J Prakash vs S K Dinesh on 3 March, 2025

Date:

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.
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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
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C.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
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C.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
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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.
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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
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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.
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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.
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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
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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
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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.

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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,
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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
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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
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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
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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
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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.

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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
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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
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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,
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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
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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
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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
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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
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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
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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.

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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
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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
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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
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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
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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

C.C.No.29657/2021

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
 



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