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Bangalore District Court
R.Nagesh vs Biswanath Roy Chowdhury on 15 July, 2025
KABC030886562017
IN THE COURT OF THE XIX ADDITIONAL CHIEF
JUDICIAL MAGISTRATE AT BENGALURU CITY.
Dated this the 15th day of July, 2025.
PRESENT:SMT.RASHMI H.B., B.A.(LAW)LL.B.,LLM.,
XIX ADDL.C.J.M., BENGALURU CITY.
C.C.No.20257 of 2017
Complainant :- R.Nagesh,
S/o Late Ramakrishnappa,
R/at. Flat No.1848,
14th CRS HSR, L/O BG,
20th MN, 1st Sector,
Bengaluru,
Karnataka - 560068.
(Rep. By Sri.M.K.V., Advocate)
-V/s-
Accused :- Biswanath Roy Chowdhury,
Father's name not known,
R/at.No.8/33, Fern Road,
Near Market, Kolkata-700029.
(Rep. By Sri.S.N., Advocate)
Date of complaint :- 10-09-2012
Date of Commencement :- 04-03-2023
of evidence
Offence complained :- Section 138 of N.I.Act
2 C.C.No.20257/2017
Opinion of the Judge Accused is found guilty.
(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:
According to complainant, the accused has
borrowed a hand loan of Rs 90,00,000/- from
complainant for improvement of his real estate
business by executing on demand pronote and
consideration receipt. In the month of June-2012,
when complainant demanded for repayment of the said
amount, the accused has issued a cheque bearing
3 C.C.No.20257/2017No.386510 dated 30-06-2012 for Rs.90,00,000/-
drawn on Indian Overseas Bank, Ballygunge Branch,
195/4, Rash Behari Avenue, Kolkata-700019, in favour
of the complainant. The complainant presented said
cheque for encashment through his banker Axis Bank
Limited, Chennai Service Branch, Chennai. The cheque
is returned unpaid with bank endorsement dated 23-
07-2012 showing cheque is dishonoured for the reason
“Funds Insufficient”. At the request of accused,
second time on 08-08-2012, the complainant
presented said cheque for encashment through his
banker Axis Bank Limited, Chennai Service Branch,
Chennai. The said cheque is further returned unpaid
with bank endorsement dated 10-08-2012 showing
cheque is dishonoured for the reason “Funds
Insufficient”. Thereafter, the complainant has got
issued legal notice to the accused through his counsel
on 17-08-2012 through registered post and same was
duly served to the accused on 24-08-2012. But, the
4 C.C.No.20257/2017accused has failed to make payment of cheque
amount. Hence, the complainant has filed this
complaint on 10-09-2012 before Hon’ble Addl Chief
Judicial Magistrate, Alipore 24 Paraganas (South),
Calcatta Court and it was made over to Judicial
Magistrate 8th Court at Alipore and case is numbered
as AC.No.2214/2012.
03. After presentation of complaint, the Court
took cognizance of offence and recorded the sworn
statement of complainant. Thereafter, a criminal
case is registered against accused in AC.No.
2214/2012 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. Thereafter
this complaint is transferred to this court and on 02-
08-2017 this case is registered and accused is
secured and he is enlarged on bail. Substance of
5 C.C.No.20257/2017
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
himself as PW1 and got marked 08 documents as
Ex.P1 to Ex.P8. 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 submitted he would
lead defence evidence. But accused has failed to
lead defence evidence.
05. Heard the arguments of learned counsel for
complainant and accused. Perused entire case
record carefully.
06. On the basis of contentions raised in the
complaint the points that arises for determination of
this Court are as follows:
6 C.C.No.20257/2017
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.
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.
7 C.C.No.20257/2017
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
to insufficient funds or it exceeds the
amount arranged.
8 C.C.No.20257/2017
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
Sri.R.Nagesh has examined himself as PW1. The PW1
has filed an affidavit in lieu of examination-in-chief
reiterating entire complaint averments. In support of
his oral evidence, he produced Ex.P1 to 8 documents.
The complainant got marked original cheque as Ex.P1,
bank memo as Ex.P2, demand notice as Ex.P3, postal
receipt as Ex.P4, postal acknowledgment as Ex.P5, nine
pages of whatsapp chats as Ex.P6, three pages of
statement of bank account as Ex.P7, relevant entry as
Ex.P7(a) and certificate under section 65-B of Indian
Evidence Act as Ex.P8.
12. During cross-examination of PW1, the PW1
has stated he has transferred Rs.70,00,000/- through
bank transfer to accused and further he has paid Rs.
9 C.C.No.20257/2017
80,00,000/- through cash on 10 different dates.
Further, he has deposed he dealt with accused and one
Jayakannan Sukumaran and paid Rs 1,50,00,000/- to
the accused and Rs 3,50,00,000/- to the Jayakannan
Sukumaran. At that time, there was an agreement was
executed, which was taken back by accused has issued
the cheque. He admitted the WhatsApp charts related
to the Year-2023 and it does not show the accused as
liable to pay Rs 1,50,00,000/-. The defence has
contended that accused and Jayakannan Sukumaran
had transaction and Jayakannan has owed amount to
the complainant and complainant took all his
documents including the cheque of accused from the
custody of Jayakannan Sukumaran and misused the
same. The said suggestion answered as not true.
Further, defence has disputed the writings in cheque is
not belong to accused. PW1 denied said suggestion as
not true.
10 C.C.No.20257/2017
13. The evidence of PW1 and Ex.P.1 to Ex.P8
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 ‘Insufficient Fund’. 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 cheque. Therefore, PW1 has
discharged his 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 cheque and Ex.P1(a) signature belongs to the
accused or not. The accused did not dispute the said
facts. As per section 146 of N.I. Act, burden casted on
accused to prove bank endorsement is not correct. As
the cheque is dishonour for the reason “Funds
Insufficient”, it is deemed that cheque and its signature
11 C.C.No.20257/2017
is belong to accused. The accused did not lead evidence
and he did not explain how Ex P1 cheque came to the
custody of PW1 other than the version stated by PW1.
These facts clearly shows that the cheque 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
12 C.C.No.20257/2017
is open for the accused to rely on evidence 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 defence of accused is not
admitted by the PW1 and no admission elicited from
13 C.C.No.20257/2017
mouth of PW1 regarding the case of accused. Further,
Whatsapp Chats and recent payments as per entry in
Ex P7(a) shows that the accused has acknowledged his
debt and version of defence that accused’s cheque
which was in custody of Jayakumar Sukumaran is
misused by complainant is found improbable to believe.
Therefore, said 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.
18. 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
14 C.C.No.20257/2017
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:
“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…”
15 C.C.No.20257/2017
19. 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
cheque has received the cheque 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 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. 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 8 documents, the complainant has
16 C.C.No.20257/2017
proved the case and complainant is entitled for
recovery of the amount as compensation.
20. On considering the facts and circumstances
of the case, the complainant has able to establish that
Ex.P.1 cheque is issued to discharge liability of
repayment of Rs.90,00,000/- to complainant by the
accused. Ex.P1 is dishonoured for the reason
‘Insufficient of Funds’ in the account of accused and
complainant is entitled for the cheque amount as
compensation. Further, complainant is entitled for
compensation of Rs.10,000/- as cost of the
proceedings. 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.
17 C.C.No.20257/2017
21. 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 90,20,000/- and in case of default he
shall undergo simple imprisonment for 6
months.
Out of the fine amount Rs
90,10,000/- shall be paid to the
complainant as compensation as per
section 357(1)(b) of Cr.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.
18 C.C.No.20257/2017
Supply free copy of Judgment to the
accused.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected by me
th
15 day of July, 2025
and signed, pronounced in the Open Court this )(SMT.RASHMI H.B.,)
XIX ADDL.C.J.M., Bengaluru City.
::ANNEXURE::
List of Witnesses examined for Complainant:-
PW1 :- R.Nagesh.
List of Documents marked for Complainant:-
Ex.P1 :- Original Cheque, Ex.P1(a) :- Signature of Accused, Ex.P2 :- Bank Endorsement, Ex.P3 :- Office copy of the Legal Notice, Ex.P4 :- Postal Receipt, Ex.P5 :- Postal Acknowledgment, Ex.P6 :- 9 Pages of WhasApp Messages, Ex.P7 :- 3 Pages of Statement of Account, Ex.P7(a) :- Relevant Entry, Ex.P8 :- Certificate u/s 65 of Indian Evidence Act. List of Witnesses examined for Accused:- - NIL - List of Documents marked for Accused:- - NIL - (SMT.RASHMI H.B.,) XIX ADDL.C.J.M., Bengaluru City. 19 C.C.No.20257/2017
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