Bangalore District Court
Jitendra Kumar Vasisth vs Parasnath Singh on 14 July, 2025
KABC030821662022
Presented on : 03-11-2022
Registered on : 03-11-2022
Decided on : 14-07-2025
Duration : 2 years, 8 months, 11 days
IN THE COURT OF XX ADDL.CHIEF JUDICIAL
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.J.M.
Bengaluru.
Dated this the 14th day of July 2025
C.C.No. 33962 / 2022
Complainant : Sri. Jitendra Kumar Vasisth,
aged about 35 years,
S/o. Late Sri Rupendra Kumar Sharma,
Residing at No.22/1,
7th Cross, 4th Main Road,
Samapangirama Nagara,
Bengaluru - 560 027
2 C.C. 33962 / 2022
Mobile 9844882288
{ By Sri.M Chowda Reddy - Advocate }
Vs.
Accused : Sri. Parasnath Singh,
Aged about 50 years,
S/o. Harbans Singh,
No.53, 4th Cross,
Puttenahlli, J P Nagar,
Bengaluru - 560 078
Mobile 9448784086
(By Smt. Sheetal Soni - Adv.)
Offence complained : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty.
Final Order : Accused is convicted.
Date of Order : 14.07.2025
3 C.C. 33962 / 2022
JUDGMENT
The present complaint is filed under section 200 of
code of criminal procedure against the accused seeking to
punish him for the offence punishable under section 138
of the Negotiable Instruments Act ( in short referred as “N.I.
Act“).
02. The facts which led to file the present complaint are
as under :
It is contended that, the accused is well acquainted to
Complainant and his father Late Sri. Rupendra Kumar
Sharma for the last several years. During the year 2018
the accused has approached the father fo the Complainant
for financial assistance of Rs.5,00,000/- and accordingly
has borrowed Rs.5,00,000/- from his father at that time
the Complainant and his mother were present. It is
contended that, on 05.01.2022 the father of the
Complainant died and thereafter on the request made by
the Complainant the accused has issued cheque bearing
No.452317 dated 16.04.2017 for a sum of Rs. 5,00,000/-
4 C.C. 33962 / 2022drawn on State Bank of India, Mission Road branch,
Bangalore. On 13.07.2022 the Complainant has
presented the said cheque with his banker for encashment
but on the same day it has return unpaid due to “Funds
insufficient” as per bank endorsement. Thereafter on
10.08.2022 the Complainant got issued demand notice to
the accused through his advocate by RPAD after receiving
the said notice the accused got issued reply notice on
13.08.2022. However, the accused has failed to make the
payment of cheque amount. It is sought to convict the
accused under section 138 of NI Act and award
compensation under section 357 of Cr.P.C.
03. On presentation of the complaint, this court has
verified the averments of the complaint and also annexed
documents. Having made out prima facie case cognizance
has been taken and thereafter the sworn statement of the
Complainant has been recorded. Having made out prima
facie case it is ordered to register the complaint in register
No.III issue process against the accused.
5 C.C. 33962 / 2022
04. In response to the court summons, the accused put
his appearance before the court through his counsel and
filed bail application under section 436 of Cr.P.C., along
with application under section 145(2) of NI Act. The plea
has been recorded and read over to the accused, he
pleaded not guilty and wanted to put forth his defense. The
accused has been permitted to cross-examine of PW1. In
support of his evidence the Complainant has adduced the
evidence of one Prasad Rao as PW2 and got marked 2
documents through PW1 at Ex.P10 and P11. After
terminating the Complainant side evidence, the statement
of accused has been recorded under section 313 of Cr.P.C.,
read over and explained to him the incriminating evidence,
he denied the same in toto and wanted to lead evidence on
his behalf. However, he has not offered given any
explanation. Later the counsel of accused has submitted
no defense evidence .
05. Heard oral arguments advanced by both the counsels.
6 C.C. 33962 / 2022
06. The following points that arise for my consideration
are as under;
POINTS
1. Does the complainant proves
beyond reasonable doubts that, the
accused has issued cheque
bearing No.452317 dated
16.04.2017 for a sum of Rs.
5,00,000/- drawn on State Bank of
India, Mission Road branch,
Bangalore towards the discharge of
his lawful liability of the
complainant and when the said
cheque was presented for
encashment, it was returned
unpaid due to shara as “Funds
insufficient” as per banker’s memo
and in-spite of issuance of demand
notice, the accused has failed to pay
the cheque amount, thereby has
committed the offence punishable
under section 138 of NI Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the Affirmative
2. Point No.2: As per final order
for the following;
7 C.C. 33962 / 2022
REASONS
POINT No.1:
08. To bring home the guilty of the accused beyond all
reasonable doubts the Complainant himself has adduced
his affidavit evidence as PW1 and got marked in all 9
documents as per Ex.P1 to P9. Ex.P1 is the disputed
cheque, Ex.P2 is the bank return memo, Ex.P3 demand
notice, P4 and P5 are the postal records, Ex.P6 is the reply
notice, Ex.P7 is the hospital death report, Ex.P8 is the
death certificate of Sri. Jitendra Kumar. To corroborate
the evidence of PW1 one Sri. Sai Prasad Rao has examined
as PW2 to deposed before the court by way of affidavit
evidence and got marked one pen drive at Ex.P9, Certificate
u/s 65(B) of Evidence Act Ex.P10 and Hash value of the
said pen drive at Ex.P11. The Learned defense counsel
has cross examined the both witnesses.
09. Before to venture for the appreciate the oral and
documentary evidence produced on records, it is imperative
on this court to find out whether the Complainant has
8 C.C. 33962 / 2022proved the necessary ingredients of section 138 of NI Act
before filing the present complaint.
10. Looking upon the disputed cheque dated 16.04.2022
written memo dated 13.07.2022 demand notice dated
10.08.2022 along with postal records at Ex.P4 and P5
looking to the reply notice dated 13.08.2022 ad filing of
this case before this court on 07.09.2022 clearly reveals
that, the present complaint is filing only after fulfillment of
section 138 of NI Act. Before to scrutinize the oral and
documentary evidence and also before to have discussion
about the statutory presumptions contemplated under
section 138 and 139 of NI Act this court feels it is proper
and necessary to given findings to some of the quarries
raised by the Learned defense counsel during his
arguments.
11. The Learned defense counsel vehemently contended
that, Ex.P1 cheque is of the yer 2021, but it is corrected as
2022 so there is correction made on ‘1’ as ‘2’ on this
9 C.C. 33962 / 2022ground itself the complaint is not maintainable. Perused
the date mentioned at Ex.P1 Cheque wherein it is dated as
16.04.2022 the last No.2 is seems to be written with
different ink. If at all the Complainant altered the said
2021 as 2022 ofcourse it may attract section 87 of NI Act,
but if the banker have not raised any objections or have
not shown the said alleged alternation as reason for the
return of cheque unpaid then it could have been
considered. But, the banker have returned the cheque at
Ex.P1 unpaid as “Funds insufficient”. Therefore this query
raised by the defense side is not sustainable. Apart from
that, if at all the accused has serious objection about this
alleged making alteration, he could have file any
application before this court requesting to refer the alleged
altered year to hand writing expert, but no such effort has
been made by the defense side therefore in order to
attract section 87 of NI Act it must be material alteration
and that fact ought to have been considered by the banker
while dishonouring the cheque. Considering all these facts
the contention of Learned defense counsel is unacceptable.
10 C.C. 33962 / 2022
12. The Learned defense counsel further contended that,
the holder of disputed cheque is not Complainant, to
whom on the owe the amount he shall be the
Complainant. On this ground itself it is sought to dismiss
the complaint. The Complainant has produced death
certificate which is marked at Ex.P8 wherein
Sri.Rupendra Kumar Sharma died on 01.01.2022 and in
the cause title the father of the Complainant is shown as
Rupendra Kumar Sharma which is not disputed during
cross examination of PW1. Further during the
consideration receipt PW1 no where it is not denied or a
suggestion made stating that, the Complainant is not the
son of Rupendra Kumar Sharma. So, the Complainant
seems to be the son of Sri. Rupendra Kumar
Sharma,under the Hindu Succession Act, on the death of
father his son steps into the shoes of father and the son
can very well claim all the debt of his deceased father. In
an recent judgment of Hon’ble Apex Court in Criminal
Appeal No. 482 /2002 decided on 28.10.2002 in the case of
11 C.C. 33962 / 2022Shakar Lal V/s. Sanyogita Devi (Dead by LRs) it is held
that,
” If the payee of the cheque dies, his
wife and children steps into his
shopes and they can file complaint by
presenting cheque to the bank. They
are hled as deemed holder of the
cheque”
In the light of above dictum of law, I am of the considered
opinion that, the present Complainant being the son of
deceased Rupendra Kumar Sharma can very well file this
complaint as holder of the disputed cheque at Ex.P1.
During cross-examination of PW1 no such material
evidence has been culled out from the mouth of PW1 to
accept the contention of the Learned defense counsel.
Hence the averments of averments advanced by the
Learned defense counsel is sustainable.
13. It is further argued from the defense side contending
that, the Complainant filed two different cases i.e. one is
12 C.C. 33962 / 2022OS and another one is this case. It is further contended
that, neither the Complainant not his deceased father has
money lending license on these grounds itself the
complaint is not maintainable. In a judgment reported in
2008 (1) DCR 237 (Kar) in the case of Mymoona V/s. H M
Trading Company, Mangalore wherein the Hon’ble High
Court of Karnataka pleased to hold that the Complainant is
at liberty to file the suit for recovery of money as well the
complaint for bouncing o cheque. In this light of this ratio
the arguments advanced by the Learned defense counsel is
not acceptable. In another judgment reported in 2007
Cri.LJ 586 in the case of S. Parameshwarappa and another
V/s Choodappa held that,
” Section 138 of NI Act is special
provisions and the provision of money
lenders Act not applicable. If legally
recoverable debt is proved, the defense of
not producing money lending license
untenable. ”
13 C.C. 33962 / 2022
In the light of above relied 2 proposition of laws, the
contention taken by the Learned defense counsel is not
acceptable.
14. Section 118 & 139 of NI Act are two important
provisions and they provides for raising mandatory
presumptions in favour of the complainant until the
contrary is proved by the accused. Even in the catena of
decisions i.e., in the case of Rangappa Vs. Mohan reported
in 2010(11) SCC 441, in the case of Bir Singh Vs. Mukesh
Kumar reported in 2019(4) SCC 197, in the case of APS
Forex Services (P) Ltd., Vs.Shakthi International Fashion
Linkers reported in 2020(12) SCC 724, in the case of
Rajeshbai Muljibhai Patel Vs. State of Gujarat, reported in
2020(3) SCC 794, in the case of Triyambak S. Hegde Vs.
Sripad reported in Live Law 2021 SC 492 and in the relied
judgments of the complainant, a precedent is laid down
that, ” Once the issuance of cheque and the signature
thereon is admitted by the accused, the court is required
to raise presumption in favour of the the complainant
14 C.C. 33962 / 2022
stating that, the accused has issued the cheque for some
consideration towards discharge of his legal debt or
liability of the complainant and that the complainant is
the due holder of the said cheque. The burden or reverse
onus shifts on the accused to rebut the statutory
presumptions under sections 118(a) & 139 of NI Act.” Now,
it is well established law that, the presumption mandated
by section 139 of NI Act, thus indeed includes the existence
of legally enforceable debt or liability and it is open for the
accused to raise a probable defense wherein the existence
of legally enforceable debt or liability can be contested and
he shall prove before the court on preponderance of
probabilities, only thereupon a statutory presumption
raised in favour of the complainant stands rebutted.
15. In the instant case on hand, the accused has give his
reply notice at Ex.P6 wherein the very case of the
Complainant is denied interlia during fact has been
narrated and para 2 of page No.3 fo the said reply wherein
it is contended that, the accused had transaction with
15 C.C. 33962 / 2022
deceased Rupendra Kumar Sharma in the year 2020 at
that time the deceased Rupendra Kumar Sharma had with
his custody some cheques which were given as security
purpose and after completion of the transaction of said
Rupendra Kumar Sharma had cheque in his possession
without returning to the accused stating that, he has kept
cheque in Alamera and the movement he found he would
return the same to his client. But due to bad luck of his
client the Rupendra Kumar Sharma died and his cheque
has been not returned thereby the same has been misused
by the Complainant and filed the present complaint. It is
further contended that, he lodged complaint before
jurisdictional police for the misuse of cheque . This is the
defense put forth by the accused in the beginning itself
and in order to prove this defense on preponderance of
probabilities he did not entered in the witness box. By
putting this defense the accused is neither disputed the
cheque at Ex.P1 not his signature at Ex.P1(a). Therefore I
am of the considered opinion that the Legal presumptions
under section 118 shall operates in favour of complainant
16 C.C. 33962 / 2022
and goes against the accused. It is well settled law that, in
order to prove the probable defense the accused need not
enter into the witness box. Instead, he can very well make
use of the evidence produced by the Complainant. The
Learned defense counsel has cross examined PW1 and
considering the case of the Complainant as well as cross
examination of PW1 and defense taken in the reply notice
it is admitted fact that, the accused is acquainted with the
family of Complainant . It is further admitted fact that the
accused use to avail hand loan from the deceased father of
the Complainant. But when it is the specific defense of
the accused in his reply notice at Ex.P6 that, in the year
2020 he borrowed some amount from the deceased father
of the Complainant and at that time some cheques were
given as security and after completion of the said
transaction the deceased father of Complainant died
without returning the same cheque. To prove this fact
before the court on preponderance of probabilities the said
defense is not at all even suggested to PW1 during his
cross examination. That apart no evidence is brought on
17 C.C. 33962 / 2022
record or culled out during the cross examination of PW1
that in the year 2020 how much amount the accused has
borrowed from the deceased father of the Complainant and
in which money and year he has repaid the said amount to
the deceased father of Complainant . No evidence is
forthcoming in this regard. That apart when the father of
Complainant is died, the accused being acquainted with
the family of Complainant he must have come to know the
information about the death of father of the Complainant
and he could be approached the Complainant at that time
only to get back his security cheque which were deposited
with the deceased. Even he could have sent the notice to
the present Complainant asking him for the return of
security cheque which were deposited to the deceased
father of the Complainant. Even other wise, if the accused
has failed to take the above two steps, he had another
opportunity to file stop payment application with his
banker, but that effort was also not done by the accused.
During cross examination of PW1 same facts are elicited
stating that, it is elicited that, after advancing loan to the
18 C.C. 33962 / 2022
accused by his father the accused use to visit their shop.
This facts do not leads any doubt in the mind of the court
to disprove the case of the Complainant . Even from the
accused side it was suggested to PW1 that, oftenly the
accused used to take money from the deceased father of
the Complainant since both were friends. This suggestion
would help more to the Complainant rather then to the
accused. Thus, accused has failed to raise up the probable
defense and thereby to prove the same on preponderance
of probabilities for the rebuttal of statutory presumptions.
16. PW2 adduced his evidence by way of affidavit stating
that he knows the Complainant, his father for the last
several years and in the year 2018 the accused approached
the father of Complainant for financial help and obtained
Rs.5 lakhs from him. He heard that of taking loan from the
father of Complainant the accused starting dragging to
return the said hand loan and thereafter the father of the
Complainant by all of sudden on 05.01.2022 and
Complainant told him that after the death of father of
19 C.C. 33962 / 2022
Complainant the accused has issued disputed cheque. As
per section 3 of Evidence Act in order to corroborate the
oral testimony of Complainant the evidence of any other
witness shall be direct the witness. Since evidence of PW1
is here say, as evidence do not corroborate the evidence of
PW1. During his cross examination he admitted that, he
do not remember the email ID of Complainant and he
cannot say the voice recording storage value is how much.
On the other hand hash tag value of pen drive is produced
at Ex.P11 along with certificate u/s 65(B) which is marked
at Ex.P11. AS per the evidence of PW2 in the cross
examination the pen drive produced at Ex.P9 appears to
have been displayed in the open above court and only
thereafter this hash file has been extracted from the
internet. This court did not heard contents of this pen
drive at Ex.P9 by considering the hash tag at Ex.P11 and
evidence of PW2 about the display of this pen drive in the
open court by my Predecessor . This voice recording can
be considered and relied as secondary evidence and the
same will corroborate the evidence of PW1. From the
20 C.C. 33962 / 2022
defense side not such effort has been made to take sample
voice regarding the present Complainant and the accused
and thereafter to send the said sample recording along with
voice recording in the pen drive at Ex.P9 to the FSL.
Therefore the pen drive produced at Ex.P9 would support
the case of the Complainant. During the argument the
Learned defense counsel forcefully contended before
recording the voice or to conversation of mobile has
permission ought to have been taken and without
permission if it is recorded it violates article 21 of the
constitution. This contention of the Learned defense
counsel is unacceptable without producing any authority of
law. Thus, from the evidence available on record, I am of
the considered opinion that, the accused has miserably
failed to raise probable defense and prove the same on
preponderance of probabilities to rebut Legal
presumptions. On the other hand, the Complainant by
the oral and documentary evidences rove his case beyond
all reasonable doubts. Hence, I answered point No.1 in the
Affirmative.
21 C.C. 33962 / 2022
POINT NO.2:
17. This complaint is filed in the year 2022 and all along
the Complainant has been running to the court for more
than 3 years, considering the time spent by the
Complainant and engagement of his own advocate for the
conduct of the case, I am of the considered opinion that,
the Complainant has entitled to Rs.67,000/- as
compensation the same were meet the ends of justice and
for the conclude of the trial of this case an amount of
Rs.3,000/- requires to be charged as state expenditure.
Accordingly, this court proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and
sentenced to pay fine of Rs.6,10,000/-
(Rupees Six Lakhs Ten Thousand
22 C.C. 33962 / 2022
only). In default, he shall undergo
simple imprisonment for 1 (one) year.
Acting under section 357(1) of
code of criminal procedure, it is
ordered that an amount of
Rs.6,00,000/-(Rupees Six Lakhs only),
there from shall be paid to the
complainant as a compensation,
remaining fine amount of Rs.10,000/-
(Rupees Ten Thousand only) is
defrayed to the state for the expenses
incurred in the prosecution.
The bail bond of accused stands
canceled subject to appeal period.
Supply free copy of judgment to the
accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected
and then pronounced in the open court on this 14th day of July 2025}.
(BHOLA PANDIT)
XX ACJM,
23 C.C. 33962 / 2022
ANNEXURE
List of witnesses examined on behalf of complainant:
P.W.1 Jitendra Kumar Sharma P.W.2 Sai Prasad Rao
List of documents produced on behalf of complainant:
Ex.P.1 Cheque Ex.P. 1(a) Signature of the accused Ex.P. 2 Bank endorsement Ex.P. 3 Copy of the legal notice Ex.P. 4 Postal receipt Ex.P. 5 Postal acknowledgment Ex.P.6 Reply notice Ex.P.7 & 8 Death certificate Ex.P.9 Pen drive 24 C.C. 33962 / 2022 Ex.P.10 Certificate u/s 65(B) of the Indian Evidence Act Ex.P.11 Hash value of pen drive
List of witnesses examined on behalf of accused:
Nil
List of documents produced on behalf of accused:
Nil
XX A.C.J.M. Bengaluru.
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