Bangalore District Court
Dinesha. K.K vs Shekarappa on 3 September, 2025
KABC030944762021
Presented on : 20-12-2021
Registered on : 20-12-2021
IN THE COURT OF XXI ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
Dated this the 3rd day of September 2025
PRESENT
Sri. Dinesh B.G, B.Com.,LL.M.
XXI ACJM, Bengaluru
CRIMINAL CASE NO.36579/2021
Complainant : Dinesha.K.K,
s/o.Krishnappa, aged about 31 years,
No.39, 4th cross, 2nd main, Balajinagar,
Sudguntepalya, Near Sudguntepalya
Police station, Bangalore-560029.
(By Sri.MKC., Adv)
V/s
Accused : Shekarappa,
s/o.Thimmappa,aged about 60 years,
R/at.No.Chikkabbigere village,
Doddabbigere Post, Santhbennur
hobli, Chennagiri taluk, Davanagere
District-577552.
(By Sri.NR, Adv.)
JUDGMENT
(C.C.No.36579/2021 Judgement) 2 The accused has been tried for the offence punishable U/s 138 of Negotiable Instrument Act.
2. The brief case of the complainant is that:-
The accused is well known person to the complainant. In the first week of November 2020, he requested for hand loan of Rs.2.5 lakhs for the purpose of development of his business and for urgent family necessities. He lent the hand loan of Rs.2.5 lakhs on 16/11/20. The accused promised to repay the said amount within 9 months. Since accused failed to repay the said amount within 9 months, he approached him and insisted for repayment of the said amount. Finally the accused issued a cheque bearing no.766412 dtd:
05/10/2021 drawn on Canara Bank, Santhebennur branch, Davanagere towards discharge of said debt. When said cheque was presented through his banker Axis bank, Majestic branch, Bengaluru the said cheque returned with an endorsement 'Alteration/Corrections on instruments are prohibited under CTS' on 5/10/21. So he got issued the legal notice dtd: 28/10/21 to the accused calling him to repay the aforesaid amount. Despite service of demand notice on 8/11/22, the accused neither replied nor repaid the amount. Hence, the complainant has been constrained to file the present case.
(C.C.No.36579/2021 Judgement) 3
3. The cognizance of the offence punishable U/s.138 of Negotiable Instrument Act having been taken on the basis of sworn statement filed in the form of affidavit and Ex.P.1 to P.5 process came to be issued against accused. In response to the summons, the accused appeared through his Advocate and was enlarged on bail. Substance of accusation was framed, read over and explained to accused; who having pleaded not guilty has claimed to be tried.
4. The affidavit filed in lieu of sworn statement has been treated as evidence in view of direction issued by Hon'ble Apex court in the case of Indian Bank Association and Others Vs.Union of India 2014 (5) SCC 59 and got the documents marked Ex.P.1 to P.5.
5. Accused has been examined U/s 313 of Crpc after incriminating circumstances appearing against accused being read over and explained. He has denied the same and has examined himself as DW 1 and got the documents marked Ex.D.1 & D.2.
6. Having heard both side and having gone through the complaint, evidence and materials on record the following points arise for consideration of the court.
(C.C.No.36579/2021 Judgement) 4
1. Whether complainant has proved that accused has issued a cheque bearing no.766412 dtd: 05/10/2021 for Rs.2,50,000/- drawn on Canara Bank, Santhebennur branch, Davanagere, in his favour towards discharge of legally recoverable debt/liability and thereby he has committed the offence punishable U/s 138 of Negotiable Instrument Act?
2. What order?
7. My answers to the above points are as under:-
Point No.1 :- In the Negative Point No.2 :- As per final order for the following:-
REASONS
8. POINT NO.1:- PW1 having reproduced the avernments of the complaint in examination in chief has relied upon cheque dtd:05/10/2021 for Rs.2,50,000/- - Ex.P.1, Reject memo issued by the bank - Ex.P.2, demand notice dtd: 28/10/21 - Ex.P.3, postal acknowledgment - Ex.P.4 and track consignment record - Ex.P.5. The oral testimony of PW1 coupled with the aforesaid exhibits would show that the cheque in question was presented on 05/10/21 and same returned unpaid for the reasons 'Alteration/ corrections on instruments are prohibited under CTS'. The demand notice was (C.C.No.36579/2021 Judgement) 5 issued within 30 days from the date of receipt of intimation from the bank. As per track consignment issued by the postal department the demand notice was delivered on 8/11/21. The complaint has been filed on 16/12/21 within its limitation period. However, the accused has disputed service of demand notice. So burden lies on the complainant to prove that the demand notice has been duly served on the accused. The accused admits his address mentioned in the demand notice and cause title of the complaint. The address mentioned in his Aadhar card - Ex.D1 is same as mentioned in the demand notice. The only dispute is with respect to name of father of accused. In demand notice name of father of accused is mentioned as Thaligappa @ Thalappa. Whereas, Ex.D1 discloses the name of father of accused as Thimmappa. Therefore, the father's name of accused Thaligappa @ Thalappa mentioned in the cause title of the complaint has been replaced by name 'Thimmappa' by way of amendment. According to the accused, due to mentioning of wrong name of his father, notice was not served upon him. In cross examination DW1 states that there are 60-70 households in his village Chikkaabbigere and there is another person whose name is also Shekarappa. However, he states that he does not know the name of father of said Shekarappa. Since accused has not placed (C.C.No.36579/2021 Judgement) 6 any materials on record showing existence of another person having his name in the village, presumption u/s.27 of General Clauses Act has to be drawn regarding service of demand notice as the notice was sent to correct address. Moreover, it is pertinent to note that the accused caused appearance through advocate on 14/2/22 in response to the summons issued by this court to the same address. Therefore, the defence of accused that demand notice was not duly served to him holds no water. Thus, the requirements as contemplated u/s.138 of N.I.Act are satisfied with.
9. At this juncture, it is relevant to refer to the decision in the case of Basalingappa Vs.Mudibasappa AIR 2019 SC 1983 wherein Hon'ble Apex court has held that :
(i) Once the execution of cheque is admitted section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(C.C.No.36579/2021 Judgement) 7
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 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.
10. In Kumar Exports Vs.Sharma carpets 2008(4) SCC 54, Hon'ble Apex court has held that as soon as the complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presumptions u/s.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.
11. From the above decisions, it becomes clear that, the presumptions have to be raised that the cheque pertains to a legally enforceable debt or liability only if signature on the cheque is either acknowledged or established. In other words, if it is established that the cheque in question pertains to the bank account of the accused and signature therein belongs to him, court has to draw such presumptions. In this case, accused has seriously (C.C.No.36579/2021 Judgement) 8 disputed his alleged signature at Ex.P.1(a) contending that the said signature does not belong to him and he has not issued cheque in question at any point of time and same is forged by the complainant. If the drawer disputes the signature on the cheque, burden initially shifts to the complainant to prove that the cheque bears the drawer's signature. So, burden lies on the complainant to establish that the signature at Ex.P.1(a) belongs to the accused. The complainant can prove it by summoning the Manager of the bank to produce specimen signatures ; sending the cheque to handwriting expert ; or other admissible evidence.
12. Admittedly, the cheque - Ex.P.1 was returned unpaid for the reason 'Alteration/corrections on the instruments are prohibited under CTS'. If the cheque was returned with an endorsement 'funds insufficient', it could have been inferred that the manager had verified the signature on the cheque with that of specimen signature available with him. Since the cheque was returned for the aforesaid reason, in the absence of evidence of Manager of the bank, such inference can hardly be drawn. The complainant has not chosen to examine the Manager of the bank to produce specimen signatures and to give evidence to that effect. Further, the complainant has not chosen to get the disputed signature referred to an expert (C.C.No.36579/2021 Judgement) 9 for examination and comparison of disputed signature of accused with admitted signature. It may be relevant to note that the application u/s.45 of Indian Evidence Act filed by the accused seeking for reference of the cheque - Ex.P.1 to the handwriting expert to ascertain the genuineness of the signature on the cheque, came to be dismissed on 27/4/24.
13. It is well settled that the court should not take the risk of comparing the disputed writing with the admitted writing without the aid of evidence of an expert, though sec.73 of Indian Evidence Act states that the court can compare the disputed signature with admitted one to ascertain whether the signature is genuine or not. However, in the absence of opinion of an expert in that regard, if the disputed signature - Ex.P.1(a) is compared with the admitted signatures of accused appearing on vakalath, plea, 313 statement and other records, it can hardly be said that the disputed signature belongs to the accused. The complainant has neither made available any other evidence nor elicited anything in cross examination of DW1 to show that the disputed signature belongs to the accused. Thus, the complainant has not been able to establish that the disputed signature belongs to the accused. When the complainant has failed to discharge initial burden of execution of cheque by the (C.C.No.36579/2021 Judgement) 10 accused, question of drawing presumption u/s.118 and 139 of N.I.Act does not arise. When such presumption cannot be drawn in favour of the complainant to hold that the cheque in question was issued towards discharge of debt, question of shifting the burden to the accused to rebut the same does not arise. On this score alone, the complaint is liable to be dismissed.
14. Be that as it may, coming to the merits of the case, it is the specific defence of the accused that the complainant is unknown to him and he is permanent resident of the village which is 350 kms away from Bengaluru and he did not take any loan from the complainant and he has never issued cheque in question in favour of the complainant. DW1 having reiterated the same has relied upon bank statement - Ex.D2 to show that his account maintained in Canara bank, Santhebennur branch was closed on 30/9/14, which is not seriously disputed by the complainant. As could be seen from Ex.D1, the complainant is resident of Sudguntepalya, Balajinagar, Bengaluru and the accused is resident of Chikkaabbigere village, Channagiri taluk of Davangere district. In cross examination, PW1 admits that the distance between the residence of accused and Bengaluru is 350 kms. It is elicited in the cross examination of PW1 that the complainant did not take (C.C.No.36579/2021 Judgement) 11 any document/security from the accused at the time of lending alleged loan.
15. Except pleading that both are known persons, the complainant has not disclosed as to how he came in contact with the accused. It is the version of the accused that he is an agriculturist, whereas the complainant claims that the accused borrowed loan for improvement of his business. Very address of the accused shows that he is residing in a small village ie., Chikkaabbigere village, Doddaabbigere post, Santhebennur hobli, Channagiri taluk, Davangere. The version of DW1 in his examination in chief that he is an agriculturist has neither been disputed nor denied in cross examination. In the absence of any materials on record, it can be held that accused is an agriculturist. So, the version of the complainant that accused borrowed loan for improvement of his business could hardly be believed. When accused claims that he is unknown to the complainant, complainant has to make available some evidence to show as to how he came in contact with the accused. Looking to the occupation of the accused and the distance between the place of accused and place of complainant besides absence of materials to show that accused is doing business, it is difficult to accept the version of the complainant that accused is known to him and he (C.C.No.36579/2021 Judgement) 12 borrowed loan for improvement of his business. This being one of the circumstances raise a reasonable doubt as to acquaintance and lending of huge amount to the accused.
16. That apart, the accused has taken specific defence that the cheque in question having been materially altered has become void u/s.87 of N.I.Act. Since the dishonour of cheque is due to instrument's invalidity the offence u/s.138 of N.I.Act is not made out against him. In cross examination, PW1 has denied that he has overwritten digit '5' in the amount 'Rs.2,50,000/-' in Ex.P.1. Admittedly, in Ex.P.1 digit '5' is overwritten against '0' in amount Rs.2,00,000/-. In other words, cheque amount in digit is made Rs.2,50,000/- as against Rs.2,00,000/- by overwriting 2nd digit as '5'. Now the question is whether said overwriting amounts to material alteration rendering the cheque in question invalid. Admittedly, cheque in question was returned unpaid for the reasons 'Alteration/Corrections on instruments are prohibited under CTS'. In that regard, it is relevant to refer to the decision of Hon'ble Apex Court in the case of Veera Exports Vs. T.Kalavathi 2001 AIR SCW 4548, wherein it has been held as hereunder :
The first paragraph of Section 87 makes it clear that the party who consents to the alteration as well as the party who made (C.C.No.36579/2021 Judgement) 13 the alteration are disentitled to complain against such alteration, e.g. if the drawer of the cheque himself altered the cheque for validating or revalidating the same instrument he cannot take advantage of it later by saying that the cheque became void as there is material alteration thereto. Further, even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also cannot be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed.
17. In the case of Bhaskaran Chandrashekaran Vs.Radhakrishnan 1998 (1) KLT 881 Hon'ble High court of Kerala has held as hereunder :
Alteration of the date in the cheque may be a material alteration. Alteration may have the effect of lengthening the period of limitation or shortening it. So also alteration of the payee's name is material which affects the character of the instrument, and so also the relationship of the parties. So also the alteration of signature as well as the amount. All this would amount to material alteration.
18. In this case, complainant claims that accused had allegedly borrowed hand loan of Rs.2.5 lakhs and issued the cheque in question towards repayment of the said (C.C.No.36579/2021 Judgement) 14 amount. As already stated supra, amount being Rs.2,00,000/- mentioned in the digit in Ex.P.1 is overwritten to make it Rs.2,50,000/-. Said correction does not bear signature of drawer of the cheque. What it indicates is there is no consent on the part of the drawer of the cheque for alteration of the said amount. It is not the case of the complainant that said correction/overwritten has been made by the accused. Nor it is the case of the complainant that he has made such correction with the consent of the accused. In the absence of consent by the accused, as held in the above decisions, alteration of amount in digit in Ex.P.1 would amount to material alteration rendering the cheque invalid. Material alteration makes a cheque void as contemplated u/s.87 of N.I.Act. Once a cheque is void, it cannot be said that the bank dishonoured it for want of funds or reasons attributable to the drawer's liability. The dishonour due to the material alteration would not attract the provisions of Sec.138 of N.I.Act against the accused. On this score also, the complaint is liable to be dismissed. Such being the case, question of considering as to whether there existed debt or liability on the date of issuance of cheque does not arise. Firstly the complainant has failed to discharge initial burden of proving execution of cheque ie., signature of the accused on the cheque. Secondly, on account of material alteration, as discussed (C.C.No.36579/2021 Judgement) 15 above, the cheque - Ex.P.1 having become invalid has ceased to be an instrument to be enforceable under law. Therefore, the complainant has failed to prove that the accused has issued the cheque in question towards payment of loan amount. Hence, I answer point No.1 in the Negative.
19. POINT NO.2:- In the result, I proceed to pass the following:-
ORDER The complaint filed u/s.200 of Cr.P.C., is dismissed.
Acting U/s.278(1) of BNSS r/w.sec.255(1) of Cr.P.C the accused is hereby Acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond stand canceled after the appeal period is over.
(Dictated to stenographer, transcribed by her, revised by me and then pronounced in open court on this the 3rd day of September 2025) (Sri. Dinesh B.G) XXI Addl.Chief Judicial Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR COMPLAINANT:
P.W.1 - Sri.Dinesha.K.K (C.C.No.36579/2021 Judgement) 16 LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW1 Shekarappa LIST OF DOCUMENTS EXHIBITED FOR COMPLAINANT:
Ex.P.1 Cheque Ex.P.2 Bank endorsement Ex.P.3 Legal notice Ex.P.4 Postal receipt Ex.P.5 Track consignment
LIST OF DOCUMENTS EXHIBITED FOR ACCUSED:
Ex.D.1 Adhar card
Ex.D.2 Statement of account
(Sri. Dinesh B.G)
XXI Addl.Chief Judicial Magistrate, Bengaluru.