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TMI Blog2021 (2) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... e payable as compensation to the respondent herein as per the provisions of Section 143(1) (Provisio) of N.I. Act read with Section 357(1)(3) of Cr.P.C. 2. The facts leading to the instant revision petition are as under: a) The respondent is a leasing and financing company. The respondent financed a bus for the petitioner by giving a loan. In discharge of the liability the petitioner handed over three cheques drawn on Bank of Punjab Limited. Rajouri Garden, Delhi bearing number 327226 dated 13.04.2003 for an amount of Rs. 1 lakh, number 327227 dated 28.07.2003 for an amount of Rs. 3 lakhs and number 327338 dated 27.07.2003 for an amount of Rs. 2,84,000 in favor of the respondent. b) When the respondent deposited these cheques they were returned as unpaid/dishonored for the reason "Funds Insufficient". c) Notice as required under Section 138 of the N.I. Act was issued by the respondent calling upon the petitioner herein to make the payment within 15 days of receipt of the notice. The payment was not received and a complaint was filed under Section 138 of the N.I. Act before the court of the Metropolitan Magistrate, West District, Tis Hazari Court, Delhi. d) Before the Metro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Motor & General Finance Ltd. Company (hereinafter referred as 'The MGF Ltd.') in the year 1995. The loan was taken over by the respondent company. i) The Metropolitan Magistrate held that AR of the complainant deposed that a sum of Rs. 8 Lakhs was lent to the accused in the year 2001 wherein certain payments were made to the accused and the remaining payment was made to MGF India Limited. The Metropolitan Magistrate held that this was consistent with the testimony of the accused wherein he has admitted that he cleared his loan with MGF India Limited in 2001, CW-1 also deposed that one bus was in the name of the accused and the other bus was financed and the amount deposited by the complainant company was against the bus which was already in the name of the accused (i.e. DL1P7279 as admitted by the accused). It was also deposed by him that for the other bus, payments were made to some other company. Therefore the AR of the Complainant has clearly deposed that payments were made to MGF India Limited on the behalf of the accused for bus bearing No DL1P7279. j) The Metropolitan Magistrate also found that the contention of the accused/petitioner herein that no payments were made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and payable. 7. On the other hand, Mr. Anuj Soni, learned counsel for the respondent would support the support the judgments of the courts below to contend that all the points now being raised have already been dealt with by the Metropolitan Magistrate in his judgment and which has not been disturbed by the appellate Court. 8. Section 118 of the N.I. Act raises a presumption that a cheque is issued for consideration until the contrary is proved. It is well settled position that the initial burden in this regard lies on the accused to prove the non-existence of debt by bringing on record such facts and circumstances which would lead the court to believe the non-existence of debt either by direct evidence or by preponderance of probabilities. 9. In the present case other than mere ipse dixit of the petitioner that there was no debt due and payable nothing is on record to show that the cheques were not issued for discharge of liability for the bus. The second bus bearing registration No. DL 1 PA 5798 stood in the name of the accused. There is nothing to show that the liability for the first bus bearing registration No. DL1 P 7279 has been discharged. 10. The purpose of introduci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the amount that should be repaid in order to discharge the initial burden and the petitioner has failed to discharge the initial onus of proof. 13. The scope of the revision petition under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. is extremely narrow. In State v. Manimaran, reported as (2019) 13 SCC 670, the Supreme Court observed as under: "16. As held in State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 : 1999 SCC (Cri) 275], ordinarily it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as by the Sessions Court in appeal. When the courts below recorded the concurrent findings of fact, in our view, the High Court was not right in interfering with the concurrent findings of fact arrived at by the courts below and the impugned order cannot be sustained." (emphasis supplied) In State of Haryana v. Rajmal, reported as (2011) 14 SCC 326, the Supreme Court observed as under: "14. In State of A.P. v. Pituhuk Sreeinvanasa Rao [(2000) 9 SCC 537 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter, the impugned judgment of the High Court is wholly unsustainable in law and we, accordingly, set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence." (emphasis supplied) 14. Having gone through the material on record this court does not find that the judgment of the courts below require any interference. The learned counsel for the petitioner has not been able to demonstrate that the findings of the courts below are perverse. The fact that the respondent did not file the books of accounts is not fatal to the case of the respondent. It was open to the petitioner to produce his books of accounts to rebut the presumption and bring out a prima facie case that there was no debt due and payable on the date the cheques were dishonoure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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