TMI Blog2022 (11) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities - It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In this case, the trial court sentenced the accused to pay a fine of Rs.4,00,000/- and in default of payment of fine, six months imprisonment was ordered. Fine was ordered to paid as compensation to the complainant under Section 357(1)(b) of Cr.P.C. - In the appeal, the appellate court modified the sentence by enhancing the fine amount to Rs.5,80,000/-. The concurrent verdicts of conviction as well as sentence imposed by the trial court do not require any interference at the hands of this Court and therefore, the revision must fail - this revision petition fails and it is, accordingly, dismissed. - CRL.REV.PET NO. 582 OF 2022 - - - Dated:- 1-11-2022 - HONOURABLE MR. JUSTICE A. BADHARUDEEN Revision Petitioner/Appellant/Accused : By Advs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and sentencing the accused. 8. It is argued further that the cheques were issued in terms of an award passed before the Lok Adalat and therefore, as per Section 21 of the Legal Services Authorities Act, the same is a deemed decree. Therefore, the remedy of the second respondent herein is to execute the decree and the prosecution initiated on dishonour of the said cheques is bad in law. 9. In fact, the legal position insofar as an award passed in the Lok Adalat is not in dispute. In the decision reported in [(2012) 2 SCC 51], K.N.Govindan Kutty Menon v. C.D.Shaji., the judgment rendered by this Court in W.P(C).No.33013/2009 dated 24.11.2009 reported in [2010 1 KHC 8] was challenged before the Apex Court. This Court while dealing with Section 21 of the Legal Services Authority Act, 1987 held that an award passed by the Adalat in a criminal case involving offence punishable under Section 138 of the Negotiable Instruments Act can be treated as an order of the criminal court and it cannot be executed as a decree of a civil court. But the Apex Court after considering the impact of Section 21 of the Legal Services Authorities Act, settled the following propositions : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution, when payment, as agreed, was not effected. 13. It is the settled law that in order to execute a decree, the decree must be one capable of execution and the terms thereof shall be sufficient to get the same executed. It is unexceptionable that a court executing a decree cannot go behind the decree; it must take the decree according to its tenor; has no jurisdiction to widen its scope and is required to execute the decree as made. The decision reported in [(2009) 5 SCC 634 : 2009 KHC 4617], M/s. Century Textiles Industries Ltd. V. Deepak Jain anr., is on this point. 14. In the case on hand, no final award passed and the prosecution also was not terminated at any point of time. Therefore, it cannot be held that the dispute was settled by passing a final award, having the trappings of a civil court decree under Section 21 of the Legal Services Authorities Act. Therefore, this contention cannot be appreciated. 15. Coming to the other contentions, it has to be noted that the accused admitted that he had issued Exts.P1 and P2 at the time when he borrowed Rs.1,00,000/- from the complainant. The further contention was that he had discharged the said liability. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. 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. 18. In the decision reported in [2019 (1) KLT 598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], Bir Singh v. Mukesh Kumar, the Apex Court while dealing with a case where the accused has a contention that the cheque issued was a blank cheque, it was held as under: A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 20. Thus the law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. 21. In this case, except the point argued by the learned counsel for the revision petitioner on the submission that there was an award passed under Section 21 of the Legal Services Authorities Act which is found against as discussed herein above, all other contentions are, in fact, can be addressed based on appreciation/reappreciation of evidence. But the same is not permissible within the power of revision. 22. It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaring unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. 24. The said ratio has been followed in a latest decision of the Supreme Court reported in [(2018) 8 SCC 165], Kishan Rao v. Shankargouda. Thus the law is clear on the point that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence had already been appreciated by the Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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