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TMI Blog2022 (3) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on record that there was no legally enforceable debt for issuance of cheque. The learned Additional Sessions Judge has also given cogent reasons for rejecting this argument of the accused. Revisional Court cannot re-appreciate evidence unless it is shown that the findings of the learned trial Court and the learned Appellate Court are perverse. It cannot be said that the findings of the learned trial Court and learned Appellate Court are perverse. Therefore, there are no infirmity in the appreciation of evidence made by the learned trial Court and the learned Appellate Court. It cannot be said that the learned Additional Sessions Judge has given cogent reasons. No documentary proof was placed on record to show that accused is a handicapped person. His age shown to be 55 years. Thus, at the time of deciding the appeal, he was not even Senior Citizen. Therefore, the leniency shown by the learned Additional Sessions Judge was wholly unwarranted - In the case at hand, the learned Additional Sessions Judge awarded a fee-bite sentence. Smt.Kulkarni, learned counsel for the complainant is right in contending that accused did not pay the amount since the year 2004 and if deterrenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque was, therefore, barred by limitation as it was issued on 1st February 2004. 5. The learned JMFC, Shrirampur, after recording evidence and after recording statement of the accused under Section 313 of the Code of Criminal Procedure, by his order dated 13th August 2012, recorded conviction under Section 138 of the N.I.Act and sentenced the accused to suffer rigorous imprisonment for three months with fine of ₹ 2,60,000/-, in default to suffer rigorous imprisonment for two months. It further directed that ₹ 2,50,000/- be paid as compensation to the complainant. 6. Accused preferred Criminal Appeal bearing No.22 of 2012 against this order of the learned JMFC, Shrirampur. The learned Additional Sessions Judge, Shrirampur, maintained conviction and the amount of fine. However, the learned Additional Sessions Judge set aside the substantive sentence on the ground that sentence awarded was simple imprisonment. This order was passed by the learned Additional Sessions Judge on 13 December, 2017. This order is impugned in this revision. 7. Criminal Revision Application No.13 of 2018 is preferred by the complainant. Accused has preferred Criminal Revision Applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Sessions Judge was perfectly justified in setting aside the substantive sentence. 11. I have given thoughtful consideration to the submissions of both the learned counsel. 12. Both the Courts have held that accused did not dispute drawing of the cheque and his signature thereon. It is also not in dispute that notice was issued within the stipulated period and complaint was filed within limitation. The only point that was canvassed was that there was alteration in the date of the cheque so as to bring it within the validity period. Second defence raised was that there was no legally enforceable debt. Both, the learned JMFC and the learned Additional Sessions Judge have given cogent reasons for rejecting these arguments. 13. In terms of Section 139 of the N.I.Act, when the drawer of the cheque admit issuance of cheque, a presumption is raised that it was issued for legally enforceable debt. Section 139 of the N.I.Act reads as under : 139. Presumption in favour of holder 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, of any debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned J.M.F.C. in the impugned Judgment are correct and proper. Therefore, there is no need of interference in it at the hands of this Court. However, in the operative part clause 2, it reveals that imprisonment of three months is awarded. Considering the submission of learned advocate Shri J.B.Shaikh, for the appellant / accused regarding the nature and length of litigation, as well as age, responsibility of family, he is handicapped etc., some leniency is required to be shown to the extent of imprisonment and hence, to that extent only interference is necessary by way of modification in the operative part of the impugned Judgment which meets the ends of justice. The learned Advocate Shri Kothari for complainant has opposed for the same. 18. From these observations, it cannot be said that the learned Additional Sessions Judge has given cogent reasons. No documentary proof was placed on record to show that accused is a handicapped person. His age shown to be 55 years. Thus, at the time of deciding the appeal, he was not even Senior Citizen. Therefore, the leniency shown by the learned Additional Sessions Judge was wholly unwarranted. 19. Smt.Kulkarni, learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable Instruments Act, 1881, it can be seen that such provisions were incorporated with a view to encourage the culture of use of cheques and enhancing credibility of the instrument. Needless to state that the credibility of the instrument i.e. cheque issued can only be enhanced if the payment thereunder is assured. In the instant case, therefore, the complainant had a minimum expectation, and reasonably so, of the payment due under the said cheque. This fact has been completely overlooked by the learned trial Court leading it to land itself in error. 21. In the case at hand, the learned Additional Sessions Judge awarded a fee-bite sentence. Smt.Kulkarni, learned counsel for the complainant is right in contending that accused did not pay the amount since the year 2004 and if deterrence of punishment of imprisonment is removed, there is no possibility of the accused paying the amount. Award of sentence should be to give proper effect to the object of the legislation. By awarding fee-bite sentence, object of Section 138 of the N.I.Act is frustrated. Therefore, the learned Appellate Court committed error in setting aside the substantive sentence. Therefore, the order of the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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