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TMI Blog2020 (5) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant to lend an amount of ₹ 4,50,000/-. The complainant gave evidence regarding the source of the money lent by her to the accused and the courts below have found that such evidence is reliable and acceptable. Moreover, it is a case in which the accused admits that she had borrowed an amount of ₹ 2,90,000/- from the complainant. In such circumstances, the plea of the accused that the complainant had no financial capacity to advance the money, is only to be rejected. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction - the conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. Petition dismissed. - Crl.Rev.Pet.No.600 OF 2019 - - - Dated:- 20-5-2020 - H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner but modified the sentence imposed on her by the trial court. The appellate court modified the substantive sentence of imprisonment imposed on the petitioner and reduced it to imprisonment till the rising of the court and maintained the direction to pay compensation of ₹ 4,50,000/- to the complainant but reduced the default sentence of imprisonment to a period of 45 days. 7. The concurrent verdicts of guilty and conviction made against her by the courts below and the sentence imposed on her by the appellate court are challenged by the accused in this revision petition. 8. Heard the learned counsel for the revision petitioner and also the first respondent/complainant. 9. Learned counsel for the petitioner has raised the following contentions before this Court. (1) The petitioner had no occasion to issue any cheque to the complainant in discharge of a pre-existing liability. (2) The complainant had no financial capacity to lend an amount of ₹ 4,50,000/-. (3) The sentence of fine was imposed on the petitioner by the courts below without taking into consideration her capacity to pay the amount. 10. There was a delay of one day in filing the complaint. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 4,50,000/- by the accused and delivery of the same by her to the complainant have been proved. 15. Once execution of the cheque by the accused is proved, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. It is obligatory on the court to raise the presumption under Section 139 of the Act in every case where the factual basis for raising the presumption is established. It is a presumption of law as distinguished from a presumption of fact. When the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the case of a mandatory presumption, the burden which rests on the accused person would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The rebuttal does not have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 SC 1748). 22. While considering the financial capacity of the complainant to lend the money, it is to be kept in mind that she had not advanced the amount of ₹ 4,50,000/- to the accused in lump. In this context it is significant that the accused has admitted that she had borrowed a total amount of ₹ 2,90,000/- from the complainant on different dates. In other words, the plea of the accused is that the complainant had financial capacity to lend ₹ 2,90,000/- but she had not the capability to advance an amount of ₹ 4,50,000/-. The appellate court has dealt with this plea in the following manner: Though there is nothing to prove the source of income of the complainant, other than the interested testimony of PW1, the case of the appellant itself is that, she had borrowed ₹ 2,90,000/- from complainant and that in discharge of the said sum, she had paid back ₹ 3,41,200/- to her. When the financial transaction for ₹ 2,90,000/- is admitted by the appellant herself, it is futile to argue that complainant has no source of income . In my view, the appellate court has properly considered the plea raised by the accused regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any assistance to the accused. In that case before this Court, the defence by the accused was that the cheque amount was given by the complainant to the accused by way of loan. When the proceedings were initiated under Section 138 of the N.I. Act the accused denied the debt liability and the accused raised the defence and questioned the financial capacity of the complainant. To that, the complainant failed to prove and establish his financial capacity. Therefore, this Court was satisfied that the accused had a probable defence and consequently in absence of complainant having failed to prove his financial capacity, this Court acquitted the accused. In the present case, the accused never questioned the financial capacity of the complainant. We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See Kishan Rao v. Shankargouda : AIR 2018 SC 3173). 31. In the aforesaid circumstances, conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 32. Coming to the question of sentence, it is to be noted that the appellate court has imposed only a sentence of imprisonment till the rising of the court on the petitioner/accused with a direction to pay ₹ 4,50,000/- as compensation to the complainant with default sentence of simple imprisonment for a period of 45 days. The sentence imposed on the petitioner/accused by the appellate court is proper and reasonable. 33. Learned counsel for the petitioner has contended that the courts below have imposed sentence of fine on the accused without considering her capacity to pay the amount. This contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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