Bangalore District Court
Smt. Sudha vs Smt. Shaila Shree .R on 18 January, 2025
CC.No.15921/2022
KABC030417722022
Presented on : 26-05-2022
Registered on : 26-05-2022
Decided on : 18-01-2025
Duration : 2 years, 7 months, 23 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.15921/2022
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.15921/2022
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 : 25.05.2022
Date of closing evidence : 01.08.2024
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.15921/2022
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 same 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
4 C.C.15921/2022complainant and requested for hand loan to meet urgent
needs to discharge their debts. Therefore, 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 sites as agreed. In the
year 2020, the accused has issued cheque bearing
5 C.C.15921/2022
No.623748 for a sum of Rs.43 lakhs and behind the
cheque it has been written in Kannada as “ನಾನು ಸುಧಾಯಿಂದ
43 ಲಕ್ಷ ಪಡೆದಿರುತ್ತೇನೆ” dated 06.05.2020.
4. 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. That time, the
accused and her husband have repaid 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
6 C.C.15921/2022
her husband requested the complainant not to present
the cheques. In the year 2021, the accused asked the
complainant to present the first cheque as such she has
presented the cheque bearing No.623745 for encashment
with her banker on 26.09.2021, but the said cheque was
returned with an endorsement as ‘Funds Insufficient’
dated 27.09.2021. 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 13.10.2021 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
22.10.2021.
7 C.C.15921/2022
5. It is further averred in the complaint that in the
legal notice the cheque number was wrongly mentioned
as 623748 of Canara Bank instead of mentioning it is
061827 of Apex Co-op Bank Ltd. Hence the complainant
has issued corrigendum notice on 06.11.2021 correcting
the cheque number and bank name. However, the
accused has not repaid the amount. Hence the
complainant has constrained to file the present
complaint.
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-15. As
there were sufficient materials to constitute the offence,
8 C.C.15921/2022
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.
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 his
side of evidence.
9 C.C.15921/2022
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 cross-examination by the learned counsel
for the complainant. During cross-examination Ex.P14
cheque has been confronted to Dw1 and marked.
12. I have heard the arguments of the learned
counsel for both the side and perused the oral and the
documentary evidence placed on record.
10 C.C.15921/2022
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.623745 dated
15.07.2021 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 complying 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 Negotiable
Instruments Act?
2. What Order?
11 C.C.15921/2022
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 ,
but it got dishonorued for the reason ‘Funds insufficient’.
Despite of giving notice, the accused has not repaid the
amount. Hence the present complaint.
12 C.C.15921/2022
16. To substantiate her case the complainant
stepped into witness box and got examined as PW.1. She
has got marked Ex.P1 to P15. 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: 13.10.2021 is marked as Ex.P-3 &
4, copies of the Postal Receipts are marked as Ex.P-5 & 6,
copies of postal acknowledgments are marked as Ex.P7 &
8, copy of reply notice is marked as Ex.P9, copy of
Corrigendum notice dated 06.11.2021 is marked as Ex.P-
10, copy of postal receipt is marked as Ex.P-11, copy of
postal acknowledgment is marked as Ex.P-12, complaint is
marked as Ex.P13, original cheque is marked as Ex.P-14,
signature of the accused is marked as Ex.P-14(a) and
notice dated 01.10.2021 is marked as Ex.P-15.
13 C.C.15921/2022
17. The counsel for complainant has relied upon a
decision reported in Crl.A.No.508/2015 in between
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
14 C.C.15921/2022repayment 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, 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
15 C.C.15921/2022complainant. Hence on these grounds, accused prays to
acquit her from this case.
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.”
16 C.C.15921/2022
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 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.
17 C.C.15921/2022
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 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
18 C.C.15921/2022
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, 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
19 C.C.15921/2022
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.
26. In para No.8 of the complaint 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
20 C.C.15921/2022
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
CC.No.15921/2022 and 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
21 C.C.15921/2022
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 cheque has been confronted
to the accused 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.
22 C.C.15921/2022
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 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.D14, 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.
23 C.C.15921/2022
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 cheque at Ex.P14 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
24 C.C.15921/2022
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
complainant. 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/-.
When such being the case, she ought to have issued 4
separate cheques for total 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.
25 C.C.15921/2022
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/-.
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
26 C.C.15921/2022
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.
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.
27 C.C.15921/2022
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. 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 cheques and other cheques for collateral purpose’.
Further In Exp15, 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
28 C.C.15921/2022
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 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.
29 C.C.15921/2022
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.
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
30 C.C.15921/2022
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
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”.
31 C.C.15921/2022
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 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
32 C.C.15921/2022
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.
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
33 C.C.15921/2022
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 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
complianant and also stated about new story about the
34 C.C.15921/2022
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 those talks were happened and
when she has paid Rs.2,70,000/- to the complainant as per
ExP15. 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
35 C.C.15921/2022
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 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
creates suspicion about the defence.
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, 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
36 C.C.15921/2022
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
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,
37 C.C.15921/2022
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,
“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,
38 C.C.15921/2022
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 c “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”.
39 C.C.15921/2022
50. 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, ” thaheque which is issued as
security would mature for presentation”.
51. 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 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
40 C.C.15921/2022
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.
52. There is no proof that she has repaid the entire
amount to the complainant. Moreover, her own legal
notice at Ex.P15 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.
41 C.C.15921/2022
53. 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
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
42 C.C.15921/2022
assigned in above point, it is ample clear that accused has
committed the offence punishable u/s 138 of the Act.
54. 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 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
43 C.C.15921/2022
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.
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 18th day of January 2025).
Digitally signed Tejaswini by Tejaswini K M KM Date: 2025.01.22 11:17:52 +0530 (Smt.Tejaswini K.M), XVI ACJM, Bengaluru 44 C.C.15921/2022 ANNEXURE
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.
Ex.P-3 & 4 : Legal notices.
Ex.P-5 & 6 : Postal receipts.
Ex.P-7 & 8 : Postal Acknowledgments.
Ex.P-9 : Reply notice.
Ex.P-10 : Corrigendum Notice
Ex.P-11 : Postal receipt.
Ex.P-12 : Postal Acknowledgment.
Ex.P-13 : Complaint.
Ex.P-14 : Original Cheques.
Ex.P-15 : Notice dated 01.10.2021.
III. List of witnesses for the accused:
D.W.1: Smt.Shaila Shree.R
45 C.C.15921/2022IV. List of documents for accused:
Nil
Digitally
signed by
Tejaswini Tejaswini
Date:
KM
KM 2025.01.22
11:18:00
+0530
(Smt.Tejaswini K.M ),
XVI ACJM, Bengaluru
46 C.C.15921/2022
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