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TMI Blog2023 (10) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... sertion that the revision petitioner owed an amount of Rs.6,18,000/- as per an agreement arrived at between the parties in respect of a petroleum retail outlet named 'Lakshmi Fuels'. In discharge of a legally enforceable debt, the revision petitioner had issued Exts.P1 and P2 cheques dated 18.03.2004 for an amount of Rs.2,00,000/- and Rs.4,18,000/- respectively. The cheques on presentation to the bank for collection got dishonoured by Exts.P3 and P4 memorandums due to insufficiency of funds in the bank account of the revision petitioner. The 1st respondent had issued Ext.P8 statutory lawyer notice to the revision petitioner, but she failed to pay the demanded amount. Hence, she had committed the offence. 3. The revision petitioner pleaded not guilty to the substance of accusation that was read over to her. In trial, the 1st respondent was examined as PW1 and Exts.P1 to P10 were marked in evidence. The revision petitioner examined her erstwhile counsel as DW 1 and marked Ext.D1 reply notice sent to Ext.P8 lawyer notice and DW2, the Investigating Officer who filed Ext.D2 final report in Crime No.708/2004 of the Adoor Police Station. Trial Court Judgment 4. The Trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the N.I.Act. Hence, the revision petition may be allowed. 10. Sri.K.Shaj, defended the impugned judgments and contended that the revision petitioner has failed to discharge the reverse onus of proof under Section 139 of the N.I.Act. Therefore, there is no ground made out to interfere with the impugned judgments. Hence, the revision petition may be dismissed. 11. Is there any illegality, impropriety or irregularity in the judgments of the courts below. 12. It is trite that the revisional powers of this Court under Sections 397 to 401 of the Cr.P.C. is to be sparingly exercised and in cases of exceptional rarity. Unless there is manifest error, illegality or an apparent misreading of the records, this Court shall not interfere with the findings of fact rendered by the fact finding courts. Merely because a different view is possible, the revisional Court shall not substitute the views of the Trial/Appellate Courts. 13. In Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & Anr [(2015) 3 SCC 123], the Hon'ble Supreme Court has succinctly laid down the scope and purport of the powers under Secs.397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the revision petitioner towards consideration for the 1st respondent to retire from Lakshmi Fuels, and then the firm to be reconstituted by inducting the revision petitioner as a partner with Indira Devi. Later, on Indira Devi getting consent from the Petroleum Company, the exclusive dealership of the firm would be given to the revision petitioner. 18. Indisputably, PW1 has admitted in his crossexamination that the petroleum outlet is not functioning. 19. The revision petitioner in Ext.D1 reply notice has specifically stated that she had issued Exts.P1 and P2 cheques as security for obtaining the dealership of Lakshmi Fuels. In order to substantiate her defence, she examined DW1 - the lawyer, who issued Ext. D1 reply notice, and DW2 - the Investigating Officer - who filed the final report in Crime No.708/2004 of the Adoor Police Station, registered on the basis of a private complaint lodged by the revision petitioner as against the person to whom a bribe was allegedly paid for getting the dealership. 20. A negotiable instrument, which includes a cheque, carries the presumption of consideration under Secs.118(a) and 139 of the N.I Act. It is profitable to extract the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction 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. As clarified in the citations, the 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. (emphasis given) 22. Recently, a three-Judge Bench of the Hon'ble Supreme Court in Kalamani Tex and Anr vs. P. Balasubramanian [2021 (2) KHC 517] has reiterated the legal position and doctrine of the reverse onus. 23. Thus, the law has crystallized that once the complainant establishes the concoction of the five ..... X X X X Extracts X X X X X X X X Extracts X X X X
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