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TMI Blog2022 (9) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, it has to be held that the courts below rightly convicted the accused under Section 138 of the N.I Act. As per mandate of Section 357 (1)(b) of Cr.P.C, when the court imposes sentence of fine or a sentence of which fine forms a part, the court may when passing judgment, order the whole or part of the fine to be paid as compensation for any loss or injury caused by the offence, when compensation, is, in the opinion of the court, recoverable by such person in a civil court. Section 357(3) of Cr.P.C provides that when a court imposes a sentence of which fine does not form a part, the court may when passing judgment or order by way of compensation, such amount, as may be specified in the order to the person who has suffered any loss or injury by reasons of the act or accused has been so sentenced - Thus in an offence under Section 138 of the N.I Act when the court imposes imprisonment and fine, fine forms part of the sentence. In such cases, the court has to order payment of compensation from the amount of fine as provided under Section 357(1)(b) of Cr.P.C. - the sentence is modified. Appeal allowed in part. - CRL.REV.PET NO. 628 OF 2022 - - - Dated:- 20-9-2022 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault of payment of compensation, to undergo simple imprisonment for a period of one year. On appeal, the learned Sessions Judge also confirmed the said conviction and sentence on re-appreciation of the evidence. 8. Though the learned counsel for the revision petitioner argued to unsettle the concurrent verdicts entered into by the trial court as well as the appellate court, finally he conceded that the revision petitioner/accused will be satisfied with modification of sentence to one for a day till rising of court and payment of compensation. Further he submitted that 8 months' time may also be granted to pay the compensation. 9. It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In the decision reported in [(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan Namboodiri, the Apex Court, while considering the scope of the revisional jurisdiction of the High Court, laid down the following principles (SCC pp. 454-55, para 5): 5. ... In its revisional jurisdiction, the High Court can call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or is grossly erroneous or glaring 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 courts may not interfere with decision in exercise of their revisional jurisdiction. 11. The said ratio has been followed in a latest decision of the Supreme Court reported in [(2018) 8 SCC 165], Kishan Rao v. Shankargouda. Thus the law is clear on the point that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, 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 had already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the court which would otherwise tantamount to gross miscarriage of justice. To put it otherwise, if there is non-consideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. 13. In the decision reported in [ 2019 (1) KLT 598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], Bir Singh v. Mukesh Kumar, the Apex Court while dealing with a case where the accused has a contention that the cheque issued was a blank cheque, it was held as under: A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], P.36., where this Court held that: Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 15. Thus the law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. 16. It has been settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions. In the case on hand, it appears that the accused did not adduce any evidence. Though during cross examination of PW1 issuance of blank cheque and subsequent filling up of the same were suggested, the said suggestions were denied by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies that the process comprises two stages. First, when the Court determines the amount of fine and levies the same subject to the outer limit, if any, as is the position in the instant case. The second stage comprises invocation of the power to award compensation out of the amount so levied. The High Court does not appear to have followed that process. It has taken payment of Rs.80,000/- as compensation to be distinct from the amount of fine it is imposing equivalent to the cheque amount of Rs.69,500/-. That was not the correct way of looking at the matter. Logically, the High Court should have determined the fine amount to be paid by the appellant, which in no case could go beyond twice the cheque amount, and directed payment of compensation to the complainant out of the same. 19. Section 357 of Cr.P.C dealing with order to pay compensation provides as under: 357 : Order to pay compensation : (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment, order the whole or any part of the fine recovered to be applied-- (a) in defraying the expenses properly incurred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt imposes a sentence of which fine does not form a part, the court may when passing judgment or order by way of compensation, such amount, as may be specified in the order to the person who has suffered any loss or injury by reasons of the act or accused has been so sentenced. Punishment provided for commission of offence under Section 138 of the N.I Act includes imprisonment for a period, which may extend to 2 years or with fine which may extend twice the amount or with both. Thus in an offence under Section 138 of the N.I Act when the court imposes imprisonment and fine, fine forms part of the sentence. In such cases, the court has to order payment of compensation from the amount of fine as provided under Section 357(1)(b) of Cr.P.C. In view of the matter, the sentence is liable to be modified. 21. In the result: (i) This Revision Petition is allowed in part; (ii) The conviction imposed by the trial court as well as the appellate court stands confirmed; (iii) The sentence stands modified as under: (a) The revision petitioner/accused shall undergo simple imprisonment for a day till rising of the court for the offence under Section 138 of the N.I Act and al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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