2023 (9) TMI 705 - MADHYA PRADESH HIGH COURT

Dishonour of Cheque - existence of legally recoverable debt or liability - non-reporting of giving of cheques in question as security for transaction of sale of plot - HELD THAT:- Under Section 397 of the Cr.P.C, the Court is vested with the power to call for and examine the record of any inferior Court for the purpose of satisfying itself as to legality and regularity of any proceedings or order made in a case. The object of this provision is to correct the patent defect or an error of jurisdiction or the perversity which has crept in the proceedings.

The High Court, in revision, exercises supervisory jurisdiction of a restricted nature. It cannot re-appreciate the evidence, as Second Appellate Court, for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct.

The Supreme Court BHARAT BARREL & DRUM MANUFACTURING COMPANY VERSUS AMIN CHAND PAYRELAL [1999 (2) TMI 627 - SUPREME COURT], held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration.

The accused has failed to establish his defence even on preponderance of probability, therefore, there was no occasion to shift onus of proof on the complainant to establish existence of legally recoverable debt or liability. Manoj Kushwaha (PW-1), Hotam Singh (PW-2) and Amrit Lal Kushwaha (CW-1) also stated about availability of funds sufficient to advance the loan, therefore, considering the statutory presumption in favour of holder of cheque absence of documentary evidence to establish financial capacity of the complainant is immaterial.

In opinion of this Court, no patent illegality, perversity or impropriety is made out in the concurrent finding of conviction by learned Trial Court and the First Appellate Court. The sentence imposed by learned trial Court and affirmed by the First Appellate Court is proper and appropriate. Consequently, no interference in concurrent finding of conviction of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act and sentence imposed, is called for in exercise of revisional jurisdiction.

Revision petition dismissed.