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TMI Blog2022 (11) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... on admission. 4. I shall refer the parties in this revision as 'complainant' and 'accused' for easy reference. 5. The brief facts of the case put up by the complainant before the trial court are as under: The complainant, M/s.KPB Nidhi Limited, Haripad branch launched prosecution alleging commission of offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'NI Act', for short), by the accused, when cheque for Rs.10 lakh dated 25.09.2016 issued by the accused to the complainant towards discharge of the loan amount handed over by the complainant, was dishonoured. 6. The trial court proceeded with trial. During trial, PW1 was examined and Exts.P1 to P13 were marked. Though opportunity was given to the accused to adduce defence evidence, after questioning him under Section 313(1)(b) of Cr.P.C, no defence evidence was adduced. 7. The trial court appraised the evidence and finally found that the complainant discharged its initial burden in the matter of transaction led to execution of Ext.P1 cheque, i.e., towards repayment of the loan amount availed by the accused, his wife Radhamani Amma and her sister Lalithamma. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner supporting his contention in Ground No.C in the revision petition to the effect that the court below failed to appreciate the evidence adduced by the defence in its correct perspective, in fact, no evidence adduced in this regard and the accused remained silent when he was given opportunity to adduce defence evidence. 12. In this matter, this Court is exercising power of revision and the power of revision is not available to appreciate or reappreciate to have a contra-finding. 13. 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 the decision reported in [(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan Namboodiri, the Apex Court, while considering the scope of the revisional jurisdiction of the High Court, laid down the following principles (SCC pp. 454-55, para 5): "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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction." 15. 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 Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the court which would otherwise tantamount to gross miscarriage of justice. To put it otherwise, if there is non-consideration of any relevant materials, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. 16. In this matter, the courts below given benefit of presumptions under Sections 118 and 139 of NI Act in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 matter, the trial court as well as the appellate court correctly appreciated the evidence and came to the conclusion that the evidence available established commission of offence punishable under Section 138 of NI Act by the accused and, accordingly, the accused was convicted. In fact, there is no reason to revisit the concurrent verdicts of conviction. 22. However, in the matter of sentence, it is to be noted that the trial court imposed imprisonment for a period of six months and to pay a fine of Rs.10 lakh. The appellate court also confirmed the sentence. Therefore, as rightly argued by the revision petitioner, sentence requires modification. Therefore, I am inclined to modify the sentence. In the result, this revision is allowed in part, as under: i. The concurrent verdicts of conviction stands confirmed. ii. The sentence is modified. There by the accused is sentenced to undergo simple imprisonment for a day till rising of the court and to pay fine of Rs.10,00,000/- (Rupees Ten lak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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