Bangalore District Court
Sudharabni S R vs M Srinivas on 2 September, 2025
KABC020038892019
IN THE COURT OF ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY.
(SCCH-6)
Present: Smt. Chetana S.F.
B.A., L.L.B.,
IV Addl., Small Cause Judge & ACJM,
Court of Small Causes,
Bengaluru.
CC. No.788/2019
DATED THIS THE 2nd DAY OF SEPTEMBER, 2025
COMPLAINANT/S Smt.Sudharani S.R. (dead)
Rep by her husband (Lr)
Sri.S.L.Ravishankar
S/o Late Sri.Lingoji Rao
Aged about 66 years
Residing at No.967
2nd main road
4th block
Rajajinagar
Bangalore-10
(amended on 1-8-2022)
(By Sri.T.K.S. - Advocate)
-Vs-
ACCUSED Sri. M.Srinivas
S/o Sri.Muniswamappa
Major
Prop of M/s Sri.Vigneswara Automac
SCCH-6 2 CC No.788/2019
R/A and factory at
L-96, 11th cross,
Lakshminarayanapura
Bangalore-560021
(By Sri. K.C.S.- Advocate)
-: J U D G M E N T :-
This is a complaint filed by the complainant U/Sec. 200
of Cr.P.C. for the offences punishable under Secs.138 and 142
of N.I. Act as against the accused praying to punish the
accused for the said offence.
2. The case of the complainant is that, the accused
demanded Rs.40 lakhs for the purpose of purchasing higher
end lathe machine to his factory expansion on 10-3-2011. The
complainant paid Rs.8 lakhs by pledging her gem and jewels
by way of cash and complainant has arranged cash of
Rs.31,40,000/- through her friends and relatives who arrayed
as witness in this case in various dates till middle of January
2018. The accused has promised to repay Rs.39,40,000/-
within six months with 2% interest per month without fail i.e.,
on or before 30-6-2018. The accused has issued post dated
cheque No.249799 dt.5-11-2018 for Rs.39,40,000/- drawn on
SCCH-6 3 CC No.788/2019
Textiles cooperative bank limited Lakshmi narayanapura
Branch, Bangalore-560021 in favour of the complainant. The
complainant presented the said cheque to the bank for
encashment, but the said cheque returned unpaid as Account
closed normal RE on 19-11-2018. The complainant issued
legal notice dt.14-12-2018 to the accused. The accused has
not paid the cheque amount and has committed an offence
punishable u/s 138 of NI Act. Hence, this complaint.
3. After recording the sworn statement of the
complainant by way of affidavit and also verifying the
documents, cognizance was taken against the accused for the
offence punishable under Sec.138 of N.I. Act. The accused
appeared before this court through his counsel and enlarged
on bail and his plea was recorded. The accused pleaded not
guilty and claimed to be tried. Hence, the case was posted for
evidence of the complainant.
4. The complainant got examined herself as PW.1 and
one Manjunath got examined as PW-2, one Smt.Manjula got
examined as PW-3, one Rangaraju got examined as PW-4, one
SCCH-6 4 CC No.788/2019
Govindamma got examined as PW-5, one Kamalamma got
examined as PW-6, one Shree S.Hemanth Kumar got
examined as PW-7, one Rashmi R. got examined as PW-8,
Malathikumar got examined as PW-9, one J.Janaki got
examined as PW-10, one Pushpavathi got examined as PW-11,
one M.Krishnamma got examined as PW-12, one
Shanthanarayana got examined as PW-13 and got marked
documents as Exs.P.1 to P.13. Thereafter, the case was posted
for recording the statement of accused under Sec.313 of
Cr.P.C. In the statement U/s. 313 Cr.P.C., the accused has
denied all the incriminating evidence appearing against him.
Dr.Bhavana Desai got examined as CW.1 and got marked 3
documents at Ex.C1 to Ex.C3.
5. During the pendency of the trial, when the case is
posted for arguments on 20.06.2022, complainant reported to
be dead on 22.05.2022 and filed the application to bring the
husband of the complainant on record. Accordingly, the
husband of the complainant was permitted to represent the
case.
SCCH-6 5 CC No.788/2019
6. Heard the arguments of both side and Perused the
records.
7. Learned advocate for accused has filed following
citations :-
1.Crl.Appeal No.200057/2016 dt.17-12-2020
2. 1997 (2) (HC) 658
3. Crl.Appeal No.302/2010 dt.16-3-2018
4. 1019(5) SCC 418
5. AIR 1996 SC 2184
6. AIR 1980 SC 531
7. AIR 2024 SC 4103
8. Punjab and Haryana High Court- 353
9. Delhi High court 217
10. AIR 2023 SC 471
11. KAR 68
12. Madras High court 77
13. Bombay High court 159
14. Delhi High court 326
15. Punjab and Haryana High Court 364
16. Madya Pradesh High court 861
17. ILR 2008 KAR 4629
18. Gujarath High court 502
8. The following points arise for my consideration:
1. Whether the complainant proves that the cheque No.249799 dt.5-11-2018 for Rs.39,40,000/- drawn on Textiles cooperative bank limited Lakshmi narayanapura branch, Bangalore-560021, SCCH-6 6 CC No.788/2019 issued by the accused has been dishonored on the ground of Account closed normal RE on 19-11-2018 even after receiving the intimation regarding the dishonor of cheque failed to pay the cheque amount within the stipulated period and thereby the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
9. My findings on the above points are as under
Point No.1: In the Affirmative Point No.2: As per final order for the following:
-: R E A S O N S :-
10. POINT NO.1:- In view of the present legal position as held by our Hon'ble High Court as well as Apex Court of India in a catena of decisions as well as relevant provisions of the Act, this court has to see whether the complainant has complied all the requirements as contained in Sec.138 of NI Act so as to bring home the guilt of the accused for the alleged offence. If so, whether the accused is able to rebut the legal presumption available to the complainant under Sec.139 of the Act by SCCH-6 7 CC No.788/2019 adducing probable defense or not. However, it is held by the full bench of our Apex Court in the case of Rangappa Vs. Mohan reported in 2010 (1) DCR 706 that;
"The Statutory presumption man- dated by sec.139 of the Act, does in- deed include the existence of a legally enforceable debt or liability. However, the presumption U/S 139 of the Act is in the nature of a rebuttable pre- sumption and it is open for the ac- cused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested".
11. Therefore, in view of the above decision, once the cheque is admitted, the statutory presumption would automatically fall in favour of the complainant that, the alleged cheque was issued for discharge of an existing legally enforceable debt or liability against the accused and the burden will shift on to the accused to rebut the same.
INGREDIENTS OF OFFENCE AND DISCUSSION:-
12. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the SCCH-6 8 CC No.788/2019 essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First Ingredient: The cheques were drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheques were drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheques were returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;SCCH-6 9 CC No.788/2019
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
-APPRECIATION OF EVIDENCE-
13. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled. Notably, there is no dispute at bar about the proof of only first, third, and fifth ingredient. The complainant had proved the original cheque vide Ex.P.1 which the accused person had not disputed as being drawn on the account of the accused. It was not disputed that the cheque in question was SCCH-6 10 CC No.788/2019 presented within its validity period. The cheque in question was returned unpaid vide return memo dated 19.11.2018 vide Ex.P.2 due to the reason, "Account closed normal RE". The complainant had proved the service of legal demand notice dated 14-12-2018 vide Ex.P.3 by bringing on record the postal receipt vide Ex.P.4, postal cover vide Ex.P.5, Ex-P6-loan agreement, Ex-P7-bank challan. Thus, there is a dispute only with regard to the second ingredient to the offence. As such, the 1st,3rd,4th& 5th ingredient of the offence under section 138 of the NI Act stands proved.
14. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debtor any liability. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumption are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or SCCH-6 11 CC No.788/2019 drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
15. The combined effect of these two provisions is a presumption that the cheque is drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
16. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence.
SCCH-6 12 CC No.788/2019
17. The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. In this case, the arguments raised by the Ld. counsel for the accused to rebut the presumption are discussed below:
18. The counsel for the accused argued that accused has seriously disputed and denied the financial capacity of the complainant to lend the loan of Rs.39,50,000/- and complainant has failed to prove his financial capacity. Further learned counsel for the accused argued that though complainant examined PW-3 to 13 to prove that complainant has borrowed the amount from all those persons and lend the same to the accused, but the evidence of the PW-3 to 13 cannot be believable as PW-3 to 13 in their cross examination clearly admitted that husband of the complainant has prepared the affidavit in evidence and there are several SCCH-6 13 CC No.788/2019 contradictions in the evidence of PW-3 to 13. Hence evidence of PW-3 to 13 cannot be acceptable. Further argued that the alleged debt claimed by the complainant is a time barred debt. As per the complainant himself, the alleged debt is of July 2015 and once again paid the amount in August 2015. The cheque is dated 5-11-2018. Thus complainant is claiming the debt which is clearly time barred debt and complainant cannot claim time barred debt. Further argued that the cheque in question is a non CTS cheque issued in the year 2012 itself. Further argued that the signature in the Agreement Ex-P6. Ex.P6(a) and 6(b) are not the accused signature. Ex-P6 dt.10- 3-2011 in respect of Rs.8 lakhs. Ex-P6 was executed on 12-3- 2012 in respect of the loan of Rs.8 lakhs taken in 10-3-2011. Further no single document is produced to show that complainant has lend the loan of Rs.39,40,000/-.
19. Further accused counsel argued that accused was subscriber/member of the chit business carried by the complainant in the year 2010-2011 for Rs.1 lakh at that time, accused has issued the cheque in question for security SCCH-6 14 CC No.788/2019 purpose. Thereafter even after completion of the chit business, complainant has not return the said cheque back by saying that he will give the cheque afterwards and thereafter has misused the same and filed this case. Further accused has taken defence that notice has not been served to the accused.
First defence :-
20. According to the complainant, he has paid sum of Rs.8 lakhs by pledging her gems and gold by way of cash and has arranged sum of Rs.31,40,000/- through her friends and relatives who are arrayed as witness, in this case on various dates till January 2018 and accused has promised to repay entire loan of Rs.39,40,000/- within six months with 2% interest p.m. without fail on or before 30-6-2018 and accused has issued the cheque in question on 5-11-2018. In the cross- examination PW-1 clearly admitted that she is a house wife and her husband was working as a tailor and they were residing at leased house and running tailor shop in the rented shop and paying the rent of Rs.8,000/-p.m. Further PW-1 stated that her husband was getting income of rs.15,000/- to SCCH-6 15 CC No.788/2019 Rs.20,000/- p.m. PW-1 pleaded her ignorance about the actual income after deducting the expenses. Further PW-1 stated that in the year 2011 her children's eduction was completed and they were working and her elder daughter was getting salary of Rs.35,000/- to Rs.40,000/- and younger daughter was getting Rs.30,000/-p.m. Further PW-1 stated that on the day when accused has asked Rs.40,00,000/- on the same day, she has given the amount of rs.40,00,000/- to the accused. Further PW-1 stated that she was having Rs.9 lakhs from the lease of her house and she has brought the remaining Rs.31 lakhs by borrowing from his friends on the same day and given to the accused. Further PW-1 stated the names of the friends from whom she has borrowed the amount. Even PW-1 in support of her contention, examined witness as PW-3 to PW-13.
21. On perusal of the evidence of PW-3 to 13 all the affidavit evidence of all these persons are exactly same and are prepared in a stereo type. Further though PW-3 to 13 in their affidavit evidence clearly stated that on March 2011 they all SCCH-6 16 CC No.788/2019 gone to the Eastern tailors run by the husband of the PW-1 for stitching cloths, at that time, deceased complainant and her husband Ravishankar introduced one person by name Srinivas proprietor of M/s Vigneshwara automac, Bangalore and requested them to help him with financial support. Even the deceased Sudharani also recommended to assist him financially, but as PW-3 to 13 was not having sufficient funds to lend him on that day, they have not lend any money to the accused on that day and said Sudharani had lent loan of Rs.8 lakhs by pledging her gems and jewels. Thereafter in July 2015, once again when PW-3 to 13 have went to the Eastern tailor for stitching cloths, the complainant Sudharani and accused requested for financial help to the tune of Rs.5 lakhs. Thereafter PW-3 to 13 took one week and two weeks time to arrange the funds with the help of their friends, relatives and their family members. PW-3 arranged to pay Rs.3 lakhs by borrowing from her husband and family members and by pledging the jewelry and paid Rs.3 lakhs on 20-7-2015. PW-4 have paid Rs.3 lakhs on August 2015 and PW-5 has paid rs.3 lakhs on September 2015 and PW-6 to 12 have paid Rs.3 SCCH-6 17 CC No.788/2019 lakhs on September 2015. PW.9 and PW.13 paid Rs.3 lakhs on 16-9-2015.
22. According to the complainant on the day when the accused requested for the amount of Rs.40 lakhs on the same day she has borrowed the amount from her neighbours i.e., PW-3 to 13 and given the amount to the accused. But as per the evidence of PW-3 to 13 all of them has not given the amount on the same day to the accused.
23. Further according to the complainant accused has asked for the loan of Rs.40 lakhs in March 2011 itself and the complainant has paid Rs.8 lakhs and and complainant arranged cash of Rs.31,40,000/- through her friends and relatives in various dates till January 2018. But PW-1 has not specifically stated the dates on which she has lend Rs.8 lakhs to the accused and also Rs.31,40,000/- to the accused.
24. On the other hand, PW-3 to 13 witness clearly deposed that PW-1 has lent loan of Rs.8 lakhs in March 2011 and thereafter they have lent Rs.3 lakhs in August and September 2015 on different dates. But the said fact has been SCCH-6 18 CC No.788/2019 denied by the accused, when accused has seriously disputed and denied the financial capacity of the PW-1 burden lies on the PW-1 to prove his financial capacity through cogent and reliable evidence and materials.
25. Though complainant stated that she has paid Rs.8 lakhs by pledging her valuable gems and jewels but PW-1 has not produced single document to show that whether she has pledged her gold and gems and how much amount did she get by pledging gems and jewels. Further contrary to her earlier version, PW-1 in her cross-examination para No.2, stated that Rs.9 lakhs was obtained by her from the lease of her house. Further when it was specifically questioned that whether she has produced any document to show that she was in possession of Rs.8 lakhs on that particular day, PW-1 stated that she has to enquire her husband with regard to the lease documents. But on perusal of the evidence and documents produced by the complainant, complainant has not at all produced any single document to show that she has lent the house on lease for Rs.8 lakhs and she has given the said Rs.8 SCCH-6 19 CC No.788/2019 lakhs to the accused. Even complainant has not produced any single document to show that she or her husband was the owner of any house. Even PW-1 has not stated the details of the house number and address and produced any single document. Hence, it creates a doubt about the version of the PW-1 that she has obtained Rs.8 lakhs from the lease of her house or by pledging gold or gems. Thus the complainant has failed to prove that she was in possession of Rs.8 lakhs and she has a capacity of lending Rs.8 lakhs to the accused in March 2011.
26. Apart from this, though PW-3 and 13 deposed that they have given the amount of Rs.3 lakhs each to the accused at the instance of the PW-1, but the version of the PW-3 to 13 cannot be believed as ordinarily no prudent man would lend the loan of Rs.3 lakhs to a 3rd person who is not directly in contact and well acquainted with them, only on the say of the PW-1 that too without obtaining any document or security for the repayment of the said amount and without any interest on same day. Even in the cross-examination PW-3,4,5,6,9, SCCH-6 20 CC No.788/2019 10,11,13 clearly admitted that they do not know about the financial transaction between the complainant and accused and further categorically admitted that there is no financial transaction between them and the accused and they have given amount of Rs.3 lakhs each to the PW-1. Even PW-3- PW.13 clearly admitted that they do not know whether the amount given by them to the PW-1 has been given by the PW.1 to the accused or not. Even all above witnesses clearly admitted that they do not know whether PW-1 has given Rs.40 lakhs to the accused or not. Further all above said witnesses clearly admitted that information for the contents of her chief affidavit has been given by the Ravishankar husband of the PW-1. Further all above witnesses clearly stated that as the said Ravishankar has stated that the amount given by them will be returned to them, they came to give the evidence and the said Ravishankar has asked to give the evidence to recover their amount, they came before the court as a witness. Even all above witnesses admitted that they have not taken any legal action against the Sudarani for not returning their amount. The very said fact creates a doubt about the version SCCH-6 21 CC No.788/2019 of the all above witnesses as ordinarily no prudent man would lend huge amount of Rs.3 lakhs in the year 2015 and keep quite without asking for the return of the amount and without taking any action against the said person for the return of the amount till this date. From the above admission of the all above witnesses it is clear that all these witnesses do not know about any transaction between the complainant and accused and though they stated that they have given amount of Rs.3 lakhs each to the complainant, but in their affidavit they have stated that they have paid cash of Rs.3 lakhs each to the accused through Sudarani and there is a contradiction in the evidence of the all the above witnesses.
27. Even PW-4 admitted in her cross-examination that there was no financial transaction between her and accused. Thus PW-4 also deposed contrary to her evidence. Even PW-4, 5 admitted that the information to her affidavit evidence has been given by the Ravishankar only and as per the request of the Ravishankar she is deposing before the court. SCCH-6 22 CC No.788/2019
28. PW-8 in her cross-examination admitted that she has not taken any legal action against either Srinivas or Sudarani for not paying the amount. Even PW-12 in her cross- examination admitted that she has also not taken any legal action against the accused either Sudharani for the recovery of the said amount.
29. Apart from this, all the above witnesses have stated that they have obtained amount by pledging gold and also from their family members that too without any interest and given the said amount to the Sudharani without any interest. Ordinarily no prudent man would not lend such huge amount to Rs.3 lakhs that too without taking any interest. As such the version fo the PW-3 to 13 cannot be believed. Moreover the evidence of the PW-3-13 seems to be totured witness an all most of the witness clearly admitted that as the Ravishankar has asked them to give the evidence before the court, they have came before the court and giving the evidence so that they will be get Rs.3 lakhs back and Ravishankar has given information for prepare affidavit. SCCH-6 23 CC No.788/2019 Thus, it appears that all these witnesses are interested witnesses and hence their evidence cannot be believed and acceptable. Moreover there is no single document produced by none of the witness to show that none of them have given the amount to the PW-1. Even as per Ex-P6 also complainant has lend the loan of rs.8 lakhs in March 2011 itself. If at all complainant has lend the loan in the year 2011 itself, then why till the filing of this present case, complainant has not taken any legal action against the accused, when accused has agreed to repay amount in 3 months itself. The complainant not taken of any legal action against accused till this date by PW.1 makes case or complaint highly suspected.
Second defence Time barred debt:
30. Further accused counsel argued that as per the complainant, complainant has lend the loan of rs.8 lakhs in March 2011 and she has borrowed the amount from the witnesses and given the amount of Rs.31,40,000/- to the accused on various dates till January 2018. But as per the SCCH-6 24 CC No.788/2019 evidence of the witnesses PW-3 to 13 they have given the amount to the accused through PW-1 in July, August, September 2015 itself and the cheque is dated 5-11-2018 i.e., after the 3 years from the date of the alleged loan of Rs.31,40,000/- and 7 years after the date of the loan of Rs.8 lakhs by the PW-1 which is clearly a time barred debt and the complainant cannot claim time barred debt.
31. In this regard this court relied on the decision reported in the Kerala High Court in a decision reported in 2001 Crl.L.J 24 in case of Sasseriyal Joseph Vs Devassia, held that section 138 of the Act is attracted only if there is legally recoverable debt and it cannot be said that time barred debt is legally recoverable debt. The said Judgment rendered by Kerala High Court in Sasseriyil Joseph's case was challenged before the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001 by Hon'ble Supreme Court by Judgment dated:10-09-2001 affirmed the said view of Kerala High Court and it is held as under:
SCCH-6 25 CC No.788/2019
"We have heard learned counsel for the petitioner. We have perused the judgment of the High Court of Kerala in Criminal Appeal No. 161 of 1994 confirming the judgment/order of acquittal passed by the Addl. Sessions Judge, Thalassery in Criminal Appeal No. 212 of 1992 holding inter alia that the cheque in question having been issued by the accused for due which was barred by limitation the penal provision under Section 138 of the Negotiable Instruments Act is not attracted in the case.
32. In view of the principles stated in the above referred decision and discussion it is evident that the penal provision of Section 138 of the N.I.Act is applicable only to the cheques which are issued for the discharge in whole or in part, of any debt or other liability, which according to Explanation must be a legally enforceable debt or other liability. A cheque given in discharge of a time barred debt will not constitute an unconditional undertaking or promise in writing either expressly or impliedly so as to attract the criminal offence under section 138 of N.I Act. A cheque given in discharge of a time barred debt will not constitute a promise in writing SCCH-6 26 CC No.788/2019 not even an implied promise so as to attract a criminal liability under Section 138 of N.I Act.
33. Further, complainant has filed the application for examination of the signature in the Ex-P6 and the same was allowed and FSL report has been received. Further complainant counsel examined the director of the FSL by name Bavani as per CW-1 wherein CW-1 got marked Ex- C3. Further CW-1 clearly deposed that the signature in the Ex-P1(a) and 6(a) and (b) and the admitted signatures are of one and the same person. Learned counsel for the accused cross examined CW-1 at length with regard to the various discrepancies in the report and also with regard to her experience and clarifications for giving the expert opinion. Further CW-1 stated that she has not produced copy of the each characteristic and enlarged copy. PW-1 clearly stated that there is some minor difference, they are not the major differences and hence she has not written about the minor difference in her opinion and stated that on consolidation studies, she has SCCH-6 27 CC No.788/2019 given the information and the report. It was argued by the learned counsel for the accused that if for the sake of the arguments, if at all complainant is alleged to have lend loan of Rs.8 lakhs as per Ex-P6, but the alleged loan transaction is of March 2011 and the complainant cannot claim the said loan amount in the year 2019 as it amounts to the time barred debt. In this regard as rightly argued by the learned counsel for the accused, it at all even it is proved and considered that the complainant has lend the loan of Rs.8 lakhs to the accused in March 2011, complainant cannot claim the said loan amount as the said debt is a time barred debt as the complainant is claiming alleged loan transaction of 2011 in the year 2019.
Defence; Signature in the cheque is not that of the accused.
34. Further learned counsel for the accused argued that when Ex.P1 cheque was presented to the bank, it was returned with endorsement 'Account Closed' and SCCH-6 28 CC No.788/2019 signature in the Ex.P1 is not the signature of the accused. In support of his contention, accused has examined the Branch Manager of the Textile Co-operative Bank Limited as Pw.2 who deposed that he working in the said bank since 2013 and Ex.P1 cheque is related to the account of accused Srinivas and he has produced account opening form, Specimen signature and bank statement as per Ex.P9 to 11. Further produced the requisition filed by the accused on 12.06.2008 as per Ex.P8 and requisition for the closing of the account on 16.03.2018 as per Ex.P13. In the cross examination PW.2 admitted that the said cheque is Non CTS cheque. In this regard, on perusal of Ex.P1 cheque admittedly it is non CTS cheque printed before 2010. But, however A Non CTS cheque can still be the basis for the sec. 138 of NI Act case for dishonor, provided it was validly presented within 3 months validity period after the RBI introduced CTS system 2011, even though non CTS cheque cannot be cleared through the CTS system. Non CTS cheque refer to the cheques that do not comply with SCCH-6 29 CC No.788/2019 cheque truncation system or CTS format. Non CTS cheques are considered obsolete in India as banks no longer clear them and customers are advised to replace any non CTS cheque book with a newer CTS 2010 standard. But, the Non CTS cheques were officially discontinued for clearing as of 31st December 2018.
35. Coming to the cheque of the present case, though present cheque is non CTS cheque issued by the accused on 05.11.2018 but the cheque has been presented to the bank on 15.11.2018 and the bank have given the endorsement as account closed. Thus complainant has presented cheque before 31.12.2018. Hence the defence taken by the accused is not maintainable.
36. Even though PW.2 admitted that there is a difference of signature in Ex.P1(a) and Ex.P9 account opening form and further PW.2 though admitted that the signature in the Ex.P1 is not the signature of the drawer of the cheque and at the time of the presentation of the cheque, they have not compared signature in the cheque SCCH-6 30 CC No.788/2019 with that of the specimen signature but, as per the FSL report, the signature in Ex.P1(a) is of the accused only. The evidence of the FSL examiner CW.1 can be relied than that of the evidence of PW.2 as PW.2 is not an expert.
Fourth defence cheque in question issued as a security.
37. Further accused has taken the specific defence that complainant was doing the chit business and accused was also one of a member of the said chit in the year 2010 to 2011 for Rs.1 lakh. At that time the accused has issued the cheque in question for security and even after the completion of the said chit, complainant has not returned the said cheque and misused the same and filed false complaint. Though accused has requested for the return of the cheque, the complainant has not returned the cheque by saying one or the other reason. In this regard, complainant has denied the defence of the accused entirely. Even when it was suggested to the SCCH-6 31 CC No.788/2019 witnesses PW.3 to 13 that PW.1 was doing the chit business and accused was a member of the said chit business those witnesses pleaded their ignorance about the said fact. The witnesses have not denied the fact that the PW.1 was running the chit and accused has given the cheque in question as a security in respect of the chit. Even some of the witnesses deposed that they do not have any information about the PW.1 was running the chit. Thus it can be inferred from the above said evidence that PW.1 was running the chit. Under such facts and circumstance, when complainant failed to prove her financial capacity, and failed to prove the existence of any legally recoverable debtunder such circumstances, the defence taken by the accused appears to be more probable than the case of the complainant. Conclusion:
38. In view of all the above discussion, it can be concluded that the complainant has failed to establish through cogent and convincing evidence, the fact of issuance of the cheque for SCCH-6 32 CC No.788/2019 discharge of legally enforceable debt or any liability, which is dishonored for want of sufficient funds. On the other hand, the accused has successfully rebutted the presumption available to the complainant through probable evidences, that would preponderate upon the evidence led by the complainant. Therefore, the accused is held to have not committed an offence punishable under sec. 138 of N.I. Act. Accordingly, Point No.1 is answered in the NEGATIVE.
39. POINT NO.2:- In view of my answer to point No.1, I proceed to pass the following:-
-: O R D E R :-
Acting under Section 278(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, accused is acquitted for the offence punishable under Section 138 of NI Act.
The bail and surety bond of the accused and surety shall stand canceled. (Dictated to the Stenographer, transcribed and computerized by her. After her typing, corrected, signed and then pronounced by me in open Court this the 2nd day of September, 2025).
(CHETANA S.F.) IV Addl., Small Cause Judge & ACJM, Court of Small Causes, Bengaluru.SCCH-6 33 CC No.788/2019
ANNEXURE List of witnesses examined for the Complainant:
PW.1 :- S.R.Sudharani PW.2 :- Manjunath PW.3 :- Manjula PW.4 :- Rangaraju PW.5 :- Govindamma PW.6 :- Kamalamma PW.7 :- Shree S.Hemanth Kumar PW.8 :- Rashmi R. PW.9 :- Malathikumar PW.10:- J.Janaki PW.11:- Pushpavathi PW.12:- M.Krishnamma PW.13:- Shanthanarayana CW-1 Dr.Bhavana Desai
List of witnesses examined for the accused:- None List of documents marked for the Complainant:-
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Bank Endorsement
Ex.P.3 : Legal Notice
Ex.P.4 : Postal Receipt
Ex.P.5 : RPAD cover
Ex.P.6 : Loan Agreement
Ex.P6(a) & 6(b) : Signatures
Ex.P.7 : Bank challan
Ex.P.8 : Authorization letter
Ex.P.9 to 11 : Account opening form, signature,
SCCH-6 34 CC No.788/2019
bank statement
Ex.P.12 : Requisition
Ex.P.13 : Letter dated 16.03.2018
Ex.C1 Sample Seal
Ex.C2 Forwarding letter
Ex.C3 FSL report
List of documents marked for the accused:- NIL (CHETANA S.F.) IV Addl., Small Cause Judge & ACJM, Court of Small Causes, BENGALURU.