- 1 - HC-KAR NC: 2025:KHC:42085 CRL.RP No. 1380 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 1380 OF 2025 BETWEEN: SRI B.M. MUNIRAJU, S/O. LATE DODDAMUNINANJAPPA, AGED ABOUT 63 YEARS, R/AT NO.405, SRI SAI NILAYA, 2ND MAIN ROAD, 2ND CROSS, NEAR ROYAL CONCORD SCHOOL, J.R.LAYOUT, CHALEKERE, BENGALURU - 560 043. …PETITIONER (BY SRI JAGADEESHWAR J., ADVOCATE) AND: SRI A. RAJASHEKAR, S/O. LATE APPU RAO, AGED ABOUT 55 YEARS, R/AT. NO.55, G-6, P.S.N PLAZA, D.V.G.ROAD, BENGALURU - 560 004. …RESPONDENT THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C., (U/S 438 R/W 442 BNSS) PRAYING TO SET ASIDE ORDER OF CONVICTION AND SENTENCE PASSED BY SMALL CAUSES COURT AND ADDL. CMM, BENGALURU IN CC.NO.12897/2017 DATED 31.12.2021 AND SET ASIDE JUDGMENT AND ORDER PASSED IN CRIMINAL APPEAL NO.337/2022 PASSED BY THE LVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-59), BENGALURU ON 11.07.2025 BY ALLOWING THIS PETITION AND ETC., Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:42085 CRL.RP No. 1380 of 2025 THIS PETITION IS COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL ORDER Challenging judgment and order dated 11.07.2025 passed by LVIII Addl. City Civil and Sessions Judge, Bengaluru (CCH-59), Bengaluru, in Crl.A.no.337/2022 confirming order of conviction and sentence dated 31.12.2021 passed by Small Causes Court and Addl. CMM, Bengaluru, in C.C.no.12897/2017, this revision petition is filed. 2. Sri Jagadeeshwar J., learned counsel for petitioner submitted revision petition was by accused challenging concurrent judgments of conviction of petitioner for offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('Act' for short). 3. It was submitted, respondent (complainant) had filed a private complaint under Section 200 of Cr.P.C. alleging that his acquaintances, Bhujangarao and Nisar Ahmed introduced petitioner (accused) to complainant stating that he was doing Real Estate business and entered into Memorandum - 3 - HC-KAR NC: 2025:KHC:42085 CRL.RP No. 1380 of 2025 of Understanding ('MoU') with several land owners of Chikharasanahalli, Kolar District and Gangapura village, Bengaluru Rural District. And as complainant was intending to develop his land, he had made several payments to accused i.e. Rs.5 Lakhs by cheque on 08.11.2012 and Rs.20 Lakhs on 10.01.2013 i.e. date of execution of MoU, Rs.20 Lakhs on 25.04.2013 and on 25.09.2013 Rs.13 Lakhs by cash totalling to Rs.58 Lakhs towards conversion of land. But thereafter, complainant found agreements with accused to be fake and demanded return of money. On 17.02.2017, accused issued cheque no.013842 drawn on Axis Bank, RT Nagar Branch, Bengaluru, for Rs.58 Lakhs, in favour of complainant. 4. Further, on presentation, it returned with an endorsement 'funds insufficient' on 21.02.2017. And even when complainant got issued legal notice dated 18.03.2017, accused got issued false reply on 03.04.2017 and did not pay amount, thereby committed offence punishable under Section 138 of Act. 5. It was submitted, on appearance, accused denied allegations and sought to be tried. Complainant examined himself as PW.1 and got marked Exs.-C1 to C5, P6 and P7. - 4 - HC-KAR NC: 2025:KHC:42085 CRL.RP No. 1380 of 2025 When appraised of incriminating material, accused denied same, which was recorded as his statement under Section 313 of Cr.P.C. Accused substantiated his defence in cross- examination of complainant and did not chose to lead rebuttal evidence. It was submitted, despite probablizing substantial defence against complaint allegations, order of conviction passed by trial Court was contrary to material on record. Even judgment of first appellate Court, which failed to appreciate facts and circumstances in proper perspective warranted interference. 6. It was firstly submitted, accused had denied receipt of money from complainant and alleged cheque was not for any legally recoverable debt. Without proof for alleged cash transactions, order of conviction would be without basis. It was secondly submitted, Ex.C1-Cheque showed difference in ink from signature and other details, indicating manipulation. Thirdly, there was non-compliance with requirement in Section 138 (b) of Act about issuance of demand notice to accused prior to filing of complaint, as Ex.C5-postal acknowledgement of demand notice issued to accused contained signature of one Deepa. - 5 - HC-KAR NC: 2025:KHC:42085 CRL.RP No. 1380 of 2025 7. Fourthly, petitioner was in judicial custody from 20.02.2021 and therefore unable to effectively cross-examine complainant and lead rebuttal evidence. Lastly, financial capacity of complainant to pay amounts as alleged was also disputed. Even when complainant failed to produce income tax returns or any other material, on 30.06.2017, accused filed application for recall of PW.1. But, said application was rejected. It was thus submitted, both Courts had failed to appreciate these factors. Hence, impugned judgment and order of conviction were perverse, illegal and unsustainable and prayed for allowing petition. 8. Heard learned counsel for petitioner and perused material on record. 9. At outset, this revision petition is by accused against concurrent orders of conviction. Perusal of impugned judgments of conviction and orders of sentences reveal that both Courts have after independent assessment of material on record have arrived at conclusions by assigning detailed reasons. Hon'ble Supreme Court in case of Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 - 6 - HC-KAR NC: 2025:KHC:42085 CRL.RP No. 1380 of 2025 SCC 460, has held scope for interference against concurrent findings in a revision petition is normally confined to infraction of statutory provisions or where findings are established to be perverse. 10. In instant case, accused has not denied or disputed his signature on Ex.C1 - cheque, thereby attracting presumption in law. Section 139 of Act creates presumption in favour of holder of a cheque that, it was for discharge of debt or liability, unless proven otherwise, thereby casting burden of proof on accused to prove that there was no legally enforceable debt. Accused can prove that cheque was not issued for any debt or liability by "cogent evidence" or by reference to evidence led by complainant. As held in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441, there is no mandatory requirement for accused to lead rebuttal evidence and probable defence can be established from evidence of complainant. 11. Question for consideration would be, whether accused probablized his defence, where upon burden to establish commission of offence by proof beyond reasonable doubt would shift back to complainant. It is settled law that - 7 - HC-KAR NC: 2025:KHC:42085 CRL.RP No. 1380 of 2025 merely taking probable defence would not result in upsetting statutory presumption unless same is probabilised by any material elicitation or admission. 12. Insofar as first contention about failure to establish legally enforceable debt, about alleged cash transaction being in violation of provisions of Income Tax Act, Hon'ble Supreme Court in its recent decision in Sanjabij Tari v. Kishore S. Borcar reported in 2025 SCC OnLine SC 2069, has clarified that possibility of infraction of provisions of Income Tax Act would not be fatal to prosecution under Act and Sections 118 and 139 of Act would provide presumption to complainant that cheque was issued in repayment of legally enforceable debt. It is held merely on ground that income tax returns were not produced by complainant would not upset such presumption. It is also seen that apart from Ex.C1 - cheque, complainant not only produced MoU executed between parties as Ex.P6, but also got marked their signatures on it. Further, trial Court observed, accused had taken plea of issuance of cheque as security, which was not taken in Ex.P7 - reply notice. Failure to take appropriate defence in reply notice is held to enure to complainant. - 8 - HC-KAR NC: 2025:KHC:42085 CRL.RP No. 1380 of 2025 13. Contention about change in ink of signature and other writings on cheque would also require to be rejected, as observed by trial Court, no suggestion was made in cross- examination of complainant that he had filled cheque without consent of accused. Nextly, about lack of opportunity to cross- examine complainant effectively, as accused was in judicial custody, it is seen that accused was in judicial custody in relation to some other matter from 20.02.2021 to 19.02.2022, whereas his statement under Section 313 Cr.P.C. was recorded on 04.04.2019, about two years prior to period of judicial custody. Even filing of IA for recalling of PW1 for further cross- examination was on 30.06.2017, much prior to said period. Therefore, contention of lack of opportunity is without any merit. 14. For aforesaid, no grounds to interfere. Revision petition dismissed. In view of dismissal of revision petition, I.A.no.1/2025 is also dismissed. Sd/- (RAVI V HOSMANI) JUDGE AV List No.: 1 Sl No.: 35