Bangalore District Court
Sunitha vs Hanna Abraham, Since Deceased, Rep. By … on 5 May, 2026
KABC0A0020742024
IN THE COURT OF LXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH.74)
PRESENT:
Smt. Anitha N.P., B.A.L., L.L.M.,
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
Dated this the 05th day of May 2026
Crl. Appeal. No.25224/2024
Appellants/ Mrs. Sunitha,
Accused:- Aged about 48 years,
W/o: Mr. Nagaraju,
Old Ananad Kumar Office (BJP),
Opp. Mahesh Township,
Near Goldwinner Oil Godown,
Billeshivale, Bengaluru 560077.
(By Sri. Pradeep Kumar R.H. - Adv.,)
V/s
Respondents/ Mrs. Hanna Abraham,
Complainant: W/o: Mr. Abraham Shankar,
Since Deceased,
Rep. by her legal heir,
Sri. Abraham Shankar
Aged about 51 years,
S/o: late Mallikarjunappa,
R/at No.89/90, Doddagubbi Road,
2 Crl.Appeal No.25224/2024
3rd Cross, Attina Township,
B Hanumanth Nagar, Billashivale,
Dr. Shivarama Karantha Nagar,
Bengaluru 560077.
By M.C.Sudha - Adv.,)
JUDGMENT
This is an Appeal filed by Accused under Section
374(3)(a) of Cr.P.C., being aggrieved by the Judgment
dated 13.05.2024 passed in C.C. No.55040/2019 on the
file of XXXIV ACMM, Mayohall Unit, Bengaluru,
convicting her for an offence punishable under Section
138 of the Negotiable Instruments Act [hereinafter
referred to as ‘NI Act‘, for brevity] and sentencing her to
pay fine of Rs.1,95,900/- and in default of payment of
fine, to undergo simple imprisonment for 3 months. Out
of the fine amount, a sum of Rs.1,92,900/- is directed to
be paid to the respondent/complainant as compensation
and remaining Rs.3,000/- is ordered to be remitted
towards State expenses.
2. For the sake of convenience the parties
hereinafter will be referred to with their ranking assigned
before the trial court. The appellant is the accused and
the respondent is the complainant before the trial court.
3 Crl.Appeal No.25224/2024
3. The facts of the case:-
The complainant was running a Tea Stall and
accused was introduced as customer and developed good
relation. The accused in the month of October 2017
requested the complainant for Rs.1,50,000/- as hand
loan for shifting her house and also for changing school
of her daughter. The complainant paid Rs.1,50,000/- out
of her savings. The accused failed to return the amount.
After repeated requests the accused issued post dated
cheque bearing No. 013588 dated 19.12.2018 for a sum
of Rs.1,50,000/-. The complainant presented the said
cheque before her banker and the same returned unpaid
with endorsement ‘insufficient funds’ vide bank memo
dated 20.12.2018. When the same informed to the
accused and asked for return of the amount the accused
created a scene by stating that the complainant is
threatening the accused and used abusive words. Again
the complainant re-presented the said cheque on
31.01.2019 and again the same returned as insufficient
funds vide memo dated 01.02.2019. Hence, the
complainant issued legal notice on 27.02.2019. The said
notice returned as duly served on accused on
01.03.2019. Inspite of service of notice the accused not
paid the amount nor given any reply. Thereby, the
4 Crl.Appeal No.25224/2024Appellant/accused has committed the offence
punishable under Sec.138 of NI Act. Thereafter the
Complainant approached the Trial Court for appropriate
legal action against the Accused.
4. Pursuant to summons the Accused entered
appearance through his Counsel before the Trial Court.
The substance of the accusation was read over and
explained to the Accused in the language known to her.
The Accused pleaded not guilty and claimed to be tried.
That in view of death of complainant during the
pendency of the proceedings the Complainant’s husband
got examined as PW.2 and got marked Ex.P.1 to Ex.P.6
documents and closed his side. The Accused not lead
evidence.
5. The trial court after hearing the counsel for
Complainant and accused, convicted the Accused for the
offence punishable U/Sec.138 of NI Act vide Judgment
dtd 13.05.2024
6. Feeling aggrieved by the said judgment of
conviction, the Accused is in appeal on the following
grounds:
5 Crl.Appeal No.25224/2024
1. The impugned judgment is not sustainable
either in law or on facts. The trial court not
not appreciated the arguments of the
appellant that complainant is claiming
falsely. The accused rebutted the
presumption available in favour of the
complainant.
2. The learned trial court not appreciated that
the complainant has not produced any
document, nor examined any witnesses to
prove the how cheque of accused went into
the custody of complainant. The cheque in
question is in respect of bank loan purpose
as the complainant assured to get the hand
loan. Complainant has no financial capacity
and the same is admitted by her and
accused has not taken any loan from the
complainant.
3. The trial court not properly appreciated the
entire evidence and not applied the correct
principles of law, the impugned judgment is
contradictory. Under the above grounds the
Appellant sought for setting aside the
impugned judgment by allowing the appeal.
7. After service of notice, the Respondent appeared
through his counsel. Records secured from trial court.
6 Crl.Appeal No.25224/2024
8. Heard both sides arguments.
9. The counsel for respondent has relied upon
following decisions:
1. Crl.Rev.Pet.No.676/2015 (Smt. Zubeida Vs.
The Udupi Taluk Protestant Christian Credit Co-op.
Society Ltd.,
2. 2022 (2) AKR 231 (Inthiyaz Vs. K.Sundar)
10. Perused the evidence, documents on record
and also impugned Judgment of conviction passed by
the Trial Court. I have carefully gone through the
decisions relied on by the respondent.
11. On re-appreciation of the evidence, documents
on record, the following points would emerge for the
consideration of this court.
1. Whether the Appellant proves that the
cheque in question was not issued
towards any legally recoverable debt?
2. Whether the Judgment of conviction
passed by the Trial Court calls for
interference by the hands of this
court?
3. What Order?
7 Crl.Appeal No.25224/2024
11. My finding on the above points are as under:
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : As per final order for
the following:
REASONS
12. POINT NOs.1 and 2:-
Since the above two points are interlinked, in order
to avoid repetition of facts the above points have been
taken up together for consideration.
13. Before re-appreciating the evidence on record, it
is necessary to refer the decision of the Hon’ble Apex
Court reported in 2019 (3) KCCR 2473 (SC)
(Basalingappa V/s Mudibasappa), which is relied on by
the accused wherein the Hon’ble Apex Court while
considering several earlier rulings on the offence
U/Sec.138 of NI Act and also on the presumption
U/Sec.118 and 139 of NI Act, at Para 23 was pleased to
observe as follows:
23. We having noticed the ratio laid down
by this Court in above cases on Sections 118(a)
and 139, we now summarise the principles
enumerated by this Court in following manner:-
8 Crl.Appeal No.25224/2024
(i) Once the execution of cheque is
admitted Section 139 of the Act mandates a
presumption that the cheque was for the
discharge of any debt or other liability.
(ii) The presumption under Section 139 is
a rebuttable presumption and the onus is on the
Accused to raise the probable defence. The
standard of proof for rebutting the presumption
is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open
for the Accused to rely on evidence led by him
or Accused can also rely on the materials
submitted by the Complainant in order to raise
a probable defence. Inference of preponderance
of probabilities can be drawn not only from the
materials brought on record by the parties but
also by reference to the circumstances upon
which they rely.
(iv) That it is not necessary for the Accused to
come in the witness box in support of his
defence, Sec.139 imposed an evidentiary
burden and not a persuasive burden.
(v) It is not necessary for the Accused to
come in the witness box to support his defence.
14. In another ruling reported in AIR 2010 SC
1898 (Rangappa V/s Mohan),which is relied on by
accused the Honble Apex court has observed as
under:-
“Existence of legally recoverable debt or
liability- The presumption mandated by Section
139 of the Act does indeed include the
existence of a legally enforceable debt or
9 Crl.Appeal No.25224/2024liability. This is of course in the nature of a
rebuttable presumption and it is open to the
Accused to raise a defence wherein the
existence of a legally enforceable debt or
liability can be contested. However, there can
be no doubt that there is an initial presumption
which favours the Complainant. Section 139 of
the Act is an example of a reverse onus clause
that has been included in furtherance of the
legislative objective of improving the credibility
of negotiable instruments. While Section 138 of
the Act specifies a strong criminal remedy in
relation to the dishonour of cheques, the
rebuttable presumption under Section 139, is a
device to prevent undue delay in the course of
litigation. However, it must be remembered that
the offence made punishable by Section 138
can be better described as a regulatory offence
since the bouncing of a cheque is largely in the
nature of a civil wrong whose impact is usually
confined to the private parties involved in
commercial transactions. In such a scenario,
the test of proportionality should guide the
construction and interpretation of reverse onus
clauses and the Accused/defendant cannot be
expected to discharge an unduly high standard
or proof. In the absence of compelling
justifications, reverse onus clauses usually
impose an evidentiary burden and not a
persuasive burden. Keeping this in view, it is a
settled position that when an Accused has to
rebut the presumption under Section 139, the
standard of proof for doing so is that of
‘preponderance of probabilities’. Therefore, if
the Accused is able to raise a probable defence
which creates doubts about the existence of a
legally enforceable debt or liability, the
prosecution can fail. The Accused can rely on
the materials submitted by the Complainant
and it is conceivable that in some cases the
Accused may not need to adduce evidence of
his/her own.”
10 Crl.Appeal No.25224/2024
15. Keeping in view the broad principles laid down
by the Hon’ble Apex Court, let me re-appreciate the
evidence and documents on record.
16. The definite case of the
Complainant/Respondent is that she is running Tea
Stall and accused was introduced as customer and
developed good relation. The accused in the month of
October 2017 requested the complainant for
Rs.1,50,000/- as hand loan for shifting her house and
also for changing school of her daughter. The
complainant paid Rs.1,50,000/- out of her savings. The
accused failed to return the amount. After repeated
requests the accused issued post dated cheque bearing
No. 013588 dated 19.12.2018 for a sum of
Rs.1,50,000/-. The complainant presented the said
cheque before her banker and the same returned unpaid
with endorsement ‘insufficient funds’ vide bank memo
dated 20.12.2018. Again the complainant re-presented
the said cheque on 31.01.2019 and again the same
returned as insufficient funds vide memo dated
01.02.2019. Hence, the complainant issued legal notice
on 27.02.2019. The said notice returned as duly served
11 Crl.Appeal No.25224/2024
on accused on 01.03.2019. Inspite of service of notice
the accused not paid the amount nor given any reply.
17. The complainant in order to prove her case
initially got examined herself as P.W.1 and got marked in
all 6 documents as per Ex.P1 to Ex.P6. Subsequently in
view of the death of complainant her husband/LR got
examined himself as PW2 and he has identified Ex.P1 to
6 and closed his side evidence. The accused except
cross-examining complainant not chosen to lead
evidence and not produced any document.
18. Let me go through the documentary evidence
placed by the Complainant in this case. Ex.P.1 is
original cheque dated 19.12.2018. Ex.P2 & 3 are bank
endorsement dated 20.12.2018 & 01.02.2019. Ex.P4 is
copy of notice dated 27.02.2023. Ex.P5 is postal receipt
dated 28.02.2019. Ex.P6 is postal acknowledgment.
19. Now let us go through the cross-examination of
PW-2/LR. This P.W.2 in his cross-examination deposed
that deceased complainant is his wife and he is having 3
children. He knows accused since 2010. His wife was
running Tea shop. He denied that his wife used to obtain
12 Crl.Appeal No.25224/2024
cheque, pass book, PAN card, Aadhar card from the
people who were visiting the Church stating that she will
get loan from bank to them. His wife informed about the
cheque given by the accused to her. He denied that his
wife was regularly visting Church and by telling people
that she will get loan from them she was receiving blank
cheques.
20. From the above evidence of complainant it is
clear that the cheque marked at Ex.P1 is pertains to the
account of accused and the signature there on is that of
accused. The accused no where denied Ex.P1.under the
circumstances there is an initial presumption in favor of
the complainant and the burden is on the accused to
rebut the said presumption by taking proper defence on
the principles of preponderance of probabilities.
21. With this factual matrix, firstly the court has to
appreciate whether there are materials to ascertain the
existence of legally enforceable debt. At the outset, the
Court has to appreciate whether Section 138 of The Act
is made out. When the cheque is produced before the
Court and when it came to be dishonored for funds
insufficient or for any other reason and when the legal
13 Crl.Appeal No.25224/2024
notice was issued within the statutory period then the
presumption available under Sections 118 & 139 of The
Act is made out in favour of the complainant. The
provisions of Section 118 of The Act are separated from
the general rule applicable to the contracts and it
provides presumption in favour of the party. The said
presumptions are that: unless the contrary is proved the
Court has to presume that the consideration had passed
between the parties as enumerated under Section 118 of
NI Act. Likewise, unless the contrary is established
Section 139 of the NI Act clearly establishes that the
holder of the cheque had received the same towards
discharge of the legally enforceable debt either towards
whole or partial liability. The said presumptions have to
be read conjointly in order to ascertain whether the
ingredients are made out. Further, the said
presumptions are rebuttable and the same has to be
appreciated with the factual aspects of the case. The
impugned cheque at Ex.P1 is drawn during the period of
its validity and was accordingly presented to the bank
and after its dishonor the notice was also issued and
later on after completing all the statutory bound
obligations the complaint came to be filed. This clearly
indicates that initial presumption is drawn in favour of
14 Crl.Appeal No.25224/2024
the complainant. It is also relevant to note that the said
presumption is rebuttable one and as such the defence
of the accused has to be appreciated in order to
ascertain whether the presumption which is drawn
initially in favour of the complainant has been
successfully rebutted.
22. The law is well settled that the accused need
not enter the witness box to rebut initial presumption. At
the same time, the defense which is taken up by the
accused is to be appreciated so as to ascertain whether
the same was probable or not. In the case on hand the
accused has come up with specific defence that the wife
of PW2 i.e., deceased complainant was regularly visiting
the Church and during Church time she assured the
accused that she will get financial assistance to her and
by saying so has collected the Ex.P1 Cheque from the
accused and thereafter filed this false complaint.
However when the same was suggested to PW2 he has
categorically denied the said suggestion.
23. First and foremost the accused has not placed
any material to establish that the deceased complainant
was regularly visiting the Church. It is also necessary to
note that the accused suggested to PW2 that the
15 Crl.Appeal No.25224/2024
deceased complainant used to receive the blank cheques
and even from the accused she received blank cheque
and other document. However in this regard except bald
suggestion to PW2 nothing is placed on record to
establish that the deceased complainant collected blank
cheque from the accused along with other documents.
24. Though the accused taken specific contention
that so as to get bank loan sanctioned the complainant
collected cheque from the accused and she assured that
she will grant hand loan to accused however in this
regard also the accused has not elicited anything from
the mouth of PW2. Absolutely there is nothing on record
to establish that Ex.P1 was issued by the accused to the
complainant only for the purpose of borrowing loan from
the bank and thereby complainant assured to get hand
loan to the accused.
25. PW2 has specifically deposed that it is to purchase
land the accused borrowed loan and said fact was
informed to him by his wife. When the witnesses deposed
that the loan was borrowed for purchasing land there is
no further suggestion by the accused denying the said
fact. The accused also taken defence that the
16 Crl.Appeal No.25224/2024
complainant on obtaining documents from several
persons was used to assist in getting loan from the bank
in this regard the accused has not chosen to cross-
examine any of the said person and has obtained loan
from the bank through the assistance of complainant.
26. Accused taken defence that the complainant
herself has filled the cheque recitals and misused the
cheque. However once again it is vital to note that the
accused except taking said contention not placed any
material to establish that the complainant has misused
the cheque.
27. The court is well aware of the cardinal principle
of law, that the burden will be upon the prosecution to
prove the case beyond reasonable doubt. However, a
duty is also casted upon the Accused to successfully
rebut the presumption which is raised by the
complainant. Admittedly, the complainant has
discharged the initial burden as already discussed supra
and as such the onus will be shifted upon the accused to
rebut the same.
28. As discussed supra, the accused herself admits
that, Ex.P.1 cheque is pertains to his account and the
17 Crl.Appeal No.25224/2024
signature on said cheque is her signature. Hence, there
is presumption in favour of complainant. The accused
utterly failed to prove the defence of receiving cheque for
getting loan from the bank. In respect of quantum of loan
amount to be borrowed, from which bank the proposed
loan was to be borrowed were not at all placed on record
by the accused. With respect to the presumption and
also the defense of misuse of cheque taken up by the
Appellant the court has relied upon the judgment of the
Hon’ble Apex Court reported in (2018)8 SCC 165
(Kishan Rao V/s Shankaregowda) wherein it has been
held thus:
Section 139 of the Act, 1881 provides for
drawing the presumption in favour of holder.
Section 139 is to the following effect:
“139.Presumption in favour of holder.-It shall
be presumed, unless the contrary is proved, that
the holder of a cheque received the cheque of the
nature referred to in section 138 for the
discharge, in whole or in part, of any debt or
other liability.”
18. This Court in Kumar Exports vs. Sharma
Carpets, 2009 (2) SCC 513, had considered the
provisions of Negotiable Instruments Act as
Referring to 139, this Section well Evidence Court
laid following in paragraphs 14, 15, 18 and 19:
Section 139 of the Act provides that it shall
be presumed, unless the contrary is proved, that
the holder of a cheque received the cheque of the
nature referred to in Section 138 for the
discharge, in whole or in part, of any debt or
other liability.
18 Crl.Appeal No.25224/2024
15. Presumptions are devices by use of which
the courts are enabled and entitled to pronounce
on an issue notwithstanding that there is no
evidence or insufficient evidence. Under the
Evidence Act all presumptions must come under
one or the other class of the three classes
mentioned in the Act, namely, (1) “may presume”
(rebuttable), (2) “shall presume” (rebuttable), and
(3) “conclusive presumptions” (irrebuttable). The
term “presumption” is used to designate an
inference, affirmative or disaffirmative of the
existence of a fact, conveniently called the
“presumed fact” drawn by a judicial tribunal, by a
process of probable reasoning from some matter
of fact, either judicially noticed or admitted or
established by legal evidence to the satisfaction
of the tribunal. Presumption literally means
“taking as true without examination or proof”.
18. Applying the definition of the word
“proved” in Section 3 of the Evidence Act to the
provisions of Sections 118 and 139 of the Act, it
becomes evident that in a trial under Section 138
of the Act a presumption will have to be made
that every negotiable instrument was made or
drawn for consideration and that it was executed
for discharge of debt or liability once the
execution of negotiable instrument is either
proved or admitted. As soon as the complainant
discharges the burden to prove that the
instrument, say a note, was executed by the
accused, the rules of presumptions under
Sections 118 and 139 of the Act help him shift
the burden on the accused. The presumptions will
live, exist and survive and shall end only when
the contrary is proved by the accused, that is, the
cheque was not issued for consideration and in
discharge of any debt or liability. A presumption
is not in itself evidence, but only makes a prima
facie case for a party for whose benefit it exists.
19. The use of the phrase “until the contrary
is proved” in Section 118 of the Act and use of
the words “unless the contrary is proved” in
19 Crl.Appeal No.25224/2024
Section 139 of the Act read with definitions of
“may presume” and “shall presume” as given in
Section 4 of the Evidence Act, makes it at once
clear that presumptions to be raised under both
the provisions are rebuttable. When a
presumption is rebuttable, it only points out that
the party on whom lies the duty of going forward
with evidence, on the fact presumed and when
that party has produced evidence fairly and
reasonably tending to show that the real fact is
not as presumed, the purpose of the presumption
is over.”
19. This Court held that the accused may
adduce evidence to rebut the presumption, but
mere denial regarding existence of debt shall not
serve purpose. Following was held in paragraph
20:
“20….The accused may adduce direct
evidence to prove that the note in question was
not supported by consideration and that there
was no debt or liability to be discharged by him.
However, the court need not insist in every case
that the accused should disprove the non-
existence of consideration and debt by leading
direct evidence because the existence of negative
evidence is neither possible nor contemplated. At
the same time, it is clear that bare denial of the
passing of the consideration and existence of
debt, apparently would not serve the purpose of
the accused. Something which is probable has to
be brought on record for getting the burden of
proof shifted to the complainant. To disprove the
presumptions, the accused should bring on record
such facts and circumstances, upon consideration
of which, the court may either believe that the
consideration and debt did not exist or their non-
existence was so probable that a prudent man
would under the circumstances of the case, act
upon the plea that they did not exist…”
20. In the present case, the trial court as well
as the Appellate Court having found that cheque
contained the signatures of the accused and it
20 Crl.Appeal No.25224/2024
was given to the appellant to present in the Bank
of the presumption under Section 139 was rightly
raised which was not rebutted by the accused.
The accused had not led any evidence to rebut
the aforesaid presumption. The accused even did
the not come in the presumption. The accused
even did not come in the witness box to support
his case. In the reply to the notice which was
given by the appellant the accused took the
defence that the cheque was stolen by the
appellant. The said defence was rejected by the
trial court after considering the evidence on
regard with regard to which no contrary view has
also been expressed by the High Court.
21. Another judgment which needs to be
looked into is Rangappa vs. Sri Mohan, 2010 (11)
SCC 441. A three Judge Bench of this Court had
occasion to examine the presumption under
Section 139 of the Act, 1881. This Court in the
aforesaid case has held that in the event the
accused is able to raise a probable defence which
creates doubt with regard to the existence of a
debt or liability, the presumption may fail.
Following was laid down in paragraphs 26 and 27:
“26. In light of these extracts, we are in
agreement with the respondent claimant that the
presumption mandated by Section 139 of the Act
does indeed include the existence of a legally
enforceable debt or liability. To that extent, the
impugned observations in Krishna Janardhan
Bhat, (2008) 4 SCC 54, may not be correct.
However, this does not in any way cast doubt on
the correctness of the decision in that case since
it was based on the specific facts and
circumstances therein. As noted in the citations,
this is of course in the nature of a rebuttable
presumption and it is open to the accused to raise
a defence wherein the existence of a legally
enforceable debt or liability can be contested.
However, there can be no doubt that there is an
initial presumption which favours the
complainant.
21 Crl.Appeal No.25224/2024
27. Section 139 of the Act is an example of a
reverse onus clause that has been included in
furtherance of the legislative objective of
improving the credibility of negotiable
instruments. While Section 138 of the Act
specifies a strong criminal remedy in relation to
the dishonour of cheques, the rebuttable
presumption under Section 139 is a device to
prevent undue delay in the course of litigation.
However, it must be remembered that the offence
made punishable by Section 138 can be better
described as a regulatory offence since the
bouncing of a cheque is largely in the17 nature of
a civil wrong whose impact is usually confined to
the private parties involved in commercial
transactions. In such a scenario, the test of
proportionality should guide the construction and
interpretation of reverse onus clauses and the
defendant-accused cannot be expected to
discharge an unduly high standard or proof.”
22. No evidence was led by the accused. The
defence taken in the reply to the notice that
cheque was stolen having been rejected by the
two courts below, we do not see any basis for the
High court coming to the conclusion that the
accused has been successful in creating doubt in
the mind of the Court with regard to the
existence of the debt or liability. How the
presumption under Section 139 can be rebutted
on the evidence of PW.1, himself has not been
explained by the High court.
29. The sum and substance is that there is a
presumption in favour of holder of cheque in due course.
The accused failed to prove contrary. Lastly the Court
has also appreciated the statement of Accused recorded
under Sec.313 of Cr.P.C. regarding the evidence under
22 Crl.Appeal No.25224/2024
Sec.313 of Cr.P.C., is not a bald formality. In fact, it is an
opportunity rendered to the Accused to explain the
incriminating materials against him. However, the
Accused has only denied but she failed to rebut the
presumption available in favor of complainant. Whether
this Accused has taken any legal action as against the
complainant in respect of misusing of her cheque is not
forthcoming. Under the circumstances, the burden of
proof is successfully established by the complainant and
as such, with respect to the existence of legally
enforceable debt and its presumption, the Court has
relied upon the judgment of Hon’ble Apex Court reported
in (2019) 10 SCC 287 (Uttam Ram V. Devinder Singh
Hudan and another) wherein it has been held as;
18. We find that the approach of the learned Trial
Court and that of the High Court is perverse;
irrational as well as suffers from material illegality
and irregularity, which cannot be sustained in
complaint filed under Section 138 of the Act.
19. A negotiable instrument including a cheque
carries presumption of consideration in terms of
Section 118(a) and under Section 139 of the Act.
Sections 118(a) and 139 read as under:
“118. Presumptions as to negotiable instruments.-
Until the contrary is proved, the following
presumptions shall be made:–
(a) of consideration–that every negotiable
instrument was made or drawn for consideration,
23 Crl.Appeal No.25224/2024and that every such instrument, when it has been
accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for
consideration;….
xxx xxx xxx
139. Presumption in favour of holder.–It shall be
presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the
nature referred to in section 138 for the
discharge, in whole or in part, of any debt or other
liability.”
20. The Trial Court and the High Court proceeded
as if, the appellant is to prove a debt before civil
court wherein, the plaintiff is required to prove
his claim on the basis of evidence to be laid in
support of his claim for the recovery of the
amount due. A dishonour of cheque carries a
statutory presumption of consideration. The
holder of cheque in due course is required to
prove that the cheque was issued by the accused
and that when the same presented, it was not
honoured. Since there is a statutory presumption
of consideration, the burden is on the accused to
rebut the presumption that the cheque was issued
not for any debt or other liability.
21. There is the mandate of presumption of
consideration in terms of the provisions of the
Act. The onus shifts to the accused on proof of
issuance of cheque to rebut the presumption that
the cheque was issued not for discharge of any
debt or liability in terms of Section 138 of the Act
which reads as under:
“138. Dishonour of cheque for insufficiency, etc.,
of funds in the account. — Where any cheque
drawn by a person on an account maintained by
him with a banker for payment of any amount of
money to another person from out of that account
24 Crl.Appeal No.25224/2024for 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….”
22. In Kumar Exports, it was held that mere
denial of existence of debt will not serve any
purpose but accused may adduce evidence to
rebut the presumption. This Court held as under:
“20. The accused in a trial under Section 138 of
the Act has two options. He can either show that
consideration and debt did not exist or that under
the particular circumstances of the case the non-
existence of consideration and debt is so probable
that a prudent man ought to suppose that no
consideration and debt existed. To rebut the
statutory presumptions an accused is not
expected to prove his defence beyond reasonable
doubt as is expected of the complainant in a
criminal trial. The accused may adduce direct
evidence to prove that the note in question was
not supported by consideration and that there
was no debt or liability to be discharged by him.
However, the court need not insist in every case
that the accused should disprove the non-
existence of consideration and debt by leading
direct evidence because the existence of negative
evidence is neither possible nor contemplated. At
the same time, it is clear that bare denial of the
passing of the consideration and existence of
debt, apparently would not serve the purpose of
the accused. Something which is probable has to
be brought on record for getting the burden of
proof shifted to the complainant. To disprove the
presumptions, the accused should bring on record
such facts and circumstances, upon consideration
25 Crl.Appeal No.25224/2024of which, the court may either believe that the
consideration and debt did not exist or their non-
existence was so probable that a prudent man
would under the circumstances of the case, act
upon the plea that they did not exist. Apart from
adducing direct evidence to prove that the note in
question was not supported by consideration or
that he had not incurred any debt or liability, the
accused may also rely upon circumstantial
evidence and if the circumstances so relied upon
are compelling, the burden may likewise shift
again on to the complainant. The accused may
also rely upon presumptions of fact, for instance,
those mentioned in Section 114 of the Evidence
Act to rebut the presumptions arising under
Sections 118 and 139 of the Act.” (emphasis
supplied)
23. In a judgment reported as Kishan Rao v.
Shankargouda6, this Court referring to Kumar
Exports and Rangappa returned the following
findings:
“22. Another judgment which needs to be looked
into is Rangappa v. Sri Mohan [Rangappa v. Sri
Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ)
477 : (2011) 1 SCC (Cri) 184] . A three-Judge
Bench of this Court had occasion to examine the
presumption under Section 139 of the 1881 Act.
This Court in the aforesaid case has held that in
the event the accused is able to raise a probable
defence which creates doubt with regard to the
existence of a debt or liability, the presumption
may fail. Following was laid down in paras 26 and
27: (SCC pp. 453-54) “26. In light of these
extracts, we are in agreement with the respondent
claimant that the presumption mandated by
Section 139 of the Act does indeed include the
existence of a legally enforceable debt or liability.
To that extent, the impugned observations in
Krishna Janardhan Bhat [Krishna Janardhan Bhat
v. Dattatraya G. Hegde, (2008) 4 SCC 54 : (2008) 2
26 Crl.Appeal No.25224/2024SCC (Cri) 166], may not be correct. However, this
does not in any way cast doubt on the correctness
of the decision in that case since it was based on
the specific facts and circumstances therein. As
noted in the citations, this is of course in the
nature of a rebuttable presumption and it is open
to the accused to raise a defence wherein the
existence of a legally enforceable debt or liability
can be contested. However, there can be no doubt
that there is an initial presumption which favours
the complainant.
27. Section 139 of the Act is an example of a
reverse onus clause that has been included in
furtherance of the legislative objective of
improving the credibility of negotiable
instruments. While Section 138 of the Act
specifies a strong criminal remedy in relation to
the dishonour of cheques, the rebuttable
presumption under Section 139 is a device to
prevent undue delay in the course of litigation.
However, it must be remembered that the offence
made punishable by Section 138 can be better
described as a regulatory offence since the
bouncing of a cheque is largely in the nature of a
civil wrong whose impact is usually confined to
the private parties involved in commercial
transactions. In such a scenario, the test of
proportionality should guide the construction and
interpretation of reverse onus clauses and the
defendant-accused cannot be expected to
discharge an unduly high standard of proof.”
24. In a judgment reported as Bir Singh v. Mukesh
Kumar7, this Court held that presumption under
Section 139 of the Act is a presumption of law.
The Court held as under:
“20. Section 139 introduces an exception to the
general rule as to the burden of proof and shifts
the onus on the accused. The presumption under
Section 139 of the Negotiable Instruments Act is a
27 Crl.Appeal No.25224/2024presumption of law, as distinguished from
presumption of facts. Presumptions are rules of
evidence and do not conflict with the
presumption of innocence, which requires the
prosecution to prove the case against the accused
beyond reasonable doubt. The obligation on the
prosecution may be discharged with the help of
presumptions of law and presumptions of fact
unless the accused adduces evidence showing the
reasonable possibility of the non-existence of the
presumed fact as held in Hiten P. Dalal [Hiten P.
Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 :
2001 SCC (Cri) 960] .
xxx xxx xxx
33. A meaningful reading of the provisions of the
Negotiable Instruments Act including, in
particular, Sections 20, 87 and 139, makes it
amply clear that a person who signs a cheque and
makes it over to the payee remains liable unless
he adduces evidence to rebut the presumption
that the cheque had been issued for payment of a
debt or in discharge of a liability. It is immaterial
that the cheque may have been filled in by any
person other than the drawer, if the cheque is
duly signed by the drawer. If the cheque is
otherwise valid, the penal provisions of Section
138 would be attracted.
xxx xxx xxx
36. Even a blank cheque leaf, voluntarily signed
and handed over by the accused, which is towards
some payment, would attract presumption under
Section 139 of the Negotiable Instruments Act, in
the absence of any cogent evidence to show that
the cheque was not issued in discharge of a debt.”
25. In other judgment reported as Rohitbhai
Jivanlal Patel v. State of Gujarat and Another8
this Court held as under:
28 Crl.Appeal No.25224/2024
“18. So far the question of existence of basic
ingredients for drawing of presumption under
Sections 118 and 139 the NI Act is concerned,
apparent it is that the accused- appellant could
not deny his signature on the cheques in question
that had been drawn in favour of the complainant
on a bank account maintained by the accused for
a sum of Rs. 3 lakhs each. The said cheques were
presented to the Bank concerned within the
period of their validity and were returned unpaid
for the reason of either the balance being
insufficient or the account being closed. All the
basic ingredients of Section 138 as also of
Sections 118 and 139 are apparent on the face of
the record. The Trial Court had also consciously
taken note of these facts and had drawn the
requisite presumption. Therefore, it is required to
be presumed that the cheques in question were
drawn for consideration and the holder of the
cheques i.e., the complainant received the same
in discharge of an existing debt. The onus,
therefore, shifts on the accused-appellant to
establish a probable defence so as to rebut such a
presumption.”
xxx xxx xxx
20. On the aspects relating to preponderance of
probabilities, the accused has to bring on record
such facts and such circumstances which may
lead the Court to conclude either that the
consideration did not exist or that its
nonexistence was so probable that a prudent man
would, under the circumstances of the case, act
upon the plea that the consideration did not
exist. This Court has, time and again, emphasized
that though there may not be sufficient negative
evidence which could be brought on record by the
accused to discharge his burden, yet mere denial
would not fulfil the requirements of rebuttal as 8
29 Crl.Appeal No.25224/2024
AIR 2019 SC 1876 envisaged under Section 118
and 139 of the NI Act…..
xxx xxx xxx
32. The result of discussion in the foregoing
paragraphs is that the major considerations on
which the Trial Court chose to proceed clearly
show its fundamental error of approach where,
even after drawing the presumption, it had
proceeded as if the complainant was to prove his
case beyond reasonable doubt. Such being the
fundamental flaw on the part of the Trial Court,
the High Court cannot be said to have acted
illegally or having exceeded its jurisdiction in
reversing the judgment of acquittal. As noticed
hereinabove, in the present matter, the High
Court has conscientiously and carefully taken
into consideration the views of the Trial Court
and after examining the evidence on record as a
whole, found that the findings of the Trial Court
are vitiated by perversity. Hence, interference by
the High Court was inevitable; rather had to be
made for just and proper decision of the matter.”
30. To sum up it is noticed that the Accused has
admitted the impugned cheque at Ex.P1 and also its
issuance is categorically admitted by her, whereas it is
contended that deceased complainant was collecting
cheques on the assurance of getting loans from bank.
However, no evidence is placed on record by accused in
this regard.There is absolutely no explanation that why
she had kept quiet if she had really given the cheque to
deceased complainant only for the purpose of getting
30 Crl.Appeal No.25224/2024
loan from the bank without lodging any complaint before
jurisdictional police about misuse of cheque by the
complainant. In the entire defence of the accused there
is no explanation in this regard. The same shows that
the accused has not taken defence which is certain and
which is probable and as such the Accused has failed to
rebut the presumption. By looking into the same, the
impugned judgment and order of conviction passed by
the Trial Court is apt and correct and the same does not
call for interference of this court. The trial court has
rightly appreciated the oral and documentary evidence in
proper perspective. Accordingly, I answered Point
Nos.1 & 2 in the Negative.
31. Point No.3: In view of the findings on the
above points the appeal filed by the Appellant deserves to
be dismissed. Accordingly, I proceed to pass the
following:-
ORDER
The appeal filed by the Appellant
u/sec.374 (3) (a) of Cr.P.C. is hereby
dismissed with costs.
The Judgment of conviction passed by
the Learned XXXIV ACMM Bengaluru, in
31 Crl.Appeal No.25224/2024CC.No.55040/2019, dtd. 13.05.2024, is
hereby confirmed.
Send back the records with a copy of
this Judgment to the Trial Court.
(Dictated to the Stenographer, typed by her, corrected, signed and
then pronounced by me, in the open court on this the 5th day of
May 2026.)
Digitally signed by
ANITHA
ANITHA NANJANAGUDU
NANJANAGUDU PARASHIVAMURTHY
PARASHIVAMURTHY
Date: 2026.05.16
10:56:46 +0530[Smt. Anitha N.P]
LXXIII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-74).
