Karnataka High Court
Smt Latha B M vs Sri N Nagesh on 1 April, 2026
Author: V Srishananda
Bench: V Srishananda
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1293 OF 2023
(397(Cr.PC) / 438(BNSS)
BETWEEN:
SMT LATHA B M
W/O MAHESHWARA,
AGED ABOUT 56 YEARS,
R/AT BLOCK 48,
INCOME TAX COLONY,
HMT WATCH FACTORY,
JALAHALLI,
BENGALURU - 560 013.
...PETITIONER
(BY SRI. PRASHANTH U. T, ADVOCATE)
AND:
SRI N NAGESH
S/O LATE V NAGAPPA,
AGED ABOUT 64 YEARS,
Digitally NO. 118, 2ND MAIN ROAD,
signed by 9TH CROSS, CHAMRAJPET
MALATESH
KC BENGALURU - 560018.
Location:
HIGH SINCE DECEASED REP. BY L.RS
COURT OF
KARNATAKA 1(a) SMT.B.V.MANJULA
W/O LATE N.NAGESH
AGED ABOUT 58 YEARS
1(b) SMT.INDU.N
D/O LATE N.NAGESH
AGED ABOUT 36 YEARS
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BOTH ARE RESIDING AT NO.118
2ND MAIN, 9TH CROSS, CHAMARAJPET
BANGALORE - 560 018
...RESPONDENTS
(BY SRI S.KASINAGALINGAM, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE PASSED BY COURT OF SMALL CAUSES AND ACMM
AT BENGALURU IN C.C.NO.3703/2019 DATED 04.03.2022 AND
SET ASIDE THE JUDGMENT AND ORDER PASSED IN THE
CRL.A.NO.494/2022 PASSED BY THE LX ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-61) ON 31.08.2023 BY
ALLOWING THIS PETITION.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Prashanth U.T., learned counsel for the revision
petitioner and Sri S. Kasinagalingam, learned counsel for the
respondent.
2. Petitioner is the accused in C.C.No.3703/2019, on
the file Small Causes and ACMM., at Bengaluru, who has been
convicted for the offence under Section 138 of the Negotiable
Instruments Act, confirmed in Crl.A.No.494/2022, on the file of
LX Additional City Civil and Sessions Judge, Bengaluru.
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3. Facts in brief which are utmost necessary for
disposal of the present revision petition are as under:
3.1. A private complaint under Section 200 of Code of
Criminal Procedure came to be lodged by the complainant
against the accused alleging the commission of the offence
punishable under Section 138 of the Negotiable Instruments
Act by contending that accused and complainant are well
acquainted to each other and accused borrowed sum of
Rs.7,00,000/- in the second week of October 2018 with a
promise to repay the same within a period of six months.
3.2. Towards discharge of the said loan amount, Cheque
bearing No.527327, dated 14.04.2019 in a sum of
Rs.7,00,000/- was issued by the accused drawn on Bank of
India, Basaveshwaranagara Branch, Bengaluru which on
presentation came to be dishonoured with an endorsement
“Funds Insufficient”.
3.3. A statutory notice dated 16.05.2019 was issued
calling upon the accused to make payment covered under the
cheque. The same was sent through registered post
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acknowledgement due. Despite the service of the said notice on
03.06.2019 there was no compliance to the callings of notice
nor there was any reply. Therefore, the complainant sought for
necessary action against the accused.
4. Learned Trial Magistrate after completing the
necessary formalities summoned the accused and recorded
plea. Accused pleaded not guilty therefore trial was held.
5. In order to prove the case of the complainant, he
got examined himself as P.W.1 and placed on record nine
documents which are exhibited and marked as Ex.P.1 to Ex.P.9,
comprising of dishonored cheque, bank endorsement, copy of
the legal notice, postal receipts, postal acknowledgment, letter
addressed to post office, track consignment report and
statement of account.
6. As against the material evidence placed on record
by the complainant, accused got herself examined as D.W.1
and one witness E.Maheshwara as D.W.2.
7. Learned Trial Magistrate after recording the
evidence of the parties, on cumulative analysis of the material
on record noted that the oral evidence of D.W.1 and D.W.2 was
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not sufficient enough to revert the presumption available to the
complainant under Section 139 of the Negotiable Instruments
Act and therefore convicted the accused and sentenced the
accused to pay sum of Rs.8,05,000/- as the fine amount, of
which sum of Rs.8,00,000/- was ordered to be paid as
compensation and balance of Rs.5,000/- towards the defraying
expenses of the State as against the cheque amount of
Rs.7,00,000/-.
8. Being aggrieved by the same, accused filed an
appeal before the District Court in Crl.A.No.494/2022.
9. Learned Judge in the First Appellate Court after
securing the records, heard the arguments of the parties in
detail and on re-appreciation of the material evidence on
record, dismissed the appeal of the accused by considered
judgment dated 31.08.2023.
10. Being further aggrieved by the same, accused is
before this court.
11. Sri Prashant U.T., learned counsel for the revision
petitioner reiterating the grounds urged in the revision petition
would contend that the transaction between the complainant
and accused is only in a sum of Rs.1,00,000/- being borrowed
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by the accused and in that regard a cheque was issued by the
accused who is working as a school teacher as security which
has been misused by the complainant by filling up sum of
Rs.7,00,000/- in the cheque.
12. Therefore, the very cheque itself is not valid in view
of Section 20 of the Negotiable Instruments Act, which has not
been considered by both the Courts in right perspective and
wrongly convicted the accused resulting in miscarriage of
justice and thus, sought for allowing the revision of petition.
13. In support of his contentions learned counsel for the
revision petitioner has placed reliance on the judgment of the
Co-ordinate Bench of this Court in the case of K. Yashoda vs.
K. Venkatesh in Crl.A.No.2792/2013 and decision rendered
by the Hon’ble Apex Court in the case of Basalingappa vs.
Mudibasappa, reported in (2019) 5 SCC 418 and another
judgment in the case of Murugan vs M.K. Karunagaran, in
SLP No.7618/2023 and yet another judgment of the Hon’ble
Apex Court in the case of Mandvi Cooperative Bank Limited
vs Nimesh B. Thakore, reported in (2010) SCC 83 and lastly
Rajaram vs Maruthachalam, reported in (2023) 16 SCC
125.
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14. Per contra, Sri S. Kasinagalingam, learned counsel
for the respondent supports the impugned judgments.
15. Having heard the arguments of both sides, this
Court perused the material on record meticulously.
16. On such perusal of the material on record, there is
no dispute that Ex.P.1 cheque belongs to accused and signature
of the accused at Ex.P.1(a).
17. According to the accused, the transaction between
the accused and complainant is Rs.1,00,000/- loan amount
obtained by accused from the complainant. In that regard,
Ex.P.1 came to be issued by the accused who is a school
teacher.
18. However, with ill motive, complainant got filled the
blank cheque in a sum of Rs.7,00,000/- and thus, Ex.P.1 did
not carry legally recoverable debt.
19. To substantiate the said contention, oral evidence
of D.W.1 and D.W.2 is relied upon.
20. Learned counsel for the revision petitioner has tried
to justify the stand taken by the accused by referring to Section
20 of the Negotiable Instruments Act. For ready reference said
provision of law is culled out hereunder:
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“20. Inchoate stamped instruments.-Where one
person signs and delivers to another a paper stamped
in accordance with the law relating to negotiable
instruments then in force in India, and either wholly
blank or having written thereon an incomplete
negotiable instrument, he thereby gives prima facie
authority to the holder thereof to make or complete, as
the case may be, upon it a negotiable instrument, for
any amount specified therein and not exceeding the
amount covered by the stamp. The person so signing
shall be liable upon such instrument, in the capacity in
which he signed the same, to any holder in due course
for such amount; provided that no person other than a
holder in due course shall recover from the person
delivering the instrument anything in excess of the
amount intended by him to be paid thereunder.”
21. Sri Prashanth U.T., learned counsel would contend
that learned Trial Judge and learned Judge in the First Appellate
Court did not consider the effect of Section 20 of the Negotiable
Instruments Act insofar as appreciating the defence of the
accused and proceeded to raise the presumption under Section
139 of the Negotiable Instruments Act in a mechanical manner.
22. In that regard, he has placed reliance on the
Judgment of the Co-ordinate Bench of this Court in the case of
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K. Yashoda vs K. Venkatesh in Crl.A.No.2792/2013, dated
25.06.2014.
23. In the said Judgment, learned counsel drew the
attention of this Court to the discussion carried out by the
learned Judge in the Co-ordinate Bench in paragraph number 7
which reads as under:
“7. The complaint averments are also supported
by the evidence of complainant, which discloses that the
accused had borrowed a hand loan of Rs.95,000/- from
the complainant on 06.08.2010 for his needs and
towards the loan amount the accused had issued a post-
dated cheque on 29.12.2010 bearing No.599246 for a
sum of Rs.95,000/- dated 30.12.2010. When the said
cheque was presented for collection through her Bank,
the same came to be dishonoured due to ‘Insufficiency of
Funds’. After issuance of notice to the accused
demanding repayment of said cheque amount, as the
accused has neither paid the cheque amount nor replied
the said notice, thereby the complainant has filed a
complaint before the Court. The said contention has been
denied by accused. As could be seen from the cross-
examination of complainant, the defence of the accused
is that he has taken a loan of Rs.10,000/- from the
complainant and he has given a blank cheque as a
security for the said loan. Subsequently, the complainant
has mis- used the cheque by filling the amount, name
and date and has filed a false case against the accused.
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The defence taken up by accused need not be proved
beyond reasonable doubt and if on the basis of the
materials on record that during the course of cross-
examination of complainant or by means of other
materials on record if the accused is able to show to the
Court that there are circumstances which probabalises
the case of the accused in order to disbelieve the case of
complainant that would suffice so far as accused is
concerned. But, when the transaction is denied and the
cheque amount is disputed, the complainant has to
prove the case beyond reasonable doubt if the
presumption under Section 139 of the N.I. Act is not
available to the complainant. In this particular case, as I
have already narrated the evidence has been led by
complainant as well as the accused. It is the case of
complainant that on 06.08.2010 a hand loan of
Rs.95,000/- was taken by the accused, but, very
peculiarly the complainant has stated that on 29.12.2010
the disputed cheque was given to her. If at all, the
cheque was issued on 29.12.2010, it was very well
within the knowledge of complainant and the accused
that the liability of accused was Rs.95,000/- and what
was the necessity for the accused to give a blank cheque
on that particular day. The complainant has no where
stated in the complaint or during the examination-in-
chief that as on 06.08.2010 itself a blank cheque was
given as a security for repayment of the debt and
thereafter the said cheque was filled up by complainant,
in that event the complainant would have come under
the shelter of Section 20 of the N.I. Act, which envisages
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that if a person gives a blank cheque knowing fully well
that the said instrument is an incomplete negotiable
instrument, the law presumes that a person who has
given the cheque has authorised the holder of the
cheque to fill up the blanks in the cheque. He cannot
take the defence that the cheque was filled up by the
complainant, but the said provision under Section 20 of
the N.I. Act also envisages that the cheque should not be
filled up for any excess amount. Therefore, it goes
without saying that when the accused disputes the
contents of cheque, particularly the amount mentioned in
the said cheque as excessive and mis-used by
complainant, in that context, the presumption under
Section 139 of the N.I. Act cannot be drawn in favour of
complainant, because of the simple reason that the
liability or debt is disputed by accused and it is admitted
by complainant in the course of cross- examination that
a blank cheque was given and actually she has filled up
the contents of said cheque. That being so, whether an
amount of Rs.95,000/- is in excess of the admitted
amount of Rs.10,000/- by the accused or not has to be
clarified by the complainant during the course of
evidence. But, it appears that no effort has been made
by complainant to explain this particular discrepancy
between the parties. It is the clear case of complainant
that on 29.12.2010 the cheque was issued for
Rs.95,000/- and if the cheque was issued for
Rs.95,000/-, where is the question of filling up the
blanks of said cheque. It also creates a serious doubt
that whether cheque was issued for Rs.95,000/- and
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whether there was any debt or liability on the part of the
accused to issue the said cheque in favour of the
complainant and that fact has also not been clarified by
complainant.”
24. Further, he has placed reliance on the judgment of
Basalingappa supra to question the lending capacity of the
complainant. Similar is the principle of law enunciated in the
remaining decisions that have been relied on by the counsel for
the petitioner.
25. Pertinently, all the Negotiable Instruments carry
statutory presumption under Section 118 of the Negotiable
Instruments Act.
26. The general presumptions under Section 118 of the
Negotiable Instruments Act is in respect of all the Negotiable
Instruments. For ready reference Section 118 of the Negotiable
Instruments Act is culled out hereunder:
“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
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accepted, indorsed, negotiated or transferred for
consideration;
(b) as to date — that every negotiable instrument
bearing a date was made or drawn on such date;
(c) as to time of acceptance — that every accepted
bill of exchange was accepted within a reasonable
time after its date and before its maturity;(d)as to
time of transfer –that every transfer of a
negotiable instrument was made before its
maturity;
(e) as to order of indorsements — that the
indorsements appearing upon a negotiable
instrument were made in the order in which they
appear thereon;
(f) as to stamps — that a lost promissory note, bill
of exchange or cheque was duly stamped;
(g) that holder is a holder in due course — that
the holder of a negotiable instrument is a holder in
due course:
Provided that, where the instrument has been
obtained from its lawful owner, or from any person in
lawful custody thereof, by means of an offence or fraud, or
has been obtained from the maker or acceptor thereof by
means of an offence or fraud, or for unlawful consideration,
the burden of proving that the holder is a holder in due
course lies upon him.”
27. If the said presumption itself was sufficient, there
was no necessity for the legislature to carve out a distinct
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statutory presumption in favour of the complainant under
Section 139 of the Negotiable Instruments Act which reads as
under:
“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.”
28. On conjoint reading of Section 118 and Section 139
of Negotiable Instruments Act, one can safely infer that apart
from the presumption that has been available to a complainant
under Section 118 of the Negotiable Instruments Act in respect
of all the Negotiable Instruments (cheque is also a Negotiable
Instruments), the distinct presumption that is available under
Section 139 of the Negotiable Investment Act is that the
cheque is issued by the accused for legally recoverable debt or
other liability. Of-course, both the presumptions are rebuttable
in nature.
29. Therefore, the presumption under Section 139 of
Negotiable Instruments Act is to be raised by the learned Trial
Magistrate as it is a statutory presumption, when foundational
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facts are placed before the Court, which would be sufficient
enough to discharge the initial burden cast on the complainant.
30. In the case on hand, complainant has discharged
such initial burden by deposing before the Court that there was
a transaction between the accused and the complainant
wherein she has borrowed Rs.7,00,000/- and towards
repayment, the cheque in question marked at Ex.P.1 came to
be issued.
31. The transaction between the complainant and
accused is also not in dispute inasmuch as accused has taken
the contention that loan transaction was only to the tune of
Rs.1,00,000/- and a blank cheque has been misused by the
complainant by filling it up in a sum of Rs.7,00,000/-.
32. Thus, learned Trial Magistrate was justified in
raising the initial presumption in favour of the complainant by
resorting to Section 139 of the Negotiable Instruments Act.
33. The principles of law enunciated by the Hon’ble
Apex Court in the case of Rangappa vs. Mohan, reported in
(2010) 11 SCC 441 and Rajesh Jain vs Ajay Singh reported
in (2023) 10 SCC 148 respectively would be squarely
applicable in this regard. So also principles of law in Sanjabij
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Tari vs. Kishore S. Borcar and another reported in 2025
SCC OnLine SC 2069.
34. To rebut such a presumption available to the
complainant in the case on hand, accused got herself examined
as D.W.1 and one witness by name E.Maheshwara as D.W.2.
35. In the cross examination of D.W.1, she admits that
she received the notice and signature found in Ex.P.6 is that of
her signature.
36. Pertinently, she is a school teacher. Her husband is
examined as D.W.2 is an employee in Income Tax Department.
37. She has specifically answered that she has not
taken any action against the complainant against the alleged
misuse of the cheque.
38. In the cross examination of D.W.2 he admits that
complainant is his friend and not a friend to his wife.
39. He specifically admits that there was no difficulty to
send a reply to the legal notice. He also specifically admits that
there is no document to place on record about the borrowing of
Rs.1,00,000/-. But, he has volunteered to say that on mutual
trust the said amount was borrowed from the complainant.
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40. These material evidence placed on record was
considered in a cumulative manner by the Trial Magistrate in
the light of the presumption available to the complainant under
Section 139 of the Negotiable Instruments Act and has
recorded a categorical finding that the material evidence in the
form of oral testimony of D.W.1 and D.W.2 are nothing but
husband and wife would not be sufficient enough to rebut the
presumption available to the complainant.
41. Thus, in the absence of rebuttal evidence and when
no positive action has been taken by the accused for the
alleged misuse of the cheque, the defence is nothing but
illusory and moonshine. Such a defence cannot be permitted to
be allowed as against the strong legal presumption carved out
by the legislature only in respect of a distinct offence under
Section 138 of the Negotiable Instruments Act.
42. Thus, the defence of misuse of the cheque having
been not established by placing cogent evidence on record, the
conviction order passed by the learned Trial Magistrate,
confirmed by the First Appellate Court needs no interference,
that too in the revisional Jurisdiction.
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43. Insofar as lending capacity of the complainant is
concerned, though Basalingappa and other judgments, cited
supra has been pressed into service by the counsel for the
petitioner, in view of the authoritative principles of law laid
down in the case of Rajesh Jain vs Ajay Singh in paragraphs
45 to 61 which reads as under:
“Our analysis
45. It is against the backdrop of the aforestated legal
principles that we proceed to consider if there is any
interference that is called for.
Point (1)
46. The accused has neither replied to the demand
notice nor has led any rebuttal evidence in support of his
case. The case set up by him needs to be drawn from the
suggestions put during the cross-examination and from
his reply given in the statement recorded under Section
313CrPC.
47. It has been suggested to the complainant that the
accused had not borrowed any loan from him. It was
suggested to him that no legal notice had been issued on
dishonour of cheque. It was further suggested that the
complainant has misused a blank cheque — the said
cheque having been obtained from his employee, Gita
Sunar, who also happens to be the sister-in-law of the
accused. It was suggested that Gita Sunar had some
financial transactions with the complainant and towards
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that end, he had received a blank cheque (signed by the
accused) from Gita Sunar and misused it. It is pertinent to
note that the suggestions mentioned above were denied
by the complainant.
48. In her cross-examination, Gita Sunar (examined
on behalf of the complainant as CW 3) has denied the
suggestion that she has misused a blank cheque in
collusion with the complainant. She has also denied the
suggestion that a blank cheque was given to her by the
brother-in-law of the accused.
49. In the statement recorded under Section 313CrPC,
the first incriminating circumstance put to the accused
was as follows:
“It has come in evidence against you that you
along with your wife, Jyoti visited the plaintiff an
Orthopaedic Surgeon on 1-3-2014, and availed
friendly loan from plaintiff from time to time through
sister of Jyoti, namely, Gita Sunar working there, on
the plea of need for family requirements, and
promised to pay up the “interest moneys as also the
entire principal amounts, what do you have to say
about this?”
He responded to said suggestion/question as follows:
“I had taken some money from the plaintiff.
I have taken Rupees twenty lakhs from the plaintiff.”
(emphasis supplied)
50. When it was put to him that he has reneged on his
promise to pay on several occasions and sought to avoid
the complainant by changing his telephone number, the
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accused denies that he had changed his number but
however, admits that he could not pay the entire sum at
one go. He further admits that he did pay some interest
but could not pay the remaining sum since the
complainant would increase the outstanding amount every
month by one lakh rupees and had been demanding
higher amount. As regards the circumstance of return of
the cheque, the legal notice and non-reply to the demand
notice, he admits of having received the demand notice.
He states that he had no knowledge about the dishonour
of his cheque since his cheque book and bank passbook
were kept in his sister-in-law’s house.
51. On an overall consideration of the record, we find
that the case set up by the accused is thoroughly riddled
with contradictions. It is apparent on the face of the
record that there is not the slightest of credibility
perceivable in the defence set up by the accused.
52. In his Section 313CrPC statements, he admits of
having taken a loan of Rs 20 lakhs and having repaid
some interest but in the cross-examination of the
complainant, a suggestion is made that the accused had
no financial dealings with the complainant. Whereas in his
Section 313CrPC statement, the accused states that his
cheque book and passbook is kept in his sister-in-law’s
house, yet, in the cross-examination of Gita Sunar, the
accused’s sister-in-law, no suggestion is made to that
effect. In fact, she has plainly denied that any blank
cheque was given to her by her brother-in-law. We find it
highly unnatural to presume that the accused would leave
his signed cheque leaves and passbook in his sister-in-
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law’s house. Even if he did, there is no reason(s) or
motive attributed on the part of his sister-in-law, for her
to collude along with the complainant. The accused has
also not explained as to why he has not set up his defence
at the earliest point, that is, at the stage of receiving the
demand notice, even though he admits having received
the demand notice in his Section 313CrPC statement, yet
he makes a suggestion to the complainant in his cross-
examination that no legal notice had been issued. The
theory of “blank cheque” being misused has been
suggested, only to be denied by both, the complainant
and Gita Sunar, CW 3. No action has been taken by way
of registering a police complaint in order to prosecute the
alleged illegal conduct of his blank cheque having been
misused by CW 3.
53. Nothing significant has been elicited in the cross-
examination of the complainant to raise any suspicion in
the case set up by the complainant. Other than some
minor inconsistencies, the case of the complainant has
been consistent throughout as can be noticed from a
perusal of the complainant, demand notice and affidavit
evidence. In fact, the signature on the cheque having not
been disputed, and the presumption under Sections 118
and 139 having taken effect, the complainant’s case stood
satisfied every ingredient necessary for sustaining a
conviction under Section 138. The case of the defence was
limited only to the issue as to whether the cheque had
been issued in discharge of a debt/liability. The accused
having miserably failed to discharge his evidential burden,
that fact will have to be taken to be proved by force of the
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presumption, without requiring anything more from the
complainant.
54. As rightly contended by the appellant, there is a
fundamental flaw in the way both the courts below have
proceeded to appreciate the evidence on record. Once the
presumption under Section 139 was given effect to, the
courts ought to have proceeded on the premise that the
cheque was, indeed, issued in discharge of a debt/liability.
The entire focus would then necessarily have to shift on
the case set up by the accused, since the activation of the
presumption has the effect of shifting the evidential
burden on the accused. The nature of inquiry would then
be to see whether the accused has discharged his onus of
rebutting the presumption. If he fails to do so, the court
can straightaway proceed to convict him, subject to
satisfaction of the other ingredients of Section 138. If the
court finds that the evidential burden placed on the
accused has been discharged, the complainant would be
expected to prove the said fact independently, without
taking aid of the presumption. The court would then take
an overall view based on the evidence on record and
decide accordingly.
55. At the stage when the courts concluded that the
signature had been admitted, the court ought to have
inquired into either of the two questions (depending on
the method in which the accused has chosen to rebut the
presumption) : Has the accused led any defence evidence
to prove and conclusively establish that there existed no
debt/liability at the time of issuance of cheque? In the
absence of rebuttal evidence being led the inquiry would
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entail : Has the accused proved the non-existence of
debt/liability by a preponderance of probabilities by
referring to the “particular circumstances of the case”?
56. The perversity in the approach of the trial court is
noticeable from the way it proceeded to frame a question
at trial. According to the trial court, the question to be
decided was “whether a legally valid and enforceable debt
existed qua the complainant and the cheque in question
(Ext. CW I/A) was issued in discharge of said
liability/debt”. When the initial framing of the question
itself being erroneous, one cannot expect the outcome to
be right. The onus instead of being fixed on the accused
has been fixed on the complainant. Lack of proper
understanding of the nature of the presumption in Section
139 and its effect has resulted in an erroneous order
being passed.
57. Einstein had famously said:
“If I had an hour to solve a problem, I’d spend 55
minutes thinking about the problem and 5 minutes
thinking about solutions.”
Exaggerated as it may sound, he is believed to have
suggested that quality of the solution one generates is
directly proportionate to one’s ability to identify the
problem. A well-defined problem often contains its own
solution within it.
58. Drawing from Einstein’s quote, if the issue had
been properly framed after careful thought and application
of judicial mind, and the onus correctly fixed, perhaps, the
outcome at trial would have been very different and this
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litigation might not have travelled all the way up to this
Court.
59. Coming to the finding of the High Court, we find
again, there has been fundamental error in the approach
with which the High Court has proceeded to consider the
evidence on record. In para 6 of the impugned order
[Rajesh Jain v. Ajay Singh, 2022 SCC OnLine P&H 4244] ,
the High Court finds that the complainant has proved the
issuance of cheque, which means that the presumption
would come into immediate effect. In para 13, it rightly
observes that the burden is on the accused to rebut such
presumption. In the very next paragraph, it finds that the
accused has rebutted the presumption by putting
questions to the complainant and explaining the
circumstances under Section 313CrPC.
60. There is no elucidation of material
circumstances/basis on which the Court reached such
conclusion. It notes the allegation made in the complaint
that the complainant had given the loan on 1-3-2014 and
on several dates thereafter. Based on this averment, the
High Court [Rajesh Jain v. Ajay Singh, 2022 SCC OnLine
P&H 4244] rather shockingly concludes that : (Rajesh Jain
case [Rajesh Jain v. Ajay Singh, 2022 SCC OnLine P&H
4244] , SCC OnLine P&H para 14)
“14. … If the complainant had given loans on various
dates, he must have maintained some document qua that,
because it was not a one-time loan but loan along with
interest accrued on the principal, which made the amount
to Rs 6,95,204.”
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Therefore, according to the High Court, “the burden was
primarily on the complainant to prove the debt amount”.
61. The fundamental error in the approach lies in the
fact that the High Court has questioned the want of
evidence on the part of the complainant in order to
support his allegation of having extended loan to the
accused, when it ought to have instead concerned itself
with the case set up by the accused and whether he had
discharged his evidential burden by proving that there
existed no debt/liability at the time of issuance of
cheque.”
44. Again in the case of Sanjabij Tari supra wherein, it
has been held as under:
“15. In the present case, the cheque in question has
admittedly been signed by respondent No. 1-accused.
This court is of the view that once the execution of the
cheque is admitted, the presumption under section 118
of the Negotiable Instruments Act, that the cheque in
question was drawn for consideration and the
presumption under section 139 of the Negotiable
Instruments Act, that the holder of the cheque received
the said cheque in discharge of a legally enforceable
debt or liability arise against the accused. It is pertinent
to mention that observations to the contrary by a two-
judge Bench in Krishna Janardhan Bhat v. Dattatraya
G. Hegde [(2008) 141 Comp Cas 665 (SC); (2008) 4
SCC 54; (2008) 2 SCC (Cri) 166; 2008 SCC OnLine SC
106.] have been set aside by a three-judge Bench in
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Rangappa v. Sri Mohan [(2010) 11 SCC 441; (2010) 4
SCC (Civ) 477; (2011) 1 SCC (Cri) 184; 2010 SCC
OnLine SC 583.]
16. This court is further of the view that by creating
this presumption, the law reinforces the reliability of
cheques as a mode of payment in commercial
transactions.
17. Needless to mention that the presumption
contemplated under section 139 of the Negotiable
Instruments Act, is a rebuttable presumption. However,
the initial onus of proving that the cheque is not in
discharge of any debt or other liability is on the
accused/drawer of the cheque (see : Bir
Singh v. Mukesh Kumar [(2019) 5 Comp Cas-OL 560
(SC); (2019) 4 SCC 197; (2019) 2 SCC (Cri) 40;
(2019) 2 SCC (Civ) 309; 2019 SCC OnLine SC 138.] .
18. The judgment of this court in APS Forex Services P.
Ltd. v. Shakti International Fashion Linkers [(2020) 12
SCC 724; (2020) 4 SCC (Cri) 505; 2020 SCC OnLine SC
193.] relied upon by learned counsel for respondent No.
1-accused only says that the presumption under section
139 of the Negotiable Instruments Act is rebuttable and
when the same is rebutted, the onus would shift back
to the complainant to prove his financial capacity, more
particularly, when it is a case of giving loan by cash.
This judgment nowhere states, as was sought to be
contended by learned counsel for respondent No. 1-
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accused, that in cases of dishonour of cheques, in lieu
of cash loans, the presumption under section 139 of the
Negotiable Instruments Act does not arise.
Approach of some courts below to not give effect to the
presumptions under sections 118 and 139 of the
Negotiable Instruments Act, is contrary to mandate of
Parliament
21. This court also takes judicial notice of the fact that
some district courts and some High Courts are not
giving effect to the presumptions incorporated in
sections 118 and 139 of the Negotiable Instruments
Act, and are treating the proceedings under the
Negotiable Instruments Act, as another civil recovery
proceedings and are directing the complainant to prove
the antecedent debt or liability. This court is of the view
that such an approach is not only prolonging the trial
but is also contrary to the mandate of Parliament,
namely, that the drawer and the bank must honour the
cheque, otherwise, trust in cheques would be
irreparably damaged.
No documents and/or evidence led with regard to the
financial incapacity of the appellant.
22. It is pertinent to mention that in the present case,
respondent No. 1- accused has filed no documents
and/or examined any independent witness or led any
evidence with regard to the financial incapacity of the
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appellant- complainant to advance the loans in
question. For instance, this court in Rajaram v.
Maruthachalam [(2023) 16 SCC 125] has held that the
presumptions under sections 118 and 139 of the
Negotiable Instruments Act, can be rebutted by the
accused examining the Income-tax Officer and bank
officials of the complainant/drawee.
When the evidence of PW-1 is read in its entirety, it
cannot be said that the appellant-complainant had no
wherewithal to advance loan.
27. It is well settled that in exercise of revisional
jurisdiction, the High Court does not, in the absence of
perversity, upset concurrent factual findings (see : Bir
Singh v. Mukesh Kumar [(2019) 4 SCC 197]). This
court is of the view that it is not for the revisional court
to re-analyse and re-interpret the evidence on record.
As held by this court in Southern Sales and Services v.
Sauermilch Design and Handels GmbH [(2008) 14 SCC
457], it is a well-established principle of law that the
revisional court will not interfere, even if a wrong order
is passed by a court having jurisdiction, in the absence
of a jurisdictional error.”
45. In view of authoritative principles of law laid down
by Apex Court in Rajesh Jain and Sarjabij Tari decisions relied
on by accused is of no avail in accepting his defence.
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46. Thus, in the background of above legal paragraph,
viewed from any angle, this Court does not find any grounds
whatsoever much less good grounds to interfere with the order
of the learned Trial Magistrate, confirmed by the First Appellate
Court.
47. Accordingly, the following:
ORDER
Criminal Revision Petition is dismissed.
Sd/-
(V SRISHANANDA)
JUDGE
MR, List No.: 1 Sl No.: 7
