Bangalore District Court
V.A. Prasanna Kumar vs 1. Akshara International School 2.V.S. … on 9 May, 2025
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C.C.No. 30567/2017
KABC031218462017
Presented on : 22-12-2017
Registered on : 22-12-2017
Decided on : 09-05-2025
Duration : 7 years, 4 months, 18 days
IN THE COURT OF THE XXII ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
PRESENT : SRI.JAI SHANKAR.J,
B.A.L., LL.B
XXII ADDL.C.J.M., BENGALURU.
DATED: THIS THE 9TH DAY OF MAY 2025
JUDGMENT U/s.278(2) of BNSS -2023
(Old Correspondence No. 255(2), of Cr.P.C)
C.C.NO. : 30567/2017
COMPLAINANT : Sri. V.A. Prasanna Kumar,
Aged about 45 years,
S/o. V.S.Anantharam,
R/at No.83, Old Post Office Road,
T.R. Nagar, II Block,
Bengaluru - 560028,
(By Sri. H.C. Nataraj, Adv.,)
V/S.
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C.C.No. 30567/2017
ACCUSED : 1. Akshara International School,
No.59, 17th Main,
A.G.S. Layout, Arehalli, Ittamadu,
Bengaluru - 560 061.
Rept by its Proprietor
Namely Sri. V.S.Krishnamurthy.
2. Sri. V.S.Krishnamurthy,
S/o. V.R. Sheshachar,
R/at No.1 and 2nd Floor,
Puja Residency, 1st Main Road,
1st Cross, Sarvabowmanagar,
Chikkallasandra,
Bengaluru - 560 061.
(By Sri. N.Suresha., Adv.,)
Offence complained : U/s.138 of N.I.Act
of
Plea of the Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 09.05.2025
JUDGMENT
This is a private complaint filed by the complainant
against the accused for the offence punishable under
Section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant’s case is as
under:
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C.C.No. 30567/2017
It is contended that, the accused is the landlord of
the residential premises bearing no.5, Thimmarayagowda
Badavane, Ittamadu, Bengaluru and the complainant was
a tenant under the accused of the said premises under the
rental agreement dt;09.12.2016. The complainant has
deposited the security amount of Rs.20 lakhs which was
transferred through RTGS to the account of the accused.
The monthly rent was fixed at Rs.3,000/-. It is further
contended that, the accused had also availed Rs.1,50,000/-
as a hand loan assuring to return back in time. As a lease
expired in the month of November 2016, he has vacated the
premises in the month of February 2017. While vacating the
premises, the accused has issued the cheque bearing
No.000057, dt:30.09.2017 for Rs.5 lakhs drawn on City
Union Bank Ltd., Banashankari 3rd Stage, Bengaluru. The
accused has also issued the another post dated cheque for
balance amount of Rs.16,50,000/- in cheque bearing No.
000058 of the very same bank, assuring that, on
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C.C.No. 30567/2017presentation it would be honored. When the complainant
presented the cheque bearing no.000057 for encashment
through his banker ie, Indian Bank, Jayanagar Branch,
Bangalore, the same came to be dishonored with shara as
Funds Insufficient dt:04.10.2017. Immediately, the
complainant got issued the legal notice dt:30.10.2017
through RPAD, which was served, but the accused has not
chosen to comply the demand, which has given cause of
action to file the present complaint.
3. After filing of the complaint, my predecessor has
taken cognizance of the offence punishable U/s.138 of
N.I.Act. Sworn statement of the complainant is being
recorded. Being satisfied that, there are prima-facie
materials to proceed against accused, summons is being
issued. After appearance of the accused, he is being
enlarged on bail and plea is recorded.
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C.C.No. 30567/2017
4. From the basis of the pleadings, the following
points that arise for my consideration are as follows:-
1. Whether the complainant proves that, the
accused issued cheque bearing No.000057
dt:30.09.2017 for Rs.5 Lakhs drawn on
City Union Bank Ltd., Banashankari 3rd
Stage, Bengaluru, towards discharge of his
liability which was returned unpaid on
presentation for the reason “Funds
Insufficient” and despite of knowledge of the
notice, he has not paid the said cheque
amount and thereby, committed an offence
punishable U/s.138 of N.I.Act?
2. What order?
5. In order to establish the complainant case, he is
being examined as PW.1 and has got produced the
documents at Ex.P.1 to P3(b) in support of his case. Here,
it is relevant to note that, though sufficient opportunity is
being granted to the accused to cross examine the
complainant/PW.1, but the accused has not chosen to cross
examine the witness. As such, the cross examination of
PW.1 is being taken as Nil. Even the order sheet indicate
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C.C.No. 30567/2017
the accused has continuously remained absent and has not
chosen to offer for recording the statement U/s 313 of
Cr.P.C. At this juncture, it is also relevant to note that, the
Hon’ble High Court of Karnataka in the Crl.Rev.Pet.No.
1333/2018 (R) B.N.Ashwanth Narayan Vs. Shankar
dt;02.02.2023, has upheld the dispensation of the accused
in recording the statement of the accused U/s. 313 of
Cr.P.C. by holding that, the trial under 138 of N.I.Act is a
summary trial and also noting the continuous absent of
the accused and so also, relying upon the Suo Moto Writ
Petition No.(Crl) No.2/2020 in Re: “Expeditious Trial of
cases” U/s. 138 of N.I.Act 1881 passed by the Hon’ble Apex
Court has held that, even in the absence of the accused,
the case can be proceeded and a judgment can be passed.
6. As both side remained absent, their argument is
taken as not canvassed.
7. Perused the materials available on record.
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C.C.No. 30567/2017
8. My answer to the aforesaid points are as under:-
Point No.1 :- In the Affirmative
Point No.2 :-As per the final order, for the following:-
REASONS
9. Point No.1:- The complainant has filed this
complaint alleging that, the accused has committed an
offence punishable U/s.138 of N.I.Act. He pleads and
asserts that, the accused in discharge of his liability has
issued the cheque bearing No.000057 dt:30.09.2017 for
Rs.5 lakhs drawn on City Union Bank Ltd., Banashankari
3rd Stage, Bengaluru, assuring that, on presentation it
would be honored. On such assurance, when he presented
the said cheque, it returned unpaid with an endorsement as
Funds Insufficient. Thereby, he got issued the legal notice
which was served on the accused, but he has not chosen
to comply it, which has given a cause of action to file the
complaint.
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C.C.No. 30567/2017
10. In this scenario, if the documents placed by
the complainant is scrutinized, the complainant in order to
examine the compliance of statutory requirements as
envisaged U/s.138 of NI Act, he got produced the Ex.P.1
cheque dt:30.09.2017. The said cheque is returned with an
endorsement as funds Insufficient as per Ex.P.2, the return
advise dt:04.10.2017, the Ex.P.3 is the office copy of the
legal notice dt:30.10.2017, Ex.P3(a) is the postal receipts
and Ex.P.3(b) are the postal acknowledgments which
indicates the service of notice on dt: 01.11.2017. A careful
scrutiny of the documents relied by the complainant goes
to show that, a statutory requirement of Sec.138 of NI Act is
being complied with and this complaint is filed well in time.
The complainant has discharged his initial burden by
examining him as PW.1 and by producing the documents
as referred above. Thus, complainant is entitled to rely on
the statutory presumptions enshrined U/s.118 R/w. Sec.
138 of N.I.Act.
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Sec. 118 of the Act reads as thus, that every Negotiable
Instrument was made or drawn for consideration and that,
every such instrument when it has been accepted, endorsed,
negotiated or transferred was accepted, endorsed, negotiated
or transferred for consideration.
Further Sec.139 of Negotiable Instrument Act provides
for presumption infavour of PA holder. It reads like this, it
shall be presumed, unless the contrary is proved, that, the
holder of a cheque received the cheque, of the nature referred
to in Sec. 138, for the discharge, in whole or in part, or any
debt or any other liability.
11. A combined reading of the referred sections raises
a presumption infavour of the holder of the cheque that, he
has received the same for discharge in whole or in part of
any debt or other liability. No doubt, the said presumptions
of law are rebuttable in nature, the accused can take
probable defense in the scale of preponderance of
probabilities to rebut the presumption available to the
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C.C.No. 30567/2017
complainant. It is need less to say that, the evidence of the
PW.1 can be rebutted even by effectively cross-examining
the PW.1, rather entering the witness box.
12. So here, it is relevant to note that, whether the
accused has really rebutted the presumption available
under the law which requires due consideration. Here, the
complainant claim that, he was a tenant under the accused
under the lease agreement dt: 09.12.2015 and he had
deposited Rs.20 lakhs as a security amount. The accused
had also raised Rs.1,50,000/- and having vacated the
premises, the accused issued two cheques, one for Rs.5
Lakhs and another, for Rs.16,50,000/-. The cheque
presented for Rs.5 lakhs is being dishonored and thereby,
claims that, the accused has committed an offence by
issuing the cheque which is being dishonored. Here, it is
not in dispute that, the disputed cheque at Ex.P.1 does
belongs to the accused and so also, the signature appearing
therein. Even, the cheque being dishonored is also not in
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C.C.No. 30567/2017
dispute. Even, the accused is the proprietor of Akshara
International School is not in dispute. Though, the accused
has denied the complainant case by denying the issuance of
disputed cheque towards legal liability, but he has not
chosen to rebut the presumption by cross examining the
PW1 or by adducing his side evidence. When the
complainant has categorically deposed that, he was a
tenant under the accused by depositing Rs.20 lakhs the
security amount and that, having he vacated the premises,
the disputed cheque was being issued as a part payment
which is being dishonored, it was incumbent upon the
accused to disprove his fact. Having, he remained absent by
not cross examining the PW.1 and also, for not offering to
record his statement, it suffices that, the case put forth by
the complainant is acceptable and there is no ground
forthcoming to disbelieve the contention.
13. Moreso, the demand notice at Ex.P.3 is being
served on the accused. Certainly, he had every opportunity
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C.C.No. 30567/2017
to deny the transaction by issuing the reply. But, again the
accused has not chosen to take any steps. This fact again
indicates that, the case put forth by the complainant is
acceptable and the defence raised by the accused is only to
avoid the liability under the cheque. If really, the disputed
cheque was never issued by the accused towards the return
of the security amount, certainly he could have replied the
notice and could have cross examined the witness. But
rather, the accused has either chosen to reply the demand
notice or chosen to cross examine the defence. Therefore,
taking into consideration that, the accused has utterly
failed to establish that, the disputed cheque was not issued
towards any liability, certainly the case of the complainant
has to be accepted and it has to be held that, the accused
has issued the disputed cheque towards the discharge of
the legally enforceable liability.
14. In the decision reported in (2021) 5 SCC 283 –
Kalamani Tex and Another., Vs. P.Balasubramanian,
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(2010) 11 SCC 441- Rangappa Vs. Sri.Mohan., Wherein
it is held that, when once the complainant establishes his
case, than the reverse onus clauses become operative, also
aptly applies to the case in hand. In the case in hand, the
accused do not dispute the cheque at Ex.P.1 belongs to
him and also, do not dispute the dishonour of cheque at
Ex.P.2. When the complainant has established the accused
having issued the cheque at Ex.P.1 towards the discharge
of legal liability and their existed a legally enforceable debt,
the onus to disprove it, shifts on the accused which is not
been proved by placing positive evidence. In this
background, having the accused not disputed the
complainant case by placing positive evidence, I am of the
considered view that, the cheque issued by the accused at
Ex.P1 is for the legally enforceable debt and this fact is
being established by the complainant by placing cogent and
positive evidence which is not rebutted by the other side.
When the provisions U/s.118 and 139 of N.I. Act is looked
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C.C.No. 30567/2017
into, it raises the presumption in favour of the holder of
the cheque that, he has received the same for discharge in
whole or in part of any debt or other liability.
15. It is worth to note that, Sec.106 of Indian
Evidence Act postulates that, the burden is on the accused
to establish the fact which is especially within its
knowledge. This provision is exception to the general rule
that, the burden of proof is always on the prosecution to
establish its case beyond all reasonable doubt. In that view
of matter, the burden is on the accused to prove that, the
cheque in question was not issued for discharge of any
liability. But, despite the accused has taken the defence
that, the Ex.P.1 was not issued towards the legal liability,
but the said fact and the version is not been established.
16. From the discussion made supra, it could be
said that, the complainant has established his case by
placing positive evidence. On the other hand, the accused
failed to establish his defence by placing probable defence
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C.C.No. 30567/2017
and also, failed to elicit the said fact from the mouth of the
PW.1. The presumption of law lies in favour of the
complainant as envisaged U/s.118 R/w. Sec. 139 of N.I.Act.
In this back ground, the case of the complainant requires to
be accepted. The evidence placed on record establishes that,
the complainant has proved that, for discharge of the
liability, the accused has issued Ex.P.1 which is being
dishonored as per Ex.P.2. Therefore, Point No.1 is answered
in the “Affirmative’.
17. Point No.2:- For the reasons discussed in the
point No.1, the complainant has proved the guilt of the
accused punishable U/s.138 of N.I.Act. The Hon’ble Apex
Court also dealt in the decision reported in (2018) 1 SCC
560, M/s. Meters and Instrument Pvt. Ltd., Vs. Kanchana
Mehta., wherein it is held that “the object of provision being
primarily compensatory, punitive element being mainly with
the object of enforcing the compensatory element,
compounding at the initial stage has to be encouraged, but
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C.C.No. 30567/2017
is not debarred at the later stage subject to appropriate
compensation has may be found acceptable to the parties
or the court”. By considering the decision, it could be said
that, the time when the transaction has taken place and
the primary object of the provision being kept in mind, I
am of the considered view that rather imposing punitive
sentence, if sentence of fine is imposed with a direction to
compensate the complainant for its monetary loss by
awarding compensation U/s.357 of Cr.P.C., it would meet
the ends of justice. By considering these aspects, I am of
the considered view that, it would be just and proper to
impose fine of Rs.5,05,000/-. Out of the compensation of
Rs.5,05,000/-, an amount of Rs.5,00,000/- shall be
awarded to the complainant U/s.357 of Cr.P.C. Accordingly I
proceed to pass the following :
ORDER
Acting U/s.278(2) of BNSS -2023
(Old Correspondence No. 255(2) of Code of
Criminal Procedure), the accused is convicted for
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C.C.No. 30567/2017the offence punishable under section 138 of the
Negotiable Instruments Act, the accused is
sentenced to pay fine of Rs.5,05,000/- (Rupees
Five Lakhs and Five Thousand only).
In default thereof, the accused shall undergo
simple imprisonment for the term of one year.
Acting U/s. 396 of BNSS – 2023 (Old
Correspondence No. 357(1)(b) of Cr.P.C), it is
ordered that, Rs.5,00,000/- (Rupees Five Lakhs
only), there from shall be paid to the complainant
trust as compensation. The remaining fine amount
of Rs.5,000/- (Rupees Five Thousand only) is
defrayed to the state for the expenses incurred in the
prosecution.
The office is to furnish the free copy of this
Judgment to the accused forthwith.
(Directly dictated to stenographer on computer, typed by her, revised by me and
then pronounced by me in the open court on this the 9th day of May 2025).
JAI Digitally signed by
JAI SHANKAR J
SHANKAR Date: 2025.05.09
J 15:25:23 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate,
Bengaluru.
ANNEXURE
List of witnesses examined on behalf of complainant:-
PW.1 : Sri. V.A. Prasanna Kumar
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C.C.No. 30567/2017
List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque Ex.P1(a) : Signature of the accused Ex.P2 : Bank Memo Ex.P3 : Legal notice Ex.P3(a) : Postal receipts Ex.P3(b) : Postal acknowledgments
List of witnesses examined on behalf of the accused:-
– Nil-
List of exhibits marked on behalf of the accused:-
– Nil-
Digitally signed
JAI by JAI SHANKAR
J
SHANKAR Date:
J 2025.05.09
15:25:28 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate,
Bengaluru.
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C.C.No. 30567/2017
