TMI Blog2020 (10) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant. It is well settled law that in a revision against conviction and sentence rendered concurrently by the trial court as well as the appellate court, the High Court does not, in the absence of perversity, upset factual findings arrived at by the appellate court. It is not for the revisional court to re-analyse and re-interpret the evidence on record in a case where the appellate court has come to a probable conclusion. On going through the impugned judgment, this Court is of the view that the appellate court correctly applied the presumption under Section 139 of the Act. Unless the contrary is proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied - application allowed in part. - Crl.Rev.Pet.No.607 OF 2004(A) - - - Dated:- 12-10-2020 - THE HONOURABLE MR.JUSTICE N.ANIL KUMAR FOR THE PETITIONER : BY ADV. SRI.N.J.JOHNSON FOR THE RESPONDENT : R2 BY PUBLIC PROSECUTOR R1 BY ADV. SMT.R.PADMAKUMARI ORDER This revision petition is directed against the judgment dated 26.11.2003 rendered by the Sessions Court, Kasaragod in Crl. Appeal No.134 of 2001, whereby the learned Sessions Judge confirmed the conviction and sentence imposed by the trial court for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, NI Act ). By its judgment dated 26.05.2001, the learned chief Judicial Magistrate, Kasaragod convicted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, the Power of Attorney of the complainant was examined as PW1 and marked Exts.P1 to P5. After the witness for the complainant had been examined and before the accused was called on for her defence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure for the purpose of enabling her to explain the incriminating circumstances appearing in the evidence against her. 5. On appreciation of evidence, the learned magistrate held that the execution of Ext.P2 cheque was proved and the cheque was dishnoured on account of the reason, insufficient funds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. 9. The learned Amicus Curie appointed by this Court to argue for the revision petitioner submitted that PW1 is only a Power of Attorney holder of the complainant and she was not aware of the real transaction between the parties. Hence, it is contended that the transaction was not proved beyond doubt. 10. On a perusal of the complaint, it is seen that the complainant is an old lady, which necessitated the appointment of her daughter as the Power of Attorney holder. On going through the oral evidence of PW1, it is clear that she was present at the time of the transaction and also when Ext.P2 cheque was issued. The accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent- accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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