Bangalore District Court
Bhabani Sankar Mallick vs Suhel Pasha F on 15 April, 2026
KABC030906302022
Presented on : 26-12-2022
Registered on : 26-12-2022
Decided on : 15-04-2026
IN THE COURT OF XX ADDL.CHIEF JUDICIAL
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.J.M.
Bengaluru.
Dated this the 15th day of April 2026
C.C.No. 38968 / 2022
Complainant : Mr.Bhabani Sankar Mallick,
S/o. Mr.Managobinda Mallick
Aged about 32 years,
Residing at - A7 104
Paramount Pilatus Apartment
Venugopal Reddy Layout,
Arekere - 560 076
{ By Sri.Ayantika Mondal - Advocate }
Vs.
2 C.C. No.38968 /2022
Accused : 1. Mr. Suhel Pasha F
D/o. Unknown
Aged about 35 years,
R/at Flat No.302, 3rd Floor,
Babji Periodot
23rd Main, J P Nagar, 5th Phase,
Bengaluru - 560 078
Karnataka
Mob No. 99724 73203
2. Ms Runa Khan
D/o. Unknown
Aged about 34 years,
R/s at Flat No.302,
3rd Floor, Babji Periodot
23rd Main, J P Nagar, 5th Phase,
Bengaluru - 560 078
Karnataka
{ By Sri.Mekhala Ramesh- Advocate }
Offence complained : U/S. 138 of N.I. Act.
Plea of accused : Pleaded not guilty.
Final Order : Accused is convicted
Date of Order : 15.04.2026.
3 C.C. No.38968 /2022
JUDGMENT
The present complaint is filed under section 200 of
code of criminal procedure against the accused seeking to
punish him for the offense punishable under section 138
of the Negotiable Instruments Act ( in short referred as “N.I.
Act“).
02. The brief facts of the complaint are as under.
It is stated that, the complainant and accused
persons are known to each other. In the month of May
2019 both accused have approached the complainant to
advance them hand loan of Rs.15 lakhs. In order to pay
hand loan to the accused persons a long agreement has
been entered between complainant and accused persons on
04.05.2019 regarding repayment of the hand loan to be
payable with interest at rate of 10% per month and further
agreed to pay Rs.1 lakh per month as penalty. Thereafter
on 09.05.2019 the complainant has transferred an amount
of Rs. 15 lakhs to the bank account of accused No.1 vide
account No. 50200019366500 of HDFC Bank. It is further
4 C.C. No.38968 /2022
stated that, in the month of June 2019 the accused have
approached the complainant citing several financial issues,
there flats were unsold and also they were not able to find
proper tenant and lessee therefore they have made
payment of interest amount from time to time shown as
under.
DATE NAME TRANSACTION ID AMOUNT (RS)
13.06.2019 Ajay Kumar 0000916420408232 10,000/-
13.06.2019 Ajay Kumar 0000916420411112 10,000/-
13.06.2019 Ajay Kumar 0000916420423711 5,000/-
07.01.2019 Ajay Kumar 0000918222702566 18,000/-
14.07.2019 Ajay Kumar 0000091956029676 20,000/-
14.07.2019 Ajay Kumar 0000919506801393 20,000/-
13.09.2019 Suhel 0000925612162354 50,000/-
01.11.2019 Ajay kUMAR 0000093059828453 10,000/-
02.01.2020 AjAY Kumar 0000000216162513 9,900/-
06.03.2020 Ajua Kumar 0000006617723838 20,000/-
09.03.2020 Ajy Kumar 0000006910560667 15,000/-
04.04.2020 Ajay Kumar 0000009519668036 10,000/-
14.09.2020 Ajy Kaumr 0000025821094095 20,000/-
06.03.2021 Jay Kumar 0000115408228568 5,000/-
TOTAL 2,22,900/-
It is further stated that since March 2021 the
accused have failed to pay any kind of interest as per the
agreement and also have not paid Rs. 1 lakh per month as
5 C.C. No.38968 /2022
per agreement in spite of several request made by the
complainant. Thereafter, after having multiple discussion
and deliberations, the accused have amicably settled the
matter with the complainant for a sum of Rs.17,02,845/-.
To pay the settled amount, , the accused have issued
cheque bearing No. 000137 for Rs.17,02,845/- dated
01.07.2022 drawn on HDFC Bank, T Nagar , in Tamil
Nadu. When the Complainant had presented the said
cheque with banker for encashment, it has returned
unpaid due to “Stop payment ” as per bankers return
memo dated 04.07.2022. Thereafter on 27.07.2022 the
Complainant got issued demand notice to the ac by RPAD
and both have returned un-served. Therefore, the accused
neither has paid the cheque amount nor has given any
reply. Therefore, it is prayed to punish the accused under
section 138 of NI Act and grant him compensation.
03. On presentation of the complaint, this court has
verified the averments of the complaint and also annexed
documents. Having made out prima facie case cognizance
6 C.C. No.38968 /2022
has been taken for the offense punishable u/s 138 of NI
Act. As per the verdict of Hon’ble Apex Court in the case of
Indian Bank Association V/s. Union of India and others
sworn statement of the Complainant has been recorded as
PW1 and in all got marked 8 documents at Ex.P1 to P8.
Having made out prima facie case it is ordered to register
the complaint in register No.III and to issue process against
the accused.
04. In response to the court summons, the accused
persons have put their appearance before the court
through their counsel and filed bail application under
section 436 of Cr.P.C., along with necessary applications,
since the alleged offense is bailable in nature, accused
persons have been enlarged on bail. The plea has been
recorded and read over to them, they pleaded not guilty
and wanted to put forth their defense. As per section 145
of the Negotiable Instruments Act, sworn statement of the
Complainant has been treated as affidavit evidence and
the accused has been permitted to cross-examine of PW1.
7 C.C. No.38968 /2022
After terminating the Complainant side evidence, the
statement of accused under section 313 of Cr.P.C., read
over and explained to accused the incriminating evidence,
the accused denied the same in toto and also wanted to
adduce evidence on their behalf. But in spite of giving
sufficient time, they have failed to adduced their evidence.
However, during cross-examination of PW1 one document
have been got marked as Ex.D1 on their behalf.
05. The prosecuting counsel have filed written arguments.
On behalf of the accused persons neither oral arguments
have been advanced nor written arguments have been filed.
06. The following points that arise for my consideration
are as under;
POINTS
1. Does the complainant proves
beyond reasonable doubts that, the
accused has issued cheque bearing
No. 000137 for Rs.17,02,845/-
dated 01.07.2022 drawn on HDFC
8 C.C. No.38968 /2022
Bank, T Nagar , in Tamil Nadu.
towards the discharge of his lawful
debt of the complainant and when
the Complainant presented the said
cheque for encashment, it was
returned unpaid due to shara as
“Stop Payment” as per banker’s
memo and in-spite of issuance of
demand notice, the accused has
failed to pay the cheque amount,
thereby has committed the offence
punishable under section 138 of NI
Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the convicted
2. Point No.2: As per final order
for the following;
REASONS
POINT No.1:
08. It is the specific case of the complainant that, for their
personal requirements both accused have borrowed a sum
9 C.C. No.38968 /2022of Rs.15 lakhs as hand loan from the complainant agreeing
to repay the same with interest @ of 10% per month and
also penalty of Rs.1 lakh per month. Thereafter they have
paid in all Rs.2,22,900/- interest from time to time. Even
after that, they have failed to pay the interest from March
2021. With several discussions and deliberations the
matter has been settled amicably for a sum of
Rs.17,02,845/- and accordingly, disputed cheque has been
issued. When the Complainant has presented the said
cheque with his banker for encahsment, it has returned
unpaid due to “Stop Payment”. Thereafter in spite of
issuance of the demand notice by RPAD at two addresses,
but both have returned unserved with a shara as ‘left
returned to sender’, the accused neither has paid the
cheque amount nor has given any reply. Wherefore, it is
sought to prosecute the accused under section 138 of NI
Act and to grant him compensation.
09. To substantiate and to prove his case beyond all
reasonable doubts, the sworn statement of complainant
10 C.C. No.38968 /2022has been treated as affidavit evidence. PW1 has replicated
the averments of the complaint and got marked in all 8
documents. Ex.P1 is the disputed cheque, Ex.P2 is the
bank return memo, Ex.P3 is the demand notice, Ex.P4 and
5 are the postal receipts, Ex.P6 and 7 are the returned
RPAD Covers, Ex.P8 is the bank account statement. To
disprove the case of the Complainant and also to rebut the
Legal presumptions which could be drawn in favour of
complainant, the accused have not entered in the witness
box to lead their evidence. However, during cross-
examination of PW1, they have got marked one agreement
as Ex.D1.
10. Before to venture in the appreciation and reliability
of oral and documentary evidence produced on records, it
is imperative on this court to find out whether the
Complainant has complied the necessary ingredients of
section 138 of NI Act before filing the present complaint.
11 C.C. No.38968 /2022
11. Looking upon the disputed cheque, bank return
memos, demand notice at Ex.P.1 to 3 it can be seen that,
the disputed cheque had been presented with bank within
its validity period and demand notice has been issued
within 30 days from the date of receiving the bank return
memo. As per the RPAD returned covers at Ex.P6 and P7,
both have returned un-served with a shara as ‘ left returned
to sender’. Even during cross-examination of PW1 the
service of demand notice is disputed. But, the accused
neither have entered in the witness box nor have produced
any documentary evidences to show that, their place of
residence is different then that of the addresses shown on
Ex.P6 and P7. On the contrary, looking to the postal shara
made on Ex.P6 and P7, it can be concluded that, both the
RPAD covers have been sent to the correct and proper
address of the accused persons and as per Section 27 of
General Clauses Act there is a deemed service of demand
notices. Therefore, I am of the considered opinion that,
the present complaint has been filed before this court only
12 C.C. No.38968 /2022
after the fulfillment of the requirements of section 138 of NI
Act.
12. Section 118 & 139 of NI Act are two important
provisions and they provides for raising mandatory
presumptions in favour of the complainant until the
contrary is proved by the accused. Even in the catena of
decisions i.e., in the case of Rangappa Vs. Mohan reported
in 2010(11) SCC 441, in the case of Bir Singh Vs. Mukesh
Kumar reported in 2019(4) SCC 197, in the case of APS
Forex Services (P) Ltd., Vs.Shakthi International Fashion
Linkers reported in 2020(12) SCC 724, in the case of
Rajeshbai Muljibhai Patel Vs. State of Gujarat, reported in
2020(3) SCC 794, in the case of Triyambak S. Hegde Vs.
Sripad reported in Live Law 2021 SC 492 , a precedent is
laid down that, ” Once the issuance of cheque and the
signature thereon is admitted by the accused, the court is
required to raise presumption in favour of the the
complainant stating that, the accused has issued the
cheque for some consideration towards discharge of his
13 C.C. No.38968 /2022
legal debt or liability of the complainant and that the
complainant is the due holder of the said cheque. The
burden or reverse onus shifts on the accused to rebut the
statutory presumptions under sections 118(a) & 139 of NI
Act.” Now, it is well established law that, the presumption
mandated by section 139 of NI Act, thus indeed includes
the existence of legally enforceable debt or liability and it is
open for the accused to raise a probable defense wherein
the existence of legally enforceable debt or liability can be
contested and he shall prove before the court on
preponderance of probabilities, only thereupon a statutory
presumption raised in favour of the complainant stands
rebutted.
13. In the instance case on hand, in para No.2 to page No.7
of the cross-examination of PW1 a simple suggestion is
made stating that, the disputed cheque do not bear the
signature of the accused No.2. On bear perusal of cheque
at Ex.P1 it bears the only the signature of accused No.1.
The liability of accused No.2 could be decided later. Since
14 C.C. No.38968 /2022
the signature of accused No.1 is not disputed on the
cheque both the legal presumptions under section 118
and 139 of NI Act shall operates in favour fo the
complainant. Now, the reverse burden shifts on the
accused persons to rebut the said legal presumptions. It is
well settled law that, to rebut the said legal presumptions
the accused shall raise probable defence and to prove the
same by producing cogent, strong, reliable and acceptable
evidence, only there upon the onus shifts on the
complainant to prove his case beyond reasonable doubts.
During cross-examination of PW1 several factual aspects
have been culled out such as complainant advancing hand
loan with interest without have finance license. No such
further evidence is culled out from the complainant that,
he is the habitual money lender and has advanced loan on
interest to several persons therefore of his having no
license do not fatal to his present case. It is the defense of
the accused that, they have repaid the alleged hand loan by
way of cash and at that time he has returned credit card
and other documents of the accused and there was no
15 C.C. No.38968 /2022
other reasons to withheld the disputed cheque. To
substantiate and to prove this defense the accused have
not entered in the witness box so also no such material
evidence has been culled out during the cross-examination
of PW1. Even the accused persons have not produced any
documentary evidences or have not adduced the oral
evidence of any independent witnesses to hold that, they
have repaid the alleged hand loan to the complainant and
one Sri.Ajay Kumar by way of cash. Though PW1 has
admitted in his cross-examination on page No.8 stating
that, he has not given any reminder notice to the accused
persons for repayment of the alleged hand loan. This
evidence do not impact on the cheque bounce case. In the
cheque bounce case in order to complete the offense there
is separate issuance of demand notice and the same has
been issued as per Ex.P3 in the present complaint.
Further in the cross-examination of PW1, PW1 has
admitted that, he has not got declared the disputed hand
loan amount in his IT returns from 2019 and onwards. It
is for the IT authorities to take action against the
16 C.C. No.38968 /2022
complainant as per the IT Act. During further cross-
examination of PW1 one agreement has been got marked as
Ex.D1 on the admission of that document by PW1. The
recitals of Ex.D1 loan agreement clearly reveals that, it was
entered between both the accused persons and the
complainant. According to this document both accused
have taken hand loan of Rs.15 lakhs from Mr. Bhabani
Sankar Mallick who is none other than the present
complainant. Ex.D1 further reveals that, on failure of
both accused to pay the settled amount, both are suppose
to pay penalty amount of Rs.1 lakh monthly. Since this
documents has been got marked only upon the admission
of PW1 during his cross-examination. Therefore, the due
execution of this loan agreement cannot be further proved
by leading the evidence of its attesting witnesses. In the
bank account statement produced at Ex.P8 several entries
have been found regarding repayment of some amount as
pleaded in the complaint. By considering the oral evidence
of PW1 coupled with the bank account statement at Ex.P8,
Ex.D1 loan agreement, I am of the considered opinion that
17 C.C. No.38968 /2022
the complainant have prove his case beyond reasonable
doubts. On the contrary the accused persons neither have
produced their bank account statement nor have adduced
the oral evidence of any independent witness. Therefore,
the accused have failed to put forth probable defense and
prove the same. Though in the cross-examination of PW1
he has admitted that, the cheque at Ex.P1 do not bear the
signature of accused No.2. It is well settled law that, in
order to prosecute two person simultaneously , they must
be joint account holder. However, looking to the loan
agreement at Ex.D1, since both accused have borrowed
hand loan by executing this loan agreement, I am of the
considered opinion that both accused persons are liable for
the prosecution of offense u/s 138 of NI Act. Hence, I
answer point No.1 in the Affirmative .
POINT NO.2:
14. In the case of M/s. Banavathy & Company V/s.
Mahavir Electro Mech (P). Ltd. And others in Criminal
Revision Petition No.996/ 2016 the Hon’ble High Court of
18 C.C. No.38968 /2022
Karnataka pleased to direct all trail court to impose for
further interest @9% p.a. on the compensation amount. In
the light of guidelines issued by the Hon’ble High Court of
Karnataka I proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused No.1
and 2 are hereby convicted for the offense
punishable under section 138 of
Negotiable Instrument Act and sentenced
to pay fine of Rs.17,55,000/- together
with future interest @ 9% p.a. from the
date of default to till the date of deposit.
In default, accused No.1 and 2 shall
undergo simple imprisonment for 1(one)
year.
Acting under section 357(1) of code of
criminal procedure, it is ordered that an
amount of Rs.17,50,000/- (Rupees
Seventeen Lakhs Fifty Thousand only)
19 C.C. No.38968 /2022
along with interest accrued there from
shall be paid to the complainant as a
compensation remaining amount of
Rs.5,000/- (Rupees Five Thousand only)
is defrayed to the state for the expenses
incurred in the prosecution.
The bail bond of accused persons
stands canceled subject to appeal period.
Supply free copy of judgment to the
accused persons.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected
and then pronounced in the open court on this 15th day of April 2026}.
(BHOLA PANDIT)
XX ACJM,
ANNEXURE
List of witnesses examined on behalf of complainant:
P.W.1 Bhabani Sankar Mallick
List of documents produced on behalf of complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of the legal notice
20 C.C. No.38968 /2022
Ex.P.4 & 5 Postal receipts - 2 Nos.
Ex.P.6 & 7 Closed postal covers
Ex.P.8 HDFC Bank Statement
List of witnesses examined on behalf of accused:
Nil
List of documents produced on behalf of accused:
Ex.D.1 Loan agreement
XX A.C.J.M. Bengaluru.