TMI Blog2023 (11) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the presumption, in favour of the revision petitioner even by preponderance of probabilities. So he was bound to adduce evidence of his own so as to rebut the presumption but it was not done. Since the presumption stands unrebutted, this Court has to hold that, the appellate court rightly upheld the conviction of the revision petitioner under Section 138 of the N.I Act, and sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs. 4 lakh and in default to undergo simple imprisonment for two months, with a further direction that if the fine amount is realised, it will be paid to the 1st respondent as compensation under Section 357(1) of Cr.P.C. The revision petition is dismissed, upholding the impugned judgment in Crl. Appeal No. 213 of 2009. The revision petitioner is directed to surrender before the trial court on or before 28.11.2023 to receive the sentence and to pay the fine amount. In default, the trial court has to issue arrest warrant against the revision petitioner for executing the sentence. - THE HONOURABLE MRS. JUSTICE SOPHY THOMAS For the Petitioner : S. Rajeev , Adv. For the Respondents : R. Bindu Sasthamangalam , Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revision petitioner preferred Crl.Appeal No. 213 of 2009. Before the appellate court, the revision petitioner filed Crl.M.P No. 3765 of 2009 to accept the reply notice along with its postal receipt and acknowledgment card, and the same was accepted and marked as Exts.D1, D1(a) and D1(b). His further prayer in that petition, to recall PW1 for further cross examination, was rejected. His Crl.M.P No. 3764 of 2009 for summoning the Manager of the Union Bank of India, to produce cheque No. 203355 dated 27.09.2006, by which the 1st respondent allegedly made payment of Rs. 4 lakh to the revision petitioner, was rejected by the appellate court, for the reason that, the said Manager was already examined from the side of the 1st respondent as PW2 and, Ext.P6 document was marked through him. 7. On analysing the available facts and evidence, the appellate court confirmed the conviction, but the substantive sentence of simple imprisonment for six months was reduced to imprisonment till rising of court, and the compensation amount of Rs. 4 lakh awarded by the trial court was converted into fine amount, and in default of payment of fine, the revision petitioner was directed to undergo sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the loan, were returned to him. If so, he could have very well produced those documents to show that the 1st respondent was running a financial institution, and the revision petitioner had availed a vehicle loan from that institution. So, that part of his argument is liable to be rejected. 12. Another contention taken up by the revision petitioner is that, in the complaint, the 1st respondent has stated that, Rs. 4 lakh was given to the revision petitioner in cash. But, during cross examination as PW1, he would say that the amount was given by way of a cash cheque. Ext.P6 is the Bank statement of the 1st respondent in Union Bank of India, Kothamangalam branch. The entry dated 27.09.2006 in that Bank statement shows the name of Sri. Uthuppu P. K. and towards his name, cheque No. 203355 also is shown. Sri. Uthuppu P. K. is none other than the revision petitioner herein. The date of that transaction is 27.09.2006, which substantiates the case of the 1st respondent, that he had given Rs. 4 lakh to the revision petitioner on 27.09.2006 by way of a cash cheque. PW2, the Bank Manager, also deposed before court that, on 27.09.2006, the cheque was presented before his Bank by Sri. Ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38. 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. 39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under S.139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. 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. In the case on hand, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately, and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the Trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice'. 20. Learned counsel for the revision petitioner pointed out that in the complaint, the complainant has stated that, he advanced Rs. 4 lakh to the revision petitioner in cash. But, during cross examination, he deposed that, the amount was given by way of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption under Section 139 of the N.I Act, he should have adduced cogent evidence for disproving the entry dated 27.09.2006 in Ext.P6 document. It is true that, the revision petitioner can even rely on the materials submitted by the complainant/1st respondent, in order to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, without adducing separate evidence of his own. In the case on hand, the materials and evidence on record adduced from the side of the 1st respondent are not capable of rebutting the presumption, in favour of the revision petitioner even by preponderance of probabilities. So he was bound to adduce evidence of his own so as to rebut the presumption but it was not done. Since the presumption stands unrebutted, this Court has to hold that, the appellate court rightly upheld the conviction of the revision petitioner under Section 138 of the N.I Act, and sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs. 4 lakh and in default to undergo simple imprisonment for two months, with a further direction that if the fine amount is realised, it will be paid to the 1st respondent as compens ..... X X X X Extracts X X X X X X X X Extracts X X X X
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