Bangalore District Court
Roopa S Murthy vs Sandeep Patel B on 2 April, 2026
KABC030145422023
Presented on : 11-04-2023
Registered on : 11-04-2023
Decided on : 02-04-2026
Duration : 2 years, 11 months, 21 days
IN THE COURT OF LII ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU CITY
PRESENT
SMT.LAVANYA.H.N, B.Sc., LL.B.,
LII Addl. Chief Judicial Magistrate,
Bengaluru.
Dated this the 2nd day of April, 2026
C.C. No.8557/2023
COMPLAINANT: SMT.ROOPA S. MURTHY,
W/o.Late Sadashiva Murthi,
R/at No. 99/5, 6th Main Road,
2nd Cross Road, Govindarajanagara,
Bengaluru - 560 040.
(Rep By: Sri.C.S.Ravishankar - Advocate)
V/s.
ACCUSED: SRI.SANDEEP PATEL.B,
C/o.Usha Sandeep,
R/at Mathakur Village,
Kakolu Post, Hesaraghatta Hobli,
Bengaluru North Taluk.
(Rep By : Sri.R.Narayana Swamy - Advocate)
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C.C.No.8557/2023
Date of presenting 13.02.2023.
complaint
Date of arrest of accused NIL
Name of the Complainant SMT.ROOPA S. MURTHY.
Date of commencement of 23.01.2024.
evidence
Date of closing evidence
22.08.2025.
Offence complained of Section 138 of Negotiable Instruments
Act, 1881.
Date of Judgment 02.04.2026.
Opinion of the Judge Accused found not guilty.
:JUDGMENT:
This Complainant has presented the complaint on
13.02.2023 against the accused for the offense punishable
under Sec.138 of Negotiable Instruments Act, 1881
(hereinafter it is referred to as NI Act).
2. THE BRIEF FACTS OF THE COMPLAINANT’S CASE
ARE AS UNDER:-
a) It is the case of the complainant that the accused
has approached and requested the complainant for financial
assistance to meet his immediate financial commitments
towards Surgery of his wife in the month of July 2022 and
has agreed to repay the said loan amount with interest at the
rate of 24% per annum within three months. The
3
C.C.No.8557/2023complainant has advanced a sum of Rs.4,00,000/- (Rupees
Four Lakhs Only) as hand loan through Cash to the accused.
b) It is further case of the complainant that the
accused has neither paid the principal amount nor interest as
agreed. After persistent demands and requests, the accused
has issued a Cheque bearing No.000004 dated 20.10.2022,
drawn on The Karur Vysya Bank Limited, BTM Layout
Branch, Bangalore for a sum Rs.4,00,000/- (Rupees Four
Lakhs Only), to discharge the aforesaid loan amount.
c) It is further case of the complainant that as
assured by the accused, when the said Cheque was presented
for payment with his banker Bharat Co-operative Bank
Limited, Magadi Road Branch, Bangalore, the same was
returned dishonored with the Bank Endorsement dated
09.12.2022 ‘FUNDS INSUFFICIENT’.
d) It is further case of the complainant that the
complainant has issued the Legal notice dated 19.12.2022, to
the accused through Registered Post Acknowledgment due,
calling upon the accused to pay the amount due under the
Cheque. Though the accused has been duly served with notice
on 05.01.2023, the accused did not pay the cheque amount
within the prescribed period. Hence, the complainant was
constrained to file this complaint.
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C.C.No.8557/2023
3(a) After presenting the complaint cognizance of the
offense under Section 138 of N.I Act, was taken. As a prima-
facie case was made out against the accused, by order dated
11.04.2023 Criminal Case was registered and process was
issued to the accused.
3(b) In response to the summons, accused has caused
his appearance through Sri.R.Narayana Swamy – Advocate
and got obtained the bail on 23.01.2024. The substance of
accusation was recorded on 23.01.2024. Since the accused
pleaded not guilty and claimed to be tried, the matter was
posted for trial.
4. The sworn statement of the complainant was
treated as examination-in-chief of complainant and the
documents at Ex.P.1 to P.5 are marked through PW.1.
5. All the incriminating evidence appearing against
the accused in the evidence of PW.1 has been read over and
explained to the accused under Section 313 of Cr.P.C., and
accordingly, answers given by the accused were recorded.
6. The accused in order to prove his defense, he
himself examined as DW.1 and got the document marked at
Ex.D.1.
7. Having heard Sri.C.S.R – Advocate for the
complainant and Sri.BSP – Advocate for the accused and on
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C.C.No.8557/2023
perusal of the materials available on record, the points that
would arise for determination are as under:-
POINTS
1) Whether the complainant proved that the
accused has issued cheque bearing No.000004
for Rs.4,00,000/- dated 20.10.2022 drawn on
Karur Vysya Bank, Ltd., BTM Layout Branch in
favour of the complainant towards discharge of
lawful dues to the complainant?
2) Whether the Complainant proved that the
complainant has presented the said Cheque
within a period of its validity for encashment
through his banker, Bharat Co-operative Bank
Ltd., Magadi Road Branch, which came to be
dishonored with an endorsement “FUNDS
INSUFFICIENT”
3) Whether the Complainant proved that the
demand notice was issued within one month
from the date of endorsement of the Bank and
accused has been duly served with the demand
notice ?
4) What order or sentence?
8. The answers to the above points are as follows:
Point No.1 : In the NEGATIVE;
Point No.2 : In the AFFIRMATIVE;
Point No.3 : In the AFFIRMATIVE;
Point No.4 : As per final order
for the following:
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C.C.No.8557/2023
REASONS
POINT Nos.1 to 3:
9. To avoid repetition of facts, these points are taken
up together for common discussion.
9(a) It is the argument of the Learned counsel for the
complainant that the accused has not disputed that the
cheque at Ex.P1 belong to his account and has admitted his
signature thereon. Further, the accused has also admitted the
financial transaction between the complainant and himself.
When the accused admits his signature on the cheque, the
burden lies upon him to rebut the presumption under Section
139 of the N.I. Act. However, the accused has failed to rebut
the presumption favor the complainant that the cheque was
issued towards discharge of a legally recoverable debt. Since
accused has borrowed hand loan of Rs.4,00,000/- from the
complainant and for the discharge of the above loan, Ex.P.1
was issued, the accused neither given reply nor filed any
complaint for alleged misuse of blank cheque.
9(b) Learned counsel for the complainant further
submits that an offence under Section 138 of the N.I. Act is a
statutory offence. In such cases, the accused must specifically
plead and prove his defense. But, the accused has failed to
prove that the accused has borrowed Rs.1,25,000/- and the
same was repaid and cheque in question was not issued
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C.C.No.8557/2023
towards repayment of Rs.4,00,000/-. On the contrary, the
complainant has proved her case through oral and
documentary evidence. The learned counsel for the
complainant in support of his argument has placed reliance
upon the following decisions:
1. In Criminal Appeal No.1755/2010 between Sanjabij Tari
Vs. Kishore S. Borcar and another‘s case, wherein Hon’ble
Apex Court has held that:
29. Furthermore, the fact that the accused has failed to
reply to the statutory notice under Section 138of the NI Act
leads to an inference that there is merit in the Appellant-
Complainant’s version. This Court in Tedhi Singh Vs. Narayan
Dass Mahant, (2022) 6 SCC 735 has held that the accused
has the initial burden to set up the defence in his reply to the
demand notice that the complainant did not have the financial
capacity to advance the loan. The relevant portion of the said
judgment is reproduced hereinbelow:-
“10. … The proceedings under Section 138 of the NI
Act is not a civil suit. At the time, when the
complainant gives his evidence, unless a case is set
up in the reply notice to the statutory notice sent,
that the complainant did not have the wherewithal, it
cannot be expected of the complainant to initially
lead evidence to show that he had the financial
capacity. To that extent, the courts in our view were
right in holding on those lines. However, the accused
has the right to demonstrate that the complainant in
a particular case did not have the capacity and
therefore, the case of the accused is acceptable which
he can do by producing independent materials,
namely, by examining his witnesses and producing
documents. It is also open to him to establish the
very same aspect by pointing to the materials
8
C.C.No.8557/2023produced by the complainant himself. He can further,
more importantly, achieve this result through the
cross-examination of the witnesses of the
complainant. Ultimately, it becomes the duty of the
courts to consider carefully and appreciate the
totality of the evidence and then come to a conclusion
whether in the given case, the accused has shown
that the case of the complainant is in peril for the
reason that the accused has established a probable
defence.”
2. In AIR 2023 SUPREME COURT 5018 between Rajesh
Jain Vs. Ajay Singh‘s case, wherein Hon’ble Apex Court has
held that:
“Negotiable Instruments Act (26 of 1881),
S.138, S.139 Cheque dishonour Legally enforceable
debt Presumption of Cheque issued by accused
towards repayment of debt availed from complainant,
was dishonoured Accused neither replied demand
notice nor presented any rebuttal evidence Instead,
accused claimed that blank cheque had been
misused by complainant Accused however failed to
provide any substantial evidence or file a police
complaint regarding alleged missing cheque In
contrast, case of complainant remained consistent
and signature of accused on was cheque
unchallenged, allowing presumption as to legally
enforceable debt to take effect High Courts
erroneously questioned complainant’s lack of
evidence to support loan claim instead of focusing on
whether accused had successfully discharged his
burden to show absence of any debt at time of
issuing cheque”.
3. In Criminal Appeal No.1581/1999 between Gorantla
Venkateshwara Rao Vs. Kolla Veera Raghava Rao and
another‘s case, wherein Hon’ble Apex Court has held that:
9
C.C.No.8557/2023
“30. The legal position on this aspect is very
clear that the body of the cheque need not
necessarily be written by the accused and it can be in
the handwriting of the anybody else or typed on a
type machine, so long as the accused do not dispute
the genuineness of the signature on the cheque. The
following decision in this regard, renders help to me.
31. In Satish Jayantilal Shah v. Pankaj
Mashruwala 1996 Cri LJ 3099 the High Court of
Gujarat held that law does not provide that in case of
any negotiable instrument, entire body has to be
written by maker or drawer only. What is material is
signature of drawer or maker and not the body
writing, hence, the dispute relating to body writing
has no significance.
40. The mere loss of the demand promissory
note or its non-production by itself would not be
sufficient to hold that there was no legally
enforceable debt. There are no other probable
circumstances placed by the accused in the process
of discharge of his burden. The failure of the accused
in giving reply to the legal notice issued by P.W. 1 is
one of the strong circumstances to draw an inference
that the accused borrowed the amount from P.W. 1
and the cheque was issued towards part payment of
the legally enforceable debt”.
4. In ILR 2001 KAR 4127, 2001 (4) KARLJ233 between
S.R.Muralidar Vs. Ashok.G.Y‘s case, wherein Hon’ble High
Court of Karnataka has held that:
“7. It is not objectionable or illegal in law to
receive a inchoate negotiable instrument duly signed
by the maker despite the material particulars are
kept blank if done with an understanding and giving
full authority to the payee to fill up the material
10
C.C.No.8557/2023contents as agreed upon. Such a course of action in
law cannot vitiate the transaction nor can. invalidate
the negotiable instrument issued and such
transaction fully binds the maker of the negotiable
instruments to the extent it purports to declare”.
10(a) Per contra, it is the argument of the learned
counsel for the accused that on 06.12.2020 the accused had
borrowed hand loan of Rs.1,25,000/- from the complainant
with interest of 24% per annam. The accused has not
borrowed the loan of Rs.4,00,000/- from the complainant in
the month of July – 2022 as alleged in the complaint. The
accused has repaid the entire loan of Rs.1,25,000/- with
interest through phone pay and google pay. Though accused
has repaid the entire loan which he borrowed, without
disclosing the same by creating a false story of hand loan of
Rs.4,00,000/-, the complainant has filed the present
complaint by misusing the blank cheque given by the accused
at the time of availing hand loan of Rs.1,25,000/- from the
complainant on 06.12.2020. In order to prove the defense of
the accused with regard to repayment of Rs.1,25,000/-
towards principal amount and Rs.48,000/- towards interest
has produced his account statement at Ex.D.1. The
complainant in her cross-examination has also admitted that
cheque at Ex.P.1 was issued on 06.12.2020 when accused
borrowed loan of Rs.1,25,000/-. The complainant has not
produced any document to show that Rs.4,00,000/- was paid
to accused as alleged in the complaint, though the
complainant in her evidence has deposed that she has paid
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C.C.No.8557/2023
the alleged amount of Rs.4,00,000/- through her bank
account.
10(b) It is further argument of the learned counsel for
the accused that the complainant is a government servant.
The complainant being government servant lending money to
accused without interest that too without obtaining
permission from his higher authorities is illegal.
10(c) It is further argument of the learned counsel for
the accused that to validate the cheque in time, the
complainant herself has altered the month of cheque without
the consent and authorization of the accused, therefore the
cheque was returned unpaid for the reason of alteration for
not want of money. Since the complainant herself altered the
cheque without consent and valid authorization of the
accused, the cheque has become void in law and cannot be
enforceable and it would not attract Section 138 of NI Act.
Learned counsel for the accused in support of his argument
has relied upon the following decisions:
1. In 2022 (1) KCCR 294 between Nagappa Vs. Durgappa
alias Dyamappa H.Durgad‘s case, wherein Hon’ble High Court
of Karnataka has held that:
“NEGOTIABLE INSTRUMENTS ACT, 1881-
Sections 138 and 139-Acquittal-Complainant
being a school teacher, borrowing money as
loan and allegedly lending that amount to
accused without interest that too without
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C.C.No.8557/2023obtaining permission from his higher
authorities-Neither proving his financial
capacity nor that cheque in question was
issued towards discharge of legally enforceable
debt/liability-Acquittal justified”.
2. In 2010 (3) AIR KAR R 207 between S.Timmappa Vs.
L.S.Prakash‘s case, wherein Hon’ble High Court of Karnataka
has held that:
“A) Negotiable Instruments Act (26 of 1881),
S. 139 at the subject matter of presumption
under S. 139 – Drawee of cheque has to prove
existence of debt or liability.
(B) Negotiable Instruments Act (26 of 1881),
Ss. 118(a), (b), 139 – Presumption as under – In
complaint, it is merely stated that accused
borrowed Rs. 1,30,000/- as hand loan from
complainant – Complaint — do not state date on
which complainant s advanced said loan – Even
in examination-in-chief, complainant has not
spelled out date on which loan was advanced
However in cross-examination, it is elicited from
him that loan was advanced on 6-1-1995-
Perusal of cheque indicates that it bears date 6-
3-1995 – Therefore, according to clause (b) of S.
118 it was deemed to have been drawn on 6-3-
1995 – It is clear that no consideration has
passed under the cheque on 6-3-1995 as even
according to the complainant, the loan was
advanced on 6-1-1995-Therefore, presumption
under clause (a) of S. 118 of Act stood rebutted”.
3. In ILR 2007 KAR 1708 between Vishnudas Vs. Mr.Vijaya
Mahantesh‘s case, wherein Hon’ble High Court of Karnataka
has held that:
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C.C.No.8557/2023
“NEGOTIABLE INSTRUMENTS ACT, 1881-
SECTION 138-OFFENCE UNDER-ACQUITTAL-
Appealed against-Issue of cheque without
mentioning the date-Admission of PW-1 in the
cross-examination that there was no debt as on
the date of issue of cheque – ON FACTS, HELD,
On the date of handing over the cheque, there
was no debt due to be paid by the respondent
and wherefore the cheque was not issued
towards discharge of any debt-The facts elicited
in the cross-examination of PW-1 that the
cheque was undated on the date of its issue and
the same was presented for payment after six
months from the date of issue-The order of
acquittal is justified”.
4. In AIR 2009 (NOC) 397 (BOM) – 2008 (5) AIR Bom R 605
between Hanumant R. Naik Vs. Ajit Harmalkar’s case, wherein
Hon’ble High Court of Bombay has held that:
“Negotiable Instruments Act (26 of 1881),
S. 138 – Dishonour of cheque Complaint –
Cheque issued by accused was a blank cheque
and except signature, all details of cheque were
filled by complainant At what stage cheque was
filled has not been stated by complain-ant,
however evidence showed that complainant filled
cheque at later stage Said finding was not
disputed cheque is not a cheque in eye of law
Order acquitting accused – Is proper Further
complainant had not narrated entire history of
transaction between him and accused”.
5. In 2022 (4) AKR 510 between H.S.Venugopala Reddy Vs.
V.M.Ramesh‘s case, wherein Hon’ble High Court of Karnataka
has held that:
“NEGOTIABLE INSTRUMENTS ACT (26 if
1981)-Sections 138 and 139- Dishonour of
14
C.C.No.8557/2023cheque-Legally enforceable debt- presumption
as to – cheque issued by accused towards
repayment of hand loan from complainant, to
meet his family commitments, dishonored –
Accused accepted to have issued cheque but
asserted that complainant materially altered its
figure’s column – Except stating that he had
other income apart from salary, complainant
unable to produce any material to substantiate
his financial capacity to lend loan –
complainant working in Police Department, had
not obtained previous sanction of his employer
or superior to lend huge loan to accused – Mere
collection of disputed cheque by complainant
only towards alleged principal amount but not
inclusive of interest payable, also created doubt
– presumption as to legally enforceable debt in
favour of complainant under successfully
rebutted – Accused entitled to acquittal”.
6. In 2011 (5) KCCR 4223 between M.B.Rajasekhar Vs.
Savithramma‘s case, wherein Hon’ble High Court of Karnataka
has held that:
“NEGOTIABLE INSTRUMENTS ACT, 1881-
Section 138-Dishonour of Cheque-Offence of
Acquittal-Contents of cheque were in different
handwriting-Perusal of signature of accused on
cheque did not reveal that she had filled it in her
own hand-Inference can be drawn that either
cheque was blank or some other person had
filled its contents-Date on cheque found to be
altered so as to validate it without any
authentication-Accused pleading that she had
issued a post dated cheque as security-Also
raising probable defence-It is sufficient to rebut
presumption-Acquittal not liable to be interefered
with”.
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C.C.No.8557/2023
7. In ILR 2007 KAR 1708 between Vishnudas Vs. Mr.Vijaya
Mahantesh‘s case, wherein Hon’ble High Court of Karnataka
has held that:
“NEGOTIABLE INSTRUMENTS ACT, 1881-
SECTION 138-OFFENCE UNDER-ACQUITTAL-
Appealed against-Issue of cheque without
mentioning the date-Admission of PW-1 in the
cross-examination that there was no debt as on
the date of issue of cheque – ON FACTS, HELD,
On the date of handing over the cheque, there
was no debt due to be paid by the respondent
and wherefore the cheque was not issued
towards discharge of any debt-The facts elicited
in the cross-examination of PW-1 that the
cheque was undated on the date of its issue and
the same was presented for payment after six
months from the date of issue-The order of
acquittal is justified”.
8. In 2022 (3) AKR 314 – AIR Online 2022 KAR 3945
between Herman Castelino Vs. Suresh Kudva‘s case, wherein
Hon’ble High Court of Karnataka has held that:
“Negotiable Instruments Act (26 of 1881),
Ss.138,87 – Dishonour of cheque – Material
alteration in cheque – Alteration in cheque
admitted by drawee Bank Manager in his
evidence In date column, year appeared to be
manipulated and to have the postponed time of
payment – Hence, it was material alteration in
cheque – Alteration in date of cheque not made
in order to carry out common intention of
parties If material alteration is made to date of
cheque without any authentication thereto by
drawer of cheque, instrument becomes void”.
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C.C.No.8557/2023
9. In ILR 2006 KAR 3111 between B.Krishna Reddy Vs.
B.K.Somashekar Reddy‘s case, wherein Hon’ble High Court of
Karnataka has held that:
“NEGOTIABLE INSTRUMENTS ACT, 1881-
SECTIONS 87, 138-MATERIAL ALTERATIONS-
ACCOUNT BEARING A PARTICULAR A/C NO.
CLOSED-Complainant altered the account
number and presented to the bank for
encashment-Bank returned the cheque with an
acknowledgment “referred to the drawer”. Trial
Court acquitting the accused-whether proper-
HELD-If the endorsee were to make an alteration,
the liability of the endorser is discharged. It is
mandatory that in order to attract prosecution
under Section 138 of N.I.Act there should be any
debt or legal liability. In view of admitted material
placed on the part of PW1, the instruments has
become void in law-therefore, no acts in law
under Section 138 of N.I. Act could live. The
acquitted of the accused is sound and proper”.
11. Keeping in mind the well established and settled
principle laid down in the above decisions relied by the learned
counsel for the complainant and accused, let this Court to see
the case on hand.
12. To prove the guilt of the accused, PW1/the
complainant, in her examination-in-chief by way of affidavit,
has reproduced the averments made in the complaint and
produced documents marked at Ex.P1 to Ex.P5.
13. Ex.P.1 is the cheque bearing No.000004 for
Rs.4,00,000/- dated 20.10.2022 drawn on Karur Vysya Bank,
17
C.C.No.8557/2023
Ltd., BTM Layout Branch in favour of the complainant. Ex.P.2
is the bank memo dated 09.12.2022, wherein it could be seen
that the cheque at Ex.P1 presented by the complainant was
returned unpaid on 09.12.2022 for “REFER TO DRAWER”.
14. Ex.P3 is the office copy of the demand notice dated
09.12.2022 issued by the complainant to the accused through
her Advocate calling upon the accused to pay the cheque
amount within 15 days from the date of receipt of the notice.
Ex.P4 is the postal receipt for having sent the notice at Ex.P3
to the accused. Ex.P.5 is the postal acknowledgment having
receipt of the notice by the accused.
15. It is seen that the complainant has got the
demand notice on 19.12.2022 at Ex.P.3 issued within
stipulated period of 30 days from the date of receipt of
intimations of dishonor of Cheque. It is evident from Ex.P.5
that the accused was duly served with notice on or before
05.01.2023.
16. It is evident from the file that the complainant has
presented the present complaint on 13.02.2023 i.e., within the
period of one month after expiry of 15 days from the date of
receipt of the legal notice by the accused.
17. The accused has not raised any technical defenses
regarding non-fulfillment of the ingredients of section 138 of
N.I Act except that though the loan borrowed by the accused
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C.C.No.8557/2023
was repaid, by misusing the blank cheque given by the
accused at the time of borrowing the loan of Rs.1,25,000/-
and by creating a story of lending loan of Rs.4,00,000/- to the
accused has filed present case.
18. It is a settled principle that once the signature on a
cheque is admitted, a presumption arises under Section 139
of the N.I. Act that the cheque was issued in discharge of a
debt or liability. This presumption extends to the existence of
a legally enforceable debt or liability. There is no doubt
regarding the initial presumption in favor of the complainant.
However, this presumption is rebuttable. The initial onus lies
on the accused to rebut it by raising a probable defence to the
satisfaction of the Court. The standard of proof required is
‘preponderance of probabilities’. If the accused raises a
probable defence creating doubt about the existence of a
legally enforceable debt or liability, or shows that the
consideration was improbable, doubtful, or illegal, the onus
shifts to the complainant to prove the debt as a matter of fact.
Failure to do so results in the complainant’s case failing.
19. To invoke the presumption under Sections 118 and
139 of the N.I. Act, the complainant must establish that the
cheque belongs to the accused and bears his signature on it.
Here, the accused has not denied that Ex.P1 is his cheque and
his signature thereon. Thus, it is established that the cheque
at Ex.P.1 belongs to the accused and bears his signature.
19
C.C.No.8557/2023
20. Once the complainant discharges this burden, the
Court must presume under Section 139 of the N.I. Act that the
cheque was issued in discharge of a debt or liability. However,
this presumption is rebuttable. The Court must now examine
whether the accused has raised a probable defence to rebut it.
21. The accused in his defense evidence has deposed
that on 06.12.2020 he has borrowed loan of Rs.1,25,000/-
from the complainant agreeing to repay the same with interest
at the rate of 2% per month. He has paid interest for 19
months through phonepay of Rs.48,000/-. He has also repaid
loan amount of Rs.1,25,000/- in part by part through
phonepay and bank. Out of Rs.1,25,000/-, Rs.18,000/- was
credited to the account of daughter of complainant. Though
the accused was not liable to pay any amount, by misusing
the blank cheque given by the accused at the time of availing
the loan of Rs.1,25,000/-, the complainant has filed present
complaint.
22. Though the accused has been subjected to lengthy
cross-examination, nothing was elicited from the mouth of the
accused which favors the case of the complainant that as
alleged in the complaint in the month of July 2022, the
accused has borrowed loan of Rs.4,00,000/- from the
complainant and towards discharge of the said loan, cheque in
question was issued.
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C.C.No.8557/2023
23. From the above defense of the accused, it is clear
that accused and the complainant are known to each other
and there was a financial transaction between the
complainant and the accused. However, accused has denied
the case of the complainant that, the complainant gave a hand
loan of Rs.4,00,000/- in the month of July – 2022.
24. It is no doubt, the complainant in her cross-
examination has admitted that cheque in question was filled
by her. The complainant has also admitted that she only
altered the month in the cheque. She has also admitted that
in order to revalidate the cheque, she has made alteration in
the cheque. It is true, the cheque in question was not
dishonored for the reason of Insufficient Funds. Even it is not
the defense of the accused that he has sufficient money in his
account. From the available evidence on record, it is no doubt
and it could safely be said that since month in the cheque was
altered, the cheque was returned unpaid for the reason of
“REFER TO DRAWER”.
25. It is settled principle of law that before altering the
cheque, the validation from the accused is mandate. However,
the complainant without any authority and valid authorization
from the accused has made alteration. The alteration made by
the complainant in the cheque at Ex.P.1 is a material
alteration. Under the circumstances, by placing reliance upon
the principle laid down in the Herman Castelino‘s case and
B.Krishna Reddy‘s case referred supra, it is held that, Ex.P.1
21
C.C.No.8557/2023
has become void in law and it would not attract Section 138
of NI Act, since the complainant has carried out material
alteration at Ex.P.1.
26. The complainant in her cross-examination dated
01.02.2025, has clearly admitted that at the time of lending
hand loan of Rs.1,25,000/- on 06.12.2020, the blank signed
cheque in question was taken from the accused towards
security of the above loan. From this part of evidence of the
complainant, it can safely be said that the cheque in question
was not issued by the accused for repayment of alleged hand
loan of Rs.4,00,000/- alleged to have been paid in the month
of July – 2022.
27. As could be seen at Ex.D.1 – the Bank Account
Statement of the accused, in all, the accused has made
payment of Rs.1,73,000/- in different dates, between
03.02.2021 and 14.06.2022. Out of Rs.1,73,000/-,
Rs.18,000/- was credited to the account of daughter of the
complainant.
28. The complainant in her cross-examination has
stated that she has transferred the amount of Rs.4,00,000/-
to the accused through Bank. She has also deposed that she
will produce her bank statement to show the same.
Admittedly, the complainant is a Government Employee
working in a government department. Such being the case, if
any government servant’s lend any amount with interest or
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without interest, the same shall be disclosed in her assets and
liabilities. It is also true that before lending amount she has
to obtain prior permission from higher authorities. But, no
such document has been placed by the complainant to show
that she has obtained permission from higher authorities for
lending amount to the accused.
29. If really the complainant has paid Rs.4,00,000/- to
the accused through account as stated by the complainant,
the complainant could have been produced her account
statement to prove the same. But, no such account statement
has been placed. From this, it could be inferred that, since
the complainant has not lend hand loan of Rs.4,00,000/- to
the accused in the month of July – 2022, the complainant has
not produced any document in this regard.
30. Overall assessing the evidence of the complainant
and accused, it creates doubt in the mind of the Court with
regard to lending of hand loan of Rs.4,00,000/- to the accused
in the month of July – 2022. From the oral and documentary
evidence placed before the Court, it safely be said that the
complainant has paid Rs.1,25,000/- to the accused on
06.12.2020 and the same was repaid by the accused with
interest on various dates as reflected at Ex.D.1. When the
accused has raised a serious dispute with regard to alleged
payment of loan of Rs.4,00,000/-, the complainant ought to
have proved the same by adducing rebuttable evidence, but no
such evidence has been given by the complainant. The
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circumstances brought on record show the cheque was not
issued for the claimed amount of Rs.4,00,000/-. Hence, it is
held that the accused has rebutted the Section 139
presumption by raising and proving a probable defence
through the complainant’s own evidence.
31. Once rebutted, the onus shifts to the complainant
to prove that the accused was liable to pay Rs.4,00,000/- and
in order to discharge the said liability the cheque at Ex.P.1
was issued. But, this was not proved by complainant. In the
case on hand, the circumstances brought on record by the
complainant and accused show that the cheque in question
was not issued by the accused to the complainant as stated by
the complainant towards discharge of alleged liability of
Rs.4,00,000/-. The decisions relied upon by the learned
counsel for the complainant would not help the complainant
for proving her case. In view of the aforesaid discussions, it is
held that the complainant has failed to prove that cheque at
Ex.P.1 was issued towards legally enforceable debt, though the
complainant has proved the remaining statutory ingredients of
Section 138 of NI Act. Hence, Point No.2 and 3 are answered
in the AFFIRMATIVE and Point No.1 is answered in the
NEGATIVE.
POINT No.4:
32. In view of the above reasons, it is held that the
complainant has failed to prove that accused has committed
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the offense punishable under Section 138 of NI Act. Hence,
accused is entitled to acquittal for the offense punishable
U/Sec. 138 of N.I Act. Accordingly, this court proceeds to pass
the following:-
ORDER
The complaint filed by the complainant
U/Sec.200 of Cr.P.C for the offence punishable
under Section 138 of Negotiable Instrument
Act, 1881., is hereby dismissed.
Acting under section 255(1) of Cr.P.C, the
accused is Acquitted for the offense punishable
under Section 138 of Negotiable Instrument
Act, 1881.
The bail bond of the accused stands canceled.
(Dictated to Stenographer directly on computer, computerized
by him, corrected and then pronounced by me in the open
court on this the 2nd day of April, 2026)(LAVANYA.H.N)
LII ADDL. C.J.M., BENGALURU.
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF THE
COMPLAINANT/S:
PW-1 : SMT.ROOPA S. MURTHY.
DOCUMENTS EXHIBITED ON BEHALF OT THE
COMPLAINANT/S:
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C.C.No.8557/2023
Ex.P-1 Cheque.
Ex.P-2 Bank Memo.
Ex.P-3 Legal Notice dated 19.12.2022.
Ex.P-4 Postal Receipt.
Ex.P-5 Postal Acknowledgment.
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED/S:
DW-1 : SRI.SANDEEP PATEL.B.
DOCUMENTS EXHIBITED ON BEHALF OF THE ACCUSED/S:
Ex.D.1 : Bank Statement of accused.
(LAVANYA.H.N)
LII ADDL. C.J.M., BENGALURU.
Digitally
signed by
LAVANYA H N
LAVANYA Date:
HN 2026.04.04
15:12:05
+0530
