S. Puttamuddegowda vs Ammayi on 4 April, 2026

    0
    35
    ADVERTISEMENT

    Bangalore District Court

    S. Puttamuddegowda vs Ammayi on 4 April, 2026

    SCCH-2                         1          C.C.No. 4736/2023
    
    
    KABC020162662023
    
    
    
    
      IN THE COURT OF THE VI ADDL. JUDGE, COURT OF
          SMALL CAUSES AND ADDL. CHIEF JUDICIAL
           MAGISTRATE, BENGALURU CITY (SCCH-2).
    
                           C.C.No. 4736/2023
    
                              :: Present ::
    
                   Sri. H.P. Mohan Kumar, B.Sc.,LL.B.,
                     6th Addl. Judge, Court of Small
                        Causes and ACJM, Bengaluru.
    
             Dated: On this the 4th day of April, 2026.
    
    Complainant        :    Sri. S Puttamuddegowda
                            S/o late Lingaiah,
                            Aged about 65 years,
                            R/at: No.14, Behind P.E.S College,
                            Disoja layout, Banashankari 3rd stage,
                            Bengaluru 560085.
    
                            (By Sri. B P Shobha, Advocate)
    
                                 - Vs. -
    
      Accused          :    Smt. Ammayi
                            W/o late Kumar,
                            Aged about 48 years,
                            R/at: No.6, Opp. to Kino Theater,
     SCCH-2                         2               C.C.No. 4736/2023
    
    
                            V V Giri Kalony, Sheshadripuram,
                            Bengaluru 560020.
    
                            Office address:
                            Bruhat Bengaluru Mahanagara Palike
                            No.94(A)/03,
                            Sahayaka Karya Nirvahaki,
                            Gandhi nagara division,
                            Tulasi thota, Bengaluru 560053.
    
                           (By Sri. V S Ravindra Holla, Advocate)
    
    
                         :: J U D G M E N T :

    :

    The complainant has filed the present complaint
    U/Sec.200 of Cr.P.C., alleging that the accused has
    committed the offence punishable U/Sec.138 of Negotiable
    Instruments Act (herein after referred as N.I.Act).

    2. The case of the complainant in brief is as follows:-

    SPONSORED

    The complainant and accused are well known to each
    other since twenty years as both of them were working in
    BBMP. Based on the said acquaintance, during the month of
    October 2019 the accused has approached the complainant
    for financial assistance of Rs.5,00,000/- and agreed to pay
    interest at the rate of 2.5% p.m. and assured to return the
    same after three years. As per the request of the accused,
    the complainant has paid Rs.5,00,000/- to the accused by
    way of cash on 18.11.2019. At which point of time, the
    SCCH-2 3 C.C.No. 4736/2023

    accused has issued cheque bearing No. 757105 dated
    13.04.2023 for Rs.3,00,000/- and another cheque bearing
    No. 757106 dated 18.04.2023 for Rs.2,00,000/- which were
    drawn on Karnataka Bank, Neharunagara branch,
    Bengaluru. Even after repeated requests and demands made
    by the complainant also, the accused postponed the payment
    due to the reason of Covid-19. Without any other
    alternative, the complainant has presented the said cheques
    for encashment through his banker State Bank of India,
    Hosakerehalli branch on 13.04.2023 and 18.04.2023
    respectively. However, the said cheques were dishonored and
    returned unpaid with an endorsement as “Funds
    Insufficient” on 19.04.2023. Thereafter, the complainant
    has issued the legal notice to the accused on 06.05.2023
    which was served to the accused. In spite of service of notice
    also, the accused has neither paid the amount nor sent
    reply. Hence, cause of action arose to file the complaint.

    3. The cognizance was taken for the offence punishable
    U/Sec.138 of N.I.Act. After filing of the complaint, the sworn
    statement of the complainant was recorded and it prima-
    facie found that the accused committed the offence
    punishable U/Sec.138 of N.I.Act. Hence, criminal case was
    registered and the summons was issued to the accused.

    SCCH-2 4 C.C.No. 4736/2023

    4. In response to the summons, the accused appeared
    through her counsel and thereafter plea was recorded. The
    accused was denied the accusation leveled against her,
    claimed to be tried and stated that she has defence to make.
    Further, the statement of the accused as contemplated
    U/Sec.313 of Cr.P.C., was recorded. The accused has denied
    the incriminating evidence appeared against her in the
    evidence of complainant and submitted that she has defence
    evidence.

    5. The Hon’ble Apex Court of India in Indian Bank
    Association and Others vs Union Bank of India and
    Another
    reported in AIR 2014 SC 2528, held that “Sworn
    Statement of the complainant has to be treated as
    examination in chief”. In the instant case, the complainant
    got examined himself as P.W.1 and the documents have been
    marked at Ex.P.1 to Ex.P.9, Ex.P7(a), Ex.P7(b), Ex.P8(a).
    Thereafter, P.W.1 was subject to the process of cross-
    examination from the side of accused. It is pertinent to note
    that, Ex.D1 got marked during the course of cross-
    examination of PW.1 by way of confrontation. Per contra, the
    accused got examined herself as D.W.1 and the documents
    have been marked at Ex.D2 to Ex.D4. Thereafter, D.W.1 was
    subject to the process of cross-examination from the side of
    complainant. It is pertinent to note that, Ex.P10 and
    Ex.P10(a) got marked by way of confrontation during the
    SCCH-2 5 C.C.No. 4736/2023

    course of cross-examination of DW.1. Further, the accused
    has also examined one witness as DW.2 and he was cross
    examined from the side of complainant.

    6. Heard arguments from both sides. The learned counsel
    for complainant and counsel for accused have filed written
    arguments. Perused the materials available on record.

    7. Now the points that arise for consideration of this
    Court are as hereunder:

    1. Whether the complainant has
    proved that the accused has
    committed the offence
    punishable U/Sec.138 of
    N.I.Act?

    2. What Order?

    8. The findings of this Court to the above-referred points
    are as follows:

               Point No.1:    In the Negative.
               Point No.2:    As per final order,
                              for the following:-
    
    
                             REASONS
    
    

    9. POINT No.1: In order to prove the case, complainant
    examined himself as PW.1 by filing affidavit in support of his
    oral examination-in-chief. In the affidavit, PW.1 has
    SCCH-2 6 C.C.No. 4736/2023

    reiterated the complaint averments in verbatim. Hence, this
    Court need not to recapitulate the same once again at this
    juncture. In support of his oral testimony, PW.1 got marked
    the documents at Ex.P.1 to Ex.P.9, Ex.P7(a), Ex.P7(b),
    Ex.P8(a) . It is further pertinent to note that, Ex.P10 and
    Ex.P10(a) got marked by way of confrontation during the
    course of cross-examination of DW.1. Per contra, the
    accused got examined herself as D.W.1 and the documents
    have been marked at Ex.D2 to Ex.D4. It is pertinent to note
    that, Ex.D1 got marked during the course of cross-
    examination of PW.1 by way of confrontation. Further, the
    accused has also examined one witness as DW.2 and he was
    cross examined from the side of complainant.

    10. Now itself it is appropriate to see the documents
    marked at Ex.P-Series and Ex.D-Series.

    Ex.P-Series.

    Ex.P.1 and Ex.P2 are the cheques in question. Ex.P.1(a) &
    Ex.P.2(a) are the signatures of accused. Ex.P.3 & Ex.P.4 are
    the bank challans. Ex.P5 & Ex.P6 are the bank
    endorsements dated 15.04.2023 and 19.04.2023
    respectively. Ex.P.7 is the office copy of the legal notice
    dated: 06.05.2023. Ex.P.7(a) & Ex.P7(b) are the postal
    receipts. Ex.P8 is the returned postal cover. Ex.P8(a) is the
    returned notice. Ex.P.9 is the acknowledgment due card.

    SCCH-2 7 C.C.No. 4736/2023

    Ex.P10 is the hand loan agreement dated 18.11.2019 and
    Ex.P10(a) is the signature of accused.

    Ex.D-Series.

    Ex.D1 is the bank account statement pertaining to the
    accused. Ex.D2 & Ex.D3 are the transfer certificates
    pertaining to Nandini K and Prema K. Ex.D4 is the marriage
    invitation card pertaining to K Nandini.

    11. The learned counsel for accused has relied on the
    following decisions:

    i) AIR 1971 SC 1865 between Sait
    Tarajee Khimchand and others Vs.
    Yelamarti Satyam @ Satteyya
    .

    ii) Criminal Appeal No. 893/2007
    between L.I.C of India and another Vs.
    Ram Pal Singh Bisen
    .

    iii) AIR 2003 SC 4548 between R.V.E
    Venkatachala Gounder Vs. Arulmigu
    Viswesaraswami & V. P. Temple and
    another
    .

    iv) Appeal (Crl) No. 1255-1261/2004
    between D Vinod Shivappa Vs. Nanda
    Belliappa
    .

    SCCH-2 8 C.C.No. 4736/2023

    v) Criminal Appeal No. 2021/2008
    between M/s. Harman Electronics (P) Ltd
    and another Vs. M/s. National Panasonic
    India Ltd.,

    vi) Appeal (Crl) No. 1015/1999 between
    K Bhaskaran Vs. Sankaran Vaidhyan
    Balan and another
    .

    vii) Criminal Appeal No. 2402/2014
    between K Subramani Vs. K Damodara
    Naidu
    .

    viii) 2001 104 CC 348 between B P
    Venkatesulu Vs. K P Mani Nayar
    .

    ix) Criminal Appeal No. 3257/2024
    between Sri Dattatraya Vs. Sharanappa.

    This court has carefully gone through the decisions relied
    by the counsel for accused and applied the principles to the
    case on hand.

    12. Before going to discuss the main aspect, it is worth to
    reproduce the provisions of Sec.138 and 139 of N.I.Act, the
    same as hereunder:

    138. Dishonour of cheque for
    insufficiency, etc., of funds in the account: –

    SCCH-2 9 C.C.No. 4736/2023

    Where any cheque drawn by a
    person on an account maintained by
    him with a banker for payment of
    any amount of money to another
    person from out of that account for
    the discharge, in whole or in part,
    of any debt or other liability, is
    returned by the bank unpaid, either
    because of the amount of money
    standing to the credit of that
    account is insufficient to honour the
    cheque or that it exceeds the
    amount arranged to be paid from
    that account by an agreement made
    with that bank, such person shall
    be deemed to have committed an
    offence and shall, without prejudice
    to any other provisions of this Act,
    be punished with imprisonment for
    (a term which may be extended to
    two years), or with fine which may
    extend to twice the amount of the
    cheque, or with both:

    Provided that nothing contained
    in this section shall apply unless-

    SCCH-2 10 C.C.No. 4736/2023

    (a) the cheque has been
    presented to the bank within a
    period of Six months from the date
    on which it is drawn or within the
    period of its validity, whichever is
    earlier; (The period of 6 months has
    been reduced to 3 months, vide R.B.I.
    notification No.RBI/2011-
    12/251,DBOD.AMLBC
    No.47/14.01.001/2011-12, dated:4 th
    November 2011 (w.e.f. 01.04.2012))

    (b) the payee or the holder in due
    course of the cheque, as the case
    may be, makes a demand for the
    payment of the said amount of
    money by giving a notice in writing,
    to the drawer of the cheque, within
    thirty days of the receipt of
    information by him from the bank
    regarding the return of the cheque
    as unpaid; and

    (c) the drawer of such cheque
    fails to make the payment of the
    said amount of money to the payee
    or, as the case may be, to the holder
    SCCH-2 11 C.C.No. 4736/2023

    in due course of the cheque, within
    fifteen days of the receipt of the
    said notice.

    Explanation: – For the purposes of
    the section, “debt or other liability”
    means a legally enforceable debt or
    other liability.

    139. Presumption in favour of
    holder:- It shall be presumed, unless
    the contrary is proved, that the
    holder of a cheque received the
    cheque of the nature referred to in
    section 138 for the discharge, in
    whole or in part, of any debt or
    other liability.

    13. At this juncture it is worth to refer the decision of the
    Hon’ble Apex Court reported in AIR 2010 S.C. 1898,
    between Rangappa V/s Mohan wherein their lordships have
    observed at para 26 as hereunder:

    “No doubt that there is an initial
    presumption which favours the
    complainant”.

    SCCH-2 12 C.C.No. 4736/2023

    14. It is germane to note that the proceedings U/Sec.138
    of N.I. Act is an exception to the general principle that the
    accused is presumed to be innocent until the charge leveled
    against him is proved beyond reasonable doubt. In the
    proceedings initiated U/Sec.138 of the N.I. Act proof of
    beyond reasonable doubt is subject to the presumption
    envisaged under Sec.139 of the N.I. Act. Once the
    requirement of Sec.138 of the N.I. Act is fulfilled, then it has
    to be presumed that the cheque was issued in discharge of
    legally recoverable debt or liability. The presumption
    envisaged under Sec.139 of N.I. Act is mandatory
    presumption and it has to be raised in every cheque bounce
    cases.

    15. Now, the important question before this Court is
    whether the complainant has complied the ingredients of
    Sec.138 of N.I.Act or not? In this connection, Ex.P.1 to
    Ex.P.9 are relevant. Ex.P.1 & Ex.P2 are the cheques bearing
    No.757105 and 757106 dated: 13.04.2023 and 18.04.2023.
    Ex.P1(a) & Ex.P2(a) are the signatures of the accused. Ex.P3
    & Ex.P4 are the deposit slips. Ex.P5 & Ex.P6 are the bank
    endorsements dated15.04.2023. On careful perusal of Ex.P1
    & Ex.P2 coupled with Ex.P3 to Ex.P6, it appears to this court
    that, the complainant has presented the cheques for
    encashment on 13.04.2023 & 18.04.2023 respectively and
    SCCH-2 13 C.C.No. 4736/2023

    cheques were got bounced on 15.04.2023 and 19.04.2023
    i.e., within the stipulated period.

    16. Now, the question before this court is whether Ex.P.1
    & Ex.P.2 belongs to the accused and signature found in
    Ex.P.1 & Ex.P.2 are the signatures of the accused or not?. It
    is relevant to note that, the accused examined herself as
    DW.1. During the course of her cross-examination, the
    accused has clearly admitted her signature found in Ex.P1 &
    Ex.P2. The admission of DW.1 is worth to reproduce here
    itself for better understanding: “ನಿಪಿ.1 ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನದೇ ಆಗಿರುತ್ತದೆ.
    ನಿಪಿ.2 ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನದೇ ಆಗಿರುತ್ತದೆ”. The contention of the accused
    is that, at the time of availing Rs.50,000/- from the
    complainant, she had given 4 signed blank cheques to the
    complainant. Therefore after cogitating the evidence of DW.1
    and also the admission of DW.1, it is crystal clear that Ex.P1
    & Ex.P2 are pertaining to the bank account of accused and
    Ex.P1(a) & Ex.P2(a) are the signatures of accused.

    17. Now, the next question before this court is whether
    the complainant has issued the legal notice in accordance
    with law or not?. In this connection Ex.P.7, Ex.P7(a) and
    Ex.P.7(b) are relevant. On careful perusal of these
    documents, it appears to this court that, the complainant
    has issued the legal notice to the accused on 06.05.2023 and
    same was dispatched on 06.05.2023 itself. Therefore, it is
    SCCH-2 14 C.C.No. 4736/2023

    crystal clear that the complainant has issued the legal notice
    within 30 days from the date of receiving of endorsement
    from the bank.

    18. Now, the next important question before this Court is
    whether notice was served on the accused or not?. In this
    connection Ex.P.8 & Ex.P9 are relevant. A careful perusal of
    Ex.P.8, it appears to this Court that, the notice issued by the
    complainant to the office address of the accused was
    returned with shara as “Absent” on 08.05.2023 and the
    notice sent to the residential address of the accused was
    served on 08.05.2023 which was received by one Asha.

    19. It is relevant to state that the object of issuance of
    notice to the drawer is to provide an opportunity to pay the
    cheque amount within 15 days of service of notice and
    thereby free himself from the penal consequences of Sec.138
    of Negotiable Instruments Act. In this regard, it is worth to
    rely on the decision of Hon’ble Apex Court reported in
    2007(6) SCC 555, between C.C. Alavi Haji vs Palapetty
    Muhammed & Anr
    , Wherein the Hon’ble Apex Court held
    as hereunder: ” Section 27 gives rise to a presumption that
    service of notice has been effected when it is sent to the
    correct address by registered post. In view of the said
    presumption, when stating that a notice has been sent by
    registered post to the address of the drawer, it is
    SCCH-2 15 C.C.No. 4736/2023

    unnecessary to further aver in the complaint that in
    spite of the return of the notice unserved, it is deemed
    to have been served or that the addressee is deemed to
    have knowledge of the notice. Unless and until the
    contrary is proved by the addressee, service of notice is
    deemed to have been effected at the time at which the
    letter would have been delivered in the ordinary course
    of business. This Court has already held that when a
    notice is sent by registered post and is returned with a
    postal endorsement refused or not available in the house
    or house locked or shop closed or addressee not in
    station, due service has to be presumed”.

    20. The above referred decision is aptly applicable to the
    case on hand. In the instant case, though the DW1 disputed
    the issuance of notice. However, the accused has not
    produced the documents to substantiate her address.
    Moreover the accused has clearly admitted that she has been
    working in BBMP. Hence, this Court is of the opinion that,
    the complainant has correctly issued the notice to the
    address of accused and the accused was evaded to receive
    the same. Therefore, with the help of principles laid down by
    the Hon’ble Apex Court in the decision referred to above, this
    court has come to the conclusion that, the complainant has
    issued the notice to the correct address of the accused and
    service of notice amounts to deemed service. In addition to
    SCCH-2 16 C.C.No. 4736/2023

    the above referred aspects, as per Sec.118 and Sec.139 of NI
    Act presumption favours the complainant. Hence the
    complainant has complied the ingredients of Sec.138 of
    Negotiable Instruments Act.

    21. Now, it is worth to refer the decision of the Hon’ble
    Apex Court between Hiten P Dalal V/s Brathindranath
    Manarji reported in 2001(6) SCC 16, wherein the Hon’ble
    Apex Court observed that, “under Sec.138 of Negotiable
    Instruments Act, the complainant is not required to
    establish either the legality or enforceability of the debt
    or liability since he can avail the benefit of presumption
    U/Sec.118 and Sec.139 of N.I. Act in his favour”.

    22. It is also settled position of law that, the presumption
    available U/Sec. 138 of N.I Act is a rebuttable presumption.
    Further, to rebut the said presumption the accused need not
    to enter into the witness box. However, the accused can
    establish his probable defence by creating a doubt about the
    existence of legally enforceable debt or liability.

    23. Further, it is also settled position of law that, the
    standard of proof of rebutting the presumption is that of
    preponderance of probabilities. It is also settled position of
    law that, if the accused succeeded in rebutting the
    presumption then the burden shifts back to the complainant.

    SCCH-2 17 C.C.No. 4736/2023

    At this juncture, again it is worth to refer the decision of the
    Hon’ble Apex Court reported in AIR 2010 S.C. 1898,
    between Rangappa Vs. Sri. Mohan, wherein the Hon’ble
    Apex Court has observed that, “the standard of proof to
    rebut the presumption is that one of preponderance of
    probabilities”.

    24. It is also settled position of law that, “it is
    immaterial that, the cheque may have been filled in by
    any person other than the drawer, if the cheque is duly
    signed by the drawer. If the cheque otherwise valid,
    within the provisions of Sec.138 would be attracted”.

    25. Now, this court has to see whether the accused has
    rebutted the presumption or not?. As per the assertion of
    the complainant, during October 2019 the accused sought
    for financial assistance of Rs.5,00,000/-. He has arranged
    the sum of Rs.5,00,000/- and lent to the accused by way of
    cash on 18.11.2019. At which point of time the accused was
    agreed to pay interest at the rate of 2.5% p.a. and assured to
    repay the same within 3 years and accused was also issued
    two post dated cheques for Rs.3,00,000/- and Rs.2,00,000/-
    respectively. PW.1 was cross examined and accused was
    also examined. On meticulous reading of cross-examination
    of PW.1 and also evidence of DW.1, it would be gathered that
    the accused has taken a contention that she had taken only
    SCCH-2 18 C.C.No. 4736/2023

    Rs.50,000/- (Fifty thousand only) as loan from the
    complainant and at which point of time the complainant had
    collected four signed blank cheques from her. Further cross-
    examination of PW.1 reveals that the accused side has
    denied the alleged financial transaction with respect to
    Rs.5,00,000/- (Five lakhs only).

    26. On careful perusal of entire complaint averments and
    also the notice issued by the complainant, the complainant
    has not asserted the execution of loan agreement by and
    between the complainant and accused. However during the
    course of cross-examination of PW.1, he has deposed that,
    loan agreement was executed for Rs.5,00,000/- on the date
    of lending money to the accused. Further, he has admitted
    that, in the agreement there is a condition only with respect
    to Rs.3,00,000/- and there is no clause with respect to
    Rs.2,00,000/-. It is needless to mention that the
    complainant side has not produced the alleged agreement in
    his evidence. However during the course of cross
    examination of DW.1, the alleged agreement was confronted
    to DW.1 and DW.1 was admitted her signature found in the
    alleged agreement. The said document got marked as Ex.P10
    and signature of accused marked as Ex.P10(a).

    27. It is further relevant to note that, either in the notice,
    complaint or in the affidavit filed in support of oral
    SCCH-2 19 C.C.No. 4736/2023

    examination, the complainant has not averred about the
    existence of agreement. However, for the first time during the
    course of cross-examination of PW.1, the complainant has
    disclosed about the execution of agreement. Now the
    question before this court is whether Ex.P10 is with respect
    to the transaction alleged in the complaint or not?. Hence in
    order to answer this aspect, it is very much necessary to take
    Ex.P10 here itself for discussion. According to the complaint
    averments, on 18.11.2019 the complainant lent
    Rs.5,00,000/- in cash. However, the contents of Ex.P10
    reveals that on 10.11.2019 the complainant paid
    Rs.3,00,000/- in cash. Further, there is no recital in Ex.P10
    regarding lending of remaining amount of Rs.2,00,000/-. As
    per the recitals of Ex.P10, it appears to this court that the
    complainant lent Rs.3,00,000/- on 10.11.2019. Therefore
    the recitals of Ex.P10 clearly contradicts the case of the
    complainant. In order words it is not the case of the
    complainant that on 10.11.2019, he had lent Rs.3,00,000/-
    in cash and on 18.11.2019 he had lent remaining amount of
    Rs.2,00,000/- in cash to the accused. Therefore the
    contradictions pointed out by this court is fatal. At this
    juncture, it is worth to reproduce the recitals of Ex.P10 for
    better understanding:

    “ಸನ್ ‍ ಎರಡು ಸಾವಿರದ ಹತ್ತೊ ೕಂಭತ್ತನೇ ಇಸವಿ ನವಂಬರ್ ಮಾಹೆ
    ದಿನಾಂಕ ಹದಿನೆಂಟರಂದು (18.11.2019)ದ ಇದೇ ಬೆಂಗಳೂರು –
    560020 ದ ಶೇಷಾದ್ರಿಪುರಂ, ವಿ. ವಿ. ಗಿರಿ ಕಾಲೋನಿ, ಕಿನೋ
    SCCH-2 20 C.C.No. 4736/2023

    ಟಾಕೀಸ್ ‍ಎದುರು, 6 ನೇ ನಂಬರುಳ್ಳ ಮನೆಯಲ್ಲಿ ವಾಸವಾಗಿರುವ ಲೇಟ್ ‍
    ಶ್ರೀ ಕುಮಾರ್ ರವರ ಧರ್ಮಪತ್ನಿ ಅಮ್ಮಾ ಯಿ (ಹಣ ಪಡೆದರುವವರು)
    (ಬಿಬಿಎಂಪಿಯ ಉದ್ಯೊ ೕಗಿ, ಗಾಂಧಿನಗರ ಶಾಖೆ) ಆದ ನಾನು, – ಇದೇ
    ಬೆಂಗಳೂರು – 560085 ದ ಬನಶಂಕರಿ 3 ನೇ ಹಂತ ಡಿಸೋಜಾ
    ಲೇಔಟ್,ಪಿ. ಇ. ಎಸ್ ‍ ಕಾಲೇಜು ಹಿಂಭಾಗ, 14 ನೇ ನಂಬರುಳ್ಳ
    ಮನೆಯಲ್ಲಿ ವಾಸವಾಗಿರುವ ಲೇಟ್ ‍ ಲಿಂಗಯ್ಯ ರವರ ಮಗ ಶ್ರೀ
    ಪುಟ್ಟಮುದ್ದೇ ಗೌಡ (ಹಣ ನೀಡುವವರು) ಆದ ನಿಮಗೆ ಈ ಮೂಲಕ
    ಕೈಸಾಲ ಬಗ್ಗೆ ಕರಾರು ಪತ್ರ ಬರೆದುಕೊಟ್ಟ ಕ್ರ ಮವೇನೆಂದರೆ, ಆದಾಗಿ,
    ಅಮ್ಮಾ ಯಿ ಆದ ನಾನು ಈ ಮೆ ೕಲಿನ ವಿಳಾಸದಲ್ಲಿ ವಾಸವಾಗಿದ್ದು ,
    ರೂ.3,00,000/- (ಮೂರು ಲಕ್ಷ ರೂಪಾಯಿ) ಗಳನ್ನು ಸಾಲವಾಗಿ
    ನೀಡುವಂತೆ ಮೆ ೕಲೆ ತಿಳಿಸಿದ ಶ್ರೀ ಪುಟ್ಟಮುದ್ದೇಗೌಡ ಆದ ನಿಮ ್ಮನ್ನು
    ಕೇಳಲಾಗಿ, ನೀವು ನಮಗೆ ಮೊತ್ತ ರೂ.3,00,000/- (ಮೂರು ಲಕ್ಷ
    ರೂಪಾಯಿ) ಗಳನ್ನು ಕೊಡಲು ಒಪ್ಪಿ , ದಿನಾಂಕ 10.11.2019
    ರಂದು ನಮಗೆ ನಗದು ಮೂಲಕ ಪಾವತಿ ಮಾಡಿರುತ್ತೀರಿ. ಹಾಗೂ ಈ
    ರೀತಿಯಾಗಿ ನೀವು ಕೊಟ್ಟಿರುವ ಮೆ ೕಲಿನ ಮೊತ್ತಕ್ಕೆ ಈ ಕೆಳಗೆ
    ನಮೂದಿಸಿರುವ ಷರತ್ತು ಮತ್ತು ನಿಬಂಧನೆಗೆ ಒಳಪಟ್ಟಿರುತ್ತದೆ. ಈ
    ದಿವಸ ಪಡೆದಿರತಕ್ಕ ರೂ.3,00,000/- (ಮೂರು ಲಕ್ಷ
    ರೂಪಾಯಿ)ಗಳ ಸಾಲದ ಮೊತ್ತವನ್ನು ಪಡೆದಿರುತ್ತೆ ೕವೆ. ಹಾಗೂ ಈ
    ರೀತಿಯಾಗಿ ನಿವ್ಮಿು ಂದ ಪಡೆದಿರುವ ಮೆ ೕಲಿನ ಮೊತ್ತಕ್ಕೆ ತಿಂಗಳೂ 10 ನೇ
    ತಾರೀಖಿನೊಳಗೆ ಶೇಕಡಾ 2.5 ರಂತೆ ಬಡ್ಡಿ ರೂಪದಲ್ಲಿ ಹಣ ಪಾವತಿ
    ಮಾಡಲು ಒಪ್ಪಿರುತ್ತ ೇನೆ.

    28. At the cost of repetition, the recitals of Ex.P10
    contradicts the case of complainant. That apart there is no
    averments regarding execution of agreement either in the
    notice or in the complaint. Therefore, though the accused
    admitted her signature in Ex.P10 will not come to the aid of
    complainant to establish the case and it also appears to this
    court that, the complainant may obtained signature of
    accused in the blank stamp paper and prepared the same
    according to his wish.

    SCCH-2 21 C.C.No. 4736/2023

    29. According to the accused, she had borrowed a sum of
    Rs.50,000/- and at which point of time the complainant has
    obtained four signed blank cheques from her. During the
    course of cross-examination of DW.1 the learned counsel for
    complainant suggested that, the accused has issued only two
    cheques and not four cheques, the said suggestion was
    denied by the accused. Now the question before this court is
    whether the suggestion of learned counsel for complainant is
    correct or the evidence of accused regarding issuance of four
    signed blank cheques to the complainant is correct or not?.
    In order to answer this aspect cross-examination of PW.1 is
    relevant to take for discussion. It is relevant to note that
    during the course of cross-examination of PW.1, he has
    clearly deposed that at the time of lending loan amount itself
    the accused has issued four cheques. At this juncture it is
    worth to reproduce the cross-examination of PW.1 here itself
    for better understanding: “ಆರೋಪಿಯು ಚೆಕ್ಕು ಗಳನ್ನು ಕೊಟ್ಟಿರುತ್ತಾ ರೆಂದು
    ಹೇಳಿದ್ದು ಸದರಿ ಚೆಕ್ಕು ಗಳನ್ನು ಯಾವಾಗ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಯು ನಾನು ಹಣ
    ನೀಡಿದಾಗಲೇ ನಾಲ್ಕು ಚೆಕ್ಕು ಗಳನ್ನು ನೀಡಿದ್ದರು ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ”. It is pivotal to
    note that either in the notice or in the complaint, the
    complainant has not disclosed the issuance of 4 cheques.
    However, the complainant deposed the same during his
    cross-examination. Therefore, the answer given by the PW.1
    clearly contradicts the suggestion of the learned counsel with
    respect to issuance of four cheques. As such, the suggestion
    of learned counsel for complainant failed to inspire the
    SCCH-2 22 C.C.No. 4736/2023

    confidence of this court. Per contra, the evidence of DW.1
    inspires the confidence of this court.

    30. Further contention of the accused side is that, they
    have denied the alleged loan transaction with respect to
    Rs.5,00,000/-. Admittedly, the complainant has not
    produced any documents to show that he has lent
    Rs.5,00,000/- in cash on 18.11.2019. However, the
    complainant has produced Ex.P10. Already this court has
    observed that Ex.P10 contradicts the case of complainant. At
    the cost of repetition, according to the complainant he had
    lent Rs.5,00,000/- on 18.11.2019. However, Ex.P10 speaks
    about only lending of Rs.3,00,000/- on 10.11.2019.
    Therefore, the above referred aspects creates a doubt about
    the alleged loan transaction.

    31. That apart in the instant case the accused has
    examined one witness of DW.2. He has filed his affidavit in
    support of oral examination in chief. Later he was cross
    examined from the side of complainant. During the course of
    cross-examination he has expressed his ignorance regarding
    para Nos.2 & 3 of the affidavit. Further he has expressed his
    ignorance regarding execution of Ex.P10. Further, he has
    expressed his ignorance regarding issuance of two cheques.
    Further, he has expressed his ignorance regarding when
    exactly the accused sought financial assistance and also
    SCCH-2 23 C.C.No. 4736/2023

    quantum of financial assistance. Likewise he expressed
    ignorance regarding when exactly the complainant has lent
    money to the complainant. Therefore, examination of DW.2
    neither supports the defence of the accused nor case of the
    complainant. Hence examination of DW.2 will not come to
    the aid of accused. Hence this court do not wish to take the
    evidence of DW.2 for elaborate discussion.

    32. Next aspect is that, the accused has taken a
    contention that she had taken loan of Rs.50,000/- from the
    complainant, out of which she has repaid Rs.41,000/-. In
    order to substantiate the same, the accused has relied on
    Ex.D1. Ex.D1 is the bank statement pertaining to the
    accused. On perusal of this document, it reveals that on
    03.10.2020 the accused has paid Rs.9,000/- through self
    cheque. Likewise on 07.01.2021, Rs.9,000/- paid through
    self cheque, on 02.12.2021 Rs.11,000/- has been given to
    the complainant through cheque. On 01.06.2022
    Rs.12,000/- paid by the accused through self cheque. In
    addition to that during the course of cross-examination of
    PW.1, he has clearly admitted the receiving of Rs.41,000/-
    viz. Rs.9,000/-, Rs.9,000/-, Rs.11,000/- & Ex.12,000/-
    respectively on different dates. Therefore, at this juncture it
    is worth to reproduce the deposition of PW.1 here itself for
    better understanding: “ಆರೋಪಿಯು ನಿಮ ್ಮ ಬಳಿ ಕೇವಲ ಐವತ್ತು ಸಾವಿರ
    ಹಣವನ್ನು ಮಾತ್ರ ಸಾಲವಾಗಿ ಪಡೆದಿದ್ದರೇ ವಿನಃ ನೀವು ದೂರಿನಲ್ಲಿ ಹೇಳಿರುವಂತೆ ಐದು ಲಕ್ಷ
    SCCH-2 24 C.C.No. 4736/2023

    ಅಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿಯು ರೂ.41,000/- ಹಣವನ್ನು ನಿಮ ್ಮ ಖಾತೆಗೆ

    ಹಾಕಿದ್ದಾ ರೆ ಎಂದರೆ ಸರಿ. ಆರೋಪಿಯು ಕೇವಲ ರೂ.9,000/- ಹಣವನ್ನು ಮಾತ್ರ

    ಹಿಂತಿರುಗಿಸಬೇಕು ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿಯು ದಿಃ03.10.2020 ರಂದು

    ರೂ.9,000/- ಹಣವನ್ನು ಸೆಲ್ಫ್ ಚೆಕ್ ‍ ಮೂಲಕ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಆರೋಪಿಯು

    ದಿಃ07.01.2021 ರಂದು ರೂ.9,000/- ಹಣವನ್ನು ಸೆಲ್ಫ್ ಚೆಕ್ ‍ ಮೂಲಕ ನೀಡಿರುತ್ತಾ ರೆ

    ಎಂದರೆ ಸರಿ, ಸಾಕ್ಷಿ ಯು ಬಡ್ಡಿಯ ಕಡೆಗೆ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ಆರೋಪಿಯು

    ದಿಃ02.12.2021 ರಂದು ನಿಮ ್ಮ ಹೆಸರಿನಲ್ಲಿ ರೂ.11,000/- ಹಣಕ್ಕೆ ಚೆಕ್ ‍ ಅನ್ನು

    ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಆರೋಪಿಯು ದಿಃ01.06.2022 ರಂದು ರೂ.12,000/-

    ಹಣವನ್ನು ಸೆಲ್ಫ್ ಚೆಕ್ ‍ ಮೂಲಕ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಈ ಮೆ ೕಲಿದ ಹಣವನ್ನು ನೀವು

    ಬ್ಯಾ ಂಕಿನಲ್ಲಿ ಪಡೆದುಕೊಂಡಿರುತ್ತೀರ ಎಂದರೆ ಸರಿ. ಆರೋಪಿಯು ರೂ.41,000/- ಹಣವನ್ನು
    ನೀಡಿದ್ದರೂ ಸಹ ಐದು ಲಕ್ಷ ಹಣ ಬರಬೇಕು ಎಂದು ಸುಳ್ಳು ಕೇಸು ಹಾಕಿದ್ದೀರ ಎಂದರೆ

    ಸರಿಯಲ್ಲ, ಸಾಕ್ಷಿ ಯು ಬಡ್ಡಿಯ ಕಡೆಗೆ ನೀಡಿರುತ್ತಾ ರೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ಸಾಕ್ಷಿ ಯು

    ಬ್ಯಾ ಂಕ್ ‍ ಸ್ಟೇಟ್ಮೆಂಟ್ ‍ ಅನ್ನು ನೋಡಿ ಗುರುತಿಸಿದ ಕಾರಣ ಸದರಿ ದಾಖಲೆಯನ್ನು ನಿ.ಡಿ.1 ಎಂದು

    ಗುರುತಿಸಲಾಯಿತು”.

    33. It is needless to mention that either in the notice or in
    the complaint, the complainant has not disclosed the
    receiving of Rs.40,000/-. Suppose, for the sake of
    arguments the complainant received the said amount
    towards interest, then what was the impediment for the
    complainant to disclose the same either in notice or in
    complaint. In this regard there is no proper explanation from
    SCCH-2 25 C.C.No. 4736/2023

    the side of complainant. This amounts to suppression of
    facts.

    34. With the help of discussions referred to above, it is
    crystal clear that, complainant has utterly failed to prove the
    alleged loan transaction. The production of Ex.P10 itself
    creates doubt about the alleged loan transaction. At the cost
    of repetition, there is a clear contradiction between Ex.P10 &
    also the case of complainant. The contradictions pointed out
    by this court is fatal to the case of complainant. Thus, the
    presumption formed in favor of the complainant stands
    successfully rebutted.

    35. On evaluation of the entire evidence, this Court finds
    that, the evidence adduced by P.W.1 is improbable and
    difficult to believe. As such, the evidence of P.W.1 is failed to
    inspire the confidence of this Court. The documentary
    evidence produced by the P.W.1 is not sufficient to hold that,
    there was a financial transaction by and between the
    complainant and accused with respect to Rs.5,00,000/- as
    alleged in the complaint. Further, on evaluation of the entire
    evidence, it appears to this court that the contention of
    accused regarding she had availed loan of Rs.50,000/- from
    the complainant and at which point of time the complainant
    had collected four signed blank cheques from her appears to
    SCCH-2 26 C.C.No. 4736/2023

    be nearer to the truth. Further, it appears to this court that
    the complainant has filled the cheques for his unlawful gain.

    36. Therefore, from the available materials on record, it
    appears to this court that, it is a case of mis using of
    cheques. The evidence also reveals that, there was no
    existence of legally enforceable debt by and between the
    complainant and accused with respect to the amount
    mentioned in the complaint.

    37. Therefore, it is pellucid that the accused has raised
    the probable doubt regarding the advancement of loan of
    Rs.5,00,000/- by the complainant. Hence, this court holds
    that, the accused has raised plausible defence and
    successfully rebutted the presumption available in favour of
    the complainant in the present set of facts.

    38. It is pertinent to note that, once the accused has
    rebutted the presumption, the burden shifts back to the
    complainant. However, the complainant has failed to prove
    his case. Hence, this court holds that, the complainant has
    failed to prove that, the accused has committed an offence
    punishable Under Sec. 138 of Negotiable Instruments Act.
    Accordingly, this Court is answered Point No.1 in the
    Negative.

    SCCH-2 27 C.C.No. 4736/2023

    39. Point No 2 : In view of the above findings, this Court
    proceeds to pass following:

    :O R D E R:

    Acting U/Sec.255(1) Cr.P.C., the
    accused is acquitted for the offence
    punishable under Section 138 of
    Negotiable Instruments Act, 1881.

    The bail bond of the accused shall
    stands cancelled.

    (Dictated to the stenographer directly on computer, typed by her,
    revised and corrected by me, and then pronounced in the open
    Court on this the 04th April, 2026)

    (H.P. Mohan Kumar)
    VI Addl. Judge and ACJM.,
    Court of Small Causes,
    Bengaluru.

    :ANNEXURE:

    LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:

    P.W.1        :   Sri. S Puttamuddegowda.
     SCCH-2                                28         C.C.No. 4736/2023
    
    
    LIST      OF         DOCUMENTS          MARKED     ON    BEHALF      OF
    COMPLAINANT:
    
    Ex.P.1 &         :   Original Cheques bearing No.757105 and 757106
    Ex.P.2               dated 13.04.2023.
    Ex.P.1(a) & :
                         Signatures of the accused.
    Ex.P.2(a)
    Ex.P.3 &         :
                         Deposit slips.
    Ex.P.4
    Ex.P.5 &         :
                         Bank endorsements.
    Ex.P.6
    Ex.P.7           :   Office copy of legal notice dated:06.05.2023.
    Ex.P.7(a) & :
                         Postal receipts.
    Ex.P.7(b)
    Ex.P.8           :   Returned Postal cover.
    Ex.P.8(a)        :   Returned notice.
    Ex.P.9           :   Acknowledgment due card.
    Ex.P.10          :   Hand loan agreement dated 18.11.2019.
    Ex.P.10(a)       :   Signature of accused.
    
    
    

    LIST OF WITNESSES EXAMINED BY THE ACCUSED:

    D.W.1        :       Smt. Ammayi
    D.W.2        :       Sri M Madegowda.
     SCCH-2                    29           C.C.No. 4736/2023
    
    
    

    LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:

    Ex.D.1 : Account statement pertaining to accused.
    Ex.D.2 : Transfer certificate pertaining to Nandini K.
    Ex.D.3 : Transfer certificate pertaining to Prema K.
    Ex.D.4 : Marriage invitation card pertaining to
    Nandini K.

    Digitally signed by
    HP
    HP MOHANKUMAR
    MOHANKUMAR Date: 2026.04.06
    12:23:05 +0530

    (H.P. Mohan Kumar)
    VI Addl. Judge and ACJM.,
    Court of Small Causes,
    Bengaluru.



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here