicial Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR COMPLAINANT:
P.W.1 - Smt.Varadamma LIST OF WITNESSES EXAMINED FOR ACCUSED: D.W.1 - Smt.Uma LIST OF DOCUMENTS EXHIBITED FOR COMPLAINANT:
(C.C.No.34509/2022
Judgement)
19
Ex.P.1 Cheque
Ex.P.2 Bank endorsement
Ex.P.3 Legal notice
Ex.P.4 Postal receipt
Ex.P.5 Postal acknowledgment
Ex.P.6-7 Photographs
Ex.P.8 65B certificate
Ex.P.9 Statement
LIST OF DOCUMENTS EXHIBITED FOR ACCUSED:
Ex.D1 Acknowledgment
Ex.D2-3 Photographs
Ex.D4 65B certificate
(Sri. Dinesh B.G)
XXI Addl.Chief Judicial Magistrate, Bengaluru.