2023 (4) TMI 648 - HC - Indian Laws

Dishonour of Cheque - insufficient funds - discharge of legally enforceable debt or not - rebuttal of presumption - HELD THAT - In the case at hand, there is no denial, if any, by the petitioneraccused with regard to his having availed the facility of loan and issuance of cheque as well as his signature thereupon, rather an attempt has been made by the accused to carve out a case that cheque in question was issued as security. While making statement under Section 313 Cr.PC, accused nowhere denied factum with regard to issuance of cheque as well as signature thereupon, rather he attempted to carve out a case that he had given a blank cheque to someone else, but same was misused by the complainant. Since there is no dispute, if any, with regard to issuance of cheque as well as signature thereupon of petitioner, presumption as available under Sections 118 and 139 of the Act comes into play, which clearly provides that there shall be presumption available in favour of the holder of the cheque that same was issued towards discharge of the lawful liability - Probable defence can be raised by the accused by referring to the documents adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the case at hand, accused, despite ample opportunities, failed to raise the probable defence. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat 2012 (12) TMI 106 - SUPREME COURT , has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power. True it is that the Hon ble Apex Court in KRISHNAN ANR. VERSUS KRISHNAVENI ANR. 1997 (1) TMI 529 - SUPREME COURT ; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity committed by the courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below. This Court sees no valid reason to interfere with the well reasoned judgments recorded by the courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld - the present criminal revision petition is dismissed being devoid of any merit.

Summary

Issues Involved:
1. Legality of the judgment of conviction under Section 138 of the Negotiable Instruments Act.
2. Validity of the sentence imposed by the trial court.
3. Evaluation of the defense raised by the petitioner.
4. Jurisdiction of the High Court under Section 397 of the Cr.PC to re-appreciate evidence.

Summary:

1. Legality of the Judgment of Conviction:
The petitioner challenged the judgment dated 13.9.2022, passed by the learned Sessions Judge, which affirmed the conviction and sentence dated 27/28.1.2022, by the learned ACJM-1, Rohru, under Section 138 of the Negotiable Instruments Act. The trial court held the petitioner guilty of issuing a cheque that was dishonored, leading to his conviction and a sentence of one year of simple imprisonment along with compensation of Rs. 13,50,000/-.

2. Validity of the Sentence Imposed:
The petitioner argued against the judgment, claiming improper appreciation of facts. However, the High Court found that both lower courts meticulously dealt with all aspects of the case, leaving no scope for interference. The petitioner's failure to comply with an order to deposit 50% of the compensation further weakened his position.

3. Evaluation of the Defense Raised by the Petitioner:
The petitioner did not deny issuing the cheque or his signature on it but claimed it was issued as a security cheque and was misused. The court noted that the petitioner failed to provide a probable defense or any cogent evidence to rebut the presumption under Sections 118 and 139 of the Act. The complainant successfully proved the sale of apple boxes to the accused and the subsequent dishonor of the cheque due to insufficient funds.

4. Jurisdiction of the High Court under Section 397 of the Cr.PC:
The High Court emphasized its limited jurisdiction under Section 397 of the Cr.PC to re-appreciate evidence, especially with concurrent findings from lower courts. Citing the Supreme Court's judgment in "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri," the High Court reiterated that revisional power is supervisory and not equivalent to appellate jurisdiction.

Conclusion:
The High Court found no material irregularity or error in the judgments of the lower courts. Consequently, the criminal revision petition was dismissed, and the petitioner was directed to surrender before the trial court to serve the sentence. The court also directed the release of any amount deposited by the accused to the complainant upon filing an appropriate application.