TMI Blog2022 (11) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions 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 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. In another decision reported in SANJAYSINH RAMRAO CHAVAN VERSUS DATTATRAY GULABRAO PHALKE AND OTHERS [ 2015 (1) TMI 1332 - SUPREME COURT] , 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. The Revision Petitions stand allowed in part - 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 - The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rising of the court and to pay fine of Rs.1,50,000/- together with interest @ 9% per annum from 23.04.2008 i.e. the date of dishonour of Ext.P7 till entire realization in full under Section 138 of Negotiable Instruments Act, 1881. In default of payment of fine, accused shall undergo simple imprisonment for a period of three months. The fine amount, if realised, shall be paid as compensation to the complainant under Section 357(1) Cr.P.C. In S.T.10001/2011 the accused is sentenced to undergo imprisonment till the rising of the court and fine of Rs.75,000/- together with interest @ 9% per annum from 21.04.2008 i.e. the date of dishonour of Ext.P6 till entire realization in full under Section 138 of Negotiable Instruments Act, 1881. In default of payment of fine, accused shall undergo simple imprisonment for a period of two months. The fine amount, if realised, shall be paid as compensation to the complainant under Section 357(1) Cr.P.C. 7. Challenging the said conviction and sentence, the accused filed Crl.Appeal No.39/2019 and Crl.Appeal No.40/2019 before the Sessions Court, Thiruvananthapuram. The learned Principal Sessions Judge heard the appeals and concurred with the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate 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 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. ... 10. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. In fact, before the trial court as well as before the appellate court, want of details in the notice issued under Section 138(b) was pointed out to non-suit the complainant. The decision of this Court reported in [ILR 2016 (4) Ker. 643], Divakaran K.K v. State of Kerala anr. had been pressed into before the trial court, in this regard. However, the trial court relied on the decision of the Apex Court reported in [(1999) 8 SCC 221], Central Bank of India Another v. M/s.Saxons Farms Others, and negatived the contention on the finding that Exts.P10 and P14 notices issued to the accused contained the demand mandated by the statute. The appellate court also negatived the said contention relying on the decision reported in [2021 (2) KHC 432], K Basheer v. C.K. Usman Koya Others, whereby the ratio of Divakaran s case (supra) was overruled. In fact, in Central Bank of India's case (supra) the Apex Court categorically held that the notice contemplated under Section 138(b) of the N.I Act is a demand of the amount, covered by the cheque on getting back the cheque as unpaid. In this case the courts below rightly held that there was proper demand within the mandate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that 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. 17. 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 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], P.36., where this Court held that: Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption 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. 19. 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 presumptions 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. 20. It has been settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions. 21. Therefore, it has to be held that in this case there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the N.I Act is imprisonment for a term which may extend to 2 years or with fine, which may extend to twice the amount of the cheque or with both. Thus the statutory provision is clear that the maximum fine shall be twice the amount of the cheque and nothing more. So, a blanket order, as in a civil case, directing the accused to pay fine amount along with interest @ 9% per annum for the principal cheque amount if exceeds at the time of payment, in excess of double the cheque amount, the said course of action is not permitted under law and courts must ensure that while ordering payment of fine, the same shall not exceed double the cheque amount. Say, for example, in this particular case, interest @ 9% per annum for Rs.1,50,000/- if calculated, as ordered by the trial court as well as appellate court @ 9%, Rs.13,500/- is the annual interest. If the amount is calculated from 23.04.2008 upto 22.04.2022, the same would come to (13,500 X 14) Rs.1,89,000/-. Thus the amount of fine as on 22.04.2022 would come to Rs.3,39,000/-. That is, the fine amount would go beyond the limit of double the cheque amount as on 22.04.2022 itself. It will go on accumulating till the date of payment or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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