Bangalore District Court
Ganesh Kumar R vs Pavithra Kiran Kumar on 14 November, 2025
KABC020002812023
IN THE COURT OF THE XII ADDL. JUDGE, COURT OF
SMALL CAUSES & ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU (SCCH-08)
DATED THIS THE 14th DAY OF NOVEMBER - 2025
PRESENT: Mrs. Kannika M.S.,
M.A., LL.B.
XII ADDL. SCJ & ACJM,
MEMBER - MACT, BENGALURU.
C.C. No.159/2023
Complainant : Sri. Ganesh Kumar R.,
S/o. Sri. Rajappan P.,
Aged about 46 years,
Residing at No.98, 5th cross,
Near 15F Bus Stop,
Kumaraswamy layout 2nd Stage,
J.P. Nagar,
Bengaluru-560 078.
(By Dharmottama Law Associates,
Advocate)
:Vs:
Accused : Smt. Pavithra Kiran Kumar,
W/o. Sri. bKiran Kumar,
Aged about 36 years,
Residing at No.203,
Surya Nagara High Rise apartment
Residents Welfare Association ®
Suryanagara Phase,
SCCH-8 2 C.C.No.159/2023
Chandrapura - Anekal Main Road,
Bengaluru-560 081
Also at
M/s. Gowthami Enterprises,
(Hospitality services)
Industrial Catering Services,
No.111/3, Kavya Nilaya,
Behind Government School,
Banahalli Road,
Chandrapura Anekal Taluk,
Bengaluru-560 099.
(By Sri. J.Sathish Kumar - Advocate)
Date of complaint : 03.01.2023
Date of commencement of
Evidence : 03.01.2023
Offence charged : Sec.138 of Negotiable
Instruments Act
Date of Judgment : 14.11.2025
Opinion of the Judge : Accused found guilty
JUDGEMENT
This is a private complaint filed U/Sec.200 of Cr.P.C. against the accused for the alleged offence punishable U/Sec.138 of Negotiable Instrument Act.
SCCH-8 3 C.C.No.159/2023
2. The brief facts of the case of the complainant is that:
The accused and complainant were well acquainted since more than few years and as such the accused approached the complainant for Rs.24,40,000/- as hand loan for accused personal commitments. The complainant had agreed to lend the said amount of Rs.24,40,000/- on different occasions as and when the complainant was able to mobilise the said amount through bank transfer. Further as security for the said hand loan amount, the accused had given the original copy of Release Deed bearing DOC No.ABL-1-05047-2016-17 dated 22- 12-2016 executed by the husband of the accused i.e., Sri. K. Kiran Kumar in favour of Smt. Pavithra i.e., the accused herein.
The accused had repaid an amount of Rs.4 lakhs and for remaining amount of Rs.20,40,000/- the accused had sought time to repay the balance amount. Further accused had issued cheque bearing No.302370 for Rs.20,40,000/- dated 14-11- 2022 drawn ont Karnataka Bank, Chandapura branch, Bengaluru. The complainant presented the said cheque for encashment through his banker SBI, Kumaraswamy layout SCCH-8 4 C.C.No.159/2023 branch, Bengaluru, which was dishonoured vide endorsement dated 15-11-2022 as Funds Insufficient. Thereafter the complainant issued legal notice on 28-11-2022 to the accused, but the legal notice sent to the first cause title address was returned with shara as Door locked and legal notice sent to second cause title address was duly served upon the accused on 30-11-2022. Despite of service of notice, the accused has not chosen to make any arrangement for the payment of cheque amount to the complainant nor has replied. Hence, the complainant has filed the present complaint before this Court.
3. Cognizance was taken and sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, the summons was issued to the accused. Accused appeared through her counsel and got enlarged on bail. Substance of accusation was framed, read over and explained to the accused in the language known to her, she denied the same and claimed to be tried. Hence, the case was posted for complainant's evidence. SCCH-8 5 C.C.No.159/2023
4. In order to prove his case, the complainant got examined himself as PW-1 and got marked the 22 documents at Ex.P1 to Ex.P22 and closed his evidence. After closure of complainant's side evidence, the statement U/Sec.313 of Cr.P.C was prepared and read over to accused, she has denied the same. The accused has examined herself as DW.1 and got marked Ex.D1 to D5 documents. Thereafter, case was posted for arguments.
5. I have heard the arguments. Perused the entire records in this case.
6. The following points arise for my consideration:
1. Whether the complainant proves that, the accused has issued the cheque bearing No.302370 for Rs.20,40,000/- dated 14-11-
2022 drawn at Karnataka Bank, Chandapura branch, Bengaluru and the complainant presented the said cheque for encashment, but the said cheque returned on 15-
11-2022 with an endorsement as "Funds Insufficient" ?
2. Whether the complainant further proves that he has got issued the legal notice dated: 28.11.2022 to the Accused demanding the cheque amount from the Accused within 15 days from the date of receipt of the notice, the said legal notice is duly SCCH-8 6 C.C.No.159/2023 served on the accused, but the accused has failed to make the payment of the cheque amount well within the prescribed time and there by committed an offence punishable under section 138 of Negotiable Instrument Act?
3. What order?
7. The finding of this court on the above points is as under:
Point No.1 : In Affirmative
Point No.2 : In Affirmative
Point No.3 : As per final order,
for the following;
REASONS
POINTS NO.1 & 2:
8. Since these points are interconnected to each other, they are taken up together for discussion to avoid repetition of facts.
9. According the complaint, the accused is known to the complainant and on the basis of said acquaintance borrowed handloan of Rs.24,40,000/- from the complainant. Thereafter when the complainant demanded to repay the SCCH-8 7 C.C.No.159/2023 amount, the accused issued the post dated cheque bearing No.302370 dated 14-11-2022 for a sum of Rs.20,40,000/- drawn on Karnataka Bank, Chandapura branch, Bengaluru and when he has presented the said cheque for collection and for realization, the said cheque dishonored and returned with shara "Funds Insufficient" on 15-11-2022, hence he issued the legal notice to the accused on 28.11.2022 through RPAD and the same was served to the accused. The accused has not paid the amount, hence the complaint.
10. In support of his contention complainant has filed affidavit in lieu of examination-in-chief wherein reiterated the averments of the complaint and examined as PW.1 and got marked Ex.P1 to P22 documents. Ex.P1 is the cheque bearing No.302370 dated 14-11-2022 for a sum of Rs.20,40,000/- drawn on Karnataka Bank, Chandapura branch, Bengaluru issued by the accused in favour of the Complainant. EX.P2 is the endorsement dated: 28.11.2022 issued by the Bank with respect to the dishonour of the cheque bearing No.302370 dated 14-11-2022 for a sum of Rs.20,40,000/- . It is shows SCCH-8 8 C.C.No.159/2023 that cheque are dishonored for the reason Funds Insufficient. Ex.P3 is the legal notice dated 28.11.2022 issued by the complainant through his counsel to the accused for the repayment of the said loan amount. Ex.P4 and 5 are the two postal receipts, Ex.P6 is the postal cover. Ex.P7 is the postal acknowledgment which shows that the legal notice sent to the 1st address of the accused was returned unclaimed and to the 2nd address was served. The accused has not repaid the amount. Thereafter complainant has filed this case against the accused. Hence, complainant has complied the mandatory requirements of Sec.138 of N.I. Act.
11. The accused has examined herself as DW.1 and in the examination in chief accused has deposed that, the complainant is a friend of her husband, and they had financial transaction with the complainant. The money received was already repaid. During the time of the financial transaction, they had given the complainant a release deed and two cheques each from herself and her husband as security. After repaying the money, they asked for the cheques to be returned, but the SCCH-8 9 C.C.No.159/2023 complainant did not return them and has misused them to filed a false case. She do not owe any money to the complainant, hence, to prays to acquit her from this case.
12. Let me discuss whether the amount mentioned in the cheque is for a legally recoverable debt or for other liability. The interpretation of the expression for discharge of any debt or other liability occurring in section 138 of N.I. Act is significant and decisive in matter. The explanation appended to section 138 express the meaning of the expression debt or other liability for the purpose of section 138. This expression means a legally enforceable or other liability. Section 138 treats dishonour of cheque as an offence if the cheque has been issued in discharge of debt or any other liability. The explanation leaves no manner of doubt that to attract an offence under section 138 there should be legally enforceable debt or other liability. As per section 139 of N.I. Act there is a presumption in favour of the complainant that the cheque was issued for discharge of debt or other liability. The said presumption is a legal presumption and it is in favour of the SCCH-8 10 C.C.No.159/2023 holder of cheque. It is open to the accused to rebut the said presumption. The accused has not rebut the presumptions which is available in favour of the complainant.
13. It is the mandate of Section 139 that there is a presumption in favour of the holder of the cheque that the holder received the cheque of the nature referred to in section 138, for the discharge in whole or in part or other liability. Needless to mention that the presumption contemplated under section 139 of N.I. Act is a rebuttable presumption. However the onus of proving that the cheque was not in discharge of any debt or other liability is on the drawer of the cheque/accused. In Hiten P. Dalal V/s Bratindranath Banerjee reported in 2001 (6) SCC 16 the Hon'ble Supreme Court held that both section 138 and 139 require that the court shall presume the liability of the drawer of the cheque for the amounts for which the cheque are drawn.
Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The SCCH-8 11 C.C.No.159/2023 presumption under section 139 of N.I. Act is a presumption of law, as distinguished from presumption of facts.
In Laxmi Dyechem V/s State of Gujarat and others reported in 2012 (13) SCC 375 , the Hon'ble Supreme court reiterated that in view of section 139 it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption.
In K.N. Beena V/s Muniyappan and Anothers reported in 2001(8) SCC 458, the Hon'ble Supreme court held that in view of the provisions of section 139 of the N.I.Act read with section 118 thereof the court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. The accused had to prove by cogent evidence that there was no debt or liability.
14. The accused has not denied the financial capacity of the complainant and also money transaction in between them, SCCH-8 12 C.C.No.159/2023 accused defence is that she has paid the amount which was borrowed by the accused. But complainant has produced his Income tax returns files and statement of accounts as Ex.P9 to 21 to demonstrate his financial capacity. On perusal of the said documents it clears that complainant was financially capable to lend the amount and complainant has transferred the amount on different occasions.
15. Accused has not denied the acquaintance between them and also amount transferred to her account from the complainant account. Dw1 in her cross-examination admits the execution of Ex.P8 and Ex.P22 and also transaction of Rs.24,00,000/-. Accused voluntarily stated that she has issued the cheque to the complainant for security of loan transaction of Rs.24,00,000/-, which clears that there was several money transactions between the accused and complainant.
16. Further accused counsel in the cross-examination taken defence that, notice is not been served upon her, but accused in her cross-examination admits that "sign on Ex.P7 is mine, the address mentioned in the Ex.P7 is her correct address" SCCH-8 13 C.C.No.159/2023
Further deposed that "after service of notice she asked the complainant, complainant told that he can file the case". These admissions of the accused clears that notice was given to the correct and proper address of the accused. Even after service of notice accused has failed to issue reply notice. When she kept quite regarding the notice of the complainant and not issued reply notice after getting to know about the notice, the complainant no needs to prove his financial capacity. At this stage this Court has relied on decision rendered by the Hon'ble Supreme Court in Tedhi Sing V/s Narayan Das Mahant(Tedi Singh) 2022 SCC Online SC302, in this case Court held that, "Where the accused has failed to send reply to the legal notice, challenging the financial capacity of the complainant, at the first instance, complainant need not prove his financial capacity".
The above said decision is aptly applicable to this case on hand, when the accused has kept quite without issuing the reply at the very earlier stage available to him to put forth him SCCH-8 14 C.C.No.159/2023 defence, she has no right to question the financial capacity of complainant.
17. The accused main contention is that she has repaid the amount which was borrowed by the complainant, the disputed cheque issued for the security of the loan, after repayment of loan complainant has not returned the cheque and filed this case. The complainant has admitted that he is knowing the husband of the accused and also deposed that he has given loan to husband of the accused separately and denied the suggestion of accused regarding Ex.P1 cheque was given by the accused at the time of obtaining the loan as security. But accused has not produced any documents to show that she has repaid the loan taken from the complainant. Further accused has not produced any other oral and documentary evidence in support of her defence. Assuming for a moment, hypothetically only for the sake of appreciation of evidence, if the disputed cheque given as security, what precluded the accused to take action against the complainant SCCH-8 15 C.C.No.159/2023 even after repayment of loan misuse of cheque, is not explained by the accused.
18. According to the defence of the accused the cheque issued as security for loan amount at the time of borrowing of loan, then she has repaid the same. The complainant has not returned the cheque, then misused the cheque. If the complainant misused the signed blank cheque, why she kept quiet without taking the legal action against the complainant and what prevented her to taken action against him, it creates suspicion on the contention of the accused. Any prudent man cannot sit like accused, if the cheque was misused by other person and it was within her knowledge.
19. When the accused has taken up a specific plea that the disputed cheque of this case issued by her in the year 2018-19 as security for loan and she has repaid the loan. Inspite of repayment of loan amount and demand for return of cheque, complainant has not returned the cheque and misused the same. The onus to prove under Section 102 Indian Evidence Act shifts on the accused to demonstrate the same. SCCH-8 16 C.C.No.159/2023 But except oral testimony the accused has not produced any document. When such being the case, there is no strength in the arguments canvassed by the learned counsel for the accused. This court is not persuaded to accept the contention of the accused. Assuming for a moment, hypothetically only for the sake of appreciation of evidence, if the disputed cheque issued in the year 2018-19 and she repaid the loan, what prevented the accused to call the complainant to return the cheques and also to take the legal action even after repayment of hand loan by her. The accused would have atleast sent a legal notice after repayment of loan by her to return the cheque. The evidence of DW.1 discloses that the accused has not taken any legal action whatsoever known to law calling the complainant to give back the cheque which he has taken as security for loan amount. No ordinary prudent man will sleep over his rights for years when her cheque is not returned. Without there being any documentary or independent oral evidence, mere contention taken up in the cross-examination of PW.1 does not avail any benefit to the accused. Hence, this SCCH-8 17 C.C.No.159/2023 contention urged by the accused is also not tenable in the eye of law.
20. Further more, the accused has not taken any action against the complainant after filing of this case. If there was really a transaction as alleged by the accused then she would have certainly taken action. In this regard it is relevant to rely on the decision reported in AIR 2023 SC 5018 in the case of Rajesh Jain V/s Ajay Singh, wherein it was held as here under :
Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section
138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said SCCH-8 18 C.C.No.159/2023 fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.
The principles laid down therein aptly applicable to the case on hand.
In the instant case on hand, also the accused has taken a similar defence that the complainant has misused the cheque given in the transaction with him, but the accused failed to initiate any legal action in this regard. The accused however failed to provide any substantial evidence or to file police complaint regarding alleged misuse of cheque. In contrast, the case of the complainant remained consistent and the signature of the accused on cheque was unchallenged, allowing presumption has to legally enforceable debt to take effect. To trigger the presumption mere admission of the drawer's signature without admitting the execution of the entire contents in the cheque is sufficient. The said principles has been laid down by the Hon'ble Apex Court in a decision reported in (2019) 4 SCC 197 in the case of Birsingh Vs. Mukhesh SCCH-8 19 C.C.No.159/2023 Kumar. When such is the case the principles therein aptly applicable to the case on hand.
21. Further on the same point of law it is relevant to rely on a decision of the Apex Court in the case of APS Forex Services Pvt. Ltd., v. Shakti International Fashion Linkers and Others reported in AIR 2020 SC 945 held regarding presumption is concerned that when the accused admits issuance of cheque, his signature on cheque and that cheque in question was issued for discharging the liability, there is always a presumption in favour of the complainant that there exists legally recoverable debt or liability.
22. In the instant case, the accused has not raised any probable defence. Hence, in such an event the accused has not rebutted the presumption as contemplated under Sec.139 of N.I.Act. The accused though disputed financial capacity of the complainant, but the complainant had demonstrated his financial capacity. The accused also not disputed the signature SCCH-8 20 C.C.No.159/2023 in Ex.P1. Therefore, it is clear as a cloud less sky that presumption envisaged under Sec.118 and 139 of N.I. Act has not been rebutted by the accused.
23. Further the signature on the cheque was admitted by the accused. The discussions made supra discloses that the accused failed to demonstrate that, she has given the Ex.P1 cheque as a security to the transaction between the wife of the accused and the complainant. In this regard it is relevant to rely on a decision reported in Hon'ble Apex court reported in 2015(4) KCCR 2881 (SC), held in between "Vasanthakumar V/s Vijayakumari, wherein it is held that:
"Accused not disputing issuance of cheque and his signature on it. Plea that it was issued long back as security and that loan amount was repaid".
And also relied on Decision of Hon'ble Supreme Court of India reported in AIR 2019 SC 2446 (Bir Singh V/S Mukesh Kumar) wherein the Hon'ble court held that:
"Negotiable Instrument Act(26 of 1881), S.138, S.139- Presumption as to legally enforceable debt- Rebuttal- signed blank cheque- If voluntarily SCCH-8 21 C.C.No.159/2023 presented to payee, towards payment, payee may fill up amount and other pariculars and it in itself would not invalidate cheque- Onus would still be on accused to prove that cheque was not issued for discharge of debt or liability by adducing evidence."
Another decision reported in 2021(1) DCR 625 between M/s. Kalamani Tex and another Vs P. Balasubramanian, wherein it is held that:
"Since signature on cheque was admitted and presumption raised upon accused was not sufficiently rebutted by accused, so passing acquittal is unjustified".
The aforesaid decisions are aptly applicable to the facts and circumstances of the present case.
24. The accused also failed to obtain favourable answer from the mouth of PW.1 to rebut the presumptions. Though there are some small discrepancies in the evidence of PW.1, that itself will not falsify the case of the complainant.
25. The complainant produced the cheque marked as Ex.P1 which was issued in his favour and he is the holder in due course and the said cheque was dishonored for the reason Funds Insufficient and even after issuance of notice, the accused has not paid the cheque amount. Thereby she has SCCH-8 22 C.C.No.159/2023 committed an offence punishable under section 138 of N.I. Act. Accordingly, I answered the Point No.1 and 2 in the Affirmative.
POINT No.3:-
26. Hence, considering the facts and circumstance involved in the case, I am of the opinion that, the complainant is entitled for the compensation as per section 80 of the Negotiable Instrument Act. Accordingly, in the light of above detailed discussion, I proceed to pass the following:
ORDER Acting U/Sec.255(2) of Cr.P.C. the accused is hereby convicted for the offence punishable U/Sec.138 of N.I. Act and she is sentenced to pay fine of Rs.20,50,000/- (Rupees Twenty lakhs fifty thousand only).
In default of payment of the fine, the accused shall undergo simple imprisonment for a period of one year.
Out of the fine amount collected from the accused, Rs.20,40,000/- shall be paid to the complainant as compensation U/s.357(1) of Cr.P.C, SCCH-8 23 C.C.No.159/2023 remaining Rs.10,000/- shall be forfeited to State towards expenses of the case.
It is made clear that in view of Sec.421(1) of Cr.P.C even if the accused undergoes the default sentence imposed above, she is not absolved of liability to the fine amount.
Bail bond and surety bond of the accused stands cancelled.
Office is directed to supply a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me, in the open Court on this the 14th day of November, 2025) KANNIKA Digitally signed by KANNIKA M S MS Date: 2025.11.29 17:42:32 +0530 (Kannika M.S.) XII Addl. Small Causes Judge & ACJM, Bengaluru.
ANNEXURE List of witnesses examined for complainant :-
P.W.1 : Ganesh Kumar R. List of documents marked for complainant:-
Exhibits Particulars of the Document
Ex.P1 Cheque
Ex.P1(a) Signature of Accused
Ex.P2 Bank Endorsement
SCCH-8 24 C.C.No.159/2023
Ex.P3 Legal notice
Ex.P4 & 5 Postal receipt
Ex.P6 Postal cover
Ex.P7 Postal acknowledgment
Ex.P8 Letter dt.22-12-2016
Ex.P9 to 11 Income Tax Return and Form No.16
Ex.P12 to 21 Account statements
Ex.P22 Loan agreement dt.8-3-2018
List of witnesses examined for accused:
DW.1 : Pavithra List of documents marked for accused:- Ex.D1 & 2 : Statement of account of Union Bank of India Ex.D3 : Statement of account of Gowthami Enterprises Ex.D4 : Statement of account of Bank of India Ex.D5 : Statement of account of Karnataka Bank KANNIKA M Digitally signed by KANNIKA MS S Date: 2025.11.29 17:42:51 +0530 (Kannika M.S.) XII Addl. Small Causes Judge & ACJM, Bengaluru.