Bangalore District Court
S. Puttamuddegowda vs Ammayi on 4 April, 2026
SCCH-2 1 C.C.No. 4736/2023
KABC020162662023
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY (SCCH-2).
C.C.No. 4736/2023
:: Present ::
Sri. H.P. Mohan Kumar, B.Sc.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACJM, Bengaluru.
Dated: On this the 4th day of April, 2026.
Complainant : Sri. S Puttamuddegowda
S/o late Lingaiah,
Aged about 65 years,
R/at: No.14, Behind P.E.S College,
Disoja layout, Banashankari 3rd stage,
Bengaluru 560085.
(By Sri. B P Shobha, Advocate)
- Vs. -
Accused : Smt. Ammayi
W/o late Kumar,
Aged about 48 years,
R/at: No.6, Opp. to Kino Theater,
SCCH-2 2 C.C.No. 4736/2023
V V Giri Kalony, Sheshadripuram,
Bengaluru 560020.
Office address:
Bruhat Bengaluru Mahanagara Palike
No.94(A)/03,
Sahayaka Karya Nirvahaki,
Gandhi nagara division,
Tulasi thota, Bengaluru 560053.
(By Sri. V S Ravindra Holla, Advocate)
:: J U D G M E N T ::
The complainant has filed the present complaint U/Sec.200 of Cr.P.C., alleging that the accused has committed the offence punishable U/Sec.138 of Negotiable Instruments Act (herein after referred as N.I.Act).
2. The case of the complainant in brief is as follows:-
The complainant and accused are well known to each other since twenty years as both of them were working in BBMP. Based on the said acquaintance, during the month of October 2019 the accused has approached the complainant for financial assistance of Rs.5,00,000/- and agreed to pay interest at the rate of 2.5% p.m. and assured to return the same after three years. As per the request of the accused, the complainant has paid Rs.5,00,000/- to the accused by way of cash on 18.11.2019. At which point of time, the SCCH-2 3 C.C.No. 4736/2023 accused has issued cheque bearing No. 757105 dated 13.04.2023 for Rs.3,00,000/- and another cheque bearing No. 757106 dated 18.04.2023 for Rs.2,00,000/- which were drawn on Karnataka Bank, Neharunagara branch, Bengaluru. Even after repeated requests and demands made by the complainant also, the accused postponed the payment due to the reason of Covid-19. Without any other alternative, the complainant has presented the said cheques for encashment through his banker State Bank of India, Hosakerehalli branch on 13.04.2023 and 18.04.2023 respectively. However, the said cheques were dishonored and returned unpaid with an endorsement as "Funds Insufficient" on 19.04.2023. Thereafter, the complainant has issued the legal notice to the accused on 06.05.2023 which was served to the accused. In spite of service of notice also, the accused has neither paid the amount nor sent reply. Hence, cause of action arose to file the complaint.
3. The cognizance was taken for the offence punishable U/Sec.138 of N.I.Act. After filing of the complaint, the sworn statement of the complainant was recorded and it prima- facie found that the accused committed the offence punishable U/Sec.138 of N.I.Act. Hence, criminal case was registered and the summons was issued to the accused.
SCCH-2 4 C.C.No. 4736/20234. In response to the summons, the accused appeared through her counsel and thereafter plea was recorded. The accused was denied the accusation leveled against her, claimed to be tried and stated that she has defence to make. Further, the statement of the accused as contemplated U/Sec.313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence appeared against her in the evidence of complainant and submitted that she has defence evidence.
5. The Hon'ble Apex Court of India in Indian Bank Association and Others vs Union Bank of India and Another reported in AIR 2014 SC 2528, held that "Sworn Statement of the complainant has to be treated as examination in chief". In the instant case, the complainant got examined himself as P.W.1 and the documents have been marked at Ex.P.1 to Ex.P.9, Ex.P7(a), Ex.P7(b), Ex.P8(a). Thereafter, P.W.1 was subject to the process of cross- examination from the side of accused. It is pertinent to note that, Ex.D1 got marked during the course of cross- examination of PW.1 by way of confrontation. Per contra, the accused got examined herself as D.W.1 and the documents have been marked at Ex.D2 to Ex.D4. Thereafter, D.W.1 was subject to the process of cross-examination from the side of complainant. It is pertinent to note that, Ex.P10 and Ex.P10(a) got marked by way of confrontation during the SCCH-2 5 C.C.No. 4736/2023 course of cross-examination of DW.1. Further, the accused has also examined one witness as DW.2 and he was cross examined from the side of complainant.
6. Heard arguments from both sides. The learned counsel for complainant and counsel for accused have filed written arguments. Perused the materials available on record.
7. Now the points that arise for consideration of this Court are as hereunder:
1. Whether the complainant has proved that the accused has committed the offence punishable U/Sec.138 of N.I.Act?
2. What Order?
8. The findings of this Court to the above-referred points are as follows:
Point No.1: In the Negative.
Point No.2: As per final order,
for the following:-
REASONS
9. POINT No.1: In order to prove the case, complainant examined himself as PW.1 by filing affidavit in support of his oral examination-in-chief. In the affidavit, PW.1 has SCCH-2 6 C.C.No. 4736/2023 reiterated the complaint averments in verbatim. Hence, this Court need not to recapitulate the same once again at this juncture. In support of his oral testimony, PW.1 got marked the documents at Ex.P.1 to Ex.P.9, Ex.P7(a), Ex.P7(b), Ex.P8(a) . It is further pertinent to note that, Ex.P10 and Ex.P10(a) got marked by way of confrontation during the course of cross-examination of DW.1. Per contra, the accused got examined herself as D.W.1 and the documents have been marked at Ex.D2 to Ex.D4. It is pertinent to note that, Ex.D1 got marked during the course of cross- examination of PW.1 by way of confrontation. Further, the accused has also examined one witness as DW.2 and he was cross examined from the side of complainant.
10. Now itself it is appropriate to see the documents marked at Ex.P-Series and Ex.D-Series.
Ex.P-Series.
Ex.P.1 and Ex.P2 are the cheques in question. Ex.P.1(a) & Ex.P.2(a) are the signatures of accused. Ex.P.3 & Ex.P.4 are the bank challans. Ex.P5 & Ex.P6 are the bank endorsements dated 15.04.2023 and 19.04.2023 respectively. Ex.P.7 is the office copy of the legal notice dated: 06.05.2023. Ex.P.7(a) & Ex.P7(b) are the postal receipts. Ex.P8 is the returned postal cover. Ex.P8(a) is the returned notice. Ex.P.9 is the acknowledgment due card.
SCCH-2 7 C.C.No. 4736/2023Ex.P10 is the hand loan agreement dated 18.11.2019 and Ex.P10(a) is the signature of accused.
Ex.D-Series.
Ex.D1 is the bank account statement pertaining to the accused. Ex.D2 & Ex.D3 are the transfer certificates pertaining to Nandini K and Prema K. Ex.D4 is the marriage invitation card pertaining to K Nandini.
11. The learned counsel for accused has relied on the following decisions:
i) AIR 1971 SC 1865 between Sait Tarajee Khimchand and others Vs. Yelamarti Satyam @ Satteyya.
ii) Criminal Appeal No. 893/2007 between L.I.C of India and another Vs. Ram Pal Singh Bisen.
iii) AIR 2003 SC 4548 between R.V.E Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V. P. Temple and another.
iv) Appeal (Crl) No. 1255-1261/2004 between D Vinod Shivappa Vs. Nanda Belliappa.SCCH-2 8 C.C.No. 4736/2023
v) Criminal Appeal No. 2021/2008 between M/s. Harman Electronics (P) Ltd and another Vs. M/s. National Panasonic India Ltd.,
vi) Appeal (Crl) No. 1015/1999 between K Bhaskaran Vs. Sankaran Vaidhyan Balan and another.
vii) Criminal Appeal No. 2402/2014 between K Subramani Vs. K Damodara Naidu.
viii) 2001 104 CC 348 between B P Venkatesulu Vs. K P Mani Nayar.
ix) Criminal Appeal No. 3257/2024 between Sri Dattatraya Vs. Sharanappa.
This court has carefully gone through the decisions relied by the counsel for accused and applied the principles to the case on hand.
12. Before going to discuss the main aspect, it is worth to reproduce the provisions of Sec.138 and 139 of N.I.Act, the same as hereunder:
138. Dishonour of cheque for insufficiency, etc., of funds in the account: -SCCH-2 9 C.C.No. 4736/2023
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-SCCH-2 10 C.C.No. 4736/2023
(a) the cheque has been presented to the bank within a period of Six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (The period of 6 months has been reduced to 3 months, vide R.B.I. notification No.RBI/2011- 12/251,DBOD.AMLBC No.47/14.01.001/2011-12, dated:4 th November 2011 (w.e.f. 01.04.2012))
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder SCCH-2 11 C.C.No. 4736/2023 in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: - For the purposes of the section, "debt or other liability" means a legally enforceable debt or other liability.
139. 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.
13. At this juncture it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, between Rangappa V/s Mohan wherein their lordships have observed at para 26 as hereunder:
"No doubt that there is an initial presumption which favours the complainant".SCCH-2 12 C.C.No. 4736/2023
14. It is germane to note that the proceedings U/Sec.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the charge leveled against him is proved beyond reasonable doubt. In the proceedings initiated U/Sec.138 of the N.I. Act proof of beyond reasonable doubt is subject to the presumption envisaged under Sec.139 of the N.I. Act. Once the requirement of Sec.138 of the N.I. Act is fulfilled, then it has to be presumed that the cheque was issued in discharge of legally recoverable debt or liability. The presumption envisaged under Sec.139 of N.I. Act is mandatory presumption and it has to be raised in every cheque bounce cases.
15. Now, the important question before this Court is whether the complainant has complied the ingredients of Sec.138 of N.I.Act or not? In this connection, Ex.P.1 to Ex.P.9 are relevant. Ex.P.1 & Ex.P2 are the cheques bearing No.757105 and 757106 dated: 13.04.2023 and 18.04.2023. Ex.P1(a) & Ex.P2(a) are the signatures of the accused. Ex.P3 & Ex.P4 are the deposit slips. Ex.P5 & Ex.P6 are the bank endorsements dated15.04.2023. On careful perusal of Ex.P1 & Ex.P2 coupled with Ex.P3 to Ex.P6, it appears to this court that, the complainant has presented the cheques for encashment on 13.04.2023 & 18.04.2023 respectively and SCCH-2 13 C.C.No. 4736/2023 cheques were got bounced on 15.04.2023 and 19.04.2023 i.e., within the stipulated period.
16. Now, the question before this court is whether Ex.P.1 & Ex.P.2 belongs to the accused and signature found in Ex.P.1 & Ex.P.2 are the signatures of the accused or not?. It is relevant to note that, the accused examined herself as DW.1. During the course of her cross-examination, the accused has clearly admitted her signature found in Ex.P1 & Ex.P2. The admission of DW.1 is worth to reproduce here itself for better understanding: "ನಿಪಿ.1 ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನದೇ ಆಗಿರುತ್ತದೆ. ನಿಪಿ.2 ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನದೇ ಆಗಿರುತ್ತದೆ''. The contention of the accused is that, at the time of availing Rs.50,000/- from the complainant, she had given 4 signed blank cheques to the complainant. Therefore after cogitating the evidence of DW.1 and also the admission of DW.1, it is crystal clear that Ex.P1 & Ex.P2 are pertaining to the bank account of accused and Ex.P1(a) & Ex.P2(a) are the signatures of accused.
17. Now, the next question before this court is whether the complainant has issued the legal notice in accordance with law or not?. In this connection Ex.P.7, Ex.P7(a) and Ex.P.7(b) are relevant. On careful perusal of these documents, it appears to this court that, the complainant has issued the legal notice to the accused on 06.05.2023 and same was dispatched on 06.05.2023 itself. Therefore, it is SCCH-2 14 C.C.No. 4736/2023 crystal clear that the complainant has issued the legal notice within 30 days from the date of receiving of endorsement from the bank.
18. Now, the next important question before this Court is whether notice was served on the accused or not?. In this connection Ex.P.8 & Ex.P9 are relevant. A careful perusal of Ex.P.8, it appears to this Court that, the notice issued by the complainant to the office address of the accused was returned with shara as "Absent'' on 08.05.2023 and the notice sent to the residential address of the accused was served on 08.05.2023 which was received by one Asha.
19. It is relevant to state that the object of issuance of notice to the drawer is to provide an opportunity to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Sec.138 of Negotiable Instruments Act. In this regard, it is worth to rely on the decision of Hon'ble Apex Court reported in 2007(6) SCC 555, between C.C. Alavi Haji vs Palapetty Muhammed & Anr, Wherein the Hon'ble Apex Court held as hereunder: " Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is SCCH-2 15 C.C.No. 4736/2023 unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed".
20. The above referred decision is aptly applicable to the case on hand. In the instant case, though the DW1 disputed the issuance of notice. However, the accused has not produced the documents to substantiate her address. Moreover the accused has clearly admitted that she has been working in BBMP. Hence, this Court is of the opinion that, the complainant has correctly issued the notice to the address of accused and the accused was evaded to receive the same. Therefore, with the help of principles laid down by the Hon'ble Apex Court in the decision referred to above, this court has come to the conclusion that, the complainant has issued the notice to the correct address of the accused and service of notice amounts to deemed service. In addition to SCCH-2 16 C.C.No. 4736/2023 the above referred aspects, as per Sec.118 and Sec.139 of NI Act presumption favours the complainant. Hence the complainant has complied the ingredients of Sec.138 of Negotiable Instruments Act.
21. Now, it is worth to refer the decision of the Hon'ble Apex Court between Hiten P Dalal V/s Brathindranath Manarji reported in 2001(6) SCC 16, wherein the Hon'ble Apex Court observed that, "under Sec.138 of Negotiable Instruments Act, the complainant is not required to establish either the legality or enforceability of the debt or liability since he can avail the benefit of presumption U/Sec.118 and Sec.139 of N.I. Act in his favour".
22. It is also settled position of law that, the presumption available U/Sec. 138 of N.I Act is a rebuttable presumption. Further, to rebut the said presumption the accused need not to enter into the witness box. However, the accused can establish his probable defence by creating a doubt about the existence of legally enforceable debt or liability.
23. Further, it is also settled position of law that, the standard of proof of rebutting the presumption is that of preponderance of probabilities. It is also settled position of law that, if the accused succeeded in rebutting the presumption then the burden shifts back to the complainant.
SCCH-2 17 C.C.No. 4736/2023At this juncture, again it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, between Rangappa Vs. Sri. Mohan, wherein the Hon'ble Apex Court has observed that, "the standard of proof to rebut the presumption is that one of preponderance of probabilities".
24. It is also settled position of law that, "it is immaterial that, the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque otherwise valid, within the provisions of Sec.138 would be attracted".
25. Now, this court has to see whether the accused has rebutted the presumption or not?. As per the assertion of the complainant, during October 2019 the accused sought for financial assistance of Rs.5,00,000/-. He has arranged the sum of Rs.5,00,000/- and lent to the accused by way of cash on 18.11.2019. At which point of time the accused was agreed to pay interest at the rate of 2.5% p.a. and assured to repay the same within 3 years and accused was also issued two post dated cheques for Rs.3,00,000/- and Rs.2,00,000/- respectively. PW.1 was cross examined and accused was also examined. On meticulous reading of cross-examination of PW.1 and also evidence of DW.1, it would be gathered that the accused has taken a contention that she had taken only SCCH-2 18 C.C.No. 4736/2023 Rs.50,000/- (Fifty thousand only) as loan from the complainant and at which point of time the complainant had collected four signed blank cheques from her. Further cross- examination of PW.1 reveals that the accused side has denied the alleged financial transaction with respect to Rs.5,00,000/- (Five lakhs only).
26. On careful perusal of entire complaint averments and also the notice issued by the complainant, the complainant has not asserted the execution of loan agreement by and between the complainant and accused. However during the course of cross-examination of PW.1, he has deposed that, loan agreement was executed for Rs.5,00,000/- on the date of lending money to the accused. Further, he has admitted that, in the agreement there is a condition only with respect to Rs.3,00,000/- and there is no clause with respect to Rs.2,00,000/-. It is needless to mention that the complainant side has not produced the alleged agreement in his evidence. However during the course of cross examination of DW.1, the alleged agreement was confronted to DW.1 and DW.1 was admitted her signature found in the alleged agreement. The said document got marked as Ex.P10 and signature of accused marked as Ex.P10(a).
27. It is further relevant to note that, either in the notice, complaint or in the affidavit filed in support of oral SCCH-2 19 C.C.No. 4736/2023 examination, the complainant has not averred about the existence of agreement. However, for the first time during the course of cross-examination of PW.1, the complainant has disclosed about the execution of agreement. Now the question before this court is whether Ex.P10 is with respect to the transaction alleged in the complaint or not?. Hence in order to answer this aspect, it is very much necessary to take Ex.P10 here itself for discussion. According to the complaint averments, on 18.11.2019 the complainant lent Rs.5,00,000/- in cash. However, the contents of Ex.P10 reveals that on 10.11.2019 the complainant paid Rs.3,00,000/- in cash. Further, there is no recital in Ex.P10 regarding lending of remaining amount of Rs.2,00,000/-. As per the recitals of Ex.P10, it appears to this court that the complainant lent Rs.3,00,000/- on 10.11.2019. Therefore the recitals of Ex.P10 clearly contradicts the case of the complainant. In order words it is not the case of the complainant that on 10.11.2019, he had lent Rs.3,00,000/- in cash and on 18.11.2019 he had lent remaining amount of Rs.2,00,000/- in cash to the accused. Therefore the contradictions pointed out by this court is fatal. At this juncture, it is worth to reproduce the recitals of Ex.P10 for better understanding:
"ಸನ್ ಎರಡು ಸಾವಿರದ ಹತ್ತೊ ೕಂಭತ್ತನೇ ಇಸವಿ ನವಂಬರ್ ಮಾಹೆ ದಿನಾಂಕ ಹದಿನೆಂಟರಂದು (18.11.2019)ದ ಇದೇ ಬೆಂಗಳೂರು - 560020 ದ ಶೇಷಾದ್ರಿಪುರಂ, ವಿ. ವಿ. ಗಿರಿ ಕಾಲೋನಿ, ಕಿನೋ SCCH-2 20 C.C.No. 4736/2023 ಟಾಕೀಸ್ ಎದುರು, 6 ನೇ ನಂಬರುಳ್ಳ ಮನೆಯಲ್ಲಿ ವಾಸವಾಗಿರುವ ಲೇಟ್ ಶ್ರೀ ಕುಮಾರ್ ರವರ ಧರ್ಮಪತ್ನಿ ಅಮ್ಮಾ ಯಿ (ಹಣ ಪಡೆದರುವವರು) (ಬಿಬಿಎಂಪಿಯ ಉದ್ಯೊ ೕಗಿ, ಗಾಂಧಿನಗರ ಶಾಖೆ) ಆದ ನಾನು, - ಇದೇ ಬೆಂಗಳೂರು - 560085 ದ ಬನಶಂಕರಿ 3 ನೇ ಹಂತ ಡಿಸೋಜಾ ಲೇಔಟ್,ಪಿ. ಇ. ಎಸ್ ಕಾಲೇಜು ಹಿಂಭಾಗ, 14 ನೇ ನಂಬರುಳ್ಳ ಮನೆಯಲ್ಲಿ ವಾಸವಾಗಿರುವ ಲೇಟ್ ಲಿಂಗಯ್ಯ ರವರ ಮಗ ಶ್ರೀ ಪುಟ್ಟಮುದ್ದೇ ಗೌಡ (ಹಣ ನೀಡುವವರು) ಆದ ನಿಮಗೆ ಈ ಮೂಲಕ ಕೈಸಾಲ ಬಗ್ಗೆ ಕರಾರು ಪತ್ರ ಬರೆದುಕೊಟ್ಟ ಕ್ರ ಮವೇನೆಂದರೆ, ಆದಾಗಿ, ಅಮ್ಮಾ ಯಿ ಆದ ನಾನು ಈ ಮೆ ೕಲಿನ ವಿಳಾಸದಲ್ಲಿ ವಾಸವಾಗಿದ್ದು , ರೂ.3,00,000/- (ಮೂರು ಲಕ್ಷ ರೂಪಾಯಿ) ಗಳನ್ನು ಸಾಲವಾಗಿ ನೀಡುವಂತೆ ಮೆ ೕಲೆ ತಿಳಿಸಿದ ಶ್ರೀ ಪುಟ್ಟಮುದ್ದೇಗೌಡ ಆದ ನಿಮ ್ಮನ್ನು ಕೇಳಲಾಗಿ, ನೀವು ನಮಗೆ ಮೊತ್ತ ರೂ.3,00,000/- (ಮೂರು ಲಕ್ಷ ರೂಪಾಯಿ) ಗಳನ್ನು ಕೊಡಲು ಒಪ್ಪಿ , ದಿನಾಂಕ 10.11.2019 ರಂದು ನಮಗೆ ನಗದು ಮೂಲಕ ಪಾವತಿ ಮಾಡಿರುತ್ತೀರಿ. ಹಾಗೂ ಈ ರೀತಿಯಾಗಿ ನೀವು ಕೊಟ್ಟಿರುವ ಮೆ ೕಲಿನ ಮೊತ್ತಕ್ಕೆ ಈ ಕೆಳಗೆ ನಮೂದಿಸಿರುವ ಷರತ್ತು ಮತ್ತು ನಿಬಂಧನೆಗೆ ಒಳಪಟ್ಟಿರುತ್ತದೆ. ಈ ದಿವಸ ಪಡೆದಿರತಕ್ಕ ರೂ.3,00,000/- (ಮೂರು ಲಕ್ಷ ರೂಪಾಯಿ)ಗಳ ಸಾಲದ ಮೊತ್ತವನ್ನು ಪಡೆದಿರುತ್ತೆ ೕವೆ. ಹಾಗೂ ಈ ರೀತಿಯಾಗಿ ನಿವ್ಮಿು ಂದ ಪಡೆದಿರುವ ಮೆ ೕಲಿನ ಮೊತ್ತಕ್ಕೆ ತಿಂಗಳೂ 10 ನೇ ತಾರೀಖಿನೊಳಗೆ ಶೇಕಡಾ 2.5 ರಂತೆ ಬಡ್ಡಿ ರೂಪದಲ್ಲಿ ಹಣ ಪಾವತಿ ಮಾಡಲು ಒಪ್ಪಿರುತ್ತ ೇನೆ.
28. At the cost of repetition, the recitals of Ex.P10 contradicts the case of complainant. That apart there is no averments regarding execution of agreement either in the notice or in the complaint. Therefore, though the accused admitted her signature in Ex.P10 will not come to the aid of complainant to establish the case and it also appears to this court that, the complainant may obtained signature of accused in the blank stamp paper and prepared the same according to his wish.
SCCH-2 21 C.C.No. 4736/202329. According to the accused, she had borrowed a sum of Rs.50,000/- and at which point of time the complainant has obtained four signed blank cheques from her. During the course of cross-examination of DW.1 the learned counsel for complainant suggested that, the accused has issued only two cheques and not four cheques, the said suggestion was denied by the accused. Now the question before this court is whether the suggestion of learned counsel for complainant is correct or the evidence of accused regarding issuance of four signed blank cheques to the complainant is correct or not?. In order to answer this aspect cross-examination of PW.1 is relevant to take for discussion. It is relevant to note that during the course of cross-examination of PW.1, he has clearly deposed that at the time of lending loan amount itself the accused has issued four cheques. At this juncture it is worth to reproduce the cross-examination of PW.1 here itself for better understanding: "ಆರೋಪಿಯು ಚೆಕ್ಕು ಗಳನ್ನು ಕೊಟ್ಟಿರುತ್ತಾ ರೆಂದು ಹೇಳಿದ್ದು ಸದರಿ ಚೆಕ್ಕು ಗಳನ್ನು ಯಾವಾಗ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಯು ನಾನು ಹಣ ನೀಡಿದಾಗಲೇ ನಾಲ್ಕು ಚೆಕ್ಕು ಗಳನ್ನು ನೀಡಿದ್ದರು ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ''. It is pivotal to note that either in the notice or in the complaint, the complainant has not disclosed the issuance of 4 cheques. However, the complainant deposed the same during his cross-examination. Therefore, the answer given by the PW.1 clearly contradicts the suggestion of the learned counsel with respect to issuance of four cheques. As such, the suggestion of learned counsel for complainant failed to inspire the SCCH-2 22 C.C.No. 4736/2023 confidence of this court. Per contra, the evidence of DW.1 inspires the confidence of this court.
30. Further contention of the accused side is that, they have denied the alleged loan transaction with respect to Rs.5,00,000/-. Admittedly, the complainant has not produced any documents to show that he has lent Rs.5,00,000/- in cash on 18.11.2019. However, the complainant has produced Ex.P10. Already this court has observed that Ex.P10 contradicts the case of complainant. At the cost of repetition, according to the complainant he had lent Rs.5,00,000/- on 18.11.2019. However, Ex.P10 speaks about only lending of Rs.3,00,000/- on 10.11.2019. Therefore, the above referred aspects creates a doubt about the alleged loan transaction.
31. That apart in the instant case the accused has examined one witness of DW.2. He has filed his affidavit in support of oral examination in chief. Later he was cross examined from the side of complainant. During the course of cross-examination he has expressed his ignorance regarding para Nos.2 & 3 of the affidavit. Further he has expressed his ignorance regarding execution of Ex.P10. Further, he has expressed his ignorance regarding issuance of two cheques. Further, he has expressed his ignorance regarding when exactly the accused sought financial assistance and also SCCH-2 23 C.C.No. 4736/2023 quantum of financial assistance. Likewise he expressed ignorance regarding when exactly the complainant has lent money to the complainant. Therefore, examination of DW.2 neither supports the defence of the accused nor case of the complainant. Hence examination of DW.2 will not come to the aid of accused. Hence this court do not wish to take the evidence of DW.2 for elaborate discussion.
32. Next aspect is that, the accused has taken a contention that she had taken loan of Rs.50,000/- from the complainant, out of which she has repaid Rs.41,000/-. In order to substantiate the same, the accused has relied on Ex.D1. Ex.D1 is the bank statement pertaining to the accused. On perusal of this document, it reveals that on 03.10.2020 the accused has paid Rs.9,000/- through self cheque. Likewise on 07.01.2021, Rs.9,000/- paid through self cheque, on 02.12.2021 Rs.11,000/- has been given to the complainant through cheque. On 01.06.2022 Rs.12,000/- paid by the accused through self cheque. In addition to that during the course of cross-examination of PW.1, he has clearly admitted the receiving of Rs.41,000/- viz. Rs.9,000/-, Rs.9,000/-, Rs.11,000/- & Ex.12,000/- respectively on different dates. Therefore, at this juncture it is worth to reproduce the deposition of PW.1 here itself for better understanding: "ಆರೋಪಿಯು ನಿಮ ್ಮ ಬಳಿ ಕೇವಲ ಐವತ್ತು ಸಾವಿರ ಹಣವನ್ನು ಮಾತ್ರ ಸಾಲವಾಗಿ ಪಡೆದಿದ್ದರೇ ವಿನಃ ನೀವು ದೂರಿನಲ್ಲಿ ಹೇಳಿರುವಂತೆ ಐದು ಲಕ್ಷ SCCH-2 24 C.C.No. 4736/2023 ಅಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿಯು ರೂ.41,000/- ಹಣವನ್ನು ನಿಮ ್ಮ ಖಾತೆಗೆ ಹಾಕಿದ್ದಾ ರೆ ಎಂದರೆ ಸರಿ. ಆರೋಪಿಯು ಕೇವಲ ರೂ.9,000/- ಹಣವನ್ನು ಮಾತ್ರ ಹಿಂತಿರುಗಿಸಬೇಕು ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿಯು ದಿಃ03.10.2020 ರಂದು ರೂ.9,000/- ಹಣವನ್ನು ಸೆಲ್ಫ್ ಚೆಕ್ ಮೂಲಕ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಆರೋಪಿಯು ದಿಃ07.01.2021 ರಂದು ರೂ.9,000/- ಹಣವನ್ನು ಸೆಲ್ಫ್ ಚೆಕ್ ಮೂಲಕ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ, ಸಾಕ್ಷಿ ಯು ಬಡ್ಡಿಯ ಕಡೆಗೆ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ಆರೋಪಿಯು ದಿಃ02.12.2021 ರಂದು ನಿಮ ್ಮ ಹೆಸರಿನಲ್ಲಿ ರೂ.11,000/- ಹಣಕ್ಕೆ ಚೆಕ್ ಅನ್ನು ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಆರೋಪಿಯು ದಿಃ01.06.2022 ರಂದು ರೂ.12,000/-
ಹಣವನ್ನು ಸೆಲ್ಫ್ ಚೆಕ್ ಮೂಲಕ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಈ ಮೆ ೕಲಿದ ಹಣವನ್ನು ನೀವು ಬ್ಯಾ ಂಕಿನಲ್ಲಿ ಪಡೆದುಕೊಂಡಿರುತ್ತೀರ ಎಂದರೆ ಸರಿ. ಆರೋಪಿಯು ರೂ.41,000/- ಹಣವನ್ನು ನೀಡಿದ್ದರೂ ಸಹ ಐದು ಲಕ್ಷ ಹಣ ಬರಬೇಕು ಎಂದು ಸುಳ್ಳು ಕೇಸು ಹಾಕಿದ್ದೀರ ಎಂದರೆ ಸರಿಯಲ್ಲ, ಸಾಕ್ಷಿ ಯು ಬಡ್ಡಿಯ ಕಡೆಗೆ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ಸಾಕ್ಷಿ ಯು ಬ್ಯಾ ಂಕ್ ಸ್ಟೇಟ್ಮೆಂಟ್ ಅನ್ನು ನೋಡಿ ಗುರುತಿಸಿದ ಕಾರಣ ಸದರಿ ದಾಖಲೆಯನ್ನು ನಿ.ಡಿ.1 ಎಂದು ಗುರುತಿಸಲಾಯಿತು''.
33. It is needless to mention that either in the notice or in the complaint, the complainant has not disclosed the receiving of Rs.40,000/-. Suppose, for the sake of arguments the complainant received the said amount towards interest, then what was the impediment for the complainant to disclose the same either in notice or in complaint. In this regard there is no proper explanation from SCCH-2 25 C.C.No. 4736/2023 the side of complainant. This amounts to suppression of facts.
34. With the help of discussions referred to above, it is crystal clear that, complainant has utterly failed to prove the alleged loan transaction. The production of Ex.P10 itself creates doubt about the alleged loan transaction. At the cost of repetition, there is a clear contradiction between Ex.P10 & also the case of complainant. The contradictions pointed out by this court is fatal to the case of complainant. Thus, the presumption formed in favor of the complainant stands successfully rebutted.
35. On evaluation of the entire evidence, this Court finds that, the evidence adduced by P.W.1 is improbable and difficult to believe. As such, the evidence of P.W.1 is failed to inspire the confidence of this Court. The documentary evidence produced by the P.W.1 is not sufficient to hold that, there was a financial transaction by and between the complainant and accused with respect to Rs.5,00,000/- as alleged in the complaint. Further, on evaluation of the entire evidence, it appears to this court that the contention of accused regarding she had availed loan of Rs.50,000/- from the complainant and at which point of time the complainant had collected four signed blank cheques from her appears to SCCH-2 26 C.C.No. 4736/2023 be nearer to the truth. Further, it appears to this court that the complainant has filled the cheques for his unlawful gain.
36. Therefore, from the available materials on record, it appears to this court that, it is a case of mis using of cheques. The evidence also reveals that, there was no existence of legally enforceable debt by and between the complainant and accused with respect to the amount mentioned in the complaint.
37. Therefore, it is pellucid that the accused has raised the probable doubt regarding the advancement of loan of Rs.5,00,000/- by the complainant. Hence, this court holds that, the accused has raised plausible defence and successfully rebutted the presumption available in favour of the complainant in the present set of facts.
38. It is pertinent to note that, once the accused has rebutted the presumption, the burden shifts back to the complainant. However, the complainant has failed to prove his case. Hence, this court holds that, the complainant has failed to prove that, the accused has committed an offence punishable Under Sec. 138 of Negotiable Instruments Act. Accordingly, this Court is answered Point No.1 in the Negative.
SCCH-2 27 C.C.No. 4736/202339. Point No 2 : In view of the above findings, this Court proceeds to pass following:
:O R D E R:
Acting U/Sec.255(1) Cr.P.C., the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
The bail bond of the accused shall stands cancelled.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected by me, and then pronounced in the open Court on this the 04th April, 2026) (H.P. Mohan Kumar) VI Addl. Judge and ACJM., Court of Small Causes, Bengaluru.
:ANNEXURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:
P.W.1 : Sri. S Puttamuddegowda.
SCCH-2 28 C.C.No. 4736/2023
LIST OF DOCUMENTS MARKED ON BEHALF OF
COMPLAINANT:
Ex.P.1 & : Original Cheques bearing No.757105 and 757106
Ex.P.2 dated 13.04.2023.
Ex.P.1(a) & :
Signatures of the accused.
Ex.P.2(a)
Ex.P.3 & :
Deposit slips.
Ex.P.4
Ex.P.5 & :
Bank endorsements.
Ex.P.6
Ex.P.7 : Office copy of legal notice dated:06.05.2023.
Ex.P.7(a) & :
Postal receipts.
Ex.P.7(b)
Ex.P.8 : Returned Postal cover.
Ex.P.8(a) : Returned notice.
Ex.P.9 : Acknowledgment due card.
Ex.P.10 : Hand loan agreement dated 18.11.2019.
Ex.P.10(a) : Signature of accused.
LIST OF WITNESSES EXAMINED BY THE ACCUSED:
D.W.1 : Smt. Ammayi
D.W.2 : Sri M Madegowda.
SCCH-2 29 C.C.No. 4736/2023
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D.1 : Account statement pertaining to accused. Ex.D.2 : Transfer certificate pertaining to Nandini K. Ex.D.3 : Transfer certificate pertaining to Prema K. Ex.D.4 : Marriage invitation card pertaining to Nandini K. Digitally signed by HP HP MOHANKUMAR MOHANKUMAR Date: 2026.04.06 12:23:05 +0530 (H.P. Mohan Kumar) VI Addl. Judge and ACJM., Court of Small Causes, Bengaluru.