Vijay C.N vs Hemavathi D.B on 2 May, 2026

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    Bangalore District Court

    Vijay C.N vs Hemavathi D.B on 2 May, 2026

     SCCH-6                         1              CC.11990/2021
    
    KABC020342142021
    
    
    
    
              IN THE COURT OF ADDL. CHIEF JUDICIAL
                  MAGISTRATE, BENGALURU CITY.
                            (SCCH-6)
              Present:   Smt. Chetana S.F.
                                            B.A., L.L.B.,
                         IV Addl., Small Cause Judge & ACJM,
                         Court of Small Causes,
                              Bengaluru.
    
    
                         CC. No.11990/2021
    
              DATED THIS THE 02nd DAY OF MAY, 2026
    COMPLAINANT/S            Sri Vijay C.N.,
                             S/o. Sri Nagakumar C.M.,
                             Aged about 30 years
                             R/at No.825, 6th 'B' Cross,
                             Kempegowda Nagara,
                             T. Dasarahalli, Bengaluru-560 057
    
                             (By Sri. Nagesha V., Advocate)
                             -Vs-
    
    ACCUSED                  Smt. Hemavathi D.B.,
                             W/o. Sri Kumar,
                             Aged about 38 years,
                             R/at. Toremallanayakanahalli,
                             Doddachikkanahalli,
                             Nagamangala Taluk,
                             Mandya District-571 445
    
                             Also at:
      SCCH-6                                 2                  CC.11990/2021
    
                                     R/at No.E-244, 11th Cross,
                                     Near Vijayabharathi School,
                                     Bhuvaneshwarinagara,
                                     T.Dasarahalli, Bengaluru-560 057
    
                                     (By Sri. K.L. Prabhakar, Advocate)
    
    
    
                            -: J U D G M E N T :-
    
         This is a complaint filed by the complainant U/Secs.138
    
    and 142 of the N.I. Act R/w. Sec.200 of Cr.P.C. for the offences
    
    punishable under Secs.138 of the N.I. Act as against the
    
    accused praying to punish the accused for the said offence.
    
        2.    The        case   of    the       complainant   is   that,    the
    
    complainant     is    doing      Real   Estate    business.    One     Smt.
    
    Mamatha A.B., wife of Sri. Gopal and complainant known to
    
    each other from past several years and accused had
    
    approached the complainant along with accused husband Sri
    
    Kumar, through Smt. Mamatha A.B., request to advance a
    
    hand loan sum of Rs.2,50,000/- for the purpose of their family
    
    and legal necessities. Accordingly, complainant believing
    
    accused assurance, complainant has paid an amount sum of
    
    Rs.2,50,000/- by way of cash on 20.02.2020 to accused.
      SCCH-6                          3                 CC.11990/2021
    
    Subsequent to the above hand loan, complainant has paid an
    
    amount of Rs.2,25,000/- by way of cash on 15.03.2020 to the
    
    accused. Towards discharge of his liability, accused has issued
    
    a cheque bearing No.018513 dated 29.07.2021 for a sum of
    
    Rs.4,75,000/- drawn on Bank of India, Hesaraghatta Main
    
    Road Branch, Bengaluru, in favor of complainant.
    
        3.      The complainant presented the cheque through his
    
    banker South Indian Bank Ltd., Malleshwaram Branch,
    
    Bengaluru-560 003 and same has been returned through his
    
    bank     with   endorsement   that   "50-Account    Closed"    on
    
    04.08.2021. Hence, the complainant issued legal notice dated
    
    02.09.2021 to the accused through RPAD. Inspite of service of
    
    notice, the accused has not paid the cheque amount and
    
    hence, she has committed an offence punishable u/s 138 of NI
    
    Act. Hence, this complaint.
    
        4.     After issuance of legal notice accused failed to repay
    
    the said loan nor replied to the notice. The accused has not
    
    paid the cheque amount and has committed an offence
    
    punishable u/s 138 of NI Act. Hence, this complaint.
      SCCH-6                          4                CC.11990/2021
    
    
    
    
        5.    After   recording    the   sworn   statement   of   the
    
    complainant by way of affidavit and also verifying the
    
    documents, cognizance was taken against the accused for the
    
    offence punishable under Sec.138 of N.I. Act. The accused
    
    appeared before this Court through her counsel and enlarged
    
    on bail and her plea was recorded. The accused pleaded not
    
    guilty and claimed to be tried. Hence, the case was posted for
    
    evidence of the complainant.
    
        6.    The complainant got examined himself as PW.1 and
    
    examined another witness as PW.2 and got marked 10
    
    documents as Exs.P.1 to Ex.P.10.       Thereafter, the case was
    
    posted for recording the statement of accused under Sec.313
    
    of Cr.P.C. In the statement U/s. 313 Cr.P.C., the accused has
    
    denied all the incriminating evidence appearing against him.
    
    On the other hand, the accused examined herself as DW.1 and
    
    no documents were marked on her behalf.
      SCCH-6                           5                 CC.11990/2021
    
        7.      The learned counsel for complainant has relied on
    
    the following decisions:
    
               ï‚· (2010)11 SCC 441, between Rangappa vs. Sri
                 Mohan
               ï‚· (2019) 4 SCC 197 between Bir Singh vs. Mukesh
                 Kumar
               ï‚· Cri. Appeal Nos.1233-1235 of 2022 between P.
                 Rasiya vs. Abdul Nazer and Anr.
    
    
        8.      Heard the arguments of both side and Perused the
    
    records.
    
        9.      The following points arise for my consideration:
    
                1.

    Whether the complainant proves that the
    cheque bearing No.018513 dated
    29.07.2021 for a sum of Rs.4,75,000/-

    drawn on Bank of India, Hesaraghatta
    Main Road Branch, Bengaluru, issued by
    the accused has been dishonored on the
    ground of “50-Account Closed” on
    04.08.2021 and even after receiving the
    intimation regarding the dishonor of
    cheque failed to pay the cheque amount
    within the stipulated period and thereby
    the accused has committed an offence
    punishable under Sec.138 of N.I. Act?

    SPONSORED

    2. What order?

    SCCH-6 6 CC.11990/2021

    10. My findings on the above points are as under

    Point No.1: In the Affirmative
    Point No.2: As per final order for the
    following:

    -: R E A S O N S :-

    11. POINT NO.1:- In view of the present legal position as

    held by our Hon’ble High Court as well as Apex Court of

    India in a catena of decisions as well as relevant

    provisions of the Act, this court has to see whether the

    complainant has complied all the requirements as

    contained in Sec.138 of NI Act so as to bring home the

    guilt of the accused for the alleged offence. If so, whether

    the accused is able to rebut the legal presumption

    available to the complainant under Sec.139 of the Act by

    adducing probable defense or not. However, it is held by

    the full bench of our Apex Court in the case of Rangappa

    Vs. Mohan reported in 2010 (1) DCR 706 that;

    “The Statutory presumption mandated by
    sec.139 of the Act, does indeed include the
    existence of a legally enforceable debt or li-
    ability. However, the presumption U/S 139
    of the Act is in the nature of a rebuttable
    SCCH-6 7 CC.11990/2021

    presumption and it is open for the accused
    to raise a defence wherein the existence of
    a legally enforceable debt or liability can be
    contested”.

    12. Therefore, in view of the above decision, once the

    cheque is admitted, the statutory presumption would

    automatically fall in favour of the complainant the

    complainant that, the alleged cheque was issued for discharge

    of an existing legally enforceable debt or liability against the

    accused and the burden will shift on to the accused to rebut

    the same.

    INGREDIENTS OF OFFENCE AND DISCUSSION:-

    13. Before dwelling into the facts of the present case, it

    would be apposite to discuss the legal standards required to

    be met by both sides. In order to establish the offence under

    Section 138 of NI Act, the prosecution must fulfill all the

    essential ingredients of the offence. Perusal of the bare

    provision reveals the following necessary ingredients of the

    offence:-

    First Ingredient: The cheques were
    drawn by a person on an account
    SCCH-6 8 CC.11990/2021

    maintained by him for payment of
    money and the same is presented for
    payment within a period of 3 months
    from the date on which it is drawn or
    within the period of its validity;

    Second Ingredient: The cheques were
    drawn by the drawer for discharge of
    any legally enforceable debt or other
    liability;

    Third Ingredient: The cheques were
    returned unpaid by the bank due to
    either insufficiency of funds in the
    account to honour the cheque or that
    it exceeds the amount arranged to be
    paid from that account on an
    agreement made with that bank;

    Fourth Ingredient: A demand of the
    said amount has been made by the
    payee or holder in due course of the
    cheque by a notice in writing given to
    the drawer within thirty days of the
    receipt of information of the
    dishonour of cheque from the bank;

    Fifth Ingredient: The drawer fails to
    make payment of the said amount of
    money within fifteen days from the
    date of receipt of notice.

    APPRECIATION OF EVIDENCE-

    14. The accused can only be held guilty of the offence

    under Section 138 NI Act if the above-mentioned ingredients
    SCCH-6 9 CC.11990/2021

    are proved by the complainant co-extensively. Additionally, the

    conditions stipulated under Section 142 NI Act have to be

    fulfilled. Notably, there is no dispute at bar about the proof of

    only first, third, and fifth ingredient. The complainant had

    proved the original cheque vide Ex.P.1 which the accused

    person had not disputed as being drawn on the account of the

    accused. It was not disputed that the cheque in question was

    presented within its validity period. The cheque in question

    was returned unpaid vide return memos vide Ex.P.2 due to the

    reason, “50-Account Closed” dated 04.08.2021. The

    complainant had proved the service of legal demand notice

    dated 02.09.2021 vide Ex.P.3. Postal receipts vide Ex.P4 & 5.

    Two postal covers vide Ex.P6 & 7. Track Consignment vide

    Ex.P8. Certificate under Sec.65(B) of Indian Evidence Act vide

    Ex.P9. South Indian Bank Account Statement vide Ex.P10.

    Thus, there is a dispute only with regard to the second

    ingredient to the offence. As such, the 1st,3rd,4th& 5th

    ingredient of the offence under section 138 of the NI Act

    stands proved.

    SCCH-6 10 CC.11990/2021

    15. As far as the proof of second ingredient is concerned,

    the complainant has to prove that the cheque in question was

    drawn by the drawer for discharging a legally enforceable

    debtor any liability. In the present case, the issuance of the

    cheque in question is not denied. As per the scheme of the NI

    Act, once the accused admits signature on the cheque in

    question, certain presumption are drawn, which result in

    shifting of onus. Section 118(a) of the NI Act lays down the

    presumption that every negotiable instrument was made or

    drawn for consideration. Another presumption is enumerated

    in Section 139 of NI Act. The provision lays down the

    presumption that the holder of the cheque received it for the

    discharge, in whole or part, of any debt or other liability.

    16. The combined effect of these two provisions is a

    presumption that the cheque is drawn for consideration and

    given by the accused for the discharge of debt or other liability.

    Both the sections use the expression “shall”, which makes it

    imperative for the court to raise the presumptions once the

    foundational facts required for the same are proved. Reliance
    SCCH-6 11 CC.11990/2021

    is placed upon the judgment of the Hon’ble Supreme Court,

    Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.

    17. Further, it has been held by a three-judge bench of

    the Hon’ble Apex Court in the case of Rangappa vs. Sri

    Mohan (2010) 11 SCC 441 that the presumption

    contemplated under Section 139 of NI Act includes the

    presumption of existence of a legally enforceable debt. Once

    the presumption is raised, it is for the accused to rebut the

    same by establishing a probable defence.

    18. The presumptions raised under Section 118(b) and

    Section 139 NI Act are rebuttable presumptions. A reverse

    onus is cast on the accused, who has to establish a probable

    defence on the standard of preponderance of probabilities to

    prove that either there was no legally enforceable debt or other

    liability. In this case, the arguments raised by the Ld. counsel

    for the accused to rebut the presumption are discussed

    below:

    SCCH-6 12 CC.11990/2021

    Notice has not been served:

    19. The accused has taken the specific defence that the

    notice has not been served to him. It was argued by the

    learned counsel for accused that, Ex.P6 and Ex.P7 returned

    Postal covers have been returned with shara as ‘addressee not

    in station’ and ‘in complete address’ respectively and accused

    had not been residing in the address mentioned in Ex.P6 and

    Ex.P7. If at all the notice has not been served to the accused,

    accused would have given the reply. On the other hand,

    learned counsel for complainant argued that notice has been

    sent to the correct address of the accused. As per Ex.P6

    returned postal cover to which the notice has been sent it has

    been returned as accused not residing in the said address as

    on the date of the service of the notice. Even Ex.P8 Track

    consignment, it has returned as ‘addressee moved’ and

    accused has not at all denied the address to which the notice

    has been sent or taken the contention that it is not his

    address. Hence the notice has been deemed to be serve and

    intentionally accused has vacated the said address to avoid
    SCCH-6 13 CC.11990/2021

    the service of summons. The complainant has sent notice to

    the last known address of the accused and hence the notice

    has been deemed to be duly served.

    20. In this regard, on perusal of the cross examination of

    the PW.1, learned counsel for accused though taken the

    contention that notice has not been served, nowhere accused

    counsel denied that the addresses to which the notice has

    been sent is not his address and no point of time, he was

    residing in the said address. As per Ex.P6, the address to

    which the notice has been sent which was returned as

    accused has not been residing in the said address. Ex.P8

    Track consignment shows that the addressee has been moved.

    Even nowhere accused counsel has taken the contention that

    at no point of time, accused has not resided in the address

    mentioned in Ex.P6. Thus it is clear that, the notice has been

    sent to the last known address of the accused and accused left

    the said address and moved somewhere. At no point of time,

    accused counsel or the accused denied that, the address

    mentioned in Ex.P6 or Ex.P7 is not his address and he never
    SCCH-6 14 CC.11990/2021

    resided in the said address. Moreover, the accused has never

    denied that he was residing in front of the house of

    complainant for 7-8 years. Even the accused in his cross

    examination at para No.5 clearly admited that after Corona

    i.e., after 2020 he has vacated the address. Thus it is clear

    that complainant has sent the notice to the last known

    address of the accused and it is sufficient that if the notice has

    been sent to the last known address of the accused. The

    accused admitted that thereafter, in the year 2021, he has left

    the address. Hence it is clear that accused has intentionally

    left the address. Moreover, summons sent by this court has

    been duly served to the accused, hence the notice is deemed to

    be served.

    21. Moreover, in this regard, it has been held by the

    Hon’ble Apex Court in the case of M/S Indo Automobiles Vs.

    M/S. Jaidurga Enterprises reported in 2008 (2) DCR 499

    and also as provided under Sec.27 of the Mysore general

    clauses Act, 1897. When a notice is sent to the correct address

    of the addressee, even if the same is returned unserved due
    SCCH-6 15 CC.11990/2021

    absence or non-claiming or refusal of the addressee, the same

    amounts to deemed service. Moreover, the very purpose of

    giving statutory notice to provide an opportunity to the

    accused/drawer to make payment of the cheque amount and

    escape from the criminal prosecution. The non-service of the

    notice would be ground only in the case of the accused

    admitting the liability under the cheque and pleading only

    exemption from the criminal prosecution for non payment of

    the cheque amount. Thus this defence of the accused is of no

    consequence in the present case as he is totally denying the

    liability under the said cheque.

    22. As such the statutory demand notice is held to have

    been duly served on the accused. Hence defence taken by the

    accused that notice not served her does not holds good.

    II. Financial Capacity:

    23. Further accused has taken the defence that the

    complainant has no financial capacity to lend the loan of

    Rs.4,75,000/- to the accused. The learned counsel for accused
    SCCH-6 16 CC.11990/2021

    cross examined PW.1 with regard to his occupation, income

    and specific source of funds for the alleged loan for which

    PW.1 clearly stated that he was doing Real estate business

    and getting 8-10 Lakhs in the year 2020. It is pertinent to note

    here that learned counsel for the accused has not at all denied

    the occupation or income of the PW.1 at least by putting a

    single denial suggestion. The learned counsel for accused went

    on cross examining PW.1 with regard to whether PW.1 has

    produced any document to show that he was having the

    income of Rs.8,00,000/-. Though complainant has not

    produced any document to show his income, but, it is not

    material or fatal to complainant case that as accused has not

    at all denied the income of the PW.1 stated by him at least by

    putting a single denial suggestion.

    24. Further PW.1 in his cross examination clearly stated

    that during February 2020, he has lent the loan of

    Rs.2,50,000/- in cash to the accused and thereafter, after 15

    days, once again PW.1 has lent the loan of Rs.2,25,000/- in

    cash. It is pertinent to note here that accused counsel has not
    SCCH-6 17 CC.11990/2021

    at all denied this fact of lending of the loan of Rs.4,75,000/- in

    cash by the complainant to the accused at least by putting a

    single denial suggestion. The accused counsel further cross

    examined PW.1 with regard to from where he has brought the

    loan of Rs.4,75,000/. Accused counsel has not at all denied

    the statement deposed by the PW.1 with regard to lending of

    the loan in cash. Further PW.1 clearly stated that he has

    withdrawn amount from the bank and also given some

    amount which was within his hand. Further PW.1 clearly

    stated that he was having an amount of Rs.1,00,000/- to

    1,50,000/- with his hand and he has withdrawn remaining

    amount from the bank. Even this fact deposed by the PW.1 is

    not at all denied by the accused counsel at least by putting a

    single denial suggestion. The learned counsel for accused went

    on cross examining PW.1 whether he has produced his bank

    statement to show that he has withdrawn the amount from

    the bank for which PW.1 stated that he will produce on the

    next date. Though earlier PW.1 has not produced his bank

    statement, but later on in his further chief examination,
    SCCH-6 18 CC.11990/2021

    produced his bank statement as per Ex.P10. As per Ex.P10,

    the complainant has withdrawn the amount of Rs.2,00,000/-

    through cheque on 10.02.2020. Even further on 10.02.2020

    itself complainant has withdrawn the amount of

    Rs.1,00,000/-. It is pertinent to note here that though learned

    counsel for accused cross examined PW.1 with regard to

    Ex.P10, but however nowhere learned counsel for accused

    denied that complainant has never withdrawn any amount

    from his bank. The learned counsel for accused argued that

    though there is no entries in the bank statement for

    withdrawal of the money from his bank, but, there is entries or

    the document to show that PW.1 has lent the loan amount to

    the accused. PW.1 clearly stated that he has withdrawn the

    amount of Rs.2,00,000/- from his bank account and

    remaining amount which was with him and together he has

    given to the accused. Even this fact also has not been denied

    by the accused counsel. Thus nowhere accused counsel has

    denied the occupation, source of income and source of alleged

    funds lent by the complainant to the accused atleast by
    SCCH-6 19 CC.11990/2021

    putting a single denial suggestion. Hence the complainant has

    clearly proved that he has sufficient financial capacity to lend

    the loan of Rs.4,75,000/- and prove the passing of

    consideration.

    III. No debt existed:-

    25. Further accused has taken the specific defence that

    accused was never had any capacity to repay the loan and he

    has never borrowed any loan of Rs.4,75,000/- from the

    complainant. Further complainant has not produced any

    document to show that he has lent the loan to the accused.

    The learned counsel for accused cross examined PW.1 with

    reference to Mamatha wherein PW.1 clearly stated that he

    knew Mamatha landlord of the accused and on the say of the

    said Mamatha, PW.1 has lent the loan to the accused. On

    trust over the Mamatha, complainant has lent the loan to the

    accused. In support of his contention, complainant has

    examined Mamatha as PW.2 wherein PW.2 stated that

    accused is the tenant and accused and her husband used to

    borrow 10-20 thousand from her and used to repay the same
    SCCH-6 20 CC.11990/2021

    as and when she needs money. Further PW.2 deposed that

    accused is very close friend to them and become their family

    friends and further PW.2 knew their relative and family

    members. In February 2020, the accused and her husband

    have requested a loan of Rs.5-10 lakhs, as they were in

    problem. As accused requested PW.2 called the complainant to

    her house and requested the complainant to lend the loan to

    the accused on behalf of her and as per the say of PW.2, PW.1

    has lent the loan of Rs.2,50,000/- in February 2020 and once

    again Rs.2,25,000/-. Thereafter accused has assured that

    after selling their site, she would repay the same. Further

    PW.2 stated that accused husband is a Manson and

    contractor who used to construct the house and selling the

    house and husband of the accused also assured that he will

    repay the amount after selling the site or the house.

    Thereafter, accused issued the cheque in question for the

    repayment of the loan. Thereafter accused has vacated their

    house. Though PW.2 cross examined by learned counsel for

    accused at length but, nowhere accused counsel denied the
    SCCH-6 21 CC.11990/2021

    fact that he was residing in the house of the PW.2 as a tenant

    for 7-8 years and also further accused counsel has not at all

    denied petty financial transaction between him and the PW.2

    for several time. Even Pw.2 in her cross examination clearly

    stated that as accused’s husband was constructing the house

    and accused was in need of money, as per request of the

    accused, PW.2 asked complainant to lend the loan of

    Rs.4,75,000/- and in her presence, complainant has given the

    amount of Rs.4,75,000/- in cash. At that time, accused

    husband was also present.

    26. It is pertinent to note here that, all these facts

    deposed by the PW.2 in her cross examination are not at all

    denied by the learned counsel for the accused at least by

    putting a single denial suggestion. The learned counsel for

    accused went on cross examining whether any document is

    taken by the accused at the time of lending of the loan for

    which Pw.2 clearly stated that based on the trust and accused

    being the family friend and close to her and hence

    complainant has lent the loan of Rs.4,75,000/- to the accused
    SCCH-6 22 CC.11990/2021

    on her say.

    27. Further accused has taken the contention that Pw.2

    was doing chit business and at that time, accused has given

    Ex.P1 cheque to the PW.2 as a security and PW.2 has misused

    the same and filed a false case through the complainant. The

    defence taken by the accused is entirely denied by the PW.1

    and PW.2. When PW.1 and PW.2 have denied the defence

    taken by the accused, the burden lies on the accused to prove

    the same. In this regard, on perusal of cross examination of

    PW.1 and PW.2 and even in the defence evidence, the accused

    has never stated when he was doing the chit business with

    said Mamatha and who are all members in the said chit

    business, what was the chit amount and how much of the

    amount has been paid by him towards chit business, whether

    he has taken bid amount and when he has taken the bid

    amount and when he has given the cheque in question to the

    PW.2 and when the chit business has been completed and

    why after completion of the chit business, he has not taken

    any steps for return of his cheque. Accused has not at all
    SCCH-6 23 CC.11990/2021

    stated any details with regard to above details which makes

    the defence of the accused doubtful. The accused has failed to

    raise the probable defence with regard to how the cheque in

    question has gone into the hands of the PW.1. The accused

    has suppress the material facts and truths with regard to the

    defence taken by the accused makes the defence of the

    accused doubtful. Even accused has not produced any

    document to show that he was doing chit business with the

    PW.2. Further if at all accused has issued the cheque in

    question to the PW.2 then why accused has not taken any

    legal action against the Pw.2 for the recovery of her cheque

    atleast accused would have given the stop payment notice to

    his bank. But, no such action taken by the accused.

    28. Apart from this, if at all the defence of the accused is

    believed to be a gospel truth, then question arises in the

    minds of the court as to why even after service of the notice,

    accused has not taken the said defence at the earliest possible

    opportunity by giving reply to the notice issued by the PW-1.

    No explanation were forthcoming in this regard. In the absence
    SCCH-6 24 CC.11990/2021

    of any such recourse being adopted by the accused, it is highly

    impossible to believe his defence. The Hon’ble Apex Court in

    the case of Rangappa Vs. Mohan Reported in 2010 (1) DCR

    706, wherein it was held as follows:

    24. “-Very fact that the
    accused had failed to reply to
    the statutory notice under
    Sec.138 of N.I.Act leads to
    inference that there was merit
    in the complainant’s version”.

    29. In the present case also the accused inspite of the

    service of the notice has not replied to the notice and taken

    the defence at the later stage only for the sake of the defence.

    That, being the true facts it can be held that, the accused has

    failed to establish his defence.

    30. Moreover, ordinarily no prudent man would keep

    quite after giving the signed blank cheque and signed blank

    papers to a third person that too after receiving the notice. In

    this regard it is pertinent to note the principle held in Sri.

    Prakash @ Jnana Prakash v/s Miss T.S. Susheela reported

    in ILR 2012 KAR 4815 our Hon’ble High Court has held
    SCCH-6 25 CC.11990/2021

    that – If the documents had been illegally obtained by the

    complainant, it is inexplicable that the petitioner did not

    choose to give a complaint to the police or to take other

    measures insofar as that conduct of the complainant is

    concerned and hence has disbelieved the evidence set forth –

    31. Applying the ratio laid down by the Hon’ble Court to

    the present case on hand, the accused in this case also has

    not taken up any legal measures against complainant

    regarding possession of cheque. From this an inference can

    be drawn that no prudent man will keep himself silent

    without taking any steps to safeguard his interest when his

    document lies with the possession of other party.

    Conclusion:

    32. In view of all the above discussions, it can be

    concluded that the complainant has established through

    cogent and convincing evidence the fact of issuance of the

    cheque for discharge of legality enforceable debt, which is

    dishonored for want of sufficient funds, Issuance of legal

    notice within stipulated time, failure on the part of accused
    SCCH-6 26 CC.11990/2021

    to repay the amount within stipulated period. On the other

    hand, the accused has failed to rebut the presumption

    available to the complainant through probable evidences that

    would preponderate upon the evidence lead by the

    complainant. Therefore, the accused is held to have

    committed an offence punishable under Sec. 138 of N.I. Act.

    Accordingly, Point No.1 is answered in the Affirmative.

    33. POINT NO.2:- In view of my answer to point

    No.1, I proceed to pass the following:-

    -: O R D E R :-

    Acting U/Sec.278(2) of the Bharatiya
    Nagarik Suraksha Sanhita, 2023, accused
    is hereby convicted for the offence
    punishable U/Sec.138 of Negotiable
    Instruments Act.

    Accused is sentenced to pay a fine of
    Rs.4,80,000/- for the offence punishable
    under section 138 of N.I.Act. The amount
    of Rs.4,75,000/- shall be paid to the
    complainant by way of compensation in
    accordance with Sec.395(1) of the
    Bharatiya Nagarik Suraksha Sanhita,
    2023, within one month from today.

    SCCH-6 27 CC.11990/2021

    The remaining amount of Rs.5,000/-
    shall be confiscated to the state. In default
    of payment of fine, the accused shall
    undergo simple imprisonment for a period
    of six months.

    It is made clear that in view of Sec.461 of
    BNSS, even if the accused shall undergo
    the default sentence imposed above,
    accused is not absolved of liability to pay
    the fine amount.

    The bail and surety bond of the accused
    and surety shall stand canceled.

    Office to furnish the copy of this judgment
    for free of cost to the accused.
    (Dictated to the stenographer, transcribed and computerized by her,
    corrected, signed and then pronounced by me in open Court this the
    02nd day of May, 2026).

    (CHETANA S.F.)
    IV Addl., Small Cause Judge & ACJM,
    Court of Small Causes, Bengaluru.

    ANNEXURE

    List of witnesses examined for the Complainant:

     PW.1 :-           Sri. Vijay C.N.,
     PW.2 :-           Smt. Mamatha
     SCCH-6                      28                   CC.11990/2021
    
    

    List of witnesses examined for the accused:-

    DW.1 :- Smt. Hemavathi

    List of documents marked for the Complainant:-

      Ex.P.1            :   Cheque
      Ex.P.1(a)         :   Signature of accused
      Ex.P.2            :   Bank Endorsement
      Ex.P.3            :   Office   copy     of    Legal    Notice
                            dt.02.09.2021
      Ex.P.4 & 5        :   Postal Receipts
      Ex.P.6 and 7      :   Two Postal covers
      Ex.P8             :   Track consignment
      Ex.P9             :   Certificate under Sec.65-B of Indian
                            Evidence Act
      Ex.P10            :   South    Indian        Bank     Account
                            statement
    
    

    List of documents marked for the accused:-

    NIL

    (CHETANA S.F.)
    IV Addl., Small Cause Judge &
    ACJM, Court of Small Causes,
    BENGALURU.

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