Bangalore District Court
Uday R vs Ashwini S on 17 December, 2024
SCCH-2 1 C.C.No.4696/2022
KABC020098852022
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU CITY (SCCH-2).
C.C.No.4696/2022
Present : Sri. H.P. Mohan Kumar, B.Sc.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACJM, Bengaluru.
Dated: On this the 17th day of December, 2024.
Complainant : Uday R.,
S/o Ramesh M.,
Aged about 22 years,
R/at No.263, 8th Main,
Nagendra Block,
Srinagar,
Bangalore-560 050.
(By Sri. B.V.S., Advocate)
- Vs. -
Accused : Ashwini S.,
D/o Late Suresh K.V.,
Aged about 33 years,
R/at No.56, EWS,
Housing Board Colony,
R.S. Naidu Nagar,
Near St. Philomina Church,
Mysore-570 007.
SCCH-2 2 C.C.No.4696/2022
Also at:
Vida Design and Construction Pvt. Ltd.,
No.2341, Basaveshwara Main Road,
Nayan Jewellers,
K.R. Mohalla,
Agrahara,
Mysore-570001.
(By Sri. S.K., Advocate)
:: J U D G M E N T :
:
The complainant has filed the present complaint
U/Sec.200 of Cr.P.C., alleging that the accused has committed
the offence punishable U/Sec.138 of Negotiable Instruments Act
(herein after referred as N.I.Act).
2. The case of the complainant in brief is as follows:-
The accused and complainant are known to each other
since many years. As such the accused approached the
complainant during first week of November-2018 and requested
the complainant to lend Rs.3,25,000/- as hand loan in order to
overcome from her business. The accused was agreed to repay
the same on 10.03.2020.
Further, the complainant had given Rs.60,000/- to the
accused on 13.11.2018, Rs.15,000/- on 15.11.2018,
Rs.1,47,500/- on 19.11.2018, Rs.40,000/- on 20.11.2018,
Rs.39,000/- on 06.01.2019, in total Rs.3,01,500/- was
transferred to the accused through Google Pay and account
transfer.
SCCH-2 3 C.C.No.4696/2022
Further, the complainant waited till 10.03.2020. Even after
also the accused also not paid the amount. On 21.01.2021, the
accused approached the complainant and upon mutual
discussion, the accused was agreed to pay Rs.12,00,000/-with
respect to other transaction and also accused requested the
complainant to wait till October-2021 for making payment of
Rs.3,01,500/-.
Further, on 05.11.2021, the complainant demanded the
accused. However, the accused expressed his inability and
instructed the complainant to present one cheque which was
given to the complainant with respect to the transaction of
Rs.12,00,000/-. Accordingly the complainant has presented the
cheque bearing No.279061 dated:26.12.2021 for encashment on
05.01.2022 through his banker i.e., Karnataka Bank Ltd.,
Srinigara Branch, Bangalore. However, the aforesaid cheque was
dishonored and returned on 06.01.2022 with shara as “Funds
Insufficient”.
Thereafter, the complainant has issued the legal notice
dated:17.01.2022 through RPAD. The complainant also send
the notice to the accused through Whatsapp also. The notice
returned with shara as no such person. The accused has
intentionally evading to receive the notice. Hence, cause of
action arose to file the complaint.
3. The cognizance was taken for the offence punishable
U/Sec.138 of N.I.Act. After filing of the complaint, the sworn
statement of the complainant was recorded and it prima-facie
SCCH-2 4 C.C.No.4696/2022
found that the accused committed the offence punishable
U/Sec.138 of N.I.Act. Hence, criminal case was registered and
the summons was issued to the accused.
4. In response to the summons, the accused appeared
through her counsel and thereafter plea was recorded. The
accused was denied the accusation leveled against her, claimed
to be tried and stated that she has defence to make. Further, the
statement of the accused as contemplated U/Sec.313 of Cr.P.C.,
was recorded. The accused has denied the incriminating
evidence appeared against her in the evidence of complainant
and submitted that she has defence evidence.
5. The Hon’ble Apex Court of India in Indian Bank
Association and Others vs Union Bank of India and Another
reported in AIR 2014 SC 2528, held that “Sworn Statement
of the complainant has to be treated as examination in
chief”. In the instant case, the complainant examined himself
as P.W.1 and marked 12 documents as Ex.P.1 to Ex.P.8 and
Ex.P.3(a), Ex.P.3(b), Ex.P.4(a), Ex.P.5(a). Thereafter, P.W.1 was
subject to the process of cross-examination from the side of
accused. The accused has not adduced evidence.
6. Heard arguments from both side. Perused the materials
available on record.
7. Now the points that arise for consideration of this Court
are as hereunder:
SCCH-2 5 C.C.No.4696/2022
1. Whether the complainant has proved
that the accused has committed the
offence punishable U/Sec.138 of
N.I.Act?
2. What Order?
8. The findings of this Court to the above-referred points are
as follows:
Point No.1: In the Negative.
Point No.2: As per final order,
for the following:-
REASONS
9. POINT No.1: In order to prove the case of the complainant,
the complainant examined himself as P.W.1 by filing affidavit in
support of his oral examination-in-chief. In the affidavit P.W.1
has reiterated the complaint averments in verbatim. Hence, this
Court need not to recapitulate the same once again at this
juncture. In support of his oral testimony, P.W.1 has marked
documents at Ex.P.1 to Ex.P.8 and Ex.P.3(a), Ex.P.3(b),
Ex.P.4(a), Ex.P.5(a).
10. Now itself it is appropriate to see the documents marked
at Ex.P-Series.
Ex.P-Series.
Ex.P.1 is the cheque bearing No.279061 dated:26.12.2021.
Ex.P.1(a) is the signature. Ex.P.2 is the bank endorsement.
SCCH-2 6 C.C.No.4696/2022
Ex.P.3 is the office copy of the legal notice dated:17.01.2022.
Ex.P.3(a) and Ex.P.3(b) are the RPAD receipts. Ex.P.4 and Ex.P.5
are the returned RPAD covers. Ex.P.4(a) and Ex.P.5(a) are the
returned legal notices. Ex.P.6 is the bank statement. Ex.P.7 is
the color printout pertaining to Whatsapp chat. Ex.P.8 is the
65B certificate.
11. Before going to discuss the main aspect, it is worth to
reproduce the provisions of Sec.138 and 139 of N.I.Act, the same
as hereunder:
138. Dishonour of cheque for insufficiency, etc., of
funds in the account: –
Where any cheque drawn by a person on an
account maintained by him with a banker for
payment of any amount of money to another
person from out of that account for the
discharge, in whole or in part, of any debt or
other liability, is returned by the bank unpaid,
either because of the amount of money standing
to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount
arranged to be paid from that account by an
agreement made with that bank, such person
shall be deemed to have committed an offence
and shall, without prejudice to any other
SCCH-2 7 C.C.No.4696/2022provisions of this Act, be punished with
imprisonment for (a term which may be extended
to two years), or with fine which may extend to
twice the amount of the cheque, or with both:
Provided that nothing contained in this
section shall apply unless-
(a) the cheque has been presented to the bank
within a period of Six months from the date on
which it is drawn or within the period of its
validity, whichever is earlier; (The period of 6 months
has been reduced to 3 months, vide R.B.I. notification
No.RBI/2011-12/251,DBOD.AMLBC No.47/14.01.001/2011-
12, dated:4th November 2011 (w.e.f. 01.04.2012))
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for
the payment of the said amount of money by
giving a notice in writing, to the drawer of the
cheque, within thirty days of the receipt of
information by him from the bank regarding the
return of the cheque as unpaid; and
SCCH-2 8 C.C.No.4696/2022
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the
payee or, as the case may be, to the holder in due
course of the cheque, within fifteen days of the
receipt of the said notice.
Explanation: – For the purposes of the section, “debt
or other liability” means a legally enforceable debt or
other liability.
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.
12. Learned counsel for the complainant has relied on
the following decisions:
1. Criminal Appeal No.1978 of 2013,
dated:18.01.2023, between Rajaram S/o
Sriramulu Naidu (Since Deceased) through
L.Rs. Vs. Maruthachalam (Since Deceased)
through L.Rs.
SCCH-2 9 C.C.No.4696/2022
2. Criminal Appeal No.2104/2018 (A),
dated:15.12.2023, between Smt. H.B.
Bhagyalakshmi Vs. Smt. Cheluvamma.
3. Criminal Appeal No.362 of 2022 (Arising out of
SLP (Crl) No.1963 of 2019, dated:07.03.2022,
between Tedhi Singh Vs. Narayan Dass
Mahant.
4. Miscellaneous Application No.665 of 2021 in
SMW© No.3 of 2020.
5. Miscellaneous Application No.21/2022.
6. Criminal Petition No.243/2021,
dated:07.12.2021, between K.R. Sudhir Vs.
Suresh Raju.
I have carefully gone through the decisions relied by the
complainant and applied the principles to the case on hand.
13. At this juncture it is worth to refer the decision of the
Hon’ble Apex Court reported in AIR 2010 S.C. 1898, between
Rangappa V/s Mohan wherein their lordships have observed at
para 26 as hereunder:
“No doubt that there is a initial presumption
which favours the complainant”.
14. It is germane to note that the proceedings U/Sec.138 of
N.I. Act is an exception to the general principle that the accused
SCCH-2 10 C.C.No.4696/2022
is presumed to be innocent until the charge leveled against him
is proved beyond reasonable doubt. In the proceedings initiated
U/Sec.138 of the N.I. Act proof of beyond reasonable doubt is
subject to the presumption envisaged under Sec.139 of the N.I.
Act. Once the requirement of Sec.138 of the N.I. Act is fulfilled,
then it has to be presumed that the cheque was issued in
discharge of legally recoverable debt or liability. The
presumption envisaged under Sec.139 of N.I. Act is mandatory
presumption and it has to be raised in every cheque bounce
cases.
15. Now the important question before this Court is whether
the complainant has complied the ingredients of Sec.138 of
N.I.Act or not? In order to answer this aspect, Ex.P.1 to Ex.P.5
and Ex.P.3(a), Ex.P.3(b), Ex.P.4(a) and Ex.P.4(b) are relevant.
Ex.P.1 is the cheque in question dated:26.12.2021. Ex.P.2 is
the endorsement dated:06.01.2022. On careful perusal of
Ex.P.2, it appears to this Court that, the complainant has
presented the cheque in question for encashment well within the
statutory period. Ex.P.3 is the office copy of legal notice
dated:17.01.2022. Ex.P.3(a) and Ex.P.3(b) are the RPAD
Receipts. These documents reveal that, the complainant has
posted the notice on 17.01.2022 itself. Ex.P.4, Ex.P.5 are the
returned RPAD covers. The accused has taken a contention
that, the complainant has not issued notice to the correct
SCCH-2 11 C.C.No.4696/2022
address of the accused, hence, the complaint is not
maintainable.
16. Now the question before this Court is whether the
complainant has issued the notice in accordance with law or
not?. It is relevant to state that the object of issuance of notice
to the drawer is to provide an opportunity to pay the cheque
amount within 15 days of service of notice and thereby free
himself from the penal consequences of Sec.138 of Negotiable
Instruments Act. In this regard, it is worth to rely on the
decision of Hon’ble Apex Court reported in 2007(6) SCC 555,
between C.C. Alavi Haji vs Palapetty Muhammed & Anr,
Wherein the Hon’ble Apex Court held as hereunder: ” Section
27 gives rise to a presumption that service of notice has
been effected when it is sent to the correct address by
registered post. In view of the said presumption, when
stating that a notice has been sent by registered post to the
address of the drawer, it is unnecessary to further aver in
the complaint that in spite of the return of the notice
unserved, it is deemed to have been served or that the
addressee is deemed to have knowledge of the notice. Unless
and until the contrary is proved by the addressee, service of
notice is deemed to have been effected at the time at which
the letter would have been delivered in the ordinary course
of business. This Court has already held that when a notice
is sent by registered post and is returned with a postal
endorsement refused or not available in the house or house
SCCH-2 12 C.C.No.4696/2022
locked or shop closed or addressee not in station, due
service has to be presumed”.
17. In the instant case, the complainant has issued the legal
notice on 17.01.2022. The said document has been marked as
Ex.P.3. As per Ex.P.4 and Ex.P.5, it can be inferred that, the
complainant has issued notice to the two addresses of the
accused. Both notices returned with shara as no such person.
During the course of cross-examination of P.W.1 also, learned
counsel for the accused put a denial suggestion with regard to
issuance of notice to the correct address of the accused.
Further, learned counsel for the accused vehemently argued
that, no notices were served on the accused. It is interesting to
note that, though the notices returned unserved, the accused
has not furnished her authenticated address before the Court.
Moreover, the accused has not disputed that, she no way related
to Vida Design and Construction Private Limited. Therefore, the
above referred decision is aptly applicable to the case on hand.
In the instant case, though the accused disputed the issuance of
notice. However, the accused has not produced the documents
to substantiate her version. In other words the accused has not
produced any documents to show her address. Hence, this
Court is of the opinion that, the complainant has correctly
issued the notice to the address of accused and the accused was
evading to receive the same. Therefore, with the help of
principles laid down by the Hon’ble Apex Court in the decision
referred to above, this court has come to the conclusion that, the
SCCH-2 13 C.C.No.4696/2022
service of notice issued by the complainant amounts to deemed
service.
18. Now the question before this Court is whether Ex.P.1 is
pertaining to account of accused and Ex.P.1(a) is the signature
of the accused or not?. A careful perusal of the entire cross-
examination of P.W.1, there is no serious dispute with regard to
issuance of cheque and signature. Further, during the course of
cross-examination of P.W.1, learned counsel for the accused
suggested that, there is a recital in Ex.P.8 marked in
C.C.No.4697/2022 regarding cheque bearing No.279059,
279060, 279061 were issued towards security. At this juncture
the said deposition is very much necessary to reproduce here
itself for better understanding: “ಸಿ.ಸಿ.ನಂ.4697/2022ರ ನಿ.ಪಿ.8 ಎಂದು
ಗುರುತಿಸಿರುವ ಹ್ಯಾಂಡ್ ಲೋನ್ ಅಗ್ರಿಮೆಂಟ್ ನಲ್ಲಿ ಆರೋಪಿ ನಿಮಗೆ ಒಟ್ಟು ಹನ್ನೆರಡು ಲಕ್ಷ ಹಣವನ್ನು
ನೀಡಬೇಕು ಎಂದು ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ದಾಖಲೆಯ ಪುಟ 2ರ ಕೊನೆಯ ಪ್ಯಾ ರಾದಲ್ಲಿ
ಚೆಕ್ಕು ಗಳನ್ನು ಅಂದರೆ 279059, 279060, 279061 ಗಳನ್ನು ಭದ್ರತೆಗಾಗಿ ನೀಡಲಾಗಿರುತ್ತದೆ ಎಂದು
ಒಕ್ಕಣೆ ಇರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ಚೆಕ್ಕು ಗಳನ್ನು ನಗದೀಕರಣಕ್ಕೆ ಹಾಜರುಪಡಿಸಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ”. A
meticulous reading of the above referred cross-examination, it
can be inferred that, Ex.P.1 is pertaining to the account of
accused and Ex.P.1(a) is the signature of accused. It is pivotal
to note that, the presumption under Sec.118 and 139 of
Negotiable Instruments Act favours the complainant. Therefore,
it is of the considered opinion of this Court that, the
complainant has complied the ingredients of Sec.138 of N.I.Act.
SCCH-2 14 C.C.No.4696/2022
19. Now, it is worth to refer the decision of the Hon’ble Apex
Court between Hiten P Dalal V/s Brathindranath Manarji
reported in 2001(6) SCC 16, wherein the Hon’ble Apex Court
observed that, “under Sec.138 of Negotiable Instruments
Act, the complainant is not required to establish either the
legality or enforceability of the debt or liability since he can
avail the benefit of presumption U/Sec.118 and Sec.139 of
N.I. Act in his favour”.
20. It is also settled position of law that, the presumption
available U/Sec. 138 of N.I Act is a rebuttable presumption.
Further, to rebut the said presumption the accused need not to
enter into the witness box. However, the accused can establish
his probable defence by creating a doubt about the existence of
legally enforceable debt or liability.
21. Further, it is also settled position of law that, the
standard of proof of rebutting the presumption is that of
preponderance of probabilities. It is also settled position of law
that, if the accused succeeded in rebutting the presumption
then the burden shifts back to the complainant. At this
juncture, again it is worth to refer the decision of the Hon’ble
Apex Court reported in AIR 2010 S.C. 1898, between
Rangappa Vs. Sri. Mohan, wherein the Hon’ble Apex Court
has observed that, “the standard of proof to rebut the
presumption is that one of preponderance of probabilities”.
22. It is also settled position of law that, “it is
immaterial that, the cheque may have been filled in by any
SCCH-2 15 C.C.No.4696/2022
person other than the drawer, if the cheque is duly signed
by the drawer. If the cheque otherwise valid, within the
provisions of Sec.138 would be attracted”.
23. With these backdrop, it is appropriate to analyze the case
on hand. According to the complainant, the accused availed loan
of Rs.3,01,500/-. It is also case of the complainant that, he had
already given hand loan of Rs.9,75,000/- to the accused. The
accused has executed hand loan agreement and agreed to pay
Rs.12,00,000/- with respect to other transaction. Further, the
accused has instructed the complainant to present the cheque
in question for encashment. While presenting the cheque, the
same got bounced.
24. It is relevant to note that, the complainant has produced
bank statement, which is marked as Ex.P.6. On perusal of this
document, it appears to this court that, Rs.3,01,500/- has been
transferred to the account of accused. In the instant case, the
case of the complainant is that, the accused has instructed to
present one of the cheque, which was given with respect to
other loan transaction. Now the question before this Court is,
whether the cheque in question was issued with respect to
discharge of debt or not?. According to the complainant,
Rs.9,75,000/- was lent to the accused. Again Rs.3,01,500/-
lent to the accused. During the course of cross-examination of
P.W.1, the P.W.1 has clearly admitted the recital in Ex.P.8 i.e.,
hand loan agreement produced in C.C.No.4797/2022 with
SCCH-2 16 C.C.No.4696/2022
respect to cheque in question and other two cheques were
issued as security.
25. At this juncture, it is worth to reproduce the said cross-
examination here itself for better understanding:
“ಸಿ.ಸಿ.ನಂ.4697/2022ರ ನಿ.ಪಿ.8 ಎಂದು ಗುರುತಿಸಿರುವ ಹ್ಯಾಂಡ್ ಲೋನ್ ಅಗ್ರಿಮೆಂಟ್ ನಲ್ಲಿ
ಆರೋಪಿ ನಿಮಗೆ ಒಟ್ಟು ಹನ್ನೆರಡು ಲಕ್ಷ ಹಣವನ್ನು ನೀಡಬೇಕು ಎಂದು ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಸರಿ.
ಸದರಿ ದಾಖಲೆಯ ಪುಟ 2ರ ಕೊನೆಯ ಪ್ಯಾ ರಾದಲ್ಲಿ ಚೆಕ್ಕು ಗಳನ್ನು ಅಂದರೆ 279059, 279060,
279061 ಗಳನ್ನು ಭದ್ರತೆಗಾಗಿ ನೀಡಲಾಗಿರುತ್ತದೆ ಎಂದು ಒಕ್ಕಣೆ ಇರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ಸದರಿ
ಚೆಕ್ಕು ಗಳನ್ನು ನಗದೀಕರಣಕ್ಕೆ ಹಾಜರುಪಡಿಸಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ”.
26. By careful reading of the above referred cross-
examination, it is crystal clear that, cheque in question was
issued as security. If really the accused was owed of
Rs.3,01,500/-, the said aspect should be reflected in Ex.P.8
marked in C.C.4697/2022. Therefore, it can be inferred that,
what are all the amounts transferred from the account of
complainant to the account of accused is only with respect to
one transaction. In other words there is only single monetary
transaction by and between the complainant and accused. In
that connection, the accused had executed the hand loan
agreement as per Ex.P.8, which is marked in
C.C.No.4697/2022. Under these circumstances, Ex.P.6 will not
come to the aid of complainant. Hence, the presumption under
Sec.118 and 139 of N.I. Act also will not come to the benefit of
complainant.
SCCH-2 17 C.C.No.4696/2022
27. Therefore, from the available materials on record and also
the admission of P.W.1, it can be inferred that, Ex.P.8 marked in
C.C.No.4697/2022 was executed by the accused with respect to
entire loan transaction. Further, the admission of P.W.1 clearly
goes to show that, Ex.P.1 was not issued towards discharge of
liability of Rs.3,01,500/-. Per-contra, it was issued as security.
Therefore, this court holds that, the accused has raised
plausible defence and successfully rebutted the presumption
available in favour of the complainant in this case. It is pertinent
to note that, once the accused has rebutted the presumption,
the burden shifts back to the complainant. However, the
complainant has failed to prove his case. Hence, this court holds
that, the complainant has failed to prove that, the accused has
committed the offence punishable Under Sec. 138 of Negotiable
Instruments Act. Accordingly, this Court is answered Point
No.1 in the Negative.
28. Point No 2 : In view of the above findings, this Court
proceeds to pass following:
:O R D E R:
Acting U/Sec.255(1) Cr.P.C., the
accused is acquitted of the offence
punishable under Section 138 of
Negotiable Instruments Act, 1881.
SCCH-2 18 C.C.No.4696/2022
The bail bond of the accused and
her surety shall stands cancelled.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected by
me, and then pronounced in the open Court on this the 17th December, 2024)(H.P. Mohan Kumar)
VI Addl. Judge and ACJM.,
Court of Small Causes,
Bengaluru.
:ANNEXURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:
P.W.1 : Sri. Uday R.
LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque No.279061, dated:26.12.2021.
Ex.P.1(a) : Signature of the accused. Ex.P.2 : Cheque Return Memo dated:06.01.2022. Ex.P.3 : Office copy of legal notice dated:17.01.2022. Ex.P.3(a), : 2 RPAD receipts. 3(b) Ex.P.4 : Returned postal cover. Ex.P.4(a) : Unserved legal notice. Ex.P.5 : Returned postal cover. Ex.P.5(a) : Unserved legal notice. Ex.P.6 : Statement of account. Ex.P.7 : Color printout pertaining to WhatsApp chat. Ex.P.8 : Certificate under Sec.165B of Indian Evidence Act. SCCH-2 19 C.C.No.4696/2022
LIST OF WITNESSES EXAMINED BY THE ACCUSED:
– None –
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
– Nil –
Digitally signed by H
HP P MOHANKUMAR
MOHANKUMAR Date: 2024.12.19
11:40:31 +0530
(H.P. Mohan Kumar)
VI Addl. Judge and ACJM.,
Court of Small Causes,
Bengaluru.