Bangalore District Court
Nimith Kumar vs Shankar Reddy on 19 November, 2025
1
Cri Appeal No.1333/2023
KABC010250352023
IN THE COURT OF LV ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-56)
DATED: THIS THE 19TH DAY OF NOVEMBER 2025
PRESENT
SRI. MOHAN PRABHU, M.A., LL.M.
LV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CRIMINAL APPEAL NO.1333 / 2023
Appellant/ NIMITH KUMAR S/O T. MURTHY
accused AGED ABOUT 29 YEARS,
RESIDING AT C/O NARASHIMA RAJU
SOMESHWARA COLONY,
DODDABALAPUR - 561 203
BENGALURU RURAL DIST.
AS PER THE ALELGED COMPLAINT
RESIDING AT No.677, VINAYAKA NAGAR,
4TH WARD, DODDABALAPUR - 561 203
BENGALURU RURAL DIST.
[R/by SRI.RAJESH A., Advs.]
Vs
Respondent/ SHNKAR REDDY
Complainant S/OLATE KRISHNAPPA
SINCE DEAD BY LRs
1(A) SMT.NANAMMA
W/O LATE KRISHNAPPA
AGED ABOUT 60 YEARS,
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Cri Appeal No.1333/2023
1(B) SMT.VANI R.S.
D/O LATE KRISHNAPPA
AGED ABOUT 35 YEARS,
BOTH ARE RESIDING AT RONURU
VILLAGE, RONUR POST, SRINIVASAPURA
TALUK, KOLAR - 563 135.
[R/by Sri M.N.M., Adv.]
JUDGMENT
This appeal is filed U/s.374[3] of Cr.P.C., 1973 by the accused against the judgment of conviction dated:
02.12.2022 passed in C.C.No.25742/2019 by learned XVIII Addl. Chief Metropolitan Magistrate for the offence under S.138 of Negotiable Instruments Act [for short 'N.I. Act''] .
(2) The parties are referred to their rank before the trial court.
(3) The case of the complainant is briefly stated as follows:
The complainant and the accused are known to each other from past several years. In the first week of October 2018, the accused has requested the complainant for hand loan of Rs.2,50,000/- for development of his transport business and promised to repay the amount within 7 months. Considering request 3 Cri Appeal No.1333/2023 made by the accused, the complainant has paid sum of Rs.2,50,000/- to the accused by way of A/c Payee, RTGS on 10.10.2018. After expiry of 7 months, the complainant has demanded to repay the said amount. In order to repay the said amount the accused has issued post dated cheque bearing No.00024 dated 10.06.2019 for Rs.2,50,000/- drawn on Bank of Baroda, Doddaballapura branch, Doddaballapura and assured the complainant that the cheque will be honoured on its presentation. As per the assurance of the accused, the complainant has presented the said cheque for encashment through his banker i.e. Dena Bank, Cholanagar branch, Bengaluru, but the said cheque came to be dishonoured and returned unpaid for the reason 'Funds Insufficient', as per bank endorsement dated 15.07.2019. Thereafter the complainant has got issued demand notice dated 07.08.2019 to the accused through RPAD by demanding payment of cheque amount. The accused by colluding with postal authorities got returned the notice with an endorsement insufficient address. Despite of demand notice the accused has not paid the cheque amount and thereby he has committed offence punishable u/S.138 of 4 Cri Appeal No.1333/2023 NI Act. Hence, the complaint.
(4) Based on the complaint filed by the complainant the learned Magistrate taken cognizance of the offence punishable u/S/138 of NI Act and registered a case as PC No.1622/2019. The sworn statement of the complainant came to be recorded on 25.10.2019 as the complainant filed affidavit in lieu of sworn statement and examined as PW1, documents Ex.P1 to P6 are marked.
The learned Magistrate after perusal of the sworn statement of the complainant, the complaint averments and documents passed an order dated 25.10.2019 and directed the office to register case against the accused in Register No.III for the offence punishable u/S/138 of NI Act and issued summons to the accused. Hence case in C.C.No.25742/2019 came to be registered.
(5) On 03.02.2020 the accused appeared before the trial court and engaged his counsel and released on bail. That on 09.12.2021 substance of accusation was read over to the accused, for which the accused pleaded not guilty and claimed for trial. Thereafter the case posted for cross examination of PW1. PW1 fully cross 5 Cri Appeal No.1333/2023 examined by the learned counsel for the accused. Thereafter the accused examined u/S.313 of CrPC on 06.04.2022. The accused has denied all the incriminating evidence. Thereafter PW1 recalled and further cross examined by the learned counsel for the accused. The accused has not led any defence evidence. The learned Magistrate after hearing arguments of both sides pronounced judgment on 02.12.2022 and by exercising power u/S.255(2) of CrPC the accused convicted for the offence punishable u/S/138 of NI Act and sentenced him to pay fine of Rs.3,10,000/- and in default shall undergo simple imprisonment for six months, and out of fine amount, amount of Rs.3,05,000/- is ordered to be paid to the complainant towards compensation u/S.357 of CrPC and balance amount of Rs.5,000/- shall be remitted to the State as defraying expenses.
(6) Aggrieved by the judgment of conviction, accused has preferred this appeal on following among other grounds:-
The learned Magistrate has committed grave error in law in convicting the accused for the offence punishable u/S/138 of NI Act. The learned Magistrate has 6 Cri Appeal No.1333/2023 erred in law accepting and acting upon the evidence of the complainant which are inadmissible and baseless. The complainant only with an intention to grab and make money unlawfully by issuing the cheque which has been issued for security purpose filed false complaint. The complainant not at all proved existence of liability of the appellant. There is no credible evidence in respect of lending amount and receiving the alleged cheque by the complainant. The complainant admitted in his cross examination regarding one Subramanya. The alleged notice dated 07.08.2019 not duly served upon the accused. The notice sent returned as insufficient address. Hence, it cannot be treated as duly served or deemed service u/S.138(b) of NI Act. The complainant has taken false contentions that the appellant colluding with the postal authority managed to return the demand notice by making such shara. The trial court has wrongly drawn presumption u/S/118 & 139 of NI At. If the impugned judgment is set aside, no injury would be caused to the respondent. On the other hand, if this appeal is no allowed, opportunity is not granted to the accused to contest the case on merits, the accused and his family 7 Cri Appeal No.1333/2023 members will be put to irreparable injury, great hardship and mental agony. Due to family dispute with his family and mother. The accused was forced to leave the place and during that period mobile phone which was using by the appellant was misplaced. He lost contact number of his previous counsel. The appellant could not follow the case proceedings, the appellant's wife got aborted during 7th months pregnancy. Due to the same the appellant not to known about the pronouncement of the judgment by the trial court. Hence, there is delay in preferring this appeal. The impugned judgment passed by the learned Magistrate is illegal, improper and incorrect and resulted in miscarriage of justice. Hence, on these grounds, the appellant prays to allow appeal.
(7) The appellant also moved an application IA No.I u/S.5 of Limitation Act praying to condone the delay of 8 months 12 days in preferring this appeal. In the affidavit filed in support of IA No.I the appellant sworn that the learned Magistrate pronounced the judgment on 02.12.2022 without giving sufficient opportunity to him to contest the case on merits. The defence evidence was 8 Cri Appeal No.1333/2023 taken as nil, in the absence of his advocate. He was not aware of pronouncing of the judgment. It came to his knowledge only on 07.09.2023, when Doddaballapura Police visited his house to execute NBW and FLW issued against him. The said fact intimated to his family members in his absence. Upon getting information about NBW and FLW he approached his present advocate and got confirmed the impugned judgment and sentence.
Thereafter he applied for certified copy of the same on 11.09.2023. Due to family dispute with his wife and mother and during that period his mobile phone was also misplaced. Hence, he could not contact is previous counsel. His wife got aborted during 7 th months pregnancy. Due to the same he was under depression. ON 07.09.2023 he came to know about passing of impugned judgment and sentence. He was not aware of the procedure and legal aspects in respect of preferring the appeal challenging the impugned judgment and sentence. Hence, for the bonafide reasons could not file appeal in time. Hence, on these grounds, he prayed to allow IA No.I. 9 Cri Appeal No.1333/2023 (8) The trial court records received.
(9) The respondent / complainant entered appearance by engaging the counsel.
(10) The respondent has not filed any objection to IA No.I. (11) I have heard the arguments on both sides and perused the entire records. The learned counsel for the respondent filed his written arguments.
(12) The learned counsel for the Respondent placed reliance on the following citations.
1. (2019) 10 SUPREME COURT CASES 287 (UTTAM RAM VS. DEVINDER SINGH HUDAN AND ANOTHER).
2. AIR 2010 SC 441 (RANGAPPA VS. SRI.MOHAN)
3. ILR 2006 KAR 1730 (B.V.SAMPATH KUMR VS. K.G.V. LAKSHMI).
4. ILR 2008 KAR 1883 (LATHA K. NAIR VS. GOLD MOHAR FOODS & FEEDS LTD.) (13) The following points would arise for my consideration:-
Point No.1:- Whether there is sufficient grounds made out by the appellant to allow IA No.I filed u/S.5 of Limitation Act?
Point No.2:- Whether the impugned judgment of conviction and order of sentence passed thereon is illegal, perverse and calls for interference?10
Cri Appeal No.1333/2023 Point No.3:- What order?
(14) My findings to the above points are as below:-
Point No.1:- In the AFFIRMATIVE.
Point No.2:- In the NEGATIVE.
Point No.3:- As per the final order, for the
following
REASONS
(15) POINT NO.1:- The appellant filed an
application IA No.I u/S.5 of Limitation Act praying to condone the delay of 8 months 12 days in preferring this appeal on the ground that passing of impugned judgment and sentence by the trial court was not within his knowledge and the same was came to his knowledge 07.09.2023, when Doddaballapura Police visited his house to execute NBW and FLW issued against him. After getting such information from his family members approached his present advocate and got confirmed about the judgment and sentence passed by the trial court. The appellant further sworn in his affidavit filed in support of IA No.1 is that, due to family dispute with his wife and mother and during that period his mobile phone 11 Cri Appeal No.1333/2023 was also misplaced. Hence, he could not contact is previous counsel. His wife got aborted during 7 th months pregnancy. Due to the same he was under pressure. After coming to know about the impugned judgment and sentence on 07.09.2023 he approached the present counsel and thereafter applied for certified copy and received the same on 11.09.2023 and thereafter he filed this appeal. Hence, for the bonafide reasons, there is delay in preferring the appeal.
(16) The learned counsel for the respondent ha not filed any objection to IA No.I. Both side counsel have not pressed to pass orders on IA No.I. This court while preparing judgment came to know about pendency of this application. Since the respondent has not denied the averments made by the appellant in this application, this court has no other option, except to accept the reasons stated therein. More than that this court already heard argumetns on merits and now the case posted for judgment on merits. Hence, this court is of the opinion that there is sufficient grounds made out by the appellant to allow IA No.1 filed u/S.5 of Limitation Act condoning 12 Cri Appeal No.1333/2023 the delay in preferring this appeal. Hence, I answered point No.1 in the AFFIRMATIVE.
(17) POINT No.2: At the outset, before appreciating the evidence on record and rival contentions of the parties, it is necessary to note down some of the undisputed and disputed facts in this case. The accused has not disputed regarding Ex.p1 cheque is of his bank account. The accused has not disputed his signature appearing on Ex.P1 cheque. In the cross examination of PW1, the accused has not taken such contention he has not at all received Ex.P3 legal notice. The accused has not disputed the entries of Ex.P9 pass-book of the complainant. Now coming to the contention of the accused is concerned, the accused had taken contention that he was working under one Subramanya B.G. who running KPS Transport. It is the contention of the accused is that, his two Tata Ace vehicle attached to KPS Transport and he was supplying materials. It is the contention of the accused is that he had given Ex.P1 cheque to Subramanya B.G. for security purpose, while 13 Cri Appeal No.1333/2023 he delivering the materials to the customer. It is the contention of the accused is that the said Subramanya B.G. is the son in-law of the complainant. It is further contention of the accused is that when he was working under Subramanya B.G., at that time Subramanya B.G. used to transfer the amount and withdrawing amount form the bank account of the accused. It is the further contention of the accused is that, Subramanya B.G. used to transfer the amount and withdrawing the amount from the account of the compl;ainant. It is the contention fo the accused is that on the say of Subramanya B.G. the complainant transfer the amount of Rs.2,50,000/- to the bank account of the accused and the said amount was withdrawn by Subramanya B.G. from the bank account of the accused. It is the contention of the accused is that Subramanya B.G. who received Ex.P1 cheque from the accused for security purpose misused the same by giving the same to the complainant and based on the same the complainant has filed this complaint. It is pertinent to note that in order to substantiate the contention taken by the accused the accused has not stepped into witness box and also not 14 Cri Appeal No.1333/2023 examined any witnesses. No doubt, in view of the catena of judgment of Hon'ble Supreme Court, in order to prove the defence of the accused, the accused need not step into the witness box, he can prove the defence by cross examining PW1. The defence of the accused shall be proved by preponderance of probabilities. Whether the accused has successfully proved his defence by way of preponderance of probabilities, can be seen in this case. Prior to that, I would like to discuss the evidence of the complainant / PW1 and documents produced by the complainant.
(18) In order to substantiate the case of the complainant, the complainant examined himself as PW1 and documents Ex.P1 to P6 are marked. PW1 in his examination in-chief by reiterating the complaint averments has deposed that the accused known to him since past several years. Due to such acquaintance the accused had approached the complainant in the first week of October 2018 and requested him for hand loan of Rs.2,50,000/- to develop his transport business. The accused assured that he will repay the amount within 7 15 Cri Appeal No.1333/2023 months. Considering the request of the accused he had paid sum of Rs.2,50,000/- by way of account payee RTGS from his bank, namely, Dena Bank, Cholanagar branch on 10.10.2018. In order to substantiate this contention taken by the complainant he has produced the documents Ex.P6 bank passbook for having transferred the amount of Rs.2,50,000/- to the bank account of the accused. PW1 has deposed that after expiry of 7 months, when he approached the accused and requested to repay the amount, then the accused had issued post dated cheque bearing No.00024 dated 10.06.2019 drawn on Bank of Baroda, Doddaballapura Branch for a sum of Rs.2,50,000/- in favour of him and assured him that the cheque will be \honoured on presentation. As per the instructions of the accused, he presented the cheque for encashment through his banker i.e. Dena Bank, Cholanagar Branch, Bengaluru. But to the shock and surprise, the said cheque came to be returned with shara 'Funds Insufficient' on 15.07.2019. In order to substantiate this contention taken by the complainant he has produced and got marked document Ex.P1 cheque and Ex.P2 bank endorsement. PW1 further deposed that 16 Cri Appeal No.1333/2023 immediately after the dishonour of the cheque he had demanded the accused to repay the amount covered under the cheque, but the accused went on postponing the same on one or the other pretext and hence, he was left with no other option, but to issue legal notice. Accordingly, he got issued legal notice dated 07.08.2019 to the address of the accused by RPAD. But the said RPAD returned with shara insufficient address. The accused colluding with the postal authorities maintained to return the RPAD with such shara. PW1 has deposed that after service of notice, the accused neither replied the notice nor paid the amount. He has produced and got marked Ex.P3 copy of legal notice dated 07.08.2019. Ex.P5 is the postal covers. It is pertinent to note that during the course of cross examination of PW1 no such question or suggestions put to him that Ex.P3 legal notice not duly served on the accused. PW1 in his cross examination deposed that the accused is residing in Vinayaka Nagar of Doddabalpura.
(19) During the cross examination of pW1, he has deposed that the accused known to him from 7 - 8 years. 17
Cri Appeal No.1333/2023 The accused residing in Vinayaka Nagar, Doddaballapura. He has denied the suggestion that the accused do not know him, at any point of time. He has deposed that the accused demanded to pay amount in the first week of October 2018. He has deposed that he was running vegetable vending shop at Bashettihalli Circle of Doddaballapura. The accused came to his vegetable vending shop and demanded the hand loan amount, at that time of giving hand loan to the accused, he has not received any documents from the accused. The accused used to work as driver in the factory. He has deposed that the accused demanded the hand loan for development of his transport business. He has denied the suggestion that one Subramanya B.G. is his son in- law. He has denied the suggestion that the accused was working under the said Subramanya B.G. He has pleaded his unawareness that the accused had given his Tata Ace vehicle to the KPS transport belongs to Subramanya B.G. He has denied the suggestion that the accused had issued Ex.P1 cheque in favour of Subramanya B.G. for security purpose while he was distributing materials by using his vehicle. He has denied the suggestion that as 18 Cri Appeal No.1333/2023 Subramanya B.G. stolen vehicle belongs to the accused, for which the accused lodged the police complaint. He has denied the suggestion that in the year 2018 Subramanya B.G. demanded him to pay amount of Rs.2,50,000/-. He has denied the suggestion that Subramanya B.G. used to deposit the amount in his bank account and used to withdraw the same. He has denied the suggestion that as the said Subramanya B.G. asked him to transfer the amount of Rs.2,50,000/- to the bank account of the accused, accordingly, he transferred the amount of Rs.2,50,000/- to the bank account of the accused. he has denied the suggestion that he misused the security cheque given to Subramanya B.G. and field this false complaint. He has denied the suggestion that he along with Subramanya B.G. went to his bank and deposited the amount of Rs.2,50,000/- and transferred that amount to the bank account of the accused. He has deposed that he was working in KSRTC as Conductor, taken voluntary retirement in the year 2014 and thereafter he started to run vegetable vending business at Bashettihalli Circle. He has deposed that KPS transport has given him amount of Subramanya B.G. towards 19 Cri Appeal No.1333/2023 purchase of Mangos in Mango grove. He has deposed that as the transaction not finalized, hence, he returned the amount of Rs.2,50,000/- to KPS transport. He has denied the suggestion that on 10.10.2018 Subramanya B.G. deposited amount of Rs.2,50,000/- to his bank account and on the same day, he transferred the amount of Rs.2,50,000/- to the bank account of the accused. He has deposed that his daughter's name is Nagarathna and his on in-law name is Ramesh. He has denied the suggestion that Subramanya B.G. is his son in-law. He has denied the suggestion that in order to avoid income tax Subramanya B.G. transferred the amount to his bank account and thereafter he transferred the amount to the bank account of the accused and from bank account of the accused, Subramanya B.G. withdrawn the same. He has denied the suggestion that he misused Ex.P1 cheque given by the accused to Subramanya B.G. and filed this false complaint. Thus on perusal of the cross examination portion of PW1, the accused has not at all disputed regarding transferred amount of Rs.2,50,000/- from the bank account of the complainant to his bank account as on 10.10.2018. But it is the contention of the accused is 20 Cri Appeal No.1333/2023 that the said amount of Rs.2,50,000/- was transferred by the complainant on the say of Subramanya B.G. It is further contention of the accused is that Subramanya B.G. after making such transfer of Rs.2,50,000/- to the bank account of the accused, he withdrawn the same from the bank account of the accused. In order to substantiate such contention taken by the accused he has not produced single document. He has also not produced his bank account statement to show any such transaction. Usually, other than the bank account holder no other person can withdraw the amount. But in this case, the accused had taken strange contention that it was Subramanya B.G. who got transferred the amount of Rs.2,50,000/- from the bank account of the complainant to the bank account of the accused and thereafter withdrawn that amount from the bank account of the accused. As I already noted, all these suggestions made to PW1 fairly denied by PW1. Mere asking suggestions are not proof or evidence.
(20) The learned counsel for the complainant relied on the judgment of Hon'ble Supreme Court reported in 21 Cri Appeal No.1333/2023 (2019) 10 SUPREME COURT CASES 287 (UTTAM RAM VS. DEVINDER SINGH HUDAN AND ANOTHER), wherein it is held that apart from adducing direct evidence to prove that the consideration did not exist, or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstnaces so relied upon are compelling, the burden may likewise shift again on to the complainant - Accused may also rely upon presumptions of fact, for instance, those mentioned in S.114 of the Evidence Act to rebut the presumptions arising under Ss.118 and 39 of NI Act. It is further held that presumption u/Ss.118 and 139 are statutory presumptions. The burden of rebuttal of presumption u/S./118 and 139 of NI Act are on the accused, and the said burden of proof is preponderance of probabilities. The learned counsel for the complainant relied upon the judgment of Hon'ble Supreme Court reported in AIR 2010 SC 441 (RANGAPPA VS. SRI.MOHAN), wherein it is held that presumption mandated by S.139 includes a presumption that there exists a legally enforceable debt or liability - However, such presumption is rebuttable in nature. He relied on the judgment of the Hon'ble High 22 Cri Appeal No.1333/2023 Court of Karnataka reported in ILR 2006 KAR 1730 (B.V.SAMPATH KUMR VS. K.G.V. LAKSHMI), wherein it is held that when once issue of cheque is proved, the presumption u/S/139 of NI Act would arise, with regard to consideration. He relied on the judgment of Hon'ble High Court reported in ILR 2008 KAR 1883 (LATHA K. NAIR VS. GOLD MOHAR FOODS & FEEDS LTD.), wherein it is held that revision petition was not successful in his attempt to rebut the evidence available on record (21) I have gone through all these cited decisions. In my humble view, the principles of these cited decisions are aptly applicable to the present case. The accused in this case has failed to rebut the presumption available to the complainant u/S/138 and 118 of NI ct. Mere suggestions made to PW1 is not sufficient to hold that the accused successful in rebutting presumption available to the complainant u/S.1398 and 118 of NI At. All the suggestions made to PW1 are denied by him.
(22) The learned counsel for the appellant argued that even though Subramanya B.G. is the son-in-law of 23 Cri Appeal No.1333/2023 PW1, he has falsely deposed that he is not his son-in-law. Such arguments of the learned counsel for the accused is not acceptable without there being any proof to show that Subramanya B.G. is the son in-law of the complainant. No doubt, during the course of cross examination of PW1, he has deposed that his daughter's name is Nagarathna, but while bringing legal heirs of the deceased respondent, the name of respondent No.1(a) is mentioned as Smt.Vani R.S. However, there is no document or evidence on the side of the accused to show that Subramanya B.G. is the son in-law of PW1. Even if it is presumed that Subramanya B.G. is son-in-law of PW1, then also the accused has failed to prove that he had issued Ex.P1 cheque in favour of Subramanya B.G. for security purpose. Since there is document Ex.P6 bank passbook to show entry regarding transfer of amount of Rs.2,50,000/- from the bank account of the complainant to the bank account of the accused, it is for the accused to show that the said amount of Rs.2,50,000/- was withdrawn by Subramanya B.G. and utilized by Subramanya B.G.. But in this case, for obvious reasons best known to the accused, he has not produced any 24 Cri Appeal No.1333/2023 documents including his bank account statement. In this appeal the accused would contend that notice as per Ex.P3 not duly served upon him. As I already noted down during the course of cross examination of PW1, no such questions asked or suggestion made to PW1 that Ex.P3 notice was not served upon the accused. When there is no such evidence led before the trial court is that Ex.P3 notice sent to wrong address it cannot be held that Ex.P3 not at all served on the accused. PW1 even in his cross examination also deposed that the accused residing in Vinayaka Nagara, Doddaballapur. In Ex.P3 notice, the address of Vinayaka Nagara, Doddaballapura is mentioned. When the trial court issued notice and warrant to the same address of the accused mentioned in Ex.P3 and cause title of the complaint, the accused entered appearance before the court and by engaging his counsel and he was released on bail. If at all the accused was not residing in that address he should have stated in the initial stage itself what is his correct address. Person can change his address at any point of time. Since when the summons / NBW issued against the accused to the same address and on the basis of that accused appeared 25 Cri Appeal No.1333/2023 before the trial court and engaged his counsel, under such circumstances, it cannot be held that the address which is mentioned in Ex.P3 notice is wrong address. More than that PW1 in his examination in-chief itself has stated that the accused himself managed to have enter such shara of insufficient address by colluding with the postal authorities. This oral evidence of PW1 is not tested in his cross examination. In other words, this oral evidence is not denied by the accused in the cross examination of PW1. That itself is sufficient to hold that Ex.P3 notice was served on the accused. With respect to contention of the acused is that no sufficient opportunity was given to him to lead defence evidence is concerned, on perusal of the order sheet of the trial court, it would go to show that the evidence of PW1 / complainant closed on 14.09.2022, thereafter the trial court posted the case for defence evidence on 28.09.2022 and 20.10.2022. Despite of giving two adjournments the accused has not led the defence evidence. The trial court has given sufficient time to the accused to lead defence evidence. But the accused has not led defence evidence. Hence, such contentions of the accused / appellant is that no 26 Cri Appeal No.1333/2023 sufficient opportunity was given to the accused to lead evidence is not acceptable. The trial court has rightly drawn presumption available u/Ss.139 & 118 of NI Act.
(23) In the judgment of Hon'ble Supreme Court in the case of K.S. Ranganath Vs Vitthala Shetty reported in 2022 [1] Crimes 454-[SC] wherein head note reads as below:-
"Negotiable Instruments Act, 1881 - Section 138 read with Sections 118 and 139- Dishonour of cheque-Conviction and sentence
- When a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount - Onus is on accused to raise a probable defence and standard of proof for rebutting presumption is on preponderance of probabilities-Defence sought to be put forth and witnesses examined in instant proceedings are only by way of improvement in respect of same cause of action-Defence sought to be put forth relating to cheque and other documents having been obtained by force, cannot be accepted as a probable defence when respondent successfully discharged initial burden cast on him-Appeal dismissed.(Paras 11, 17 and 19)"
(24) In the decision of Hon'ble Supreme Court reported in 2019(1) DCR 401 between Bir Singh V/s Mukesh Kumar it is held that a meaningful reading of the 27 Cri Appeal No.1333/2023 provisions of the Negotiable Instrument 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 he 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. In my humble view, the principles of these cited decision is aptly applicable to the present case because PW1 in his examination in chief clearly deposed regarding accused issuing Ex.P1 cheque towards repayment of the amount received by him. Further, in the judgment of Hon'ble Supreme Court in a case of Sumeti Vij V/s M.s Paramount Tech Fab Industries, wherein it is held that to rebut the presumption, facts must be proved by the accused on a preponderance of probability. In the decision of the Hon'ble High Court of Karnataka in M Ramesh Kumar Case wherein in para No.5 observed that section 138 of N.I. Act, on proof of issuance of the cheque, the onus 28 Cri Appeal No.1333/2023 shifts to the accused to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of section 138 of N.I. Act. In the decision of Hon'ble High Court of Karnataka in the case of Sitaram Gouda A V/s Isbu Kunhammade it is held that, accused not disputing issuance of cheque, but taking inconsistent stand later- accused not initiating any proceedings as regards misuse, or forgery of cheque and making of wrongful claim- except denial, accused not proving his case beyond reasonable doubt as obligation was on him to do so when he took a special plea.
(25) The Hon'ble Supreme Court in the decision reported in (2023) 10 Supreme Court Cases 148 between Rajesh Jain and Ajay Singh wherein it is held regarding the presumption to be taken under section 118 and 139 of N.I.Act and also held regarding standard of proof required to rebut the presumption by the accused. In my humble view, the principals of this cited decision is aptly applicable to the present case.
29
Cri Appeal No.1333/2023 (26) On perusal of trial court records, the trial court has rightly drawn presumption under S.139 of N.I. Act, by following three ingredients as laid down by the Hon'ble Supreme Court in Rangappa Vs Mohan reported in 2010 SC 1898. Section 139 of N.I. Act empowers the court to presume that holder of cheque received it for discharge of any liability enforceable debt or liability. Burden is on the accused to rebut the said presumption.
(27) Section 118 of The Act reads thus:
118. Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made:--
(a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
(28) Further, Section 138 of The Act reads thus:
138. Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account 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 30 Cri Appeal No.1333/2023 made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
(29) Further, Section 139 of The Act reads thus:
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. 31
Cri Appeal No.1333/2023 (30) Section 118 of The Act pertains to presumption of negotiable instrument which mandates that 'unless the contrary is proved.' Similarly, Section 139 of The Act also mandates that 'unless the contrary is proved.' Therefore, it has to be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge in whole or in part of any debt or liability. Needless to say that the presumption contemplated under Section 139 of the Act is rebuttal presumption. However, the onus of proving that the cheque was not issued towards discharge of any debt or liability is on the accused. But in this case, the accused has failed to prove his defence that complainant misused cheque by preponderance of probabilities. It is relevant to cite the decision of Hon'ble Supreme Court in the case of Sunil Todi and others V/s State of Gujurat and another and in judgment of Hon'ble High Court of Karnataka which are reported in 2021(2) KCCR SN 119 (DB), Judgment reported in 2006 (5) KLJ 323 and reported in 2006(3) KLR 333. When the cheque issued in blank, the holder of the cheque has authorized to fill the amount due.
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Cri Appeal No.1333/2023 (31) Further, The Hon'ble Apex Court in (2012) 13 SCC 3123 (Laxmi Dyechem v. State of Gujarat) has held thus:
"It has to be presumed that the cheque was issued in discharge of debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. However, this presumption coupled with the object of Chapter XIV of The Act leads to the conclusion that by countermanding payment of post dated cheque party should not be allowed to get away from the penal provision of Section 138 of The Act. "
(32) Therefore, in my opinion, the learned trial judge on proper appreciation of the evidence on record has rightly come to the conclusion that the accused has committed offence punishable U/s.138 of N.I. Act. There is no infirmity in the impugned judgment of conviction and sentence passed thereon and warrants no interference at the hands of this appellate court.
(33) Considering on re-appreciation of entire evidence and after perusal of entire records, this court is of the opinion that there is no infirmity in the order passed by the trial court in C.C. No.25742/2019. Hence, I answered point No.2 in the NEGATIVE.
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Cri Appeal No.1333/2023 (34) POINT NO.3:- In view of my findings on point No.1 and 2, I proceed to pass the following ORDER Application filed U/s 5 of Limitation Act filed by the appellant is allowed and delay in filing the appeal is condoned.
The appeal filed by the appellant/ accused U/s.374 [3] of Cr.P.C. is hereby dismissed.
The judgment of conviction and sentence passed by the Learned XVIII ACMM, Bangalore in CC No.25742 of 2019 dated 02.12.2022 is hereby confirmed.
The office is directed to send back TCR forthwith to XVIII ACMM, Bangalore along with a copy of this judgment.
[Dictated to the SG-I, typed and transcribed by him, corrected and pronounced by me in the open court on this the 19th day of NOVEM BER 2025 ] (MOHAN PRABHU), LV Addl. City Civil & Sessions Judge, Bengaluru. (CCH-56)