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TMI Blog2022 (11) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... d the learned Public Prosecutor on admission. 3. I shall refer the parties in this Revision Petition as 'complainant' and 'accused' for convenience. 4. Shorn off unnecessary details, the case put up by the complainant before the trial court is as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as 'NI Act' for convenience) by the accused on the allegation that cheque for Rs.2,00,000/- each dated 24.07.2016 and 27.08.2016 issued by the accused to the complainant in discharge of the loan amount received by the accused from the complainant, when dishonoured. 5. The court below secured the presence of the accused for trial and went on trial. During trial, PW1 examined and Exts.P1 to P6 were marked on the side of the complainant. 6. After questioning the accused under Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced. 7. While assailing the concurrent verdicts of the trial court as well as the appellate court, the learned counsel for the accused would submit that Exts.P1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case on hand, while asserting the said point, the learned counsel for the revision petitioner placed reliance on the award passed in this case before the Taluk Legal Services Committee, Kochi dated 08.04.2018. As per the said settlement, following are the terms incorporated: Both sides agree to settle the case on payment of Rs.4,20,000/- (Rupees Four lakh Twenty Thousand only) to the complainant by the accused as scheduled below. 1) Accused shall pay Rs.1,00,000/- (One lakh only) on or before 27.09.2018. 2) Balance Rs.50,000/- (Fifty Thousand only) shall be paid on or before 30.10.2018. 3) Balance Rs.2,70,000/- (Two lakh Seventy Thousand only) shall be paid on or before 30.12.2018. 4) On receipt of the said amount complainant will withdraw the cases. 5) In case of non-payment of the amount complainant will be at liberty to proceed with the complaint. 11. As per Clause 5 in the settlement, the parties agreed that, in case of non-payment of the amount, the complainant would be at liberty to proceed with the complaint. That means no finality reached in the award and the terms of the award is to the effect that in case of failure to pay the amount, the complaint in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) KLT 425 (SC)] may not be correct. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specified a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact 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 accused/defendant cannot be expected to discharge an unduly high standard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S.118 and S.139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these `reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the Trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The Trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay. ................... 18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ..." 23. In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in para.14 (SCC p.135) : "14. ...... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. Uniformity and consistency in deciding similar cases by different Courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of Courts of justice. 29. Therefore, it could not be held that the appellate court went wrong in increasing the fine, while maintaining the default sentence. 30. Having considered the above aspects, I am of the view that the concurrent verdicts of conviction as well as sentence imposed by the trial court do not require any interference at the hands of this Court and therefore, the revision must fail. 31. In the result, this revision petition fails and it is, accordingly, dismissed. 32. However, the revision petitioner/the accused is given two month ..... X X X X Extracts X X X X X X X X Extracts X X X X
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