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TMI Blog2021 (5) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... lt stipulation. [2] Precisely, the facts as emerging from the record are that respondent No.1 (hereinafter referred to as the complainant) filed a complaint under Section 138, NI Act in the Court of the Chief Judicial Magistrate, Gomati Judicial District at Udaipur, alleging therein that he had lent a sum of Rs. 1,00,000/-(rupees one lakh) to the petitioner (hereinafter referred to as the accused) on his request. The entire sum of money was paid to the accused in cash. Accused with a view to discharge his aforesaid liability, issued cheque bearing No.779314 dated 05.03.2015 drawn on United Bank of India, Udaipur Branch in favour of the complainant. The fact remains that on presentation, the aforesaid cheque was dishonoured on account of insufficient fund in the account of the accused. Despite having statutory demand notice, accused failed to repay the said loan within the statutory period. The complainant, therefore, initiated proceedings against him under Section 138, N.I Act, 1881 by means of filing the instant complaint in the Court of the Chief Judicial Magistrate at Udaipur in Gomati Judicial District. [3] On the facts of the case trial Court took cognizance of offence and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the hand writing appearing on the said cheque was of the accused. Further argument which was placed on behalf of the accused is that the learned trial court based the conviction of the accused on his statement made during his examination under Section 313 Cr. PC which was incorrect. Finally, it was argued by the counsel of the accused that the trial Court did not assign any reason as to why double the amount of cheque was imposed as fine on the accused. On the premises aforesaid, counsel of the accused urges the Court for setting aside his conviction and sentence. [8] Counsel appearing for the complainant on the other hand argued that the detailed judgments given by the courts below were based on sound evidence and more over the accused nowhere stated that he did not issue the impugned cheque to the complainant. Therefore, the concurrent findings of the courts below did not call for any interference. Accordingly, counsel of the complainant has urged for dismissal of the criminal revision petition. [9] Counsel of the parties have taken this Court to the evidence recorded at the trial. Complainant PW-1 in his examination in chief had categorically stated that accused borrowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was signed by the accused in his presence and he also denied that statements made by him in his examination in chief were not true. [12] As discussed, on appreciation of the said evidence adduced by the complainant, trial Court convicted and sentenced the accused which was also upheld by the Additional Sessions Judge, Udaipur in appeal. [13] Considered the submissions made by learned counsel of the parties and the materials placed on record. The basic ingredients of Section 138, N.I Act, 1881 are as under: (i) there must be legally enforceable debt. (ii) the disputed cheque was drawn for discharging the whole and/or part such debt or other liability. and (iii) the cheque has been returned due to insufficiency of fund. [14] In the present context, there is no specific denial on the part of the accused that no loan was taken by him from the complainant. Rather he made a categorical statement during his examination under Section 313 Cr. P.C that he has repaid the loan taken by him from the complainant. The complainant has also successfully discharged his burden by producing the money receipt dated 8.4.2014 (Exbt-1) whereby the accused acknowledged the receipt of a sum of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." [16] Coming back to the present case, the petitioner in this case, did not raise any probable defence which would create doubts in the mind of the Court. He did not deny the fact that he had taken loan from the complainant. His defence as made out in his examination under Section 313 Cr. P.C is that he has repaid the loan. The issuance of the impugned cheque by him and the fact that the cheque was dishonoured for insufficiency of fund in his account also stand proved. [17] Even if the accused would have denied his debt, bare denial of the existence of debt would not serve his purpose. The Apex Court in KISHAN RAO Vrs. SHANKARGOUDA; reported in (2018) 8 SCC 165 has succinctly held that something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. Vide paragraph-20 of the said judgment, the Apex Court has held as under: "20. This Court held that the accused may adduce evidence to rebut the presumption, but mere denial r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcising the revisional jurisdiction by the High Court. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452, while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following: "5......In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, 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 the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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