Bangalore District Court
V Mani vs B R Shivakumar on 2 May, 2026
SCCH-6 1 CC No.7342/2023
KABC020259502023
IN THE COURT OF ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY.
(SCCH-6)
Present: Smt. Chetana S.F.
B.A., L.L.B.,
IV Addl., Small Cause Judge & ACJM,
Court of Small Causes,
Bengaluru.
CC. No.7342/2023
DATED THIS THE 02nd DAY OF MAY, 2026
COMPLAINANT/S Sri V. Mani
S/o. Late Veerana
Aged about 60 years
R/at Mens wear,
Shop No.1142/30, 3rd Main Road,
6th Cross, Prakash Nagar,
Dr. Rajkumar Road,
Bengaluru-560021.
(By Sri. S. Manoj Kumar, Advocate)
-Vs-
ACCUSED Sri. B.R. Shivakumar,
S/o. Unknown.,
Aged about 61 years,
R/at Sri. Maruthi Nilaya,
House No.18, No.7 Venkateshwara Layout,
5th Main Road, Herohalli, Sunkadakatte,
Near HP Petrol Bunk,
Bangalore -560092.
(By Sri. Umesh. T.K., Advocate)
SCCH-6 2 CC No.7342/2023
-: J U D G M E N T :-
This is a complaint filed by the complainant U/Secs.138
and 142 of the N.I. Act R/w. Sec.200 of Cr.P.C. for the offences
punishable under Secs.138 of the N.I. Act as against the accused
praying to punish the accused for the said offence.
2. The case of the complainant is that, the accused and
complainant are known to each other and during one of the
occasions had approached the complainant for financial
assistance to meet the urgent legal necessities and assured to
repay the same when required by the complainant. Believing the
words of the accused, complainant gave sum of Rs.4,00,000/- as
hand loan. The accused also handed over the hand loan
agreement dated 13.03.2017. The complainant requested the
accused for repayment of the loan, the accused kept on
postponing the repayment of the same amount. Later on,
towards discharge of his liability, accused has issued a post
dated cheque bearing No.159467 dated 21.02.2022 for a sum of
Rs.4,00,000/- drawn on IDBI Bank, Bengaluru, in favor of
complainant.
SCCH-6 3 CC No.7342/2023
3. The complainant presented the cheque through his
banker IDBI Bank Ltd, Rajajinagar Branch, Bengaluru and same
has been returned through his bank with endorsement that
"Account is Inoperative/Dormant Account" on 29.03.2022.
Hence, the complainant issued legal notice dated 27.04.2022 to
the accused through RPAD. The notice addressed to the accused
is returned by the Postal Authorities with the shara "Door
Locked" dated 30.04.2022 and another shara "No such person in
the address" dated 28.04.2022. Inspite of service of notice, the
accused has not paid the cheque amount and hence, he has
committed an offence punishable u/s 138 of NI Act. Hence, this
complaint.
4. After issuance of legal notice accused failed to repay
the said loan nor replied to the notice. The accused has not paid
the cheque amount and has committed an offence punishable
u/s 138 of NI Act. Hence, this complaint.
5. After recording the sworn statement of the
complainant by way of affidavit and also verifying the
documents, cognizance was taken against the accused for the
SCCH-6 4 CC No.7342/2023
offence punishable under Sec.138 of N.I. Act. The accused
appeared before this Court through his counsel and enlarged on
bail and his plea was recorded. The accused pleaded not guilty
and claimed to be tried. Hence, the case was posted for evidence
of the complainant.
6. The complainant got examined himself as PW.1 and
got marked 11 documents as Exs.P.1 to Ex.P.11. Thereafter, the
case was posted for recording the statement of accused under
Sec.313 of Cr.P.C. In the statement U/s. 313 Cr.P.C., the
accused has denied all the incriminating evidence appearing
against him. On the other hand, the accused has not led any
evidence on his behalf.
7. Heard the arguments of both side and Perused the
records.
8. The following points arise for my consideration:
1.
Whether the complainant proves that the
cheque bearing No.159467 dated
21.02.2022 for a sum of Rs.4,00,000/-
drawn on IDBI Bank, Bengaluru, issued by
the accused has been dishonored on the
ground of “Account is
SCCH-6 5 CC No.7342/2023
Inoperative/Dormant Account” on
29.03.2022 and even after receiving the
intimation regarding the dishonor of cheque
failed to pay the cheque amount within the
stipulated period and thereby the accused
has committed an offence punishable under
Sec.138 of N.I. Act?
2. What order?
9. My findings on the above points are as under
Point No.1: In the Negative.
Point No.2: As per final order for the
following:
-: R E A S O N S :-
10. POINT NO.1:- In view of the present legal position as
held by our Hon’ble High Court as well as Apex Court of India
in a catena of decisions as well as relevant provisions of the
Act, this court has to see whether the complainant has
complied all the requirements as contained in Sec.138 of NI
Act so as to bring home the guilt of the accused for the
alleged offence. If so, whether the accused is able to rebut
the legal presumption available to the complainant under
Sec.139 of the Act by adducing probable defense or not.
SCCH-6 6 CC No.7342/2023
However, it is held by the full bench of our Apex Court in
the case of Rangappa Vs. Mohan reported in 2010 (1) DCR
706 that;
“The Statutory presumption mandated by
sec.139 of the Act, does indeed include the
existence of a legally enforceable debt or lia-
bility. However, the presumption U/S 139 of
the Act is in the nature of a rebuttable pre-
sumption and it is open for the accused to
raise a defence wherein the existence of a
legally enforceable debt or liability can be
contested”.
11. Therefore, in view of the above decision, once the cheque
is admitted, the statutory presumption would automatically fall
in favour of the complainant the complainant that, the alleged
cheque was issued for discharge of an existing legally enforceable
debt or liability against the accused and the burden will shift on
to the accused to rebut the same.
INGREDIENTS OF OFFENCE AND DISCUSSION:-
12. Before dwelling into the facts of the present case, it
would be apposite to discuss the legal standards required to be
met by both sides. In order to establish the offence under Section
138 of NI Act, the prosecution must fulfill all the essential
SCCH-6 7 CC No.7342/2023
ingredients of the offence. Perusal of the bare provision reveals
the following necessary ingredients of the offence:-
First Ingredient: The cheques were
drawn by a person on an account
maintained by him for payment of
money and the same is presented for
payment within a period of 3 months
from the date on which it is drawn or
within the period of its validity;
Second Ingredient: The cheques were
drawn by the drawer for discharge of
any legally enforceable debt or other
liability;
Third Ingredient: The cheques were
returned unpaid by the bank due to
either insufficiency of funds in the
account to honour the cheque or that
it exceeds the amount arranged to be
paid from that account on an
agreement made with that bank;
Fourth Ingredient: A demand of the
said amount has been made by the
payee or holder in due course of the
cheque by a notice in writing given to
the drawer within thirty days of the
receipt of information of the dishonour
of cheque from the bank;
Fifth Ingredient: The drawer fails to
make payment of the said amount of
money within fifteen days from the
date of receipt of notice.
SCCH-6 8 CC No.7342/2023
APPRECIATION OF EVIDENCE-
13. The accused can only be held guilty of the offence under
Section 138 NI Act if the above-mentioned ingredients are proved
by the complainant co-extensively. Additionally, the conditions
stipulated under Section 142 NI Act have to be fulfilled. Notably,
there is no dispute at bar about the proof of only first, third, and
fifth ingredient. The complainant had proved the original cheque
vide Ex.P.1 which the accused person had not disputed as being
drawn on the account of the accused. It was not disputed that
the cheque in question was presented within its validity period.
Bank challan vide Ex.P2. The cheque in question was returned
unpaid vide return memos vide Ex.P.3 due to the reason,
“Account is Inoperative/Dormant Account” dated
29.03.2022. The complainant had proved the service of legal
demand notice dated 27.04.2023 vide Ex.P.4. Postal receipts vide
Ex.P5 and 6. Returned postal covers vide Ex.P7 and Ex.P8. E-
copies of IDBI Bank statement vide Ex.P9. Certificate under
Sec.63 BSA vide Ex.P10. IDBI bank account statement from
2018 to 2022 vide Ex.P11. Thus, there is a dispute only with
regard to the second ingredient to the offence. As such, the
SCCH-6 9 CC No.7342/2023
1st,3rd,4th& 5th ingredient of the offence under section 138 of the
NI Act stands proved.
14. As far as the proof of second ingredient is concerned,
the complainant has to prove that the cheque in question was
drawn by the drawer for discharging a legally enforceable debtor
any liability. In the present case, the issuance of the cheque in
question is not denied. As per the scheme of the NI Act, once the
accused admits signature on the cheque in question, certain
presumption are drawn, which result in shifting of onus. Section
118(a) of the NI Act lays down the presumption that every
negotiable instrument was made or drawn for consideration.
Another presumption is enumerated in Section 139 of NI Act.
The provision lays down the presumption that the holder of the
cheque received it for the discharge, in whole or part, of any debt
or other liability.
15. The combined effect of these two provisions is a
presumption that the cheque is drawn for consideration and
given by the accused for the discharge of debt or other liability.
Both the sections use the expression “shall”, which makes it
SCCH-6 10 CC No.7342/2023
imperative for the court to raise the presumptions once the
foundational facts required for the same are proved. Reliance is
placed upon the judgment of the Hon’ble Supreme Court, Hiten
P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
16. Further, it has been held by a three-judge bench of the
Hon’ble Apex Court in the case of Rangappa vs. Sri Mohan
(2010) 11 SCC 441 that the presumption contemplated under
Section 139 of NI Act includes the presumption of existence of a
legally enforceable debt. Once the presumption is raised, it is for
the accused to rebut the same by establishing a probable
defence.
17. The presumptions raised under Section 118(b) and
Section 139 NI Act are rebuttable presumptions. A reverse onus
is cast on the accused, who has to establish a probable defence
on the standard of preponderance of probabilities to prove that
either there was no legally enforceable debt or other liability. In
this case, the arguments raised by the Ld. counsel for the
accused to rebut the presumption are discussed below:
SCCH-6 11 CC No.7342/2023
18. The learned counsel for the accused has taken the
specific defence that the alleged debt claimed by the complainant
is a time barred debt. As per the complainant, he has lend the
loan of Rs.4,00,000/- to the accused on 13.03.2017 and accused
has issued the cheque for repayment of the said loan on
21.02.2022 i.e., almost after 5 years. Further in the cross-
examination PW.1 clearly admitted that he has lent the loan
from 2012 to 2020. Though the alleged debt claimed by the
complainant is purely time barred debt. In this regard, on
perusal of the complaint, according to the complainant, he has
lent the loan on 13.03.2017 and accused has given the cheque
for the repayment of the said loan on 21.02.2022. But, PW.1 in
his cross-examination admitted that, he went on lending the
loan from 2012 to 2020 and accused has given the cheque for
the repayment of the said loan in the year 2022. Thus the alleged
debt claimed by the complainant is purely time barred debt and
the cheque issued in respect of the time barred debt does not
attract the Section 138 of the NI Act.
SCCH-6 12 CC No.7342/2023
19. In this regard, this court has relied on the decisions
reported in ILR 2021 KAR 2437 between The Bidar Urban Co-
operative, Bank Ltd., Bidar vs. Mr. Girish. And Crl. Rev.
Petition No.287/2015 between S.S. Ramesh vs. K. Lokesh.
20. This court is fortified by the decision Bidar Co-
Operative Bank Ltd. V/s Girish wherein it was held that,
When there is no debt or liability exists, then the said cheque
amount will not become legally recoverable debt or other
liability, the offence under section 138 of Negotiable
Instrument Act will not sustain. Further Hon’ble High Court of
Karnataka elaborately discussed the scope of Section 25(3) of
the Indian Contract Act and referred the decision reported in
CHACKO VARKEY VS THOMMEN THOMAS AIR 1958 Ker 31 a
Full Bench of the Kerala High Court considered the scope of
section 25(3) of the Indian Contract Act 1872 which also
supports the accused defense.
21. In this regard this court relied on the decision
reported in the Kerala High Court in a decision reported in
2001 Crl.L.J 24 in case of Sasseriyal Joseph Vs Devassia,
SCCH-6 13 CC No.7342/2023
held that section 138 of the Act is attracted only if there
is legally recoverable debt and it cannot be said that time
barred debt is legally recoverable debt. The said Judgment
rendered by Kerala High Court in Sasseriyil Joseph‘s case
was challenged before the Hon’ble Supreme Court in
Special Leave to Appeal (Crl.) No.1785/2001 by Hon’ble
Supreme Court by Judgment dated:10-09-2001 affirmed
the said view of Kerala High Court and it is held as under:
“We have heard learned counsel for the
petitioner. We have perused the
judgment of the High Court of Kerala in
Criminal Appeal No. 161 of 1994
confirming the judgment/order of
acquittal passed by the Addl. Sessions
Judge, Thalassery in Criminal Appeal No.
212 of 1992 holding inter alia that the
cheque in question having been issued by
the accused for due which was barred by
limitation the penal provision under
Section 138 of the Negotiable
Instruments Act is not attracted in the
case.
SCCH-6 14 CC No.7342/2023
22. In view of the principles stated in the above referred
decision and discussion it is evident that the penal provision
of Section 138 of the N.I.Act is applicable only to the cheques
which are issued for the discharge in whole or in part, of any
debt or other liability, which according to Explanation must
be a legally enforceable debt or other liability. A cheque given
in discharge of a time barred debt will not constitute an
unconditional undertaking or promise in writing either
expressly or impliedly so as to attract the criminal offence
under section 138 of N.I Act. A cheque given in discharge of a
time barred debt will not constitute a promise in writing not
even an implied promise so as to attract a criminal liability
under Section 138 of N.I Act.
23. Thus in the present case, the complainant has lent
the loan on 13.03.2017 and the cheque has issued in the year
2022. Even the complainant has not clearly stated the specific
dates on which he has given the last loan. Hence the alleged
loan is a time barred debt and as such, the cheque issued
SCCH-6 15 CC No.7342/2023
for discharge of the above said time barred debt does not
attract the Section 138 of NI Act.
24. Further complainant has produced his bank statement
as per Ex.P9 to show that he has given the loan to the
accused on various dates through account. Ex.P9 relates to
the transaction from 2012 to 2018. In the year 2012, the
complainant has transferred an amount of Rs.50,000/- to the
accused. In the year 2013, the complainant has transferred
Rs.75,000/- and Rs.36,500/- to the accused and in the year
2014, the complainant has transferred Rs.32,000/-, in the
year 2017, the complainant has transferred Rs.1,00,000/-
and in the year 2018, the complainant has transferred
Rs.10,000/-, Rs.20,000/-, Rs.20,000/-, Rs.2,00,000/-,
Rs.87,500/-, Rs.10,000/- and Rs.87,500/- on various dates.
Further even Ex.P9 it is clearly shows that accused has
repaid Rs.25,000/- to the complainant in the year 2018.
Further the complainant has produced his IDBI Bank Ltd.,
statement as per Ex.P11 pertaining to the year 2018 to 2022.
But, nowhere the complainant has highlighted or shown any
SCCH-6 16 CC No.7342/2023
entries relating to the transaction of the transfer of the
amount to the accused in Ex.P11.
25. On the other hand, the accused has taken the specific
defence that, complainant used to do the chit business since
several years and accused was a tenant under the
complainant house. The accused and his wife and his son
Hariprasad and his daughter used to become the member of
the chit business and were doing chit business with the
complainant. At that time, the complainant has taken the
cheques, promissory note and Aadhar card from the accused
and his family members. Thereafter, the complainant has
misused the said cheque and filed this false case. At no point
of time, accused has borrowed any loan from the complainant
and issued the cheque in question for the repayment of the
said loan.
26. In this regard, the complainant PW.1 in his cross-
examination at para No.2 clearly admitted that he was doing
chit business. Further clearly admitted that accused and his
family members used to become member of the said chit
SCCH-6 17 CC No.7342/2023
business. Further PW.1 clearly admitted that he has taken
the cheques, Promissory note and Aadhar card from the
accused and his family members for the said chit
business. Further PW.1 clearly admitted that he used to pay
the chit amount through cheque, through online and
through cash and further PW.1 admitted that, he has paid
10-12 lakhs through cheque and online. Thus from the
admissions in the evidence of the PW.1, it is clear that PW.1
was doing chit business and PW.1 was taken the cheques and
other documents from the accused and even it is clear that
PW.1 has transferred an amount through account in respect
of the chit business. Thus amount transferred through bank
account by complainant to the accused. As per Ex.P9, it is
related to the chit amount. According to the complainant, he
has paid an amount in the year 2017. But, as per Ex.P9, the
complainant has paid only Rs.1,00,000/- in the year 2017.
Even PW.1 has not clearly and specifically stated the amount
which has been transferred to the accused as per Ex.P9
relates to the chit transaction or it is related to the hand loan.
SCCH-6 18 CC No.7342/2023
Even PW.1 has not clearly stated the date on which he has
lent the loan to the accused through online or cheque. Thus it
appears that complainant is suppressing the material true
facts with regard to the transaction. On the other hand, the
defence taken by the accused that accused has issued the
cheque in question as a security for the chit business has
misused by the complainant appears to be more probable
than the case of the complainant.
Conclusion:
27. In view of all the above discussion, it can be concluded
that the complainant has failed to establish through cogent and
convincing evidence, the fact of issuance of the cheques for
discharge of legally enforceable debt or any liability, which is
dishonored for want of sufficient funds. On the other hand, the
accused has successfully rebutted the presumption available to
the complainant through probable evidences, that would
preponderate upon the evidence led by the complainant.
Therefore, the accused is held to have not committed an offence
punishable under sec. 138 of N.I. Act. Accordingly, Point No.1 is
answered in the NEGATIVE.
SCCH-6 19 CC No.7342/2023
28. POINT NO.2:- In view of my answer to point No.1, I
proceed to pass the following:-
-: O R D E R :-
Acting U/Sec.278(1) of the Bharatiya
Nagarik Suraksha Sanhita, 2023, accused is
hereby acquitted for the offence punishable
U/Sec.138 of Negotiable Instruments Act.
The bail and surety bond of the accused
and surety shall stand canceled.
(Dictated to the Stenographer, transcribed and computerized by
her. After her typing, corrected, signed and then pronounced by me
in open Court this the 02nd day of May, 2026).
(CHETANA S.F.)
IV Addl., Small Cause Judge & ACJM,
Court of Small Causes, Bengaluru.
ANNEXURE
List of witnesses examined for the Complainant:
PW.1/CW.1 :- Sri. V. Mani
List of witnesses examined for the accused:-
None
SCCH-6 20 CC No.7342/2023List of documents marked for the Complainant:-
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of accused
Ex.P2 : Bank challan
Ex.P.3 : Bank Endorsement
Ex.P.4 : Office copy of Legal Notice
dt.27.04.2023
Ex.P.5 & 6 : Postal Receipts
Ex.P.7 and 8 : Returned postal covers
Ex.P9 : E-copy of IDBI Bank Account
Statement
Ex.P10 : Certificate under Sec.63 of BSA
Ex.P11 : IDBI Bank account statement from
2018 to 2022
Ex.C.1 : Xerox copy of Medical certificate
List of documents marked for the accused:-
NIL
(CHETANA S.F.)
IV Addl., Small Cause Judge &
ACJM, Court of Small Causes,
BENGALURU.
