Bangalore District Court
J Prakash vs S K Dinesh on 3 March, 2025
1
C.C.No.29657/2021
KABC030787802021
Presented on : 28-10-2021
Registered on : 28-10-2021
Decided on : 03-03-2025
Duration : 3 years, 4 months, 6 days
IN THE COURT OF THE XXII ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
PRESENT: SRI.JAI SHANKAR.J,
B.A.L., LL.B
XXII ADDL.C.J.M., BENGALURU.
DATED: THIS THE 3RD DAY OF MARCH 2025
JUDGMENT U/s.278(2) of BNSS -2023
(OLD CORRESPONDENCE NO. 255(2) OF CODE OF
CRIMINAL PROCEDURE
C.C.NO. : 29657/2021
COMPLAINANT : Sri. J. Prakash,
S/o. Jaganath,
Aged about 60 years,
Residing at No.290,
C, Loop Road,
Ideal Home Township,
2
C.C.No.29657/2021
Raja Rajeshwari Nagar,
Bengaluru - 560 102.
(By Sri. P.V. Raghupathi &
Associates., Adv)
V/s.
ACCUSED : Sri. S.K. Dinesh,
S/o. L Shive Gowda,
Aged about 45 years,
Residing at No.71,
BHEL Layout, (North)
Pattanagere,
Near Maramma Temple,
Rajarajeshwari Nagara,
Bangalore - 560 098.
(By Sri. Puttaraju. , Adv., )
Offence complained of : U/s.138 of N.I.Act
Plea of the Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 03.03.2025
JUDGMENT
This is a private complaint filed by the complainant
against the accused for the offence punishable under
Section 138 of Negotiable Instruments Act.
3
C.C.No.29657/2021
2. The brief facts of the complainant’s case is as
under:
It is contended that, the complainant is a businessman
and the accused is well known to him. The complainant
was looking a property at Bengaluru and since, the accused
was aware of the intention of the complainant to purchase
the property, he introduced one Sri. Chandu @ Lawerence
and had informed that, the said Chandu @ Lawerence
was a good real estate agent as he kept esteemed company
in Bengaluru and he would help him in buying a property
for the affordable price. The accused informed the
complainant that, a vacant site bearing No.2, old katha
no.26/33, and 26/38, old CMC kahta no.63 & 64, BBMP
No. 2509/26/33/63 and 64/2 carved out of 2 acre 2 guntas
of land situated at Nagadevanahalli Village, Kengeri Hobli,
Bengaluru south taluk, measuring 117 ft x 42 ft in all
4C.C.No.29657/2021
measuring 4914 sq.ft which is being mortgaged with Union
Bank of India and that, the accused informed to the
complainant that, the borrower Sri.B.N.Murthy had
defaulted in payment of loan and now the bank has filed O.A
No. 552/17 before the DRT Bengaluru, wherein the order is
being passed in favour of the bank. He has also informed
that, the property has come up for auction and appraised
that, the worth of the property is Rs.4 crore and the
accused agreed to help him out in buying at the lesser prize
for Rs.1,40,00,000/-. He has also explained the complainant
of the process of bidding and to pay an amount of Rs.40
Lakhs. Accordingly, the complainant has paid Rs.5 Lakhs on
14.10.2019, Rs.5 Lakhs on 22.10.2019, Rs.10 Lakhs on
23.10.2019, Rs.5 Lakhs on 24.10.2019, Rs.9 lakhs on
04.11.2019 and Rs.6 lakhs on 19.12.2019 to be remitted
before the DRT, for bidding the initial amount. However, as
5C.C.No.29657/2021
the DRT insisted to remit the auction amount through the
purchaser account, the complainant has deposited Rs.40
lakhs through his account. As the complainant was
successful bidder, he has paid the entire auction amount of
Rs.1,39,90,000/- and the DRT has also issued the sale
certificate on 26.10.2019 of the purchased property. The
complainant had visited the property to take the
possession, but at that time, about 5 to 6 person claiming to
be the owner of the said property had obstructed him. Then
the complainant realized the accused and his team having
hatched a plan to defraud him inspite of their aware that,
the property was in litigation from past 20 years. On the
repeated request and demand made by the complainant for
the refund of the receipt amount of Rs.40 lakhs, the
accused has issued cheque bearing No.390910, dt:
22.07.2021 for Rs.40 Lakhs, drawn on SBM, (SBI) RR
6C.C.No.29657/2021
Nagar branch, Bengaluru, assuring that, on its presentation,
it would be honoured. Believing the representation, when
the complainant presented the cheque through his banker
ie., State Bank of India, BEML Layout branch, Bangalore, it
dishonored with shara as “Funds Insufficient” dt:
23.07.2021. Thereby, the complainant got issued the
demand notice dt:12.08.2021 through RPAD, which was
served on the accused on 16.08.2021. Despite of which, the
accused has not chosen to comply the demand, which has
given cause of action to file the present complaint.
3. After filing of the complaint, this court has taken
cognizance of the offence punishable U/s.138 of N.I.Act.
Sworn statement of the complainant was recorded. Being
satisfied that, there are prima-facie materials to proceed
against accused, summons was issued. After appearance of
the accused, he was enlarged on bail and plea was recorded.
7
C.C.No.29657/2021
The accused has not pleaded guilty, but submitted that, he
would go for the trial.
4. From the basis of the pleadings, the following
points that arise for my consideration are as follows:-
1. Whether the complainant proves that, the
accused issued cheque bearing No. 390910,
dt: 22.07.2021 for Rs.40 Lakhs, drawn on
SBM, (SBI) RR Nagar branch, Bengaluru,
towards discharge of his liability which was
returned unpaid on presentation for the reason
“Funds Insufficient” and despite of
knowledge of the notice, he has not paid the
said cheque amount and thereby, committed
an offence punishable U/s.138 of N.I.Act?
2. What order?
5. The sworn statement and the documents marked at
Ex.P.1 to P.7 by the complainant is being treated as the
complainant evidence as per the decision of the Hon’ble
Apex Court in Indian Bank Association Vs. Union of India
and Ors., reported in 2010 (5) SCC 590. The statement of
8
C.C.No.29657/2021
the accused as required U/s. 313 of Cr.P.C. was read over
and explained to accused, he denied the incriminating
evidence appeared against him and submitted that, he has
the evidence and accordingly, he is being examined as DW.1
and also got marked Ex.D.7 to D.12 documents and also
got examined a witness by name Sri. Chandu @ Lawerence
and got marked Ex.D.13 to D.18 documents. Here it is
relevant to note that, the complainant by confronting a
document to the DW.1, has got marked Ex.P.8 document.
Likewise, the accused by confronting a documents to the
PW.1, has got marked Ex.D.1 to D.6 documents.
6. Heard. The counsel for the complainant has filed
his written argument and relied upon the decision of
Hon’ble High Court of Himachal Pradesh in 2018(1)
DCR 45 :2018 1 NIJ 610 – in – Cr.Appeal No.295/2017-
Surinder Singh Vs. State of Himahcal Pradesh.
9
C.C.No.29657/2021
2. 2010 11 SCC 411- Rangappa vs. Mohan, 3) 2018(8)
SCC 469 – T.P. Murugan (Dead)_ through LRs Vs. Bojan.
The defence has also relied upon the decisions referred
below:
1) 2015 (1) SCC 99 – K. Subramani Vs. K.
Damodara naidu, 2) 2011 (3) KCCR 1825 – M/s. United
Distributors, Mangalore Vs. Smt. Geetha K Rai, 3)
2010 SCC Online Kar. 54 – B. Giirsh Vs. S. Ramaiah, 4)
2019 (5) SCC 418 – Basalingappa Vs. Mudibasappa, 5)
2014(2) SCC 236 – John K Abraham Vs. Simon C
Abraham and another, 6) 2020(3) KCCR 2373 – Vishal
Vs. Prakash Kadappa Hegannawar, 7) 2011 (1) DCR
135 – Karamvir Vs. Ms. Anita Sharma, 8) 2014(3) DCR
760.
10
C.C.No.29657/2021
All these decisions are dealt on the point of burden of
proof, presumption, rebuttable presumption and financial
capacity.
7. Perused the materials available on record.
8. My answer to the aforesaid points are as under:-
Point No.1 :- In the Affirmative
Point No.2 :- As per the final order, for the following:-
REASONS
9. Point No.1:- The complainant has filed this
complaint alleging that, the accused has committed an
offence punishable U/s.138 of N.I.Act. He pleads and
asserts that, the accused in discharge of his liability has
issued the cheque bearing No. 390910, dt: 22.07.2021 for
Rs.40 Lakhs, drawn on SBM, (SBI) RR Nagar branch,
Bengaluru, which is being dishonored with shara as Funds
Insufficient. Thereby, he got issued the legal notice which
11
C.C.No.29657/2021
is served on the accusedm but he has not chosen to comply
it, which has given a cause of action to file the complaint.
10. In this scenario, if the documents placed by the
complainant is scrutinized, the complainant in order to
examine the compliance of statutory requirements as
envisaged U/s.138 of NI Act, he got produced the Ex.P.1 the
cheque dt:22.07.2021. The said cheque is returned with an
endorsement as Funds Insufficient as per Ex.P3, the return
advise dt:23.07.2021, the Ex.P.4 is the office copy of the
legal notice dt:12.08.2021, Ex.P 5 is the postal receipt and
Ex.P.6 is the acknowledgment which indicates the service of
demand notice on 16.08.2021. The present complaint is
filed on 07.09.2021. A careful scrutiny of the documents
relied by the complainant goes to show that, a statutory
requirement of Sec.138 of NI Act is being complied with and
this complaint is filed well in time. The complainant has
12
C.C.No.29657/2021
discharged his initial burden by examining him as PW.1
and by producing the documents as referred above. Thus,
complainant is entitled to rely on the statutory
presumptions enshrined U/s.118 R/w. Sec. 138 of N.I.Act.
Sec. 118 of the Act reads as thus, that every Negotiable
Instrument was made or drawn for consideration and that,
every such instrument when it has been accepted, endorsed,
negotiated or transferred was accepted, endorsed, negotiated
or transferred for consideration.
Further Sec.139 of Negotiable Instrument Act provides
for presumption infavour of PA holder. It reads like this, it
shall be presumed, unless the contrary is proved, that, the
holder of a cheque received the cheque, of the nature referred
to in Sec. 138, for the discharge, in whole or in part, or any
debt or any other liability.
13
C.C.No.29657/2021
11. A combined reading of the referred sections raises
a presumption infavour of the holder of the cheque that, he
has received the same for discharge in whole or in part of
any debt or other liability. No doubt, the said presumptions
of law are rebuttable in nature, the accused can take
probable defense in the scale of preponderance of
probabilities to rebut the presumption available to the
complainant. It is need less to say that, the evidence of the
PW.1 can be rebutted even by effectively cross-examining
the PW.1, rather entering the witness box.
12. So here, it is relevant to note that, whether the
accused has really rebutted the presumption available
under the law which requires due consideration. It is
an undisputed fact that, the disputed cheque at Ex.P.1
does belong to the accused and it is also not in dispute that,
the signature appearing therein belongs to accused. Even,
14
C.C.No.29657/2021
it is not in dispute that, the disputed cheque is being
dishonored for want of sufficient Funds. Here, the
complainant claims that, he was looking out a property
to be purchased at Bengaluru and since, the accused was
well aquatinted with him had got introduced one Sri.
Chandu @ Lawerence who was doing a real estate business
and since, he had informed about the property bearing
No.2 situated at Nagardevanahalli Village, Kengeri Hobli,
measuring 117 x 42ft which was being mortgaged with
union bank of India, and since it was under the auction
before the DRT, he had assured to get the property for the
meager amount and therefore, he had intended to purchase
it. He had participated in the auctioned bid and he being
the highest bidder, a sale certificate was issued in his
favour. However, he claims that, the accused had informed
the complainant to remit Rs.40 lakhs before the DRT for
15
C.C.No.29657/2021
bidding the initial amount and therefore, he had paid Rs.40
Lakhs in different dates to the accused, but when the DRT
had informed the complainant to deposit the said amount
through his account, he had deposited the entire amount of
Rs.1,39,90,000/- and since, the accused was required to
return back the receipt amount, he had issued the disputed
cheque which is being dishonored for want of sufficient
fund. Therefore, he claims that, having he issued the
demand notice which is not being complied by the accused,
he claims that, having he established these facts, he is
entitled to claim presumption U/s .118 & 139 of N.I. Act.
However, the accused though admit the acquaintance of
the complainant, but he totally deny the receipt of Rs.40
lakhs from the complainant. He disputes the financial
capacity of the complainant in advancing the said amount
on the particulars dates as claimed by the complainant and
16
C.C.No.29657/2021
also, claims that, as already the complainant had
deposited the entire auction amount and got the sale
certificate on 26.10.2019, there was no occasion for the
complainant to hand over Rs.40 lakhs to him and thereby,
contending that, as the complainant was a Govt. Civil
Contractor had informed him that, he would get the tender
in his favour from the BBMP and appraising of getting the
tender had obtained the signed blank disputed cheque in
the year 2018, but rather getting the tender as promised
had misused the cheque and has filed the present
complaint with an intention to gain unlawfully and thereby,
denying the claim of the complainant, claims that, he has
rebutted the presumption seeks for acquittal.
13. In this back ground, if the rival claims of the
parties are taken into consideration, the initial burden is
upon the complainant to establish the payment to the
17
C.C.No.29657/2021
accused and the accused issuing the disputed cheque
towards the discharge of loan liability. If, the complainant
establishes the fact of the accused issuing the disputed
cheque towards the legal liability, the accused inturn
required to rebut the presumption by placing the probable
evidence. In order to establish the complainant case, as
said above, the sworn statement of the complainant is
being treated as the evidence. Ex.P.1 is the disputed
cheque which belongs to the accused and the signature
appearing therein is not being denied by the accused. The
Ex.P.2 is the bank challan which indicates the complainant
presenting the cheque for encashment through his banker
ie. SBI. The Ex.P.3 is the bank endorsement which indicates
the dishonour of the cheque for want of sufficient funds.
Here, the accused nowhere disputes the complainant
presenting the cheque to the bank and also, it being
18
C.C.No.29657/2021
dishonored for want of sufficient funds. Perhaps, it is also
not in dispute that, the complainant was looking to buy a
property in and around Bengaluru and it is an accused,
who got introduced the said Sri.Chandu @ Lawrence to the
complainant and it is also not in dispute that, he has
showed the property situated at No.2, of Nagadevanahalli
Village, Kengeri Hobli, Bengaluru South Taluk. Even, it
cannot be denied that, the said property was being
mortgaged by the owner B.N. Murthy with Union Bank of
India and having he failed to clear the loan amount, the
property was brought in auction before the DRT in
O.A.No.552/17 through which the complainant being the
highest bidder has purchased the said property for
Rs.1,40,00,000/-. These facts also could be asserted from
Ex.D.1 to D.4 documents.
19
C.C.No.29657/2021
14. Though, the accused deny the fact of the
complainant owning a sufficient funds of Rs.40 Lakhs on
the particular dates as on the date of the complainant
claiming to have handed over to the accused, but the
complainant by producing the Ex.P.7 document, he has
established the fact of his financial capacity so as to hand
over Rs.40 lakhs. The Ex.P.7 the bank statement would
evidence the complainant withdrawing Rs.5 Lakhs on
14.10.2019, Rs.5 Lakhs on 22.10.2019, Rs.10 Lakhs on
23.10.2019, Rs.5 Lakhs on 24.10.2019, Rs.9 lakhs on
04.11.2019 and Rs.6 Lakhs on 19.12.2019. So, here the
Ex.P.7 establishes the financial capacity of the complainant
and he withdrawing Rs.40 lakhs on the particular dates
which cannot be brushed aside . So, therefore I am of the
considered view that, not only the Ex.P7 would establish
the financial capacity of the complainant, but also the sale
20
C.C.No.29657/2021
certificate issued in his favour would establish his financial
capacity. So, therefore, I do not find any force in the
argument of the defence with regard to the incapacity of the
complainant in advancing Rs.40 Lakhs.
15. Here, it is relevant to note that, though the Ex.P.7
the bank statement would indicate the fact of the
complainant having the financial capacity to hand over
Rs.40 lakhs, but the accused by taking a defence that, as
already the complainant having participated in the auction
proceeding and he being issued with the sale certificate on
26.10.2019, there would be no occasion for the complainant
to advance Rs.40 lakhs as claimed by him and thereby, he
questions the very payments. Here, it cannot be denied
that, having the complainant participated in the auction
purchase, he has remitted Rs.13,94,000/- on 23.09.2019
and also, he was required to deposit the balance amount of
21
C.C.No.29657/2021
Rs.1,39,40,000/- and the said amount was required to be
paid on or before 09.10.2019 which could be asserted from
Ex.D.1 to D.3 documents and so also, the sale certificate is
being issued to the complainant on 26.10.2019. This fact
indicates the defence raised by the accused appears to
have some force. But however, even the defence raised by
the accused that, the complainant had appraised of he
getting tender from BBMP and therefore, he had handed
over the disputed blank cheque towards the security
purpose also makes more relevant so as to appreciate the
the payments made and also, to appreciate the defence
case. Because, if the oral and documentary evidence is
taken into consideration, the only payments made on
4.11.2019 of Rs.9 lakhs and on 19.12.2019 of Rs.6 Lakhs
appears to be under dispute. Because, the other payments
ie., Rs.5 lakhs dt:14.10.2019, Rs.5 lakhs dt: 22.10.2019,
22
C.C.No.29657/2021
Rs.10 lakhs dt:23.10.2019 and Rs.5 lakhs dt: 24.10.2019
have been taken place much prior to the issuance of the
sale certificate.
16. So, here it is relevant to note that, even the
defence raised by the accused that, he had handed over the
disputed cheque on the assurance that, the complainant
would get him tender form the BBMP also makes more
relevant so as to appreciate the case in hand. As said, the
accused is doing a real estate business is not in dispute. No
doubt, the accused claim that, the complainant is well
acquainted with him from past 6 to 7 years and also,
claims that, the complainant has appraised that, he is a
govt. civil contractor and that, he would get the tender from
the BBMP and had obtained the blank disputed cheque, but
by gathering his cross-examination, it indicates that, the
said defence holds no water. Because, by gathering his
23
C.C.No.29657/2021
evidence, he has deposed that, the complainant is known
to him from past 10 to 12 years which is contradictory to
his affidavit evidence, wherein he has deposed that the
accused is well acquainted with him from past 6 to 7 years.
He claims that, he had handed over the disputed cheque in
the year 2018, but in his cross-examination, he pleads
ignorance about the date and month of the complainant
giving assurance to get him tender.
17. Though he claims that, the complainant had
assured to get the tender pertaining to the street lights, but
again he has not placed any evidence to show that, he had
the knowledge in the field. He has also deposed that, after
handing over the cheque, he did not made any attempt to
know about the process of the tender and also, admitted
that, he has not even enquried about the complainant
making any application for tender. Perhaps, he has
24
C.C.No.29657/2021
contended that, as the complainant was well acquitted with
him, he had not questioned the complainant with regard to
the cheque. Here, this admission cannot be accepted.
Because, he claims that, he had issued a blank cheque. It is
an admitted fact that, no prudent man would issue a
cheque and squat over the matter, unless there is a legally
recoverable debt. When the accused claims that, he had
issued the disputed cheque to get a tender from the BBMP,
certainly if that was a case, he would have at least
questioned the complainant about the process or would
have demanded the return of the cheque, which admittedly
not forthcoming.
18. Here, it is relevant to note that, though the
accused claim that, the complainant had appraised of he
getting the tender from the BBMP and had obtained the
25
C.C.No.29657/2021
disputed cheque, but absolutely there is no evidence placed
on record to appreciate this defence or elicited from the
mouth of the PW.1. Perhaps, he has also not made any
efforts to demand back the return of the cheque. Here, the
demand notice at Ex.P.3 is being served on the accused. If,
really the case put forth by the accused is acceptable,
nothing had prevented him to put-forth this defence
through demand notice. Perhaps, he claims that, on the
receipt of the demand notice, he had approached the
complainant and enquired with him, but the complainant
appraised that, he had filed a civil suit on the basis of the
cheque in which he was expecting the commission and
therefore, he had assured that, he would not take any legal
action against him and therefore, he returned back. Again
this evidence goes is totally contradictory to his evidence.
Because, even in his affidavit evidence, nowhere he has
26
C.C.No.29657/2021
averred this facts. Perhaps, for the first time he claims that,
on the receipt of the demand notice, he had approached the
complainant demanding the cheque and the complainant
had appraised of filing the civil suit and that, he would not
initiate any legal action against him which admittedly goes
to the root of the case. When, the accused claim that, he
had approached the complainant demanding the return of
the cheque and that, the complainant had appraised of the
civil suit, even at that time, the accused had no impediment
to initiate some legal action. But, either he has not chosen
to initiate any legal action against the complainant nor he
had made any attempt to stop the payment of the cheque at
the initial stage by putting forth the real defence. On the
other hand, he has categorically admitted that, he has not
initiated any action against the complainant. So, this fact
also gives the serious doubt so far the defence case is
27
C.C.No.29657/2021
concerned. Because, if the accused had not issued the
disputed cheque for any legal liability, then certainly he
would have initiated some legal action in case if the
complainant had misused the cheque. In the decision
reported in 2019 SCC OnLine Kar.2117- V.R.Shresti Vs.,
Bhaskar.P., wherein the Hon’ble High court has opined
that, if really the accused had no transaction with the
complainant, he would have given reply to the notice and
not replying the same would go to establish that, the
defence made is false and the court should draw the
presumption against the accused for not replying the legal
notice. The decision aptly applies to the case in hand. Not
replying the notice at the initial stage would hold no water
so far the defence case is concerned and in this
background, the case of the complainant has to be accepted
by drawing presumption.
28
C.C.No.29657/2021
19. Absolutely, there is no evidence forthcoming on
record to appreciate his defence. No doubt, the accused
has got examined a witness by name Sri. Chandu @
Lawrence as DW.2, but though the said witness has
supported the complainant claim by deposing that, the
accused had no transaction with the complainant as
claimed in the complaint, but during the course of his
cross-examination, he has categorically admitted that, he
had paid Rs.1 lakhs to the accused out of the commission
amount received from the complainant. So, even this
admission indicates that, the accused had some
transaction with the complainant, which cannot be
brushed aside. Even the accused has admitted the reciept of
Rs.1 Lakh. Perhaps, the DW.2 has deposed that, the
disputed cheque was being issued by the accused to the
complainant in some loan transaction, which is again
29
C.C.No.29657/2021
contradictory to the evidence of the DW.1. As said, there is
no probable evidence placed on record to appreciate the
defence case. The evidence of the DW.2 in noway supports
the defence case. If really, the accused had handed over
the disputed cheque in the year 2018 towards the tender
process from BBMP, certainly he would not squat over the
matter, rather he would have made attempt to know the
process from the complainant or demanded the return of
the cheque. No doubt, the accused claims that, as the
complainant failed to get the tender in time and when he
approached the complainant for demanding back the
cheque for which the complainant appraised of it being
misplaced and it would be return back when traced out, but
again there is no evidence placed on record to appreciate
this fact. He could have demanded the return of the cheque
in writing by disclosing the real incident. As said above, he
30
C.C.No.29657/2021
could have stopped the disputed cheque by disclosing the
real incident, which admittedly not forthcoming, but rather
the Ex.P.2 would speak otherwise. So, here again it
indicates that, the defence raised by the accused is not a
probable defence to hold that, he has rebutted it.
20. Here, it is also relevant to note that, the
complainant has filed the suit in O.S.No. 4684/2021 before
the City Civil court, at Bengaluru against the DW.2. In the
said suit, the complainant claims that, the DW.2 along with
the accused had appraised of getting the auction property
at cheaper rate and accordingly, he had paid Rs.10 lakhs to
Dw.2 towards the process of bidding in the auction before
the DRT. Since, the Dw.2 failed to deposit the said amount
and having he deposited through the account, he had
demanded the DW.2 to return back the amount for which
he had not adhered and therefore, he had filed the said
31
C.C.No.29657/2021
suit. This was harped much upon by the defence and
claims that, the accused had no role to play in the auction
bid which could be seen from Ex.D.13. Here, it is relevant
to note that, the complainant has categorically mentioned
the name of the accused in the said suit. No doubt, the
complainant has not whispered the payments made to the
accused on the particular dates and so also, he has not
lodged the complaint against the accused which could also
being asserted from the certified copy of the complaint
which indicates the complaint made only against the DW.2,
but when the complainant contend that, as the accused had
issued the disputed cheque towards the repayment of the
receipt amount and therefore, he did not choose to initiate
any police complaint against the accused, this deposition
appears to hold some force. Because, in the cross-
examination of Dw.1, when a suggestion was posed that, as
32
C.C.No.29657/2021
he had assured to make the payment, the complainant had
not initiated any action, but the DW.1 has pleaded his
ignorance. If really, the accused had not acknowledged
Rs.40 lakhs, he could have directly denied the suggestion,
rather pleading his ignorance. Moreso, the DW.2 is none
other than the friend of the accused who had got introduced
to the complainant. The accused who had examined the
said Chandu @ Lawrence as DW.2 in the case in hand, the
DW.2 has also got examined the accused in O.S. No.
4684/20201 as DW.2. So, this indicates that, they have no
adverse interest against each other. But, however the DW.2
by posing a suggestion to the Pw.1 in O.S. No. 4684/2021,
he has confirmed the receipt of Rs.40 lakhs by the
accused. In page no.14 of the cross-examination of the Pw.1
in O.S.No. 4684/2021 which reads like this ” ನಾನು ಸೈಟ್
ವ್ಯವಹಾರಕ್ಕೆಂದು ರೂ. 40 ಲಕ್ಷ ಹಣವನ್ನು ದಿನೇಶ್ ಗೆಕೊಟ್ಟಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ”.
33
C.C.No.29657/2021
So, here this suggestion suffices that, the accused had
parted Rs.40 lakhs from the complainant which cannot be
brushed aside. So, therefore, viewing from any angle it
cannot be said that, the defence raised by the accused is a
probable defence and it is being rebutted. Absolutely, there
is no probable evidence placed by the accused so as to
appreciate his defence. Having, the accused failed to
establish his defence, an inference could be drawn that, the
accused has parted with Rs.40 lakhs and has issued the
disputed cheque towards the discharge of the legal liability.
21. In the decision reported in (2021) 5 SCC 283 –
Kalamani Tex and Another., Vs. P.Balasubramanian,
(2010) 11 SCC 441- Rangappa Vs. Sri. Mohan., wherein
it is held that, when once the signature of an accused on
the cheque is established, than the reverse onus clauses
become operative, aptly applies to the case in hand. In the
34
case in hand, the accused has admitted the disputed
cheque pertains to him. When the complainant has
established the accused having issued the cheque at Ex.P.1
towards the discharge of legal liability and their existed a
legally enforceable debt, the onus to disprove it, shifts on
the accused which is not been proved by placing positive
evidence. In this background, having the accused not
disputed the complainant case by placing positive evidence
which favours his case, I am of the considered view that,
the cheque issued by the accused at Ex.P1 is for the legally
enforceable liability and this fact is being established by the
complainant by placing cogent and positive evidence which
is not rebutted by the other side.
22. As said above, the accused has not disputed the
cheque does pertains to him. It could be said that, the
accused has not disputed the cheque in question and
35
C.C.No.29657/2021
signature found therein. When the drawer has admitted the
issuance of cheque as well as the signature present therein,
the presumption envisaged U/s.118 R/w.139 of N.I.Act
would operate infavour of the complainant. The said
provisions lies on a special rule of evidence applicable to
negotiable instruments. The presumption is one of law and
thereunder the court shall presume that, the instrument
was endorsed for consideration. So also, in the absence of
contrary evidence on behalf of the accused, the presumption
U/s.118 of N.I.Act goes in favour of the complainant. No
doubt, as said statutory presumptions are rebuttable in
nature, but when the complainant has relied upon the
statutory presumptions enshrined U/s.118 R/w.Sec.139 of
N.I.Act, it is for the accused to rebut the presumption with
cogent and convincing evidence. To put it in other way, the
burden lies upon the accused to prove the cheque in
36
C.C.No.29657/2021
question at Ex.P.1 was not issued for the discharge of debt
or liability.
23. It is worth to note that, Sec.106 of Indian
Evidence Act postulates that, the burden is on the accused
to establish the fact which is especially within its
knowledge. This provision is exception to the general rule
that, the burden of proof is always on the prosecution to
establish its case beyond all reasonable doubt. In that view
of matter, the burden is on the accused to prove that, the
cheque in question was not issued for discharge of any
liability. But, despite the accused has taken the defence
that, the Ex.P.1 was not issued towards the legal liability,
but the said fact and the version is not been established. In
this back ground, it could be said that, though the
principles enumerated in the decisions relied by the defence
37
C.C.No.29657/2021
cannot be denied, but with due respect, it is not applicable
to the case in hand.
24. From the discussion made supra, it could be said
that, the complainant has established his case by placing
positive evidence. On the other hand, the accused failed to
to establish his defence by placing probable defence and
also, failed to elicit the said fact from the mouth of the
PW.1. To put it in other way, the accused though taken a
probable defence, but it is not been established by placing
the positive evidence. The presumption of law lies in favour
of the complainant as envisaged U/s.118 R/w. Sec. 139 of
N.I.Act. In this back ground, the case of the complainant
requires to be accepted. The evidence placed on record
establishes that, the complainant has proved that, for
discharge of the liability, the accused has issued Ex.P.1 and
38
C.C.No.29657/2021
it is being dishonored as per Ex.P.3. Therefore, Point No.1
is answered in the “Affirmative’.
25. Point No.2:- For the reasons discussed in the
point No.1, the complainant has proved the guilt of the
accused punishable U/s.138 of N.I.Act. The Hon’ble Apex
Court also dealt in the decision reported in (2018) 1 SCC
560, M/s. Meters and Instrument Pvt. Ltd., Vs.
Kanchana Mehta., wherein, It is held that “the object of
provision being primarily compensatory, punitive element
being mainly with the object of enforcing the compensatory
element, compounding at the initial stage has to be
encouraged, but is not debarred at the later stage subject to
appropriate compensation has may be found acceptable to
the parties or the court”. By considering the decision, it
could be said that, the time when the transaction has taken
place and the primary object of the provision being kept in
39
C.C.No.29657/2021
mind, I am of the considered view that rather imposing
punitive sentence, if sentence of fine is imposed with a
direction to compensate the complainant for its monetary
loss by awarding compensation with interest U/s.357 of
Cr.P.C., it would meet the ends of justice. By considering
these aspects, I am of the considered view that, it would be
just and proper to impose fine of Rs.40,05,000/-. Out of
the compensation of Rs.40,05,000/-, an amount of
Rs.40,00,000/- shall be awarded to the complainant
U/s.357 of Cr.P.C. Accordingly I proceed to pass the
following :
ORDER
Acting U/s.278(2) of BNSS -2023
(Old Correspondence No. 255(2) of Code of
Criminal Procedure), the accused is convicted for
the offence punishable under section 138 of the
Negotiable Instruments Act, the accused is
sentenced to pay fine of Rs.40,05,000/- (Rupees
Forty Lakhs and Five Thousand only).
40
C.C.No.29657/2021
In default thereof, the accused shall undergo
simple imprisonment for the term of one year.
Acting U/s. 396 of BNSS - 2023 (Old
Correspondence No.357(1)(b) of Cr.P.C), it is
ordered that, Rs.40,00,000/- (Rupees Forty
Lakhs only), there from shall be paid to the
complainant as compensation. The remaining fine
amount of Rs.5,000/- (Rupees Five Thousand
only) is defrayed to the state for the expenses
incurred in the prosecution.
The office is to furnish the free copy of this
Judgment to the accused forthwith.
(Directly dictated to stenographer on computer, typed by her, revised by me and
then pronounced by me in the open court on this the 3rd day of March 2025).
JAI Digitally signed by
JAI SHANKAR J
SHANKAR Date: 2025.03.04
J 10:21:09 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate,
Bengaluru.
ANNEXURE
List of witnesses examined on behalf of complainant:-
PW.1 : Sri. J Prakash
List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque
41
C.C.No.29657/2021
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank Memo
Ex.P3 : Legal notice
Ex.P4 : Postal receipt
Ex.P5 : Postal acknowledgment
Ex.P7 : Bank Statement
Ex.P8 : Certified copy of deposition in CC
No.4684/2021
List of witnesses examined on behalf of the accused:-
DW.1 : Sri. S.K. Dinesh DW.2 : Sri. Chandu @ Lawerence
List of exhibits marked on behalf of the accused:-
Ex.D1 to D3 : E auction tender documents
Ex.D4 : Certificate of sale of immovable
property
Ex.D4 : Certified copy of plaint in OS
4684/2021
Ex.D5 : Certified copy of Notice
Ex.D6 : Certified copy of complaint before the
Rajarajeshwari Nagar Police
Ex.D7 : Certified copy of plaint in OS
No.4684/2021
Ex.D8 : Certified copy of deposition in OS
4684/2021
42
C.C.No.29657/2021
Ex.D9 : Certified copy of deposition in OS
4684/2021
Ex.D10 : Certified copy of complaint before the
RR Nagar police
Ex.D11 : Certified copy of acknowledgment
Ex.D12 : Certified copy of explanation of DW.2
Ex.D13 : Certified copy of plaint in OS
4684/2021
Ex.D14 : Certified copy of written statement in
OS 4684/2021
Ex.D15 & 16 : Certified copy of depositions in OS
4684/2021
Ex.D17 : Certified copy of bank challan
documents.
Ex.D18 : Certified copy of E auction tender
documents
Digitally signed
JAI by JAI SHANKAR
J
SHANKAR Date:
J 2025.03.04
10:21:16 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate,
Bengaluru.
43
C.C.No.29657/2021
