2022 (11) TMI 1082 - HC - Indian Laws
Dishonor of Cheque - rebuttal of presumption - preponderance of probabilities - contention raised by the accused before the trial court was that the company was under liquidation and therefore, the criminal prosecution would not attract - section 138 of NI Act - HELD THAT:- The power of revision available to this Court is not wide enough to appreciate or re-appreciate the evidence to have a contra finding.
It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C. r/w. Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding - In decision of SANJAYSINH RAMRAO CHAVAN VERSUS DATTATRAY GULABRAO PHALKE AND OTHERS [2015 (1) TMI 1332 - SUPREME COURT], the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible.
The trial court as well as the appellate court found that the complainant discharged his initial burden in proving the transaction led to execution of Ext. P1 cheque and thereby, twin statutory presumptions embodied under Sections 118 and 139 of the NI Act would go in favour of the complainant. Law regarding presumptions is also settled as well - the law is clear on the point that when the complainant discharges the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I. Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities.
Thus, it has to be held that conviction as well as the sentence imposed by the trial court as well as the appellate court do not require any interference and therefore, this revision must fail - this revision petition fails and it is, accordingly, dismissed.