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TMI Blog2024 (11) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... ments Act, 1881 ('NI Act'). 3. The subject complaint was filed under Section 138 of the NI Act at the behest of the complainant/Respondent alleging that the petitioner and respondent were well known to each other. It is alleged that the respondent advanced a friendly loan for a sum of Rs. 1,50,000/- to the petitioner who allegedly promised to repay the same in September 2016. It is alleged that thereafter the petitioner, in discharge of the liability, advanced two cheques for a sum of Rs. 1,00,000/- and Rs. 50,000/- by way of cheques being cheques no. 712377 and 712378 dated 22.10.2016 and 28.10.2016 respectively, with the assurance that the same would be honoured upon presentation. 4. It is alleged that, upon presentation, the said cheques were returned unpaid with remarks "funds insufficient" vide return memo dated 19.01.2017. It is alleged that thereafter the respondent served a legal notice dated 15.02.2017 upon the petitioner through a counsel demanding the said amount. Thereafter, upon the failure of the petitioner to repay the amount within the statutory period, the respondent filed a complaint under Section 138 of the NI Act. 5. The learned MM vide order dated 07.03.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not residing at the address at the time of legal notice. It was noted that the petitioner had failed to raise any defence with regard to non receipt of notice during his testimony and also failed to cross examine the respondent on the said aspect. In that light, the learned MM, noting that the petitioner failed to dislodge the presumptions raised against him, convicted the petitioner for an offence under Section 138 of the NI Act. Consequently, vide order on sentence dated 28.08.2021, the petitioner was sentenced to undergo imprisonment till the rising of the Court, and was directed to pay compensation to the respondent for a sum of Rs. 2,00,000/-. Further, in default of the payment, the petitioner was directed to undergo simple imprisonment for a period of 3 months. 9. The learned ASJ, by impugned order, dismissed the petitioner's appeal while specifically noting that the petitioner failed to either cross examine the respondent or bring any material on record to suggest that there was no loan transaction between the petitioner and respondent. It was noted that the petitioner failed to summon Vinod Tiwari or file any document to suggest that the petitioner had taken a loan for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: "5. ...... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate 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...." (emphasis supplied) 15. In the present case, the petitioner has sought to prove his case by controverting that the cheques in question were not issued in discharge of any legally enforceable debt. It has been contented that the subject cheques were in fact advanced to one Vinod Tiw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail : Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the "particular circumstances of the case"? xxx xxx xxx 57. Einstein had famously said: "If I had an hour to solve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions." Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined problem often contains its own solution within it. 58. Drawing from Einstein's quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court. xxx xxx xxx 61. The fundamental error in the approach lies in the fact that the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he had not taken any loan from the respondent, and that the cheques were given as security to Vinod Kumar. Petitioner not only failed to lead any evidence to substantiate his claims but he also did not cross-examine the respondent to raise a probable defence. The petitioner did not adduce any material to suggest that there was no loan transaction between the petitioner and the respondent, or even summon any person to show that the loan existed between the petitioner and one Vinod Tiwari. Merely reiterating the contentions, and making bald assertions do not suffice to dislodge the presumptions raised against the petitioner. 23. In this regard, the learned ASJ rightly observed that there existed no explanation why the petitioner did not approach his bank and gave instructions to the bank to stop payment since it is the petitioner's case itself that the blank signed cheques were given as security and that the petitioner had already repaid Rs. 74,000/- to Vinod Tiwari. It was noted that the petitioner himself admitted that he had not filed any police complaint against the respondent or Vinod Tiwari claiming the misuse of his cheques. 24. In terms of the dictum of the Hon'ble Apex C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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