Bangalore District Court
Shashikumar H N vs Arasappa A on 22 February, 2025
KABC010317852023
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 22nd day of February, 2025
: PRESENT :
Sri. I. P. Naik
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
Crl.A.No.1708/2023
APPELLANTS: Shashi Kumar.H.N
S/o.Hanumaiah,
Aged about 31 years,
R/at.Nayakanahapalya
Village, V.G.Doddi Post,
Madabal Hobli,
Magadi Taluk,
Ramanagar District.
(By Sri.M.M - Adv)
-V/s-
2 Crl.A.No.1708/2023
DEFENDANTS : Arasappa,
S/o.Arase Gowda,
Hindu, Major,
R/at.No.438, 4th Main,
Brahmapurtr River Road,
Srinagara,
Bengaluru-560 050.
(By Sri.CNK - Adv)
JUDGMENT
The appellant has preferred this appeal against the Judgment and order passed by the learned XVI ACMM Bengaluru in C.C.No.19659/2018 dated 30.10.2023. The Appellant is accused and complainant is respondent before the trial court. Hereinafter, their rank is referred as per the their rank before the trial court.
2. The factual matrix of case:-
The accused is known to the complainant since sev-
eral years. Both are friends. In the month of November 2016 accused approached and requested loan of 3 Crl.A.No.1708/2023 Rs.3,00,000/- for his financial difficulties and family ne-
cessities. Believing the honest assurance and promise of the accused, the complainant lent amount of Rs.3,00,000/- hand loan to the accused. The accused given assurance to return the said amount within one year.
After one year, the accused failed to keep up his promise.
The complainant demanded for return of amount. At that time, the accused repaid Rs.50,000/- in cash, in the month of December 2017. Afterwards the complainant re-
peatedly demanded for repayment of the balance amount.
In order to repay the balance amount of Rs.2,50,000/-, ac-
cused issued cheque bg.No.699627 dated 30.04.2018. The complainant presented the said cheque through his banker for encashment. The said cheque was dishonoured as "drawer signature differs". After that, the complainant got issued legal notice to the accused through his counsel 4 Crl.A.No.1708/2023 through RPAD. In spite of service of notice, the accused failed to return the balance amount of Rs.2,50,000/-.
Hence, the complainant filed complaint before the Trial Court.
3. On considering allegation made in complaint and doc- uments produced by the complainant, 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 per- sons. Accordingly, criminal case has been registered against accused persons in Register-III and issued process against him.
4. In pursuant to the Summons, accused person has ap- peared through their respective counsel before the Trial 5 Crl.A.No.1708/2023 Court and got enlarged on regular bail. Thereafter, plea 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. The complainant has got examined one witness as PW.1 in support of oral evidence produced 15 documents and same are got exhibited at Ex.P.1 to Ex.P.15. After completion of the evidence of the complainant, statement of the accused is recorded U/s.313 of Cr.P.C. accused has denied the incriminating evidence. Accused himself examined as DW.1 and thirteen documents for marked at Ex.D.1 to 13.
6. After hearing both sides, the learned Trial Court has convicted the accused persons for the alleged offence pun- ishable U/s.138 of N.I Act, as per the Judgment and order dated 09.06.2020 6 Crl.A.No.1708/2023
7. The accused challenged the said order before this court in Appeal No.636/2020, mainly on the ground that the evidence is recorded in the form of affidavit, which his not permissible under law. Accordingly, this Court was al- lowed the appeal and set aside the impugned Judgment and remanded back with a direction to follow the guide- lines laid down by the Hon'ble Supreme Court in Mandovi Co-operative Society Ltd's case by passing Judgment dated 24.04.2020.
8. After remand back, the learned Trial Court recorded the oral evidence of the accused and heard both sides and passed the present impugned Judgment and order. Again the accused dis-agreed and dis-satisfied with the said Judgment and Order preferred this Appeal on the ground that the Judgment of the Trial Court is contrary to the law 7 Crl.A.No.1708/2023 and facts opposed to leal proprietary. The Trial Court mainly relied strong presumption in favour of the com- plainant which his rebutted by the accused. The Order of the Trial Court is based on the accepted principles of law. Further the Trial Court hurriedly passed the Judgment and order in question. In the oral evidence the complainant stated at the time of lending the loan amount his mother and his wife were present. Both of them are not examined before the Trial Court. The financial condition of the com- plainant is not so good. He is unable to lent amount of Rs.3,00,000/-. In the November 2016 Central Government has defendant monitized the currency of Rs.500/- and Rs.1,000/-. But in the evidence PW.1 stated he lend amount in cash which contains current note worth of Rs.500/-. It is unbelievable one. Further, the complainant has taken contention that the complainant and his wife are 8 Crl.A.No.1708/2023 involved in the money lending business. His wife also filed one case against Deepa alleging that she has issued cheque for discharge of Rs.6,00,000/-. By considering their oral evidence in respect of their salaries temporary injunc- tion is not at all believable one. The cheque in question is misplaced, in this regard, accused lodged complaint before the jurisdictional police. This aspect is not at all consid- ered by the Trial Court. The complainant mi used the said cheque by putting signature in different manner. Accordingly, bank has endorsed that drawer signature dif- fers. This aspect is not considered by the Trial Court. The Judgment of the Trial Court is against the principles laid down by the Hon'ble High Court of Karnataka and Hon'ble Apex Court. Further, the appellant has taken the contention that there was no legally enforceable debt. Hence, prays fro allow the petition and set aside the 9 Crl.A.No.1708/2023 impugned Judgment and Order and acquit the accused by allowing the Appeal.
9. In pursuant to the Summons, the complainant appeared before this Court through his counsel.
10. Heard both sides gone through the written arguments submitted by the learned counsel for the accused. The learned counsel for the accused in his written arguments reiterated the grounds urged in the appeal memo and pro- cedure followed by the Trial Court, it is not necessary to elicit the same which are already stated above. The learned counsel for the accused pointed down that follow- ing facts are inferred:
The complaint is not in proper form The Trial Court has not complied the provisions of Section 204(2) of Cr.P.C.10 Crl.A.No.1708/2023
The hand writing on the signature in the cheque is not belongs to the accused.
Witness to lending loan is not examined.
Prior to alleged transaction no agreement is taken placed between the accused and the complainant.
The accused has successfully rebutted the presumption and there is no legally enforceable debt.
There is no specific date and time of lending hand loan The complainant and his wife are running money laundering business, this fact is reiterated from the cross- examination of PW.1.
11. The learned counsel for the accused relied on the fol- lowing Judgment.
2007 AIR SCW 6736 John K. John Vs. Tom Varghese and Anr.
11 Crl.A.No.1708/2023
ILR 2008 Kar 4629 Shiva Murthy Vs. Amruthraj 2001(1) KCCR 212 B.P.Venkatesulu Vs. K.P Mani Nayar 2010 (4) AIR Kar R 756 Amzad pasha Vs. H.N.Lakshmana 2009(1) DCR 420 Anjana Balrkishan Shewale Vs. Chayya Baban jagdale & Anr.
2009 (1) DCR 422 Binod Kumar Lali Vs. State of Jharkand & Anr.
ILR 2008 KAR 4629 Sanjay Mishar Vs. Ms.Kanishka Kappro @ Nikki & Anr.
2010(3) AIR Kar R 207 S.Timmappa Vs. L.S.Prakash 2015(5) KCCR 990 L.Raju Vs. Gurappa Reddy 12 Crl.A.No.1708/2023 ILR 2007 KAR 2709 M.Senguttavan Vs. Mahadevaswamy ILR 2009 KAR 172 A.Viswanatha Pai Vs. Vivekananda S Bhat ILR 2009 KAR 2331 B.Indramma Vs. Eshwar ILR 2014 KAR 6572 H.Manjunath Vs.A.M. Basavaraju 2015 AIR SCW 64 K.Subramani Vs. K. Damodara Naidu, 2016 (5) KCCR 1341 Smt. Threja Vs. Smt. Jayalaxmi, AIR 2019 Supreme Court 1983 Basalingappa Vs. Mudibasappa (2019) 14 Supreme Court Cases 683 Jugesh Sehgal Vs. Shamaher Singh Gogi 2013(2) CR 427 13 Crl.A.No.1708/2023 Aswin Papers Vs. B.G.Kalathil 2014ACD 874 M.Cr.C.No8149 of 2013, dated:07.03.2014. MP0 Brajgopal Singh Swarnkar Vs. Girish Raisen 2014(3) DCR 481 Sneh Jain Vs. Vijay Kalra.
12. As against this, the learned counsel for the com- plainant submitted that, in this case, the Trial Court rightly observed the defence and cross-examination of PW.1. There is no dispute regarding cheque and pertaining to the account of the accused. In the course of cross-exam- ination accused unequivocally admitted that he has made signature in the vakalath and as well s postal acknowledg- ment it clearly shows the intention of the accused to avoid repayment of the loan. The grounds urged in the applica- tion is not tenable one. The defence and reasons assigned by the Trial Court is well settled law. There is no ground 14 Crl.A.No.1708/2023 for interference and intervention in the impugned Jug- ment and Order.
13. In support of his arguments, the learned counsel for the complainant has relied on the following Judgments:-
(1999) SCC 376 L.C.Goyal Vs. Suresh Joshi 9Mas) & Ors.
2010(1) KCCR 176 Siddappa Vs. K.Nanjappa (2019) SCC 606 M.Abbas Haji Vs. T.N.Channakeshava 2001 AIR Kar HCR 2154 Devi Tyres Vs. Nawab Jan 2011 ACD 1521 (KAR) R 666 Usha Suresh V.R Vs. Shashidaran 2010 SC 1898 Rangappa Vs. Mohan (2019) 10 SCC 287 15 Crl.A.No.1708/2023 Uttam Ram Vs. Devinder Singh Hudan & Anr.
(2017) 13 SCC 371 Laxmi Dyechem Vs. State of Gujarat & Ors.
14. In this case, in view of the above rival submission the following points arise for my consideration:
1. Whether the impugned Judgment is perverse, capricious and against law and facts?
2. What order?
15. On considering the appeal memo, impugned Judgment and order materials placed on record both the parties trial court and arguments of both 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.16 Crl.A.No.1708/2023
REASONS
16. Point No.1:-
In order to prove the allegations made against the accused, the complainant himself examined as PW.1. In the course of trial, PW.1 stepped into witness box and has filed affidavit in lieu of examination in chief wherein he has reiterated the contention taken in the complaint. In support of his contention he has produced 15 documents.
17. In the course of cross-examination PW.1 admitted that he was working as full time service in Jayadeva Hospital, part time worker at DeveGowda Hospital. His monthly income is Rs.30,00/- out of which he has paying rent of Rs.10,000/. His wife is Smt. Padmmma, is working as temporary basis at Jayadeva Hospital and she is getting monthly salary of Rs.17,500/- per month. Further stated 17 Crl.A.No.1708/2023 that the complainant and the accused are residing in the same area and he is introduced to him through his aunt. He has paid hand loan in cash. He has withdrawn an amount of Rs.50,000/- from the Bank, Rs.1,00,000/- was in his house as savings and remaining amount was in his house. In this regard, he has not produced any documents. Further, he stated that accused repaid an amount of Rs.50,000/- in the month of December 2017 and he sought for repayment of the balance amount.
18. Further deposed that the accused has issued cheque on 25.04.2017 for repayment of balance amount and he has presented the said cheque on 30.04.2018 which was dishonoured. Further he admitted that there is difference of ink used in writing on the cheque and while putting signature put on cheque Ex.P.1. Notice was not claimed, he is not an income tax accesse.
18 Crl.A.No.1708/2023
19. Further after remand, the PW.1 is examined Before the Trial Court on 20.04.2019. During the cross- examination he has stated that his hospital timings. In this regard he has not produced any documents. Further, he admitted that he has obtained any documents while lending loan and he has not imposed any interest on the hand loan lent to the accused. Further he stated that he availed loan of Rs.1,00,000/-, the learned counsel for the accused urged that the complainant himself had availed loan from another person. Under such circumstances he is not financially sound to lend an amount of Rs.3,00,000/- in favour of the accused. Further PW.1 stated that Smt. Padma has launched criminal proceedings against one Deepa U/sec.138 of N.I Act. He further unequivocally 19 Crl.A.No.1708/2023 admitted that he lend the hand loan to the accused without charging any interest.
20. As against this, in order to disprove the case of the complainant, accused himself examined as DW.1. In the examination in chief, he stated that on oath that, he has lost his bag during 2015, which was contained 3 cheques, Aadhar card and other documents. In this regard, he has lodged complaint before the Magadi Police. As he was in financial crises, wife of the complainant filed other criminal cases against the 3rd persons U/sec. 138 of the N.I Act. Further he has stated that the notice is not served on him. He has produced 13 documents which are marked at Ex.D.1 to Ex.D.13.
21. In the course of cross-examination, he stated that he has not down loaded Ex.D.7 to D.12 through online. He 20 Crl.A.No.1708/2023 has taken print out of these documents. Ex.D.7 to Ex.D.12 are issued from the higher authorities.
22. The learned counsel for complainant was confrontation Vakalath filed learned counsel for accused on his before Trial Court, got marked at Ex.P.15, his signature marked at Ex.P.15(a). Accused has signed on the said documents as Sashikumar. In Ex.P.9 acknowledgment he has signed in the english language.
23. Earlier accused filed examination in chief he has also signed on the Shashikumar.H.N
24. In this case, the most important is cheque which contains the signature of the accused as Shashi kumar.H and not as Shashi kumar. H.N. The cheque was dishonoured due to signature of the drawer differs. Under 21 Crl.A.No.1708/2023 such circumstances, it is necessary to examine the bank officials by Summoning the Specimen signature. In this regard, the learned counsel for the complainant relied on the Judgment of Hon'ble Supreme Court of India which is as under:-
(2012) 13 SCC 375 Laxmi Dyechem Vs. State of Gujarat.
"16.2:- There may indeed be situations where a mismatch between the signatories on the cheque drawn by the drawer and the specimen available with the bank may result in dishonour of the cheque even when the drawer never intended to invite such a dishonour. We are also conscious of the fat that an authorised signatory may in the ordinary course of business be replaced by a new signatory ending the earlier mandate to the bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of 22 Crl.A.No.1708/2023 the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration."
By following the above principles, I have examined the materials on record. In this case, accused has taken the contention that the statutory notice is not served on him. In complaint, address of the accused is mentioned as under:-
Shashik Kumar.H S/o.Hanumanthappa, R/at.Nayakanapalya Village, 23 Crl.A.No.1708/2023 V.G.DoddiPost, Madabal Hobli, Magadi Taluk, Ramanagar District.
25. After dishonour of the cheque, the complainant got issued legal notice through RPAD to the same address mentioned on the postal cover Ex.P.7 and postal acknowledgment Ex.P.9. The accused himself examined before this court at that time also he has mentioned his address as:
ShashiKumar.H. S/o.Hanumanthappa, R/at.Nayakanapalya Village, V.G.Doddi Post, Madabal Hobli, Magadi Taluk, Ramanagar District.
26. By considering these aspects, the complainant sent the notice through registered post to the correct address. The accused himself stated that he is working as 24 Crl.A.No.1708/2023 postmaster. The best reasons known to only himself why different signature found on postal acknowledgment.
27. During cross-examination, he admitted his signature/Ex.P.15(a) found on Vakalath filed by his counsel before the Trial Court got marked at Ex.P.15. In Ex.P.15 he put his signature as Shakumar.H.N.. But he has put his signature on the postal acknowledgment Ex.P.9. In the Bank endorsement Ex.P.2 the reason assigned for dishonour of the cheque is "drawer signature differs". By considering all these aspects it clearly discloses that accused has put different signatures on Ex.P.1, Ex.P.9 and Ex.P.15 because he was well aware about the consequences of receipt of notice. Therefore, it is held that statutory notice is duly served on the accused. 25 Crl.A.No.1708/2023 Therefore, question of non service of statutory notice is not at all believable one.
28. The accused appeared before the learned Trial Court on 25.10.2018 and got enlarged on bail. Thereafter, he has got reply to the notice nor made payment of amount covered under Ex.P.1 cheque.
29. Before going to the merits of the case, this Court gone through the principles of Judgments relied on by the learned counsel for the complainant and learned counsel for the accused. I have carefully gone through the law laid down by their lordship, therefore this Court, relied on the Judgment of Hon'ble Apex Court as under:-
AIR 2023 5018 Rajesh Jain Vs. Ajay Singh BURDEN OF PROOF AND PRESUMPTIONS: CONCEPTUAL UNDERPINNINGS 26 Crl.A.No.1708/2023
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 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] ] 27 Crl.A.No.1708/2023
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 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 28 Crl.A.No.1708/2023 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
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'. 29 Crl.A.No.1708/2023
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 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.
30 Crl.A.No.1708/2023
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 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. 31 Crl.A.No.1708/2023 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]
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) 32 Crl.A.No.1708/2023
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.
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 33 Crl.A.No.1708/2023 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)
30. In this case the accused has taken the contention that he has not issued cheque Ex.P.1 for discharge of debt or any other liability. As per section 118 and 139 of N.I Act, the burden is on the accused to disprove the presumption available in favour of the complainant. In this case, the learned counsel for the accused elicited from the mouth of PW1 that he is working at Jayadeva Cardiovascular Research Center, on contract basis and also working at DeveGowda Hospital. His wife is also working on temporary basis at Jayadeva Hospital. The complainant has produced his bank account statement got 34 Crl.A.No.1708/2023 marked at Ex.P.14, it reveals that balance is not more than Rs.50,000/-. But it reveals that on 08.11.2016, there is Rs.50,000/- in the account of the accused. The accused has taken two different version in this case, one that he has lost 3 cheques. In this regard, he has lodged complaint before the Magadi Police Station. In support of this contention he has produced the reply notice wherein he has stated that the cheque was misplaced. He has lodged the complaint but he has not issued stop payment instruction to the bank regarding missing of the cheques. By considering the conduct of the accused, reply to the statutory notice, it clearly discloses that from the date of memo, receipt of notice, he has changed his version from time to time and put different signatures on the vakalath and other documents including the cheque/Ex.P.1 and 35 Crl.A.No.1708/2023 postal acknowledgment/Ex.P.9 purposefully and intentionally to escape from the legal liability.
31. In this case, the accused has taken the contention that he is getting handsome salary. In this case, he has produced payment slips which is got marked at Ex.D.7 to Ex.D.12. It reveals that his take home salary is Rs.11,258/- to Rs.11,749/-. During cross-examination the learned counsel for the accused put question to the complainant that whether the accused repaid the amount within one year. To this question, the complainant answered that in the month of December 2017 he demanded for repayment of the amount, at that time, accused has paid Rs.50,000/- and requested for further 4 months time for repayment of the balance amount. By considering all these aspects I am of the opinion that the 36 Crl.A.No.1708/2023 complainant proved that there exists legally enforceable debt.
32. Under such circumstances, the burden lies on the accused, in order to discharge said burden adduced cogent evidence for the satisfaction of the Judge is required to rebut the presumption. In order to rebut the said presumption accused has taken 3 grounds, he has lost his cheques along with other documents, in this regard, he has lodged complaint before the Magadi Police Station, but in this regard, no documents are produced. There is no transaction with the complainant and Ex.P.1 cheque is produced from the custody of the complainant. Third reason is that the statutory notice is not served on him. This three factors is not at all proved by the accused. Therefore, it is held that the Trial Court rightly considered 37 Crl.A.No.1708/2023 the oral evidence of DW1. The accused has take one more ground that the notice appeal and Trial Court is hurriedly passed the Judgment for the reasons best known to the accused that the challenged the earlier Judgment and order and remanded back to the Trial Court and then after passing impugned order and Judgment and again, he has preferred this appeal. This case is pertaining to the year 2018. Accused himself said before this Court how much time it takes for disposal of the case. The appellant is not aware that the Hon'ble Supreme Court of India Indian Bank Association Vs. Union Bank of India. For the reasons cited above, I am of the opinion that the Trial Court has not committed any error in passing the impugned Judgment and order. Accordingly, Point No.1 is answered in the Negative.
38 Crl.A.No.1708/2023
33. Point No.2 :-For the forgoing reasons, I proceed to pass the following:
ORDER The Appeal filed by the Appellant U/s.374(3)
(a) of Cr.P.C. is hereby dismissed.
Further, the Judgment and order passed by the learned XVI ACMM Bengaluru in C.C.No.19659/2018 dated 30.10.2023, 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 22nd day of February, 2025) Digitally signed irappanna (Sri. I. P. Naik) by irappanna LXIII Addl. City Civil and Sessions Judge Pavadi Pavadi (CCH-64), Bengaluru City.
Naik
Date: 2025.03.05
Naik 15:15:56 +0530
39 Crl.A.No.1708/2023
(Order typed vide separate sheet)
ORDER
The Appeal filed by the
Appellant U/s.374(3) (a) of
Cr.P.C. is hereby dismissed.
Further, the Judgment and
order passed by the learned XVI
ACMM Bengaluru in
C.C.No.19659/2018 dated
30.10.2023, 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
40 Crl.A.No.1708/2023