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2022 (11) TMI 395 - HC - Indian LawsDishonor of Cheque - insufficient funds - discharge of burden to prove - rebuttal of presumption - preponderance of probabilities - the revision petitioner argued to unsettle the concurrent verdicts entered into by the trial court as well as the appellate court - seeking grant of 8 months' time to pay the compensation - lodging of prosecution under Section 138 of the Negotiable Instruments Act - HELD THAT - It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to reappreciate the evidence to have a contra finding. In SANJAYSINH RAMRAO CHAVAN VERSUS DATTATRAY GULABRAO PHALKE AND OTHERS 2015 (1) TMI 1332 - SUPREME COURT , the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The trial court as well as the appellate court rightly appreciated the evidence given by PW1 supported by Exts.P1 to P7 to prove that the accused herein issued Ext.P1 cheque for consideration. Thereby the complainant proved his initial burden entitling him to get the benefit of presumptions under Sections 118 and 139 of the N.I Act - the law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. There is no reason to interfere with the concurrent verdicts entered into by the trial court as well as the appellate court. Similarly the appellate court rightly modified the substantive sentence to the minimum sentence of imprisonment till rising of the court and to pay fine of Rs.13,60,684/- as compensation under Section 357(1)(b) Cr.P.C and in default of payment of the fine, to undergo simple imprisonment for three months. Therefore, the sentence also does not require any interference at the hands of this Court. The revision petition is dismissed.
Issues Involved:
1. Validity of the conviction and sentence under Section 138 of the Negotiable Instruments Act. 2. Adequacy of evidence presented by the complainant. 3. Applicability of the presumption under Sections 118 and 139 of the Negotiable Instruments Act. 4. Scope of the High Court's revisional jurisdiction under Sections 397 and 401 of the Cr.P.C. Issue-wise Detailed Analysis: 1. Validity of the Conviction and Sentence under Section 138 of the Negotiable Instruments Act: The revision petition challenges the conviction and sentence imposed on the accused for the dishonor of a cheque issued towards the repayment of a loan. The trial court convicted the accused and sentenced him to simple imprisonment for three months and a fine of Rs.12,58,000/-. The appellate court modified the sentence to imprisonment till the rising of the court while maintaining the fine. 2. Adequacy of Evidence Presented by the Complainant: The complainant alleged that the accused issued a cheque for Rs.12,57,000/- towards the repayment of a loan, which was dishonored due to insufficient funds. The complainant's evidence included his testimony and documentary evidence (Exts.P1 to P6). The accused, despite being given an opportunity, did not adduce any defense evidence. The trial court and the appellate court found the complainant's evidence credible and sufficient to prove the transaction and the issuance of the cheque. 3. Applicability of the Presumption under Sections 118 and 139 of the Negotiable Instruments Act: The courts emphasized the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act, which favor the complainant once the issuance of the cheque is proved. The accused admitted the transaction and the issuance of the cheque during questioning under Section 313 of Cr.P.C., but failed to provide evidence to rebut the presumption of a legally enforceable debt. The courts cited several Supreme Court decisions, including Rangappa v. Mohan and Bir Singh v. Mukesh Kumar, to reinforce the principle that the presumption of a legally enforceable debt arises once the cheque is issued, and the burden shifts to the accused to rebut this presumption. 4. Scope of the High Court's Revisional Jurisdiction under Sections 397 and 401 of the Cr.P.C.: The High Court reiterated that its revisional jurisdiction is limited and does not extend to reappreciating evidence unless there is a glaring miscarriage of justice. The court referred to precedents such as State of Kerala v. Puttumana Illath Jathavedan Namboodiri and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, which establish that revisional interference is justified only when the lower courts' findings are perverse, wholly unreasonable, or based on a misreading of the evidence. In this case, the High Court found no such issues and upheld the concurrent findings of the trial and appellate courts. Conclusion: The High Court dismissed the revision petition, affirming the conviction and modified sentence. The court granted the revision petitioner four months to pay the fine and undergo the sentence, deferring the execution of the sentence till 28.01.2023, with instructions to appear before the trial court on 29.01.2023 to comply with the sentence and fine payment.
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