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TMI Blog2022 (11) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... ial court as well as the appellate court found that the complainant discharged his initial burden in proving the transaction led to execution of Ext. P1 cheque and thereby, twin statutory presumptions embodied under Sections 118 and 139 of the NI Act would go in favour of the complainant. Law regarding presumptions is also settled as well - the law is clear on the point that when the complainant discharges 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. Thus, it has to be held that conviction as well as the sentence imposed by the trial court as well as the appellate court do not require any interference and therefore, this revision must fail - this revision petition fails and it is, accordingly, dismissed. - CRL. REV. PET NO. 758 OF 2022 - - - Dated:- 10-11-2022 - THE HONOURABLE MR. JUSTICE A. BADHARUDEEN For the Appellant : John Tony Akkara , Adv For the Respondents : Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h to include criminal prosecution also, such criminal proceedings must be in relation to the assets of the company, and, as the proceedings under S. 138 of the Negotiable Instruments Act are not in respect of the assets of the company. S. 446 has no application and the proceedings cannot be stayed invoking S. 446 of the Companies Act. The expression 'other legal proceedings in S. 446 of the Companies Act does not take in all proceedings and the proceedings under the Special Act have an overriding effect over the general provisions under the Companies Act . 9. In fact, no other contentions raised to defeat the claim of the complainant where, the complainant established the fact that Ext. P1 was issued towards discharge of the chity prize amount. 10. Accordingly, the trial court convicted and sentenced the accused. Accused No. 2 was sentenced to pay a fine of Rs. 75,000/- for the offence punishable under Section 138 of the NI Act and in default of payment of fine, simple imprisonment for a period of two months was ordered. Fine, if realised, was ordered to be given as compensation to the complainant. 11. Though the accused challenged the conviction and sentence before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by re-appreciating the oral evidence.... 16. 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 order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C. is not to be equated wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 36., where this Court held that: Even a blank cheque leaf, voluntarily signed and handed over by th ..... 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