Bangalore District Court
Bhaktavatsala B.R vs Kavitha on 6 May, 2026
1 Crl.Appeal.No.805/2024
KABC010123582024
IN THE COURT OF THE LXII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-63), BENGALURU.
DATED: THIS THE 06TH DAY OF MAY, 2026.
P R E S E N T:-
Sri. Raghavendra S. Channabasappa, B.A., LL.B (Spl).,
LXII Additional City Civil & Sessions Judge,
Bengaluru City.
CRIMINAL APPEAL No.805/2024
APPELLANT/ Sri. Bhaktavatsala.B.R,
ACCUSED: S/o. Sri. Rajulu.K.M.N,
Aged about 52 years,
R/at. No.315, New Kavika Layout,
6th Cross, Bapujinagara,
Mysore Road, Bengaluru South,
Government Electric Factory,
Bengaluru - 560 026.
(By Sri. Naveenkumar.S.B, Advocate)
-V/.s-
RESPONDENT/ Smt. Kavitha,
COMPLAINANT W/o. Sri. Venkatesh.M,
Aged about 36 years,
R/at. No.3775, 4th A Main Road,
B Block, 2nd Stage,
Nagappa Block,
Subramanyanagar,
Bengaluru - 560 010.
(By Sri. Anil.B.S, Advocate)
2 Crl.Appeal.No.805/2024
JUDGMENT
1. The appellant challenged the judgment and sentence passed
by the learned Magistrate dated 18-04-2024 in
C.C.No.12031/2021. Wherein the said learned Magistrate
has convicted the appellant-accused for the offence
punishable under Section 138 of N.I Act and sentenced him
directing to pay fine of Rs.6,00,000/- and in default to pay the
fine amount, he shall undergo simple imprisonment for 1 year.
Out of total fine amount a sum of Rs.5,90,000/- ordered to be
paid to the complainant by way of compensation and balance
of Rs.10,000/- is defrayed to the state for the expenses
incurred in the prosecution.
2. For the sake of convenience, the parties are referred to as per
their litigative status before the learned trial Court. The
appellant is the accused and the respondent is the
complainant as per their original ranks before trial Court.
3. The respondent-complainant filed the complaint against the
appellant-accused before the learned trial Court for the
3 Crl.Appeal.No.805/2024
offence punishable under Section 138 of N.I Act. Based on
the said complaint, cognizance was taken, sworn statement of
the complainant was recorded and the case was registered
against the accused in C.C.No.12031/2021 for the offence
punishable under Section 138 of N.I Act. Upon service of
summons, the accused appeared through his counsel and
plea of the accused was recorded and the accused pleaded
not guilty.
4. During the course of trial in order to prove the case of the
complainant, the complainant got examined herself as P.W-1
and got marked documents as per Ex.P-1 to 8. Accused
when examined under Section 313 of Cr.P.C denied all
incriminating circumstances appearing in evidence against
him. On behalf of accused has neither examined any witness
nor got marked any documents on his behalf.
5. After hearing both the parties, the learned trial Court convicted
the accused for the offence punishable under Section 138 of
N.I Act and sentenced him as aforesaid. Being aggrieved by
4 Crl.Appeal.No.805/2024
the said conviction and sentence of the learned trial Court, the
appellant-accused has filed this criminal appeal by
challenging the Judgment on the following:-
GROUNDS
(1) The impugned judgment and sentence passed by the
learned trial Court, is against law and all probabilities of
the case.
(2) The learned trial Court has been misdirected by the
respondent and came to the conclusion that the
appellant has committed an offence under section 138
of Negotiable Instrument Act. The learned trial Court
has not considered that consideration in as much as the
fact that there was no enforceable debt and that the
appellant never issued the cheque in question to the
respondent for the commission of the cheque.
Therefore, the dishonour of the cheque does not attract
any penalty under section 138 of Negotiable Instrument
Act
(3) The learned trial Court has not given sufficient
opportunity to the appellant to cross-examine the P.W-1
and to file his defence.
5 Crl.Appeal.No.805/2024
(4) The learned Magistrate has committed a grave error in
not considering the written arguments filed by the
accused-appellant at the time of passing the impugned
judgment.
(5) The learned Magistrate has committed a grave error
that the complainant has not satisfied the mandatory
requirement under Section 138 and 139 of N.I Act, that
there is no proper service of legal notice in the instance
case. The legal notice was not at all served on the
accused-appellant.
(6) The learned trial Court has passed the impugned
judgment and conviction based on probability,
assumptions and presumptions, considering the
admission of the cheque and signature not disputed and
by considering the case as routine one.
(7) Though there are number of discrepancies and contrary
statements in the case, without giving any proper
reasons, the conviction is made by the learned trial
Court and hence, the same is against law and all
probabilities of the case. Therefore, on this ground
alone for impugned judgment is liable to be set aside.
(8) The respondent has failed to prove that there is any
legally enforceable debt for which the appellant is liable
6 Crl.Appeal.No.805/2024
and as such the question of provisions of Section 138 of
N.I Act being attracted does not arise. Therefore, the
impugned judgment is otherwise illegal, arbitrary and
without the authority of law.
(9) The learned trial Court has failed to appreciate
irregularities and divergent facts available in the
documentary proof provided by the respondent in
support of his case. The learned trial Court has
committed a grave error in acceptance and acting upon
the evidenciary proof of the respondent, which is not
admissible under eye of law and presumptory value.
(10) The arguments of the accused-appellant and citations
furnished was not considered at all at the time of
passing the impugned judgment.
(11) The learned trial Court has committed a grave error in
not looking into the complaint in that the complainant
had not stated clearly as (a) When and where the
Accused approached the loan?; (b) When and where
she paid the said amount to the accused?; (c) When
she approached to repayment of loan?; (d) When and
where the cheque issued by the accused?
(12) Hon’ble Supreme Court clearly held in the case of
Krishna Janardhan Bhat -V/s.- Dattatraya.G Hegde, are
7 Crl.Appeal.No.805/2024
all above basic ingredients not lay down in the complaint
and hence, the complaint is liable to be dismiss.
(13) That the complainant is stranger to the accused, in her
complaint she admitted that, “husband of the
complainant and the accused are known to each other
from past 10 years” during the cross-examination of
P.W-1, she state that, “ಆರೋಪಿಯ ಪರಿಚಯ ಹೇಗೆ ಆಯಿತು
ಎಂದು ಪಿರ್ಯಾದಿನಲ್ಲಿ ಹೇಳಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿಯು
ಮುಂದುವರೆದು ಆರೋಪಿ ಮತ್ತು ನನ್ನ ಗಂಡ ಒಟ್ಟಿಗೆ ಕೆಲಸ
ಮಾಡುತ್ತಿದ್ದ ರು ಎಂದು ತಿಳಿಸಿರುತ್ತಾರೆ. ಆರೋಪಿ ಮತ್ತು ನನ್ನ ಗಂಡ
ಒಟ್ಟಿಗೆ ಯಾವ ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದ ರು ಎಂದು ಪಿರ್ಯಾದಿನಲ್ಲಿ ತಿಳಿಸಿಲ್ಲ .”
Hence, the complainant and accused unknown persons
each other if the accused really approached the loan the
accused approached to the Complainant husband not to
his wife this is subspecies aspects to create sympathy
before this Court, all the persons are colluded each
other through the complainant, filed this false
complainant against the accused.
(14) That during the cross-examination of P.W-1, she
deposed admitted that, “ನೋಟೀಸಿನಲ್ಲಿ, ಪಿರ್ಯಾದಿನಲ್ಲಿ ಮತ್ತು
ಪ್ರಮಾಣ ಪತ್ರದಲ್ಲಿ ಏನು ಬರೆಯಲಾಗಿದೆ ಎಂದು ನಾನು
ತಿಳಿದುಕೊಂಡಿಲ್ಲ “. She doesn’t know anything how she
placed/filed Complaint/Chief Affidavit without knowing
well before the Court.
8 Crl.Appeal.No.805/2024
(15) That during the cross-examination of P.W-1, she
deposed that, “ನನಗೆ ಮನೆಗೆಲಸದಿಂದ ಸುಮಾರು ರೂ.18,000/-
ಆದಾಯ ಬರುತ್ತಿತ್ತು . ಟೈಲರಿಂಗ್ ಕೆಲಸ ಕೂಡು ಮಾಡುತ್ತಿದ್ದೆ. ಅದರಿಂದ
ನನಗೆ ತಿಂಗಳಿಗೆ 2-3 ಸಾವಿರ ಬರುತ್ತಿತ್ತು .” and “ನಾನು ಕೆಲಸ
ಮಾಡುತ್ತಿದ್ದ ಬಗ್ಗೆ ಮತ್ತು ಆದಾಯದ ಬಗ್ಗೆ ದಾಖಲಾತಿಯನ್ನು
ಹಾಜರುಪಡಿಸಿದ್ದೇನೆ. ನಾನು ಯಾವುದೇ ರೀತಿಯ ದಾಖಲಾತಿಯನ್ನು
ಹಾಜರುಪಡಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ .” But, the complainant did
not produced any piece of paper in respect of her
income/salary sum of Rs.18,000/- per month and hence,
without having sufficient income how the complainant
given a loan that much of amount to the accused it is
impossible.
(16) That during the cross-examination of P.W-1, she
deposed that, “ಆರೋಪಿ ರೂ.5,80,000/- ಗಳು ಬೇಕು ಎಂದು
2020 ರಲ್ಲಿ ಕೇಳಿದರು ಆದರೆ ದಿನಾಂಕ ಮತ್ತು ತಿಂಗಳು ನೆನಪಿಲ್ಲ . ನಾನು
ಆರೋಪಿಗೆ 2020 ರಲ್ಲಿಯೇ ಹಣ ನೀಡಿದ್ದೇನೆ, ದಿನಾಂಕ ಮತ್ತು ತಿಂಗಳು
ನೆನಪಿಲ್ಲ . ಆ ದಿನ ನನ್ನ ಬಳಿ ರೂ.5,80,000/- ಇದ್ದ ಬಗ್ಗೆ
ದಾಖಲಾತಿಯನ್ನು ಹಾಜರುಪಡಿಸಿದ್ದೀರಾ ಎಂದು ಕೇಳಿದ ಪ್ರಶ್ನೆಗೆ
ಸಾಕ್ಷಿಯು ನಾನು ಬ್ಯಾಂಕ್ ವಿವರವನ್ನು ಕೊಟ್ಟಿದ್ದೇನೆ ಮತ್ತು ನನ್ನ ಬಳಿ
ಕೂಡ ಸ್ವ ಲ್ಪ ಹಣ ಇತ್ತು ಎಂದು ತಿಳಿಸಿರುತ್ತಾರೆ.” The complainant
has not place any documents in respect of her financial
capacity and not produced any Bank statements, which
she deposed in above and moreover, the complainant
doesn’t know about the transaction it is clearly elicited in
9 Crl.Appeal.No.805/2024
cross-examination of above and “ನಾನು ಆರೋಪಿಗೆ ಹಣವನ್ನು
ನಗದು ರೂಪದಲ್ಲಿ ನೀಡಿದ್ದೇನೆ. ಈ ವಿಚಾರವನ್ನು ನೋಟೀಸಿನಲ್ಲಿ,
ಪಿರ್ಯಾದಿನಲ್ಲಿ ಮತ್ತು ಪ್ರಮಾಣ ಪತ್ರದಲ್ಲಿ ಹೇಳಿಲ್ಲ ಎಂದರೆ ಸರಿ.”
Even, the complainant not narrated in anywhere
whether the complainant paid by way of cash or cheque
or RTGS, it is admitted by the complainant.
(17) That during the cross-examination of P.W-1, she
deposed that, “ಆರೋಪಿ ಮತ್ತು ಗಂಡ ಯಾವ ಶಾಖೆಯಲ್ಲಿ ಮತ್ತು
ಯಾವ ಅವಧಿಯಲ್ಲಿ ಒಟ್ಟಿಗೆ ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದ ರು ಎಂಬುದು ನನಗೆ
ಗೊತ್ತಿಲ್ಲ .” Again she doesn’t know about the accused
clearly stated by the complainant and “ಹಣವನ್ನು ವಾಪಸ್ಸು
ಕೊಡಿ ಎಂದು ಆರೋಪಿಗೆ ಯಾವಾಗ ಕೇಳಿದೆ ಎಂಬ ವಿಚಾರವನ್ನು
ನೋಟೀಸಿನಲ್ಲಿ, ಪಿರ್ಯಾದಿನಲ್ಲಿ ಮತ್ತು ಪ್ರಮಾಣ ಪತ್ರದಲ್ಲಿ ಹೇಳಿಲ್ಲ
ಎಂದರೆ ಸರಿ.” The P.W-1 admitted not narrated anything to
return of loan amount, it is clearly shows she did not
paid any loan and hence, she did not know if she really
paid the said amount, it is not a difficulty to state
everything.
(18) That during the cross-examination of P.W-1 she
deposed that, “ನಾನು ಚೆಕ್ಕ ನ್ನು 2001 ರ 9 ನೇ ತಿಂಗಳು 10 ನೇ
ತಾರೀಖು ಪಡೆದುಕೊಂಡಿರುತ್ತೇನೆ.” How it is possible as per
the complainant transaction done in the year of 2020
and how she obtain cheque from the accused in the
year of 2001, 9 month, date 10. Hence, it is again the
10 Crl.Appeal.No.805/2024
accused established/elicited there is no transaction took
place between the complaint and accused, the
complainant filed false complaint and further she clearly
deposed that, “ನಾನು ಆರೋಪಿಗೆ 2020 ರ ಮಾರ್ಚ್ ನಲ್ಲಿ ಹಣ
ನೀಡಿದ್ದೇನೆ ಎಂದು ಹೇಳಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ.” How can this Court
have to believe the Complainant question will be arise.
(19) That during the cross-examination of P.W-1 she
deposed that, “ನಾನು ಆರೋಪಿಗೆ ಹಣವನ್ನು ನಮ್ಮ ಮನೆಯಲ್ಲಿ
ಕೊಟ್ಟಿದ್ದೇನೆ. ಆ ಸಮಯದಲ್ಲಿ ನನ್ನ ಗಂಡ, ಆರೋಪಿ ಮತ್ತು ನಾನು
ಇದ್ದೆವು.” and “ನನ್ನ ಗಂಡನನ್ನು ವಿಚಾರಣೆಗೆ ಒಳಪಡಿಸಲು ತೊಂದರೆ
ಇಲ್ಲ ಎಂದರೆ ಸರಿ.” Here in this if she really paid loan to the
accused there is no difficulty to state the denomination
of the amount and the complainant did not bring her
husband to adduce evidence before the Court, the
complainant failed to prove her case even the
complainant doesn’t have any difficulty to bring her
husband as a witness before the Court.
(20) That during the cross-examination of P.W-1, she
deposed that, “ರೂ.20,000/- ಕ್ಕೂ ಮೇಲ್ಪ ಟ್ಟ ಹಣವನ್ನು ಚೆಕ್ಕು
ಅಥವಾ ಡಿಡಿ ಅಥವಾ ಖಾತೆಯ ಮೂಲಕ ನೀಡಬೇಕು ಎಂಬ ವಿಚಾರ
ನನ್ನ ಗಂಡನಿಗೆ ಗೊತ್ತಿದೆ ಎಂದರೆ ಸರಿ.” The complainant and her
husband very well know about the financial transaction
and well knowingly how the complainant and her
husband paid a sum of Rs.5,80,000/- to the accused
11 Crl.Appeal.No.805/2024
being a Bank official can’t pay by way of cash that much
of mount it is unbelievable.
(21) That during the cross-examination of P.W-1, she
deposed that, “ಆರೋಪಿ 15 ದಿನಗಳೊಳಗಾಗಿ ಹಣವನ್ನು ವಾಪಸ್ಸು
ಕೊಡುವುದಾಗಿ ತಿಳಿಸಿದ್ದ ರು. ಹಣ ನೀಡುವ ಸಮಯದಲ್ಲಿ
ಆರೋಪಿಯಿಂದ ಸಾಲದ ಕರಾರು ಅಥವಾ ಆನ್ ಡಿಮಾಂಡ್ ಪ್ರಾಮಿಸರಿ
ನೋಟನ್ನು ಬರೆಯಿಸಿಕೊಂಡಿಲ್ಲ ಮತ್ತು ಬರೆಯಿಸಿಕೊಳ್ಳ ಲು ತೊಂದರೆ
ಇರಲಿಲ್ಲ ಎಂದರೆ ಸರಿ.” There is a contradictory statement
given by the complainant, in complaint Page No.2,
Paragraph No.3 last line clearly mentioned that, “During
the time of receiving the loan accused had assured the
complainant that they will return the said amount within
three months”. Again the complainant falsely deposed
which is true and correct question will be raised before
this Court and the complainant admitted there is no
difficulty obtain a documents regarding paid amount,
but, the complainant not obtain any documents at the
time of paying the amount, it is also shows the
complainant not paid any amount to the accused.
(22) That during the cross-examination of P.W-1, admitted
that, “ಚೆಕ್ಕಿ ನಲ್ಲಿರುವ ಸಹಿ ಮತ್ತು ಇತರೆ ಸಂಗತಿಗಳು ಬೇರೆ ಬೇರೆ ಶಾಯಿ
ಮತ್ತು ಬರವಣಿಗೆಯಲ್ಲಿವೆ ಎಂದರೆ ಸರಿ.” The Accused not a
drawer of the instrument/cheque it is clearly established
by the accused and “ಸಾಕ್ಷಿಯು ಮುಂದುವರೆದು ಆರೋಪಿ ಚೆಕ್ಕಿ ಗೆ
12 Crl.Appeal.No.805/2024
ಸಹಿ ಮಾಡಿ ಕೊಟ್ಟ ರು, ಆಗ ನನ್ನ ಸ್ನೇಹಿತೆಯ ಮಗಳು ಇತರೆ ಸಂಗತಿಗಳನ್ನು
ಭರ್ತಿ ಮಾಡಿದ್ದ ರು.” Section 20 of N.I Act clearly state in
citation Shreyas Agro Services (P) Ltd. -V/s.-
S.B.Chandrakumar, reported in (2008) 61 AIC 804,
clearly held that, “Section 20 of N.I Act declares that
inchoate instruments are also valid and legally
enforceable. In the case of a signed blank cheque, the
drawer gives authority to the drawee to fill up the agreed
liability. If the drawee were to dishonestly fill up any
excess liability and the extent of liability if it becomes
bonafide matter of civil dispute in such case, the drawer
has no obligation facilitate the encashment of cheque. In
the instant case the reply Ex.P-40 discloses that long
before presentation of cheque, the extent of liability was
disputed but ignoring the objection, the company filled
up the cheque for an amount not admitted by the
drawer. If the accused were to prove that there is a
bonafide dispute with regard to extent of liability, the
dishonour of cheque under such circumstance does not
attract prosecution Under Section 138 of N.I Act. The
dismissal of complaint is sound and proper. The appeal
is dismissed.”
As per stated in above citation for the voluntary
statement given by the P.W-1 clear and proper, herein
13 Crl.Appeal.No.805/2024
this case the complainant is stranger to the accused
and even, there is no transaction. Hence, question of
the filling actual amount doesn’t arise in this case.
Therefore, this circumstance does not attract
prosecution under Section 138 of N.I Act. Accordingly,
the present complaint also deserve to be dismissed.
(23) That as per above discussion the complainant failed to
prove her case behind all reasonable doubt as (a) The
complainant did not know about the transaction during
the cross-examination, she admitted so many facts; (b)
The complainant did not produce any documents to
show her financial capacity to prove case but in cross-
examination already placed before Court, but, not come
forthwith herein case; (c) The complainant is not fulfilled
ingredient of N.I Act as discussed in above; (defendant)
The complainant fail to execute any piece of documents
from the accused side and she admitted she doesn’t
have any impediment to obtain any documents from the
accused side; (e) The complainant without the
permission of accused, filled all other contents in the
absence of the accused; (f) The complainant fail to bring
her husband as witness, who is present at the time of
transaction took place.
14 Crl.Appeal.No.805/2024
(24) The complainant has to fail prove her case, which is lay
down in the complaint and hence, Section 139 of N.I Act
clearly held that, 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, what are all contrary which is lay down in her
complaint. The complainant fail to prove her case.
(25) The Hon’ble Supreme Court clearly held in AIR 2008
SUPREME COURT 1325 :: 2008 AIR SCW 738
Supreme Court Of India (From: Karnataka)* HON’BLE
JUDGE(S) : SATYA BRATA SINHA, H. S. BEDI, JJ (A)
Negotiable Instruments Act (26 of 1881), S.139-
Presumption under S.139 merely raises presumption in
favour of holder of cheque that same has been issued
for discharge of any debt or other liability Existence of
legally recoverable debt Is not a matter of presumption
u/S.139. (Para 21) (B) Negotiable Instruments Act (26 of
1881), S.138, S.139- Dishonour of cheque Defence
Proof – Accused not required to step into witness-box
He may discharge his burden on basis of materials
already brought on record – Question whether statutory
presumption rebutted or not Must be determined in view
of other evidences on record. Cri. R.P. No. 1470 of
15 Crl.Appeal.No.805/2024
2004, D/- 22-6-2005 (Kar), Reversed. In case of
dishonour of cheque it cannot be said that for proving
the defence the accused is required to step into the
witness-box and unless he does so he would not be
discharging his burden (Para 22 29 35) an Accused for
discharging the burden of proof placed upon him under
a stature need not examine himself. He may discharge
his burden on the basis of the materials already brought
on record, an Accused has a constitutional right to
maintain silence, standard of proof…..”
(26) The impugned order dated 18-04-2024, is devoid of
merits, baseless and opposed to all canons of law and
the same requires to be set aside.
6. After admitting of this criminal appeal, the notice was issued to
the respondent. The respondent has appeared through his
counsel. The learned trial Court records secured.
7. Heard arguments of learned counsel for respondent. Perused
the written argument of appellant. I have carefully perused
the entire trial Court records pertaining to this case and the
impugned Judgment.
16 Crl.Appeal.No.805/2024
8. The following points arise for the consideration of the Court:-
1. Whether the appellant made-out grounds to allow the
appeal and set-aside the order passed by the learned
XII Additional Judge, Court of Small Causes and
A.C.M.M, Bengaluru, in C.C.No.12031/2021 dated 18-
04-2024?
2. What order?
9. The findings of the Court on the aforesaid points are as under:-
Point No.1 : In the Negative,
Point No.2 : As per final order for the following:-
REASONS
10. POINT NO.1:- The case of the complainant is that, the
accused borrowed hand loan of Rs.5,80,000/- from the
complainant for his personal necessities and agreed to repay
the said amount within 3 months. After several requests and
demands, the accused towards repayment of the amount
issued a cheque bearing no.475542 for Rs.5,80,000/-, drawn
on Vijaya Bank, Trinity Circle Branch, Bengaluru, dated 10-09-
2021, assuring that the cheque will be honoured on
17 Crl.Appeal.No.805/2024
presentation. As per the assurance given by the accused, the
complainant presented the cheque for encashment at Bank of
Baroda, Nagappa Block Branch, Bengaluru. But, the said
cheque was returned for the reason “Funds Insufficient” in the
account of the accused. Thereafter, the complainant issued a
legal notice to the accused through RPAD on 18-11-2021,
which was returned unserved on 23-11-2021. The accused
has not paid the cheque amount. Hence, the complainant
constrained to file complaint against the accused for the
alleged offence punishable under Section 138 of Negotiable
Instruments Act. Hence, this complaint.
11. The learned counsel for the respondent has argued that, the
Judgment passed by the learned trial Court in
C.C.No.12031/2021 dated 18-04-2024, is hold and good and
not committed any error, after perused the Ex.P-1 to 8 i.e.,
original cheque, endorsement of the Bank, office copy of the
legal notice, 2 postal receipts, 2 postal covers and courier
receipt and also observed all the evidence of the complainant
18 Crl.Appeal.No.805/2024
and passed the Judgment against the appellant and therefore,
the appeal filed by the appellant is devoid on merits and liable
to be dismissed.
12. Learned counsel for the appellant has argued that, the learned
trial Court arrived at the wrong conclusion in respect of the
transaction between the complainant and accused. There are
contradictions in the evidence of P.W-1. Further contended
that, the learned Magistrate has completely ignored the
principles of criminal jurisprudence. That the burden of proof
lies on the respondent and the benefit lies in favour of the
appellant. Further argued that, the learned trial Court failed to
consider the evidence given by the P.W-1 during the course of
cross-examination and fail to note that, never issued the
cheque in question to the respondent and there was no
enforceable debt. Hence, the appreciation made by the
learned Magistrate, is needs interference.
13. Perused entire order sheets, complaint filed under Section
200 of Cr.P.C, for the offence punishable under Section 138 of
19 Crl.Appeal.No.805/2024
N.I Act, examination-in-chief affidavit of the complainant, plea
of accusation, contents of exhibited documents as per Ex.P-1
to 8. There is no procedural defect of any nature while
conducting trial relating to private complaint registered for the
offence punishable under Section 138 of N.I Act.
14. So far as appreciation of evidence is concerned, complainant
is examined as P.W-1. P.W-1 has been subsequently cross-
examined by the counsel for accused. P.W-1 has reiterated
averments of complaint in his examination-in-chief. Ex.P-1
and Ex.P-1(a) are original cheque and signature of the
accused on Ex.P-1, Ex.P-2 is the endorsement of the Bank,
Ex.P-3 is the office copy of the legal notice dated 18-11-2021,
Ex.P-4 & 5 are the 2 postal receipts, Ex.P-6 & 7 are the 2
postal covers and Ex.P-8 is the courier receipt. The appellant
has not examined before the learned trial Court.
15. Despite notice, the accused did not make payment of cheque
amount and thereby, committed an offence punishable under
Section 138 of N.I Act. However, the accused has not repaid
20 Crl.Appeal.No.805/2024
the cheque amount. Accordingly, the accused has committed
an offence punishable under Section 138 of N.I Act.
Thereafter, burden shifts on the accused as per presumptions
under Section 118 & 139 of N.I Act in the form of reverse onus
on the accused to rebut presumptions.
16. To rebut the statutory presumption which could be drawn in
favour of the complainant and also to prove the probable
defense to the touch stone of preponderance of probabilities,
the accused did not enter into the witness box.
17. I relied placed below mentioned Authority and it is settled
principle of law as held by House of Lords in Vickers Sons
and Maxim Ltd., Vs. Evans (1910) AC 444 as quoted with
approval by the Hon’ble Apex Court in Jamma Masjid,
Mercara Vs Kodimaniandra Deviah and Others AIR 1962 SC
847 and reiterated in Shiv Shakti Co-operative Housing
Society vs Swaraj Developers, AIR 2003 SC 2434 and in
catena of decisions that the court cannot read anything into a
statutory provision which is plain and unambiguous.
21 Crl.Appeal.No.805/2024
18. On bare perusal of the object of the N.I. Act, it shows that the
main object of the Chapter introducing dishonour of cheque
on account of insufficiency of funds as penal offence in the
Act is to enhance the acceptability of cheque. In order to
attract the ingredients of Sec.138 of NI Act, the complainant
needs to prove that the cheque drawn by a drawer of the
cheque on an account maintained by him issued to the payee
in discharge of any debt or other liability, cheque is presented
to Bank within three months of the date of cheque and
returned by the drawer bank as unpaid, complainant has
made a demand for the payment of the said amount of money
by giving a notice in writing within 30 days of receipt of
information of dishonour by the Bank, and the drawer of such
cheque has not made the payment of the said amount of
money to the payee within fifteen days of the receipt of the
said notice, then such person shall be deemed to have
committed an offence and shall, without prejudice to any other
provisions of the Act, be punished with imprisonment for a
22 Crl.Appeal.No.805/2024
term which may be extended to two years, or with fine which
may extend to twice the amount of the cheque, or with both.
19. It is well settled principle of criminal jurisprudence that a
criminal trial proceeds on the presumption of innocence of the
accused. An accused is presumed to be innocent unless
proved guilty. It is the complainant to prove the guilt of the
accused beyond reasonable doubt. However, in respect of
offence under Section 138 of the Act, although there is a
reverse onus clause contained in Sections 118 and 139 of the
Act, the initial burden is on the complainant.
20. It is also a settled proposition of law that the standard of proof
which is required from the accused to rebut the statutory
presumption under Section 118 read with Section 139 of the
Act is preponderance of probabilities. The accused is not
required to prove his case beyond reasonable doubt. This
onus on the accused can be discharged from the materials
available on record and from the circumstantial evidences or
23 Crl.Appeal.No.805/2024
even by admissions in the cross-examination of complainant
and his witnesses.
21. I relied view expressed by the Apex Court in K. Bhaskaran Vs.
Sankaran Vaidhyan Balan reported in AIR 1999 SC 3762, the
Apex Court held that once the signature in the cheque is
admitted to be that of the accused, the presumption
envisaged in Section 118 of the N.I Act can legally be drawn
to infer that the cheque was made or drawn for consideration
on the date which the cheque bears.
22. I relied view expressed by the Apex Court in Rangappa Vs. Sri
Mohan reported in AIR 2010 SC 1898, a three Judges’ bench
of the Supreme Court held that that once issuance of a
cheque and signature thereon are admitted, presumption of a
legally enforceable debt in favour of the holder of the cheque
arises. It is for the accused to rebut the said presumption,
though accused need not adduce his own evidence and can
rely upon the material submitted by the complainant.
However, mere statement of the accused may not be
24 Crl.Appeal.No.805/2024
sufficient to rebut the said presumption. A post-dated cheque
is a well recognized mode of payment.
23. I relied view expressed by the Apex Court in K.S. Ranganatha
Vs. Vittal Shetty reported in 2021 SCC OnLine SC 1191, a
three judges’ bench of the Supreme Court held that once the
cheque is admitted to be that of the accused, the presumption
envisaged in Section 118 of the Act can legally be inferred
that the cheque was made or drawn for consideration on the
date which the cheque bears. Section 139 of the Act enjoins
on the Court to presume that the holder of the cheque
received it for the discharge of any debt or liability. It is further
held that the position of law makes it crystal clear that when a
cheque is drawn out and is relied upon by the drawee, it will
raise a presumption that it is drawn towards a consideration
which is a legally recoverable amount; such presumption of
course, is rebuttable by proving to the contrary. The onus is
on the accused to raise a probable defence and the standard
25 Crl.Appeal.No.805/2024
of proof for rebutting the presumption is on preponderance of
probabilities.
24. I relied view expressed by the Apex Court in M/s. Kalemani
Tax Vs. Balan (Crl.A.No.123/2021) (LL 2021 P.75) decided on
10.02.2021, a three judges’ bench of the Supreme Court of
India has observed that, even a blank cheque leaf, voluntarily
signed and handed over by the accused, which is towards
some payment, would attract presumption under Section 139
of the Negotiable Instruments Act, in the absence of any
cogent evidence to show that the cheque was not issued in
discharge of a debt.
25. I relied view expressed by the Apex Court in M/s. Ashok
Transport Agency V/s. Awadhesh Kumar and Another,
reported in 1998(5) Sec.567, Court has observed as under;
“A partnership firm differs from a proprietary concern
owned by an individual. A partnership is governed by
the provisions of the Indian Partnership Act, 1932.
Though a partnership is not a juristic person but Order
XXX Rule 1 CPC enables the partners of a
partnership firm to sue or to be sued in the name of
26 Crl.Appeal.No.805/2024the firm. A proprietary concern is only the business
name in which the proprietor of the business carries
on the business. A suit by or against a proprietary
concern is by or against the proprietor of the business.
In the event of the death of the proprietor of a
proprietary concern, it is the legal representatives of
the proprietor who alone can sue or be sued in
respect of the dealings of the proprietary business.
The provisions of Rule 10 of Order XXX which make
applicable the provisions of Order XXX to a
proprietary concern, enable the proprietor of a
proprietary business to be sued in the business
names of his proprietary concern. The real party who
is being sued is the proprietor of the said business.
The said provision does not have the effect of
converting the proprietary business into a partnership
firm. The provisions of Rule 4 of Order XXX have no
application to such suit as by virtue of Order XXX Rule
10 the other provisions of Order XXX are applicable to
a suit against the proprietor of proprietary business
“insofar as the nature of such case permits”. This
means that only those provisions of Order XXX can be
made applicable to proprietary concern which can be
so made applicable keeping in view the nature of the
case”
In view of the nature of the case, the same has been
reiterated in Raghu Lakshminarayanan V/s. Fine Tubes, 2007
(5) SCC 103.
27 Crl.Appeal.No.805/2024
26. Further, Hon’ble High Court of Karnataka in H.N.Nagaraj Vs.
Suresh Lal Hiral Lal, reported in 2022 LIVELAW (Karnataka)
400, it is observed that in a proceeding under Sec.138 of N.I.
Act, the arraying of a proprietor as an accused or a proprietary
concern represented by the proprietor would be sufficient for
compliance under Section 138 of N.I Act. The proprietor and
the proprietary concern are not required to be separately
arrayed as party accused.
27. Applying the above said principles to the present case and
before considering the point whether accused succeeded to
rebut presumptions and to establish his defence to the extent
of probabilities, it is just and necessary to accumulate
undisputed facts in this case.
28. It is not in dispute that bounced cheque belongs to the Bank
account of the accused. It is also not in dispute that,
signature appearing on the bounced cheque is the signature
of the accused is differ. It is also not in dispute that, the
cheque presented by the complainant came to be
28 Crl.Appeal.No.805/2024
dishonoured by the banker of the accused for the reason
stated in the dishonour memo.
29. To consider whether accused succeeded to rebut the
presumption and established defence to the extent of
probabilities, the accused has neither adduced evidence nor
marked any documents on his behalf and has failed to
establish his defence. It is evident from the decision of
Hon’ble Supreme Court in Ashok Transport Agency and
Hon’ble High Court in H.N.Nagaraj case, as discussed supra,
proprietorship is not a separate legal entity like a Company,
Partnership Firm or Association. Proprietary business name
need not be arrayed as party. Therefore, the trial Court has
rightly held that the accused has not rebutted the presumption
arising U/Sec.139 of N.I Act.
30. In addition to that accused has not produced documents to
show that, accused filed complaint before jurisdictional Police
against complainant for misuse of his cheque. Appellant-
accused did not produce any documents to establish the fact
29 Crl.Appeal.No.805/2024
that he has repaid the cheque amount to the complainant. On
the other hand, the oral and documentary evidence adduced
by the complainant, it is proved that the accused issued the
cheque for legally recoverable debt.
31. This Court has compared reasons assigned by the learned
trial Court in the impugned judgment of conviction as
discussed above with the allegations made in the
memorandum of appeal. No grounds are made out in the
memorandum of appeal to interfere with the Impugned
judgment of conviction. The learned trial Court has rightly
passed the judgment and order of conviction.
32. So far as quantum of punishment is concerned, sentenced
him to pay fine of Rs.6,00,000/- and in default to pay the fine
amount, he shall undergo simple imprisonment for 1 year.
Out of total fine amount a sum of Rs.5,90,000/- ordered to be
paid to the complainant by way of compensation and balance
of Rs.10,000/- is defrayed to the state for expenses incurred
in the prosecution. Fine amount imposed is within the purview
30 Crl.Appeal.No.805/2024
of Section 138 of N.I Act. Appellant failed to show that
sentence imposed is exorbitant. Accused-appellant failed to
show that quantum of fine imposed is excessive. There is no
merit in the appeal. Order under appeal is sustainable in law.
Hence, interference of this Court is not necessary.
Accordingly, Point No.1 is answered in the ‘Negative’.
33. POINT NO.2:- For the foregoing the reason I proceed to pass
the following:-
ORDER
This Criminal Appeal filed by the appellant-
accused under Section 374(3) of Cr.P.C, is hereby
dismissed.
Consequently, the Order passed by the XII
Additional Judge, Court of Small Causes and A.C.M.M,
Bengaluru, in C.C.No.12031/2021 dated 18-04-2024, is
hereby confirmed.
31 Crl.Appeal.No.805/2024
Office is hereby directed to send the certified
copy of this Judgment to the learned trial Court along
with T.C.R.
No order as to cost.
(Dictated to the Steno Gr-III directly on computer, typed by
him and corrected, signed and then pronounced by me in the open
court on this the 06th day of May, 2026.)(Raghavendra S. Channabasappa)
LXII Addl. C.C. & Sessions Judge,
Bengaluru City.
[ad_1]
Source link
