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2020 (3) TMI 985 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - Challenging the concurrent findings of the two Courts below, the accused has filed the present Criminal Revision Case, before this Court, under Section 397 (1) r/w. 401 Cr.P.C. - HELD THAT - It is trite that while exercising revisional jurisdiction in a case involving concurrent findings of fact arrived at by two Courts below, the High Court cannot act as a second appellate Court. This Criminal Revision Case is devoid of merits and stands dismissed and the judgments of the two Courts below are confirmed. The trial Court is directed to secure the accused and commit him to prison to undergo the remaining sentence.
Issues involved:
1. Conviction and sentence under Section 138 of the Negotiable Instruments Act. 2. Proper service of statutory demand notice. 3. Authority of a witness to give evidence on behalf of the complainant. 4. Burden of proof on the accused regarding the issuance of the cheque. 5. Revisional jurisdiction of the High Court. Issue 1: Conviction and sentence under Section 138 of the Negotiable Instruments Act: The case involved a complainant company and an accused customer who failed to pay a due amount, leading to the issuance of a post-dated cheque that bounced. The accused was convicted under Section 138 of the Negotiable Instruments Act by the trial court and the conviction was upheld by the appellate court. The accused failed to provide a satisfactory explanation during questioning under Section 313 Cr.P.C., and the original cheque did not raise any suspicion. The Supreme Court precedent highlighted the liability of the drawer of a cheque unless evidence is presented to rebut the presumption of the cheque being issued for a debt or liability. The accused did not discharge this burden, leading to the dismissal of the Criminal Revision Case. Issue 2: Proper service of statutory demand notice: The accused argued improper service of the statutory demand notice, but it was rejected by the courts below based on Section 27 of the General Clauses Act, 1897. The notice was sent to the accused's address, with the Postal Department waiting for the accused to claim the letter. As the accused did not claim it, the cover was returned to the sender, and the complainant was not at fault in this regard. Issue 3: Authority of a witness to give evidence on behalf of the complainant: The accused contested the authority of a witness, Saravanakumar, to provide evidence on behalf of the complainant due to the lack of a proper Power of Attorney. However, the courts rejected this argument as Saravanakumar was the Power Agent and Manager of the complainant, well-versed in the transactions, and provided satisfactory answers during cross-examination. Issue 4: Burden of proof on the accused regarding the issuance of the cheque: The accused did not deny issuing the cheque, and the burden of proof shifted to him to rebut the presumption that the cheque was not for a debt or liability. Despite the opportunity to discharge this burden under Section 139 of the Negotiable Instruments Act, the accused failed to do so, leading to the confirmation of the conviction and sentence. Issue 5: Revisional jurisdiction of the High Court: The High Court emphasized that it cannot act as a second appellate court when dealing with concurrent findings of fact by lower courts unless there is a jurisdictional error. Citing relevant Supreme Court judgments, the High Court confirmed the lower courts' decisions, dismissing the Criminal Revision Case and directing the accused to serve the remaining sentence while allowing for the possibility of compounding the offense under Section 147 of the Negotiable Instruments Act. In conclusion, the High Court upheld the conviction and sentence of the accused under Section 138 of the Negotiable Instruments Act, rejected arguments regarding the service of the statutory demand notice and the authority of a witness, emphasized the burden of proof on the accused, and clarified its revisional jurisdiction in the matter. The accused's Criminal Revision Case was dismissed, and the trial court was directed to secure the accused for the remaining sentence while providing an option for compounding the offense.
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