Bangalore District Court
Sanju P S vs Latha Rajeev on 6 January, 2026
KABC0A0002222025
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri. Sreepada N,
B.Com., L.L.M.,
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 6th day of January 2026
Crl. Appeal. No.25018/2025
Appellant/ Sri. Sanju P.S.,
Accused:- S/o Sri. Sukumar,
Aged about 48 years
Proprietor,
M/s Kalyan Estates,
R/at Kalyan Harmony,
Apartment Flat No.403,
L.G. Lake Dew Layout,
Bileshivale Byrathi,
Bangalore-5600747.
(By Sri. Lakshmikantha.M - Adv.,)
V/s
Respondent/ Smt. Latha Rajeev,
Complainant: W/o Sri. C.B. Rajeev,
Aged about 53 years,
R/at No.39, "Aishwarya"
2 Crl.Appeal No.25018/2025
Krishnappa Garden,
C.V. Raman Nagar,
Bangalore-560093.
(By Smt. K. Usha Rani -Adv.,)
JUDGMENT
This appeal is by the Accused before the trial court, who suffered the judgment of conviction for the offence punishable U/Sec.138 of NI Act passed by XXXIII Addl. CJM, Bengaluru, in CC.No.57823/2022, dtd. 2.5.2024, challenging the validity of the judgment.
2. For the sake of convenience the parties hereinafter will be referred to with their ranking assigned before the trial court.
3. The facts of the case:-
The Complainant initiated private complaint under Section 200 of Cr.P.C., against the Accused, alleging that the Accused is the GPA Holder, Owner and promoter of residential apartment namely Kalyan Harmony at Sy.No.113/7(Old Sy.No.113/3) situated at Bileshivale Village, Bidrahalli Hobli, 3 Crl.Appeal No.25018/2025 Bangalore East Taluk, Bangalore. The Complainant booked a flat bearing No.303 vide agreement of sale and construction dated 17.08.2016 and paid a sum of Rs.15,00,000/- through RTGS on 10.08.2016, thereafter she realized that the Accused is not developing the apartment and the Accused had already sold flat to somebody else and hence requested to refund the amount and cancel the agreement. After several personal visits and requests, the Accused issued 03 cheques for the said amount, out of which the first cheque of Rs.2,00,000/- dtd. 3.10.2021 was dishonoured on 05.10.2021 and then the Accused paid that amount in 07 installments from 13.10.2021 to 2.12.2021 and then the second cheque of Rs.6,50,000/-
dtd.3.02.2022 is the cheque for second installment which was dishonoured and a case is filed before this court and then the third cheque of Rs.6,50,000/- dtd.3.06.2022 was the cheque for the third installment. After accepting said liability of Rs.6,50,000/- out of Rs.15,00,000/- due, the Accused has issued a cheque of Rs.6,50,000/- in favour of Complainant. After issuing said cheque bearing No.000049 for Rs.6,50,000/- dtd.3.06.2022 4 Crl.Appeal No.25018/2025 drawn on Bank of Baroda, Kothnuru branch, Bangalore-77, assured the Complainant to keep sufficient amount in the account. Hence the Complainant presented the said cheque for encashment on 3.2.2022 through her banker HDFC Bank Ltd., BEML Circle branch, New Thippasandra, Bangalore, but it came to dishonoured for the reason "Funds Insufficient" on 13.07.2022. Thereafter, the Complainant issued legal notice to the Accused on 03.08.2022 demanding payment of the cheque amount. But, inspite of service of it, the Accused has failed to pay the cheque amount and thereby, the Accused has committed the offense punishable under Sec.138 of Negotiable Instruments Act. Thereafter the Complainant approached the Trial Court for appropriate legal action against the Accused.
4. Pursuant to summons, the Accused entered appearance through his Counsel before the Trial Court. The substance of the accusation was read over and explained to the Accused in the language known to him. The Accused pleaded not guilty and claimed to be tried. The Complainant got examined herself as PW.1 and got marked Ex.P.1 to 5 Crl.Appeal No.25018/2025 Ex.P.5 documents and closed her side. The Accused has not led any evidence nor marked any documents to prove his defense.
5. The trial court after hearing the counsel for Complainant, convicted the Accused for the offence punishable U/Sec.138 of NI Act vide Judgment dtd. 2.5.2024.
6. Feeling aggrieved by the said judgment of conviction, the Complainant is in appeal on the following grounds:
1. The judgment and conviction passed by the Learned Magistrate is totally perverse, illegal, unlawful and bad in law and therefore, the same is liable to be set aside.
2. The Appellant was about to comply the conditions of the Joint Memo within the stipulated period of time, unfortunately the business amount was stuck in a litigation and hence he is not in a position to make payment to the Respondent as agreed in the Joint Memo and the Appellant is in need of time to settle the amount to the Respondent, in the mean time the Respondent may approach the Trial Court and may cause 6 Crl.Appeal No.25018/2025 NBW and FLW against the Appellant for the non-compliance of the Joint Memo terms and conditions and hence the Appellant apprehending his arrest in lieu of FLW & NBW approached this Court for necessary relief.
4. The impugned judgment and conviction passed by the Trial Court is contrary to facts, materials and evidence placed on record and as such the judgment and conviction is liable to be set aside.
5. Under the above grounds the Appellant sought for acquittal by allowing the appeal.
7. Heard the counsel for Respondent. The Appellant and his counsel absent, hence, arguments taken as nil.
8. Perused the evidence, documents on record and also impugned Judgment of conviction passed by the Trial Court.
9. On re-appreciation of the evidence, documents on record, the following points would emerge for the consideration of this court.
7 Crl.Appeal No.25018/20251. Whether the Appellant proves that the cheque in question was not issued towards any legally recoverable debt?
2. Whether the Judgment of conviction passed by the Trial Court calls for interference by the hands of this court?
3. What Order?
10. My finding on the above points are as under:
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No. : As per final order for the following :
REASONS
11. POINT NOs.1 and 2:-
Since the above two points are interlinked, in order to avoid repetition of facts the above points have been taken up together for consideration.
12. 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 8 Crl.Appeal No.25018/2025 (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.
(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 9 Crl.Appeal No.25018/2025 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.
13. In another ruling reported in AIR 2010 SC 1898 (Rangappa V/s Mohan), 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 10 Crl.Appeal No.25018/2025 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 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 11 Crl.Appeal No.25018/2025 need to adduce evidence of his/her own."
14. Keeping in view the broad principles laid down by the Hon'ble Apex Court, let me re-appreciate the evidence and documents on record.
15. The definite case of the Complainant/Respondent is that the Accused is the GPA Holder, Owner and Promoter of residential apartment by name Kalyan Harmony and the she had booked a flat in 3rd Floor with Car Parking and paid a sum of Rs.15,00,000/- as an advance to the Accused. After this payment, when she realized that the Accused is not developing the apartment as per promise and the Accused had already sold the flat to somebody else and as such she requested the Accused to refund her amount and cancellation of agreement. Accordingly, the Accused agreed to refund the principal amount and out of which issued Cheque of Rs.2,00,000/- dtd: 3.10.2021 which was dishonored on 5.10.2021 and then Accused paid the amount in 07 installments from 13.10.2021 to 2.12.2021 and then second Cheque of Rs.6,50,000/- dtd: 3.6.2022 dishonored and case is filed and 12 Crl.Appeal No.25018/2025 pending before the jurisdictional Magistrate Court. After accepting the said liability of Rs.6,50,000/- out of Rs.15,00,000/- due amount, the Accused has issued a Cheque of Rs.6,50,000/- in her favour. When the said Cheque presented for encashment, it came to be dishonored for 'Funds Insufficient'. Therefore, the Complainant got issued legal notice calling upon the Accused to pay the Cheque amount to the correct address of the Accused through RPAD and Speed Post. Inspite of service of notice the Accused did not repay the loan amount nor replied to the said notice. Therefore, the Complainant constrained to file complaint under Section1 38 of the Negotiable Instruments Act.
16. The Complainant in order to prove her case got examined herself as PW.1 and got marked the documents at Ex.P.1 to Ex.P.5. On the other hand, the Accused has not led any evidence from his side.
17. Let me go through the documentary evidence placed by the Complainant in this case. Ex.P.1 is the original Cheque dtd: 3.6.2022 issued by the Accused to the Complainant. Ex.P.2 is the Cheque Return Memo dtd: 13.7.2022. Ex.P.3 is the Office 13 Crl.Appeal No.25018/2025 copy of Legal Notice dtd: 3.8.2022. Ex.P.4 is the Postal Receipt. Ex.P.5 is the Postal Track Consignment. The present complaint has been filed before the Trial Court on 2.9.2022. On perusal of all the above 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 Negotiable Instruments Act and the present complaint is filed well within the period of limitation and it is in accordance with the provisions of Negotiable Instruments Act.
18. It is pertinent to note here that when the case has been set down for cross-examination of PW.1 before the Trial Court, both the Complainant and Accused have filed a Joint Memo on 16.4.2024 stating that they have amicably settled the matter for a sum of Rs.6,50,000/- towards Cheque amount and as per the settlement the Accused has agreed to pay the settlement amount of Rs.6,50,000/- in 04 installments of Rs.1,50,000/-, Rs.1,50,000/-, Rs.1,50,000/- and Rs.2,00,000/- payable on 15.7.2024, 15.10.2024, 15.1.2025 and 15.3.2025 14 Crl.Appeal No.25018/2025 respectively. Further in the Joint Memo it is also mentioned that in case of failure to pay the settlement amount, the Complainant is at liberty to recover it with due process of law and accordingly both parties have prayed to pass judgment.
19. The Trial Court after noting the Joint Memo filed by parties and settlement arrived between the parties, has passed judgment directing the Accused to pay the settlement amount of Rs.6,50,000/- to the Complainant on or before 15.3.2025.
20. Here in this case, it is the contention of the Learned Counsel for the Appellant is that the Appellant/Accused due to comply with the condition of the Joint Memo within a stipulated period, unfortunately business amount of Appellant was stuck in a litigation and hence he is not in a position to make payment to the Respondent as agreed in the Joint Memo. Therefore, he need some time to settle the amount to the Respondent. In the meantime, the Respondent may approach the Trial Court for FLW/NBW. Therefore, he approached this Court by filing the appeal. Further the Learned Counsel for the Appellant during the course of arguments submitted 15 Crl.Appeal No.25018/2025 that the Accused had made payment to the Complainant through RTGS on 11.6.2019 for Rs.60,000/-, on 13.5.2019 for Rs.3,00,000/- and Rs.20,000/- on 28.11.2019, Rs.30,000/- on 10.8.2017 and Rs.10.10.2017 and this amount was not at all considered by the Trial Court while passing the judgment. Even according to the whatsapp chatting dtd: 12.7.2019 and 5.8.2019, the Accused was liable to pay only Rs.5,05,000/- as agreed by the Complainant. However, by cheating the Accused forced him to sign on the Joint Memo, therefore, the payment made by the Accused to the Complainant and whatsapp chat details of the Complainant with the Accused may be considered and set aside the judgment passed by the Trial Court.
21. The Learned Counsel for the Complainant/Respondent submitted that the Accused has taken a false defense in his arguments. However, nowhere in the appeal memo stated about the alleged payment and whatsapp chat. Moreover, the Accused has not complied the terms of the Joint Memo and as well as the Judgment of the Trial Court. By filing the present appeal, the Appellant has 16 Crl.Appeal No.25018/2025 unnecessarily harassing the Respondent. That apart, when the Accused has amicably settled the dispute for Rs.6,50,000/- and agreed to pay the settlement amount on or before 15.3.2025, instead of paying the settlement amount filed this appeal to cause more inconvenience and harassment to the Respondent. Therefore, she prayed to confirm the judgment by awarding more compensation to the Respondent.
22. Admittedly, as discussed above, the Accused/Appellant has not at all complied the terms of the Joint Memo and as well as Judgment passed by the Trial Court dtd: 2.5.2024. moreover, there is no reasonable and bonafide grounds made out by the Appellant herein to set aside the judgment of the Trial Court. Even in the appeal memo itself the Appellant clearly admitted that he was about to comply the conditions of the Joint Memo within the stipulated period, but due to his business loss, he was unable to make payment as agreed. Admittedly, the present appeal is also filed by the Appellant on 17.1.2025 and till today he has not complied the terms of the Joint Memo or the Judgment of the Trial 17 Crl.Appeal No.25018/2025 Court, therefore, there is no question of setting aside the judgment of the Trial Court.
23. Further what are the contentions taken by the Appellant counsel in his arguments is not supported with any materials. Coming to the merits of the case also, it is clear that the Accused though received legal notice has not at all replied the same. Even during the course of cross-examination itself both Complainant and Accused have filed Joint Memo and settled the matter. In the Joint Memo the Accused has clearly admitted that the Cheque in question has been issued to the Complainant for discharge of legally payable debt. Hence, there is no impediment for this Court to confirm the judgment of the Trial Court. Therefore, in view of the above discussions and in the absence of records from the Accused about payment of settlement amount as mentioned in the Joint Memo and the Trial Court judgment, the conclusion arrived by the Trial Court that the Accused is liable to pay the settlement amount of Rs.6,50,000/- is proper and correct.
18 Crl.Appeal No.25018/202524. The Trial Court by properly appreciating the Joint Memo filed by both parties and documents in a proper perspective, rightly convicted the Accused for the offence punishable under Section 138 of Negotiable Instruments Act. In the absence of any perversity or capriciousness while convicting the Accused, there is no reason to interfere with the Judgment of the trial court. Therefore no grounds made out by the Accused to interfere with the Judgment of conviction passed by the trial court. Hence, Point Nos.1 and 2 are answered in the Negative.
25. Point No.3:
In view of the findings on the above points the appeal filed by the Appellant deserves to be dismissed. Accordingly, I proceed to pass the following:-
ORDER The appeal filed by the Appellant U/Sec.415 of BNSS 2023 is hereby dismissed with cost of Rs.6,000/- (Rupees Six Thousand only) to the Respondent.
The Judgment of conviction passed by the Learned XXXIII ACMM, Bengaluru, in CC.No.57823/2022, dtd. 2.5.2024 is hereby confirmed.19 Crl.Appeal No.25018/2025
Send back the records with a copy of this Judgment to the Trial Court.
(Dictated to the Stenographer, typed by her, corrected, signed and then pronounced by me, in the open court on this the 6th day of January 2026).
Digitally signed byNARAYANAPPA NARAYANAPPA SRIPAD SRIPAD Date: 2026.01.09 16:03:29 +0530 [Sri. Sreepada N] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73).