Bangalore District Court
Sathyajit Biswal vs Mithun.R on 15 April, 2026
1 Crl.Appeal No.213/2025
IN THE COURT OF LV ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-56)
DATED: THIS THE 15th DAY OF APRIL 2026
PRESENT
SRI. MOHAN PRABHU, M.A., LL.M.
LV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CRIMINAL APPEAL NO.213/2025
Appellant/ Sri.Sathyajit Biswal,
accused S/o Sri.B.B.Biswal,
Aged about 36 years,
R/at.No.2218, 12th Cross,
Sanjeevininagara, Shankaranagara Post,
Bengaluru-560 092.
[R/by. Prakash T.Hebbar, ADV.
Vs
Respondent/ Sri.Mithun.R,
Complainant S/o late Ramakrishna,
Aged about 29 years,
No.23, Sampada, Apoorva Layout,
Nagarbhavi 2nd Stage,
Bengaluru-560 072
MOHAN
PRABHU [R/by Sri S.P.C.,Adv.]
Digitally signed by
MOHAN PRABHU
Date: 2026.04.22
13:02:34 +0530
2 Crl.Appeal No.213/2025
JUDGMENT
This appeal is filed U/s.374[3] of Cr.P.C., by the
accused against the judgment of conviction dated:
04.09.2022 passed in C.C. No.1399/2022 by learned XXII
ADDL. JUDGE, COURT OF SMALL CAUSES AND ACJM,
Bengaluru, for the offence under S.138 of Negotiable
Instruments Act [for short ‘N.I. Act”].
The parties are referred to their rank before the trial
court.
2. The case of the complainant is briefly stated as
follows:
The complainant and accused are known to each
other in their respective work line. The accused
approached the complainant for financial help of ₹
5,00,000. On humanitarian ground, the complainant has
paid ₹ 5,00,000 to the accused on 28.06.2021. While
receiving the amount, the accused had issued a post-
dated cheque bearing number 809344 dated 02.08.2021
drawn on State Bank of India, Kasavana Halli Main
Branch, Bangalore for a sum of ₹ 5,00,000 in favour of
the complainant with the assurance that cheque will be
honoured on presentation of the same. As per the
3 Crl.Appeal No.213/2025instruction, the complainant, presented the said cheque
for collection on 25.10.2021 through his banker, Janata
Co-operative Bank Ltd., Malleshwara Branch, Bangalore.
But the cheque came to be dishonored with an
endorsement as funds insufficient. with the endorsement
dated 26.10.2021. Thereafter, the complainant got issued
legal notice dated 23.11.2021, calling upon the accused
to pay the cheque amount within 15 days from the date
of receipt of notice. The notice duly served on the
accused on 24.11.2021. Despite service of notice, the
accused did not choose to pay the amount covered under
the cheque. Hence, the complaint.
3. Based on the complaint filed by the complainant
the learned Magistrate had taken cognizance of the
offence punishable u/S.138 of NI Act and registered a
case as PCR No.144/2022. The sworn statement of the
complainant came to be recorded. The complainant filed
affidavit for sworn statement and got marked documents
Ex.P1 to P5. The learned Magistrate after perusal fo the
complaint averments, the sworn statement of the
complainant and documents, passed an order dated
27.01.2022 to register the case against the accused as
4 Crl.Appeal No.213/2025
criminal case in Register No.III. Accordingly, case in
C.C.No.1399/2022 came to be registered against the
accused and summons came to be issued. The accused
entered appearance by engaging his counsel on
01.07.2022 and released on bail and on the same day
accusation read over to the accused for which the
accused pleaded not guilty and claimed for trial. The
learned Magistrate by following the direction of Hon’ble
Apex Court in INDIAN BANK ASSOCIATION VS. UNION OF
INDIA, the sworn statement of the complainant treated as
evidence, and posted the case for cross examination of
P.W.1. Order sheet would go to show that even though
several opportunity was given to accused PW1 not fully
cross examined on the side of accused. The accused has
not lead his defence evidence. Thereafter, after hearing
the arguments of both sides, the learned Magistrate
pronounced the judgment on 04.09.2022 and acting
u/s.255(2) of CrPC the accused convicted for the offences
punishable u/S.138 of NI Act and sentenced to pay fine
amount of Rs.5,10,000/-, in default to payment of fine,
shall undergo simple imprisonment for three month.
Acting u/S.357(1) of Cr.P.C it is ordered that out of fine
5 Crl.Appeal No.213/2025
amount the complainant is entitled for sum of
Rs.5,05,000/- towards compensation and the remaining
amount of Rs.5,000/- is to be remitted to the State.
4. Aggrieved by the Judgment of conviction, the
accused has preferred this appeal on following grounds :
The trial Court in Para No. 27 of the Judgment and
Order has clearly recorded the definite case of the
accused, mentioning that the accused issued disputed
cheque to the complainant as a security for the loan
transaction between the complainant and one Yogendra,
and the complainant has misused the said Cheque, and
that there is no enforceable financial liability incurred by
the accused against the complainant to constitute an
offence punishable under Section 138 of Negotiable
Instruments Act. Moreover, in Para No. 28 of the
judgment, the trial Court found that in order to prove the
case of the accused, though the loan transaction was
between the complainant and his relative Yogendra and
the accused is misusing the cheque given by the accused
as a security for the loan transaction between the
complainant and the said yogendra, the said yogendra
has not been examined to prove the defence. It is also on
6 Crl.Appeal No.213/2025record, as noted in Para No. 28 of the Judgment, that the
loan availed by yogendra from the complainant was
repaid by the brother of the accused by name Bhushan,
and the trial court observed that the accused could have
examined his brother, Bhushan, as a witness, thereby
there is no sufficient evidence tendered by the accused
to prove his defence, which is considered as an omission
on the part of the accused, and therefore, based on the
evidence on record, trial Court passed the impugned
judgment and Order. The trial Court. ought to have
granted one more opportunity to the accused to prove his
case in terms of defence taken and suggestions made to
the complainant/PW1 and when it was definite case of
the accused that there is no enforceable financial liability
to pay any amount by the accused to the complainant
and that the impugned cheque was given to the
complainant as a security for the complainant to pay the
amount to his relative Yogendra and in fact said amount
paid by the complainant to the said Yogendra was paid
by the brother of the accused on behalf of the accused. In
fact, the said Yogendra had given a letter of confirmation
addressed to the accused as well as the brother of the
7 Crl.Appeal No.213/2025accused, Bhushan, expressing his gratitude to the
accused as well as said Bhushan after having settled the
amount of ₹ 1,00,000 to the complainant on behalf of the
accused, However, though such a suggestion was made
in the cross-examination of PW1, the letter of
confirmation could not be produced during the trial, nor
the accused could examine the said Yogendra as well as
the said Bhushan to prove the case of the accused, as the
relationship with the accused has strained on account of
above financial matter. However, with great difficulty and
strenuous effort at the request of the accused, the said
yogendra and Bhushan have agreed to tender oral
evidence either before this court or before trial court, as
this court may consider by affording one opportunity to
the accused to prove his case, on such terms, this Court
may deem appropriate. The impugned judgment is
illegal, bad in law, and against the material admissions by
the complainant, and hence the impugned judgment is
liable to be set aside. Hence on these grounds, the
Appellant prayed to set aside the judgment and order
dated 04.09.2024 and further prayed to remand this case
to the trial Court for fresh consideration, granting an
8 Crl.Appeal No.213/2025opportunity to the accused to lead his defence.
The trial court records received.
The respondent/complainant entered appearance
by engaging his counsel.
5. The learned counsel for the Respondant relied
upon the judgment of Hon’ble Supreme Court reported in
AIR 2020 SC 945.
6. I have heard the arguments of the learned
counsel for appellant and learned counsel for the
respondent.
7. I have perused the entire record.
8. The following points would arise for my
consideration:-
Point No.1:- Whether the impugned judgment of
conviction and order of sentence
passed thereon is illegal, perverse
and calls for interference?
Point No.2:- Whether there is sufficient grounds
made out by the appellant to set side
the judgment passed in C.C.No.
41399/2022 as prayed for?
Point No.3:- What order?
9. My findings to the above points are as below:-
Point No.1:- In the Negative
9 Crl.Appeal No.213/2025
Point No.2:- In the Negative.
Point No.3:- As per the final order,
for the following
REASONS
10. POINT NO.1&2:- These points are taken up
together for discussion in order to avoid repetition in
discussion of evidence and for the sake of convenience.
Prior to proceed further, it is important to note some
of the undisputed facts in this case. It is not in dispute
that Ex.P1 cheque is of the bank account of the accused.
It is not in dispute that Ex.P1 cheque containing the
signature of the accused. Now the contention of the
appellant is concerned, during the course of cross-
examination of PW1, the accused has taken the defence
that one Yogendra, who is the common friend of the
complainant and accused, had availed loan from the
complainant and for the said loan transaction, the
accused has issued disputed cheque as a security.
Thereafter, even though the said loan amount with
interest in all sum of ₹ 1,50,000 was repaid by Sri
Bhushan, who is the brother of the accused to the
complainant, but the complainant has not returned
disputed cheque to the accused, but has filed this false
10 Crl.Appeal No.213/2025
complaint based on the same Exhibit P1 cheque. Since
the accused has not led any defence evidence, in order
to find out what is the actual defence taken by the
accused in this case, we have to go through the cross-
examination portion of PW1.
11. PW1 in his examination-in-chief, by reiterating
the complaint averments, has deposed that accused
known to him in their respective work line. He states that
accused approached him for financial help for ₹ 5,00,000.
Hence on humanitarian ground he had paid sum of ₹
5,00,000 to the accused on 28.06.2021. While receiving
the amount, the accused has issued Post dated Cheque
No. 809344 dated 02.08.2021 drawn on State Bank of
India, Kasavanahalli Main Road, Bangalore in favour of
him. PW1 further deposed that when he had presented
the cheque for encashment on 25.10.2021 through his
banker, the Janatha Co-operative Bank Ltd. Malleshwara
Branch, to his utter shock and surprise, the said cheque
came to be dishonoured for reason of funds insufficient,
as per endorsement dated 26.10.2021. PW1 has deposed
that, he got issued legal notice to the accused on
23.11.2021, calling upon the accused to pay the cheque
11 Crl.Appeal No.213/2025
amount within 15 days from the date of receipt of notice.
The legal notice to the accused duly served upon the
accused. Despite, receipt of the notice, the accused has
failed to pay the cheque amount.
12. In order to substantiate the contention taken
by PW1, documents Exhibit P1 to Exhibit P5 are marked
through him. Exhibit P1 is a cheque dated 02.08.2021
issued by the accused. Exhibit P1(a) is the signature of
the accused. Exhibit P2 is the bank endorsement dated
26.10.2021 which returned with shara of “funds
insufficient”. Exhibit P3 is the legal notice dated
23.11.2021 issued to the accused. Exhibit P4 is the postal
receipt for having issued notice to the accused. Exhibit P5
is the postal acknowledgment for having served the
notice to the accused.
13. During the course of cross-examination of PW1,
he has deposed that accused known to him for 4 to 5
years. The accused was also doing civil contract work.
The accused demanded amount in the month of June
2021. He has paid the amount of ₹ 5,00,000 to the
accused on 28.06.2021. He had paid the amount to the
accused by way of cash in 500 denomination notes. He
12 Crl.Appeal No.213/2025
states that at the time of lending the amount, he has not
obtained any documents, except the accused issuing the
post-dated cheque in his favour. He states that his annual
income was ₹ 10,00,000 to ₹ 15,00,000. He is the income
tax assessee. He has deposed that one yogendra is his
relative. He has admitted the suggestion that the
accused transferred amount of ₹ 88,000 to his bank
account through UPI. He has denied the suggestion that
Yogendra borrowed a hand loan from him, for which,
accused issued cheque in his favour for security
purposes. He has deposed that he is having the bank
accounts in three banks such as Union Bank, ICICI Bank
and in Janatha Co-operative Bank. He states that he does
not know Bhushan. He has denied the suggestion that he
had received sum of ₹1,50,000 in 2018 from Bhushan. He
has denied the suggestion that even though he had
received amount from Bhushan, as he started to deny the
receipt of the same, hence the quarrel taken place
between him and Yogendra. He has deposed that in order
to pay sum of ₹ 5,00,000 to the accused on 28.06.2021,
he withdrawn the amount from his Union Bank account.
He has denied the suggestion that his mother was doing
13 Crl.Appeal No.213/2025
chit business. In his cross-examination since PW1 has
admitted the document Exhibit D1 acknowledgment
issued by the police, hence, this document marked as
Exhibit D1. He has admitted the suggestion that he
received sum of ₹ 10,000 on 23.10.2018, ₹ 10,000 on
26.11.2015, ₹ 4,500 on 30.01.2019, ₹ 2,500 on
04.02.2019, ₹ 4,000 on 05.02.2019,, ₹ 11,000 on
11.02.2019 ₹ 14,000 on 14.02.2019, ₹ 5,000 on
02.03.2019, ₹ 4,500 on 4.3.2019 and ₹ 10,000 on
03.5.2019 in all ₹ 90,000 from the accused. He further
deposed that such receipt of the amount is not with
respect to this transaction. It was of a different
transaction. He has admitted the suggestion that on
21.05.2018 he had withdrawn sum of ₹ 1,00,000 from his
Union Bank of India account. He has denied the
suggestion that on 21.05.2018, accused who had
borrowed sum of ₹ 1,00,000 from him, subsequently
repaid the same to him. During the course of cross-
examination of PW1, he has admitted the suggestions
regarding the entries made in his ICICI bank regarding
chit amount. PW1 has denied the suggestion that during
the year 2018 accused received sum of ₹ 1,00,000 from
14 Crl.Appeal No.213/2025
him and thereafter accused repaid sum of ₹ 1,50,000 to
him.
14. On perusal of the oral evidence of PW1, one
thing is very clear that PW1 has not denied that Yogendra
had borrowed sum of ₹ 2,00,000 from him. But it is the
contention of PW1 is that Yogendra had already repaid
the amount to him. It is not the contention of the accused
is that he had borrowed any amount from the
complainant. But during the course of cross-examination
of PW1, the learned counsel for the accused made
suggestion him that the accused in all paid sum of ₹
75,500 through his ICICI bank account by way of
transferring the amount. PW1 has deposed that accused
who had borrowed another sum of ₹1,00,000 repaid the
same to him. In the cross-examination of PW1, the
accused has not taken any contention that the accused
borrowed sum of ₹ 1,00,000/- and accused repaid the
same to the complainant. Since it is not the contention of
the accused is that he had borrowed any amount from
the complainant, why he can issue a cheque as a security
for the borrowed amount of his friend is not made known
to the court. In the cross-examination of PW1 dated
15 Crl.Appeal No.213/2025
12.01.2024, the learned counsel for the accused made
suggestion to PW1 is that he had withdrawn amount of ₹
1,00,000 from his bank account on 21.05.2018. And on
the same day, he had lent that amount of ₹ 1,00,000 to
the accused. He has denied the suggestion that the
accused had repaid the said amount to him. In the further
cross-examination of PW1, suggestion is made to him
that in the year 2018 accused had borrowed sum of ₹
1,00,000 from him and accused repaid amount of ₹
1,50,000 including the interest. Thus, on perusal of cross-
examination portion of PW1, the accused had taken
inconsistent defence. At one stretch, the accused has
taken contention that he had issued blank signed cheque
in favour of the complainant for security purpose for the
hand loan received by his friend Yogendra. But in another
stretch, the accused has taken contention that he himself
borrowed sum of ₹ 1,00,000 from the complainant and he
had repaid the same to the complainant with interest in
all total amount of ₹ 1,50,000. It is not the contention of
the accused is that when he had borrowed sum of ₹
1,00,000 from the complainant, he had issued any
cheque in favour of the complainant for security purpose.
16 Crl.Appeal No.213/2025
It is pertinent to note that when it is the case of the
accused is that when the accused borrowed sum of
Rs.1,00,000/- the complainant not received any cheque,
how can the complainant receive the blank cheque of the
accused when he lent the amount to Yogendra is not
made known to the court. Hence, such contention taken
by the accused is that he had issued Exhibit P1 cheque in
favour of the complainant for security purpose for the
loan taken by his friend Yogendra, creates doubt about
his defence. The learned counsel for the appellant while
addressing the argument submitted that the appellant
has produced one document which is at page number 28
that is acknowledgment issued by Yogendra wherein it is
mentioned that he has assured to hand over the cheque
in favour of the accused, which was issued to Mr. Mithun.
It is important to note that it is not the contention of the
appellant/ accused that the complainant had issued any
such acknowledgment by putting the signature by
admitting that he had received the amount from Bhushan
in favour of Yogendra and he will return the cheque to
the accused. Since the complainant is not party to this
document acknowledgment, it is not binding on the
17 Crl.Appeal No.213/2025
complainant. In the cross-examination of PW1, the
learned counsel for the accused made some suggestion
to PW1 is that accused paid the amount to him through
his bank account. That means the accused as well as his
friend, Yogendra knows about the bank transaction and
they aware that in order to show the payment they can
make payment through bank account. But strangely, the
accused has taken contention that the due amount
payable by Yogendra was paid by Bhushan to the
complainant. The mode of payment is not stated by the
accused. If at all Bushan paid the amount of ₹1,50,000
to the complainant, he should have paid the same
through bank account. But there is absolutely no
documentary evidence to show that Bhushan on behalf of
Yogendra paid the amount to the complainant. As I
already noted, the complainant has not denied the fact
that Yogendra borrowed sum of ₹2,00,000 from him, but
it is the contention of the complainant is that Yogendra
had already repaid that amount. During the course of
cross-examination of PW1, nothing worth is elicited from
his mouth to suggest that the amount of ₹ 2,00,000
borrowed by Yogendra was paid by Bhushan, who is the
18 Crl.Appeal No.213/2025
brother of the accused. The self-serving statement of the
complainant, without there being any documentary
evidence to substantiate his defence, is not sufficient to
hold that Yogendra had borrowed amount from the
complainant for which the accused issued Exhibit P1 in
favour of the complainant for security purposes. It is also
pertinent to note that during the course of cross-
examination of PW1, the accused has not taken specific
defence regarding on which date, Yogendra had
borrowed amount from the complainant. On which date,
the accused had issued Exhibit P1 in favour of the
complainant for security purposes. If at all Yogendra had
repaid the loan amount of which accused had issued
securities cheque in favour of the complainant, under
such circumstances, the Yogendra should have issued
legal notice to the complainant asking him to Give back
the security cheque given by the accused. In the present
case, neither the accused nor Yogendra have given any
notice to the complainant, calling upon him to return the
security cheque. During the course of cross-examination
of PW1, the accused has taken inconsistent defence. At
one stretch, the accused has taken contention that it was
19 Crl.Appeal No.213/2025
Yogendra who had borrowed amount from the
complainant, at that time he had given security cheque
to the complainant. But in another stretch the accused
had taken contention that he has borrowed sum of
₹1,00,000 from the complainant and he had repaid the
same with interest and paid total amount of Rs.1,50,000
to the complainant.
15. In this appeal the appellant has prayed to
remand this case for fresh consideration by granting an
opportunity to the accused to lead his evidence. the
learned counsel for the appellant has argued that now
with great difficulty and strenuous effort at the request of
the accused Sri.Yogendra and Bhushan have agreed to
tender oral evidence. Hence he prayed to give
opportunity to the accused to lead further evidence. He
argued that in this appeal the appellant at page No.28
produced xerox copy of acknowledgment dated
12.12.2019 issued by Yogendra wherein he has stated
that received sum of Rs.1,50,000/- cash from Bhushan
towards full and final settlement and he undertakes to
obtain blank cheque bearing No.809344 drawn on SBI
Bank Kasavanahalli Main Road Bengaluru from Sri.Mithun
20 Crl.Appeal No.213/2025
and handover the same to Sri.Bhushan. On the other
hand the learned counsel for the respondent/complainant
submitted that the accused had taken more than
sufficient time in order to cross examine PW.1. He
submitted that the trial court had given sufficient time to
the learned counsel for the accused to cross examine
PW.1 and also to lead defence evidence. The trial court
has given 7 adjournments for the main arguments.
despite of the same, the accused has failed to lead
defence evidence. I have appreciated rival contention
and perused the records. On perusal of trial court
records it would show that the trial court has given more
than sufficient time to the accused to cross examine
PW.1 and also to lead defence evidence. PW.1 cross
examined by learned counsel for the accused on
07.12.2022, 03.01.2023, 30.05.2023, 12.01.2024. there
is mentioned in deposition of PW.1 dated 21.11.2023 that
despite sufficient opportunity given to the accused the
learned counsel for the accused did not completed the
cross examination. Hence by rejecting the prayer cross
examination taken as nil. Thereafter the learned counsel
for the accused moved application U/Sec.311 of CRPC
21 Crl.Appeal No.213/2025
same was allowed by trial court. Thereafter even though
the learned counsel for the accused partly further cross
examined PW.1 but failed to fully cross examined PW.1.
In the deposition dated 28.02.2024 The learned
magistrate has mentioned that when the case posted for
defence evidence the accused filed application u/Sec.311
of CRPC to recall the evidence of PW.1, the court
permitted to the accused cross examined PW.1 by
allowing the application by imposing cost of Rs.2,000/-.
Thereafter PW.1 was partly cross examined. Though the
court has imposed cost of Rs.2,000/- vide order dated
05.12.2023, the accused has not complied the said order
by paying the cost. It is also noted that in the morning
session the case is kept back with hope that cross
examination will be done afternoon session, but in the
afternoon also the learned counsel for the accused
without cross examining PW.1 without assigning any
reasons prayed time for further cross examination. Hence
prayer of the learned counsel for the accused was
rejected and further cross examination of PW.1 taken as
nil. The trial court on several hearing dates observed
that the accused delaying the matter without cross
22 Crl.Appeal No.213/2025
examining PW.1. On perusal of the order sheet
maintained by the trial court it would goes to show that
the learned counsel for the accused had taken several
adjournment for cross examination of PW.1. Despite
giving sufficient opportunity to the accused to cross
examine PW.1 the learned counsel for the accused did
not completed the cross examination of PW.1. The order
sheet also shows that the learned magistrate has given
more than sufficient opportunity to lead defence
evidence of the accused. The learned counsel for the
accused repeatedly filed application u/Sec.311 of CRPC
praying to recall PW.1 whenever the further cross
examination of PW.1 was taken as nil. The trial court
records goes to show that the trial court had given more
than sufficient opportunity to the accused to cross
examining PW.1 and to lead defence evidence and also to
address final arguments. Under such circumstance this
appellate court of the opinion that there is no sufficient
ground made out by the appellant/accused to give
opportunity to the accused to lead his evidence. One
more point to be noted here is that the accused in the
cross examination of PW.1 has taken inconsistent
23 Crl.Appeal No.213/2025
defence. At one stretch the accused has taken
contention that when his friend Yogendra had obtain
hand loan from the complainant at the time he had
issued Ex.P.1 cheque in favour of the complainant for
security purpose. But in another stretch the accused has
taken contention that he himself borrowed sum of
Rs.1,00,000/- from the complainant but thereafter he had
repaid amount of Rs.1,50,000/- to the complainant
including interest. Such inconsistent defence taken by
the accused would go to show that the defence of the
accused is that he had issued Ex.P.1 cheque and handed
over same to the complainant for security of the hand
loan of his friend Yogendra is nothing but afterthought
defence. I have perused document at page No.28 of the
appeal i.e., xerox copy of acknowledgment dated
12.12.2019 stated to be issued by Yogendra. In this
acknowledgment it is not stated that the complainant had
received sum of Rs.1,50,000/- from Bhushan. It is simply
stated in this acknowledgment that received a sum of
Rs.1,50,000/- by way of cash from Bhushan. It is not
mentioned in this acknowledgment who had received
this sum of Rs.1,50,000/-. Such acknowledgment can be
24 Crl.Appeal No.213/2025
prepared by any person in order to suit their case. Since
the complainant is not party to this acknowledgment it
cannot be binding on the complainant. Such defence
taken by the appellant/accused is that he had issued
blank signed cheque in favour of the complainant for
security purpose is not believable. More than that except
the self serving defence of the accused taken during the
course of the cross examination of PW.1 there is
absolutely no evidence on the side of the accused to
substantiate such defence. Hence this court of the
opinion that it is not necessary either to remand this case
to the trial court or to give opportunity to lead his
evidence. There is no sufficient grounds made out by the
appellant/accused to set aside the impugned judgment
passed by the trial court.
16. It is not the defence of the appellant/accused is
that the complainant has not followed the proper
procedure as contemplated u/Sec.138 and 142 of NI Act.
Ex.P.1 cheque is dated 02.08.2021. The complainant
presented Ex.P.1 cheque to the bank within the period of
its validity. Soon after the complainant received bank
endorsement Ex.P.2 as the cheque dishonored, within 30
25 Crl.Appeal No.213/2025
days the complainant had issued legal notice dated
23.11.2021 as per Ex.P.3 to the accused. Ex.P.5 postal
acknowledgment shows the legal notice duly served upon
the accused. The complainant after giving 15 days time
to the accused has filed this complainant before trial
court on 05.01.2022 i.e., within 30 days from the date of
cause of action. Hence the complainant has followed the
proper procedure contemplated u/Sec.138 and 142 of NI
Act.
17. In this case, the appellant has failed to rebut
the presumption available to the complainant u/S/139 &
118 of NI Act. It is important to refer some of the
judgments.
18. In the judgment of Hon’ble Supreme Court in
the case of K.S. Ranganath Vs Vitthala Shetty reported in
2022 [1] Crimes 454-[SC] wherein head note reads as
below:-
“Negotiable Instruments Act, 1881 – Section
138 read with Sections 118 and 139-
Dishonour of cheque-Conviction and sentence
– When a cheque is drawn out and is relied
upon by drawee, it will raise a presumption
that it is drawn towards a consideration which
is a legally recoverable amount – Onus is on
accused to raise a probable defence and
standard of proof for rebutting presumption is
26 Crl.Appeal No.213/2025on preponderance of probabilities-Defence
sought to be put forth and witnesses
examined in instant proceedings are only by
way of improvement in respect of same cause
of action-Defence sought to be put forth
relating to cheque and other documents
having been obtained by force, cannot be
accepted as a probable defence when
respondent successfully discharged initial
burden cast on him-Appeal dismissed.(Paras
11, 17 and 19)”
19. The Hon’ble Supreme Court in Judgment in a
case of Rangappa V/s Mohan in para no. 14 observed as
follows:-
“In the light of these extracts, we are in
agreement with the respondent/ claimant that
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
Krishnajanardhana Bhat case 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 circumstance 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.”
20. In the decision of Hon’ble Supreme Court
reported in 2019(1) DCR 401 between Bir Singh V/s
Mukesh Kumar it is held that a meaningful reading of the
27 Crl.Appeal No.213/2025
provisions of the Negotiable Instrument 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 he
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. In
my humble view, the principles of these cited decision is
aptly applicable to the present case because PW1 in his
examination in chief clearly deposed regarding accused
issuing Ex.P1 cheque towards repayment of borrowed
amount. Further, in the judgment of Hon’ble Supreme
Court in a case of Sumeti Vij V/s M.s Paramount Tech Fab
Industries, wherein it is held that to rebut the
presumption, facts must be proved by the accused on a
preponderance of probability. In the decision of the
Hon’ble High Court of Karnataka in M Ramesh Kumar
Case wherein in para No.5 observed that section 138 of
N.I. Act, on proof of issuance of the cheque, the onus
28 Crl.Appeal No.213/2025
shifts to the accused to rebut the presumption that the
cheque was issued not for discharge of any debt or
liability in terms of section 138 of N.I. Act. In the decision
of Hon’ble High Court of Karnataka in the case of Sitaram
Gouda A V/s Isbu Kunhammade it is held that, accused
not disputing issuance of cheque- but taking inconsistent
stand later- accused not initiating any proceedings as
regards misuse, or forgery of cheque and making of
wrongful claim- except denial, accused not proving his
case beyond reasonable doubt as obligation was on him
to do so when he took a special plea.
21. On perusal of trial court records, the trial court
has rightly drawn presumption under S.139 of N.I. Act, by
following three ingredients as laid down by the Hon’ble
Supreme Court in Rangappa Vs Mohan reported in 2010
SC 1898. Section 139 of N.I. Act empowers the court to
presume that holder of cheque received it for discharge
of any liability enforceable debt or liability. Burden is on
the accused to rebut the said presumption.
22. Section 118 of The Act reads thus:
118. Presumptions as to negotiable instruments. — Until
the contrary is proved, the following presumptions shall
29 Crl.Appeal No.213/2025be made:–
(a) 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
23. Further, Section 138 of The Act reads thus:
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, without prejudice
to any other provisions of this 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: Provided that
nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank
within a period of six months from the date on
which it is drawn or within the period of its validity,
whichever is earlier;
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for
the payment of the said amount of money by giving
30 Crl.Appeal No.213/2025
a notice in writing, to the drawer of the cheque,
[within thirty days] of the receipt of information by
him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or, as the case may be, to the holder in due course
of the cheque, within fifteen days of the receipt of
the said notice.
Explanation.– For the purposes of this section,
“debt or other liability” means a legally enforceable
debt or other liability.
(2) Further, Section 139 of The Act reads thus:
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.
24. Section 118 of The Act pertains to presumption
of negotiable instrument which mandates that ‘unless the
contrary is proved.’ Similarly, Section 139 of The Act also
mandates that ‘unless the contrary is proved.’ Therefore,
it has to be presumed that the holder of the cheque
received the cheque of the nature referred to in Section
138 of the Act for the discharge in whole or in part of any
debt or liability. Needless to say that the presumption
31 Crl.Appeal No.213/2025
contemplated under Section 139 of the Act is rebuttal
presumption. However, the onus of proving that the
cheque was not issued towards discharge of any debt or
liability is on the accused. But in this case, the accused
has failed to rebut the presumption available to
complainant u/S.139 of NI Act. The accused has not lead
defence evidence in spite of giving sufficient opportunity
to him. It is relevant to cite the decision of Hon’ble
Supreme Court in the case of Sunil Todi and others V/s
State of Gujurat and another and in judgment of Hon’ble
High Court of Karnataka which are reported in 2021(2)
KCCR SN 119 (DB), Judgment reported in 2006 (5) KLJ
323 and reported in 2006(3) KLR 333. When the cheque
issued in blank, the holder of the cheque has authorized
to fill the amount due.
25. Further, The Hon’ble Apex Court in (2012) 13
SCC 3123 (Laxmi Dyechem v. State of Gujarat) has held
thus:
“It has to be presumed that the cheque was issued
in discharge of debt or other liability but the
presumption could be rebutted by adducing
evidence. The burden of proof was however on the
person who wanted to rebut the presumption.
However, this presumption coupled with the object
of Chapter XIV of The Act leads to the conclusion
32 Crl.Appeal No.213/2025that by countermanding payment of post dated
cheque party should not be allowed to get away
from the penal provision of Section 138 of The Act. ”
26. The learned trial judge on proper appreciation
of the evidence on record has rightly come to the
conclusion that the accused has committed offence
punishable U/s.138 of N.I. Act.
27. The trial court rightly convicted the accused for
the offence u/S.138 of NI Act. There is no infirmity in the
impugned judgment of conviction and sentence passed
thereon and warrants no interference at the hands of this
appellate court.
28. Considering on re-appreciation of entire
evidence and after perusal of entire records, this court is
of the opinion that there is no infirmity in the order
passed by the trial court in C.C. No.1399/2022. Hence, I
answer point No.1 &2 in the Negative.
29. POINT NO.3:- In view of my findings on point
No.1, I proceed to pass the following.
ORDER
The appeal filed by the appellant /
accused U/s.374 [3] of Cr.P.C. is hereby
dismissed.
33 Crl.Appeal No.213/2025
The judgment of conviction and
sentence passed by the learned XXII
ADDL. JUDGE, COURT OF SMALL CAUSES
AND ACJM, Bengaluru, in C.C.
No.1399/2022 dated 04.09.2024 is
hereby confirmed.
The office is directed to send back
TCR forthwith to learned XXII ADDL.
JUDGE, COURT OF SMALL CAUSES AND
ACJM, Bengaluru, along with a copy of
this judgment.
[Dictated to the SG-I, transcribed and typed by him,
corrected and then pronounced in the open court on this
the 15th day of APRIL 2026]
(MOHAN PRABHU),
LV Addl. City Civil & Sessions Judge,
Bengaluru. (CCH-56)