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TMI Blog2021 (5) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 139, N.I Act. He did not even come in the witness box to support his case. There are no reason to interfere with the conviction of the petitioner under Section 138, N.I Act - In so far as his sentence is concerned, the trial Court, as stated, has convicted the petitioner to rigorous imprisonment for one year and also a fine of ₹ 2,00,000/- which is twice the amount of the impugned cheque. Said sentence of the petitioner has also been upheld by the appellate Court. While upholding his conviction, it is directed that convict petitioner shall pay fine of ₹ 1,50,000/- at the trial Court within 2(two) months from today which on realisation be paid to the complainant, failing which accused petitioner will suffer Simple Imprisonment for six months. The criminal revision petition is thus partly allowed. - Crl. Rev. P No.46/2017 - - - Dated:- 12-5-2021 - HON BLE MR. JUSTICE S. G. CHATTOPADHYAY For Petitioner(s) : Mr. A. Acharjee, Advocate. For Respondent(s) : Mr. S. Ghosh, Addl. Public Prosecutor. Mr. Samar Das, Advocate. JUDGMENT AND ORDER [1] The instant criminal revision petition filed under Section 397/401 of the Code of Criminal Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused under Section 313 Cr.P.C who pleaded innocence and stated that he had already repaid the loan. No defence witness was adduced by the accused. [4] The learned trial Court on the basis of the evidence adduced on record by the respective parties, held the accused guilty of having committed offence punishable under Section 138, N.I. Act, 1881 vide judgment dated 22.11.2016 and accordingly convicted and sentenced him to R.I for one year and fine of ₹ 2 lakhs with default stipulation and it was ordered that fine on realization be paid to the complainant as compensation. [5] Feeling aggrieved and dissatisfied with the aforesaid judgment and order of conviction sentence, returned by the trial Court, accused preferred appeal in the court of the Additional Judge, Gomati Judicial District at Udaipur which also came to be dismissed vide judgment dated 21.06.2017, as a result of which, judgment of conviction and sentence returned by the trial Court was affirmed. In the aforesaid background, accused has approached this court by means of filing the instant criminal revision petition, praying therein, for his acquittal after quashing and setting aside the impugned judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt No.0462010188401. The complainant exhibited the deposit slip (Exbt.3) whereby he presented the cheque to the said bank for encashment. The cheque was returned from the bank vide return memo dated 5.3.2015 (Exbt.4) due to insufficient fund in account No.04620010142417 of the accused. Complainant PW-1 stated that he then issued demand notice to the accused for repayment of the loan vide notice dated 12.03.2015 (Exbt.5) He submitted the postal receipt of the said notice (Exbt.6). The notice was sent through post registered with A/D. The A/D card dated 19.3.2015 (Exbt.7/1) was also produced by the complainant. In cross examination counsel of the accused suggested to the complainant PW-1 that accused did not take any loan from the complainant in presence of PWs-2 and 3 and Bapi Debnath. It was also suggested to him that statements made by him in paragraph 5,6,7,8,9,10 and 11 in his complaint were all false and the documents produced by him in support of his case were also false. All these suggestions were denied by the complainant. [10] PW-2, Manoj Kr. Roy in whose presence the complainant paid the loan identified his signature on the money receipt (Exbt.1) which was executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned cheque (Exbt.2) drawn on the United Bank of India was issued by the accused to the complainant in the discharge of his said liability also stands proved beyond doubt. By producing the return memo (Exbt.4) the complainant has proved that the disputed cheque which was presented by him to the bank on which it was drawn and the same was dishonoured for insufficiency of fund. The complainant also served statutory demand notice (Exbt.5) to the accused which was received by his wife. Despite receipt of the notice, the petitioner did not repay the loan to the complainant. The complainant therefore, prosecuted him under Section 138, N.I. Act, 1881. [15] Section 139, N.I. Act, 1881 provides that there would be legal presumption in favour of the holder of the cheque that such cheque was issued for discharging an existing debt or other liability. However, such presumption is rebuttable by the drawer of the cheque. The Supreme Court has held that standard of proof to rebut the presumption under Section 139, N.I. Act, 1881 is that of preponderance of probability . It has been held by the Apex Court in Rangappa Vrs. Sri Mohan; reported in (2010) 11 SCC 441 that if the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist... [18] In the present case, the trial Court as well as appellate Court have come to the conclusion that the accused had taken loan from the complainant for which he issued the impugned cheque which was dishonoured by bank for insufficiency of fund in his account. The signature of the accused petitioner on the impugned cheque has been proved. The accused did not lead any evidence to rebut the presumption taken by the Courts below under Section 139, N.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the petitioner to rigorous imprisonment for one year and also a fine of ₹ 2,00,000/-(rupees two lakhs) which is twice the amount of the impugned cheque. Said sentence of the petitioner has also been upheld by the appellate Court. [21] It has been settled that offence under N.I Act cannot be equated with an offence punishable under IPC or other criminal offences since such offence is almost in the nature of civil wrong. Having taken into consideration this aspect of the matter and the age, occupation and past records of the accused, this Court is of the view that sentence awarded to the accused should be modified. [22] Accordingly, his sentence is modified as under: While upholding his conviction, it is directed that convict petitioner shall pay fine of ₹ 1,50,000/- at the trial Court within 2(two) months from today which on realisation be paid to the complainant, failing which accused petitioner will suffer Simple Imprisonment for six months. The criminal revision petition is thus partly allowed. [23] In terms of the above, case is disposed of. Pending application(s), if any, shall also stand disposed of. Send down the L.C record. - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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