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TMI Blog2021 (12) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power - this court is convinced and satisfied that complainant has successfully proved by leading cogent and convincing evidence that he advanced ₹ 1.50 Lakh to the accused, who with a view to discharge his lawful liability, issued cheque in question, but the same came to be dishonored on account of insufficient funds in his account. Since despite issuance of legal notice, accused failed to make good the payment , learned court below totality of evidence led on record by the complainant, rightly held accused guilty of having committed offence punishable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment within stipulated time but since he failed to do the same, complainant had no option but to institute complaint under S.138 of the Act. Learned trial Court, on the basis of evidence collected on record, held the accused guilty of having committed offence punishable under S.138 of the Act and convicted and sentenced him as per description given above. 3. Being aggrieved and dissatisfied with judgment and order of conviction dated 8.3.2019 passed by learned trial Court, accused preferred an appeal before learned Sessions Judge Kullu, Himachal Pradesh, which also came to be dismissed vide judgment dated 20.7.2019. In the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal after setting aside judgments and order of conviction recorded by learned courts below. 4. Having heard learned counsel for the parties and perused material available on record this court finds that the accused has nowhere disputed his signatures on the cheque and similarly he has also not disputed issuance of cheque by him but in his statement recorded under S. 313 CrPC, he has claimed that a blank cheque was issued by him to one Smt. Amra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque as well as his signatures thereupon, presumption is available to complainant under Ss.118 and 139 of the Act that such cheque was issued in discharge of lawful liability. 8. No doubt, presumption under Ss.118 and 139 of the Act is rebuttable but for that purpose, accused was under obligation to raise probable defence, which he admittedly has failed to do in the instant case, rather, the accused made an attempt to set up a case, while deposing in the statement recorded under S.313 CrPC that a blank cheque was issued by him to Smt. Amra Devi, but the complainant, in connivance with Amra Devi misused the same. However, he has not been able to prove aforesaid defence either by leading positive evidence or referring to evidence led on record by complainant. It is not understood that what prevented accused to cite Smt. Amra Devi as a witness, if he had issued that cheque to her. 9. In the case at hand, attempt has been made by Mr. Prem P. Chauhan, Advocate to carve out a case that once the complainant, despite his being a literate person, failed to execute document of transaction, if any inter se accused and the complainant, presumption as available under Ss.118 and 139 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - appellant has not adduced any documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. Of course, one of the allegations of the appellant is that the said stamp paper was given to Shri Jagdishbhai and another factor relied upon is that Shri Jagdishbhai had signed on the stamp paper in question and not the complainant. 19.1 We have examined the statement of Shri Jagdishbhai as also the said writing on stamp papers and are unable to find any substance in the suggestions made on behalf of the accused-appellant. 19.2 The said witness Shri Jagdishbhai, while pointing out his acquaintance and friendship with the appellant as also with the respondent, asserted in his examination-in-chief, inter alia, as under: Accused when he comes to our shop where the complainant in the matter Shashimohan also be present that in both the complainant and accused being our friends, were made acquaintance with each other. The accused had necessity of money in his business, in my presence, had demanded ₹ 22,50,000/- (Rupees twenty two lacs fifty thousandly) on temporary basis. And thereafter, the complainant from his fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the accused in my presence as mentioned in the complaint any cheque has not been given. It is not true that I in collusion with the complainant to usurp the false amount the false complaint has been filed through Shashimohan Goyanka. It is not true that in support of the complaint of Shashimohan Goyanka is giving false statement. 19.4 The statement of Shri Jagdishbhai does not make out any case in favour of the accused-appellant. It is difficult to say that by merely putting the suggestion about the alleged dealing to Shri Jagdishbhai, the accused- appellant has been able to discharge his burden of bringing on record such material which could tilt the preponderance of probabilities in his favour. 19.5 The acknowledgement on the stamp paper as executed by the appellant on 21.03.2007 had been marked with different exhibit numbers in these 7 cases. In Complaint Case No. 46499 of 2008, the same is marked as Ex. 54 and reads as under : Today the executor I Rohit Patel Ranchhodray Masala is a partner. Due to the financial difficulties having been arised, I have taken ₹ 22,500,000/- (Rupees twenty two thousand fifty thousand only- sic) from my group which are to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est witness for the purpose. His signatures on this document, therefore, occur as being the witness thereto. This document cannot be ruled out of consideration and existing this writing, the preponderance of probabilities lean heavily against the accused-appellant. 10. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat , 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:- 23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a reverse onus clause that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy. 11. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability. Similarly, Section 118 of the Act provides that unless contrary is proved , that the holder of the cheque received the cheque in discharge, in whole or in part, of a debt or liability. True, it is that to rebut aforesaid presumption accused can always rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. 15. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. 16. True it is that the Hon ble Apex Court in Krishnan and another Versus Krishnaveni and anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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