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2021 (3) TMI 286 - HC - Indian LawsDishonor of Cheque - Rebuttal of presumption - petitioner submitted that the petitioner is willing to pay the amount, provided some more time is given to him and prayed that six months time be granted and he also stated that an undertaking in this regard will be filed by him within one week - HELD THAT - The Supreme Court has time and again examined the scope of Section 397/401 of Cr.P.C and the ground for exercising the revisional jurisdiction by the High Courts. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, 1999 (2) TMI 676 - SUPREME COURT , the Supreme Court held that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. There is no perversity in the orders of the Courts below warranting interference by this Court under Section 397/401 Cr.P.C. This Court does not find any infirmity in the amount of compensation imposed on the petitioner. The petitioner has abused the indulgence granted by this Court. On 01.11.2019, the petitioner undertook to pay the amount of compensation in 4 instalments. He has gone back on the undertaking given to this Court which amounts to contempt. The petitioner is therefore not entitled to any indulgence from this Court. The revision petition is dismissed
Issues Involved:
1. Legality of conviction under Section 138 of the Negotiable Instruments Act, 1881. 2. Adequacy of the evidence presented by the petitioner to rebut the presumption under Section 139 of the NI Act. 3. Validity of the notice sent under Section 138 of the NI Act. 4. Appropriateness of the compensation and sentence imposed by the lower courts. 5. Jurisdiction and scope of revisional powers under Section 397/401 Cr.P.C. Detailed Analysis: 1. Legality of Conviction under Section 138 of the NI Act: The petitioner was convicted for an offence under Section 138 of the Negotiable Instruments Act, 1881, by the Additional Chief Metropolitan Magistrate, which was affirmed by the Additional Session Judge. The petitioner issued a cheque for ?1,00,000/- which was dishonored due to "funds insufficient." Despite the legal notice, the petitioner failed to repay the amount, leading to the complaint. 2. Adequacy of Evidence to Rebut Presumption under Section 139 of the NI Act: The petitioner contended that he did not take any loan from the complainant and alleged that the cheque was given to one Mahesh Kumar, who misused it. However, Mahesh Kumar, examined as DW-2, denied receiving the cheque from the petitioner, thus failing to support the petitioner's defense. The courts held that the petitioner did not successfully rebut the presumption under Section 139 of the NI Act, which presumes that the holder of the cheque received it for the discharge of debt or liability. 3. Validity of Notice Sent under Section 138 of the NI Act: The petitioner argued that he did not receive the notice as he had shifted his residence. However, the courts found that the notice was sent to the address mentioned by the petitioner in his personal bond and vakalatnama, which was the same address to which the notice was sent. The Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed held that service of summons can be treated as service of notice, and the petitioner should have made the payment within 15 days of receiving the summons. Thus, the notice was deemed validly served. 4. Appropriateness of Compensation and Sentence: The Metropolitan Magistrate sentenced the petitioner to pay a compensation of ?1,75,000/-, with ?1,70,000/- to be paid to the complainant and ?5,000/- to the State. The Additional Session Judge upheld this compensation and sentence. The courts found no infirmity in the amount of compensation imposed, noting that the petitioner had undertaken to pay the amount in installments but failed to do so, amounting to contempt. 5. Jurisdiction and Scope of Revisional Powers under Section 397/401 Cr.P.C.: The Supreme Court has emphasized that revisional jurisdiction is supervisory and not equivalent to appellate jurisdiction. It is meant to correct miscarriage of justice but not to reappreciate evidence unless there is a glaring error. The courts found no perversity in the orders of the lower courts, thus warranting no interference under Section 397/401 Cr.P.C. Conclusion: The High Court dismissed the revision petition, affirming the conviction and sentence imposed by the lower courts. The petitioner failed to rebut the presumption under Section 139 of the NI Act and did not show any valid reason for non-receipt of the notice. The compensation amount was deemed appropriate, and the revisional jurisdiction did not warrant reappreciation of evidence. The petitioner’s failure to adhere to the undertaking given to the court further justified the dismissal of the petition.
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