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Bangalore District Court
Alexander.M.Noronha vs D.Shivanna on 19 July, 2025
KABC030509582020
IN THE COURT OF THE XIX ADDITIONAL CHIEF
JUDICIAL MAGISTRATE AT BENGALURU CITY.
Dated this the 19th day of July, 2025.
PRESENT:SMT.RASHMI H.B., B.A.(LAW)LL.B.,LLM.,
XIX ADDL.C.J.M., BENGALURU CITY.
C.C.No.13325 of 2020
Complainant :- Alexander M Noronha,
S/o.Philip Naronha,
Aged about 46 Years,
R/at.No.327, Philip Villa,
11th Cross, 2nd Block,
Vishwapriya Nagar, Begur,
Bengaluru - 560068.
(Rep. By Sri.S.M.A., Advocate)
-V/s-
Accused :- D.Shivanna,
S/o.Duragappa,
Aged about 46 Years,
R/at.No.13, 1st A Cross,
Lakshminagar, Begur,
Bengaluru - 560068.
(Rep. By Smt.J.T.B., Advocate)
Date of complaint :- 16-10-2020
Date of Commencement :- 17-10-2020
of evidence
Offence complained :- Section 138 of N.I.Act
2 C.C.No.13325/2020
Opinion of the Judge :- Accused is found not guilty.
(SMT.RASHMI H.B.,)
XIX ADDL.C.J.M., Bengaluru City
JUDGMENT
This is a private complaint filed under section 200 of
Cr.P.C., against the accused for the offence punishable under
section 138 of the Negotiable Instruments Act.
02.The brief facts of the complaint is as under:
The accused and his wife have agreed to sell the
property bearing vacate site No.80, Katha No.397, situated at
Lakshmi Nagar, Begur 2nd Stage Bodgutta Vittasandra Road
Bengaluru to complainant and they have executed an
registered agreement of sale dated 06-03-2018 in favour
of the complainant by receiving sale consideration amount of
Rs 5,00,000/-. Thereafter, on mutual discussion, the said Sale
Agreement is cancelled. The accused and his wife agreed
to refund the advance sale consideration amount. In that
regard, both parties entered into Settlement Deed dated
22-01-2020 and accused has issued a cheque bearing
3 C.C.No.13325/2020No 782835 dated 24-08-2020 for Rs.1,00,000/-, drawn on
Canara Bank, Begur branch, Bengaluru, in favour of the
complainant. The complainant presented said cheque for
encashment through his banker Canara Bank, Begur branch
Bengaluru. The cheque is returned unpaid with bank
endorsement dated 26-08-2020 showing cheque is
dishonoured for the reason “Funds Insufficient”.
Thereafter, the complainant has got issued legal notice to the
accused through registered post on 05-09-2020 and the same
was duly served on accused on 07-09-2020. But, the accused
has failed to make payment of cheque amount. Hence,
complainant has filed this complaint on 16-10-2020.
03. After presentation of complaint, this Court took
cognizance of offence and recorded the sworn statement of
complainant. Thereafter, a criminal case is registered
against accused and summons is issued to the accused.
The accused appeared through his counsel and he is
enlarged on bail. The copies of the complaint and other
papers furnished to the accused. Substance of accusation
4 C.C.No.13325/2020
was read over to him. Accused has pleaded not guilty and
claimed to be tried.
04. In order to prove the accusation made against
the accused, the complainant has got examined himself as
PW1 and got marked 6 documents as Ex.P1 to Ex.P6.
Thereafter, statement of accused is recorded under section
313 of Cr.P.C. wherein the accused has denied the
incriminating evidence found on record as false and he
submitted he would lead defence evidence. The accused
examined himself as DW1. It is evident to note, during
cross-examination of PW1, Ex D1 is marked. One more
witness examined on behalf defence as DW2. The
complainant failed to cross-examine DW2.
05. Heard the arguments of learned counsel for
defence. The complainant did not adduce arguments.
Perused entire case record carefully.
06. On the basis of contentions raised in the
complaint the points that arises for determination of this
Court are as follows:
5 C.C.No.13325/2020
1.Whether the complainant proves that,
the accused issued the cheque towards
discharge of legally enforceable debt?
2.Whether the complainant proves the guilt
of the accused for the offence
punishable under section 138 of
Negotiable Instruments Act?
3.What order?
07. Now, this Court answers to above points are
as follows:
Point No.1: In the Negative;
Point No.2: In the Negative;
Point No.3: As per final order for
the following:
:: R E A S O N S ::
08. POINTS No.1 and 2: Since these points are
inter-relating with each other, they are taken up together for
common discussion to avoid the repetition of facts and
findings.
09. This case is tried as summons case. As this matter
is tried as summons case, this Court relies on the evidence
recorded by learned predecessor in office. In that regard, this
6 C.C.No.13325/2020
Court relies on decision of Hon’ble Supreme Court of India
in the case of Mehsana Nagarik Sahkari Bank Ltd., V/s
Shreeji Cab Co. & Others reported in 2014(13) SCC 619.
Wherein the Hon’ble Supreme Court had observed that de-
nova hearing is necessary only when the evidence is
recording in summary manner. Therefore, this Court has
proceeded with the case on the basis of part evidence
recorded previously.
10. Before proceeding with the discussion, in order to
prove the guilt of offence under section 138 of N.I. Act, initial
burden casts on the complainant to prove the following
ingredients:
a) The cheque must have been drawn
for discharge of existing debt or
liability.
b) Cheque must be presented within
validity period.
c) Cheque must be returned unpaid due
to insufficient funds or it exceeds the
amount arranged.
d) Fact of dishonour be informed to the
drawer by notice within 30 days.
7 C.C.No.13325/2020
e) Drawer of cheque must fail to make
payment within 15 days of receipt of
the notice.
11. In order to prove the case, the complainant,
Sri.Alexander M Noronha, has examined himself as PW1.
The PW1 has filed an affidavit in lieu of examination-in-chief
reiterating entire complaint averments. In support of his
oral evidence, he produced Ex.P1 to 6 documents. The
complainant got marked original cheque as Ex P1, bank
memo as Ex P2, demand notice as Ex P3, postal receipt as
Ex P4, track consignment as Ex P5 and letter submitted to
the postal department dated 01-10-2020 as Ex P6.
12. During cross-examination of PW1, he has
admitted the fact that he and one Manjunath are friends.
The defence suggested the property of accused is shown to
him by said Manjunath and disputed cheque was given to
said Manjunath and which is misused by complainant. PW1
has denied said suggestions as false. Further, PW1 has
admitted the signature and other writings found in Ex P1
cheque are different and PW1 has explained friend of
8 C.C.No.13325/2020
accused wrote contents of cheque. PW1 has admitted the
fact that he has paid Rs 5,00,000/- through bank transfer
as sale advance amount and for cancellation of sale
agreement they have entered into Ex D1 document. In the
said document, it is specifically mentioned entire sale
consideration amount is repaid to him. The PW1 has
explained the said agreement shows only Rs 4,00,000/- is
paid and this cheque is issued for remaining Rs 1,00,000/-.
But, PW1 has admitted the fact that no reference is made
about the disputed cheque in the Ex D1 agreement and he
has admitted that he has received Rs 95,000/- in cash. The
defence suggested as no Settlement Deed dated 22-01-
2020 is executed, said document is not produced. PW1 has
denied said suggestions as not true.
13. The evidence of PW1 and Ex.P1 to Ex.P6 clearly
show the complaint is filed within time and all the
ingredients of section 138 of N.I.Act. The cheque is issued
for legally recoverable debt and it is dishonored for the
reason “Funds Insufficient”. Same is communicated to
9 C.C.No.13325/2020
the accused. The said fact is brought to the notice of
accused. But, till date the accused did not comply the
demand of the complainant for payment of amount
mentioned in the cheque. Therefore, PW1 has discharged
his burden to prove the ingredients of the offence
punishable under section 138 of Negotiable Instruments
Act.
14. Another aspect is to consider whether the Ex.P1
cheque and Ex.P1(a) signature belongs to the accused or
not. The defense has admitted Ex P1 cheque belong to
accused. The complainant contended it bears signature of
accused. The accused disputed Ex P1(a) signature is not his
signature. The cheque dishonour for the reason ‘Funds
Insufficient’. As complainant claimed he is holder of cheque
in due course, the burden casts on accused to disprove said
fact and to prove he did not affix his signature to Ex P1
cheque.
15. As per provision of section 118 and 139 of N.I.
Act, the court has to presume liability of the accused and to
10 C.C.No.13325/2020
such amount mentioned in the cheque to discharge legally
recoverable debt. The said aspect was denied by the
accused. The onus of proving probable defense of the
accused is on accused and standard of proof for rebutting
presumption is preponderance of probabilities. To rebut
presumption it is open for the accused to rely on evidence
or the accused can also rely on the materials submitted by
the complainant in order to raise probable defense.
16. In that regard, the Hon’ble Supreme Court of
India in its Judgment reported in 2019(5) SCC 418 in the
case of Basalingappa V/s Mudibasappa discussed the
manner in which accused could rebut the presumption
raised under section 118 and 139 of Negotiable instruments
Act. The Hon’ble Supreme Court of India in the case of
Basalingappa Vs. Mudibasappa reported in 2019 (5)
SCC 418 laid down principles regarding how presumption
under section 118 and 139 of N.I.Act can be rebutted.
17. To rebut the presumptions, accused entered into
witness box as DW1. DW1 has deposed his wife Smt
11 C.C.No.13325/2020
Nirmala is absolute owner of site bearing No.80, Katha No.
397 situated at Lakshmi Nagar, Begur, 2 nd stage, Bodgutta
Visttasandra Road, Bengaluru. She has entered into sale
agreement dated 06-03-2018 with complainant for a sale
consideration amount of Rs 5,00,000/- and complainant has
paid Rs 4,95,000/- to his wife by way cheque and
remaining balance sale amount of Rs 5,000/- agreed to be
paid at the time of registration of sale deed. On 22-01-2020
said sale agreement is cancelled as per registered
cancellation of Sale Agreement dated 22-01-2020 and his
wife has returned entire advance sale consideration amount
of Rs 4,95,000/- to the complainant by way cheque and
cash. The complainant has admitted the receiving the said
amount by acknowledging the contents of cancellation sale
agreement by affixing his signature. However, he along
with Manjunath to whom disputed cheque is given by
accused is misused and he has got no liability to pay under
Ex P1 cheque. Therefore, he prays to acquit him.
12 C.C.No.13325/2020
18. During cross-examination, DW1 has admitted the
fact that there was sale agreement executed by his wife
and complainant and it was cancelled. The complainant has
suggested the signatures found in Ex P1 cheque and
Settlement Deed dated 22-01-2020 are belong to him. But,
DW1 has denied said suggestion. Further, he has
specifically stated, he did not entered into settlement deed
with complainant. Further, he has deposed he did not
receive the demand notice.
19. In corroboration to the defence, accused got
examined DW2- Sri Seenappa, S/o Late Chikkahanumappa.
He is attesting witness to Ex D1-Cancellation of Sale
Agreement. He has deposed on 22-01-2020, he has affixed
his signature to the Ex D1 document at Sub-Registrar Office
and he has seen complainant has received the Rs
95,00,000/- from accused and thereafter, only he has
executed the Sale Cancellation Agreement. In spite of grant
of sufficient opportunity, complainant did not cross-examine
DW2.
13 C.C.No.13325/2020
20. On going through evidence brought on record,
accused took specific defence that no amount due to
complainant for cancelling the sale agreement. The
complainant assertion about execution of sale agreement
and cancellation of sale agreement is admitted fact. But,
the accused disputed the existence of settlement deed
dated 22-01-2020 and accused has relied on Ex D1 copy of
registered cancellation agreement of sale showing entire
advance sale consideration amount of Rs 4,95,000/- is
repaid. It is evident to note, PW1 has admitted the said
document. Further, DW1 and DW2 were the attesting
witnesses to said document. Therefore, it shows repayment
of entire sale consideration amount received by the
complainant. Since, the payment as per Ex D1 is proved
and it is admitted by PW1, accused has made probable
defence to rebut the presumption under section 118 and
139 of N.I.Act.
21. The accused has shown the facts that he is not
owner of site and sale agreement are entered into between
14 C.C.No.13325/2020
his wife and complainant and it is cancelled. The said fact is
admitted by the complainant. Further, complainant has
admitted the fact that he is friend of Manjunath and
accused has alleged the disputed cheque given to
Manjunath is misused. The PW1 has admitted the fact that
there is differences writings in the Ex P1 cheque. The PW1
has explained friend of accused filed up the cheque. But,
PW1 did not explain for what liability complainant has
issued the cheque and he did not produce the settlement
deed as alleged in the complaint. The Ex D1 document
contradicted the claim of complainant before the court.
These circumstances shows the version of accused is found
more probable than the case of complainant. On
considering the facts and circumstances of the case, the
complainant failed to establish that Ex.P.1 cheque is issued
to discharge liability of repayment of Rs.1,00,000/- to
complainant and he has failed to establish existence of
legally enforceable debt.
22. Under these circumstances, this court is of the
opinion that the dishonour of Ex.P.1 cheque do not attract
15 C.C.No.13325/2020
penal consequences. Therefore, accused is entitle for
benefit of doubt and he is entitle for order of an acquittal.
Accordingly, this court answer Points No.1 and 2 are in
Negative.
23. Point No.3: For the foregoing reasons stated
in the Points No.1 and 2, this court proceeds to pass the
following:
ORDER
The accused is found not guilty for the
offence punishable under section 138 of
Negotiable Instruments Act.
Acting under section 255(1) of Cr.P.C,
the accused is acquitted for the offence
punishable under section 138 of The
Negotiable Instruments Act.
In view of section 437-A of Cr.P.C.,
bail bonds stands extended for 6 months
from this date.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected
th
by me and signed, pronounced in the Open Court this 19 day of July, 2025)(SMT.RASHMI H.B.,)
XIX ADDL.C.J.M., Bengaluru City.
16 C.C.No.13325/2020::ANNEXURE::
List of Witnesses examined for Complainant:-
PW1 :- Alexander Noronha.
List of Documents marked for Complainant:-
Ex.P1 :- Original Cheque, Ex.P1(a) :- Signature of Accused, Ex.P2 :- Bank Endorsement, Ex.P3 :- Office copy of the Legal Notice, Ex.P4 :- Postal Receipt, Ex.P5 :- Track Consignment, Ex.P6 :- Letter dated 01-10-2020.
List of Witnesses examined for Accused:-
DW1 :- D.Shivanna, DW2 :- Seenappa C.,
List of Documents marked for Accused:-
Ex.D1 :- copy of Cancellation of Sale Agreement
Ex.D1(a)&(b) :- Signatures.
(SMT.RASHMI H.B.,)
XIX ADDL.C.J.M., Bengaluru City.
17 C.C.No.13325/2020
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