Bangalore District Court
N A Srinivas vs Nagendra Gowda on 4 May, 2026
1 Crl.Appeal.No.2346/2019
KABC010342052019
IN THE COURT OF THE LXII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-63), BENGALURU.
DATED: THIS THE 04TH DAY OF MAY, 2026.
P R E S E N T:-
Sri. Raghavendra S. Channabasappa, B.A., LL.B (Spl).,
LXII Additional City Civil & Sessions Judge,
Bengaluru City.
CRIMINAL APPEAL No.2346/2019
APPELLANT/ Sri. N.A.Srinivas,
ACCUSED: S/o. Sri. Anjinappa,
Aged about 40 years,
R/at. Nagamangala Village,
Hegganahalli Post,
Devanahalli Taluk,
Bengaluru Rural District.
(By Sri. M.Satish Kumar, Advocate)
-V/.s-
RESPONDENT/ Sri. Nagendra Gowda,
COMPLAINANT S/o. Sri. Krishnappa,
Aged about 39 years,
R/at. Indrasanahalli Village,
Devanahalli Taluk,
Bengaluru Rural District.
(By Sri. Jagadeesha.K, Advocate)
*****
2 Crl.Appeal.No.2346/2019
JUDGMENT
1. The appellant challenged the judgment and sentence passed
by the learned Magistrate dated 11-10-2019 in
C.C.No.22881/2018. Wherein the said learned Magistrate
has convicted the appellant-accused for the offence
punishable under Section 138 of N.I Act and sentenced him
directing to pay fine of Rs.6,10,000/- and in default to pay the
fine amount, he shall undergo simple imprisonment for 1 year.
Out of total fine amount a sum of Rs.6,00,000/- ordered to be
paid to the complainant by way of compensation and balance
of Rs.10,000/- is defrayed to the state for the expenses
incurred in the prosecution.
2. For the sake of convenience, the parties are referred to as per
their litigative status before the learned trial Court. The
appellant is the accused and the respondent is the
complainant as per their original ranks before trial Court.
3. The respondent-complainant filed the complaint against the
appellant-accused before the learned trial Court for the
3 Crl.Appeal.No.2346/2019
offence punishable under Section 138 of N.I Act. Based on
the said complaint, cognizance was taken, sworn statement of
the complainant was recorded and the case was registered
against the accused in C.C.No.22881/2018 for the offence
punishable under Section 138 of N.I Act. Upon service of
summons, the accused appeared through his counsel and
plea of the accused was recorded and the accused pleaded
not guilty.
4. During the course of trial in order to prove the case of the
complainant, the complainant got examined himself as P.W-1
and got marked documents as per Ex.P-1 to 5. Accused
when examined under Section 313 of Cr.P.C denied all
incriminating circumstances appearing in evidence against
him. On behalf of accused has neither examined any witness
nor got marked any documents on his behalf.
5. After hearing both the parties, the learned trial Court convicted
the accused for the offence punishable under Section 138 of
N.I Act and sentenced him as aforesaid. Being aggrieved by
4 Crl.Appeal.No.2346/2019
the said conviction and sentence of the learned trial Court, the
appellant-accused has filed this criminal appeal by
challenging the Judgment on the following:-
GROUNDS
(1) The impugned judgment and sentence passed is
without appreciating the facts and circumstances of the
case of the appellant, the law applicable and
erroneously passed the order resulting in miscarriage of
justice to the appellant.
(2) The impugned judgment passed by the learned trail
Court, is illegal, perverse and capricious and the same
is passed without affording reasonable opportunity to
the appellant.
(3) The appellant has cross-examined the respondent only
in part and not fully cross-examined in the learned trail
Court and no sufficient opportunity is accorded to the
appellant to substantially prove his innocence. He had
valid grounds to urge and his non-representation, non-
tendering of evidence to prove his defense and non-
cross-examination of P.W-1 was neither intentional nor
deliberate. No proper opportunity was granted to the
appellant to prove his innocence and produce valid and
necessary documents so as to negate the statement,
5 Crl.Appeal.No.2346/2019
evidence and case of the complainant. The appellant-
accused plea i.e., suffering from hot broils and he is
unable to move was not looked into or taken on record
by the learned trial Court and has pass the impugned
judgment and sentence and the same has to be
construed as single sided and it is an ex-parte one.
(4) The learned trial Court on assumptions and
presumptions proceeded to pass the impugned
judgment without affording an opportunity to the
appellant-accused. The appellant has every defence to
come out successfully to prove his innocence.
(5) The respondent has suppressed material facts and has
been able to obtain the impugned judgment and
sentence by taking advantage of the health condition
and of the miscommunication between the appellant
and his counsel. The impugned judgment and sentence
is unsustainable in law and liable to be set aside.
(6) The respondent has misused the subject cheque which
was given as security towards the chit, which was
signed, but, blank in all respects; the respondent has
filled it to his fancies and by misrepresenting the Court
he has obtained the impugned judgment.
6 Crl.Appeal.No.2346/2019
(7) Viewed from any angle, the impugned judgment and
sentence is illegal, perverse and capricious and the
same requires to be set aside.
6. After admitting of this criminal appeal, the notice was issued to
the respondent. The respondent has appeared through his
counsel. The learned trial Court records secured.
7. Heard arguments of learned counsel for appellant and
respondent. I have carefully perused the entire trial Court
records pertaining to this case and the impugned Judgment.
8. The following points arise for the consideration of the Court:
1. Whether the appellant made-out grounds to allow the
appeal and set-aside the order passed by the learned
XVIII A.C.M.M, Bengaluru, in C.C.No.22881/2018
dated 11-10-2019?
2. What order?
9. The findings of the Court on the aforesaid points are as under:-
Point No.1 : In the Negative,
Point No.2 : As per final order for the following:-
7 Crl.Appeal.No.2346/2019
REASONS
10. POINT NO.1:- The case of the complainant is that, the
complainant and accused are relatives each other and well
acquainted from past several years and with the acquaintance
the accused during the month of April-2012, has requested
the complainant for a financial assistance of Rs.4,50,000/- as
the accused was developing his business in Nagamangala
Village and to establish new provision store in Sadahalli Gate.
At that time, the complainant having the amount arrived from
the sale transaction of his immovable property, as such the
complainant being understand the grievance of the accused
and within intention to help the accused, he given a sum of
Rs.4,10,000/- by way of cash as a hand loan during the
second week of April-2012. At the time of borrowing the
amount the accused promised with the complainant to return
the said amount within six months from the date borrowing the
amount. But, after borrowing the amount even after lapse of
agreed six months accused neither return borrowed amount
8 Crl.Appeal.No.2346/2019
nor started his business. Hence, the complainant from
November-2012 started to demand with accused to return the
borrowed amount. But, the accused one or other reason
postponing to repay the said amount. In spite of repeated
demands of the complainant, the accused issued a cheque
bearing no.387511 dated 07-12-2012 for Rs.4,10,000/- drawn
on State Bank of Mysore, Bangalore International Airport
Road (Settigere) Branch. When the cheque was presented to
the Bank for encashment, it was dishonoured with an
endorsement “Funds Insufficient” on 11-12-2012. Thereafter,
the complainant issued legal notice on 04-01-2013 calling
upon the accused to make payment of the dishonoured
cheque amount. In spite of service of notice, the accused has
not complied the same. Hence, the complainant constrained
to file complaint against the accused for the alleged offence
punishable under Section 138 of Negotiable Instruments Act.
Hence, this complaint.
9 Crl.Appeal.No.2346/2019
11. The learned counsel for the respondent has argued that, the
Judgment passed by the learned trial Court in
C.C.No.22881/2018 dated 11-10-2019, is hold and good and
not committed any error, after perused the Ex.P-1 to 5 i.e.,
original cheque, endorsement of the Bank, office copy of the
legal notice, postal receipt and postal acknowledgment and
also observed all the evidence of the complainant and passed
the Judgment against the appellant and therefore, the appeal
filed by the appellant is devoid on merits and liable to be
dismissed.
12. Learned counsel for the appellant has argued that, the learned
trial Court arrived at the wrong conclusion in respect of the
transaction between the complainant and accused. There are
contradictions in the evidence of P.W-1. Further contended
that, the learned Magistrate has completely ignored the
principles of criminal jurisprudence. That the burden of proof
lies on the respondent and the benefit lies in favour of the
appellant. Further argued that, the learned trial Court failed to
10 Crl.Appeal.No.2346/2019
consider the evidence given by the P.W-1 during the course of
cross-examination and fail to note that, Ex.P-1 was issued for
the security towards the chit, which was signed, but, the
respondent has misused the subject cheque and he has filled
it to his fancies and by misrepresenting the Court he has
obtained the impugned judgment. Hence, the appreciation
made by the learned Magistrate, is needs interference.
13. Perused entire order sheets, complaint filed under Section
200 of Cr.P.C, for the offence punishable under Section 138 of
N.I Act, examination-in-chief affidavit of the complainant, plea
of accusation, contents of exhibited documents as per Ex.P-1
to 5. There is no procedural defect of any nature while
conducting trial relating to private complaint registered for the
offence punishable under Section 138 of N.I Act.
14. So far as appreciation of evidence is concerned, complainant
is examined as P.W-1. P.W-1 has been subsequently cross-
examined by the counsel for accused. P.W-1 has reiterated
averments of complaint in his examination-in-chief. Ex.P-1
11 Crl.Appeal.No.2346/2019
and Ex.P-1(a) are original cheque and signature of the
accused on Ex.P-1, Ex.P-2 is the endorsement of the Bank,
Ex.P-3 is the office copy of the legal notice dated 02-03-2021,
Ex.P-4 is the postal receipt and Ex.P-5 is the postal
acknowledgment. The appellant has not examined before the
learned trial Court.
15. Despite notice, the accused did not make payment of cheque
amount and thereby, committed an offence punishable under
Section 138 of N.I Act. However, the accused has not repaid
the cheque amount. Accordingly, the accused has committed
an offence punishable under Section 138 of N.I Act.
Thereafter, burden shifts on the accused as per presumptions
under Section 118 & 139 of N.I Act in the form of reverse onus
on the accused to rebut presumptions.
16. To rebut the statutory presumption which could be drawn in
favour of the complainant and also to prove the probable
defense to the touch stone of preponderance of probabilities,
the accused did not enter into the witness box.
12 Crl.Appeal.No.2346/2019
17. I relied placed below mentioned Authority and it is settled
principle of law as held by House of Lords in Vickers Sons
and Maxim Ltd., Vs. Evans (1910) AC 444 as quoted with
approval by the Hon’ble Apex Court in Jamma Masjid,
Mercara Vs Kodimaniandra Deviah and Others AIR 1962 SC
847 and reiterated in Shiv Shakti Co-operative Housing
Society vs Swaraj Developers, AIR 2003 SC 2434 and in
catena of decisions that the court cannot read anything into a
statutory provision which is plain and unambiguous.
18. On bare perusal of the object of the N.I. Act, it shows that the
main object of the Chapter introducing dishonour of cheque
on account of insufficiency of funds as penal offence in the
Act is to enhance the acceptability of cheque. In order to
attract the ingredients of Sec.138 of NI Act, the complainant
needs to prove that the cheque drawn by a drawer of the
cheque on an account maintained by him issued to the payee
in discharge of any debt or other liability, cheque is presented
to Bank within three months of the date of cheque and
13 Crl.Appeal.No.2346/2019
returned by the drawer bank as unpaid, complainant has
made a demand for the payment of the said amount of money
by giving a notice in writing within 30 days of receipt of
information of dishonour by the Bank, and the drawer of such
cheque has not made the payment of the said amount of
money to the payee within fifteen days of the receipt of the
said notice, then such person shall be deemed to have
committed an offence and shall, without prejudice to any other
provisions of the Act, be punished with imprisonment for a
term which may be extended to two years, or with fine which
may extend to twice the amount of the cheque, or with both.
19. It is well settled principle of criminal jurisprudence that a
criminal trial proceeds on the presumption of innocence of the
accused. An accused is presumed to be innocent unless
proved guilty. It is the complainant to prove the guilt of the
accused beyond reasonable doubt. However, in respect of
offence under Section 138 of the Act, although there is a
14 Crl.Appeal.No.2346/2019
reverse onus clause contained in Sections 118 and 139 of the
Act, the initial burden is on the complainant.
20. It is also a settled proposition of law that the standard of proof
which is required from the accused to rebut the statutory
presumption under Section 118 read with Section 139 of the
Act is preponderance of probabilities. The accused is not
required to prove his case beyond reasonable doubt. This
onus on the accused can be discharged from the materials
available on record and from the circumstantial evidences or
even by admissions in the cross-examination of complainant
and his witnesses.
21. I relied view expressed by the Apex Court in K. Bhaskaran Vs.
Sankaran Vaidhyan Balan reported in AIR 1999 SC 3762, the
Apex Court held that once the signature in the cheque is
admitted to be that of the accused, the presumption
envisaged in Section 118 of the N.I Act can legally be drawn
to infer that the cheque was made or drawn for consideration
on the date which the cheque bears.
15 Crl.Appeal.No.2346/2019
22. I relied view expressed by the Apex Court in Rangappa Vs. Sri
Mohan reported in AIR 2010 SC 1898, a three Judges’ bench
of the Supreme Court held that that once issuance of a
cheque and signature thereon are admitted, presumption of a
legally enforceable debt in favour of the holder of the cheque
arises. It is for the accused to rebut the said presumption,
though accused need not adduce his own evidence and can
rely upon the material submitted by the complainant.
However, mere statement of the accused may not be
sufficient to rebut the said presumption. A post-dated cheque
is a well recognized mode of payment.
23. I relied view expressed by the Apex Court in K.S. Ranganatha
Vs. Vittal Shetty reported in 2021 SCC OnLine SC 1191, a
three judges’ bench of the Supreme Court held that once the
cheque is admitted to be that of the accused, the presumption
envisaged in Section 118 of the Act can legally be inferred
that the cheque was made or drawn for consideration on the
date which the cheque bears. Section 139 of the Act enjoins
16 Crl.Appeal.No.2346/2019
on the Court to presume that the holder of the cheque
received it for the discharge of any debt or liability. It is further
held that the position of law makes it crystal clear that when a
cheque is drawn out and is relied upon by the drawee, it will
raise a presumption that it is drawn towards a consideration
which is a legally recoverable amount; such presumption of
course, is rebuttable by proving to the contrary. The onus is
on the accused to raise a probable defence and the standard
of proof for rebutting the presumption is on preponderance of
probabilities.
24. I relied view expressed by the Apex Court in M/s. Kalemani
Tax Vs. Balan (Crl.A.No.123/2021) (LL 2021 P.75) decided on
10.02.2021, a three judges’ bench of the Supreme Court of
India has observed that, even a blank cheque leaf, voluntarily
signed and handed over by the accused, which is towards
some payment, would attract presumption under Section 139
of the Negotiable Instruments Act, in the absence of any
17 Crl.Appeal.No.2346/2019
cogent evidence to show that the cheque was not issued in
discharge of a debt.
25. I relied view expressed by the Apex Court in M/s. Ashok
Transport Agency V/s. Awadhesh Kumar and Another,
reported in 1998(5) Sec.567, Court has observed as under;
“A partnership firm differs from a proprietary concern
owned by an individual. A partnership is governed by
the provisions of the Indian Partnership Act, 1932.
Though a partnership is not a juristic person but Order
XXX Rule 1 CPC enables the partners of a
partnership firm to sue or to be sued in the name of
the firm. A proprietary concern is only the business
name in which the proprietor of the business carries
on the business. A suit by or against a proprietary
concern is by or against the proprietor of the business.
In the event of the death of the proprietor of a
proprietary concern, it is the legal representatives of
the proprietor who alone can sue or be sued in
respect of the dealings of the proprietary business.
The provisions of Rule 10 of Order XXX which make
applicable the provisions of Order XXX to a
proprietary concern, enable the proprietor of a
proprietary business to be sued in the business
names of his proprietary concern. The real party who
is being sued is the proprietor of the said business.
The said provision does not have the effect of
converting the proprietary business into a partnership
18 Crl.Appeal.No.2346/2019firm. The provisions of Rule 4 of Order XXX have no
application to such suit as by virtue of Order XXX Rule
10 the other provisions of Order XXX are applicable to
a suit against the proprietor of proprietary business
“insofar as the nature of such case permits”. This
means that only those provisions of Order XXX can be
made applicable to proprietary concern which can be
so made applicable keeping in view the nature of the
case”
In view of the nature of the case, the same has been
reiterated in Raghu Lakshminarayanan V/s. Fine Tubes, 2007
(5) SCC 103.
26. Further, Hon’ble High Court of Karnataka in H.N.Nagaraj Vs.
Suresh Lal Hiral Lal, reported in 2022 LIVELAW (Karnataka)
400, it is observed that in a proceeding under Sec.138 of N.I.
Act, the arraying of a proprietor as an accused or a proprietary
concern represented by the proprietor would be sufficient for
compliance under Section 138 of N.I Act. The proprietor and
the proprietary concern are not required to be separately
arrayed as party accused.
19 Crl.Appeal.No.2346/2019
27. Applying the above said principles to the present case and
before considering the point whether accused succeeded to
rebut presumptions and to establish his defence to the extent
of probabilities, it is just and necessary to accumulate
undisputed facts in this case.
28. It is not in dispute that bounced cheque belongs to the Bank
account of the accused. It is also not in dispute that,
signature appearing on the bounced cheque is the signature
of the accused is differ. It is also not in dispute that, the
cheque presented by the complainant came to be
dishonoured by the banker of the accused for the reason
stated in the dishonour memo.
29. To consider whether accused succeeded to rebut the
presumption and established defence to the extent of
probabilities, the accused has neither adduced evidence nor
marked any documents on his behalf and has failed to
establish his defence. It is evident from the decision of
Hon’ble Supreme Court in Ashok Transport Agency and
20 Crl.Appeal.No.2346/2019
Hon’ble High Court in H.N.Nagaraj case, as discussed supra,
proprietorship is not a separate legal entity like a Company,
Partnership Firm or Association. Proprietary business name
need not be arrayed as party. Therefore, the trial Court has
rightly held that the accused has not rebutted the presumption
arising U/Sec.139 of N.I Act.
30. In addition to that accused has not produced documents to
show that, accused filed complaint before jurisdictional Police
against complainant for misuse of his cheque. Appellant-
accused did not produce any documents to establish the fact
that he has repaid the cheque amount to the complainant. On
the other hand, the oral and documentary evidence adduced
by the complainant, it is proved that the accused issued the
cheque for legally recoverable debt.
31. This Court has compared reasons assigned by the learned
trial Court in the impugned judgment of conviction as
discussed above with the allegations made in the
memorandum of appeal. No grounds are made out in the
21 Crl.Appeal.No.2346/2019
memorandum of appeal to interfere with the Impugned
judgment of conviction. The learned trial Court has rightly
passed the judgment and order of conviction.
32. So far as quantum of punishment is concerned, sentenced
him to pay fine of Rs.6,10,000/- and in default to pay the fine
amount, he shall undergo simple imprisonment for 1 year.
Out of total fine amount a sum of Rs.6,00,000/- ordered to be
paid to the complainant by way of compensation and balance
of Rs.10,000/- is defrayed to the state for expenses incurred
in the prosecution. Fine amount imposed is within the purview
of Section 138 of N.I Act. Appellant failed to show that
sentence imposed is exorbitant. Accused-appellant failed to
show that quantum of fine imposed is excessive. There is no
merit in the appeal. Order under appeal is sustainable in law.
Hence, interference of this Court is not necessary.
Accordingly, Point No.1 is answered in the ‘Negative’.
33. POINT NO.2:- For the foregoing the reason I proceed to pass
the following:-
22 Crl.Appeal.No.2346/2019
ORDER
This Criminal Appeal filed by the appellant-
accused under Section 374(3) of Cr.P.C, is hereby
dismissed.
Consequently, the Order passed by the XVIII
A.C.M.M, Bengaluru, in C.C.No.22881/2018 dated 11-
10-2019, is hereby confirmed.
Office is hereby directed to send the certified
copy of this Judgment to the learned trial Court along
with T.C.R.No order as to cost.
(Dictated to the Steno Gr-III directly on computer, typed by
him and corrected, signed and then pronounced by me in the open
court on this the 04th day of May, 2026.)(Raghavendra S. Channabasappa)
LXII Addl. C.C. & Sessions Judge,
Bengaluru City.
