Bangalore District Court
Parveez Pasha vs Reshma Banu on 4 July, 2026
KABC010138322023
IN THE COURT OF THE LXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 64)
:Present:
Sri.I.P.Naik
LXIII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 4th day of July, 2026.
Crl. Appeal No.693/2024
APPELLANT Sri.Parveez Pasha
S/o.Late. Abdul Jabbar,
Aged about 46 years,
R/at.No.24/1, 20th Cross,
Kanakanagara, R.T.Nagara,
Bengaluru.
(By Sri.J.G, Advocate)
Vs.
RESPONDENT : Smt. Reshma Banu,
W/o.Sri.Syed Nasir,
Aged about 50 years,
R/at.No.05,
Venkatappa Layout,
Chamundi Nagara Main Road,
2 Crl.A.No.693/2023
R.T.Nagar Post,
Bengaluru-560 032.
(By Sri.BJK, Advocate)
:JUDGMENT:
The appellant preferred this appeal against the
judgment and order passed by the learned XV ACJM
Bengaluru, in C.C.No.10324/2018 dated 28.04.2023.
Hereinafter, parties to this appeal are referred as per
their rank before the Trial Court. The appellant is
accused and the respondent is complainant before Trial
Court.
2. Brief facts of the case:-
The complainant and accused are known to each
other since 10-15 years. Both are friends. The accused
approached the complainant for financial assistance of
Rs.25,00,000/-. Accordingly the complainant has lend
Rs.25,00,000/-on various dates to the accused from
10.04.2017 to 25.06.2017. Accused agreed to repay the
3 Crl.A.No.693/2023said amount within 3 months. After three months when
the complainant demanded for repayment of the said
loan amount, repayment of loan accused has issued
cheque bg.No.012795 on 01.3.2018.
3. The complainant presented the said cheque for
encashment. The same was dishonoured as funds
insufficient. The said fact was brought to the notice of the
petitioner by issuing legal notice. Inspite of service of
notice, accused failed to pay the amount covered under
cheque. After complying the statutory requirements, the
complainant initiated criminal proceedings against the
accused alleging that he has committed alleged offence
punishable U/s.138 of N.I Act.
4. On considering the allegations made in complaint,
the Trial Court took cognizance and recorded sworn
4 Crl.A.No.693/2023
statement of the complainant. On considering the
allegations made in the complaint, sworn statement, Trial
Court opined that there is a prima facie case against the
accused to proceed against him. Accordingly Criminal
Case has been registered against the accused in Register-
III and issued process against him.
5. In pursuance to the notice, accused appeared
through his counsel and got enlarged on bail. Thereafter
plea has been recorded and read over to him. He pleaded
not guilty claims to be tried.
6. In order to prove the guilt of the accused, initially
one witness examined as PW.1. In support of oral
evidence 15 documents got marked at Ex.P.1 to Ex.P.15.
Thereafter, statement of accused recorded U/Sec 313 of
5 Crl.A.No.693/2023
Cr.P.C, he has denied incriminating evidence. An
accused himself has examined as DW.1 and 13
documents are got marked at Ex.D.1 to 13.
7. After hearing both side and considering the
materials on record, the learned Trial Court has
convicted the accused for the offence punishable under
Sec.138 of N.I.Act.
8. Accused being dissatisfied and disagreed with the
impugned judgment and order passed by the trial court
preferred the present Appeal on the ground that,
intentionally and purposefully the complainant issued
legal notice to the wrong address of the accused. The
postal acknowledgment is returned with endorsement as
‘door locked’. But the address cited on the postal cover
6 Crl.A.No.693/2023
Ex.P.5 is not belongs to the accused. The complainant is
not having financial capacity to lend Rs.25,00,000/- to
the accused. Further, she is able to furnish the
document in respect of Rs.3,40,000/-. She has not
produced any single document to show that she is
having an mount of Rs.21,60,000/-in her possession.
Further she stated that she has collected the amount of
Rs.12,00,000/- from her house maid Rinku Kumari. She
is paying monthly wages of Rs.8000/- per month to her.
Further, she has not examined the said Rinku Kumari in
this case to prove the payment of Rs.12,00,000/-.
Further, the complainant failed to prove the income
returns and also audit report. According to the
complainant’s case she lend amount of Rs.25,00,000/-
on different dates from 10.04.2017 to 25.06.2017. The
Central Government has demonization currency notes
worth of Rs.500/- and Rs.1000/- on 10.11.2026. This
7 Crl.A.No.693/2023
aspect is not considered by the court. The evidence of
PW1 is inadmissible one. The appellant/accused has
failed to prove her source of income to lend such a huge
amount. The complainant failed to prove her financial
capacity and existence of legally recoverable debt. This
aspect is not at all considered by the Trial Court in
judicious manner. Hence, prays to allow the appeal and
to setaside the impugned Judgment and order of the Trial
Court.
9. Heard both sides and perused the written
arguments submitted by the complainant.
10. The TCR were summoned and they are before this
court.
8 Crl.A.No.693/2023
11. The learned counsel for the appellant submitted
that in this case, the complainant misused the blank
signed cheques and lodged false complaint. He has not
proved her financial capacity to lend the amount of
Rs.25,00,000/- to the accused. During cross-her
examination he stated that she had obtained
Rs.12,00,000/- from Rinku Kumari, inspite of that she
not examined said Rinku Kumari to prove that she has
given Rs.12,00,000/- to the complainant in order to pay
to accused. Further, the PW1 produced income tax
returns and also she has produced audit report to prove
that she has lead the amount. She intentionally deposed
that except Rs.3,40,000/- remaining amount is her
individual savings amount. For that reason, she has not
disclosed the same in the Income Tax returns. It is false
and concocted story.
9 Crl.A.No.693/2023
12. In this case, the complainant is not financially
capable to pay the amount of Rs.25,00,000/- to the
accused. The complainant has misused the said signed
blank cheque and filed false complaint. She has no
financial capacity to lend mount of Rs.25,00,000/-. The
documents produced by the accused discloses that she is
unable to lend huge amount of Rs.25,00,000/- as loan.
An amount of Rs.3,40,000/- is only transferred to the
account of the accused. She is created a story to show
the payment of Rs.21,60,000/-.
13. Further, she is unable to examined the Rinku
Kumari. According to oral evidence the said Rinku
Kumari is her house maid and she has been paid
Rs.8,000/-per month as wages and she has given her
Rs.12,00,000/-. But the said Rinku Kumari is not
10 Crl.A.No.693/2023
examined before the court. Further she has taken
contention that remaining amount is with her out of
lease amount. In order to prove this aspect, documents
are got marked at Ex.P.10 and P.11. According to the
recitals the said documents are executed after May 2017.
The version is that she has given Rs.25,00,000/- to the
accused on various dates from 10.04.2017 to
25.10.2017. There is no evidence regarding on which
day how much amount is paid to the accused by the
complainant. The story put forth by the complainant
regarding payment of the amount to the accused is
imaginary one. The accused seriously disputed the
payment on the financial capacity, she has to prove her
capacity. The complainant did not discharged her burden
casted upon her.
11 Crl.A.No.693/2023
14. A registered post returned due to door locked/
Ex.P.5. He never resided in said address. The accused
has produced his passport, wherein his address
mentioned, which is totally different, comparing with the
address mentioned by the complainant on Ex.P.5.
Therefore, the complainant not complied section 138(b) of
N.I Act. All these aspects are not at all judiciously
considered by the Trial Court. Hence, prays to allow the
appeal and to setaside the impugned Judgment and
order of the Trial Court.
15. As against this, the learned counsel for the
complainant taken contention in his written arguments
that the accused denied the signature found on the
cheque and not denied that it belongs to his bank
account. Therefore, heavy burden lies on the accused to
12 Crl.A.No.693/2023
prove that the he has not issued cheque for discharge of
liability i.e., Rs.25,00,000/-. He has not rebutted the
presumption available infavour of the complainant.
Accused admitted when the cheque is presented for
encashment he has received message through his
phone, he has not made any inquiry about the receipt of
the message from the bank. Further, he admitted that
address mentioned in the legal notice belongs to the
accused. He has signatory to the loan agreement Ex.P.6.
he has denied regarding the recitals of the said cover.
Further he admitted that the complainant is doing money
laundering business without having lines and he is also
running beauty parlour. The accused has taken
contention that he has supplied hallow bricks. In support
of this contention, he has not produced any documents.
13 Crl.A.No.693/2023
16. The accused is signatory to loan agreement and
issued cheque, it is sufficient to prove the guilt of
accused for offence P/U/Sec 138 of N.I.Act. The Trial
Court rightly examined the materials and come to
conclusion of convicting the accused. There is no
grounds for interference or intervention of the impugned
Judgment and order passed by the Trial Court. Hence,
prays to dismiss the appeal.
17. The learned counsel for the accused relied on the
following decisions in support of his contentions:-
1) Oriental Bank of Commerce Vs. Prabodh Kumar Tiwari
in Crl.Appeal No.1260/202 (Supreme Court) the said
judgment reported in 2022 LIVELAW(SC) 714.
2) ILR 2019 KAR (Sri.Yogesh Poojari Vs Sri.K.shankara
Bhat)
3) (2015) 17 Supreme Court Cases 368 (H.Pukharaj Vs.
Parasamal)
14 Crl.A.No.693/2023
4) Triyambak S Hedge Vs. Sripad in Criinal Appeal
NO.849-850/2011 (reported judgment of the Supreme Court.
5) S.Narayana Menon Vs. State of Kerala, reported in
(2006) 6 SCC 39.
6) Kamal A S Vs. Vidhyadaran M C and another, reported
in (2007) 5 SCC 264 Supreme Court.
7) Basavalingppa Vs. Mudibasappa reported in (2017)5 SC
C 418.
8) Uttam Ram Vs. Devinder Singh Hudan and others
reported in (2019) 10 SCC 287.
9) Crl.Rev.Petition NO.996/2016, dated 9-7-2025(M/s.
Banavathy and Company Vs. Maheer Electro Mech(P) Ltd.
High Court of Karnataka.
10) P.Rasiya Vs. Abdul Nasir reported judgment of Hon’ble
Supreme Court in Crl.Appeal No.1233-1235/2022.
18. In view of the grounds urged in the appeal memo
and on hearing of both parties, the following points arise
for my consideration:
1. Whether the Trial Court has committed
error in considering the financial
capacity of the complainant.?
15 Crl.A.No.693/2023
2. Whether the Trial court has failed to
consider the service of notice as per
Ex.P.3 and Ex.P.5.?
3. What Order.?
19. On considering the oral and documentary evidence
and hearing of the parties, my answer to the above points
are as hereunder:
Point No.1 : In the Affirmative.
Point No.2 : In the Affirmative.
Point No.3 : As per the final order,
--------------for the following:
REASONS
20. In order to proved the guilt of the accused the
complainant herself stepped into the witness box and
filed affidavit in lieu of examination in chief, wherein she
16 Crl.A.No.693/2023
has reiterated the allegations made against the accused
in the complaint.
21. During cross-examination she deposed that she has
filed other cases against one Najeebunissa and Mohd.
Abdul. She is doing real estate business and money
laundering business, with proper license from competent
authority. She has submitted income tax returns since
10-15 years. Further stated that since 10 years she is
doing money lending business in the name and style
JBM Finance. She has maintained books of account of
JBM Finance since 10 years. She is providing loan short
term and loan. The accused is known to her through his
sister. Further she stated that she has not produced any
Iota of evidence regarding payment of Rs.25,00,000/-.
Later on she has produced the document in respect of
17 Crl.A.No.693/2023
payment of loan amount to the accused. Further she
stated that Rs.20,00,000/ and amount was in her house.
Further, stated that she has paid Rs.12,00,000/-
through her house maid Rinku Kumari, who is being
paid Rs.8,000/- wages per month.
22. Further stated that he is no impediment to examine
the said Rinku Kumari. Further she has produced
Ex.P.10 and Ex.P.11 for prove that she is having
Rs.6,00,000/- out of lease amount further stated that
she has done audit in respect of Rs.34,00,000/- to the
accused. Further, she has stated that she has not
produced documents for Rs.22,60,000/- lend to the
accused.
18 Crl.A.No.693/2023
23. PW1 further cross-examined on 28.02.2022 she has
stated that she has repaid the amount in cash through
Rs.500/- and Rs.1000/- currency notes. Further
deposed that she does not remember how much amount
she paid to the accused.
24. In order to dis-proved the contention of the
complainant and to rebut the presumption, the accused
himself examined as DW1.
25. During his examination in chief he has stated that
he ha received amount of Rs.3,40,000/- from the
complainant. He has repaid the said amount by
supplying hallow bricks and settled the interest in cash.
At the time of availing loan from the complainant she has
obtained blank signed cheque and stamp paper. The
19 Crl.A.No.693/2023
complainant and her followers picked up commotion with
him alleging that he has not paid the amount. In this
regard, criminal case has been registered against the
accused as per Ex.D.1. Police have filed charge sheet.
26. Further stated that the address mentioned in Ex.P.3
and P.5 does not belongs to him. The said accused has
dis-proved the address in the postal acknowledgment.
27. During cross-examination he stated that he is
involved in construction work in and around Bengaluru.
The complainant is known to him since 7 to 8 years. He
denied regarding receipt of Rs.25,00,00/- from the
accused and issued cheque for repayment of the said
amount. But he admitted that the signature found on the
cheque belongs to him. He admitted that he has received
20 Crl.A.No.693/2023
amount through cheque. The complainant suggested
that the she has paid Rs.25,00,000/-. She specifically
stated that complainant has paid Rs.25,00,000/-, after
that he admitted that his address cited in Ex.P.12. He
has no documents regarding supply of hallow bricks to
the complainant. Further production of bank statement
got marked at Ex.P.1.
28. The complainant tendered for cross-examination
he admitted that Ex.P.1 cheque belongs to the account of
the accused and also admitted entries made in
Ex.P.14(a).
29. The learned counsel for the complainant suggested
regarding receipt of Rs.25,00,000/- from the complainant
from April 2017 to June 2017. This suggestions is
21 Crl.A.No.693/2023
denied and stated that he has received only
Rs.3,40,000/-. Further not disputed that complainant is
running money laundering business with license and
also running real estate and stated that she is misused
the signed blank cheque and filed false complaint against
him.
30. In this case, the following facts are undisputed one.
30.1. The complainant is running money laundering business
in the name and style of JBM with License.
30.2. The complainant is also running beauty parlour.
30.3. A questioned Cheque Ex.P.1 and signature on the said
cheque belongs to the accused.
30.4. the accused received Rs.3,40,000/- from the
complainant.
30.5. Rinku Kumar was house made under the
complainant and she is paying Rs.8,000/- per month to
Rinku Kumar.
22 Crl.A.No.693/2023
Point No.1:-
31. In this case, the learned counsel for the
complainant relied on the number of Judgment whatever
the accused admitted the signature and not denied the
cheque in question not belongs to his account. Hence,
heavy burden lies on the accused to dis-prove the
presumption arise in favour of the complainant and he
has to explain how the cheque is produced by the
complainant before the court, it is in accordance with law
with law laid down by Hon’ble Apex Court in Ramsingh
Vs. Devendra Singh Hudan [(2019) 10 SCC 287) Further,
this Court has relied on Judgment of Hon’ble Apex Court
regarding burden of proof whin accused seriously
disputed financial capacity of complainant is as under;
AIR 2023 SC 5018
Rajesh Jain Vs Ajay Singh
BURDEN OF PROOF AND PRESUMPTIONS: CONCEPTUAL
UNDERPINNINGS
23 Crl.A.No.693/2023
29. There are two senses in which the phrase ‘burden of proof’
is used in the Indian Evidence Act, 1872 (Evidence Act,
hereinafter). One is the burden of proof arising as a matter of
pleading and the other is the one which deals with the
question as to who has first to prove a particular fact. The
former is called the ‘legal burden’ and it never shifts, the latter
is called the ‘evidential burden’ and it shifts from one side to
the other. [See Kundanlal v. Custodian Evacuee Property (AIR
1961 SC 1316)]
30. The legal burden is the burden of proof which remains
constant throughout a trial. It is the burden of establishing
the facts and contentions which will support a party’s case. If,
at the conclusion of the trial a party has failed to establish
these to the appropriate standards, he would lose to stand.
The incidence of the burden is usually clear from the
pleadings and usually, it is incumbent on the plaintiff or
complainant to prove what he pleaded or contends. On the
other hand, the evidential burden may shift from one party to
another as the trial progresses according to the balance of
evidence given at any particular stage; the burden rests upon
the party who would fail if no evidence at all, or no further
evidence, as the case may be is adduced by either side (See
Halsbury’s Laws of England, 4th Edition para 13). While the
former, the legal burden arising on the pleadings is mentioned
in Section 101 of the Evidence Act, the latter, the evidential
burden, is referred to in Section 102 thereof. [G.Vasu V. Syed
24 Crl.A.No.693/2023
Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin
Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means “taking as
true without examination or proof”. In Kumar Exports v.
Sharma Exports [(2009) 2 SCC 51320] this Court referred to
presumption as “devices by use of which courts are enabled
and entitled to pronounce on an issue notwithstanding that
there is no evidence or insufficient evidence.”
32. Broadly speaking, presumptions are of two kinds,
presumptions of fact and of law. Presumptions of fact are
inferences logically drawn from one fact as to the existence of
other facts. Presumptions of fact are rebuttable by evidence to
the contrary. Presumptions of law may be either irrebuttable
(conclusive presumptions), so that no evidence to the contrary
may be given or rebuttable. A rebuttable presumption of law is
a legal rule to be applied by the Court in the absence of
conflicting evidence (Halsbury, 4th Edition paras 111, 112].
Among the class of rebuttable presumptions, a further
distinction can be made between discretionary presumptions
(‘may presume’) and compulsive or compulsory presumptions
(‘shall presume’). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit
within one of three forms: ‘may presume’ (rebuttable
presumptions of fact), ‘shall presume’ (rebuttable presumption
of law) and conclusive presumptions (irrebuttable
25 Crl.A.No.693/2023
presumption of law). The distinction between ‘may presume’
and ‘shall presume’ clauses is that, as regards the former, the
Court has an option to raise the presumption or not, but in
the latter case, the Court must necessarily raise the
presumption. If in a case the Court has an option to raise the
presumption and raises the presumption, the distinction
between the two categories of presumptions ceases and the
fact is presumed, unless and until it is disproved, [G.Vasu V.
Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption
and Shifting of Onus of Proof
34. The NI Act provides for two presumptions: Section 118
and Section 139. Section 118 of the Act inter alia directs that
it shall be presumed, until the contrary is proved, that every
negotiable instrument was made or drawn for consideration.
Section 139 of the Act stipulates that ‘unless the contrary is
proved, it shall be presumed, that the holder of the cheque
received the cheque, for the discharge of, whole or part of any
debt or liability’. It will be seen that the ‘presumed fact’
directly relates to one of the crucial ingredients necessary to
sustain a conviction under Section 138.
35. Section 139 of the NI Act, which takes the form of a ‘shall
presume’ clause is illustrative of a presumption of law.
Because Section 139 requires that the Court ‘shall presume’
the fact stated therein, it is obligatory on the Court to raise
this presumption in every case where the factual basis for the
26 Crl.A.No.693/2023
raising of the presumption had been established. But this
does not preclude the person against whom the presumption
is drawn from rebutting it and proving the contrary as is clear
from the use of the phrase ‘unless the contrary is proved’.
36. The Court will necessarily presume that the cheque had
been issued towards discharge of a legally enforceable
debt/liability in two circumstances. Firstly, when the drawer
of the cheque admits issuance/execution of the cheque and
secondly, in the event where the complainant proves that
cheque was issued/executed in his favour by the drawer. The
circumstances set out above form the fact(s) which bring
about the activation of the presumptive clause. [Bharat Barrel
Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that
presumption takes effect even in a situation where the
accused contends that ‘a blank cheque leaf was voluntarily
signed and handed over by him to the complainant. [Bir Singh
v. Mukesh Kumar {(2019) 4 SCC 19723}]. Therefore, mere
admission of the drawer’s signature, without admitting the
execution of the entire contents in the cheque, is now
sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to
prove that the instrument, say a cheque, was issued by the
accused for discharge of debt, the presumptive device under
Section 139 of the Act helps shifting the burden on the
27 Crl.A.No.693/2023
accused. The effect of the presumption, in that sense, is to
transfer the evidential burden on the accused of proving that
the cheque was not received by the Bank towards the
discharge of any liability. Until this evidential burden is
discharged by the accused, the presumed fact will have to be
taken to be true, without expecting the complainant to do
anything further.
39. John Henry Wigmore (Rules of Evidence- The Hidden
Origin of Modern Law )on Evidence states as follows:
“The peculiar effect of the presumption of law is
merely to invoke a rule of law compelling the
Jury to reach the conclusion in the absence of
evidence to the contrary from the opponent but if
the opponent does offer evidence to the contrary
(sufficient to satisfy the Judge’s requirement of
some evidence), the presumption ‘disappears as a
rule of law and the case is in the Jury’s hands
free from any rule.”
(underline by me, for emphases)
40. The standard of proof to discharge this evidential burden
is not as heavy as that usually seen in situations where the
prosecution is required to prove the guilt of an accused. The
accused is not expected to prove the non-existence of the
presumed fact beyond reasonable doubt. The accused must
meet the standard of ‘preponderance of probabilities’, similar
to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR
2010 SC 1898)]
28 Crl.A.No.693/2023
41. In order to rebut the presumption and prove to the
contrary, it is open to the accused to raise a probable defence
wherein the existence of a legally enforceable debt or liability
can be contested. The words ‘until the contrary is proved’
occurring in Section 139 do not mean that accused must
necessarily prove the negative that the instrument is not
issued in discharge of any debt/liability but the accused has
the option to ask the Court to consider the non-existence of
debt/liability so probable that a prudent man ought, under
the circumstances of the case, to act upon the supposition
that debt/liability did not exist.[Basalingappa Vs.
Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs.
Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The
first option-of proving that the debt/liability does not exist-is
to lead defence evidence and conclusively establish with
certainty that the cheque was not issued in discharge of a
debt/liability. The second option is to prove the non-existence
of debt/liability by a preponderance of probabilities by
referring to the particular circumstances of the case. The
preponderance of probability in favour of the accused’s case
may be even fifty one to forty nine and arising out of the entire
circumstances of the case, which includes: the complainant’s
version in the original complaint, the case in the
legal/demand notice, complainant’s case at the trial, as also
the plea of the accused in the reply notice, his 313 statement
or at the trial as to the circumstances under which the
29 Crl.A.No.693/2023
promissory note/cheque was executed. All of them can raise a
preponderance of probabilities justifying a finding that there
was ‘no debt/liability’. [Kumar Exports and Sharma Carpets,
(2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential
burden need not necessarily be direct evidence i.e., oral or
documentary evidence or admissions made by the opposite
party; it may comprise circumstantial evidence or
presumption of law or fact.
(underline by me, for emphases)
44. The accused may adduce direct evidence to prove that the
instrument was not issued in discharge of a debt/liability and,
if he adduces acceptable evidence, the burden again shifts to
the complainant. At the same time, the accused may also rely
upon circumstantial evidence and, if the circumstances so
relied upon are compelling the burden may likewise shift to
the complainant. It is open for him to also rely upon
presumptions of fact, for instance those mentioned in Section
114 and other sections of the Evidence Act. The burden of
proof may shift by presumptions of law or fact. In Kundanlal’s
case- (supra) when the creditor had failed to produce his
account books, this Court raised a presumption of fact under
Section 114, that the evidence, if produced would have shown
the non-existence of consideration. Though, in that case, this
Court was dealing with the presumptive clause in Section 118
NI Act, since the nature of the presumptive clauses in Section
30 Crl.A.No.693/2023
118 and 139 is the same, the analogy can be extended and
applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused
adduces evidence to the satisfaction of the Court that on a
preponderance of probabilities there exists no debt/liability in
the manner pleaded in the complaint or the demand notice or
the affidavit-evidence, the burden shifts to the complainant
and the presumption ‘disappears’ and does not haunt the
accused any longer. The onus having now shifted to the
complainant, he will be obliged to prove the existence of a
debt/liability as a matter of fact and his failure to prove would
result in dismissal of his complaint case. Thereafter, the
presumption under Section 139 does not again come to the
complainant’s rescue. Once both parties have adduced
evidence, the Court has to consider the same and the burden
of proof loses all its importance. [Basalingappa vs.
Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri
Mohan (2010) 11 SCC 441]
(underline by me, for emphases)
32. I have carefully perused the entire cross-
examination of PW1, she stated that lead amount of
Rs.3,40,000/- through account to account of the
accused. Further she was arranged Rs.6,00,000/- by
receiving lease amount. In support of her contention,
31 Crl.A.No.693/2023
she produced lease agreement got marked at Ex.P.10 and
P.11. Further, contented that she has received amount
of Rs.12,00,000/- from one Rinku Kumari. In order to
prove the liability of the accused and complainant
produced one hand loan agreement got marked at Ex.P.6,
wherein she categorically stated that she has paid the
amount of Rs.3,40,000/- through cheque remaining
amount of Rs.21,60,000/- by cash. One dispute
regarding the complainant is running money laundering
with license. Therefore, she should be aware about of
risk of transferring of more than Rs.20,000/- by cash.
33. In order to prove the payment of Rs.21,60,000/- she
has taken specific contention that received
Rs.12,00,000/- from house maid who has received
Rs.8,00,000/- per month as wages from complainant, it
32 Crl.A.No.693/2023
is not believable to contention. When the accused
seriously disputed regarding financial capacity of the
complainant she has to prove it in view of law laid down
by their lordship in Rajesh Jain Vs. Ajay Singh’s
case(supra). The Onus of burden shifted on the
complainant to prove her financial capacity. Further, she
has admitted in the cross-examination that she is no
hurdles to examine the Rinku Kumar, inspite of that she
has not examined the Rinku Kumari on her behalf to
show she given amount of Rs.12,00,000/- to the
complainant. Therefore, this court has drawn adverse
inference against the complainant regarding she has
made arrangement for payment of Rs.21,60,000/- in
cash to accused, failed to prove her financial capacity.
By considering entire cross-examination of PW.1 it
reveals that the complainant not at all discharge the
onus of proof regarding she had possession of
33 Crl.A.No.693/2023
Rs.21,60,000/- in cash and she paid the said amount to
the accused in installments from 10/4/2017 to
25.06.2017.
34. Further, demonization of currency of notes worth of
Rs.500/- and Rs.1000/- on 08.11.2016. Entire India was
under process of exchange of old currency notes, she
has paid old currency notes. By considering all these
aspects, I am of the opinion that the Trial Court failed to
consider financial capacity of the complainant in respect
of payment of Rs.21,60,000/- to the accused.
Accordingly, Point No.1 is answered in the Affirmative.
Point No.2:-
35. The accused has taken the contention that notice as
contemplated U/s.138(2) of N.I Act. In order to serve on
34 Crl.A.No.693/2023
him, in order to prove his aspect, the Trial Court, mainly
relied on the loan agreement wherein the address of the
accused mentioned as under:
Pavez Pasha,
R/at.No.15/2, 3rd Cross,
Bhuvaneshwarinagar,
R.T.Nagar,
Bengaluru.
The aforesaid address is mentioned in postal cover
Ex.P.5 and also discloses same address of legal notice
Ex.P.3. During cross-examination accused relied on the
postal cover wherein his address is cited as:
Parvez Pasha,
S/o.Abdul Jabbar,
M/o. Meheboodi,
No.24/1, 20th Cross,
Kanakanagar,
35 Crl.A.No.693/2023Bengaluru.
This postal cover is issued by the postal authority in
his favour on 27.10.2008.
36. Further, he has lodged complaint before the
D.J.halli Police Station Bengaluru in Cr.No.44/2018.
According to the complaint lodged by him, FIR has been
registered against the complainant on 04.03.2018,
wherein the address of the accused mentioned as Parvez
Pasha, S/o.Jabbar, No.24/1, 20th Cross, Kanakanagar,
Bengaluru.
37. Ex.P.6 is totally contrary to the Government
documents. The accused has successfully prove his
address that he was not residing in the address as cited
in Ex.P.6. Prior to issuance of notice, Government
36 Crl.A.No.693/2023
records i.e., FIR, Adhar Card and passport discloses that
accused is residing at Kanakanagar, Bengaluru.
Therefore, it is held that prior notice is not personally
served on the accused. Therefore, prior to filing of the
complaint, the complainant has not fulfilled the strict
conditions as contemplated U/s.138(b0 of N.I Act. This
aspect is not considered by the Trial Court in judicious
manner. Accordingly, Point No.2 is answered in the
Affirmative.
Point No.3:-
38. For the forgoing reasons, proceed to pass the
following:
ORDER
The appeal preferred by the
appellant/accused under Section
374(3) Cr.P.C. is hereby allowed and
complaint filed by the
37 Crl.A.No.693/2023complainant/respondent is hereby
dismissed.
Accused is acquitted from the alleged
offence punishable U/s.138 of N.I Act.
The bail bond executed by the accused
and his surety stands cancelled.
In case the complainant has received
compensation amount from the
accused, she shall repay the said
amount with interest @ 6% p.a from
the date of receipt till realization of the
amount within 30 days from the date
of this order.
Office of the Trial court is directed
to refund the fine amount if paid to the
accused.
Office is directed to send back the
records immediately along with copy of
this order.
(Dictated to the Stenographer, transcribed by her, then corrected and pronounced
by me in the open Court on this the 4th day of July, 2026)IP LXIII Addl. Cityby
Digitally signed
(Sri.I.P.Naik)
I P&NAIK
Civil Sessions
Date: 2026.07.07
NAIK Judge, Bengaluru.
12:49:58 +0530
38 Crl.A.No.693/2023
(Order typed vide separate sheet)
ORDER
The appeal preferred by the
appellant/accused under Section
374(3) Cr.P.C. is hereby allowed and
complaint filed by the
complainant/respondent is hereby
dismissed.
Accused is acquitted from the alleged
offence punishable U/s.138 of N.I Act.
The bail bond executed by the accused
and his surety stands cancelled.
In case the complainant has received
compensation amount from the
accused, she shall repay the said
amount with interest @ 6% p.a from
the date of receipt till realization of the
amount within 30 days from the date
of this order.
39 Crl.A.No.693/2023
Office of the Trial court is directed
to refund the fine amount if paid to the
accused.
Office is directed to send back the
records immediately along with copy of
this order.
(Sri.I.P.Naik)
LXIII – Addl. City Civil & Sessions
Judge, Bengaluru.
40 Crl.A.No.693/2023
