TMI Blog2022 (11) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... ciated the evidence given by PW1 supported by Exts.P1 to P7 to prove that the accused herein issued Ext.P1 cheque for consideration. Thereby the complainant proved his initial burden entitling him to get the benefit of presumptions under Sections 118 and 139 of the N.I Act - 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. There is no reason to interfere with the concurrent verdicts entered into by the trial court as well as the appellate court. Similarly the appellate court rightly modified the substantive sentence to the minimum sentence of imprisonment till rising of the court and to pay fine of Rs.13,60,684/- as compensation under Section 357(1)(b) Cr.P.C and in default of payment of the fine, to undergo simple imprisonment for three months. Therefore, the sentence also does not require any interference at the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution under Section 138 of the Negotiable Instruments Act. 5. The trial court secured the presence of the accused for trial and evidence was recorded. The complainant got examined as PW1 and Exts.P1 to P6 were marked. 6. After questioning the accused under Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced. 7. On appreciation of the evidence, the trial court convicted and sentenced the accused to undergo simple imprisonment for a period of three months and to pay fine of Rs.12,58,000/-, out of which Rs.12,57,000/- shall be paid to the complainant as compensation under Section 357(1) (b) of Cr.P.C and in default of payment of compensation, to undergo further simple imprisonment for a period of three months. On appeal, the learned Sessions Judge also confirmed the said conviction and sentence by modifying the substantive sentence of imprisonment till rising of the court on re-appreciation of the evidence. 8. While assailing concurrent findings of the trial court as well as the appelatte court, it is submitted by the learned counsel for the revision petitioner/accused that the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. ... 11. 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he N.I Act and held as under: The presumption mandated by S.139 of the Act does indeed include the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine 1132], Kalamani Tex (M/s.) anr. v. P.Balasubramanian the Apex Court considered the amplitude of presumptions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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