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2022 (4) TMI 1145 - KARNATAKA HIGH COURTDishonor of cheque - Funds Insufficient - rebuttal of presumption - preponderance of probabilities - HELD THAT:- Both the Courts after hearing the evidence have rightly come to the conclusion that ingredients of section 138 of the Negotiable Instruments Act, 1881 is proved by the complainant. There is also oral and documentary evidence produced by the petitioner at Ex.P.1 to P.11. There is a presumption in favour of petitioner under section 139 of the Negotiable Instruments Act, 1881 and that presumption can be rebutted by the accused either by cross-examining the complainant and witnesses of the complainant, if any, and show before the Court by preponderance of probabilities by leading defence evidence and show before the Court that case of complainant is not probable. But herein in this case the petitioner by both oral and documentary evidence coupled with the presumption, has discharged the burden and shifted the onus upon the accused but the accused failed to rebut the presumption by leading legally admissible evidence. The Hon'ble Supreme Court in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] elaborated the object of bringing Section 138 of N.I. Act into statute and insertion of Section 138 to 142 of the N.I. Act by Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988). The Hon'ble Supreme Court held that in respect of offence of dishonor of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. If the punishment awarded in this case is tested with touch stone of the principles stated by the Hon'ble Supreme Court in the above referred decisions, it is evident that the sentence of imprisonment awarded by the trial court and confirmed by the first appellate court is not justified - In the case on hand, it is a monetary loss to the complainant/respondent. Therefore imposing the sentence of imprisonment will not serve any purpose. Keeping in mind the object and purpose for which the N.I. Act was amended, period of pendency of case, nature of transaction, the relationship of complainant and accused and in view of the discussions made above, in my considered view, the sentence of fine of ₹ 3,00,000/- appears to be exorbitant and excessive - keeping in mind the object and purpose for which the Negotiable Instruments Act is amended, the period of pendency of the case, nature of allegation and the relationship of the parties and also in view of the discussion made, the sentence of fine of ₹ 3,00,000/- needs to be modified to the extent imposing sentence of fine only to the tune of ₹ 2,05,000/-. The ends of justice would be met by modifying order of sentence passed by the trial Court as well as setting aside imposing cost by the First Appellate Court - revision petition allowed in part.
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