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TMI Blog2023 (10) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... First Class, Chavakkad (Trial Court), finding the revision petitioner guilty and convicting and sentencing him for the offence under Sec.138 of the Negotiable Instruments Act ( for brevity, N.I Act). For the sake of convenience, the parties are referred to as per their status before the Trial Court. The revision petitioner was the accused and the first respondent was the complainant before the Trial Court. Relevant antecedent facts 2. The complainant had filed the complaint against the accused alleging that on 7.12.2000, the accused borrowed a sum of Rs.6,00,000/- promising to repay the amount within one month. In discharge of the said liability, the accused had issued Ext P8 cheque dated 30.6.2001 drawn on his bank. The cheque, on present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and dismissed the appeal. 7. It is assailing the concurrent judgments of the courts below, the present revision petition is filed. 8. Heard; Sri.Thomas Abraham, the learned counsel appearing for the revision petitioner; Sri.Rajit, the learned counsel appearing for the first respondent and Smt.Seetha.S, the learned Public Prosecutor appearing for the second respondent-State. 9. Is there any illegality, irregularity or impropriety in the judgments passed by the courts below? 10. Before proceeding to decide the revision petition, this Court reminds itself that the revisional power is to be sparingly exercised only for the purpose of correcting patent errors, manifest illegality and when there is misreading of records. Merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; 139. Presumption in favour of holder. -It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability. 14. A three-Judge Bench of the Hon'ble Supreme Court in Rangappa vs. Sri.Mohan [2010 KHC 4325], while dealing with Sec.139 of the N.I Act has conceptualised the doctrine of 'reverse onus', by holding thus: " 18. In light of these extracts, we are in agreement with the respondent - claimant that the presumption mandated by S.139 of the Act does indeed include the existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. 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. (emphas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused in discharge of a legally enforceable debt and the cheque got dishonoured when presented for collection and the accused failed to pay the demanded amount, despite receipt of the statutory lawyer notice. 18. The accused denied the allegation and has raised a defence that he has no business transaction with the complainant. Instead, Ext.P8 cheque was issued by him to DW1 to purchase computers. It was misutilising the cheque, the complainant filed the false complaint. 19. Ext.P14 document, which is not disputed by the accused, would establish that the complainant, the accused and DW1 had purchased a shop room in their joint names. This by itself shows that there was a business transaction between the parties. Thus, the defence of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now 74 years and bedridden, I am of the definite view that a lenient view as regards substantive sentence can be taken, by sentencing the revision petitioner to undergo imprisonment for one day(till the rising of the Court) and pay compensation for the cheque amount, which would do complete justice to both sides. In the result, (i) The revision petition is dismissed. (ii) The conviction imposed by the courts below is upheld. (iii) The sentence imposed by the courts below is modified and reduced by sentencing the revision petitioner to undergo imprisonment for one day (till the rising of the Court) and pay a compensation of Rs.6,00,000/- within a period of sixty days from today under Section 357(3) of the Code, and in default to undergo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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