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TMI Blog2022 (11) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Petition as 'complainant' and 'accused' for convenience. 5. The case put up by the complainant before the trial court is as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as 'NI Act' for convenience) before the trial court on the allegation that cheque for Rs. 75,000/- dated 20.05.2010 issued in favour of the complainant towards part payment of chit prize auctioned on 25.10.2009 was dishonoured. The first accused is the company engaged in the business of the chits and accused No. 2 is its Managing Director and accused No. 3, who is now no more, was the Deputy Chairman of the Company. 6. The trial court secured the presence of the accused for trial and accused Nos. 1 and 2 were tried. During trial, PW1 examined and Exts. P1 to P8 were marked on the side of the complainant. One document marked on the side of the accused as Ext. D1. 7. The complainant had given evidence in support of the contentions in the complaint. The contention raised by the accused before the trial court was that the company was under liquidation and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C. r/w. Section 397 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 Court to re-appreciate 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 noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relevant materials, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. 18. In this matter, the trial court as well as the appellate court found that the complainant discharged his initial burden in proving the transaction led to execution of Ext. P1 cheque and thereby, twin statutory presumptions embodied under Sections 118 and 139 of the NI Act would go in favour of the complainant. Law regarding presumptions is also settled as well. 19. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], Rangappa v. Sri Mohan. In the above decision, the Apex Court considered the presumption available to a complainant in a prosecution under Section 138 of the N.I. Act and held as under: "The presumption mandated by S. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was held as under: "A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S. 138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." 21. In a latest 3 Bench decision of the Apex Court reported in [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD 527 : 2021 (2) SCALE 434 : ILR 2021 (1) Ker. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], M/s. Kalamani Tex & Anr. v. P. Balasubramanian the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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