Bangalore District Court
Shankar P vs Pradeep C on 7 August, 2025
KABC0C0184862023
IN THE COURT OF XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
MAYO HALL UNIT, BENGALURU (ACJM-34)
PRESENT: Smt.PARVEEN A BANKAPUR, B.Com.LLB.
XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE
Dated: This the 7th day of August, 2025.
C.C.No.56124/2023
COMPLAINANT : Mr. Shankar P.
S/o. Late Puttaswamy,
Aged about 32 years,
R/at No.148, 3rd Cross,
Kavika Layout, Mysore Road,
Bengaluru - 26.
(By Mr.Sourabh R. Kurubarahalli -
Advocate)
V/s
ACCUSED : Mr. Pradeep C
S/o. Bettaiah Chandraiah,
Aged about 32 years,
R/at Govindahalli Grama, Chakkare
Anche, Mallur Hobli,
Channapatna Taluk,
Ramanagar District - 562 159
Also at No.257, No.14, 7th A Cross,
Bahubali Nagar, Jalahalli Village,
H P Gas Agency,
Bengaluru North -13
(By Mr.Prakasha K - Advocates)
1 Date of Commencement 28.11.2022
of offence
2 Date of report of offence 16.02.2023
3 Presence of accused
3a. Before the Court 26.02.2024
3b. Released on bail 26.02.2024
4 Name of the Complainant Mr. Shankar P.
5 Date of recording of 16.06.2023
evidence
6 Date of closure of evidence 05.02.2025
7 Offences alleged U/s 138 of the Negotiable Instruments Act
8 Opinion of the Judge Accused is found guilty
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C.C.No.56124/2023
JUDGEMENT
The Private Complaint is filed by the Complainant under
Section 200 of Cr.P.C. against the accused alleging that he has
committed the offence punishable under Section 138 of
Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that he is a store owner in the
city of Bengaluru and has been operating the said business for
many years. The Accused is his friend and has known the
Complainant for many years.
It is further submitted that the Accused prior to his
marriage had approached the Complainant and had informed
him that he was in need of money. He would regularly
approached him and continuously seek small sums of money
for various individual expenses. Out of sympathy for the
Accused and his alleged situation, the Complainant would
regularly transfer the said sums to the account of the Accused
vide bank transfer from the Complainant’s savings bank
account.
It is further submitted that the Accused also obtained the
gold jewellery belongs to the relatives of the Complainant and
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C.C.No.56124/2023pledged the same to obtain loans in his name and in the name
of his brother Sri Sunil Kumar H.N. The Accused even failed to
repay the same and the lender had issued notices that the said
jewellery would be sold to clear the liability. In order to ensure
that the jewellery belonging to his mother and sister was not
sold in auction, the Complainant had to obtain a loan and
repay the said amounts to release the said jewellery.
It is further submitted that after adjusting for repayment
made by the Accused, the Accused was still liable to repay the
Complainant a sum of Rs.12,09,642/- towards the amount
transferred from the bank accounts and the amount spent
towards repayment of the gold loans.
It is further submitted that the Accused has also
requested the Complainant for small sums of money which
were paid by the Complainant by way of cash. Over the period
of 3 years, the Complainant totally lent the Accused a sum for
Rs.3.5 lakhs by way of cash. The Accused even failed to repay
the same to the Complainant.
It is further submitted that upon his repeated request
and demands for repayment of the said amount, the Accused
issued a post dated Cheque bearing No.000063 dtd.28.11.2022
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C.C.No.56124/2023for Rs.15,60,000/- drawn on HDFC Bank, Vidya Deep College
Building, Ulsoor Road branch, Bengaluru and requested the
Complainant to present the same in the first week of December
2022.
It is further submitted by the Complainant that as per
the request of the Accused, he presented the said cheque
through his banker i.e., Canara Bank, M.G. Road branch,
Bengaluru on 14.07.2021 but, the said Cheque was
dishonoured for “funds insufficient” on 9.12.2022. Though
the Complainant informed the same to the Accused, the
Accused did not pay the Cheque amount. Thereafter, the
complainant has got issued demand notice to the Accused on
31.12.2022, by RPAD calling upon the Accused to pay the
Cheque amount within 15 days from the date of receipt of
notice. But the notice was returned with a postal shara
“returned to sender addressee moved” and thereafter issued
one more notice and the same was also returned with a shara
“A/d left R/sender” on 3.1.2023. Despite knowledge of notice,
the Accused has neither paid the Cheque amount nor replied
to the notice. Hence, the Complainant has filed present
5
C.C.No.56124/2023complaint against the Accused for the offence punishable
u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement
affidavit, and documents etc., took cognizance of an offence
punishable Under Section 138 of N.I. Act by following the
guidelines of Apex Court issued in Indian Bank Association
case and ordered to be registered a criminal case against the
accused for the offence punishable Under Section 138 of N.I.
Act.
4. After issuance of summons, accused appeared before
the court and enlarged himself on bail. Plea was recorded, read
over and explained to the accused, who pleads not guilty and
claims to be tried. Hence, the case is posted for complainant’s
evidence.
5. The Complainant himself examined as PW1 and got
marked documents Ex.P1 to Ex.P14.
6. Accused was examined U/S 313 of Cr.P.C.
Incriminating evidence appearing in the complainant’s evidence
was read over and explained to the accused who denies the
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C.C.No.56124/2023
same. The learned counsel for Accused submits that, no
defence evidence and its side closed.
7. Heard both sides and perused the matter on record.
In addition to the oral arguments, both the learned counsels
appearing for parties have filed their respective written
arguments.
The learned Counsel for Accused has placed the following
citations;
1. 2008 AJR SCW 738
2. 2008 (1) SCC 258
3. 1999 (4) SCC 253
4. Cri.Apl.Nos.1269-1270
5. 2001(6) SCC 16
6.1973 (2) SCC 808
7. 2015 (1) SCC 99
8. 2014(5) SCC 590
9. 2010(11) SCC 441
10.AIR 2019 SC 1983
11.AIR 2024 SC 4103
The learned Counsel for Complainant has placed the
following citations;
1. 2006 (6) SCC 456 in the case of D. Vinod Shivappa
V/s. Nanda Belliappa
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C.C.No.56124/2023
2. ILR 2001 KAR 4127 in the case of S.R. Muralidar
V/s. Ashok G.Y.
8. Upon hearing the arguments and on perusal of the
materials placed on record, the following points arise for my
consideration.
1) Whether complainant proves beyond all
reasonable doubts that accused in discharge
of legally recoverable debt has issued a
Cheque No.000063 dtd.28.11.2022 for
Rs.15,60,000/- drawn on HDFC Bank, Vidya
Deep College Building, Ulsoor Road branch,
Bengaluru favour of the complainant which
came to be dishonoured with an
endorsement “funds insufficient” and
inspite of knowledge of notice accused has
not paid the Cheque amount and thereby
committed an offence under Section 138 of
N.I.Act?
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative
Point No.2: As per final order
for the following:
REASONS
Point No.1:-
10. Existence of legally recoverable debt is a sine qua non
for prosecuting the case under Section 138 of Negotiable
Instruments Act. For convenient purpose the essential
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C.C.No.56124/2023
ingredients to constitute offence under Section 138 of N.I.Act is
summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of
bank for discharge in whole or in part of any debt
or other liability which presupposes the legally
enforceable debt.
(iii)That the cheque so issued had been returned due to
“funds insufficient”.
11. It is core contention of the Complainant that, he is
a store owner in the city of Bengaluru and has been operating
the said business for many years. The Accused is his friend
and has known the Complainant for many years. The Accused
prior to his marriage had approached the Complainant and
had informed him that he was in need of money. Out of
sympathy the Complainant transferred sum money to the
account of Accused. It is further submitted that the Accused
also obtained the gold jewellery belongs to the relatives of the
Complainant and pledged the same to obtain loans in his name
and in the name of his brother Sri Sunil Kumar H.N.
Thereafter he failed tor repay the said amount and then the
lender was issued notice for repayment of loan and auctioning
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C.C.No.56124/2023
the jewellery. Thereafter the Complainant cleared the jewellery
loan and released the said jewellery.
12. It is further submitted that after adjusting for
repayment made by the Accused, the Accused was still liable to
repay the Complainant a sum of Rs.12,09,642/-. The Accused
has also requested the Complainant for small sums of money
which were paid by the Complainant by way of cash. Over the
period of 3 years, the Complainant totally lent the Accused a
sum for Rs.3.5 lakhs by way of cash. The Accused even failed
to repay the same to the Complainant. Upon his repeated
request and demands for repayment of the said amount, the
Accused issued a post dated Cheque bearing No.000063
dtd.28.11.2022 for Rs.15,60,000/- drawn on HDFC Bank,
Vidya Deep College Building, Ulsoor Road branch, Bengaluru
and requested the Complainant to present the same in the first
week of December 2022, which was dishonoured for “funds
insufficient” on 9.12.2022. Thereafter, the complainant has
got issued demand notice to the Accused on 31.12.2022, by
RPAD. But the notice was returned with a postal shara
“returned to sender addressee moved” and thereafter issued
one more notice and the same was also returned with a shara
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C.C.No.56124/2023
‘A/d left R/sender’ on 3.1.2023. Despite knowledge of notice,
the Accused has neither paid the Cheque amount nor replied
to the notice. Hence, the Complainant has filed present
complaint against the Accused for the offence punishable
u/Sec.138 of N.I. Act.
13. In order to bring home the guilt of the accused, the
Complainant himself examined as PW1 and reiterated the
contents of Complaint and relied Ex.P1 is original Cheque
No.000063 dtd.28.11.2022, Ex.P2 is the bank endorsement,
Ex.P3 is the office copy of legal notice issued by the
Complainant to the Accused 31.12.2022, Ex.P4 and 5 are the
postal receipts, Ex.P6 and 7 are the returned postal envelopes,
Ex.P8 and 9 are the No Due Certificates and Ex.P10 to 12 are
receipts, Ex.P13 is the HDFC Bank account statement and
Ex.P14 Union Bank statement.
14. The documents produced by the complainant of course
established that the complainant meets out the procedural
requirements of Section 138 of Negotiable Instrument Act, but
it is to be considered whether all these documents establish
the offence committed by the accused.
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C.C.No.56124/2023
15. On perusal of the oral and documentary evidence
placed by the complainant, it reveals that the present
complaint is filed well within time in accordance with the
provisions of Negotiable Instruments Act. Moreover, there is no
dispute with regard to taking cognizance of the offence
punishable under Section 138 of N.I. Act.
16. The Negotiable Instruments Act raises two
presumptions. One contained in Section 118 and the other in
Sec. 139 thereof. For the sake of convenience Sec 118(1) of the
N.I. Act is extracted here below:
118. Presumptions as to negotiable Instruments —
Until the contrary is proved, the following presumptions shall
be made;–
(a) of consideration that every negotiable
instrument was made or drawn for consideration, and
that every such instrument, when it has been
accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for
consideration.
2) To (g) . . . . . . . . . . . .
Provided that where the instrument has been obtained
from its lawful owner, or from an person in lawful custody
thereof, by means of an offence of fraud, or has been obtained
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C.C.No.56124/2023
from the maker or acceptor thereof by means of an offence of
fraud, or for unlawful consideration, the burden of proving that
the holder is a holder in due course lies upon him”.
Further Section 139 of the Negotiable Instruments Act
reads as under;
“139, Presumption in favour of holder. It shall
be presumed, unless the contrary is proved, that
the holder of a cheque received the cheque, of the
nature referred to in section 138, for the discharge,
in whole or in part, of any debt or other liability.”
17. Scope and ambit and function of the presumption
U/s 118(a) and Sec 139 of NI Act came to be considered by the
Hon’ble Apex Court of Indian in Krishna Janardhan Bhat
Vs Dattatraya G.Hegde (2008 NIAR (Criminal 151) The
Supreme Court has laid down the law in the following
phraseology.
“D Negotiable Instruments Act 1881, Secs. 139,
138–Presumption under-same arises in regard to
second aspect of the matter provided under Sec
138–Existence of legally enforceable debt is not a
matter of presumption under Sec 139- It merely
raises presumption in favour of a holder of the
cheque that the same has been issued for
13
C.C.No.56124/2023discharge of any debt or other liability – Merely an
application of presumption contemplated under
Section 139 of N.I.Act should not lead to injustice
or mistaken conviction.”
18. Further, said decision was followed by Hon’ble High
Court of Karnataka in Kempanarasimhaiah Vs
P.Rangaraju & Others (2008 (5) KCCR 3371). Relevant
paragraph of the said judgment reads as under: –
“12. As to the provisions of Sections 138 of N.I.Act,
the following principles emerge from the above
observations of Hon’ble Supreme Court at para Nos.
21, 23, 25, 26 and 34 of its Judgment in the above
said case of Krishna Janardhan Bhat Vs Dattatraya
G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption
that the cheque was issued towards discharge in
whole or in part in any debt or other liability, which
presupposed legally enforceable debt. Existence of
legally recoverable debt is not a matter of
presumption under Section 139 of the Act. It merely
raises a presumption in favour of a holder of the
cheque that the same has been issued for discharge
of any debt or other liability.” (para 21)
(ii) The question as to whether the presumption stood
rebutted or not, must be determined keeping in view
14
C.C.No.56124/2023the other evidences on record. Where the chances of
false implication cannot be ruled out, the background
fact and the conduct of the parties together with their
legal requirements are required to be taken into
consideration. (para 26)
(iii) An accused, for discharging the burden of proof
placed upon him under a statute, need not examine
himself. He may discharge his burden on the basis
of the materials already brought on records (para 23)
(iv) Standard of proof on the part of an accused and that
of the prosecution in a criminal case is different.
Further more where as prosecution must prove the
guilt of an accused beyond all reasonable doubt, the
standard of proof so as to prove a defence on the part
of an accused is “preponderance of probabilities'”
(para 23 & 25)
(v) Inference of preponderance of probabilities can be
drawn not only from the materials brought on
records by the parties but also by reference to the
circumstances upon which he relies (para 25)
(vi) Other important principles of legal jurisprudence,
namely presumption of innocence as human rights
and the doctrine of reverse burden introduced by
Section 139 should be deliberately balanced (para 34)
19. Thus from the observations extracted above, it is clear
that presumption Under Section 139 of the N.I,.Act is only to
15
C.C.No.56124/2023
the extent that the cheque was drawn for discharge in full or in
part of any debt or other liability and the said presumption do
not relate to the existence of legally enforceable debt or liability.
Therefore, before drawing the presumption under section 139
of the N.I.Act, it is the duty of the Court to see whether or not
the complainant has discharged his initial burden as to
existence of legally enforceable debt. No doubt, as per Section
118(a) of the Act, there is a rebuttable presumption that every
negotiable instrument, is accepted, endorsed, negotiated or
transferred was accepted, endorsed, negotiated or transferred
for consideration.”
20. Factual matrix of the case is required to be tested on
the anvil of principles emerging from the above-referred
decisions.
21. The defence taken by the Accused is that the cheque
which theft by the Complainant from his house and misused
the same and filed false complaint against him.
22. To substantiate the claim, the Complainant examined
himself as PW1. He deposed that, he is a store owner in
Bengaluru city and operating business for many years and
16
C.C.No.56124/2023
Accused is his friend has been known to him from many years.
It is further deposed that, prior to his marriage the Accused
had approached and informed that, he was in need of money
and regularly and continuously seek small amount for various
individual expenses and due to sympathy Complainant
transferred on every occasion a sums to Accused to his bank
account. It is further deposed that, the Accused also obtained
and borrowed the gold jewellery belongings to the relative of the
Complainant and pledged the said jewellery in the name of his
brother Sri Sunil Kumar H.N. and failed to repay the said loan.
Thereafter the lender issued notice tot he said jewellery would
be sold to the clear the liabilities. Thereafter the Complainant
had cleared the gold and released the said jewellery which
belongings to his mother and sister. It is further deposed that,
thereafter after adjusting the repayment made by the Accused,
the Accused still liable to pay Rs.8,20,353/- towards the
amount transferred from bank accounts and Rs.2,92,386/-
towards the principal amount and Rs.96,903/- towards
interest occurred on the gold loan availed by the Accused. It is
further deposed that, the Accused also requested small amount
which were paid by cash over the period of 3 years, the total
17
C.C.No.56124/2023
lent cash amount of Rs.3.5 lakhs by the Complainant which
also failed to repay by the Accused. It is further deposed that,
the Accused was due of said amount and started ignoring the
phone calls of Complainant and changed his phone number
and went missing. It is further deposed that, after making
many enquiries, he was found in the house of his in-laws at
Ramanagar district and the Complainant demanded and
requesting to repay the amount. Then the Accused has issued
Ex.P1 cheque for Rs.15,60,000/- and requested that it will be
depositing in the first week of December 2022. It is further
deposed that, as per the instruction the Complainant
presented the said cheque which was dishonoured with reason
“funds insufficient” as per Ex.P2. It is further deposed that,
thereafter the Complainant got issued legal notice to the
Accused as per Ex.P3 which was unserved with reason
“addressee left/moved, returned to sender” as per Ex.P6 and 7.
It is further deposed that, inspite of knowledge of notice,
neither Accused paid the cheque amount nor replied the
notice.
23. Considering the oral and documentary evidence
placed the Complainant, it presumed that, Ex.P1 cheque was
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C.C.No.56124/2023
issued by the Accused towards discharge of legally enforceable
debt and liability. To rebut the presumption the learned
Counsel for accused cross examined the PW1 in full length. In
the cross-examination Complainant stated that, he was
running tea shop near Manipal Centre and also doing vehicle
parking business and also he know Mr. Vijaya Kumar who also
running parking business. He further stated that, Mr.Vijay
Kumar was paid Rs.30,000/- per month for the parking
business. It is further stated that the Accused was known to
him since from 15-16 years as the Accused was parked the
vehicle in the parking of Complainant and go to his office. He
admits that the Accused is s working Union Asset Pvt. Ltd.
Company which is near by Manipal. He further stated that he
visited the house of Accused about 50-60 times at Jalahalli.
He further stated that on 31.12.2022 the Accused residing at
Ramanagar. He further stated that on 31.12.2022 he was not
residing in Jalahalli. He further stated that since he was sent
the notice to Jalahalli, therefore it was not served. During the
course of cross-examination Ex.P6 and 7 returned postal
envelopes are opened and original notices were marked at
Ex.P6(a) and Ex.P7(a). He further admits that, Accused,
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C.C.No.56124/2023
Mr. Vijay Kumar and Vinod Kumar and himself were friend. He
further admits that, prior to the said transaction Mr. Vijay
Kumar, Vinod Kumar and himself were borrowed the amount
from the Accused and they will return to the bank account of
the Accused. He further admits that since all 4 members are
friends and oftenly visited the respective their houses. In the
cross-examination he stated that he does not know that
Accused was helped Mr.Vijay Kumar to borrow the loan from
Bajaj Finance. He further admits that, Mr.Vijay Kumar was
borrowed amount of Rs.3,24,000/- from Bajaj Finance and
said EMI was paid by the Complainant and same is transferred
to the account of Accused. He further stated that he have no
documents to show that he was paid Rs.3,50,000/- by cash to
the Accused. He further stated that Ex.P8 and 9 were produced
by him to show that, by pledging the gold jewellery and took
money and same is paid to the Accused. It is further stated
that Mr. Sunil Kumar is brother of Accused. He further stated
that in the month of December 2022 the Accused was residing
at Channapatna. He further stated that he issued legal notice
to the Accused to Channapatna address also which was
mentioned in the marriage invitation card of the Accused. He
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C.C.No.56124/2023
further stated that Accused was also residing at Kengeri and he
visited the house of the Accused at Kengeri about 2-3 times. He
further stated that he transferred Rs.13 to 14 lakhs to the
Accused account at HDFC bank. He further stated that Ex.P1
cheque was written by the Accused. He further stated that
after signing the cheque his pen ink was empty and he written
the cheque by another pen. It is denied that the Accused was
not borrowed any amount from him and cheque which was
stolen by the Complainant and misused the same by filing of
this complaint.
24. Considering the oral and documentary evidence
placed by both parties, it is not denied that Ex.P1 cheque
belongs to the account of Accused and also not denied his
signature on the cheque. The only defence taken by the
Accused is that, Ex.P1 cheque was stolen by the Complainant
from his house and misused the same and another defence
taken by the Accused is that the notice sent by the
Complainant to the Accused was wrong address. The
Complainant intentionally sent the notice to the wrong address
of the Accused by knowing that the same will not be served to
the Accused.
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C.C.No.56124/2023
25. During the course of arguments, the learned counsel
for Accused submits that, it is possible for the drawer of the
cheque to give a blank cheque signed by him to the said
cheque being filled up at a subsequent point in time and
presented for payment by the drawer. There are no provisions
in the N.I. Act which either defines the differences in the
handwriting or the ink pertaining to the material particulars
filled up in the comparison with the signature thereon as
consisting a material alteration for the purpose of Sec.87 of N.I.
Act, what, however, is essential is that the cheque must have
been signed by the drawer. If the signature is altered or does
not tally with the normal signature of the make, that would be
material alteration. Therefore, as long as the cheque has been
signed by the drawer, the fact that filling the details in the
blank cheque prese does not attract the provision of forgery.
26. On perusal of Ex.P1 cheque there is no material
alteration either in the signature or in the material written in
the cheque. Further on careful perusing the Ex.P1 cheque the
signature is by one ink and other writing is another ink, which
is admitted by the Complainant in his cross-examination. But,
the Accused has not denied that the signature appeared on
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C.C.No.56124/2023
Ex.P1 was not belongs to him. Further he also denied that
Ex.P1 cheque not belongs to him.
27. In this regard the learned counsel for Complainant
relied on ILR 2001 KAR 4127 in the case S.R. Muralidhara
V/s. Ashok Kumar wherein paragraph No.5, 7 8 & 9 the
Hon’ble High Court held that,
5- Similarly the trial court has made much
about the difference in ink. Admittedly, a cheque is
issued bearing signature of the Accused. This fact is
beyond dispute. It is the contention of the defence
that, blank cheques issued for the business
transactions have been illegally converted as a
subject matter of this case fastening false liability.
The admission made by the Complainant about his
association with the business has been stretched too
far, to infer and attribute manipulative acts on the
part of the Complainant. The said circumstances
cannot take anywhere near the defence theory to
appreciate that, in view of such association, the
Complainant indulged in dishonest manipulative
acts. The circumstances of the Complainant’s
association with the business may also be a valid
circumstances to believe the Complainant’s case of
parting of funds as alleged.
7- It is not objectionable or illegal in law to
receive inchoate Negotiable instrument duly signed
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C.C.No.56124/2023
by the maker deposit the material particulars are
kept blank if done with an understanding and giving
full authority to the payee to fill up the material
contents as agreed upon. Such a course of action in
law cannot vitiate the translation nor can invalidate
the negotiable instrument issued and such
transaction fully binds the maker of the Negotiable
Instrument Act to the extent it purports to declare.
This is explicit from the provisions of Sec.20 of N.I.
Act which reads thus;
“Inchoate stamped instruments ;- Where one
person signs and delivers to anoher a paper stamped
in accordance with law relating to Negotiable
Instruments then in force in India and either wholly
blank or having written thereon an incomplete
Negotiable Instrument, he thereby gives prima facie
authority to holder thereof to make or complete, as
the case may be, upon it a Negotiable Instrument, for
any amount specified therein and not exceeding the
amount covered by the stamp. The person so signing
shall be liable upon such instrument, in the capacity
in which he signed the same, to any holder in due
course for such amount;- provided that no person
other than a holder in due course shall recover from
the person delivering the instrument anything in
excess of the amount intending by him to be paid
thereunder.
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C.C.No.56124/2023
8- By the very fact that a document executed
is inchoate with regard to some material particulars
would not render such contract invalid nor make the
instrument illegal or inadmissible. Voluntarily, if a
person were to deliver an inchoate instrument
authorizing the receiver to fill up the material
contents as agreed upon, the cheque does not get
tainted as inadmissible nor it amounts to tampering
with the material particulars.
9- In the present case as observed above, there
is no categorical defence version, it is only by
conjunctures and surmises, a case is made out from
the difference in ink between the signature of the
cheque and the other handwritten contents. The
Accused who has drawn the cheque has not denied
the contents of the cheque nor has made out any case
that, it does not bear his handwriting and signature.
Therefore, on facts also, there is no justification for
the trial court to have come to the conclusion
adversely against the Complainant on this aspect.
28. In the present case also the defence taken by the
Accused is that the cheque was stolen by the Complainant
from his house and filled up himself by misusing the cheque.
Further in the cross-examination taken defence that signature
is in one ink and other material handwriting for another ink.
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C.C.No.56124/2023
As above, principles laid down in the above decision it amply
applicable to this case where the signed blank cheque handed
over by the Accused by given authority to the payee for written
the agreed amount. Therefore the contention taken by the
Accused is not sustainable. Further for stolen of cheque, the
Accused has not taken any legal action against the
Complainant i.e., by way of lodging the police complaint
against the Complainant for stolen of his cheque. Further, after
dishonour of cheque also, the Accused has not taken any legal
action against the Complainant. Therefore, it presumed that
the Ex.P1 chwq was issued by the Accused towards discharge
of legally enforceable debt.
29. Ex.P13 and 14 are the bank statement which shows
that the Complainant had transferred the amount to the
Accused. Ex.P10 and 11 are receipts issued by Manipal
Housing Syndicate Ltd. where the loan was taken on jewels.
The both receipts were issued to the Complainant and on
Ex.P10 and 11 are signed by the Complainant where the
borrower name is mentioned as Pradeep C., who is Accused. It
is not denied by the Accused that, Mr.Sunil Kumar was not his
brother. As per Ex.P8 and 9 No Due Certificates issued by the
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Union Bank wherein the loan borrowed in the name of
Mr. Sunil Kumar on gold loan which was cleared by the
Complainant.
30. Another contention taken by the Accused that,
Complainant was sent notice to the wrong address of the
Accused. On perusal of notice, first address was Govindahalli
Grama, Chakkere Anche, Mallur Hobli, Channapatna Taluk,
Ramanagar. Second address is No.257, No.14, 7 th A Cross,
Bahubali nagar, Jalahalli Village, H.P. Gas Agency, Bengaluru
North. As per the contention of the Complainant, Accused
residing at Jalahalli, Kengeri and Ramanagar District. It is
stated by the Complainant that, he was visited the house of the
Accused at Jalahalli about 50-60 times and at Kengeri he
visited about 2-3 times. Further he stated that Channapatna
address was as per the address mentioned in the marriage
invitation card of the Accused. Therefore, all the addresses are
belongs to the Accused where the Accused was residing. In the
complaint and sworn statement, the Complainant clearly
stated that, after borrowing the loan from the Complainant, he
was avoiding the phone calls of the Complainant and Accused
changed his phone number and went missing. After making
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any enquiry the Complainant found out that, the Accused was
hiding in the house of his in-laws. Therefore, the Accused
intentionally changing his residence to avoiding the repayment
of the loan amount of the Complainant. Therefore, the
Complainant has issued notice to the addresses which best
known by him to the correct address where the Accused was
resided or residing. Therefore, the Complainant was sent the
notices to the Accused on correct addresses.
31. As above discussion, it has to be presumed that the
cheque in question was issued by the accused to discharge the
legally recoverable debt or liability. The accused can place
rebuttal evidence so as to show that the cheque was not issued
for consideration. As appreciated supra, accused has failed to
put acceptable and satisfactory evidence to probabilise the
defence. Therefore, there is no question of saying that the
cheque was not issued for liability. Therefore, complainant has
discharged his initial onus laid on him. When he has
discharged his initial onus, it raises presumption U/s 118(a)
and 139 of Negotiable Instruments Act. Accused has failed to
rebut the presumption either in cross-examining PW-1 or in
his evidence.
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32. So, far as sentence and compensation is concern, an
offence punishable under Section 138 of N.I. Act, is a civil
wrong and compensatory in nature, punitive is secondary,
considering, the above settled principle of law with facts and
circumstances of the case, therefore considering the nature
of transaction, duration of pendency, litigation expenses and
as per the order of Hon’ble Appellate Court, I am opinion that,
if sentence of fine of Rs.17,94,000/- (Rupees Seventeen
Lakhs and Ninety-four Thousand only) is imposed that would
meet the ends of justice, accordingly, the accused is hereby
sentenced to pay a fine of Rs.17,94,000/- (Rupees Seventeen
Lakhs and Ninety-four Thousand only), out of that, the
complainant is entitled for sum of Rs.17,89,000/- (Rupees
Seventeen Lakhs and Eighty-nine Thousand only) as
a compensation as per Sec.357(1) of Cr.P.C., remaining
amount of Rs.5,000/-, is to be appropriated to the state, in
case of default the accused shall undergo simple imprisonment
for a period of 6 months. Accordingly, the Point No.1 is
answered in Affirmative.
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33. POINT No.2: In view of discussion held in Point
No.1, I proceed to pass the following:
ORDER
Acting U/S 255(2) of Cr.P.C., the accused is
convicted for the offence punishable Under Section
138 of Negotiable Instrument Act.
Accused is sentenced to pay fine of
Rs.17,94,000/- (Rupees Seventeen Lakhs and
Ninety-four Thousand only) in default to undergo
simple imprisonment for 6 months. Further, it is
made clear that out of fine amount,
Rs.17,89,000/- (Rupees Seventeen Lakhs and
Eighty-nine Thousand only) is to be paid to the
complainant as compensation as per the provision
U/Sec.357(1) of Cr.P.C. and Rs.5,000/- is ordered
to be remitted to the State.
Bail bond stands cancelled.
Supply the free copy of this judgement to
the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me
and then pronounced in the open court on this 7th August, 2025)
PARVEEN A Digitally signed by
PARVEEN A BANKAPUR
BANKAPUR Date: 2025.08.07
17:58:21 +0530 (PARVEEN A BANKAPUR)
XXXIV ACJM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Shankar P.
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque
Ex.P.2 Bank endorsement
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C.C.No.56124/2023
Ex.P.3 Office copy of legal notice
Ex.P.4 & 5 Postal receipts
Ex.P.6 & 7 Unserved Postal covers
Ex.P.6(a) & 7(a) Original notices
Ex.P.8 & 9 No Due Certificate
Ex.P.10 to 12 Receipts
Ex.P.13 & 14 Bank Statements
3. Witnesses examined on behalf of Accused: NIL
4. Documents marked on behalf of Accused :NIL
Digitally signed by
PARVEEN A PARVEEN A BANKAPUR
BANKAPUR Date: 2025.08.07
17:58:27 +0530
(PARVEEN A BANKAPUR)
XXXIV ACJM, BENGALURU.