Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (3) TMI 1052 - HC - Indian LawsDishonor of Cheque - insufficient funds - legally enforceable debt or not - alteration in the date of the cheque so as to bring it within the validity period - Rebuttal of presumption - HELD THAT:- Section 139 of the N.I.Act enables the Courts to raise a presumption that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. It is for the accused to prove that it was not issued for any legally enforceable debt. True it is that accused need not step into witness box to prove that there was no legally enforceable debt. He can prove it from the cross-examination of the witnesses and other evidence that there was no legally enforceable debt. In the case at hand, except alleging that there was alteration in the date, nothing has been brought on record to show that there was no legally enforceable debt. Report of the Handwriting Export was received indicating therein that there was alteration - in the cross-examination also, accused could not bring on record that there was no legally enforceable debt for issuance of cheque. The learned Additional Sessions Judge has also given cogent reasons for rejecting this argument of the accused. Revisional Court cannot re-appreciate evidence unless it is shown that the findings of the learned trial Court and the learned Appellate Court are perverse. It cannot be said that the findings of the learned trial Court and learned Appellate Court are perverse. Therefore, there are no infirmity in the appreciation of evidence made by the learned trial Court and the learned Appellate Court. It cannot be said that the learned Additional Sessions Judge has given cogent reasons. No documentary proof was placed on record to show that accused is a handicapped person. His age shown to be 55 years. Thus, at the time of deciding the appeal, he was not even Senior Citizen. Therefore, the leniency shown by the learned Additional Sessions Judge was wholly unwarranted - In the case at hand, the learned Additional Sessions Judge awarded a fee-bite sentence. Smt.Kulkarni, learned counsel for the complainant is right in contending that accused did not pay the amount since the year 2004 and if deterrence of punishment of imprisonment is removed, there is no possibility of the accused paying the amount. Award of sentence should be to give proper effect to the object of the legislation. By awarding fee-bite sentence, object of Section 138 of the N.I.Act is frustrated. Therefore, the learned Appellate Court committed error in setting aside the substantive sentence. Criminal Revision application is allowed.
|