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TMI Blog2023 (11) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... oner guilty for the offence under Section 138 of the Negotiable Instruments Act (for brevity, "N.I.Act") and convicting and sentencing him for the said offence. The revision petitioner was the accused and the first respondent was the complainant before the Trial Court. For the sake of convenience, the parties are referred to as per their status in the complaint. Relevant facts 2. The complaint was filed alleging that the accused had in discharge of a legally enforceable debt issued Ext P1 cheque dated 24.11.2007 in favour of the complainant for an amount of Rs. 3,00,000/-. The cheque, on presentation to the bank for collection, got dishonoured by Ext.P2 memorandum due to 'insufficient funds' in the bank account of the accused. Des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence to, till the rising of the Court and directed the accused to pay a fine of Rs. 3,05,000/-and in default to undergo simple imprisonment for a period of six months. 7. It is assailing the concurrent judgments passed by the court below, the present revision petition is filed. 8. Heard;Sri. R.T Pradeep, the learned counsel appearing for the revision petitioner; Sri. Suman Chakravarthy, the learned counsel appearing for the first respondent and Smt. Nima Jacob, the learned Public Prosecutor appearing for the second respondent/State. 9. Is there any illegality, impropriety or irregularity in the judgments passed by the courts below? 10. The revisional jurisdiction of this Court is to be sparingly exercised in the cases of exceptional ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P1 cheque was not issued towards a legally enforceable debt. 14. A negotiable instrument, which includes a cheque, carries the presumption of consideration under Sections 118(a) and 139 of the N.I Act. It is profitable to extract the said relevant provisions: "118. Presumptions as to negotiable instruments-Until the contrary is proved, the following presumptions shall be made;- (a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, 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 holde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to above declaration of law in Bir Singh and Mukesh Kumar [2019 (1) KHC 774 SC] the Hon'ble Supreme Court has held that even if a signed black cheque is voluntarily presented to a payee towards some payment and the payee fills up the amount and other particulars, the same would not obliterate the presumption under Sec.139 of the N.I Act, unless there is cogent evidence to discharge the said burden. 18. In the case at hand, admittedly, the accused was a Head Constable in the Kerala Police service. He has alleged that for the business purpose of his brother (DW2), he gave signed blank cheques to DW2, who had business transactions with Anilkumar. The said Anilkumar allegedly trespassed into DW2's shop and stole the cheques. Instead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) Needless to mention, if the revision petitioner has already deposited any amount before the court below, only the balance amount need be deposited.
(v) In failure of the revision petitioner to appear before the Trial Court to undergo the sentence and pay the compensation, the Trial Court shall execute this order in accordance with law.
(vi) The execution of the sentence shall stand deferred till 18.12.2023.
(vii) If the fine amount is realised, the same shall be released to the 1st respondent/complainant as compensation under Section 357(1) (b) of the Code and in accordance with law.
(viii). The Registry is directed to forthwith forward a copy of this order to the Trial Court for compliance. X X X X Extracts X X X X X X X X Extracts X X X X
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