Bangalore District Court
Smt. Sudha vs Smt. Shaila Shree R on 18 January, 2025
CC.No.35536/2022
KABC030844932022
Presented on : 16-11-2022
Registered on : 16-11-2022
Decided on : 18-01-2025
Duration : 2 years, 2 months, 2 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Dated: This the 18th day of January 2025
Present: Smt.Tejaswini K.M., B.A.L.LL.M,
XVI Addl.C.J.M., Bengaluru City.
CC. No.35536/2022
Smt.Sudha
W/o Krishna.M
R/at No.36/1, 2nd Cross,
8th Main, 3rd Cross,
Jayanagar 2nd Block,
Bangalore - 560011.
....Complainant
(By Sri Vinod.N, Advocate)
Versus
2 C.C.35536/2022
Smt.Shaila Shree.R
W/o Shiva Kumar
Aged about 38 years
No.114, 3rd Cross,
Jayanagar 2nd Block,
Bangalore - 560011.
.... Accused
(By Sri M.Madhvachar., Advocate)
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Date of commencement
of evidence : 15.11.2022
Date of closing evidence : 19.07.2024
Opinion of the Judge : Accused found guilty
Offence complained : U/Sec.138 of Negotiable
Instrument Act.
Opinion of the Judge : Accused found guilty
JUDGMENT
This case is registered against the accused for the
offence punishable U/s 138 of Negotiable Instruments Act.
3 C.C.35536/2022
2. Factual matrix of the complainant’s case is as
under:
The complainant knows the accused from past 16
years as they are close family friends. The husband of the
accused is a BWSSB employee and also a milk vendor. The
complainant was residing in a rented house belonging to
the mother-in-law of the accused. Initially, the complainant
took the premises for rent, in the year 2011 she has taken
the said house for lease for Rs.7 lakhs. After completion of
the lease period, the complainant shifted her house in the
same locality and demanded for the reimbursement of the
lease amount. The accused and her husband requested 6
months time to return the said amount. As there was a
longstanding friendship with the accused the complainant
has agreed. In meanwhile the accused and her husband
have approached the complainant and requested for hand
loan to meet urgent needs to discharge their debts.
4 C.C.35536/2022Therefore, the complainant has given hand loan of Rs.13
lakhs by way of cash and by way of bank transfer. The
accused and her husband have agreed to return the lease
amount of Rs.7 lakhs and hand loan of Rs.13 lakhs. Again
the accused has sought further loan. Accordingly, the
complainant has paid Rs.23 lakhs by way of cash and bank
transfer.
3. It is further averred in the complaint that in the
year 2019 the accused and her husband have informed to
the complainant that they were unable to arrange the said
loan and instead of it they are ready to register 2 sites in
the name of complainant and her husband. Without there
being any option the complainant has agreed for the same.
However, the accused and her husband have failed to
register the site as agreed. In the year 2020, the accused
has issued cheque bearing No.623748 for a sum of Rs.43
lakhs and behind the cheque it has been written in
5 C.C.35536/2022
Kannada as “ನಾನು ಸುಧಾಯಿಂದ 43 ಲಕ್ಷ ಪಡೆದಿರುತ್ತೇನೆ” dated
06.05.2020. But it was subsequently noticed by the
complainant that in the said cheque the accused has filled
Rs.43,00,000/- as Rs.43,000/- in numbers, but in the words
it is mentioned as Rs.43,00,000/-, same has been informed
to the accused and sought fresh cheque.
4. That time, the accused and her husband have paid
Rs.7 lakhs by way of cash and for remaining balance of
Rs.36 lakhs the accused has issued 4 cheques bearing
Nos.623745, 623746, 623747 and 061827 for Rs.9 lakhs
each. 2 cheques were issued in the name of complainant
and 2 cheques were issued in favour of the husband of the
complainant. They were drawn on Canara Bank, Ashoka
Pillar Branch, Bengaluru. In meanwhile due to COVID-19
Pandemic there was lock down as such the accused and
her husband requested the complainant not to present the
cheques. In the year 2021, the accused asked the
6 C.C.35536/2022
complainant to present the first cheque as such she has
presented the cheque bearing No.061827 for encashment
with her banker on 19.10.2021, but the said cheque was
returned with an endorsement as ‘Funds Insufficient’ dated
19.10.2021.
5. When the complainant informed the same to the
accused, but the accused did not reply properly, but the
complainant received a notice on behalf of the accused in
which contains false allegation against the complainant.
Thereafter, the complainant has issued legal notice on
19.11.2021 to the accused and her husband calling upon
the accused to make payment of the cheque amount. The
notice is served on both the accused and the accused gave
an untenable reply on 06.12.2021. However, the accused
has not repaid the amount. Hence the complainant has
constrained to file the present complaint.
7 C.C.35536/2022
6. After receiving the complaint, this court has
meticulously gone through the documents and affidavit
filed along with it and then took cognizance of the offence
punishable U/sec.138 of Negotiable Instruments Act and
ordered for registration of the compliant as P.C.R.
7. Sworn statement of the complainant was recorded
and marked 15 documents as Ex.P-1 to P-9. As there were
sufficient materials to constitute the offence, this court has
proceeded to pass an order for issuing process against the
accused.
8. In pursuance of summons, accused has appeared
through her counsel and applied for bail. She was enlarged
on bail. Then the substance of accusation was read over to
the accused in the language known to her, for which she
pleaded not guilty.
8 C.C.35536/2022
9. As per the direction of Hon’ble supreme court in
“Indian Bank Association V/s Union of India and others
reported in (2014)(5) SCC 590, this court treated the sworn
statement of the complainant as complainant evidence and
posted matter for cross-examination of PW.1. The counsel
for the accused has fully cross-examined PW.1. Thereafter
the complainant closed her side of evidence.
10. The statement of accused as contemplated under
the provisions of Section 313 of Cr.P.C has been recorded
vide dated 11.12.2023 and the incriminating evidence as
such forthcoming against the accused in the evidence of
PW.1 and the documents has been read over and
explained to the accused in the language known to her.
She denied all incriminating evidence.
11. In order to substantiate her defense, the accused
got himself examined as DW.1. DW.1 was subjected for
9 C.C.35536/2022
cross-examination by the learned counsel for the
complainant.
12. I have heard the arguments of the learned
counsel for both the side. The counsel for complainant has
filed written arguments and also memo with citations. I
have gone through those case laws and perused the oral
and the documentary evidence placed on record.
13. Points that arise for my consideration are as
under:
1. Whether the complainant proves that the
accused towards discharge of her liabilityissued a cheque bearing No.061827 dated
20.08.2021 for Rs.9,00,000/-, drawn on Canara
Bank, Ashoka Pillar Branch, Bangalore in
favour of complainant, on presentation of
the same for encashment, it was dishonored
for “Funds Insufficient” in the account
maintained by the accused, then in-spite of
issuing demand notice to the Accused and in
10 C.C.35536/2022complying with statutory requirement under
Negotiable Instrument Act, Accused did not
repay the cheque amount, thereby she has
committed an offence punishable U/s 138 of
2. What Order?
14. My Answer to above points are as under:-
Point No.I :- In the Affirmative,
Point No.II :- As per the final order for
the following....
REASONS
15. POINT NO.I:- In nutshell it is the case of the
complainant that she has taken house for lease for Rs.7
lakhs from the accused and also the accused and her
husband borrowed loan of Rs.13 lakhs and 23 lakhs from
the complainant, by way of cash and account transfer. The
accused has repaid Rs 7 lakhs of lease amount and for
remaining amount, she has issued 4 cheques for 9 lakhs
each. One of those cheques ie ExP1 is presented to bank ,
11 C.C.35536/2022
but it got dishonorued for the reason ‘Funds insufficient’.
Despite of giving notice, the accused has not repaid the
amount. Hence the present complaint.
16. To substantiate her case the complainant stepped
into witness box and got examined as PW.1. She has got
marked Ex.P1 to P9. She has produced the cheque issued
by accused and the same is marked as Ex.P-1, the
signature of the accused is marked as Ex.P-1(a), copy of
bank memo is marked as Ex.P-2, copy of demand notices
dated: 19.11.2021 is marked as Ex.P-3, copies of the Postal
Receipts are marked as Ex.P-4 & 5, copies of postal
acknowledgments are marked as Ex.P6 & 7, copy of reply
notice is marked as Ex.P8 and complaint is marked as
Ex.P9.
17. The counsel for complainant has relied upon a
decision reported in Crl.A.No.508/2015 in between
12 C.C.35536/2022
Smt.Parvathamma.M V/s Sm.tchandrakala.V,
Crl.R.P.No.841/2020 in between Rangaswamy V/s Ravi
Kumar, Crl.R.P.No.201/2013 in between Sri.S.Venugopal
V/s Sri.S.H.Siddalingaswamy, Crl.A.No.96/2011 in
between Sri.H.P.Shivananda V/s Sri.Dinesh D.Udyavar,
Crl.A.No.128/2017 in between Ramesh Goyal V/s State
and another and (2019) 2 SCR 24 in between Bir Singh
V/s Mukesh Kumar. I have gone through those case laws.
18. Defense of the accused is as follows:
The complainant was tenant under her and she was
residing in her house from the year 2005 and later
complainant has taken the same house for lease for an
amount of Rs.7,50,000/-. In the year 2016 September, the
complainant has vacated the house, that time she has
repaid Rs.3,50,000/- out of the lease amount and for
repayment of remaining Rs.4 lakhs, she sought time of 2 to
3 months and the complainant has agreed for the same.
13 C.C.35536/2022
She has given a cheque for Rs.4,30,000/-, but it was
wrongly mentioned in the words as Rs.43,00,000/-. After
noticing the same ,she had given 4 separate cheques for
Rs.4,00,000/- to the complainant. The complainant has
presented one of the cheques to the bank, that time the
bank imposed cheque bounce charges of Rs.500/-. That
time accused got to know that her cheque has been
presented to the bank by the complainant. Thereafter, she
approached her counsel and given a legal notice to the
complainant seeking back her remaining 3 cheques. She
has repaid the entire lease amount, but the complainant
has not returned 3 cheques. She has not taken any loan
from the complainant as alleged and except the lease
transaction with the complainant there is no other
transaction with the complainant. Hence on these
grounds, accused prays to acquit her from this case.
14 C.C.35536/2022
19. Negotiable Instruments Act provides for some
presumption in favour of the complainant i.e., Section 118
reads as here: – “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”.
20. Further Sec 139 of the Negotiable Instruments Act
provides for presumption in favour of a holder. It reads as
here: – “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 other liability.”
21. Combined reading of above said sections raises a
presumption in favour 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. However, it is settled principle of
15 C.C.35536/2022
law that the presumption available u/s 139 NI Act can be
rebutted by the accused by raising a probable defense.
22. As per order dated 11.12.2023, in
CC.No.35536/2022, common evidence has been
recorded in both the cases. The contents of the complaint
in both cases are one and the same, except the cheque
numbers which were issued for Rs.9,00,000/- each.
23. The complainant has reiterated the contents of
the compliant in her evidence affidavit. The counsel for the
accused has cross-examined the complainant at length.
24. On the other hand, the accused herself stepped
into witness box and got examined as DW.1. In her chief-
examination she has deposed that The complainant was
residing in her house for rent from the year 2005 and later
they have taken the same house for lease for an amount of
Rs.7,50,000/-. In the year 2016 September, the complainant
16 C.C.35536/2022
has vacated the house, that time she has repaid
Rs.3,50,000/- out of the lease amount and for repayment of
remaining Rs.4 lakhs, she sought time of 2 to 3 months and
the complainant has agreed for the same. She has given a
cheque for Rs.4,30,000/-, but it was wrongly mentioned in
the words as Rs.43,00,000/-. After noticing the same, she
had given 4 separate cheques for Rs.4,00,000/- to the
complainant. The complainant has presented one of the
cheques to the bank, the bank has imposed cheque
bounce charges of Rs.500/- that time she got to know that
her cheque has been presented to the bank by the
complainant. Thereafter, she approached her counsel and
given a legal notice to the complainant seeking back her
remaining 3 cheques. She has repaid the entire lease
amount, but the complainant has not returned 3 cheques.
She has not taken loan from the complainant as alleged
and except the lease transaction with the complainant,
17 C.C.35536/2022
there is no other transaction with the complainant. The
counsel for the complainant has cross-examined the
accused.
25. I have meticulously gone through the complaint,
oral and documentary evidence placed on record. On
perusal of the entire evidence it appears that there is no
dispute that the complainant was tenant of the accused for
some time and thereafter, same house was taken for lease.
As per the complaint, the lease amount was Rs.7 lakhs, but
in the chief-examination, the accused has deposed that
lease amount was Rs.7,50,000/-. The complainant is
alleging that initially, the accused has taken time to refund
the lease amount of Rs.7 lakhs. Later the accused also
taken additional hand loans of Rs.13 lakhs and Rs.23 lakhs
by way of cash and bank transfer from her and her
husband. Totally the accused was due to pay Rs.43 lakhs.
18 C.C.35536/2022
26. In para No.8 of the complaint of
CC.No.35536/2022 the complainant agreed that she has
received Rs.7 lakhs by way of cash from the accused and
what remains is Rs.36 lakhs due. Admittedly, husband of
the complainant has also filed 2 other cases against the
same accused. As per the complaint 4 cheques were issued
for Rs.9,00,000/- each, ie 2 cheques in the name of
complainant and 2 cheques in the name of the husband of
the complainant. As such the 4 cases are filed pertaining to
the 4 cheques for outstanding balance of Rs.36 lakhs. The
two cases which were filed by the complainant are taken
up together for adjudication now and other two cases are
filed in some other Court which are still pending for
consideration.
27. The complainant herself admits that she has
issued 4 cheques to the complainant and she has not
disputed her signature at Ex.P1 cheque, both in
19 C.C.35536/2022
CC.No.15921/2022 and CC No 35535/2022, as such the
initial presumption has to be drawn in favour of the
complainant in both cases that the cheques in question
have been issued in discharge of legally enforceable debt.
28. It is an admitted fact that the complainant has
given first legal notice on 13.10.2021 as per Ex.P3, wherein
the cheque number is mentioned as 623745 and it has
been bounced. Subsequently, the complainant has given
another corrigendum notice as per Ex.P10 stating that the
cheque number is wrongly mentioned as 623748 instead of
mentioning it as 061827 of Apex Co-op bank ltd. Both these
notices are served on the accused. As per the complainant
the accused have given totally 4 cheques ie. cheque
bearing Nos.623745, 623746, 623747 and 061827. Earlier
accused has issue cheque bearing No.62748. Admittedly,
the complainant has produced the first cheque which was
issued for Rs.43 lakhs. During cross-examination the said
20 C.C.35536/2022
cheque has been confronted to the accused in CC 15921/22
and she admits her signature at Ex.P14 cheque, as such it
is marked as Ex.P14(a). On perusal of the Ex.P14 it appears
that in words the amount is mentioned as Rs.43,00,000/-,
whereas in numbers, it is mentioned as Rs.4,30,000/-. The
complainant states that when she noticed that, instead of
mentioning it as Rs.43,00,000/-, one zero has been left and
it is wrongly mentioned as Rs.4,30,000/-, as such when the
complainant informed the same to the accused, the
accused issued another 4 cheques to her, which are for
Rs.9,00,000/- each.
29. In the cross-examination of PW.1, she has
deposed that including the lease amount the accused was
due to pay Rs.43,00,000/- to her. In the last line of cross-
examination, it is suggested by the counsel for the accused
to PW.1 that though accused was due to pay Rs.4,30,000/-,
she has written the cheque for Rs.43,00,000/- by mistake
21 C.C.35536/2022
and same is denied by PW.1. Even in chief-examination,
DW.1 has deposed that due to oversight, she has
mentioned amount as Rs.43,00,000/- in cheque at Ex.P14,
instead of mentioning it as Rs.4,30,000/-.
30. It is material to note here that the complainant
herself admits that the accused has repaid Rs.7 lakhs by
way of cash and for the remaining amount the accused has
issued 4 cheques. As per the accused she has given back
Rs.3,50,000/- out of total lease amount of Rs.7 lakhs and
sought further time to pay the remaining Rs.4 lakhs.
Assuming that cheque intended to be issued for
Rs.4,30,000/- was issued for Rs.43,00,000/- by mistake, as
per the accused, it is important to note here that she owed
to pay Rs.4 lakhs only to the complainant, as she is denying
the remaining loan transaction with the complainant. If at
all the lease amount was Rs.7,50,000/- and Rs.3,50,000/-
has been repaid, what remains is Rs.4 lakhs. But why the
22 C.C.35536/2022
cheque at Ex.P14 in CC 15921/ 22 was issued for
Rs.4,30,000/- is not at all explained by the accused in her
evidence. She ought to have give the cheque for Rs.4 lakhs
as per her own version. Interestingly, the accused has
deposed that when the complainant informed her the
amount mentioned in the numbers is wrongly mentioned
as Rs.4,30,000/-, the accused has issued 4 separate
cheques for Rs.4,00,000/- each to the complainant. If at all
she was due to pay Rs.4,00,000/- then she could have
issued single cheque for Rs.4,00,000/-. What made the
accused to give 4 separate blank cheques is not
forthcoming. At least she could have written Rs 1 lakhs in
all four cheques before handing over them to the
complianant. What was the necessity for issuance of blank
signed cheques is not forthcoming.
31. Further accused herself deposed that she
intended to issue the cheque at Ex.P14 for Rs.4,30,000/-.
23 C.C.35536/2022
When such being the case, she ought to have issued 4
separate cheques for totall amount of Rs.4,30,000/-. But it
is not the case here, the accused is contending that she has
issued 4 separate cheques for Rs.4,00,000/- ie 1 lakhs each.
For remaining Rs.30,000/-, no explanation is forthcoming
from the mouth of accused in her chief-examination as well
as cross-examination. Thus, the very story that she has
issued cheque for Rs.4,30,000/-, but it is wrongly typed as
Rs.43,00,000/- appears to be vague.
32. Moreover, Sec.18 of NI Act, “if the amount
undertaken or ordered to be paid is stated differently in
figures and in words, the amount stated in words shall be
the amount undertaken or ordered to be paid”.
Accordingly, this Court has to consider that the cheque at
Ex.P14 has been issued for Rs.43,00,000/- and not for
Rs.4,30,000/-.
24 C.C.35536/2022
33. Further DW.1 has clearly admitted in her cross
examination that on the back side of Ex.P14 cheque, she
has signed and there is an endorsement stating that “ನಾನು
ಸುಧಾಯಿಂದ 43 ಲಕ್ಷ ಪಡೆದಿರುತ್ತೇನೆ” . This endorsement which is
signed by the accused further proves that she owes
Rs.43,00,000/- to the complainant and not Rs 4,30,000/- .
Though, the counsel for the accused has argued that the
complainant has not produced any iota of evidence to
prove her financial capacity, in the entire cross-
examination of PW1, there is no single suggestion made
to the complainant that she is incapable of giving
Rs.43,00,000/- to the accused by disputing her financial
capacity. Therefore, since the accused has not disputed the
financial capacity of the complainant during evidence, she
is precluded from taking such defense during arguments.
34. As per Sec.118 of NI Act there is initial
presumption regarding passing of consideration.
25 C.C.35536/2022
Moreover, by producing Ex.p14 cheque, the complainant
has further proved that she along with her husband has
given Rs.43,00,000/-to the accused. Therefore, to rebut the
said evidence the accused has not come up with any
cogent evidence and not elicited anything contrary from
the mouth of PW.1 to disprove the case of the complainant.
Thus, this Court is of the view that the complainant has
proved that she has given Rs.43,00,000/- to the accused.
35. In the evidence the accused has deposed that
except the lease transaction between herself and the
complainant, there is no other transaction between herself
and the complainant. But soon after, the complainant
sends notice to her, she has given a separate legal notice
to the complainant on 01.10.2021 as per Ex.P15 marked in
CC 15921/22. In para No.3 of the said notice, she has
mentioned that accused had ‘money transaction with the
complainant till 2019. During that period, she had issued 4
26 C.C.35536/2022
cheques and other cheques for collateral purpose’. Further
In Exp15 marked in CC 15921/22 , it is mentioned that the
complainant has agreed that the due amount was
Rs.2,70,000/- and same is written in a chit.
36. It is material to note here that the accused herself
has issued this notice well before filing the instant
complaint. She has clearly admitted that she had a
monetary transaction with the complainant till 2019 and
issued 4 cheques for collateral purpose. When such being
the case she cannot retract from her own admission and
contend in the present case, except lease transaction, she
had no other transaction with the complainant. She has
not mentioned what was the collateral purpose for which
she has issued 4 cheques which have reference in Ex.P15 ie
notice. The complainant stated that after taking huge
amount of Rs.43,00,000/- from herself and her husband,
accused could not repay it, as such accused stated that she
27 C.C.35536/2022
will sell her 2 sites to the complainant and her husband.
However the accused has not deposed anything about this
site issue. Under such circumstance this court suspects the
reference about ‘collateral purpose’ in para No.3 of notice
at Ex.P15 is pertaining to site transaction. But Exp15 ie
notice corroborates the case of the complainant that there
was monetary transaction with the accused.
37. Further the counsel for the accused has argued
that husband of the accused is not made as party to this
case. Since the cheque has been issued by the accused
alone and it belongs to her account, question of making
the husband of the accused as party to this complaint does
not arise. Sec 138 Ni Act applies against the drawer of the
cheque alone. As such arguments of the counsel for the
accused that complaint is bad for nonjoinder of husband of
the accused cannot be accepted.
28 C.C.35536/2022
38. Though contention is taken the handwriting of
the details written in the cheque and the signature are
different in view of Sec.20 of NI Act it is not necessary that
the cheque has to be filled by accused. The counsel for the
accused has suggested that except the signature at Ex.P1
the remaining details are not written by the accused and
same is denied by PW.1. It is pertinent to note here that
Section 20 of N.I. Act confers right to the holder of the
cheque to fill details in cheque. No longer law requires that
whole body of the cheque should be filled by the drawer
himself. If the signature on the cheque is admitted, the
same is sufficient. Recently in ((2019) 4 SCC 197) ie Bir
Singh V Mukesh Kumar, Apex court has held that
“A meaningful reading of the provisions of the
Negotiable Instruments Act including, in particular,
Sections 20, 87 and 139, makes it amply clear that a
person who signs a cheque and makes it over to the
payee remains liable unless he adduces evidence to
29 C.C.35536/2022
rebut the presumption that the cheque had been
issued for payment of a debt or in discharge of a
liability. It is immaterial that the cheque may have
been filled in by any person other than the drawer, if
the cheque is duly signed by the drawer. If the cheque
is otherwise valid, the penal provisions of Section 138
would be attracted”.
39. Principle laid down in above case law aptly
applicable to present case. Once the execution of the
cheque is admitted, it shall be taken that the cheque was
issued by the accused in favour of the complainant
towards the discharge of the liability. Therefore though
there is difference of ink, or handwriting in cheque, it
cannot be ground to exonerate the liability of the accused,
unless he proves contrary.
40. The accused is contending that she has repaid
Rs.7,50,000/- to the complainant which is the lease
amount. But as per the complainant lease amount was Rs 7
30 C.C.35536/2022
lakhs only and admitted that she has received Rs.7,00,000/-
from the accused. The accused is not sure about what is
the lease amount.
41. Further complainant asserts that for the
remaining loan amount, the accused has issued 4 cheques
for 9 lakhs each. As narrated above, in the entire cross-
examination, there is no single question asked about the
financial capacity of the complainant to pay the such
amount. However, the complainant has deposed that she
could managed to give the money by taking loans from
different source. No doubt, she has not produced any
documents to show that she has borrowed loans either in
Canara Bank or she has taken gold loan to adjust money to
the accused. Since initial presumption U/Sec.138 of NI Act
has drawn in favour of the complainant, the accused has to
rebut the said presumption.
31 C.C.35536/2022
42. In the case of Rohitbhai Jivanlal Patel v. State of
Gujarat reported in 2019 (5) SCALE 138, it is held that
“even after purportedly drawing the presumption
under Section 139 of the N.I. Act, the trial court proceeded
to question the want of evidence on the part of the
complainant as regards the source of funds for advancing
loan to the accused and want of examination of relevant
witnesses who allegedly extended him money for
advancing it to the accused. The Hon‟ble Supreme Court
observed that this approach of the trial court had been at
variance with the principles of presumption in law. After
such presumption, the onus shifted to the accused and
unless the accused had discharged the onus by bringing
on record such facts and circumstances as to show the
preponderance of probabilities tilting in his favour, any
doubt on the complainant’s case could not have been
raised for want of evidence regarding the source of funds
for advancing loan to the accused.”
43. In view of aforementioned principle, it is not
necessary to the complainant to produce the documents in
32 C.C.35536/2022
support of payment of money unless the accused has
rebuts the initial presumption. Moreover in Ex.P14 cheque
on the back side, the accused herself has admitted that she
has received Rs.43,00,000/- from the complainant. In
Ex.P15ie notice accused admits monetary transaction with
complainant and also stated about new story about the
some transaction and also stated about having chit written
by the complainant to show that outstanding balance was
Rs.2,70,000/-. However, the accused has not produced the
so called chit before the Court. Even if the story of the
accused is believed to be true, out of Rs.7,00,000/- she had
repaid Rs.3,50,000/- and the balance was Rs.4,00,000/-.
Then how come she could settle the matter for
Rs.2,70,000/- is not forthcoming. Further if the matter was
settled for Rs.2,70,000/-, what made her to give another 4
cheques to the complainant is also not explained by the
accused. No specific dates are mentioned about when
33 C.C.35536/2022
those talks were happened and when she has paid
Rs.2,70,000/- to the complainant as per ExP15 marked in
CC 15921/22 . Thus defence is totally contradictory to each
other at every steps.
44. The cheque has been dishonoured for the reason
‘Funds Insufficient’. If at all, the accused has repaid the
entire amount, then she could have given stop payment
instructions to the banker for not to entertain 4 cheques.
No such efforts forthcoming from the accused. In para
No.3 of Ex.P15 marked in CC 15921/22 the accused has
contended that upto 2019 she had money transaction with
the complainant, during that time she had given 4
cheques. In para No.5 of the same notice, she has
mentioned that the cheques were issued in the year 2016.
Therefore, stands taken by the accused in her own legal
notice at Ex.P15 marked in CC 15921/22 creates suspicion
about the defense.
34 C.C.35536/2022
45. In her chief examination, the accused has
deposed in September 2016 the complainant has vacated
her house. If at all, as per the contention taken in Ex.P15
notice marked in CC 15921/22 , the cheques were given in
the year 2016, what made the accused to leave her 4
signed cheques with the complainant till 2022 i.e. till filing
of this case by the complainant is not forthcoming. No
prudent person would leave the signed cheques even after
repayment of entire amount. Therefore, it corroborates the
evidence of the complainant that for repayment of Rs.36
lakhs the accused has given 4 cheques.
46. The counsel for the accused has argued that as
per complaint outstanding balance is 36 lakhs , but in
these cases, 2 cheques were filed for Rs.9 lakhs each, not
for Rs.36 lakhs. Therefore, the complaint is not
maintainable. It is not material to note here that the
complainant has clearly stated in the complaint itself that
35 C.C.35536/2022
out of total Rs.43,00,000/- balance, the accused has repaid
Rs.7,00,000/- and for remaining Rs.36,00,000/-, she has
issued 4 cheques ie. 2 cheques in her name and 2 cheques
in the name of her husband. Admittedly, 2 cases filed by
the husband of the complainant against the same accused
are pending before the other Court. Therefore, contention
of the accused counsel that the cheques are not tallying
with the outstanding balance cannot be accepted.
47. Further it is further argued that the complainant
has admitted in her cross-examination that the cheques
were taken in the year 2020, from the accused, but
presented in the year 2021. Therefore, the complaint is not
maintainable.
48. The Hon’ble Apex Court in 2016 (10) SCC 458 in
between Sampelly Sathaynarayana Rao Vs. Indian
Renewable Energy Development Agency Ltd., held that,
36 C.C.35536/2022
“Post dated cheque described as security towards
repayment of installment of already disbursement loan
amount, the proceeding u/s 138 of N.I. Act is
maintainable in case of dishonor of such cheque.
Further observed that, once loan amount was disbursed
and as per the agreement installments had fallen due on
date of issuance of cheque, dishonor of such cheque
would fall u/s 138 of N.I. Act and such issuance of
cheque undoubtedly represents outstanding liability”.
49. The Hon’ble Supreme Court has clarified the position
of law Sunil Todi and others vs State of Gujarat and others,
reported in AIR 2022 SC 147, ” that where in the case of a loan
transaction, the borrower agrees to repay the amount in a
specified time frame and issues a cheque as a security to secure
the repayment and the loan is not repaid, the cheque which is
issued as security would mature for presentation”.
50. Therefore principle laid down in above case aptly
applicable to case on hand. The cheque in question has
been issued on 15.07.2021 as per the date. It is well settled
37 C.C.35536/2022
law that the postdated cheque valid provided existence of
legally enforceable debt or liability. Therefore, as the
complainant proved that the accused has not repaid the
entire Rs.36,00,000/-, the cheque presented on 15.07.2021
holds good in the eye of law. Further it is noticed that the
accused has deposed in her evidence that cheques were
given in the year 2016 or 2017 ie when the earlier cheque
at Ex.P14 has been wrongly written for Rs.4,30,000/- in
numbers. If at all she repaid the amount, nothing
prevented her from seek back her signed cheques from
the complainant. No such efforts forthcoming from the
accused side. Therefore, having regard to the entire
evidence on record, this Court is of the view that the
accused has failed to rebut the initial presumption and
established her defense. There is a lack of evidence to
believe the defense.
38 C.C.35536/2022
51. There is no proof that she has repaid the entire
amount to the complainant. Moreover, her own legal
notice at Ex.P15 marked in CC 15921/22 speaks that she
had monetary transaction with the complainant till 2019.
She had not taken any legal coercive steps against the
complainant to seek back her cheques at relevant point of
time, if she had repaid the amount. For these reasons this
Court is of the view that the complainant has proved her
case beyond reasonable doubt. Accordingly court proceed
to answer POINT NO.I IN THE AFFIRMATIVE.
52. POINT NO.II:- In view of the reasons assigned in
above point, it is ample clear that accused has committed
the offence punishable u/s 138 of the Act. A bare reading
of sec.138 of the NI Act indicates that the purport of
sec.138 is to prevent and punish the dishonest drawers of
cheques who evade their liability. The Hon’ble Apex Court
in its recent decision in M/s. Meters & instrument Pvt
39 C.C.35536/2022
Ltd. Vs. Kanchana Mehta reported in (2018)1 SCC-560
held at para 18(ii)
that”(ii) The object of the 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 later stage subject to appropriate
compensation as may be found.” In view of the reasons
assigned in above point, it is ample clear that accused has
committed the offence punishable u/s 138 of the Act.
53. Therefore, having regard to the amount
advanced, time from which it is lying with the accused, and
keeping in mind the primary object of the provision, this
court is of the opinion that, rather than imposing punitive
sentence, if sentence of fine is imposed with a direction to
compensate the complainant for its monitory loss, by
awarding compensation U/Sec.357 of Cr.P.C, would meet
40 C.C.35536/2022
the ends of justice. Accordingly, this court proceeds to pass
following …..
ORDER
The accused is found guilty for the offence
punishable U/s.138 of Negotiable Instruments
Act.
Hence, acting U/sec.255(2) of Cr.P.C, the
accused is convicted and sentenced to pay a fine
of Rs.11,10,000/- (Rupees Eleven Lakhs Ten
Thousand Only), in default of fine amount, she
shall undergo simple imprisonment for Six
Months for the offence punishable under section
138 of N.I.Act.
Out of the fine amount collected from the
accused, an amount of Rs.11,00,000/- (Rupees
Eleven Lakhs only) shall be paid to the
complainant as compensation U/s.357 of Cr.P.C.
and the remaining fine of Rs.10,000/- shall be
adjusted towards the cost of state expenses.
41 C.C.35536/2022
The bail bonds of the accused shall be in
force till the appeal period is over as
contemplated under the provisions of Sec.437(A)
of Cr.P.C.
Office to supply the copy of the Judgment
to the accused forthwith at free of cost.
(Dictated to the Stenographer, typed by her, corrected by me and
then judgment pronounced in the open court on this the 18 th day of
January 2025).
Digitally
signed by
Tejaswini Tejaswini
Date:
KM
KM 2025.01.22
10:44:17
+0530
(Smt.Tejaswini K.M),
XVI ACJM, BengaluruANNEXURE
I. List of witnesses on behalf of complainant:
P.W.1: Smt.Sudha
II. List of documents on behalf of complainant:
Ex.P-1 : Original Cheque.
Ex.P-1(a) : Signature of the accused
Ex.P-2 : Bank memo.
42 C.C.35536/2022
Ex.P-3 : Legal notices.
Ex.P-4 & 5 : Postal receipts.
Ex.P-6 & 7 : Postal Acknowledgments.
Ex.P-8 : Reply notice.
Ex.P-9 : Complaint.
III. List of witnesses for the accused:
D.W.1: Smt.Shaila Shree.R
IV. List of documents for accused:
Nil
Digitally
signed by
Tejaswini K M
Tejaswini Date:
KM 2025.01.22
10:44:26
+0530
(Smt.Tejaswini K.M ),
XVI ACJM, Bengaluru
43 C.C.35536/2022
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