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TMI Blog2022 (11) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... Negotiable Instruments Act, 1881 ('N.I Act' for short) by the accused, consequent to dishonour of 2 cheques issued by the accused for Rs.1,50,000/- and Rs.75,000/- in partial discharge of the liability towards the complainant and her husband starting from 1997. The specific case put up by the complainant is that when the above cheques were presented for collection, the same got dishonoured for want of funds. Although notice demanding the amounts covered by the cheques were issued to the accused, he did not pay the amount. Therefore, the complainant initiated proceedings under Section 142 of the N.I Act alleging commission of offence punishable under Section138 of the N.I Act by 2 separate proceedings numbered as S.T.No.10000/2011 (pending for cheque for Rs.1,50,000/-) and S.T.No.10001/2011 (pending for cheque for Rs.75,000/-). 5. The trial court secured the presence of the accused and tried both the cases together. The evidence was confined to PW1, PW2 and Exts.P1 to P15 on the side of the complainant. No evidence adduced at the instance of the accused. 6. On appreciation of the evidence in S.T.10000/2011, the trial court imposed sentence to undergo imprisonment till the rising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence, except the issuance of legal notice. 9. The power of revision available to this court is no more res-integra. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397, which 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional 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 question of law or fundamental violation of the principle of law, then only the power of revision would be made available. 12. On perusal of the judgment of the trial court it could be gathered that the trial court given emphasis to the evidence of PW1 and PW2 and Exts.P1 to P15 to hold that the complainant discharged his initial burden in the matter of transaction led to execution of Exts.P6 and P7 cheques for the consideration shown therein. 13. However, the question as to whether there is proper legal notice as mandated under Section 138(b) of the N.I Act is a matter to be considered in this case. In fact, before the trial court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existence of a legally enforceable debt or liability. 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 construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons under Sections 118 and 139 of the N.I 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 (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gotiable instrument, but also the credibility of Courts of justice. It was further held that one other solution is a further amendment to the provision of Chap.17 so that in all cases where there is a conviction, there should be a consequential levy of fine of an amount sufficient to cover the cheque amount and interest thereon at a fixed rate of 9% per annum interest, followed by award of such sum as compensation from the fine amount. This would lead to uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chap.17 of the Act, which is to increase the credibility of the instrument. This is however a matter for the Law Commission of India to consider. So far, no amendment brought into the Statute. 23. In this connection, a vital question arises is : can a Court grant amount more than twice the amount of the cheque as fine ? In order to answer this query, reference to Section138 of the N.I Act is apposite. The punishment provided for commission of offence under Section 138 of the N.I Act is imprisonment for a term which may extend to 2 years or with fine, which may extend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused for a day till rising of the court, the revision petitioner/appellant is directed to pay Rs.1,50,000/- (Rupees One lakh fifty thousand only) as fine amount and fine, if paid or realised, that shall be given to the 2nd respondent/complainant as compensation under Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo default sentence of imprisonment for a period of 2 months. 24. The Revision Petitions stand allowed in part as above. 25. Considering the request made by the learned counsel for the revision petitioner, one months' time from today is granted to the revision petitioner to pay the fine and to undergo the sentence imposed by the appellate court and modified by this Court as above. The revision petitioner shall appear before the trial court on 18.11.2022 to pay the fine and to undergo the sentence. 26. If the revision petitioner/accused fails to appear before the trial court as directed above, the trial court is directed to execute the sentence without fail. 27. Therefore, the execution of sentence shall stand deferred till 17.11.2022. The Registry shall forward a copy of this order to the trial court and the appellate court and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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