Bangalore District Court
H Srinivas vs Santhosh Kumar S on 11 February, 2026
KABC0C0019202024
IN THE COURT OF XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
MAYO HALL UNIT, BENGALURU (ACJM-34)
PRESENT: Smt.PARVEEN A BANKAPUR,B.Com.LLB.
XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE
Dated : This the 11th day of February, 2026.
C.C.No.50424 of 2024
COMPLAINANT : Mr. H Srinivas
S/o. Hanumantha Reddy,
Aged about 72 years,
R/at No.3, Annaiah Readdy
Layout, Opp Nice Bazaar Dodda
Banaswadi, Kalyan Nagar,
Bengaluru North,
Bengaluru - 43
(By M/s. Varaha Law Associates -
Advocate)
V/s
ACCUSED : Mr. Santhosh Kumar S
S/o. H. Srinivas,
Aged about 37 years,
R/at Flat No.501, SGR Residency,
No.2, 3rd Main, 4th Cross, Ashirwad
Colony, Horamavu Main Road,
Bengaluru - 43.
(By Mr. K. Shridhara & Associates
Advocate)
1 Date of Commencement 21.10.2023
of offence
2 Date of report of offence 26.12.2023
3 Presence of accused
3a. Before the Court 04.03.2024
3b. Released on bail 04.03.2024
4 Name of the Complainant Mr. H Srinivas
5 Date of recording of 09.01.2024
evidence
6 Date of closure of evidence 11.11.2025
7 Offences alleged U/s 138 of the Negotiable
Instruments Act
8 Opinion of Judge Accused is found guilty
2 C.C.No.50424 of 2024
JUDGEMENT
The Private Complaint filed by the Complainant under
Section 200 of Cr.P.C. against the accused alleging that he has
committed the offence punishable under Section 138 of
Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that, the Accused is his son.
The Accused is professionally a developer i.e., Real Estate
related to construction project in order to build and sale the
property, from past many years, that is from the day when
Accused entered into their profession, as said above Accused
was on in a position to make arrangement for raw materials
and to raise funds for the above said work.
It is further submitted that the in order to help, at the
time of financial crisis and to be supportive for him,
Complainant has helped the Accused, to balance of his work.
The Accused has requested many times for money. To be
supportive for Accused, the Complainant has helped, as and
when required. The Accused assured to repay the entire
amount, which was availed by him without fail to the
Complainant.
3 C.C.No.50424 of 2024
It is further submitted that he had helped Accused many
times, i.e, 2017 to 2022, in lakhs out of his rent and lease
amounts also agricultural crops profit.
It is further submitted that the Accused did not return
back the amount received. After several requests and
demands, finally the Accused issued a Cheque bearing
No.000428 dtd.21.10.2023 for Rs.40,00,000/- drawn on
HDFC Bank, Horamavu branch, Bengaluru towards discharge
of legally recoverable debt with an assurance that the same
would be honoured on its presentation for encashment.
It is further submitted that as per the assurance of the
Accused, he presented the said Cheque for encashment before
his banker i.e., Indian Bank, Kalyan Nagar branch, Bengaluru,
but to his shock and surprise the said Cheque was was
returned unpaid for the reason “payment stopped by drawer”
on 27.10.2023. Though the said fact was intimated to the
Accused, he did not bother to pay the Cheque amount.
Thereafter, the Complainant got issued demand notice through
RPAD on 20.11.2023, through her counsel to the Accused. After
receipt of the same, the Accused has not paid the Cheque
amount but, he has sent his reply notice dtd.24.11.2023.
4 C.C.No.50424 of 2024
Hence, the Complainant has filed the present complaint against
the Accused for the offence punishable u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement affidavit,
and documents etc., took cognizance of an offence punishable
Under Section 138 of N.I. Act by following the guidelines of
Apex Court issued in Indian Bank Association case and ordered
to be registered a criminal case against the accused for the
offence punishable Under Section 138 of N.I. Act.
4. After issuance of summons, accused appeared before
the court and enlarged himself on bail. Plea was recorded, read
over and explained to the accused, who pleads not guilty and
claims to be tried. Hence, the case is posted for complainant’s
evidence.
5. The Complainant got examined himself as PW-1 and
got marked documents Ex.P.1 to Ex.P.6.
6. Accused was examined U/S 313 of Cr.P.C.
Incriminating evidence appearing in the complainant’s evidence
was read over and explained to the accused who denies the
same. The Accused examined himself as DW1 and no
documents were marked. However, Ex.D.1 to Ex.D.6
5 C.C.No.50424 of 2024
documents came to marked through confrontation during the
cross-examination of PW1.
7. Heard both sides.
The learned Counsel for Complainant has placed the
following citations;
1. (2010) 11 SCC441 in the case of Rangappa V/s. Mohan
2. (2019) 4 SCC 197 in the case of Bir Singh V/s. Mahesh
Kumar
3.(2001) 8 SCC 458 in the case of K.N. Beena V/s.
Muniyappan
4.(1998) 3 SCC 249 in the case of Modi Cements Ltd.,
V/s.Kuchil Kumar Nandi
5. (2002) 1 SCC 234 in the case of MMTC Ltd., V/s.
Medchl Chemicals & Pharma (P) Ltd.,
6. (2019) 5 SCC 418 in the case of Basalingappa V/s.
Mudibasappa
7. (2019) 18 SCC 106 in the case of Rohitbhail Jivanlal
Patel V/s. State of Gujarat
8. (2015) 1 SCC 99 in the case of K. Subramani V/s. K.
Domadara Naidu
9. Judgement of Hon’ble High Court of Karnataka in
Cri.Apl. (2019)
10. (2002) 6 SCC 426 in the case of ICDS Ltd., V/s. Beena
Shabeer
11. (2021) 6 SCC 1 in the case of Sripati Singh V/s. State
of Jharkhand
6 C.C.No.50424 of 2024
The learned Counsel for Accused has placed the following
citations;
1. AIR 2009 SC 1518
2. AIR 2010 SC 1898
3. 2014 Cri.L.J. 2304
4. (2013) 3 SC 86
5. AIR 2024 KAR 3
6. AIR 2024 KAR 555
7. AIR 2023 KAR 1515
8. AIR 2019 SC 1983
9. AIR 2023 KAR 1795
8. Upon hearing the arguments and on perusal of the
materials placed on record, the following points arise for my
consideration.
1) Whether complainant proves beyond all
reasonable doubts that accused in discharge of
legally recoverable debt, has issued a Cheque
No.000428 dtd.21.10.2023 for Rs.40,00,000/-
drawn on HDFC Bank, Horamavu, branch,
Bengaluru in favour of the complainant which
came to be dishonoured with an endorsement
“payment stopped by drawer” and in spite of
receipt of notice accused has not paid the
Cheque amount and thereby committed an
offence under Section 138 of N.I.Act?
7 C.C.No.50424 of 2024
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative
Point No.2: As per final order
for the following:
REASONS
Point No.1:-
10. Existence of legally recoverable debt is a sine qua non
for prosecuting the case under Section 138 of Negotiable
Instruments Act. For convenient purpose the essential
ingredients to constitute offence under section 138 of N.I.Act is
summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of
bank for discharge in whole or in part of any debt
or other liability which presupposes the legally
enforceable debt.
(iii)That the cheque so issued had been returned due to
“insufficient funds”.
11. It is the core contention of the complainant that,
the Accused is his son. The Accused is professionally a
developer i.e., Real Estate related to construction project in
order to build and sale the property, from past many years, that
8 C.C.No.50424 of 2024
is from the day when Accused entered into their profession, as
said above Accused was on in a position to make arrangement
for raw materials and to raise funds for the above said work.
12. It is further submitted that the in order to help, at
the time of financial crisis and to be supportive for him,
Complainant has helped the Accused, to balance of his work.
The Accused has requested many times for money. To be
supportive for Accused, the Complainant has helped, as and
when required. He had helped Accused many times, i.e, 2017 to
2022, in lakhs out of his rent and lease amounts also
agricultural crops profit. It is further submitted that the
Accused did not return back the amount received. After several
requests and demands, finally the Accused issued a Cheque
bearing No.000428 dtd.21.10.2023 for Rs.40,00,000/- drawn
on HDFC Bank, Horamavu branch, Bengaluru towards
discharge of legally recoverable debt with an assurance that
the same would be honoured on its presentation for
encashment, which was returned unpaid for the reason
“payment stopped by drawer” on 27.10.2023. Though the
said fact was intimated to the Accused, he did not bother to pay
the Cheque amount. Thereafter, the Complainant got issued
9 C.C.No.50424 of 2024
demand notice through RPAD on 20.11.2023, through his
counsel to the Accused. After receipt of the same, the Accused
has not paid the Cheque amount but, he has sent his reply
notice dtd.24.11.2023. Hence, the Complainant has filed the
present complaint against the Accused for the offence
punishable u/Sec.138 of N.I. Act.
13. In order to bring home the guilt of the Accused, the
Complainant examined himself as PW1 and reiterated the
contents of complaint in his examination-in-chief. He has also
placed the original Cheque No.000428 dtd.21.10.2023 at
Ex.P1, bank endorsement at Ex.P2, Ex.P3 is the office copy of
legal notice issued by the Complainant to the Accused on
20.11.2023, Ex.P4 is the postal receipt, Ex.P5 is the postal
acknowledgement and Ex.P6 is the reply notice.
14. The documents produced by the complainant of
course established that complainant meets out the procedural
requirements of Section 138 of Negotiable Instrument Act, but
it is to be considered whether all these documents establish the
offence committed by the accused.
10 C.C.No.50424 of 2024
15. The Negotiable Instruments Act raises two
presumptions. One contained in Section 118 and the other in
Sec. 139 thereof. For the sake of convenience Sec 118(1) of the
N.I. Act is extracted here below:
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.
1. To (g) . . . . . . . . . . . .
Provided that where the instrument has been
obtained from its lawful owner, or from an person in
lawful custody thereof, by means of an offence of fraud,
or has been obtained from the maker or acceptor
thereof by means of an offence of fraud, or for unlawful
consideration, the burden of proving that the holder is
a holder in due course lies upon him”.
16. Further Section 139 of the Negotiable Instruments Act
reads as under:
“139, Presumption in favour of holder. It shall be
presumed, unless the contrary is proved, that the
11 C.C.No.50424 of 2024holder 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.”
Scope and ambit and function of the presumption
U/s 118(a) and Sec 139 of NI Act came to be considered
by the Hon’ble Apex Court of Indian in Krishna
Janardhan Bhat Vs Dattatraya G.Hegde (2008
AIAR (Criminal 151) The Supreme Court has laid
down the law in the following phraseology.
“D Negotiable Instruments Act 1881, Secs 139,
138–Presumption under-same arises in regard to
second aspect of the matter provided under Sec 138–
Existence of legally enforceable debt is not a matter of
presumption under Sec 139- It merely raises
presumption in favour of a holder of the cheque that
the same has been issued for discharge of any debt or
other liability – Merely an application of presumption
contemplated under Section 139 of N.I.Act should not
lead to injustice or mistaken conviction.”
17. Further, said decision was followed by Hon’ble High
Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju
& Others (2008 (5) KCCR 3371). Relevant paragraph of the
said judgment reads as under: –
“12. As to the provisions of Sections 138 of N.I.Act, the
following principles emerge from the above
observations of Hon’ble Supreme Court at para Nos
12 C.C.No.50424 of 202421, 23, 25, 26 and 34 of its Judgment in the above
said case of Krishna Janardhan Bhat Vs
Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption
that the cheque was issued towards discharge in whole
or in part in any debt or other liability, which
presupposed legally enforceable debt. Existence of
legally recoverable debt is not a matter of presumption
under Section 139 of the Act. It merely raises a
presumption in favour of a holder of the cheque that
the same has been issued for discharge of any debt or
other liability.” (para 21)
(ii) The question as to whether the presumption stood
rebutted or not, must be determined keeping in view
the other evidences on record. Where the chances of
false implication cannot be ruled out, the background
fact and the conduct of the parties together with their
legal requirements are required to be taken into
consideration. (para 26)
(iii) An accused, for discharging the burden of proof placed
upon him under a statute, need not examine himself.
He may discharge his burden on the basis of the
materials already brought on records (para 23)
(iv) Standard of proof on the part of an accused and that of
the prosecution in a criminal case is different. Further
more where as prosecution must prove the guilt of an
accused beyond all reasonable doubt, the standard of
proof so as to prove a defence on the part of an
accused is “preponderance of probabilities'” ( para 23
& 25)
(v) Inference of preponderance of probabilities can be
drawn not only from the materials brought on records
by the parties but also by reference to the
circumstances upon which he relies ( para 25)
(vi) Other important principles of legal jurisprudence,
namely presumption of innocence as human rights
13 C.C.No.50424 of 2024
and the doctrine of reverse burden introduced by
Section 139 should be deliberately balanced (para 34)
18. Thus from the observations extracted above, it is
clear that presumption Under Section 139 of the N.I,.Act is only
to the extent that the cheque was drawn for discharge in full or
in part of any debt or other liability and the said presumption
do not relate to the existence of legally enforceable debt or
liability. Therefore, before drawing the presumption under
section 139 of the N.I.Act, it is the duty of the Court to see
whether or not the complainant has discharged his initial
burden as to existence of legally enforceable debt. No doubt, as
per Section 118(a) of the Act, there is a rebuttable presumption
that every negotiable instrument, is accepted, endorsed,
negotiated or transferred was accepted, endorsed, negotiated or
transferred for consideration.”
19. Factual matrix of the case is required to be tested on
the anvil of principles emerging from the above-referred
decisions.
20. The defence taken by the Accused is that, towards
love and affection towards his father and mother he intending
14 C.C.No.50424 of 2024
to pay maintenance to them by keeping the Rs.40 lakhs each
F.D. in their name and issued signed cheques in favour of
them and when they objected to his son as a nominee of their
respective F.D. he withdrawn his intention and those cheques
are kept with his father and mother and he gave stop payment
to the bank. It is further submitted that, there is no liability to
pay the cheque amount to them.
21. In order to substantiate the claim, the Complainant
examined himself as PW1 and he deposed that, Accused is his
son and he is professionally a developer and in order to built
and sale the property from past many years and whenever
their fund necessary to him, he paid financial help to the
Accused for the love and affection on the Accused. He further
deposed that, he helped the Accused at his time of financial
crisis and for his work requirements. It is further deposed that
she helped the Accused many times since from 2017 to 2022 in
lakhs of rupees from collecting the rent and lease amount and
also profit from the agricultural crops. It is further deposed
that, Accused assured that, he will repay the said amount and
after several requests and demands Accused did not pay that
loan amount to him. It is further deposed that, finally on
15 C.C.No.50424 of 2024
several repeated requests, reminders and demands, the
Accused has issued Ex.P1 cheque for Rs.40 lakhs with
assurance that the cheque will be honoured on its presentation.
It is further deposed that, when the Complainant presented the
cheque, same was dishonoured with reason ‘payment
stopped by drawer’ as per Ex.P2. It is further deposed that,
the same is orally brought to his knowledge, but he has not
clear the cheque amount and had no intention of clearing the
legally enforceable debt towards the Complainant. It is further
deposed that, thereafter she issued demand notice as per Ex.P3
to the Accused which was duly served upon the Accused as per
Ex.P5. It is further deposed that, despite of receipt of notice,
Accused did not pay the cheque amount, but he replied to the
notice as per Ex.P6.
22. Considering the oral and documentary evidence
placed by the Complainant, prima facie presumed that, Ex.P1
cheque was issued by the Accused towards discharge of legally
enforceable debt and liability. To rebut the presumption the
learned counsel for Accused cross-examined the PW1 in full
length.
16 C.C.No.50424 of 2024
23. In the cross-examination PW1 stated that he had 3
children i.e., Accused, Mr. Sunil Kumar and Shilpa. He further
stated that, in the year 2015 family partition took place and
thereafter, the children are separated. He further stated that,
for one property there is a dispute between himself and Mr.
Vasanth Kumar and said civil litigation was settled for Rs.75
lakhs and Accused has paid Rs.75 lakhs to Mr. Vasanth Kumar
He further admits that the said property belongs to their joint
family. He also stated that, till today that Rs.75 lakhs was not
returned to the by him or any other children. He further
admits that after partition they enjoying their respective shares.
He unable to say that what is the income of share allotted to
the Accused. He further unable to say that after 2015 partition
the financial capacity of the Accused. He admits Gift Deed
executed by him as per Ex.D1. He further admits Partition
Deed as per Ex.D2. He further stated that, towards love and
affection Accused gave one gold bracelet and one ring. But he
denied that, both are ornaments were given by the Accused
after partition. He further stated that from 2015 to 2024 the
Accused frequently received Rs.2-3 lakhs from him. He further
stated that that he does not know per month income of the
17 C.C.No.50424 of 2024
Accused was Rs.50,000/- in the year 2015 and in the year
2016 Accused received rent per month for Rs.3,50,000/-. He
further stated that the does not know that in the year 2018
Accused received rent income Rs.5,50,000/- per month. He
further stated that the does not know that in the year 2022
Accused received rent income Rs.7,50,000/- per month. He
further stated that the does not know that in the year 2024
Accused received rent income Rs.10,50,000/- per month. He
further stated that he does not know that, Accused availed
loan from the bank. He stated that he does not know about the
disease of Accused and also not known about since from 2017
he suffering bone narrow cancer. He further stated that, since
from 10 years Accused doing developer and real estate
business. He further stated from 2017 to 2023 he paid amount
to the Accused for his business He denied that since from 2016
Accused suffering from bone narrow cancer. He denied that the
Accused has not receive any amount from him from 2017-
2023. He admits that in the year 2023 he executed Gift Deed
for one property in favour of Accused as per Ex.D3. He further
stated that, after execution of Gift Deed Accused intending to
keep the amount in Fixed Deposit in their name. He denied
18 C.C.No.50424 of 2024
that Ex.P1 cheque was issued for depositing of Rs.40 lakhs
amount. He admits that Ex.P1 cheque was issued on
21.10.2023. He admits account opening form and his signature
as per Ex.D4 and Ex.D4(a) and also admits HDFC bank KYC
form and his signature as per Ex.D5 and Ex.D5(a) and also
admits deposit form as per Ex.D6. He further stated that, the
son of the Accused by name Gourav is studying. He further
stated that he does not know that the Accused is intending to
deposit the amount in a bank and proposed his son as
nominee and beneficiary. He further stated that, since they
have refused to nominee, therefore the Accused has made stop
payment. He further stated that his daughter was residing at
Kalyananagar and in the partition six plots were allotted to her
and she sold all six plots. He denied that in the instigation of
his daughter, they filed present case and before Senior Citizen
Tribunal. He further denied that from 2015 there is no any
financial transaction between the Accused and himself. He
further denied that the Accused is not liable to pay Ex.P1
cheque amount
24. To rebut the presumption, the Accused examined
himself as DW1. He deposed that, the Complainant is his father
19 C.C.No.50424 of 2024
from 2015 he residing separately from his parents. He further
deposed that, in the year 2015 the family partition partition
was effected and they living separately. He further deposed that
he got sites and plots in the partition and every month he get
Rs.10 lakhs income from the said property. He further deposed
that his father and mother residing in his younger sister house.
He further deposed that since from 2017 he suffering from bone
narrow cancer and it is at 4th stage. He further deposed that he
taking treatment at Vikram Hospital, Fortis Hospital and
Baptist Hospital. He further deposed that during this period,
his father and mother were not met him. He further deposed
that in the year 2022 when he was admitted in hospital and
his condition was critical and at that time, his parents met him
and both have transferred their respective sites through Gift
Deed. He further deposed that due to love and affection he
intend to keep deposit of Rs.40 lakhs in the name of his father
and mother respectively for a maintenance. He further deposed
that in the F.D. Process, for account opening and KYC
documents, both were signed and he issued Rs.40 lakhs each
cheque and also stated that, his son is to be nominee for the
said F.Ds. He further deposed that after argument between
20 C.C.No.50424 of 2024
himself and his parents, both parents are objected for the
nominee therefore, FD was not keep and both cheques were
retained with the Complainant. He further deposed that he
given stop payment to the bank for the reason that, both are
giving the cheques to his younger sister. He further deposed
that his parents are presented the cheques and after
dishonour of cheques they gave notice to him and he replied to
both notices. He further deposed that he was not receive any
amount from his father and mother and also not issued
cheques towards repayment of loan amount. He further
deposed that, he was given gold ornaments to his father and
mother. He further deposed that his father and mother
misused his cheques and filed false complaint against him. He
further deposed that the cheques given by him towards
maintenance to his father and mother. He further deposed that
he was borrowed loan from the bank for his treatment and from
the rent amount, he paying loan installment to the bank.
25. In the cross-examination he admits that, Ex.P1
cheque belongs to him and also admit his signature and
handwriting on Ex.P1. He further admits that notice received by
him and he replied to the said notice. He further admits that in
21 C.C.No.50424 of 2024
the family partition, the shares allotted to him, his younger
brother and younger sister. He further admits that all the
property allotted to him, his brother and his sister only. He
further admits that in the partition no share allotted to his
father and mother. He further stated that in the family
partition he got 11 properties. He denied that, from the said 11
properties, he got Rs.30 lakhs rent per month. He further
stated that he got monthly income from the said property for
Rs.10 lakhs. He further admits that by using the said share of
property, he utilized in real estate and developed. He denied
that for development of said property, he received amount
from the Complainant. He admits that as per partition deed, all
3 children gave Rs.15 lakhs to the Complainant by cash. He
denied that this amount was taken by him from the
Complainant. He admits that, Complainant transferred a
house which earned by him from his own funds through Gift
Deed. He further stated that, in the year 2023 the Complainant
executed Gift Deed in his favour. He denied that by assuring
that, he will take care of father and mother, he received Gift of
house and Rs.30 lakhs from his father. He further denied that
he received Rs.80 lakhs from his father and mother. He stated
22 C.C.No.50424 of 2024
that the property mentioned in Gift Deed as per Ex.D3 was
under litigation and he was settled the matter by paying the
amount and made executed Ex.D3 by forcibly from his father.
He admits that, he made stop payment and also stated that
before stop payment was not informed to his parents. He denied
that, in order to cheat the Complainant, he made stop payment.
He admits that, at the time of F.D. in the name of Complainant,
he made his son as a nominee. He further admits that
Complainant is refused to made his son as a nominee. He
admits that in reply notice he stated that, cheques were issued
for the maintenance. He further denied that in order to cheat
his old age parents, he made stop payment to the bank. He
further denied that he is liable to pay cheque amount to the
Complainant.
26. Considering the oral and documentary documents
produced by both parties, it is clear that Accused is son of
Complainant and also admits that, Complainant is an old age
and Accused is suffering bone narrow cancer at the fourth
stage. It is also admitted that, family partition was effected. It is
also admitted that, in the family partition including Accused,
other two children got their respective shares as per partition
23 C.C.No.50424 of 2024
deed. It is also admitted that in the said family partition the
Complainant have got not any share in the property. It is
further admitted that, the Complainant executed Gift Deed in
favour of Accused apart from partitioned properties. It is
further admitted that Ex.P1 cheque belongs to the Accused’s
account and it is also admitted his signature on the cheque and
also handwriting on the cheque belongs to the Accused.
27. In the reply notice the Accused taken defence that,
the cheque was issued for the purpose of maintenance to the
Complainant and in the cross-examination the Accused taken
defence that, cheque was issued for the purpose of F.D. amount
which he intending to keep the FD in the name of Complainant
towards love and affection towards the Complainant. Ex.D4 is
the account opening form in which where on every page the
Complainant has signed, entire details were not fill up in the
said form. Ex.D5 is the application for account opening using
Aadhaar/e-KYC for customers not opening for DBT. It is also
signed by Complainant. On perusal of Ex.D4 and 5 and
statement of Accused, it appears that, for depositing or account
opening of the Complainant the preparation of application
process was happened. As Accused submitted that, for F.D.
24 C.C.No.50424 of 2024
amount, he intending to proposed nominee as his son. It is
further submission of the Accused is that, in lifetime the
Complainant would take only interest amount on the F.D. and
after that, entire F.D. amount will be goes to the nominee i.e.,
son of the Accused. It is contention of the Accused is that for
that F.D. amount, he had issued Ex.P1 cheque in favour of
Complainant and since Accused refused to take son of Accused
as a nominee, hence he made stop payment to the bank. .On
the other hand, in the reply notice para No.15 the Accused
stated that, he has been suffering from cancer and even now he
is under treatment and Complainant requires money for the
purpose of maintenance and on account of constant pressure
on the Accused and his wife and at that point of time, Accused
has issued the cheque for sum of Rs.40 lakhs only as a security
and Accused has assured that after he gets well he would make
necessary arrangements for his maintenance and specifically
instructed him not to deposit the cheque since the said cheque
has been issued by the Accused only as a promise to take care
of his maintenance and his well being in his old age and the
said cheque issued by the Accused is not towards any loan
transaction or any amounts borrowed by him and the same was
25 C.C.No.50424 of 2024
only issued as a precautionary measure and for the purpose of
security and whereas the Complainant has totally misused the
trust and love shown by him towards his mother and
Complainant has gone ahead and deposited the cheque with a
malafide intention to deceive and harass him both mentally and
physically and under no circumstances, the Accused has been
a borrower from the Complainant and the question of repaying
the said amount as recoverable debt does not arise for
consideration. The Accused has taken multiple defence by way
of replying the notice and during the course of cross-
examination.
28. During the course of arguments, the learned counsel
for Accused vehemently argued that, the Accused is suffering
from cancer disease and it is at fourth stage. Complainant
being a father has not met him and not shown any courtesy
and affection to the Accused. It is pertaining to note that, it is
admitted fact that entire family property divided into 3 children
and no any property retained by the Complainant. The own
property of the Complainant also gifted to the Accused towards
love and affection who suffering from cancer. The Complainant
allotted the most valuable properties to their children no any
26 C.C.No.50424 of 2024
property retained with them. Now, the Complainant and his
wife are residing with their daughter and after allotting the
share and executing the Gift Deeds in favour of Accused, they
have no shelter and maintenance to maintain themselves.
Therefore, it appears that, the selfish children after receiving
the shares in the valuable property, they thrown out the
parents on the street. As per the complaint, it is contention of
the Complainant that, he gave amount to the Accused for his
real estate and development business in part by part from 2017
to 2023. Towards return of that amount, the Accused has
issued a cheque. On the other hand, the Accused taken
contention that the cheque was issued for the purpose of
security for the future maintenance and instruct the
Complainant not to deposit the cheque and also taken
contention that, towards FD amount, he issued cheque. The
learned counsel for Accused argued that, there is no any loan
transaction between the Complainant and Accused, hence there
is no any legally recoverable debt and they relied on AIR 2010
Supreme Court 1898 in the case of Rangappa V/s.
Mohan where in the para No.14 held that,;
27 C.C.No.50424 of 2024
“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 (supra) 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.
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
28 C.C.No.50424 of 2024whose 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. As clarified in the citations, the accused can
rely on the materials submitted by the complainant
in order to raise such a defence and it is conceivable
that in some cases the accused may not need to
adduce evidence of his/her own.
Further relied on AIR Online 2024 KAR 555 High
Court of Karntaka in the case of Basavaraj V/s. Sunil
Kumar R. wherein the Hon’ble High Court of Karnataka held
that;
“Accused borrowed handloan from the
Complainant and issued cheque by way of security
29 C.C.No.50424 of 2024and cheque was dishonoured due to insufficient
funds. It was admitted by the Complainant that there
was difference in ink used for signing the cheque and
remaining details in cheque. Fact that, the signature
of the the Accused and remaining writing were in
different ink supported Accused’s version that the
cheque was blank when he issued it. The
Complainant failed to produce any document to prove
his financial capacity. The Accused, on the contrary,
proved by preponderance of probabilities that blank
hq was as issued towards repayment of premium due
from his sister in respect of LIC policy taken by her
from Accused and Complainant had misused the
same by filing of complaint – Acquittal was proper.”
Further relied on AIR 2019 SC 1518 in the case of
M/s. Kumar Exports V/s. M/s. Sharma Carpets. By relying
those decisions and other decisions the learned counsel for
Accused submitted that, the cheque is not issued for
repayment of loan and it is issued only for the purpose of
security for F.D. amount and maintenance. In the present case
as already discussed above, the Accused has taken multiple
defence and stated that, the cheque issued for the security
which misused by the Complainant. But, he failed to rebut the
presumption by proving that, the cheques were issued towards
30 C.C.No.50424 of 2024
security purpose only. On the other hand, the Complainant
established that, all the family properties were allotted to their
children and in additional they have executed Gift Deed in
favour of Accused and transferred two more properties to the
Accused. Further, towards own fund and fund gave by the
children at the time of partition also gave to the Accused for his
business. Further, the Accused himself admitted that,
handwriting and signature on the cheque was belongs to him
and cheque also belongs to his account only. Therefore, it
presumed that, Ex.P1 cheque issued by the Accused towards
discharge of legally enforceable debt and liability. Hence, the
decisions relied by the Accused are not applicable to the
defence of the Accused
29. It is admitted by the Accused that, he made stop
payment instructions to the bank. As per the Ex.P 1 cheque it
is dated 21.10.2023 and it is presented on 26.10.2023 and
dishonour ed on 27.10.2023. As per the submission of the
Accused, he instructed to the bank for stop payment.
Immediately after issuance of cheque, he made stop payment.
The Accused has not produced any document to show that
as on the date of issuance of cheque and presentation of the
31 C.C.No.50424 of 2024
cheque, he had sufficient balance in his account. Therefore
intentionally and knowingly he instruct to the bank for stop
payment . As per the decision relied by the learned counsel for
Complainant Rangappa Vs Mohan 2010 (11) SCC 441
wherein it is held that;
“Ordinarily in cheque bouncing cases, what the
courts have to consider is whether the ingredients of
the offence enumerated in Section 138 of the Act have
been met and if so, whether the accused was able to
rebut the statutory presumption contemplated by
Section 139 of the Act. With respect to the facts of the
present case, it must be clarified that contrary to the
trial court’s finding, Section 138 of the Act can indeed
be attracted when a cheque is dishonoured on account
of `stop payment’ instructions sent by the accused to
his bank in respect of a post-dated cheque,
irrespective of insufficiency of funds in the account.
This position was clarified by this Court in Goa Plast
(Pvt.) Ltd. v. Chico Ursula D’Souza, (2003) 3 SCC 232,
wherein it was held:
“Chapter XVII containing Sections 138 to 142
was introduced in the Act by Act 66 of 1988 with
the object of inculcating faith in the efficacy of
banking operations and giving credibility to
negotiable instruments in business transactions.
These provisions were intended to discourage
people from not honouring their commitments by
way of payment through cheques. The court
should lean in favour of an interpretation which
serves the object of the statute. A post-dated
cheque will lose its credibility and acceptability if
its payment can be stopped routinely. The
purpose of a post-dated cheque is to provide
some accommodation to the drawer of the
32 C.C.No.50424 of 2024cheque. Therefore, it is all the more necessary
that the drawer of the cheque should not be
allowed to abuse the accommodation given to
him by a creditor by way of acceptance of a post-
dated cheque. In view of Section 139, it has to be
presumed that a cheque is issued in discharge of
any debt or other liability. The presumption can
be rebutted by adducing evidence and the
burden of proof is on the person who wants to
rebut the presumption. This presumption
coupled with the object of Chapter XVII of the
Act leads to the conclusion that by
countermanding payment of a post-dated
cheque, a party should not be allowed to get
away from the penal provision of Section 138. A
contrary view would render S. 138 a dead letter
and will provide a handle to persons trying to
avoid payment under legal obligations
undertaken by them through their own acts
which in other words can be said to be taking
advantage of one’s own wrong. …”
Further, the learned counsel for Complainant relied on Bir
Singh V/s. Mukesh Kumar 2019 (4) SCC 197 wherein ti is
held that,
“When the Accused admits the signature on the
cheque, the contents of the cheque cannot be
disputed and the presumption u/Sec. 118 and 139
of the Act necessarily follows.”
Further relied on BN Beena V/s. Muniyappa 2001 (8) SCC
48 wherein the Hon’ble Supreme Court held that;
33 C.C.No.50424 of 2024
“Once the execution of the cheque is admitted,
the burden heavily shifts upon the Accused to
disprove the existence of a legally enforceable debt.”
30. As discussed above, it has to be presumed that the
cheque in question was issued by the accused to discharge the
legally recoverable debt or liability. The accused can place
rebuttal evidence so as to show that the cheque was not issued
for consideration. As appreciated supra, accused has failed to
put acceptable and satisfactory evidence to probabilise the
defence. Therefore, there is no question of saying that the
cheque was not issued for liability.
31. So, far as sentence and compensation is concern, an
offence punishable under Section 138 of N.I. Act, is a civil
wrong and compensatory in nature, punitive is secondary,
considering, the above settled principle of law with facts and
circumstances of the case, which clearly reveals that, the
Accused is liable to pay cheque amount to the Complainant
and towards discharge his liability, the cheque in question was
issued by the accused to the complainant. Therefore,
considering the nature of transaction, duration of pendency,
litigation expenses, I am opinion that, if sentence of fine of
34 C.C.No.50424 of 2024
Rs.44,80,000/- (Rupees Forty-four Lakhs and Eighty
Thousand only) is imposed that would meet the ends of
justice, accordingly, the accused is hereby sentenced to pay a
fine of Rs.44,80,000/- (Rupees Forty-four Lakhs and Eighty
Thousand only), out of that, the complainant is entitled for
sum of Rs.44,75,000/- (Rupees Forty-four Lakhs and
Seventy-five Thousand only) as a compensation as per
U/Sec.395(1) of B.N.S.S., remaining amount of Rs.5,000/-, is
to be appropriated to the State, in case of default the
accused shall undergo simple imprisonment for a period of
6 months. Accordingly, the Point No.1 is answered in
Affirmative.
32. POINT No.2: In view of discussion held in Point
No.1, I proceed to pass the following:
ORDER
Acting U/S 278(2) of B.N.S.S., the accused is
convicted for the offence punishable Under Section
138 of Negotiable Instrument Act.
Accused is sentenced to pay fine of
Rs.44,80,000/- (Rupees Forty-four Lakhs and
Eighty Thousand only) in default to undergo
simple imprisonment for 6 months. Further, it is
made clear that out of fine amount, Rs.44,75,000/-
(Rupees Forty-four Lakhs and Seventy-five
35 C.C.No.50424 of 2024
Thousand only) is to be paid to the complainant as
compensation as per the provision U/Sec.395(1) of
B.N.S.S. and Rs.5,000/- is ordered to be remitted
to the State.
Bail bond stands cancelled.
Supply the free copy of this judgement to
the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me
and then pronounced in the open court on this 11th February, 2026)
Digitally signed by
PARVEEN A PARVEEN A
BANKAPUR
BANKAPUR
Date: 2026.02.12 (PARVEEN A BANKAPUR)
XXXIV ACJM, BENGALURU.
16:20:14 +0530
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. H Srinivas
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque Ex.P.2 Bank endorsement Ex.P.3 Office copy of legal notice Ex.P.4 Postal receipt Ex.P.5 Postal acknowledgement Ex.P.6 Reply
3. Witnesses examined on behalf of Accused:
D.W.1 Mr. Santhosh Kumar S.
4. Documents marked on behalf of Accused:
Ex.D.1 Certified copy of Gift Deed
Ex.D.2 Certified copy of Family Partition Deed
Ex.D.3 Certified copy of Gift Deed
Ex.D.4 Account opening form
Ex.D.4(a) Signature
Ex.D.5 HDFC bank KYC Form
Ex.D.5(a) Signature
Ex.D.6 Deposit form
Digitally signed by
PARVEEN PARVEEN A
A BANKAPUR (PARVEEN A BANKAPUR)
BANKAPUR
Date: 2026.02.12
16:20:19 +0530
XXXIV ACJM, BENGALURU.