TMI Blog2022 (11) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It is to be noted that nothing available to interfere with the concurrent verdicts, by exercising power of revision. To the contrary, it appears that the courts below rightly entered into conviction and sentence - revision petition dismissed. - CRL. REV. PET NO. 701 OF 2022 - - - Dated:- 31-10-2022 - THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FOR THE PETITIONER : BY ADVS. P.V.ELIAS ALBIN VARGHESE FOR THE RESPONDENT : BY SRI.SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR A. BADHARUDEEN , J. The sole accused in C.C.No.52 of 2014 on the file of the Judicial First Class Magistrate Court-I, Kothamangalam is the revision petitioner herein and he has filed this revision petition under Sections 397 and 401 of the Code of Criminal Procedure(hereinafter will be referred as Cr.P.C. for convenience). The respondents herein are the original complainant as well as the State of Kerala. 2. Heard the learned counsel for the revision petitioner/the accused and the learned Public Prosecutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The accused, who is aggrieved by the concurrent verdicts, has approached this Court. The learned counsel for the accused argued that the courts below ought to have found that Ext.P7 cheque was issued by the complainant as a blank signed cheque towards security and it was not issued for any consideration. It is argued further that since the complainant has no case that the principle borrower failed to repay the loan amount, the guarantor/accused has no liability to pay the amount. 10. In fact, the argument advanced by the learned counsel for the accused that the cheque was issued as blank signed cheque towards security is a matter to be decided on the basis of appreciation of evidence. In fact, the trial court as well as the appellate court appreciated and re-appreciated the evidence and finally, negatived the contention raised by the accused that Ext.P7 cheque was issued as a security as blank signed one. The second point argued by the learned counsel for the accused that since the complainant has no case that the principle borrower failed to repay the loan amount, the accused, who is the guarantor of the loan has no liability, is unsustainable. Insofar as debt involving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 16. 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 presumption under Sections 118 and 139 of the N.I Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nonconsideration 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. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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