Anil Kumar vs Mamatha Vishwanath on 16 April, 2026

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    Bangalore District Court

    Anil Kumar vs Mamatha Vishwanath on 16 April, 2026

    KABC010320662023
    
    
    
    
    IN THE COURT OF THE LX ADDL.CITY CIVIL & SESSIONS
              JUDGE, BENGALURU (CCH-61)
    
                            :Present :
                  Sri Mallikarjuna Swamy H.S.,
                                               B.Sc., LL.B.,
              LX Addl. City Civil & Sessions Judge,
                           Bengaluru.
    
                Dated this the 16th day of April, 2026
    
                       CRL.A No.1728/2023
    
    APPELLANT              : Sri Anil Kumar,
                             S/o B.C. Narasimha,
                             aged about 51 years,
                             r/at No.16, Chinmaya,
                             2nd Main Road, CHBS
                             3rd Layout, Chandra Layout,
                             Near Kalabyraveshwara
                             Nursing College,
                             Vijayanagara,
                             Bengaluru - 560 040.
    
                                (By: Sri K.P.R., Advocate)
                          Vs.
    RESPONDENT             : Smt. Mamatha Vishwanath,
                             W/o Vishwanath,
                             aged about 53 years,
                             r/at No.1, 2nd Floor,
                             Main Road, 18th Cross,
                             Malleswaram,
                             Bengaluru - 560 055.
                                (By : Sri E.K., Advocate)
                                  2             Crl.A.No.1728/2023
    
                                 JUDGMENT
    

    The appellant/accused has preferred this appeal
    under Section 374 of Cr.P.C. being aggrieved by the
    judgment of conviction and order of sentence passed in
    C.C.No.28141/2021 dated 03.11.2023 on the file of XX
    Addl. CMM, Bengaluru.

    2. For the purpose of convenience parties are
    referred to as per their rank before the trial court.
    Appellant was arraigned as accused and respondent was
    the complainant before the trial court. Complainant set
    the law into motion by lodging private complaint under
    section 200 of Cr.P.C., for the offence punishable u/s 138
    of Negotiable Instruments Act against accused.

    SPONSORED

    3. The gist of the accusation in the complaint is
    that, complainant and wife of the accused and accused
    are close friends. Accused and his wife had taken hand
    loan of Rs.37,00,000/-. After repeated requests, the
    accused and his wife had issued four cheques to clear the
    liability in favour of complainant. The complainant had
    presented the said cheques for encashment, they were
    returned with bank endorsements as “Funds Insufficient”

    and “Payment stopped by Drawer”. The complainant
    issued demand notice to the accused and his wife, but they
    neither repaid the amount nor replied to the said notice.
    The complainant filed cases against them in C.C.
    No.27111/2017 and 27112/2017 on the file of XX ACMM,
    3 Crl.A.No.1728/2023

    Bengaluru. Due to intervention of well-wishers, both
    accused and complainant settled the matter and filed the
    joint memo for an amount of Rs.21,00,000/- and accused
    paid Rs.1,00,000/- by way of cash before the court and
    agreed to pay remaining amount of Rs.20,00,000/-
    through cheques as detailed in the joint memo.

    4. As per the terms of joint memo dated
    09.06.2018, the accused issued a cheque bearing
    No.664607 dated 15.06.2020 for Rs.5,00,000/- drawn on
    Karnataka Bank, Chandra Layout Branch, Bengaluru.
    Complainant presented the cheque through her banker
    Syndicate Bank, Wilson Garden Branch, Bengaluru and
    the same was dishonoured for the reason “Funds
    Insufficient” as per Banker’s memo dated 20.06.2020.
    Thereafter, the complainant issued legal notice dated
    25.06.2020 to the accused by calling upon him to pay
    the amount covered under the cheque within the
    stipulated period. Notice returned unserved with an
    endorsement “Left, return to sender” dated
    26.06.2020. Hence, complainant constrained to set the
    law into motion.

    5. On the basis of the said complaint, the
    learned ACMM took cognizance of the offence
    punishable under Section 138 of Negotiable
    Instruments Act and issued process against the
    4 Crl.A.No.1728/2023

    accused. In response to the summons issued, the
    accused appeared before the court and he was
    enlarged on bail. The plea of the accused was recorded
    by explaining the substance of accusation leveled
    against accused, for which the accused pleaded not
    guilty and claimed to be tried.

    6. The complainant adduced evidence as PW.1
    and got marked Exs.P.1 to P.6 and closed her side.
    Thereafter the statement of the accused was recorded
    u/s 313
    of Cr.P.C., wherein accused has denied the
    incriminating evidence adduced against him as false.
    Accused not adduced evidence to prove his contention.

    7. After hearing the arguments of complainant,
    the trial court convicted accused for the offence
    punishable under Section 138 of Negotiable
    Instruments Act and sentenced to pay fine of
    Rs.7,60,000/- with default sentence of one year simple
    imprisonment. Further the trial court acting u/s
    Section 357(1)(b) of Cr.P.C. ordered that out of fine
    amount, Rs.7,50,000/- to be paid to the complainant
    as compensation and remaining fine of Rs.10,000/-
    shall be defrayed to the state.

    8. Accused being aggrieved by the said judgment
    preferred this appeal on the following grounds;

    5 Crl.A.No.1728/2023

    (i) The trial court without giving sufficient
    opportunity to lead defence evidence passed one sided
    judgment.

    (ii) The appellant was ready to produce rebuttal
    evidence before the trial court, but the trial court without
    giving opportunity in one date itself closed the defence
    evidence.

    (iii) The trial court ought not to have come to the
    conclusion that only on the basis of evidence led by the
    complainant, if the trial court given opportunity, the
    appellant would have established the real questions
    involved between the parties before the trial court but no
    option was given to the appellant.

    (iv) The complainant filed C.C. No.27111/2017
    before the same court and same was referred to Lok-
    adalath on 09.06.2018, appellant and respondents were
    amicably settled the dispute and filed their joint memo.
    As per the joint memo terms and conditions appellant
    issued four post dated cheques. Out of the four cheques
    two cheques were realized, thereafter complainant
    demanded the appellant to give remaining amount by way
    of cash, as per the respondent’s request the appellant paid
    the amount by way of cash. After repaying the amount
    the respondent did not return the cheques bearing
    Nos.664604 and 664607 for Rs.5,00,000/- each to the
    6 Crl.A.No.1728/2023

    appellant and told that they were misplaced and and
    when found them she will give to the accused. But, the
    complainant intentionally to make unlawful gain
    presented the said two cheques, they were bounced
    and she filed a false case against him.

    (iv) The order passed by the trial court is not
    sustainable under law hence same is liable to be set
    aside.

    (v) The appellant already given entire amount to
    the respondent as per the joint memo, but the respondent
    intentionally in order to harass the appellant filed the said
    case. Hence prayed to allow the appeal and to set
    aside the impugned judgment of conviction and
    sentence dated 03.11.2023 and to acquit the
    appellant.

    9. After admission of the appeal, court has
    issued notice to the respondent. The respondent has
    appeared before the court through his advocate. The
    trial court records have been secured.

    10. Heard respondent counsel. Despite giving
    ample opportunity, the appellant counsel did not
    prosecute the matter. The Hon’ble Supreme Court in
    its decision reported in (2013)3 SCC 712 – K.S.
    7 Crl.A.No.1728/2023

    Panduranga V. State of Karnataka held that: Criminal
    Appeals cannot be dismissed for non-prosecution.
    Hence, court proceed to adjudicate this matter based
    on records available.

    11. In view of the contentions raised by the
    parties to the lis and the evidence available on record
    following points would arise for my consideration:

    1) Whether complainant proves that
    issuance of cheque by the accused is
    towards legally enforceable debt?

    2) Whether accused rebutted the
    presumption available to the
    complainant under Section 139 of
    Negotiable Instruments Act?

    3) Whether the judgment of conviction
    and sentence passed in C.C.
    No.28141/2021 dated 03.11.2023
    rendered by the XX Addl.CMM,
    Bengaluru calls for interference by
    this court?

    4) What order?

    12. My answer to the above points are as under:

                   Point No.1 :       In the Affirmative;
                   Point No.2 :       In the Negative;
                   Point No.3 :       Partly in the Affirmative;
                                        8                Crl.A.No.1728/2023
    
                  Point No.4 :             As per final order,
                                           for the following:
    
                                  REASONS
    
    

    13. Point Nos.1 and 2:- It is the case of the
    complainant that, complainant and wife of the accused
    and accused are close friends. Accused and his wife had
    taken hand loan of Rs.37,00,000/-. After repeated
    requests, the accused and his wife had issued four cheques
    to clear the liability in favour of complainant. The
    complainant had presented the said cheques for
    encashment, they were returned with bank endorsements
    as “Funds Insufficient” and “Payment stopped by Drawer”.
    The complainant issued demand notice to the accused and
    his wife, but they neither repaid the amount nor replied to
    the said notice. The complainant filed cases against them
    in C.C. No.27111/2017 and 27112/2017 on the file of XX
    ACMM, Bengaluru. Due to intervention of well-wishers,
    both accused and complainant settled the matter and filed
    the joint memo for an amount of Rs.21,00,000/- and
    accused paid Rs.1,00,000/- by way of cash before the
    court and agreed to pay remaining amount of
    Rs.20,00,000/- through cheques as detailed in the joint
    memo.

    14. As per the terms of joint memo dated
    09.06.2018, the accused issued a cheque bearing
    No.664607 dated 15.06.2020 for Rs.5,00,000/- drawn on
    9 Crl.A.No.1728/2023

    Karnataka Bank, Chandra Layout Branch, Bengaluru.
    Complainant presented the cheque through her banker
    Syndicate Bank, Wilson Garden Branch, Bengaluru and
    the same was dishonoured for the reason “Funds
    Insufficient” as per Banker’s memo dated 20.06.2020.
    Thereafter, the complainant issued legal notice dated
    25.06.2020 to the accused by calling upon him to pay
    the amount covered under the cheque within the
    stipulated period. Notice returned unserved with an
    endorsement “Left, return to sender” dated
    26.06.2020.

    15. The said averment has been reiterated by the
    complainant in her evidence. Ex.P.1 is the cheque,
    Ex.P.2 is the Bank Endorsement, Ex.P.3 is the office
    copy of the Legal Notice, Ex.P.4 is the postal receipt,
    Ex.P.5 is the complaint to postal authority and Ex.P.6
    is the Delivery manifest issued by postal authority.

    16. Before adverting to contentious issues this
    court examined whether complainant complied Section
    138(a)
    to (c) of Negotiable Instruments Act. As such
    this court examined matters to be established by the
    complainant for availing statutory presumptions.
    Section 138 (a) to (c) provides that cheque has to be
    presented within a period of three months from the
    10 Crl.A.No.1728/2023

    date on which it is drawn or within the period of its
    validity whichever is earlier and notice has to be issued
    making the demand for payment within 30 days of
    receipt of information by him from the bank regarding
    dishonour of cheque and if drawer of the cheque fails
    to make payment within 15 days from the receipt of
    the said notice, the complainant can set the law into
    motion. As such this court proceed to examine
    whether complainant complied mandatory provisions
    of Section 138(a) to (c) before instituting the complaint
    before the leaned Magistrate.

    17. Ex.P.1 cheque was drawn on 15.06.2020.
    Cheque were presented for encashment on
    19.06.2020. The said cheque were returned with an
    endorsement “Funds Insufficient” as per Ex.P.2 on
    20.06.2020. Legal notice Ex.P.3 was issued through
    registered post on 25.06.2020 and returned unserved
    with shara “Left” on 26.06.2020. Now, the question
    merits consideration is whether it amounts to
    compliance of Section 138(b) of Negotiable Instruments
    Act.

    18. Section 27 of the General Clauses Act
    provides that “Where any Central Act or Regulation made
    after the commencement of this Act authorizes or requires
    11 Crl.A.No.1728/2023

    any document to be served by post, whether the
    expression “serve” or either of the expressions “give” or
    “send” or any other expression is used, then,
    unless a different intention appears, the service shall be
    deemed to be effected by properly addressing,
    pre-paying and posting by registered post, a letter
    containing the document, and, unless the contrary is
    proved, to have been effected at the time at which the letter
    would be delivered in the ordinary course of
    post”.

    19. In this case, legal notice was addressed to
    Sri Anil Kumar, residing at Door No.16, Chinmaya, II
    Main, C.H.B.S., III Layout, Chandra Layout, Near
    Kalabyraveshwara Nursing College, Vijayanagara,
    Bengaluru. The appellant mentioned the same
    address in the cause title of the appeal memorandum.
    As such, there is no dispute with regard to residential
    address of the accused. Hence, in view of Section 27
    of General Clauses Act the notice is deemed to be
    served to the accused.

    20. The view of this court is fortified by the
    decision of the Hon’ble Supreme Court reported in
    (2017) 5 SCC 737 – N. Parameshwaran Unni v/s
    Kannan
    it is held that in view of Section 27 of the
    12 Crl.A.No.1728/2023

    General Clauses Act and 114 of Indian Evidence Act is
    that once notice is sent by registered post by correctly
    addressing to the drawer of the cheque, the service of
    notice is deemed to have been effected. When a notice
    is sent by a registered post and it is returned with
    postal acknowledgment “refused” then requirements
    under proviso (b) of Section 138 stand complied with.

    21. The cheque/Ex.P.1 was presented within
    three months. Notice was issued within prescribed
    period and the complaint was filed within 45 days after
    receipt of legal notice by the accused. As such
    complainant complied Section 138(a) to (c) of
    Negotiable Instruments Act.

    22. The Hon’ble Supreme Court in its decision
    reported in (2009) 2 SCC 513 – Kumar Exports v/s
    Sharma Carpets and another
    decision of the Hon’ble
    Supreme Court reported in AIR 2019 SC 1983 –
    Basalingappa v/s Mudibasappa held that presumption
    under Section 118 and 139 of N.I.Act are rebuttable
    presumptions. It is further held that rebuttal does not
    require proof beyond reasonable doubt. Something
    probable has to be brought on record. The Hon’ble
    Supreme Court clearly held that a probable defence
    needs to be raised which must meet the standard of
    13 Crl.A.No.1728/2023

    ‘preponderance of probability’, and not mere
    possibility.

    23. The defence of the accused is that, Learned
    magistrate has not provided sufficient opportunity to
    place his defence. He repaid entire amount by way of
    cash. On perusal of the order sheet of the trial court.
    Accused appeared before the trial court on
    25.03.2023. Trial court afforded 12 hearings to the
    accused to place his defence, accused conducted cross-
    examination of PW.1 but nothing relevant has been
    elicited to disbelieve the case of the complainant and
    accused failed to adduce defence evidence. It is
    pertinent to note that cheque marked at Ex.P.1 was
    issued as per the terms of the joint memo filed in C.C.
    Nos.27111/2017 and 27112/2017 on the file of XX
    ACMM, Bengaluru. Accused failed to comply terms of
    the joint memo, thereby complainant constrained to
    set the law into motion for recovery of the part
    amount from the accused. No evidence is placed by
    the accused to establish payment of amount by way of
    cash. The bald plea of payment of cash towards
    liability is taken without specifically mentioning the
    date and amount of repayment. As such, accused
    failed to probablize his defence.

    14 Crl.A.No.1728/2023

    24. The Hon’ble Supreme Court in its decision
    reported in (2019) 10 SCC 287 – Uttam Ram Vs. Devinder
    Singh Hudan & another
    , held that, once cheque is proved
    to be issued, it carries statutory presumption of
    consideration. Then onus is on person issuing the cheque
    to disprove presumption.

    25. There is a clear and cogent evidence
    available that cheque belong to the accused which
    bears his signature. When such being the case it is
    incumbent upon the accused to give explanation under
    what circumstances he parted with the possession of
    Ex.P.1. The statute mandates that once the signature
    of accused on the cheque is established then the
    ‘reverse onus’ clause become operative. In such a
    situation the obligation shifts upon the accused to
    discharge the presumption imposed upon.

    26. The Hon’ble Supreme Court in its decision
    reported in (2019) 4 SCC 197 – Bir Singh v/s Mukesh
    Kumar
    held that 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 N.I.Act, in the absence of any
    cogent evidence to show that cheque was not issued in
    discharge of debt.

    15 Crl.A.No.1728/2023

    27. The defence raised by the accused in the
    considered opinion of this court not inspire confidence
    or meet the standard of ‘preponderance of probability’.
    In the absence of any other relevant evidence to
    disprove or to rebut the presumption available to the
    complainant, the accused in the opinion of this court
    has not discharged his onus in proving his contention.
    As such the point No.1 taken up for consideration is
    held in affirmative and point No.2 taken up for
    consideration is held in Negative.

    WITH REGARD TO SENTENCE:

    28. Point No.3: On careful examination of the
    sentence the learned magistrate sentenced the accused to
    pay fine of Rs.7,60,000/- with default sentence of simple
    imprisonment of one year and also ordered to pay
    compensation of Rs.7,50,000/- under Section 357(1)(b) of
    Cr.P.C. to the complainant

    29. It is settled position that in view of the provisions
    contained in Section 4(2) of the Cr.P.C., the provisions of
    that code would apply even for regulating the inquiries and
    trials of offences under special statutes like the Negotiable
    Instruments Act
    , so long as there are no specific provisions
    in the special enactment covering the situation at hand.

    16 Crl.A.No.1728/2023

    30. Section 30 of Cr.P.C. provides for Sentence of
    imprisonment in default of fine;

    1) The Court of a Magistrate may award such term of
    imprisonment in default of payment of fine as is
    authorised by law;

    Provided that the term–

    (a) is not in excess of the powers of the Magistrate
    under section 29;

    (b) shall not, where imprisonment has been
    awarded as part of the substantive sentence,
    exceed one-fourth of the term of imprisonment
    which the Magistrate is competent to inflict as
    punishment for the offence otherwise than as
    imprisonment in default of payment of the fine.

    2) The imprisonment awarded under this section may be
    in addition to a substantive sentence of imprisonment
    for the maximum term awardable by the Magistrate
    under section 29.

    31. Section 25 of the General Clauses Act deals with
    recovery of fines and stipulates as follows :-

    Sections 63 to 70 of Indian Penal Code and the
    provisions of Code of Criminal Procedure for the time
    being in force in relation to the issue and execution
    warrants for the levy of fines shall apply to all fines
    imposed under any act, regulation, rule or bylaw
    17 Crl.A.No.1728/2023

    unless the Act, regulation, rule or bylaw contains an
    express provisions to the contrary.”

    32. The words ‘authorized by law’, appearing in
    section 30(1) of Cr.P.C., 1973 mean authorized by all
    provisions of law taken together and these provisions are to
    be found in sections 63 to 70 of Indian Penal code, which
    by the mandate of section 25 of General Clauses Act are
    made applicable to all fines imposed under the authority of
    any act, unless such act contain an express provision to
    the contrary.

    33. Section 65 of IPC provides that term for which
    the court directs offender to be imprisoned in default of
    payment of a fine shall not exceed 1/4th of the term of
    imprisonment which is the maximum fixed for the offence,
    if the offence be punishable with imprisonment as well as
    fine. Section 138 of Negotiable Instruments Act, provides
    maximum punishment upto two years and double the
    amount of fine or both.

    34. At the first blush, it may appear from the
    wordings of clause-(b) of the proviso to sub-section(1) of
    section 30 of Cr.P.C. that the limitation therein not to
    exceed one fourth of the maximum term of imprisonment,
    may applicable only in cases, wherein imprisonment and
    fine could have been awarded, but where actually
    substantive prison sentence alone is actually imposed. But
    the provisions in section 65 of IPC mandate that term, for
    18 Crl.A.No.1728/2023

    which court directs the offender to be imprisoned in default
    of payment of fine shall not exceed one fourth of the term
    of imprisonment, which is maximum fixed for the offence, if
    the offence be punishable with imprisonment as well as
    fine.

    35. Section 65 of IPC applies to all cases, where the
    offence is punishable with imprisonment as well as fine,
    i.e., cases where fine and imprisonment can be awarded
    and also those where the punishment may be either fine or
    imprisonment, but not both and the only cases that does
    not apply are those dealt with in section 67 of the IPC
    where fine only can be awarded. When both these
    provisions are harmoniously effectuated, the result is that
    the default clause cannot exceed the one fourth of the
    imprisonment term, which is maximum fixed for the
    offence, would come into play. This is irrespective as to
    whether, the sentence actually awarded is only fine, even
    in cases where both prison term and fine could have been
    awarded.

    36. On careful examination, the sentence passed in
    this case by the learned magistrate is not in accordance
    with law. As such this court proceed to examine the powers
    of the appellate court with regard to modification of
    sentence.

    19 Crl.A.No.1728/2023

    Section 386(b)(iii) and proviso to Sec.386 provides that;

    386. Power of the Appellate Court. After perusing such
    record and hearing the appellant or his pleader, if he
    appears, and the Public Prosecutor if he appears, and
    in case of an appeal under section 377 or section 378,
    the accused, if he appears, the Appellate Court may, if
    it considers that there is no sufficient ground for
    interfering, dismiss the appeal, or may-

    (a) xxxxx

    (b) xxxxx
    (I) xxxxx
    (ii )xxxxx

    (iii) with or without altering the finding, alter the nature
    or the extent, or the nature and extent, of the sentence,
    but not so as to enhance the Same;

    Provided further that appellate court shall not inflict
    greater punishment for the offence which in its opinion
    the accused has committed than might have been
    inflicted for that offence by the court passing the order
    or sentence under appeal.

    37. On careful examination of the above stated
    provision, the appellate court can alter the sentence, the
    only rider is that appellate court is not empowered to
    enhance the same and not to inflict greater punishment
    than the one might have been inflicted by the trial judge.

    38. In view of the above mentioned observation, this
    court proceed to modify the sentence as follows:

    Accused is sentenced to pay fine of
    Rs.7,60,000/- and out of which complainant is
    entitled for compensation of Rs.7,50,000/- as
    20 Crl.A.No.1728/2023

    provided u/s 357(1)(b) of Cr.P.C. The remaining
    amount of Rs.10,000/- is ordered to be defrayed
    to the State. In default to payment of fine, the
    accused shall undergo simple imprisonment for
    six months.

    39. It is made clear that serving default sentence by
    the accused will not absolve the accused from paying the
    fine amount. As such the point No.3 taken up for
    consideration is held partly in the affirmative.

    40. Point No.4:- For the foregoing reasons on point
    Nos.1 to 3, I proceed to pass the following:

    ORDER

    The Criminal Appeal filed by the
    appellant /accused u/s 374 of Cr.P.C. is
    hereby allowed in part.

                       The    judgment      of    conviction
            passed in        C.C.No.28141/2021 dated
            03.11.2023        on the file of XX Addl.
            CMM, Bengaluru is hereby confirmed.
    
                 Sentence is modified as below:
    
                       Accused is sentenced to pay fine
            of     Rs.7,60,000/-,     out        of      which
            Rs.7,50,000/-      has    to    be        paid   as
                                 21               Crl.A.No.1728/2023
    
            compensation      to     the    complainant   as
    

    provided under Section 357(1)(b) of Cr.P.C.

    Remaining amount of Rs.10,000/- is
    ordered to be defrayed to the State. In
    default to payment of fine, the accused
    shall undergo simple imprisonment for six
    months.

    It is made clear that serving default
    sentence by the accused will not absolve
    the accused from paying the fine amount.

    Send back the trial court records
    along with copy of this judgment for
    further action.

    (Dictated to the Stenographer Grade-1 / Sr.Sheristedar directly on
    computer, typed by her, corrected by me and then pronounced in the
    open Court on this the 16th day of April, 2026)

    (MALLIKARJUNA SWAMY H.S.)
    LX Addl. City Civil & Sessions Judge,
    Bengaluru.



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