TMI Blog2022 (11) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... led to execution of the cheque is believable. 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 - the concurrent verdicts of conviction stands confirmed - 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 lakh only) for the offence punishable under Section 138 of the NI Act. Revision allowed in part. - CRL.REV.PET NO.644 OF 2022 - - - Dated:- 1-11-2022 - HONOURABLE MR. JUSTICE A. BADHARUDEEN PETITIONER/APPELLANT/ACCUSED: BY ADV. A.B.MOHANAKUMAR RESPONDENTS/RESPONDENTS/STATE COMPLAINANTS: BY ADV. SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR. O R D E R This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.', for short), by the revision petitioner, who is the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Sessions Judge also confirmed the said conviction and sentence as per judgment dated 27.06.2022 in Crl.Appeal No.145/2020. 9. The concurrent verdicts entered into by the trial court as well as by the appellate court are under challenge in this revision petition. While impeaching the veracity of the concurrent verdicts of the trial court, it is submitted by the learned counsel for the accused that the trial court ought to have appreciated the evidence adduced by the defence in its correct perspective to hold that the cheque in question was issued as a blank signed one and the same was later filled up by the complainant Company unilaterally without consent and knowledge of the accused. Hence, there was no legally enforceable debt. Therefore, the presumptions under Section 118 and 139 of the NI Act also, would not have been adjusted in favour of the complainant. Accordingly, the learned counsel for the accused submitted that concurrent findings require interference by exercising power of revision. 10. In this case, the courts below relied on the evidence of PW1 and Exts.P1 to P13 to hold that the complainant proved the transaction led to execution of Ext.P1. It is true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ... 14. In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in para.14 (SCC p.135): 14. ... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . To that extent, the impugned observations in Krishna Janardhan Bhat [2008 (1) KLT 425 (SC)] may not be correct. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specified a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NI Act it was held as under: Adverting to the case in hand, we find on a plain reading of its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S.118 and S.139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these `reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the Trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The Trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay. ................ 18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4 SCC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
