Bangalore District Court
Jagannath Hegde vs E Sheshadri on 25 July, 2025
KABC010287492016
IN THE COURT OF THE LXII ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-63), BENGALURU.
DATED: THIS THE 25TH DAY OF JULY, 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.1442/2016
APPELLANT: Sri.Jagannath Hegde,
S/o. Harihara Hegde,
Aged about 50 years,
R/at No.25, Mudaliar Street,
Near Netkalappa Circle,
Basavanagudi,
Bangalore-560 004.
(By Sri.S.K.M., Advocate)
- V/S -
RESPONDENT: Sri.E.Sheshadri,
S/o. E.K.Doria,
Aged about 72 years,
R/at No.351, 37th Cross,
7th Main, 5th Block,
Jayanagar,
Bangalore-560 041.
(By Sri.S.V., Advocate)
2 Crl. Appeal No.1442/2016
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.09.11.2016 passed in
C.C.No.12142/2014 by the learned 16th ACMM., Bengaluru, wherein
the said trial Court convicted the appellant for the offence
punishable U/s.138 of Negotiable Instrument Act and sentenced him
to pay a fine of Rs.4,50,000/- and in default to pay the fine amount
the accused shall undergo simple imprisonment for 6 months. Out of
total fine amount a sum of Rs.4,40,000/- ordered to be paid to the
complainant by way of compensation and balance of Rs.10,000/-
ordered to be adjusted towards cost to the State exchequer.
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.1442/2016
C.C.No.12142 for the offence punishable U/Sec.138 of N.I. Act.
Upon service of summons, the accused appeared through his
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 Pw.1 and got
marked documents as Exs.P.1 to Ex.P8. Accused when examined
U/s. 313 of Cr.P.C denied all incriminating circumstances appearing
in evidence against him. On behalf of accused has examined as
DW1 and not marked any documents on his behalf.
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 order passed by the Sessions Judge is illegal and
against to the principles of natural justice, hence on the very ground
itself the order passed by the trial Court is liable to be set-aside.
2) The conviction and sentence passed by the Court below are
illegal and not on the proper appreciation of facts on record. The
Court below having regard to the material on record ought to have
4 Crl.Appeal No.1442/2016come to the conclusion that the complainant has failed to produce
the adequate evidence to prove the debt liability and the cheque in
question issued in discharge of the same. Failure in the part the
complainant to prove the essential ingredients constituting an
offence punishable U/Sec.138 of the N.I. Act. ought to have
dismissed the complaint.
3) The impugned judgment of conviction and sentence are
wrong, illegal and not sustainable both on question of law and fact,
the Court below failed to fame proper points for consideration before
recording the findings.
4) The lower Court has not appreciated the fact pleaded and
the evidence pleaded before it. Its proper prospective. As such
reasoning given by the lower Court is opposed to the provisions of
the N.I. Act.
5) The Court below are not considered the principles of law laid
down by the Apex Court in several Judgment. As such the
appellants having placed materials before the Court and
preponderance of the probabilities being that the complaint even
though in custodies of the documents to establish that payment
were made to the appellants and complainant was entitled to
recover the same through the cheque before the Court. The lower
Court should have held that appellant had rebutted the presumption
U/Sec.139 of N.I. Act.
6) The Court below have not applied correct principals of law to
the fact of the case. The judgments of the Court below suffers from
illegalities and infirmities.
5 Crl.Appeal No.1442/2016
7) The learned decided the case on mechanical manner without
applying judicial mind to the facts of the case even though it is made
it clear the respondent no transactions with the appellant and in turn
he has given the hand loan of Rs.11 lakhs to the respondent for
purchase the apartment.
8) The learned judgment ought to have held that even though
the respondent has produced the cheque bearing signature of the
appellant and when the appellant has taken a stand that the said
cheque were stolen by the Keshava and Narasimha who are the
close relative of respondent and they have misused against the
appellant. Hence, there is no legally recoverable debt, hence
complaint is liable to be dismissed.
9) The learned Judge seriously erred that the appellant has not
given the stop payment letter even though the appellant has
explained the circumstance the cheque bearing his signature has
reached the hands of the respondent and how he has mis-utilized
the same.
10) The learned Judge has not consider the evidence of the
appellant regarding his transaction with the respondent, even he
has used the presser tactics to recover the money which he has
given the Keshava and Narasimha.
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 Crl.Appeal No.1442/2016
6. After admitting of this criminal appeal, the notice was
issued to the respondent. The respondent appeared through his
counsel. The lower Court records secured.
7. Heard arguments of learned counsels for appellant and
respondent. I have carefully perused the entire lower Court records
pertaining to this case and the impugned Judgment.
8. Heard arguments on both side. 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 16 th ACMM,
Bangalore on 09.11.2016 in C.C.No. 12142/2014 ?
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:
REASONS
11. POINT No.1:- The case of the Complainant is that,
towards the discharge of his liability payable by the Accused to him
in lieu of refund of amount which the Accused had obtained from
7 Crl.Appeal No.1442/2016
him, the Accused issued the cheque bearing No.115796 for a sum
of Rs.4,00,000/- drawn on the Shri Guru Ragavendra Sahakara
Bank Niyamitha, Basavanagudi, Bengaluru, dated. 04.03.2013. He
has paid a sum of Rs.4,00,000/- to the Accused as hand loan and
after receiving the said amount the Accused had promised to repay
the said amount and issued post dated cheque for its repayment. At
the time of issuing the said cheque the Accused assured him that
the said cheques will be duly honoured on its presentation. The
Complainant has further submitted that believing the version of the
Accused when he presented the cheque for encashment through his
Banker, to its shock and surprise, the said cheque returned for the
reason “Funds Insufficient” vide Bank endorsement dated
13.3.2013. Thereafter he approached the Accused to make
payment, to which, the Accused gave an evasive reply and he also
did not respond properly. The Accused has deliberately committed
the illegal act and as such he is liable to pay an amount of
Rs.4,00,000/-.
12. The learned counsel for the appellant/accused argued
before the Trial Court that he has repaid the entire amount to the
complainant, even though the respondent has not return the cheque
to the appellant and filed false complaint, therefore the trial court
8 Crl.Appeal No.1442/2016
passed the Judgment against the appellant is not sustainable and
liable to be set aside.
13. The learned counsel for the respondent has argued that
the Judgment passed by the Trial Court in C.C.No.12142/2014,
dated.09.11.2016 is hold and good and not committed any error,
after perused the Ex.P.1 to 8 i.e., original cheque, Bank memo, copy
of the Legal Notice, Postal receipts, Postal acknowledgment, Postal
cover, Complaint and also observed all the evidence of the
complainant and passed the Judgment against the appellant,
therefore the appeal filed by the appellant is devoid on merits and
liable to be dismissed.
14. 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.8. 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.
15. So far as appreciation of evidence is concerned,
Complainant is examined as PW.1. PW.1 has reiterated averments
of complaint in her examination-in-chief. Ex.P.1 is the original
Cheque, Ex.P.1(a) is the signature of the accused, Ex.P.2 is the
9 Crl.Appeal No.1442/2016
Bank memo, Ex.P.3 is the Copy of the Legal Notice, Ex.P.4 and
Ex.P.5 are Postal receipts, Ex.P.6 is the Postal acknowledgment,
Ex.P.7 is the Postal cover, Ex.P.8 is the complaint, Ex.P.8(a) is the
signature of the complainant are the Relevant entries. The
complainant has deposed that towards the discharge of his liability
payable by the Accused to him in lieu of refund of amount which the
Accused had obtained from him, the Accused issued the cheque
bearing No.115796 for a sum of Rs.4,00,000/- drawn on the Shri
Guru Ragavendra Sahakara Bank Niyamitha, Basavanagudi,
Bengaluru, dated.04.03.2013. He has paid a sum of Rs.4,00,000/-
to the Accused as hand loan and after receiving the said amount the
Accused had promised to repay the said amount and issued post
dated cheque for its repayment. At the time of issuing the said
cheque the Accused assured him that the said cheques will be duly
honoured on its presentation. The version of the Accused when he
presented the cheque for encashment through his Banker, to its
shock and surprise, the said cheque returned for the reason “Funds
Insufficient” vide Bank endorsement dated 13.3.2013. Thereafter he
approached the Accused to make payment, but the accused failed
to repay the same. After several requests and demands made by
the complainant, accused issued a Cheque. The same came to be
10 Crl.Appeal No.1442/2016
dishonored upon presentation and accused has failed to pay the
amount even after receipt of the notice. Therefore, the complainant
has successfully discharged initial burden of proof casts U/Sec.138
of N.I Act. 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.
16. 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.
17. 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
11 Crl.Appeal No.1442/2016
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.
18. 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 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.
12 Crl.Appeal No.1442/2016
19. 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 his 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.
20. 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.
21. 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
the cheque arises. It is for the accused to rebut the said
presumption, though accused need not adduce his own evidence
and can rely upon the material submitted by the complainant.
13 Crl.Appeal No.1442/2016
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.
22. 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.
23. 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
14 Crl.Appeal No.1442/2016
leaf, voluntarily signed and handed over by the accused, which is
towards some payment, would attract presumption under Section
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.
24. 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 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
15 Crl.Appeal No.1442/2016provisions 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.
25. 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.
26. Applying the above said principles to the present case
and before considering the point whether accused succeeded to
rebut presumptions and to establish his defence to the extent of
probabilities, it is just and necessary to accumulate undisputed facts
in this case.
27. 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
16 Crl.Appeal No.1442/2016
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.
28. To consider whether accused succeeded to rebut the
presumption and established defence to the extent of probabilities,
the accused has not adduced any evidence nor marked any
documents on his behalf and has failed to establish his defence. It
is evident from the decision of Hon’ble Supreme Court in Ashok
Transport Agency and Hon’ble High Court in H.N.Nagaraj case, as
discussed supra, proprietorship is not a separate legal entity like a
Company, Partnership Firm or Association. Proprietary business
name need not be arrayed as party. Therefore, the trial Court has
rightly held that the accused has not rebutted the presumption
arising under section 139 of N.I.Act.
29. In addition to that accused didn’t produce any documents
to show that, accused filed any complaint before jurisdictional police
against complainant for misuse of his cheque. Accused did not
produce any document to show that he filed private complaint
before the jurisdictional Magistrate in this regard. Appellant/accused
did not produce any documents to establish the fact that he has
repaid the cheque amount to the complainant. On the other hand,
17 Crl.Appeal No.1442/2016
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 his 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 his counsel
have remained absent and not prosecuted the case with care and
cautious.
30. 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 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.
31. So far as quantum of punishment is concerned,
sentenced him to pay a fine of Rs.4,50,000/- and in default to pay
the fine amount the accused shall undergo simple imprisonment for
6 months. Out of total fine amount a sum of Rs.4,40,000/- ordered
to be paid to the complainant by way of compensation and balance
of Rs.10,000/- ordered to be adjusted towards cost to the State
exchequer. Fine amount imposed is within the purview of Sec.138
18 Crl.Appeal No.1442/2016
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’.
32. Point No.2:- For the foregoing the reason I proceed to pass
the following :-
ORDER
The Criminal Appeal filed under Section 374(3) of
Cr.P.C is hereby dismissed.
Consequently, the order passed by the learned 16th
ACMM., Bengaluru in C.C.No.12142/2014, dated.
09.11.2016 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, transcribed and typed by him
on computer, corrected by me and then pronounced in open court on this
the 25th day of July, 2025.)
(Raghavendra S. Channabasappa)
LXII Addl. City Civil & Sessions Judge,
(CCH-63), Bengaluru.
19 Crl.Appeal No.1442/2016
JUDGMENT PRONOUNCED IN THE OPEN COURT,
VIDE SEPARATE JUDGMENT
The Criminal Appeal filed under Section 374(3)
of Cr.P.C is hereby dismissed.
20 Crl.Appeal No.1442/2016
Consequently, the order passed by the learned 16th
ACMM., Bengaluru in C.C.No.12142/2014, dated.
09.11.2016 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.