2022 (11) TMI 89 - HC - Indian Laws

Dishonor of Cheque - discharge of burden to prove - power of revision - HELD THAT - This Court is exercising power of revision and the power of revision is not available to appreciate or reappreciate to have a contra-finding. 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 re-appreciate the evidence to have a contra finding. In (2015) 3 SCC 123 (2015) 2 SCC (Cri) 19 , Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, 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. In this matter, the courts below given benefit of presumptions under Sections 118 and 139 of NI Act in favour of the complainant, on the finding that the evidence of PW1 in the matter of transaction led to execution of the cheque is believable. The trial court as well as the appellate court correctly appreciated the evidence and came to the conclusion that the evidence available established commission of offence punishable under Section 138 of NI Act by the accused and, accordingly, the accused was convicted. In fact, there is no reason to revisit the concurrent verdicts of conviction - the concurrent verdicts of conviction stands confirmed - the sentence is modified. There by the accused is sentenced to undergo simple imprisonment for a day till rising of the court and to pay fine of Rs.10,00,000/- (Rupees Ten lakh only) for the offence punishable under Section 138 of the NI Act. Revision allowed in part.

Issues Involved:
1. Legality of the conviction under Section 138 of the Negotiable Instruments Act.
2. Appropriateness of the sentence imposed by the trial and appellate courts.
3. Applicability of presumptions under Sections 118 and 139 of the NI Act.
4. Scope of High Court's revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure.

Issue-wise Detailed Analysis:

1. Legality of the Conviction under Section 138 of the Negotiable Instruments Act:
The complainant alleged that the accused issued a cheque for Rs.10 lakh, which was dishonored. The trial court found that the complainant had discharged its initial burden of proving the transaction leading to the issuance of the cheque. The accused was convicted and sentenced to six months of simple imprisonment and a fine of Rs.10 lakh. The appellate court confirmed this conviction. The accused argued that the cheque was issued as a blank signed cheque and filled in by the complainant without his consent, thus contesting the existence of a legally enforceable debt. However, the courts relied on the evidence of PW1 and Exts.P1 to P13, including the statement of accounts, to conclude that the cheque was issued for repayment of a loan. The courts found no reason to disbelieve the complainant's version.

2. Appropriateness of the Sentence Imposed:
The trial court sentenced the accused to six months of simple imprisonment and a fine of Rs.10 lakh, which was confirmed by the appellate court. The High Court found the sentence excessive and modified it to simple imprisonment for one day till the rising of the court and a fine of Rs.10 lakh. In default of payment, the accused would undergo simple imprisonment for four months. The fine amount was to be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. The court granted the accused two months' time to undergo the sentence and pay the fine, directing him to appear before the trial court on 30.01.2023.

3. Applicability of Presumptions under Sections 118 and 139 of the NI Act:
The courts below applied the presumptions under Sections 118 and 139 of the NI Act in favor of the complainant. The High Court referred to several Supreme Court judgments, including Rangappa v. Sri Mohan, Bir Singh v. Mukesh Kumar, and Kalamani Tex v. P.Balasubramanian, to emphasize that once the signature on the cheque is admitted, the presumption of a legally enforceable debt arises. This presumption is rebuttable, but the accused must provide evidence to the contrary, which was not done in this case. The courts found the evidence of PW1 credible and the transaction leading to the cheque's issuance proven.

4. Scope of High Court's Revisional Jurisdiction under Sections 397 and 401 of Cr.P.C.:
The High Court reiterated that its revisional jurisdiction is not as wide as appellate jurisdiction. It can only correct a miscarriage of justice and cannot re-appreciate evidence unless there is a glaring error or gross miscarriage of justice. The court cited State of Kerala v. Puttumana Illath Jathavedan Namboodiri and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke to underline that revisional power is supervisory and not equivalent to appellate power. The High Court found no reason to interfere with the concurrent findings of the trial and appellate courts regarding the conviction.

Conclusion:
The High Court confirmed the conviction under Section 138 of the NI Act but modified the sentence to simple imprisonment for a day till rising of the court and a fine of Rs.10 lakh. The accused was given two months to comply with the sentence and payment of the fine, with directions to appear before the trial court on 30.01.2023. The court emphasized the limited scope of revisional jurisdiction and the applicability of presumptions under Sections 118 and 139 of the NI Act in favor of the complainant.

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