Bangalore District Court
Banu vs Janab Syed Zakir Hussain on 10 February, 2026
KABC0A0037702022
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 10th day of February 2026
Crl. Appeal. No.25231/2022
Appellant/ Smt. Banu
Accused:- W/o: Syed Sikandar,
Aged about 37 years,
R/at No.51/1, 3rd Floor, Makan Road,
3rd Cross, Shivajinagar,
Bangalore 560001.
(By Sri. S.Ramarao - Adv.,)
V/s
Respondent/ Mr.Janab Syed Zakir Hussain,
Complainant: Aged about 50 years,
S/o: Syed Husain,
R/at No.67, Labbe Masjid Street,
Shivajinagar, Bangalore 560001.
(By Sri. A.V.Sreenivasa Murthy- Adv.,)
2 Crl.Appeal No.25231/2022
JUDGMENT
This is an Appeal filed by Accused under Section
374(3) of Cr.P.C., being aggrieved by the Judgment dated
30.07.2022 passed in C.C. No.57065/2018 on the file of
XIV ACMM, 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.4,30,000/-
and in default of payment of fine, to undergo simple
imprisonment for 3 months. Out of the fine amount, a
sum of Rs.4,25,000/- is directed to be paid to the
respondent/complainant as compensation and
remaining Rs.5,000/- 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.
3. The facts of the case:-
The Complainant has paid Rs.3 lakhs as advance in
respect of entering of deal of agreement of lease of shop
which was adjacent to staircase in the premises bearing
No.71, Labbe Masjid street, Shivajinagar Bangalore
3 Crl.Appeal No.25231/2022measuring approximately 16 x10 feet and it was being
constructed by the husband of accused. Later it was
noticed that the said building belongs to some other
person and hence the deal was cancelled. When the
complainant asked for refund of the amount the accused
issued 2 cheques for a sum of Rs.3 lakhs each. The
accused has received a total sum of Rs.12 lakhs and for
the said liability he issued 2 cheques for a sum of Rs.3
lakhs each amongst them one cheque was bearing
No.02172827 dated 26.03.2018 and complainant
presented the said cheque before his banker on
18.06.2018. However the said cheque returned unpaid
with endorsement “Funds Insufficient” on 21.06.2018.
Thereafter, the Complainant has issued notice to
accused and the said notice is returned back to
complainant. Even prior to that he presented the cheque
on 19-06-2018 and the same was also returned as
Funds Insufficient. The accused failed to make payment
of cheque and thereby, the 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 Crl.Appeal No.25231/2022
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 him.
The Accused pleaded not guilty and claimed to be tried.
The Complainant got examined as PW.1 and got marked
Ex.P.1 to Ex.P.6 documents and closed his side. The
Accused got examined as DW.1 and got marked one
document as per Ex.D1.
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.30.07.2022.
6. Feeling aggrieved by the said judgment of
conviction, the Accused is in appeal on the following
grounds:
1. The learned Trial Court not given opportunity
to the accused to prove her defence. The
trial court not appreciated her defence. The
complainant itself is not maintainable due to
errors in para No.2 they were not corrected.
2. The entire transaction is civil in nature , the
complainant not produced the lease
agreement itself. The complainant ought to
have filed suit for specific performance
5 Crl.Appeal No.25231/2022before the jurisdictional court. The
complainant not examined any witness or
parties of the lease agreement.
3. There is no legally enforceable debt. The
complainant stated that it is not loan
agreement and it is deal agreement in
respect of a shop. The said deal agreement
and its contents were not proved.
4. The trial court failed to appreciate the
defence of the accused, contradictions in the
complainant’s case. The complainant has
not mentioned the correct cheque number in
para No.2 of the complaint.
5. The impugned Judgment is contrary to facts
materials and evidence placed on record.
Under the above grounds the Appellant
sought for acquittal by allowing the appeal.
7. Heard both sides arguments.
8. Perused the evidence, documents on record and
also impugned Judgment of conviction passed by the
Trial Court.
9. On re-appreciation of the evidence, documents
on record, the following points would emerge for the
consideration of this court.
6 Crl.Appeal No.25231/2022
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?
10. 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
11. 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.
12. As per the complaint averments he has paid a
sum of Rs 3lakhs to accused for the purpose of advance
in respect of a shop which was being constructed by
husband of accused and accused but later it is noticed
that the said shop belongs to others and hence the deal
was cancelled and when the complainant asked for
7 Crl.Appeal No.25231/2022
refund of his amount the accused issued cheque bearing
No.02172827 dated 26-03-2018 for a sum of Rs.3 lakhs
and the said cheque on its presentation on 18-06-2018
returned as funds insufficient. The complainant issued
legal notice to accused but the same returned back to
complainant. He even presented the cheque on 19-06-
2018 and it returned as unpaid for the reason funds
insufficient and after fulfilling all the statutory bound
obligations, the present complaint under question came
to be preferred before the Trial Court. Being aggrieved by
the impugned judgment, the present appeal is preferred.
Before adverting to the factual aspects of the case, the
court has recapitulated entire evidence lead by the
parties.
13. The complainant got himself examined as PW-
1and he has reiterated the contents which he had raised
in the complaint and he has produced Ex.P1 to 6 which
are cheque, bank endorsement, Legal notice, pay in slip,
postal cover and postal receipt. During the course course
of cross examination the complainant had deposed that
he is doing Garment business, the husband of the
accused came to him and stated that No.71, Labbe
Masjid Street, shop is belongs to him and by saying so
he come forward to lease the said shop. The complainant
8 Crl.Appeal No.25231/2022
paid Rs.6 lakhs, he paid Rs.1 lakh out of the said
amount in the shop of his friend in the year 2018.
Subsequently, he paid Rs.5 lakhs. He paid the said
amount by way of cash. The accused signed Ex.P1
cheque and the recitals were filled by the husband of
accused. He denied that the notice is not served on
accused. He denied that in respect of some other
transaction he received the cheque from the husband of
accused.
14. On completion of the 313 Cr.P.C. statement
the Accused had led her evidence as DW.1 and in her
chief examination as DW1 – Banu, she had deposed that
there was no financial transaction between her and the
complainant. She got marked her Adhar ID copy as
Ex.D1. It is her evidence that she do not know whether
her husband stated to the complainant that he will lease
out property No.71, Labbe Masjid Street, Shivajinagar to
the complainant. Either herself or her huband are not
owners of said property. Her husband received cheque
from her. The signature on said cheque is her signature.
She got marked her Aadhar card as Ex.D1.
15. During the course of cross-examination this
accused deposed that Ex.P1 cheque is pertains to her
9 Crl.Appeal No.25231/2022
account and signature on the Ex.P1 is her signature.
Her husband taken away her signed cheque from the
house. She do not know whether there is any personal
grudge to her as against complainant.
16. The law is well settled that the Accused need
not enter the witness box nor 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. Admittedly, in the instant
case, the complainant has contended to have lent a sum
of Rs.3,00,000/-. It is the submission of learned counsel
for the Appellant that no such transaction itself had
taken place and on re appreciation of the materials it is
noticed that totally inconsistent stand has been taken up
by the Accused. It is pertinent to note that during the
chief examination evidence of DW1/she has deposed that
cheque is given by her husband, and she do not know to
whom her husband has given her cheque, her husband
stating that he need cheque taken the said cheque.
However this very same DW1 in her cross examination
deposed that the Cheque is belongs to her and the
signature on the cheque is her signature and signed
cheque which was kept in her house was taken away by
her husband. When she enquired her husband about
10 Crl.Appeal No.25231/2022
cheque he has not given any answer. It is not
forthcoming whether the impugned cheque was the same
cheque which is involved in the above case or not. For
the sake of arguments, if it is accepted that the cheque
was taken away by the husband of accused then her
contention that complainant has misused her cheque
will be falsified. Apart from that the defense which has
been taken up by the Accused is to be appreciated. The
law is well settled that a initial presumption is raised in
favour of the Complainant when the necessary statutory
bound obligations are fulfilled. In the instant case the
original cheque, memo of dishonor and legal notice is
produced by the complainant and it is also not in
dispute that the Complainant has fulfilled the statutory
bound obligations. Hence the presumption under section
118 and Sec139 of NI act will be available in his favour.
At this juncture itself it is made clear that the said
presumption is not absolute and also it is a rebuttable
presumption and further the presumption will not be
towards legally enforceable debt. Hence the defense of
the Accused has to be looked into to ascertain, whether
the presumption is rebutted or not.
17. Firstly, Accused has suggested during the
course of cross examination of PW1 that the complainant
11 Crl.Appeal No.25231/2022
had collected the cheque from the husband of accused. It
was also suggested that the cheque was obtained from
the husband of accused in respect of some other
transaction held between the complainant and the
husband of accused. The above suggestions were
categorically denied by the complainant. To be precise
the counsel had suggested that the complainant had
some other transaction with the husband of accused and
the cheque was received from the husband of accused. If
the husband of accused had taken away the signed
cheque of accused kept in the house and handed over
the same to complainant in respect of his another
transaction then why this accused has kept quite
without taking any action against complainant or against
her husband. The accused could have issued
instructions to her banker to stop payment as her chque
is misused by the complainant. That apart the accused
could have issued notice to complainant seeking return
of her cheque as there is no legally recoverable debt from
her to the complainant. However for the best reasons
known to her she has not taken any such steps. Under
the circumstances, the Accused will have to explain why
she had waited for all these days in order to lodge the
12 Crl.Appeal No.25231/2022
complaint. And it seems that the defence taken by
Accused is after thought act.
18. Secondly, Accused has taken up the
contention that the dispute is civil dispute and the
complainant ought to have filed civil suit. It is necessary
to note that it is not the case of the complainant that
there was agreement for sale between him and accused.
It is also not the case of the complainant that there was
oral sale agreement. The complainant averred that the
shop was being constructed by husband of accused and
the accused received amount to enter into a deal
agreement of lease of shop. However later it was noticed
that the building belongs to some other and hence the
deal was cancelled. Accordingly the contention of the
accused that the complainant failed to produced the said
agreement of sale and the complainant ought to have
examined witnesses and ought to have filed suit for
specific performance is only an after thought. The
accused first and foremost failed to examine her
husband who is material witness in respect of her
defence. However, what prevented her to examine the
said material witness remained unexplained. Hence,
there is no clarity in her evidence and even she is not
particular about whether the cheque is taken away from
13 Crl.Appeal No.25231/2022
the house by her husband or whether she has given
cheque to her husband and how it came to the hands of
complainant. Under the circumstances, when the
witness/Accused has admitted the cheque and its
signature the initial burden which will be on the
complainant will be discharged.
19. The Court has also appreciated 313 Cr.P.C.
statement of the Accused and in the said statement no
explanation is given by her.
20. No doubt, the law is also well settled that for
the purpose of rebuttal evidence, the Accused is not
required to enter the witness box. However, the defense
should be such that it substantiates her contention. In
the above case, one of the defense which is taken up by
the Appellant/Accused is that there was some other
transaction between her husband and complainant.
However with respect to said defence the Accused had
not even justified the same by tendering any
documentary evidence. It is well settled that the law will
not support a person who will sleep over his rights as
stated in the latin maxim vigilantibus non dormientibus
jura inveniut. In the instant case, the Accused has not
rebutted the presumption.
14 Crl.Appeal No.25231/2022
21. 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.
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
15 Crl.Appeal No.25231/2022of 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
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
16 Crl.Appeal No.25231/2022
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
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.
17 Crl.Appeal No.25231/2022
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.
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
18 Crl.Appeal No.25231/2022the 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.
22. Lastly the court has also appreciated the
statement of accused recorded under Sec.313 of Cr.P.C.
regarding the evidence under 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 her. However, the Accused has not utilized the
opportunity. It is not clear that whether the Accused had
taken any action as against her husband for taking away
her signed cheque is also not forth coming. There is no
explanation about the cheque numbers which are taken
away by her husband and whether the same is the
impugned cheque at EX P1. The Accused has not taken
any action in respect of her allegation that her husband
has given her cheque to complainant in respect of his
19 Crl.Appeal No.25231/2022
other transactions with complainant. 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,
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
20 Crl.Appeal No.25231/2022
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
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….”
21 Crl.Appeal No.25231/2022
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
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
22 Crl.Appeal No.25231/2022are 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
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
23 Crl.Appeal No.25231/2022that 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
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
24 Crl.Appeal No.25231/2022reasonable 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:
“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
25 Crl.Appeal No.25231/2022presented 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
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
26 Crl.Appeal No.25231/2022
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.”
23. It is also the defence of the accused the legal
notice is not served on her. In this regard on perusal of
the cross-examination of accused she deposed that she
was enlarged on bail in the year 2019 and she came to
know about the case through police. She is residing in
No.247, Mekka Masjid, Nehru Puram, Shivajinagar. She
has relied upon copy of her Aadhar card. On perusal of
the Ex.P3 legal notice the address of the accused is
shown as Smt. Banu, Aged abou 35 years, W/o: Syed
Sikandar, No.51/1, 3rd Floor, Makan Road, 3rd cross,
Shivajinagar, Bangalore. The said notice issued to the
accused returned unserved as per Ex.P5 postal cover
with endorsement ;not claimed’. On perusal of the cross-
examination it was suggested to complainant that he has
sent notice to the wrong address. According to accused
she is not residing in the address shown in the legal
27 Crl.Appeal No.25231/2022
notice. However she is residing in some other address
shown in the Ex.D1. In this regard to establish that she
is residing in the address shown in Ex.D1 no materials
as such is forthcoming. On perusal of the trial court
records the summons to accused to the very same
address shown in the legal notice is returned as served.
As because the accused appeared before the court
through her counsel and filed application u/sec.205 of
Cr.P.C. Thereafter the accused got enlarged on bail.
Hence, the contention of the accused that she is not
served with legal notice cannot be accepted as because
when the notice is addressed to the correct address and
when returned as not claimed the notice is held to be
duly served on accused. Hence, though accused taken
defence that she has not been served with legal notice
and there is no transaction between her and
complainant no evidence is placed in this regard. The
accused not taken any risk to examine her husband and
not given instructions to her banker to stop payment.
The accused though taken defence that the entries in
Ex.P1 cheque are not filled by her the same were denied
by the complainant and he deposed that the said entries
are filled by the husband of the accused. The accused
has not taken any steps to prove her said contention.
28 Crl.Appeal No.25231/2022
Admittedly there is no explanation in this regard. The
above aspects clearly 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 and 2
in the Negative.
24. 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) of Cr.P.C., is hereby
dismissed with costs.
The Judgment of conviction passed by
the Learned XIV ACMM, Bengaluru, in
CC.No.57065/2018, dtd. 30.07.2022, is
hereby confirmed.
29 Crl.Appeal No.25231/2022
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 10th day of February
2026.)[Anitha N.P]
LXXIII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-74).
