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2023 (10) TMI 2 - HC - Indian LawsDishonour of Cheque - insufficient funds - legally enforceable debt or not - scope and purport of the revisional jurisdiction under Secs.397 to 401 of the Cr.P.C. - quantum of sentence - HELD THAT - There is a profusion of precedential authority that the revisional power of this Court is to be sparingly exercised and in exceptional rarity. The power is more in the nature of supervisory jurisdiction, to correct the miscarriage of justice, if any found. The revisional power cannot be equated with Appellate/Second Appellate power. Even if a different view is possible, the revisional Court shall not substitute the view taken by the Trial/Appellate Court, unless and until there is patent illegality, which is shocking to the conscience of the Court. The revision petitioner s pivotal defence was that he had not borrowed any amount from the first respondent. Instead, it was their common friend one Binukumar, who borrowed an amount of Rs.50,000/- from the first respondent, and in discharge of the said debt, the revision petitioner had issued Ext.P1 cheque. Ext.D1 agreement purportedly executed between the revision petitioner, first respondent and Binukumar, establishes this aspect. Hence, the prosecution initiated against the revision petitioner is bad - revision petitioner does not dispute the execution and the issuance of Ext.P1 cheque. His defence is that, as per Ext.D1 agreement, Binukumar was paid only Rs.50,000/- by the first respondent. There is no illegality or impropriety in the concurrent findings of the courts below, which establish that the revision petitioner had issued Ext.P1 cheque in discharge of a legally enforceable debt and has failed to shift the reverse onus of proof under Section 139 of the N.I.Act. Quantum of sentence - HELD THAT - The Trial Court had sentenced the revision petitioner to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.2,00,000/-. The Appellate Court modified the sentence by directing the revision petitioner to undergo simple imprisonment for a period of 15 days and to pay a compensation of Rs.2,75,000/- and on default to undergo simple imprisonment for a further period of 2 months. The Hon ble Supreme Court has in a plethora of precedents held that Section 138 of the N.I. Act is more civil in nature, and the intention of the legislature is to provide the drawer of the cheque an opportunity to pay the debt, rather than incarcerating the accused in prison because it would serve no fruitful purpose, especially to the complainant. Therefore, the substantive sentence can always be limited to a minimum period, with an order to pay fine, and out of which the complainant can be paid compensation. The sentence modified by reducing it from 15 days to one day (till the rising of the court) and directing the revision petitioner to pay a compensation of Rs.3,00,000/- to the first respondent and in default to undergo simple imprisonment for a period of six months - revision petition is allowed in part.
Issues Involved:
1. Propriety and correctness of the judgments of the Trial Court and Appellate Court. 2. Evaluation of evidence and materials on record. 3. Legality of the conviction under Section 138 of the Negotiable Instruments Act. 4. Appropriateness of the sentence imposed. Summary: Issue 1: Propriety and correctness of the judgments of the Trial Court and Appellate Court The revision petition challenges the judgments of the Court of Sessions, Kollam, and the Court of the Magistrate, Paravoor, which convicted and sentenced the revision petitioner under Section 138 of the Negotiable Instruments Act (N.I. Act). The Appellate Court confirmed the conviction but modified the sentence. Issue 2: Evaluation of evidence and materials on record The revision petitioner borrowed Rs.2,00,000/- from the first respondent and issued a cheque that was dishonored due to insufficient funds. Despite a lawyer's notice, the petitioner failed to pay the amount, leading to the offense under Sec.138 of the N.I. Act. The Trial Court examined evidence, including testimonies and documents, and convicted the petitioner. The Appellate Court re-appreciated the materials and confirmed the conviction but modified the sentence. Issue 3: Legality of the conviction under Section 138 of the Negotiable Instruments Act The revision petitioner argued that the courts below erred in holding him guilty, claiming only Rs.30,000/- was due. The courts found the petitioner's defense, including an agreement (Ext.D1), unconvincing. The petitioner admitted issuing the cheque, and the courts held that the petitioner failed to rebut the presumption of a legally enforceable debt under Sections 118(a) and 139 of the N.I. Act. Issue 4: Appropriateness of the sentence imposed The Trial Court sentenced the petitioner to three months of simple imprisonment and compensation of Rs.2,00,000/-. The Appellate Court reduced the imprisonment to 15 days and increased the compensation to Rs.2,75,000/-. The High Court modified the sentence to one day (till the rising of the court) and increased the compensation to Rs.3,00,000/-, with a default imprisonment of six months. The petitioner is directed to appear before the Trial Court to undergo the modified sentence and pay the compensation. Conclusion: The revision petition is allowed in part. The conviction is confirmed, and the sentence is modified. The petitioner must appear before the Trial Court by 18.11.2023 to comply with the modified sentence and compensation order. The execution of the sentence is deferred until then. The Court appreciates the assistance of the Amicus Curiae.
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