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TMI Blog2020 (12) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. Both the trial court and the appellate court rightly held that the burden was on the accused to disprove the initial presumption under Sections 118 and 139 of the NI Act. The burden is not discharged rightly. The complaint was filed before the trial court in 2006. The complainant has been prosecuting this case for the last 14 years. The accused has not adduced rebuttal evidence before the trial court. It is not just and proper to remand the case for retrial on the strength of the additional documents produced. The accused has been conducting this criminal case for the last 14 years. Considering the facts and circumstances, it is just and proper to modify the sentence awarded by the two courts below by sustaining the conviction imposed - criminal revision petition is partly allowed. - Crl. Rev. Pet. No. 946 OF 2012 - - - Dated:- 23-11-2020 - THE HONOURABLE MR.JUSTICE N.ANIL KUMAR FOR THE PETITIONER : BY ADVS. SRI.SANTHAN V.NAIR SRI.V.V.MITHUN FOR THE RESPONDENT : R2 BY ADV. SRI.G.SUDHEER ORDER This criminal revision petition is directed against the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de. After PW1 had been examined, the accused was questioned under Section 313(1)(b) of the Cr.P.C. for the purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the circumstances. He further stated that his father had chitty transaction with the wife of the complainant and as a guarantee for the transaction, his father entrusted a signed blank cheque of the accused with the wife of the complainant. He further stated that even after the payment of the chitty amount, the cheque was not returned in spite of repeated demands. However, no defence evidence was adduced on his side. 5. On appreciation of the evidence, the learned magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for the reason, 'funds sufficient'. The complainant issued statutory notice calling upon the accused to pay the amount within fifteen days from the date of receipt of the statutory notice. Hence, the learned magistrate concluded that the cheque was issued by the accused for discharge of a debt or liability. 6. Heard Sri.K.Sudhirkumar, the learned counsel for the revision petitioner; Sri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. 8. In this case, the complainant was examined as PW1. He stated that the accused borrowed an amount of ₹ 70,000/- from him for business purpose and issued Ext.P1 cheque for a legally enforceable debt. The main contention of the accused is that Ext.P1 cheque was issued as a blank signed cheque to the wife of the complainant by his father as security in a chitty transaction between the wife of the complainant and the father of the accused. According to the accused, the entire amount was repaid in installments through savings bank account maintained by the wife of the complainant with the Thiruvananthapuram District Co-operative Bank. According to the accused, even after repayment of the chitty amount, the cheque was not returned by the wife of the complainant. 9. During the pendency of the revision, the revision petitioner filed Crl.M.Appl. No. 893 of 2017 seeking to accept additional documents. Along with the criminal revision petition, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. It was further held that the controlling power of the High Court is discretionary in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances, which vary greatly from case to case. The contention of the accused is that the father of the accused deposited the entire chitty amount taken as loan in the account of the wife of the complainant, for which receipts are available with the father of the accused. To prove the receipts, additional documents are sought to be admitted. The allegation is that the complainant started demanding exorbitant interest from the father of the accused and when the father of the accused did not heed to the demand, the complainant presented the security cheque for encashment. 12. It is well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused has not adduced rebuttal evidence before the trial court. It is not just and proper to remand the case for retrial on the strength of the additional documents produced. In the eye of law, merely because the father of the accused deposited the entire chitty amount taken as loan in the account of the wife of the complainant, for which receipts are available with the father of the accused, the same itself is not a ground to hold that the transaction, as evidenced by Ext.P1 cheque, is false in view of the presumption contemplated under Sections 118 and 139 of the NI Act. It is not just and proper to remand a case for further evidence after the lapse of 14 years. Hence, the conviction against the accused for the offence under Section 138 of the NI Act is only to be upheld. 14. Coming to the question of sentence, Ext.P1 cheque was executed as early as on 01.03.2004. The accused has been conducting this criminal case for the last 14 years. Considering the facts and circumstances, it is just and proper to modify the sentence awarded by the two courts below by sustaining the conviction imposed. In the result, the criminal revision petition is partly allowed. The conviction a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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