Bangalore District Court
Jyothi.G vs P. Jayalakshmi on 15 November, 2025
1 Crl.Appeal No.1314/2022
KABC010292102022
IN THE COURT OF THE LXII ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-63), BENGALURU.
DATED: THIS THE 15TH DAY OF NOVEMBER, 2025.
P R E S E N T:-
Sri. Raghavendra S. Channabasappa, B.A., LL.B (Spl).,
LXII Additional City Civil & Sessions Judge,
Bengaluru City.
CRIMINAL APPEAL No.1314/2022
APPELLANT : Smt.Jyothi G.,
W/o. Gopinath K.,
Aged about 52 years,
R/at Rajarajeshwari Nagara Gate,
Next to the Club,
Bangalore-Mysore Road,
Nayundahalli,
Bangalore-560 039.
(By Sri.Sanjeevegowda M.V., Advocate)
- V/S -
RESPONDENT: Smt.P.Jayalakshmi,
W/o.Pradeep Sabhapathi,
Aged about 58 years,
R/at No.42, Sri Hari Nilaya,
K.K.School, Spoorthy Layout,
Kadabagere,
Bangalore-562 130.
(By Sri.A.Rajesh, Advocate.)
2 Crl.Appeal No.1314/2022
JUDGMENT
The appellant challenged the judgment passed by the present criminal appeal is preferred by the appellant accused U/Sec.374(3) of Cr.P.C against the Judgment dated.06.10.2022 passed in C.C.No.3024/2018 by the learned 4th Addl. Small Cause Judge & ACMM, Court of Small Causes, Bengaluru, wherein the said trial Court convicted the appellant for the offence punishable U/s.138 of N.I. Act and sentenced him to pay a fine of Rs.7,05,000/-, in default shall undergo simple imprisonment for six months, out of fine amount Rs.7,00,000/- shall be paid to the complainant and the balance amount of Rs.5,000/- is defrayed to the state for expenses incurred in the prosecution.
2. For the sake of convenience, the parties are referred to as per their litigative status before the trial court. The appellant is the accused and the respondent is the complainant as per their original ranks before trial Court.
3. The Respondent/complainant filed the complaint against the appellant before the trial Court for the offence punishable U/Sec.138 of N.I.Act. Based on the said complaint, cognizance was taken, sworn statement of the complainant was recorded and the case was registered against the accused in 3 Crl.Appeal No.1314/2022 C.C.No.3024/2018 for the offence punishable U/Sec.138 of N.I. Act. Upon service of summons, the accused appeared through her counsel and plea of the accused was recorded and the accused pleaded not guilty.
4. During the course of trial in order to prove the case of the complainant, the complainant got examined himself as Pw1 and got marked documents as Exs.P.1 to Ex.P.13. Accused when examined U/s. 313 of Cr.P.C denied all incriminating circumstances appearing in evidence against him. On the other hand, accused examined as DW1 and on her behalf marked document Ex.D.1. Accused when examined U/s. 313 of Cr.P.C denied all incriminating circumstances appearing in evidence against him.
5. After hearing both the parties, the Court below convicted the accused for the offence punishable U/s.138 of N.I.Act and sentenced him as aforesaid. Being aggrieved by the said conviction and sentence of the trial court, the appellant/accused has filed this criminal appeal by challenging the Judgment on the following grounds:
1) The impugned judgment is not maintainable in law facts illegal or probabilities of the case and the learned Magistrate ought to have dismissed the cheque bounce case for the reason that the alleged debt is time barred debt and the same can not be enforceable legally uner N.I. Act.4 Crl.Appeal No.1314/2022
2) The learned magistrate ought to have dismissed the cheque bounce case for the reason that the evidence was adduced through her power of attorney and he had not got personal knowledge about alleged transaction and as such the complainant has not proved the casein the manners known to law about the existence of legally enforceable legally under N.I. Act inspite of that the learned judge erred to under stand the same only on the assumption and presumption.
3) The learned magistrate ought to have dismissed the cheque bounce case for the reason that the complainant has not placed any documentary evidence to show that he had financial capacity to lend the said amount & no document was placed as such she had no financial capacity and it is false hence the impugned judgment is liable to be dismissed.
4) The learned magistrate erred in not giving sufficient opportunity to the accused to cross-examine the PW1 and there is no legally enforceable debt or liability and there is no proof of that the alleged cheque was issued for the enforcement of legally enforceable debt or liability.
5) The learned judgment erred in relying the CD and come to conclusion that the complainant has proved the case even though it is created and concocted document and not admissible and not proved the same in the manners known to law.
6) The loan alleged by the complainant is totally inconsistent and not at all tallied and on plain reading of the complaint entertain doubt about the case of the complainant and as such the complaint ought to have been dismissed but erred and passed impugned judgment and appeal is intime.5 Crl.Appeal No.1314/2022
Interalia on these grounds, the appellant sought for allowing of this criminal appeal and to set-aside the impugned Judgment and to acquit the appellant/accused.
6. After admitting of this criminal appeal, the notice was issued to the respondent. The respondent appeared through her counsel. The lower Court records secured.
7. Heard arguments of learned counsel for respondent. I have carefully perused the entire lower Court records pertaining to this case and the impugned Judgment.
8. Heard arguments on Respondent. Perused the records.
9. The following points arise for the consideration of the Court:-
1) Whether the appellant made-out grounds to allow the appeal and set-aside the order passed by the learned 4th Addl. Small Cause Judge & ACMM, Court of Small Causes, Bengaluru on 06.10.2022 in C.C.No. 3024/2018 ?
2) What order?
10. The findings of the Court on the aforesaid points are as under :
Point No.1 : In the Negative, Point No.2 : As per final order, for the following:6 Crl.Appeal No.1314/2022
REASONS
11. POINT No.1:- The case of the Complainant is that, the accused is her sister. The complainant has availed a loan of Rs.45,00,000/- from the bank and said amount was credited to her account on 19-02-2016. The accused and her husband approached her and availed a credit facility to the tune of Rs.23,30,500/-. The complainant has paid a sum of Rs. 9,50,000/- to the accused and his wife on 19-02-20016 and 20-02-2016. She further alleged that the accused and his wife again requested her and she paid a amount of Rs. 2,50,000/- to the accused and his wife by way of cash. The accused and her husband again requested her for the credit facility and she paid a sum of Rs. 2,30,500/- by way of cheque. On 02-03-2016 the accused and his wife again approached the complainant for the credit facility and the complainant has paid a sum of Rs. 10,00,000/- to the accused and her husband through cheques. It is also alleged that the accused and his wife undertaken to clear the bank loan availed by the complainant. They assured that they will pay the monthly installments to the bank. The accused and her husband did not pay the bank installments. Subsequently for repayment of the said amount the accused and his wife issued the cheques. The issued cheque bearing No.752369 dated 30.04.2018 for a sum of Rs.5,00,000/- and another cheque bearing No.752370 7 Crl.Appeal No.1314/2022 dated: 16.05.2018 for a sum of Rs.2,00,000/- drawn on Indian Bank, New timber yard layout Branch, Bengaluru. Thereafter, the cheques were presented for collection in the account of the complainant and the said cheques were dishonored by the said Bank on 01.05.2018 and 17.05.2018 on the ground that the "funds insufficient". Thereafter, the complainant issued a statutory notice dated:21-05- 2018 U/Sec.138 of the Negotiable Instrument Act, to the accused. The accused received the notice. The accused has not paid the amount. Since the said notice was not complied with, the above said complaint is preferred by the complainant.
12. In response to the summons, the accused put her appearance before the court through her counsel and filed bail application U/Sec. 436 of Cr.P.C., the accused has been enlarged on bail. The substance of accusation has been recorded and read over to the accused, he pleaded not guilty and stated the defense that, he has not issued cheques in favour of the complainant. On filing application by the complainant U/Sec.145(1) of NI Act, sworn statement of the complainant has been treated as examination in chief. Similarly, on filing application U/Sec.145(2) of NI Act, the accused has been permitted to cross examine PW.1. On completion of the trial of the complainant's side, the statement of accused 8 Crl.Appeal No.1314/2022 U/Sec.313 of Cr.P.C has been recorded and read over to the accused, the incriminating material found in the trial of the case of the complainant. The accused has denied the same in toto. The accused also wants to lead her defense evidence. Similarly, the accused has entered in the witness box and got marked document as Ex.D.1.
13. The learned counsel for the appellant/accused argued before the Trial Court that she has not due any amount to the complainant, even though the respondent has not return the cheque to the appellant and filed false complaint, therefore the trial court passed the Judgment against the appellant is not sustainable and liable to be set-aside.
14. On careful perusal of the Judgment, Whether Judgment passed passed by the Trial Court in C.C.No.3024/2018, dated 06.10.2022 is hold and good or committed any error, after perused the Ex.P.1 to 13 i.e., Cheques, Bank endorsements, office copy of Legal Notice, Postal receipt, Reply Notice, Bank Statement, Pass Book, Transcription of CD., Certificate U/Sec.65(B) of Indian Evidence Act, GPA and CD and Relevant order portion and also observed all the evidence of the complainant and passed the Judgment against the appellant.
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15. Perused entire order sheets, complaint filed U/s. 200 of Cr.P.C., for the offence punishable U/s.138 of N.I.Act., examination- in-chief affidavit of the complainant, plea of accusation, contents of exhibited documents Exs.P.1 to P.13. There is no procedural defect of any nature while conducting trial relating to private complaint registered for the offence punishable U/s.138 of N.I.Act.
16. So far as appreciation of evidence is concerned, Complainant is examined as PW1. PW1 has reiterated averments of complaint in her examination-in-chief. Ex.P.1 and 2 are the cheques, Ex.P.1(a) is the signature of the accused, Ex.P.3 and 4 are the Banker's endorsement, Ex.P.5 is the office copy of Legal Notice, Ex.P.6 is the Postal receipt, Ex.P.7 is the Reply Notice, Ex.P.8 is the Bank Statement, Ex.P.9 is the Pass Book, Ex.P.10 is the Transcription of CD., Ex.P.11 is the Certificate U/Sec.65(B) of Indian Evidence Act, Ex.P.12 is the GPA and Ex.P.13 is the CD . The complainant has deposed that the accused is her sister. The complainant has availed a loan of Rs.45,00,000/- from the bank and said amount was credited to her account on 19-02-2016. The accused and her husband approached her and availed a credit facility to the tune of Rs.23,30,500/-. The complainant has paid a sum of Rs. 9,50,000/- to the accused and his wife on 19-02-20016 10 Crl.Appeal No.1314/2022 and 20-02-2016. She further alleged that the accused and his wife again requested her and she paid a amount of Rs. 2,50,000/- to the accused and his wife by way of cash. The accused and her husband again requested her for the credit facility and she paid a sum of Rs. 2,30,500/- by way of cheque. On 02-03-2016 the accused and his wife again approached the complainant for the credit facility and the complainant has paid a sum of Rs. 10,00,000/- to the accused and her husband through cheques. It is also alleged that the accused and his wife undertaken to clear the bank loan availed by the complainant. They assured that they will pay the monthly installments to the bank. The accused and her husband did not pay the bank installments. Subsequently for repayment of the said amount the accused and his wife issued the cheques. The issued cheque bearing No.752369 dated 30.04.2018 for a sum of Rs.5,00,000/- and another cheque bearing No.752370 dated:
16.05.2018 for a sum of Rs.2,00,000/- drawn on Indian Bank, New timber yard layout Branch, Bengaluru. Thereafter, the cheques were presented for collection in the account of the complainant and the said cheques were dishonored by the said Bank on 01.05.2018 and 17.05.2018 on the ground that the "funds insufficient".
Thereafter, the complainant issued a statutory notice dated: 21-05- 11 Crl.Appeal No.1314/2022 2018 U/Sec.138 of the Negotiable Instrument Act, to the accused. The accused received the notice. The accused has not paid the amount. Since the said notice was not complied with, the above said complaint is preferred by the complainant. Thereafter, burden shifts on the accused as per presumptions U/Secs. 118 & 139 of N.I Act in the form of reverse onus on the accused to rebut presumptions.
17. To rebut the statutory presumption which could be drawn in favour of the complainant and also to prove the probable defense to the touch stone of preponderance of probabilities, the accused and other four witnesses entered into the witness box and adduced their evidence as DW1 and placed before the Court in documents i.e., Ex.D.1 is the Statement. The Learned Prosecuting Counsel has cross examined DW.1 at length.
18. It is settled principle of law as held by House of Lords in Vickers Sons and Maxim Ltd., Vs. Evans (1910) AC 444 as quoted with approval by the Hon'ble Apex Court in Jamma Masjid, Mercara Vs Kodimaniandra Deviah and Others AIR 1962 SC 847 and reiterated in Shiv Shakti Co-operative Housing Society vs Swaraj Developers, AIR 2003 SC 2434 and in catena of decisions that the court cannot read anything into a statutory provision which is plain and unambiguous.
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19. On bare perusal of the object of the Negotiable Instruments Act, it shows that the main object of the Chapter introducing dishonour of cheque on account of insufficiency of funds as penal offence in the Act is to enhance the acceptability of cheque. In order to attract the ingredients of Sec.138 of NI Act, the complainant needs to prove that the cheque drawn by a drawer of the cheque on an account maintained by him issued to the payee in discharge of any debt or other liability, cheque is presented to Bank within three months of the date of cheque and returned by the drawer bank as unpaid, complainant has made a demand for the payment of the said amount of money by giving a notice in writing within 30 days of receipt of information of dishonour by the Bank, and the drawer of such cheque has not made the payment of the said amount of money to the payee within fifteen days of the receipt of the said notice, then such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of the Act, be punished with imprisonment for 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.
20. It is well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused. An accused is presumed to be innocent unless proved guilty. It is the complainant/prosecution to prove the guilt of the accused 13 Crl.Appeal No.1314/2022 beyond reasonable doubt. However, in respect of offence U/Sec.138 of the Act, although there is a reverse onus clause contained in Sections 118 & 139 of the Act, the initial burden is on the complainant.
21. It is also a settled proposition of law that the standard of proof which is required from the accused to rebut the statutory presumption U/Sec. 118 r/w. Sec. 139 of the Act is preponderance of probabilities. The accused is not required to prove her case beyond reasonable doubt. This onus on the accused can be discharged from the materials available on record and from the circumstantial evidences or even by admissions in the cross-examination of complainant and his witnesses.
22. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan reported in AIR 1999 SC 3762, the Apex Court held that once the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the N.I. Act can legally be drawn to infer that the cheque was made or drawn for consideration on the date which the cheque bears.
23. In Rangappa Vs. Sri Mohan reported in AIR 2010 SC 1898, a three Judges' bench of the Supreme Court held that that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of 14 Crl.Appeal No.1314/2022 the cheque arises. It is for the accused to rebut the said presumption, though accused need not adduce her own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption. A post-dated cheque is a well recognized mode of payment.
24. In K.S. Ranganatha Vs. Vittal Shetty reported in 2021 SCC OnLine SC 1191, a three judges' bench of the Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
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25. M/s. Kalemani Tax Vs. Balan (Crl.A.No.123/2021) (LL 2021 P.75) decided on 10.02.2021, a three judges' bench of the Supreme Court of India has observed that, even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption U/Sec.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.
26. In M/s. Ashok Transport Agency V/s. Awadhesh Kumar and Another, reported in 1998(5) Sec.567, Court has observed as under;
"A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said 16 Crl.Appeal No.1314/2022 business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business "insofar as the nature of such case permits". This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case"
In view of the nature of the case, the same has been reiterated in Raghu Lakshminarayanan V/s. Fine Tubes, 2007 (5) SCC 103.
27. Further, Hon'ble High Court of Karnataka in H.N.Nagaraj Vs. Suresh Lal Hiral Lal, reported in 2022 LIVELAW (Karnataka) 400, it is observed that in a proceeding under Sec.138 of N.I. Act, the arraying of a proprietor as an accused or a proprietary concern represented by the proprietor would be sufficient for compliance u/Sec.138 of N.I. Act. The proprietor and the proprietary concern are not required to be separately arrayed as party accused.
28. Applying the above said principles to the present case and before considering the point whether accused succeeded to rebut presumptions and to establish her defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.
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29. It is not in dispute that bounced Cheque belongs to the bank account of the accused. It is also not in dispute that, signature appearing on the bounced Cheque is the signature of the accused is differ. It is also not in dispute that, the cheque presented by the complainant came to be dishonoured by the banker of the accused for the reason stated in the dishonour memo.
30. In addition to that accused produced documents to show that, accused examined as a DW1 and deposed that she did not due and also she gave cheques for the security and marked Ex.D.1 statement Ex.D.1 is not helpful to the appellant. Appellant/accused did not produce any documents to establish the fact that she has repaid the cheque amount to the complainant. On the other hand, the oral and documentary evidence adduced by the complainant, it is proved that the accused issued the cheque for legally recoverable debt. It is further observed the appellant or her counsel has not address the arguments even sufficient time has been given to them and also they have not represent the case properly, it is further observed the order sheet reveals the appellant and her counsel have remained absent and not prosecuted the case with care and cautious.
31. This Court has compared reasons assigned by the trial court in the impugned judgment of conviction as discussed above with the allegations made in the memorandum of appeal. No grounds are made 18 Crl.Appeal No.1314/2022 out in the memorandum of appeal to interfere with the Impugned judgment of conviction. The trial Court has rightly passed the judgment and order of conviction.
32. So far as quantum of punishment is concerned, a fine of Rs.7,05,000/-, in default shall undergo simple imprisonment for six months, out of fine amount Rs.7,00,000/- shall be paid to the complainant and the balance amount of Rs.5,000/- is defrayed to the state for expenses incurred in the prosecution. Fine amount imposed is within the purview of Sec.138 of N.I. Act. Appellant failed to show that sentence imposed is exorbitant. Accused/appellant failed to show that quantum of fine imposed is excessive. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is not necessary. Accordingly, point No.1 is answered in the 'Negative'.
33. Point No.2:- For the foregoing the reason I proceed to pass the following :-
ORDER The Criminal Appeal filed U/Sec.374(3) of Cr.P.C is hereby dismissed.
Consequently, the order passed by the learned 4 th Addl. Small Cause Judge & ACMM, Court of Small Causes, 19 Crl.Appeal No.1314/2022 Bengaluru in C.C.No.3024/2018, dated: 06.10,2022 is hereby confirmed.
Office is hereby directed to send the certified copy of this Judgment to the trial Court and also T.C.R. (Dictated to the Stenographer Gr-II and typed by him on computer, corrected by me and then pronounced in open court on this the 15 th day of November, 2025.) (Raghavendra S. Channabasappa) LXII Addl. City Civil & Sessions Judge, (CCH-63), Bengaluru.20 Crl.Appeal No.1314/2022
JUDGMENT PRONOUNCED IN THE OPEN COURT, VIDE SEPARATE JUDGMENT The Criminal Appeal filed U/Sec.374(3) of Cr.P.C is hereby dismissed.
Consequently, the order passed by the learned 4th Addl. Small Cause Judge & ACMM, Court of Small Causes, Bengaluru in C.C.No.3024/2018, dated:
06.10,2022 is hereby confirmed.
Office is hereby directed to send the certified copy of this Judgment to the trial Court and also T.C.R. (Raghavendra S. Channabasappa) LXII Addl. City Civil & Sessions Judge, (CCH-63), Bengaluru.
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