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2022 (11) TMI 144 - HC - Indian LawsDishonor of Cheque - power of revision provided under Sections 357 and 401 of Cr.P.C. - failure on the part of the courts below to appreciate and re-appreciate the evidence - HELD THAT - The power of revision available to this court is no more res-integra. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397, which is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In the decision STATE OF KERALA, MANAGING DIRECTOR, WESTERN INDIA PLYWOODS VERSUS PUTTUMANA ILLATH JATHAVEDAN NAMBOODIRI 1999 (2) TMI 676 - SUPREME COURT the Apex Court, while considering the scope of the revisional jurisdiction of the High Court, laid down that the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. In another decision reported 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 Revision Petitions stand allowed in part - Considering the request made by the learned counsel for the revision petitioner, one months' time from today is granted to the revision petitioner to pay the fine and to undergo the sentence imposed by the appellate court and modified by this Court - The revision petitioner shall appear before the trial court on 18.11.2022 to pay the fine and to undergo the sentence.
Issues Involved:
1. Commission of offense under Section 138 of the Negotiable Instruments Act, 1881. 2. Adequacy of evidence and legal notice. 3. Appellate court's concurrence with the trial court's judgment. 4. Scope of revisional jurisdiction under Sections 397 and 401 of Cr.P.C. 5. Calculation and imposition of fine and compensation. Detailed Analysis: 1. Commission of Offense under Section 138 of the Negotiable Instruments Act, 1881: The complainant initiated proceedings against the accused for the dishonor of two cheques amounting to Rs.1,50,000/- and Rs.75,000/-, respectively. The trial court found the accused guilty under Section 138 of the N.I Act, sentencing him to imprisonment till the rising of the court and imposing fines equivalent to the cheque amounts, with interest at 9% per annum from the date of dishonor until realization. The fines, if realized, were to be paid as compensation to the complainant under Section 357(1) Cr.P.C. 2. Adequacy of Evidence and Legal Notice: The trial court relied on the evidence of PW1 and PW2 and documents Exts.P1 to P15 to conclude that the cheques were issued in partial discharge of the accused's liability. The accused did not present any evidence to rebut this presumption. The court also addressed the issue of legal notice, finding that the notices issued met the statutory requirements under Section 138(b) of the N.I Act. This was supported by the decisions in Central Bank of India v. M/s. Saxons Farms and K Basheer v. C.K. Usman Koya. 3. Appellate Court's Concurrence with the Trial Court's Judgment: The accused appealed the trial court's decision, but the appellate court upheld the conviction and sentence, agreeing with the trial court's findings. The appellate court found no merit in the accused's contention regarding the adequacy of evidence and legal notice. 4. Scope of Revisional Jurisdiction under Sections 397 and 401 of Cr.P.C: The High Court emphasized that its revisional jurisdiction is limited to correcting miscarriages of justice and does not extend to re-appreciating evidence unless there is a glaring error or gross miscarriage of justice. This principle was reinforced by referencing State of Kerala v. Puttumana Illath Jathavedan Namboodiri and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke. 5. Calculation and Imposition of Fine and Compensation: The High Court noted an anomaly in the trial court's imposition of interest at 9% per annum, which could result in a fine exceeding twice the cheque amount, contrary to Section 138 of the N.I Act. The court referenced R. Vijayan v. Baby to clarify that the fine should not exceed twice the cheque amount. Consequently, the court modified the sentences as follows: - In S.T.No.10000/2011, the accused was directed to pay a fine of Rs.3 lakh, with a default sentence of 4 months' imprisonment. - In S.T.No.10001/2011, the accused was directed to pay a fine of Rs.1,50,000/-, with a default sentence of 2 months' imprisonment. Conclusion: The High Court partially allowed the revision petitions, modifying the sentences to ensure compliance with the statutory limit on fines. The execution of the sentence was deferred for one month to allow the accused to pay the fines and undergo the modified sentences. The court directed that a copy of this order be forwarded to all criminal courts in the state to ensure uniformity in the calculation of interest for imposing fines.
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