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2021 (6) TMI 958 - HC - Indian LawsDishonor of Cheque - rebuttal of presumption - preponderance of probabilities - initial burden casted against the petitioner, discharged or not - HELD THAT -The scope of the revision petition under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. is extremely narrow. The revisional Court is not a court of appeal and revisional Court does not substitute its own conclusion to the one arrived at by the courts below just because another view is possible unless the view taken by the courts below is perverse and contrary to law. There is no material to show that the complainant gave any order to the petitioner for supplying computers and accessories. The mere ipse dixit of the petitioner alone will not rebut the presumption. The stand of the Courts below, in disbelieving the statement of the accused/petitioner herein, does not require any interference because it cannot be said that they are perverse. The second contention raised by the petitioner that only two cheques were given for an amount of ₹ 14,50,00/- does not correspond to the receipt of ₹ 15,00,000/- and the contention that there is no receipt for ₹ 50,000/- also does not take away the initial burden on the petitioner. Two cheques for ₹ 6,50,000/- and ₹ 8,00,000/- dated 15.12.2010 and 20.12.2010 respectively have been presented and money has been withdrawn. A receipt for ₹ 15,00,000/- has been given. In the absence of any explanation at all as to why the receipt for ₹ 15,00,000/- was given it cannot be said that the petitioner has rebutted the initial presumption which is raised against him under Section 139 of the N.I. Act. The case of the petitioner that bearer cheques were given to him and that he withdrew the money and gave it back to the complainant also cannot be accepted. The petitioner has not been able to rebut the presumption under Section 139 of the N.I. Act. He has not denied his signatures in the cheque. He does not deny the fact that the receipt dated 18.12.2010 was given by him which acknowledges a sum of ₹ 15,00,000/- taken as loan. As stated above, the fact that the receipt does not show as to from whom the loan of ₹ 15,00,000/- was taken is immaterial and inconsequential for the reason that it is the complainant who has filed the receipt (CW-1/A) and cheque (CW-1/A1) which is in the name of the complainant and duly signed by the petitioner. The mere ipse dixit of the petitioner and the statement in defence under Section 313 Cr.P.C without any material does not rebut the presumption cast on the petitioner under Section 139 of the N.I. Act. Just by contending that the Income Tax Returns have not been filed or by stating that complaints have been filed by the complainant against the accused does not rebut the presumption of the petitioner even on preponderance of probabilities - Offence Section 269 SS IT Act at best makes an offence under Section 271 D of the IT Act but it does not mean that the loan of ₹ 15,00,000/- has not been given by the complainant to the petitioner herein. Two courts below have after analyzing the facts come to the conclusion that the initial burden casted against the petitioner has not been discharged - Revision petition dismissed.
Issues Involved:
1. Conviction under Section 138 of the Negotiable Instruments Act, 1881. 2. Rebuttal of presumption under Section 139 of the N.I. Act. 3. Legality of the loan under Section 269 SS of the Income Tax Act, 1961. 4. Examination of the evidence and witnesses. 5. Scope of revisional jurisdiction under Sections 397/401 Cr.P.C. Detailed Analysis: 1. Conviction under Section 138 of the Negotiable Instruments Act, 1881: The petitioner was convicted by the Metropolitan Magistrate for offences under Section 138 of the N.I. Act, sentenced to simple imprisonment for five months, and ordered to pay ?20 lakh as compensation. This conviction was based on the issuance of a cheque for ?15,00,000, which was dishonored due to insufficient funds. The Additional Sessions Judge upheld this conviction and enhanced the compensation to ?20 lakh. 2. Rebuttal of presumption under Section 139 of the N.I. Act: The petitioner contended that the cheque was issued as a security for a loan to be arranged by the complainant, not for an existing debt. However, the courts found this defense insufficient, as the petitioner failed to provide substantial evidence to support his claim. The courts emphasized that the presumption under Section 139 of the N.I. Act, which favors the holder of the cheque, was not effectively rebutted by the petitioner. 3. Legality of the loan under Section 269 SS of the Income Tax Act, 1961: The petitioner argued that the loan was not legally enforceable as it violated Section 269 SS of the IT Act, which mandates that loans above ?20,000 must be made through an account payee cheque or bank draft. The courts rejected this argument, stating that a violation of Section 269 SS may result in penalties under the IT Act but does not render the loan itself unenforceable. 4. Examination of the evidence and witnesses: The courts noted that the petitioner did not produce key witness Vijay Bhadana, who could have corroborated his defense. The courts drew an adverse inference against the petitioner for failing to call this witness. The courts also found that the complainant's failure to produce his books of account did not weaken the case, as the acknowledgment receipt and the dishonored cheque provided sufficient evidence of the loan. 5. Scope of revisional jurisdiction under Sections 397/401 Cr.P.C.: The High Court emphasized the limited scope of revisional jurisdiction, stating that it is not a court of appeal and cannot reappreciate evidence unless there is a glaring defect or manifest error resulting in a miscarriage of justice. The High Court found no such defects in the concurrent findings of the lower courts and upheld the conviction and sentence. Conclusion: The High Court dismissed the revision petition, affirming the conviction and sentence under Section 138 of the N.I. Act. The court held that the petitioner failed to rebut the presumption under Section 139 and that the violation of Section 269 SS of the IT Act did not affect the enforceability of the loan. The High Court also reiterated the narrow scope of revisional jurisdiction, finding no grounds to interfere with the lower courts' decisions.
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