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2023 (10) TMI 1247 - HC - Indian LawsDishonour of Cheque - validity of convicting and sentencing the revision petitioner - insufficiency of funds - discharge of onus to prove existence of debt - It is submitted that, prosecution has miserably failed to establish the ingredients of Section 138 of the N.I.Act - HELD THAT - It is trite that the revisional powers of this Court under Sections 397 to 401 of the Cr.P.C. is to be sparingly exercised and in cases of exceptional rarity. Unless there is manifest error, illegality or an apparent misreading of the records, this Court shall not interfere with the findings of fact rendered by the fact finding courts. Merely because a different view is possible, the revisional Court shall not substitute the views of the Trial/Appellate Courts. The law has crystallized that once the complainant establishes the concoction of the five ingredients under Section 138 of the N.I.Act, then the reverse onus of proof shifts to the accused to set up a probable defence. If he discharges the onus of proof and casts a doubt about the existence of a debt, then the prosecution has to fail. Thus, both Courts have failed to advert and discuss the oral testimonies of PW1 and DW1. Instead, the Courts have only discussed about Exts.P1 to P10 documents and concluded that the revision petitioner has not discharged the reverse onus of proof under Section 139 of the N.I. Act - there is no discussion regarding Ext.D1 reply notice, the statement of the revision petitioner u/s 313 of the Cr.P.C. and the testimonies of the defense witnesses and documents. The courts below have misread the materials on record and have perfunctorily concluded that the revision petitioner has committed the offence u/s 138 of N.I. Act, which is improper, irregular and illegal, and warrants interference by this Court - revision petition is allowed.
Issues Involved:
1. Legality and correctness of the conviction and sentencing under Section 138 of the Negotiable Instruments Act. 2. Appreciation of evidence and materials on record by the Trial Court and Appellate Court. 3. Application of the reverse onus of proof under Section 139 of the N.I. Act. Summary: Issue 1: Legality and correctness of the conviction and sentencing under Section 138 of the Negotiable Instruments Act. The revision petitioner challenged the judgment passed by the Additional Sessions Judge (Adhoc) Fast Track Court-III, Pathanamthitta, which confirmed the conviction and sentencing by the Judicial First Class Magistrate, Adoor, for the offence under Section 138 of the N.I. Act. The petitioner was accused of issuing cheques that were dishonored due to insufficient funds, leading to a conviction and sentencing of one year of simple imprisonment and a compensation of Rs.6,18,000/-. Issue 2: Appreciation of evidence and materials on record by the Trial Court and Appellate Court. The petitioner argued that the courts below failed to properly appreciate Ext.P10 agreement, Ext.D1 reply notice, and the oral testimonies of PW1 and DW1. The courts did not consider that the petroleum retail outlet was not transferred to the petitioner as agreed, and there was no legally enforceable debt. The cheques were issued as security, not for a legally enforceable debt. The courts focused on documents rather than oral testimonies and failed to discuss the defense's evidence. Issue 3: Application of the reverse onus of proof under Section 139 of the N.I. Act. The courts below concluded that the petitioner did not discharge the reverse onus of proof under Section 139 of the N.I. Act. However, the High Court noted that the courts misread the materials on record and did not properly address the defense's evidence. The law requires the accused to rebut the presumption of a legally enforceable debt by a preponderance of probabilities. The courts failed to consider crucial testimonies and documents, leading to an improper and irregular conclusion. Conclusion: The High Court found that the lower courts misread the materials on record and failed to properly consider the defense's evidence. The revision petition was allowed, setting aside the Appellate Court's judgment. The matter was remanded back to the Appellate Court for fresh consideration, with directions to dispose of the appeal expeditiously. The parties were directed to appear before the Appellate Court on 01.12.2023.
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