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Bangalore District Court
P.A. Ravindra Reddy vs B.V. Babu on 7 April, 2025
1 CC.NO.11955/2023
KABC030213182023
IN THE COURT OF XII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU.
Dated this the 07th day of February, 2025.
:Present:
Smt. PREETH. J., B.A.(L)., LLB.,
XII Addl. Chief Judicial Magistrate,
Bangalore.
CC.No.11955/2023
1. Name of the : Ravindra Reddy.S
Complainant S/o. Late Ashwathanarayana
Reddy
Aged about 48 years
R/at: No.27/28, Ground Floor,
1st Main, 5th Cross,
Lakshmi Layout,
Abbigere, Bengaluru-560090.
(By Sri.R.S.M., Advocate)
2. Name of the : Sri.B.V.Babu,
Accused S/o. Venugopal,
R/at: Bommathanahalli Village,
Kasaba Hobli, Pavagada Taluk,
Tumkur District.
And also at:
B.V.Babu,
S.V.Egg and Chicken Center,
Gurappa Complex,
New Bus Stand,
Pavagada Town - 561202.
(By Sri.K.K., advocate)
2 CC.NO.11955/2023
3. The date of commission : 19.01.2023
of the offence
4. The offence complained : Under Section 138 of
of or proves the Negotiable
Instrument Act.
5. Plea of the accused and : Pleaded not guilty.
his examination
6. Final Order : Accused is found
guilty.
7. Date of such order for : 07.02.2025
the following
JUDGMENT
01. The complainant has filed the present case
against the accused alleging commission of the offence
punishable under section 138 of Negotiable Instrument Act.
02. In brief case of the complainant is as follows:-
The complainant and his family members and the
accused and his family members are known to each other
for several years. The accused is doing the business of
selling eggs under the name and style S.V Eggs and
Chicken center at Pavagada and he is also doing the
business of real estate. The complainant is also doing the
business of real estate and the same is also know to the
accused. The accused approached the complainant through
a common friend one Mr. Narayanappa in the 2 nd week of
August 2020 and sought for financial assistance to run his
business and also assured that he will return the money
3 CC.NO.11955/2023periodically in installments. Accordingly the complainant
agreed and in total he paid a sum of Rs.35,42,000/- from
Augusts 2020 to March 2022 through NEFT to the bank
account of the accused. From the month of December 2020
the accused started making repayment in part through
complainant’s bank account. Thus the transition between
the complainant and the accused continued. In total the
accused returned a sum of Rs.8,93,200/- from December
2020 till January 2022. Later on the accused failed to
repay the money that was received from him. In the month
of June 2022 when the complainant demanded the accused
to repay the money, the accused assured that he will repay
the entire amount within January 2023. but the accused
did not turn up. As such in the month of November 2022
the complainant approached the accused and demanded
him to repay the money and after discussions and
calculations they have arrived at a conclusion that the
accused still liable to repay a sum of Rs.26,48,800/-. And
towards the repayment of the said amount the accused
cheque bearing no.042577 for Rs.13,24,4000/- dated
19.01.2023 drawn on Karnataka Bank Ltd., Pavagada
Branch, Tumkur District and another cheque bearing
no.116656 for Rs.13,24,4000/- dated 19.01.2023 drawn on
4 CC.NO.11955/2023Canara Bank, Pavagada Branch, Tumkur District and
requested the complainant to present the cheques for
encashment on the respective dates.
According the complainant presented the cheque
bearing No.042577 for Rs.13,24,4000/- dated 19.01.2023
drawn on Karnataka Bank Ltd., Pavagada Branch, Tumkur
District for encashment on 20.01.2023, but the same got
dishonoured with an endorsement dated 21.01.2023 as
“Funds Insufficient”. As such demand notice is issued to
the accused on 15.02.2023 the same was served on the
accused. Inspite of the same the accused has neither paid
the amount covered under cheque nor has given any reply.
Hence, cause of action arose to file the present complaint.
3. On filing of the complaint, recorded the sworn
statement of the complainant and marked 09 documents as
per Ex.P.1 to Ex.P.09 and cognizance was taken against the
accused for the offence punishable under Sec. 138 of N.I.
Act.. The complainant has complied all the statutory
requirements under Sec.138 of N.I.Act. Thereafter, the
case is registered against the accused and summons
issued.
4. On service of summons, the accused appeared
through his counsel and he was enlarged on bail. The
5 CC.NO.11955/2023
substance of accusation was read over and explained to the
accused in the language known to him. The accused has
pleaded not guilty and claimed to be tried. As per the
directions of Hon’ble Supreme Court of India in ” Indian
Bank Association V/s Union of India & Others reported in
(2014) 5 SCC 590, this court has treated the sworn
statement of the complainant as his evidence and in
compliance with the direction of Hon’ble Apex Court in the
aforementioned ruling, statement of the accused was also
recorded under section 313 of Cr.P.C. On application filed
by the counsel for the accused under section 145 of NI Act,
permission was accorded to cross examine PW1. PW1 is
fully cross examined by the counsel for the accused. The
Accused examined himself as DW1 and got marked 09
documents on his behalf as Ex.D1 to D9 and Ex.P8 is
confronted by Dw.1.
05. Heard arguments on behalf of the complainant
and the accused. The counsel for the complainant has
relied upon the following decision:
1. 2024(2) KCCR 1545 held between
K.T.Narayanappa Vs. N.T.Govindaraju
6 CC.NO.11955/2023
2. 2023(5) KCCR 309 held between
D.B.Jatti Vs. M/s. Jamnadas Devidas,
Bengaluru
3. 2023(4) KCCR 3600 held between
06. The counsel for the accused has relied upon the
following decisions:
1. Amar Dev Vs. M/s.Veer Daily Needs and
anr In the High Court of the Himachal
Pradesh, Shimla Cri.A.No.339/2014
2. (2019)5 Supreme Court 418, held
between Basalingappa Vs.
Mudibasappa
3. (2014)2 Supreme Court case 236 held
between John K Abraham Vs. Simon C
and anr.
4. (2015) 1 Supreme Court Cases held
between 99 K Subramani
Vs.K.Damodar Naidu.
07. The following points arise for my consideration:
Point No.1: Whether the
complainant proves that the
accused has issued the cheque for
the legally recoverable debt as
alleged by him?
7 CC.NO.11955/2023
Point No.2: Whether the accused
has committed the offence
punishable under section 138 of N.I
Act?
Point No.3: What Order or Sentence?
08. My findings on the above points are as under:
Point No.1: In the Affirmative,
Point No.2: In the Affirmative,
Point No.3: As per the final order for the
following:
REASONS
09. POINT No.1 and 2: The complainant has examined
himself as PW1 by filing his affidavit in lieu of chief
examination. The disputed cheque is marked as Ex.P1, the
endorsement issued by the bank is marked as Ex.P2, the
demand notice is marked as Ex.P3, the postal receipt is
marked as Ex.P4 and the Postal acknowledgment is marked
as Ex.P5 & 6, Bank Account Extracts are marked as Ex.P7
to P9. On careful perusal of these documents, it is evident
that complainant has complied with all the essentials
enshrined in Sec.138 of NI Act. Complainant presented the
cheque within time for collection. After its dishonor, he also
issued notice to the accused. Though the said notice was
8 CC.NO.11955/2023
duly served on the accused, he did not pay the cheque
amount within the stipulated period. When accused failed to
repay the amount, complainant filed this complaint. Hence,
records reveal that complainant is entitled to the
presumption available under sec 118(a) and 139 of the NI
Act.
10. In Rangappa Vs. Mohan reported in 2010 (1) DCR
706 the Hon’ble Apex court has that ;
“The Statutory presumption mandated by
sec.139 of the Act, does indeed 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
presumption and it is open for the accused
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 to the effect
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
9 CC.NO.11955/2023
the same. Let me now consider whether accused
successfully rebutted the presumption available in favour of
the complainant with probable and convincing evidences. It
is well settled principle of law that, once the cheque is
admitted there will be a statutory presumption in favour of
the holder or holder in due course U/Secs. 118 and 139 of
the Act as observed supra. However, as held by the Hon’ble
Apex Court and our own Hon’ble High Court in a catena of
decisions, the presumptions under the said sections are in
the nature of rebuttable presumptions and hence, the
accused can very well rebut the said presumptions by
leading reasonable and probable defence.
12. Let us examine, the same on the basis of the
materials available on record. The counsel for the accused
has cross examined PW1 thoroughly and the accused has
also stepped into the witness box to prove his defence.
During the course of cross of PW1 the counsel for the
accused tried to elicit from the mouth of PW1 that he did not
have the financial capacity to lend that much money to the
accused. At this juncture it is necessary to go through the
chief examination of DW1 wherein he has admitted the loan
transaction held between him and the complainant. At page
no.1 of chief of DW1 he has deposed as follows:
10 CC.NO.11955/2023
“ನಾನು ಪಿರ್ಯಾದಿದಾರನಿಂದ 2020 ರಿಂದ 2022 ವರೆಗೆ
ನಾನು ರವೀಂದ್ರ ರೆಡ್ಡಿ ಮತ್ತು ವಿಮಲಾ ಟಿ ರವರ ಕಡೆಯಿಂದ ಒಟ್ಟು 35
ಲಕ್ಷ ರೂಪಾಯಿಗಳು ಪಡೆದುಕೊಂಡಿರುತ್ತೇನೆ. ”
further he has deposed as follows:
” ನನ್ನ ಎರಡು ಎಕರೆ ಜಮೀನನ್ನು ನಾನು 2020 ರ ನವಂಬರ್ನಲ್ಲಿ
40 ಲಕ್ಷ ರೂಪಾಯಿಗಳಿಗೆ ಮುತ್ತು ರಾಯಪ್ಪ ನವರಿಗೆ ನನಗೆ ಹಣದ ಅವಶ್ಯ ಕತೆ
ಇದ್ದ ಕಾರಣ ನಾನು ಮಾರಾಟ ಮಾಡಿರುತ್ತೇನೆ. ನಾನು ರವೀಂದ್ರ ರೆಡ್ಡಿ
ಮತ್ತು ವಿಮಲಾ ರವರಿಗೆ ಇಬ್ಬ ರಿಗೂ ಸೇರಿ 26 ಲಕ್ಷದ 8 ಸಾವಿರ
ರೂಪಾಯಿಗಳು ಕೊಡಲು ಬಾಕಿ ಇತ್ತು ”
Again in the cross examination of DW1 at page no.4 he
has deposed as follows:
” ನನ್ನ ವ್ಯಾಪಾರಕ್ಕೆ ಹಣ ಬೇಕಾದಾಗ ನಾನು ಆಗಾಗ
ಪಿರ್ಯಾದಿದಾರನಿಂದ ಹಣ ಸಾಲ ಪಡೆದುಕೊಳ್ಳುತ್ತಿದ್ದೇ ಎಂದರೆ ಸರಿ.
ಸಾಕ್ಷಿ ಮುಂದುವರೆದು ಅವರ ಹೆಂಡತಿಯಿಂದ ಕೂಡ ಹಣ ಸಾಲ
ಪಡೆದುಕೊಳ್ಳುತ್ತಿದ್ದೆ ಎಂದು ನುಡಿಯುತ್ತಾರೆ. ”
further deposed as follows:
“ಆಗಸ್ಟ 2020 ರಿಂದ ಮಾರ್ಚ 2022 ವರೆಗೆ ನಾನು
ಪಿರ್ಯಾದಿದಾರನಿಂದ ಒಟ್ಟು 35,42,000 ರೂಪಾಯಿಗಳನ್ನು
ಸಾಲವಾಗಿ ಪಡೆದುಕೊಂಡಿದ್ದೆ ಎಂದರೆ ಸರಿ”
He has further deposed as follows:
“ನಾನು ಪಿರ್ಯಾದಿದಾರನಿಗೆ 26,48,800 ರೂಪಾಯಿ
ಕೊಡಲು ಬಾಕಿ ಇದೇ ಎಂದರೆ ಸಾಕ್ಷಿ ಪಿರ್ಯಾದಿದಾರನಿಗೆ ಮತ್ತು ಆತನ
ಹೆಂಡತಿಗೆ ಇಬ್ಬರಿಗೂ ಸೇರಿ ಅಷ್ಟು ಕೊಡಲು ಬಾಕಿ ಇದೆ ಎಂದು
11 CC.NO.11955/2023ನುಡಿಯುತ್ತಾರೆ. 26,48,800 ರೂಪಾಯಿಗಳು ಪಿರ್ಯಾದಿದಾರ
ಒಬ್ಬನಿಗೆ ಕೊಡಲು ಬಾಕಿ ಇದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ.”
13. The above excerpted evidence of DW1 goes to show
that the accused has admitted the loan transaction between
him and the complainant. When such being the case the
lengthy cross examination done to PW1 with regard to his
financial capacity to lend that much money to the accused
is just a futile exercise. Not only that the suggestion put to
PW1 also goes to show that the accused is admitting the
transaction between him and the complainant. Specific
questions are put to PW1 that he has transferred the money
to the bank account of the accused through his bank
account. It is suggested to him that he used to deposit cash
to his account and then transfer the same to the account of
the accused. Both the suggestions are admitted by PW1. As
such without any hesitation it can be safely said that the
defence of the accused that the complainant did not have
the financial capacity to lend that much money is not
tenable.
14. The accused has taken the defence that he had
issued blank signed cheque leaves to the complainant for
the purpose of security and the same are being misused by
the complainant. In this regard cross examination is done to
12 CC.NO.11955/2023
PW1, but nothing worthy has been elicited from his mouth
to support the version of the accused.
15. The accused has taken the defence that he is not
due to pay any amount to the complainant. In his chief
examination he has deposed that his immovable property
which was measuring 2 acres was worth Rs.1 Crore but he
sold the said land to one Mutturayappa in the month of
2020 for Rs.40,00,000/- as he was in need of money. He
has deposed that he was due to repay only a sum of
Rs.26,48,000/- to the complainant and his wife. So he
spoke to Muthurayappa, complainant and few others and
requested Muthurayappa to sell the above said land in
favour of the complainant for Rs.85,00,000/-. Accordingly,
Mutturayappa sold the said land to the complainant for
Rs.85,00,000/- on 22-03-2022. the complainant paid
only a sum of Rs.50,00,000/- to Muthurayappa, and a sum
of Rs.26,00,000/- was deducted from the total consideration
as the accused had to pay that much amount to the
complainant and his wife. The remaining Rs.9,00,000/- is
still not paid by the complainant to Muthurayappa. AS such
the accused is not due to pay any amount to the
complainant, in view of the adjustment made in the sale
transaction held between the complainant and
13 CC.NO.11955/2023
Muthurayappa. The relevant portion of chef of DW1 at page
no.1 and 2 is as here below:
“ನನ್ನ ಎರಡು ಎಕರೆ ಜಮೀನು ಸುಮಾರು 1 ಕೋಟಿ ರೂಪಾಯಿ ಬೆಲೆ
ಬಾಳುತ್ತಿತ್ತು . ನಾನು ರವೀಂದ್ರ ರೆಡ್ಡಿ ಮತ್ತು ಮುತ್ತು ರಾಯಪ್ಪ ಮತ್ತು
ಇನ್ನಿಬ್ಬ ರೂ ಎಲ್ಲ ರೂ ಸೇರಿ ಅವರ ಬಳಿ ಮಾತನಾಡಿಸಿ
ಮುತ್ತು ರಾಯಪ್ಪ ನಿಂದ ಆ ಎರಡು ಎಕರೆ ಜಮೀನನ್ನು ರವೀಂದ್ರ ರೆಡ್ಡಿ
ರವರ ಹೆಸರಿಗೆ 85 ಲಕ್ಷಕ್ಕೆ ದಿಃ22.03.2022 ರಂದು ಮಾರಾಟ
ಮಾಡಿಸಿದ್ದೇನೆ. ರವೀಂದ್ರ ರೆಡ್ಡಿ ರವರು ಮುತ್ತು ರಾಯಪ್ಪ ನಿಗೆ 50 ಲಕ್ಷ
ರೂಪಾಯಿ ಕೊಟ್ಟಿರುತ್ತಾರೆ. ಇನ್ನು 26 ಲಕ್ಷ ರೂಪಾಯಿಗಳು ನನ್ನಿಂದ
ರವೀಂದ್ರ ರೆಡ್ಡಿ ಮತ್ತು ವಿಮಲಾ ರವರಿಗೆ ಬರಬೇಕಾಗಿದ್ದು ಅದನ್ನು ಜಮಾ
ಮಾಡಿಕೊಂಡಿರುತ್ತಾರೆ. ಉಳಿದ 9 ಲಕ್ಷ ರುಾಪಾಯಿಗಳನ್ನು ರವೀಂದ್ರ
ರೆಡ್ಡಿ ರವರು ಮುತ್ತು ರಾಯಪ್ಪ ನವರಿಗೆ ಕೊಡಬೇಕಾಗಿತ್ತು ಆದರೆ ಅವರು
ಕೊಟ್ಟಿರುವುದಿಲ್ಲ . ನಾನು ರವೀಂದ್ರ ರೆಡ್ಡಿ ಮತ್ತು ವಿಮಲಾ ಟಿ ರವರಿಗೆ
ಯಾವುದೆ ಹಣ ಕೊಡಲು ಬಾಕಿ ಇಲ್ಲ .”
16. In respect of the above de fence of the sale
transaction between the Muthurayappa and the
complainant, the counsel for the accused cross examined
PW1 at page no.6, which is as follows:
“ಏಪ್ರಿಲ್ 2022 ರಲ್ಲಿ ನಾನು ಮುತ್ತುರಾಯಪ್ಪನಿಂದ 2 ಎಕರೆಗೆ
ಜಮೀನನ್ನು ಖರೀದಿ ಮಾಡಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. ಆ ಜಮೀನನ್ನು ನಾನು
85 ಲಕ್ಷ ರೂಪಾಯಿಗಳಿಗೆ ಖರೀದಿಸಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಾನು
ಆ ಸಂದರ್ಭದಲ್ಲಿ ನಾನು 50 ಲಕ್ಷ ರೂಪಾಯಿಗಳು ಮಾತ್ರ
14 CC.NO.11955/2023ಮುತ್ತುರಾಯಪ್ಪನಿಗೆ ಕೊಟ್ಟಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಉಳಿದ 35
ಲಕ್ಷ ರೂಪಾಯಿಗಳನ್ನು ನಾನು ಮುತ್ತುರಾಯಪ್ಪನವರಿಗೆ
ಕೊಡಬೇಕಾಗಿತ್ತು ಅದರ ಬಾಬ್ತು ನಾನು ನನಗೆ ಆರೋಪಿತನಿಂದ
ಬರಬೇಕಾದ ಹಣದ ಪೈಕಿ 22 ಲಕ್ಷ ರೂಪಾಯಿಗಳನ್ನು ವಜಾ
ಮಾಡಿಕೊಂಡಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಾನು ಮುತ್ತುರಾಯಪ್ಪನಿಗೆ
ಉಳಿದ 13 ಲಕ್ಷ ರೂಪಾಯಿಗಳು ಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ.
ಆರೋಪಿತನಿಂದ ನನಗೆ ಯಾವುದೆ ಹಣ ಬರಬೇಕಾಗಿಲ್ಲ ಎಂದರೆ
ಸರಿಯಲ್ಲ. ”
17. The evidence of DW1 in his chief examination and
the suggestions put to PW1 during the cross examination is
in contradiction with each other with regard to the balance
that was due by the accused to the complainant and the
alleged balance by the complainant to Muthurayappa. This
goes to show that the accused is not clear with regard to the
due by him to the complainant. Further more the said sale
transaction alleged to have been entered into between the
complainant and Muthurayppa at the instant of the accused
is not at all proved. Though admittedly the complainant has
purchased the land from Muthurayappa, there is no proof
either oral or documentary to show that the same is done as
per the version of the accused. Just because the said land
was originally belonging to the accused and later sold to
Muthurayappa and in turn the complainant purchased the
15 CC.NO.11955/2023
said land from Muthurayappa, one can not come to the
conclusion that the accused has proved his defence as
alleged by him.
18. Though PW1 has deposed in his cross examination
that he has no hurdle if Muthurayappa is examined before
this court, the accused has not taken any pains to examine
said Muthurayappa. The accused had filed an application to
examine Muthurayappa and one more witness to depose
about the alleged sale transaction, and the counsel for the
complainant had also submitted his no objection for the
same and this court had also allowed the application and
directed the accused to keep the witnesses present before
this court. Inspite of giving sufficient opportunity to keep the
witnessed present the accused has not examined them. As
such the prayer was rejected and this court proceeded with
the case. If really the sale transaction had taken place
between the complainant and Muthurayappa as alleged by
the accused then definitely he would have examined
Muthurayappa before this court.
19. In the chief examination of DW1 he has deposed
that he took a sum of Rs.35,00,000/- from the complainant
in installments, each installment of Rs.5,00,000/- and at
that time the complainant took bond paper and a cheque.
16 CC.NO.11955/2023
The accused has produced the certified copy of the sale
agreement dated 21-03-2022 entered into between
Muthuryppa and the complainant, the certified copy of the
Sale deed dated 17-11-2021 entered into between him, his
wife and Muthurayappa and the same are marked as ex.D1
and 2. Later on he has also produced the certified copy of
the consideration receipt dated 08-01-2021, E-stamp paper
dated 25-01-2021, 05-04-2021, 29-12-2021 and 24-09-
2021, and the certified copy of the blank signed cheque
leaves bearing no.232373, 232379, 042579, 763073 these
documents are marked as Ex.3 to 9. these documents are
produced by the accused to show that he had given those
documents to the complainant when he availed the loan.
But except the self serving testimony of the accused there is
nothing on record to substantiate the same. AS such those
documents are not of much avail to the defence taken by the
accused.
20. During the course of cross of DW1 at page no.8
one document was confronted to him and the same is
marked as Ex.P8. The said document is the certified copy of
the order sheet and Insolvency petition filed by the Accused
in I.C 5001/2024 on the file of the IV Add. District and
Sessions Court, Madhugiri, Tumakuru. As could be seen
17 CC.NO.11955/2023
from the said document the said petition is filed by the
accused on 27-04-2024. the accused has given his evidence
before this court on 09-10-2024. As could be seen from the
Insolvency petition it goes to show that the accused has
admitted that he is still due to repay a sum of
Rs.35,00,000/- to the complainant and his wife. This goes
to show that though the accused has not repaid the loan
fully to the complainant he has taken a false defence that he
is not due to repay any amount to the complainant. If really
the accused is not due to repay and if really the due amount
is being adjusted in the sale proceedings held between the
complainant and Muthurayappa, then there was no
necessity to array this complainant and his wife as
Respondent No.5 and 6 in the Insolvany petition and there
was no necessity to shown that he is liable to pay a sum of
Rs.35,00,000/- to the complainant and his wife. As such
without any hesitation it can be safely concluded that the
accused has taken false defence in order to get away from
his liability.
21. The decisions relied upon by the accused is not at
all applicable to the case on hand favouring the accused
because, in the case on hand the accused has admitted with
regard to the loan transaction held between him and the
18 CC.NO.11955/2023
complainant and the very document of the accused which is
marked as Ex.P8, goes to show that the accused is till due
to the complainant. As such from the attending
circumstances which is discussed supra, this court is of the
opinion that the accused has failed to rebut the
presumption that is available to the complainant.
22. When the cheque in question drawn on his
account maintained with his banker and it bears his
signature, presumption under Sec.118 and 139 of NI Act is
attracted to the effect that the cheque was issued towards
legally recoverable debt or liability. Therefore the initial
burden is on the accused to prove that no consideration was
passed and the cheque was not issued towards repayment of
any legally recoverable debt or liability and the
circumstances in which the cheque has reached the hands
of the complainant. Only after the accused rebut the
presumption, the burden shifts on the complainant to prove
his case, including passing of consideration and his
financial capacity to lend such sum of money at the relevant
point of time. Of course it is sufficient for the accused to
rebut the presumption by preponderance of probabilities.
It is pertinent to note that before filing the complaint, the
complainant has sent demand notice as per Ex.P.3 and the
19 CC.NO.11955/2023
same is served on the accused. This aspect is also admitted
by the accused during the course of cross examination done
by the counsel for the complainant. But no legal action is
taken again the complainant by the accused. From the over
all evidence on record, it goes to show that the accused has
tried to take some baseless defence which is usually taken
by the accused person in the case of this nature. If really
the complainant has misused his cheque as contended by
him he could have taken some legal action against the
complainant. No prudent man will keep quite when his
cheque is in the hands of some one who he do not owe. The
presumption available to the complainant is not at all
rebutted by the accused.
23. A proceeding under section 138 of N.I Act is quasi
criminal in nature. In these proceedings proof beyond
reasonable doubt is subject to presumptions envisaged
under section 118, 139 and 146 of N.I Act. An offence under
section 138 of N.I Act is committed not on dishonour of the
cheque, but on the failure of the drawer of cheque to make
payment within 15 days from the receipt of notice of
dishonour. An essential ingredient of section 138 of N.I Act
is that cheque in question must have been issued towards a
legally enforceable debt or liability.
20 CC.NO.11955/2023
24. In the case on hand the complainant has proved
that the accused is due to him and the said debt is legally
recoverable debt. Section 118 and 139 of the Act, envisages
certain presumptions. Under section 118 a presumption
shall be raised regarding consideration, date, transfer,
endorsement and regarding the holder in case of Negotiable
Instruments. Even, under section 139 a rebuttable
presumption shall be raised that the cheque in question was
issued regarding discharge of a legally enforceable debt.
These presumptions are mandatory presumptions that are
required to be raised in a case of N.I Act. These
presumptions are not conclusive presumptions, but
rebuttable. Therefore, it is for the accused to show that
there was no debt or liability or that debt or liability was not
legally enforceable. It is true that the accused need not
prove his case beyond reasonable doubt, but the defence
should be such which makes the court to accept the defence
version probable. Unless, the drawer is able to discharge the
onus, an offence under section 138 would be complete
provided there are no technical defects in the prosecution.
25. As the accused has not discharged the burden
cast upon him, Ex.P.1 having been issued by him and its
return on the ground of “Funds Insufficient”, which was
21 CC.NO.11955/2023
followed by a demand notice to pay the cheque amount, the
complaint having been filed within the period of limitation
and the material documents having been exhibited during
the course of trial by the payee of the cheque, during whose
cross-examination nothing material has been elicited to
doubt his testimony, the ingredients of the offence under
section 138 has been met out. The statutory presumption
under section 139 has not been discharged by the accused.
The reverse burden is on the accused which he has to
discharge in the manner which is believable as well as
acceptable to the court, but the accused has not done so.
Accordingly, it is to be held that the accused has committed
the offence punishable under section 138 of N.I Act. As
such, Point No.1 and 2 are answered in the Affirmative.
26. Point No.3:- Negotiable Instruments Act was
enacted to bring credibility to the cheque. The very purpose
of the enactment is to promote the use of the Negotiable
Instrument, while to discourage the issuance of the
cheque without having sufficient funds in the account. Such
being the case, the intention of the legislature is that
complainant be suitably compensated while the accused be
punished for his act.
22 CC.NO.11955/2023
27. When compensation is awarded enforcement of the
same come into question. There is no provision in the Code
of Criminal Procedure for imposing default sentence for
enforcing the payment of compensation. In this regard, the
Hon’ble Supreme Court in the decision reported in 2002 (2)
SCC 420 between Suganthi Suresh Kumar Vs. Jagadeeshan
was pleased to hold that “the court may enforce the order by
imposing sentence in default”. The same is reaffirmed in
latest decision in 2010 AIR SCW 3398 between K.A.Abbas
H.S.A. Vs Sabu Joseph. Therefore, it is deemed fit to provide
default sentence in order to enforce the payment of
compensation. Ex.P.1 cheque is of the Year – 2023
Therefore, the complainant is deprived of the money that
was rightfully due to him for more than two years.
Accordingly, it is deemed fit that a compensation of
Rs.14,90,000/- (Rupees Fourteen Lakh Ninety Thousand
only) be granted. Accordingly, in the light of above
discussions, I proceed to pass the following:-
ORDER
By acting under section 255(2) of
Cr.P.C., the accused is convicted for the
offence punishable under section 138 of the
Negotiable Instruments Act and he is
23 CC.NO.11955/2023sentenced to pay fine of Rs.14,91,000/-
(Rupees Fourteen Lakh Ninety One Thousand
only), in default to undergo Simple
Imprisonment for a period of Six Months.
If the fine amount is recovered a sum of
Rs.14,90,000/- (Rupees Fourteen Lakh Ninety
Thousand only) is ordered to be paid to the
complainant by way of compensation as per
the provisions under section 357 of Cr.P.C.
and the remaining amount of Rs.1,000/- is to
be appropriated to the State.
The Bail Bond and the cash Surety of
the accused shall stand cancelled.
Supply a free copy of this Judgment to
the accused.
(Typed by me on computer and computerized by me, corrected by me,
and then pronounced in the open Court on this 07th day April, 2025).
(Smt.Preeth. J)
XII Addl. CJM, Bengaluru
ANNEXURES
Witnesses examined for the Complainant:
P.W.1 : P.A.Ravindra reddy
24 CC.NO.11955/2023
Documents exhibited for the Complainant:
Ex.P.01 : Cheque, Ex.P.02 : Memos of the Banker Ex.P.03 : O/Copy of Legal Notice, Ex.P.04 : Postal Receipt Ex.P.05&6 : Postal Acknowledgment Ex.P.7-9 : Bank Account Extracts Ex.P.8 : C/c of Order sheets (Confronted)
Witnesses examined for the defence Accused:
D.W.1 : Babu.B.V
Documents exhibited for the defence Accused:-
Ex.D.1 : Sale deed
Ex.D.2 : Sale Agreement
Ex.D.3 & 4 : Demand Promissory Notes
Ex.D.5-8 : E-Stamp Papers
Ex.D.9 : Cheques Digitally
signed by
PREETH J
PREETH Date:
J 2025.04.11
15:47:50
+0530
(Smt.Preeth. J)
XII Addl. CJM, Bengaluru
25 CC.NO.11955/2023
07.04.2025
For judgment
(Judgment pronounced in the open court
vide separate Order)
ORDER
By acting under section 255(2) of
Cr.P.C., the accused is convicted for the
offence punishable under section 138 of the
Negotiable Instruments Act and he is
sentenced to pay fine of Rs.14,91,000/-
26 CC.NO.11955/2023
(Rupees Fourteen Lakh Ninety One Thousand
only), in default to undergo Simple
Imprisonment for a period of Six Months.
If the fine amount is recovered a sum of
Rs.14,90,000/- (Rupees Fourteen Lakh Ninety
Thousand only) is ordered to be paid to the
complainant by way of compensation as per
the provisions under section 357 of Cr.P.C.
and the remaining amount of Rs.1,000/- is to
be appropriated to the State.
The Bail Bond and the cash Surety of
the accused shall stand cancelled.
Supply a free copy of this Judgment to
the accused.
XII ACJM, Bengaluru
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