Karnataka High Court
Mrutunjaya S/O Mailarapap Sunagar vs Maruthi S/O Basappa Kusaguru on 28 January, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2025:KHC-D:1630
CRL.RP No. 100314 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100314 OF 2021
[397(CR.PC)/438(BNSS)]
BETWEEN:
MRUTUNJAYA S/O. MAILARAPAP SUNAGAR,
AGE: 43 YEARS, OCC. BUSINESS,
R/O. GOURISHANKAR NAGAR, RANEBENNUR,
DIST. HAVERI-581115.
... PETITIONER
(BY KUM. VINAYA KUPPELUR, ADVOCATE FOR
SRI N.R.KUPPERLUR, ADVOCATE)
AND:
MARUTHI S/O. BASAPPA KUSAGURU,
AGE: 66 YEARS,
OCC. AGRICULTURE AND BUSINESS,
Digitally
signed by
R/O. SUNAGAR ONI, RANEBENNUR,
MANJANNA
MANJANNA E
E Date:
DIST. HAVERI-581115.
2025.01.30
14:27:31
+0530 ... RESPONDENT
(BY SRI ARAVIND D.KULKARNI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S. 397
R/W. 401 OF CR.P.C., SEEKING TO SET ASIDE THE
JUDGMENT/ORDER DATED 30.08.2021 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI
SITTING AT RANEBENNUR IN CRIMINAL APPEAL NO.30/2020
AS WELL AS JUDGMENT/ORDER DATED 26.02.2020 PASSED BY
THE III ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL
JMFC, RANEBENNUR, IN C.C.NO.226/2018 ACQUITTING THE
PETITIONER/ACCUSED, FOR THE OFFENCE PUNISHABLE U/S.
138 OF N.I ACT.
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NC: 2025:KHC-D:1630
CRL.RP No. 100314 of 2021
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging judgment/order dated 30.08.2021 passed by
II Addl. District and Sessions Judge, Haveri (sitting at
Ranebennur) in Crl.Appeal no.30/2020 and judgment/order
dated 26.02.2020 passed by III Addl. Senior Civil Judge and
JMFC, Ranebennur in C.C.no.226/2018, this revision petition is
filed.
2. Kum.Vinaya Kuppelur, learned counsel for
petitioner (accused) submitted that impugned
judgments/orders were unsustainable and contrary to law. It
was submitted, as per case of respondent (complainant),
petitioner had issued cheque towards discharge of loan of
Rs.2,00,000/- stated to have been borrowed by petitioner from
complainant. It was submitted, petitioner had outright denied
any financial transaction. Such being case, raising of
presumption under Section 139 of Negotiable Instruments Act,
1881 ('N.I. Act' for short), that issuance of cheque in favour of
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complainant was towards discharge of legally recoverable debt
by both Courts were not justified.
3. It was submitted, Ex.P1-cheque dated 15.12.2015
was admittedly drawn on State Bank of Mysore,
Kumarapattanam Branch, Haveri District. But account at that
branch was closed by petitioner on 18.06.2011. Therefore,
presumption under Section 139 of N.I. Act would not be
available. It was further submitted, before trial Court, petitioner
had merely stated that he had kept 10 signed cheques
including Ex.P1 in his gym at Ranebennur and Ex.P1 was stolen
by complainant and misused. But in its impugned judgment,
trial Court observed that petitioner had admitted his signature
'as well as issuance of cheque'. Therefore impugned order
would be perverse. It was further submitted, during cross-
examination, PW.1 admitted that relationship between
petitioner and complainant was soured due to property
litigation. Even petitioner as DW.1 in his examination-in-chief,
had stated about litigation between complainant and his
brother/sisters which was running for 18 years wherein, he had
assisted one of parties which led to spoiling of relationship. It
was further submitted, fact that complainant had not disclosed
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particulars of date, time and place of payment of Rs.2,00,000/-
to petitioner would raise serious doubt about issuance of
cheque towards legally recoverable debt especially when
petitioner had vehemently denied need for loan from
complainant as well as capacity of complainant to pay such
amount.
4. It was submitted, while passing impugned
judgment, First Appellate Court had sought to reinforce
presumption by stating that petitioner had failed to file police
complaint in case (as contended by him) Ex.P1-cheque was
stolen, which would be contrary to law. Therefore, both
judgments were liable for interference.
5. Sri Aravind D. Kulkarni, learned counsel for
complainant on other hand opposed petition. It was submitted,
scope for interference with concurrent findings by trial Court
and Appellate Court in revision petition filed under Section 397
of CrPC was extremely limited. It was submitted, Hon'ble
Supreme Court in case of Bir Singh v. Mukesh Kumar
reported in (2019) 4 SCC 197 had clarified distinction
between presumption in law and presumption of fact. It was
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submitted, when petitioner had admitted signing cheque,
presumption under Section 139 of N.I. Act would place burden
of proof on accused and unless accused adduced evidence to
raise reasonable doubt it would be presumed that holder of
admitted cheque was towards discharge of legally recoverable
debt. It was submitted, while passing impugned
judgment/order, trial Court as well as Appellate Court had
taken note of fact that petitioner admitted signing cheque. As
he failed to substantiate doubt presumption would prevail.
Therefore, there was no error calling for interference.
6. Insofar as defence espoused about closure of
account at Kumarapattanam Branch, complainant had
examined Branch Manager of State Bank of Mysore,
Ranebennur as PW.2 and Branch Manager of State Bank of
Mysore, Kumarapattanam Branch as PW.3. In his deposition,
PW.3 had admitted that there was no closure of account but
there was transfer of account from Kumarapattanam Branch to
Ranebennur Branch with same account number. It was
submitted, when cheque was presented for collection, same
had returned with endorsement about insufficient funds and not
closure of account. Therefore, ingredients for commission of
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offence under Section 138 of N.I. Act were established
justifying findings of both Courts. On above grounds, sought
dismissal of petition.
7. Heard learned counsel, perused impugned
judgments/orders and records.
8. From above, only point that arises for consideration
is:
"Whether impugned judgments/orders
suffer from perversity calling for
interference?"
9. It is seen in instance case, petitioner has urged two
main grounds. Firstly, denial of legally recoverable debt and
secondly, about closure of account at Drawee Branch much
prior to date of cheque.
10. Insofar as first contention, indeed petitioner has
elicited about partition suit filed by complainant's brother
having been decreed against him and about not showing debt
due from petitioner in his income tax returns. In addition,
petitioner examined as DW1 has stated that civil litigation
between complainant and his brother had continued for 18
years wherein, petitioner had assisted one of sisters of
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complainant which spoilt relation between petitioner and
complainant.
11. However, mere setting up of a defence vague
without leading specific evidence which would probabilize same
would not suffice. While passing impugned judgments/orders,
both Courts have taken note of fact that petitioner contended
that Ex.P1 along with 9 other cheques were signed and kept by
him in his gym as they were intended to be given towards
purchase of Tipper. But after, Ex.P1 was stolen, he had not
given any police complaint or stop payment intimation to
banker. By said reasoning, they held defence set up would not
probabilize, much less caste reasonable doubt.
12. Insofar as second ground about Ex.P1 being drawn
on Kamarpattanam Branch and said account being closed about
four years prior to date of issuance of cheque, it is seen both
Courts have taken note of deposition by PW.3 that there was
no closure of account at Kumarapattanam Branch, but same
was transferred to Ranebennur Branch and continued with
same account number. In fact, it is elicited from PW.3 that in
case of closure of account, bankers obtained return of unused
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cheques unlike in present case. It is seen, petitioner failed to
place on record any endorsement by him about surrender of
unused cheques being surrendered by mentioning that Ex.P1
was stolen. As clarified by Hon'ble Supreme Court in Bir
Singh's case (supra), presumption under Section 139 of N.I.
Act, where signing of cheque is admitted would include
presumption about its issuance to holder. Therefore, grounds
urged by petitioner would be untenable.
13. In view of fact that both Courts have concurrently
held against petitioner, scope for interference would be limited
to examining questions of law and not finding of fact.
Therefore, no ground to interfere. Hence, following:
ORDER
Revision petition is dismissed.
In view of disposal of revision petition, I.A.no.1/2024 is
dismissed as unnecessary.
SD/-
(RAVI V.HOSMANI)
JUDGE
RH
CT:PA
