Bangalore District Court
T S Ramachandra Rao vs Nagalakshmi Sampath on 13 June, 2025
KABC010248062024
IN THE COURT OF THE LX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-61)
:Present :
Sri Mallikarjuna Swamy H.S.,
B.Sc., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 13th day of June, 2025
CRL.A No.1566/2024
APPELLANT : Sri T.S. Ramachandra Rao,
S/o late K. Srinivasa Rao,
aged about 45 years,
r/at Flat No.102, 1st Floor,
K.T. 23 Apartment,
Malleshwaram,
Bengaluru - 560 055.
(By: Smt. Renuka V., Advocate)
Vs.
RESPONDENT : Smt. Nagalakshmi Sampath,
W/o Sri Sampath N.A.,
Aged Major,
r/at No.27/1, 9th Cross,
6th Main, Malleshwaram,
Bengaluru - 560 003.
Rep. by her GPA Holder
Sri N.A. Sampath.
(By : Sri S.K.S., Advocate)
2 Crl.A.No.1566/2024
JUDGMENT
The appellant/accused has preferred this appeal
under Section 415(3) of BNSS, 2023 (Section 374(3) of
Cr.P.C.) being aggrieved by the judgment of conviction
and order of sentence passed in C.C.No.3507/2023
dated 04.09.2024 on the file of IV Addl. Small Causes
Judge and ACJM, Bengaluru.
2. For the purpose of convenience parties are
referred to as per their rank before the trial court.
Appellant was arraigned as accused and respondent
was the complainant before the trial court.
Complainant set the law into motion by lodging private
complaint under section 200 of Cr.P.C., for the offence
punishable U/sec.138 of Negotiable Instruments Act
against accused.
3. The gist of the accusation in the complaint is
that, Smt. Roopalatha is the lessee under the
complainant in respect of property bearing flat No.102,
1st Floor, KT 23 Apartment, Malleswharam, Bengaluru
since February 2012. The deed of lease and licence
was entered into between the parties on 22.02.2012
and extended from time to time. At the inception,
lessee agreed to pay Rs.25,000/- p.m. and thereafter it
3 Crl.A.No.1566/2024
was enhanced to Rs.31,904/- per month. Tenant
defaulted in payment of rents to the tune of
Rs.10,06,912/-. Accused being husband of the lessee
and being the occupant of the premises, issued cheque
for Rs.4,00,000/- drawn on DBS Bank, Malleshwaram
Branch, Bengaluru vide cheque No.000056 dated
30.10.2022 in favour of the complainant. The said
cheque was presented through her banker Bank of
India, Malleshwaram Branch on 25.01.2023. Cheque
was dishonoured for the reason “insufficient funds” as
per the endorsement of the Banker dated 27.01.2023.
Complainant issued notice on 27.02.2023 and that
notice served to accused on 01.03.2023. Accused has
not complied nor replied, hence complainant
constrained to file this complaint u/s 138 of N.I. Act.
4. On the basis of the said complaint, the learned
CJM took cognizance of the offence punishable
U/s.138 of Negotiable Instruments Act and issued
process against the accused. In response to the
summons issued, the accused appeared before the
court and he was enlarged on bail. The plea of the
accused was recorded by explaining the substance of
accusation leveled against accused, for which the
accused pleaded not guilty and claimed to be tried.
4 Crl.A.No.1566/2024
5. The GPA holder of the complainant adduced
evidence as PW.1 and got marked Exs.P.1 to P.9 and
closed his side. Thereafter the statement of the
accused was recorded U/s.313 of Cr.P.C. wherein
accused has denied the incriminating evidence
adduced against him as false. Accused adduced
evidence and got marked Exs.D.1 to D.11 in support of
his contention.
6. After hearing the arguments of both sides, the
trial court convicted accused for the offence
punishable under Section 138 of Negotiable
Instruments Act and sentenced to pay fine of
Rs.4,05,000/- with default sentence of six months
simple imprisonment. Further the trial court acting
U/s. 395(1) of BNSS, 2023 (Section 357(3) of Cr.P.C.)
ordered that out of fine amount, Rs.4,00,000/- to be
paid to the complainant as compensation and
remaining fine of Rs.5,000/- shall be defrayed to the
state.
7. Accused being aggrieved by the said judgment
preferred this appeal on the following grounds;
(i) The learned magistrate committed grave error in
law in taking cognizance of the offence and as such the
5 Crl.A.No.1566/2024
conviction is bad in law. Court below had been
misdirected by the respondent and came to the wrong
conclusion. Court below had not given sufficient
opportunity to the appellant to establish his defence
and failed to appreciate the contention taken by the
appellant that respondent had forcibly taken Ex.P.1
cheque from him in respect of the arrears of rent.
(ii) Court below failed to appreciate the
contention taken by the appellant that the respondent
had also filed suit against his wife for recovery of
arrears of rent and seeking ejectment in O.S.
No.25792/2023.
(iii) The impugned judgment of conviction and
sentence passed by the court below is opposed to law,
facts, circumstances and probabilities and is not at all
sustainable in the eye of law and it is totally
erroneous. Learned magistrate has erred in accepting
and acting upon the evidence of PW.1 which is being
inadmissible.
(iv) learned magistrate failed to consider cross-
examination of PW.1 and non-compliance of provision
of Section 263 S.S. of Income Tax Act which direct that
any advance taken by way of any loan of more than
6 Crl.A.No.1566/2024
Rs.20,000/- should be made only by way of an
account payee cheque. Under these circumstances it
is clear that the appellant has not borrowed hand loan
amount from the respondent and as such ingredients of
Section 138 of Negotiable Instruments Act of N.I. Act
does not constitute against the appellant. Hence
prayed to allow the appeal and to set aside the
impugned judgment of conviction and sentence dated
04.09.2024 and to acquit the appellant.
8. After admission of the appeal, court has
issued notice to the respondent. The respondent
appeared through his counsel. The trial court records
have been secured.
9. Heard both sides and perused the records.
10. In view of the contentions raised by the
parties to the lis and the evidence available on record
following points would arise for my consideration:
1) Whether complainant proves that
issuance of cheque by the accused is
towards legally enforceable debt?
2) Whether accused rebutted the
presumption available to the
7 Crl.A.No.1566/2024
complainant under Section 139 of
Negotiable Instruments Act?
3) Whether the judgment of conviction
and sentence passed in
C.C.No.3507/2023 dated
04.09.2024 rendered by the IV
Addl.Small Causes Judge and
ACJM, Bengaluru calls for
interference by this court?
4) What order?
11. My answer to the above points are as under:
Point No.1: In the Affirmative.
Point No.2: In the Negative.
Point No.3: In the Negative.
Point No.4: As per final order
for the following:
REASONS
12. Point No.1 and 2:- It is the case of the
complainant that, Smt. Roopalatha is the lessee under
the complainant in respect of property bearing flat
No.102, 1st Floor, KT 23 Apartment, Malleswharam,
Bengaluru since February 2012. The deed of lease and
licence was entered into between the parties on
22.02.2012 and extended from time to time. At the
inception, lessee agreed to pay Rs.25,000/- p.m. and
thereafter it was enhanced to Rs.31,904/- per month.
8 Crl.A.No.1566/2024
Tenant defaulted in payment of rents to the tune of
Rs.10,06,912/-. Accused being husband of the lessee
and being the occupant of the premises, issued cheque
for Rs.4,00,000/- drawn on DBS Bank, Malleshwaram
Branch, Bengaluru vide cheque No.000056 dated
30.10.2022 in favour of the complainant. The said
cheque was presented through her banker Bank of
India, Malleshwaram Branch on 25.01.2023. Cheque
was dishonoured for the reason “insufficient funds” as
per the endorsement of the Banker dated 27.01.2023.
Complainant issued notice on 27.02.2023 and that
notice served to accused on 01.03.2023. Accused has
not complied nor replied to the notice.
13. The said averment has been reiterated by the
General Power of Attorney Holder of the complainant in
his evidence. Ex.P.1 is the General Power of Attorney,
Ex.P.2 is the cheque dated 30.10.2022 for
Rs.4,00,000/-, Ex.P.3 is the cheque return memo
dated 27.01.2023, Ex.P.4 is the Pay-in slip dated
25.01.2023, Ex.P.5 is the legal notice dated
27.02.2023, Ex.P.6 is the postal receipt, Ex.P.7 is the
postal acknowledgment and Exs.P.8 and P.9 are
Confirmation of account.
9 Crl.A.No.1566/2024
14. Before adverting to contentious issues this
court examined whether complainant complied Section
138(a) to (c) of Negotiable Instruments Act. As such
this court examined matters to be established by the
complainant for availing statutory presumptions.
Section 138 (a) to (c) provides that cheque has to be
presented within a period of three months from the
date on which it is drawn or within the period of its
validity whichever is earlier and notice has to be issued
making the demand for payment within 30 days of
receipt of information by him from the bank regarding
dishonour of cheque and if drawer of the cheque fails
to make payment within 15 days from the receipt of
the said notice, the complainant can set the law into
motion. As such this court proceed to examine
whether complainant complied mandatory provisions
of Section 138(a) to (c) before instituting the complaint
before the leaned Magistrate.
15. Ex.P.2 – cheque was drawn on 30.10.2022.
The same was presented on 25.01.2023. Complainant
received intimation with regard to dishonour of cheque
on 27.01.2023. Legal notice Ex.P.5 was issued
through registered post on 27.02.2023 which was
served to address of accused on 01.03.2023 and
10 Crl.A.No.1566/2024
thereafter the complaint was presented on
13.04.2023.
16. The cheque/Ex.P.2 was presented within
three months. Notice was issued within prescribed
period and the complaint was filed within 45 days after
receipt of legal notice by the accused. As such
complainant complied Section 138(a) to (c) of
Negotiable Instruments Act.
17. The Hon’ble Supreme Court in its decision
reported in (2009) 2 SCC 513 – Kumar Exports v/s
Sharma Carpets and another decision of the Hon’ble
Supreme Court reported in AIR 2019 SC 1983 –
Basalingappa v/s Mudibasappa held that presumption
under Section 118 and 139 of N.I.Act are rebuttable
presumptions. It is further held that rebuttal does not
require proof beyond reasonable doubt. Something
probable has to be brought on record. The Hon’ble
Supreme Court clearly held that a probable defence
needs to be raised which must meet the standard of
‘preponderance of probability’, and not mere
possibility.
18. The defence of the accused is that, he issued
cheque as security in respect of the rent. Accused
11 Crl.A.No.1566/2024
adduced evidence as DW.1 and also got marked
Exs.D.1 to D.11 in support of his contention. Ex.D.1 is
the certified copies of Order sheet, plaint, written
statement, deposition of PW.1 in O.S. No.25792/2023.
Ex.D.2 is certified copy of GPA, Ex.D.3 is the certified
copy of cheque, Ex.D.3(a) is the certified copy of Bank
return memo, Ex.D.4 is the certified copy of Postal
receipt with Bank challan, Ex.D.5 is the certified copy
of Notice, Ex.D.6 is the certified copy of postal
acknowledgment, Exs.D.7 and D.8 are the certified
copies of Confirmation accounts, Ex.P.9 is the
certified copy of Acknowledgment issued by Karnataka
State Police (Lost Article report), Ex.D.10 is the
certified copy of legal notice dated 23.01.2022 and
Ex.D.11 is the certified copy of Postal acknowledgment
and postal receipt.
19. In his cross-examination DW.1 admitted
that he served with legal notice but he has not replied
to the same. DW.1 failed to explain as to why he
handed over cheque to complainant at the first
instance. He further admitted that he has not initiated
legal action against the complainant nor issued legal
notice to the complainant demanding return of the
cheque. Further, Exs.P.8 and P.9 Confirmation of
accounts establish the factum that accused and his
12 Crl.A.No.1566/2024
wife acknowledged outstanding rent payable to the
complainant. Nothing relevant has been elicited in the
cross examination of PW.1 to disbelieve the contention
of the complainant. In view of the same the defence
raised by the appellant is not probable.
20. The another contention raised by the
accused is that, complainant initiated civil case for
recovery of amount in O.S. No.25792/2023 on the file
of City Civil Judge, Bengaluru (CCH21) and also
initiated criminal proceedings through this case.
21. There is no bar under law for simultaneous
initiation of civil and criminal proceedings against the
defaulters. The Hon’ble Supreme Court in its decision
reported in (2009)13 SCC 729 – Vishnu Dutt Sharma
Vs. Daya Sapra held that Creditor has right to
maintain both civil and criminal proceedings
simultaneously. In view of the same, the said
contention of the appellant counsel is legally
untenable.
22. There is a clear and cogent evidence
available that cheque belongs to the accused which
bears his signature. When such being the case it is
incumbent upon the accused to give explanation under
13 Crl.A.No.1566/2024
what circumstances he parted with the possession of
Ex.P.2. Explanation offered by the accused with
regard to possession of cheque belongs to him in the
hands of the complainant is improbable.
23. The statute mandates that once the
signature of accused on the cheque is established then
the ‘reverse onus’ clause become operative. In such a
situation the obligation shifts upon the accused to
discharge the presumption imposed upon.
24. The Hon’ble Supreme Court in its decision
reported in (2019) 4 SCC 197 – Bir Singh v/s Mukesh
Kumar held that even a blank cheque leaf, voluntarily
signed and handed over by the accused which is
towards some payment, would attract presumption
under Section 139 of N.I.Act, in the absence of any
cogent evidence to show that cheque was not issued in
discharge of debt.
25. Ex.P.2 is the cheque belongs to the account
of the accused. Ex.P.2 bears signature of the accused.
Such being the case the defence raised by the accused
in the considered opinion of this court not inspire
confidence or meet the standard of ‘preponderance of
probability’. In the absence of any other relevant
evidence to disprove or to rebut the presumption
14 Crl.A.No.1566/2024
available to the complainant, the accused in the
opinion of this court has not discharged his onus in
proving his contention. As such the point No.1 taken
up for consideration is held in affirmative and point
No.2 taken up for consideration is held in Negative.
26. Point No.3:- In view of the findings on point
No.1 and 2, the judgment of conviction and sentence
passed by the learned IV Addl. Small Causes Judge
and ACJM, Bengaluru not calls for interference by this
court. As such the point No.3 taken up for
consideration is held in the Negative.
27. Point No.4:- For the foregoing reasons on
point Nos.1 to 3, I proceed to pass the following:
ORDER
Criminal Appeal filed by the
appellant/accused U/s. 415(3) of BNSS, 2023
(Section 374(3) of Cr.P.C.) is hereby
dismissed.
The judgment of conviction and
sentence passed in C.C.No.3507/2023 dated
04.09.2024 on the file of IV Addl. Small
Causes Judge and ACJM, Bengaluru is
hereby confirmed.
15 Crl.A.No.1566/2024
Send back the trial court records along
with copy of this judgment for further action.
(Dictated to the Stenographer Grade-1 / Sr.Sheristedar directly
on computer, typed by her, corrected by me and then
pronounced in the open Court on this the 13 th day of June,
2025)
(MALLIKARJUNA SWAMY H.S.)
LX Addl. City Civil & Sessions Judge,
Bengaluru.