Bangalore District Court
Kavitha S Kumar vs R Chittibabu on 19 June, 2025
KABC0C0051692022
IN THE COURT OF XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
MAYO HALL UNIT, BENGALURU (ACJM-34)
PRESENT: Smt.PARVEEN A BANKAPUR,B.Com.LLB.
XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE
Dated : This the 19th day of June, 2025.
C.C.No.51481/2022
COMPLAINANT : Mrs. Kavitha S Kumar
Aged about 40 years
W/o. Sri Santhosh Kumar
No.773, 22nd Cross, HSR 3rd Sector,
Bengaluru - 560 102.
(By Mr. B.R. Viswanath - Advocate)
V/s
ACCUSED : Mr. R Chittibabu
S/o. Late C. Ramaswamy Naidu
No.404 A, Venkataswamy Layout,
(Near Naidu Layout) Shanthipura
Village, Huskur Post, Anekal Taluk,
Bengaluru - 560 099.
(By Mr.G. Nanjappa - Advocate)
1 Date of Commencement 15.09.2021
of offence
2 Date of report of offence 28.12.2021
3 Presence of accused
3a. Before the Court 22.11.2022
3b. Released on bail 22.11.2022
4 Name of the Complainant Mrs. Kavitha S Kumar
5 Date of recording of 05.03.2022
evidence
6 Date of closure of evidence 21.02.2025
7 Offences alleged U/s 138 of the Negotiable Instruments
Act
8 Opinion of Judge Accused is found guilty
2 C.C.No.51481/2022
JUDGEMENT
The Private Complaint filed by the Complainant under
Section 200 of Cr.P.C. against the accused alleging that he has
committed the offence punishable under Section 138 of
Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that, the Accused is co-tenant
in respect of 1st floor premises in the building situated in
property bearing No.773, 22nd Cross, HSR 3rd Sector,
Bengaluru, belongs to her. The Accused has been chronic
defaulter in payment of rents. On repeated requests made by
her, the Accused issued a Cheque bearing No.053494
dtd.15.9.2021 for Rs.1,00,000/- drawn on State Bank of India,
Subbanna Palya, Banaswadi branch, Bengaluru towards part
payment of rent.
It is further submitted by the Complainant that she
presented the Cheque for encashment through her banker i.e.,
Indian Overseas Bank, Koramangala branch, Bengaluru and
the said Cheque was returned dishonoured with reason
“payment stopped by drawer” on 13.10.2021. Thereafter,
the Complainant got issued demand notice through RPAD on
3 C.C.No.51481/202230.10.2021, through her counsel to the Accused. The notice
was served to the Accused. Despite receipt of the legal notice
the Accused has neither paid the Cheque amount nor replied to
the notice. Hence, the Complainant has filed the present
complaint against the Accused for the offence punishable
u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement affidavit,
and documents etc., took cognizance of an offence punishable
Under Section 138 of N.I. Act by following the guidelines of
Apex Court issued in Indian Bank Association case and ordered
to be registered a criminal case against the accused for the
offence punishable Under Section 138 of N.I. Act.
4. After issuance of summons, accused appeared before
the court and enlarged himself on bail. Plea was recorded, read
over and explained to the accused, who pleads not guilty and
claims to be tried. Hence, the case is posted for complainant’s
evidence.
5. The Complainant got examined herself as PW-1 and
got marked documents Ex.P.1 to Ex.P.5.
4 C.C.No.51481/2022
6. Accused was examined U/S 313 of Cr.P.C.
Incriminating evidence appearing in the complainant’s evidence
was read over and explained to the accused who denies the
same. The Accused got examined himself as DW1 and no
documents were marked from his end. However, Ex.D.1
document came to be marked through confrontation during the
course of cross-examination of PW1.
7. Heard both counsels at length in great detail. In
addition to the oral arguments, the learned counsel for Accused
has filed the written arguments.
8. Upon hearing the arguments and on perusal of the
materials placed on record, the following points arise for my
consideration.
1) Whether complainant proves beyond all
reasonable doubts that accused in discharge of
legally recoverable debt, has issued a Cheque
No.053494 dtd.15.9.2021 for Rs.1,00,000/-
drawn on State Bank of India, Subbanna Palya,
Banaswadi branch, Bengaluru in favour of the
complainant which came to be dishonoured
with an endorsement “payment stopped by
drawer” in spite of receipt of notice accused
has not paid the Cheque amount and thereby
committed an offence under Section 138 of
N.I.Act?
2) What Order?
5 C.C.No.51481/2022
9. My findings on the above points is:
Point No.1: In the Affirmative
Point No.2: As per final order
for the following:
REASONS
Point No.1:-
10. Existence of legally recoverable debt is a sine qua non
for prosecuting the case under Section 138 of Negotiable
Instruments Act. For convenient purpose the essential
ingredients to constitute offence under section 138 of N.I.Act is
summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of
bank for discharge in whole or in part of any debt
or other liability which presupposes the legally
enforceable debt.
(iii)That the cheque so issued had been returned due to
“insufficient funds”.
11. It is the core contention of the complainant that,
the Accused is co-tenant in respect of 1st floor premises in the
building situated in property bearing No.773, 22 nd Cross, HSR
3rd Sector, Bengaluru, belongs to her. The Accused has been
chronic defaulter in payment of rents. On repeated requests
made by her, the Accused issued a Cheque bearing No.053494
6 C.C.No.51481/2022
dtd.15.9.2021 for Rs.1,00,000/- drawn on State Bank of India,
Subbanna Palya, Banaswadi branch, Bengaluru towards part
payment of rent., which was returned dishonoured with reason
“payment stopped by drawer” on 13.10.2021 on its
presentation. Thereafter, the Complainant got issued demand
notice through RPAD on 30.10.2021, through her counsel to
the Accused. The notice was served to the Accused. Despite
receipt of the legal notice the Accused has neither paid the
Cheque amount nor replied to the notice. Hence, the
Complainant has filed the present complaint against the
Accused for the offence punishable u/Sec.138 of N.I. Act.
12. In order to bring home the guilt of the Accused, the
Complainant got examined herself as PW1 and reiterated the
contents of complaint in her examination-in-chief. She has also
placed the original Cheque bearing No.053494 dtd.15.9.2021
at Ex.P.1, bank endorsement at Ex.P2, Ex.P3 is the office copy
of legal notice issued by the Complainant to the Accused on
30.10.2021, Ex.P4 is the postal receipt and Ex.P5 is the postal
acknowledgement.
13. The documents produced by the complainant of
course established that complainant meets out the procedural
7 C.C.No.51481/2022
requirements of Section 138 of Negotiable Instrument Act, but
it is to be considered whether all these documents establish the
offence committed by the accused.
14. The Negotiable Instruments Act raises two
presumptions. One contained in Section 118 and the other in
Sec. 139 thereof. For the sake of convenience Sec 118(1) of the
N.I. Act is extracted here below:
118. Presumptions as to negotiable Instruments–
Until the contrary is proved, the following
presumptions shall be made ;–
(a) of consideration that every negotiable
instrument was made or drawn for consideration, and
that every such instrument, when it has been
accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for
consideration.
1. To (g) . . . . . . . . . . . .
Provided that where the instrument has been
obtained from its lawful owner, or from an person in
lawful custody thereof, by means of an offence of fraud,
or has been obtained from the maker or acceptor
thereof by means of an offence of fraud, or for unlawful
consideration, the burden of proving that the holder is
a holder in due course lies upon him”.
8 C.C.No.51481/2022
15. Further Section 139 of the Negotiable Instruments Act
reads as under:
“139, Presumption in favour of holder. It shall be
presumed, unless the contrary is proved, that the
holder of a cheque received the cheque, of the nature
referred to in section 138, for the discharge, in whole or
in part, of any debt or other liability.”
Scope and ambit and function of the presumption
U/s 118(a) and Sec 139 of NI Act came to be considered
by the Hon’ble Apex Court of Indian in Krishna
Janardhan Bhat Vs Dattatraya G.Hegde (2008
AIAR (Criminal 151) The Supreme Court has laid
down the law in the following phraseology.
“D Negotiable Instruments Act 1881, Secs 139,
138–Presumption under-same arises in regard to
second aspect of the matter provided under Sec 138–
Existence of legally enforceable debt is not a matter of
presumption under Sec 139- It merely raises
presumption in favour of a holder of the cheque that
the same has been issued for discharge of any debt or
other liability – Merely an application of presumption
contemplated under Section 139 of N.I.Act should not
lead to injustice or mistaken conviction.”
16. Further, said decision was followed by Hon’ble High
Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju
9 C.C.No.51481/2022
& Others (2008 (5) KCCR 3371). Relevant paragraph of the
said judgment reads as under: –
“12. As to the provisions of Sections 138 of N.I.Act, the
following principles emerge from the above
observations of Hon’ble Supreme Court at para Nos
21, 23, 25, 26 and 34 of its Judgment in the above
said case of Krishna Janardhan Bhat Vs
Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption
that the cheque was issued towards discharge in whole
or in part in any debt or other liability, which
presupposed legally enforceable debt. Existence of
legally recoverable debt is not a matter of presumption
under Section 139 of the Act. It merely raises a
presumption in favour of a holder of the cheque that
the same has been issued for discharge of any debt or
other liability.” (para 21)
(ii) The question as to whether the presumption stood
rebutted or not, must be determined keeping in view
the other evidences on record. Where the chances of
false implication cannot be ruled out, the background
fact and the conduct of the parties together with their
legal requirements are required to be taken into
consideration. (para 26)
(iii) An accused, for discharging the burden of proof placed
upon him under a statute, need not examine himself.
He may discharge his burden on the basis of the
materials already brought on records (para 23)
(iv) Standard of proof on the part of an accused and that of
the prosecution in a criminal case is different. Further
more where as prosecution must prove the guilt of an
accused beyond all reasonable doubt, the standard of
proof so as to prove a defence on the part of an
accused is “preponderance of probabilities'” ( para 23
& 25)
10 C.C.No.51481/2022
(v) Inference of preponderance of probabilities can be
drawn not only from the materials brought on records
by the parties but also by reference to the
circumstances upon which he relies ( para 25)
(vi) Other important principles of legal jurisprudence,
namely presumption of innocence as human rights
and the doctrine of reverse burden introduced by
Section 139 should be deliberately balanced (para 34)
17. Thus from the observations extracted above, it is clear
that presumption Under Section 139 of the N.I,.Act is only to
the extent that the cheque was drawn for discharge in full or in
part of any debt or other liability and the said presumption do
not relate to the existence of legally enforceable debt or liability.
Therefore, before drawing the presumption under section 139 of
the N.I.Act, it is the duty of the Court to see whether or not the
complainant has discharged his initial burden as to existence of
legally enforceable debt. No doubt, as per Section 118(a) of the
Act, there is a rebuttable presumption that every negotiable
instrument, is accepted, endorsed, negotiated or transferred
was accepted, endorsed, negotiated or transferred for
consideration.”
18. Factual matrix of the case is required to be tested on
the anvil of principles emerging from the above-referred
decisions.
11 C.C.No.51481/2022
19. The defence taken by the Accused is that, he and his
co-tenant by name Mr. Munavar were executed rent agreement
on condition that, Rs.5 lakhs security deposit paid to the
Complainant and for that security deposit, the Accused has
issued one cheque for Rs.1 lakh and another cheque for
Rs.33,000/- and thereafter he paid both cheques amount by
cash but, the Complainant has not returned the security
cheques and misused the same by filing of false complaints
against him.
20. In order to substantiate the claim, the Complainant
examined herself as PW1 and she deposed that, Accused is co-
tenant in her premises and Accused is a chronic defaulter in
payment of rents. It is further submitted that, on repeated
requests and demands, towards payment of rent amount, the
Accused has issued Ex.P1 cheque for Rs.1 lakh, which was
dishonoured with reason “payment stopped by drawer” as per
Ex.P2. It is further deposed that, thereafter the Complainant
has issued legal notice to the Accused calling upon him to pay
the cheque amount as per Ex.P3 and said notice was duly
served upon the Accused as per Ex.P5. It is further submitted
12 C.C.No.51481/2022
that, after receipt of notice, neither the Accused paid the
cheque amount nor replied the notice.
21. Considering the oral and documentary evidence
placed by the Complainant, prima facie presumed that, Ex.P1
cheque was issued by the Accused towards legally enforceable
debt and liability. To rebut the presumption the learned
counsel for Accused cross-examined the PW1 in full length.
[
22. In the cross-examination PW1 stated that she is
working as Engineer in Infosys Company and she is an Income
Tax Assessee and apart from her salary she get rental income.
She further deposed that she get Rs.1.8 lakh amount income
from rent per month. She further stated that the rent amount
was declared by her in her income tax returns. She further
stated that, Accused and another Mr.Munavar came to her as
a tenant in the month of October 2020. She further stated that,
she has filed Civil Suit against the Accused and Mr.Munavar for
vacation of the premises as per Ex.D1. She further stated that,
rent agreement was executed between herself and Accused and
Mr.Munavar. She denied that in the said agreement, it is
mentioned that more are equally liable to pay rent amount. She
further denied that she received 2 cheques from the Accused for
13 C.C.No.51481/2022
the purpose of security only not for payment of rent. She
further denied that, Mr.Munavar has issued two cheques of
Accused for the purpose of security towards the rent amount.
She further denied that, the Accused was made stop payment
under impression that she will be misused the cheques. She
admits that out of Rs.5 lakhs deposit amount, the Accused has
paid Rs.1,75,000/- by cheque. She denied that Rs.3,75,000/-
was received by her from the Accused by cash. It is further
denied that since the house was let out for 10 years, the
Accused has made expenses of Rs.17 lakhs for interior work.
She denied that till order of Hon’ble High Court of Karnataka in
the month of January 2024 no rent was due. She further stated
that she has not produced document to show that the Accused
is due for Rs.1,30,000/- rent amount. She further stated that
she does not know that the Accused was filed complaint before
the bank by stating that, Ex.P1 cheque and another cheque
bearing No.053495 was misplace or theft from the rental house.
She further denied that both cheques were stolen by her. She
further denied that, 3 cheques were stolen by her from the
office of Accused, therefore, the Accused made stop payment to
the bank. She further denied that the cheques issued for
14 C.C.No.51481/2022
purpose of rent amount of Mr.Munavar, which were issued for
the purpose security were misused by her.
23. To rebut the presumption, the Accused examined
himself as DW1. He deposed that, he deposed that he know the
Complainant since from 4 years and he was tenant in the
house of Complainant at HSR Layout. He further deposed that
his business partner Mr. Munavar and between Complainant
and themselves, rent agreement was executed. He further
stated that security deposit amount is Rs.5 lakhs and out of
Rs.5 lakhs, he paid Rs.2,25,000/- and Rs.3,75,000/- was paid
by him. He further deposed that, the rent agreement was with
Mr. Munavar. He further deposed that, he was paid his part of
rent amount to the Complainant regularly. He further deposed
that, due to unavailable of his partner, he issued one cheque
for Rs.1 lakh and another cheque for Rs.33,000/- were issued
in favour of Complainant for the purpose of security. He further
deposed that, both cheques amount was paid by him by cash to
the Complainant. He further deposed that, the Complainant
stated that she will return the security cheques to him. But
after he forgot to take back the cheques. He further deposed
that, he was made interior work by spending Rs.17 lakhs. He
15 C.C.No.51481/2022
further deposed that, he was not do the business and his
partner was left out and Complainant was misused the
cheques. He further deposed that, after receipt of court
summons he know about the case. He further deposed that, he
made complaint before the bank about misplace of 4 cheques.
24. In the cross-examination he admits that, he was a
tenant in the first floor of Complainant’s house and he further
stated along with him, one Mr. Munavar was tenant. He admits
that he and Mr.Munavar were executed rent agreement with the
Complainant. He further stated that in the agreement it is not
mentioned that part rent amount was paying by him and
another part amount was paying by Mr. Munavar. He further
stated that, he was not lodged police complaint about theft of
cheques. He denied that, he liable to pay Rs.1,30,000/-.
25. Considering the oral and documentary evidence
placed by both parties, it is clear that, Ex.P1 was issued by the
Accused and signature on the cheque was not denied. It is
further clear that Accused and one Mr. Munavar were tenants
of the Complainant. Here no dispute about the security deposit
amount. The claim of the Complainant is that, Accused is due
of rent amount of Rs.1,33,000/-. Towards payment of rent
16 C.C.No.51481/2022
amount, he issued two cheques, one is for Rs.1 lakh and
another cheque for Rs.33,000/- which both were dishonoured.
On the other hand, the Accused take multiple defences. One
time the Accused taken defence that, both cheques were issued
for the security purpose towards the payment of rent amount
on the part of Mr. Munavar. Another time he taken defence
that, both cheques were misplaced or stolen. Another time he
taken defence that Complainant was stolen both cheques from
the office of Accused. It is pertaining to note that both parties
are not produced rent agreement. In the evidence of Accused,
he stated that rent agreement was with Mr.Munavar. If, it is the
condition in the rent agreement that both tenants are pay the
rent amount in equal part, then Mr.Munavar will issue the
cheques for payment of his part of rent amount. But, in the
present case the accused has issued his cheques. Therefore,
the contention taken by the Complainant that towards payment
of rent amount, the Accused was issued both cheques is
corroborated.
26. During the course of arguments, the learned counsel
for Accused submits that, no supporting documents are
produced by the Complainant to show that, cheque in question
17 C.C.No.51481/2022
is issued towards arrears of rent and no documents produced
to show that, Accused is in due of arrears of rent amount and
also submits that, rental agreement has not been produced by
the Complainant and date of service of legal notice is not
forthcoming either in the complaint or in the evidence.
Therefore, there is no cause of action arose for filing of the
complaint.
27. It is pertaining to note that, Accused himself admits
that, he issued both cheques towards payment of rent on the
part of Mr.Munavar. Further Accused himself stated that, rent
agreement was with Mr.Munavar. Further Accused has not
examined his co-tenant by name Mr.Munavar before the court.
Further on perusal of complaint pleadings, it is mentioned the
date of issuance of notice to the Accused and it is also
mentioned the said notice was served on the Accused. Ex.P.5 is
the postal acknowledgement, which shows that the notice was
duly served upon the Accused on 1.11.2021. Therefore, the
complaint is well maintainable. Considering the documents and
oral evidence placed by both parties, the Accused has not
rebutted the presumption. He took multiple defences which
are not proved by him. Further for misusing or stolen of the
18 C.C.No.51481/2022
cheque for that, the Accused has not taken any legal action
against the Complainant. For the stop payment the reason
stated by the Accused is that under impression that
Complainant will misuse his cheque, he made stop payment.
But, no documents were produced. Hence, it premised that
Ex.P1 cheque was issued by the Accused towards discharge of
legally enforceable debt or liability.
28. As discussed above, it has to be presumed that the
cheque in question was issued by the accused to discharge the
legally recoverable debt or liability. The accused can place
rebuttal evidence so as to show that the cheque was not issued
for consideration. As appreciated supra, accused has failed to
put acceptable and satisfactory evidence to probabilise the
defence. Therefore, there is no question of saying that the
cheque was not issued for liability.
29. So, far as sentence and compensation is concern, an
offence punishable under Section 138 of N.I. Act, is a civil
wrong and compensatory in nature, punitive is secondary,
considering, the above settled principle of law with facts and
circumstances of the case, which clearly reveals that, the
19 C.C.No.51481/2022
Accused is liable to pay rent amount to the Complainant
and towards payment of said rent amount, the cheque in
question was issued by the accused to the complainant.
Therefore, considering the nature of transaction, duration of
pendency, litigation expenses, I am opinion that, if sentence
of fine of Rs.1,21,000/- (Rupees One Lakh and Twenty-one
Thousand only) is imposed that would meet the
ends of justice, accordingly, the accused is hereby sentenced
to pay a fine of Rs.1,21,000/- (Rupees One Lakh and Twenty-
one Thousand only), out of that, the complainant is entitled
for sum of Rs.1,18,000/- (Rupees One Lakh and Eighteen
Thousand only) as a compensation as per Sec.357(1) of
Cr.P.C., remaining amount of Rs.3,000/-, is to be appropriated
to the State, in case of default the accused shall undergo
simple imprisonment for a period of 3 months. Accordingly, the
Point No.1 is answered in Affirmative.
30. POINT No.2: In view of discussion held in Point
No.1, I proceed to pass the following:
ORDER
Acting U/S 255(2) of Cr.P.C., the accused is
convicted for the offence punishable Under Section
138 of Negotiable Instrument Act.
20 C.C.No.51481/2022
Accused is sentenced to pay fine of
Rs.1,21,000/- (Rupees One Lakh and Twenty-one
Thousand only) in default to undergo simple
imprisonment for 3 months. Further, it is made
clear that out of fine amount, Rs.1,18,000/-
(Rupees One Lakh and Eighteen Thousand only)
is to be paid to the complainant as compensation
and Rs.3,000/- is ordered to be remitted to the
State.
Bail bond stands cancelled.
Supply the free copy of this judgement to the
Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me
and then pronounced in the open court on this 19th June 2025)
(PARVEEN A BANKAPUR)
XXXIV ACJM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mrs. Kavitha S Kumar
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque Ex.P.2 Bank endorsement Ex.P.3 Office copy of legal notice Ex.P.4 Postal receipt Ex.P.5 Postal acknowledgement
3. Witnesses examined on behalf of Accused:
D.W.1 Mr. R. Chittibabu
4. Documents marked on behalf of Accused:
Ex.D.1 Certified copy of plaint in O.S.No.6484/2021
(PARVEEN A BANKAPUR)
XXXIV ACJM, BENGALURU.