9911796707
TMI Blog2022 (10) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity committed by the courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below. The present revision petition is dismissed being devoid of any merit. - Criminal Revision No. 195 of 2021 - - - Dated:- 28-9-2022 - Hon'ble Mr. Justice Sandeep Sharma For the Petitioner : Mr. Satvik Chauhan, Advocate For the Respondents : Mr. Vinay Thakur, Advocate For R-1, Mr. Sudhir Bhatnagar, Additional Advocate General, For R-2 ORDER Instant criminal revision petition filed under S. 397(1) read with S.401 CrPC, lays challenge to judgment dated 27.12.2018 passed by learned Additional Sessions Judge, Kinna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before learned Additional Sessions Judge Kinnaur at Rampur Bushahr, but the same was also dismissed vide judgment dated 27.12.2018. In the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal after setting aside judgments of conviction and order of sentence recorded by learned courts below. 5. Vide order dated 9.9.2019, substantive sentence imposed upon the accused by learned trial Court was suspended subject to accused depositing 50% of compensation amount within 6 months, but the said order never came to be complied with in its entirety. Pursuant to the aforesaid order, accused deposited Rs.1,04,000/- but thereafter, matter came to be adjourned repeatedly, enabling the accused to deposit balance sum of Rs. 26,000/-. Record reveals that more than ten opportunities came to be afforded to the accused to deposit the balance amount but today learned counsel for the accused fairly stated that the accused is not coming forward to impart instructions, as such, appropriate orders may be passed, in the matter. In the aforesaid background, this court decided to hear the matter on its merit. 6. Having heard learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied, presumption starts in favour of holder of cheque and once such presumption starts, onus shifts upon the person issuing the cheque. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat , (2019) 18 SCC 106, wherein, it has been held as under: 18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. In regard to the defence as put in the cross-examination, the witness stated as under: I have got shop in National Plaza but in rain no water logging has taken place. It is not true that there had been no financial dealings between me and the accused today. It is not true that I had given rupees ten lacs to the accused Rohitbhai on temporary basis. It is not true that for the amount given to the accused, I had taken seven blank duly cheques also blank stamp paper without signature. It is not true that there was quarrel between me and the accused in the matter of payment of interest. It is not true that even after the payment of Rs. ten lacs and the huge amount of the interest in the matter of interest quarrel was made. It is not true that due to the reason of quarrel with the accused, in the cheques of the accused lying with me by making obstinate writing has filed the false complaint through Shashimohan Goyanka. It is not true that no financial dealings have taken place between the complainant and the accused. therefore I also th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptable to me. 19.6 The fact of the matter remains that the appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post- dated, starting from 01.04.2008 and ending at 01.12.2008. There appears absolutely no reason to discard this writing from consideration. 19.7 One of the factors highlighted on behalf of the appellant is that the said writing does not bear the signature of the complainant but and instead, it bears the signatures of said Shri Jagdishbhai. We find nothing unusual or objectionable if the said writing does not bear the signatures of the complainant. The said writing is not in the nature of any bi partite agreement to be sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof . The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities. 24. Therefore, 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. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds in the bank account of the accused. He also proved factum with regard to issuance of demand notice dated 11.5.2011 Ext. CW-1/E, by placing on record acknowledgement regarding service of notice upon the accused, Exhibit CW-1/F. Moreover, factum with regard to delivery of legal notice stands duly established on record by the reply to the notice sent by accused Ext. CW-1/G. 12. Cross-examination conducted upon CW-1 by the accused, if perused in its entirety, nowhere suggests that the accused was able to extract anything contrary to what this witness stated in his examination-in-chief. Though, pattern of cross-examination suggests that accused attempted to carve out a case that the blank cheque in question was issued by the accused in favour of the complainant and same was subsequently filled up in the complainant, however, such defence never came to be probabilized. 13. Though learned counsel for the accused argued that the cheque in question was issued as a security cheque, which was misused by the complainant, but no such suggestion came to put to the complainant in his cross-examination rather in the cross-examination, question came to be put to the complainant that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efence witnesses are of no relevance as far as case set up by the complainant is concerned. 17. If the entire evidence led on record by respective parties is read in conjunction, this court finds it difficult to agree with learned counsel for the accused that learned courts below have failed to appreciate the evidence in its right perspective rather, having scanned entire evidence, this court is convinced and satisfied that the complainant has proved on record factum with regard to having sold 245 apple boxes to the accused for Rs. 92,310/- 18. It also stands proved that with a view to discharge his liability, accused issued cheque Ext. CW-1/B, for Rs.79,600/- but the same was dishonoured. Since despite having received legal notice, accused failed to make the payment good within time stipulated in legal notice, complainant had no option but to approach the competent court of law. Since before initiating proceedings under S. 138 of Act, complainant complied with all ingredient of S.138 of Act and proved the same successfully, there appears to be no illegality or infirmity in the judgments of conviction and order of sentence recorded by learned courts below. 19. Having caref ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
