Bangalore District Court
D.Vidhyananda Sharma vs Suresh A.M on 23 January, 2025
KABC030252422019
IN THE COURT OF THE XIX ADDITIONAL CHIEF
JUDICIAL MAGISTRATE AT BENGALURU CITY.
Dated this the 23rd day of January 2025.
PRESENT:SMT.RASHMI H.B., B.A.(LAW)LL.B.,LLM.,
XIX ADDL.C.J.M., BENGALURU CITY.
C.C.No.8229 of 2019
Complainant :- D.Vidhyananda Sharma
S/o.Dhayananda Sharma,
Aged about 27 Years,
R/at.No.30/5, Somusundara Palya,
Near Rally Layout, Opp.Vibgyor
School, Bengaluru-560102.
(Rep. By Sri.N.G., Advocate)
-V/s-
Accused :- Suresh A.M.,
S/o Mudigiri Shetty,
Aged about 40 Years,
R/at.Udupi Palace Hotel,
Near Petrol Bunk, Haraluru,
Main Road, Bengaluru-560102.
(Rep. By Sri.A.N., Advocate)
Date of complaint :- 28-02-2019
Date of Commencement :- 03-04-2018
of evidence
Offence complained :- Section 138 of N.I.Act
Opinion of the Judge Accused is found not guilty.
2 C.C.No.8229/2019
JUDGMENT
This is a private complaint filed under section 200 of
Cr.P.C., against the accused for the offence punishable
under section 138 of the Negotiable Instruments Act.
02.The brief facts of the complaint is as under:
The accused and the complainant are well known to
each other. The complainant is running provision store and
accused is running Udupi Palace Hotel at Haraluru Junction,
Bengaluru. The accused had requested complainant to
supply rice and groceries to the hotel of accused.
Accordingly complainant has supplied the rice and accused
has made part payments. The accused changed the name
of his hotel as Udupi Bhavan in the year 2017. Thereafter
he has postponed payments of groceries for one or the
other reason. The accused has owed Rs.1,50,000/- and he
has agreed to repay the said balance amount within one
year. After one year, when complainant has demanded for
repayment, in order to repay the amount, accused has
issued a post dated cheque bearing No. 007442 dated 01-
08-2018 for Rs.1,50,000/- drawn on Axis Bank of Limited,
3 C.C.No.8229/2019Haraluru branch, Bengaluru in favour of the complainant.
The complainant has presented said cheque for
encashment through his banker State Bank of India, HSR
Layout Branch, Bengaluru. The cheque is returned unpaid
with bank endorsement dated:04-08-2018, 24-08-2018
and 24-10-2018 showing cheque is dishonoured for the
reason “Funds Insufficient”. Finally, as per the assurance
of accused, complainant again presented the said cheque
on 11-01-2019 and it was dishounoured for the reasons
that “Instrument outdated stale”. Thereafter, the
complainant has got issued legal notice to the accused
through his counsel on 24-01-2019 through registered
post. The said notice returned back by shara “unclaimed”
and the intimation was delivered on 11-02-2019. But, till
date accused has failed to make payment of cheque
amount. Hence, complainant has filed this complaint on
28-02-2019.
03. After presentation of complaint, this Court
took cognizance of offence and recorded the sworn
statement of complainant. Thereafter, a criminal case is
4 C.C.No.8229/2019
registered against accused and summons is issued to
the accused. The accused appeared through his counsel
and he is enlarged on bail. The copies of the complaint
and other papers furnished to the accused. Substance of
accusation was read over to him. Accused has 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 10 documents as Ex.P1 to Ex.P.10.
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 no defence evidence. However accused
relied on Ex D1 document, which is admitted during
cross-examination of PW1.
05. Heard the arguments of learned counsel for
complainant and accused. The learned counsel for
accused filed notes of arguments. Perused entire case
record carefully.
5 C.C.No.8229/2019
06. On the basis of contentions raised in the
complaint the points that arises for determination of this
Court are as follows:
1.Whether the complainant proves that,
the accused issued the cheque towards
discharge of legally enforceable debt?
2.Whether the complainant proves the guilt
of the accused for the offence
punishable under section 138 of
Negotiable Instruments Act?
3.What order?
07. Now, this Court answers to above points are
as follows:
Point No.1: In the Negative;
Point No.2: In the Negative;
Point No.3: As per final order for
the following:
:: R E A S O N S ::
08. POINTS No.1 and 2: Since these points are
inter-relating with each other, they are taken up together
for common discussion to avoid the repetition of facts and
findings.
6 C.C.No.8229/2019
09. This case is tried as summons case. As this
matter is tried as summons case, this Court relies on the
evidence recorded by learned predecessor in office. In that
regard, this Court relies on decision of Hon’ble Supreme
Court of India in the case of Mehsana Nagarik Sahkari
Bank Ltd., V/s Shreeji Cab Co. & Others reported in
2014(13) SCC 619. Wherein the Hon’ble Supreme Court
had observed that de-nova hearing is necessary only when
the evidence is recording in summary manner. Therefore,
this Court has proceeded with the case on the basis of part
evidence recorded previously.
10. Before proceeding with the discussion, in order to
prove the guilt of offence under section 138 of N.I. Act,
initial burden casts on the complainant to prove the
following ingredients:
a) The cheque must have been drawn
for discharge of existing debt or
liability.
b) Cheque must be presented within
validity period.
c) Cheque must be returned unpaid due
to insufficient funds or it exceeds the
amount arranged.
7 C.C.No.8229/2019
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.D.Vidhyananda Sharma 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 10 documents. The
complainant got marked original cheque as Ex.P1, three
bank memo as Ex.P2 to 4, demand notice as Ex.P5, postal
receipt as Ex.P6, returned postal envelope as Ex.P7,
account note books as Ex.P8 and 9 and statement of
account of complainant as Ex.P10.
12. During cross-examination, PW1 has deposed he
did not sent demand notice for dishonour of cheque on 04-
08-2018 and 24-10-2018. The Pw1 has admitted the fact
that date of cheque is altered and number 03 is altered as
08 in the month column of the cheque. However PW1 has
explained said alteration is made by the accused himself in
8 C.C.No.8229/2019
the presence of PSI of Bandepalya Police station voluntarily.
Further PW1 has admitted the Ex P1 cheque was presented
on 05-03-2018 and it was dishonoured and he did not
mention said fact in his complaint. The PW1 has admitted
Ex D1 notarized copy of the bank endorsement showing the
Ex P1 cheque is dishonoured on 05-03-2018.The defence
suggested complainant colluding with one Dinesh Shetty to
whom accused has given signed blank cheque is misused by
the complainant. The said suggestions answered as not
true. Further defence suggested Pw1 has filled up the
contents of the cheque. The said suggestions answered as
not true.
13. On going through evidence on record, defence has
contended section 138(a) and Section 138(b) of N.I. Act are
not complied. Further defence has contended there is
material alteration of the date column of cheque and Ex P1
cheque is invalid cheque. On considering said defence, on
going through Ex P1 cheque on bear eyes the handwritings
style, impressions of writings and signatures found in
cheque found different. Further ink of signature and other
9 C.C.No.8229/2019
writings found different. Further on bear eyes the date of
cheque is altered from 01-03-2018 to 01-08-2018. The said
fact is admitted by PW1. Further Ex D1 bank endorsement
shows the cheque is presented for the first time on 05-03-
2018. This indicates the alteration of date column of cheque
is proved. As PW1 has admitted the alteration of number in
the date column, no expert opinion is necessary to prove
the material alteration. Even one can see said alteration of
number 3 as 8 is visible in naked eye. Therefore changing
date from 01-03-2018 to 01-08-2018 to save limitation
under section 138(a) of N.I.Act is proved. Therefore as per
section 87 of N.I.Act, the Ex P1 cheque is void instrument.
14. The Hon’ble High Court of Karnataka in reported
judgement in 2011 SCC OnLine Kar 3895 in the case of
M.B.Rajasekhar Vs Savithramma in Para No.7 & 8
discussed legal proposition regarding material alteration
without proof of expert opinion. It reads as follows:
“7. It is relevant to note that the cheque is
valid for six months from the date of its issue. In
case, if it is not presented within the time and later,
if presented, it would be rejected by the bank,
10 C.C.No.8229/2019unless it is revalidated by the drawer. If this aspect
of the matter is considered, the change of the date
of the cheque amounts to a material alteration and
it cannot be said that it is formal. When the
alteration could be seen from naked eyes, I do not
think that there is any necessity of any expert
opinion. In the circumstances, I am of the opinion
that as the alteration is material, the negotiable
instrument Ex. P. 2 is invalid and cannot be relied
upon.
8. The learned counsel relied upon the decision
of the Apex Court reported in (2002) 1 SCC
97 : AIR 2002 SC 38 (Veera Exports v. T.
Kalavathy) wherein the Apex Court holds that a
cheque which has become invalid because of the
expiry of the stipulated period, could be made valid
by alteration of dates. But, it is not the case of the
appellant that the respondent/accused has altered
the date and if it was so, there could have been the
signature of the respondent at the place of
alteration. The appellant has not taken any
contention that the cheque was revalidated by the
respondent, after the stipulated period. Therefore,
the principle laid down in the decision referred to
supra do not apply to the facts on hand.”
11 C.C.No.8229/2019
15. On considering afore said proposition of law, the
court could infer material alteration of cheque based on the
evidence without expert opinion. In this case PW1 did not
plead the fact of alteration of date in Ex P1 cheque and he
has suppressed the fact that said cheque was presented on
05-03-2018 itself. Though PW1 has explained said
alteration of date is done by accused in presence of the PSI,
Bandepalya, said explanation is found to be self serving
statement. There is no endorsement or initial made by the
accused for change of date in the Ex P1 cheque. Therefore
Ex P1 cheque is proved to be found with material alteration
and it is void instrument.
16. Further ingredient as per section 138(a) of N.I.Act
is not complied. Though Ex P1 cheque is dishonoured on
05-03-2018, no demand notice is sent within 30 days.
Though complainant asserted cheque is dated 01-08-2018
and cheque is dishonoured for thrice on 04-08-2018, 24-
08-2018 and 24-10-2018, he did not sent demand notice
within 30 days. The last presentation of cheque as bank
endorsement and complaint assertion, cheque is presented
12 C.C.No.8229/2019
on 11-01-2019. It is evident to note even if we consider
the cheque is dated 01-08-2018, it has to be presented
within 3 months from the date mentioned in the cheque.
The ingredient of presentation of cheque within stipulated
period of 3 months is considered as per in view of the
notification of Reserve Bank in RBI/2011-12/251 dated 4-
11-2011. Therefore, the bank endorsement marked as Ex
P2 does not give cause of action for criminal action in this
case under section 138 of N.I.Act. Therefore no
presumption could be raised under section 118 and 139 of
N.I. Act in favour of complainant.
17. Under these circumstances, this court is of the
opinion that the dishonour of Ex.P.1 cheque do not attract
penal consequences. Therefore, accused is entitle for
benefit of doubt and he is entitle for order of an acquittal.
Accordingly, this court answer Point No.1 & 2 are in
Negative.
13 C.C.No.8229/2019
18. Point No.3: For the foregoing reasons stated
in the Point No.1 and 2, this court proceeds to pass the
following:
ORDER
The accused found not guilty forthe offence punishable under section
138 of Negotiable Instruments Act.
Acting under section 255(1) of
Cr.P.C, the accused is acquitted for the
offence punishable under section 138
of The Negotiable Instruments Act.
In view of section 437-A of
Cr.P.C., bail bonds stands extended
for 6 months from this date.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected by me
rd
23
and signed, pronounced in the Open Court on this the day of January, 2025)
RASHMI Digitally signed by
RASHMI H B
HB Date: 2025.01.23
17:10:38 +0530
(SMT.RASHMI H.B.,)
XIX ADDL.C.J.M., Bengaluru City.
14 C.C.No.8229/2019
::ANNEXURE::
List of Witnesses examined for Complainant:-
PW1 :- D.Vidhyananda Sharma
List of Documents marked for Complainant:-
Ex.P1 :- Original Cheque, Ex.P1(a) :- Signature of Accused, Ex.P2 to 4 :- Three Bank Endorsements, Ex.P5 :- Office copy of the Legal Notice, Ex.P6 :- Postal Receipt, Ex.P7 :- Unclaimed RPAD Cover, Ex.P8 & 9 :- Account Books, Ex.P10 :- Bank Statement.
List of Witnesses examined for Accused:
– NIL –
List of Documents marked for Accused:
Ex.D1 :- Notarized copy of Bank Return Memo.
Digitally signed RASHMI by RASHMI H B HB Date: 2025.01.23 17:10:48 +0530 (SMT.RASHMI H.B.,) XIX ADDL.C.J.M., Bengaluru City. 15 C.C.No.8229/2019
