9911796707
TMI Blog2022 (11) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as 'NI Act' for convenience), when cheque for Rs.4,75,000/- dated 21.10.2013 issued by the accused in favour of the complainant, who stood as a guarantor for one Mr.Josil K.Joy for availing hire purchase loan agreement, was dishonoured, when it was presented for collection. After dishonour of the cheque, the complainant issued legal notice of demand and the accused failed to repay the same even after notice. 5. The trial court secured the presence of the accused for trial and proceeded with trial. During trial, PW1 examined and Exts.P1 to P12 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. Thereafter, the trial court given emphasis to the evidence of PW1 to hold that the transaction led to execution of the cheque was proved by the evidence of PW1, since the evidence adduced by PW1 was not shaken during cross-examination. Accordingly, the trial court given benefit of presumptions in favour of the complainant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntor issued cheque to discharge the said liability. Thus, this argument cannot be appreciated. 11. In this case, the trial court as well as the appellate court given reliance to the evidence of PW1 to find that the complainant discharged his initial burden in the matter of proof of transaction led to execution of Ext.P7 cheque. Ext.P1, certificate of incorporation, Ext.P5, the hire purchase agreement dated 14.12.2010 and Ext.P6, hire purchase loan register alleged to be containing the signature of the accused also was proved by the court below. In fact, the accused herein admitted issuance of cheque as a guarantor, but his contention is that he had issued the same as a blank signed one towards security. But the said contention not proved in any manner is the finding of the courts below. 12. It is the settled law that, when the complainant discharged his initial burden in the matter of transaction led to execution of the cheque, he would get twin presumptions in his favour. Law regarding presumptions is also settled as well. 13. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], Rangappa v. Sri.Mohan. In the above decision, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 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 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." 15. In a latest 3 Bench decision of the Apex Court reported in [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly signed and handed over by the accused which is towards some payment also would attract presumption under Section 139 of the NI Act. Therefore, the said contention rightly negatived by the trial court as well as the appellate court could not be faulted at all. 18. Coming to the power of this Court in the matter of exercising revision, the law is well settled. 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 for and examine the record of 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction." 20. 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, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. 21. In this matter, it is to be noted that nothing available to interfere with the concurrent verdicts, by exercising power of revision. To the contrary, it appears that the courts below rightly entered into conviction and sentence. Therefore, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
