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Bangalore District Court
Smt.Mamta Manjunath vs Mrs. Kavya on 6 May, 2025
KABC030170982019
IN THE COURT OF THE XV ADDL. CHIEF JUDICIAL
MAGISTRATE, AT BANGALORE
Dated this the 6th day of May, 2025
PRESENT:Smt. Namrata Rao.K.S
B.A.L, L.L.B., M.B.L.,
XV ACJM,.
BENGALURU.
C.C.No.5682 of 2019
Complainant : Smt. Mamta Manjunath
Aged about 50 years,
R/at No.204A,
Viva Hall Mark Society,
Bavdhan,
Pune-411021.
(By Sri. S. Mahesh, Advocate)
V/s
Accused : Mrs. Kavya. S
Aged about 35 years,
W /o Alok Govindaraju
Parashuram Pura,
At No.483, 2nd Floor, 11th cross,
Sadashivanagar,
Bangalore-560 080.
(By Sri. D. Kodhandra Rama,
Advocate )
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C.C.No.5682/2019
1. Cognizance taken on 07.03.2019
2. Plea recorded on 16.12.2019
3. Offence alleged U/Sec.138 of N.I Act
4. Evidence Commenced on 07.03.2019
5. Evidence closed on 20.07.2024
6. Judgment Pronounced 6th Day of May, 2025
on
7. Final Order Accused is convicted
XV ACJM, Bengaluru.
JUDGMENT
This case has arisen as a result of the
complainant filing this complaint against the
accused under Section 138 of the Negotiable
Instruments Act.
2. The relevant facts required to adjudicate
this case are as follows:
The accused is the niece of the former
husband of the complainant and therefore the
3
C.C.No.5682/2019complainant is acquainted with the accused since
25 years. The complainant resided in Pune and
was into her business in fashion designing. She
separated from her husband and she was awarded
with permanent alimony. Quite naturally the
accused was aware of the permanent alimony
received by the complainant. She and her husband
went to the complainant and requested for an
amount of Rs.35,00,000/- citing huge financial loss
which would end her family. As the accused
promised to return the money very soon and she
would also pay some interest at the rate inflicted
by the bank. Therefore, the complainant gave an
amount of Rs.15 lakhs to the accused through
RTGS. Despite sufficient time, the accused did not
repay the amount and therefore upon insistence
the accused issued the cheque bearing No.173137
dated 10.10.2018 for an amount of Rs.15 lakhs
4
C.C.No.5682/2019drawn on IDBI Bank, Dollars colony, Ashwathnagar
branch, Banglore.
3. Upon presentation of the said cheque for
encashment, it was dishonoured for ‘Payment
stopped by the drawer”. The same was informed by
the complainant and the accused requested the
complainant to represent the cheque. When the
complainant again presented the said cheque for
encashment. Once again the same was
dishonoured but now for the reason “drawer’s
signature differs”. Legal notice dated 21.01.2019
was issued. Even after the expiry of statutory
period, the accused did not repay the amount.
Therefore, invariably this complaint was filed.
4. On presentation of the complaint, the
cognizance for the offence was taken. Pursuant to
5
C.C.No.5682/2019
the issuance of the summons, the accused made
appearance before this court and the accused is on
bail throughout the trial.
5. On compliance of Section 207 of Cr.P.C,
the plea was recorded. The accused pleaded not
guilty, claimed defense.
6. The Complainant has examined himself as
PW.1 and the documents Ex.P1 to Ex.P10 are
marked. The statement of the accused u/S 313
statement was recorded. The accused himself
examined as DW.1 but no documents are marked
on her behalf.
7. I have given a careful consideration to the
arguments canvassed by the counsel for both sides.
I have carefully perused the records.
6
C.C.No.5682/2019
8. In view of the materials placed on
record, The following points arise for my
consideration:
1. Is there a legally recoverable
debt?
2. Whether the complainant
proves that the accused has
committed the offence
punishable under section
138 of N.I.Act?
3. What Order?
9. My findings for the above points are:
Point No.1 : In the Affirmative
Point No.2: In the Affirmative
Point No.3: As per the final order
for the followingREASONS
10. POINT No.1: It is the testimony of PW.1
that the accused is the niece of her former
7
C.C.No.5682/2019
husband, Manjunath. This relationship is not
disputed. Therefore consequently the acquaintance
is also not disputed.
11. PW.1 further testifies that she is a
resident of Pune and is into the business of fashion
designing. The accused does not dispute this fact.
PW.1 further testifies that she separated from her
husband Manjunath and she was awarded with
permanent alimony. The accused being the relative
of the husband of the complainant naturally came
to know about this award. This aspect of
separation and the award permanent alimony is
also not disputed by the accused.
12. Pw.1 further testifies that the accused
and her husband came to the complainant and
narrated that they have suffered huge financial loss
and this loss would end from finally. Therefore
8
C.C.No.5682/2019
they sought for a loan of Rs.35 lakhs from the
complainant. Upon the promise of the accused and
her husband that they would return the money
very soon, the accused was advanced with a loan
of Rs.15 lakhs through RTGS. In order to
substantiate the passing of the loan amount, the
complainant has produced the statement of
account dated 02.01.2017 maintained at Tumkur
Grain Merchant Bank Limited, Tumkur marked at
Ex.P7. I have gone through Ex.P7. Ex.P7 reflects
that an amount of Rs.15,00,000/- was transferred
to the account of the accused. That apart the
accused does not dispute the transfer of the
amount of Rs.15 lakhs. What she disputes is that
this amount of Rs.15 lakhs was not the loan
amount but was an investment made by the
complainant for starting a Boutique business
jointly by the accused and the complainant in
9
C.C.No.5682/2019
Bangalore.
13. I have gone through the cross
examination of PW1 carefully. Series of questions
have been put to PW.1 regarding the purpose for
which this 15 lakhs was remitted from her account
and transferred into the account of the accused.
The relevant portion of the cross examination is at
page-11, para-6, line- 3 runs as under:
” ನನ್ನ ಮತ್ತು ಆರೋಪಿಯ ನಡುವೆ
ಬೋಟಿಕ್ ಬುಸಿನೆಸ್ ಮಾಡುವ ಸಂಬಂಧ
ಮಾತುಕತೆ ಆಗಿದ್ದು ಅದಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ನಾನು
ಹಣ ನೀಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ.”
” ಸದರಿ ವ್ಯವಹಾರ ಸರಿಯಾಗಿ
ನಡೆಯದ ಕಾರಣ ಹಣವನ್ನು ಕಂತುಗಳಲ್ಲಿ ವಾಪಸ್ಸು
ಮಾಡುತ್ತೇನೆ ಎಂದು ಹೇಳಿದ್ದರು ಎಂದರೆ
ಸರಿಯಲ್ಲ”
Whatever the purpose for which the amount
was transferred, it is not in dispute that an amount
10
C.C.No.5682/2019
of Rs.15 lakhs has come to the account of the
accused from that of the complainant. In the result
the accused admits the receipt of Rs.15 lakhs.
14. The Ex.p1 cheque and the signature
therein is not disputed. The relevant portion of the
cross examination is at Para-14 of the cross
examination of DW.1.
“ನಿಪಿ.1ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನದಾಗಿರುತ್ತದೆ
ಎಂದರೆ ಸರಿ. ನಿಪಿ.1ನ್ನು ನಾನು ಪಿರ್ಯದಿಗೆ
ನೀಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿ
ಮುಂದುವರಿದು ಖಾಲಿ ಸಹಿ ಮಾಡಿದ ಚೆಕ್ಕನ್ನು
ನೀಡಿದ್ದೇನು ಎಂದು ಹೇಳುವರು. ನಾನು ಚೆಕ್ಕನ್ನು
ಸಂಪೂರ್ಣವಾಗಿ ಭರ್ತಿ ಮಾಡಿ ನೀಡಿರುತ್ತೇನೆ
ಎಂದರೆ ಸರಿಯಲ್ಲ .”
Therefore invariably a presumption arises
under sec.139 of the N.I Act. At this juncture I rely
upon the decision of the Hon’ble Apex Court in
Rangappa V/s Mohan reported in 2010(11)
11
C.C.No.5682/2019
SCC 441. It is held that once the cheque relates
to the account of accused and he accepts and
admits the signature on said cheque, then the
initial presumption as contemplated under
Sec.139 of N.I.Act has to be raised by the court in
favour of the complainant.
15. The defence raised by the accused are as
under:-
1. The accused had issued the blank signed
cheque and it was forcefully obtained by the
complainant.
2. The accused has repaid an amount of
Rs.5,35,000/- to the complainant out of Rs.15
lakhs and she is due only to an amount of
Rs.9,65,000/-. This complaint filed for an amount
of Rs.15 lakh based on Ex.P1 is therefore not
maintainable.
12
C.C.No.5682/2019
Blank Signed Cheque:-
16. The Hon’ble Apex Court in in Sripathi
Singh Vs State of Jharkhand reported in 2021
SCC Online SC 1002 at para 17 has held as
under:
“17.When a cheque is issued and is
treated as ‘security’ towards repayment of
an amount with a time period being
stipulated for repayment, all that it
ensures is that such cheque which is
issued as ‘security’ cannot be presented
prior to the loan or the installment
maturing for repayment towards which
such cheque is issued as security. Further,
the borrower would have the option of
repaying the loan amount or such
financial liability in any other form and in
that manner if the amount of loan due
13
C.C.No.5682/2019
and payable has been discharged within
the agreed period, the cheque issued as
security cannot thereafter be presented.
Therefore, the prior discharge of the loan
or there being an altered situation due to
which there would be understanding
between the parties is a sine qua non to
not present the cheque which was issued
as security.”
17. Further in Oriental Bank of
Commerce V/s Prabod Kumar Thivari in
Criminal Appeal No 1260 of 2022 (Arising out of
SLP (Crl) No 9836 of 2019) dated 16.08.2022 has
held as under:
“14. In Bir Singh v. Mukesh Kumar, after
discussing the settled line of precedent of this
Court on this issue, a two-Judge Bench held:
33. A meaningful reading of the provisions of
the Negotiable Instruments Act including, in
14
C.C.No.5682/2019particular, 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.
34. If a signed blank cheque is voluntarily
presented to a payee, towards some payment,
the payee may fill up the amount and other
particulars. This in itself would not invalidate
the cheque. The onus would still be on the
accused to prove that the cheque was not in
discharge of a debt or liability by adducing
evidence.
[…]
36. Even a blank cheque leaf, voluntarily
signed and handed over by the accused,
which is towards some payment, would
attract presumption under Section 139 of the
Negotiable Instruments Act, in the absence of
any cogent evidence to show that the cheque
15
C.C.No.5682/2019was not issued in discharge of a debt.”
The above view was recently reiterated by a
three-Judge Bench of this Court in Kalamani
Tex v. P. Balasubramanian.
15. A drawer who signs a cheque and hands it
over to the payee, is presumed to be liable unless
the drawer adduces evidence to rebut the
presumption that the cheque has been issued
towards payment of a debt or in discharge of a
liability. The presumption arises under Section
139.”
18. What can be understood from these two
decisions is this. The accused cannot escape from
the clutches of the liability by simply taking up the
contention that he had issued a blank signed
cheque. An user of the negotiable instruments will
be well acquainted with the effects of issuing a
blank signed cheque and the potential to misuse
it. Even after having the knowledge if he issues a
blank signed cheque it inclines this court to infer
16
C.C.No.5682/2019
that with all acceptance of taking the risk, he has
issued the cheque. Therefore the contention of the
accused that he had issued a blank signed cheque
alone cannot make him free from the liability
under section 138 of the NI Act.
19. It is the defence of the accused that she
had given a blank signed cheque to the accused
and the rest has been filled up by the complainant.
This line of defence is reflected not only in her
cross examination of PW.1 but also at the time of
her examination-in-chief. I have gone through the
entire records once again carefully. It is not in
dispute that the accused has not replied to the
legal notice marked at Ex.P4. At the first instance,
when the accused appeared before this court and
was read over the substance of accusation she has
answered it in simple denial. At the time of cross
17
C.C.No.5682/2019
examination of PW.1, the accused took up the
stand that the cheque was forcefully obtained by
the complainant. The relevant portion of the cross
examination is at para-13, line-3 :
“ಆರೋಪಿ ನಾನು 15 ಲಕ್ಷ ರೂಗಳನ್ನು
ಅವರಿಗೆ ವರ್ಗಾವಣೆ ಮಾಡಿದ ನಂತರ ಪ್ರತೀ
ತಿಂಗಳು ನನ್ನ ಖಾತೆಗೆ ಹಣ ಸಂದಾಯ
ಮಾಡಿರುವುದರಿಂದ ಅದು 15 ಲಕ್ಷ ಮರು
ಪಾವತಿ ಮಾಡುವುದಕೋಸ್ಕರ ವರ್ಗಾವಣೆ
ಮಾಡಿದ ಹಣ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿ
50000 ದಿಂದ 100000 ರೂ ಮಾತ್ರ ಹಣ
ಕೊಡುವುದು ಬಾಕಿ ಉಳಿದಿದ್ದು ಅವರಿಂದ
ಒತ್ತಾಯ ಪೂರ್ವಕವಾಗಿ ಖಾಲಿ ಸಹಿ ಮಾಡಿದ
ಚೆಕ್ಕನ್ನು ಪಡೆದಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ .”
20. During the course of cross-examination a
question is also put that the accused had issued a
blank cheque and the complainant has forged the
signature of the accused and has also filled the
rest writings in the cheque. The relevant portion
of the cross examination is at para-13, line-9:
18
C.C.No.5682/2019
“ಆರೋಪಿ ಹಣ ಮರುಪಾವತಿ ಮಾಡಿದ
ನಂತರ ಅವರು ನೀಡಿದ ಚೆಕ್ಕುಗಳನ್ನು ನಾನೇ ಭರ್ತಿ
ಮಾಡಿ ಸಹಿಯನ್ನು ಸುಳ್ಳು ಸೃಷ್ಟಿ ಮಾಡಿ ಅಕ್ರಮ
ಲಾಭ ಪಡೆದುಕೊಳ್ಳುವ ಉದ್ದೇಶದಿಂದ ಸುಳ್ಳು
ಪ್ರಕರಣ ದಾಖಲಿಸಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ .”
21. Further at the later period of cross
examination the stand of the accused is that
forcefully the cheque of the accused and her
husband were taken and the cheques were filled
up by the complainant for unlawful gain. The
relevant portion of the cross examination is at
page-15 , para-2 :
“ನಾನು ನೀಡಿದ 15 ಲಕ್ಷ ಹಣದಲ್ಲಿ
ಹೆಚ್ಚಿನ ಭಾಗ ಆರೋಪಿ ಮರು ಪಾವತಿ ಮಾಡಿದ್ಕು
ಸ್ವಲ್ಪ ಹಣ ಕೊಡುವುದು ಮಾತ್ರ ಬಾಕಿ ಇದ್ದು
ಅದರ ಸಂಬಂಧ ಜುಲೈ 2018 ರಲ್ಲಿ
ಒತ್ತಾಯಪುಾರ್ವಕವಾಗಿ ಆರೋಪಿಯ ಹಾಗೂ
ಅವರ ಗಂಡನ ಖಾಲಿ ಚೆಕ್ಕುಗಳನ್ನು ಪಡೆದಿರುತ್ತೇನೆ
ಎಂದರೆ ಸರಿಯಲ್ಲ. ಚೆಕ್ಕಿನಲ್ಲಿರುವ ಸಂಗತಿಗಳನ್ನು
ನಾನೇ ಭರ್ತಿ ಮಾಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ.
19
C.C.No.5682/2019
ನಾನು ಅಕ್ರಮ ಲಾಭ ಪಡೆಯುವ ಉದ್ದೇಶದಿಂದ
ಆರೋಪಿಯ ಮೇಲೆ ಸುಳ್ಳು ಪ್ರಕರಣ
ದಾಖಲಿಸಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ .”
22. During the statement u/sec.313 of the
Cr.P.C for the question No.3 it is answered that
the cheque was given for the purpose of security.
ಪ್ರಶ್ನೆ No.3: ಫಿ.ಸಾ-1 ಮುಂದುವರಿದು
ಸಾಲವನ್ನು ತೀರಿಸುವ ಸಲುವಾಗಿ ನೀವು ಐಡಿಬಿಐ
ಬ್ಯಾಂಕ್, ಅಶ್ವತನಗರ ಶಾಖೆ ದಿ.10.10.2018 ಚೆಕ್
ನಂ.173137 ವನ್ನು ಪಿರ್ಯಾದಿಗೆ ಕೊಟ್ಟೀದ್ದೀರಿ ಎಂದು
ಅವರು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾರೆ. ಇದಕ್ಕೆ ತಮ್ಮ ಉತ್ತರವೇನು?
ಉತ್ತರಃ ಹೌದು. ಆದರೆ ಸದರಿ ಚೆಕ್ಕನ್ನು ಭದ್ರತೆಗಾಗಿ
ನೀಡಿದ್ದೆ. ಅದಲ್ಲದೆ ನನ್ನ ಗಂಡನಿಗೆ ಗೊತ್ತಿಲ್ಲದ ಅದರ
ಒಂದು ಚೆಕ್ಕನ್ನು ನೀಡಿದ್ದೆ”.
23. During her examination-in-chief she
testifies that she had given a blank signed cheque
to the complainant. The relevant portion of the
examination-in-chief is at para-1, Line-18 :
20
C.C.No.5682/2019
” ಆಗ ನಾನು ಅವರಿಗೆ ಒಂದು ಖಾಲಿ ಸಹಿ
ಮಾಡಿದ ಚೆಕ್ಕನ್ನು ನೀಡಿರುತ್ತೇನೆ.
ಪಿರ್ಯಾದಿಯವರು ನನ್ನ ಒಂದು ಚೆಕ್ಕು ಮಾತ್ರ
ಸಾಕಾಗುವುದಿಲ್ಲ. ಗಂಡನ ಚೆಕ್ಕನ್ನು ಸಹ ಕೊಡು
ಎಂದು ಕೇಳಿರುತ್ತಾರೆ .”
24. During the course of cross examination at
Para-2 when questioned that she has issued the
cheque in discharge of the legally recoverable debt
her answer is that she has not recieved any loan
from the complainant as the complainant had
asked for a cheque she had given it. The relevant
portion is at para-2:
“ದೂರುದಾರರಿಗೆ ಬಾಕಿ ನೀಡಬೇಕಾದ
ರೂ.15 ಲಕ್ಷ ಸಾಲದ ಬಾಬ್ತು ನಿಪಿ.1 ನ್ನು
ನೀಡಿದ್ದೇನೆ ಎಂದರೆ ನಾನು ಯಾವುದೇ ಸಾಲ
ತೆಗೆದುಕೊಂಡಿರಲಿಲ್ಲ, ಅವರು ಚೆಕ್ಕು ಕೇಳಿದ್ದರು
ನಾನು ನೀಡಿದ್ದೇನೆ .”
25. By going through the statement of the
accused at different period of trial, what can be
21
C.C.No.5682/2019
deduced is this. The accused has been inconsistent
with her defence. At once she says that the
cheque was forcefully taken by the complainant
and she had not affixed signature on the cheque.
The complainant has forged it. Next she says that
she had given it for the purpose of security. At the
next level she says that she has issued a blank
signed cheque and the rest has been filled by the
complainant. At the last she says that as the
complainant had asked for the cheque she had
given it.
26. A person who is not consistent with his
statements at different period of time is certainly
not worthy of belief. If at all she had not given
Ex.P1 cheque to the complainant, her statements
at any period of time would have been the same.
Suppose she had given a blank signed cheque to
22
C.C.No.5682/2019
the complainant she would have been consistent
with her stand that except the signature in the
Ex.P1 cheque all other writings including the
amount are not filled by her. The inconsistent
statement made by the accused simply shows that
she has infact no stand to make and when viewed
from a specs of a common prudent man, her
statements creates a heap of doubt and makes this
court to arrive at the possibility of the issuance of
the cheque marked at Ex.p1 for the amount
received by the accused.
27. In the alternative, when the accused has
admitted the transfer of the amount, the validity
of the blank signed cheque depends on the proof
of the alleged repayment of the amount which is
discussed hereinafter.
23
C.C.No.5682/2019
AMOUNT REPAID:
28. It is the second defence of the accused
that she has repaid the amount to the
complainant. At this juncture, I have gone through
the entire case papers once again carefully.
Needless to state that at the time of recording of
the plea the accused did not whisper about the
repayment of he amount as she now contends.
During the course of cross-examination of PW.1 at
page-13 she states that only an amount of
Rs.50,000/- to Rs.1 lakh was in balance and she
has repaid the entire amount. The relevant portion
of the cross examination is at page-13:
“ಆರೋಪಿ ನಾನು 15 ಲಕ್ಷ ರೂಗಳನ್ನು
ಅವರಿಗೆ ವರ್ಗಾವಣೆ ಮಾಡಿದ ನಂತರ ಪ್ರತೀ
ತಿಂಗಳು ನನ್ನ ಖಾತೆಗೆ ಹಣ ಸಂದಾಯ
ಮಾಡಿರುವುದರಿಂದ ಅದು 15 ಲಕ್ಷ ಮರು
ಪಾವತಿ ಮಾಡುವುದಕೋಸ್ಕರ ವರ್ಗಾವಣೆ
ಮಾಡಿದ ಹಣ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿ
24
C.C.No.5682/201950000 ದಿಂದ 100000 ರೂ ಮಾತ್ರ ಹಣ
ಕೊಡುವುದು ಬಾಕಿ ಉಳಿದಿದ್ದು ಅವರಿಂದ
ಒತ್ತಾಯ ಪೂರ್ವಕವಾಗಿ ಖಾಲಿ ಸಹಿ ಮಾಡಿದ
ಚೆಕ್ಕನ್ನು ಪಡೆದಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ .”
At page-18 of the cross examination of PW.1
the accused states that out of Rs.15 lakhs the
balance is only Rs.9,65,000/-.
" ಆರೋಪಿಯಿಂದ ನನಗೆ ಕೇವಲ
ರೂ.9,65,000 ಮಾತ್ರ ಬರಬೇಕಾಗಿದೆ
ರೂ.15,00,000/- ಗಳಲ್ಲ ಎಂದರೆ ಸುಳ್ಳು .
ಆರೋಪಿಯಿಂದ ನನಗೆ ರೂ.15,00,000/- ಗಳು
ಬರಬೇಕಾಗಿದೆ ಎಂದು ಸುಳ್ಳು ಪ್ರಕರಣ ದಾಖಲಿಸಿ
ಸುಳ್ಳು ಸಾಕ್ಷ್ಯ ನುಡಿಯುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ”.
During the cross examination of PW.1 page
12 the accused states that she has paid the entire
amount of Rs.15 lakhs.
” ಆರೋಪಿ ಫೆಬ್ರವರಿ 2018 ರಿಂದ
2019 ಕೊನೆಯವರೆಗೆ ತಿಂಗಳಿಗೆ 45000
ರೂಗಳಂತೆ ಮತ್ತು ಕೆಲವು ಬಾರಿ ಅದಕ್ಕಿಂತ
ಹೆಚ್ಚಿನ ಮೊತ್ತವನ್ನು ನೇರವಾಗಿ ಖಾತೆಗೆ
25
C.C.No.5682/2019ಹಾಗೂ ಕೆಲವು ಬಾರಿ ಆರ್ ಟಿಜಿಎಸ್
ಮುಖಾಂತರ ವರ್ಗಾವಣೆ ಮಾಡುತ್ತಾ
ಬಂದಿದ್ದು 15 ಲಕ್ಷವನ್ನು ಮರುಪಾವತಿ
ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ .”
At page 10 and 11 of the cross examination
of DW.1 she states that she has paid more than 15
lakhs.
" ಈ ಪ್ರಕರಣದ ವ್ಯವಹಾರ ಅಲ್ಲದೇ
ಆರೋಪಿಯ ಜೊತೆಗೆ ಬೇರೆ ವ್ಯವಹಾರಗಳು
ಇದ್ದವು. ಸಾಕ್ಷಿ ಮುಂದುವರಿದು ಆರೋಪಿ ನನ್ನ
ಕಡೆಯಿಂದ ಬಟ್ಟೆ ಮತ್ತು ಒಡವೆಗಳನ್ನು
ಪಡೆಯುತ್ತಿದ್ದರು, ಅದಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ಹಣ
ವರ್ಗಾವಣೆ ಮಾಡುತ್ತಿದ್ದರು ಎಂದು ಹೇಳುವರು.
ಸದರಿ ವಿಷಯವನ್ನು ನಾನು ಇದೇ ಮೊದಲ
ಬಾರಿಗವೆ ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಹೇಳುತ್ತಿದ್ದೇನೆ
ಎಂದರೆ ಸರಿ. ನೋಟಸಿನಲ್ಲಿ ಮತ್ತು
ಪಿರ್ಯಾದಿಯಲ್ಲಿ ಸದರಿ ವಿಷಯ ನಮೂದು ಇಲ್ಲ
ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿ ಮುಂದುವರಿದು ಸದರಿ
ವ್ಯವಹಾರಕ್ಕೂ ಮತ್ತು ಈ ಪ್ರಕರಣದ
ವ್ಯವಹಾರಕ್ಕೂ ಸಂಬಂಧ ಇಲ್ಲದ ಕಾರಣ
ನಮೂದಿಸಿಲ್ಲ ಎಂದು ಹೇಳುವರು..”
26
C.C.No.5682/2019
29. Once again there is consistency in the say
of the accused as to what quantum of amount has
been paid by her. This itself creates a doubt in the
mind of the Court. If at all she has repaid the
amount to the complainant, what prevented from
her producing of any document which would
substantiate it is not explained. Or atleast she
should have been very specific as to the amount
she has repaid.
30. During the course of cross examination of
PW.1 the witness admits the payment of amount
of Rs.5,35,000/- at various dates from the account
of the accused, her husband and her parents. But
she says that the said payments were pertaining to
different transaction as the accused used to get
clothes and jewelries from the complainant from
Pune to Bengaluru. The relevant portion of the
27
C.C.No.5682/2019
cross examination is at:
“”ದಿ.10.08.2017 ರಂದು ಆರೋಪಿಯ
ತಂದೆ ಆರೋಪಿಯ ಪರವಾಗಿ ರೂ.2,50,000/-
ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಆರೋಪಿಯ
ಪರವಾಗಿ ಅಲ್ಲ. ದಿ.10.08.2017 ರಂದೇ
ಅರೋಪಿಯ ತಾಯಿ ಆರೋಪಿಯ ಪರವಾಗಿ ರೂ.
1,65,000/- ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ
ಆರೋಪಿಯ ಪರವಾಗಿ ಅಲ್ಲ. ದಿ.10.04.2018
ರಂದು ಆರೋಪಿ ನನ್ನ ಖಾತೆಗೆ ರೂ. 45,000/-
ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. ಅದೇ ರೀತಿ
ದಿ.10.05.2018 ರಂದು ಆರೋಪಿ ನನ್ನ ಖಾತೆಗೆ
ರೂ. 45,000/-ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ
ಸರಿ. ದಿ.10.07.2018 ರಂದೂ ಸಹ ಆರೋಪಿ ನನ್ನ
ಖಾತೆಗೆ ರೂ.45,000/-ಗಳನ್ನು ಜಮಾ ಮಾಡಿದ್ದಾರೆ
ಎಂದರೆ ಸರಿ.ಆರೋಪಿ ಹಾಗೂ ಅವರ ತಂದೆ ತಾಯಿ
ಒಟ್ಟು ನನಗೆ ರೂ. 5,35,000/-ಗಳನ್ನು ನೀಡಿದ್ದಾರೆ
ಎಂದರೆ ಹಾಲಿ ಪ್ರಕರಣಕ್ಕೆ ಸಂಬಂಧಿಸಿದ ಹಣ
ಅದಲ್ಲಾ, ಈ ಹಿಂದೆ ಆರೋಪಿ ನನ್ನಿಂದ ವಸ್ತುಗಳನ್ನು
ಖರೀದಿಸಿದ್ದರು, ಅದರ ಬಾಬ್ತು ಹಣ ನೀಡಿದ್ದಾರೆ, ಚೆಕ್ಕು
ನೀಡಿದ ನಂತರ ಯಾವುದೇ ಹಣವನ್ನು ನೀಡಿಲ್ಲ.”
31. Keeping this in mind, I have gone
through the case papers once again carefully.
Ex.P1 cheque is dt:10.10.2018 as per Ex.C1 and
28
C.C.No.5682/2019
the cross examination of PW.1 the last date of
payment is 10.07.2018.
32. The Hon’ble Apex Court in Dhasharath
Bhai Trikambhai Patel v/s Hitesh
Mahendrabhai Patel and another reported in
(2023) 1 SCC 578 if at all any payment is made
from the date of the loan and before the
presentation of the cheque, an endorsement in the
cheque is necessary. If such an endorsement is not
made the complaint is liable to be dismissed. The
counsel for the accused prays to apply the ratio
laid down to the case on hand.
33. Subsequent to the date of issuance of the
cheque, I do not find any evidence placed on
record to show that the accused has repaid the
amount. Therefore, the mandate as contemplated
29
C.C.No.5682/2019
under the Dhasharath Bhai case stated supra is
not applicable to the case on hand. Secondly, if at
all the accused has repaid the a large portion of
the amount or the entire amount as stated by her,
she could have initiated legal action against the
complainant or she could have issued a legal
notice to the complainant for the return of the
cheque. No such due diligence is made out by the
accused.
34. That apart when the entire case papers
are read in between the lines I do not find the
period of time asserted by the accused on which
the accused had issued the cheque to the
complainant. As per Sec.118 of the N.I Act a
presumption has to be raised by this court that the
date that is reflecting in the cheque is the date on
which it was drawn and issued by the accused.
30
C.C.No.5682/2019
35. Suppose the cheque was issued by the
accused way back to the period apart from the
date mentioned in the Ex.P1 cheque, I am unable
to understand what prevented the accused from
disclosing the date on which the said cheque was
issued and as she has repaid the amount
pertaining to this transaction on various dates and
the legally recoverable debt is not to the tune of
amount as mentioned in Ex.P1. No such evidence
is forthcoming from the records.
36. Therefore viewed from any angle, if all
the above evidence is considered as a whole in the
light of the above reported judgment, on the hilt
of preponderance of probablities, I find from the
specs of a common prudent man that the defence
theory that the accused has repaid the loan or a
31
C.C.No.5682/2019
part of the loan seems to be improbable,
unacceptable and stands without any base. The
legally recoverable debt stands probabilised.
Hence, I answer the point No.1 in the
AFFIRMATIVE.
37. Point No.2: The Cheque is dated
10.10.2018. Ex.P2 shows that Ex.P1 was
dishonoured on 17.10.2018 & 26.12.20218 for
Payment stopped by the drawer and Drawers
Signature differs. A legal notice was issued within
the statutory period on 21.01.2019. The
complaint is presented on 28.02.2019. The
complaint is in time and the complainant has
complied with all the requirements of the section
138 of the Negotiable Instruments Act.
38. On the basis of the entire materials on
record, I am of the opinion that the accused has
32
C.C.No.5682/2019
committed an offence under section 138 of the
Negotiable Instruments Act. Accordingly I answer
the POINT NO.2 In The Affirmative.
39. Point No.3: For the foregoing reasons
and in view of the above findings, I pass the
following:
ORDER
The accused is found guilty.
In Exercise of the Powers vested
under section 255(2) of Cr.P.C., the
accused is convicted for the offence
punishable under section 138 of
N.I.Act.
The accused is sentenced to pay
fine amount of Rs.15,10,000/-
(Fifteen lakhs Ten Thousand Only) In
default of payment of fine, the
accused shall undergo SI for three
months.
In Exercise of the powers vested
under Sec.357(1)(b) of Cr.P.C., out
of the fine amount, the complainant
33
C.C.No.5682/2019is entitled for Rs.15,05,000/- (Fifteen
Lakhs Five Thousand Only ) towards
compensation.
In Exercise of the powers vested
under Sec.357(1) (a) of Cr.P.C., the
remaining fine amount of Rs.5,000/-
(Rupees Five Thousand only) is to be
remitted to the state.
The personal bond executed by
the accused shall stand cancelled and
the cash security deposited by the
accused shall be refunded to the
accused after the appeal period is
over.
A copy of the above judgment
shall be supplied to the accused
free of cost.
(Dictated to the Stenographer, transcribed and typed by her, corrected
and signed and then pronounced by me in the open court on this the 6th
day of May, 2025).
KS Digitally signed by K S
NAMRATHA RAO
NAMRATHA Date: 2025.05.07
RAO 17:38:32 +0530
(Smt. NAMRATA RAO K.S)
XV ACMM, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE
COMPLAINANT:
PW.1 : Smt. Mamta Manjunath
34
C.C.No.5682/2019
LIST OF DOCUMENTS MARKED FOR THE
COMPLAINANT:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 & 3 : 2 Bank Endorsements
Ex.P4 : Notice
Ex.P5 : Postal receipt
Ex.P6 : Postal acknowledgment
Ex.P7 & 8 : 2 Bank statements
Ex.P7(a) Relevant entry
Ex.P9 : Bank pass book
Ex.P10 : Certified copy of decree
LIST OF WITNESSES EXAMINED FOR THE
ACCUSED:-
DW.1 : Kavya. S
LIST OF DOCUMENTS MARKED FOR THE
ACCUSED:-
- NIL-
LIST OF DOCUMENTS MARKED UPON CONSENT:
Ex.C1 : Bank Statement
(Smt. NAMRATA RAO K.S)
XV ACJM, Bengaluru.
35
C.C.No.5682/2019
06.05.2025
(Judgment pronounced in the open
court)
ORDER
The accused is found guilty.
In Exercise of the Powers
vested under section 255(2) of
Cr.P.C., the accused is convicted for
the offence punishable under
section 138 of N.I.Act.
The accused is sentenced to
pay fine amount of Rs.15,10,000/-
(Fifteen lakhs Ten Thousand Only)
In default of payment of fine, the
accused shall undergo SI for three
months.
In Exercise of the powers vested
under Sec.357(1)(b) of Cr.P.C., out
of the fine amount, the complainant
is entitled for Rs.15,05,000/- (Fifteen
Lakhs Five Thousand Only ) towards
compensation.
In Exercise of the powers vested
under Sec.357(1) (a) of Cr.P.C., the
remaining fine amount of Rs.5,000/-
36
C.C.No.5682/2019
(Rupees Five Thousand only) is to be
remitted to the state.
The personal bond executed by
the accused shall stand cancelled and
the cash security deposited by the
accused shall be refunded to the
accused after the appeal period is
over.
A copy of the above judgment
shall be supplied to the accused
free of cost.
(Vide separate judgment)
XV ACJM, Bengaluru.
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