Bangalore District Court
D Harish vs Ramesh on 8 January, 2026
KABC0A0052732022
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 08th day of January 2026.
Crl. Appeal No.25337/2022
Appellant/ Sri. D Harish
Accused: S/o: Late Dodda Thamayappa,
Aged about 40 years,
R/at No.326, Kalkere Village,
K. Channasandra Main Road,
Horamavu Post,
Bengaluru 560043.
(Rep by Sri. V.K.Mohan - Adv.)
V/S
Respondent/ Sri. Ramesh,
Complainant: S/o: Late K.S.Nagaraj,
Aged abut 33 years,
R/at Shantha Lakshmi Nilaya,
Koudenahalli, Ramamurthynagar,
Bengaluru 560016.
(Rep by Sri. Sandeep C.T., - Adv.)
2 Crl.Appeal No.25337/2022
JUDGMENT
This is an Appeal filed by Accused under Section 374(3) of Cr.P.C. being aggrieved by the Judgment dated 18/05/2020 passed in C.C. No.52470/2018 on the file of XXXIII Addl. Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru, convicting him for an offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as 'NI Act', for brevity] and sentencing him to pay fine of Rs.5000/- and in default of payment of fine, to undergo simple imprisonment for 3 months. Further, a sum of Rs.1,70,00,000/- is awarded as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for 1 year.
2. The parties are referred to their original ranking as referred in trial court for convenience sake. The Appellant is the Accused and Respondent is the Complainant before the trial court.
3. Brief facts of the complainant before the trial court is as under:-
The Complainant and accused have entered into settlement in respect of property bearing Sy.No.43/4 of 3 Crl.Appeal No.25337/2022 Zinkethimmanahalli, Bidarahalli Hobli, in respect of land measuring 1 acre 28 guntas which is stated in agreement of sale dated 17.09.2012. Accordingly, accused issued 2 cheques bearing NO.810267, 810269 for a sum of Rs.60 lakhs and Rs.1,10,00,000/- respectively in view of the settlement and in view of execution of confirmation deed the accused stated that he requires 5 years to arrange for cheque amount and cheques can be presented after such time and litigation in respect of said property could be closed after encashment of cheques accordingly the accused made the complainant to sign the confirmation deed, the said confirmation deed was also registered on 17.09.2012. Thereafter the accused stated the complainant that cheques can be presented during the month of October 2017. Accordingly, he presented the said cheques before his banker and they were returned dishonored vide endorsement dated 31.10.2017. The complainant issued legal notice dated 29.11.2017. The said notice is duly served on accused on 04.12.2017.The accused did not paid the cheque amount nor given reply.
Hence the complainant filed complaint before the XXXIII ACMM, Mayo Hall Unit, Bengaluru in C.C.No.52470/2018.
4 Crl.Appeal No.25337/20224. After taking cognizance of the complaint, summons has been issued to the Accused. Responding to the summons, he appeared before the Trial Court, enlarged on bail, plea was recorded, Accused pleaded not guilty and claimed to be tried.
5. That to prove the case of the Complainant, the Complainant got examined himself as PW.1 in his affidavit filed in the form of Examination in Chief he has reiterated the averments of the complaint. In support of his case, he has relied on the documents marked as Ex.P1 to Ex.P15.
6. Thereafter, statement of Accused u/s 313 of Cr.P.C., was recorded and accused denied incriminating evidence and stated he has evidence but he has not lead evidence and not produced any documents.
7. After hearing the arguments, the Trial Court passed the impugned judgment and order dated 18/05/2020 convicting the Accused. That highly aggrieved with the impugned judgment and order, the Accused has filed present appeal on the following grounds:
5 Crl.Appeal No.25337/20221) The impugned Judgment is contrary to law, facts, materials and evidence placed on record and it is perverse, one sided and against to the principles of natural justice.
2) The learned Magistrate has not considered that the presumption in favor of complainant is rebutted by the accused.
The accused was denied the opportunity to cross-examine the witness.
3) The trial court not at all looked into the capacity of complainant to lend such a huge amount. The inconsistent approach of the complainant regarding amicable settlement without laying any terms was not considered by the trial court.
4) It is as the wife of accused was very serious and hospitalized and brain operation was done he had gone to take care of his wife and he could not communicate the same to his counsel and the counsel was also not informed the accused in respect of the case stage and hence he could not appeared before the trial court. There is delay of 918 days in filing the appeal and separate 6 Crl.Appeal No.25337/2022 application is filed seeking condonation of delay. On the above grounds, he prays to allow the appeal and prays to set aside the impugned judgment and to remand the matter.
8. Along with the appeal memorandum the accused has also filed application U/s. 5 of Limitation Act with prayer to condone the delay of 918 days in filing this appeal.
9. In the application and annexed affidavit of this application the appellant stated that the trial court passed the impugned Judgment on 18.05.2020. Due to Covid-19 lock down and as his wife was hospitalized he had gone to take care of his wife and he could not communicate the same to his counsel. That apart his counsel who was appearing in trial court has not informed about the case. Hence he could not appeared before the trial court. The trial court without giving opportunity to him passed the impugned judgment. The delay of 918 days is due to the reasons stated above and it is an un-intentional and due to bonafide reasons. Accordingly, he prays to condone the delay.
7 Crl.Appeal No.25337/202210. The Respondent not filed any separate objection to this application.
11. Heard both sides. Records secured from trial court. Perused the entire Trial Court records, including the impugned judgment. The counsel for respondent also submitted written arguments.
12. Upon hearing, the following points arise for determination:-
1) Whether the appellant has made out grounds to condone the delay in filing this appeal?
2) Whether the appellant has made out grounds to remand the case for fresh disposal?
3) Does the order of conviction or
Sentence call for any
interference?
4) What order?
13. My findings to above points are as under:-
Point No.1: In the Negative Point No.2: In the Negative.
Point No.3: In the Negative.8 Crl.Appeal No.25337/2022
Point No.4: As per the final order, for the following:-
REASONS
14. POINT NO.1:
In the case on hand on perusal of the trial court records the impugned Judgment of conviction and sentence was passed by the learned trial court on 18/05/2020. The present appeal is filed by the accused on 22/12/2022. There is delay of 918 days (2 years and 6 months) in filing this appeal.
15. In the case on hand on perusal of the application and also the annexed affidavit the same would clearly reveals that this accused has taken contention that there was covid- 19, his wife was serious and he went to take care of his wife and hence he could not communicate his advocate, and the counsel who was appearing for him not informed the accused about the case The time of limitation to prefer an appeal starts from the date of passing of the Judgment and Order. The trial court records indicates that this accused was initially on service of summons appeared before the trial court through his counsel and got enlarged on bail on 30-10- 9 Crl.Appeal No.25337/2022
2018. From 30-10-2018 this accused regularly appeared before the trial court through his counsel and partly cross examined the complainant and thereafter not chosen to cross examine the complainant and hence as per the order dated 25-10-2019 the learned trial court taken the further cross examination as nil. Subsequently this accused filed application under Sec.311 of Cr.P.C to recall PW1 for further cross examination and the same was allowed vide order dated 27-11-2019. Thereafter PW1 was fully cross examined. The counsel for accused himself submitted no evidence and then the case was posted for arguments. The accused was very much represented through his counsel before the trial court and the trial court records would also indicate that the accused was very much present before the trial court even on the date of addressing arguments on merits. The accused remained absent on the date of pronouncing the impugned judgment on 18-05-2020.
16. It is necessary to note that before this court in this appeal the accused taken up a specific contention that the delay is due to the fact that his wife was serious, and there was Covid-19. It is vital to note that in the entire appeal memo or in the application filed u/sec. 5 of 10 Crl.Appeal No.25337/2022 Limitation Act this accused not stated when his wife was hospitalized, where she was admitted and from which day to which day she was under treatment. The entire application and affidavit is silent in this regard. That apart no scrap of paper is produced before this court to show that the wife of this accused had under gone brain surgery and he was taking care of her. No piece of paper is produced to establish the fact that his wife had undergone brain operation.
17. The trial court records indicates that even on the day of addressing arguments on merits he was very much present and the same shows that this accused was very much aware of the pendency of the criminal case against him. Admittedly the counsel for the accused represented this accused before trial court till 04-03- 2020. Admittedly the trial court has passed the impugned Judgment of conviction order on 18-05-2020. The very application filed by this accused u/sec.5 of Limitation Act is without any details about from which period to which period his wife was under treatment. Moreover the ground of his advocate not informed the case status is not a good ground to consider for condonation of delay. On the other hand the appellant is 11 Crl.Appeal No.25337/2022 liable to explain each and every days of delay caused in preferring the appeal.
18. The Hon'ble Apex Court in Miscellaneous Application No.21/2022, Miscellaneous Application No.665/2021 in Suo Motu Writ Petition (C) No.3/2020 dated 10.01.2022 clarified that period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
19. In the case on hand the appeal is filed on 22-12- 2022. Even the direction in the above decision is applied still there is delay of more than 9 months. On keen observation of the contents of the affidavit except vague contention setup by the appellant no other grounds are made out for condoning delay. The available materials placed on records as well as the trial court records clearly 12 Crl.Appeal No.25337/2022 goes to show that the appellant was very much represented before the trial court through his counsel till 04.03.2020. Such being the fact, at this stage the appellant/ accused has filed the appeal challenging the validity of the Judgment after lapse of almost 9 months appears to be unreasonable to accept.
20. In a decision of the Honble Apex court reported in AIR 2022 SC 332 in between Majjisannemma @ Sanyasi Rao V/s. Reddy Sridevi and others (Civil appeal No,7696/2021) where in it is held as follows;
6.2 We have gone through the averments in the application for the condonation of delay. There is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year 2021. In the application seeking condonation of delay it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously.
7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:
13 Crl.Appeal No.25337/20227.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:
In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafide is imputable to the appellant."
7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have 14 Crl.Appeal No.25337/2022 no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.
7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under:
"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."
7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bonafides or there is inaction then there cannot be any justified ground for condoning the delay even 15 Crl.Appeal No.25337/2022 by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights".
21. There is inordinate delay in preferring the appeal, the appellant who is bound to explain reason of delay for each and every day has not properly explained the reasons for delay nor has produced any scrap of paper to corroborate his argument of ill health of his wife. Hence, taking into consideration of all these facts and circumstances it is clear that arguments of the respondent/complainant that the application filed by the appellant is vexatious, perverse, untenable and baseless filed with intention to protract the proceedings and creating hurdles in executing the Judgment of the trial court seems reasonable. The appellant/ accused has failed to make out grounds for condonation of delay. Accordingly, I answered point No.1 in the Negative.
16 Crl.Appeal No.25337/202222. Points No.2 & 3:-
Since the above two points are interlinked, in order to avoid repetition of facts the above points have been taken up together for consideration.
23. Before re-appreciating the evidence on record, it is necessary to refer some of the latest rulings of the Hon'ble Apex Court reported in 2019 (3) KCCR 2473 (SC) (Basalingappa V/s Mudibasappa), 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:-
(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.17 Crl.Appeal No.25337/2022
(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.
24. In a decision reported in AIR 2010 SC 1898 (Rangappa V/s Mohan), it is 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 liability. 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 18 Crl.Appeal No.25337/2022 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."
25. Keeping in view the broad principles laid down by the Hon'ble Apex Court let me re-appreciate the evidence and documents on record.
26. The definite case of the Complainant/ Respondent is that, there was settlement between him 19 Crl.Appeal No.25337/2022 and accused in respect of property bearing Sy.No.43/4 measuring 1 acre 28 guntas of Zinkethimmanahalli, Bidarahalli Hobli, the same is stated in agreement of sale dated 17.09.2012. In pursuance of the same accused issued 2 cheques bearing No.810267, 810269 for a sum of Rs.60 lakhs and Rs.1,10,00,000/- respectively in view of the said settlement and in view of execution of confirmation deed. The accused stated that as the amount is very high he requires 5 years to arrange for cheque amount and cheques can be presented after such time and litigation in respect of said property could be closed after encashment of cheques. Accordingly, the accused made the complainant to sign the confirmation deed, the said confirmation deed was also registered on 17.09.2012. Thereafter the accused stated the complainant that cheques can be presented during the month of October 2017. Accordingly, he presented the said cheques before his banker and they were returned dishonored vide endorsement dated 31.10.2017. The complainant issued legal notice dated 29.11.2017. The said notice is duly served on accused on 04.12.2017.The accused did not paid the cheque amount nor given reply.
20 Crl.Appeal No.25337/202227. The Complainant in order to prove the averments of the complaint got examined himself as PW.1 and also got exhibited Ex.P.1 to Ex.P.15 documents and closed his side. On the contrary the Accused not produced any evidence nor got marked any documents.
28. Let me go through the documents produced by the Complainant before the Trial Court. Ex.P.1 & 2 are Original cheques dated 26-10-2017, Ex.P.3 & 4 are Bank return memos dated 31-10-2017, Ex.P.5 is Office copy of the legal notice dtd 29-11-2017, Ex.P.6 is the Postal receipt, Ex.P.7 is Postal track, Ex.P8 is Certified copy of the sale deed dated 29.07.2012, Ex.P9 is Certified copy of the order sheet in O.S. 112/2012, Ex.P10 is Certified copy of the plaint in O.S.112/2012, Ex.P11 is Certified copy of the written statement in O.S. 112/2012, Ex.P12 is Certified copy of the I.A. in O.S.112/2012 along with affidavit, Ex.P13 is Sale agreement dated 17.09.2012, Ex.P14 is Certified copy of the sale deed dated 08.09.2011, Ex.P15 is Certified copy of the confirmation deed dated 17.09.2012.
29. The present complaint has been filed before the Trial Court on 28.12.2017. On perusal of all the above 21 Crl.Appeal No.25337/2022 documents with date of filing of the complaint and dates of documents, it is clear that before filing of the complaint, the Complainant has complied with all the requirements of Section 138 of the NI Act and the present complaint is filed well within the period of limitation and it is in accordance with the provisions of NI Act.
30. Now let us go through the cross examination of the complainant. This complainant deposed that property in Sy.No.43/4 was granted to one Basappa. Basappa executed sale deed in favor of Sriramappa. The children of Basappa challenged the said sale deed. He has no knowledge about the case pending before Special DC. The mutation in the name of Sriramappa was cancelled. When it is suggested that he has filed O.S.No.112/2012 before the Civil Judge Bangalore Rural court against Basappa and his children he admits the same.
31. This PW1 further deposed in his cross examination that himself Raghu kiran and Ravikirran are brothers and they are in good terms. His advocate was present when Ex.P15 confirmation deed was executed. His brother by name Raghu Kiran also filed CC.No. 53515/2018. Accused made some payments to his 22 Crl.Appeal No.25337/2022 brother. The accused made some payments to him but it is not in relation to the claim in the complaint. It is in respect of Sy.No.50/4 payment is made.
32. It is necessary to note that the witness was cross examined much in respect of the order of the special DC. This PW1 deposed that there is no recital in Ex.P13 regarding accused asking for 5 years time. He denied that Ex.P13 is not executed by accused and it is created. This PW1 further deposed that the cheques returned as 'Kindly contact drawer drawee Bank' He denied that he has misused the cheques given to one Munegowda.
33. From the careful consideration of the entire evidence on record it is clear that it is not in dispute that the Ex.P1 and Ex.P2 cheques are pertains to the account of accused and the signature thereon is that of accused. It is also not in dispute that there was a civil suit in O.S.No.112/2012 between this complainant who was LR of Sriramaiah and this accused. It is also not in dispute that this complainant has executed registered confirmation deed dated 17-09-2011. It is also not in dispute that earlier land in SY.No.43/4 and 50/4 of 23 Crl.Appeal No.25337/2022 Varaanasi @Jinkathimmanhalli was sold in favor of Sriramaiah under sale deed dated 29-07-1992 by one Basappa and his family members. Subsequently the said Sriramaiah filed suit for permanent injunction as against LRs of said Basappa and also against this accused in O.S.No.112/2012. In view of death of said Sriramaiah this complainant and others got impleaded in the said suit as LRs of said Sriramaiah. This accused got sale deed by Munegowda and others who are children of said Basappa in respect of very same properties in Sy.No.50/4 and 40/3 on 08-09-2011. Subsequently on 17-09-2012 this complainant and 3 others have executed registered confirmation deed in favor of this accused in respect of said Sy.No.50/4 and 40/3.
34. With this factual aspects, 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 dishonoured for funds insufficient or for any other reason and when the legal notice was issued within the statutory period then the presumption available under Sections 118 & 139 of The 24 Crl.Appeal No.25337/2022 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 The NI Act. Likewise, unless the contrary is established Section 139 of the 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 and 2 were drawn during the period of its validity and was accordingly presenting to the back and after its dishonoured 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 the complainant. It is also relevant to note that the said presumption is rebuttable one and as such the defence of 25 Crl.Appeal No.25337/2022 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.
35. 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. Admittedly, in the instant case, the complainant has contended that due to the settlement between him and accused in respect of Sy.No.43/4 measuring 1 acre 28 guntas of Jinkethimmanahalli the agreement of sale was entered into between them on 17- 09-2012 and towards the said amicable settlement and towards the said agreement and in respect of execution of registered confirmation deed the accused so as to pay settled amount issued cheques Ex.P1 and 2. That apart in the entire cross examination the accused not denied the financial capacity of the complainant to lend amount or to purchase the above stated Sy.No.43/4. Hence in the absence of any evidence the argument of the accused that the complainant has no capacity cannot be accepted.
26 Crl.Appeal No.25337/202236. Now coming to the one more contention of the accused that he was not provided with opportunity to cross examine the complainant and to lead defence evidence is concerned if the trial court record is looked into the learned counsel for the accused himself submitted before the trial court that he has no defence evidence to lead in. That apart the complainant is fully cross examined by the accused. Hence the contention of the accused that he was not provided with opportunity to cross examine the complainant and to lead defence evidence does not hold water.
37. It is necessary to note that the accused taken contention that there is no legally recoverable debt. the cheques in question are issued to one Munegowda son of Basappa and the complainant has misused the cheques. In this regard on perusal of the cross examination of the complainant, he deposed that he has filed O.S.No.112/2012 before the Civil Judge, Bangalore Rural District. The learned counsel for the accused suggested that Sy.No.43/4 measuring 1 acre 28 guntas and Sy.No.50/4 measuring 24 guntas were granted to one Basappa. It is also necessary to note that this Pw-1 further deposed that there was non-alienation clause in 27 Crl.Appeal No.25337/2022 the grant certificate of the said Basappa. The said Basappa sold the said properties to Sriramaiah. Thereafter the said sale was challenged by the children of Basappa. Thereafter the mutation which was standing in the name of Sriramaiah was cancelled and name of Basappa and his children were entered.
38. On perusal of the documentary evidence relied on by the complainant he has produced copy of plaint, written statement, IA in OS.No.112/2012. The complainant herein is appears to be plaintiff No.1(c) and accused is defendant No.7.
39. Hence the said Basappa by receiving consideration from Sriramaiah sold the above said survey numbers to him. However in view of subsequent events the suit in O.S.112/2012 was filed. The document marked at Ex.P13 i.e., agreement for sale executed by the accused in favour of complainant on 17.09.2012, Ex.P14 the copy of sale deed dated 08.09.2011 shows that the accused herein has purchased property bearing Sy.43/4 measuring 1 acre 28 guntas and property bearing Sy.No.50/4 measuring 21 guntas from the children of late Basappa. Ex.P15 is the confirmation deed executed 28 Crl.Appeal No.25337/2022 by persons by name Smt.Meenamma, Shri Raghukiran, Shri.Ramesh (complainant) and Shri Ravikiran, Smt. Jayashree, Smt.Pushparani and Smt.Kavitha in favour of the accused herein. In the agreement for sale marked at Ex.P13 the accused agreed for settlement in respect of No.43/4 & 50/4. In the said agreement the recitals shows that his vendors father Basappa and his family members have initially sold the said property to Sriramiah and subsequently he purchased it and hence he agreed to pay Rs.1,55,00,000/- to the complainant who is grandson of said Sriramaiah and towards payment of said amount he issued Cheques bearing No.810269 and 810267 for a sum of Rs.1 crore and 60 lakhs respectively and the above said sum is compensation out of amicable settlement. It is also stated in the said agreement that it is towards discharge of financial liability in respect of above said property. It is also stated in the said agreement that if the said cheques are not honoured then the complainant was given right to enforce it. Here it is necessary to note that in the said Ex.P13 agreement the cheques issued to the complainant are clearly mentioned. It is pertinent to note that the cheques issued are not dated.
29 Crl.Appeal No.25337/202240. The confirmation deed relied on by the complainant shows that it is a registered document wherein it is clearly mentioned that there were 2 sale transaction in respect of the very same properties and accordingly confirmation deed was executed by the complainant in favour of this accused. From the documents of complainant it is clear that there were pending litigation between this complainant and accused in respect of property bearing Sy.No. 43/4 & 50/4. In the cross-examination the accused tried to elicit that the cheques were given to Munegowda as security and the complainant has misused the said cheques. He also tried to elicit that the accused paid Rs.45 lakhs on 08.12.2014 on humanitarian ground as they obstructed the selling of site by the accused.
41. It is vital to note that the property in Sy.No. 43/4 was sold by the original grantee by name Basappa in favour of Sriramaiah. The said sale was held in the year 1992 itself. Subsequently the legal heirs of said Basappa have again sold the very same property to the accused. Accordingly the litigation was arose between parties and to settle the dispute of this complainant who 30 Crl.Appeal No.25337/2022 is none other than the legal heir of Sriramaiah the accused executed the Ex.P13 sale agreement.
42. The complainant's entire case is revolving around the recital of said sale agreement. Wherein it is stated as stated above that the accused has agreed to pay amount to the complainant in respect of the property which he purchased from the LRs of said Basappa. Accordingly the complainant and others have executed confirmation deed and they accepted sale deed executed by LRs of Basappa.
43. On perusal of the cross-examination of PW-1 the counsel for the accused tried to elicit that Ex.P13 is not executed by accused and the same is created. When the accused has taken defence that Ex.P13 is created the burden is on accused to establish the said fact. However except bald suggestion that Ex.P13 is created no evidence as such is placed to prove the said contention. Hence, it is clear that it is to discharge the legally enforceable claim the accused has issued the Ex.P1 & 2 cheques to the complainant.
44. The accused who accepted his liability of payment to the complainant has issued the Ex.P1 & 2 31 Crl.Appeal No.25337/2022 cheques. The accused admits 2 sale deeds executed in respect of same properties by the original grantee on the one hand and by his LRs on another hand. Accordingly accepting the claim of the complainant he executed Ex.P13 sale agreement and further accepting his liability of payment to the complainant has issued the Ex.P1 & 2 cheques.
45. The accused taken a defence that Ex.P1 & 2 are issued to one Munegowda as a security. It is necessary to note that why the said cheques are issued to Mune gowda, was there deficiency in sale consideration, was there any grudge to said Munegowda against this accused, why the said Munegowda gave cheque to this complainant are all remained unanswered. It is relevant to note hear itself that if the accused had given Ex.P1 & 2 cheques to Munegowda then the accused could have given notice to the said Munegowda and ask for return of his cheques. It is also necessary to note that the complainant and Munegowda are not relatives.
46. Even if the defence of the accused has considered that the said cheques are issued to Munegowda then admittedly the very same accused got 32 Crl.Appeal No.25337/2022 the sale deed from Munegowda & others on 08.09.2011 itself. If the accused has to give cheque to Munegowda definitely it should be before execution of sale deed dated 08-09-2011 and not thereafter. Ex.P13 is executed on 17.09.2012 by this accused in favour of complainant and hence the contention of the accused that he issued cheques to Munegowda as a security has no weight. hence cannot be accepted at any stretch of imagination. That apart if the accused has given cheques as security to said Munegowda and the same were misused by the complainant then it has to be explained by the accused why he has not taken any action as against said Munegowda & this complainant till date. If the cheques were really issued as security to Munegowda then accused could have issued stop payment instructions to his banker in respect of said cheques.
47. It is one more defence of the accused that the cheques as per Ex.P13 are issued in the year 2012 and they were presented on 31.10.2017. In this regard during the course of cross-examination of PW-1 it was suggested that there is no recital in the Ex.P13 that the accused asked for 5 years time for payment of money. However it is also vital to note that in the said Ex.P13 though there 33 Crl.Appeal No.25337/2022 is specific mention about the cheque numbers of Ex.P1 & 2 no date is mentioned. This Ex.P13 is signed by the accused on each and every page. The amount of Ex.P1 & 2 is Rs.60 lakhs and Rs.1 crore 10 lakhs. The assertion of the complainant is that as the amount in Ex.P1 & 2 cheques were heavy the accused sought 5 years time to arrange the amount. As stated above the amount under Ex.P1 & 2 being huge amount and as there is no contrary evidence on record to disbelieve Ex.P13 it is necessary to believe the said assertion of the complainant. That apart in the entire cross-examination of PW-1 no defence as such to show that the debt is time barred is taken by the accused.
48. It is also necessary to note that on presentation of Ex.P1 & 2 they returned with endorsement 'kindly contact drawer drawee bank'. The accused in order to establish that on the date of presentation of said Ex.P1 & 2 cheques was having sufficient balance in his account has not placed evidence. The bank in its endorsement has not stated any reason for such an endorsement. Only for the reason that the bank has issued endorsement in such a manner the court cannot come to the conclusion that the provision of Sec.138 is not attracted. The bank 34 Crl.Appeal No.25337/2022 has not specifically assigned reason why the complainant has to approach the drawer drawee bank. In the absence of any specific endorsement by the bank it is to be accepted that the cheque is dishonored and thereby the same attracted the offence u/sec.138 of NI Act.
49. It is one more defence of the accused that he has paid amount to the complainant and his brother on humanitarian ground. At this stage on careful consideration of the evidence of PW-1 he has denied that accused has paid Rs.45 lakhs on 08.12.2014. However, it is necessary to note that it is not the defence of the accused that the said payment of Rs.45 lakhs is towards part payment of money as agreed in the sale agreement or it is part amount of the cheque amount. Hence, the amount if any paid is not towards the part payment of amount as agreed under sale agreement or in the cheque. Hence, the contention of the accused that he paid Rs.45 lakhs on humanitarian ground does not hold water.
50. During the course of recording of statement of accused u/sec.313 of Cr.P.C. the accused stated that he has transferred money from other account and also paid money in cash. The same falsifies the defence of the 35 Crl.Appeal No.25337/2022 accused that he issued cheques to Munegowda and the complainant misused the same. The accused so as to establish that he paid amount from other account and also in cash so as to discharge the amount under the Ex.P1 and 2 cheques has not placed any evidence.
51. From the careful consideration of ocular evidence of PW-1 it is crystal clear that totally inconsistent stand has been taken by the accused. At one breathe the accused admits the issuance of cheque, execution of 2 sale deeds in respect of very same properties and also the execution of Registered confirmation deed by the complainant and also the cheques in question. He has not denied the amount stated therein or the dates mentioned therein. In the very next moment he contends that he paid amount to complainant on humanitarian ground. In the statement recorded under Sec.313 Cr.P.C., he states that he paid amount by another account and also by way of cash to the complainant. Hence the accused has taken totally inconsistent stand. The above facts clearly shows that the accused has taken up a improbable defence with malafide intention.
36 Crl.Appeal No.25337/202252. The contention of the accused that Ex.P13 agreement was created is not proved by any cogent and convincing evidence. Per contra, the complainant has not only successively discharged his burden, but has also produced sale agreement, documents in respect of civil litigation between this complainant and accused, sale agreement, copy of confirmation deed which clearly shows the legally enforceable liability of accused to the complainant in respect of landed property. It is well settled that the law will not support a person who will sleep over his rights as stated in the latin maxim vigilantibus non dormientibus jura inveniut. In the instant case, with respect to the presumption and also the defense of misuse of cheque and time barred debt taken up by the Appellant the Accused has not rebutted the presumption. 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 37 Crl.Appeal No.25337/2022 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.
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 38 Crl.Appeal No.25337/2022 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 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 39 Crl.Appeal No.25337/2022 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 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 40 Crl.Appeal No.25337/2022 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.
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 41 Crl.Appeal No.25337/2022 PW.1, himself has not been explained by the High court.
53. Accordingly the accused utterly 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 collecting his cheques from Munegowda 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:--42 Crl.Appeal No.25337/2022
(a) of consideration--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;....
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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 43 Crl.Appeal No.25337/2022 money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall...."
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 44 Crl.Appeal No.25337/2022 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. 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 45 Crl.Appeal No.25337/2022 v. Dattatraya G. Hegde, (2008) 4 SCC 54 : (2008) 2 SCC (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 46 Crl.Appeal No.25337/2022 Section 139 of the Negotiable Instruments Act is a presumption 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] .
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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.
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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."
47 Crl.Appeal No.25337/202225. In other judgment reported as Rohitbhai Jivanlal Patel v. State of Gujarat and Another8 this Court held as under:
"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."
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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 48 Crl.Appeal No.25337/2022 accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as 8 AIR 2019 SC 1876 envisaged under Section 118 and 139 of the NI Act.....
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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."
54. To sum up it is noticed that the Accused himself has admitted the impugned cheque at EX.P1 and 2 and also its issuance is categorically admitted by him, whereas it is stated that the cheque was issued to Munegowda. There is absolutely no explanation that why he had kept quiet if the same is given to the Munegowda and not to this complainant. Even after payment of amount to complainant why he has not collected it back 49 Crl.Appeal No.25337/2022 and not taken any action against complainant, admittedly 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.2 and 3 in the Negative.
55. POINT No.4: For the various reasons stated in the point Nos.1 to 3 and findings given on them by me, I proceed to pass the following:-
ORDER IA No.1 filed by appellant u/sec.5 of Limitation Act is hereby dismissed.
Appeal filed by the appellant/accused under section 374(3) of Cr.P.C., is also hereby dismissed.
Consequently, the impugned judgment and order of conviction passed 50 Crl.Appeal No.25337/2022 by trial court in CC No.52470/2018 against the appellant/accused dated 18/05/2020 is hereby confirmed.
Remit the trial court records with copy of this judgment.
No order as to costs.
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(Dictated to the Stenographer, after computerization, corrected and pronounced by me in the Open Court, this the 08th day of January, 2026) Digitally signed by ANITHA ANITHA NANJANAGUDU NANJANAGUDU PARASHIVAMURTHY PARASHIVAMURTHY Date: 2026.02.02 14:38:44 +0530 (Anitha N.P.) rd 73 Addl. CC & SJ, M.H.Unit, Bengaluru. (CCH-74)