Bangalore District Court
S L Srinivas vs Mohammed Shafi Rptd By His Lrs Rafia ... on 7 July, 2025
-KABC010394392019
IN THE COURT OF THE LXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 64)
:Present :
Sri.I.P.Naik
LXIII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 7th Day of July, 2025.
Crl. Appeal No.2690/2019
APPELLANT S.L.Srinivasa,
S/o. S.A.Lakshmain,
Aged about 54 years
R/at.No.6, 7th Main,
Balajinagar,
Bangalore-560 029.
(By Sri.S.N,Advocate)
Vs.
RESPONDENT : Sri.Mohammed shafi,
S/o.Abdul Razak, Since Dead,
Represented by his L.R's
His daughter Rafia Anjam,
2 Crl.A.No.2690/2019
D/o.Late Mohammed Shafi,
W/o.M.J.Kaleemulla,
Aged about 37 years,
R/at.No.1584/A,
R/t.#4/23, RRAS Manzil,
C Cross, Bismillah Nagar,
Bannerghatta Road,
Bangalore-560 029.
( By Sri.G.J. Advocate )
:JUDGMENT:
The appellant preferred this appeal against the judgment and order passed by the learned XXIII ACMM Bengaluru, in C.C.No.11849/2013 dated 30.11.2019. Hereinafter, their rank is referred as per the their rank before the Trial Court.
2. Brief facts of the case:-
The complainant and accused entered into agreement of sale on 29.12.2005, in respect of property Site bg No.4 and 5 formed in Sy.No.47, Byatarayanapura 3 Crl.A.No.2690/2019 Village, 62nd ward BBMP, Bengaluru. Accused agreed to sell this property for Rs.16,61550/-. Initially complainant advanced sale consideration of Rs.3,00,00/- after demand of the accused, complainant paid Rs.2,00,000/- on 08.02.2006 and another Rs.2,00,000/- on 31.05.2006. The complainant and accused agreed to pay the remaining sale consideration at the time of registration of the sale deed. In this regard both have entered into agreement of sale. After that accused failed to execute sale deed in terms of sale agreement.
Accused filed false complaint before Mico layout police station. Due to intervention of the Mico layout police, accused agreed to repay of Rs.8,00,000/- Lakhs. In this regard, he has issued 3 cheques first cheque bg.No.841286 for Rs.1,00,000/-, 2 nd cheque bg.No.841288 for Rs.4,00,000/- and 3 rd cheque bg.No.841287 for Rs.3,00,000/-. The complainant 4 Crl.A.No.2690/2019 presented the said cheque was for encashment, it was returned as "funds insufficient". Thereafter, the complainant brought to the notice of the complainant regarding dishonour of cheque by issuing legal notice. The said notice is received by the accused on 29.11.2012. Hence, complainant filed this complaint before the Trial court.
3. The learned trial court on considering the allegation made in the complaint took cognizance. Considering the sworn statement, affidavit and material on record, trial court opined that there is sufficient material and prima facie proceed against the accused. Accordingly, trial court has ordered for register the case against the accused in Register-III and issued summons. 5 Crl.A.No.2690/2019
4. In pursuant to summons accused appeared before the trial court got enlarged on bail. Thereafter plea has been recorded and read over to her. She pleaded not guilty claims to be tried. In order to prove the guilt of the accused, the complainant examined himself as P.W.1. In support of his contention she has produced 14 documents as Ex.P.1 to Ex.P.14. Thereafter, the statement of the accused recorded under Sec.313 of Cr.P.C. Accused has examined himself as DW1 and has got marked Ex.D.1. He has also tendered for cross- examination in support of his case.
5. After hearing both side and considering the materials on record, the trial court convicted the accused for the offence punishable under Sec.138 of N.I.Act. 6 Crl.A.No.2690/2019
6. Accused dissatisfied and disagreed with impugned judgment and order passed by the trial court she has preferred this appeal on the ground that the impugned judgment and order of the trial court is opposed to law and one sided. The trial court has not considered the defence taken by the accused. Both parties have entered into agreement of sale and have registered the property within 3 months this fact is not considered by the trial court. The said matter is of civil in nature. The accused has denied the entire case of the complainant and in proof of which he has cross- examined the complainant. The disputed cheques were executed in the police station, but the complainant has not filed any complaint before the police station itself. Further, the complainant has not examined any of the witnesses in support of his case to prove the document. The sale agreement is barred by time limitation and there 7 Crl.A.No.2690/2019 is no right to claim by the complainant. The deceased complainant had 3 wives, 6 - 7 children. The present complainant has not produced any document to show that she is authorised person to prosecute the case. The trial court has not appreciated all these facts and has passed impugned Judgment without applying mind. Hence, prays for allow the appeal and set aside the impugned judgment and order passed by the trial court and also acquitted the accused from the alleged offence.
7. I have carefully gone through the written argument submitted by respondent. In spite of granting sufficient time and opportunity, accused not submitted his agreement. Final one counsel noticed that, learned counsel for accused who represented him before this Court reported to be dead. Then, issued to court notice to accused. It was returned as accused left the address. 8 Crl.A.No.2690/2019 (During trial and this appeal, accused has taken defence that, statutory notice not served on him, but he has mentioned his address as stated in sale agreement/Ex.D.1).
8. The following points that arise for my consideration are as follows:
1. Whether the impugned Judgment and order passed by the trial court is arbitrary, perverse, capricious. ?
2. What Order.?
9. On considering the material, appeal memo, Written arguments of the complainant and materials placed on record, my answer above points as here under:
Point No.1 : In the Negative
Point No.2 : As per the final order,
9 Crl.A.No.2690/2019
for the following:
REASONS
10. POINT No.1 :
During pendency of the case before the trial court
original complainant died. His daughter by name
Smt.Rafia Anjum prosecuted this case, She has stepped into the witness box and filed affidavit in lieu of examination in chief and reiterated the allegations made in the complaint.
11. During cross-examination PW.1 stated that her father has 2 wives by name Smt. Harshida Begum and Smt. Salima Banu. She is the daughter of first wife. She has not produced succession certificate in respect of she is successor of her father. She has produced document to 10 Crl.A.No.2690/2019 show that she is the daughter and legal heir of the original complainant. She has produced the color xerox copy of the sale agreement Ex.P.13, Xerox copy of the complaint lodged before the Mico Layout Police Station Ex.P.14 she heard that one Srinivas has lodged complaint against her father.
12. Further the learned counsel or the accused suggested that the cheque in question is issued to the deceased complainant. This suggestion is denied. The learned counsel for the accused suggested that accused issued signed blank cheque to his father pertaining to different transaction in the year 2015. This suggestions is denied. Accused suggested that signature of the accused and signature found in cheques are totally different. This suggestion is denied.
11 Crl.A.No.2690/2019
13. In order to prove the contention of the complainant accused himself examined as DW.1, in support of his contention he has produced one document got marked at Ex.D.1. In examination in chief, accused stated that he denied the relationships of the PW.1 with deceased complainant. Further he stated that after lapse of 5 years, he returned the advance amount pertaining to the site after that, he has received original sale agreement Ex.D.1. The entire transaction is completed in the year 2012. Further, he stated that he has issued 3 signed blank cheques to the deceased complainant. After payment of the advance amount, he demanded for return of the cheques, but the deceased complainant stated that he vacated the house, at that time, it is mis placed and he will return after it is traced out. Further stated that he has not lodged complaint against original complainant before the Mico layout Police Station. His signature on 12 Crl.A.No.2690/2019 Ex.P.13 are forged one. The deceased complainant mis used the cheque instead of returning to him.
14. In the course of cross-examination PW1 admitted his signature and endorsement made on Ex.D.1. Further denied regarding his signature found on acknowledgment Ex.P.12. Accused further stated that he has returned Rs.4/- Lakhs to the original complainant and taken back the original sale agreement Ex.D.1. further, the learned counsel for the complainant suggested that, false complain is lodged against the deceased complainant before the Mico Layout Police Station. This suggestions is denied.
15. I have carefully gone through the oral evidence of PW1 documents produced on behalf of the complainant. The oral evidence of DW1 and complaint.
13 Crl.A.No.2690/2019
16. In this case, the following facts are undisputed one:
16.1 Deceased complainant and accused entered into sale agreement Ex.D.1 on 29.12.2005. 16.2 Accused has issued blank signed cheque in favour of the complainant
17. According to the recitals of sale agreement accused agreed to sell his property for sale consideration of Rs.16,61,550/-. Initially he has received the sale consideration of Rs.3,00,000/- as advance. As per the endorsement made on the sale agreement, accused received Rs.2,00,000/- on 08.0.2006 and another amount of Rs.2,00,000/- on 31.05.2006. By considering all these aspects, total amount of Rs.7,00,000/- is 14 Crl.A.No.2690/2019 received by the complainant in pursuant to the sale agreement dated 29.12.2005.
18. In this case, the complainant has taken specific contention that accused lodged false complaint against deceased complainant before Mico Layout Police Station.
In this regard, the complainant produced xerox copy of the sale deed, statement of account of the accused before the police. The trial court has marked this xerox document. Accused specifically denied his signature found on the said document. But in the cross- examination of PW.1, the learned counsel for the accused stated that he has repaid the amount and received original sale agreement from the complainant. Therefore, this court have carefully perused the signature of the accused found on Ex.P.1 to 3 cheques, Ex.P.12 postal 15 Crl.A.No.2690/2019 acknowledgment, Ex.D.1 original sale agreement and vakalth filed on behalf of the accused, bail bond of the accused. The signature found on Ex.P.1 to P.3 cheques, Ex.D.1, Bail bond of the accused and vakalath filed before the trial court on behalf of the accused on 20.11.2014 are one and the same. There is slight difference in subscribing the signature on Ex.P.12.
19. Accused seriously disputed non service of prior statutory notice. Therefore, this court has carefully perused the address of the accused mentioned in Ex.D.1 which reads thus:
Sri.S.L.Srinivas, S/o.Sri.Lakshman, R/at.No.6, 7th Main, Bhavani Nagar, DRC Post, Bengaluru.16 Crl.A.No.2690/2019
20. This court perused the appeal memo at the time of filing this appeal, accused has given address as under:
S.L.Srinivas, S/o.Lakshman, R/at.No.6, 7th Main, Balaji nagar, Bengaluru.
21. Before the trial court in complaint, the complainant has mentioned the address of the accused as cited in the appeal memo. The registered post sent to the address of the accused is as under:
S.L.Srinivas, S/o.S.A.Lakshman.
No.6, 7th Main, Bhavani Nagar (Balajinagar) 17 Crl.A.No.2690/2019 DRC Post, Bengaluru.
22. On considering this aspect, it clearly discloses that complainant sent statutory notice to the correct and proper address of the accused. Therefore, this court held that, statutory notice deemely served on the accused in view of sec. 27 of General clauses Act.
23. The accused himself stated that signed blank cheques are handedover to the deceased complainant in the year 2008 for different transaction. At this stage, heavy burden lies on the accused. Therefore, this court has relied on the Judgment of Hon'ble Supreme Court of India as under
AIR 2023 SC 5018 Rajesh Jain Vs Ajay Singh 18 Crl.A.No.2690/2019 BURDEN OF PROOF AND PRESUMPTIONS: CONCEPTUAL UNDERPINNINGS
29. There are two senses in which the phrase 'burden of proof ' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v.
Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 19 Crl.A.No.2690/2019 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports [(2009) 2 SCC 51320] this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 20 Crl.A.No.2690/2019 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof
34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section
138.
35. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against 21 Crl.A.No.2690/2019 whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'.
36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar {(2019) 4 SCC 19723}]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is 22 Crl.A.No.2690/2019 discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
39. John Henry Wigmore (Rules of Evidence- The Hidden Origin of Modern Law )on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule ."
(underline by me, for emphases)
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider 23 Crl.A.No.2690/2019 the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may 24 Crl.A.No.2690/2019 comprise circumstantial evidence or presumption of law or fact. (underline by me, for emphases)
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non- existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit- evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the 25 Crl.A.No.2690/2019 complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441] (underline by me, for emphases)
24. By following the above guidelines laid down by Hon'ble Supreme Court of India, I have carefully examined the materials on records. The issuance of blank signed cheques itself is not a valid ground in N.I Act. He has to prove that there exists legally enforceable debt or liability. In this case, there is no dispute that accused has received advance amount of Rs.3,00,000/-. Later on, he has received Rs.2,00,000/- in two different times. Therefore, accused has to rebut the presumption available in favour of the complainant.
26 Crl.A.No.2690/2019
25. During cross-examination accused categorically stated that he has not obtained receipt regarding payment of the amount to the complainant. The original sale agreement is with the accused. He has produce the same before this court. But there is no cogent and reliable evidence regarding he has repaid the advance sale consideration amount.
26. It is specific case of the accused that, he has issued blank signed cheques in the year 2005. But according to the date mentioned in Ex.P.1 to 3 cheques, it reveals that these 3 cheques are issued on 24.08.2012. The said 3 cheques are returned on 6.11.2012 as per Ex.P.4 to 6 endorsements. By considering this aspect, complainant presented these cheque on 29.09.2012. The complainant has got issued legal notice on 26.11.2012. The 27 Crl.A.No.2690/2019 complainant has got issued legal notice within 30 days from 6.11.2012. The notice is served on the accused on 29.11.2012. The complainant presented private complaint before the trial court on 11.01.2013. Complaint is filed well within time after lapse of 15 days, on 29.11.2012. Prior to filing of the complaint the complainant has complied all statutory requirement U/s.138 of N.I Act.
27. During examination of the accused U/s.313 of Cr.P.C. he has categorically explained that he has returned Rs.7,00,000/- in the year 2012 or 2013. At that time, he has received the original sale agreement. After registration of this case, accused has not taken coercive steps against the complainant regarding mis used of the cheque issued by the accused. Accused put 28 Crl.A.No.2690/2019 forth false and unbelievable story before this court. By considering all these aspects, accused has not rebut the presumption available infavour of complainant.
28. I have carefully perused the entire Judgment of trial court. The trial court has rightly appreciated the materials on record and held that the defence put forth by the accused is not believable one. Accordingly, there is no intervention or interference in the said Judgment. Therefore, Point No.1 is answered in the Negative.
29. Point No.3:
In view of my findings on point Nos.1 above, I proceed to pass the following:
ORDER The appeal preferred by the appellant/accused under Section 374(3) Cr.P.C. is hereby dismissed.29 Crl.A.No.2690/2019
Judgment dated 06.08.2022 passed by the XXIII ACMM Bengaluru, in C.C.No.11849/2013 dated 30.11.2019. is hereby confirmed.
Send back the records to the Trial
Court along with a copy of this
Judgment.
(Dictated to the Stenographer Grade-III, transcribed by her, then corrected and pronounced by me in the open Court on this the 7 th Day of July, 2025) Digitally signed irappanna by irappanna Sri.I.P.Naik Pavadi LXIII Addl. CityPavadi Civil & Naik Sessions Date: 2025.07.22 Naik Judge, Bengaluru.
16:15:49 +0530
30 Crl.A.No.2690/2019
(Order typed vide separate sheet)
ORDER
The appeal preferred by the
appellant/accused under Section 374(3) Cr.P.C. is hereby dismissed.
Judgment dated 06.08.2022 passed by the XXIII ACMM Bengaluru, in C.C.No.11849/2013 dated 30.11.2019. is hereby confirmed.
Send back the records to the Trial Court along with a copy of this Judgment.
Sri.I.P.Naik LXIII - Addl. City Civil & Sessions Judge, Bengaluru.31 Crl.A.No.2690/2019
Judgment pronounced in open Court (Vide separate order) 32 Crl.A.No.2690/2019 ORDER The appeal preferred by the appellant/accused under Section 357(1) Cr.P.C. is hereby dismissed.
Judgment dated 14.11.2019
passed by the learned 4th ACMM
and SCCH-6, Bengaluru in
C.C.No.25190/2017 is hereby
confirmed.
Send back the records to the
Trial Court along with a copy of this
Judgment.
LVI Addl.City Civil & Sessions
Judge, Bengaluru.