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TMI Blog2023 (9) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent. 4. In this matter, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as N.I.Act for convenience), when cheque for Rs.10,00,000/- dated 07.05.2012 was dishonored due to the reason "fund insufficient". Since the accused failed to make the payment on demand, the complainant lodged complaint under Section 142 of the N.I.Act. 5. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PWs 1 and 2 examined and Exts.P1 to P9 marked on the side of the complainant. After questioning the accused under Section 313(1)(b) of the Cr.P.C., when opportunity was given, no witness examined and no exhibits marked on the side of the defense. 6. Thereafter, the trial court appraised the evidence and finally convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.10,00,000/-. The fine was ordered to be paid as compensation to the complainant and in default of payment of fine, simple imprisonme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption available to a complainant in a prosecution punishable under Section 138 of the 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 natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciate 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. ..." 16. 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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