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.
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.1728/2023Bengaluru. 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.1728/2023unless 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.
