Sunitha vs Hanna Abraham, Since Deceased, Rep. By … on 5 May, 2026

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    Bangalore District Court

    Sunitha vs Hanna Abraham, Since Deceased, Rep. By … on 5 May, 2026

    KABC0A0020742024
    
    
    
    
        IN THE COURT OF LXXIII ADDL.CITY CIVIL &
      SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
                       (CCH.74)
    
    
                          PRESENT:
              Smt. Anitha N.P., B.A.L., L.L.M.,
           LXXIII Addl.City Civil & Sessions Judge,
                  Mayohall Unit, Bengaluru.
    
    
            Dated this the 05th day of May 2026
    
                  Crl. Appeal. No.25224/2024
    Appellants/    Mrs. Sunitha,
    Accused:-      Aged about 48 years,
                   W/o: Mr. Nagaraju,
                   Old Ananad Kumar Office (BJP),
                   Opp. Mahesh Township,
                   Near Goldwinner Oil Godown,
                   Billeshivale, Bengaluru 560077.
    
                   (By Sri. Pradeep Kumar R.H. - Adv.,)
    
                          V/s
    
    Respondents/ Mrs. Hanna Abraham,
    Complainant: W/o: Mr. Abraham Shankar,
                 Since Deceased,
                 Rep. by her legal heir,
                 Sri. Abraham Shankar
                 Aged about 51 years,
                 S/o: late Mallikarjunappa,
                 R/at No.89/90, Doddagubbi Road,
                                 2            Crl.Appeal No.25224/2024
    
    
    
    
                      3rd Cross, Attina Township,
                      B Hanumanth Nagar, Billashivale,
                      Dr. Shivarama Karantha Nagar,
                      Bengaluru 560077.
    
                      By M.C.Sudha - Adv.,)
    
    
                               JUDGMENT
    

    This is an Appeal filed by Accused under Section
    374(3)(a)
    of Cr.P.C., being aggrieved by the Judgment
    dated 13.05.2024 passed in C.C. No.55040/2019 on the
    file of XXXIV ACMM, Mayohall Unit, Bengaluru,
    convicting her for an offence punishable under Section
    138
    of the Negotiable Instruments Act [hereinafter
    referred to as ‘NI Act‘, for brevity] and sentencing her to
    pay fine of Rs.1,95,900/- and in default of payment of
    fine, to undergo simple imprisonment for 3 months. Out
    of the fine amount, a sum of Rs.1,92,900/- is directed to
    be paid to the respondent/complainant as compensation
    and remaining Rs.3,000/- is ordered to be remitted
    towards State expenses.

    2. For the sake of convenience the parties
    hereinafter will be referred to with their ranking assigned
    before the trial court. The appellant is the accused and
    the respondent is the complainant before the trial court.

    SPONSORED

    3 Crl.Appeal No.25224/2024

    3. The facts of the case:-

    The complainant was running a Tea Stall and
    accused was introduced as customer and developed good
    relation. The accused in the month of October 2017
    requested the complainant for Rs.1,50,000/- as hand
    loan for shifting her house and also for changing school
    of her daughter. The complainant paid Rs.1,50,000/- out
    of her savings. The accused failed to return the amount.
    After repeated requests the accused issued post dated
    cheque bearing No. 013588 dated 19.12.2018 for a sum
    of Rs.1,50,000/-. The complainant presented the said
    cheque before her banker and the same returned unpaid
    with endorsement ‘insufficient funds’ vide bank memo
    dated 20.12.2018. When the same informed to the
    accused and asked for return of the amount the accused
    created a scene by stating that the complainant is
    threatening the accused and used abusive words. Again
    the complainant re-presented the said cheque on
    31.01.2019 and again the same returned as insufficient
    funds vide memo dated 01.02.2019. Hence, the
    complainant issued legal notice on 27.02.2019. The said
    notice returned as duly served on accused on
    01.03.2019. Inspite of service of notice the accused not
    paid the amount nor given any reply. Thereby, the
    4 Crl.Appeal No.25224/2024

    Appellant/accused has committed the offence
    punishable under Sec.138 of NI Act. Thereafter the
    Complainant approached the Trial Court for appropriate
    legal action against the Accused.

    4. Pursuant to summons the Accused entered
    appearance through his Counsel before the Trial Court.
    The substance of the accusation was read over and
    explained to the Accused in the language known to her.
    The Accused pleaded not guilty and claimed to be tried.
    That in view of death of complainant during the
    pendency of the proceedings the Complainant’s husband
    got examined as PW.2 and got marked Ex.P.1 to Ex.P.6
    documents and closed his side. The Accused not lead
    evidence.

    5. The trial court after hearing the counsel for
    Complainant and accused, convicted the Accused for the
    offence punishable U/Sec.138 of NI Act vide Judgment
    dtd 13.05.2024

    6. Feeling aggrieved by the said judgment of
    conviction, the Accused is in appeal on the following
    grounds:

    5 Crl.Appeal No.25224/2024

    1. The impugned judgment is not sustainable
    either in law or on facts. The trial court not
    not appreciated the arguments of the
    appellant that complainant is claiming
    falsely. The accused rebutted the
    presumption available in favour of the
    complainant.

    2. The learned trial court not appreciated that
    the complainant has not produced any
    document, nor examined any witnesses to
    prove the how cheque of accused went into
    the custody of complainant. The cheque in
    question is in respect of bank loan purpose
    as the complainant assured to get the hand
    loan. Complainant has no financial capacity
    and the same is admitted by her and
    accused has not taken any loan from the
    complainant.

    3. The trial court not properly appreciated the
    entire evidence and not applied the correct
    principles of law, the impugned judgment is
    contradictory. Under the above grounds the
    Appellant sought for setting aside the
    impugned judgment by allowing the appeal.

    7. After service of notice, the Respondent appeared
    through his counsel. Records secured from trial court.

    6 Crl.Appeal No.25224/2024

    8. Heard both sides arguments.

    9. The counsel for respondent has relied upon
    following decisions:

    1. Crl.Rev.Pet.No.676/2015 (Smt. Zubeida Vs.
    The Udupi Taluk Protestant Christian Credit Co-op.
    Society Ltd.,

    2. 2022 (2) AKR 231 (Inthiyaz Vs. K.Sundar)

    10. Perused the evidence, documents on record
    and also impugned Judgment of conviction passed by
    the Trial Court. I have carefully gone through the
    decisions relied on by the respondent.

    11. On re-appreciation of the evidence, documents
    on record, the following points would emerge for the
    consideration of this court.

    1. Whether the Appellant proves that the
    cheque in question was not issued
    towards any legally recoverable debt?

    2. Whether the Judgment of conviction
    passed by the Trial Court calls for
    interference by the hands of this
    court?

    3. What Order?

    7 Crl.Appeal No.25224/2024

    11. My finding on the above points are as under:

    Point No.1 : In the Negative.

    Point No.2 : In the Negative.

    Point No.3 : As per final order for
    the following:

    REASONS

    12. POINT NOs.1 and 2:-

    Since the above two points are interlinked, in order
    to avoid repetition of facts the above points have been
    taken up together for consideration.

    13. Before re-appreciating the evidence on record, it
    is necessary to refer the decision of the Hon’ble Apex
    Court reported in 2019 (3) KCCR 2473 (SC)
    (Basalingappa V/s Mudibasappa), which is relied on by
    the accused wherein the Hon’ble Apex Court while
    considering several earlier rulings on the offence
    U/Sec.138 of NI Act and also on the presumption
    U/Sec.118 and 139 of NI Act, at Para 23 was pleased to
    observe as follows:

    23. We having noticed the ratio laid down
    by
    this Court in above cases on Sections 118(a)
    and 139, we now summarise the principles
    enumerated by this Court in following manner:-

    8 Crl.Appeal No.25224/2024

    (i) Once the execution of cheque is
    admitted Section 139 of the Act mandates a
    presumption that the cheque was for the
    discharge of any debt or other liability.

    (ii) The presumption under Section 139 is
    a rebuttable presumption and the onus is on the
    Accused to raise the probable defence. The
    standard of proof for rebutting the presumption
    is that of preponderance of probabilities.

    (iii) To rebut the presumption, it is open
    for the Accused to rely on evidence led by him
    or Accused can also rely on the materials
    submitted by the Complainant in order to raise
    a probable defence. Inference of preponderance
    of probabilities can be drawn not only from the
    materials brought on record by the parties but
    also by reference to the circumstances upon
    which they rely.

    (iv) That it is not necessary for the Accused to
    come in the witness box in support of his
    defence, Sec.139 imposed an evidentiary
    burden and not a persuasive burden.

    (v) It is not necessary for the Accused to
    come in the witness box to support his defence.

    14. In another ruling reported in AIR 2010 SC
    1898 (Rangappa V/s Mohan),which is relied on by
    accused the Honble Apex court has observed as
    under:-

    “Existence of legally recoverable debt or
    liability- The presumption mandated by Section
    139
    of the Act does indeed include the
    existence of a legally enforceable debt or
    9 Crl.Appeal No.25224/2024

    liability. This is of course in the nature of a
    rebuttable presumption and it is open to the
    Accused to raise a defence wherein the
    existence of a legally enforceable debt or
    liability can be contested. However, there can
    be no doubt that there is an initial presumption
    which favours the Complainant. Section 139 of
    the Act is an example of a reverse onus clause
    that has been included in furtherance of the
    legislative objective of improving the credibility
    of negotiable instruments. While Section 138 of
    the Act specifies a strong criminal remedy in
    relation to the dishonour of cheques, the
    rebuttable presumption under Section 139, is a
    device to prevent undue delay in the course of
    litigation. However, it must be remembered that
    the offence made punishable by Section 138
    can be better described as a regulatory offence
    since the bouncing of a cheque is largely in the
    nature of a civil wrong whose impact is usually
    confined to the private parties involved in
    commercial transactions. In such a scenario,
    the test of proportionality should guide the
    construction and interpretation of reverse onus
    clauses and the Accused/defendant cannot be
    expected to discharge an unduly high standard
    or proof. In the absence of compelling
    justifications, reverse onus clauses usually
    impose an evidentiary burden and not a
    persuasive burden. Keeping this in view, it is a
    settled position that when an Accused has to
    rebut the presumption under Section 139, the
    standard of proof for doing so is that of
    ‘preponderance of probabilities’. Therefore, if
    the Accused is able to raise a probable defence
    which creates doubts about the existence of a
    legally enforceable debt or liability, the
    prosecution can fail. The Accused can rely on
    the materials submitted by the Complainant
    and it is conceivable that in some cases the
    Accused may not need to adduce evidence of
    his/her own.”

    10 Crl.Appeal No.25224/2024

    15. Keeping in view the broad principles laid down
    by
    the Hon’ble Apex Court, let me re-appreciate the
    evidence and documents on record.

    16. The definite case of the
    Complainant/Respondent is that she is running Tea
    Stall and accused was introduced as customer and
    developed good relation. The accused in the month of
    October 2017 requested the complainant for
    Rs.1,50,000/- as hand loan for shifting her house and
    also for changing school of her daughter. The
    complainant paid Rs.1,50,000/- out of her savings. The
    accused failed to return the amount. After repeated
    requests the accused issued post dated cheque bearing
    No. 013588 dated 19.12.2018 for a sum of
    Rs.1,50,000/-. The complainant presented the said
    cheque before her banker and the same returned unpaid
    with endorsement ‘insufficient funds’ vide bank memo
    dated 20.12.2018. Again the complainant re-presented
    the said cheque on 31.01.2019 and again the same
    returned as insufficient funds vide memo dated
    01.02.2019. Hence, the complainant issued legal notice
    on 27.02.2019. The said notice returned as duly served
    11 Crl.Appeal No.25224/2024

    on accused on 01.03.2019. Inspite of service of notice
    the accused not paid the amount nor given any reply.

    17. The complainant in order to prove her case
    initially got examined herself as P.W.1 and got marked in
    all 6 documents as per Ex.P1 to Ex.P6. Subsequently in
    view of the death of complainant her husband/LR got
    examined himself as PW2 and he has identified Ex.P1 to
    6 and closed his side evidence. The accused except
    cross-examining complainant not chosen to lead
    evidence and not produced any document.

    18. Let me go through the documentary evidence
    placed by the Complainant in this case. Ex.P.1 is
    original cheque dated 19.12.2018. Ex.P2 & 3 are bank
    endorsement dated 20.12.2018 & 01.02.2019. Ex.P4 is
    copy of notice dated 27.02.2023. Ex.P5 is postal receipt
    dated 28.02.2019. Ex.P6 is postal acknowledgment.

    19. Now let us go through the cross-examination of
    PW-2/LR. This P.W.2 in his cross-examination deposed
    that deceased complainant is his wife and he is having 3
    children. He knows accused since 2010. His wife was
    running Tea shop. He denied that his wife used to obtain
    12 Crl.Appeal No.25224/2024

    cheque, pass book, PAN card, Aadhar card from the
    people who were visiting the Church stating that she will
    get loan from bank to them. His wife informed about the
    cheque given by the accused to her. He denied that his
    wife was regularly visting Church and by telling people
    that she will get loan from them she was receiving blank
    cheques.

    20. From the above evidence of complainant it is
    clear that the cheque marked at Ex.P1 is pertains to the
    account of accused and the signature there on is that of
    accused. The accused no where denied Ex.P1.under the
    circumstances there is an initial presumption in favor of
    the complainant and the burden is on the accused to
    rebut the said presumption by taking proper defence on
    the principles of preponderance of probabilities.

    21. With this factual matrix, firstly the court has to
    appreciate whether there are materials to ascertain the
    existence of legally enforceable debt. At the outset, the
    Court has to appreciate whether Section 138 of The Act
    is made out. When the cheque is produced before the
    Court and when it came to be dishonored for funds
    insufficient or for any other reason and when the legal
    13 Crl.Appeal No.25224/2024

    notice was issued within the statutory period then the
    presumption available under Sections 118 & 139 of The
    Act is made out in favour of the complainant. The
    provisions of Section 118 of The Act are separated from
    the general rule applicable to the contracts and it
    provides presumption in favour of the party. The said
    presumptions are that: unless the contrary is proved the
    Court has to presume that the consideration had passed
    between the parties as enumerated under Section 118 of
    NI Act. Likewise, unless the contrary is established
    Section 139 of the NI Act clearly establishes that the
    holder of the cheque had received the same towards
    discharge of the legally enforceable debt either towards
    whole or partial liability. The said presumptions have to
    be read conjointly in order to ascertain whether the
    ingredients are made out. Further, the said
    presumptions are rebuttable and the same has to be
    appreciated with the factual aspects of the case. The
    impugned cheque at Ex.P1 is drawn during the period of
    its validity and was accordingly presented to the bank
    and after its dishonor the notice was also issued and
    later on after completing all the statutory bound
    obligations the complaint came to be filed. This clearly
    indicates that initial presumption is drawn in favour of
    14 Crl.Appeal No.25224/2024

    the complainant. It is also relevant to note that the said
    presumption is rebuttable one and as such the defence
    of the accused has to be appreciated in order to
    ascertain whether the presumption which is drawn
    initially in favour of the complainant has been
    successfully rebutted.

    22. The law is well settled that the accused need
    not enter the witness box to rebut initial presumption. At
    the same time, the defense which is taken up by the
    accused is to be appreciated so as to ascertain whether
    the same was probable or not. In the case on hand the
    accused has come up with specific defence that the wife
    of PW2 i.e., deceased complainant was regularly visiting
    the Church and during Church time she assured the
    accused that she will get financial assistance to her and
    by saying so has collected the Ex.P1 Cheque from the
    accused and thereafter filed this false complaint.
    However when the same was suggested to PW2 he has
    categorically denied the said suggestion.

    23. First and foremost the accused has not placed
    any material to establish that the deceased complainant
    was regularly visiting the Church. It is also necessary to
    note that the accused suggested to PW2 that the
    15 Crl.Appeal No.25224/2024

    deceased complainant used to receive the blank cheques
    and even from the accused she received blank cheque
    and other document. However in this regard except bald
    suggestion to PW2 nothing is placed on record to
    establish that the deceased complainant collected blank
    cheque from the accused along with other documents.

    24. Though the accused taken specific contention
    that so as to get bank loan sanctioned the complainant
    collected cheque from the accused and she assured that
    she will grant hand loan to accused however in this
    regard also the accused has not elicited anything from
    the mouth of PW2. Absolutely there is nothing on record
    to establish that Ex.P1 was issued by the accused to the
    complainant only for the purpose of borrowing loan from
    the bank and thereby complainant assured to get hand
    loan to the accused.

    25. PW2 has specifically deposed that it is to purchase
    land the accused borrowed loan and said fact was
    informed to him by his wife. When the witnesses deposed
    that the loan was borrowed for purchasing land there is
    no further suggestion by the accused denying the said
    fact. The accused also taken defence that the
    16 Crl.Appeal No.25224/2024

    complainant on obtaining documents from several
    persons was used to assist in getting loan from the bank
    in this regard the accused has not chosen to cross-
    examine any of the said person and has obtained loan
    from the bank through the assistance of complainant.

    26. Accused taken defence that the complainant
    herself has filled the cheque recitals and misused the
    cheque. However once again it is vital to note that the
    accused except taking said contention not placed any
    material to establish that the complainant has misused
    the cheque.

    27. The court is well aware of the cardinal principle
    of law, that the burden will be upon the prosecution to
    prove the case beyond reasonable doubt. However, a
    duty is also casted upon the Accused to successfully
    rebut the presumption which is raised by the
    complainant. Admittedly, the complainant has
    discharged the initial burden as already discussed supra
    and as such the onus will be shifted upon the accused to
    rebut the same.

    28. As discussed supra, the accused herself admits
    that, Ex.P.1 cheque is pertains to his account and the
    17 Crl.Appeal No.25224/2024

    signature on said cheque is her signature. Hence, there
    is presumption in favour of complainant. The accused
    utterly failed to prove the defence of receiving cheque for
    getting loan from the bank. In respect of quantum of loan
    amount to be borrowed, from which bank the proposed
    loan was to be borrowed were not at all placed on record
    by the accused. With respect to the presumption and
    also the defense of misuse of cheque taken up by the
    Appellant the court has relied upon the judgment of the
    Hon’ble Apex Court reported in (2018)8 SCC 165
    (Kishan Rao V/s Shankaregowda) wherein it has been
    held thus:

    Section 139 of the Act, 1881 provides for
    drawing the presumption in favour of holder.
    Section 139 is to the following effect:

    “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.”

    18. This Court in Kumar Exports vs. Sharma
    Carpets
    , 2009 (2) SCC 513, had considered the
    provisions of Negotiable Instruments Act as
    Referring to 139, this Section well Evidence Court
    laid following in paragraphs 14, 15, 18 and 19:

    Section 139 of the Act provides 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.

    18 Crl.Appeal No.25224/2024

    15. Presumptions are devices by use of which
    the courts are enabled and entitled to pronounce
    on an issue notwithstanding that there is no
    evidence or insufficient evidence. Under the
    Evidence Act
    all presumptions must come under
    one or the other class of the three classes
    mentioned in the Act, namely, (1) “may presume”

    (rebuttable), (2) “shall presume” (rebuttable), and
    (3) “conclusive presumptions” (irrebuttable). The
    term “presumption” is used to designate an
    inference, affirmative or disaffirmative of the
    existence of a fact, conveniently called the
    “presumed fact” drawn by a judicial tribunal, by a
    process of probable reasoning from some matter
    of fact, either judicially noticed or admitted or
    established by legal evidence to the satisfaction
    of the tribunal. Presumption literally means
    “taking as true without examination or proof”.

    18. Applying the definition of the word
    “proved” in Section 3 of the Evidence Act to the
    provisions of Sections 118 and 139 of the Act, it
    becomes evident that in a trial under Section 138
    of the Act a presumption will have to be made
    that every negotiable instrument was made or
    drawn for consideration and that it was executed
    for discharge of debt or liability once the
    execution of negotiable instrument is either
    proved or admitted. As soon as the complainant
    discharges the burden to prove that the
    instrument, say a note, was executed by the
    accused, the rules of presumptions under
    Sections 118 and 139 of the Act help him shift
    the burden on the accused. The presumptions will
    live, exist and survive and shall end only when
    the contrary is proved by the accused, that is, the
    cheque was not issued for consideration and in
    discharge of any debt or liability. A presumption
    is not in itself evidence, but only makes a prima
    facie case for a party for whose benefit it exists.

    19. The use of the phrase “until the contrary
    is proved” in Section 118 of the Act and use of
    the words “unless the contrary is proved” in
    19 Crl.Appeal No.25224/2024

    Section 139 of the Act read with definitions of
    “may presume” and “shall presume” as given in
    Section 4 of the Evidence Act, makes it at once
    clear that presumptions to be raised under both
    the provisions are rebuttable. When a
    presumption is rebuttable, it only points out that
    the party on whom lies the duty of going forward
    with evidence, on the fact presumed and when
    that party has produced evidence fairly and
    reasonably tending to show that the real fact is
    not as presumed, the purpose of the presumption
    is over.”

    19. This Court held that the accused may
    adduce evidence to rebut the presumption, but
    mere denial regarding existence of debt shall not
    serve purpose. Following was held in paragraph
    20:

    “20….The accused may adduce direct
    evidence to prove that the note in question was
    not supported by consideration and that there
    was no debt or liability to be discharged by him.
    However, the court need not insist in every case
    that the accused should disprove the non-
    existence of consideration and debt by leading
    direct evidence because the existence of negative
    evidence is neither possible nor contemplated. At
    the same time, it is clear that bare denial of the
    passing of the consideration and existence of
    debt, apparently would not serve the purpose of
    the accused. Something which is probable has to
    be brought on record for getting the burden of
    proof shifted to the complainant. To disprove the
    presumptions, the accused should bring on record
    such facts and circumstances, upon consideration
    of which, the court may either believe that the
    consideration and debt did not exist or their non-
    existence was so probable that a prudent man
    would under the circumstances of the case, act
    upon the plea that they did not exist…”

    20. In the present case, the trial court as well
    as the Appellate Court having found that cheque
    contained the signatures of the accused and it
    20 Crl.Appeal No.25224/2024

    was given to the appellant to present in the Bank
    of the presumption under Section 139 was rightly
    raised which was not rebutted by the accused.
    The accused had not led any evidence to rebut
    the aforesaid presumption. The accused even did
    the not come in the presumption. The accused
    even did not come in the witness box to support
    his case. In the reply to the notice which was
    given by the appellant the accused took the
    defence that the cheque was stolen by the
    appellant. The said defence was rejected by the
    trial court after considering the evidence on
    regard with regard to which no contrary view has
    also been expressed by the High Court.

    21. Another judgment which needs to be
    looked into is Rangappa vs. Sri Mohan, 2010 (11)
    SCC 441. A three Judge Bench of this Court had
    occasion to examine the presumption under
    Section 139 of the Act, 1881. This Court in the
    aforesaid case has held that in the event the
    accused is able to raise a probable defence which
    creates doubt with regard to the existence of a
    debt or liability, the presumption may fail.
    Following was laid down in paragraphs 26 and 27:

    “26. In light of these extracts, we are in
    agreement with the respondent claimant that the
    presumption mandated by Section 139 of the Act
    does indeed include the existence of a legally
    enforceable debt or liability. To that extent, the
    impugned observations in Krishna Janardhan
    Bhat, (2008) 4 SCC 54, may not be correct.
    However, this does not in any way cast doubt on
    the correctness of the decision in that case since
    it was based on the specific facts and
    circumstances therein. As noted in the citations,
    this is of course in the nature of a rebuttable
    presumption and it is open to the accused to raise
    a defence wherein the existence of a legally
    enforceable debt or liability can be contested.
    However, there can be no doubt that there is an
    initial presumption which favours the
    complainant.

    21 Crl.Appeal No.25224/2024

    27. Section 139 of the Act is an example of a
    reverse onus clause that has been included in
    furtherance of the legislative objective of
    improving the credibility of negotiable
    instruments. While Section 138 of the Act
    specifies a strong criminal remedy in relation to
    the dishonour of cheques, the rebuttable
    presumption under Section 139 is a device to
    prevent undue delay in the course of litigation.
    However, it must be remembered that the offence
    made punishable by Section 138 can be better
    described as a regulatory offence since the
    bouncing of a cheque is largely in the17 nature of
    a civil wrong whose impact is usually confined to
    the private parties involved in commercial
    transactions. In such a scenario, the test of
    proportionality should guide the construction and
    interpretation of reverse onus clauses and the
    defendant-accused cannot be expected to
    discharge an unduly high standard or proof.”

    22. No evidence was led by the accused. The
    defence taken in the reply to the notice that
    cheque was stolen having been rejected by the
    two courts below, we do not see any basis for the
    High court coming to the conclusion that the
    accused has been successful in creating doubt in
    the mind of the Court with regard to the
    existence of the debt or liability. How the
    presumption under Section 139 can be rebutted
    on the evidence of PW.1, himself has not been
    explained by the High court.

    29. The sum and substance is that there is a
    presumption in favour of holder of cheque in due course.
    The accused failed to prove contrary. Lastly the Court
    has also appreciated the statement of Accused recorded
    under Sec.313 of Cr.P.C. regarding the evidence under
    22 Crl.Appeal No.25224/2024

    Sec.313 of Cr.P.C., is not a bald formality. In fact, it is an
    opportunity rendered to the Accused to explain the
    incriminating materials against him. However, the
    Accused has only denied but she failed to rebut the
    presumption available in favor of complainant. Whether
    this Accused has taken any legal action as against the
    complainant in respect of misusing of her cheque is not
    forthcoming. Under the circumstances, the burden of
    proof is successfully established by the complainant and
    as such, with respect to the existence of legally
    enforceable debt and its presumption, the Court has
    relied upon the judgment of Hon’ble Apex Court reported
    in (2019) 10 SCC 287 (Uttam Ram V. Devinder Singh
    Hudan and another
    ) wherein it has been held as;

    18. We find that the approach of the learned Trial
    Court and that of the High Court is perverse;
    irrational as well as suffers from material illegality
    and irregularity, which cannot be sustained in
    complaint filed under Section 138 of the Act.

    19. A negotiable instrument including a cheque
    carries presumption of consideration in terms of
    Section 118(a) and under Section 139 of the Act.
    Sections 118(a) and 139 read as under:

    “118. Presumptions as to negotiable instruments.-
    Until the contrary is proved, the following
    presumptions shall be made:–

    (a) of consideration–that every negotiable
    instrument was made or drawn for consideration,
    23 Crl.Appeal No.25224/2024

    and that every such instrument, when it has been
    accepted, indorsed, negotiated or transferred, was
    accepted, indorsed, negotiated or transferred for
    consideration;….

    xxx xxx xxx

    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.”

    20. The Trial Court and the High Court proceeded
    as if, the appellant is to prove a debt before civil
    court wherein, the plaintiff is required to prove
    his claim on the basis of evidence to be laid in
    support of his claim for the recovery of the
    amount due. A dishonour of cheque carries a
    statutory presumption of consideration. The
    holder of cheque in due course is required to
    prove that the cheque was issued by the accused
    and that when the same presented, it was not
    honoured. Since there is a statutory presumption
    of consideration, the burden is on the accused to
    rebut the presumption that the cheque was issued
    not for any debt or other liability.

    21. There is the mandate of presumption of
    consideration in terms of the provisions of the
    Act. The onus shifts to the accused on proof of
    issuance of cheque to rebut the presumption that
    the cheque was issued not for discharge of any
    debt or liability in terms of Section 138 of the Act
    which reads as under:

    “138. Dishonour of cheque for insufficiency, etc.,
    of funds in the account. — 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
    24 Crl.Appeal No.25224/2024

    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….”

    22. In Kumar Exports, it was held that mere
    denial of existence of debt will not serve any
    purpose but accused may adduce evidence to
    rebut the presumption. This Court held as under:

    “20. The accused in a trial under Section 138 of
    the Act has two options. He can either show that
    consideration and debt did not exist or that under
    the particular circumstances of the case the non-
    existence of consideration and debt is so probable
    that a prudent man ought to suppose that no
    consideration and debt existed. To rebut the
    statutory presumptions an accused is not
    expected to prove his defence beyond reasonable
    doubt as is expected of the complainant in a
    criminal trial. The accused may adduce direct
    evidence to prove that the note in question was
    not supported by consideration and that there
    was no debt or liability to be discharged by him.
    However, the court need not insist in every case
    that the accused should disprove the non-
    existence of consideration and debt by leading
    direct evidence because the existence of negative
    evidence is neither possible nor contemplated. At
    the same time, it is clear that bare denial of the
    passing of the consideration and existence of
    debt, apparently would not serve the purpose of
    the accused. Something which is probable has to
    be brought on record for getting the burden of
    proof shifted to the complainant. To disprove the
    presumptions, the accused should bring on record
    such facts and circumstances, upon consideration
    25 Crl.Appeal No.25224/2024

    of which, the court may either believe that the
    consideration and debt did not exist or their non-
    existence was so probable that a prudent man
    would under the circumstances of the case, act
    upon the plea that they did not exist. Apart from
    adducing direct evidence to prove that the note in
    question was not supported by consideration or
    that he had not incurred any debt or liability, the
    accused may also rely upon circumstantial
    evidence and if the circumstances so relied upon
    are compelling, the burden may likewise shift
    again on to the complainant. The accused may
    also rely upon presumptions of fact, for instance,
    those mentioned in Section 114 of the Evidence
    Act to rebut the presumptions arising under
    Sections 118 and 139 of the Act.” (emphasis
    supplied)

    23. In a judgment reported as Kishan Rao v.
    Shankargouda6
    , this Court referring to Kumar
    Exports and Rangappa returned the following
    findings:

    “22. Another judgment which needs to be looked
    into is Rangappa v. Sri Mohan [Rangappa v. Sri
    Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ)
    477 : (2011) 1 SCC (Cri) 184] . A three-Judge
    Bench of this Court had occasion to examine the
    presumption under Section 139 of the 1881 Act.
    This Court in the aforesaid case has held that in
    the event the accused is able to raise a probable
    defence which creates doubt with regard to the
    existence of a debt or liability, the presumption
    may fail. Following was laid down in paras 26 and
    27: (SCC pp. 453-54) “26. In light of these
    extracts, we are in agreement with the respondent
    claimant that the presumption mandated by
    Section 139 of the Act does indeed include the
    existence of a legally enforceable debt or liability.

    To that extent, the impugned observations in
    Krishna Janardhan Bhat [Krishna Janardhan Bhat
    v. Dattatraya G. Hegde
    , (2008) 4 SCC 54 : (2008) 2
    26 Crl.Appeal No.25224/2024

    SCC (Cri) 166], may not be correct. However, this
    does not in any way cast doubt on the correctness
    of the decision in that case since it was based on
    the specific facts and circumstances therein. As
    noted in the citations, this is of course in the
    nature of a rebuttable presumption and it is open
    to the accused to raise a defence wherein the
    existence of a legally enforceable debt or liability
    can be contested. However, there can be no doubt
    that there is an initial presumption which favours
    the complainant.

    27. Section 139 of the Act is an example of a
    reverse onus clause that has been included in
    furtherance of the legislative objective of
    improving the credibility of negotiable
    instruments. While Section 138 of the Act
    specifies a strong criminal remedy in relation to
    the dishonour of cheques, the rebuttable
    presumption under Section 139 is a device to
    prevent undue delay in the course of litigation.
    However, it must be remembered that the offence
    made punishable by Section 138 can be better
    described as a regulatory offence since the
    bouncing of a cheque is largely in the nature of a
    civil wrong whose impact is usually confined to
    the private parties involved in commercial
    transactions. In such a scenario, the test of
    proportionality should guide the construction and
    interpretation of reverse onus clauses and the
    defendant-accused cannot be expected to
    discharge an unduly high standard of proof.”

    24. In a judgment reported as Bir Singh v. Mukesh
    Kumar7
    , this Court held that presumption under
    Section 139 of the Act is a presumption of law.
    The Court held as under:

    “20. Section 139 introduces an exception to the
    general rule as to the burden of proof and shifts
    the onus on the accused. The presumption under
    Section 139 of the Negotiable Instruments Act is a
    27 Crl.Appeal No.25224/2024

    presumption of law, as distinguished from
    presumption of facts. Presumptions are rules of
    evidence and do not conflict with the
    presumption of innocence, which requires the
    prosecution to prove the case against the accused
    beyond reasonable doubt. The obligation on the
    prosecution may be discharged with the help of
    presumptions of law and presumptions of fact
    unless the accused adduces evidence showing the
    reasonable possibility of the non-existence of the
    presumed fact as held in Hiten P. Dalal [Hiten P.
    Dalal v. Bratindranath Banerjee
    , (2001) 6 SCC 16 :

    2001 SCC (Cri) 960] .

    xxx xxx xxx

    33. A meaningful reading of the provisions of the
    Negotiable Instruments Act including, in
    particular, Sections 20, 87 and 139, makes it
    amply clear that a person who signs a cheque and
    makes it over to the payee remains liable unless
    he adduces evidence to rebut the presumption
    that the cheque had been issued for payment of a
    debt or in discharge of a liability. 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 is
    otherwise valid, the penal provisions of Section
    138
    would be attracted.

    xxx xxx xxx

    36. 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. In other judgment reported as Rohitbhai
    Jivanlal Patel v. State of Gujarat and Another8

    this Court held as under:

    28 Crl.Appeal No.25224/2024

    “18. So far the question of existence of basic
    ingredients for drawing of presumption under
    Sections 118 and 139 the NI Act is concerned,
    apparent it is that the accused- appellant could
    not deny his signature on the cheques in question
    that had been drawn in favour of the complainant
    on a bank account maintained by the accused for
    a sum of Rs. 3 lakhs each. The said cheques were
    presented to the Bank concerned within the
    period of their validity and were returned unpaid
    for the reason of either the balance being
    insufficient or the account being closed. All the
    basic ingredients of Section 138 as also of
    Sections 118 and 139 are apparent on the face of
    the record. The Trial Court had also consciously
    taken note of these facts and had drawn the
    requisite presumption. Therefore, it is required to
    be presumed that the cheques in question were
    drawn for consideration and the holder of the
    cheques i.e., the complainant received the same
    in discharge of an existing debt. The onus,
    therefore, shifts on the accused-appellant to
    establish a probable defence so as to rebut such a
    presumption.”

    xxx xxx xxx

    20. On the aspects relating to preponderance of
    probabilities, the accused has to bring on record
    such facts and such circumstances which may
    lead the Court to conclude either that the
    consideration did not exist or that its
    nonexistence was so probable that a prudent man
    would, under the circumstances of the case, act
    upon the plea that the consideration did not
    exist. This Court has, time and again, emphasized
    that though there may not be sufficient negative
    evidence which could be brought on record by the
    accused to discharge his burden, yet mere denial
    would not fulfil the requirements of rebuttal as 8
    29 Crl.Appeal No.25224/2024

    AIR 2019 SC 1876 envisaged under Section 118
    and 139 of the NI Act…..

    xxx xxx xxx

    32. The result of discussion in the foregoing
    paragraphs is that the major considerations on
    which the Trial Court chose to proceed clearly
    show its fundamental error of approach where,
    even after drawing the presumption, it had
    proceeded as if the complainant was to prove his
    case beyond reasonable doubt. Such being the
    fundamental flaw on the part of the Trial Court,
    the High Court cannot be said to have acted
    illegally or having exceeded its jurisdiction in
    reversing the judgment of acquittal. As noticed
    hereinabove, in the present matter, the High
    Court has conscientiously and carefully taken
    into consideration the views of the Trial Court
    and after examining the evidence on record as a
    whole, found that the findings of the Trial Court
    are vitiated by perversity. Hence, interference by
    the High Court was inevitable; rather had to be
    made for just and proper decision of the matter.”

    30. To sum up it is noticed that the Accused has
    admitted the impugned cheque at Ex.P1 and also its
    issuance is categorically admitted by her, whereas it is
    contended that deceased complainant was collecting
    cheques on the assurance of getting loans from bank.
    However, no evidence is placed on record by accused in
    this regard.There is absolutely no explanation that why
    she had kept quiet if she had really given the cheque to
    deceased complainant only for the purpose of getting
    30 Crl.Appeal No.25224/2024

    loan from the bank without lodging any complaint before
    jurisdictional police about misuse of cheque by the
    complainant. In the entire defence of the accused there
    is no explanation in this regard. The same shows that
    the accused has not taken defence which is certain and
    which is probable and as such the Accused has failed to
    rebut the presumption. By looking into the same, the
    impugned judgment and order of conviction passed by
    the Trial Court is apt and correct and the same does not
    call for interference of this court. The trial court has
    rightly appreciated the oral and documentary evidence in
    proper perspective. Accordingly, I answered Point
    Nos.1 & 2 in the Negative.

    31. Point No.3: In view of the findings on the
    above points the appeal filed by the Appellant deserves to
    be dismissed. Accordingly, I proceed to pass the
    following:-

    ORDER

    The appeal filed by the Appellant
    u/sec.374 (3) (a) of Cr.P.C. is hereby
    dismissed with costs.

    The Judgment of conviction passed by
    the Learned XXXIV ACMM Bengaluru, in
    31 Crl.Appeal No.25224/2024

    CC.No.55040/2019, dtd. 13.05.2024, is
    hereby confirmed.

    Send back the records with a copy of
    this Judgment to the Trial Court.

    (Dictated to the Stenographer, typed by her, corrected, signed and
    then pronounced by me, in the open court on this the 5th day of
    May 2026.)
    Digitally signed by
    ANITHA
    ANITHA NANJANAGUDU
    NANJANAGUDU PARASHIVAMURTHY
    PARASHIVAMURTHY
    Date: 2026.05.16
    10:56:46 +0530

    [Smt. Anitha N.P]
    LXXIII Addl.City Civil & Sessions
    Judge, Bengaluru. (CCH-74).



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