Bangalore District Court
Smt. V.Savitha vs G.Ramesh on 16 June, 2025
KABC030306062019
IN THE COURT OF THE XIX ADDITIONAL CHIEF
JUDICIAL MAGISTRATE AT BENGALURU CITY.
Dated this the 16th day of June 2025.
PRESENT:SMT.RASHMI H.B.,B.A.(LAW)LL.B.,LLM.,
XIX ADDL.C.J.M., BENGALURU CITY.
C.C.No.9687 of 2019
Complainant :- Smt.V.Savitha,
W/o Late B.A.Vishwanath,
Aged about 46 Years,
R/at.No.99, 3rd Cross,
7th Block, Koramangala,
Bengaluru - 560 095.
(Rep. By Sri.R.R., Advocate)
-V/s-
Accused :- G.Ramesh,
S/o Late M.R.Gopalaiah,
Aged about 42 Years,
Presently Residing at
Andarlahalli Village,
Chikkaballapur Taluk & District.
(Rep. By Sri.B.V.G., Advocate)
Date of complaint :- 15-03-2019
Date of Commencement :- 27-04-2019
of evidence
2 C.C.No.9687/2019
Offence complained :- Section 138 of N.I.Act
Opinion of the Judge Accused is found guilty.
Digitally signed
RASHMI by RASHMI H B
Date:
HB 2025.06.16
17:21:00 +0530
(SMT.RASHMI H.B.,)
XIX ADDL.C.J.M., Bengaluru City.
JUDGMENT
This is a private complaint filed under section 200 of
Cr.P.C., against the accused for the offence punishable
under section 138 of the Negotiable Instruments Act.
02.The brief facts of the complaint is as under:
The complainant’s husband and accused are known to
each other for the last 25 years and having good
relationship. In that acquaintance, the accused has availed
loan of Rs.1,00,000/- from the complainant in four
installments during last week of 2016 to January-2017.
Further accused has availed hand loan of Rs.2,00,000/- in
cash from complainant in 7-8 installments from February
to September-2017. In order to discharge said liability,
3 C.C.No.9687/2019accused has issued two cheques bearing No.188303
dated 10-12-2018 for Rs.1,00,000/- and cheque bearing
No.188304 dated 10-12-2018 for Rs.2,00,000/-, drawn
on Textile Co-Operative Bank Limited, Magadi Road
Branch, Bengaluru, in favour of the complainant. The
complainant presented said cheques for encashment
through her banker Canara Bank, Koramangala Branch,
Bengaluru. But the said cheques are returned unpaid
with bank endorsement dated 15-12-2018 for the reason
“Funds Insufficient”. Thereafter, the complainant has
got issued legal notice to the accused through his counsel
on 10-01-2019 by way of R.P.A.D., same was duly served
to the accused on 29-01-2019 and the acknowledgment
was received to the complainant on 01-02-2019. The
accused has failed to make payment of cheques amount.
Hence, the complainant has filed this complaint on 15-
03-2019.
03. After presentation of complaint, this Court
took cognizance of offence and recorded the sworn
4 C.C.No.9687/2019
statement of complainant. Thereafter, a criminal case is
registered against accused and summons is issued to
the accused. The accused appeared through his counsel
and he is enlarged on bail. The copies of the complaint
and other papers furnished to the accused. Substance of
accusation was read over to him. Accused pleaded not
guilty and claimed to be tried.
04. In order to prove the accusation made against
the accused, the complainant examined herself as PW1
and got marked 07 documents as Ex.P1 to Ex.P7.
Thereafter, statement of accused is recorded under
section 313 of Cr.P.C., wherein the accused has denied
the incriminating evidence found on record as false and
he has submitted he would lead defence evidence. But
accused failed to lead defence evidence.
05. Heard the arguments of learned counsel for
complainant. The defence did not adduce arguments.
Perused entire case record carefully.
5 C.C.No.9687/2019
06. On the basis of contentions raised in the
complaint the points that arises for determination of this
Court are as follows:
1.Whether the complainant proves that,
the accused issued the cheque towards
discharge of legally enforceable debt?
2.Whether the complainant proves the guilt
of the accused for the offence
punishable under section 138 of
Negotiable Instruments Act?
3.What order?
07. Now, this Court answers to above points are
as follows:
Point No.1: In the Affirmative;
Point No.2: In the Affirmative;
Point No.3: As per final order for
the following:
:: R E A S O N S ::
08. POINTS No.1 and 2: Since these points are
inter-relating with each other, they are taken up together
for common discussion to avoid the repetition of facts and
findings.
6 C.C.No.9687/2019
09. This case is tried as summons case. As this
matter is tried as summons case, this Court relies on the
evidence recorded by learned predecessor in office. In that
regard, this Court relies on decision of Hon’ble Supreme
Court of India in the case of Mehsana Nagarik Sahkari
Bank Ltd., V/s Shreeji Cab Co. & Others reported in
2014(13) SCC 619. Wherein the Hon’ble Supreme Court
had observed that de-nova hearing is necessary only when
the evidence is recording in summary manner. Therefore,
this Court has proceeded with the case on the basis of part
evidence recorded previously.
10. Before proceeding with the discussion, in order to
prove the guilt of offence under section 138 of N.I. Act,
initial burden casts on the complainant to prove the
following ingredients:
a) The cheque must have been drawn
for discharge of existing debt or
liability.
b) Cheque must be presented within
validity period.
c) Cheque must be returned unpaid due
7 C.C.No.9687/2019
to insufficient funds or it exceeds the
amount arranged.
d) Fact of dishonour be informed to the
drawer by notice within 30 days.
e) Drawer of cheque must fail to make
payment within 15 days of receipt of
the notice.
11. In order to prove the case, the complainant
Smt.V.Savitha, has examined herself as PW1. The PW1 has
filed an affidavit in lieu of examination-in-chief reiterating
entire complaint averments. In support of her oral
evidence, she produced Ex.P1 to 7 documents. The
complainant got marked two original cheques as Ex.P1 and
2, two bank endorsements as Ex.P3 and 4, demand notice
as Ex.P5, postal receipt as Ex.P6 and postal
acknowledgment as Ex.P7.
12. During cross-examination of PW1, she has stated
accused has issued disputed cheques after affixing his
signature and amount in words and numbers. PW1 has
stated she has filled her name in the Ex P1 and 2 cheques.
The defence suggested accused did not affix his signature
8 C.C.No.9687/2019
on cheque and he did not mention any details. The said
suggestions answered as not true. Thereafter, matter was
deferred for further cross-examination and accused has
failed to further cross- examine PW1.
13. The evidence of PW1 and Ex.P.1 to Ex.P7 clearly
show the complaint is filed within time and all the
ingredients of section 138 of N.I.Act. The cheque is issued
for legally recoverable debt and it is dishonored for “Funds
Insufficient”. The said fact is brought to the notice of
accused. Till date the accused did not comply the demand
of the complainant for payment of amount mentioned in the
cheques. Therefore, PW1 has discharged her burden to
prove the ingredients of the offence punishable under
section 138 of Negotiable Instruments Act.
14. Another aspect is to consider whether the Ex.P1
and 2 cheques and Ex.P1(a) and Ex.P2(a) signatures
belongs to the accused or not. The accused did not dispute
the said facts by leading evidence. As per section 146 of
N.I. Act, burden casted on accused to prove bank
9 C.C.No.9687/2019
endorsement is not correct. As the cheques are dishonour
for the reason “Funds Insufficient”, it is deemed that
cheque and its signature is belong to accused. These facts
clearly shows that the cheques in dispute is belongs to
accused and he has signed the said document. Therefore,
presumption under section 118 and 139 of N.I. Act lies in
favour of the complainant.
15. As per provision of section 118 and 139 of N.I.
Act, the court has to presume liability of the accused and to
such amount mentioned in the cheque to discharge legally
recoverable debt. The said aspect was denied by the
accused. Once the execution of cheque is admitted section
139 of the Act mandates a presumption that the cheque
was for the discharge of any debt or other liability.
Thereafter, the onus of proving probable defense of the
accused is on accused and standard of proof for rebutting
presumption is preponderance of probabilities. To rebut
presumption, it is open for the accused to rely on evidence
10 C.C.No.9687/2019
or the accused can also rely on the materials submitted by
the complainant in order to raise probable defense.
16. In that regard, the Hon’ble Supreme Court of
India in its Judgment reported in 2019(5) SCC 418 in the
case of Basalingappa V/s Mudibasappa discussed the
manner in which accused could rebut the presumption
raised under section 118 and 139 of Negotiable instruments
Act. The Hon’ble Supreme Court of India in the case of
Basalingappa Vs. Mudibasappa reported in 2019 (5)
SCC 418 laid down principles regarding how presumption
under section 118 and 139 of N.I.Act can be rebutted. As
per the said judgement it is not necessary to accused to
enter into witness box to rebut the presumptions.
17. To rebut the presumptions, accused did not
entered into witness box. The entire defence of accused
shows in cross-examination of PW1 is that, his cheques are
misused and Ex P1 and 2 cheques are not signed by him.
But, accused did not produce any evidence to show the
signatures of Ex P1 and 2 is not belong to him. PW1 has
11 C.C.No.9687/2019
explained, it is accused who has affixed his signature and
filled the amount in words and numbers of the cheques and
she only filled her name in the cheque. The said explanation
shows accused has voluntarily handed over the cheques to
complainant towards discharge of loan. When cheque is
voluntarily handed over towards payment of debt, filling up
of cheque details does not amount to misuse of cheque and
as per section 20 of N.I.Act said act of complainant is
permissible.
18. At this stage, it is evident to note in the
Judgement of Hon’ble Supreme Court of India in the case
of Bir Singh Vs Mukesh Kumar reported in 2019(4) SCC
197 observed as follows:
“36. If a signed blank cheque is
voluntarily presented to a payee, towards
some payment, the payee may fill up the
amount and other particulars. This in
itself would not invalidate the cheque.
The onus would still be on the accused to
prove that the cheque was not in
12 C.C.No.9687/2019discharge of a debt or liability by
adducing evidence.”
19. Therefore, act of complainant to filling up her
name does not make the cheques are invalid. The claim of
misuse of cheque is not substantiated by initiating proper
legal action by accused. It is evident to note any probable
man would not keep quiet if cheques are misused.
Therefore, accused being aware of cheques are in the hands
of complainant, he did not take any action to get it back or
not informed his banker for stop payment. Therefore,
accused did not make out suspicious circumstances about
misuse of cheques. Therefore, accused has failed to make
probable defence.
20. Accused did not enter into witness box to
establish the fact that how his cheques are gone into the
hands of complainant other than the reasons explained by
complainant. No such defence is made during cross –
examination of PW1. Therefore, claim of misuse of cheques
appeared to be self serving statement. Therefore, said
13 C.C.No.9687/2019
defence and denial of accusation during recording plea and
denial during recording statement under section 313 of
Cr.P.C., does not rebut the presumption U/s.139 of N.I.Act.
21. The Full bench judgement of Hon’ble Supreme
Court of India in the case of Rangappa vs Sri Mohan
reported in 2010(11) SCC 441 held that presumption
mandated by section 139 of N.I.Act does indeed include the
existence of legally enforceable debt or liability. Therefore,
once the initial burden is discharged by the complainant
that the cheque is issued by accused and the signature, the
burden casted on the accused to prove the contrary that
cheque is not issued for any debt or other liability. The said
proposition of law is laid down by Hon’ble Supreme Court of
India in the case of the P Rasiya vs Abdul Nazer and
another. In the Judgement of Hon’ble Supreme Court of
India reported in 2021 (5) SCC 283 in the case of M/S
Kalamani Tex vs P. Balasubramanian. In the para 13 of
said Judgement the Hon’ble Supreme Court observed as
follows:
14 C.C.No.9687/2019
“13. Adverting to the case in hand, we find on a
plain reading of its judgement that the trail court
completely overlooked the provisions and failed to
appreciate the statutory presumption drawn under
section 118 and section 139 of N.I.A. The statute
mandates that once the signature(s) of an accused
on the cheque/negotiable instrument are
established, then these “reverse onus” clause
become operative. In such a situation, the
obligation shifts upon the accused to discharge the
presumption imposed upon him. The point of law
has been crystalised by the court in Rohitbhai
Jivanlal Patel vs State of Gujarath…”
22. Considering aforesaid legal proposition, burden
casted on accused to disprove the case of complainant and
his defence must be found more probable. As per section
139 of the N.I.Act, it shall be presumed unless contrary is
proved, that the holder of cheques has received the
cheques of the nature referred to in section 138 of N.I. Act
for discharge in whole or in part of any debt or other
liability. The presumption mandated by section 139 of N.I.
Act, does indeed include the existence of legally enforceable
15 C.C.No.9687/2019
debt or liability. Therefore, once the initial burden is
discharged by the complainant that the cheques are issued
by accused and the signatures, the burden casted on the
accused to prove the contrary that cheques are not issued
for any debt or other liability. However, in this case accused
has failed to make probable defence to rebut the
presumptions. Hence, on the basis of the evidence of PW1
and Ex.P1 to 7 documents, the complainant has proved the
case and complainant is entitled for recovery of the amount
as compensation.
23. On considering the facts and circumstances of
the case, the complainant has able to establish that Ex.P.1
and 2 cheques are issued to discharge liability of repayment
of Rs.1,00,000/- and Rs.2,00,000/- to complainant by the
accused. Ex.P1 and 2 are dishonoured for the reason
insufficient of funds in the account of accused and
complainant is entitled for the cheques amount as
compensation. Further, complainant is entitled for
compensation of Rs.10,000/- as cost of the proceedings.
16 C.C.No.9687/2019
The accused is not a repeated offender. Hence, there is no
need to award imprisonment term. However, accused is
liable to pay the fine amount of Rs.10,000/- to the state
towards litigation expenses. Under these circumstances,
this Court answers Points No.1 and 2 in the Affirmative.
24. POINT No.3: For the foregoing reasons stated
in the Points No.1 and 2, this Court proceeds to pass the
following:
ORDER
The accused is found guilty for the offence
punishable under section 138 of Negotiable
Instruments Act.
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. The accused is
sentenced to pay a fine of Rs 3,20,000/- and
in case of default she shall undergo simple
imprisonment for 6 months.
Out of the fine amount Rs 3,10,000/-
shall be paid to the complainant as
compensation as per section 357(1)(b) of
17 C.C.No.9687/2019Cr.P.C. The remaining amount of Rs.10,000/-
shall be defray to the State.
In view of section 437(A) of Cr.P.C. bail
bonds stand extended for 6 months from this
date.
Supply free copy of Judgment to the
accused.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected by me
th
16
and signed, pronounced in the Open Court on this the day of June, 2025 )
RASHMI Digitally signed
by RASHMI H BHB Date: 2025.06.16
17:21:30 +0530
(SMT.RASHMI H.B.,)
XIX ADDL.C.J.M., Bengaluru City.
::ANNEXURE::
List of Witnesses examined for Complainant:-
PW1 :- Smt.V.Savitha.
List of Documents marked for Complainant:-
Ex.P1 & 2 :- Original Cheques, Ex.P1(a) & 2(a) :- Signatures of Accused, Ex.P3 & 4 :- Two Bank Endorsements, Ex.P5 :- Office copy of the Legal Notice, Ex.P6 :- Postal Receipt, Ex.P7 :- Postal Acknowledgment.
List of Witnesses examined for Accused:- – NIL –
List of Documents marked for Accused:- – NIL –
Digitally signed RASHMI by RASHMI H B HB Date: 2025.06.16 17:21:45 +0530 (SMT.RASHMI H.B.,) XIX ADDL.C.J.M., Bengaluru City. 18 C.C.No.9687/2019