9911796707
TMI Blog2020 (5) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... er to discharge the aforesaid liability, the accused executed and issued a cheque dated 07.04.2011 for Rs. 4,50,000/- to the complainant. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. She sent a reply raising untenable contentions. She did not pay the amount of the cheque. 4. The accused pleaded not guilty. During the trial of the case, the complainant got herself examined as PW1 and Exts.P1 to P6 documents were marked on her side. DW1 was examined on the side of the accused. 5. The trial court found the accused guilty of the offence under Section 138 of the Act and convicted her thereunder. The trial court sentenced her to undergo simple imprisonment for a period of three months and also directed her to pay an amount of Rs. 4,50,000/- as compensation to the complainant. The trial court also directed that, in default of payment of compensation, the accused shall undergo simple imprisonment for a period of three months. 6. The petitioner/accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in the cheque. She admits that Ext.P1 cheque for Rs. 4,50,000/- bears her signature. Her plea is that she had borrowed a total amount of Rs. 2,90,000/- from the complainant in instalments and that she had given five signed blank cheques to the complainant on those occasions and that the complainant has misused one of the aforesaid cheques and filed the case. No evidence was adduced by the accused to prove the plea that she had given signed blank cheques to the complainant at the time of borrowing money from the complainant (DW1 was examined by the accused not for proving this plea). 14. There is primarily the evidence of the complainant to explain the circumstances under which she came into possession of the cheque, admittedly drawn on a cheque leaf issued to the accused by her bank to operate her account. No evidence was adduced by the accused to prove her plea that she had given any signed blank cheque to the complainant. There is nothing to disbelieve the evidence of PW1 regarding the execution of Ext.P1 cheque for Rs. 4,50,000/- and delivery of it by the accused to her. On broad probabilities, there is no reason to doubt or suspect the statement on oath of the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accused. 19. Reena, from whom the complainant had allegedly borrowed Rs. 60,000/-, was examined by the accused as DW1. She (DW1) supported the version of the complainant and gave evidence in examination-in-chief that she had lent Rs. 30,000/- each to the complainant on two occasions. 20. Inspite of the fact that DW1 gave evidence in favour of the complainant, she was not cross-examined by the accused after seeking permission from the court. Therefore, the evidence of DW1, though it would only partly support the case of the complainant, is binding on the accused. 21. When a witness examined by a party states facts against such party or in favour of the opposite party and when the party who has examined that witness fails to cross-examine the witness with the permission of the court and to treat him as hostile, the evidence given by that witness would be binding upon the party who has examined him. The opposite party can rely upon such evidence (vide Jagan M. Seshadri v. State of Tamil Nadu : AIR 2002 SC 2399, Raja Ram v. State of Rajasthan: (2005) 5 SCC 272, Mukhtiar Ahmed Ansari v. State (NCT of Delhi): AIR 2005 SC 2804, Javed Masood v. State of Rajasthan: AIR 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not". (emphasis supplied) 25. In Basalingappa v. Mudibasappa : AIR 2019 SC 1983, the Apex Court observed as follows: "During his cross-examination, when financial capacity to pay Rs. 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts". 26. In APS Forex Service Private Limited v. Shakti International Fashion Linkers : AIR 2020 SC 945, the Apex Court has clarified and explained the issue as follows: "Now so far as the reliance is placed by Learned Counsel appearing on behalf of the accused on the decision of this Court in the case of Basalingappa (supra), on going through the said decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to the accused and the courts below have found that such evidence is reliable and acceptable. Moreover, it is a case in which the accused admits that she had borrowed an amount of Rs. 2,90,000/- from the complainant. In such circumstances, the plea of the accused that the complainant had no financial capacity to advance the money, is only to be rejected. 29. The revisional jurisdiction of this Court is of a restricted nature in a case where the courts below have entered concurrent findings. Even so, this Court has re-appreciated the evidence for the purpose of satisfying itself that there is evidence in support of the factual findings reached by the courts below. The courts below have properly analysed and appreciated the evidence in the case and reached the correct conclusion regarding the issuance of the cheque by the accused to the complainant and the inability of the accused to rebut the presumption under Section 139 of the Act. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings entered by the courts below. 30. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable quantum of loss) and direct payment of such amount as compensation. The Apex Court has also held that, direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. The decisions of the Apex Court in Mainuddin Abdul Sattar v. Vijay D.Salvi : AIR 2015 SC 2579 and Pukhraj v. Parasmal : (2015) 17 SCC 368 can also be profitably referred to in this context.
34. Consequently, the revision petition is dismissed. Conviction of the petitioner/accused for the offence under Section 138 of the Act is confirmed. The sentence imposed on the petitioner/accused by the appellate court is also confirmed.
35. In view of the public health emergency prevailing in the country now due to the pandemic Covid-19 and the consequent financial problems being faced by persons like the petitioner, I find it proper to grant her a period of six months from today to pay the amount of compensation to the complainant and to satisfy the trial court regarding the payment of such amount. It is ordered accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
|
