Bangalore District Court
M Chandrashekar vs B Krishnappa on 5 April, 2025
KABC010308112019
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 5th day of April, 2025
: PRESENT :
Sri. I. P. Naik
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
Crl.A.No.2113/2019
APPELLANT: Sri. M.Chandrashekar,
S/o.Late. Munishamappa,
Aged 46 years,
Proprietorof
M/s.Gowda Chicken Centre,
Kenchappa Layout,
T.C Palya,
Bengaluru.
(By V.V., Adv)
-V/s-
Crl.A.No.2113/2019
2
RESPONDENT : Sri.B.Krishnappa,
S/o.B.N.Byrappa,
Aged about 55 years,
R/at.Hireballa Village,
Jangamakore Hobli,
Siddalaghatta Taluk,
Chikkballapura District.
(By Sri.M.S- Adv)
*******
JUDGMENT
The appellant has preferred this appeal against the Judgment and order passed by the learned XV ACMM, Bengaluru in C.C.No.10877/2018 dated 06.09.2019. The Appellant is accused and respon-
dent is complainant before the trial court. Here-
inafter, their rank is referred as per the their rank before the trial court.
Crl.A.No.2113/2019 3
2.The factual matrix of case:-
The complainant and the accused are very good friends. The accused availed loan of Rs.5,00,000/- in the month of August 2017 for development of the Chicken Center business. The accused assured to repayment of the said amount within 3 months. The accused issued cheque bg.No.132546 for repayment of the said loan. The complainant presented the said cheque for encashment through his banker. The said cheque was dishonoured due to "funds insufficient"
in account of accused. Thereafter, the complainant got issued legal notice to the accused calling upon him to pay the amount covered under the cheque within the stipulated time. The Accused refused to received the said notice and failed to repay the said Crl.A.No.2113/2019 4 amount. Hence, the complainant has launched criminal proceedings against the accused before the Trial Court for the offence punishable U/s.138 of N.I Act.
3. On considering allegation made in complaint and documents produced along therewith, the learned Trial Court took cognizance for alleged O/P/U/Sec 138 of N.I.Act. Thereafter, sworn statement of complainant is recorded. On considering materials available on record, learned Trial Court opined that, there is prima facie case and sufficient materials to proceed against accused persons.
Accordingly, criminal case has been registered against accused persons in Register-III and issued Summons against the accused.
Crl.A.No.2113/2019 5
4. In pursuant to the Summons, accused appeared through his counsel before the Trial Court and got enlarged on regular bail. Thereafter, accusation has been recorded and read over to him. Accused has pleaded not guilt and claims to be tried. Hence, case is posted for evidence.
5. In order to prove the guilt of the accused, the complainant has got examined as PW.1 and 5 documents are got exhibited at Ex.P.1 to Ex.P.5.
Thereafter, Statement of the accused recorded U/s.313 of Cr.P.C. Further, accused has examined himself as DW1 but has not got marked any documents on his behalf.
Crl.A.No.2113/2019 6
6. The learned Trial Court was convicted the accused by passing Judgment and order Dtd 06.09.2019. Said Judgment and Orders challenged by accused before this on main ground that, the learned Magistrate has committed error in appreciating the contention taken by the accused.
The complainant has not proved regarding payment of Rs.5,00,000/- in cash. There is no material on record to show that the alleged amount of Rs.5,00,000/- is received by the accused/appellant.
The Trial Court has failed to appreciate regarding cheque issued for different transaction. This aspect is not considered by the Trial Court. In this case, the respondent utterly failed to prove the existence of the liability. This aspect is not considered by the Trial Court. The complainant mis represented the facts be-
Crl.A.No.2113/2019 7 fore the Trial Court. The Judgment of the Trial Court is untenable and against law and facts and circum-
stances. Hence, prays to allow the appeal and setside the impugned judgment
7. After registration of appeal, issued notice to complainant. On receipt of notice the complainant appeared through his counsel.
8. This Court number of times directed the accused/ appellant to file Written Arguments. But the appellant/accused has not chosen to file his writ-
ten arguments. I have gone trough written arguments and judgment relied by complainant.
Crl.A.No.2113/2019 8
9. In the arguments the learned counsel for the complainant elicited the allegations made in the complaint. He has pointed out one aspect that the accused has failed to rebut the presumption in favour of the complainant U/s.118 and 139 of the N.I Act.
The Judgment of the Trial Court is well reasoned and logic conclusion. Hence, prays to dismiss the appeal.
10. In support of his contention, he has relied on the following decisions:-
AIR 2019 1876 Rohith bhai Vs. jevanlal Patel Vs. State of Gujarath & Anr 2018 8 SCC 165 Kishan Rao Vs. Shankar Gouda (2018) 8 SCC 479 Posa Nandhi rep by its POA holder.T.P.Murgan Crl.A.No.2113/2019 9 Vs. Bojan 2017(6) KLJ 47 Arjun Vs. Shekar (2015) 8 SCC 398 T.vasanth kuarm Vs. Vijaya Kumari AIR 2010 SC 1898 Rangappa Vs. Mohan
11. By considering the allegations made in the appeal memo an The following points arise for my consideration:
1. Whether the Judgment of the Trial Court is perverse, Arbitrary and Capricious?
2. What order?
Crl.A.No.2113/2019 1 0
12. On considering the appeal memo, complaint, oral and documentary evidence of both parties and hearing of the rival parties, my answer to the above points are as under:
Point No.1: in the negative Point No.2: As per final order ............for the following;
REASONS
13. Point No.1:-
Before going to the merits of the case, this court has relied on the recent Judgment of Hon'ble Apex Court regarding decision of the Doctrine of position lies on the accused.
AIR 2023 SC 5018 Rajesh Jain Vs Ajay Singh Crl.A.No.2113/2019 1 1 SECTION 138 OF THE NI ACT - NECESSARY INGREDIENTS
25. Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel [(2022) 11 SCC 705], this Court has unpacked the ingredients forming the basis of the offence under Section138 of the NI Act in the following structure:
(1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;
(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to Crl.A.No.2113/2019 1 2 the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan [(1999) 7 SCC 51017] this Court had summarised the constituent elements of the offence in fairly similar terms by holding:
"14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice."
28. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this Crl.A.No.2113/2019 1 3 fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.
BURDEN OF PROOF AND PRESUMPTIONS: CONCEPTUAL UNDERPINNINGS
29. There are two senses in which the phrase 'burden of proof ' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the Crl.A.No.2113/2019 1 4 appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports [(2009) 2 SCC 51320] this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are Crl.A.No.2113/2019 1 5 rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof Crl.A.No.2113/2019 1 6
34. The NI Act provides for two presumptions:
Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138.
35. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'.
36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in Crl.A.No.2113/2019 1 7 the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar {(2019) 4 SCC 19723}]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
Crl.A.No.2113/2019 1 8
39. John Henry Wigmore (Rules of Evidence- The Hidden Origin of Modern Law )on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule ."
(underline by me, for emphases)
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider Crl.A.No.2113/2019 1 9 the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist.[Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513] Crl.A.No.2113/2019 2 0
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact. (underline by me, for emphases)
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
Crl.A.No.2113/2019 2 1
45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441] (underline by me, for emphases)
14. In order to prove the allegations made against the accused, the complainant himself stepped into the witness box and filed affidavit in lieu of examination in chief wherein he has reiterated the contents of allegations made in the complaint. In Crl.A.No.2113/2019 2 2 support of his contention he has produced documents Ex.P.1 cheque, Ex.P.2 Bank endorsement, Ex.P.3 Legal notice, Ex.P.4 postal received. Ex.P.5 unserved postal envelope.
15. In order to disprove the complainant's case and rebut the presumption. The accused himself examined as DW.1. In examination in chief, DW.1 deposed that, he has issued cheque in question for security purpose and not borrowed loan as alleged by complainant. In the course of cross-examination DW.1 stated that, an address mentioned on postal cover/Ex.P.5 is proper and correct. He pleaded ignorance regarding from whom chit amount received. The learned counsel for complainant suggested that, borrowing loan from complainant and Crl.A.No.2113/2019 2 3 cheque/Ex.P.1 issued for discharge of said loan.
These suggestions are denied by accused.
16. During cross-examination the learned counsel for the accused elicited from the mouth of PW1 that the defacto complainant is an agriculturist and doing business of selling cement. Further he stated that the accused was running Chicken shop at Kenchanahalli,T.C. Palya, Bengaluru, prior he was doing vegetable business.
17. The learned counsel for the accused specifically suggested that the accused is residing at Doddaballapura. This suggestions is denied. The complainant presented the said cheque for encashment two times. The learned counsel for the Crl.A.No.2113/2019 2 4 accused suggested that the complainant managed the postal authority not to serve the statutory notice on the accused. Further suggested that the cheque is issued for security purpose. This suggestions is denied. The complainant categorically stated that the cheque is written by his son in the presence of the accused. Except this, nothing is elicited from the mouth of PW1.
18. In this case, accused has not chosen to lead his defence evidence in order to rebut the presumption as per the settled law it is not necessary to adduce rebuttable evidence. The presumption shall be rebutted by conducting effective cross-examination.
In this case, the accused specifically suggested that the cheque is issued for security purpose. This fact Crl.A.No.2113/2019 2 5 itself clearly discloses that accused voluntarily issued cheque to the complainant. By considering these aspects, the disputed cheque belongs to the account of the accused and signature found on the cheque belongs to the accused. The Trial Court rightly considered the entire cross-examination of PW1 conducted by the accused.
19. The accused has taken specific contention that the statutory notice is served on him. 3 times, the learned counsel for the accused suggested to the PW.1 that the accused is residing at Doddaballapura This suggestions is denied. I have carefully perused the postal acknowledgment Ex.P.5. The postal authority have mentioned that "addressee left". In cross examination DW.1 admitted his address cited Crl.A.No.2113/2019 2 6 on Ex.P.5 is correct. On receipt of the statutory notice, the learned counsel for the accused has made allegations against the postal authority But there is no evidence to show he has initiated any action against the postal authority regarding dis-obedience of their duty.
20. In this case, considering the cross-examination of the accused put forth his defence, it is just like push pull explanation. It is not sufficient to dis-prove the contention of the complainant and also not sufficient to rebut the presumption. Therefore, it is held that the Trial Court has not committed any error in passing the impugned Judgment and Order. Prior to filing of this complaint, the complainant has complied all the statutory conditions. The Crl.A.No.2113/2019 2 7 complainant has proved his case, based on the Ex.P.1 and presumption. Therefore, it is held that the Trial Court has not committed any error in considering the defence of the accused and the said impugned Judgment and order is in accordance with law. Accordingly, Point No.1 is answered in the Negative.
21. Point No.2 :-
By considering the above reasons there is no need of interference or intervention in the impugned Judgment and Order. Hence, I proceed to pass the following:
Crl.A.No.2113/2019 2 8 ORDER The Appeal filed by the Appellant U/s.374(3)(a) of Cr.P.C. is hereby dismissed.
The impugned Judgment and order passed by the learned XV ACMM, Bengaluru in C.C.No.10877/2018 dated 06.09.2019 is hereby confirmed.
Office is directed to sent the TCR along with the copy of this order forthwith. (Dictated to Stenographer, typed by her, taken out print corrected by me and then pronounced in the Open-Court on this the 5th day of April, 2025) Digitally signed by irappanna (Sri. I. P.irappanna Naik) Pavadi Pavadi Naik LXIII Addl. City Civil and Sessions Judge (CCH-64), Bengaluru City.
Date: 2025.04.08
Naik 15:24:39 +0530
Crl.A.No.2113/2019
2
9
(Order typed vide separate sheet)
ORDER
The Appeal filed by the
Appellant U/s.374(3)(a) of
Cr.P.C. is hereby
dismissed.
The impugned Judgment
and order passed by the
learned XV ACMM,
Bengaluru in
C.C.No.10877/2018 dated
06.09.2019 is hereby
confirmed.
Office is directed to sent
the TCR along with the
copy of this order
forthwith.
LXIII ACC & SJ(CCH-64),
Bengaluru City
Crl.A.No.2113/2019
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