Bangalore District Court
M/S Chinmaya Clusters vs Uma K S on 5 July, 2025
1
Crl.A.No.758/2024
KABC010107522024
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU (CCH-56)
DATED: THE 5TH DAY OF JULY, 2025
PRESENT
SRI. MOHAN PRABHU, M.A., LL.M.
LV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
CRL.A.NO.758 / 2024
APPELLANT/S M/S CHINMAYA CLUSTERS,
REP. BY PROP: PRAVEEN B.M.
AGED ABOUT 38 YEARS,
NO.47/4, 2A, 1ST MAIN, 1ST CROSS,
CHAMUNDESHWAI LAYOUT,
VIDYARANYAPURA,
BENGALURU.
(BY SRI.PRABHAKARA P.M..,ADV.)
Versus
RESPONDENT SMT.UMA K.S. W/O K.N. SURESH
AGED ABOUT 47 YEARS,
NO.108-A, 2ND MAIN ROAD,
3RD CROSS, BAPUJINAGARA,
BENGALURU - 562 157.
(BY SRI.L.N. ADV.)
2
Crl.A.No.758/2024
JUDGMENT
This appeal is filed under Section 374(3) of Cr.P.C. by the accused against the judgment of conviction dated 06.04.2024 passed by the learned XVIII ACMM, Bengaluru in C.C.No.27646/2019 for the offence punishable under Section 138 of Negotiable Instruments Act [for short 'N.I. Act'] .
2. The parties are referred to their rank before the trial court.
3. The case of the complainant in brief is stated as below.
The complainant and the accused are known to each other for the past 2 years of this complaint. The accused approached the complainant's husband for paying vehicle insurance premium amount of Rs.57,793/- in order to pay insurance amount. Hence, the complainant's husband Suresh has paid a sum of Rs.57,793/- by using his Credit Card No.4412xxxxxxxx4005 dated 29.04.2019. At the time of paying insurance amount, the accused assured the complainant that he will repay the said amount of Rs.58,000/- within 3 months, but the accused has failed to 3 Crl.A.No.758/2024 repay the said amount of Rs.58,000/- within 3 months as agreed upon. Hence, the complainant approached the accused on several occasions and demanded for repayment of said amount. Hence, towards repayment of insurance amount and discharge of valid debt to the complainant the accused has issued cheque dated 01.06.2018 for Rs.58,000/- drawn on Canara Bank, Bengaluru in favour of the complainant. When the complainant has presented the said cheque for encashment, the cheque dishonoured and returned with an endorsement 'insufficient funds' on 28.06.2019. After dishonour of cheque the complainant intimated and requested the accused to pay the cheque amount, but the accused has failed to repay the cheque amount to the complainant. Thereafter, the complainant got issued legal notice dated 25.07.2019 to the accused by way of registered post to his two addresses. The notice sent to the accused to his residence / business place returned with endorsement 'Door locked' on 31.07.2019. The accused has not paid the cheque amount till today. Thereby the accused has committed offence punishable u/Sec.138 of N.I. Act. Hence, the complaint.
4
Crl.A.No.758/2024
4. Based on the complaint filed by the complainant on 16.09.2019, learned XVIII ACMM, Bengaluru taken cognizance for the offence punishable u/Sec.138 of N.I.Act and registered case P.C.R.No.11616/2019. Thereafter, the sworn statement of the complainant was recorded by way of affidavit and the documents Ex.P.1 to 5 are marked. Based on the sworn statement of the complainant and documents and complaint, the learned XVIII ACMM, Bengaluru on 20.11.2019 passed an order and directed the office to register the criminal case against the accused in Register No.III for an offence U/s.138 of N.I. Act and passed an order to issue summons to the accused. Accordingly, the case in C.C.No.27646/2019 came to be registered against the accused.
5. The accused entered appearance by engaging his counsel on 12.03.2020 and released on bail. The substance of accusation read over and explained to the accused on 25.05.2022, for which the accused pleaded not guilty and claimed for trial. The learned Magistrate by following the guidelines of Hon'ble Supreme Court in Indian Bank 5 Crl.A.No.758/2024 Association case, after recording 313 statement of the accused posted the case for defence evidence, but on the same day the learned counsel for the accused filed an application u/S.145(2) of NI Act praying to recall PW 1. Hence, the said application came to be allowed and PW1 recalled for cross examination. PW 1 cross examined by the learned counsel for the accused. The accused has not lead defence evidence. After hearing both sides, the learned XVIII ACMM, Bengaluru pronounced the judgment on 06.04.2024 and acting u/S.255(2) of CrPC convicted the accused for the offence punishable u/Sec.138 of N.I. Act and sentenced to pay fine amount of Rs.80,000/- and in default shall undergo simple imprisonment for a period of 2 months. Out of the fine amount, Rs.78,000/- is ordered to be paid to the complainant as compensation and the remaining fine of Rs.2,000/- is ordered to defray to the State for the expenses incurred in the prosecution.
6. Aggrieved by the judgment of conviction and sentence, the accused has preferred this appeal on following grounds:-
6
Crl.A.No.758/2024 The judgment and sentence passed by the learned Magistrate is bad in law and against the materials placed on record and it is illegal, arbitrary and liable to be set aside. The trial court has failed to note that the cheque in question was not issued by the accused in respect of discharging his legally recoverable debt. The cheque was issued towards security for the purpose of vehicle loan to the complainant's husband Mr.Suresh. Therefore, the cheque should not have been sent for encashment. The respondent has completely admitted in her complaint and in her evidence that there is no direct transaction between her and the accused. The respondent admitted in her cross examination that her husband has received the cheque. The respondent further admitted in her cross examination that he husband has received insurance policy amount. The complaint is not in conformity with the provisions of law and mandatory requirement as contemplated u/S/138 of NI Act. The appellant has no knowledge about passing of judgment by the trial court. The judgment and order of the learned Magistrate is based on inferences and presumptions. The fine amount levied by the learned Magistrate is an 7 Crl.A.No.758/2024 exorbitant and same is liable to be set aside. Relying upon the documents produced and evidence of the complainant the learned Magistrate has passed impugned judgment of conviction which is liable to be set aside. Hence, on these grounds, the appellant / accused payed to allow this appeal.
7. The Trial Court records was received.
8. The respondent entered appellant by engaging counsel.
9. The learned counsel for the respondent filed written arguments. Despite, sufficient opportunity given to the learned counsel for the appellant / accused arguments are not addressed. This court also given an opportunity to the appellant / accused to file written arguments on or before 24.06.2025, but appellant not filed any written arguments.
10. I perused the entire records.
11. The following points would arise for my consideration:-
Point No.1: Whether the impugned judgment of conviction and order of sentence passed thereon is illegal and perverse and calls for interference?
Point No.2: What order?8
Crl.A.No.758/2024
12. My findings to the above points are as below:-
Point No.1 In the negative.
Point As per the final order, for the
No.2: following
REASONS
13. POINT NO.1: At the outset, before appreciating the
evidence on record and rival contentions of the parties, it is necessary to note down some of the undisputed facts of this case. It is not in dispute that, Ex.P1 cheque containing signature of the accused. It is not in dispute that the accused has issued Ex.P1 cheque. But the accused would contend that he had issued blank cheque in favor of the husband of the complainant for security purpose of loan transaction. Thus, on perusal of the cross examination portion of PW1, the accused has not at all disputed his signature on Ex.P1 cheque and also not denied the fact that Ex.P1 cheque of his bank account Karnataka Bank Limited.
14. On perusal of the trial court records, it would go to show that the learned Magistrate had given sufficient opportunity to the accused to lead defence evidence, but 9 Crl.A.No.758/2024 the accused did not lead his defence evidence. Hence, this court has to see whether the accused has rebutted presumption available to the complainant u/S.139 & 118 of NI Act.
15. The appellant / accused in this appeal would contend that the respondent / complainant has admitted that there is no direct transaction between her and the accused. She has admitted in her cross examination that her husband has received the cheque. She has admitted that her husband has received insurance policy amount. It is the contention of the appellant is that the complaint filed the complainant is not in conformity with the provisions of law and mandatory requirement as contemplated u/S/138 of NI Act. Hence, the first and foremost point to be considered whether the provisions u/S.138 & 142 of NI Act is complied or not.
16. Ex.P1 cheque is dated 01.06.2019. PW 1 has deposed that as the accused approached her husband for paying vehicle insurance premium amount of Rs.57,793/- hence, by 10 Crl.A.No.758/2024 using his credit card bearing No.4412xxxx4045 dated 29.04.2019 her husband paid the amkount. At the time of paying the said insurance amount, the accused assured that he will repay the said amount of Rs.58,000/- to her within a period of 3 months, but the accused has failed to repay the said amount of Rs.58,000/- within a period of 3 months. Hence, she approached the accused on several occasions and demanded for repayment of said amount. Hence toward repayment of said insurance amount and discharge of the valid debt the accused has issued cheque dated 01.06.2019 for Rs.58,000/- in her favour. She has deposed that when she presented the said cheque for encashment cheque returned and dishonoured with endorsement 'Insufficient Funds' dated 28.06.2019. Thereafter she got issued legal notice dated 25.07.2019 to the accused through her advocate. The notice returned unserved with an endorsement / shara 'Door locked' on 31.07.2019. In order to substantiate this contention taken by the complainant she has produced and got marked documents Ex.P1 to P5. Ex.P1 is the cheque dated 01.06.2019 for Rs.58,000/-. Ex.P2 is the bank endorsement dated 28.06.2019, which would go 11 Crl.A.No.758/2024 to show that the cheque dishonoured for the reasons 'Funds Insufficient'. Ex.P3 is the copy of legal notice dated 25.07.2019, wherein the complainant requested the accused to pay the cheque amount within 15 days from the date of receipt of notice. Ex.P4 is the postal receipt for having sent the notice to the accused. Ex.P5 is the unopened postal cover for having sent the notice to the accused. Thus, on perusal of the documents Ex.P1 to P5, it would go to show that the complainant presented Ex.P1 cheque to the bank within one month from the date of the cheque. Ex.P2 bank endorsement dated 28.06.2015 shows the cheque dishonoured for funds insufficient. Ex.P3 legal notice issued on 25.07.2019, which is within one month from the date of dishonor of the cheque. Ex.P5 is the unopened RPAD cover which would go to show that the same are returned with shara dated 31.07.2014 'Door locked'. The complainant has filed this complaint on 16.09.2019 within one month after giving 15 days time to the accused. Thus, the complainant has followed basic ingredients of S.138 & 142 of NI Act.
12
Crl.A.No.758/2024
17. The Hon'ble Supreme Court in RANGAPPA VS. MOHAN reported in AIR 2010 SC 1898 observed that as the complaint proved the initial burden by establishing that the cheque relates to the account of the accused, and signature on the cheque is that of the accused, hence statutory presumption under section 139 of N.I. Act is drawn in favor of the complainant. The principles laid down by the Hon'ble Supreme Court is aptly applicable to the present case.
18. In the decision of Hon'ble High Court of Karnataka between ARJUN VS. E.SHEKHAR, wherein it is held that when the signature of the cheque is admitted, though the contention is that it was blank signed cheque, burden is on the accused to rebut presumption by cogent evidence and mere plausible explanation offered is not sufficient to disprove the case of the complainant. In the present case, as I already observed that the accused has not disputed regarding issuance of Ex.P.1 cheque and also no disputed his signature. The only contention of the accused is that he had issued cheque in favour of the husband of the complainant, in order to obtain vehicle loan. Whether the 13 Crl.A.No.758/2024 accused has proved such contention taken in the cross examination of PW 1 could be seen.
19. PW1 in her cross examination has deposed that she is LIC Agent and also working as Insurance Agent. Her husband also working as Insurance Agent. She knows the accused since 3 years. She sates that the accused approached her to have insurance to the Tipper lorry. She has deposed that she is also making arrangement for vehicle loan. She has admitted the suggestion that her husband was assisted the accused for Tipper lorry loan. She has deposed that whenever she was making insurance to the vehicle she used to receive the amount through credit card or through cheque. She never received the amount by way of cash. She has deposed that she made insurance to one vehicle of the accused. At that time she has not received any amount from the accused. She states that the accused by assuring her to pay the insurance premium amount got the insurance policy. She has admitted the suggestion that in her complaint and in her examination in- chief that she has stated that the accused approached her 14 Crl.A.No.758/2024 husband for insurance policy. She has admitted suggestion that her husband made insurance policy of the accused. she has deposed that usually the insurance policy amount is giving through the cheque. They used to pay the insurance policy amount to the insurance company through Online mode. She has deposed that the accused has not given any amount in cash in order to pay the insurance premium. She has admitted suggestion that her husband was helped the accused to obtain Tipper lorry loan from Indus-Ind Bank. She as admitted suggestion that her husband used to get commission for facilitating to give loan. She has deposed that her husband has not received any commission from the accused. She has admitted suggestion that at the time of facilitating the loan to the customers, her husband used to receive the documents. She has admitted suggestion that at the time of vehicle loan to the accused also her husband received the vehicle documents and cheque from the accused. she has denied suggestion that Ex.P1 cheque is the same cheque which received by her husband from the accused for vehicle loan. She has deposed that Ex.P1 cheque issued by the accused for payment of money of 15 Crl.A.No.758/2024 insurance policy. She has denied suggestion that her husband misused the cheque of the accused which received for loan. Thus, on perusal of the cross examination portion of PW1 even though PW1 has admitted the suggestion that her husband assisted the accused to take vehicle loan and he has received vehicle documents and cheque from the accused, but she has denied the suggestion that Ex.P1 is the same cheque issued by the accused in favour of her husband. It is pertinent to note that PW1 in her cross examination has clearly deposed that she and her husband both are working as insurance Agent. It is the specific contention of PW1 / complainant is that the accused who approached her husband for payment of insurance policy amount of Rs.57,793/-. Hence, her husband paid amount of Rs.57,793/- by using his credit Card bearing No. 4412 XXXX 4005 dated 29.04.2019. At the time of paying the said insurance amount, the accused assured her that he will repay the amount of RS.58,000/- within a period of 3 months. The accused has not specifically denied regarding insurance amount paid to his vehicle. If at all the accused was paid insurance policy in cash to the 16 Crl.A.No.758/2024 complainant or her husband he would have produced his bank statement to show such payment. He should have atleast produced his bank statement to show withdrawal of amount in order to pay cash to the complainant or her husband. In this case there is absolutely no documents on the side of the accused to show that he had paid insurance amount to the complainant or her husband. Merely because PW1 has admitted that her husband at the time of facilitating to obtain vehicle loan received vehicle documents and cheque from the accused., it does not presupposes that Ex.P1 is the same cheque issued by the accused. PW 1 in her cross examination clearly deposed that Ex.P1 cheque issued by the accused for repayment of insurance premium amount. While appreciating the evidence of the witnesses, we have to read the evidence as a whole and we cannot read the evidence in isolation. If we read the evidence of PW 1 as a whole she has specifically denied the suggestion that Ex.P1 is the cheque which was issued by the accused in favour of her husband for vehicle loan. Thus, by cross examining PW1, the accused has failed to prove his defence that Ex.P1 cheque issued for security 17 Crl.A.No.758/2024 purposes of vehicle loan amount. It is not the contention of the accused is that he has not at all residing in the address mentioned in Ex.P5 postal cover. The address mentioned in the cause title of the complaint and Ex.P5 are one and the same. The accused appeared before the trial court when summons issued to the same address mentioned in the complaint. Hence, it is to be held that Ex.P5 notice duly served upon the accused. If at all the accused has not issued any cheque as per Ex.P1 in favour of the complainant or Ex.P1 was issued towards security purposes, in favour of the husband of the complainant, he should have taken such defence in the initial stage itself. But the accused has not taken any such defence in the initial stage by issuing reply notice to the complainant.
20. In the case of SUMETI VIJ V/S M.S PARAMOUNT TECH FAB INDUSTRIES, wherein it is held that to rebut the presumption, facts must be proved by the accused on a preponderance of probability. But in the present case, the accused has failed to rebut the presumption available in favour of the complainant u/S.139 & 118 of NI Act by 18 Crl.A.No.758/2024 preponderance of probability. On perusal of the impugned judgment of the trial court, the trial court has rightly drawn presumption u/S/139 of NI Act and rightly held that the accused has issued Ex.P1 cheque for discharge of legally enforceable debt. The contention of the accused is that the complainant is no way connected to transaction between her husband the accused is not acceptable. PW1 has clearly deposed that she as well as her husband both are working as Insurance Agents. In the cross examination of PW 1, nothing is elicited from her mouth to suggest that at the time of her husband paying vehicle insurance premium amount of Rs.57,793/- in favour of he accused she was not present. Nothing is elicited from the mouth of PW1 to suggest that the accused has not assumed for repayment of insurance amount in her presence. Ex.P1 cheque issued in the name of the complainant. Hence, it is to be presumed that for repayment of insurance amount of Rs.58,000/-, the accused issued cheque in favour of the complainant. It is not the contention of the accused is that he is having sufficient amount in his bank account so as to honour Ex.P1 cheque at the time of presentation. ExP2 Bank 19 Crl.A.No.758/2024 endorsement is having presumptive value. The accused has not repaid the cheque amount to the complainant, despite issuance of notice to him. Thus, the accused has committed offence punishable u/S.138 of NI Act. The accused has failed to prove his defence by preponderance of probability. Oral evidence of PW1 which is supported by the documents Ex.P1 to P5 are sufficient to hold that the accused has issued cheque Ex.P1 in favour of the complainant in order to discharge his liability of repayment of insurance amount of Rs.58,000/-. The accused has failed to rebut presumption available to the complainant u/S.139 & 118 of NI Act. Hence, it has to be held that Ex.P1 cheque indeed has been issued by the accused in favour of the complainant towards discharge of his legally enforceable debt or liability.
21. The learned trial judge on proper appreciation of the evidence on record has rightly come to the conclusion that the accused has committed the offence punishable under S.138 of N.I. Act. There is no infirmity in the impugned judgment of conviction and sentence passed thereon and warrants no interference at the hands of this appellate 20 Crl.A.No.758/2024 court.
22. Considering on re-appreciation of entire evidence and after perusal of entire records, this court is of the opinion that there is no infirmity in the Orders passed by the trial court in C.C. No.27646/2019. Hence, I answer Point No.1 in the Negative.
23. POINT NO.2:- In view of my findings on Point No.1, I proceed to pass the following ORDER The Criminal appeal filed by the appellant U/s.374 (3) of Cr.P.C. is hereby DISMISSED.
The judgment of conviction and sentence passed by the XVIII ACMM, Bengaluru (XVIII ACJM, Bengaluru) in C.C.No.27646/2019 dated 06.04.2024, is hereby CONFIRMED.
The office is directed to send back TCR forthwith to XVIII ACMM, Bengaluru (XVIII ACJM, Bengaluru) along with a copy of this judgment.
[Dictated to the stenographer Grade-I, transcribed and typed by him, transcript revised and modified and then pronounced by me in the open court on this the 5 th day of July 2025] (MOHAN PRABHU), LV Addl. City Civil & Sessions Judge, Bengaluru.